text:
    Humes, Ex’r, vs. Cox.
    1. Removal oe executor—citation. A probate court cannot, under section 14, statute of Wisconsin, 310, remove an executor for the reason that he has removed out of the Territory and become an inhabitant of one of the States^ and has not returned and settled his accounts, without first citing him to return and settle; andan appointment of an administrator, de bonis non, with the will annexed, made before such citation, and neglect to comply with it, will be vacated and set aside.
    2. Appointment oe administrator de bonis non. Where an executor had been removed, for the reason that he had removed from the Territory and become an inhabitant of one of the States, and had not returned and settled his accounts, without his having been first cited to return and settle, and an administrator, de bonis non, with the will annexed, was appointed in his place, held that all proceedings by such administrator were void, and .that he had no power to petition for and make sale of the real estate of the deceased. Sitemcm v. Pacquette, 13 Wis. 291; 19 id. 541.
    3. License to sell real estate — notice. A sale of the real estate of a deceased person, under a license for that purpose, which was granted without notice being given of the time of the hearing of the application therefor, as required by law, will be set aside.
    4. Eeeect oe discovery and probate oe will. Where 0. was appointed administrator of the estate of a deceased person who, it was alleged, had died intestate, and commissioners were appointed to receive and adjust claims against the estate, but subsequently a will was discovered and proved, and letters testamentary were issued to the executor named in it, and the letters of administration were revoked, held, that the power and authority of such commissioners ceased with the revocation of the letters of administration, and any subsequent action on their part, as such commissioners, was a nullity.
    5. License should describe lands. The order of court granting license to sell real estate, and the license issued under such order, must describe the lands to be sold.
    6. Evidence oe fraudulent sale. Where letters of administration were granted to the sole creditor of the deceased, and a sale of several tracts of land is made by such administrator tp pay the debt, and the proceeds of the sale just equal the debt and expenses of sale, it is impossible to resist suspicion as to the honesty of the transaction.
    ERROR to the District Court for Grant County.
    The case is fully stated in the opinion of the court.

      T. P. Burnett and Wm. JR. Smith, for plaintiff in error.

      F. J. JDunn, for defendant in error.
   Miller, J.

This case was brought into the district court by appeal from the probate court.

Prom the record of the probate court, it appeared that John Humes died in the State of Pennsylvania; and that on the 21st day of April, 1840, George H. Cox, this defendant, petitioned to be appointed the administrator of said estate, representing that, there were no widow or next of kin of said deceased in said county, and that he was a creditor ; whereupon letters of administration were issued to him. On the same day, the said administrator had appraisers appointed, and also represented the estate as insolvent, and had commissioners appointed to receive, examine, and adjust the claims against said estate. On the ninth day of September of the same year, the will of said deceased, executed and proven in Pennsylvania, was presented for probate and allowance, which was allowed and recorded, after due notice given ; and on the tenth of October, letters testamentary were granted and issued to Samuel Humes, the executor named therein, and the letters of administration to Cox revoked. On the twenty-first of the same month, the commissioners reported on the debts against said estate, which report embraced only a debt in favor of said Oox of $272. January 30, 1843, said Cox presented a petition to the judge of probate, setting forth that he was a creditor of said estate; that Samuel Humes, the executor, had removed out of the Territory, and was then a resident of the county of Lancaster, in the State of Pennsylvania, and so removed out of this Territory before his accounts as such executor were settled; and that he had refused to settle his accounts and pay to petitioner his debt due from said estate, and praying to be appointed administrator de bonis non, with the will annexed. Whereupon the said judge ordered notice to be given of the pendency of this petition, and for those interested to show cause against the same by the fourth Monday of March next ensuing ; said notice was directed to be published for there weeks in a paper printed in Grant county. Cox in pursuance of said petition was appointed said administrator, and on the eighteenth day of April of the same year presented his petition, without a verification by affidavit, for an order to sell the real estate of said deceased, or so much thereof as might be necessary for the payment of said debt; whereupon said judge of probate ordered that notice of said application be advertised in a paper printed in said county for three weeks. May thirteenth, no person appearing to object to said application, or order prayed for, the said judge made an order for the sale. Said order, and the license issued thereon, are in general terms for the sale of the lands of decedent, or so much thereof as may be necessary, without any description whatever. On the twenty-fourth of August, the said administrator returned his license, with a report of sale, which on motion was confirmed. The administration account of said estate was filed by said administrator, and confirmed by the judge of probate on the same day, whereby the amount of sales and the amount of the said debt and costs and expenses are made to balance. Returned with the papers is the account of Samuel Humes as such executor as aforesaid, appearing to have been filed with the said judge of probate on the 4th day of February, 1843, and indorsed “ disallowed” by the judge of probate on the thirteenth of the same month.

October the 6th, 1843, the said Samuel Humes presented to the district court of Grant county, under the tenth section of the act establishing courts of probate, etc., a petition for leave to appeal from all the aforesaid acts, decrees, orders and doings, and they all being within one year, the said appeal was allowed by the court, and at the October term (1844) of the said district court, the said appeal came on to be heard, when the said several decisions, orders and decrees of the said probate court were affirmed; and the judge having intimated a desire that this case should be investigated by this court all the papers on file were ordered to be transmitted, with the transcript of record, to this court.

The first and fatal error in these proceedings is, that according to section 14 of the act concerning executors and administrators, on page 310 of the statutes (which is the section under which the petition was filed by said Cox for his appointment as such administrator, in January, 1843), it nowhere appears in the proceedings of the probate court that Samuel Humes, the said executor, after he removed himself without this Territory and became an inhabitant of Pennsylvania, or at any other time, had been required by the judge of probate to come into this Territory and settle his account. On this subject there does not appear to have been any official act of the probate court. What is stated in the petition of Cox, on this subject, is extrajudicial. The judge of probate had no reason for not giving the executor official notice to come into the Territory and settle his accounts, for he, by the previous proceedings in the year 1840 and in Cosí s petition, was apprized of his place of residence in Pennsylvania. And in February, before said Cox had been appointed on his petition such administrator, the said executor filed with the judge his account of said estate. This error is fatal, and, for this reason, the appointment, and letters to said Cox as such administrator, must be vacated and annulled.

This disposes of all. the subsequent proceedings, as they must all be considered as void, the said Cox not having legal authority to petition for and make the sale. But we will proceed to show that the sale should be set aside for other reasons.

Under section 29 of the act concerning executors, administrators and guardians, the probate court, previous to passing on any petition or representation, for the sale of real estate, shall order due notice to be given to all parties concerned, or their guardians, who do not signify their assent to such sale, to show cause at such time and place as shall be appointed, why such license shall not be granted; and in case any person concerned be not an inhabitant of this Territory, nor have any guardian, agent or attorney therein, who may represent him or her, the court may cause the said petition to be continued for a reasonable time, and the petitioner shall give notice of said petition to such absent person as the court may direct, or cause the notice to be published in some newspaper in this Territory three weeks successively. By the record of the order, the notice was to be published in a Grant county paper for three weeks.

The printed notice contains the order for two weeks publication, and the proof of publication is obliterated and altered, so that it is quite probable that the notice was only inserted in that paper for two weeks. But, aside from this, the judge and the petitioner both knew of the place of residence of the executor; and the hearing of the petition should not have been ordered to be had at so short a time, that due notice could not be communicated to him, so as to enable him to be present. Under the law the judge of probate would have been performing an honest duty, to continue the time for hearing, and giving the executor notice of the application. In addition to this error of the probate court, the only evidence he had before him of the debts was the report of the commissioners, who were functus officio, by the removal of Cox from the administration in October, 1840. The report filed by them on the 21st of October, 1840, after the letters to Cox were vacated, was a nullity. Nor were the facts set forth in Cox's petition, for an order of sale, verified by an affidavit. Nor does he return any description of the lands of which the testator died seized. It was also necessary for the order of the court and the license to contain a description of the tract or tracts of land so ordered to be sold. And from the return of sale and subsequent account, it appears that the amount of the sales of different tracts of land, is just made to balance this debt of Cox' s and expenses. It is impossible to resist suspicion of the honesty of these transactions.

The office of judge of probate is one of the most important offices in the Territory, and its duties should be strictly and faithfully performed. Titles must necessarily be dependent in part on the proceedings of courts of probate; for -which reason it is the duty and business of this court, in all cases, to require a strict and legal proceeding in that court. We cannot overlook errors that affect the rights and property of persons, but must reverse them.

It is therefore considered and adjudged by the court, that the judgment’of the district court of Grant county be, and is hereby reversed with costs. And it is ordered by the court now here, that this judgment be certified to the said district court of Grant county, with orders to said court to reverse, annul and vacate the letters of administration on the estate of J ohn Humes, deceased, so issued as aforesaid, to the said George II. Cox, and also all subsequent proceedings thereto, of said Cox as such administrator, in the said probate court, including the sale of said real estate of said John Humes, deceased; and that the said Cox pay all the costs and expenses of this suit and of the said proceedings before the probate court.


source: Caselaw Access Project

author: Miller, J.

license: Public Domain

text:
    Goodhue et al. vs. Grant et al.

    1. Depositions. A deposition, cannot bo read in evidence unless it plainly and satisfactorily appears from the certificate of the justice that all the requirements of the statute have been fully complied with, and no presumption will be indulged in to supply any defect.
    2. Evidence. Tlie docket of a justice and proceedings before him, cannot be admitted in evidence without preliminary proof being first given to sbow tbeir authenticity.
    3. Error. Error is not presumed, but must be made to appear affirmatively.

      EEEOE to the District Court for Green County.
    The deposition of Bennett, which was rejected as evidence, was taken in the presence of the attorneys for the parties, and cross interrogatories were put, and the caption of the deposition stated that the witness was “produced and sworn,” and that “on his oath he deposes and answers the several interrogatories propounded to him as follows.”
    The certificate of the justice did not state any thing as to the swearing of the witness or reading the deposition, and in all other respects, the case is fully stated in the opinion of the court.

      David Noggle, for plaintiff in error.

      A. Hyatt Smith, for defendant in error.
   Miller, J.

The plaintiffs in error were defendants in the district court of Green county.

Upon the trial the defendants offered in evidence the deposition of Michael Bennett, which was objected to by plaintiffs, on the ground that the justice’s certificate does not set forth that the deposition was carefuEy read to witness by the justice, or that he read it himself before signing, which said offer was overruled by the court. This is the first error assigned.

By the act concerning testimony and depositions, it is required that the justice shaE annex to the deposition a certificate of the time and manner of taking it; the person at whose request, and the cause or suit for which it was taken, and the reason for taking it; and stating also whether the adverse party attended, and if not, stating the notice, if any, that was given him. It must also state, according to sections 14 and 16 of the same act, that the deponent was sworn to testify the truth, the whole truth and nothing but the truth; that the said deposition was written by the justice, or by the deponent, or by some disinterested person in the presence and under the direction of the justice; and that the deposition was carefuEy read to, or by the deponent, and that it shall then, be signed by the deponent. It must plainly and satisfactorily appear, from the certificate of the justice, that all the requirements of the statute have been fully complied with, and no presumption will be admitted to supply any defect in the taking of the deposition. There ought to be direct proof that the requisitions of the statute have been complied with, of which the certificate of the justice is made evidence. The rule for taking depositions is adopted for the convenience and benefit of the party, and if he does not bring himself within it he cannot complain. The legislature intended that every part or requisition of the rule should be equally important and binding, consequently, the court cannot relax or change it. Bell v. Morrison, 1 Pet. 351; Pettibone v. Derringer, 4 Wash. C. C. 215; United States v. Smith, 4 Day, 121; 2 Pet. Dig. 41. It not appearing that the deposition had been carefully read to or by the deponent, the court decided correctly in rejecting it.

The defendants then offered in evidence the record of the judgment of a justice of the peace of Green county, with the papers connected therewith. Also, the complaint, writ and bond in a replevin suit before the same justice. It did not appear that the record and papers had been first proven, and the offer was rejected by the court. The record or docket of a justice of the peace must be proven before the court can receive it, or take into consideration the question of its admissibility as competent evidence in the cause. The other reasons for-rejecting the offer did not materially apply, until the proper foundation was first laid for the offer. The legal ground not being first laid, the court could not do otherwise than reject the offer.

The third error assigned, that the court refused to charge the jury as is requested in the first, second and third points, is not properly presented for the consideration of this court. Prom the bill of exceptions, it does not appear what the instructions were. The rule is, that a court of error presumes a judgment and proceedings to be correct, until error is made to appear. For this reason it is the duty of the plaintiff in error to have his case so presented to this court that we can be enabled to detect the error alleged, and dispose of the case understandingly and with proper certainty.

It is ordered that the judgment of the district court be affirmed, with costs.


author: Irvin, J.

text:
    Southwick vs. Berry.
    1. Objections to depositions must be specific. Where a party objects to the reading of a deposition, for the reason that it was not properly taken, he must specifically point out by his objection the defects upon which he relies.
    2. Same. Where it appears that on the trial, in the court below, a general objection was made to the reading of a deposition, and no specific objections appear to have been made as to the manner in which it was taken, it will be presumed that the ruling of the court in overruling such general objection was correct.
    3. Pleading and evidence. A. brought an action of trespass against B. for taking and carrying away his horse, in which B. pleaded the general issue only. At the trial, plaintiff, in order to malee out Ms ease, called as his witness a constable, to prove by him that he seized the horse by B.’s direction, under an attachment, and sold him under an execution against 0., and as his property. Held,fk&t though no plea of justification and of property in C. had been interposed, the witness might state all the facts, and as plaintiff’s witness, testify all he did in relation to taking, and under what authority he seized and sold, and this though the writs and proceedings before the justice under which he acted were not produced or given in evidence.
    ERROR to the District Court for Iowa County.

      BoutTiwick brought an action of trespass against Berry for taking and carrying away Ms horse of the value of $150. The defendant pleaded the general issue only. The plaintiff claimed title to the property by purchase from one Henry A. Turner, and in the course of the trial the plaintiff called John Ryan as a witness, and proved by him that in the spring of 1844 he (Ryan) was a constable of- Iowa county, and had a writ of attachment issued by a justice of the peace of said county in favor of the defendant Berry and against said Turner ; that he went from defendant’s house, by his direction, to take a horse which defendant told him he would find in plaintiff’s stable; that the defendant went with him as far as the public road near Boutlmielc’s and pointed out to witness where he would find the horse ; that witness went to the place pointed out, found the horse, and took him by virtue of the writ of attachment, but did not then remove him; that afterward he had an execution in his hands as such constable, issued upon the judgment obtained by the defendant, against said Turner on said attachment, and levied the same on. the horse; that on the day appointed for the sale, he took the horse from plaintiff’s stable and sold him; that the plaintiff claimed to own the horse, and forbade the sale; that upon such claim of property being made, he required the defendant to indemnify him before he would proceed to sell, and that before the sale, the defendant executed to him a bond of indemnity, which was read to the jury, and is as follows: “Know all men, by these presents, that I, Fortunatus Berry, am held and firmly bound unto John Ryan, constable, in the penal sum of two hundred dollars, on the following condition : Whereas, I, Fortunatus Berry, have caused a writ of attachment to be issued out of the office of Thomas James, a justice of the peace in and for Iowa county and Wisconsin Territory, against the goods and chattels of Henry A. Turner, for the sum of fifty dollars, and that an execution has been issued on judgment obtained thereon, which said execution was directed to John Ryan, constable, and that said execution was levied on a certain bay stallion in the possession of David Boutlmielc, and by him claimed. Now this bond is to say, that if the said John Ryan shall go on and sell said horse according to law, that I, Fortunatus Berry, agree to make said Ryan sure in the sale, and also defend and clear him from all harm or costs.”

      In the course of the examination, the plaintiff objected to said witness stating any thing of the writ of attachment, and the subsequent legal proceedings thereon, on the ground that there was no plea of justification before the jury, and the record and papers of the case were not present, but the court overruled the objection, on the ground that, as the plaintiff had called upon the officer as a witness to state what he did in relation to the alleged trespass, and that his acts, unexplained, might place him in the attitude of a trespasser, the witness might therefore state all the facts and circumstances to show by what authority he did the acts.
    The defendant, in order to make out his defense, offered in evidence the depositions of John Mead and Henry A. Turner. The plaintiff objected to their being read, but did not assign any specific ground of objection. The court overruled the objection, and the depositions were read. The certificate of the justice to Mead’s deposition did not state any thing about’ swearing the witness, but the caption stated that the deponent was “ duly sworn according to law.” The certificate of the justice to Turner’s deposition did not state any thing about swearing the witness, but the caption stated that he was “duly affirmed according to law.” Verdict and judgment for the defendant.

      T. P. Burnett, for plaintiff in error.

      F. J. Dunn, for defendant in error.
   Irvin, J.

This is an action of trespass brought by the plaintiff SoutTiwicTc, against the defendant, for taking and carrying away, etc., a horse.

The issue is made upon the plea of the general issue.

The plaintiff in error makes four assignments of error; the 2d and 3d of which will be first noticed. They are: “The district court erred in admitting the deposition of Henry A. Turner to be read in evidence to the jury;” “The court erred in permitting the deposition of John Mead to be read in evidence to the jury.”

To the reading of said, depositions objection is made, bnt no reasons are offered for the objection. In the absence of all specification of objections, the court will not stop to inquire what they might have been, but will presume the correctness of the ruling of the district court.

The first error assigned is, that “the district court of Iowa county erred in permitting John Eyan, a witness sworn and examined on the trial of the cause, to testify as to the proceedings by attachment in a certain cause before a justice of the peace, in which the said Berry was plaintiff, and Henry A. Turner was defendant, when there was no plea of justification in the cause, and there was no transcript nor original papers of the said proceedings before the said justice, produced before the court and jury on the trial of this cause.”

In the examination of this case, it appears that Eyan was the witness of the plaintiff himself, who, in order to-bring home to the defendant in this case, the trespass complained of, stated in substance, that he had been called on, as a constable, to serve a writ of attachment in favor of the defendant in this case, against one Henry A. Turner; that under the directions of the said Berry, he went to the stable of the said JSoutTiwicTc, and there levied on the horse in question. In his testimony he stated minutely and in detail, all the proceedings had in said attachment. To this evidence we find objection made by the plaintiff himself, as thus stated in the bill of exceptions: “In the course of the examination the plaintiff objected to the witness stating any thing of the writ of attachment and the subsequent legal proceedings thereon, on the ground that there was no plea of justification before the jury, and the record and papers of the case were not present, but the court overruled the objection, on the ground that the plaintiff had himself called the officer as a witness, to state what he did in relation to the alleged trespass. To this ruling of the district court, we see no good objection, and regard the ruling as correct.

The application for a new trial, for refusing which the 4th error is assigned, resting upon matters already noticed and disposed of, the court is of opinion that the judgment of the district court was correct, and that the same be affirmed, with costs.


text:
    Ward and another vs. The Schooner Dolphin.
    1. Lien under boat and vessel act—not assignable. The liability of a boat or vessel under statute of Wisconsin, 168, section 1, for all debts contracted by the owner, etc., on account of supplies furnished for its use, or for work and labor done on board, or “for labor done or materials furnished in building, repairing, fitting out or furnishing or equipping it, exists only in favor of the original creditor, and is a personal privilege which will not pass to his assignee. Caldwell v. Lawrence, 10 Wis. 331.
    2. Same. Where one .paid the orders of the owners of a vessel drawn in favor of persons for their labor, who had labored in repairing a vessel, snch person cannot hold the vessel liable for the amount thus paid, such payment having extinguished the lien which existed in favor of the laborers.
    ERROR to the District Court for Milwaukee County.
    Tiie plaintiffs in this action, who were merchants at Milwaukee, filed their complaint against the schooner “Dolphin” under the statute to provide for the tíollection of demands against boats and vessels, alleging that the “Dolphin” was indebted to them for supplies, etc. furnished the first of June and the first of October, 1841, at the request of John Low and Lester H. Cotton, owners, in the sum of $778.11. The account filed was in part for materials furnished, and which were used to repair the vessel, part for a set of sails purchased in Buffalo and shipped on the steamboat Erie, which was burned and the sails destroyed on Lake Erie and part for payments made to hands who had labored in repairing the vessel, at the requést of the owners, and in part for an amount of a judgment against the vessel, paid by the plaintiffs at the request of the owners. Plea,, non assumpsit with notice of set-off. The plaintiffs’ account was admitted at the trial to be correct, and it was proved that the owners, Low & Cotton, entered into an agreement after the account had been made, that the sums for orders which they had drawn on plaintiffs, and which they had paid were to be a general account against the vessel.
    The court charged the jury that the plaintiffs were “ entitled to recover only for the articles which were actually furnished the vessel by them, and that they were not entitled to recover for the sums paid to the hands who worked on the vessel, nor for the first set of sails which were burned on the Erie on Lake Erie, nor for the judgment paid by plaintiffs.” Yerdict for $220.65, and judgment was entered upon the verdict, and the plaintiffs being dissatisfied with the instructions of the court, sued out a writ of error.

      J. E. Arnold, for plaintiff in error.
    1. The plaintiffs’ entire claim was justly chargeable against the vessel, because it was expressly agreed between the parties that such claim and demand should be a lien on the vessel. A lien may be implied, or it may be by statute, or it may be by contract, and in this case there is a lien by contract. 10 Wend. 318. 2. Most of the charges were a lien upon the vessel by virtue of the statute. They are debts contracted by the owners on account of supplies furnished, labor done and materials used in repairing and fitting out the vessel. 20 Wend. 179, 181; 5 id. 510.

      John H. Tweedy, for defendant in error.
   Irvin, J.

This is a proceeding instituted by the plaintiffs in error under the provisions of the statute of Wisconsin, page 168, and section one, to recover, among other things, money paid by plaintiffs to persons who worked on the said schooner Dolphin in repairing it.

The law above referred to reads thus: “That every boat or vessel used in navigating the waters of this Territory shall be liable:

1st. For all debts contracted by the master, owner, agent or consignee thereof, on account of supplies furnished for the use of such boat or vessel, on account of work done or services rendered on board of such boat or vessel, or on account of labor done, or material furnished by mechanics, tradesmen or others in and for building, repairing, fitting out, furnishing or equipping such boat or vessel.”

The plaintiffs in error were merchants of Milwaukee, where the schooner was refitted, and furnished it with sails, timber, etc., and also paid money to the hands for their work on it, to recover for which, resort was had to the provisions of the statute just recited.

The district court, among other things, charged the jury : “That the plaintiffs were entitled to recover only for the articles which were actually furnished the vessel by them, and that they were not entitled to recover for the sums paid the hands who worked on the vessel.” The objections taken to the balance of the charge are now abandoned, and only the above is insisted on as error.

The statute we conceive to be very plain, and by its provisions, those who furnish supplies for, and those who do work or render services on board of the boat or vessel, or those who labor on and furnish materials for building, fitting out, etc., acquire a lien on the boat or vessel as a security for payment of their several claims. The law gives the lien to such persons, and the law being an innovation upon the common law, we are required to construe it strictly. That the hands who worked on the vessel acquired the lien, there can be no question; but the law being an innovation and special in its provisions, and giving no right to transfer the lien, we conceive, that for the labor done, the hands, and they only, could have taken advantage of its provisions. To extend the lien by transfer to others, would be a material, and therefore unwarranted enlargement of the statute. The payment to the hands in this case was made by the plaintiffs in error, on orders given by the owners of the schooner who conducted its repairs. Those payments extinguished the lien which the hands had upon the vessel, and created a debt between .the owners, who drew the drafts, and the plaintiffs in error. Between the debt thus created and the vessel, we see no connection, and are of opinion that the district court committed no error in the charge to the jury, and therefore affirm its decision, with costs.


text:
    The United States ex rel. McDonald vs. Supervisors of Summit.
    1. Special statutory proceedings. Where a special proceeding is authorized by statute, it is essential to its validity that all the requirements of the statute be strictly complied with.
    2. Assessment of damages in opening highway. The statute requires that a jury selected to assess the damages sustained by a land-owner, on account of laying out and opening a highway over his land shall be composed of freeholders, and that they are such, must affirmatively appear on the face of their proceedings or their acts will be held void. It is not sufficient that the precept of the justice commanded freeholders to be summoned.
    Application for a peremptory mandamus. The facts are fully stated in the opinion of the court.

      J. E. Arnold, for relator.

      A. D. Smith, for respondents.
   Irvin, J.

In this case John D. McEonald filed at this term of the court his petition and application for a mandamus against the supervisors of the town of Summit, in the county of Milwaukee, to compel them to audit and allow the sum of $271.25, which sum had been assessed by a jury as the amount of damages which he had sustained, by the location and opening of a public highway through his land, as described and set forth in his petition. Upon his said petition a rule was issued against said supervisors, to show cause why a peremptory mandamus should not issue against them, to compel them to audit and allow said sum of $271.25. At a subsequent day of this term, said supervisors responded to said rule, and therein wholly deny the legality of the claim of said McDonald, and the liability of the town of Summit to pay it.

In the month of May, 1844, certain freeholders of the town of Summit signed a petition to the commissioners of highways, asking that a road might be laid out across the north-west corner of section No. 21 in said town, and to discontinue a certain road on the north line of said section No. 21. On the 15th day of June-following, the commissioners examined the route, and caused a survey to be made, established a road thereon, and discontinued the old road ; on the 21st, the commissioners assessed the damages sustained by the petitioner (through whose land the road was located) at the sum of $78.13, and on the 27th, gave to him notice thereof. On the 20th day of July, the petitioner applied to a justice of the peace (being dissatisfied with the assessment of damages by the commissioners) for a precept, under the law making provisions for a re-assessment of damages in such cases. On the 22d day of July, the justice issued a precept to C. H. Daily, (a constable of the town of Oconomowoc) tó summon six disinterested freeholders of that town, who were not of kin to the petitioner, to appear before him on the 16th day of August, from which to make a- jury to re-assess the damages sustained by the petitioner in the location of Said road. On the 14th, the constable makes on that precept the following return: “ the within personally served on Jacob Milham, George Sellac, George Trout, Thomas E. Mott, Horace Baldwin, Seth Leonard.

On the 16th, the persons whose names are just recited, appeared, and from them were drawn according to the law Seth Leonard, George Trout, Thomas E. Mott and Horace Baldwin, who composed the jury, and who awarded to the petitioner as his damages, the sum of $271.25 ; payment of which was afterward refused, and to compel which, resort was had to this proceeding by mandamus.

The tenth section of the act, regulating this matter, provides that “if any person, through whose land such road or highway is located, shall consider himself aggrieved by such appraisal or assessment of the damages of such road by the commissioners, he may apply to a justice of the peace within thirty days thereafter, who shall, upon such application, issue a precept to some constable of an adjoining town, neither interested nor of kin to any person interested in the land through which said road is laid, directing him to summon six disinterested freeholders of the town where such constable shall reside, and not of kin to the owner of such land, to re-assess the damages sustained by the laying out of such road,” etc. Among other objections urged in the response of the supervisors to the issuing of a peremptory mandamus, is one in relation to the proper qualifications of those who composed the jury, to wit, that they were not freeholders.

This being a proceeding in pais, and under special provisions of law, it is absolutely necessary that the proceedings should be in strict conformity to the law. 5 Mass. 435. The law required that the jury should be composed of 'freeholders, and it is not enough that such were directed to be summoned, but it must appear, affirmatively, that such were summoned and composed the jury. Upon the examination of this case, it nowhere properly and affirmatively appears that those who composed the jury were freeholders. This objection being fatal, it becomes unnecessary to inquire further into the case.

The mandamus must be denied, and the rule discharged, at the proper costs and charges of the relator.


author: Dunn, C. J. Miller, J.,

text:
    United States ex rel. Smith, sup’t, vs. District Court of Milwaukee County.
    Change of venue. Under the act of January 9,1840, amending Wisconsin statute of 1889, concerning the supreme and district courts, the venue of a cause may he changed more than once, and as often as either party shall satisfy the court that either of the causes enumerated in the statute therefor exists. Miller, J., dissenting.

    This was an application by John Y. Smith, superintendent of territorial property, as relator, for a peremptory writ of mandamus against the district court of Milwaukee county, to command it that it proceed with the trial, and to final judgment of said court, in an action in favor of the Territory of Wisconsin and against James D. Doty, John F. O’Neill and Augustus A. Bird, in a plea of trespass on the case.
    The facts are stated in the opinion of the court.

      Moses M. Strong, for relator.
   Dunn, C. J.

On this application all the preliminary steps are agreed to have been properly taken, and that the answer of the district court of Milwaukee county, as respondent, presents to the consideration of this court the question, whether it had and should have exercised jurisdiction in the case of The Territory of Wisconsin against James D. Doty, John P. O’Neill and Augustus A. Bird, in an action on the case, and from the district court of Walworth county to the said district court of Milwaukee county, on change of venue, allowed on application of the plaintiffs ; it appearing in the record of the case, that one change of venue had previously been granted in the same case, on application of defendants, by the district court of Iowa county to the said district court of Walworth county.

This question involves the construction of the tenth section of the ‘ ‘Act to amend an act of the statutes of 1839, entitled ‘An act concerning the supreme and district courts,’ ” providing for a change of venue in civil causes. This section provides: “If either party, in any civil cause, in law or equity, which maybe pending in any district court m this Territory, shall fear that he will not receive a fair trial in the county in which such cause is pending, on account that the judge is interested or prejudiced, or is related to, or shall have been of counsel for either party, or that the adverse party has an undue influence over the minds of the inhabitants of the county where the action is pending, or that the inhabitants of such county are prejudiced against the applicant, or that a large number of the inhabitants of such county have an interest in the question involved in such suit, adverse to the applicant, so that he cannot expect a fair trial, such party may apply to the court, in term time, or to any judge in vacation by petition, setting forth the cause of application, and praying a change of venue, accompanied by an affidavit verifying the facts in the petition stated; and such court or judge, reasonable notice of the application having been given to the opposite party or his attorney, shall, if satisfied of the truth of the allegations, award a change of venue to some county where the causes complained of do not exist; and in all cases where the judge is interested, or is related to, or has been of counsel for either party, the court in term time, may award a change of venue as aforesaid in their discretion, without any application from either party.”

The eleventh section provides that: “ The district court of the county to which said cause or matter shall be sent for trial, shall proceed to trial in the same manner, and to give judgment and award execution, as though the said cause had not been removed.”

The tenth section, and part of the eleventh section quoted, are all of the act which bear upon the question before the court. With these provisions of the statute before us, we ai-e called upon to decide whether more than one change of venue can be allowed in the same cause.

It is clear that the number of changes is not limited in express terms. Then, do the spirit, intent and meaning of the provisions referred to limit the number of changes ?

We are of opinion that the change is only limited when the legal cause therefor ceases to exist. Whenever a party, in any cause, can satisfy the court, or judge in vacation in the manner prescribed by law, that one of the causes for change of venue expressed in the tenth section really exists, it becomes imperative on the court or judge in vacation to order a change of venue to a county where such cause does not exist. A construction, that only one change is allowed, makes the iaw unmeaning and odiously partial. All the benefits would be extended to one party, probably the more cunning, and the other would be entirely excluded, when the law expressly provides, that either party shall have the advantages of a change, upon making out satisfactorily to the court or judge, one or more of the causes specified in the tenth section. If we determine the changes by any other rule than the real existence of the causes designated in the law, then we make it, what the legislature certainly never intended, a partial and unequal law, giving to the cunning an advantage over the plain, unsuspecting party. The first applicant derives all the benefit of the law, and the other, for whose equal protection it was made, may be seriously injured by being compelled to submit the trial of his rights to a prejudiced or interested court and jury, without remedy or relief. A learned justice has said that “this power is discretionally exercised, so as to prevent, and not to cause, a defect of justice.” 8 Black. Com. 294.

We will suppose that the plaintiff in a cause pending, applies for a change of venue to some other county, upon proper ground, made out to the satisfaction of the court or judge in vacation, and the venue is changed to another county; and when the cause is called for trial, the judge suggests that he is interested with the plaintiff in the cause, or is related to him, or has been of counsel for him, in the identical matter in dispute. The judge of the court cannot exercise the discretion vested in him in. such, cases by the provisions of the tenth section, for this constrnction says there has been one change and yon must try the canse. The defendant cannot object, although the law says he may, for the same construction says there has been one change of venue, not on your application it is true, but there having been one in the cause, you must now submit to have your rights investigated and decided on principles of law expounded by a judge whose interest is adverse to yours, and identical with that of the plaintiff; or a judge who is related to the plaintiff, or a judge who has been of counsel for the plaintiff in the very matter now in litigation between you and the plaintiff.

A construction which would operate so oppressively on one party, and impose upon an upright judge the necessity of trying a cause against every feeling of delicacy and propriety, is certainly not sustained by the spirit, intention and obvious meaning of the act.

No change of venue can be allowed, without a sufficient legal cause, made to appear satisfactorily to the court or judge in vacation. The want of a cause known to the law is the only restriction which we can recognize in the provisions of the law referred to in this opinion.

We think it would have been sound policy in the legislature to have restricted the changes to one in favor of each party, on application, leaving the change at the discretion of the judge (as we now understand it to be), without limit, when either of the causes enumerated exists.

It is not the province of courts to legislate, however, but to pronounce what they understand to be the law.

It is insisted that the provisions in the eleventh section required the judge of the district court of Walworth county imperatively to proceed and try the cause. We do not so understand this provision of the law. The district court of Walworth was “required to proceed to trial, in the same manner, and to give judgment and award executions, as though the said cause had hot been removed.” The obvious meaning of this provision is to place the cause in the district court of the county to which the venue is changed, precisely as though it had originated there, to be proceeded in as other causes in the court, without restriction or limit upon any of the legal rights of either party.

The court to which the application for a change of venue is made must be satisfied of the truth of the allegations upon which the application is based, and herein consists the security against abuse, or causeless change of venue. The application may be made too late, under the rules and practice of the court, for a party may waive his right, by taking other steps in his cause. These are matters of consideration for the court applied to, and after due consideration and an order of change to another county, jurisdiction of the cause immediately attaches to the district court of that county.

We are therefore, of opinion that the said district court of Milwaukee county should have entertained jurisdiction of the said action on the case by the Territory of Wisconsin against James D. Doty, John P. O’Neill, and Augustus A. Bird; and do hereby order and direct that a peremptory writ of mandamus do issue from this court directed to the district court of said Milwaukee county, commanding said court to “ proceed to the trial of said cause in the same manner, and to give judgment and award execution as though the said cause had not been removed.”

Miller, J.,

dissenting. The complainant sets forth, that on the 24th of July, 1839, a suit was commenced in the district court of Iowa county, in favor of and in the name of the Territory of Wisconsin vs. James D. Doty, John P. O’Neill and Augustus A. Bird, in a plea of trespass on the case, returnable to a term of said court to be holden on the first Monday of September, 1839, and that the process was duly served: That the cause was continued in the said court, from term to term, until September, 1841, when, on the application of said defendants, the said court ordered that the venue be changed to Walworth county : That the said cause and papers were transmitted to the clerk of the district court of Walworth county in October, 1841; and in the said district court of Walworth county the cause was continued from term to term, until a term begun and held in said county in April, 1843, when said cause came on for trial; and having been duly tried, a judgment was rendered for the defendants, whereupon the said plaintiff sued out a writ of error from the supreme court, which being duly heard and tried in the supreme court, the said supreme court did order and adjudge, that the said judgment of the district court of Walworth county be reversed, and that the said cause be remanded to the said district court to be proceeded in to final judgment according to law; that on or about the 20th of August, 1844, on the application of the relator, the judge of the district court of Walworth county ordered a change of venue of said cause to the county of Milwaukee, and that the said cause had been transmitted to the clerk of said court, and had been entered on the docket. And at the November term, 1844, of the district court of said county of Milwaukee, the said court decided, that the district court of the county of Walworth had no authority to award said change of venue of said cause, and refused to take jurisdiction of the same, and absolutely refused to try said cause or permit the same to be tried in the said district court for the said county of Milwaukee ; which said determination of the said court was opposed by^ the counsel for the plaintiff in said cause, and was in opposition to the wishes of said counsel, expressed to said court.

The matter was submitted, by consent, to the consider-. ation of this court. The whole difficulty arises out of the “act to amend an act of the statutes of 1839, concerning the supreme and district courts,” approved January 9, 1840. The construction of that act, and the practice that should obtain under it, must now be determined. The tenth section provides: “That if either party in any civil cause in law or equity, which may be pending ' in any district court in this Territory, shall fear that he will not receive a fair trial in the county in which such cause is pending on account the judge is interested or prejudiced, or is related to or shall have been of counsel for either party; or, that the adverse party has an undue influence over the minds of the inhabitants of the county where the action is pending ; or, that the inhabitants of such county are prejudiced against the applicant; or, that a large number of the inhabitants of such county have an interest in the question involved in Said suit, adverse to the applicant, sq that he cannot expect a fair trial ; such party may apply to the court in term time or to any judge in vacation, etc., who shall, if satisfied of the truth of the allegations, award a change of venue, to some county where the causes complained of do not exist.” And by section 11 of the same act, it is made “the duty of the district court of the county to which such cause shall be sent for trial, to proceed to trial, in the same manner, and to give judgment, and award execution, as though the said cause had not been removed.”

These sections of said act do not, in positive terms, limit or restrict the change to one time; but that such is the spirit and meaning thereof, satisfactorily appears. It is certainly the policy of the laws and the duty of the courts to have all judicial business disposed of without any unnecessary or unusual delay or expense. It is not the duty of a court to put such a construction upon a statute as may tend to obstruct or delay the administration of justice. The legislature authorized the removal of causes for the reasons stated in the act, and prescribed the form of the application therefor; but left the time for such removal open, to be disposed of and controlled by the courts, according to well-established practice..

When an application is made to the conrt or judge, reasonable notice is to be given to the opposite party of such application; and if the court or judge is satisfied of the truth of the allegations, a change of venue is to be awarded to some county, where the causes complained of do not exist. And it is made the duty of the district court of the county to which said cause shall be sent for trial, to proceed to trial in the same manner and to give judgment and award execution, in the same manner as if the said cause had not been removed. In this case, when application was made to the judge of the first judicial district, notice must have been given, according to law, to the plaintiff’s attorney of such application, and the cause, after a hearing, was ordered by that judge, to be removed to Walworth county for trial; and in obedience thereto, and according to the power conferred by the act, was tried in the court of said county. The cause was ordered to be removed to Walworth county for trial, and when removed, was entered on the docket of the Walworth court; and the said court under the law, could dispose of it. This law is not to be construed liberally, as it is an extraordinary privilege granted to a suitor. But upon the plain reading of the law, the district court of Walworth, and that court alone, had the power to try and enter judgment, and award execution in the cause. That court has no authority by law to direct it to be transmitted to another county for trial. This cause legally belonged to the jurisdiction of the district court of Iowa county, and was there pending until the judge of that court ordered it to be transmitted to Walworth county — where by the law it was for trial after it was entered on the docket of said court. The statute does not authorize the district court of Walworth county, to order the cause to be removed to Milwaukee, and consequently no jurisdiction can be conferred upon the district court of Milwaukee county.

Such being the opinion of the judge of the district court of Milwaukee, and he being fully satisfied that any trial had in that court would be a nullity, it was his duty to refuse to entertain a void jurisdiction, to the prejudice of the parties, and at the expense and trouble of the public.

If this change to Milwaukee county were construed to be within the spirit and meaning of the law, and according to correct practice, the power of the courts to force causes to trial would become exhausted. A change was effected, in the first place, by the defendants, for prejudice in the people of Iowa county against them. The change to Milwaukee was ordered, on the application of the plaintiff, for prejudice in the people, and an undue influence of the defendants, or some of them, over the minds of the people of Walworth county. Now if this last change is legal and proper, changes can be made, ad infinitum. Petitions for changes, alleging new causes, can be made by each party, whereupon this cause, and every other on the docket, with the necessary train of parties, attorneys and witnesses, may be kept traveling throughout the Territory, without the least prospect of ever being finally disposed of. The poor suitor, who could not find means of following his cause, would be compelled to submit to the power placed by the law, in the hands of his opulent and influential adversary. Having but three judges, an oath of prejudice against them, which can be made, upon a contrary construction of the law, by the parties alternately, puts the cause out of court. It cannot be presumed, that the legislature by this law, authorized such an annoyance to suitors ; such a delay in the administration of justice. It is not to be presumed, that the legislature by this law, opened a door for the corruption, doubtful swearing, and oppression that must necessarily accompany such a proceeding. If this is tolerated, a party can try his hand, in the first place with the judge, by some question of law, and upon a decision against him, the next move may be an application for a change of venue, on the allegation of prejudice in the judge. Then after a trial in the county to which the cause is removed the losing party, as in this case, if a new trial can be obtained, will be sure to apply for a change, on the allegation of prejudice of the people. Thus it is seen, that the law must inevitably be abused, and the administration of justice and our courts must fall into disrepute. A decision of a court, upon a matter of law, is no evidence of prejudice of a judge, nor is the verdict of a jury any evidence of prejudice, or of an undue influence over the minds of the people. A judge is often required to decide the law against persons whom he esteems as his best Mends; and a jury is frequently compelled to render a verdict against the most honest and upright men of their county.

To prevent the abuse and prostration of the administration of justice above alluded to, the rule has long been adopted and enforced, to restrain a defendant from having his cause sent to another justice, in pursuance of section 8 of the act to amend an act concerning justices of the peace, approved January 8, 1840, after he has appeared and filed his plea in the cause before the justice who issued the process. Such a construction was necessary to prevent an abuse of that law, and to prevent a delay of the trial. If on certiorari, the judgment of the second justice has been reversed for this delay in the removal, how much the more certainly should any judgment the district court of Milwaukee county might enter in this case be reversed by the supreme court % This cause was commenced in 1839, has passed from the first district into the second, where it was tried, and after reversal of the judgment by, the supreme court was returned to Walworth county for a second trial; and after the end of five years and all the delays and changes, the supreme court should decide that the district court of Milwaukee could not legally take cognizance of it. It has already been long enough in either of the first or second districts to have been disposed of according to the course of judicial proceedings in this Territory.

In order to prove the propriety of this position, and to show how strict the practice of the courts, in this particular, is, where judicial proceedings are well regulated, I will refer to the established practice in England and the State of New York. In the king’s bench, it is settled that the venue cannot be changed at the instance of the defendant, after plea pleaded, even though he afterward have leave to withdraw his plea, and plead de novo, with a notice of set-off. In the common pleas, the motion is for a rule to show cause, and may be made as in the king’s bench, at any time before plea pleaded. In the exchequer, the court will not change the venue in any. case, when a trial has been had, nor can the defendant in that court change the venue, after having obtained an order for time to plead. 1 Tidd’s Prac. 655.

The statute of the State of New York is in these words: “Actions of slander, for libels and all other' actions for wrongs and upon contracts, shall be tried in the county where the venue shall, be laid, unless the court shall deem it necessary, for the convenience of the parties and their witnesses, or for the purpose of a fair and impartial trial, to order such issues to be tried in some other county; in which case the same shall be tried in the county so designated.” “And the court shall have power to change the venue in any of the actions specified, when it shall appear that a fair and impartial trial cannot be had in the county in which such venue is laid. ’ ’ This law is construed strictly, and enforced in a similar manner. In the case of Lee v. Chipman, 11 Wend. 186, it is decided, that the venue will not be changed, if the motion for that purpose is not made until after issue joined; and it appears that the plaintiff, if successful on the trial, will lose a term in entering his judgment, if the motion be granted. When the object of an order enlarging the time to plead manifestly is to throw a plaintiff over the circuit, a motion to change the venue made in the mean time will be denied. Haywood v. Thayer, 10 Wend. 571. In 18 id. 514, Anonymous, it is decided that a defendant is not bound to move for a change of venue before plea put in, but if he moves after plea, and the effect of his delay is to throw the plaintiff over a circuit, the motion will be denied. The venue will not be changed after issue joined, provided it appear that the plaintiff may lose a term by the delay. Chapin v. De Graaff, 4 Cow. 544; Delavan v. Baldwin, 3 Caines, 104; Rent v. Dodge, 3 Johns. 447. It will appear that although the act of New York is not restricted as to the time of the change, yet the party is required by the courts to apply without delay. Under such a practice, more than one change could not be expected, notwithstanding the law leaves the change to the discretion of the court. Our law being more restrictive in its terms, at least as strict a practice as that in the State of New York should be enforced.

I do not contend, that if the judge to whom the case shall be sent for trial shall labor under a legal disability, he should proceed to trial ;■ but in 'that case, the change had not been legally made, and it would be his duty to order it to be returned to the court from whence it came that it may be ordered to a county of a district where the disability does not exist.

For these reasons I dissent from the opinion of a majority of the court just delivered.


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    Juneau vs. Wells et al.

    Moet&a&e fob, purchase money—defect OF title. Where a grantee ■with covenants of warranty, and against incumbrances, has entered into possession of the premises conveyed, and has not been evicted by paramount title, and there was no fraud or misrepresentation practiced upon him, he cannot be relieved against, nor defeat a mortgage given for the purchase money, on the ground of want of title in his grantor, but must seek redress upon the covenants in his deed.
    APPEAL from the District Court for Milwaukee Couuty.

      Peter Juneau filed his bill in equity against II. N. Wells and others, to foreclose a mortgage given by Wells to him, to secure the payment of $517 and interest, according to the terms of three promissory notes dated April 12,1841. The premises embraced in the mortgage were lots 5 and 9 in block 7, in Milwaukee, on the east side of the river. Wells answered the bill, admitting the, execution of the notes and mortgage, and that they were due and unsatisfied, and alleged that on the 12th of April, 1841, he purchased of complainant the premises mentioned in the mortgage, for $1,700; that the notes and mortgage in question were given to secure the payment of part of the purchase money, and for no other purpose; that complainant executed to him a warranty deed for the premises, with covenants against incumbrances, and that the deed and mortgage and notes were all executed at the same time; that the lots were not, at the said time, clear of incumbrances, but had been assessed and previously sold for taxes, and a certificate of sale had been issued to the purchaser pursuant to law; that such taxes had not been paid, nor the certificate of sale canceled, but that a tax deed had been issued thereon for said lots, pursuant to law, to one James B. Cross, whereby the title of the defendant had been defeated and become vested in Cross; that he had paid nearly $1,200 toward said lots, and had been ready and willing to pay the balance whenever complainant would get up said olaim, and had so informed him, but he had neglected to do it. He prayed that a perpetual injunction might be granted against said notes, etc. The bill was taken as confessed as against the other defendants, and the cause as to the defendant Wells was set down for hearing and heard upon bill and answer. The district court made a decree for the entire amount due on the notes and of foreclosure in the usual form, from which the defendant Wells appealed.

      H. N. Wells, in pro per.

    I. The answer shows that there has been a total failure of the consideration for which the notes and mortgage were given, and the complainant had admitted the answer by not taking issue upon the facts, and going to hearing upon bill and answer. The defendant was entitled to the reiief prayed for, and the court should not have given a decree for the complainant. 5 Bin. 365 ; 11 Johns. 50; 1 Serg. & Bawle, 442; 13 id. 390 ; 16 id. 245; 4 Pet. 328 ; 6 .id. 389 ; 1 id. 382 ; 2 Wheat. 336 ; 1 id. 179.

      Asahel Finch, for appellee.
    1. The defense setup in the answer is available only at law, and is one of which the courts of common law have exclusive jurisdiction! It cannot prevail in equity in a suit brought to foreclose the mortgage. Bum/pus v. Plainer, 1 Johns. Ch. 213; Abbott v. Allen, 2 id. 519 ; 5 id. 31, 268; 4 id. 613; 2 Hopk. Ch. 270.
    2. Where there has been neither fraud or misrepresentation, and a party has taken a deed without covenants of warranty, he is without any remedy either at law or in equity. Bales v. Pelaran, 5 Paige, 300. If the defendant had alleged in his answer an eviction by superior title, then the court might have entertained the defense. Until there has been an eviction he will be left to his remedy on the covenants in his deeds.
   Irvin, J.

In this case the appellee, Peter Juneau, filed his bill in the district court of Milwaukee county, for the foreclosure of a mortgage executed by the appellant to secure the payment of certain notes therein mentioned.

The appellant answered and admitted the execution of ■the mortgage, and the notes, and that the former was given to secure the payment of the latter, which is a part of the purchase money, but resists the foreclosure for the reason, that the appellee had, at the time of selling and conveying to him the subject of the mortgage, to wit: two lots in the town of Milwaukee, executed to him a warranty deed, and that the property was, at the date of said deed, incumbered with a tax sale, upon which a deed has since been given to the purchaser thereof, and that, by reason of said incumbrance, the title had wholly failed, and there was a total failure of consideration. Upon the bill, answer and exhibits, the cause was heard and a decree of foreclosure given, from which an appeal was taken to this court, where the case has been argued on the same ground on which it was below.

It is admitted by the appellant that lie took possession of the property under the deed of conveyance, and has remained in the peaceable and undisturbed possession thereof ever since. Under this state of the case, the only question for us to determine is, whether the mere existence of an incumbrance, unenforced, is a bar to the complainant’s recovery.

In the case of Bumpus v. Platner, 1 Johns. Ch. 213, the principle is decided, that a purchaser of land with warranty of title, who gives a bond and mortgage to secure a part of the purchase money, and takes possession of the land purchased, and has not been evicted by a paramount title, cannot be relieved against the mortgage, on the ground of a failure of consideration for want of title in the vendor. In the case of Abbott v. Allen, the chancellor, in delivering the opinion of the court, says: “This case comes within the general doctrine declared in Bumpus v. Platner, 1 Johns. Ch. 213, 218, that a purchaser of land, who is in possession, cannot have relief here against his contract to pay, on the mere ground of defect of title, without a previous eviction. But without resting on the opinion there delivered, I have again examined the question, inasmuch as the doctrine in that case was doubted by the learned counsel who opposed this motion.

If there be no fraud in the case, the purchaser must resort to his covenants, if he apprehends a failure or defect of title, and wishes relief before eviction. This is not the appropriate tribunal for the trial of titles. It would lead to the greatest inconvenience, and perhaps abuse, if a purchaser in the actual enjoyment of land, and when no third person asserts or takes any measures to assert a hostile claim, can be permitted, on suggestion of a defect, or failure of title, and on the principle of quia timet, to stop the payment of the purchase money, and of all the proceedings at law to recover it. Can this court proceed to try the validity of the outstanding claim, in the absence of the party in whom it is supposed to reside ; or must he be brought into court against his will, to assert or renounce a title which he never asserted, and perhaps never thought of ? I apprehend there is no such practice or doctrine in this court, and that a previous eviction or trial at law is, as a general rule, indispensable.”

The doctrine advanced by the chancellor we regard as the correct doctrine, and as fully applicable to this case: Wagoner v. McEwen, 1 Green’s Ch. 108; Brole v. Servely, 8 Leigh. 658; Grovenour v. Elmendorff, 5 Johns. Ch. 79; Woodruff v. Bunce, 9 Paige, 443; and that the incumbrance suggested is no bar to the complainant’s recovery by the foreclosure of his mortgage. By no rule of law can we regard the consideration of the notes as having wholly failed, and whether it may ever fail, we cannot even conjecture; but should it do so, then the purchaser can resort to his covenants of warranty, which was the security, in contemplation of law, agreed upon by the parties. In the full examination of this case, we see no reason why the complainant should be barred from foreclosure and recovery, nor any reason why the decree of the district court should be disturbed. We therefore affirm the decree with seven per centum damages, and order that the same be so certified to be carried into effect.