text:
    The State, Respondent, vs. Jones, Appellant.
    1. Under our statute, an indictment for murder in the first degree must set forth with accuracy the manner in which the murder was committed; if hy poison or hy lying in wait, it must he so stated, and if hy any other kind of wilful, deliberate and premeditated killing, the circumstances must he set forth intelligibly.
    2. An indictment for murder, which charges that the defendant “ did strike and thrust” the deceased “in and upon the left side of the belly, and also in and upon the right shoulder, giving to the deceased then and there, in and upon the left side of the belly and also in and upon the right shoulder, one mortal wound,” &c., is had.
    3. The part of the body where the wound was inflicted must he set forth with certainty.
    4. Provocation is a question of law. (Stoíe v. Dunn, 18 Mo. Rep., affirmed.)

      Jlppeal from Franklin Circuit Court.

    The case is fully stated in the opinion of Judge Byland. Among a large number of other instructions given by the court below, of its own motion, was the following:
    12. If the jury believe from the evidence, that Jones killed Ashford suddenly, without any or without a considerable provocation, the law implies malice, and the homicide would be murder; but if they believe the provocation was great, they will find him guilty of manslaughter only.
    The 13th instruction was of a similar character.

      J. D. Stevenson, for appellant,
    among others, made the following points : 1. The court erred in leaving the sufficiency of the provocation to the jury. (State v. Bunn, 18 Mo. Rep.) 2. The indictment is bad.

      H. Jl. Clover, for the State,
    insisted that no question could arise upon the instructions as to provocation, the jury having convicted the defendant of murder in the first degree, and as to the sufficiency of the indictment, cited 2 Hale, 185-6. 2 Hawk. P. C. c. 25, §81. 6 Binney, 183. 5 Yerg. 346. 13 Wend. 176. 1 Blackf. 65. Ib. 396.
   Ryland, Judge,

delivered tbe opinion of the court.

Jones was indicted at a special term of the Circuit Court of Eranklin county, in December, 1853, for the murder of Jeremiah W. Ashford. He was tried and convicted of murder in the first degree. A motion for a new trial being made and overruled, he then moved in arrest of judgment, which was also overruled. Exceptions being properly taken, an appeal was prayed and allowed:.

The counsel for the appellant contends that the motion in arrest of judgment should have been sustained, by reason of the insufSciency of the indictment. This indictment is as follows :

“ State of Missouri, county of Eranklin, ss. Eranklin Circuit Court — special term, December, 1853. The grand jurors of, &c., upon their oath present, that JohnH. Jones, late, &c., on, &c., with force and arms, at, &c., “ in and upon one Jeremiah W. Ashford, in the peace of the state, then and there fel-oniously, wilfully and of his malice aforethought, deliberate and premeditatly did make an assault, and that the said John H. Jones, with a-certain knife, which he, the said John H. Jones, in his right hand then and there had and held, the said Jeremiah W. Ashford, in and upon the left side of the belly, and also in and upon the right shoulder of him, the said Jeremiah W. Ash-ford, then and there feloniously, wilfully and deliberate and premeditated, and of his malice aforethought, did strike and thrust, giving to the said Jeremiah W. Ashford, then and there, with the knife aforesaid, in and upon the left side of the belly, and also in and upon the right shoulder of him, the said Jeremiah W. Ashford, one mortal wound, of the breadth of three inches, and of the depth of six inches, of which said mortal wound he, the said Jeremiah W. Ashford, then and there instantly died ; and so the jurors aforesaid, upon their oath aforesaid, say that the said John H. Jones, the said Jeremiah W. Ashford, 'in manner and form aforesaid, feloniously, wilfully and of Ms malice aforethought, deliberate, and premedi-tately did kill and murder, contrary,” &c.

1. Is this indictment, under our statute, sufficient to support a judgment for murder in the first degree ?

A lav,- of the territory of Louisiana, of which territory Missouri was then a part, passed November 4th, 1S08, declared: " That if any person or persons shall, within this territory, commit the crime of wilful murder, such person or persons, on being convicted thereof, shall suffer death.”

In 1825, the legislature of the state of Missouri declared “that every person who shall commit murder within this state shall, on being thereof convicted, suffer death.” R. C. 1825, " Crimes and misdemeanors.”

Under these statutes, an indictment for murder must have been framed as at common law. It required all the formality and particularity and certainty of a common law indictment for murder. We had to resort to the common law to find what' constituted murder, and to test the sufficiency of an indictment therefor by its rules and decisions.

In 1835, the legislature of Missouri declared that " Every murder which shall be committed by means of poison, or by lying in wait, or by any other kind of wilful, deliberate and premeditated killing, or which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, burglary or other felony, shall be deemed murder in the first degree.” All other kinds of murder, at common law, not herein declared to be manslaughter or justifiable or excusable homicide, shall be deemed murder in the second degree.” Under this statute, the practice has been to describe the murder as it is laid down thereby ; if it be committed by means of poison, to state it so ; if by lying in wait, to set it forth.accordingly, and if by any other kind of wilful, deliberate and premeditated killing, to aver it to have been so done.

The first case reported under the statute of 1835, is the case of Bower v. The State, 5 Mo. Rep. 364. Since this case, it has been the practice, in indictments for murder, in order to justify a conviction for that offence, in the first degree, to set forth the offence according to its nature and circumstances, as required by the statute. And, although the offence, as described, be murder in the first degree, yet a conviction for murder in the second degree, or for manslaughter, in any of its degrees, may be supported on such an indictment. Watson v. State, 5 Mo. Rep. 497. State v. Mallerson, 6 Mo. 399.

Although a different practice, under statutes using somewhat similar phrases in declaring what shall be murder in the first degree, and what in the second degree, has prevailed in the states of Pennsylvania, New York and Tennessee, (See Com. v. White, 6 Binney, 183. The People v. Enoch, 13 Wend. 159. Mitchell v. State, 5 Yerg. 340,) yet we consider it safest to follow the practice which has prevailed so long in our own state.

The. indictment, then, in this case, is not sufficient to sustain a judgment which deprives the defendant of life. It is not drawn with accuracy sufficient. The words describing the of-fence are not sensible. Not only are the words used in the description of the offence, in the manner and form in which they are used, ungrammatical, but some of these words are not known and recognized as common English words.

2. There is another defect in this indictment which is fatal, even if we could suppose these omissions and words of des-scription were only clerical blunders. I mean its repugnan-cy. The indictment charges that the defendant, of his malice aforethought, “did strike and thrust” the deceased, “in and upon the left side of the belly, and also in and upon the right shoulder, giving to the deceased, then and there, in and upon the left side of the belly, and also in and upon the right shoulder, one mortal wound, of the breadth of three inches, and of the depth of six inches, of which mortal wound he then and there instantly died.” Now the indictment avers the giving of but one mortal wound by the blows and thrusts, and describes this as being given “ on the left side of the belly,” and also as being given on “theright shoulder,” yet this wound is but of the breadth of three inches, and of the depth of six inches. Where was this mortal wound giren? Was it on the right shoulder? If so, it could not be on the left side of the belly. Was it on the left side of the belly ? If so, it could not be on the right shoulder; yet it is charged to be on both, which is inconsistent and repugnant.

In the case of Dias v. The State, 7 Blackf. 20, the defendants, Samuel Dias and Hannah Gillman, were indicted for the murder of George Brock. The indictment charged, “ That the said Samuel Dias and the said Hannah Gillman, with a certain axe, &c., the said George Brock, in and upon the left side of the head and over the left temple of him, the said George Brock, then and there feloniously and wilfully, and of their malice aforethought, did strike and beat, giving to the said George Brock, then and there, with the axe aforesaid, in and upon the right side of the head, of him, the said George Brock, and over the right temple of him, the said George Brock, one mortal wound, of the depth of three inches and of the breadth of six inches, of which said mortal wound the said George Brock, &c., on, &c., died.”- The charges are, that the persons indicted struck the deceased with an axe on the left side of the head, and over the left temple, giving to him, then and there, with said axe, on the right side of the head, and over the right temple, a mortal wound. Blackford, J., says, (after stating the case as above,) “ there is in this part of the count a manifest repugnancy in the description of the offence as to the place of the wound; the first part of the sentence, that is, that the persons indicted struck the deceased with an axe on the left side of the head,’ &c., being inconsistent with what follows, viz: their giving him then and there, with said axe, on the right side of the head, &c., a mortal wound ; and this repugnancy occurs as it must occur, to be fatal, in a material part of the count; for the part of the body to which the violence was applied must be stated, and even if the wound be alleged to have been on the arm, hand, &e., without saying whether right or left, the indictment is bad. The proof, to be sure, need not correspond in this, respect with the allegation, but the allegation itselE cannot be dispensed with in the indictment.” 3 Chitty Crim. L. 735. Arch. Crim. PI. 384.

3. Where the death is charged to have been occasioned by a wound, a description of the wound must be set forth in the indictment, its length, breadth, depth, &c., where they are capable of description, and the omission of such description is fatal to the indictment; but where the death was occasioned by a bruise, a description of its dimensions is not necessary. The State v. John Owen, 1Murphy, 452. State v. Moses, 2 Devereux, 463. In this last case, Judge Ruffin cites the case. of the State v. Owen, 1 Murphy, 452, and says that, at. common law it was a fatal defect to omit to allege the depth of the wound in the indictment, but that the legislature had; changed the law in that state since the case of the State v. Owen, and the decision in Owen’s case gave rise to the change.. There can be no doubt but that at common law it was necessary for an indictment for murder to set forth in what part of the body the wound was given. See 2 Haw. Pleas Crown, ch. 23, sec. 80. 4 Coke, 40, Young’s case. In the case of Rex v. Tomlinson, 6 Carrington & Payne, 370, (25 Eng. Com. Law Rep. 442,) Godson, for the prisoner, submitted “that the indictment was bad, because it did not state the depth of the wound,” but it was answered by the court “ that.common sense did not require the. length, breadth and depth of the wounds to be stated; therefore it was not necessary they should be stated.” Still the part of the body .where the violence was inflicted must, be set forth with certainty.

I do not deem it necessary to cite authorities upon this matter, more than what has already been done above.. This case is very similar to the one from Blackford, Dias v. State. Here it is impossible to say where the mortal wound was inflicted ; it is averred but one mortal wound was given, and that one on the left side of the belly, and on the right shoulder.

4. As the judgment will be reversed, itbecomes necessary to notice some instructions of which the defendant below complains.

In the case of Dunn v. State, decided at Jefferson City at July term of this court, 1853, (18 Mo. Rep.) it was held, that, it was error to submit questions of law to a jury. In the language of the court, delivered by Judge Scott, it is said:

“A question of law should not be referred to a jury. "What is a sufficient provocation to make what otherwise would be murder, a less offence, is a question of law. The facts are found by the jury, and the court declares the law arising thence upon them, as they may be found. There can be no difficulty in such cases ; if there is evidence tending to establish the facts constituting a provocation sufficient to extenuate murder, the jury should be instructed hypothetically. If the opinion of the court is so, the jury should be directed that, if they believe the facts (recapitulating them) are established, which constituted the provocation, they should find according to the degree of extenuation such facts make in law. To tell the jury that, if the killing was done without sufficient provocation, it is murder, without informing them whether the facts offered in evidence, if established to their satisfaction, would constitute a provocation, is leaving them to determine what is a sufficient provocation to extenuate murder. They may think one thing or another, or any act, however venial, would be a sufficient provocation. So the definition of murder would depend, in each case, upon the passions or prejudices of jurors.”

The instructions given in this case, wherein the sufficient provocation is left to the jury, are, therefore, wrong. The instructions given by the court are very favorable for the prisoner, and, with the exception of leaving what is a sufficient provocation to extenuate murder to be considered by the jury, there is nothing contained in them of which the defendant below could properly complain. They were more favorable for him than the law strictly authorized. “ Whenever it appears from the whole evidence, that the crime was at the moment deliberately or intentionally executed, tbe killing is murder in the first degree.” State v. Dunn, 18 Mo. Rep. 419.

It is deserving of serious reprehension to string out a case before a jury with instructions from one to twenty-six in number. A' mind comprehending the facts of the ease and the law arising thereon, cap, with a few plain propositions lay the main questions before a jury, so as to enable them to arrive at a just and proper conclusion. The law, in this case, could have been explained and laid before the jury in less than half a dozen instructions.

Let the judgment of the court below be reversed, and the ease remanded ; the other judges concurring.


source: Caselaw Access Project

author: Gamble, Judge,

license: Public Domain

text:
    Robards, Respondent, vs. Munson, Appellant.
    1. If a material averment permitted to be inserted in a petition at the trial byway of amendment is unanswered, it is to be taken as admitted. But if the answer contains a defence to the petition with the additional averment, the court should proceed to try the case in the same manner as if the averment had been in the petition at first and was unanswered.

      Hppeal from Hannibal Court of Common Pleas.

    The case is stated in. the opinion of the court.

      Lakenan, for appellant.

      JR. P. Richmond, for respondent.
   Gamble, Judge,

delivered the opinion of the court..

This action was founded upon an agreement in writing between the parties, by which Robards was to take Munson to California, furnish him by the way with transportation and subsistence, and Munson was to perform many duties on the road which are specified, and after his arrival in California, was to labor under the control and supervision of Robards, and give him one half of the proceeds of his labor. The agreement contains many stipulations on each sido. The petition alleges performance by the plaintiff of the stipulations of the agreement on his part, and several breaches of contract by the defendant, particularly charging the defendant with abandoning him on the way and failing to work for him in California. The defendant answers the petition, and in his answer, after denying the allegations of the petition, which aver performance by plaintiff, and after averring performance by defendant, he sets up several distinct breaches of the contract by the plaintiff, in failing to furnish the necessary food, transportation and accommodation by the way. The parties went to trial before a jury, and while it was in progress, the plaintiff amended his petition by correcting a mistake (as to place) made in one of the allegations in his petition, and by averring the performance, on his part, of one of the stipulations in the agreement, which he had not specifically averred in hip original petition. There was not a new petition filed, but merely a paper containing the correction of the mistake in the original petition and the additional averment.

The defendant demurred to this amendment, and the court overruled the demurrer, and upon failure to answer, gave judgment upon the additional averment for a sum which was stated in it to be the expense incurred by the plaintiff by his performance, which, in that averment, was alleged. What is very remarkable in the case is, that the amendment, which was evidently a mere addition to the original petition, and contains no charge of breach of contract by defendant, is treated as a complete petition, and judgment is given upon it for the plaintiff, for an amount stated in it to have been expended by the plaintiff, and the court then directs the trial to proceed before the jury on the original petition and answer, and instructs the jury that the plaintiff cannot recover on his original petition, because he has already had judgment on the amendment. The jury, accordingly, found a verdict for the defendant, and judgment was given for him on the only petition which alleges any breach of contract by defendant. The parties each excepted to the decisions of the court, and the present appeal is prosecuted by tbe defendant.'

1. The whole proceeding is wrong. The amendment to the petition was but the insertion of an additional averment in it, and if it was material, and was not answered, it was to be taken as admitted; but still, if the answer contained a defence to the petition, with this additional averment in it, the court should have proceeded to try the case just as it would have done if this averment had been in it at first, and was unanswered. The answer, in its denial of performance by plaintiff, and allegations of distinct failures to perform on his part, and in the averment of performance by defendant, or excuses for non-performance, such as consent by plaintiff, contained a defence which should have been tried, notwithstanding the amendment. The judgment against the defendant, as this record stands, is given upon a petition (if the amendment is to be regarded as a distinct petition,) which does not allege that the defendant has violated his agreement. So, the instruction given by the court, that the plaintiff could not recover on his original petition, grew out of the first error in giving judgment for the plaintiff on his amendment. The judgment of the Court of Common Pleas of the city of Hannibal, against the defendant, which is all that we can reach on this appeal, is. reversed, and the cause remanded.


author: Scott, Judge,

text:
    Phillips & Ray, Plaintiffs in Error, vs. Jones’ Administrator, Defendant in Error.
    1-. A. owning a share of the outfit of a California gold company, executed to B. a writing, hy which he sold “one half of his interest in the company.” A subsequent clause provided that B. should not he a partner in the company, hut only “purchaser of one half A.’s interest in the metals and ores” that might he obtained. B.eld, A.’s interest in the outfit did not pass.

      Error to Marion Circuit Court.

    In 1849, Jones and others formed a joint stock company, for the purpose of going to California in quest of precious metals. Jones owned one share and a half of the outfit, to pay for which, he borrowed $500 of Phillips & Ray, in consideration of which he executed to them a writing, by which he sold “ one half his interest” in the company, and authorized them to receive from the manager or managers of said company “one half of all the gold'or silver, ores or metals,” to which he might be entitled on account of his one share and a half. A subsequent clause was as follows: “It is further agreed, that said Phillips & Ray are not partners in said company, but are only purchasers of one half said Jones’ interest in the metals and ores that may be by him obtained as his share in the company.” While the • company were on their way to California, Jones died. The surviving members proceeded on to California, where they immediately sold their joint outfit and dissolved. Jones’ proportion of the proceeds of the outfit was paid to George.W. Lane, who afterwards executed to the administrator of Jones his note for the amount. The present suit was begun by Jones’ administrator against Lane upon the note. Lane answered, admitting the execution of the note, but setting up the claim of Phillips & Ray, and praying that the parties might be compelled to interplead. Phillips & Ray thereupon filed their interplea, claiming the amount of the note, upon which an-issue was made and found against them, the court refusing to instruct the jury, as ashed, that the writing vested in Phillips & Ray one half of Jones’ share in the outfit of the company. ■ The interpleaders sued out this writ of error.

      Glover & Richardson, for plaintiffs in error.
    1. The conveyance by Jones to Phillips & Ray passed to them one half of his interest in the outfit of the company. This was the only interest in the company which Jones then had. It could not have been designed to leave out of the conveyance the outfit which the grantees had just advanced the money to pay for. 2. As the parties have consented that an issue should be made upon the interplea for the settlement of their rights, this court should now pass upon them.

      T. L. Anderson, for defendant in error.
    By the express terms of the agreement, Phillips & Ray were not partners, and the only interest they acquired was in the- ores, metals, &c.
   Scott, Judge,

delivered the opinion of the court.

As the question was not raised, we will not determine whether this was a proper case for an interpleader, and whether Lane would not have been entirely justified by the law in paying the note to the administrator, to whom he gave it. We are of the opinion that no part of the proceeds of the note belonged to the plaintiffs in error, Phillips & Ray. The first clause in the agreement, by which Jones, the intestate, conveyed to the plaintiffs in error one half of his interest in the California company, was, no doubt, sufficiently comprehensive to have included an interest in the stock of the company. But after these general words, it is stipulated, and that, too, it would seem, with a view to explain what had gone before, that Phillips & Ray should not be partners in the company, but only purchasers of one half of said Jones’ interest in the metals and ores, that might be by Jones acquired as his share in the said company. Phillips & Ray could not but be partners, if they owned a share of the stock of the company. • The only way to give effect to this stipulation would be, to divest them of all interest in the stock or outfit. But the subsequent words place the matter beyond all doubt. They were not to be partners, but only purchasers of one half of Jones’ interest in the metals and ores that might be obtained as his share. The rule that every part of an instrument should have effect, in interpreting it, must be subservient to the more important rule, which requires that the whole deed must be taken together, in order to ascertain the intent of the parties.

The judgment is affinned, the other judges concurring.


author: Ryland, Judge,

text:
    The Hannibal and St. Joseph Railroad Co., Defendant in Error, vs. Morton, Plaintiff in Error.

    1. Under the charter of the Hannibal and St. Joseph railroad company, (Ses. Acts 1847, p. 156,) a writ of error does not lie to the action of the judge of the circuit court upon the report of the viewers appointed to assess damages to individuals over whose land the road is run. The judgment entered upon the report is final.

      Error to Marion Circuit Court.

    This was a proceeding by the Hannibal and St. Joseph Railroad Company, under their charter, to run their road through the land of Samuel Morton. The proceeding was begun before the judge, during the sitting of the Marion Circuit Court. The entry upon the record, after the title of the cause, states that the notice to the judge was given by “ Joshu.a Gentry, agent of said company,” and that said agent prayed the appointment of viewers “to examine and view said land and assess the damages done thereto by reason of the location and construction of said road and that thereupon the court appointed viewers, who came and took the oath required by the charter of said company.
    On the 28th of April, 1854, the viewers filed with the clerk in vacation their report of the damages assessed by them. On the 3d of May, Morton filed his objections to the report, which were sustained by the judge, and new viewers appointed “ to review and examine the lands of the defendant, and assess the damages done thereto, by the construction and location of said road over the same, and report thereon.” On the 1st of July, these reviewers filed their report with the clerk in vacation. The report, after reciting that they had been appointed to examine the land of Morton “ and report what damages loill he

      done thereto by reason of the construction of the road,” &c., states that, having first taken an “ oath faithfully and impartially to discharge the duties” of their appointment, they went upon and examined the lands of Morton, and assessed “the damages done to said lands, by reason of the location and construction of said road over the same,” at $150, &c.
    On the 4th of July, Morton filed with the clerk in vacation his objections to this report. On the 6th of July, the clerk in vacation entered judgment upon the report. On the 24th of August, before the judge of the Circuit Court, which was then sitting, Morton filed his motion to set aside the judgment entered by the clerk in vacation, which was overruled. He then filed a motion to set aside the report, and also “ a motion for leave to introduce proof as to damages found by commissioners,” both of which motions were overruled. He then filed his bill of exceptions, and sued out this writ of error.

      Glover & Richardson, for plaintiff in error.
    1. The whole proceedings in this case are null and void, because not instituted in the name of the corporation, as required by the charter, but in that of the agent of the corporation. 2. The order appointing the second viewers was illegal, in directing them to assess the damages done to Morton’s land, not the damages ■that will be done, as required by the charter. 3. The report of the second viewers is irregular and illegal on its fane, in this, that it did not appear that they ever became qualified to act by taking and subscribing the statutory oath. 4. The judgment entered by the clerk in vacation upon the report of the second viewers was in direct violation of the statute. 5. The statute allows but one review of the evidence touching the extent of the damages ; but if the proceedings of the viewers are irregular or illegal, and this appears upon the face of their report, it should be set aside.

      Richmond, for defendant in error.
    All the requisitions of the charter were substantially complied with. The report of the viewers, though subject to a verbal criticism, shows on its face that they had in contemplation all the damage Morton would sustain on account of the location and construction of the road through his property. Any informalities in the early stages of the proceeding were waived by the' appearance and objections of Morton.

       Another case by the same company against David Morton, of precisely the same character with the above, was decided at the same time, the writ of error being dismissed.

   Ryland, Judge,

delivered the opinion of the court.

This was a proceeding by the Hannibal and St. Joseph Railroad Company to have the said road laid out through the lands of the defendant, Samuel Morton, and to have viewers appointed to assess the damages, if any, which the construction of the road will do to the lands of said Morton. This proceeding was under the charter of said railroad company. This company was incorporated by the legislature in 1847. By its charter, the company has power “ to view, lay out and construct a railroad from St. Joseph to Palmyra, thence to Hannibal; and shall, in. all things, be subjected to the same restrictions and entitled to all the privileges, rights and immunities which were granted to the Louisiana and Columbia railroad company by an act entitled “An act to incorporate the Louisiana and Columbia railroad company, passed at the session of the general assembly in 1836 and ’37, approved January 27, 1837.”

The 8th and 9th sections of this last act are as follows :

§8. In all cases where any person through whose lands said road or any branch thereof may run, shall refuse to relinquish the quantity aforesaid, or when no contract can be made with the owner thereof, either on account of the absence of such owner, or being an infant, or of unsound mind, or a married woman, or from any other cause whatever, it shall be lawful for the company to give notice thereof to the judge of the circuit court within which-the lands lie ; and it shall be the duty of the judge thereupon to appoint three discreet, disinterested men, citizens of the county, to examine and view said lands, upon a day to be given by said viewers designated. At least ten days’ notice of the time of making said view, shall be given to the owner of such lands, if a resident of the county; if a non-re-siáent of tbe county, notice shall be served upon tbe tenant residing on tbe land ; and if the owner is a non-resident of tbe county and no tenant is residing on tbe land, notice shall be given by an advertisement in some newspaper in or nearest to tbe county in which tbe lands lie. In the case of any lands belonging to any married woman, notice shall be served upon her husband. In tbe case of infants, or persons of unsound mind, notice shall be served on the guardian of such infant or persons of unsound mind ; and where there is no guardian of such persons, the judge, shall appoint some suitable person to act in their behalf.

§9. The viewers appointed by this act shall, severally, before entering upon the duties of their appointment, take and subscribe an oath, faithfully and impartially to discharge the duties of their appointment, and particularly, to honestly assess the damages, if any there are, which the construction of the road will do to the lands of such owner, taking into their estimate the advantages as well as the disadvantages the said road may be to be the same. It shall be the duty of said viewers to go upon the said lands and examine the same, and report what damages, if any, will be done to said lands or any building or appurtenance thereon; which report shall be accompanied with a plat of the land viewed and returned into the office of the clerk of the circuit court of the county ; and the clerk shall file the same and enter judgment on the record of the court for the amount thereof, which shall be final and conclusive between the parties, unless they shall file in writing with the clerk, within five days after the making of the view, their objections to the same; and whenever any objections shall be thus filed, it shall be the duty of the judge to examine the same, as soon thereafter as may be, either in vacation or term time, and may hear testimony thereon, and if the judge shall find the objections sufficient and legal, he shall order a review by three other viewers, who shall proceed in the same manner as hereinbefore provided ; but not more than one review shall be granted to the same person; and if the judge shall find said objections not to be just or sufficient, he shall direct judgment to be entered according to the report. In all cases, the cleric shall not enter judgment until the five days for filing objections shall have passed.

These are the provisions of the charter which allow the proceedings in this case. Here the circuit judge appointed viewers ; they make their report; the party owning the land, Samuel Morton, files his objections to the report; the citcuit judge, upon examination of the objections, sets aside the report-, and appoints a new set of viewers ; they make their report; Samuel Morton again files his objections to this second report with the clerk of the circuit court, and moves for leave to introduce proof in regard to the assessment of damages. His motion and objections to the report are overruled, and the clerk enters the judgment for $150, in favor of Morton, against the company. Samuel Morton, having excepted to the acts of the judge and clerk, brings the case here by writ of error.

1. In the opinion of this court, a writ of error will not lie in this case. This whole proceeding is of the nature of proceedings in pais. These acts are not done by a court’; no judgments of a court are required to be given or rendered in such proceedings. The judge and not the circuit court is to act. He may act in his chambers. The clerk is to act, and not merely to record the proceedings of the court; and what these persons may do was, in contemplation of the law makers, final in certain events. The general rule is, that a writ of error will lie only on a final judgment, or an award in the nature of a judgment, given in a court of record, acting according to the course of'the common law. In England, it is well settled, that error does not lie when the court acts in a summary manner, or in a new course, different from the common law. Now, in this case before us, there is no act of any court. It is a summary proceeding before a judge in vacation, and under a special authority by statute, in which the intention is obvious that the.acts of the judge should be final.

It has been held in New York, that a writ of error does not lie upon the refusal of the-Supreme Court to set aside the de-fisión of trustees under the statute relative to absconding debtors, upon an allegation of error in the adjustment of the demands due the creditors of the absconding debtor, although the statutes of New York declare writs of error to be writs of right, ^s well upon a determination, as upon a final judgment in civil cases. 2 Rev. Stat. 591, §1. 10 Wend. Rep. 34.

In Connecticut, it was held that, though under the charter of the Hartford and New Haven railroad company, the quantity of land taken for the road must be designated, so that the freeholders may know what to appraise before the damages can be legally assessed, yet the charter does not require the width of the road to be determined before the route is approved by the commissioners, and the freeholders to assess the damages are appointed. The appointment of freeholders to assess the damages, in such a ease, is not the subject of revision by writ of error. 13 Conn. Rep. 110.

Upon the whole, then, this court is of opinion, that the writ of error will not lie .in this case. The same is accordingly dismissed; the other judges concurring.


text:
    Wade, Appellant, vs. Jones, Respondent.
    1. A man may be the “head of a family,” within the meaning of the execution exemption act, though he has neither wife nor children.
    2. A widowed sister keeping house for her brother, is a “ member of his family,” upon whom process may be served.

      •Appeal from Lincoln Circuit Court:

    This was an action begun by Wade, to recover the value of personal property, consisting of a negro woman, two cows and their calves, and a lot of bacon and other articles, alleged to have been wrongfully taken by Jones, the defendant. Jones answered that he took the property as constable, under an execution issued by a justice of the peace, and directed to him. The cause was submitted to the court upon an agreed statement of facts, which was substantially as follows :
    The property was levied upon and sold under a regular execution, directed to the defendant. At the time of the levy, plaintiff was living on and cultivating a rented piece of- ground* He had no wife nor child. His widowed'sister, with four small children, lived with him and kept house for him, having no other home. He supported her and her children. The property levied upon did not exceed the value of eighty-seven dollars, and plaintiff had no other property to exceed the value of ten dollars.
    Upon these facts the court below gave judgment for the defendant, and the plaintiff appealed.

      J. O. Broadhead, for appellant.
    There is no reason, to be drawn either from the language or the policy of the law, why the words " head of a family” should be applied only to the father or husband. A family is a collection of individuals, having a common head. (1 Burrill’s Law Die. p. 470.) This common head may be a father or brother of any other near relative to whom, by the customs of society, the weak and helpless, whether women or children, may look for protection. (2 Bur. Law Die. p. 785.) The members of the family do not consist merely of those whom the head of the family is under some legal obligation to protect. A father, who has living with him a family of grown daughters, is certainly the “ head of a family,” and yet he is under.no legal obligation to support them. (See also Lambert on Dower, p. 11.)

      E. Hunt and W. Porter, for respondent.
    The “ family” contemplated by the act is that only which grows out of the marriage relations — which constitutes a legal charge on its head. It was the better to enable the husband and father (or mother, if the father be dead or absent,) to discharge these legal obligations, that our legislature enacted these exempting acts. Plaintiff was not the head of his sister’s family; she was the head of her own family; she was the natural guardian of her children, and had the right to direct and control them, until otherwise directed by a court of competent authority. She did not, by living with plaintiff, lose any of her legal rights and privileges. If an execution had been levied on her property, she could, as head of her little family, have claimed an exemption of it from sale. Her family was not broken up and separated from her, but was living with her, and the fact of her not occupying her own house did not deprive her of her rights as head of her own family. ( Woodward v. Murray, 18 J. R. 400.) If her family exempted her own property from sale, surely the same family could not exempt the property of the plaintiff.
   Ryland, Judge,

delivered the opinion of the court.

1. We have no doubt, from the above agreed statement of facts, that the plaintiff comes within the meaning of the phrase “head of a family,” and that he should have been so considered by the court below.

The Supreme Court of Tennessee, in 1842, in 'the case of Bachman v. Crawford, (3 Humph. 216,) held the following language: “When a man controls, supervises and manages the affairs about a house, he is, in the largest sense, the head of the family, and all who reside in the house are members of the family. But it may be a large boarding establishment, in which half a dozen distinct families reside. We do not suppose that these families lose their character as such, because they reside under another man’s roof, and fee.d at a common table. So two families, with equal rights and claims, may reside together, and although thus associated, they all constitute, in a large sense, one family ; still the father or mother, as the case may he, exercising a distinct control over the children and servants belonging to them, constitutes each a distinct family, and the manager of each, a ‘head of a family.’ ”

In the case of Bachman v. Crawford, (3 Humph. 216,) the court below charged the jury, “ that if the plaintiff had children, who were living with her at the time the levy was made, although she resided in the same house with her father,, and although he might claim and exercise- absolute dominion and control over the house and farm, still the plaintiff being the mother of children residing with her, would, within the meaning of the statute, be considered as the head of her own family, and within the exemption of the statute, and that there might' be two families residing together, in the same house, and occupying the same apartments.” This charge was held correct by the Supreme Court.

In the case of Sallee v. Waters, (17 Ala. Rep. 486,). the jury found, “that Curtis had one child dependent on him for a support; but that he had no wife, nor did be keep house ; but he and his child boarded at different houses, in the tovm> of Greenville.” The court said upon this question, as to Curtis-being the head of a family, from these facts found by the jury,, “we think it clear that he was.” But in the same case, the-court said, to constitute a family, within the meaning of the act (exempting property from execution,) the relation of parent and child, or that of husband and wife, must exist; there must be a condition of dependence on one or the other of these relations ; but it is not necessary that all the defendants should live under the same roof:, or that the family should live together ; it' is the relation, and the dependence on that relation, and not the aggregation of the individuals, that constitutes a family.”

In our opinion, it is not necessary that the relation of husband and wife, or father and child, or mother and child, should exist in every case, to constitute a family. The man who-controls, supervises and manages the affairs about the house, is the head of a family, and such a man need not necessarily he a husband or a father. Much more does such a man assume the station and rank and responsibilities of the head of a family, than a father only, who has but one child, no. wife, keeps no house, but boards out .himself with one family, his child boarding with another family in the same village.

Here the brother, the plaintiff, had his widowed sister and Iier children living with Mm ; lie was keeping bouse and cultivating a small piece of ground, and provided for and supported his sister and her four small children ; the sister kept house for him. He must be considered as the controller, manager and supervisor about the house, and the head of the family-

2. Our law prescribes the mode in whieh -defendants shall be served with the process issuing on petitions.. .The third and last method prescribed is as follows : thirdly, by leaving such copy at the usual place of abode of the defendant, with, •some white person of his family, -above the age of fifteen years.”

Suppose this plaintiff had been sued himself, and the sheriff had served the process by leaving a copy thereof with the defendant’s sister, Mrs. Carter, at his usual place of abode., and! stating she was a member -of his family, and a white person over the age'of fifteen years ; -could there be a doubt about the. legality of such service ? Could the defendant have convinced the court, from the facts agreed to in this record, that he had no family, and consequently the service was not sufficient?. Clearly not. Then, if he has a family sufficient for this purpose, the same must serve him for other purposes.

We have no doubt the facts agreed to constitute this plaintiff " the head of a family,” in the meaning and contemplation of the act, and therefore that the court below erred in declaring the law for the defendant.

The judgment is, with the concurrence of the other judges,, reversed, and the case remanded for further proceedings, in accordance with the views expressed herein.


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    James & Jewett, Respondents, vs. Dixon, Appellant.
    1. An injunction does not lie to restrain- a trespass upon,a franchise, unless the.. trespasser is insolvent or the injury irreparable.

      ■Appeal from Jefferson Circuit Court.

    This was a petition for an injunction to restrain Dixon from selling and shipping wood on and from the “ Selma landing,” to which the petitioners claimed an exclusive right for that purpose. The petition alleged that the defendants were utterly insolvent.
    At the hearing, the court found the following'facts : On or about January 23, 1850; Dixon and Skeel entered into a partnership in the business of cutting cord wood and selling it to steamboats on the Mississippi river, and for that purpose took a lease from the owner of the Selma landing, which gave them the exclusive privilege of selling wood on said landing until November 5, 1854. Dixon & Skeel continued to cut and sell wood, as partners, until October, 1851, when Skeel died. Letters of administration were taken out on his estate. After the refusal of the surviving partner to administer upon the partnership effects, the administrator took them into possession, and sold the unexpired term of the lease in question at public auction, having first given notice, and the plaintiffs became the purchasers, and received a bill of sale. At the time of the sale, arrears of rent were due to the owner, which had been allowed ■.against Skeel’s estate. After the purchase by plaintiffs, defendant continued to sell wood upon the landing upon his own -separate account, and refused to surrender it to the plaintiffs ■orto account with them.
    Upon these facts, the court declared that the plaintiffs were entitled to the exclusive enjoyment of the franchise, and granted a perpetual injunction, and gave judgment for the possession.

      Noell and Pipkin, for appellant,
    contended that the lease was not partnership property, and could not be sold as such by .Skeel’s administrator.

      .Frissell and Jones, for respondent.
   Scott, Judge,

delivered the opinion of the court.

'The only circumstance that could have warranted an injunction in this cause, was the alleged insolvency of the defendant. As that fact was not found by the court, there was no ground for an injunction. An action in the nature of an action on the case (as the property affected was incorporeal) would have afforded ample redress to the plaintiffs. The case, stripped of the allegation of insolvency, furnished no ground whatever for an injunction. An injunction is not granted to restrain a mere trespass, where the injury is not irreparable and destructive to the plaintiff’s estate; but is susceptible of perfect pecuniary compensation, and for which a party can obtain adequate satisfaction in -the ordinary course of law. It must be a strong and peculiar case of trespass, going to the destruction of the inheritance, or'where the mischief is remediless, to entitle a party to the interference by injunction. It is obvious that, in the present case, all the damages which have been sustained by the plaintiffs, could be redressed in an ordinary action for damages.

Upon the evidence set out in the motion for a review of the facts found by the court, there should have been a new trial granted. The judgment will he reversed, and the cause remanded ; the other judges concurring.


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    Farrar et al., Appellants, vs. Patton, Respondent.
    1. It is optional with a party who has made a parol contract to convey land to avail himself of the plea of the statute of frauds or not. (McGowen v. West, 7 Mo. Rep. 570, affirmed.)
    2. A conveyance of all the grantor’s “ right, title and interest” in a tract of land to which he had the legal title, but which he had previously made a parol contract to convey to his father, since deceased, was held to pass only his interest as heir of his father.
    3. Where one party to a contract has been placed in such a position by atotál , or partial performance that it would be a fraud on him if the contract was not fully executed, equity will interfere notwithstanding the statute of frauds.
    4. A party who purchases land with notice of a previous parol contract to convey to another, will stand precisely in the situation of his grantor, when a specific performance is sought to he enforced.

      Jlppeal from Franklin Circuit Court.

    In 1830', Leonard Farrar and Richard, his son, agreed to-exchange tracts of land owned by them respectively. Leonard conveyed immediately to Richard, but Richard did not convey to Leonard, the latter desiring him to wait until he sold the-land, and then convey directly to the purchaser. In 1836. Leonard died without having_ received a conveyance from his-son. By his last will, he devised all his real- estate- to his-three eldest sons, John S., Richard and Perrin, and appointed them his executors. In the inventory of Leonard Farrar’s estate, subscribed and sworn to by Richard and the other executors, the land which Richard had- contracted to convey to Leonard was put down, accompanied by a statement that Richard was bound by contract to- convey it. On the 11th of Aprily 1845, pending a proceeding to vacate the will of Leonard Far-rar, Richard "granted, bargained and quit-claimed” to William N. Patton, and his heirs and assigns forever, all his right, title, claim, interest and demand, both at law and in equity, as well in possession as expectancy, of, in and to” the same land. At the time of conveying to Patton, Richard notified him of the contract he had made to convey to his father. Patton also received from John S. Farrar a deed for his interest-in the land. The present proceeding was begun by the minor children of Perrin Farrar, the other devisee of Leonard Far-rar, to enforce a specific performance of the contract made by Richard Farrar to convey to their grand-father, and for a partition. They claimed one third of the land in right of their deceased father, and admitted that the title to- the other two thirds was in Patton. Patton claimed the whole of it under his deed from Richard Farrar, who held the legal title when the deed was executed.
    The court below declared that the contract was void by the statute of frauds, and that the recital of the contract in the inventory signed by Richard Farrar, was not a sufficient memorandum in writing to take it out of the statute, because the terms -■of tbe contract were not stated, nor tbe consideration ; .and refused tbenelief asked by plaintiffs. They appealed to this court.

      W. V. N. Bay, for appellants.
    1. Payment of purchase money is such a part performance of a parol contract for tbe •sale of lands as will entitle tbe purchaser to a decree for a -specific execution of the contract. (3 Atk. 4. 3 Vesey, 37. -4 ib. 720. 7 ib. '3415. 2 Day, 225. 5 ib. 67. 1 Bacon’s Ab. 162. 1 Powell on Contracts, 307. 1 Madd. Ch. 377. Roberts on Frauds, ch. 3, 142-3-4, 152. 15 Mass. 89. 1 Peters’ C. C. R. 388. 1 Harr. 540. Wetmore v. White, ■3 Caines’ Oases in Error.) 2. Although a parol contract for the sale of land is void by the statute of frauds, yet it is well -settled in chancery that, if such contract has been performed •on one part, an equity arises from that source, independent of the statute, to compel a performance on the other. (5 Day, 67. 1 Madd. Oh. 377. 1 Fonblanque, 181-2-5. 1 Vesey, 221, 297. 1 Serg. & Raw. 80. 2 Johns. R. 221, 573, 578. 5 Day, 16. 14 Johns. Rep. 15.) 3. A person who takes a conveyance of land, with notiee of the legal or equitable title of another to the same land, will be held a trustee for the benefit of the other. (6 Mo. Rep. 605.) 4. The memorandum in'the inventory of Leonard Farrar’s estate, signed by Richard Farrar, is a.sufficient compliance with the statute. 5. Patton, being guilty of a fraud, in accepting a conveyance with a knowledge of the equitable title of plaintiffs, cannot now avail himself of the statute of frauds.

      C. Jones, for respondent.
    1. The memorandum ■ of the contract in the inventory, without any explanation of its terms, was not sufficient to take it out of the statute. (1 Johns. Oh. R. 273. 9 Mo. 566. 3 Johns. R. 399. 4 Bos. & Pul. 252. 5 B. & C. 583. Adams on Equity, p. 87. 2 Story’s Eq. 64, et seg. 4 Greenleaf’s Cruise, eh. 3. 2 Kent, 510-11.)
   Scott, Judge,

delivered the opinion of the court.

Richard Farrar, as one of the devisees of his father, had an interest in the land in controversy, at the time of his conveyance to Patton. By Ms deed to Patton, be did not con: vey tbe tract of land itself, but only all bis right, title, claim, interest and demand, both in law and equity, therein. These words are only effectual to convey that which a man may lawfully convey. The interest that R. Farrar possessed under his father’s will was a subject on which his deed could operate, without affecting the land he exchanged with his father. Although the contract for an exchange was a parol one, yet it was not void. Richard Farrar could avail himself of the plea of the statute of frauds or not, as he pleased. (Dawson v. Ellis, 1 Jac. & Wal. 503. McGowen v. West, 7 Mo. Rep. 570.) His conduct showed that he regarded the contract as binding on him. In the inventory which he returned, he recognized it as obligatory, anl this fact was communicated to Patton. Now, as the words of the deed are only effective to pass that which Farrar may lawfully convey, and as they can have effect without passing the land subject to the contract for an exchange, there is no reason why the deed should receive such a construction as would make Farrar guilty of fraud, when no such thing was intended. Had Farrar conveyed the tract of land itself, then it would have appeared that he insisted on the invalidity of the contract, but the terms employed are consistent with the idea that he only conveyed what he lawfully might.

But there is another ground on which the plaintiffs are entitled to the relief prayed, even though the land, the subject of the contract of exchange, passed by Richard Farrar’s deed. From the evidence, it is clear that Patton purchased with notice of the agreement. Being affected with notice, he is not a purchaser in good faith. Such being the case, he stands precisely in the situation that Richard Farrar would have occupied, had the suit been brought against him. It is a rule in equity that, when one party to a contract has been placed in such a situation by a total or partial performance, that it would be a fraud on him if the contract was not fully executed, then equity will interfere, notwithstanding the statute. Leonard Farrar, in pursuance to the contract of exchange, executed and delivered a-deed, .thereby fulfilling his part of the agreement. In -what a situation will he and his heirs be, if the other party is not compelled to perform his part of the agreement. Surely a fraud will have been committed on them, and they will be without redress unless a court of equity interferes. Leonard Farrar could not recover the land he had conveyed in an action of ejectment. His deed would be against him. He could only have relief in equity, and that, too, on the ground of fraud. Now it is an established principle, that a statute which was made to prevent frauds, shall not receive such a construction as will protect them. As the terms of the contract plainly appear by a written acknowledgment of R. Farrar, we see no difficulty in granting the relief sought by the plaintiffs.

The other judges concurring, the judgment will be reversed, and the cause remanded.


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    Parke & Barron, Appellants, vs. Leewright, Respondent.
    1. Mere part payment oí the purchase money is not sufficient to entitle a party to the specific performance of a contract to convey land.
    2. Valuable improvements, to he a ground for enforcing a specific performance, must have been made with the expectation that the contract .would be fulfilled, and not after it was known that it would not be.

      •Appeal from Franklin Circuit Court.

    The case is stated in the opinion of the court.

      Stevenson and Gale, for appellant.

      J. Halligan, for respondent.
   Gamble, Judge,

delivered the opinion of the court.

The petition is for the specific execution of an agreement for the sale of land. It is alleged that the plaintiffs agreed with one Jones, an agent of defendant, to purchase 273 acres of land belonging to defendant, at $7 50 per acre. The plaintiffs were to pay twenty dollars in cast and cause certain notes of tbe defendant to be liquidated, and to pa.y tbe balance of the purchase money in two years, for which they were to gire their bonds, bearing interest from date. The plaintiffs and defendants were to meet in Union, the county seat of the county, and ■execute the necessary papers under the contract. The agreement was made on the 24th December, 1852, and the parties were to meet and execute the contract on the first day of January, being eight days after making the contract.

The plaintiffs allege that they paid to Jones the twenty'dollars in cash, when the contract was made, and immediately (took possession of the land; that they attended at Union on the first day of January, ready to comply with their part of the contract, but the defendant failed to attend and refused to comply with his part of the contract. They also say that they proceeded to improve and work the land, and that they have constructed “ valuable and lasting improvements upon the land, in building fences, stopping washes, and preparation of the land for cultivation.” The defendant demurred to the petition, and the court sustained the demurrer.

The suit was commenced March 11, 1853. The only ground upon which this agreement is to be taken out of the operation of the statute of frauds is, that it was partly performed.

1. The purchase money agreed upon was $2,053 12|; the payment was twenty dollars. The payment of this sum did not, of itself, entitle the plaintiffs to apply to a court of equity for a specific execution of the agreement. Their remedy at law afforded them ample redress. They took possession immediately upon making the agreement. If it was on the same day, then in eight days they know that the defendant refused to comply with the contract. The valuable improvements, in making fences, stopping washes, &c., were not made within that time — at least it is not so alleged — and if they were made af-terwards, they were made upon the supposition that the plaintiffs could hold the defendant to the terms of the agreement, by this suit — not that he would himself execute the contract. They will not be placed in a condition which will be a fraud upon them, it' the agreement is not executed.

The petition, on its own face, shows a case in which plaintiffs are seeking to hold the opposite party to the fulfillment of an agreement void by the statute of frauds, when nothing has been done under it, on their part, with the expectation that it would be fulfilled by defendant, except the payment of the twenty dollars. In such a case, a court of equity does not interfere.

The demurrer was rightly sustained, and the judgment is affirmed.


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    Jones, Appellant, vs. Brinker, Respondent.
    1. The allowances made to administrators in their annual and final settlements have the effect of judgments, and at'e conclusive between the parties at law; hut may he set aside in equity upon a proper showing.
    2. A party seeking equitable relief under the new system of practice must state facts which would have been a ground for such relief under the old system.
    3. A statement that the administrator illegally procured allowances in his favor does not make out a case for equitable relief.

      'Appealfrom, Washington Circuit Court.

    The case is sufficiently stated in the opinion of the court.

      Frissell & Ferryman, for appellant.

      C. Jones, for respondent.
   Ryland, Judge,

delivered the opinion of the court.

This was a suit brought by the plaintiff, Jones, against Fanny Brinker and John B. Brinker and others, upon the bond of said Brinkers and others, as administrators of the estate of Abram Brinker, deceased. The plaintiff alleges various breaches of the condition of the bond in his petition. The defendants demur to some of these breaches, and answer as to others. The court sustained the demurrer as to some of the breaches assigned; thereupon the plaintiff withdrew his petition and all other breaches except those demurred to, and to which the demurrer had been sustained; suffered judgment to be rendered against him and brings the case here by appeal. The breaches to which the demurrer had been sustained allege and charge that the administrators had obtained credit in their various settlements with the county court for illegal charges against the estate,, amounting to $>630 11 ; then specifies the settlements and the items of illegal charge.

1. The question arising here involves the effect of allowances made to administrators by the county court in their annual and final settlements. These allowances and settlements have the effect of judgments, and are considered as conclusive between the parties interested and concerned therein, at law. But it is allowed to a party interested, to file his bill in chancery against the administrator, charging him with having made false and fraudulent accounts, and having fraudulently procured allowances in his favor to be made to him by the county court. Such a proceeding is not based upon the administrator’s bond ; nor is it necessary to make his securities in the administration bond parties to it. The complainant attacks the settlements and allowances of the administrator, as having been procured by false and fraudulent means. Should he overhaul them, have them set aside for such fraud, and declared of no validity, then he may resort to his action on the bond of the administrator, without the fear of being met by such settlements, allowances and judgments.

2. Since we have now no chancery courts, and the distinction between courts of equity and courts of law has been abolished, the party seeking to falsify the allowances and accounts of the settlements of administrators, must, nevertheless, petition the circuit court, as a court of law and equity, for that purpose; and his petition must allege the same grounds now for the action and interference of the circuit court, as was formerly necessary to give the court of chancery jurisdiction.

3. It was 'never held that charging merely that the administrator bad obtained illegal allowances. in bis favor, in bis settlements made with tbe county court, was ground for applying to tbe chancery court to have sucb allowances set aside and vacated. He must charge that tbe allowances were procured by fraudulent and false means and pretences, unjustly, to tbe injury of tbe estate and parties interested.

In this case, tbe petition does not set forth and contain sucb facts as will authorize tbe court to set aside tbe allowances to tbe administrator. The demurrer was therefore properly sustained by the court below, and its judgment will be affirmed; tbe other judges concurring.


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    Bollinger et al., Appellants, vs. Chouteau et al., Respondents.
    1. A judgment of foreclosure against a mortgagor who was dead at the commencement of the suit, is void.
    2. An adverse possession by a mortgagee, under the statute of limitations, to be a defence against a suit brought by the mortgagor to redeem, must at least be an actual possession. Payment of taxes on wild land is not sufficient.
    3. A mortgagee against whom a suit is brought to redeem cannot defend upon the ground of the staleness of the claim, unless the 'facts would constitute a bar in equity.
    4. A mortgagee in possession, upon a bill by the mortgagor to redeem, will be allowed for all permanent and useful improvements, deducting rents and profits, and for all taxes paid.

      Jlppeal from Jefferson Circuit Court.
    Tbe case is stated in tbe opinion of the court. It was orally argued by Mr. Noell and Mr. Fox, for appellants, and Mr. Polk and Mr. Whittelsey, for respondents.

      JVbell and Fox, for. appellants,
    made tbe following points ; 1. Tbe proceedings of foreclosure set up by-defendants as a bar to the redemption demanded by plaintiffs were void, because Jacob Bollinger, who was made defendant, was then dead, and the suit should have been instituted against bis heirs. (Act of 1807, tit. Mortgage. Russell v. Mullan-phffs heirs, 4 Mo. Rep. 829-30. 2 Summer’s C. C. R. 401. 12 Mo. Rep. 60B.) 2. The right to redeem in this case was not barred by limitation or lapse of time, there being no actual possession of the mqrtgaged premises until 1837. ' (Moore v. Cable, 1 Johns. Ch. Cases, 385. 2 Cruise’s Dig. 140. 2 Vernon, 377. 5 Brown’s Par. Cases, 307.) 3. The only-acts of ownership shown by the defendants prior to 1836, were the redemption of the land from the state to which it had been forfeited for taxes, and this act was not inconsistent with the character of mortgagees. As mortgagees, they were interested in seeing that their security was not lost. ( Wells v. Morse, 2 Vera. 9. Dexter v. Arnold, 3 Sumner, 152. 9 Dana, 235. 3 Sumner, 476. Morgan v. Morgan, 10 Georgia, 297.)

      Polk and Whitlelsey, for respondents,
    relied upon the following, among other points : 1. The statute of limitations must be considered as having run against the claim asserted by the plaintiffs. Chouteau and Soulard, after the foreclosure in 1821, paid taxes on the land, and exercised all the possession over it that is usually exercised over wild land. It does not appear that the heirs.of Jacob Bollinger were minors, or laboring under any disability at the time of his death. ( Hughes v. Edwards, 9 Wheat. 489. Demurest v. Wynkoop, 3 Johns. Ch. Rep. 129. Slee v. Manhattan Co. 1 Paige’s Ch. Rep. 148. Fenwick v. Macy, 1 Dana, 279. 14 Mo. Rep. 437. 17 Serg. & Raw. 350. 7 Watts, 565, 580. 3 Watts, 69. 10 Serg. & R. 306. 1 S. &R..111. 2 S. & R. 436. 7 Watts, 35. 11 Peters, 41. 6 Peters, 513. 10 Peters, 442. 2 S. & R. 436.) 2. The plaintiffs’ claim is antiquated and stale, and ought not to be entertained. (2 Story’s Eq. p. 503, §529. 1 Eonblanque, ch. 4, §27, and notos. Craig v. Perry, 3 Mo. 516. 10 Pet. 177-225. Smith v. Clay, 3 Bro. Ch. Rep. 640. 2 Jac. & Walk. 141. 2 Younge & Coll. 662-678-81. 2 Sch. & Lef. 637.) 3. Under the facts and circumstances of this case, it would be inequitable to allow the representatives of the mortgagor to redeem. (Powell on Mort. (3d ed.) p. 138, 143. Cowp. Rep. 601. 1 Rep. in Oh. 170. 1 Vern. 214. 3 Salk. 84. Meyer v. Campbellf 12 Mo. 603. 1 Story’s Eq. 75. 18 J. R. 144, 288, 544. 10 ^ Peters, 177. 6 Wheaton, 541. 1 Dessaus. 160. 2 Des-sausi 582.) 4. The judgment of foreclosure in favor of Chouteau and Soulard was not void, but at most only voidable, and cannot be objected to collaterally in this suit. The fact that Bollinger was dead does not render it" void, because it was a proceeding in rein.. (See 1 Terr. Laws, 182. Downing t. Palmater, 1 Monroe, 66. McJYair r. O’Fallon, 8 Mo. Rep. 188, 204. 2 Hare & W. Lead. Cases, 734, 737. 12 Mo. Rep. 238. 16 Mo. Rep. 173. 4 Watts, 278'. 16 Mo. Rep. 331. 11 Mo. Rep. 295.)
   Ryland, Judge,

delivered the opinion of the court.

This is a petition by the heirs of Jacob Bollinger to be permitted to redeem a tract of land purchased by their ancestor of Chouteau and Soulard, and for which said Chouteau and Sou-lard executed their deed to said Jacob Bollinger; and after-wards, on the same day, the said Bollinger, having given his notes for the purchase money, executed the mortgage in question on the same land, in order to secure the payment of the purchase money to the said grantors, Chouteau and Soulard. The purchase was made and deed executed, and mortgage and notes given in March, 1817. The notes falling due at different times according to the stipulated credit given, and none of the money being paid, the said Chouteau and Soulard filed their petition in the Circuit Court of Jefferson county, on the 21st August, 18^1, to foreclose the mortgage and to have the land sold to pay the debt. The sheriff returned that the defendant was not found. At the April term, 1822, of said court, an order of publication was made. At the August term, it appearing that publication had been duly made, a judgment by default was entered, and the court ordered a sale of the mortgaged premises.

This order was renewed at the December term, 1823, and the land was sold by the sheriff in January, 1824 ; Chouteau and Soulard became the purchasers for some two hundred and ten dollars.

The facts agreed upon the record show that said Jacob Bol-linger was dead at the commencement of the suit to foreclose the mortgage, and that letters of administration were granted on his estate in Cape Girardeau county, in October, 1818 ; that said Jacob Bollinger resided in Cape Girardeau county previously to his death.

The court below found that the proceedings to foreclose the mortgage by Chouteau and Soulard were in good faith; that, after the purchase by said Chouteau and Soulard, one Cowen, in 1831, claiming to have purchased one half of said land from Chouteau, made a survey of the exterior lines of the tract and run a centre line for the purpose of dividing said land; that, from the year 1826, the said land was assessed in the name of Chouteau and Soulard, and that they and their representatives paid the taxes on said land at Jefferson City until 1836, when said land was subdivided and sold in partition. Since the year 1837, the land has been in the actual occupation of the defendants, who are now in possession, claiming title to the same, in .good faith, and without notice of the death of said Jacob Bol-linger or of any claim by his heirs. The defendants have made, under their title, on said land, valuable improvements, amounting to $30,000 or $85,000. The court finds that Jacob Bollinger never had actual possession ; that, at the date of the sale, in 1817, the land was of no greater value than the sum mentioned in the mortgage, $14,929 92; that, by means of the improvements and growth of the country, said land has risen in the last few years greatly in value.

Upon this finding, the court held that the plaintiffs were not entitled to redeem. Although the judgment of foreclosure mentioned may be declared wholly void and irregular, having been obtained without notice, yet, upon the lapse of thirty six years since the execution of the mortgage, no part of the purchase money having been paid, and the property, in consequence of the growth of the country, and the valuable improvements put thereon by the persons now in possession, having greatly increased in value, the court below considered it unjust and inequitable to allow redemption, and rendered judgment for defendants.

The plaintiffs made the necessary motions for a review of the finding of the facts, as well as for a review of the declarations of the law arising thereon, which being overruled and excepted to, they bring the case here by appeal.

1. Two points 'present themselves by this statement of the facts which will require the consideration of this court. The first is, in ’regard to the proceedings to foreclose the mortgage by Chouteau and Soulard in 1821. In the opinion of this court, there can be no doubt as to the irregularity of these proceedings. Jacob Bollinger, against whom the proceedings were commenced, was dead some years before the plaintiffs filed their petition. ■ Administration had been granted upon his estate in Cape Girardeau county, where he had resided in 1818. The summons issued against him alone, not against his heirs. This whole proceeding then was irregular. The judgment is consequently void. Indeed, the court below considered this judgment void, and argumentatively found it to be so. A suit brought against a dead man will not authorise the court to render judgment against him. The plaintiffs in that petition should have brought the action against the heirs of the mortgagor. Then, however the proceedings to foreclose the mortgage by Chouteau and Soulard may have been relied on in this case,, and however far they may have had any influence on the judgment of the court below, they are now unavailing, and they will, in this court, be entirely disregarded and laid out of our consideration. They can have no effect, and are entitled to no weight in the adjudication of this case.

2. These proceedings laid aside, then how stands the case? The heirs of a mortgagor file their petition for leave to redeem the mortgaged property ; for leave to redeem the property of a mortgage still open and unforeclosed. They are met with the defence of the statute of limitations, and the staleness of their claim. So far as regards the statute of limitations, the question presents but little difficulty. This statute can be brought to the aid of the actual possessor only. It begins to run from such actual possession, arid though it has been invoked in behalf of those who claim title to wild and unimproved lands, without actual occupation, yet the courts have invariably declared it cannot help in such cases. In the case of Gordon et al. v. Hobart et al., Mr. Justice Story, in delivering the opinion of the court, said : “It may be proper, before closing this opinion, to notice another objection to the plaintiff’s right to redeem any of the mortgaged premises, and that is, at the time of the deed of conveyance to Jesse Gordon, in 1832, by Thackara, (which is the foundation of the plaintiff’s title,) the defendants held the premises under an adverse possession, and consequently, that that deed was inoperative. The only answer necessary to be made to this objection is, that the possession was that of a mortgagee, and that the latter can never be permitted, in a court of equity, to set up any adverse possession to bar the title of his mortgagor or purchasers under him, to redeem, unless that possession has been for twenty years, and thus has constituted an equitable bar from lapse of time.” (2 Sum. Rep. 408.)

In Moore v. Cable, (1 Johns. Ch. Rep. 386-7,) Chancellor Kent said : “ Nor will a mere constructive possession for twenty years be sufficient. The courts require an actual possession by the mortgagee' during the period that is to form the equitable bar; for, as they adopt the rule by analogy to the statute of limitations, it requires the same actual and continued possession to form a bar in equity that is requisite to form a bar at law. The idea; suggested by the counsel for the defendant that, as the mortgaged premises were probably wild, uncleared lands, possession is to be deemed to have followed the right, and to have been in the mortgagee after default of payment, is not applicable to this case. That fiction was adopted by the courts to preserve the lands of the true owner, while in their uncultivated state, from intrusion and trespass ; and it would be a perversion of the rule, to make it operate by way of extinguishment of a right. Nothing short of actual possession for twenty years, will, at law, toll the entry of the true owner \ and the equity of redemption, which, in this court, is the same as the fee at law, ought to be equally protected.”

The actual possession here did not begin until some time in 1836 or ’37, not twenty years before this proceeding to re-redeem was -commenced. There is no doubt as to the utter inability of the defendants to protect themselves either at law or in equity, by the length of their possession, in this case. The payment of taxes will not do. This, after proof of actual possession, might be a strong circumstance to show the continued! claim of the defendants ; but here there is no possession by Chouteau and Soulard; or either of them, or any one claiming' under them, until 1836 or 1837.

3. The staleness of a claim will not prove a valid defence, when the facts by which it exists would not afford a bar in equity. In Proctor et al. v. Cowper (2 Vernon, 376,) a bill to redeem a mortgage made in 1642, fifty-eight years before, was allowed, and a redemption decreed. Here were three descents on the defendant’s part, and four on the plaintiffs’, the length of time being answered, for the greatest part, by infancy and! coverture, and because a bill was brought by the mortgagee in. 1686, to foreclose. This was done in the year 1700.

This case presents great hardship on the part of the defend.ants, and it would have afforded this court a gratification to have been able, legally', to protect them and secure them in their homes. But the law is with the plaintiffs, and we have nothing to do but to declare it. It has been said by an eminent judge, that “ hard cases are the quicksands of the law.”

4. The judgment below must be reversed, the case remanded, and that court is directed to permit the plaintiffs to redeem ; but they are to allow compensation to the defendants for all permanent and useful improvements, deducting the rents and profits received by the defendants ; the payment of the purchase money and interest thereon must first be made, and the re-payment to them of the taxes. The purchase money and interest to be paid by a specified day ; otherwise the petition to redeem to be denied, and the mortgage to stand as foreclosed. The other judges concur herein.


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    Chamberlin & Churchill, Respondents, vs. The Mammoth Mining Company, Appellant.
    1. The president is the proper party upon whom to serve process against a corporation, and may appear and confess a judgment for the corporation.
    2. The statutory provision (R. C. 1845) that confessions of judgments before justices of the peace shall be in writing, by its express terms, does not extend to confessions in actions commenced by process.

      •Appeal from Jefferson Circuit Court.

    This was a motion to quash an execution in favor of the respondents againt the Mammoth Mining Company, issued from the Circuit Court upon a transcript of a judgment recovered before a justice of the peace. At the trial, the transcript was read in evidence, in which the title of the cause was stated as follows : “ Frederick B. Chamberlin “ Co.” & Levi Churchill, Thomas Felch, agent in Jefferson county, Mo., vs. The Mammoth Mining Co., by J. Y. Redding.” The justice testified that the word “ Co.,” which appeared upon the transcript, did not' appear in the original entry upon his docket, and thereupon the court permitted him to alter the transcript, so as to make it ■conform to his docket. The transcript showed that process was served on J. Y. Redding, and that upon the return day of the summons, Redding appeared for the company and confessed a judgment. A witness testified that Redding was then the acting president of the company.
    The motion to quash was overruled, and the movers appealed. C. Jones, for appellant. 1. The confession was not in writing, as required by statute. (R. C. 1845, tit. Justices’ Courts, art. 6, §2.) 2. Redding bad no authority whatever to confess judgment for the company. 8, The court had no authority to permit the amendment.
    JVoell, for respondents.
   Scott, Judge,

delivered the opinion of the court.

It appears that Redding was the acting president of the Mammoth Mining Company. He, being such, was the proper person on whom process against the corporation should have been served. (R. C. 1845, tit. Corporations, 237.) Any irregularity in the return of the officer serving the process was waived by appearance and confession.

As the suit was begun by process, there was no necessity that the confession should be in writing, as the statute is express, that the provision in relation to confessing judgments by writing, shall not extend to cases in which confessions are taken in suits commenced by process. (R. 0. 1845, tit. Justices’ Courts, 656.)

Redding being the person appointed by law to defend the corporation, he was competent to confess 'the action. He might have suffered a judgment by default, and the matter is not made worse by an appearance and confession.

The execution was regular, and there was no necessity for the amendment allowed to be made by the justice. The other judges concurring, the judgment will be affirmed.


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    The State, to use of Whaley, Appellant, vs. Blackwell, Respondent.
    1. The statute of limitations runs in favor of an administrator against the distributee of an estate from the date of the final settlement and order of distribution.

      Appeal from Washington Circuit Court.

    This was an action begun in 1853, on the bond of Jeremiah Blackwell, as one of the administrators of William Whaley, to recover the distributive share of Israel Whaley, one of the heirs of William Whaley.
    It appeared that Blackwell and one of the sons of the intestate, who had since died, acted as eo-administrators, and that the son transacted the business of the estate, and held the assets. The administrators made their final settlement at the May term, 1886, showing a balance in their hands, for distribution, of $181 52. It did not affirmatively appear that any order of distribution was ever made. .The Circuit Court declared that the statute of limitations was a bar to a recovery by the plaintiff.

      M. Frissell, for appellant.
    1. The administrators are jointly and severally liable,, although one alone handles the assets. (Dobyns v. McGovern, 15 Mo. 662. Overton v. Woodson, 17 Mo. Sep. 458.) 2. An administrator, being a trustee, cannot avail himself of the statutory bar against an heir or distributee. (Falls v. Torrance, 2 Hawks’Rep. 490. Decouche v. Savetier, 3 Johns. Oh. Rep. 190. Prescott v. Gratz, 6 Wheaton, 481. Bird v. Graham, 1 Ire-dell’s Ch. Rep. 196.)

      D. E. Perryman, for respondent.
    1. The plaintiff’s claim is barred by the statute of limitations, seventeen years having elapsed since the final settlement of the administrators. An administrator is a trustee only while he acts in the capacity of administrator, and not after his administration has closed. (Menard v. Pratt, 8 Mo. Rep. 286. 14 Mo. Rep. 437.) 2. Under all the circumstances of this case, lapse of time is an equitable if not a legal bar to the plaintiff’s claim.
   Ryland, Judge,

delivered the opinion of the court.

1. The statute of limitations relied on in this case, must be considered a bar to the plaintiff’s right to recover. Here was a final settlement of the estate of William Whaley, deceased, made in May, 1836. Upon that settlement, the amount of $181 52 remained in the administrators’ hands to be distributed. Now, although the record is silent as to whether any order of distribution was made, directing the administrators to pay the distributees their shares of the amount on hand at such final settlement, it was competent for the court to have made such order; nay, it was the duty of the court to have made it; and, presuming that it was made, the plaintiff’s right of action accrued on such settlement and order being made. His having laid by and slept upon his rights-for seventeen years, and until the death of his brother, who was the active administrator, and who had, in all probability, the means of proof of payment; then to awake up and bring his suit against the co-administrator, who appears to have done little or nothing in the business, is enough at least to excite suspicion. The plaintiff is barred then, and the judgment below was very properly given against him. The principles set forth in the opinion of Judge Tompkins, when pronouncing the judgment of this court in the case of The State, for use of Menard, v. Pratte & St. Gemme, will fully sustain this view of the court. Let the judgment be affirmed; the other judge,s- concurring.


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    The State, to the use of Reyburn et al., Appellants, vs. Ruggles et al., Respondents.
    1. In an action by legatees against an administrator upon his bond, judgment should he entered for the penalty of the bond, with an award of a single execution for the damages assessed for the breaches. Distribution of the damages among those entitled, is to be made after they are collected and brought into court.
    2. Where one of several legatees sues the administrator upon his bond for waste, his legacy is not, as a matter of course, to be satisfied out of "the damages recovered, to the exclusion of the other legatees, or to the exclusion of creditors.'
    3. Judgment reversed for an insufficient finding of the facts.

      Appeal from Washington Circuit Court.

    This was an action brought to the use of three of the legatees of Joseph Reyburn, deceased, against Ruggles and his securities, upon his bond as Reyburn’s administrator. The breach complained of was, that Ruggles had failed to use proper diligence to collect two judgments recovered in favor of the estate by a former administrator, for an amount exceeding the unpaid balance of the plaintiffs’ legacies, and that the amount of said judgments was lost to the estate by reason of his negligence. The plaintiffs prayed judgment for the penalty of the bond, with an award of execution for an amount sufficient to pay their legacies in full. The answer denied any want of diligence on the part of the administrator. The record showed that the cause was heard by the court without a jury, but contained no finding of the facts other than the amount for which the administrator was liable, and a statement from whieh it appeared that there were other legatees under the will of Reyburn, besides the plaintiffs. The court declared the law to be that, as the amount recovered against Ruggles was insufficient to satisfy all the legacies, the plaintiffs could only recover their pro rata share. Judgment was accordingly given for the penalty of the bond, with an award of several executions in favor of each of the plaintiffs for their pro rata share of the damages assessed. The plaintiffs, claiming that they were entitled to the full amount of their legacies out of the damages recovered before the other legatees received any thing, appealed to this court.

      M. Frissell, for appellants,
    referred to the 5th, 7th and 8th sections of afticle 7 of the administration act, (R. C. 1845. )
    No brief or appearance for respondent.
   Scott, Judge,

delivered the opinion of the court.

This is a singular preceding. It appears that there has been a judgment against Ruggles. The record does not show that he contests the propriety of that judgment. But persons who are no parties to the proceedings on which the judgment is obtained, interpose, by motion, to have the judgment, in part, entered in their favor. There is no warrant in law for this. The judgment should have been entered for the penalty of the bond, with an award of a single execution for the damages assessed for the breaches thereof. When the sheriff brought the damages awarded into court, on the return day of the writ, (as he might have been notified to doj) then would have been the time for the court to have distributed them. The court had no authority to distribute the damages and award a separate execution for each distributee. Should the defendant, Ruggles, pay the costs of all these unnecessary writs ?

The facts are not found which are necessary to enable this court to determine whether the plaintiffs are entitled to have their legacies first satisfied. As the matter is up, however, we will state our views of the law on this subject. It would be strange, if the law was such -as to encourage a race between legatees, and to award the prize to the foremost. What justice would there be in suffering one legatee to sue on an executor’s bond, and to obtain his legacy to the exclusion of all the others ? If an executor pays a legacy voluntarily, the law presumes that he has sufficient to pay all the legacies, and the other legatees can resort only against him. In case the assets appear to have been originally deficient, if the uxecutor either voluntarily or by compulsion, pay one of the legatees, the rest shall make him refund in proportion. And even if such legatee obtain a decree for his legacy and be paid, the other legatees may oblige him to refund in the same manner. But if the executor had at first enough to pay all the legacies, and by his subsequent wasting of the assets they became deficient, in that case, such legatee shall not be compelled to refund, but shall retain the benefit of his legal diligence. (Toller, 340. Lupton v. Lupton, 2 Johns. Ch. Rep. 614.)

Now, from the facts found, it does not appear that any part of the judgment is subject to the payment of legacies. It may be all necessary to pay debts. It is obvious that a legatee suing on an administrator’s bond for a legacy, must show the same facts that he would be compelled to show had he sued the administrator by bill in equity. If the damages, when recovered, would be subject to the payment of debts, then the legatee would only be entitled to nominal damages in bis action on the bond. IE tlie amount of damages awarded in this case was the only fund for the payment of legacies, nothing more appearing, it would be a vain thing to satisfy the entire legacies of the plaintiffs, when the next moment they would be compelled to refund.

This case, from the record, appears to have been very irregularly conducted. It seems to be a very hard one on’the administrator, Ruggles. None of the grounds on which he is made liable appear in the finding of the- court, but as from this record, it does not appear that' he complains or has brought the case here, we are not warranted in entering into that matter. The judgment will be reversed, and the cause x’emanded, that all the facts may be found. The other judges.concur.


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    Livingston, Appellant, vs. Dugan, Respondent.
    1. A promise by the owner of a slave to pay to a party having him in possession, in good faith for a valuable consideration, under a claim of title, the expenses of medical attendance which the latter might have to pay to a physician will be supported.
    2. The compromise of a doubtful right is a good consideration for a promise.

      •Appeal from Washington Circuit Court.

    This was an action originally begun before a justice of the peace by Livingston against Dugan, to recover money paid for medical attendance upon a slave, and for services in nursing.
    It appeared that a suit was pending by Dugan and his brothers against Livingston, to recover the slave, Livingston being in possession, under a claim of title by purchase in good faith for a valuable consideration. The slave became sick, and during his sickness, as a witness testified, Dugan came to Livingston’s house and promised to pay the latter the bill which he might have to pay to the physician who then was and previously had been in attendance. Afterwards, the suit terminated in favor. of the Dugans, who recovered judgment for the possession of the slave or for his value, without any damages for the detention. The Circuit Court declared the law to be, that the defendant’s promise was without consideration and not binding, and gave judgment accordingly, from which the plaintiff appealed.

      C. Jones, for appellant.

      M. Frissell, for respondent, cited Chitty on Contracts, p. 52, and cases, there cited.
   Scott, Judge,

delivered the opinion of the court.

1. Erom the facts in this case, we do not conceive that the principle that a past or executed consideration will not sustain a promise has any thing to do rvith it. Dugan promises to pay Livingston a sum of money, on condition that Livingston will thereafter pay that sum to another. Here the consideration is not past nor executed. Whether it is a valuable consideration is another question. A suit was pending for a slave, and some discussion arose between the parties as to the liability for the expense for medical services and nursing incurred for him. This would seem to place the case on the principle of a compromise of a doubtful right. No damages wore recovered for the detention of the slave. We may presume, therefore, that his services were not of any value. The form of the action instituted by Dugan for the slave asserted his property in him. The plaintiff, Livingston, held him in good faith for a valuable consideration, under a claim of right. A question, therefore, might have been raised as to whether Dugan was not liable- for the medical services. We do not say that he would have been. But it is enough to support this promise, that a question might have been raised in relation to it. The judgment is reversed, and the cause remanded, with the concurrence of the other judges.


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    Kennedy & Jackson, Appellants, vs. Daniels, Respondents.
    1. Where a defendant in ejectment relies in his answer upon a legal title, he cannot at the trial avail himself of a merely equitable defence.

      «Appeal from Cape Girardeau Circuit Court.

    The case is sufficiently stated in the opinion of the court. It was argued by Mr. N. Holmes for appellants, and Mr. Noell, for respondents. • "
   Gamble, Judge,

delivered the opinion of the court.

Ejectment for the recovery of land in Cape Girardeau county. The defendants answer that the plaintiffs are not the owners of the land, but that they, the defendants, are the owners thereof, claiming it under a deed from Micajah Daniels, older than the deed from said Micajah to plaintiffs.

The court, at the trial, decided upon inspection, that the instrument produced by the defendants as a conveyance from Micajah Daniels was not a deed ; but- further decided, that the instrument might be treated as a contract in equity for the land, and that the defendants might avail themselves of any equitable defence. The evidence was accordingly introduced, and under instructions from the court, a verdict was rendered and judgment was given for the defendants. The instrument relied on by defendants was, in the language of the present conveyance, from Micajah Daniels to them for the consideration “ of one dollar, and for the affection and fatherly feeling I have for them.”

1. We will confine the present decision to the point that the defendants, having set up in their answer, as their defence, the fact that they were the owners of the land by a deed from Mica-jah Daniels older than the deed from him to the plaintiffs, were not to be permitted to go into a totally different defence. If they have any equitable title available against that of the plaintiffs, they must set it up in their answer. The loose practice introduced into our courts, under the present code, is clearly exemplified in this case. Both parties claim under deeds from Micajah Daniels, according to their pleadings ; the court decides that there is no deed to defendants, but that they may make an equitable defence; such defence as they have is introduced, and a verdict is found in their favor. If this verdict is to be regarded as a response to the issue made by the pleadings, it finds that the defendants are the owners of the land under a deed from Micajah Daniels, older than his deed to the plaintiffs, which is against the decision of the court. This is only one specimen of the incongruities which are presented to this court upon the records, as they come to us under the present system of practice.

The judgment is, with the concurrence of the other judges, reversed, and the cause remanded.