author: HOPKINS J. C.

text:
    BURT VS KIMBELL.

      Ac to a deed of gift of a slave, made in the State of North Carolina.

    1. Where a deed of gift of a slave, was made by one to his daughter in the State of North Carolina in 1810, which did not appear to have been attested, and proved or acknowledged, and recorded, as required by the act of that State, passed in 1806; and possession was retained by the father, until his death in Alabama: — in detinue by the husband of the daughter, it was held—
    First — That the validity of the gift of the slave, depended upon the laws of North Carolina, where it was made.
    Secondly — That the requirements of these laws, not having been complied with, the gift of the slave was void,, as between the donor’s representative, and those claiming under the donee.
    On a writ of error to the Circuit Court of Morgan.
    In this case, Kimbell commenced an action of detinue, against Burt, who was the administrator of Thomas Peyton, for the recovery of a slave, named Abraham. The defendant plead, non deti~ net, and the statute of limitations, and a verdict was rendered for the plaintiff'.
    ■ On the trial, the plaintiff proved a demand: also, that he was the husband of Sally, the daughter of Thomas Peyton, to whom he proposed showing that a gift of the slave in controversy, had been made by her father. The plaintiff proved that in eighteen hundred and ten, Thomas Peyton gave the negro Abraham, with others, to Sarah Payton, the plaintiff's wife; and that he executed a deed therefore, which he told the witness afterward, he had burned; and in which he reserved to himself, a life estate. He also proved, that Thomas Peyton lived in the State of North Carolina, until the year eighteen hundred and nineteen or twenty, when he removed to Alabama, where he died in eighteen hundred and thirty-three.
    The defendant gave in evidence, an authenticated copy of a statute of the General Assembly of the State of North Carolina, passed on the tenth day of December, eighteen hundred and six; and which was in the following words, to wit:
    “An act declaring what gifts of slaves shall be valid. For the prevention of frauds.
    “Section 1. Be it enacted by the General Assembly of the State of North Carolina, and it is hereby enacted by the authority of the same, — That no gift hereafter to be made of any slave or slaves, shall be good or available, either in law or equity, unless the same shall be made in writing,. signed by the donor, and attested by at least one credible, subscribing witness: neither shall such gift be valid, unless the writing, by which the title of any slave or slaves is transfered, shall be proven or acknowledged, as conveyances of land, and registered in the office of the public register of the county, where the donee resides, within one year after the execution thereof, if the donee be in the actual possession of the slave or slaves so given and transfered : but if under any ■ special agreement, made at the time of the gift, the donor shall remain in possession of the slave or slaves so given, then the writing transfering or conveying the same sláve or slaves, shall "be proven or acknowledged as aforesaid, and registered within the same time, in the county where the donor resides.
    “Section 2. And be it further enacted, That on all trials, where any such writing shall be introduced, to support the title of either party, the due and fair execution of such writing, shall he proved by a witness, subscribing and attesting the execution of such writing; but if such witness shall be dead, or removed out of the State, then the probate or ac-knowledgement and registration of such writing, may be given in evidence.
    “Section 3. And be it further enacted, that every person claiming title to any slave or slaves, by virtue of any such parol gift heretofore made, shall commence and prosecute his or her suit for the same, within three years from the passing of this act, otherwise the same shall be forever barred: — - Provided however, that if any such person or persons, be at the time of passing this act, within the age of twenty-one years, non compos mentis, feme icovert, imprisoned or beyond seas, — such person or persons, shall within three years next after full age, coming of sound mind, discoverture, enlargement out of prison, or return from beyond seas, — 'Commence and prosecute his or her suit, for any such slave or slaves, claimed by force of such parol gift, and not afterwards: — Provided, that where any person shall have put into the actual possession of his or her child or children, any slave or slaves, and the said slave or slaves, shall remain in the possession of such child or children, at the time of the death of such person, he or she, dying intestate, such slave or slaves, shall be considered as an advancement to such child or children, and be regu-ulated by the laws now in force, relating to advancements made to children by a parent in his life time.
    “Section 4. And be it further enacted, that this act shall commence, and be in force, from and after the first day of April next.”
    This with proof, that the said slave had been always in the possession of Peyton, till his decease, was all the testimony adduced in the cause.
    The defendant’s counsel, moved the Court to instruct the jury, that said Kimbell, on this testimony, had no cause of action alone, but that to maintain the same, his wife should have joined: which the Court refused.
    The defendant’s counsel then requested the charge — that if the reservation of a life estate, in said negro, was contained in said deed of gift, no interest in said slave passed to said Sally: which the Court also refused.
    It was then requested of the Court to charge— that if there was a reservation of said negro for his life time, by said Thomas Peyton, then said parol gift was incomplete, and conferred no title to said Sally Peyton, plaintiff’s wife. The Court refused so to charge; but instructed the jury, that said reservation did not invalidate the gift.
    Defendant’s counsel also asked the Court to charge — that no title, according to the laws of North Carolina, passed by said alleged gift, unless a deed of gift was executed and attested by a subscribing witness, and recorded. The Court refused, and informed the jury, that the gift, if proved, though by parol, was valid.
    To all which the defendant excepted, and prosecuted a writ of error here.
    Argued by M Clung for the plaintiff in error, and by N Parsonsi contra. ,
   HOPKINS J. C.

This was an action of deti-nue for a slave. It was brought by the defendant in error, against the plaintiff. Upon the trial in the Circuit Court of Morgan, it was proved that one Thomas Peyton, deceased, the father of the wife of Kimbell, in eighteen hundred and ten, and in the State of North Carolina, where he then resided, made a deed of gift of the slave in controversy, to KimbelFs wife, then of the age of seventeen, unmarried and a member of the family of her father. The actual possession of the slave was retained by Thomas Peyton, till his death, in this State, in the year eighteen hundred and thirty-three; and Burt is the administrator of the goods and chattels of the donor, with his will annexed. There was no other proof of the delivery of the slave to the donee, than that her father took the hand of the slave and delivered him into the hand of his daughter.

It does not appear that the deed was delivered or attested by a subscribing witness, or that it was ever registered in North Carolina, and it was proved by a witness for Kimbell, that the donor said afterward, he had burned it.

The defendant in the Circuit Court, gave in evidence; a transcript, properly authenticated, of a statute of North Carolina, enacted in December, eighteen hundred and six, and entitled, “an act, declaring what gifts of slaves shall be valid, — for the prevention of frauds.”

Among other instructions given and refused by the Circuit Court, and to which the plaintiff in error excepted, are the following: His counsel moved the Court to instruct the jury, that no title, according to the laws of North Carolina, passed by the alleged gift, unless a deed of gift were executed, attested by a subscribing witness and recorded; the Court refused the instruction, and instructed the jury, that the gift, if proved, though a parol one, was valid.

The assignments of error in this Court, present the question, whether the Circuit Court, erred in refusing or giving the instructions, -which have been mentioned.

The alleged gift was made after the passage of the act of eighteen hundred and six, and if it were intended by that act, that no gift made after its enactment, should be valid, except such as might be made in the mode, and with all the formalities prescribed by the statute, the gift in this case was void. That the validity or invalidity of the gift, depends upon the law of the State, where it was made, no one doubts. The object of every statute > of frauds and perjuries, is to protect third persons against conveyances or contracts, made fraudulently by the parties to them. Such conveyances and' contracts are held to be valid between the parties, whether the statute of frauds of the country, in which they are made, contain or omit an enactment, that they .shall be binding between the parties and their representatives. The legislative power of a country is competent to prescribe that all such contracts, in future, shall be void, as well between the parties as between them and the creditors or subsequent purchasers of the grantor or donor. Without any words for the purpose, the effect of such an act, would be extended to the parties to the contracts, if the intention of the act required it.

The title of the act of eighteen hundred and six, shows clearly, that the legislature which passed it, intended to prescribe the only mode in which a valid gift could be afterward made. Whatever the lex loci requires to make a valid gift, must be done, or the property will not be transfered from one party to the other. By the statute of eighteen hundred and six, it was enacted that no gift of a slave, made after its passage, should be good, either in law or equity, unless the same should be made in writing, signed by the donor, attested by at lest one credible witness, and proved or acknowledged and recorded as the act directs. Another enactment of the same statute, required every person who had a claim to any slave in virtue of any parol gift, made before the passage of the act, to commence his suit for the same, within three years from the passage of the act; or if. such person was then under any of the disabilities mentioned in the act, within three years next after any such disability might cease. The effect of a failure to bring a suit upon such a gift, within the time limited,, was by the terms of the act, to be a bar to the action. It was also provided by the act, lhat where any person shall have put into the actual possession of his child, a slave or slaves, and the said slave or slaves, shall remain in the possession of such child at the time of the death of such person, he dying intestate, such slave or slaves, shall be considered an advancement to such child, and be regulated by the law relating to advancements.

From the act, we think it is obvious, that when the gift in this case is alleged to have been made, no valid gift of a slave could be made by parol, or in any other mode than in writing, signed- by the donor, attested, and proved or acknowledged and recorded, as the statute prescribed. The wife of Kimbell, had not such a possession of the slave in her father’s life time, nor at his death, as to entitle her to the property' as an advancement. Our construction of the act agrees with that which the statute has received from the Supreme Court of North Carolina. —Smith et ux vs Tates.

We are of opinion the Court below erred in giving and refusing the instructions, which we have noticed.

The judgment is reversed, and the cause remanded.

      3 Mur. Rep. 135.

      B. & Dev. Rep. 302.


source: Caselaw Access Project

author: GOLDTHWAITE, J.

license: Public Domain

text:
    CUMMINGS VS EDMUNSON, adm'r, de bonis non.

      Questions as to judgments in the Circuit Court, for less than fifty dollar

      As to suits by administrators de bonis non.

      As to particular averments in declarations.

    1. The question whether a plaintiff, in instituting suit in the Circuit Court for a larger sum than fifty dollars, and recov-ing less than that sum — has designed to evade the latter part of the statute of 1807, is one of discretion in the Court trying the cause, and which cannot be reviewed in this Court.

      2. The affidavit required to be filed under the latter clause of that statute, is designed for the protection of the plaintiff from an improper exercise of the discretion of the Court.

      3. And it seems, it would be error, for a Court to non suit a plaintiff, in a case, commenced for more than fifty dollars, but in which a recovery was for less — where an affidavit was filed as required by the statute.
    4. One suing as an administrator, de bonis non, should aver in bis declaration, the death of the administrator in chief.
    5. It seems that in action by one, as an administrator, de bonis non, upon an instrument payable to the “administrator’ of the estate, there should be an averment, as to who was the administrator, when the note was executed, and that ■ the note was executed to him by that name and description.
    Oa a writ of error to the Circuit Court of Tus-kaloosa comity.
    Waddy Edmunson, administrator of ail and singular the goods, chattels and credits, which were of William Edmunson, jun’r, deceased, at the time of his death, left unadministerecl by Samuel Dean, administrator in right of his wife, Parthena Dean, formerly Parthena Edmunson, wife of the said William Edmunson, jun’r, deceased, and adminis-tratrix, &c. declared against Thomas Cummings in an action of debt — For that whereas, the said defendant, theretofore, to wit, on the fifth day of March, in the year of our Lord, eighteen hundred and twenty-one, in Jefferson county, to wit, in the county aforesaid, together with James Dodds, Arm-stead Barry, George Tarrant, Peyton King, Isham Harrison, Thomas Tarrant, W. C. Tarrant, John Brown, Edward Sims, Washington Allen, Darby Henley, and James Brown, made their certain writ-ting obligatory, sealed with their seals, and to the Court there shewn, the date whereof, was the same day and year aforesaid; whereby they acknowledged themselves to be held and firmly bound, unto the administrators of the estate of William Edmun-son, jun’r, deceased, in the sum of nine hundred and thirteen dollars, to be levied of their goods, chattels, lands and tenements, — which said writing obligatory, was subject to a certain condition, thereunder wi’itten, to the effect, that it was to be void on condition that the said James Dodds did, within five years from the date thereof, discharge the said obligation, otherwise to remain in full force and virtue: and on the further condition, that if the said Dodds should fail, then the other obligors were only bound, each for the sum of seventy dollars, and twenty-five cents: And the plaintiff, “administrator, &c.” averred, that said Dodds, had not within five years, from and after the date of said obligation, discharged the same. By means whereof &c. And the declaration closed in contaion form, with a profert of letters of administration.
    The defendant plead — ■

      First — Nonest factum.

    Secondly — Payment by Dodds, within the five years.
    Thirdly — That plaintiff had no legal title or property in the bond sued on.
    Fourthly — That the husband of the said Parthe-na Dean, in his capacity of administrator in right of his wife, had before the commencement of said suit, transfered the said bond by endorsement.
    Fifthly — Payment, generally by the obligors.

      Sixthly — That plaintiff was not the administrator, de bonis non, of Waddy Edmunson.
    Seventh — That said bond before the commencement of said suit, was the property of another.
    Eighth — Material erasure and alteration of the bond.
    Ninth — Want of consideration.
    Tenth — Payment by the other obligors.
    The plaintiff took issue upon all the pleas, except the tenth — to which he demurred, which demurrer was sustained, and an order of amendment awarded. And afterwards came a jury, who rendered a verdict for the plaintiff of twenty eight dollars and twenty-five cents,parcel of the debt, together with eight dollars, ninety-six cents damages, and costs of suit.
    The defendant by his counsel, then, moved the Court for a non suit, because less was due when the suit was instituted than fifty dollars — which motion the Court continued, that notice might go to the plaintiff.
    . The defendant having taken a writ of error, assigned as causes for reversal here — ■
    First — That the Court below erred in sustaining the demurrer to' the tenth plea.
    Second — That the Court erred in rendering judgment on the finding of the jury for a less sum than fifty dollars.
    Thii’d — That the judgment was not responsive to the verdict.
    Fourth — That the Court erred in failing to non-suit the plaintiff, because of the recovery of a less sum than fifty-dollars, no affidavit, as required by statute, having been made.
    Argued by Crabb for the plaintiff in error — Peck, contra,
   GOLDTHWAITE, J.

A verdict was returned by the jury, which tried this cause, for a sum less than fifty dollars, and a judgment was rendered for the sum found to be due. It is now insisted that the Court below, instead of rendering such judgment, should have non-suited the plaintiff.

The previous decisions of this Court, on the statute of eighteen hundred and seven, have not been altogether consistent with each other, and we have now to decide, what we believe to be its just and and proper construction.

The enacting clause directs — “If any suit shall be commenced in any Court, for a less sum than such Court can legally take cognizance of, or if any person shall demand a greater sum than is due, on purpose to evade this act, in either case, the plaintiff shall he non-suited’and pay costs.” Under the proviso of the statute, a plaintiff may prevent the operation of the latter part of the enacting clause, by making and filing in the clerks office, an affidavit, that the sum for which the suit is brought, is really due, but for want of proof, &c. a recovery is barred. This contemplates two distinct classes of cases, in one of which the Court, trying the cause, has no discretion, but must non-suit the plaintiff; but in the other, it is not made obligatory so to proceed, unless it shall appear, that a sum is demanded beyond what is due, on purpose to evade the act. The terms used in the statute, can we think, bear no .other proper construction. The Court trying the cause, would be enabled to judge from all the circumstances, whether the suit was instituted, for the purpose of giving a collusive jurisdiction; but an appellate tribunal could never ascertain, with any certainty, the intention, which influenced the plaintiff. Again, a suit might be commenced b.ona fide, and a verdict, notwithstanding, be found for a less sum than the suit should have been instituted for, with .a reference to the jurisdiction; or the amount might be reduced by payments, which could in some cases, be given in evidence under the general issue.

The act certainly guards the plaintiff from any injury from an improper exercise of the discretion reposed in the Court, by permitting him in cases, where an opinion prevails that he has improperly used the jurisdiction of the Court, to avoid the consequences, by malting the requisite affidavit; and we do not hesitate to say that it would be error to render a judgment of non-suit, when such affidavit was interposed; but in all other cases under the latter clause of the statute, the action of the Court being discretionary, and to be governed by circumstances, cannot be the subject of revision here.

We are aware that this view of the statute, consome previous decisions of the Court. Howard vs Wear, — Curtis vs Gary — Carter vs Dade : But we feel it to be our duty to place the construction on principles which we think are consonant with the intention of the framers of the act.

Another question which arises in this case, is in relation to the decision of the Court below, of the plaintiff’s demurrer to the truth of the plea of the defendant. This plea is evidently bad, for the reason that it assumes to answer the whole of the plaintiff's declaration, when in truth, it only answers a part; this is established by the commencement and conclusion. It commences actio non &e. and concludes with a prayer for judgment; but this demurrer exercises a most important influence on the case, if as contended, it opens the whole case for consideration; and judgment must be given for the defendant, if the declaration shall be proved to be vicious.

This rule of pleading seems to be established by an unhroken series of English decisions, from the time of Lord Coke, and has received full assent in most of the States of the Union: and such also * has been the uniform practice of this Court from its organization — Mullins vs Cabbiness — Summer ville vs Merrell —Rogers et al vs Smiley et al. The only' exception to this rule seems to be the case of a demurrer to a plea in abatement.

It is urged against the declaration, that no averment of the death of the administrator in chief, is to be found in any part of it, and the inference is drawn, that no title to sue is shewn by the plaintiff. We find on examination that no statement of the death of the administratrix in chief, is contained in the declaration; nor does it in any wise appear, that she was removed from the administration in the estate of the intestate.

The plaintiff in the cause below, can only be entitled to sue on the claim which is the foundation of this suit, by virtue of his representative character’, and we are unable to perceive any distinction, so far as the necessity of allegation exists, between his and any other case of a derivative title. An executor or administrator, must show in pleading the death of the testator or intestate, although it may not be necessary to prove it on the general issue; a surviving co-partner must set out the death of his partner; a joint obligor, who sues alone, must set out the death of his co-obligors—and in the case we are now considering, we cannot perceive why the same reason does not prevail, when the suit is by an administrator de bonis non. He claims title under the administration, and if the administrator in chief be not dead, he can have no title, whatever. He may be termed an assignee by operation of law, and there can be no good reason urged, why he should not be obliged to state the sole fact from which his authority as administrator de bonis non, is to he be derived,

We have not been able to ascertain if this question has ever before been presented to any Court, but all the precedents sustain the principles we have laid down, and we have no reason to doubt the justice of their application to this particular case.

Another objection grows out of this position.— From nothing alledged in the declaration does it appear, that the title to the writing obligatory, sued on, is not now in Parthena Dean, or in her husband, in her right. If she be living, she, or her husband, in her right, has the legal title to the instrument sued on, unless she has been removed from the administration, which does not appear, and cannot be presumed on demurrer.

Another objection yet remains to be considered. The writing obligatory declared on, bears date in eighteen hundred and twenty-one, and is payable to the administrators of the estate of William Edmun-son, jun’r. Who were then the administrators, in no wise appears, nor is there any averment, that the writing obligatory, was made to Parthena Dean and her husband, or either of them, by that name and description; nor does the declaration alledge that they or either of them, were then the representatives of the estate. Again, the liability of the defendant is alleged to be, to pay the administrators of the estate of the decedent; thus seeming to attach the liability of the defendant to the office, and not to the person of the administrator.

The declaration cannot therefore be supported, and we reluctantly pronounce it to be bad. We say reluctantly, because we think it probable that these objections have been taken for the first time, in this Court, and, because the very same questions, which we now decide, formed a part of the many issues submitted to the jury.-

By the third plea, the question of title to- the note, is directly put in issue; and by the sixth, the right to sue as administrator de lords non, is controverted, But as the determination of the demurrer, must have preceded the trial of these issues, and as we must presume from the effect of the demurrer; that the questions we have noticed, were presented and decided against him in the Court below, the defendant did not go to trial voluntarily, and consequently cannot be presumed to have waived his demurrer.

We are of opinion that the judgment must be' revei’sed; and as the defendant in error can be permitted to amend his declaration in the Court below,, the cause is remanded,

COLLIER, J; not sitting.

      Aikin’s Dig. 269,

       Minor’s R. 84.

       Ib. 118.

       1 Stew. 18.

      1 Saun. 219 n 7, 1 Chitty Plead. 663 n. 1. Gould Ple. 474

       Minor 21

      1 Porter 109.

      2 Porter, 261.

      1 Sand. 285—n. 5

      2 Chitty P. 104.

      Aikin’s Dig. 29S,


author: COLLIER, J.

text:
    HUNLEY VS WILLIS LANG & CO.

      As to proof of writings under the common counts.

      Of writings, importing a consideration.

      As to actions by partners.

      1. Where a writing is offered in evidence, under the common counts in assumpsit, its execution must be proved.
    2. A promissory note, whether made the foundation of a suit, or given in evidence under the common counts, imports of itself a consideration.
    3. In an action by partners upon a promissory note, payable to one and company, it should be proved that all joining as plaintiffs, were partners with the one named in the note at the time it was executed.
    On a writ of error to the County Court of Tus-kaloosa county.
    This was an action of assumpsit upon twelve promissory notes, eleven for the sum of forty-five dollars each, and one other for the sum of nineteen dollars and forty-four cents — all executed by the defendant, Hunley.
    The writ was issued in the name of Willis Lang, Dugall C. Shaw and James E. Watts, copartners, known by the name and style of “Willis Lang & Co.” The declaration was in the same style, and contained a single count, for money lent and advanced, and money paid, laid out and expended: and the pleas were, non assumpsit, former recovery, set off, and the statute of limitations; to which there were issue and replication.

      A verdict was found for the plaintiffs, and- the defendant having taken exception to the opinion of tire Court, prosecuted a writ of error.
    In the progress of the trial, the plaintiffs, to sustain the issue joined on their part, offered in evidence the notes declared on, all signed by the defendant, and due before the commencement of the suit; and they, unexplained by other testimony, being relied on, — the sufficiency of the evidence was objected to, by the defendant, as not supporting the declaration; and the Court was so requested to charge; but the presiding Judge informed the jury, that as it appeared by the indorsement on the writ, that the suit was founded upon said notes, the evidence was sufficient in law, (leaving its credit to the jury,) to sustain the issue on the part of the plaintiffs; and refused to give the charge requested —to which the defendant excepted.
    Argued’by Crcibb for the plaintiff'in error — Peck, contra.
   COLLIER, J.

The defendants in error, declared against the plaintiff in the County Court of Tus-kaloosa, in assumpsit, for money lent and advanced, and money paid, laid out and expended. The pleas were non assumpsit, former recovery, set off.J and the statute of limitations.

On the trial, the Judge sealed a bill of exceptions, which states the following facts. “The plaintiffs, to sustain on their part, the issues joined between the parties, offered in evidence eleven promissory notes, for the sum of forty-five dollars each, and a twelfth for the sum of ninteen dollars and forty-four cents, all signed, J. Hunley, dated the seventh of March, eighteen hundred and thirty-two, and payable at different periods, but mature before the commencement of the action. These notes without any explanatory evidence, were all the testimony offered on the trial. Upon this state of the case, the defendant, by Crabb & Capers, his attornies, objected to the sufficiency of the evidence, before the jury, to sustain the declaration, and requested the Court to charge the jury to that effect; but the Court decided, that inasmuch as it appeared by the endorsement on the writ, that the action was found-ded on said notes, the evidence offered, was sufficient in law, leaving its credit to the jury, to sustain the issues on the part of the plaintiffs, and therefore he refused to charge as requested, but would permit the evidence to go to the jury as sufficient in law. To which opinion, refusal and permission, the said defendant by his attornies aforesaid, excepted, &c.” The questions of law reserved by the bill of exceptions, are here assigned for error.

The bill of exceptions does not present, with so much] precision as it might or should do, the particular points of objection, made on the trial in the County Court — yet we consider, that a fair interpretation of it, authorises the conclusion, that exception was taken to the admission of the notes in evidence, without some additional proof — to the refusal to charge as requested — and to the charge given; We think the fust point appears to be embraced by the bill, from the remark of the Judge, that he “would permit the evidence to go to the jury, &c” as well as by the term “permission,” used in the exception. And therefore proceed to enquire—

First — Were the notes offered in evidence admissible without proof of the plaintiff’s signature'?

Second — Were they sufficient in law to authorise a recovery upon the declaration, without proof of consideration?

Third — Was it necessary to authorise a verdict in favor of the defendants in error, that they should' have shewn that they were partners, as in their declaration, they allege?

1st. In regard to the first question raised in the argument, this Court at its present term, in the case of Chamberlain vs Darrington, decided, that where a writing is offered in evidence, under the common counts in assumpsit, it is necessary to prove its execution. That such was the rule at the common law, is unquestionable, and our statute has only dispensed with its observance, where the writing is made the foundation of an action. *

2d. At the common law, we think there was no necessity for proving the consideration of a promissory note or bill of exchange, when offered in evidence; that in themselves they imported a consideration. We are aware that Lord Chief Justice Holt in the case of Clerk vs Martin, maintained a different doctrineAnd his judgment in that case, is said to have induced the passage of the statute of third and fourth Anne. A statute enacted not for the purpose of changing the law, but rather to gratify the pride of opinion of the Lord Chief Justice, and to remove the doubts which the decision of so great a lawyer was calculated to throw upon the question. The English cases, upon the as-signability of promissory notes, and the internal evidence afforded by them of consideration, are collected and reviewed by Judge Cranch, in an elaborate note at the end of the first volume of his Reports; by which it is very satisfactorily shewn, that the judgment of Lord Holt in the case cited, never had the weight of authority in Westminister Hall, and was never acquiesced in by other Judges. Without inquiring whether our statutes exert an influence upon this question, confirmatory of the common law, we are satisfied that a promissory note, whether made the foundation of a suit, or given in evidence, as in the present case, always imports a consideration.

3d. This Court, under its old organization, determined, that if a plaintiff, suing as surviving partner, was not a member of the firm with whom the contract was made, it was incumbent on the defendant, if he objected to a recovery on that ground, to make it appear by evidence under the general issue, or else to plead it in abatement. — Smith vs Hunt. In that case the note was payble to George Wilkinson & Co. and the suit was brought in the name of Hunt as surviving partner — and it was objected that he should show Wilkinson's death, and that he had been a partner of his.

With due respect, we are constrained to say that, that decision, is in our opinion, adverse to principle. All persons who assert a right by action, are understood to avow themselves ready to prove whatever they alledge in their pleadings, especially if it be material. And certainly in making out a title to recover upon a contract, it is necessary that the plaintiff should shew he was a party contracted with. If the contract be in writing, and appears on its face to have been made with all who join in an action upon it, the intrinsic evidence will be sufficient. The general issue is a denial of the plaintiff’s right to sue, and throws on him the onus of shewing, not only that the defendant is chargeable, but that he is liable to the plaintiff. See also Baker vs Jewell. —Coffee vs Eastland.

In Evans vs Mason, it was decided, that in actions by partners, to recover a partnership demand, unless the contract which is the foundation of the action, has been expressly made with all the members of the firm, it Will be incumbent on them, to prove that all the plaintiffs were partners at the time of the contract. To the same effect, see Camden vs Anderson . Wilsford vs Wood.

So in Chitty on Bills, 394, it is laid down, that if several persons sue as indorsees of a bill of exchange, if the bill appears indorsed in blank, there is no necessity for their proving that they were in partnership together, or that the bill was indorsed or delivered to them jointly. But when a bill of exchange is payable or indorsed, specially to a firm, it has often been ruled, that in an action by the payees or indorsees, strict evidence must be given, that the firm consists of the persons who sue as plaintiffs on the record. In the first case, the indorsement, being in blank, is a direction to pay to the bearer—and the plaintiffs shewing themselves to be bearers, by suing on the note, they cannot be required to shew themselves to be partners— that being an immaterial question. In the latter ease, the note being payable or specially indorsed to a firm, and not to the members expressly, the plaintiffs must shew their connection, on the trial. Very fully to this point is Collyer on Partnership, (405.)

In the case at bar, the notes are payable to Willis Lang &Co. — clearly implying that at least one other composes the company. The record sets forth the name of two others, and as they are not expressly contracted with, proof should have been offered, to show that they were partners with Willis Lang.

Upon the first and third points, the judgment is reversed and the cause remanded.

      4 Porter's R. 515.

      Aik. Dig. 283. § 137 1st. Ed.

      2. Stew. 222.

      1 Saund, R. 154, n. 1.-a & 291 & h.

      6 Mass. R. 460.

      1 Cooke R. 159.

       Cowp. 569.

       5 T. R. 709.

       1 Esp R. 182.


author: HOPKINS, C. J.

text:
    HERRING VS M'ELDERRY, et al.

      As to Mils in equity to divest the title of lands.

    1. Where a bill was filed in Chancery, for the purpose of divesting the defendants of their title to certain lands,'and the bill disclosed that the defendants title consisted of a claim of title, under the deed of a Creek Indian,- to lands, selected under the treaty of the 24th of March 1832— which deed was made within five years after the treaty, — • it was held—
    First — That there being no allegation in the bill, that the contract of the Indian had been approved by the Presi_. dent — no valid title was shown in the defendants author-ising the Court of equity to entertain the bill.
    Secondly — That neither could equity entertain the bill in order to render a decree for money, alleged to be due by defendants to the plaintiff, — he having his remedy at law.
    This case was brought up by writ of error, to the Circuit Court of Talladega county, on. a decree of the Chancery side of that Court, dismissing a bill, filed by the plaintiff in error.
    The bill alleged, that under the treaty formed between the United States and the Creek Indians, an allotment of three hundred and twenty acres of land, had been made to one Holeyar, a Creek, upon which land, orator, had, with the consent of said Indian, for some time, resided. That during this-period, orator entered into an agreement with the Indian, to purchase his reservation, but finding his means inadequate, found it necessary to make a friend to assist him in the object. That with this View, he applied to one Walker, who agreed to supply the necessary funds, on the stipulation, that orator was to have one third of the land, including the dwelling and improvements, and pay to Walker so much money as should be an equal proportion of the whole sum given for the lands.
    To effect this arrangement, orator employed one Hawkins as interpreter, and in making said contract, was put to large expenses ; afterward, one Brasher went to orator, and informed him that he desired to take the place of Walker, who was unable from the situation of his private affairs, to raise the funds, and to which proposition, after the consent of Walker had been obtained, the said complainant- assented. Complainant then made a new contract with Brasher, whereby it was agreed that complainant was to have his election, either to comply with the contract, first made with Walker, or to take the entire lands, by paying the whole purchase money, and fifty per cent, thereon, by the twenty-fifth December, eighteen hundred and thirty-four. Subsequently to this event, complainant being unable to attend and have the contract certified, as required by the treaty, sent his son, with Brasher and Hawkins to Mardisville, for that purpose; having every confidence in the honor of said Brasher and Hawkins, and that the contract would be certified according to the agreement made with complainant. But to complainant’s astonishment, the contract was certified in the name of Thomas M’Elderry and said Hawkins; and the namp of complainant, entirely- left out of the contract.
    The bill then charged a co-partnership to have been existing between M’Elderry and Brasher— alledged that he, and no other person made the contract with the Indian; that he had made improvements ; and finally that he had made a ten' der to said Brasher and M’Elderry, of the amount agreed to be paid to Brasher, and of a deed to be signed, — all which had been rejected. And prayed relief &c.
    The Chancellor dismissed the bill at the costs of the complainant.
    Argued by Peter Parsons for the plaintiff in error — Mardis and Chilton, contra.
   HOPKINS, C. J.

The bill in this case, was filed for the purpose of obtaining a decree to divest the defendants of title to a tract of land, and to vest it in the plaintiff upon.a contract, which is set out in the bill. The plaintiff alledged in his bill, that the land was selected by Holeyar, a Creek Indian, under the treaty made between the United States, and the tribe of Creek Indians, on the twenty-fourth of March, eighteen hundred and thirty-two : That before the selection was made, the plaintiff was in possession of the land, and afterward continued to reside on it, with the consent of the Indian : That in eighteen hundred and thirty-four, the Indian made his deed for the land, to two of the defendants, which deed was certified by the proper agent.

There is no allegation in the bill, that the deed had been approved by the President of the United States. It does not, therefore, appear that either of the defendants has any interest in the land. -

The second article of the treaty, requires such a selection of land, to be reserved from sale, for the use of the Indian entitled to it, for the term of five years, unless sooner disposed of by the Indian; and the third article, which authorises an Indian to convey his land, provides that his contract for the purpose, although certified by the proper agent, shall not be valid till the President approves the same. Whether the purchasers have an interest in the land, depends upon an act of the President, which the plaintiff does not allege, has been done. Should the President disapprove of the contract, the Indian would have the same right to the land, as if no such deed had been made by him, and no such certificate given by the .agent. No contract with an Indian, for such land, entered into within five years after the treaty was made, is valid, unless approved by the President; and the contract with the Indian, which is set out in the bill, is alleged to have been made within less than three years after the treaty was made.

If the contract, which is alleged in the bill, between the plaintiff and the defendant, Brasher, were such an one as a Court of. Equity would execute against persons, who, had an interest in the land, it could not be executed against the defendants, neither of whom has, according to any allegation in the bill, a valid agreement with the Indian, for the land.

If the plaintiff has expended money for the defendants, or either of them, upon their request, or under any circumstances, which make them responsible for it to him, he has a right to an action at law, to recover the money. But this Court can neither decree him the .money, nor decide that he ,is entitled to recover it.

We are of opinion there is no equity in the bill, and that the decree of the'Circuit Court, which .dismissed it, is correct.

The decree is affirmed.


text:
    LUCY and another, VS BECK.

      Of judgment against two, service perfected only upon one.

    1. Where original process issues against two, which is served upon one, and the plaintiff declares only against the party served, — though appearance is entered as for both, judgment rendered against both defendants, is error.
    2. Butin such case, the’ judgment against both parties, will be reversed, and rendered in this Court, against the party served.
    On a writ of error to a judgment of the Circuit Court of Marengo county.
    A writ in assumpsit, founded upon a promissory note, executed by Alfred D. Lucy and Thomas B. Lucy, was issued from the office of the clerk of the Circuit Court of Marengo county, against the said Alfred and Thomas, on the fourteenth of March, eighteen hundred and thirty-five: and upon the eighteenth of March, eighteen hundred and thirty-five, was returned executed upon Thomas B. Lucy, non esi, as to Alfred D. Lucy. The plaintiff then declared against Thomas B. Lucy, discontinuing in his declaration against the said Alfred; and subsequently a judgment was entered in the cause, in the following terms, to wit:
    “At this day came the parties, by their attornies, and the defendants saying nothing in bar or preclusion of the plaintiff’s action — it is therefore considered by the Court, that the plaintiff recover of said defendants, the sum of eight hundred and eighteen dollars and twenty-two cents, his damages sustained in the premises, and also his costs of suit, in this behalf, expended.”
    Upon writ of error, it was here assigned — •
    First — That the Court below erred in rendering judgment against both defendants, after a discontinuance against one.
    Secondly — That the Court below erred in giving judgment against both defendants — the writ having been served only upon one.

      Ellis & Peck, for the plaintiffs in error — Crabb & Capers, contra.
   COLLIER, J.

The defendant in error, caused to be issued a writ of capias ad respondendum, against the plaintiffs, returnable to the Circuit Court of Marengo. The writ was executed on Thomas B. Lucy only, and against him, the defendant declared, reciting in his declaration, that the cause was discontinued as to Alfred D. Lucy.

At a subsequent term, a judgment was rendered against the plaintiffs, as follows:

“At this day came the parties, by their attornies, and the defendants, saying nothing in bar or preclusion of the plaintiff’s action — it is therefore considered by the Court, that the plaintiff recover of the said defendants, &c.”

It is insisted, for the defendant, that this judgment must be held to be against Thomas B. Lucy, alone, as the service was perfected on him, only, — ■ that the employment of the plural, instead of the singular number, in designating against whom it is rendered, was a mere clerical misprision, amendable below’, or even here, at the costs of the plaintiffs in error.

We do not think so: it is not the duty of the clerk to determine against whom a judgment shall be rendered: this is a judicial act. The mere registration of the judgment, and the ascertainment of the amount due, when that is fixed by writing, and no defence made, is the duty of the clerk.

In the case of Gilbert and others vs Lane,* (at January term, 1836,) this Court determined, that where original process, issued against several, and was served on one only, if the plaintiff proceeded to judgment against all, the proceedings were erroneous, and could only be aided by an appearance,which the judgment in that case shewed.

Had the plaintiff below, have declared against both the parties sued, his judgment would not have been reversible; for the judgment shews that both the plaintiff and defendants, came by their attor-nies — and their appearance would have dispensed with the service of the writ. But not having thus declared, there- isno declaration to sustain the judgment against Alfred D. Lucy — the want of which, we have repeatedly decided, a defendant may avail himself of on error..

For this reason alone, the judgment must be reversed, and be here rendered against Thomas B. Lucy.

       Porter 237


text:
    SCHOOL COMMISSIONERS VS AIKIN.

      Questions as to the sale of school lands ly commissioners.

    1. The school commissioners of the several townships in this State, are special corporations, and as such, have no power to take and hold lands.

      2. So the school commissioners cannot maintain indebitatus assumpsit, against the vendee of lands, sold as the property of the township, to recover their price.
    3. But where lands, the property of a township, are sold, legally, by the school commissioners, and the vendee refuses to compLy with the terms of sale, by giving his notes, it seems, that an action might we,11 lie in favor of the commissioners, and a recovery in damages be effected.
    4. So, also, it seems, the school commissioners would have the authority, where a vendee refused to comply with the terms of a. sale of such lands, — to effect a re-sale upon the terms prescribed in the statutes.
    5. A condition, imposed by school commissioners, in effecting a sale of a sixteenth section, — that if the vendee failed to comply with the terms of sale, by giving notes with security, the lands should be re-sold, and the first purchaser held responsible, — would not, it seems, render void a contract of sale, or defeat an action by the commissioners, to recover of the first purchaser, after a legal re-sale, the difference of price, between the first and last sale.
    6. But where school commissioners, under such conditions, sold lands of the township, and on the refusal of the vendee to comply, effected a re-sale, at a price less than the minimum affixed by law — it was held that an action did not lay to recover of the first purchaser, the difference between the first and last sale.

      On writ of error to the Circuit Court of Tuska-loosa county.
    This was an action of assumpsit against the defendant in error, in the Court below, and was prosecuted in the name of the school commissioners of township twenty-two of range ten, west. The declaration disclosed that at an election, duly held by the plaintiffs, in township twenty-two, of range ten, west, in the county of Tuscaloosa, on the twelfth day of October, in the year of our Lord, eighteen hundred and thirty-three, to ascertain the sense orf the qualified electors, inhabitants of said township, respecting the sale of the sixteenth section in said township, it was ascertained that a majority of said electors at said election, voted to sell the sixteenth section; and that the result of said election was by said commissioners, duly certified to the Judge of the County Court of said county of Tuskaloosa, on the-day of -=-, eighteen hundred and thirty-three: and afterwards, to wit* on the twentieth day of November, in the same year, being more than twenty days after said election, the Judge of the County Court of said county of Tuskaloosa, issued an order of sale to said commissioners, to sell said sixteenth section; on the ret eeption whereof, the said sixteenth section was surveyed, and laid off into eight lots, of eighty acres each, and a minimum price, then and there affixed upon the same — as follows, to wit:

    Upon lot numbered one, the minimum price of three dollars and fifty cents; upon lot numbered two, four dollars; upon lot numbered three, four dollars; upon lot numbered four, five dollars; upon lot numbered five, five dollars ; upon lot numbered six, six dollars; upon lot numbered seven, six dollars and fifty cents; and upon lot numbered eight, six dollars and fifty cents: That afterwards, to wit, on the twenty-eigth day of December, in the year of our Lord, eighteen hundred and thirty-three, having previously given thirty days public notice of the time and place of sale, by advertisement in three public places, within said township, the said several lots of 1 and were offered for sale at public auction; and that previous to the commencement of the said sale, the conditions of said sale, were published aloud, in the presence and hearing of all persons who had assembled at the sale, which conditions were, that said lands would be sold on a credit of one, two, three and four years, in equal annual instalments, — that the purchaser or purchasers, would be required to give separate notes for each instalment, with approved surety, payable to the President and Directors of the Bank of the State of Alabama, with interest at six per cent, from the day.of sale; and that every person or persons, bidding off any lot or lots of land, and failing to comply with the said terms of sale, by giving their notes with approved surety, as aforesaid, the said lot or lots of land, would be resold, and the first purchasers held responsible for the difference, if any there might be, in the price between the first and second sale: That at said sale, the defendant was the highest and best bidder for lots, numbered six and eight; and lot numbered six, was struck off to the defendant, at the sum of ten dollars and one cent per acre; and lot numbered eight, was struck off to the said defendant, at the sum of seven dollars per acre : And although the said commissioners were ready and willing, and did offer to give to said defendant, the certificates of purchase, as required by the statute, yet defendant had neglected and refused to comply with the conditions of said sale, and did not, nor would give his notes with approved surety, payable according to the conditions of said sale, in one, two, three and four years, in equal annual instalments, &c. Whereupon, the said commissioners, afterwards, to wit, on the seventeenth day of May, eighteen hundred and thirty-four, re-sold the said lots, numbered six and eight, as aforesaid, at public auction, upon the conditions aforesaid; at which sale, said lot, numbered six, was bid off at the price of three dollars per acre; and said lot, numbered eight, at the price of two dollars and seventy-five cents^ — and the difference, it was averred, between the first and last sales of said lots, amounted to the sum of nine hundred dollars and eighty cents: And which defendant by means of the premises, became liable to pay, &c.
    In addition to this, special count, the indebitatus count, was also inserted.
    A demurrer to the declaration, having been sustained by the Court below, the plaintiffs prosecuted a writ of error here; and assigned the judgment upon demurrer as a cause for reversal.
    Argued by Ellis & Peek for the plaintiffs in error, and by Porter, Crabb and Stewart, contra.
   GOLDTHWAITE, J.

The declaration in this cause, contains two counts in assumpsit, one a general indebitatus, and the other, special, on a contract therein set out. A* demurrer was interposed in the Court below, on which judgment was rendered for the defendant, and this judgment is now sought to be reversed.

The indebitatus count, is for one hundred and sixty acres of land, alleged to have been sold by the plaintiffs to the defendants, and presents the general question, whether they can hold lands, in any way or under any circumstances, whatever; for if they are enabled to hold lands, it would seem difficult to resist the conclusion, that they were au-thorised to sell them; on the other hand, it seems clear, if the plaintiffs are in no case authorised to be the owners of lands, they cannot maintain as-sumpsit for the sale of that which could not belong to them.

By the several acts in relation to schools and school lands, the school commissioners of each township in the State, are created special corporations, and are authorised to sue and be sued by their corporate name; but all the powers which are conferred on them, seem to be special in their character, and appear to have been conferred on them, solely with the view of enabling them to manage the sixteenth section and the school funds of the township, arising from the rents and revenue of this section, and to enable them to sue and be sued, in all matters relative to the same, without the inconvenience whHi would arise, if they were considered as natural persons.

By no part of the several acts in relation to school and school lands, are these corporations invested with the power to hold lands. The legal title in the sixteenth section, is in no wise transferred to them, if indeed it could he, and the same seems to remain in the inhabitants at large, of each township. Indeed, any inference of a power to purchase and hold lands, by virtue of their special corporate powers, is removed by the fact that this power is directly given to the trustees of the several school districts, in the respective townships, which are constituted special corporations by the same act, and are empowered to hold lands, not exceeding two acres, for school purposes. If the intention was to confer this power on the school commissioners, it is difficult to assign any reason why it was omitted in the act.

If the case was one of first impression, we should feel no hesitation in deciding that a special corporation, so constituted, had no capacity to take or hold lands, and consequently, no power to sell and convey, but we are warranted by authority in the positions which we lay down.

Chancellor Kent recognizes the rule, that statute corporations cannot take and hold real estate, for purposes foreign to their institution. The same principle was held by the Supreme Court of New York, in the case of Jackson vs Hartwell.

Some difficulty arises in the consideration of this eoúnt, because the statutes we have before referred to, authorise the school commissioners, when the consent of the inhabitants of the township shall be obtained, to sell the sixteenth section; but this is removed, when we ascertain from the law, that this power of sale is entirely naked, creating no interest whatever, in the school commissioners, and not even permitting them to receive the proceeds of sale, and directing the notes therefor, to be made payable to the President and Directors of the Bank of the State of Alabama.

Another view which can be taken of the statute, entirely obviates any difficulty on this subject. The school commissioners have no authority to dispose of the sixteenth section, unless a certain price be obtained; and not even then, can a certificate of purchase be given by them, unless notes payable in one, two, three and four years, bearing interest at the rate of six per cent, per annum, with two securities be given. — (See Sec. 35. Title, schools and school lands.)

This provision is evidently intended for security of the inhabitants of the township, and the act would be effectually evaded and rendered inoperative, if the plaintiffs could sue for the purchase money of the lands sold — no security would be given, and the time of credit might be prolonged by a suit.

For these reasons, we are of opinion, that the general indebitatus count, cannot be supported.

The special count, presents questions which are novel, and in some respects, difficult of solution.

From this it appears, that the inhabitants of the township, for which the plaintiffs are school commissioners, had determined in the manner prescribed by law, to give their consent to a sale of the sixteenth section, and the statutory proceedings being first had, the plaintiffs after affixing a minimum price on the several lots into which the section was divided, proceeded to sell the same, in conformity with the requisitions of the law.

It alleges, “that the conditions of sale, were published aloud in the presence and hearing of all who had assembled at the sale.” These conditions were those proscribed by the act authorising the sale, and “that any person or persons, bidding off any lot or lots of the land, and failing to comply with the said terms of sale, by giving their notes, with approved security, the lot or lots, would be re-sold, and the first purchasers held responsible.”

It then alleges that the defendant became the purchaser of lots, numbered .six and eight, for the first of which he bid ten dollars and one cent per acre, and for the last, he bid seven dollars per acre, at which prices they were struck down to him.

The minimum price of these lots, was six dollars for the first, and six dollars and fifty cents, for the'last.

The count then alleges that the defendant wholly refused and neglected to comply with the conditions of the sale, and did not nor would give his notes, toith approved security, as provided by law. It then states that a re-sale took place, after a lapse of more than three months, on the same conditions, at which sale these two lots were sold; the first for three dollars per acre, and the last, for two dollars and seventy-five cents per acre, of which the defendant had notice.

The count then concludes with a super se as-sumpsit, for the difference between the two sales— and the breach of the contract is alleged to be the’ non-payment of the several sums of money mentioned in each count.

It is urged against this count, that the plaintiffs are not authorised by any law, to maintain any suit for any breach of contract, relative to the sale of the sixteenth section, because the authority is given to another corporation to receive the money. But we think this does not follow as a consequence — ■ if it did any person could at pleasure, become a purchaser and violate his contract with impunity, or the sale of the section might be delayed or entirely prevented, by one disposed to retard the action of the commissioners.

The general object of all the statutes, in relation to schools and school lands, seems to be to enable the school commissioners, to act for the' township, in all matters relating to the sixteenth section; and we are satisfied they have the same right to pursue any remedy in relation to the same, which the inhabitants of the township, could pursue, except in such cases only, where an action is’ contemplated by other persons.

We have already determined, that a general in-debitatus count could not be sustained, because the commissioners had no authority to receive the money for the sale, as if was to be paid to others, under the act of the legislature, and because the township must have the security required,before any title can pass by the sale. These reasons would be equally decisive, when applied to any action at law on the contract, however special the declaration might be framed; but they do not apply to any action which' is brought to recover damages for a failure to comply with a legal contract, entered into with the school commissioners. The contract, as such in the present case, could not be enforced in a Court of law, by a recovery of the price, (even if an action could be maintained for the same, until the credit had expired,) because the interests of the township could not be protected by the security required on'a sale; but when the contract is at .end, by the refusal of the purchaser to complete it, by giving his notes, as required, an action would at once lie, and if damages had been the consequence of, the refusal, a recovery could not be prevented. After a purchaser has absolutely refused to comply with the contract of sale, the seller is at liberty to consider the contract at an end, and immediately sue for the damages he has sustained. This rule is perfectly well established as to goods. — Gerard vs Tagart. — Mussen vs Price.

But it is unnecessary to determine whether the same principle applies to sales of land in general. So far as this case is concerned, we entertain no doubt but the commissioners were authorised to re-sell the land. Indeed the act of the legislature makes it their duty so to do. The sale was not executed, without the security required was given, and therefore might be considered inoperative, under the act refered to, after a refusal by defendant, to give his notes: and the minimum not having been realised, a re-sale became necessary.

It is also contended, that by annexing a condition of re-sale, the whole contract became void, and there was no legal obligation on the defendant to complete it—that one of the consequences which might grow out of such condition, was an act which the commissioners could not perform, as at such resale, the minimum price might not be offered, in which event no sale could be made. This argument, however ingenious, will, when examined, appear to be without foundation. The condition imposed was a lawful one, and was made for the benefit alone, of the commissioners. It was one on which the defendant could not insist, nor could it be faily inferred, that they would extend it to a case, where they would have no authority to make a resale. The whole argument is in fact predicated on the idea, that this condition forms a part of the contract. If so, the defendant might well insist that he had a right to refuse to give his notes, and insist on a re-sale, as the property might sell for more, on the second sale, than it brought at first, and that he was in that event, entitled to the surplus

We are aware, that Mr. Justice Livingston, in the case of Webster & Ford vs Hoban, seems to have entertained the impression, that it was the purchasers right, to insist on a re-sale, and that he would be entitled to the surplus, if any; but it seems to us that this opinion, has neither reason.nor principle to support it. If it was law, every pauper in the land, would be authorised to purchase at any sale, where this was a condition, and then insist that he was entitled to the chanceof a profit on a re-sale, andrest his right on the contract.

We are not alone in this opinion-—all the English cases clearly recognise the principle, that on a resale the first purchaser, has no right to the increased price.

We think it sufficient to say, in answer to the position, as taken, that the condition is one which is legal, and being made solely for the security and protection of the seller, may be waived by him, without impairing any of his rights, or it may be insisted on when made, in relation to real estate, and the first purchaser held responsible for any deficit .on a re-sale.

If in the case under consideration, the re-sale had produced the minimum price affixed to the several lots, we should determine that the defendant was liable to a recovery in the suit as brought; but as the contract is laid, the liability of the defendant is charged to arise from an illegal' act, or rather void act of the plaintiffs. They had no authority to sell for a less sum than the .minimum, and yet this sale is the foundation of the super se assumpsit, laid in -the declaration.

A re-sale was not necessary to fix the liability of the defendant for a breach of contract, and the action in another form could have been maintained without showing a re-sale: it might be one mode of ascertaining the amount of damages, perhaps the best, but certainly not the only way of ascertaining the same. '

It was said at bar, that this declaration in the special count might conform to this view of ihe case, by striking out all in relation to the subsequent sale, and the super se assumpsit, If this was done, it would resemble a declaration in case, but the breach would not be appropriate; and if it was in this form, the action would be case, and there being a count in assumpsit in the ¡declaration, there would be a mis-joinder of action; and this defect would be equally fatal with those pointed out.

The declaration cannot be supported, and the judgment must be affirmed.

.COLLIER, J, not sitting.

      Aik. Dig. 370.

      2 Kent's Com. 229.

        8 Jhons. R. 425 3 Peck 239.

      Aik. Dig, 378.

      5 S. & Raws 19.

      4 East 147.

      7 Cranch 899.

      Sugden on Vendors 34, and cases cited.


text:
    PERKINS and ELLIOTT VS MAYFIELD.

      As to what consideration will support a trust deed.

      As to a sale of the equity of redemption ander execu- ■ tion.

      As to deeds of indemnity to a surety.

      Points of practice, as to issue, and errors.

    1. A claimant of property levied on undei execution, cannot, it seems under decisions of this Court, now avail himself of a defect in the judgment or decree, upon which it has issued.

      2. That one becomes the surety of another, to his bond as ■ executor, is a sufficient consideration to support a deed of trust.
    3. A mere equity of redemption in personal property, unaccompanied by possession in the mortgagor, cannot be reached by execution, and made the subject of levy and sale.

      4. Where a deed of a slave was executed by one, as an indemnity to others, who became his sureties to a bond as executor, — and by the terms of the deed, the sureties were authorised to sell the slave upon becoming liable as the sureties of the executor, at such time and place as they might chose, — it was held, that the slave could not be sold under an execution issued upon a decree obtained against the executor, as such — it appearing that outstanding claims still existed, upon which the sureties might be liable.

      5. It seems that an issue between a plaintiff in execution, and a claimant of property, levied on under it, should conform to the amount of the interest sought to be contested: as, if an equity of redemption be in controversy,[the issue should seek to condemn that alone, and not the entire estate.

      6. A defendant in error, will not be permitted to refer this Court to errors of an inferior Court against himself, as a reason why errors committed against a plaintiff here, should not be considered.
    On writ of error to the Circuit Court of Tuska-loosa.
    This cause came before this Court by writ of error, to revise a judgment of the Circuit Court of Tuskaloosa county. A bill of exceptions was sealed in the progress of the trial, from which the following facts appeared, vis: That John Spencer, sen’r, late of that county, made his will, and died previous to the year eighteen hundred and thirty-one : That one Edward B. Elliott was appointed by him, executor, who qualified as such; and that, the Judge of the County Court, from whom he received letters testamentary, made a decree, on the fourteenth day of January, eighteen hundred and thirty-one, in which he directed, the sum of four thousand eight hundred and fifty-five dollars and ninety cents, to be paid to the different legatees under the will, as they were respectively entitled. And among others, the sum of seven hundred and eleven dollars, ninety-seven cents, was decreed to be paid to Louisa Spencer. To collect which last mentioned sum, a writ of fieri facias was Issued on the fifth day of January, eighteen hundred and thirty-five, in the name of Isaac N. May-field and his wife, Louisa, late Louisa Spencer, (with whom it was stated he had intermarried.)
    This exécution was levied by the sheriff of Tus-kaloosa county, on a negro man slave, named James, to whom the plaintiffs in error, interposed a claim, with the view to try the right under the statute.
    On the trial, the defendant in error,.gave in evidence, a deed from Edward B. Elliott, from which it appeared, that the plaintiffs were Elliott’s sureties, in the bond executed by him, as executor of the last will and testament of John Spencer, senior: and that with the view of securing them against the consequences of their suretyship, and to save them harmless from all liability, the executor had thereby conveyed to them the slave in question, with other personal property: vesting in them full power and authority, to sell all or any portion of the property, as should be necessary to discharge any liability fixed upon them as such surities, or money paid by them on that account,- at public auction, on giving ten days notice of the time and place of sale.
    It further appeared that the plaintiff, Perkins, was in the possession of the slave James, at the time of the levy, and had been for some time previously; and that lie asserted his right to hold, under the deed, which bore date twenty-ninth day of January, eighteen hundred and thirty-one.
    During the progress of the investigation in the inferior Court, the presiding Judge was requested to charge the jury — “that if they believed the property in controversy, had been conveyed to Perkins and Enoch Elliott, the claimants, in trust for their indemnity, as security for Edward B. Elliott; and that it had gone into the possession of one of the claimants, and was so at the time of the levy of the fieri facias in this case; and that there were other outstanding claims against Edward B. Elliott, as executor as aforesaid,-to the payment of which the said claimants might be subjected, — then they should find the property in controversy, not subject to the said execution:” which instruction, the Court overruled — and thereupon the plaintiffs in error excepted. And there was a verdict, and a judgment condemning the slave James to the satisfaction of the execution.
    It appeared from the record, that the only issue submitted to the jury, was one whereby the plaintiff in execution, asserted that the negro man slave,was liable to the execution, levied upon him; and which was denied by the claimants, and issue taken to the country.

    It was here assigned in error—
    First — That the Court below erred in admitting in evidence, the decree upon which the said execution is sued.
    Secondly — That the Court below erred in admitting as evidence, the fieri fiadas issued on the said decree.
    Thirdly — That the Court erred in refusing the instructions prayed,
    The case Was argued very fully by Crahb for the plaintiffs in error, and by Ellis & Peck, contra.
   COLLIER, J.

The assignments of error and the argument for the plaintiffs, assert that the decree of the County Court is too defective to authorise the issuance of an execution, and that the execution is in other respects, irregular and void. If the right of the Court to examine these questions, was untrammelled by previous decisions, it is not improbable, that we should conclude, that a void fi. fa. was such process, as property could not be condemned to satisfy. If an execution is so palpably defective, and for causes appearing on its face, or on an inspection of the judgment or decree, on which it issues, as to be void, the terms of the issue submitted to the jury, would seem to authorise the claimant of property, to avail himself of the defect; but this Court, in the case of Collingsworth vs Horn, and other cases, have determined otherwise; and we are contented that the doctrine of stare decisis, should control our opinions on this point, esteeming it of more importance that the question should be settled, than in what way it is determined.

We proceed now to examine the questions arising upon the motion in the Circuit Court for instructions to the jury, and the refusal of the Court to give them. And these are—

First — Is the deed from Edward B. Elliott to the plaintiffs, founded upon a sufficient consideration!

Second — Had Edward B. Elliott such an interest in the property conveyed by the deed, as subjected it to levy and sale, to satisfy a judgment against him!

Third — Are the terms of the deed such as to make the property subject to the defendant’s execution!

1st. — A principal is under a moral obligation to save his surety harmless, if he have the ability to do so; and suck an obligation is sufficient to sustain an express promise.Worseley vs Demattos.

In Suffield vs Bruce, it appeared that the plaintiff had paid the defendant the whole of a demand claimed by him, but part of which was due to a hird person. Lord Elienborough, held that the de-.endant’s promise to indemnify the plaintiff against the claim of the third person, was founded on a sufficient moral obligation, to render it binding, although such promise was made by the defendant, after he had received the money from the plaintiff.

In the case of the United States vs Hooe, —Fitzgerald was appointed a collector of the revenue, in seventeen hundred and ninety-four, and executed a bond with Hooe, as his surety for the faithful performance of the duties of his office. In seventeen hundred and ninety-nine, being largely in arrears to the United States, for monies collected, and desiring Hooe’s indorsement, to enable him to draw money from the Bank, Fitzgerald executed a deed in trust, conveying certain real estate to trustees, to indemnify him against the consequences of his suretyship and indorsements. It was not denied but that the property was bound to make good to Hooe, the defaults of his principal as a collector of the revenue.

The Chief Justice, in delivering the opinion of the Court, remarks: “That the property stood bound for future advances, is in itself unexceptionable. It may indeed be converted to improper purposes, but it is not positively inadmissible. It is frequent for a person who expects to become more considerably indebted, to mortgage property to his creditor as a security for debts to be contracted, as well as for that which is already due. All the covenants in this deed, appear to the Court to be fair, legitimate and consistent with common usage.” To the same effect, is Badlam vs Tucker.

In Marsh vs Lawrence, there was a conveyance of personal property, by a principal, as an indemnity, for the future liabilities of his surety, and the consideration was not questioned.

This question seems so clear upon principle as well as authority, that we cannot doubt but the deed bears on its face, evidence of a sufficient consideration. If the fairness indicated by the deed, be unfounded in fact, it was entirely competent for the defendant to have attacked it for extrinsic causes; but no effort of this kind was made.

2d. The interest of Edward B. Elliott, in the slave, was a mere equity without even possession, for one of the plaintiffs had that, at the time of the levy. The deed must be considered as an indemnity in the nature of a mortgage, with a power of. sale to the plaintiffs; and must be scanned by those rules, which are applicable to mortgages of the personalty. Anciently, mortgages, technically so called, were confined chiefly, if not entirely, to the realty; at this day, they embrace both descriptions of property. In regard to lands, after the mort-guage had become forfeit, the equity of redemption could not be sold under an execution *

But the law is laid down differently by Chancellor Kent, (in the 4th of his Com. 154,) who says that though the day of the payment of the money, intended to be secured, has past, so that the mortgage is forfeited, yet the mortgagor, “while in possession, and before foreclosure, is regarded as the real own-, er, and a freeholder, with the civil and political rights belonging to that character, &c.” To sustain this position, the learned commentator refers to many authorities, both English and American, which we do not deem it necessary to look into, as we have no wish to combat the doctrine.

lathe case of M’Gregor & Darling vs Hall, this Court, (at January term, eighteen hundred and thirty-three,) decided that the interest of the mortgagor in slaves, was liable to be sold under execution, against him. The opinion of the Court does not inform us whether the possession had been changed or the law day had passed, nor are either of these considered in the opinion, as material circumstances. In looking into the record, however, we discover that the mortgagor still retained the possession, so that in addition to a mere equity of redemption, there was in the defendant in execution, such title as the possession could give him. Without intending to overrule that case, let us en-quire whether a mere equity can be reached by execution.

In the case of Wilkes et al vs Ferris, it was determined, where property has been assigned by a debtor to trustees, for the payment of certain specified debts, the resulting trust or residuary interest remaining to the assignor, after the purposes of the assignment, the payments of- the debts are satisfied, is not such an interest as can be taken and sold on execution. Mor is a mere equitable title liable to levy and sale.—Thomas vs Marshall.

In Badlam vs Tucker et al. the Court say, “A mere equitable interest cannot be taken and sold on execution; for where there is no legal right there is no legal remedy. This was settled on great deliberation by the Court of King’s Bench in the case of Scott vs Scholey et al; and the reasons there given, are entirely satisfactory.”

“The judgment of the Court in that case, was sanctioned by the Court of Common Pleas in the case of Metcalf et al. vs Scholey et al. —and is supported by all the authorities:” Again, “it is only by statute, that equities- or rights to redeem are subject to attachment by ordinary process.”

The Court then, after stating the creditor has a remedy in equity, and may possibly remove the in-cumbrance himself, concludes, “but until payment, or tender of payment of the money due to the paw-nee or mortgagee of goods and chattels, it is very clear that the creditor of the pawnor or mortgagor has no remedy against them by attachment and execution.”

In the case of Marsh vs Lawrence, there was a bill of sale, or an assignment of personal property, in which the object was declared to be, to secure-the vendee as the surety of the vendor. And it was agreed that should the vendee become liable, he might turn the goods out on execution, or that they should be at his disposal at private sale, accounting to the vendor for the proceeds: the vendor retained the possession, which ivas held to be consistent with the deed. The Court in the opinion delivered, say that the vendor had an equitable interest in the nature of an equity of redemption in the goods, and a right to any surplus if they were sold; but does not consider them in judgment of law, as his property, so as to be subject to an execution against him. The Court then say, that the vendor had a mere equity, which could not thus be disposed of.

This case goes the entire length of determining that an equity of redemption of personal property, with possession in the mortgagor, can not be sold on execution. And if such be the law in New 'York, the Courts of that State, must distinguish between a mortgage of personal and real estate, either under the influence of a statute, or from a consideration of the dissimilar qualities of these descriptions of property. We do not deem it necessary, or even proper to go to this extent, (though we might believe such to be the law,) as this Court, in the case already cited, determined that there was no distinction in this respect, between an equity of redemption in personal and real estate, and because the case at bar is distinguishable from that, in the mortgagor having parted with the possession in favor of the mortgagees.

Without pretending then to interfere with any principle adjudged in the case of M’Gregor & Darling vs Hall, we are of opinion that a mere equity unaccompanied by possession, cannot be reached by execution, and that the interest of Edward B. Elliott being of this character, was not .subject to levy and sale.

3d. The mere fact of the property being conveyed as an indemnity to the plaintiffs, as sureties of the executor of the will of John Spencer, senr. does not authorise a creditor or legatee of that estate, to have it .seised by execution, to satisfy a judgment or decree in his favor. By the conveyance and delivery to the mortgagee, it ceased, to be the executors, until he freed the estate from all incumbrances and charges, with which the plaintiffs might be ultimately, chargeble as his sureties. That this had not been done, presumptively appears from the decree of the Judge of the County Court, in which near five thousand dollars are decreed to be paid to different legatees under the will; and conclusively from the execution of the defendant.

By the terms of the deed, the plaintiffs are invested with a discretion, as to the time and place of sale of the property conveyed, whenever their liability is fixed, as the sureties of Edward B. Elliott. This discretion is of importance to them, and may enable them to sell the property for a better price than it would command at a forced sale, under execution.

The motion for instructions to the jury, placed ‘the case in. the most favorable predicament for the defendant. It impliedly admitted that the property might be condemned, if there were no other demands against the executor, than the one in con™ troversy. We do not pretend to say that this admission was not proper in point of law, but certainly,. if there were other outstanding claims, the plaintiffs should not be required to forego the advantage of a sale, directed by their discretion, as to time and place, and have the property forced from them at the hazard of a loss. We are satisfied that the deed, followed as it was by delivery of the property, passed such an interest to the plaintiffs, as is incompatible with its seizure to pay Edward B. Elliot’s debts; and that there is nothing in its terms' or its purpose, or the relationship of the parties, to-change this conclusion.

Having considered the material questions arising, in this case, we will briefly examine one or two other points, discussed at the bar, which do not influence our judgment here; but yet are worthy of notice, as settling the practice.

And first, as to the issue submitted to the jury,—this did not assert the liability of an equity of redemption to the defendant’s execution, but the entire property in the slave, without incumbrance. A verdict responsive to this issue, in favor of the defendant, would have determined all interest and title in the slave, to be subject to the execution,- and thus have deprived the plaintiffs of all benefit to be derived from their mortgage. And this might have been the result without any proof shewing the mortgage to be defective for extraneous causes. The issue should always conform to the nature of the interest sought to be subjected—if an equity of redemption, it should be so expressed, and if there is no qualification, it must be supposed to be the en-tire interest which is proceeded against.

Under the issue submitted to the jury in this case, had the slave been sold-in pursuance of the verdict and judgment of the Circuit Court, and have yield-ed a sum, (as in all probability he would,) more than adequate to satisfy the execution, the excess-under the statute, instead of going to the plaintiffs, would have went to Edward B. Elliott; and this too, though the mortgage was free from objection. For the defendant, it is insisted, that though the record may show error in the proceedings of the Circuit Court, yet this Court should not regard it, as that Court should have dismissed the claim of the plaintiffs, for a defect in their bond, which made it void. Without examining the bond to ascertain its sufficiency, we are persuaded that we have no right to look into errors of the inferior Court, committed against a defendant here. He cannot legalize errors committed against a plaintiff here, by shewing that had his rights been properly regarded, the plaintiffs’ case could not have reached this Court.

From a view of this case, as presented, the judgment of the Circuit Court is reversed, and the cause remanded.

      4 Stew. & Porter 237.

      Chitty on Con. 10.

      1 Burr 474.

      2 Stark R. 175.

       3 Cranch 73.

      1 Pick. 389.

      4 Cowen R. 461.

      2 D. & E. 462.

      3Stew. & Porter 397.

      5 Johns. R. 335.

      Hard. 19.

       1 Pick. R. 399.

      8 East 467

      5 B & P. 467.

      4 Cowen 461.

      Aik. Dig. 162 §13.

       Saun. R. 11-n 17-& m.