text:
    Rippey, Appellant, v. Friede, Respondent.
    1. Where there is any evidence, however slight, tending to prove a fact in issue, the court should not take the case from the jury by ruling that there is no evidence tending to prove such fact.

      Appeal from St. Louis Gircuit Gowrt.

    Friede, the defendant in this case, was the owner of a building in course of erection by one Jeter, a contractor. Rippey, plaintiff, furnished materials to said Jeter. The ground of this action is an alleged promise by Friede to pay, out of moneys in his hands due to Jeter, the value of such materials in consideration that plaintiff would not encumber the building with a lien under the mechanics’ lien law.
    The court gave the following instruction : “ The jury are instructed that as Jeter was the original debtor, and the plaintiff has no claim or personal remedy against the defendant for said balance of account sued upon, except upon the strength of a promise by the latter to pay -the same in consideration that the plaintiff would not file a lien against the building as stated in the petition, the jury should find for the defendant, there being no evidence that such promise was made by him, notwithstanding said balance still remains unpaid, and the materials were furnished by the plaintiff for, and entered into, the construction of the defendant’s building.” The plaintiff thereupon took a nonsuit, with leave, &c.

      Cline & Jamison, for appellant.
    I. The evidence was sufficient to support the allegation in the petition. (22 Mo. 157.) At least there was some evidence tending to establish the allegation, the sufficiency of which it was the province of the jury and not the court to pass upon. (18 Mo. 170; 12 Mo. 387.) There was a sufficient consideration of Friede. The court erred in ruling out the order given by Jeter on defendant in favor of plaintiff.

      Gantt, for respondent.
    I. The order not being accepted in writing by defendant was properly excluded. (R. 0. 1845, p. 172.)
    II. There was absolutely no evidence at all tending legitimately to establish such a promise as plaintiff alleged in his petition.
   Richardson, Judge,

delivered the opinion of the court.

The defendant was liable for the debt if, with money in his hands due to Jeter, he promised the plaintiff to pay the account in consideration that the latter would not encumber liis property with a lien, which would have secured the debt, and that the plaintiff, relying on his promise, gave up the security which the law allowed him to take. The naked promise to pay the debt, without any consideration of benefit to the defendant or of harm to the plaintiff, would be insufficient to support an action. But the plaintiff’s object in presenting the account, and the fact that the defendant promised without any reservation to pay it, on which the plaintiff acted and omitted to file a lien which he would have done if he had nbt been misled, are distinctly proved; and whether the defendant made the promise in consideration that the plaintiff would not file a lien, was a question of fact for the jury, which they might, under the circumstances, if they had seen fit, have inferred.

The instruction therefore was erroneous, for “ if there is the least particle of evidence, whether direct or merely inferential, upon which a verdict can be founded, such instructions are improper.” (18 Mo. 170.)

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


source: Caselaw Access Project

author: Scott, Judge,

license: Public Domain

text:
    Harley, Respondent, v. McAuliff, et al., Appellants.
    1, The sole object of a suit instituted under the St. Louis landlord and tenant act (R. C. 1845, p. 1101; see amendments Sess. Acts, 1847, p. 90; Sess. Acts, 1849, p. 64) is to obtain restitution of the demised premises; neither the justice of the peace before whom suit is brought, nor the appellate court to which the cause may be taken, is authorized to ascertain, so as to bind the tenant collaterally in an action on the appeal bond, the amount of the rent due; no such finding would be evidence against the tenant of the amount of rent due.

      Appeal from St. Louis Land Cowrt.

    Harley, plaintiff in the present action, instituted a proceeding under the St. Louis landlord and tenant act of 1845 (R. C. 1845, p. 1101) and the amendatory act of March 10r 1849 (Sess. Acts, 1849, p. 65), to obtain restitution of certain premises for tlie alleged nonpayment of rent to the amount of one hundred and fifty dollars. The justice of the peace rendered judgment of restitution in favor of plaintiff and stated therein the amount of rent due to be one hundred and fifty dollars. This judgment was affirmed on appeal by the St. Louis land court. The judgment of the land court also stated the amount of the rent due, for the nonpayment of which restitution was awarded, to be one hundred and fifty dollars. On the appeal to the land court the bond on which the present suit is founded was given. It was executed under the amendatory act of February 4, 184T (Sess. Acts, 1847, p. 90), and was conditioned to pay all damages, and rent due and to accrue, and to stay waste. In the present suit the plaintiff claims judgment for one hundred and fifty dollars, due at the date of the judgment of the justice, and four hundred dollars for two years’ rent accrued since that date. The court, at the instance of the plaintiff, gave the following instruction : “ If the jury believe from the evidence that Justice Wetmore gave judgment for the restitution of the premises in question in favor of plaintiff and against defendant McAuliff, in a suit wherein Harley was plaintiff and McAuliff was defendant, for the nonpayment of one hundred and fifty dollars for three quarters’ rent then due, and thereupon defendants, upon an appeal prayed and taken by said defendant McAuliff from said judgment, executed the recognizance read in evidence, and thereupon said judgment was affirmed by the land court of St. Louis county, they will find for plaintiff for the sum of one hundred and fifty dollars found by the justice to be due at the time of the justice’s judgment, and also rent thereafter, up to the time of restitution of said premises, at the rate of two hundred dollars a year, not exceeding the amount of the recognizance.”
    The jury found for plaintiff.

      H. N. Hart and P. B. Garesche, for appellant.
    I. The judgment of restitution was no evidence at all that one hundred and fifty dollars or any other precise sum was due for rent. The instruction given was erroneous.

      Gray, for respondent.
    I. The instruction given was proper and legal. One of the necessary and essential questions of inquiry before the justice was the amount of rent due on the premises. He must find the amount due, 1st, in order to know whether plaintiff has made a proper demand; 2d, in order that defendant may know what amount he must pay if he wishes to stop the proceedings and retain possession, as he has a right to do under the act. The amount due was one of the necessary issues to be found by the justice before he coixld render judgment of restitution. The recognizance recites or refers to the judgment of the justice. It is as if the amount had been stated in the recognizance. The cognizors were estop-ped to deny that the justice’s judgment was good evidence of the amount then due, at least prima fade. This was all the instruction in effect declared. (See 1 Greenl. Ev. § 528, 534; 3 Barb. Ch. 341; 3 Comst. 511; 3 Cow. 120 ; 2 Hill, 478.) It is not claimed that the justice could give judgment for the rent; but in order to give judgment of restitution. he had to find that rent was due and the amount of it. The instructions asked by defendants were properly refused
   Scott, Judge,

delivered the opinion of the court.

The judgment will be reversed for the giving of the instruction asked by the plaintiff. That instruction assumes that the judgment in the justice’s court, after being affirmed in the land court, • established the amount of rent that was due at the institution of this proceeding. By the act concerning landlords and tenants in St. Louis county, when a complaint is made under it, the sole inquiry is whether any rent is due. As the proceeding is duly to restore the possession to the landlord, whether the rent is due is only a fact in the case necessary to be proved in order to entitle the plaintiff to a judgment; but, when the fact is ascertained that rent is due, the amount due forms no part of the judgment, nor is it necessary to enter it on the record.

Whether the plaintiff would fail in his action if it should turn out that he had demanded more rent than was due is a question not necessary to be determined now, as it does not arise on the record. Such a question could only be raised by an appeal from the justice’s court, and on the trial of the appeal in the land court would be brought to this court by a bill of exceptions. By entering the amount of rent proved to be due on the justice’s docket or in the record of the land court, the question could not be raised; but the variance between the amount claimed and that proved being a fact, the evidence showing the variance should be preserved in a bill of exceptions and not by entering it on the record.

The justice, then, having no jurisdiction to ascertain the amount of the rent due and demanded, there was error in so much of the instruction given for the plaintiff as related to that subject. So also there was error in that portion of the instruction which took from the consideration of the jury the amount of rent afterwards accruing, and which directed them, as a matter of law, that two hundred dollars was the rent of the premises. Even if the defendant was bound for the rent fixed by the lease, the execution of the lease was not submitted to the jury as a matter of fact. There was evidence in the case from which a jury might have found that the defendant assented to the payment of the rent fixed by the lease. Where the law makes any other person than the lessee named in the lease liable for the rent, such person would bo liable according to the terms of the lease.

The second instruction asked by the defendant was properly refused, as the assent of the landlord to the occupation of the premises by the defendant was not necessary. The statute authorizes this proceeding against the tenant or person occupying the premises. -

We do not see how the defendant was damnified by the rejection of the record in the case of the plaintiff against Mrs. Bittner as evidence. That proceeding did not claim any rent that is claimed in this suit, and the defendant, though not liable for the rent there demanded, may have subjected himself to this proceeding by his subsequent conduct.

The judgment will be reversed and the cause remanded ;

the other judges concurring.


author: Napton, Judge,

text:
    Helmes, Plaintiff in Error, v. Stewart, Defendant in Error.
    1. Where, in an action of unlawful detainer, the defendant admits that he is in possession of the premises under and by virtue of a lease executed by the plaintiff, he can not be permitted to invoke the presumption that the plaintiff, being a person of color, is a slave and consequently incapacitated to make a lease or to maintain such a suit.

      Error to St. Louis Land Cowrt.

    This was an action of unlawful detainer. It appeared in evidence that the plaintiff had leased the premises in controversy to one Heitzig in 1846. Defendant admitted that he was in possession thereof under and by virtue of said lease. Plaintiff claimed that there was a forfeiture of said lease. Plaintiff was a person of color. The court, at the instance of defendant, gave the following instruction: “ It being admitted that the plaintiff is a person of color, this fact is presumptive evidence of slavery, and in the absence of proof showing his freedom, the plaintiff can not recover.” The plaintiff thereupon took a nonsuit, with leave, &c.

      C. Gibson, for plaintiff in error.
    I. Defendant was not in a position to dispute the title of plaintiff. The only question that could be inquired into was whether defendant held the property under the plaintiff and received it of him. The presumption arising from color is overcome by the fact that plaintiff is the owner of the property and had a right to make the lease to Heitzig, which the defendant can not deny. (See 5 Har. & Jo. 194; 2 Pet. 670.)

      Shreve, for defendant in error.
    I. The instruction was properly given. Color is prima facie evidence of slavery. (2 Halst. 353 ; 3 Halst. 275 ; 1 Dev. 376 ; 2 Bibb, 238 ; 7 Louis.' 135 ; 1 Hen. & Munf. 133; 1 Tayl. 100 ; 22 Ala. 599; 17 Ala. 80; 7 Ired. 275 ; 3 Dana, 382 ; 2 Hayw. 170 ; 3 Green, 266; 4 Harr. 173 ; 3 id. 551; 5 S. & M. 609 ; 5 McLean, 469, 484; 5 Mary. 91; 6 Gill. & Jo. 136 ; 19 Mart. 648; 1 Rich. 316; 1 Cow. & Hill’s notes, 294, 361, 484 ; 7 Mo. 197.)
   Napton, Judge,

delivered the opinion of the court.

The doctrine that color raises the presumption of slavery was, in our opinion, not applicable to this case, and the instruction upon that point should not have been given. The suit was for unlawful detainer and the defendant admitted himself to be in possession of the premises under a lease from the plaintiff. The point in dispute was whether the lease had been forfeited or terminated. The plaintiff, if a slave, could have had no title to the premises; but the defendant’s admission that his possession was held under a lease from the plaintiff precluded him from denying the title, and it did not lie in his mouth to say that the plaintiff was a slave. There was no room for submitting any presumptions about the matter to the jury, one presumption in law being destroyed by the other.

The judgment will be reversed and the cause remanded;

the other judges concur.


author: Richardson, Judge,

text:
    Wagner, Respondent, v. Jacoby, Appellant.
    1. In matters of science and skill the opinions of experts only can be received in evidence.
    2. Since the enactment of the practice act of 1849, the supreme court -will reverse for error committed during the progress of a trial and duly excepted to, although the same may not have been brought to the attention of the court by a motion for a new trial.

      Appeal from St. Louis Law Commissioner’s Court.

    This was an action for work and labor and materials furnished. It was originally commenced before a justice of the peace. At the trial the defendant offered in evidence a receipt purporting to be a receipt in full. The plaintiff objected to the reading of the receipt until certain alleged alterations and erasures were explained. The court desired for its own information evidence to be given in reference to the alleged alterations. Certain witnesses were sworn and did testify in the presence of the jury in reference to said matters, to the effect that the receipt appeared on its face to have been altered, the words “ in full” being inserted in ink different from that of the rest of the receipt. This testimony was received against the objection of defendant.

      S. H. Gardner, for appellant.
    I. The court erred in receiving the testimony of Woerner and Urban in regard to the receipt. They were not experts. (Swan v. O’Eallon, 7 Mo. 231.)

      C. C. Simmons, for respondent.
    I. The testimony of Woerner and Urban was for the court and not for the jury. No exception was taken on the motion for a new trial.
   Richardson, Judge,

delivered the opinion of the court.

It was competent for the plaintiff to prove that the receipt offered in evidence by the defendant had been altered, or the jury could have found the fact if the suspicious circumstances on the face of the paper warranted that conclusion; but it was improper to permit the witnesses who had no previous knowledge of the receipt to give their -opinions on the subject. They did not profess to have any superior skill in such matters, and the jury was as competent as they were to draw proper conclusions from the appearance of the instrument. (Swan v. O’Fallon et al., 7 Mo. 331.)

The defendant duly excepted at the time the evidence was admitted, but did not assign the error in his motion for a new trial, and the plaintiff has insisted that such omission precludes the defendant from relying on the exception in this court. Under the former system of practice it was decided that exceptions taken during the progress of a trial were regarded as waived unless they were made the ground for a motion for a new trial; (Hoersh v. Bank of Missouri, 10 Mo. 516;) but it was held in Fine v. Rogers, 15 Mo. 315, that the practice introduced by the act of 1849 required a different rule; and since then the old rule has been abandoned and the practice established that this court will reverse for errors committed during the progress of a trial, if exceptions are taken and saved, although they may not be brought to the attention of the court in a motion for a new trial.

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


text:
    Wagner, Respondent, v. Jacoby, Appellant.
    1. Wagner v. Jacoby, ante, p. 530, affirmed.
    2. A plaintiff having an entire demand growing out of a single transaction can not split it up into separate suits.

      Appeal from Si. Louis Law Commissioner''s Court.

      S. H. Gardner, for appellant.

      C. C. Simmons, for respondent.
   Richardson, Judge,

delivered the opinion of the court.

This case is in all respects like the preceding case between the same parties, and for like reasons will be reversed and remanded.

The defendant has insisted in his argument that the account for which this action was brought is a part of the demand for the same job of work for which the other suit was brought. That is a question on which we can not now pass; but if the fact be as alleged, the plaintiff can not recover, for a plaintiff having an entire demand growing out of a single transaction can not split it up into separate suits. (Smith v. Jones, 15 John. 229; Farrington v. Payne, id. 432; Willard v. Sperry, 16 John. 121; Phillips v. Benick, ib. 136.)

The judgment is reversed and the cause remanded;

the other judges concurring.


text:
    Dallam, Appellant, v. Renshaw, Respondent.

    1. Should the plaintiff in an execution, acting in concert with the defendant therein, purchase in the property of such defendant with a view to coyer up the same from the latter’s creditors, the transaction would he fraudulent and the other creditors may treat the execution sale and the sheriff’s deed as nullities.
    2. When all the facts hearing upon the question of the intent of such a transaction will as well consist with honesty as with dishonesty and fraud therein, the court ought not to find the same to he corrupt and fraudulent; the proof of fraud should be perfectly satisfactory.

      Appeal from, St. Louis Circuit Court.

      S. T. Glover and Dick, for appellant.

      Todd & Krum, for respondent.
   Napton, Judge,

delivered the opinion of the court.

This case presents mainly questions of fact, although a great many points in relation to the admission and rejection of testimony are also preserved. As all the testimony, whether rejected or admitted, is found in the record, an ex-animation and decision of these points becomes unnecessary in view of the conclusion we have reached upon the whole case.

The record is extremely voluminous, and the various transactions in proof during a series of years are complicated. To undertake a review of the details would fill a volume. It will perhaps answer all the purposes, which adjudications of this character can be expected to subserve, to announce the conclusion reached, and the prominent reasons which have lead to it. The plaintiff, a creditor of Charles Collins, obtained a judgment against him in 1848 for about eighteen hundred dollars, and levied his execution upon a lot in the city of St. Louis, known as the “ Scott Hotel,” and bought Collins’ interest therein. This lot, together with some fifteen or twenty other lots or tracts of land in the neighborhood of St. Louis, had been sold under execution in 1840, and had been purchased by Stacker & Erwin, to whom Collins was at that time largely indebted. The exact amount of this indebtedness is disputed, but combining the individual indebtedness to Stacker with the judgments obtained by Woods, Stacker & Co., and Yeatman, Woods & Co., for which Erwin was agent, and the judgments of W. C. Anderson, which had been bought up, they may be stated at a sum not less than fifty thousand dollars. The plaintiff brought his action in 1852, and he insisted that the purchase of S. & E., under an execution in 1840, was fraudulent and void, and that all the subsequent transfers of this property through McConnell, Reyburn, Morrison, Bowman, and others, were made with a full knowledge of this fraud and a full participation in the original scheme; that they were designed to defraud Collins’ creditors ; and he insists that these deeds, which on their face are absolute, and purport to convey an absolute title, shall be held fraudulent and void, and so declared, and the title to the said Scott Hotel property be transferred to him by virtue of his purchase in 1848, under his execution. It will be thus perceived, that the sole question in the case is one of fact; and that is, whether the sale to Stacker & Erwin, in 1840, was valid and bona fide, and vested the title, or was fraudulent and consequently void. If this sale is upheld and the title passed at that time, whatever character may be affixed to subsequent transactions, the present action must fail. If the sale in 1840 was valid, then Collins’ interest in this property was gone, and his creditors could not be injured. Subsequent transactions with Collins might give him an equitable interest in this property such as would authorize a transfer of the title to Collins’ creditors, but such transfer could not be claimed except upon the same terms that Collins himself or his heirs would have the right to demand it. But the theory of this suit is based entirely upon the total invalidity of the original execution sale, and the subsequent transfers of the property which occurred during the succeeding eight or ten years are produced, not as creating new trusts, but as establishing original and continuous fraud. It will be observed that in the whole course of this proceeding, which embraces a number of years, there is no transfer to or from Charles Collins. The title at no time was nominally in him after the sale to S. & E. in 1840. It is not therefore a case in which a deed from a debtor to a creditor is attacked for fraud. The case is one in which a sale under execution is made, and that sale, and the purchase at it, are asserted to be fraudulent and void. There is no other ground upon which the action can be sustained. If the purchase in 1840, under execution, was valid, Stacker & Erwin became the absolute owners of the property; and if, as absolute owners, they thought proper to give Collins an interest, contingent or fixed, of one-half or one-third, or any other amount, such a transaction is not a fraud upon Collins’ creditors. Collins’ interest might perhaps be reached by execution, but the purchasers would only buy his interest — nothing more. Ho could not claim that he purchased the interest of S. & E. as well as Collins. The principle may be illustrated by supposing that S. & E. had fifty thousand dollars’ worth of property in St. Louis, independent of any acquisition from Collins, not conveyed to them by deed directly from Collins or purchased under execution against bis property, and, through motives of friendship or for any other motive, thought proper to give Collins an interest in this property, and to retain the title in their own name. Is this a fraud upon the creditors within the meaning of the common law or the statute of fraudulent conveyances ? Can the creditors claim the whole property and destroy the title and interest of S. & E. ? It is clear that Collins’ creditors have not been injured by the transaction. So far from that, they have been benefitted, if they are permitted to reach the interest of their debtor. Yet this case does not at all differ from the case put where the same amount of property is purchased at sheriff’s sale, and the purchase is valid and bona fide. The purchaser is dealing with his own property, and there is no principle of common law and no construction of the statute of frauds which prevents him from assisting the defendant in the execution, even to the extent of giving him an interest in the same property, by subjecting his interest as well as the interest of the debtor to the executions of other créditos. Very different would be the case if the property was conveyed to S. & E. by Collins for such purposes, or if the sale under execution was used to effect the same object. The sales and conveyances would then be fraudulent, and the creditor could treat them as nullities, as no obstacles to his execution, and the title of the purchaser under the execution would prevail.

In all these cases, however, the subsequent dealings of a creditor and debtor, after a purchase under execution of the whole property of the debtor, are watched with suspicion, and their character and the circumstances attending them may be resorted to for the purpose of giving tone to the original purchase. In this view the plaintiff has adduced in testimony an entire history of the conduct of the parties in relation to the property in dispute during a series of years, and the various transmutations of ownership which it passed through. In this view we have looked at this mass of testimony to be weighed as a whole in giving character to the original purchase, and not in reference to the independent validity of each separate transaction. Yiewing the transactions in this light, wo have not been satisfied, from the evidence in the case, that a court would be justified in pronouncing the purchase of Stacker & Erwin fraudulent, and in transferring the title to the Scott House property to the plaintiff. We do not attach much importance to the unsigned agreement or memorandum of 1840, which was found among Collins’ papers at his death. To do so, would subvert all the well established principles of evidence. It does not appear that the paper was ever seen, or that its existence was ever known by either S. or E.; and if it was, the fact that it remained unexecuted would show that they repudiated it. The only ground upon which the paper is supposed to have any value as testimony, is a supposed coincidence in its terms with events as they subsequently transpired. But the force of this argument is destroyed if the events can as well be reconciled with the integrity of S. & E. as they can with the imputed corrupt bargain. This paper at most shows that Collins was willing, and may have thought himself able, to effect the arrangement of his property which is there set out; it can not show, nor have any tendency to prove, that such an arrangement was actually contemplated by S. & E., much less that it was consummated.

The purchase of the Virginia Hotel property from Tiffin is supposed to be a strong corroboration of the fraudulent agreement and plan foreshadowed in the unsigned paper. But other instances are adduced of similar conduct on the part of Collins in reference to other persons besides Stacker; and they altogether rather show a peculiarity and a uniformity in the conduct of Collins than fix any complicity in the affair upon Stacker. There is no evidence to show that Stacker knew of this transfer, and he denies it.

The executed agffeement of June 19, 1844, is relied on on as conclusive evidence of fraud, so far as the transaction itself is concerned, and very strong evidence to fix an original corrupt bargain in 1840. This agreement is considered the most prominent piece of evidence brought forward in the wliole of the plaintiff’s case. We have therefore bestowed upon it much consideration.

This paper, it will be obseiwed, was executed nearly four years after the purchase at the execution sale, and about four years before the sale to Morrison in 1848. At the date of its execution, the title to the property now in dipute, and all the property purchased at sheriff’s sale by S. & E., had been transferred to McConnell, and by McConnell conveyed to Beyburn, in trust to secure the notes given to Stacker by McConnell and endorsed by Collins. It seems also from the paper itself and from the testimony of Mason, who drew it up, that considerable real and personal securities, supposed then to have value, had been placed in Stacker’s hands in New York by Collins. The agreement relates to both classes of property, that bought at the sheriff’s sale and then in the legal ownership of Beyburn, and the New York securities. These latter ultimately proved of no value, and it is conceded, or, if not conceded, the evidence shows that this agreement was abandoned almost as soon as made. It soon became apparent that Collins had no title to a large number of the lots referred to in this paper, and at all events the terms of the contract were never carried out by either party.

We do not wish to be understood as giving any opinion as to the legal effect of this instrument viewed as an independent transaction, and affecting at least a portion of the property covered by it. The question to be decided is not whether the agreement was valid in part or altogether. We are not called upon to say whether it could be enforced, or could ever have been enforced, or whether it would be treated as fraudulent and void as to creditors. The agreement is not sought to be enforced, nor is it sought to be avoided or set aside. It is used to throw light upon previous transactions, and give a character to what passed before and after its execution. In this respect it is important and entitled to weight. There are some provisions in it which, as far as we have been enabled to understand them, can not be sustained. These provisions do not, however, relate to the property now in dispute. At most, it can only be claimed that they show a willingness on the part of Stacker to be used as an instrument by Collins to protect a portion of Collins’ property from his creditors — not the property now in dispute. We see the force of it in this point of view, .and have not wished to detract from its importance. At the same time we look upon it as connected with a train of events during a series of years, and the circumstances under which the paper was made, and are not willing to let the whole case turn upon this isolated transaction. We are by no means satisfied with the explanations which have been given of it, and we think it susceptible of an interpretation very unfavorable to Stacker; but we think it would be attaching undue importance to this document to make it conclusive of a fraudulent purchase four years before it was executed. This agreement, moreover, whatever bearing it might have upon Stacker, ought not to affect Morrison, in whose heirs the title now is, unless he had a knowledge of it. The circuit court has, it is true, found that such notice existed, but we have not been able to see the evidence upon which this finding is based. Collins was no doubt the agent in inducing Morrison to purchase the Scott Hotel property, and he was, as the evidence shows, advised of Stacker’s willingness, or perhaps of his written or oral agreement to let Collins have this property upon certain conditions, and he doubtless agreed witli Collins to give him the same privilege of redemption which he enjoyed from Stacker. But it does not appear that Collins exhibited to him the paper executed in 1845. It does not appear that Morrison ever saw or heard of this paper. So far as it related to the lot he was in treaty for, the agreement of 1844 did not show any thing fraudulent on the part of Stacker. It was a mere agreement to let Collins have this lot at any time within five years upon his paying an agreed sum, which sum, added to the price fixed upon the other lots selected, made the exact amount of the debt as settled between them. There was nothing fraudulent in this, and as the agi'eement was abandoned — was no longer subsisting — it is reasonable to infer that it was never shown to Morrison. The latter evidently, although purchasing at Collins’ suggestion, relied altogether upon Stacker — considered himself as buying from Stacker, and from him alone. He did not regard Collins as having any claim upon the property. He was seeking a profitable investment of money, and he sought to make and supposed he was making that investment safe as well as profitable. His agreement to let Collins have the property upon payment of the eighteen thousand dollars and twelve per cent, interest was not inconsistent with this purpose; nor was it fraudulent upon creditors of Collins. We have not for these reasons regarded this paper of 1844 as a controlling fact in the case, and we will now advert to two or three of those prominent circumstances which have led us to the conclusion to let the the judgment of the circuit court stand.

1. When a fraudulent purchase has been made to defeat or delay the vendor’s creditors, or the creditors of the defendant in the execution if the transfer has been effected in this way, one of the most common, natural and prominent marks of the fraud is a disparity between the value of the property conveyed or purchased at execution and the price paid for it, or the debt for which it was sold. It is difficult to see how a creditor can use an execution sale to cover up property of his debtor from other creditors, where the value of the property is not greater than his claim. When we speak of an inequality we do not mean that it must be between the value of the property and the amount bid for it on the execution sales, but between its value and the actual amount of the indebtedness, whether the bids upon the property come up to that amount or not. This mark of fraud is totally absent from this case. It does not appear that at the date of the purchase under execution, or at any period from that down to the transfer of the property from Stacker to Morrison, the value of all the property bought by S. & E. exceeded or was equal to the amount of Collins’ indebtedness to these parties. We do not say that the value of the property was exactly equal to, or certainly less than, the amount of the debt, because neither the one nor the other can be certainly determined; but our conclusion from the whole testimony is, that the property never would bring, at public sale or from private purchasers, the amount which Collins owed Stacker. Of course this is a matter about which there is contradictory testimony, but the weight of evidence is clearly this way. It ought to be, we think, very clearly the other way in order to justify the setting aside this sale for fraud. It is manifest that Stacker never thought the property equal to his debt, and it is clear that Erwin did not, as he sold the interest he represented at fifty per cent, below its nominal value. Collins’ creditors did not seem to regard it in any other light, for the testimony shows that some of them, at all events, had ample facilities of getting the property from Stacker by paying up Collins’ indebtedness. January was a large creditor, and was apprised of Stacker’s wishes to realize his debt in money, and his willingness to let him or any of Collins’ friends or creditors take the property. Collins, it is evident, could not procure any responsible man to undertake this. The sales to McConnell and Bowman were doubtless procured by him for this purpose, but they resulted in nothing but a change of title. It was not until the sale to Morrison that any considerable sum of money appears to have been realized. How much was obtained from the sale of the tract called the Gamble tract, does not appear; but the impression left upon our minds from all the testimony is, that Stacker never did realize from all the sales he had made the full amount of his claim upon Collins.

2. The apparent want of motive on the part of Stacker to put himself forward as a shield to protect Collins’ property is a circumstance not easily reconcilable with the hypothesis of the plaintiff’s case. Stacker and Morrison were men of' large wealth. The former lived in Tennessee, and was a, member of the two mercantile houses to which Collins was largely indebted. He only occasionally visited St. Louis. Collins and McConnell and Bowman were not men of property — the two first were insolvent, and the last did not have; the command of capital. They were all, to say the least, active and rather visionary speculators. In dealings between persons so differently situated, of such opposite pursuits and purposes, we might expect the transactions to present some discrepancies, and that they would be viewed in different lights, and intended for different purposes by the different parties engaged. Stacker, thi’oughout, is apparently engaged in securing his debt. Morrison, so far as he appears in the affair, is manifestly seeking an investment of his capital at a high interest. Collins and McConnell and Bowman are looking forward to a great increase in the value of this property, and expecting the benefits of such rise. It might have so resulted. But these expectations were never realized. Collins died insolvent — the expected increase of value did not happen during his life — the schemes, participated in, no doubt, to some extent by all the parties, were never realized. Stacker had divested himself of all interest in the property at a sum which he says was insufficient to cover all the indebtedness of Collins ; but he was not a resident here, and did not wish to invest capital in St. Louis. Morrison died after an ineffectual attempt to sell the property to Bowman. To suppose that Stacker, a citizen of Tennessee, came here in 1840 and, in conjunction with Erwin, bought under execution all the real estate of Collins upon a fraudulent agreement entered into with Collins to hold the property in trust for Collins, would seem, under the circumstances, rather a violent presumption. No satisfactory motives appear for such conduct on the part of Stacker & Erwin. The latter was merely an agent, and had no interest in the property or the debts, and yet such an agreement, if it existed, must have been known to him. His testimony is in the case, and such agreement is utterly denied. There is certainly no motive on the part of Erwin to have been a party to an agreement of this sort, and just as little in Stacker, since the agreement supposes that after the payment of the debt Collins was to have the property. What inducement could there be for Stacker to undertake this position, which would clearly re-suit in Collins’ benefit, and by which he himself could- on no contingency make any thing ? It is very easy to understand that Stacker would willingly concede to Collins the privilege of redeeming the property, since Stacker was not a speculator in land, nor did he desire to own any in St. Louis. He only wished to secure his debt. This is, however, a very different matter from holding the property with a view to keep off the other creditors of Collins — a gratuitous office, for undertaking which some motives of friendship or relationship, or some real or supposed obligation, ought to appear.

8. But in reference to this particular lot, the right to which is now in controversy, the controlling circumstance which has governed our determination is the character and value of Collins’ title to it in 1840, when the sale under execution was made. Collins had, in truth, no available title whatever to the Scott Hotel property in 1840. He had a remote equity which subsequent events might have ripened into something of a tangible and substantial title, but he had not a shadow' of interest which could be worth any thing to his creditors, if that shadow had not been converted into substance by the outlays of large sums of money by Stacker. To the larger portion of this lot Collins had no title at all; it was outstanding in the heirs of Forsyth. This title was subsequently acquired by Stacker at the sale made by Forsyth’s administrator. The twenty-eight feet of ground remaining Collins had conveyed before the execution sale to De Munn, and De Munn had mortgaged it to De Angelis, and Stacker ultimately procured this title by purchasing at the sale made to foreclose the mortgage. To effect these purchases Stacker' paid about seven thousand five hundred dollars to Forsyth’s administrator — about four or five thousand dollars on the De Angelis mortgage, and one thousand for procuring Eobert Forsyth’s interest. He also expended six thousand dollars in rebuilding the hotel. What rights could Collins’ creditors have in this lot ? What would be the value -of their interest in it, if the title of Stacker and Morrison is subverted? Did the plaintiff, at his execution sale, buy the titles which Stacker bad acquired subsequently to his purchase in 1840 ? Are these acquisitions to be transferred to him ? This suit is brought, as we have stated, to have this lot (called the Scott Hotel property) conveyed to the plaintiff, who was a creditor of Collins’ for about eighteen hundred dollars, and who obtained a judgment for his debt, levied an execution on this lot, and bought it as Collins’ at sheriff’s sale. Collins’ title was a very remote equity — reaching only about twenty-eight feet of the lot, and dependent on the existence of a secret trust between him and De Mun. There is no direct proof that any such trust actually existed, but circumstances tend to show that probably De Mun held the title for Collins. Conceding this trust, there is still a heavy encumbrance upon it. This encumbrance Collins was totally unable to remove. Stacker bought the title at the sale under the mortgage. To justify us in transferring this title to the plaintiff, the proof of fraud ought certainly to be perfectly satisfactory. The circumstances in evidence ought to be such as could leave no reasonable doubt upon an impartial mind. The case ought not to be one where half a dozen men would come to one conclusion, and another half dozen to the opposite. It ought to be clear. We do not so consider it. We are aware that there are many portions of evidence which have not been referred to, which present an unfavorable view of this case, and that the transactions to which we have particularly referred admit of a different construction from that we have placed upon them. But we have acted on the principle of giving the defendants the benefit of a construction favorable to the honesty of the transactions, when that construction would as well consist with the circumstances as a contrary one, and that where doubts are entertained as to the true construction to be given to the conduct of the parties, those doubts should'be resolved in favor of the defendants.

Judgment affirmed;

Scott, J., concurring; Judge Bich-ardson not sitting, having been of counsel.


text:
    Doyle, Appellant, v. Doyle, Respondent.
    1. Where a divorce is sought on the ground of cruel and barbarous treatment, the inquiry instituted should embrace the conduct of the parties toward each other during the period of the alleged misconduct; proof of particular acts of cruelty, especially where the divorce is sought by the husband, will not generally be sufficient to authorize a judgment of divorce. The conduct of the husband should not, under such circumstances, be such as to contribute materially to the wrong and violence of which he complains. If the alleged cruel treatment be the result of his own ill conduct he can not have the redress sought.
    2. ExeSjjt by virtue of statutory provisions the courts can decree alimony only as an incident to a judgment of divorce.
    8. The separation of a husband from his wife during the pendency 0‡ a suit by him for a divorce does not constitute an abandonment within the meaning of section 9 of the act concerning divorce and alimony (R. C. 1845, p. 428); it would not — the husband failing to obtain a divorce — authorize a decree for alimony. . *

      Appeal from St. Louis Circuit Court.

    This was an action for divorce commenced May 1, 1852. The ground of the action was such cruel and barbarous treatment as to endanger the life of the plaintiff, the husband, and the offering of such indignities to his person as to render his condition intolerable. Particular acts of violence were alleged«extending through a period of time commencing in May, 1848, and ending April 29, 1852. Defendant in her answer alleged various acts of violence and cruel treatment on the part of the husband, and gave an entirely different version to the matters alleged in the petition, charging the wrong therein to have been on the part of the husband.
    The cause was heard by the court, and a divorce was refused. The court then sent the cause to a commissioner touching the question of the support and maintenance of the wife and the two children in her care. The commissioner having reported, the court decreed to the wife an allowance for her support and maintenance, and also allowances for the support and maintenance of two of her children in her care. The court refused to grant to the plaintiff the care and cus tody, of said children.

      Dick, for appellant.
    I. The court erred in refusing to plaintiff the divorce prayed.
    II. The court also erred in depriving plaintiff of the custody and control of his two children. By the order and judgment of the court that plaintiff should pay to his wife all the money required to support his children, the common law right of the father was set aside.
    III. The court failed to find facts on which to ba^e its judgment for maintenance. The law only authorizes the court to decree support where the husband shall “ reiuse or neglect to maintain and provide for” the wife. The court’s finding is totally silent as to this fact.

      S. T. & A. D. Glover, for respondent,
    cited 1 Greenl. Bv. § 432 ; 9 Mo. 539 ; 1*2 Mo. 53 ; 1 Hagg. 342 ; 2 Paige, 111; Wright, 475 ; 4 Paige, 643, 470 ; 9 Conn. 233 ; 1 John. Ch. 106, 492, 364 ; 4 Blackf. 133 ; 4 N. H. 463 ; 10 N. H. 272 ; 4 Dess. 79, 560 ; 6 Mass. 149 ; 10 Paige, 20 ; 3 Ed. Ch. 62, 389; 1 McCord, 205; 6 Harr. & Jo. 488 ; 4 Hen. & Mun. 407 ; 9 N. H. 309, 328 ; 3 Paige, 267 ; 1 Green, Ch. 19; 19 Ves. 394; 1 Clark, 344; 1 Bland, 101: 4 Johns. O.* 501; 1 Paige, 84; Bishop on Marriage and Divorce, 604, 606, 618; 9 Johns. Ch. 92 ; 2 B. Mon. 372 ; 5 Pick. 428; 3 E¿lw. Ch. 194 ; 2 Green, Ch. 171; 3 Dana, 28.
   Scott, Judge,

delivered the opinion of the court.

This is a petition for a divorce by the husband for alleged cruelty towards him on the part of the wife. It is obvious that in cases of such kind the attention can not be confined to the particular act or acts alleged as a ground for a divorce, but the inquiry must necessarily involve the conduct of the parties to each other for the period during which it is alleged that the misconduct took place. It is not like the case of a bill for divorce for adultery or any other specific act, on the proof of which the complainant by law becomes entitled to a divorce, but the cruelty in most cases which gives cause for a divorce must be evidence rather by general conduct than by particular acts. The act or acts alleged may be proved, but a divorce would not follow as a matter of course. These observations are made as a justification for our foregoing an examination of the conflicting testimony of the witnesses in relation to the facts on which the plaintiff places his right to a divorce ; for the truth of the contested facts may be admitted, and yet counterpoising facts may debar him from the relief he seeks. We do not maintain that a single act of cruelty may not be evidence of so depraved a heart and be accompanied with such circumstances as would authorize a divorce, but we speak generally of cases for divorce on the ground of cruelty, and we see nothing in this case nor its circumstances which serves to distinguish it from the mass of cases. Courts interfere on the ground of cruelty to prevent future harm, rather than to punish the defendant for what has been already done. Hence it follows that all the circumstances together must be taken into consideration, for the question is not whether this or that fact alleged would render it the duty of the court to pronounce for a separation, but whether all the facts combined ought to lead to that result. (Saunders v. Saunders, 1 Rob. 547.) In some states the husband is not allowed to exhibit a bill against the wife for cruelty*but our statute allows this; yet we can not help feeling that ordinarily it is an unnatural position for the husband to occupy. The power with which he is clothed by law to constrain the conduct of his wife, his superior strength in most cases, would naturally cause him to be regarded in a less favorable light in such a position than the wife, who has no legal control over the actions of her husband, and whose sex and inferiority in point of strength force her into the courts to seek protection from unmerited wrongs and violence. The case of Perry v. Perry, 1 Barb. C. 516, maintains that on a bill of a husband against the wife for separation on the ground of complicity, it was not sufficient for him to show a single act of violence on her part towards himself and those who are under his protection, or even a series of such acts, so long as there is no reason to suppose that he will [not] be able to protect himself by a proper exercise of his marital power. In such a suit it was material that the husband should establish such a continued course of bad conduct on the part of the wife towards himself as to satisfy the court that it is unsafe for him to cohabit or live with her.

When all the circumstances of this case are considered, taking as true the acts of violence alleged to have been committed by the wife towards the husband, we are of opinion that the husband is not entitled to a decree, and that opinion is based on the conduct of the husband himself. An entire exemption from fault or censure is not regarded as necessary in order to entitle one of the parties to a marriage to a separation from the other on the ground of cruelty. But when one of the parties, and especially the husband, complains of the cruelty of the wife, he must look well to it that his own deportment has not contributed materiallylio~tIie wrong of which he complains. If the husband "tecs — fey his conduct stifled in the breast of his wife all sentiments of love or regard, it is not for him afterwards to complain of her cruelty. If the cruelty under which he suffers be the natural jeturn of his own ill conduct, he can not have redress in a court of justice, but must find his remedy in the correction of his own manners. The act of the wife which led imnUdiately to the institution of this suit, is the one on which most stress is laid by the complainant. The conduct of the parties on that occasion is differently represented by the witness. Take it the transaction was as represented by the complainant. It is certain that the wife on that occasion was sick and in bed. The duty of a husband on returning home under such circumstances was plain. But before he entered the room of his wife, he went into the kitchen and inquired of the servant he found there, “ how is that woman ?” Could any thing be more significant of the character of the feelings rankling in his heart than such an inquiry ? Is it strange that a fight occurred when he afterwards went into the presence of a high spirited woman with the state of mind indicated by such a question ? The biting of the wife’s finger, her expulsion from his house by her husband — acts for which no justification or explanation was offered — Iris spending most of his evenings in a drinking saloon, are extenuations of the conduct of the wife, and show that the wrong has not been all on her side. There is nothing in the record which shows that the husband might not by his conduct have avoided all the injuries of which he complains without any sacrifice not required by the duty the husband owes to the wife. Married people must consult each others tastes and habits; and when they thwart each other in this respect, and a quarrel attended with violence ensues, they must not expect that the law will separate them. The most important interests of society depend on the preservation of the marriage tie ; a wide-spread dissoluteness of manners must follow when it is once established as the law that a marriage can be made to subsist no longer than it comports with the interests and passions of the parties to it.

The extent of the jurisdiction of our courts in matrimonial causes is limited by statute; a court has no authority to grant alimony but as an incident to a divorce, except where it is conferred by law. The ninth section of the act concerning divorces (R. C. 1845) allows a decree for alimony when the husband, without good cause, shall abandon his wife and refuse or neglect to maintain and provide for her. Without such a statutory provision the courts can not decree alimony but as an instance to a divorce. (Yule v. Yule, 2 Stockton’s Ch. 138; Bishop on Marriage and Divorce, 549 and following.) It becomes then material to ascertain whether the decree for alimony in this cause can be sustained. The law only allows such a decree on account of abandonment accompanied with a neglect to provide for the wife. Does the separation of a husband from his wife during the pendency of a suit for a divorce constitute an abandonment within the meaning of the statute ? The husband has a right to sue for a divorce, and it would be hard to compel him to cohabit with his wife during the pendency of such suit. Such cohabitation, if not evidence of a condonation of the offence for which the divorce is sought, would at least be very embarrassing to him. But the law does not impose any such obligation on the husband. In England it is not malicious desertion for the husband to forsake cohabitation with his wife during the progress of a suit brought by him to obtain a decree of nullity of marriage, notwithstanding the judgment of that suit be against him. “ During the pendency of that suit,” says Sir John Nichol, cohabitation was not only not incumbent by law on the parties, or on either of them; it would even have been legally censurable, at least in the husband.” Therefore a withdrawal from cohabitation under such circumstances should not lay .the foundation of a suit for desertion. (Bishop on Divorce, 527.) When a suit is pending for a divorce, either from bed and board or the bond of matrimony, or to declare a marriage duly solemnized void from the beginning, it is legally improper for the parties to cohabit together, and this without reference to what may be the vdtimate result of the suit. (Ib. 569.) Under color of maintaining a suit for a divorce the husband would not be permitted to avoid the consequence of an abandonment and neglect to provide for his wife ; but when a suit is prosecuted in good faith for a divorce, nothing would be more unreasonable than-to hold a separation from the wife during the pendency of such a suit a desertion, subjecting him to a suit for alimony. There is no hardship in this. If the wife by her conduct has given the husband a cause for a divorce, it ,f is nothing but just that she should forfeit; her right to a support from him from the time of the commission of the oSence —for which the law absolved the husband from all obligations to her. If the suit for a divorce fails of its end, the wife has all the common law remedies provided for obtaining, a support whilst cohabiting with her husband. The result of the suit for the divorce showing that the desertion of the husband was unwarrantable, the credit she may have obtained^during the suit for necessaries suitable to her condition would be a debt against her husband, unless she was suitably provided.

We can not yield to any suggestion of expediency that the reversal of the decree for alimony will he only laying the foundation of another suit, as the proceeding would he immediately renewed on a failure of the complainant to provide for his wife. We think that the result to which we come is not only warranted by law, hut is supported by considerations of policy. For these parties who have passed so long a portion of their lives together, and who have reared a family of children, we have left open a door for reconciliation which would have been forever closed had the decree for alimony been permitted to stand. The husband is now fully aware of his situation, and we trust that he may pursue that course which will again place him at his fireside, surrounded by his family, and which would redound so much to his honor and to the peace and happiness of his future life. If this can not be done, his experience must have satisfied him how little is to be gained by going to law, and he should without the compulsion of judicial proceedings make a suitable provision for his wife, not waiting to be bound in bonds for the maintenance and support of his wife, than which nothing can be more galling to a free and independent spirit. The decree refusing the divorce is affirmed. So much of it as allows alimony and disposes of the custody and care of the children is reversed.

The plaintiff will pay cost.

Judge Napton concurring; Judge Richardson not sitting having been of counsel.


author: Napton, Judge, Scott, Judge.

text:
    Smith & Wife, Respondents, v. Sweringen et al., Appellants.

    1. A testator died leaving Mm surviving six children, and four grand-children, the children of two deceased daughters. By his will he made certain specific devises and bequests to his widow and to others and for the payment of debts. To three of his grand-children (daughters of one of said deceased daughters) he made a devise as follows: “I also give and bequeath to my grand-daughters, M. A. B., M. E. B. and E, W.—children of my daughter, E. W. C.—such portion of my landed estate as would have been their mother’s had she survived me and I had died intestate, to be divided equally between them.” To the other grand-child he made a devise as follows : “ Taking into consideration the present state of the remaining members of my family, I think it but just and equitable that my grand-daughter, M. J. S., shall receive only one-half of such proportion of my landed estate as would have been her mother’s, had she survived me and I had died intestate.” The testator not having named three of his daughters in his will, he died intestate as to them.

      Held, that the intestacy alluded to in these devises to his grand-children was not a total intestacy; that the testator had reference therein to that portion only of his estate which was not embraced in the specific devises made by him.
    2. A. died possessed of numerous lots and parcels of land; a partial partition, embracing a portion of said lots, was made, and a lot, that had been sold and conveyed away by A. in his life-time, was assigned to B., one of his representatives. This lot was embraced in the partition, and was assigned by the commissioners to B. by mistake and in ignorance on tlie part of all the parties to the partition suit that it had been conveyed away by A. in his life-time. Subsequent proceedings were instituted to obtain partition of other lots not embraced in the first suit.

      Held, that, upon ordinary principles of equity, B. would be entitled to have this mistake corrected; that this correction might be made by taking the value of the lot into estimation in determining the share to be assigned to ' B. in the lots embraced in the second partition suit.
    3. The value of the lot thus to be taken into consideration is, it would seem, its value at the time of the allotment in the first partition proceedings.
    4. This equity in favor of B. is not of such a character as to cease with his death; it would pass by a devise by B. of all his property including the lands embraced in the second partition suit. (Scott, Judge, dissenting.)

      Appeal from Si. Louis Land Court.

    This was an action for partition. William Christy died in the year 1837 possessed of numerous and valuable lots and tracts of land. He left him surviving the following heirs at law : two sons, Edmund T. Christy and Howard E. Christy; four daughters, Harriet M. Dean, Matilda N. Taylor, Mary Ann Wright and Virginia N. Christy (now Mrs. Smith, plaintiff in this suit); and four grand-children, three of whom, Mary Ann Berry (now Mrs. Pendleton), Martha E. Berry (afterwards Mrs. Mitchell), and Frances S. M. Wash (now Mrs. Goode), were the children of Frances W. Wash, a daughter of said William Christy, and one, Mrs. Martha J. Sweringen, the daughter of Mrs. Farrar, who was a daughter of said William Christy.

      Said "William Christy executed a will, of which the following is a copy: “ I, William Christy, of North St. Louis, in the county of St. Louis and State of Missouri, do make this my last will and testament. I give and bequeath to my beloved wife, Martha T. Christy, for and during her life, two entire blocks, of six lots each, of land on which I now reside and otherwise occupy, with all the buildings and other appurtenances thereunto belonging, for a place of residence for her and any of my children she may choose to live with her. I also give and bequeath to my beloved wife aforesaid, for her support and the support and education of my young and unmarried children, all my income of every kind, with all the slaves I may own at my death ; and I do hereby authorize my executors hereafter named, to sell or otherwise dispose of any of my slaves, at the request of my wife, and to supply their places with others more suitable ; and it is my will and desire that my wife shall, and she is hereby at liberty to, bestow my slaves at the time of her death to any one of my children, or make equal division thereof amongst them, or otherwise as she may think best. I also give and bequeath to my beloved wife, her heirs and assigns, forever, all my stock of horses, cattle, &c., all my household and kitchen furniture and provisions which may be on hand at the time of my death; also, for her support and the education of my daughter Virginia, all the money which may be due me after my debts are paid, and all the rents and proceeds of my property, of every description, for and during her life; and I hereby authorize and empower my executors, or any two of them, to sell any of my land not otherwise disposed of, for the payment of my debts ; also to make conveyances to [of] my lands, which 1 may have and not conveyed, in as full and ample a manner as if done by me. I also give and bequeath to my grand-daughters Mary Ann Berry, Martha Eliza Berry and Frances Wash, children of my daughter Frances W. Christy, such portion of my landed estate as would have been their mother’s had she survived me and I had died intestate, to be divided equally between them. I also give and bequeath to my daughter, Virginia M. Christy, the two blocks of lots, &c., herein willed to her mother during her life, to her, the said V. M. Christy and the heirs of her body forever; but should she die without leaving heirs of the body, the property hereby willed to her [and her] mother during their lives shall then be and become the property of Edmund T. Christy and Howard P. Christy, to them and their heirs of their bodies, or either of them; in case that but one of my said sons shall leave a legal or legal heirs of his body, that one shall inherit the aforesaid property. Should my grandson Thomas Wright live until he is fifteen years of age and be then at college, my executors, or any one of them, are hereby empowered to dispose of as much of my landed estate as will enable them to pay three hundred dollars yearly for three years, in support of his education, if necessary. It is also my will that my executors, or any one of them, shall pay to my daughter Virginia, from the income of my estate, yearly, four hundred dollars, to commence after the death of her mother, should she be then unmarried, and continue the payment yearly until she shall be united in the bonds of matrimony. All my North St. Louis property, which has not or may not be disposed of before may death, and which lots or pieces of land can be divided by the numbers which will be found in the deed made to me by my partners, each taking a proportion of the most valuable and least valuable with a deduction from those who has or may have received a lot or lots, so as to do equal justice to all, without interfering in any manner with the houses or lots willed to my daughter Virginia. In order to provide the means to pay off the legacies herein contemplated, I reserve from sale or division among my children a small block of six lots of land lying between Tenth and Eleventh streets, within my meadow field and a little west of the Catholic college, and numbered- seventeen, eighteen, nineteen, thirty, thirty-one, thirty-two. The said lots or any part of them my executors or any one of them are hereby fully empowered to sell and convey, and dispose of the money, agreeably to my intentions made known in this will. Taking into consideration the present state of the remaining members of my family, I think it but just and equitable that my grand-daughter Martha J. Sweringen shall receive only one-half of such proportion of my landed estate as would have been her mother’s had she survived me and I had died intestate. I give and bequeath to my daughter Virginia the four western tenements of my brick row, with their width of the lot to the southern line of said lot, with the right to use the water of the well in said lot without restraint. And lastly, I do hereby nominate and appoint Nidge Robert Wash, Gen. W. H. Ashley, Nathaniel P. Taylor, and my old friend Gen. William Clark, executors of this my last will and testament, who are hereby, or any two of them, fully empowered to transact the business contemplated by this my last will. Should it so happen that any one or more of the persons named as my executors shall find it inconvenient to act, or having acted shall wish to withdraw, they or either of them are hereby authorized to appoint his successor or successors, who when thus appointed shall possess the same power and authority, under this, my will, as those appointed now by me,” &c.
    The plaintiffs in this suit — which was commenced February 9, 1855 — are Edwin B. Smith and his wife Virginia M. Smith, daughter of said William Christy. Partition is sought of fourteen lots of which William Christy died seized. Martha T. Christy, widow of William Christy, died in the year 1849. Edmund T. Christy died in the year 1851, having-received advancements exceeding in value the share he would have been entitled to as heir of said William Christy. Howard F. Christy died in the year 1853, having devised all his interest in the land sought to be divided to his wife Susan Preston Christy. The petition set forth that Mrs. Martha J. Sweringen was entitled to an interest of (8|) in' the lots embraced in this suit; that Mrs. Dean, Mrs. Taylor, Mrs. Susan P. Christy and Mrs. V. Smith were each entitled to an interest of l of ]| ($) in said lots ; that the children of Mrs. Wright were entitled collectively to the same interest; that Mrs. Goode and Mrs. Pendleton were entitled each to an interest of 3 of gf in said lots ; that Mrs. Mitchell’s heirs were entitled collectively to the same interest.
    Mrs. Sweringin answered claiming one-fonrteenth of the property not specifically devised by W. Christy, and also claiming compensation for one-fourteenth of all property specifically devised. The answer sets forth sundry parcels of property which were specifically devised by said Christy, and charges that had he died intestate Mrs. Farrar, mother of said Mrs. Sweringen, had she survived him, would have been entitled to one-seventh of the lands specifically devised, and prays for compensation accordingly.
    George W. Goode and wife answered setting forth that Mrs. Wash — mother of Mrs. Pendleton, Mrs. Mitchell and of Mrs. Goode — was the daughter of William Christy; that Mrs. Goode was entitled to an interest of one twenty-first part of all the lands not specifically devised, and was entitled to compensation out of the estate of the deceased for the land specifically devised. Compensation was accordingly claimed for the specific devises. A similar answer was filed in behalf of the children of Mrs. Mitchell, by their guardian. D. D. Mitchell also, as administrator of his wife, claimed compensation, by separate answer, for the property specifically devised.
    Susan P. Christy, widow and- devisee of Howard F. Christy, answered, setting forth a prior partial partition, in the year 1843, among the heirs of William Christy. The answer proceeded to set forth that in the said partition a certain lot of land, No. 256, of 80 feet front by 150 feet deep, in block 67, was assigned and allotted in fee simple to her husband, Howard F. Christy; that the title to said lot entirely failed, said William Christy having conveyed the same in his lifetime, by deed duly acknowledged, to Bernard G. Farrar; that said lot was assigned by the commissioners in ignorance of the fact that it had been conveyed away by said W. Christy in his lifetime. She prayed the court to direct the commissioners to allot to her, from the estate undivided, property of equal value to the lost lot, No. 256, and to assign to her thirteen eighty-fourths of the residue.

      Those portions of the answers of Mrs. Sweringen, Mrs. Goode, Mrs. Mitchell, and others, setting forth the grounds upon which compensation was claimed in respect of the lots and tracts of land specifically devised, were stricken out on motion of plaintiff; so also was that portion of the answer of Susan P. Christy setting forth the facts on which a correction of the mistake in the allotment of lot No. 256 was prayed.
    An amended answer was filed by Susan P. Christy setting forth at length the proceedings in the partition suit in 1843. It also set forth that on September 20,1832, William Christy and wife conveyed certain property to their sons Edmund T. and Howard E. Christy ; (for the terms of this deed see the case of Farrar & Sweringen v. Howard F. Christy’s Adm’rs, 24 Mo. 455 ;) that this property had been brought into hotch-pot in the petition of 1843, and had been charged as an advancement in fee simple to Howard F. Christy ; that Howard F. Christy became embarrassed and procured a release, October 7, 1842, from the heirs of Wm. Christy, and at the same time executed a bond to J. T. and Martha Sweringen to indemnify them for any interest they might release ; that suit had been instituted by Sweringen and wife on the bond, alleging that they would have been entitled to the property at the death of H. F. Christy if they had not released it, and claiming damages of his administrator; that similar suits had been instituted on alleged lost bonds by other heirs; that the heirs of William Christy had caused H. F. Christy to be charged for said property as an advancement in fee simple, and had received full compensation therefor in other property in the partition of 1843 ; that it was contrary to equity to exact double payment for said property and for the plaintiffs in said suits to allege that they had any right to recover compensation for the property charged as an advancement in fee simple to him in 1843. She prayed that no further partition should be made of the estate of William Christy until Sweringen and wife, and the other plaintiffs, should dismiss their suits on the bonds.
    This answer was stricken out on motion of plaintiffs.

      W. Preston, for appellant Susan P. Christy.
    I. The court erred in sustaining plaintiffs’ motion to strike out a portion of Susan P. Christy’s original answer. The estate of coparcenary still exists in Missouri; it has never been abolished. It is called for and incorporated in the statute of descents. All the co-tenancies known to the common law are yet in force here. The partition act itself recognizes them. The decisions do not sustain the observation of Kent. (4 Kent, 367.) A distinction still exists between coparcenary and estates in common. (See 4 Cruise, 84, tit. 32 Deed, ch. 6, § 16.) There was an implied warranty in a deed of partition among coparceners. Joint tenants and tenants in common were left to their mutual covenants in their deeds. Parceners were compellable to make partition by writ; otherwise with joint tenants and tenants in common. If the latter voluntarily made partition, the law would not raise mutual covenants for the protection of the title by implication. By the statute of 31 Hen. VIII. joint tenants and tenants in common become compellable to make partition. An implied warranty was then annexed to the partition because it was compulsory. Thus the rule arose that when compulsory partition was made by writ or judgment between joint tenants or tenants in common, there was an implied warranty; but where voluntary partition was made by the private act of the parties, they were left to the mutual covenants in the deed of partition, as at common law. (See Co. Litt. 167 a\ id. 187 a; Rector v. Waugh, 17 Mo. 1.)
    II. An implied warranty is annexed to the partition among the heirs of William Christy. By the common and by the civil law there is an implied wai’ranty in all cases of partition among co-heirs. (See Litt. sec. 262, 263 ; Co. Litt. 173 6, 174 b; 2 Domat, Civ. Law, p. 160, § 2749, 2777, 2778, 2781; Bustard’s case, 4 Co. R. 121; 1 Domat. § 382 ; Allnatt on Part. 1567 ; Bac. Abr. Coparceners, P.; 1 Tuck. Com. 173.) Such was the general law of Europe, and no cases in conflict with it aro known to have arisen in the United States. (See Weiser v. Weiser, 5 Watts, 280 ; Patterson v. Banning, 10 Watts, 135; Venable v. Beauchamp, 3 Dana, 321.) No court in England or America ever held that where a partition was by act of law the partitioners were not subject to repartition, (Oro. Eliz. 902 ; 3 Bibb, 309,) or to contribute compensation where the title failed or property was allotted by mistake. Where the partition is by writ de partitione facienda or judgment, there is an implied warranty. In the case of William Christy’s heirs, the partition was made by the circuit court in 1843. Howard E. Christy was forced into acquiescence in the decree. He objected to the partition. He did not know then that the lot No. 256 had already been conveyed by his father. (See 11 Pick. 311; 4 Bibb, 355; 3 Greenl. 214; 2 Cruise Dig. 399; 12 Hen. & Munf. Statutes, 138 ; R. 0. 1835, p. 222; Sawyer v. Cator, 8 Humph. 286; Rawle on Cov. 468-9.) There is nothing in the case of Rector v. Waugh, 7 Mo. 1, hostile to the views here urged. (See Picot v. Page, 26 Mo. 398.)
    III. The devise of Howard E. Christy to his wife did not so sever the privity of estate as to destroy the implied warranty. The authorities cited by Mr. Sliepley do not apply to the case before the court. They refer to alienations by par-ceners and evictions of the alienees after partition. It is not true that if one, seized of real estate protected by an implied warranty, devises it, the warranty is gone and the devisee deprived of it. The devisee is subrogated to all the rights of the devisor. Howard was entitled to a warranty in his lifetime, and at his death it would have descended to his heirs if he had died intestate. The devisee is the testamentary heir, and is preferred in law to the statutory heir. Where land is devised and the devisee is evicted, the damages upon a covenant for title broken belong to the devisee and not to the heir. (2' Atk. 369.) Susan P. Christy is clothed with all the rights of Howard Christy in regard to the property. Whatever is descendible in Missouri is devisable. At common law, when the privity of estates was wholly destroyed among parceners the implied warranty ceased. This means where all the parceners have aliened or all have been evicted. Iii the present case the privity is not wholly destroyed. The parties to the partition of 1843 yet hold large and valuable estates under it. (See Bustard’s case, 4 Co. 121.) . Mrs. Christy is a privy in estate. She took the estate with all the incidents, rights and benefits Howard Christy possessed. She is entitled under the equitable principle of contribution to the relief demanded.
    IV. If we only regard this case in an equitable light, as a mistake of the commissioners in assigning the lot No. 256 to Howard F. Christy, then his devisee is entitled to relief. Such mistakes of fact are always relievable in equity. (1 Sto. Eq. § 140.) The equitable principle of contribution for the loss warrants the correction of the mistake and entitles Mrs. Christy to relief so as to give Howard Christy and his widow his equal part of William Christy’s estate. (See Sawyer v. Cator, 8 Humph. 265, 287.)
    The court erred in striking out the amended answer of Susan P. Christy. (See 2 Hill, on Beal Prop. 208 ; 14 Ves. 338 ; Prec. Chanc. 170 ; Thompson v. Exec’rs of Carmichael, 4 N. Y. Leg. Obs. 134; 3 Ired. 581; 2 Williams on Exec. 1286-9; 2 P. Wms. 445; Dyer, 92; 2 Smith L. Cas. 670, 677 ; 11 Pick. 311; 8 Wend. 1; Bompart v. Boderman, 24 Mo. 385 ; 2 Pick 20 ; 3 id. 288 ; 12 Mete. 139.)
    VI. The court did not err in striking out the answers of Sweringen, Mitchell and Goode.

      F. A. Dick and W. T. Wood, for appellants, Goode and wife and Mrs. Mitchell’s heirs and administrator.
    I. The court erred in striking out parts of the answers of Goode and wife, and of Mitchell.
    II. The court committed no error in striking out part of the answer of Susan P. Christy. The parties to this suit were not coparceners, as understood at common law. (2 Cruise Dig. tit. 19.) The parties take their shares of the estate of William Christy by virtue of his will. The warranty between coparceners in partition at common law applied to specific property remaining to the other coparceners, and included in the partition, and never had force in Missouri. The parties to this suit were tenants in common in the lands devised by Vm. Christy. An incident of this estate was compulsory partition. At the time of the partition there was an implied understanding amongst all the parties that the lands brought into the partition were held by valid title. It would at the time of the partition be a defence to the action to plead defect of title. If not then pleaded the parties are estopped. If the title is not valid the parties can not be forced into partition. If they choose, by consent, neglect, or error of fact even, to treat the title as valid, they must, as amongst themselves and their privies, be precluded as to title. If the judgment in partition is not conclusive, how far does the supposed warranty extend ? How long will it continue after the partition made ? What becomes of the warranty after the lot is sold to a stranger ? How, where all the lots are sold ?

      Shepley, for respondents.
    I. The court committed no error in striking out the amended answer of Susan P. Christy.
    II. In the United States there is no warranty annexed to any partition of land by writ, judgment or decree. The estate of coparcenary, as it existed iu England, does not exist here. It is foreign to our system of the tenure of estates; it can no more co-exist with our system of landed estates than could primogeniture. The kind of estate, its tenure, the incidents attached to it, and the consequences resulting from it, are all inconsistent with the manner in which our landed estates are held and conveyed. Both Chancellor Kent and Mr. Greenleaf agree that if coparcenary exists at all in this country, it is practically and substantially the same as tenancy in common. No warranty was annexed to a compulsory partition between tenants in common and joint tenants. Partition by writ was given by the statute 31 Hen. VIII. This statute gave the form of the proceedings. The incidents that attached to the kind and quality of the estate, as the implied warranty in cases of partition, did not follow. (See observations of Kennedy, J., in Weiser v. Weiser, 5 Watts, 280-1.) If there is a warranty annexed to pai-tition by writ in this state, it is just that warranty and none other that is or was annexed to a partition between coparceners in England; such a warranty is against the policy of our law and would unsettle estates. Upon failure of title while in her hands, the parcener could, if she so elect, annul the partition altogether. (2 Cruise Dig. tit. 19, sec. 30; Allnatt on Part. 156.) Ah alienee of a parcener can not recover from the other parceners if his title fails; but the other parceners not having aliened, if their title fails, can recover of the alienee. (Allnatt on Part. 159; Sawyer v. Cator, 8 Humph. 280.) The answer of Susan P. Christy alleges that Howard sold lot No. 256. Neither he nor his alienee can have any benefit of the implied warranty. (All-natt on Part. 159; 8 Humph. 280.) Mrs. S. P. Christy took from Howard by purchase. She could have no benefit of the implied warranty if such exists. If there be a warranty attached to any land either divided in the partition suit or which was valued as an advancement, yet it is an implied warranty that attaches only to the land included in that partition, and does not affect other land of the parties whether divided or undivided. (Weiser v. Weiser, 5 Watts, 283, and cases cited.) If a warranty attached to any or all the lots for which it is claimed, yet that is not a subject matter of defence to this suit, which is a pure statutory remedy. If there bo a warranty, the case is no stronger than if a covenant of warranty had been inserted in a deed of the land. Could it be for a moment contended that a breach of such covenant would be any defence to an action for partition of other lands brought by one of. these parties for partition under the statute ?
    III. The court committed no error in striking out portions of the answers of Sweringen and wife, Goode and wife, Mrs. Mitchell’s heirs, &c.
   Napton, Judge,

delivered the opinion of the court.

Several points have been discussed in this case which we think it unnecessary to determine.

The answers of Sweringen, Mitchell, Goode, &c., involve the proper construction of Christy’s will. At the date of this will, two of the testator’s daughters were dead — one of them, Mrs. Wash (previously Mrs. Berry), leaving three children— and the other, Mrs. Farrar, leaving one daughter, Mrs. Sweringen. The third and eighth clauses of the will declare what portion of his'estate undisposed of these grand-children should take. They provide that the three children of Mrs. Wash shall have their mother’s share, and the one child of Mrs. Farrar shall have only half of her mother’s share ; but, in undertaking to describe what the mother’s share in each case would be, the testator uses language to indicate a child’s portion of his entire estate, without reference to the deductions already made from it by his specific legacies to his daughter "Virginia and to his executors for the payment of his debts. He speaks of it as “ such portion of my landed estate as would have been her mother’s had she survived me and I had died intestate.” Of course, if the testator had died intestate, Mrs. Sweringeu’s mother would have been entitled to one-seventh (or a child’s part) of his entire estate, and one-half of this one-seventli is what Mrs. Sweringen now claims, and one-tliird is demanded as the share of each of the children of Mrs. Wash.

The testator had already devised specific portions of his real estate to his daughter Virginia, and also a portion of his real estate to his executors for payment of his debts. Three of his daughters he did not name in his will at all. If we construe the intestacy alluded to in these devises to Mrs. Sweringen and to the children of Mrs. Wash as a total intestacy, the effect of such construction is either to force the specific devisees into hotch-pot with the other children named and not named, or to diminish the shares of the children not named by subtracting from them the amount of the estate specifically devised. A reference to the entire scope of the will will show that either of these results would be directly contrary to the intent of the testator.

Unless the will so provided, it is plain that the specific devisee is not bound to bring her legacy into hotch-potch. A devise is not an advancement in the meaning of the statute. As the share of Virginia, the specific devisee, could not be disturbed, then the effect of the construction contended for by the representatives of Mrs. Wash and Mrs. Farrar is to throw the entire burden of the specific devises upon the children not named, whose shares would thus be diminished in exact proportion to the increase of the specific devises ; whilst the share of the grand-children who are named, and named with altogether another purpose in the testator’s mind, would be more and more disproportionate to the shares of the children not particularly named. The testator had evidently no such purpose in contemplation. He was providing only in reference to that portion of his estate not already disposed of, and his intention seems to have been that it should be distributed exactly as the law would distribute it, except in one particular. For reasons satisfactory to himself, he declared that Mrs. Sweringen should only have one-half of her mother’s share. His only reason for mentioning the representatives of his two deceased daughters was to determine their shares according to what he esteemed right, without regard to the rule which the law of descents might apply, concerning which he was uninformed, and against the operation of which, if it should conflict with his intentions, ho wished to guard. He therefore virtually says: “ I devise all my estate, which I have not disposed of in this will, to be legally divided among my children; and as to the children of my deceased daughters, Mrs. Farrar and Mrs. Wash, my will is that the three children of the latter shall have each one-third of their mother’s share, and that Mrs. Sweringen shall not have the full share of her mother, but only a half shareand the intestacy he alludes to is intestacy as to the property be was then speaking of, and not as to that portion of his estate already devised.

The answers of Mitchell, Goode and Sweringen were therefore properly stricken out.

So much of the answer of Susan P. Christy as relates to the suits now pending on the bonds given by Howard Christy to the heirs of William Christy appears to be foreign to any issues in this case. If the facts alleged are a good defence in equity or law to those suits, why litigate the matter here ? The answer asserts that the defence is a good one, and if so, the suits upon the bonds can not result to her injury.

The answer of Susan P. Christy also stated that in the former partition of W. Christy’s estate, a lot (No. 256) had been assigned to her husband, Howard Christy, which it turned out had been conveyed by William Christy in his lifetime to Bernard G. Farrar; that this allotment by the commissioners was made in ignorance of the fact and by mistake ; and the court is asked to allow her for the value of the lost lot in the division now to be made. The right of Howard Christy or his devisee to have this mistake corrected is the question involved in this portion of Susan Christy’s answer. This right has been chiefly based upon a warranty which every partition among coparceners is supposed to create. It is insisted that this warranty was by the common law annexed to every compulsory partition among coparceners, and that no statute in Missouri has altered the law in this respect. On the other hand, it is argued that the estate of coparcenary as known in England has no existence here ; and, whether it exists or not, that the doctrines of implied warranty in reference to this estate have never been adopted here, and are contrary to the spirit, if not the letter, of our laws; and finally, that, admitting the existence of the estate and of the doctrine of warranty in connection with it, still, under the doctrine as understood in England, the alienee of a coparcener is not entitled to the benefit of it, and that Mrs. Susan P. Christy is therefore not in a position to assert the claim. We do not propose to examine these questions, although they have been extensively discussed. Waiving their consideration entirely, we do not see any good reasons why Howard Christy, if living, might not, upon ordinary principles of equity, assert the claim which is now urged by his widow. Whether his devisee, Mrs. Christy, occupies as favorable a position as he would, is another question, which we will separately examine.

Laying aside all considerations of a warranty, express or implied, we have a state of facts alleged in the answer which would seem to authorize the action of a court of equity under its ordinary jurisdiction over accidents or mistakes. A partial partition of Christy’s estate is made, in which a lot has been assigned to his son Howard which the father had several years before conveyed away. The fact was not known at the time of the partition by any of the parties to it, or to the commissioners who made the allotment. The partition embraced only a portion of the estate, and a second and final partition of the residue is about to be made. Before any final distribution, the court is called upon to have this mistake corrected, not by any disarrangement of the former partition, but simply by taking the lot into estimation in determining the shares of the son to whom the lost lot was assigned in the former partition. I do not perceive that it is necessary to invoke any principle of warranty in such an application. The plainest principles of equity require that the mistake should be corrected, if it can be done without injustice to others; and what is to prevent it here ? No final partition has been made ; the partition is still in fieri, still in the power and under the control of the court. The two partitions may be regarded as parts of one transaction so far as the rights of all the parties here are concerned. In the first partition, which was a partial one, a lot was assigned to Howard Christy which was really no part of his father’s estate, which in fact had been conveyed away by a deed duly acknowledged and recorded years before. Another portion of the estate is now to be divided, and there is certainly nothing inequitable that this error should be corrected. It is hardly proper to call this a failure of title ; there was no defect in Wm, Christy’s title at the date of the conveyance to Farrar, but this conveyance was made long before his death, and, although on record, was unknown to all the parties to the partition of 1848. The assignment of lot 256 to Howard F. Christy was merely a mistake. If a final partition of his estate had been made, the only ground perhaps upon which that partition could be disturbed by the state of facts averred in this answer would be an implied warranty. But viewing this partition as incomplete, as still going on, we do not sec why, without reference to any warranty, a mistake in a partial partition may not be corrected in a subsequent one, just as under our statute of descents and distributions a probate court would regulate such equities in distributions of personal property from time to time among the personal representatives of the decedent. This would seem to be very clear if Howard Christy was alive and now asking the interposition of the court to give him the benefit of this equity in the final division of his father’s estate. Has his devisee, Mrs. Christy, the same right ?

The doctrine of implied warranty on a compelled partition among coparceners is not free from obscurity in some of its details, but it seems to be a part of that doctrine as known in England and adopted in some portions of this country, that when the privity of estate is destroyed by an alienation, neither the coparcener nor the alienee has any recourse upon the remaining coparceners. (Allnatt, sec. 3; Sawyer v. Cator, 8 Humph. 256.)

This however is not the redress sought here. The relief demanded does not require any disturbance of the former partition. Is this equitable claim purely personal, and was it extinguished by the death of Howard Christy ? If it was not, it would go to his heir, unless his will has created a testamentary heir.

It would seem from our statute concerning wills, that whatever is descendible is devisable. That statute authorizes the testator to dispose of “ all his estate, real, personal and mixed, and all interest therein.” It is fully as broad as the statute of descents and distributions, which embraces every “ title to any real estate of inheritance or personal estate undisposed of.” In England, even before the statute of I. Vic. ch. 26, the power of testamentary disposition extended “to all interest in real and personal estate which, at the decease of the testator, would, if not so disposed of, devolve to his general, real or personal representatives, whether the testator be the legal or beneficial owner only or unite in himself both these characters.” (1 Jarman on Wills, ch. 4, р. 81.) And in most parts of the United States the settled test of a-devisable interest is that it is descendible. (4 Kent, с. 512-13.)

The will of Howard Christy uses language as comprehensive as could well be found. It devises all his estate, real, personal and mixed, in Kentucky, Missouri and elsewhere, present and expectant. If a will can be framed to clothe the devisee with all the rights of heir, this would seem to have accomplished that purpose.

The only real question then left is, whether the right oi Howard Christy to a distribution or partition of his father’s land — the amount and value of which is to be determined by a mistake in a former partition — ceased with his death. The equity is not in the lands which have been partitioned, but in the lands now subject to partition. His share of these lands, without reference to the former mistake, is not denied, and that his interest passed to his widow under his will is not denied. Had he left children, their right to the same equitable division which lie had would hardly be denied. It would seem to follow that his devisee is entitled to the same right. Suppose, in a division of personal property, the administrator, under the sanction of the probate court, had, in the distribution of a portion of an estate in money, made a plain arithmetical miscalculation, by which one of the distri-butees received a thousand dollars less than he was entitled to upon a correct application of the common rules of arithmetic, could not that distributee, upon a final division of the remaining portion of the estate and an ascertainment of the mistake, have it corrected ? Could not his heir or devisee, if he died before final distribution ?

What there is in this case to prevent the application of these familiar principles of equity, I do not see. Much learning, it is true, has been explored, and the ancient doctrine of warranties by implication has been cited with approbation on one side and denunciation on the other. I think the action may be dispensed with in this case and justice still be done. When it shall become necessary to determine its existence or extent here, it will be time enough to say how far it may consist with our laws and usages and necessities, and how far positive enactments or long disuse may have rendered it inoperative.

Our opinion is, that Mrs. Christy’s answer in relation to lot 256 ought not to have been stricken out. It would be premature to determine upon what basis the value of this lot should be settled. The answer being stricken out, the facts have not been sufficiently developed upon which the court could now form a definite opinion. The facts may indeed not turn out as stated in the answer, but, assuming that they are mainly and essentially correct, we incline to the opinion that the value of the lot at the time of the first partition is the proper basis of relief in the new decision. As it could not be foreseen whether the value of the lot 256 would appreciate or depreciate, whether it would be productive or unproductive, its simple value in 1843, without reference to speculations as to its rise or fall, its productiveness or unproductiveness, seems to be the fair allowance to Mrs. Christy in the present partition suit. To give her the increased value of the lot now, or the interest on its value in 1843, would be speculating on contingencies too remote.

Judge Richardson concurring,

the judgment will be reversed and the cause remanded.

Scott, Judge.

I do not understand how, as devisee, Mrs. Christy is entitled to the relief she seeks in regard to the lot assigned to her husband in the first partition, the title to which afterwards failed. The closeness of her relationship to her husband can have no influence. As devisee, so far as this question is concerned, she occupies a position not superior to that of one, as devisee, who was a stranger to the devisor. Does a mere right of action growing out of the purchase of a lot of land by a devisor pass to the devisee of that land ? Suppose H. Christy had acquired by purchase a lot devised to his wife, and the vendor in the transaction, there being no warranty, had committed a fraud — had represented that he had a good title, knowing that he had not— would Mrs. Christy, as devisee of the lot, have had a right of action to recover damages for the fraud committed by the vendor ? If there was nothing now but money to distribute among the heirs of Vm. Christy, would not Mrs. Christy’s claim to the indemnity she seeks be as strong as though there was land to be divided, as it turns out to be ? If money was to be distributed, her case would not vary from that supposed, and can her right to relief depend on the nature of the fund out of which it is sought ? Would not her equity to the money be as valid as it is to the remaining land ? A right to enter for a condition broken, or under the warranty annexed to an exchange, is not devisable, nor is the benefit of a condition unless it be annexed to a reversion. (4 Kent, 510.)