author: ORMOND, J. GOLDTHWAITE, J.

text:
    KEITH vs. ESTILL.
    1. The statute of limitations is not a good plea, in bar to an action of debt, on a judgment rendered in another State.
    Error to Talladega Circuit court.
    Debt on judgment — before Shortridge, J.
    This action was instituted in the court below, by the plaintiff in this court, on the exemplification of the record of a judgment, obtained by the plaintiff against the defendant; in the County court of Franklin, State of Tennessee, in the year eighteen hundred and twenty.
    The- defendant pleaded,
    1. Nul tiel record; and
    2. The statute of limitations of six years.
    Issue was taken on the first plea, and a demurrer filed to the second. The court overruled the demurrer, and the plaintiff failing to plead over, judgment was rendered for the defendant, from which the plaintiff has prosecuted a writ of error.
    The error assigned is — The court erred in overruling the demurrer of the plaintiff to the plea of the defendant.
    McClung, for plaintiff in error.
    Chilton, contra.
   ORMOND, J.

To a correct understanding of the important question presented by this record, and which is for the first time raised in this court, we must refer to our statutes for the limitation of actions. The clause supposed to be applicable to this case, is the 68th section of the act regulating judicial proceedings at common law — (Aik. Dig. 270) — and is in these words:

“All actions of trespass guare clausum fregit; all actions of trespass, detinue and trover, for taking away of goods and chattels; all actions of debt, founded upon any lending, or contract without specialty, or for arrearages of debt due on a parol demise; and all actions of account, and upon the case, except actions for slander, and except, also, such actions as concern the trade of merchandise, between merchant and merchant, their factors or agents, — . shall be commenced within six years next after the cause of such action shall have accrued, and not after.”

There is no term or description in any of our statutes of limitation, which will meet the case of a judgment of another State, unless it be included in the language of the above recited act, “debt founded upon any contract without specialty.” The question, then, appears to be ¡resolved into the enquiry, Is a judgment of another State a contract, within the meaning of the act ?

It cannot be doubted, that the fairest mode of interpreting a statute, is to construe the language employed by the legislature, according to its usual popular signification, unless the context requires a different mode of interpretation, to give effect to the intention of the lawgiver. Although the word contract may, in its most enlarged sense, include the legal liability arising on a judgment from which the law implies a contract or promise to pay, yet it must be conceded that this is a very recondite and remote sense of the term, and very far removed from its popular signification. But it is conceived that the context, so far from requiring such a construction to give effect to the law, manifestly requires that it should be construed in its popular sense. The language is, all actions of debt founded upon any lending or contract, without specialty; and is it not manifest, that lending and contract, are considered in the law as terms of equal import, and clearly indicating the same relative grade of liabilities? Again: the contracts which the legislature were' providing for, were by them considered inferior to specialties; yet both in law, and in popular estimation, a judgment of one of the States of the Union, is a debt ©f higher grade than a specialty.

Where it has been decided, both in England and the United States, that a plea of the statute of limitations, could be pleaded to a foreign judgment, the reasoning has proceeded on the grounds thus: such judgment was merely prima facie evidence of a debt. Thus, in Walker vs. Wetter, Lord Mansfield said, “ the question was brought to a narrow point, for it was admitted, on the part of the defendant, that indebitatus assumpsit would have lain; and on the part of the plaintiffs, that the judgment was only prima facie evidence of the debt;” that therefore, “ the judgment was not a specialty, but only prima facie evidence of a debt ” So, it was held in the cases of Hubbell vs. Condey, 5 Johnson, 132, and Bissell vs. Hall, 11 Johnson, — that the statute of limitations was a good plea to a suit, on a judgment of another State — and on similar reasoning, but upon a misapprehension of the effect of the judgments of our State, when sought to be enforced in other States, under the constitutional provision, as explained in the case of Mills vs. Duryee, (7 Cranch, 481.)

In Pease vs. Howard, (14 Johnson, 479,) it was held, that the plea of the statute of limitations, could not be made to the judgment of a justice of the peace of that State. The reasoning of the court, in that case, appears to me to be conclusive. Tan Ness, Justice, after commenting on the decision of Lord Mansfield, says, “ from this, it Would seem to follow, that if the judgment had been cónclusive evidence of the debt, it would have been a specialty, and that, of course, the statute of limitations could not have been a bar.” He then proceeds to show, that the judgment of a justice is conclusive evidence, and therefore, a specialty. His criticism on the language of the statute, (which is the same as ours, except that the word "lending” is omitted in the New York statute.) is Very forcible. “Neither,” he says, “is a debt of this description within the Words of the statute; and every statute of limitations being in restraint of right, must be construed strictly. It has been held, that debt on indenture reserving rent, is not within the statute, notwithstanding the generality of its terms; and the settled construction of the statute is, that it applies solely to actions of debt founded on contracts in fact, as contradistin-guished from those arising by construction of law.”

In Hodsden vs. Harnage, (2 Saunders, 65, margin,) it was held, that upon debt on an award, the statute could not be pleaded. So, also, in Jones vs. Pope, (1 Saunders, 36,) which Was an action of debt, founded on a statute, it was held, the plea was not good, because a statute is a specialty.

• In Wyman vs. Mitchell, (1 Cowan, 320,) it was held, that a judgment obtained in New York, on a judgment of the State of Massachusetts, was not within the insol--vent laws of New York, because the judgment obtained in Massachusetts, was not a contract; and they held, that they could look to the foundation of the judgment, upon an application for the benefit of the insolvent law. Having attained that conclusion, Sutherland, Justice* says: “Now a judgment is in no sense a contractor agreement between the parties — it is only evidence of a pre-existing duty, obligation or agreement; and the reason upon which the validity of a discharge is sustained,can have no application to a debt arising upon a judgment obtained subsequent to tbe passing of the act,where the agreement which was the foundation of the judgment, was made anterior to the act.” In Andrews vs.Montgomery, (19 Johnson, 192,) tbe doctrine of the earlier New York cases was overturned, and it was held, that assumpsit would not lie on the judgment of another Staté* because it was conclusive evidence of the debt.

In the case of Richardson vs. Beckely’s adm’r* (13 Ser. & Rawle, 395,) which was an action on a judgment obtained in the island of Barbadoes, the court held,- that the statute of limitations Was not a good plea. That was-the case of a foreign judgment, which was founded on a specialty; and the court appear, in that case, to have founded their opinion on that circumstance — holding, that it would be absurd to say,- that if the action had been founded on the specialty, that the statute would' not be a good plea, and that by being matured into a judgment, which was really a debt of a higher nature* the plea would' be let in. Without adopting the argument, in its full extent, as it might lead to embarrassing' questions, where the judgment was founded on a tort, as in slander, or trespass vi et armis, — it is certain that the case supposed, would present a strange absurdity.

Be the case as it may, when applied to foreign judgments, (which question is not before us,) it appears very conclusive to me, both on principle and authority, that the statute of limitations is not a good plea to an action of debt of a sister State, when sought to be enforced in this State.

I should be willing to rest the decision on the construction of our statute, as it appears to my mind to be as demonstrable as a proposition of this nature is susceptible of, that the framers of the act, by the word contract, did not contemplate judgments, and that it is a casus omissus.

Indeed, the contrary opinion has never any where been supported, but on the ground that a foreign judgment is merely prima facie evidence of a debt; but the judgments of our co-States, rendered on service of process, are conclusive evidence of the bebt, when sought to be enforced in every other State. The whole argument, therefore, when applied to these judgments, fails.

It appears from the public prints, that the Supreme court of the United States held the plea of the statute of limitations good, when pleaded to a judgment of another State, attempted to be enforced in the State of Georgia. The notice does not disclose the particulars of that case, but on looking into the statutes of theState of Georgia, we perceive that an action founded on a judgment of another State of the Union, is in that State barred in five years; and it is probable that the decision proceeded on that ground. It is, therefore, the opinion of the court, that there was error in the judgment of the court below, in overruling the demurrer of the plaintiff to the plea of the defendant, — and it is therefore reversed, and the cause remanded.

GOLDTHWAITE, J.

I dissent from the opinion of the majority of the court. In my judgment, the plea interposed, presents a complete bar to the action.


source: Caselaw Access Project

author: GOLDTHWAITE, J.

license: Public Domain

text:
    PITTS vs. COTTINGHAM.
    1. Where there is a false representation of the value and locality of the property sold, equity will relieve the vendee, by rescinding the contract, and compelling the vendor to surrender notes given, for the purchase money to be cancelled.
    Error to Talladega Circuit court, exercising chancery jurisdiction.
    Bill of complaint — heard by Shortridge, J.
    The bill in this case, stated that Cottingham sold Pitts two hundred acres of land, and represented it as lying within a mile of one Holley’s residence, being worth ten dollars an acre, &c. Pitts gave his notes for the purchase money, at that price, and Cottingham executed a bond for title. Cottingham afterwards ascertained it was poor, barren, pine land, situate on a hill, of no value, and two or three miles distant from Holley’s.
    An injunction was granted below, on filing the bill, to restrain defendant from proceeding on the notes, but, the bill was afterwards dismissed for want of equity, to, reverse which order, the plaintiff prosecuted his writ of error.

      Martin, for plaintiff in error.
   GOLDTHWAITE, J.

The facts alleged in this bill, may be said to present two grounds, on which the complainant seeks relief.

1. On account of the false representation of the nature and quality of the estate sold;

2. Because its location does not correspond with the defendant’s representation, made at the time of the sale.

It is necessary to ascertain, if these facts warrant the interposition of a court of equity, in behalf of the complainant.

It is said in the books, that a false representation respecting the nature of an estate, will not warrant the re-scisión of the contract for its sale, although the purchase may have been induced, and the purchaser deceived, by it — (Sug. on Bonds, 3, and cases there cited.) If this is intended to be understood of those random assertions Which are too often used by vendors respecting the value of their estates, it is doubtless true, and the cases, when examined, are found to prevent representations of this description, or else, were so vague and indeterminate, as to lead any prudent purchaser to a further and more direct enquiry into the value of the estate. It is not true, however, that equity will deny relief against false representation, though made with respect to mere value; and the cases are numerous in which damages at law have been recovered, and contracts rescinded in courts of equity, on this ground alone — (Burton vs. Cooper, 3 Atk. 383 Duke of Norfolk vs. Worthy, 1 Camp. 337; Fenton vs. Brown, 14 Vesey, 141.)

There is some difficulty in defining with exactness, any rule which will embrace all the cases in which a false representation of value will entitle the purchaser to. relief; but seems clear, that it will not benied, where there is a positive representation, essentially material to the subject in question, and which, at the same time, is false in fact; provided, the application for relief is made with, due diligence — (Lowndes vs. Lane, 2 Cox, 363; Sherwood vs. Salmon, 5 Day, 439.)

The allegations of the bill bring this case completely within the rule just quoted, and it presents the additional feature, of an entire and implicit reliance on the assertions of the defendant, the complainant having no-means of ascertaining their falsity, by an inspection of the land before the purchase.

2. The misrepresentation of the location of the land, is equally decisive of the complainant’s right to relief, and is as fully within the rule laid down. The- bill, charges, that the land sold was represented as adjoining the lands of an individual named, but when examined, it .proves to be distant one or two miles. This was not the estate which the defendant contracted to purchase, and the facts would furnish cause sufficient to rescind the contract, even if the seller was guiltless of any fraudulent intention — (Duke of Norfolk vs. Worthy, 1 Camp. 337; McFerron vs. Taylor et al. 3 Cranch, 270.)

If the facts in relation to the contract are such as are alleged in this bill, the complainant may successfully defend any suit which the defendant shall hereafter institute against him on the notes, in a court of law; but £his does not preclude him from coming into chancery, in order to compel the defendant to surrender the notes to be cancelled.. In equity, he is entitled to have the evidence of his liability surrendered, as the witnesses by whom the facts can now be established, may die or remove, so that it may hereafter be difficult or impracticable to obtain their testimony. Nor is the complainant bound, on any principle, to wait the defendant’s pleasure to institute a vexatious suit against him. This rule, though formerly questioned in the English courts of equity, is now considered as amply sustained by authority, as it certainly is in principle — (Bromley vs. Hilliard, Cooper, 29 — S. C.; 7 Vesey, 21; Ives vs. White, 7 Vesey, 414; Kemp vs. Prior, id. 249 ; Mad. Chan. 226.)

In any aspect in which this bill can be considered, it seems to us that there is sufficient equity on its face, to require an answer from the defendant: this being the case, it ought not to have been dismissed. The decree .of the Circuit court is reversed, with costs, the injunction reinstated, and the cause remanded to the Court of Chancery, for further proceedings.


author: COLLIER, C. X.

text:
    THE MOBILE COTTON PRESS AND BUILDING COMPANY vs. MOORE & MAGEE.
    1. A party injured by the improper execution of a fieri f acias.¡ may obtain redress, on motion,' to the court from which the writ issued.
    2. A sale of land will be set aside, where the sheriff is guilty of a mistake,- irregularity, or fraud,-to the prejudice of either party, or a third person.
    3. So, the misrepresentation, or fraud, of a purchaser at sheriff’s sale, furnishes just ground for invalidating the sale.
    4. And the court will set aside the sale, though the sheriff has-executed a deed to the purchaser.
    5. Quere — Can the court go so far in declaring the sale to be invalid, as to direct the purchaser to deliver up the sheriff’s deed 1 Whether a court of law may do this or not, is unimportant to the rights of the parties, as it may declare the deed to be' void, and this will a;s effectually destroy it, as if if were cancelled in fact

    Error to Mobile County court.
    Rule upon the sheriff, &c,
    The plaintiffs in error moved the County court of Mobile upon affidavits filed, for a rule to be addressed to the defendants, requiring them to show cause why the sale made by Magee, as sheriff, to Moore, under an execution issued from that court, at the suit of Edward Harding, against the plaintiffs in error, should not be set aside, and the conveyance (if any) to the purchaser, delivered up and cancelled. The rule was accordingly granted, returnable on a day therein expressed, and duly served on the defendants.

      Several affidavits were filed, to sustain the motion, Which we will notice in the order in which they are found in the record. Lyman Gibbons, states that he was one of the attorneys for Edward Harding, in the case against the plaintiffs in error — that judgment was obtained therein, at the June term, eighteen hundred and thirty-eight, of the County court of Mobile; after which event, the deponent assumed the entire control and management of the claim. That soon after the adjournment Of the court, an execution issued on the judgment, which he directed to be levied on the new Hotel, at the northeast corner of Government and Royal streets — the execution was levied on the Hotel, Which was regularly advertised by the sheriff of Mobile, aud was to have been sold on the first Monday-in October, eighteen hundred aud thirty-eight. That after the advertisement was made, the deponent was called upon by Judge Hitchcock, one of the corporators of the company, who requested that the sale of the Hotel might be postponed : to which deponent assented, and a postponement was agreed on for one month.
    The deponent further states, that the property was not again advertised for sale, until the fourth day of January last,when it was understood between himself and Judge Hitchcock, that the property should be re-advertised, in order to keep alive the lien of the execution, but without •ihtention to have a sale, unless some unexpected exigency should arise, and then Judge Hitchcock should be duly notified that a sale would take place. In the verbal order'which the deponent gave to the sheriff, to re-advertise the property, he endeavored to convey to him the idea, that the property should not be sold on the day specified in the advertisement, without special orders so1 to do. The deponent, after having the matter understood (as he supposed) with the sheriff and Judge Hitchcock, gave it no farther attention — nor was he aware' that the sheriff intended to offer the property for sale on the first Monday of February, as he in fact did. Had the deponent been aware of such an intention,' he would-not have permitted the property to have been sold j and? in any event, he felt bound to- notify Judge Hitchcock,before a sale took place, and would then, for the protection of his client, have bid for the property the amount? oi‘ nearly so, of the judgment. '
    immediately after the sale, the deponent was1 informed1 by Judge I-litchcock, that the property had been- sold, and he forthwith repaired to the sheriff’s-office,-where he' made it known, that it was not his intention to have5 had the property sold, but the sale was made under a mistake. When deponent mate this statement, he found the sheriff’s clerk preparing a “deed of conveyance to-the5 purchaser.-
    Henry Hitchcock deposes, that-the fact's stated by Mil-Gibbons, so far as they disclose what personally transpired between himself and the deponent, are true.-
    He further states, that a day or two before the first! Mbtiday in January last, the sheriff called on the dbpo-hent, and asked him if any arrangement had been, oi Would be made to prevent a sale of the Hotel; ú'poh which the deponent informed him of the arrangement-With Mr. Gibbons, and stated that he was then negótia-ting a loan in New York, on the faith of that property,from which the judgment was to be satisfied — that he was expecting to hear from New York on the subject, in a short time, and that the sale would have to be further postponed. Whereupon the sheriff replied, that he would postpone the sale on his own responsibility. The deponent, however, requested the sheriff to see Mr. Gibbons on the subject, and left him — the deponent then went directly to Mr. Gibbons, (as he was not disposed to allow the delay to rest on his statement alone to the sheriff,) and requested him to see the sheriff, and be sure and have the sale postponed, which he promised to do. The sale Was postponed, and the deponent believed that things would remain in that situation until further orders from New York, and that under any circumstances, the property would not be sold until notice was given to him by Mr. Gibbons. He did not again see Mr. Gibbons or the sheriff, on the subject, and did not suppose the sale would take place on the first Monday in February. Of the proceedings on that day, the deponent knew nothing, till informed by Mr. Isaac H. Erwin, that the sheriff was selling the Hotel at the court house. Upon receiving this intelligence, he immediately went from his office to the court house, and on reaching there, was informed that the premises had been sold to William Moore, for seventy five dollars. He then informed both the sheriff and Moore, that there was a mistake in the matter — no sale should have been made — and requested that nothing further might be done, till he could see Mr. Gibbons. This occurred within a few minutes after the sale— while the parties were on the stand — before any money had been paid, or deed excepted: and immediately thereafter, the deponent proceeded to Mr. Gibbons, informed him what had been done, requested him to see the sheriff, and stop the execution of the deed. The deponent further states, that the sum at which the premises were bid off, is grossly inadequate, when compared with its value, and that if he had been informed that a sale would have taken place, he would have attended, and bought in the property.
    In the affidavit of William P. Brown, it is stated that the New Government, street Hotel, on the north east corner of Government and Royal streets, was worth, as it then stood, at least two hundred thousand dollars, according to the best judgment of the deponent.. The deponent is informed, and believes that the mortgage and other liens and encumbrances on that property, do not amount to more than one hundred and twenty thousand dollars, so that the premises are worth over and above all liens, at least seventy Jive thousand dollars.

    Isaac II. Erwin deposes, that he was present at the court house of Mobile county, on the first Monday of February, eighteen hundred and thirty-nine, when the sheriff of that county offered at public sale, the property situated at the north east corner of Government and Royal streets, commonly known as the Government street Hotel. The property was offered, as advertised by the sheriff, under an execution in favor of Edward Harding —the deponent heard the terms and conditions of sale,- and made the first bid — no statement was made, either by the sheriff or crier, that the property was encumbered, yet deponent knew at the time, that there were heavy encumbrances on it, amounting to more than one hun-dr,ed thousand dollars, on which there have since been, decrees of foreclosure.
    Deponent, op making the first bid for the property, &nd finding that some one bid a larger sum, went immediately to the office of H. Hitchcock, who he knew to be interested in the same, and enquired if he was aware that the property was about to be sold ; to which he replied that it was a mistake, as it was agreed between the parties in interest not to sell it. The deponent, accompanied by Judge Hitchcock, returned immediately tq the court house, and found that the Hotel was just struck down to Mr. William Moore, at seventy-five dollars; Judge, Hitchcock enquired of Mr. Moore, if he had bid it off, to which he answered that he had; Judge Hitchcock then remarked to him, in the presence of the sheriff and the .crowd then, present, that the sale was made under a mistake — the parties had agreed not to sell the property. This occurred within ten minutes after the sale, as deponent believes, and before Moore, the sheriff, or the bidders generally, had left the court house door. This deponent believes the property well worth two hundred thousand dollars.
    The defendants severally shewed cause against the rule, by submitting to the court their answers, which they verified by their respective oaths.
    The defendant Moore saith, that he was present at the ppurt house door of Mobile, when the sheriff of that county offered and exposed to sale, certain premises situate at the north east corner of Government and Royal streets, known as the Government street Hotel. That hp understood from the sheriff’g proclamation, that the premises were exposed to sale under an execution theretofore issued from the-County court of Mobile, on a judgment there rendered in favor of Harding, against the plaintiff in error. This defendant also understood from the sheriff, that the property had been regularly levied on, and advertised for sale according to law, and knowing of no good reason why it might not be sold, and a good title thereto acquired, as the defendant in the execution was in possession of the same. Under that impression, this defendant became the highest bidder, and of course, the purchaser of the property — paid the purchase money, and received the sheriff’s deed therefor, on the day of sale — all of which occurred previous to any notice by Judge Hitchcock, or any other person, that the sale was not fair, legal and bona fide; nor did he receive any notice from, or have any conversation with, Judge Hitchoock, other than as follows: soon after the property was bid off, by this defendant, Judge Hitchcock came to the place where the sale was made, and where the sheriff and defendant were standing, and enquired in the hearing of the latter, if the premises were sold, and on being answered in the affirmative by the sheriff, he addressed this defendant, saying that he understood he was the purchaser, and enquired what he would take for his bargain. Judge Hitchcock then remarked, that there was some mistake; that Mr. Gibbons had promised to give him. notice when the premises were to be sold, and that he had intended to have been present at the sale. From none of these remarks of Judge Hitchcock, did this defendant infer that the sale was irregular or illegal — nor was he advised that the same was alleged to be illegal or irregular, until be was served with the rule, to show cause why the sale should not be set aside.
    The defendant Magee answers, that after the property was bid off by Moore, he,, as the sheriff of Mobile county, made, executed, and delivered to Moore, a deed for the same, before he was advised that the sale was alleged to be other than fair, legal and bona fide. Nor did he hear any thing from any person in relation to the sale other than this, via : soon after Moore had bid off the property, Judge Hitchcock came to the court house door, and en-quired if the property was sold — upon being answered in the affirmative, he remarked that there was some mistake — that Mr. Gibbons had promised to notify him of the sale, and that he had intended to be present at the sale. He remarked further, that he would go and see Mr. Gibbons, but this defendant heard nothing further from any one in relation to the sale, until he was about to execute a deed to Mr. Moore, when he was told by a gentleman employed by him in his office, that Mr. Gibbons had been there to see him in relation to the sale, but without saying any thing further, or whether Mr. Gibbons wished the execution of the deed postponed or not. Moore was not present when this conversation was had, nor did this defendant know for what purpose Mr. Gibbons had been to his office, other than he has already stated; nor had he any reason to believe that he wished to prevent the execution of the deed.
    This closes an abstract of the showing made for and against the rule. The court discharged the rule, and rendered judgment for costs, against the plaintiff in error, in favor of the’defendants. On motion of the plaintiff, the affidavits and answers recited above, were madd a part of the record,- and exception taken in due form to the decision of -the court. And thereupon the plaintiff prosecuted an appeal to this court.

      J A. Campbell, for plaintiffs in error.

      Dunn, contra.
   COLLIER, C. X.

It is well settled at common law, that courts of judicature possess a controlling power over the acts of their officers, which it is their duty to exercise in advancement of justice. Thus, if a sheriff is guilty of an irregularity in- his proceedings upon an execution, to the prejudice of either party, or a third person, the court will either set aside, or correct the act complained of. As, for example, if a sheriff, in executing a writ of habere facias possessionem, deliver to the plaintiff the possession of other or more land than he has recovered,, the court, on motion, will so modify the act, that complete justice be done.

In Saul vs. Dawson, (3 Wils. Rep. 49,) the plaintiff, as tenant in common, recovered possession of five eighths of a cottage. A writ of possession was executed by the sheriff, who turned the tenant out of possession of the whole, and locked up the door. The court held, that the writ ought to have pursued the verdict, and made a rule upon the sheriff and the lessor of the plaintiff, to restore the tenant to the possession of three eight parts of the premises — remarking, that if justice was not thus administered, the tenant would be put to another ejectment— (See also 1 Burr. Rep. 629; 5 Burr, Rep. 2672; 1 Caines’ R. 500; 5 Johns. R. 386.) It may be true, that in order to do justice, greater liberality is allowed in ejectment than other actions, yet the principle on which courts supervise the acts of their officers, is alike applicable to all) and as the question is res integra in this court, it may be Well to review the authorities in regard to it.

in Ryerson vs. Nicholson, (2 Yeates’ Rep. 516,) a motion was made to set aside the sale of the defendant’s land, which had been made by the sheriff under a fieri fiacias, on the ground that he had sold several distinct parcels of land together. The court considered, that they had the right to entertain the motion, on the ground that the sheriff was its officer, and justice required that the proceeding should be summary in such a case. They further held, that, it was the duty of the sheriff to get the highest sums for the lands of unfortunate debtors, and not to permit the wealthy alone to become the purchaser's, to the exclusion of persons less affluent. That the highest price might be obtained, the general rule required that different lots of ground, houses, or parcels of land, Should be sold separately; unless the parties agreed to a different mode of sale, or the aggregate sum to be Obtained, would be increased by selling several lots together. As the facts of the case did not disclose anyreasod fóí a departure from the general rule by the sheriff, the shlé was set aside — (Rawley vs. Brown, adm’r, 1 Binney’S R. 61, is to the same effect.)

The same court, in Friedly vs. Scheetz, (1 Sergeant & Rawle’s Rep. 162,) say, if any fraud was practised oh the purchaser, or any mistake in the description of land, Sold under a fieri fiacias, application should be made to the court to which the writ is returnable, to set aside the' sale.

In the case of the Ontario Bank vs. Lansing, (2 Wend.R. 260,) the plaintiff in execution inadvertently bid a sum less than its amount; the sale, on his application,was set aside, and a re-sale ordered, on his- stipulating to bid at least as much at the re-sale. The motion, in this case, was sustained, on the ground that the plaintiff might be prejudiced, if a mortgagor or a junior judgment creditor should seek to redeem the premises, which, it seems, had been mortgaged previous to the sale.

Where a motion was made to set aside a sale under' execution, on the ground that real estate worth ten thousand dollars, was sold to satisfy a judgment of one hundred dollars, it appeared that the premises were so situated,- that a portion which would probably have brought more than enough to satisfy the judgment, could conveniently have been sold separately. The court held,- that the sale of the property an masse,- under the circumstances, clearly proved it to be fraudulent, and granted the motion — (Groff vs. Jones, 6 Wend. Rep. 522.) And in Jackson vs. Roberts, (7 Wend. Rep. 88,) the court remark, that a a party, who may be injured by the mistakes of a sheriff, can have relief by a summary application to the court under whose authority the officer acts,- or through the medium of a court of equity; and it is much better that he should be confined to these modes of redress, than to render all titles derived from judicial sales doubtful, and subject to be defeated, by allowing the written instruments by which they are evidenced, to be attacked collaterally, by parol evidence.”

The Court of Appeals of Maryland, in Arnott & Copper vs. Nichols, determined that a court possesses an equitable control over its executions, and may, on motion, quash the return of a sheriff — (1 Har. & Johns. Rep. 471.) And the same court, in Nesbit vs. Dallam, (7 Gill & Johns. Rep. 512,) set aside, on motion, a sale made en masse, of divers lots of ground situated in the same town, but separate and distinct from each other, remarking, that such a sale is prima facie void, and he who seeks to sustain it, must show its justice and expediency. In this case, it also appeared, that property sold for a sum not exceeding one fifth of its intrinsic value — on which the court remarked: “such a disparity between the price and value of the property sold, furnishes intrinsic evidence of the irregularity, impropriety, or unfairness of the sale; and connected with any of the several omissions of duty, or indiscretions of the sheriff before referred to, leaves not the court a shadow of discretion, as to vacating this sale.”

In Kentucky, a statute was passed on this subject, in eighteen hundred and eleven ; so much of which as is pertinent, is in these words: “ and all sales by color of any execution, had or made by covin, fraud or collusion, between plaintiff and sheriff, or other officer acting under such execution; or between defendant and such officer ; or between any purchaser or any such officer, or ' in any wise contrary to the provision hereof, may be set aside, by motion to the court having proper jurisdiction thereof, to be commenced within one year, by any person or party aggrieved thereby, by serving a notice of the intended motion,” &c. — (1 Morehead, '& Brown’s Laws of Ky. 628.) The courts of that State, have not considered this statute as impliedly inhibiting motions to set aside sales, for all causes not embraced by it; but the reverse has been held to be the law. Thus, in Carlile vs. Carlile, (7 J. J. Marshall’s Rep. 625,) it appeared that the sheriff, on the sale of a tract of land, announced to the bidders, that a greater amount was due in virtue of the execution, than really was due by it. and the land sold for the amount of .the execution ; the sale, on motion, was set aside. The court held, that there might be other causes than those mentioned in the act, and to motions for quashal for any of those other causes, the statute does not apply — (See also Cox vs. Joiner, 4 Bibb’s Rep. 94.)

In Stockton vs. Owings, (Litt. Select Cases, 256,) it was held, that inadequacy of price is not per se, a sufficient cause for setting aside a sale of land under execution, but coupled with other circumstances, it may be— (See further, Hansford vs. Barbour, 3 Marsh. Rep. 515; Hart vs. Bleight, &c. 3 Monroe’s Rep. 273; 3 Litt. 128; Bleight’s heirs vs. Tobin, 7 Monroe’s Rep. 617) — In which latter case, it was decided, that the fact that the attorney for the plaintiff, who was concerned in the purchase, having sent the execution to another county, where a large quantity of land was sold in haste, &c. is strong evidence of fraud. . And fraud was also inferrable, from the purchasers having purposely misinformed a person who intended to purchase of the day of sale.

And in Knight vs. Applegote’s heirs, (3 Monroe’s Rep. 388,) the clerk omitted to notice on the fieri facias; the credit for about half the judgment entered at its foot, and the sheriff raised the entire sum by the sale of land, the title of the land, it was considered, would not pass to the purchaser. So, where the plaintiff in an execution prevents other persons from bidding for land levied on, by promising if they would not, to purchase it himself, and sell to them at a low price, such parts as they might want, and in consequence of such negotiation, purchases for less than its value, the sale would be set aside on motion — (Mills vs. Rogers, 2 Litt. Rep. 217.)

From the authorities cited, we make these deductions: 1. A party injured by the improper execution of a fieri facias, may obtain redress, on motion to the court from which the writ issued; 2. That a sale of land will be set aside, where the sheriff is guilty of a mistake, irregularity, or fraud, to the prejudice of either party, or a third person ; 3. So, the misrepresentation, or fraud of a purchaser, furnishes just ground for invalidating the sale.

In the case at bar, it is insisted, that conceding there was no fraud on the part of the defendants in error, yet the sale was made by the sheriff, under a clear mistake, against the wishes, and to the injury of both parties to the execution ; and that of consequence, it should not be allowed to divest the title. The counsel for Harding; who assumed the exclusive direction of the judgment, states explicitly in his affidavit, that it was the intention of himself and the gentleman who represented the defendant in the execution, that the property should not have been sold under the advertisement made in January, unless directions were given by him to the sheriff to sell — that in the verbal order which he gave to the sheriff to advertise the property, he endeavored to convey to him his wishes on the subject: supposing the matter understood between the sheriff, Judge Hitchcock and himself, he gave it no further attention. Had he have known that it was proposed to sell the property on the first Monday of February, he would not have allowed it — -in any event, he felt bound to notify Judge Hitchcock of the sale, and would himself have bid the amount of the execution, or nearly so. All this, so far as it refers to Judge Hitchcock, is confirmed by him, who, in addition, charges by his affidavit, the sheriff, with a knowledge of the arrangement between Mr. Gibbons and himself. The facts from which fraud (either in the sheriff or the purchaser) is inferrable, is explicitly denied in their answers.

Considering the case upon the facts which are not denied by the answers, and we think it clearly appears, that the sale was made by the sheriff, either under a misapprehension of duty, or else a misconception of the arrangement between the parties, which they endeavored to communicate to him. In either view, the result would be the same — the sale should be set aside.

That the defendant in the execution has been injured, greatly injured, by the sale of the Hotel, is a fact beyond all controversy — property of the value of seventy jive thousand dollars, above all liens, has been sold for the comparatively trifling sum of seventy jive dollars. Not only .the defendant, but, in all probability, the plaintiff,would be prejudiced, if the sale were allowed to stand, as there may be no other property which can be subjected to the satisfaction of the execution.

As this case may be disposed of, without fixing mala jides upon any person connected, with it, we will forbear to consider the argument drawn from the great disparity between the sum for which the property sold, and its intrinsic value — the haste with which the execution of a deed succeeded the sale, notwithstanding the notice from the parties, that there was a mistake, &c.

It was argued for the defendants, that even admitting that the sale might have been set aside before it was-perfected by a deed, yet having been thus consummated, the application to the equitable control of the court, comes too late. This argument, in our opinion, cannot be maintained. The sale was made, as we have seen, against the direction of both the parties toThe execution, at a time when they were not present, and cannot be allowed to divest the title. It is the levy and sale which i-s to give a title in equity, and which, if regular, may be perfected; the sheriff’s deed merely evidences these facts, and makes that a legal, which before was an equitable interest.

It cannot be that the deed possesses such potency, as to give validity to a title which was previously invalid. It must be remembered, that the sheriff, in himself, is a mere agent of the law, not disposing of his own property, but only such interest as the defendant in execution was entitled to; hence his deed cannot operate, a confirmation of title, beyond what equitably passed by the levy and sale. If a party injured, might then object to the proceeding, as being in violation of law, his remedies must still remain unimpaired.

Suppose the execution of the deed should bar the application for relief, parties injured would often.be reme-diless. They might never hear of the levy and sale, until long after it was made — and besides, the sheriff might execute a deed, before an injunction ¿could be obtained, in despite of remonstrances to the contrary.

In none of the cases cited, was it objected to the motion, that the purchaser had obtained a deed, though doubtless, the laws of the States in which the decisions were made, authorise the sheriff to furnish to him some written indicia of a sale and purchase. The case cited from 7 Wendell, shows such to be the law in New York, and seems to intimate that a deed interposes no difficulty.

Whether the court should have granted the latter part of the motion, viz., have directed the conveyance by the sheriff, to be delivered up to be cancelled, may be questionable. We have not been able to find any case in which the motion went so far. The jurisdiction of the court results from the sheriff being its officer, and the reason why a notice is given to the purchaser is, that he may defend his interests in the proceeding against the sheriff — he is not obliged to appear, and if he does not, is not in contempt, but the court will decide upon the motion in his absence. Now, as the court only acts summarily, with a view to ascertain the • regularity of the sale, &c. — this being determined to be invalid, and so declared, can the court go farther, and direct the purchaser to deliver up the sheriff’s deed? We incline to think, that though this would be competent for a court of equity, yet it would be going beyond the just powers of a court of law. If such an order be legal, to disobey it would be illegal, and subject the purchaser to process for contempt. At any rate, it is wholly unnecessary^-the sale may be set aside, and the deed declared to be void, and this will as effectually destroy the deed, as if it were cancelled in fact — the judgment on the motion will furnish record evidence of the invalidity of the deed.

We are, then, of opinion, that the motion should be granted to the extent indicated,, on the plaintiff in error paying to the defendant Moore, the sum at which he bid off the property, with interest thereon since the day of sale. That the County court may administer the law as we have laid it down, its judgment is reversed, and the case remanded,


author: COLLIER, C. J.

text:
    MOORE ET AL. vs. ARMSTRONG ET AL.
    1. A defendant^ whose demurrer has been overruled, and to whom time has been given to answer, may demur again, without leave being specially granted, plaintiffs having, in the mean time, amended their bill, by conjoining another person as complainant.
    2. It is available on demurrer, that a party has been joined as plaintiff, who has no interest in the matters stated ifi the bill.
    3. An administrator and his sureties may be joined, or' if the administrator dies, leaving no property, dr having no' personal representative within the State, his sureties may be sued alone,in equity, before a liability has been fixed upon their principal, by suit; and where it becomes necessary to proceed ini equity, for the recovery of a debt, legacy,- or distributive share,i all the obligors in the administration bond; should be made? parties.- .
    Error to the Court of Chancery at Mobile.
    Bill of complaint heard before' Crenshaw, Chancellor' of the Southern Division.
    The original bill in this case, was filed by Adana Tay-3 lor, sole heir' at law, and distributee of James Taylor,-his deceased brother, and certain persons, his creditors, to» whom he had assigned his claim on the estate of his brother, against Wood1, the administrator. To this- bill# there was a demurrer filed. Wood was a citizen of Louisiana, and an order for publication was made, before the' expiration- of Which, Wood died. An amended bill was then filed, in which the complainants in the' original bill, united' With them Samuel Ewing, administrator de bonis non, of the estate of James Taylor, and mad© Andrew Armstrong one of the sureties to the administration bond of the deceased administrator, and Leavens and Sheffield, executors of Joshua B. Leavens, the other surety defendants. The bill alleged that Wood, the administrator, died insolvent, and had no personal representative.
    To this amended bill, defendants also demurred specially :
    1. That there was a misjoinder of parties;
    2. There was no ground of equity;
    3. Proper parties were not made;
    4. That the bill was multifarious.
    The chancellor dismissed the bill, on the ground that the sureties in an administration bond are not liable, (except in extreme cases, of which the present was not one,) until a decree has been made against the administrator in the Orphan’s court, or a liability fixed upon him by suit.
    The errors assigned were—
    1. The motion to dismiss was improperly entertained, as defendants were in contempt;
    2. The court had jurisdiction, notwithstanding there had been no proceedings against the administrator.

      James Martin, for plaintiffs in error.

      J. A. Campbell, contra.
   COLLIER, C. J.

In this case, the following questions arise:

1. Can a party, whose demurrer has been overruled, and to whom time has been given to answer, be allowed to demur again, the complainants, in the meantime, having amended their bill, by conjoining another person as a plaintiff?

2. Is it available on demurrer, that a party has been joined as plaintiff, who has no interest in litigating the matters stated in the bill?

3. Can an administrator and his sureties be joined, or if the administrator be dead, can the sureties be sued alone in equity, before a liability has been fixed upon their principal by suit ?

1. It has been said, that if a defendant is in contempt to an attachment for want of an answer, he cannot demur and answer — (1 Smith’s Ch. Prac. 208; Curzon vs. De la Zouch, 1 Swanst. Rep. 185; Taylor vs. Milner, 10 Vesey, jr. R. 444.) But such was not the situation of the defendants, in the present case. The record recites, that their demurrer being overruled, sixty days were given them to answer the complainants’ bill. No steps had been taken to coerce an answer, or to charge the defendants for a contempt. The defendants were, then, not inhibited from making any defence which the law tolerated in such a case.

After a demurrer has been overruled, a second demurrer will not ordinarily be allowed; for it would be, in effect, to re-hear the case on the first demurrer; as on the argument of a demurrer, any cause, though not shown in the demurrer as filed, may be alleged at the bar; and if good, it will support it. But after a plea overruled, it is said that a demurrer has been allowed, bringing before the court the same question, in subtance, as was raised upon the plea — (Story’s Eq, Plead. 362.) And there have been instances, where the court, on the argument of a demurrer, granted leave to the defendant, on overruling it, to put in another less extended — (Thorpe vs. Macauley, 5 Mad. Rep. 218; Baker vs. Mellish, 11 Vesey, jr. R. 68.) But a defendant will only once be permitted to delay his answer by plea or demurrer, without leave of the court — (Rowley vs. Eccles, 1 Sim. & Ster. R. 511.)

It will be observed, that in the very order of court which gives day to answer, leave is given the complainants to amend their bill, by conjoining as a plaintiff, Samuel Ewing, the administrator de bonis non, of James Taylor, deceased. This amendment, we discover from the record, was made by the insertion of the party’s name in the bill, and by it, of consequence, every defence was permissible, which the introduction of such a party made necessary or proper. It is no answer, to say, that there had been one demurrer overruled, and that the second was filed without leave of the court. The first demurrer could not reach to the joinder of Samuel Ewing, or have barred (if sustained) a proceeding by him, against the defendants. It was, then, dearly regular for the defendants to point out, by their demurrer, any legal exception to the bill, more especially, if it consisted in adding a new plaintiff — (Bosanguet vs. Marsham, 4 Sim. R. 573, is directly in point; see also Robertson vs. Ld. Londonderry, 5 Sim. R. 226.)

2. It is essential to a bill in equity, that it show the plaintiff has an interest in the matters he proposes to litigate — (1 Smith’s Ch. Prac. 203; Mitford’s Plead. 187; Story’s Eq. Plead. 392, 393.) Apd the want of interest is good cause of demurrer, and goes la bar of the suit — • (1 Smith’s Ch. Prac. 213Mitf. Plead. 14.) It is not only necessary, that where there is a sole plaintiff, he should discover his right, but if there are several plaintiffs, they must show their interest,, and if any one of them is improperly joined, it is /fatal to the proceeding, and all the defendants may take advantage of it — (Story’s Eq. PI. 417; ibid. 230; ibid. 199.) But if the objection be a want of interest in the defendant, though well taken, it is not fatal to the whole suit, but only as against the defendant, improperly joined — (Story’s Eq. PI. 199.)

In the case of The King of Spain et al. vs. Machado et al. (4 Russell’s Rep. 225,) the effect of a misjoinder of plaintiffs, came directly before the English Court of Chancery. In that case, certain individuals, who had been constituted agents of the Spanish government, touching the subject of the controversy joined with His Catholic Majesty, in the prosecution of the suit. A general demurrer was filed to the bill — in considering which, the Lord, Chancellor remarked, “ if a party having an interest could join with himself on the same record, a party not having any interest, and no advantage of that could be taken, either by plea or general demurrer, it would be productive of great and obvious inconvenience. But it is not necessary for me to reason on the general principles applicable to the question, or to point out the inconvenience which would ensue, if such an objection were not a ground of general demurrer; because, the point has been decided in two distinct and precise cases, by the present Master of the Rolls." And the demurrer was allowed accordingly. (See also, Cuff vs. Platell, 4 Russell’s R, 243; Makepeace vs. Haythorne, 4 Russell’s R. 244; Troughton vs. Getley, 1 Dick. R. 382.)

It is insisted by the defendants, that Adam Taylor having made the plaintiffs his attorneys, with full power to sue for and collect what might be due him, as sole heir and distributee of the estate of his deceased brother, James Taylor, and also having directed, that whatever money or effects might be obtained by the plaintiffs from that source, should be equally divided between them, to reimburse them for monies advanced and paid for him, in consequence of their having been his securities, as the sheriff of Dallas county, thereby divested himself of all interest, and should not, consequently, have joined in the suit.

Though Adam Taylor has directed his attorneys to divide among themselves, whatever they may receive under the authority given, it is clear, that if a sum more than sufficient to satisfy all advances, costs, &c., should be collected, that he would be entitled to the excess. He must therefore be concerned, to increase the recovery against the defendants, at least to its proper amount, and cannot be regarded as a party without interest.

In general, the person having the legal title in the subject of the bill, must be a party, (either as plaintiff or defendant,) though he has no beneficial interest therein; so that the legal right may be bound by the decree of the court. In cases, therefore, where an assignment does not pass the legal title, but only the equitable title to the property, (as, for example, an assignment of a chose in action,) it is usual, if it be not indispensable, to make the assignor holding the legal title, a party to the suit. Where, however, the assignment is absolute and un* conditional, leaving no equitable interest whatever in the assignor, and the extent and validity of the assignment is not doubted or denied, and there is no remaining liability in the assignor, to be affected by the decree, it is not necessary to make the latter a party. In such a case, he is merely a nominal, or formal party. It is a very different question, whether-he may not properly be made a party, as the legal owner, although no decree is sought against him; for, in many cases, a person may be made a party, although he is not indispensable. But-wher'e the assignment is not absolute and unconditional,- or the extent or validity of the assignment is disputed or' denied, or there are remaining rights or liabilities of the'assignor, which may be affected by the decree, there he-is not only a proper, but a necessary party — (Story’s Eq. Pl. 147, 148, 149; Blain vs. Agar, 1 Simon’s Rep. 37; Trecothick vs. Austin, 4 Mason’s Rep. 41 to 44; Millar vs. Bear, 3 Paige’s Rep. 467, 468; Whitney vs. McKinney, 7 Johns. Ch. Rep. 144; Ryan vs. Anderson, 3 Madd. Rep. 174.)

The direction in the letter of attorney to the plaintiffs,, to divide amongst themselves, whatever they might collect on account of Adam Taylor, as the heir and distribu-tee of his brother’s estate, operated in equity as an assignment in their favor, so as to- entitle them to sue in chancery, in their own names. Yet, the legal interest still remained in the assignor, who; we have seen, is interested in the recovery, inasmuch as he would be entitled to a credit against the advances made for him by his securities, to the extent only of the sum collected j and should there be an excess, beyond what was necessary to their reimbursement, he might claim it as his own. According to the principles we have stated, it Will follow, that if Adam Taylor was not an indispensable party, he was at least a formal party, the joining of whom, could not prejudice his co-plaintiffs.

It has been further urged by the defendants, that the chancellor should have sustained their demurrer, if for no other cause, at least on the ground that Samuel Ewing, the administrator do bonis non of James Taylor, was conjoined as a party plaintiff.

In Chamberlain, adm’r, vs. Bates, adm’r, (2 Porter’s R. 550,) the record discovered that Chamberlain, administrator de bonis non of the estate of one Negus, declared in assumpsit against the defendant, as the administrator of the former administrator of Negus, to recover a sum of money alleged to have been received by the latter, while the administrator of Negus, and which had never been accounted for, or paid over. The Circuit court sustained a demurrer to the declaration, and this court affirmed its judgment; holding, that the authority of an administrator de bonis non, embraces only such of the personalty of the first decedent, as remains unadministered, viz., in specie, unaltered or unconverted by his predecessor.” “ That the letters or commission of an administrator de bonis non, is held to extend, as his title imports, to the unadmin-istered assets alone, and so far only, is one in that capacity to be regarded as a trustee for distributees, and representatives of the testator or intestate.” If the first administrator has wasted or converted the estate of the intestate, he will be liable himself, if living, and his re-preservatives, if he is dead, may be charged in equity, tti the extent of the waste or conversion, by the creditors oí* distributees of the intestate; if so much of the assets of their intestate came to hand — (Anthony, adm’r, vs. McCall, adm’r, 3 Blackford's Rep. 86; 2 Williams’ Ex’rs, 1064; Price vs. Morgan, 2 Chan. Cases, 217; 3 Bac. Ab. 19, 20 ; Tingrey vs. Brown, 1 Bos. & Pub 310; Hagthorp et al. vs. Hook’s adm’rs, 1 Gill & Johns. Rep. 270, 274; Coleman, adm’r, vs. McMurdo et al. 5 Rand. R. 51; Thompson, Judge, use, &c., vs. Searcy & Fearn, 6 Porter’s Rep: 409.)

in the case before us, it is alleged that the estafe Of James Taylor had all been administered, wasted, o’r converted by Wood, the first administrator. It is, then, clear,' that the authority of the administrator de bottis non, does1 hot extend so far as to allow him to call on his prede^' céssor for an account and settlement. Such is the purpose intended to be effected by the plaintiffs’ bill; and Samuel Ewing, not having such an interest in, and Ooh-nection with, the matters proposed to bé litigated, as' made hitii either an indispensable or allowable party/ the demurrer was rightfully sustained, for having joined hiih as a plaintiff.-

3. The first bill filed in this cáse, was ágáin&t Wodds/ administrator of James Taylor, and one of his sureties/ and the executors of the other sfirety: Before subpoena1 was served on Woods', or there was am order to take thp bill pro confesso, consequent upon the order of publication,- Woods, it is Said, died without the limits of this1 State’,- understood to' be insolvent, and it is supposed Will have fió personal representative. A bill, professing to M a supplemental bill, was filed, stating these facts, and making the surviving surety, and the executors of the deceased surety, a party. The question now to be considered is, can this bill be sustained?

It is well settled, that no one can proceed against the sureties in the administration bond, at law, who has not first recovered a judgment against the administrator— (Thompson, Judge, &c. use, &c. vs. Searcy & Fearn, 6 Porter’s R. 393.) But this rule is not founded upon the supposition, that there is no breach of the condition of the bond, until a judgment is actually obtained. As it is the legal duty of the administrator to pay the debts, &c. of his intestate, and as the securities undertake for the performance of those duties, the bond is clearly forfeited, when instead of thus appropriating the assets, he converts them to his own use — (Ibid. 400, 401.) The rule, however, does not consider the creditor’s or legatee’s demand of such a grade, as to authorise him to charge the sureties in an action at law, until it has been confirmed by judgment.

There is nothing in the constitution of a court of equity, which should induce it, in an ordinary case; to depart from the rules of law, in the administration of justice; yet, as its mode of procedure is materially different— more enlarged and liberal — it must, of necessity, take jurisdiction of cases which the ordinary forums cannot reach.

In Bacheldor vs. Elliott’s adm’r, (1 Hen. &. Munf. Rep. 10,) a bill was filed against an administrator and his sureties, for the recovery of a debt. The incompetency of a court of law to afford redress was not shown, and the court repudiated the cause on that ground, with this remark, “ but certainly there are cases where, from some inevitable necessity, a creditor may be obliged to come into this court, in the first instance, against the principal, and then to prevent a circuity of actions, the securities should be made parties; but this is not one of them.”

The case of Moore et al. vs. Waller’s heirs, (1 Marsh. R. 488.) was a bill filed by the heirs of Waller, against his executor and his surety, for the recovery of that portion of the estate of their ancestor, to which, under his will, they were entitled. It was objected to tbp jurisdiction of the court, that the remedy should, have been sought by action at law. To this, the Court of Appeals answered, “The doctrine contended for, cannot, however, be permitted to prevail. For whatever may be the correct doctrine in a proceeding at law, by the creditors of the testator, the chancellor, when applied to for the purpose of distribution, as he will not do things by halves, but delights in preventing multiplicity of suits, and possesses the power of adapting his decrees to the substantial justice of the case, should, as he will, regardless of the failure in not having previously brought another suit against the executor, hear, and finally determine the liability of the security, as well as that of the principal in the bond.”

In general, in the case of joint bonds or obligations, all the parties, obligors, and obligees, are required to be made parties to the suit. And the rule has been sometimes pressed to the extent of declaring, that where the bond is several, as well as joint, all the obligors,whether principals or sureties, must be made parties, (to avoid ¡circuity pf action,) because they are not only entitled to contribution, but also are entitled to have the assistance pf each other, in taking the account of what remains due pn the bond — (Story’s Eq. Pl. 159; Madox vs. Jackson, 3 Atk. Rep. 406; Cockburn vs. Thompson, 16 Vesey’s Rep. 626; Bland vs. Winter, 1 Sim. & Stu. Rep. 246.)

Thus, we discover, that cases exist in which an administrator and his securities may be sued in equity, without having first obtained a judgment against the administrator, at law. That where it becomes necessary to proceed in equity, for the recovery of a debt, legacy, pr diqtribqtive share, all the obligors in the administration bond should be made parties. The question now to be determined is, does the bill disclose a case proper for the interference of chancery ? When the first bill was filed, Woods, the administrator, was residing in pnother State, and there died insolvent, and without a representative. Under these circumstances,, what remedy had the plaintiffs at law ? — process could not have peen served on Woods, so as to make him a party to a suit at law. His death did not help the plaintiffs to a jegal rerqedy, but left them to obtain redress (if at all) from the defendants.

The general rule, requiring all interests to be represented, in p quit in equity, is not of universal application, hut has its exceptions. Thus, if it be impracticable to jpake a party; as where a personal representative of a deceased person is a necessary party; but it is charged jn the bill, that no such representative is in existence; for example, if it is charged in the bill that the right of representation is in litigation. In such a case, the court will retain the bill, notwithstanding the want of parties, and will proceed to a decree, if it can be done without prejudice; and if not, then it will postpone the cause, until the proper parties can be made — (Story’s Eq. PI. 91, 92; Mitf. PL 180.)

In the case at bar, there could be no necessity for holding up the bill, but the case should be allowed to proceed regularly to a hearing; inasmuch as Woods died insolvent and abroad, there would be but little probability that an administrator would ever be appointed — besides, as his estate was insolvent, those interested in it could not be materially prejudiced by any recovery against his sureties.

If, then, it were not allowable to proceed against the sureties of Woods alone, the plaintiffs, though they had just ground of complaint, would be remediless. This cannot be; for it is the just boast of the common law, that every right has its appropriate remedy, if not in the ordinary forums, at least in chancery, which exercises an extraordinary jurisdiction — (Thompson, Judge, use, &c. vs. Searcy & Fearn, 6 Porter’s Rep. 400.)

This conclusion has been resisted by the defendants’ counsel, and for the purpose of sustaining himself, he has cited t wo cases decided by the Court of Appeals of South Carolina. In the first, viz : Mag wood, adm’r, vs. Butler et al. (Harper’s Ch. Rep. 265,) the bill was filed against the administrator de bonis non, the surety in his administration bond, and other persons charged to have a portion of the intestate’s estate in their hands. On the circuit, a decree was rendered against the administrator de bonis non, and his surety, to be satisfied by the sale of some laud and negroes; and if the fund thus raised proved insufficient, then the complainant was authorised to proceed against the surety for the balance. In this ease, it appeared that the administrator resided without the State, (yet the bill contained no allegation of his insolvency,,) and it was taken pro confesso against him. 'The Court o,f Appeals affirmed the decree, with the direction, “ that the sale of the lands referred to therein, be postponed, until the time shall elapse, which by law is allowed for defendants to come in and set aside the order pro confesso, and disprove the demand.”

The other case, is Glenn, guardian, et al. vs. Conner, adm’r, et al. (Harper’s Ch. Rep. 267.) In this case, the bill was filed by the distributees of the intestate’s estate, against the administrator for an account, and against his sureties in the administration bond, to render them liable for what should be found due by the administrator. On the hearing, the bill was dismissed as to the sureties, and the cause was taken up for revision. The Court of Appeals say, “ this decision is in conformity with the decided cases in this court. It is founded in reason and justice. The securities are liable only on the failure of the administrator to account and to pay : when that default and its extent is judicially established, then the sureties may be pursued and made responsible. This has not been done in this case; consequently, the bill against the sureties was properly dismissed.” That this case is adverse to the opinion we have expressed, cannot be denied, yet the reasoning by which it is sustained, is so unsatisfactory, that we have found it impossible to yield to it our assent. Besides, there seems to us to be such a want of harmony between this and the first case cited from the same book, that we are almost constrained to think that one or both of them must, to some extent, have been influenced by the legislation of South Carolina, of which the opinion of the court does not particularly inform us.

Our conclusion, from a view of the entire ease, is, that the demurrer should have been sustained for conjoining as a plaintiff, the administrator de bonis non of Taylor, who had no interest in the controversy: and our first impression was, that as the chancellor had sustained the demurrer generally, the decree should be reversed and the cause remanded, or reversed, and rendered specially, lest allowing it to stand, the defendants might plead it in bar to a suit brought hereafter, by those properly entitled. But reflection has satisfied us, that it will not constitute an available bar, as the parties would be different, and that the plaintiffs, with the exception of the administrator de bonis non of Taylor, may proceed anew against the defendants. Besides, a general demurrer reaches to a misjoinder of plaintiffs, and the decree is consequently regular — (See cited above, Story’s Eq. Pl. 230, 199; The King of Spain et al. vs. Machado et al. 4 Russell’s Rep. 225.)

We have only to add, that the decree of the chancellor is affirmed, with costs.


author: ORMOND, J.

text:
    THE HEIRS OF POLLARD vs. KIBBE.
    1. The terms “ new grant,” in the act of Congress of the 26th May, 1824, entitled “ an act granting certain lots of ground to the corporation of the city of Mobile, and to certain individuals of said city,” (1vol. Land Laws, 398, ed. of 1838,) will not embrace a grant of land made by the Spanish Commandant of Mobile, in 1809.
    Error to Baldwin Circuit court.
    Ejectment — before Pickens, J.

    This was an action of ejectment, brought by the plaintiffs against the defendant, to recover a lot of ground in the city of Mobile.
    The plaintiffs, in order to make out their title, offered in evidence a Spanish grant, dated twelfth October, eighteen hundred and nine, made to William Pollard, the ancestor of the plaintiffs, by Cayetano Perez, of which the following is a translation:

      “Mr. Commandant — William Pollard, an inhabitant of this District, before you with all respect represents, that ás he has a mill 'established on his plantation, and often homes to this place with planks and property from it,— he wishes to have a place propitious of suitable for the landing and safety thereof, and having found a vacant piece at the river side, between the channel, (which is called John Forbes & Co.) and the wharf at this place, he petitions to grant him said lot on the river bank, to give more facility to his trading, — a favor he hopes to obtain of you. — Mobile, 11th Dec’r, 1809.

    Wm. Poll-ard.

      “Mobile, 12of Dec. 1809. — I grant the petitioner the lot or piece of ground he prays for, on the river bank? provided it be vacant. Gaveta»o Perez.”
    The grant was shown to have been reported against by the commissioners appointed by the United States. The plaintiffs also proved, that in eighteen hundred and thirteen, or eighteen hundred and fourteen, the hands of William Pollard removed some wreck and drift-wood from the place where the premises in question now are.
    The defendants gave in evidence, a Spanish grant to John Forbes & Co., dated ninth June, eighteen hundred and two, for a lot of ground eighty feet front on Royal street, with a depth of three hundred and four east, and bounded on the south, by Government street; which grant was recognised as a perfect title, and is confirmed by an act of Congress. This lot, as appears from a diagram which accompanies the record, extended to what is now Water street, and is due west, and immediately in front of the lot sued for in this action, which was separated from it by Water street.
    It was also in proof, that previous to eighteen hundred and nineteen, and until eighteen hundred and twenty-three, the lot now sued for, was at ord.nary high tide? covered with water, and nearly so, at all stages of the water. That the ordinary high water flowed from the east,to about the middle of what is now Water street, between the lot claimed by the plaintiffs, and the grant to John Forbes & Co. It was proved, that Forbes & Co. had been in possession of their lot, since eighteen hundred and two, and that it was known as a water lot, under the Spanish government.

      In the year eighteen hundred and twenty-three, no one being then in possession, and the same being under water, one Curtis Lewis took possession of, and filled up east of Water street, and from it eighty feet east, and thirty-six or forty feet wide, filling up north of Government street, at the corner of the same and water street. That Lewis remained in possession about nine months, When he was ousted in the night by Forbes & Co., who caused to be erected a smith’s shop thereon, and from whom Lewis soon afterwards recovered possession by legal process, and retained it until he conveyed the same. It was also in proof, that at the time Lewis took possession, Water street could be passed by carts, and was common. The defendant connected himself through conveyances for the premises in controversy, with the said grant to John Forbes & Co., with the said Curtis Lewis, and with the mayor and aldermen of the city of Mobile.
    It was admitted, that the premises were between Church street, and North Boundary street.
    The plaintiff gave in evidence, an act of Congress passed on the twenty-sixth May, eighteen hundred and twenty-four, entitled “an act granting certain lots of ground to the corporation of the city of Mobile, and to certain individuals of said city.”
    Also, an act of Congress passed second July, eighteen hundred and thirty-six, entitled “ an act for the relief of William Pollard’s heirs, upon which a patent had issued, which was in evidence.
    On this evidence, the court charged the jury, that if the lot conveyed as above to John Forbes & Co., by the deed' aforesaid, was known as a water lot under the Spanish government, and if the lot claimed by the plaintiffs had been improved at, and previous to the twenty-sixth May, eighteen hnndred and twenty-four, and was east of Water street, and immediately in front of the lot so conveyed to John Forbes & Co., then the lot claimed, passed by the act of Congress of May, eighteen hundred and twenty-four, to those at that time owning and occupying the lot, so as above conveyed to John Forbes & Co.
    The court further charged the jury, it was immaterial who made the improvement on the lot on the east side of Water street, being the one in dispute; that by the said act of Congress, the proprietor of the lot on the west side of Water street, known as above, was entitled to the lot on the east side of it. To which charges of the court, the plaintiff excepted.
    The charges thus given, are now assigned for error.

      Salle, for plaintiffs in error.

      J. A. Campbell, contra.
   ORMOND, J.

The lot of land sought to be recovered in this action, is in the city of Mobile, and was a portion of the territory east of the Ibberville, or river Mauchac, and|west of the Perdido.

By the treaty of St. Ildefonso, between Spain and the French Republic, entered into on the first October, eighteen hundred, the former retroceded to the latter, the province of Louisiana. On the thirtieth April, eighteen hundred and three, France ceded Louisiana to the United States, with all its rights and appurtenances, as fully, and in the same manner as they were acquired by the French Republic, in virtue of the treaty between France and Spain, before mentioned.

At the date of said treaty, the boundary of Louisiana on the west, was not accurately defined, and after the acquisition of Louisiana by the United States, the government insisted that the tract of country lying between the Ibberville and the Perdido, and south of the thirty-first degree of north latitude, was a part of the province of Louisiana, ceded by Spain to France by the treaty of St. Ildefonso, and acquired by the United States, by the treaty of Paris. This was resisted by Spain, who remained in possession of the disputed territory, and claimed it as a part of West Florida.

The United States asserted her right to the territory in dispute, not only by her minister’s diplomatically, but also by her laws, making void all grants of land within its limits, except for small quantities, and to actual settlers, after the date of the treaty of St. Ildefonso, and by annexing the land in controversy to the Territory of Orleans,

As early as the twenty-sixth of March, eighteen hundred and four, Congress passed an act, the I4th section of which enacts, “ that all grants for lands ceded by the French Republic to the United States, by the treaty of the thirtieth April, eighteen hundred and three, the title whereof was, at the date of the treaty of St. Ildefonso, in the crown, government, or nation of Spain, and every act and proceeding subsequent thereto, of whatsoever nature, towards the obtaining any grant, title or claim to such lands, and under whatsoever authority transacted or pretended, be, and the same are hereby declared to be, and to have been from the beginning, nuil and void, and of no effect in law or equity.” A proviso excepts the title of actual settlers, acquired before the twentieth December, eighteen hundred and three. That no grant of land, emanating from the Spanish government after the date of the treaty of St. Ildefonso, and not proteóted by the pcoviso above recited, or some subsequent act of Congress is valid, was settled by the great case of Foster and Elam vs. Neilson, (2 Peters, 253,) and subsequently confirmed by the case of Guicar vs. Lee, (12 Peters’ R.)

The grant upon which the plaintiffs seek a recovery, bears date the twelfth December, eighteen hundred and nine, and was reported against by the board of commissioners, appointed to investigate titles in the disputed territory, for want of inhabitation and cultivation, and therefore, not confirmed by Congress, and of itself no evidence of title. But it is insisted by the plaintiffs, that an act passed by Congress, the twenty-sixth May, eighteen hundred and twenty-four, confirms and makes valid this grant. The 2d section, which is alone material to this question, is in these words: “and be it further enacted, that all title and claim of the United States, to so many of the lots of ground east of Water street, and between Church street and North Boundary street, now known as water lots, as are situated between the channel of the river, and the front of the lots known under the Spanish government as water lots, in the said city of Mobile, whereon improvements have been made, be, and the same are hereby vested in the several proprietors and occupants of each of the lots heretofore fronting on the river Mobile — except in cases where such proprietor or occupant has aliened his right to any such lot now designated as a water lot, or the Spanish government has made a new grant or order of survey for the same, during the time at which they had the power to grant the same; in which case, the right and claim of the United States shall be, and is hereby vested in the person to whom such alienation, grant, or order of survey was made, ,or in his representatives; provided, that nothing in this act contained, shall be construed to affect the claim or claims (if any such there be) of any individual or body corporate.”

The plaintiffs "also gave in evidence, an act of Congress, approved July twentieth, eighteen hundred and thirty-six, entitled an act for the relief of the heirs of William Pollard. “ Be it enacted, &c. that there shall be, and hereby is, confirmed unto the heirs of William Pollard, deceased, a certain lot of ground situate in the city of Mobile, and bounded as follows, to wit: on the north, by what was formerly known as John Fobes & Company’s canal; on the west by Water street; on the south by the King’s wharf, and on the east by the channel of the river — and that a patent shall issue in the usual form for the same; provided, that this act shall only operate as a relinquishment on the part of the United States, of all their right and claim to the above described lot of ground, and shall not interfere with, or affect the claim or claims of third persons.” A patent issued in obedience to the said act of Congress.

To a proper understanding of the act of Congress of May, eighteen hundred and twenty-four, above cited, it is necessary to state, that as Mobile was laid out, and existed under the Spanish government, Royal strefct was on the back, or margin of the bay, running in a line from north to south, or nearly so, the tide flowing to what is now Water street, which lies parallel to, and east of Water street, so that the eastern limits of the lots fronting on Royal street, were washed by the tide. These are the lots described in the law, as lots known under the Spanish government, as water lots. When the city came into our possession, the restless and enterprising spirit of our countrymen, caused a gradual encroachment of the city to the eastward, by filling up the bay, and subjecting it to the use of man, for the purpose of building; so that now, there are several streets east of Water street, which are all encroachments on the waters of the bay.

The act of Congress of twenty-sixth May, eighteen hundred and twenty-four, is not as precise in its terms as could have been desired — it being open to some controversy, whether the lots east of Water street, which were made by filling up the margin of the river Mobile, were intended to be given to the “proprietor” of the lot fronting such water lot on the west side of Water street* or to the “occupant” of the improved lot on the east side of Water street; but both of these classes of persons were postponed to the Spanish grantee, who (in the language of the act,) had obtained a “ new grant or order of survey for the same from the Spanish government, during the time at which they had the power to grant the same.”

The plaintiffs assert no title to the lot on the west side of Water street, fronting the one in dispute; they must, therefore, derive their title either as improver or occupant of the lot on the east side, or by virtue of the grant made in eighteen hundred and nine; and it is insisted, that the term “ new grant,” as used in the act of eighteen hundred and twenty-four; was designed to confer on such grants as the one now under consideration, a capacity to be the source of title.

In support of this proposition, it is strenuously contended by the counsel for the plaintiffs, that such a construction should be put on the act, as will, if possible, give effect to every word in it — that this can only be done, by supposing that the word new found in the law, coupled with Spanish grants, must have reference to some epoch connected with the subject matter. That grants made before that period, were by Congress considered old grants — those made after, new grants, and this epoch, he supposes-was the date of the treaty of St. Ilde-fonso — the first October, eighteen hundred.

The rule itself, and the propriety of its application, when possible, is distinctly admitted; but it is most obvious, that the date selected as the epoch from which the grant is to be considered new, is purely arbitrary. There is nothing in the law, which authorises the selection of that in preference to any other date or period of time which might be supposed. Sensible of this, the counsel has drawn his arguments in support of his theory, from the history of the country, and from the mass of laws passed by Congress on this subject.

It is certainly a correct mode of expounding a doubtful statute, to compare it with other acts in pari materia, and to construe it in reference to the object in view, giving effect, if possible, to every purt of it. This we have done; and the process has satisfied us, that the proposition of the plaintiffs’ counsel is untenable.

Ever since the acquisition of Louisiana, in eighteen hundred and three, the United States, through all the departments of the government, have perseveringly maintained, that by the treaty of St. Ildefonso, Spain ceded to France, the territory between the Ibberville and Perdido, south of the thirty-first degree of north latitude; and that all grants made by the Spanish government, for land within the territory of Louisiana, after the date of the treaty of St. Ildefonso, are absolutely void.- As early as eighteen hundred and four, by the laW already referred to, this principle was asserted by Congress, the only exception being in favor of actual settlers, and for a limited quantity of land. No subsequent law of Congress, (though many have been passed on the subject,) has changed this principle, unless it has been done in this instance ; though in the spirit of a wise and benignant policy, ample provision has been made for the adjustment of those titles, on just and equitable principles.

What reason, then, can be assigned for a departure from the long established policy of the country ? We certainly cannot infer such abandonment from the use of an ambiguous term, to which it is difficult to assign any sensible meaning. Under the law which previously existed, if the claim of the plaintiff were meritorious, it would have been recognised — it was offered and rejected. And if it were permitted to examine the decision of the commissioners, it could not be pretended, that removing some drift-wood in eighteen hundred and thirteen, to land a boat, or for any other purpose, would bring the plaintiffs’ claim within the purview of any of the acts of Congress on the subject.

As the opposite of the term “ new” is old, there appears to be some plausibility in the supposition of the defendant’s counsel, that where Congress applied the term new to Spanish grants, they had not reference to time alone, by reference to an epoch after which grants should be considered new, as it is inconceivable, on that hypothesis, why the date was not mentioned in the land, but that new grant, was put in contradistinction to an old grant, for the same tract of land. But this construction is open to many objections, the most obvious of which is, that the old grant would be valid under the treaty, and there could be no possible reason for legislating in favor of the new grant, if made to the same individual: still less could it be supposed, that Congress would attempt to confer the title on the subsequent grantee of the same land. It is possible, that the term “ new grant,” applies to a grant of the shore, or space between high and low water marks, there having been a previous, or old grant, immediately in front, bounded by high water mark. This construction receives some countenance from the fact,, that the Spanish government, at least in one instance, made such a grant.

But if the act of Congress leaves us in doubt as to the 'meaning affixed to the term new grant, it at least requires such grants to have one quality, without which, they cannot be evidence of title to the lots intended to be granted. It was not only to be a new grant,” but it must have been made during the time when the Spanish government had “power” to make it. This we understand lo be nothing more than a reiteration of the principle for which the government has always contended.

The argument of the plaintiffs’ counsel, that “power,” as used in the law, has reference to the period of time which intervened between the date of the treaty of St. Ildefonso, and the occupation of the disputed territory by the United States, cannot be admitted. The government of the United States, as already stated, insisted on their right to the territory in dispute, and that the possession by Spain was wrongful. Such a construction would be, in effect, a concession by the United States, that her pretension to the territory in dispute, was unfounded. It would convict, our government of the injustice of having taken advantage of the weakness of a foreign power, to take forcible possession of a territory to which it had no valid title. For, if “power,1” in the manner it is employed by Congress, means (as we must understand it to mean.) lawful authority, it would necessarily follow, that the claim of the United States, to the territory in dispute, was unfounded, as it is inconceivable that the Spanish government could have lawful authority to grant land which belonged to the United States. A construction which would lead to such consequences, it would not be respectful in this court to make, without the clearest evidence that such was the intention of Congress — (See the cases of Foster vs. Elam, 2 Peters, and Garcia vs. Lee, 12 Peters.)

Whatever, then, may have been the meaning of Congress, by the use of the term “ new grant,” in the act of eighteen hundred and twenty-four, we cannot presume it was intended to give any sanction to grants emanating from the Spanish government, for lands within the disputed territory, after the first October, eighteen hundred, further than they had already been provided for by law.

But it is said the government intended to be bountiful, and that its acts may be liberally construed — that the government cannot be suspected of wishing to drive a Smithfield bargain.” In the adjustment of the Spanish land titles, the government has been influenced by a wise and liberal policy. Denying that the Spanish government had lawful authority to grant lands within the territory claimed by the United States, yet as Spain held possession of the country, all grants for a reasonable quantity of land to actual settlers, were recognised and legitimated. But mere donations of the public domain, without a consideration of a public or pecuniary nature, are not in accordance with our practice, or consonant to our institutions, and therefore, cannot be presumed. Monarchs may have favorites — Republics can have none. Upon this principle, our government has always acted, and it is preserved in the act of eighteen hundred and twenty-four. The lots of ground which Congress were disposing of, were not given capriciously, but apparently on the ground of the^public benefit conferred by filling up the lots, and thus subjecting them to the purposes of man, and the uses of commerce.

It is therefore our opinion, that the grant offered in evidence by the plaintiffs, is not embraced by the terms f< new grant,” in the act of eighteen hundred and twenty-four, before referred to.

The act of eighteen hundred and thirty-five, is in terms a mere confirmation, but it must operate as a grant of all the interest of the United States, in the land mentioned in the act at the date of the law, such being the evident intention of the Legislature. Out of abundant criterion, doubtless the act recites that it shall only operate as a relinquishment of the title of the United States, and shall not interfere with or affect the claims of other persons. The question, then, is, had the United States previously parted with their title? — and this leads to the examination of the title of the defendant.

The defendant’s title consists of conveyances for the lot of land in dispute—

1. From John Forbes & Co., who held the lot on the west side of Water street, fronting the one in controversy, by a confirmed Spanish grant, dated in eighteen hundred and two;

2. From Curtis Lewis, who entered upon the lot in dispute, and improved it by filling it up ;

3. From the mayor and aldermen of the corporation of Mobile.

The title of the defendant, is also derived from the act of eighteen hundred and twenty-four, already cited. It cannot be concealed, that the meaning of the act is exceedingly obscure, and that it is difficult to determine whether, under the 2d section of the law, the lots on the east side of Water street, were intended by Congress to be granted to the improver or occupant of the lot, or whether they were granted to the proprietors and occupants of the lots fronting them on the west side of Water street, But it is not necessary to determine the meaning of the law, because the defendant can protect himself in this case, in any possible construction of the law. Through Lewis, he derives title from the improver and occupant of the lpt on the east side of Water street, and through John Forbes & Co., from the proprietor of the lot fronting it on the west side of Water street. The union of these two must, under any construction of the law, constitute a perfect title under the act of Congress, unless opposed by a valid Spanish grant for the same lot, in which attitude, the plaintiffs in error have not placed themselves.

It is not, therefore, necessary to consider whether the charge of the court, that the proprietor of the lot on the west side of Water street, was under the act, entitled to the lot fronting his lot on the east side of Water,whether such lot were improved by him, or by another, as the plaintiffs do not show on the record, that they have any Interest jn the decision of that question, and therefore, if the judgment of the court on that point were wrong, they cannot be prejudiced by the decision.

No notice has been taken of the title of the defendant, derived from the corporation of Mobile, as it is not necessary to the decision of this case, and would lead to the discussion of matters which will be necessary to be determined in other cases, now before the court.

For the same reason, no notice has been taken of the argument, in relation to the rights of riparian proprietors, on a navigable stream. In this case, both parties claim under an act of Congress, and assert a grant for the lot in dispute, and neither are in a situation to contest the right of Congress to legislate on the subject. Let the judgment of the court below be affirmed.