author: EwiNG, Judge,

text:
    Naylor’s Administrator, Plaintiff in Error, v. Moffatt, Defendant in Error.
    1. Letters testamentary granted to an executor in one state have no extra territorial force.
    2. Letters testamentary granted to an executor in Yirginia give him no title to property of the testator in this state, and he can not, in his official capacity, maintain an action in this state to recover such property.
    3. A grant of administration by a county court is a judicial act, and as such must he conclusive on all other courts until it is revoked; the validity of such grant can not be attacked collaterally.
    4. An administrator duly appointed by a county court of this state is entitled to the possession of the personal property of the deceased found here, and his right to sue for such possession is exclusive of the foreign executor, distributees, and all others.

      Error to Knox Circuit Court.

    The facts sufficiently appear in the opinion of the court.

      Broadhead, for plaintiff in error.
    I. The circuit court could not look behind the action of the county court to determine whether that court had acted properly in granting letters of administration. The validity of the grant of letters can not be attacked in a collateral proceeding. (24 Mo. 265.) If the petition disclosed the fact that the property had been administered on by the executor in Virginia, the estate settled up, the debts paid, and distribution made, then it might be questionable whether another administration could be granted here. No such facts appeared on the face of the petition. It does not even appear that the executor .accepted the appointment, or that he had letters testamentary granted him in Virginia. The property is here, and for aught that appears there may be debts due here.

      Dry den Sf Lipscomb, for defendant in error.
    I. The demurrer was properly sustained. The administration was not closed; was in Angus W. McDonald, the executor, and the letters of administration granted plaintiff could not divest his title. If the administration was closed, then the distributees alone had the right. The administration of Angus W. McDonald is the primary administration. His right to the possession attached in Virginia and followed the property to Missouri. (10 Mo. 141; 15 Mo. 118.) Riley v. McCord, 24 Mo. 265, has no application to the case.
   EwiNG, Judge,

delivered the opinion of the court.

This was an action by Edward C. McDonald, administrator with the will annexed of the estate of William Naylor, for the recovery of certain slaves. The petition alleges that William Naylor died in the state of Virginia in 1840, leaving a will appointing an executor in that state, and that the slaves in controversy should be [free] 'upon attaining to certain ages therein specified; that the said will was duly admitted to probate in Virginia ; that Susan Naylor, the widow of deceased, “ under the provision of the laws of that state, for a part of her dower in the estate of the deceased, took the slaves in controversy” and brought them to Missouri, and kept them in her possession until her death in 1849, when the said slaves passed into the possession of her son John S. Naylor, who hired them out until his death in 1853 for the executor of his father’s will, and [they] were held by him for tlie said executor, Angus W. McDonald, at the time of [the death of] him, the said J. S. Naylor; that after this, by some means not stated, defendant got possession of said slaves; that letters of administration with the will annexed were granted to plaintiff by the county court of Shelby county, by virtue of which he claims the property in question.

Defendant demurred to the petition. The demurrer was sustained, and judgment rendered thereon, and the cause is brought to this court by writ of error. The grounds upon which the demurrer appears to have been sustained, and which are insisted on here, are, that if the estate of Naylor in Virginia has not been closed, then the executor of his will in that state is the proper party to sue; and if it has been closed, the distributees are the proper parties plaintiffs.

It is not perceived how a question could well arise upon the facts alleged in the petition as to the administrator’s right to institute suit for the recovery of the property in controversy. It is only upon the hypothesis of the plaintiff’s being an executor de son tort that any such question could arise. But he can not be an executor de son tort and at the same time a rightful executor. The petition avers the plaintiff to be duly appointed, and this is admitted by the demurrer ; but whether rightfully so or not can not be inquired into in a collateral proceeding. The grant of administration by the county court is a judicial act, and as such must be conclusive on all other courts until reversed by appeal, or revoked by the court itself. If the plaintiff is an administrator regularly appointed, as the demurrer admits, then his right to all the. personal property of the deceased found here is unquestionable; and of course his right to sue is exclusive of the foreign executor, distributees, and of all others whomsoever. The grant of administration to plaintiff vests in him the legal title to the property; and he is to all intents and purposes the legal owner, although he is so in the character of trustee. The letters of the foreign executor have no extra territorial force, and give him no title to property of the testator in this state; and he could not bring or maintain an action in his official capacity in this state to recover it. His title does not extend beyond the limits of the state of the testator’s domicil, and the movable property therein. (Sto. Conf. of Laws, § 512.) Whatever right he as executor may acquire to the property in question is by virtue of our own law. So that as a question of law arising upon the facts averred in the petition, there can be no doubt of the plaintiff’s right of action to recover the property in question, irrespective of the state of.the primary administration in Virginia, whether it is closed or not. The administration here is ancillary to that in the state of Virginia, and the rights of heirs and legatees are as effectually secured under it as under the primary administration there. If there are no debts, the property will be disposed of according to the will of the testator, or it may be transmitted to the executor in Virginia. (1 R. 0. 1855, p. 168-9.)

The judgment will be reversed and the cause remanded.

The other judges concur.


source: Caselaw Access Project

author: Ewing, Judge,

license: Public Domain

text:
    Reyburn, Appellant, v. Casey, Respondent.
    1. The time of limitation upon an instrument in the following form, “ Received of A. for B. one hundred and eighty dollars. November 16, 1850. [Signed] C.” is ten years; such an instrument is a “writing for the pay'ment of money” within the meaning of the first clause of the second section of the second article of the limitation act of 1845. (R. C. 1845, p. 716.)

      Appeal from Washington Circuit Court.

      Carter, for appellant.
    I. The court erred in refusing the instruction asked. (6 How. 550; 1 Smith, 8; 1 Morr. 321; 15 Ohio, 130; 30 Maine, 118.)

      Noell, for respondent.
    I. The receipt is no evidence of indebtedness. It is merely a receipt for money; there is no promise to pay, or admission of indebtedness. This is not an action or a written instrument for the payment of money.
   Ewing, Judge,

delivered the opinion of the court.

This was an action on the following instrument, “ Received of H. Doane for Samuel A.- Reyburn, one hundred and eighty dollars. Potosí, November 16,1850. [Signed] J. H. Casey.”

The defendant "pleaded the statute of limitations, alleging that the action did not accrue within five years before the commencement of the suit. There was a judgment for the defendant; and motions for a new trial and in arrest of judgment being overruled, plaintiff brings the cause to this court by appeal. The court was asked to declare the law to be that the lapse of five years was no bar to an action on the instrument sued on, but that it might be brought at any time within ten years. This was refused, and the only question is whether the instrument is a writing for the payment of money under the statute.

The second clause of the second section of the limitation act provides that an action upon any writing, whether sealed or unsealed, for the payment of money or property, can only be commenced within ten years after the cause of action shall have accrued. The broad and comprehensive language of the statute evidently embraces all kinds of written instruments, without regard to their mere form or phraseology, which imply a promise or agreement to pay money, and is not restricted to such as have the requisites of promissory notes or to such instruments as contain an express promise or agreement upon their face to pay. It is sufficient if the words import a promise or agreement, or that this can be inferred from the terms employed. Upon this principle it has been decided that a due bill was a good promissory note, for, although no promise is expressed, it is inferred from the acknowledgment of indebtedness. (Kimball v. Huntington, 10 Wend. 68.) The word “borrow” has been held sufficient to imply a promise to pay. In Hanon v. Dugan, 6 Dana, 341, it was held that an instrument in which the defendant acknowledged that he had “borrowed” a sum of money from the plaintiff was a note for the direct payment of money; that the word “ borrowed” imported in itself a promise to pay as strongly as the word “ due.” To the same effect is Cummings v. Freeman, 2 Humph. 144.

We think that the defendant, in saying he had received the money for plaintiff, very clearly acknowledges an indebtedness to him; that the admission that he has plaintiff’s money is an acknowledgment that' it is due, or that he owes it, all which expressions have heen held' sufficient to imply a promise of payment.

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


author: NaptoN, Judge,

text:
    Teass’ Administrator, Appellant, v. Boyd, Respondent.
    1. A compliance -within the time agreed upon with the condition upon which a conditional sale of a chattel is to he void or the property returned revests the title; and an offer to comply, or a tender of the money, is equivalent to payment, at least so far as to enable’ the vendor to maintain his action at law for the property or its value.

      Appeal from Warren Circuit Cowrt.

      Wells, for appellant.

      Morsey and E. A. Lewis, for respondent.
   NaptoN, Judge,

delivered the opinion of the court.

This action must be regarded as an action for the recovery of specific personal property, or for the recovery of money. The petition, it is true, is essentially defective, regarding it in any light; but it is certainly not intended as a bill for a specific performance of - a contract-, for no circumstances are alleged to exist which would render damages at law an inadequate compensation for its breach. It is not a bill for the redemption of mortgaged property, for a mortgage is not alleged. The complaint states the case of a conditional sale of a slave, but does not aver that the purchase money was tendered to the defendant according to the alleged terms of the contract. In a conditional sale of a chattel, a compliance with the condition, upon which the sale is to be void or the property returned, within the time agreed upon, revests the title; and an offer to comply, or a tender of the money, is equivalent to payment, at least so far as to enable the vendor to maintain his action at law for the property or its value. (Bennett v. Holt, 2 Yerg. 6.) And this, we suppose, is what was intended in this case, and so the action was regarded upon the trial. A jury was waived by consent of both parties and the case submitted to the court. All the testimony offered in the case was admitted without objection. No instructions are preserved on the record. Under these circumstances it is impossible for this court to know what point was decided by the circuit court, except that the verdict and judgment were for the defendant. '

The judgment must be affirmed;

the other judges concur.


author: Napton, Judge,

text:
    Mitchell, Defendant in Error, v. Williams, Plaintiff in Error.
    1. Judgment reversed for want of a finding of the facts by the court.

      Error to Jefferson Circuit Court.

    This suit was commenced April 9, 1856.

      Noell Sf Frissell, for plaintiff in error.
    Pipkin, for defendant in error.
   Napton, Judge,

delivered the opinion of the court.

This case was tried under the practice act of 1849, and there was no finding of facts by the court; the judgment is therefore reversed and the cause remanded.

The other judges concur.


author: Scott, Judge,

text:
    Gibson, Respondent, v. Tong, Appellant.
    1. In an action for a forcible entry and detainer the title to the premises can not be inquired into. Mere title in the plaintiff at the time of the alleged entry, unaccompanied by possession, can avail him'nothing.
    2. Instructions given to a jury should be supported by the evidence.

      Appeal from St. Franpois Circuit Court.

    The instructions given by the court and referred to below in the opinion are as follows : “ 1. If the jury find that Reed held possession of the premises in controversy exclusively and in his own right, and that he let a part of the premises to Palmer, directing him to pay rent to the plaintiff, and surrendered the other tenements to Gibson by delivering to him the keys, and that after thus gaining possession, and after Palmer had left the occupancy, Tong, the defendant, entered on the possession of Gibson and assumed the occupancy, then they will find a verdict for the plaintiff and assess his damages for the detention thereof, and also find what is the monthly value of the premises. 2. But if the jury find that Alfred Reed held possession of the premises in controversy for the firm of Evans & Reed, of which he was a partner, and that without the knowledge or consent of Evans, his co-proprietor, he admitted Palmer into the occupancy of part of the premises, and surrendered the whole to Gibson by directing Palmer to pay his rent to him and delivering up the keys of the other tenement, then the possession thus taken by Gibson was a wrongful possession and conferred no such right to the possession as can be made a sufficient basis for a recovery in the cause.”

      Frissell, for appellant.

      Noellp for respondent.
   Scott, Judge,

delivered the opinion of the court.

This was a writ of forcible entry and unlawful detainer brought by the plaintiff Gibson against the defendant Tong. The cause was taken by certiorari from the justice to the circuit court, where the plaintiff had judgment.

The sixteenth section of the act concerning forcible entries and unlawful detainers directs that when the jury is sworn the justice shall cause the complaint to be read to them, and then call upon the plaintiff for proof to sustain the same; but the complainant shall not be compelled to make further proof of the forcible entry or detainer than that he was lawfully possessed of the premises, and that the defendant unlawfully entered into and detained or unlawfully detained the same. This section has never been so construed as to require the plaintiff to show any title in himself. A mere title in this proceeding avails the plaintiff nothing unless it is accompanied with the possession. He may have the legal title, and yet be guilty of an unlawful entry. The statute merely means that the plaintiff shall have the peaceable possession of the premises at the time of the unlawful entry. If he has that, he can not be turned out unlawfully or by force, but only by due course of law.

The instructions given by the court were erroneous, as there was no evidence to support them. The only fact in the record which had the least tendency to show that the plaintiff was possessed, was the direction of Reed (who last had the possession of them) to his tenant Palmer, to pay the rent to the plaintiff. Palmer, it seems, had only a portion of the premises, and the court assumes that the keys of the other tenements not possessed by Palmer were delivered to the plaintiff. Nothing is stated in the record in relation to this delivery of keys to the plaintiff. Of course, then, there could be no authority for the court to assume the existence of such a fact in an instruction. But if there was a direction to Palmer to pay the rent to the plaintiff, and a delivery of keys as assumed, these were circumstances from which the jury would have determined whether the plaintiff was in the possession of the premises, and it was not for the court to intimate to them that as a matter of law they constituted a possession. Judgment reversed and the cause remanded;

the other judges concur.


author: Napton,-Judge,

text:
    Howell, Defendant in Error, v. Bell, et at., Interpleaders, Plaintiffs in Error.
    1. A stipulation in a deed of trust of land and slaves, which is duly recorded, that the grantor shall reriiam in possession of the property conveyed until the maturity of the debt secured, does not of itself render such deed of trust void on its face as to creditors by constituting it a conveyance to the use of the grantor within the meaning of the first, section of the act concerning fraudulent conveyances. ,

      Error to St. Charles Circuit Court.

    Francis Howell instituted suit by attachment against Andrew J. Cosbow and William Coshow, and levied the attachment upon certain slaves. James Bell, Abraham S. Matson and George Murdock interpleaded, ■ claiming said slaves by virtue of a certain deed of conveyance executed by William Cosliow and wife before the date of the attachment. At the trial of the issue raised upon the interplea, the plaintiffs in the interplea offered in evidence said deed of conveyance. This deed, so far as it is necessary to set it forth, is as follows : “ This deed, made and entered into this twentieth day of May, 1858, by and between William Coshow and Elizabeth his wife, of, &c., parties of the first part, and James Bell and Abraham S. Matson, of, &c., parties of the second part, and George Murdock, of, &c., party of the third part, witness-eth, that the said parties of the first part, in consideration of the debt and trust, &c., do, by these.presents, grant, bargain and sell, convey and confirm unto the said parties of the second part, the following described real estate situated in the county and state aforesaid, to-wit: [describing it] ; also the following described personal property [describing the negro slaves'upon whom the attachment .-had been levied]. To have and to hold the same, with the appurtenances, to the said parties of the second part and to. their assigns legally constituted, according to the effect of this conveyance, forever. In trust, however, for the following purposes: Whereas the said William Coshow is justly indebted to the party of the third part upon a certain promissory note by him executed and delivered to the said party of the third part, as follows, to-wit: for the sum of $15,000, due thirteen months after date, with interest at the rate of ten per cent, per an-num from date till paid. Now if the said promissory note shall be well and truly paid and satisfied at maturity, with the interest as aforesaid to its true tenor and effect, then this deed shall be void, and the property hereinbefore conveyed shall be released at the cost of the said parties of the first part; but if default shall be made in the payment of said note or of the interest due thereon or any part thereof, then this deed shall remain in force, and the said parties of the second part or either of them may take possession of said property, (it having been left in possession of the said party of the first part until the sale hereinafter mentioned,) may proceed to sell,” <fcc. This deed was recorded May 21, 1858.
    The introduction of this deed was objected to on the ground that it was fraudulent on its face.' The court sustained the objection. The interpleaders then suffered a non-suit, with leave, &o.

      Broadhead, Bates, Lewis and Alexander, for plaintiffs in error.
    I. The deed in question is not a conveyance to the use of the grantor. There is no power to dispose of the property or to change its nature; in other words, it is not a mere colorable conveyance, by which nominally the trustee has the property, but really the grantor has the whole title. (See Brooks v. Wimer, 20 Mo. 506; 11 Mo. 369; 20 Mo. 468.) To make the conveyance void on the ground of fraud, it must be to the sole use of the grantor. (See Stanley v. Bunce, 17 Mo. 269; 15 N. Y. 122; 17 Barb, 309 ; Burr, on Assign. 436; 16 Ala. 560; 22 Ala. 238.) If this deed be void, then all mortgages and deeds of trust are void. By the very terms of the eighth section of the act concerning fraudulent conveyances, the grantor may remain in tlie possession of tlie property.

      Knox Sf Kellogg, G. Wells and Hinman, for defendant in error.
    I. The deed is void as creating a trust to the use of tlie party making it. (R. 0. 1855, p. 802; 27 Mo. 270 ; 24 Mo. 575 , 20 Mo. 503 ; 15 Mo. 459; 2 Swan, 208 ; 26 Ala. 172 ; 27 Al. 336 ; 2 Conn. 211; 12 Gratt. 208 -r 18 Ala. 734.) At all events it is void as to the personal property therein conveyed, and if void in part it is void altogether. (5 Cushm. 481; 7 Gill, 446.)
   Napton,-Judge,

delivered the opinion of the court.

The only question in this case is whether a deed of trust conveying certain lands and slaves to a trustee to secure the payment of a debt due the cestui que trust, with a power in the trustee to sell upon the maturity of the debt, is void upon its face by reason of a. stipulation _in it that the grantor should retain possession of the property conveyed until the expiration of the credit agreed on; and our opinion is, that such a reservation does not vitiate the deed.

The cases decided by this court upon the construction of the first section of the statute concerning fraudulent conveyances do not lead to the conclusion that the mere retention of possession in the grantor of property conveyed in trust, whether expressly authorized by the terms of the deed or not, is in itself a fraud. Much less is- it to be inferred that an express -'stipulation in the deed to this effect makes the deed fraudulent on its face. Although this privilege of retaining possession is to some extent beneficial to the grantor, it is not such a benefit as makes the deed a trust to the use of the grantor.

The distinction between this privilege and the reservation of a power to sell or dispose of all the. property embraced in the conveyance is obvious enough. Where a stock of goods is conveyed, and the grantor reserves, not only the possession, but tbe right to dispose of them all; or, where the property conveyed is of a character which would be consumed in the use, the deeds may well be said to be in trust to the use of the persons making them. But the retention of the possession of a tract of land and a number of slaves, conveyed to a trustee to secure a debt, is altogether consistent with actual good faith, and entirely promotive in any contingency of the substantial interests of the grantee. The creditor may be really benefited by such an arrangement, and can not be injured, whilst the debtor is better enabled to pay off his debt.

But we do not consider this question as open to argument or authority, for it seems to us that the statute itself has settled it. The eighth section of the act provides that, where possession does not accompany a mortgage or a deed of trust, the deed must be recorded in order to be valid. This section is a legislative interpretation of the first section, and amounts to a declaration that retention of possession by the grantor in a deed of trust or mortgage is not a trust in the grantor within the first section of the act; for all deeds which fall within the first section are void as against creditors, whether recorded or not. But as the deeds of trust, where possession is left in the grantor, may be valid if recorded, it follows that the mere circumstance of retaining possession is not understood to be a decisive mark of fraud such as to render a deed void upon its face as a matter of law.

Judge Ewing concurring, judgment reversed and cause remanded. Judge Scott absent.


text:
    Whitehead, Respondent, v. Stoddard County, Appellant.
    1. An appeal will not lie under tlie general law of this state hy a county from a judgment of a county court allowing an account against the same.
    2. This rule applies to the district county court organized under the act of March 1, 1855, (Sess. Acts, 1855, p. 474,) for the counties of Stoddard, Dunklin and Butler.

      Appeal from Bollinger Circuit Court.

      Noell, for appellant.
    I. The court erred in dismissing the appeal. An appeal lay in behalf of the county.
   Ewing, Judge,

delivered the opinion of the court.

The respondent presented a claim against Stoddard county for fees and services as jailor in .a criminal case, which was allowed in part by the district county court, from which the county took an appeal to the circuit court. A change of venue was taken to the Bollinger circuit court, where the appeal was dismissed. From this judgment the county has appealed to this court. The only question is whether an appeal by the county will lie from the district court.

By an act of the general assembly, approved March 1, 1855, several counties, among which was the county of Stod-dard, were constituted a county court district, with a single judge, to be chosen at stated periods by the people of such district. The court thus established has the same powers and jurisdiction of other county courts of the state, but the act contains no provision relative to appeals, leaving that matter subject to the general law. The act to establish courts of record and prescribe their powers and duties confers upon circuit courts appellate jurisdiction from the judgments and orders of county courts and justices of the peace in all cases not expressly prohibited by law ; and gives a superintending control over them. The ninth section of the third article of the act to establish and regulate county treasuries (R. 0. 1855, p. 528) provides that, if any account shall be presented against a county, and the same or any part thereof shall be rejected by the county, the party aggrieved thereby may prosecute an appeal to the circuit court in the same manner as in other cases of appeal from the county to the circuit court. This provision gives an appeal only to the party whose claim against the county has been rejected in whole or in part, and by the clearest implication denies it to the county where the claim is allowed, and is equivalent to a prohibition in the sense of the statute referred to. The appellate jurisdiction of the circuit court, in cases where a county was one of the parties, is the special subject matter of the provision last quoted, and the statute, in giving the right of appeal to the claimant only, by a necessary intendment made the county an exception to the general rule. This view of the subject is supported by the general tenor of the act regulating county treasuries, and particularly the third article, the first section of which gives to the county court the power, and makes it their duty, to audit, adjust and settle all accounts, to which the county shall be a party; to order the payment of money found due by the county; to enforce the collection of all money due the county; in short, they have the sole management of the finances of the county, and hold the legal key of the county treasury. As auditors of the county, all accounts against it must first pass their inspection, and be allowed before payment.

The theory of the statute in question as well as the general legislation on the subject would seem to contemplate no other guarantee of fidelity, on the part of these courts as guardians of the treasury, than such as is implied in the relation they sustain to the county, the manner in which they are constituted, and the interest its members are presumed to have in common with the citizens, who share alike the county burdens, and who would be alike affected by any want of faithfulness in executing their trust as guardians of the public treasury. These considerations may not apply with the same force to those counties whose courts are or-' ganized in the manner provided by the special act referred to; but the legislature, in introducing the change, has failed to provide a remedy for any evils that may result from it.

The judgment will be affirmed;

the other judges concurring.


author: Scott, Judge,-

text:
    Evans, Appellant, v. Haefner et al., Respondents.
    1. Where land is condemned in behalf of a railroad company, the validity of such condemnation can not be called in question in a collateral proceeding.
    2. In proceedings instituted by a railroad company to obtain the condemnation of private property, the court, on confirming the report of the commissioners, ordered the plaintiff to deposit the compensation assessed forthwith with the clerk of the court to the credit and on account of the defendant. The clerk tendered the money to the attorney of the defendant and he refused to receive it. Held, that the company was justified in entering upon and taking possession of the land condemned.
    3. Where land is condemned in behalf of a railroad company, the decree of condemnation, it seems, vests in the company the title to the earth and minerals found above the grade of the road, and whose excavation is necessary for the construction of the road; minerals lying below the level of the road, and whose excavation is not necessary in the construction of the road, belong to the owner of the land condemned.

      Appeal from Washington Circuit Court.

    This was an action to recover possession of certain lands and damages for entering the same and. cutting down and destroying timber, and for digging up and carrying away rock, stone, mineral and gravel, &o. The defendants based their defence upon a condemnation of the land in controversy in certain proceedings instituted in the Washington circuit court in -the name and in behalf of the St. Louis and Iron Mountain Railroad Company against the plaintiff and his wife. In these proceedings the land sued for was condemned, and the court, in its order confirming the report of the commissioners, made the following order: “ It is further ordered that the plaintiff deposit in the hands of the clerk of this court, William A. Matthews, forthwith, to the credit and on the account of the defendants, the said sum of nine hundred and twenty-five dollars, to be paid over to the defendants as their compensation; and upon the plaintiff depositing said sum as aforesaid, it shall be entitled to enter upon, take possession of and use the said land, for the purposes aforesaid, during the continuance of its corporate existence.” These proceedings were instituted in April, 1858.

      The defendants also adduced in evidence the following instrument: “ January 15, 1858. Whereas George B. Cole, Israel McCready, John Deane, J. H. Mcllvaine, Andrew Casey, Samuel Singer, J. H. Morse and Thomas C. Johnson, a committee appointed by the citizens of Potosí, in the county of Washington, acting for themselves and such others as shall cooperate with them, parties of the first part, have proposed to the St. Louis and Iron Mountain Railroad Company, party of the second part, to establish a branch road from the main line of the St. Louis and Iron Mountain Railroad to Potosí, by the nearest and most practicable route; and whereas the said railroad company is willing to establish and locate said branch upon the considerations hereinafter named: Now, therefore, these presents witness: 1. That the said parties of the first part, for themselves, said citizens, hereby agree to and with the said railroad company to do the graduation, masonry, bridging, ballasting, clearing and grubbing, and all other work necessary to prepare said branch road for the laying of the track thereon. 2. The said parties of the first part further agree at their own expense-to procure the right of way, and the necessary depdt grounds, and to cause the same to be conveyed to said company. 3. The said branch road shall be located upon the shortest, most practicable and cheapest route to be designated by the engineer of the St. Louis and Iron Mountain Railroad Company acting in concert with an engineer appointed by the said parties of the first part. 4. The cost of making the preliminary surveys on said route shall be paid by said railroad company except the wages of the engineer appointed by the parties of the first part. 5. When the graduation, masonry, &c., and all other work necessary to prepare said road-track for the laying of the rails shall be completed, delivered and accepted by said company, then the said party of the second part binds itself to furnish the iron rails, ties, spikes, &c., and to proceed without delay to lay down and complete said track, to erect the necessary buildings, provide rolling stock, and proceed to operate said road. 6. It is further agreed that said railroad company shall have the entire control and management of said road, and the regulation of the rates for passengers and freight thereon. 7. The said branch when completed shall, together with the appurtenances thereto, become the absolute property of the St. Louis and Iron Mountain Railroad Company. 8. The grade of such branch road shall not exceed seventy feet per mile. 9. When said road-bed, masonry, &c., are completed, delivered and accepted by said railroad company, the cost thereof shall be estimated by the engineers of both parties, not to exceed the cost of similar work on the main line ; and, in case they can not agree, a third engineer shall be selected by them as umpire, and the decision of the majority shall be final. For the amount so fixed the said railroad company shall issue its stock to such persons and in such amounts as shall be directed by a committee of the citizens of Potosí. 10. The graduation, masonry, &c., on said branch road shall be commenced by the citizens of Potosí within three months and completed within twelve months from the date hereof. 11. If, at any time within which the work is to be commenced as above, it shall be found impossible to raise the necessary subscription among said citizens to complete said work, then the parties of the first part shall have the right to terminate this contract by notice in writing to said railroad company within said period. In testimony whereof,” <fcc.
    The St. Louis and Iron Mountain Railroad Company gave to Wm. Carter the following authority to procure the condemnation of the right of way for the Potosí branch railroad: “The undersigned, president of the St. Louis and Iron Mountain Railroad Company, hereby authorizes William Carter, Esq.,'the attorney at law employed by divers citizens of the town .of Potosí, to use the name of said company in all necessary legal proceedings to procure the condemnation of the right of way for the Potosí branch of the S. L. & I. M. R. R. It is expressly understood, however, that the said company shall in no event be held - responsible for the professional fees of the said attorney, nor for any costs or expenses ses attending the procurement of said right of way, but the same are to be wholly borne by the said citizens of Potosi. [Signed] Madison Miller, president. St. Louis, March 29, 1858.”
    The trespasses complained of were committed by the defendants in entering upon the land of plaintiff under the authority of the above contract for the purpose of constructing said branch railroad track. It appeared that some gravel was dug up for embankment pui’poses outside the line of the road as condemned.
    The court, at its own instance, gave the following instructions to the jury : “ The judgment of the court rendered at the May term, 1858, in the proceedings of the St. Louis and Iron Mountain Railroad Company to condemn the roadway of the branch road through the land and town lots of the plaintiff, and the deposit of the amount of money required by said judgment with the clerk, was a complete investiture of the company of the title to the land condemned from the date of said deposit, and is a full justification to the company, her agents and contractors, to enter on the land thus condemned, and construct their road, doing no damage to the adjoining land of the plaintiff; and such judgment precludes all inquiry by the jury into the value of the land taken or the damages done to the adjoining land in consequence of the location of said road, the same having been adjudicated and settled by the judgment aforesaid. The damages sustained by the plaintiff for taking and using the gravel on adjoining land, and any injury done to the adjoining lands, by throwing down and keeping open the fences, if proven to have been done by the contractors or their hands, the defendants are liable therefor; and the jury will find for the plaintiff such amount therefor as, under all the circumstances, they may think right. The contract of the defendants with the St. Louis and Iron Mountain Railroad Company read in evidence is a full authority from the company to them to enter upon the said roadway and construct their said branch road. Although the defendants were entitled to pull down the fences along the line of said road for the purpose of constructing their road, yet they could not by law do so in such manner as to expose his enclosed lands adjoining, but must keep up the fences so as to prevent such exposure, or they will be liable for any damages resulting from such exposure. The title vested'in the company by the judgment aforesaid conferred on the company the right to all mineral, &c., found within the line of said roadway.”
    The plaintiff asked the court to instruct the jury as follows : “ 1. The St. Louis and Iron-Mountain Railroad Company has no legal right to transfer their privilege of condemning private property to théir use; and the contract of the'15th of January, 1858, read by defendants, and the written authority to ¥m. Carter, dated 'March 29, 1858, confer no privilege on defendants to use the name of the company to condemn the plaintiff’s land for the use of the Potosi branch road; and the proceedings had under said contract and authority, as read by defendants, "constituted no defence to the action. 2. As to the trespass that may have been committed by defendants or their agents, or under their direction, outside of the eighty feet constituting the road-bed, the jury will find such damages as they believe the material taken was reasonably worth and the injury sustained will justify. 8. If the jury find from the evidence that the defendants or their agents or employees entered upon plaintiff’s land as alleged in the petition and withheld the same from plaintiff, then they will find the defendants guilty and assess such damages as from the evidence it appears plaintiff has sustained. 4. There is no evidence before the jury that the St. Louis and Iron Mountain Railroad Company had any authority to construct the Potosi branch road mentioned in the defendant’s answer. 5. The defendants, having failed to prove any tender of the damages assessed to plaintiff by the commissioners, are not justified in their entry upon plaintiff’s lands. 6. Payment of the money in court and tendering the same to plaintiff’s attorney is not a lawful tender in this case.” The court refused so to instruct.

      The jury returned tlie following verdict: “ We, the jury, find the defendants guilty of the trespass complained of, except as for the land included in the roadway of the St. Louis and Iron Mountain branch railroad, and assess the plaintiff’s damages at twenty-six dollars.”

      Noell and Perryman, for appellant.
    I. The charter of the St. Louis and Iron Mountain Railroad Company, approved March 3,1851, does not authorize the construction of the Potosi branch. (Ness. Acts, 1851, p. ■ — ; Sess. Acts, 1837, p. 273.)
    II. If the charter does confer authority to construct branches, the power to condemn land for that purpose, if given at all, is given to the company for the public benefit. The power can not be transferred, farmed out, or assigned to anybody or party of men. Nor can the company loan the use of its name for that purpose. The project of constructing a branch road was a project of a few citizens of Potosi. The purposes for which the land was taken were private. (Dickey v. Tennison, 27 Mo. 373.)
    III. The deposit of the damages assessed with the clerk of the court did not invest the company with the title. The instruction given was erroneous.
    IV. The court erred in directing that the mineral found in the roadway became the property of the railroad company. The company obtained the right of way only.
    V. The general law of this state giving to all existing railroad companies the privilege of taking private property is unconstitutional. A distinction should be taken between a special provision in the charter of a railroad company, the public purposes and objects of which appear on the face of the charter, and a general law conferring power indiscriminately on all railroad companies, without any reference to their objects, purposes or obligations. The general law imposes certain obligations on railroads organized under the act. These obligations are not imposed upon the chartered roads. (See Redfield on Rail. 14; United States v. Arre-dondo, 6 Pet. 691.) TJpon wbat principle can it be said that a railroad a little over three miles is a work of public necessity.
    Gates, Frissell Sf Ccvrter, for respondents.
    I. The St. Louis and Iron Mountain Railroad Company had power to make the Potosi branch. The proceedings and judgment of the court in the condemnation of the'land are conclusive. The payment of the assessed damages into court gave power to said company and all others acting under them by contract or otherwise to enter on the land condemned and construct said railroad. The defendants had power and license from the company to grade and prepare said branch road for the laying of the track. Said company had the power to dig minerals, timber, &c., within the bounds of the land condemned, biit not to convert the same to their own use. There was no error in refusing the instructions asked.
   Scott, Judge,-

delivered the opinion of the court.

This was an action of ejectment and trespass qua/re clau-sum fregit, to recover the possession of some land and for damages for entering lands belonging to the plaintiff. The defendants, under a contract with St. Louis and Iron Mountain Railroad Company, built a road connecting Potosi, in Washington county, with the main' stem, not exceeding three or four miles in length. The company had the land, on which the defendants built the, roadz condemned under the provisions of the general railroad act,, approved February 24,1853.

It is now objected to the condemnation that the charter of the St. "Louis and Iron Mountain Railroad Company did not authorize the building of the branch road from Potosi to the main stem ; that the company could not delegate to the defendants the right to construct the branch road; that it was a private enterprise of no public utility, for which private property could not be taken.

Waiving tlie inquiry whether these objections are well founded in the law and tlie facts, we will examine whether the propriety of the proceedings taken for the condemnation of the land of the plaintiff can be inquired into in this action. The condition of railroad companies would be a hard one, if they could not be assured, before a road was built, that they might rely with confidence on the validity of the condemnation under which they acted. If the law, under which they proceed, is a valid and binding one, and they conform to its provisions in condemning the land necessary for their purposes, it would be ruinous if the validity of those proceedings could be called in question in a collateral suit. One of the consequences of holding that a party could be held liable as a trespasser or a wrongdoer while acting under a condemnation conformable to the statute, would be that the party complaining of the injury might, in the exercise of his rights of peaceably redressing his own wrongs, enter upon a railway and abate it as a nuisance. (3 Blackf. 5.) A railroad company would never be safe in building a road. After condemning land under a law which authorized it, they would be left to ’ the fluctuating opinions of the courts, and would have no assurance that the steps they had taken would be of any avail in a subsequent action against them. If the construction of railroads is a measure encouraged and promoted by the community as one in which its interests are involved, there would be no policy in leaving companies in this defenceless state. There is no hardship in this on him whose property is condemned for the public use. The legislature can exercise the right of eminent domain, providing just compensation for private property taken or applied to public use. They can make laws providing how this right shall be exercised. If the party to be affected by the exercise of it has notice, he can make all objections to the proceedings of the body discharging this duty. If he fails to make objections, or if his objections are made and oyerruled, on what ground can he recur to those objections in a collateral action ? If, when the proceedings condemning private property for public use are reported and confirmed, they do not protect the companies entering on the land taken, of what use are they? In building roads companies should.have an assurance that they are not at the mercy of those whose property may be applied to their use. ' The statute, under which the proceedings were had in. this case, declares that they shall be final and conclusive. In the case of Hamilton v. The Annapolis and Elk Ridge Railroad Company, 1 Mary. Ch. 107, it was held that, the land having been condemned for the use of the road, and the inquisition returned to and duly confirmed by the proper county court, the propriety of the condemnation and use of the property could not be drawn in question in an incidental or collateral proceeding. The law is stated to the same effect in Redfield on Railways, 129, 684.

We see nothing erroneous in the conduct of the court in relation to the payment or deposit of the damages assessed to the plaintiff. The statute provides that the court shall direct to whom the money is to be paid, or in what bank or banking house, and in what manner it shall be deposited by the company. The order made was, that the company deposit with the clerk of this court forthwith', to the credit and on account of the defendants, the said sum of nine hundred and twenty-five dollars, to be paid over to the defendants. This was in effect an order directing the money to be paid to the defendant; and, if he refused to take it, we see no impropriety in its remaining with the ,clerk to be paid when called for. The clerk stated that he still holds the money ready for the plaintiff in this action. His attorney refused to receive the money on his account. Being a party to the proceeding, he knows where his money is, and that he can have it at any time. Under such circumstances, after doing all that could be done, it is now very unreasonable that the point should be made that the order did not justify the court in directing the jury that it was a full justification to the company to enter upon the land condemned.

The court instructed the jury that the title vested in the company conferred on it the right to all mineral, &c., found within the line of said roadway. The land over which the road passed was mineral land. That fact, we suppose, was known to the commissioners, and they would regard it in estimating the damages assessed for the plaintiff. The mineral found below the bed of the road, and whose excavation is not necessary for the construction of it, would remain with the owner of the soil; but, as to the portion that must be removed in order to build the road, we do not see on what ground the owner of the soil can claim it, more than the earth or rock that is removed. "We do not see on what principle the ownership of the excavations can be made to depend on the question whether they are necessary or not in the building of the road. "When 'the land is condemned, it is condemned to the bed of the road, and the property of that which is condemned vests, when the damages are paid or secured, without regard to the inquiry whether or not it will be necessary in the construction of the road. "Whether the instruction of the court was right or wrong, as it aptpears that no mineral was taken from beneath the level of the road, the plaintiff was not injured by it. If the excavations belong to the owner of the soil, would it not be right to place them on his ground, and how then would he complain that his land had been injured by placing them upon it? Are not railroad companies sued for such injuries ? Redfield says, “ It is certain in this country, upon principle, that a railroad company, by virtue of their compulsory powers in taking lands, could acquire no absolute fee simple, but only the right to use the land for their purposes; and it is very questionable whether a railway, in such case, is entitled to the herbage growing upon .the land, or to cultivate the same, or to dig for stone or minerals in the land beyond what is necessary for their purposes in construction. In England, the statutes give all such minerals to the former owner of the land, except such as are necessary in the construction of the road, unless the same shall have been expressly purchased; and in this country, no doubt the same construction would be adopted in regard to all land taken by compulsory proceedings.”

We do not see how the constitutionality of the general railroad law of February 24, 1853, ;can arise in this or any other case, when it is admitted that there may be roads to which its provisions may be constitutionally applied. It is conceded in the argument that the act would be constitutional when applied to the Pacific railway, because that road is for the general benefit, and private property may be taken for its use. But it is maintained that the same act is unconstitutional when applied to the road the subject of this controversy,' because it is a mere private enterprise in which the public have no concern, and therefore private property can not be taken for its use. If the road was of the character attributed to it, and lands should be condemned for it, that would not show that the general jaw is unconstitutional, but only that its provisions had been perverted to a case to which they could not be constitutionally applied. The constitutionality of a law depends upon the terms in which it is written. If there is a state of circumstances to which it may be applicable consistently with the constitution, it is no argument against its validity that it may be perverted to cases not warranted by the constitution. If the law is applied to such a case, that does not make it invalid, but only shows that it has been misconstrued and perverted to a case to which, by the constitution, it was not applicable. The constitutional validity of a law can not depend on extrinsic facts or circumstances, but those facts and pircumstances may determine the constitutionality of its application to any particular case. It follows, then, that whether the general railroad law could be made applicable for the condemnation of the road, the subject of this controversy, was a question involved in the proceedings of the commissioners ; and as those proceedings stand confirmed, it, no more than any other question involved in them, can be made a subject of investigation in this controversy, they being final and conclusive. Judgment affirmed;

the other judges concur.


author: Napion, Judge, Scott, Judge,

text:
    Vallé’s Heirs, Respondents, v. Fleming’s Heirs, Appellants.
    1. Where land is purchased in good faith at an administrator’s sale, which is void because the requirements of the statute are not pursued, and the purchase money is applied in extinguishment of a mortgage to which such land was subject in the hands of the owner, the purchaser will he subroga-ted to the rights of the mortgagee to the extent of the purchase money applied in the extinguishment of the mortgage, and the owner will not be entitled to recover possession until he repays such purchase money.

      Appeal from Madison Circuit Court.

    This was an action in the nature of ejectment. The plaintiffs, who are sis of the seven heirs of C. C. Vallé, deceased, claim six-sevenths of one-third less three fifty-sixths of the Mine La Motte tract, containing about 24,000 acres. The case has heretofore been in the supreme court, whose decision is reported in 19 Mo. 454. The cause being remanded, the defendants, the heirs of Thomas Fleming, filed an amended answer. In this answer the defendants set up, as a bar to the recovery of one-half the land sought to be recovered, a-deed executed in 1848 by the administrators of said O. C. Vallé in favor of said Thomas Fleming. The validity of this deed was affirmed by this court in the case of Vallé v. Fleming, 19 Mo. 454. The answer then proceeded to set forth, as to the remaining half of the interest claimed by the plaintiffs, that in 1888, said 0. C. Vallé, ancestor of plaintiffs, died greatly indebted; that he died seized of the undivided third part of the Mine La Motte tract, subject to an unsatisfied mortgage executed thereupon November 6, 1887, to secure the payment of $67,050 ; that after the death of said Vallé, the administrators of his estate applied to the county court for an order of sale in order to pay off debts and encumbrances, and particularly the debt secured by said mortgage ; that the county court made an order of sale; that the administrators accordingly sold one-half of the interest of said Vallé in said tract to Lemuel Lamb, Elihu Chauncey and Thomas Fleming; and executed deeds coriveying to said Lamb, Ohauncey and Fleming said one-half of said one-third part of said tract for the sum or price of $50,000 ; that said sum of $50,000 was applied to and was paid for the exoneration and discharge of the estate of the said Vallé from the lien of the mortgage; that the purchase was made in good faith for full value; that said sum of $50,000 was paid in satisfaction of the mortgage, and the residue of said sum of purchase money so bid by said persons at said sale by the administrators was paid to and received by said administrators ; that if said sale and conveyance be not sufficient, by reason of any technical informality or defect, to vest the title in said purchasers, then defendants insist that the money paid to the administrators of Vallé and toward the satisfaction of the mortgage was the money of said Lamb, Ohauncey and Fleming advanced by them at the instance of said administrators towards paying off the debts of said Vallé and toward the extinguishment and satisfaction of liens on his estate; the said Lamb, Ohauncey and Fleming and the said administrators acting in perfect good faith, and all persons supposing and intending that said Lamb, Cliauncey and Fleming should and would acquire, a perfect title to said land. The answer then-proceeds as follows : [“ And the said defendants say that, notwithstanding the apparent and technical payment and extinguishment of said mortgage in manner and form aforesaid, equity will, under the circumstances above shown, treat the said mortgage as still subsisting and unsatisfied for the protection of the said Lamb, Ohauncey and Fleming, and will subrogate them, the said Lamb, Ohauncey and Fleming, to all the rights of the mortgagees therein, treating them, the said Lamb, Ohauncey and Fleming, as assignees and purchasers of said mortgage for valuable consideration of them had and received. And defendants say that said Thos. Fleming, in his lifetime, purchased -and acquired, for valuable consideration, all the interest, estate and property of the said Lamb and Chauncey in and to the said tract of land supposed to be conveyed as aforesaid by the said administrators of said C. C. Vallé to the said Lamb and Chauncey; and that he is the assignee for value of all the interest, claim and demand which the said Lamb and Chauncey had to the said sum of money paid and advanced as aforesaid by said Lamb and Chauncey toward the extinguishment of said mortgage. And these defendants are the legal representatives of the said Thomas Fleming, who has died since the institution of this suit; and so these defendants are entitled to be substituted and subrogated to all the rights and privileges which the said mortgagees would enjoy if said mortgage were unpaid, and the said mortgagees were in possession under the same. And defendants say that they are in fact and in equity in possession of said tract of land as assignees of said mortgagees, and entitled to set up the same against any person and all persons impugning their title and possession thereto. And defendants are ready to account for the rents and profits of said land so mortgaged to the said commissioners in plaintiffs’ petition mentioned, and to come to a reckoning with the said plaintiffs — charging them, said plaintiffs, with the interest of the said mortgage debt so paid as aforesaid. But defendants charge that the said plaintiffs have, at no time either before or since the institution of this suit, offered to pay off or discharge whatever may be due to said defendants on account of said mortgage. And defendants are ready to verify all the premises as this court may direct and appoint; and they pray that an account may be taken by and under the direction of this court of what is due to those defendants for principal and interest on the said mortgage debt; and that plaintiffs be decreed to pay the said defendants what shall so appear to be due on the taking of said account, together with the costs of this suit, on or before a day to be for that purpose by the court indicated and appointed ; and, in default of such payment, that the plaintiffs be foreclosed and forever barred of and from all right and equity of redemption of, in and to the said mortgaged premises and every part of the same; and also be decreed- to deliver and yield up to the defendants all deeds and writings whatsoever, in possession of said plaintiffs, relating to said mortgaged premises ; and that the court here will make such further order and decree in the premises as the equity of the case may require.”] . -
    The portion of said answer above set forth and enclosed within brackets the court struck out 'on motion of plaintiffs. The cause was afterwards heard upon its merits and determined in favor of the plaintiffs, the (court rendering judgment in their favor for six-sevenths of one-sixth of the Mine La Motte tract, excluding the sixteenth section in two several townships. It is deemed necessary to set forth the facts only so far as they throw light upon the action of the court in striking out a portion of defendant’s answer.

      Leonard and Gantt, for appellants.
    I. The question is not merely whether the plaintiffs have a legal right to recover the land, but also whether the defén-dants have any equitable defence' against the recovery. If the administrators’ sale is valid, that transaction defeats the plaintiffs’ supposed legal right; if it is void, yet, having been made in fact and the purchase money having been applied to pay off a mortgage upon the property as well as other debts of the ancestor, equity will not permit the heir to recover the land without first refunding the purchaser what he paid for it. (Dufour v. .Camfranc, 11 Mart. 610 ; Howard v. North, 5 Texas, 802 ; McLaughlin’s adm’r v. Daniel, 8 Dana, 182; Hudgin v. Hudgin’s adm’r, 6 G-ratt. 320.) Jure natures aequum est, neminem alterius detrimento et injuria fieri locupletiorem. (Digest Book 50, tit. 17, 206 ; 1 Kame’s Eq. 140,153-4.) In the present case, the money paid by the purchasers was lost to them through the error that has intervened and goes into the pockets of the heirs, if they are allowed to recover the land without refunding it, and the amount of the gain thus made by the heirs is the precise amount of the debts paid out of the proceeds of the sale, which otherwise would have exhausted their property to that extent. (See Kyner v. Kyner, 6 Watts, 223 ; 1 Johns. Oh. 412; Buchanan y. Clark, 10 G-ratt. 178; 22 Penn. State, 295; Henshaw v. Frier, 1 Bailey, 811; Bentley v. Long, 1 Strobli. 50 ; Law v. Huffman, 12 Gratt. 629; Gilson v. McCormick, 10 Gill & Jo., 1 Maryl. 66 ; Belchver v. Forney, 29 Penn. 47 ; Guasquet v. Robins, 2 Louis. Ann. 408 ; 11 Gratt. 48; Teed v. Caruthers, 2 Young & Coll. 31; Barnes y. Camack, 1 Barb. 392; King y. McVickers, 3 Sandf. Ch. 192; McLean y. Lafayette, 3 McLean, 587; Heighway v. Pendleton, 15 Ohio, 735; 7 Barb. 29; Hunt y. Hunt, 14 Pick. 374; Peltz y. Qlark, 5 Peters, 481.)
    II. The deed made by the administrators of Vallé in 1839 is valid.
    III. The defendants being the purchasers for value of the claim of the widow of 0. C. Vallé to the land in controversy, they are entitled to the benefit of this purchase in an account with the heirs.

      Noell, for respondents.
    I. The sale made to Ohau'ncey, Lamb and Fleming in 1839, so far as C. C. Vallé’s interest was concerned, was void. (Vallé v. Fleming, 19 Mo. 454; 22 Mo. 310; 23 Mo. 342.)
    II. The defendants have no right to be substituted or sub-rogated to the rights of the mortgagees. At the date of the deeds to Lamb, Cliauncey and Fleming, the Mine La Motte tract was owned in common by Pratte, Linn and the representatives of Vallé, Pratte owning one-third, Linn one-third, and Vallé’s representatives one-third. There were three deeds executed, one to Cliauncey, one to Lamb, and one to Fleming. Each deed called for one-sixth ; that is, the three deeds called for one-lialf of the tract. The deeds of 1839 to Chauncey, Lamb and Fleming did in fact convey to them all the land they bargained and paid for, not indeed out of the share of C. C. Vallé, but out of the shares of Linn and Pratte, who, between them, owned two-thirds, which was more than sufficient to satisfy and' did in fact satisfy the calls of tlieir deeds, these calls only demanding in the aggregate one-half. If the title had failed to any part of the land bargained for, then the defendants, in their amended answers stricken out by the court, made nonsuch case as entitles them to relief. The doctrine of subrogation -and substitution can only apply to cases where the party is bound by law to pay a debt for another, which debt is secured to the principal by some lien other than that of the person so bound. The case of Peltz y. Clark, 5 Pet. 481, has no application here. There the sale was a valid sale. In this case the sale is void from the beginning. The claim is raised here to get back money upon a sale wholly void. (See 2 Brock. 254; 8 Ala. 802; u Watts-& Serg. 356.) Volunteers will not be subrogated. (8 Paige, 117; 1 Sandf. 384; 8 Leigh, 588; 10 Serg. & Raw. 399.)
    III. The court did not err in deciding that defendants could claim nothing for the dower of Mrs. Tallé. (McCla-nahan vr Porter, 10 Mo. 753; 17 Johns. 167.)

       These are the deeds decided to he void -and null by the supreme court when the case was on appeal before. See Vallé v. Fleming, 19 Mo. 454.

   Napion, Judge,

delivered the opinion of the court.

Assuming the deed from Valle’s administrator in 1838 to be void, by reason of the failure of the administrator to comply with the requirements of the statute, as was held by this court when the case was here before, the only question for our determination now is, whether the defence set up in the answer is a valid one in equity.

The maxim of the common law “ nemo debet locupletari ex alterius incommodo” is one of those general principles of natural equity which receive at once, without examination or discussion, the approbation of every cultivated and well regulated mind. The same maxim, expressed more fully, is found in the civil law: “ Jure natwrce aequum est, neminem cum alterius detrimento et injuria fieri locupletiorem.” The exact application of this principle, the same essentially in each system, has however been more extensively and more definitely illustrated and. enforced in the Roman law than it has been unde/the common law and chancery system of English jurisprudence. The limits, within which it will be held applicable under our system.of equity jurisprudence, are not so well settled as they seem to be under the Roman law and Spanish law, and under that modification of the civil law which prevails in Scotland,

To what extent this maxim has been practically adopted in the English and American equity law is a question which was very carefully and elaborately considered and discussed by Judge Story in a case very analogous to the present. In the case of Bright v. Boyd, 1 Story, 478, the real estate of a testator was sold by the administrator with the will annexed to pay the debt of the deceased. The property brought its full value, and the purchaser supposed himself to have obtained a good title, and accordingly made large and expensive improvements on the lots. It turned out that the administrator had not complied with the statute, and the sale was held bad and no title passed. The devisee sued in ejectment and recovered upon his legal title, which of course had not been divested by this invalid sale, and the purchaser and occupant brought his bill to compel the devisee, before he should be permitted to take possession under his judgment in ejectment, to pay for the improvements and for money advanced in buying up outstanding claims. Judge Story hesitated. The case was heard in 1841. In 1835, when his Treatise on Equity Jurisprudence was first published, Judge Story had intimated that such cases were beyond the reach of our equity courts, except when the party seeking to recover the estate required and called for aid from a court of equity, or unless there was some fraud; and that, where the party could recover the estate at law, a court of equity could not, unless there was some fraud, relieve the purchaser. (2 Story Eq. § 1238.) Chancellor Walworth, in Putnam v. Ritchie, 6 Paige, 390, had expressed the same opinion,- although he admitted that, after a careful examination of English and American authorities, he had found no case where the point had been decided either way. Judge Story, strongly impressed as he was with the natural equity of the plaintiff’s claim, declared himself unwilling to lead the way in making such a precedent as Chancellor "Walworth had been unable to find. He examined tire. Roman law, the Spanish law, and the Scotch law, and in all these systems he found the question left beyond dispute; and after a postponement of the case and a mature deliberation, he came to the conclusion that the plaintiff was entitled -to the full value of his improvements. His language" in his final opinion is emphatic: “I wish, in coming to this conclusion, to be dis-. tinctly understood as affirming and maintaining the broad doctrine,, as a doctrine of equity, that so far as an innocent purchaser for a valuable consideration-witliout notice of any infirmity in his title has, by his improvements and meliora-tions, added to the permanent value of 'the estate, he is entitled to a full remuneration, and that such increase of value is a lien and charge on the estate, which the absolute owner is bound to discharge before he is to be restored to his original rights in the land. This is the clear result of the Roman law; and it has the most persuasive equity, and, I may add, common sense and common justice, for its foundation.” ,(2 Story R. 607.)

' This case of Bright v. Boyd is not, it is true, in all respects the same with the one now under consideration. There is a difference between the two cases, and perhaps an essential one; but the only point of difference there is serves to place the case we have under consideration on less debatable ground. In that case, as in this, the sale and purchase was in good faith on both sides, but turned out to be void by reason of a noncompliance with the provision of the statute law; but, in that case, the occupant was plaintiff in equity, and desired compensation for improveme'nts which he had in good faith made; in this case, the defendant asks for the purchase money, which has become, as itwere, incorporated in the land by paying off a lien on it-which the true owner was bound to pay. The owner insists on having the land and the money both. Now, by the common law, the maxim was, “ cujus est solum, ejus est usque ad codumj’’ and there was at least - some plausibility, though no substantial equity, in the claim of the owner to the improvements as well as the land. It might have been urged that the true owner, if ignorant of his title and not aware of the improvements which the actual occupant was putting on the land, ought not to pay for improvements which he had not directly or indirectly authorized, and which might not at all suit his wants or his fancy. But such an argument could not be used in the case now before us. The purchase money has gone to extinguish a mortgage which the owner was bound to extinguish before he could get the land. It was not a matter of taste or fancy. The debt was a lien on the land, and that lien could only be removed by paying off the debt. There is no escape from .the equity here, unless the plea should avail that defendant was a stranger, a volunteer, one who paid a debt without being ashed, and who therefore upon legal principles shall not by such an act of folly be allowed to make himself a creditor of another person’s debtor. We will examine this plea presently.

In the case of Bright v. Boyd, Judge Story said: “ There is still another broad principle of the Roman law which is applicable to the present case. It is, that where a bona fide possessor or purchaser of real estate pays money to discharge any existing encumbrance or charge upon the estate, having no notice of any infirmity in his title, he is entitled to be repaid the amount of such payment by the true owner seeking to recover the estate from him. Now in the present case it can not be overlooked that the lands of the testator, now in controversy, were sold for the payment of his just debts, under the authority of law, although the authority was not regularly executed by the administrator in his mode of sale by a noncompliance with one of the prerequisites. It was not therefore, in a just sense, a tortious sale; and the proceeds thereof paid by the purchaser have gone to discharge the debts of the testator; and so far, the lands in the hands of the defendant have been relieved from a charge to which they were liable by law; 'so that he is now enjoying the lands free from a charge which, in conscience and equity he, and he only, and not the purchaser, ought to bear. .To the extent of the charge from which he has been thus relieved by the •purchaser, it seems to me that the plaintiff, claiming umder the purchaser, is entitled to reimbursement, in order to avoid a circuity of action to get back the money from the administrator, and thus subject the lands to a new sale, or at least in equity to the old charge. I confess myself to be unwilling to resort to such a circuity in order to do justice, where, upon the principle of equity, the merits of the case can be reached by affecting the lands directly with a charge to which they are, ex cequo et bono, in the hands of the present defendant, clearly liable.”

I have transcribed this strong and decided view of Judge Story in the case of Bright v. Boyd, because, meeting in every respect the question we have to decide here, and applying mutatis mutandis to. the precise facts of the case, we shall at least be relieved from any imputation of rashness or innovation if we follow the precedent made by so distinguished a jurist. And now Judge Story’s doctrine, in Bright v. Boyd, has been made statute law in Missouri, whatever doubts may have existed hitherto of its right to a place among the principles of equity law. (R. C. 1855, p. 694.)

But the principle, apart from its undoubted and undeniable prevalence in the civil law and the’codes which have grown out of this system of jurisprudence throughout continental Europe, does not, as an established principle of American equity law, rest upon the single authority of Judge Story. In Hudgins v. Hudgins’ executor, 6 Gratton, 320, the court of appeals of Yirginia applied the same principle to a case essentially like the present. In that case, there had been a proceeding against an executor to subject-the land of his testator to the payment of a debt, and a decree was made for a sale of the land, and commissioners were appointed to make the sale and convey the land. The title acquired under the sale of the commissioners was held to be void against the devisees under the will, but, as the purchase money had been applied to the payment of the testator’s debts, which by the will were a lien on the land, the court would not permit the devisees to disaffirm the sale without paying back the purchase money. The equity in this case was administered by substituting the purchaser to the rights of the creditors.

It is immaterial under what form the equity in such cases is administered; whether under the name of compensation, as it was done in the case of Bright v. Boyd; or under the name of substitution, as in the case of Hudgins v. Hudgins; or, as it is sometimes more conveniently effected, by reviving the encumbrance, which the purchase money has extinguished, and permitting it to be used as a shield against a recovery at law. (Peltz v. Clark, 5 Peters, 482.)

In the case of Howard v. North, 5 Texas, 315, the principle was applied to sheriff’s sales. There the sale and deed were held totally void, but the court would not allow the debtor or defendant in the execution to get back the land from the purchaser at the void sale without reimbursing him for the , amount paid as purchase money, and which went to discharge the judgment which was a lien on the land. The doctrine of substitution was resorted to by the court to effect the object in view here, but the amount of it was that the purchaser was not compelled to restore the property until equity was done to him. This principle, thus applied to sheriff’s sales, is recognized and acted on in Kentucky in numerous cases, and is there applied, not only to cases where the conveyance is ineffective, but to cases where the title of the defendant in the execution fails. The case of McLaughlin’s Adm’r v. Daniel, 8 Dana, 182, is a case of this kind. The courts of Kentucky and South Carolina (Bently v. Long, 1 Stroth. Eq. 43) will give a purchaser at sheriff’s sale, who loses his property by paramount title, a redress against the defendant in the execution for the amount paid on his purchase, which has gone to discharge the defendant’s debts, by substituting him in the place of the creditor. In our state, where the doctrine of caveat emptor has been maintained with strictness in its application to judicial .sales, it may be that the courts would not be at liberty to go to the extent of the Kentucky and South Carolina cases, though recent legislation here, as well as recent decisions of this court, show a tendency to the same equitable doctrines. (R. C. 1855; p. 967; Magwire v. Marks, 28 Mo. 196; Heath v. Daggett, 21 Mo. 69.) In these cases of failure of title in the defendant in the execution and consequent failure of title in the purchaser at the sheriff’s sale, the Kentucky courts base the equitable rights of the purchaser, not upon his knowledge or ignorance of the condition of the title, but upon the ground that the purchaser has discharged a judgment against the estate or debtor, for which the one or the other stood chargeable, by a purchase of property made under the process of the law, and therefore has the equitable right to be reimbursed out of the estate or property of the debtor. The purchaser, in such cases, might be called a volunteer or a stranger with as much propriety as the purchaser here could be, for he gets no title, either because the execution debtor has none, or because the process used to transfer' it was illegal and void. The case of Peltz and others v. Clark, 5 Peters, 482, although unlike the present in the essential particular that the sale in that case was a valid one, shows that a purchaser, under the circumstances of this case, could hardly be regarded as a volunteer, so as to exclude him from the right of substitution, or the right to use a mortgage, which his money had satisfied, as a protection pro tanto against the ejectment.

In Louisiana, the courts have not hesitated, but disposed of this question as one too plain for argument under the laws of that state. In Dufour v. Campane, 11 Martin, 615, there was an irregular sale, just as there was in this case, and the title of the purchaser failed, not by reason of any want of title in the person from whom he supposed himself to be buying, but because of some informality in the conveyance or the proceedings which led to it. The court say, in a few words : “ Nothing could be more unjust than to permit a debtor to recover back his property because the sale was irregular, and yet allow him to profit by that irregular sale to discharge his debts.”

This is all indeed which could be or need be said upon the subject. “ Nothing could be more unjust,” we may repeat, than to permit a person to sell a tract of land and take the purchase money, and then, because the sale happens to be informal and void, to allow him, or, which is the same thing, his heir, to recover back the land and keep the money. Any code of law which would tolerate this would seem to be liable to the reproach of being a very imperfect or a very inequitable one. We think that, upon well established principles of equity law, the owner of the land should, if he wishes to get it back, repay the purchase money, which he has received, or which he will receive if he gets the land. This may be done upon the compensation doctrine of courts of equity, with which, as it is settled on all hands, it is not inconsistent, if we regard the claim of the owner under such circumstances, as the Eoman law treated it, as a case of fraud ■or ill-faith. But whether this equity be administered under ■the name of compensation or by substituting the purchaser in the place of the creditors whose debts he has paid, or by giving him the benefit of the mortgage which his money has paid off, is not material. The answer put in by the defendant should not have been stricken out, and, in order that the answer may be reinstated and the case may be tried upon these equitable principles, the judgment is reversed and the case will be remanded.

Judge Ewing concurs.

Scott, Judge,

dissenting. This was an action of ejectment brought by tbe heirs of G. G. Tallé against the defendants to recover tbe possession of land of which their ancestor died seized. The land in controversy was sold, by the administration of Yallé’s estate, under a proceeding for the sale of real estate for the payment of debts. The land was mortgaged for the security of the debt for the payment of which it was sold. The defendants became the purchasers of the land for a large sum, but on account of the irregularity of the proceedings had for the sale of it, no title passed to them by the deed of the administration. In this suit against the defendants to recover possession of the land, they set up these facts in an answer, and pray that they may be subrogated to the rights of the creditor for whose benefit the proceedings were taken to have the land sold, and whose debt was satisfied with the money paid by them.

I am not aware of any principle on which the defence set up by the defendants can be sustained. Oases similar to that under consideration have frequently occurred. If relief such as is sought here had been warranted by law instances of it would have been numerous, as we must be satisfied from our observation that like cases are of frequent occurrence. The magnitude of the sum involved may startle, but it can not affect the law. The distinction between powers and trusts or estates is a broad one. The administrator by our law is vested with no title to the land of his intestate. On his death it descends to his heirs. The administrator has nothing but a power ; and, if he would affect the land, that power must be executed in pursuance to the terms of the statute by which it is conferred. There is no difference between this case and that of a sale by a sheriff. If a sheriff’s deed proves invalid or ineffectual to convey a title, I know no instance in which a purchaser under it has been relieved. But how far is this new equity to be carried ? The cases cited would lead us to grant it on a failure of title to property purchased at a sheriff’s sale. Is it to be granted when there is no title by reason of irregularities in the proceedings to condemn the land, or to a defect in the instrument of conveyance, and to a failitre of title to property purchased at a sheriff’s or- administrator’s sale ? The sanctioning of this defence may work changes in our system which no one can foresee. Certainly it will be the means of giving relief in a great many cases, in which it has been the sense of the profession that no relief was afforded by the law. Not tliat they were insensible to the hardship of particular cases, but because they knew that the hardship of particular cases was compensated by the advantages resulting from fixed general principles. No man is wiser than the law ; and miserable is that system of jurisprudence under which the rights of litigants depend on the notions of right or wrong entertained by any man or set of men. In the old books there is a great deal of learning, and many cases in which the question was involved whether a devise to an executor for the payment of debts was an estate in the land or a mere power to sell. If this doctrine of subrogation had any application in cases of a mere power to sell, how useless would have been much of that learning. If the purchaser under the power was subrogated to the rights of the creditors the motive to litigation in many cases would have been taken away, and the distinction between powers and trusts would have been measurably broken down.

The defendants are volunteers and strangers in relation to the plaintiffs. No man can make another his debtor without his consent. Nor can a man pay a debt' of another without his authority and claim it of him. This is an important principle necessary to be preserved, and it is one which has had its influence in all cases in which it has been involved. In my opinion, the judgment ought to be affirmed.


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    Hammond’s Administratrix, Respondent, v. Cadwallader, Respondent.
    1. An agreement to purchase land at a sheriff's sale and to hold it in trust for another is within the third section of the statute of frauds; it must be in writing.

      Appeal from Jefferson Circuit Court.

    The petition in this case sets forth substantially that John Hammond, plaintiff’s intestate, became one of the securities of Eli Cadwallader on his bond as guardian of certain minor children; that said Eli died indebted as guardian to said minors in about the sum of $283.72, and did not leave personal property enough to pay his debts; that all the real estate he owned was a certain, tract of one hundred and sixty acres ; that this land was encumbered with a mortgage in favor of defendant Isaac Cadwallader, which plaintiff is informed was actually satisfied but was not released of record ; that one Johnston qualified as executor of said estate and obtained an order from the county court for the sale of said real estate for the payment of the debts of said Eli, specifying among, others the indebtedness of said Eli to his ward; that said executor duly advertised said land for sale; that before the sale defendant came to said Johnston pretending that said mortgage was not satisfied and persuaded said Johnston as executor to confess a judgment for $263.82 as a balance due on said mortgage from said Eli; that on this judgment a special writ of execution issued; that John Hammond, being security for Eli as aforesaid and seeing that it was likely he would have to pay said wards the amounts due from Eli, took measures to secure himself; that he called upon defendant on the subject, and they entered into an agreement that defendant should buy the land aforesaid at his sale under the judgment of confession aforesaid in trust for the said Isaac (defendant) and said Hammond; 'that said Isaac and said Hammond should each pay one-half of the costs of sale, and that said Isaac should retain the land until he could find a private purchaser; that out of the proceeds of sale said Isaac was to pay or to retain enough to satisfy the amount of his judgment, and the balance he was to give to said Hammond to apply to the indebtedness of said Eli to his wards for which said Hammond was security; that according to this agreement said Isaac bought said land at said sale in trust for himself and said Hammond, who paid his half of .the expense of said sale to said Isaac ; that Hammond died; that judgments were recovered against his ad-ministratrix in behalf of said wards for $387, which plaintiff paid.; that said Isaac, defendant, sold said land for $600; that said mortgage was paid off in the lifetime of Mi Cad-wallader. The plaintiff prays that" the defendant may be made to account-'for the proceeds of the sale of said land held in trust, and for judgment for the amount paid by plaintiff for said Eli Cadwallader on his bond as guardian.
    ■It appeared in evidence that there was an oral agreement such as that charged in the petition entered into between the defendant Isaac Cadwallader and John Hammond, plaintiffs’ intestate. The court instructed the jury that “ if the defendant agreed with- Hammond that, if he would not bid or interfere with him in the purchase of the land, he would buy the land and sell it, and after paying his own debt from the proceeds, and a small balance to B. Johnston, the administrator of Eli, he would apply the balance to liquidate the liability of Hammond as security of Eli Cadwallader, they would find for the plaintiff said balance with interest from the time of sale.”
    The court refused the following instruction asked by defendant : “ If the alleged promise of Isaac Cadwallader was merely verbal, the jury will find for the defendants. A verbal promise in reference to the conveyance or holding land in trust could not be enforced. If the jury find the promise was not reduced to writing and was not to be performed within one year, they will find for defendant.”
    The jury found for plaintiff.
    Fletcher, for appellant.
    I. The alleged promise was within the statute of frauds. There is no allegation of fraud on the part of Isaac Cadwal-lader. (See generally 10 Watts, 320 ; 1 Watts & Ser. 376 ; 9 Watts & S. 66; 4 W. & S. 150; 2 Watts, 327; 9 Watts, 42; 15 Wend. 650; 16 Verm. 500 ; 1 Hoff. 95 ; 2 Johns. Oh. 405; Earring. Oh. 12 ; 7 Ind. 308; 3 A. K. Marsh. 947; Meigs, 390 ; 2 Paige, 238 ; 2 Ash. 482; 3 Sumn. 460 ; 4 Johns. 422; 12 Johns. 290 ; Willis on Trustees, 28 ; Coxe Oh. C. 15.)

      Noell, for respondent.

      I. The interest that Hammond had in making the land bring a sum sufficient to pay his liabilities, and the foregoing of his right to bid It up to that point, is a sufficient consideration to support the promise to apply the proceeds as stipulated. (27 Penn. 180.) The statute of frauds is not applicable to this class of trusts. This trust is raised by implication of law, and is founded upon the fact that the party asserting the trust had an interest in the subject matter of it prior to his agreement. That interest he yielded in the form it then stood in order that the party to whom he yielded it might use the subject matter of the trust to the mutual advantage of both parties. It would be a fraud were Isaac Oadwallader allowed to repudiate so much of the agreement as enured to the benefit of the other'party. The instruction asked was properly refused. The court correctly declared the law in the instruction given. (27 Ala. 461; 13 Texas, 187; 16 Ill. 118; 2 Snead, 395; 12 Mo. 30; 6 Mo. 171; 20 Mo. 296.)
   Napton, Judge,

delivered the opinion of the court.

The circumstances of this case are materially different from those of Rose v. Bates, 12 Mo. 30. That case proceeded altogether upon the ground of fraud, and it is one of a class of cases in which implied trusts, arising out of fraud, have been enforced notwithstanding the statute which required them to be in writing. The case 'of Brown v. Dyrenger, 1 Rawle, 413; McCulloch v. Cowhe, 5 W. & S. 431; Lees v. Nuttall, 1 Russell & Mylne, 53; Kisler v. Kisler, 2 Watts, 427, and Schmidt v. Gatewood, 2 Rich. Eq. 162, proceed upon the same ground. Where transactions have been tainted with bad faith, there is a resulting trust by operation of law; but the simple violation of a parol contract does not constitute such a breach of faith ; for if such was the law, the statute of frauds would be virtually repealed. It is not sufficient to call the transaction a fraud or a trust; there must be some artifice or trick employed to made it so, and a confidence reposed by one party in another on the faith of which something has been lost on one side and gained on the other. (Robertson v. Robertson, 9 Watts, 36; Haines v. O’Connor, 10 Watts, 320; Fox v. Heffner, 1 Serg. & R. 376; Lloyd v. Spillet, 2 Atk. 148.)

Here, it will be seen by reference to the bill of exceptions, no fiduciary relations existed between Hammond and Cad-wallader. No evidence is' offered to show that Hammond was a bidder at the sale of the land, or that he expected at any time to become a bidder; no evidence that Oadwallader made any representations at thfe sale, or authorized a*ny by which the sale was affected, or by which Oadwallader was enabled to buy the land at an under-value ; no proof that in fact the land did not sell for its full market price at the date of the sale. The case was a naked promise to buy the land in trust for the plaintiff, and such a trust not being in writing is clearly within the third section of our statute of frauds.

It will be observed that the bill in this case does not contain any allegation of fraud, and nothing is better settled than that, where a trust of this kind is sought to be enforced, fraud must be distinctly alleged and clearly proved. (Browne on Stat. of Frauds, 93, and cases cited.)

Moreover, if this was the object of the petition, the trial should have been by the court. But if this action is to be regarded, not so much as a suit to compel the specific performance of a trust, as for damages for the breach of a contract, it must fail under another section of the statute. The contract alleged and proved in this case must be considered as an agreement, upon certain contingencies, to'pay the debt of another. Laying out of view all consideration of a trust in the land, the promise of defendant was simply to sell the land which he was about to purchase at the sheriff’s sale,, and apply the proceeds — after the payment of a small sum to Johnston, his brother executor, and the extinction of his own mortgage debt — to the plaintiff’s claim against the estate of Eli Oadwallader. This promise was clearly within the fifth section of the statute.

Judgment reversed.

The other judges concur.


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    Price, Appellant, v. Hart et al., Respondents.
    1. Where delivery of possession of land in case of a parol contract of sale has unequivocal reference to such contract and is under and by virtue of it, this will constitute such part performance thereof as will take the case out of the statute of frauds.
    2. Where a deed of a married woman is invalid by reason of a defective acknowledgment, she may ratify and confirm the same after becoming disco-vert ; a mere parol adoption would not be sufficient; it would be within the statute of frauds.

      Appeal from Monroe Circuit Court.

    This was a suit commenced in the year 1855 by Miriam Price against the defendants as the heirs of Mrs. Mahala Collins. The facts of the case are briefly as follows: Mr. and Mrs. Collins, in 1853, sold certain lands belonging to Mrs. Collins to the- plaintiff Miriam Price. They executed a deed of conveyance dated February 24,1858, in favor of plaintiff; who was admitted immediately into possession. She gave her notes for the purchase money. Mr. Collins soon after died. The deed executed by Mr. and Mrs. Collins was ineffectual by reason of a defective acknowledgment on the part of the wife. The defect was not discovered until after the death of Mr. Collins. There was evidence showing that in 1854, after the death of her husband, Mrs. Collins assented to the sale, expressed her entire satisfaction with it if the money could be secured to her own children, and promised to execute a deed to Mrs. Price. ■ Mrs. Collins died in 1855 before the institution of this suit. After her death the purchase money due was paid to her administrator. The court decreed against the plaintiff on the ground that the contract being in writing was within the statute of frauds.
    Carr, for appellant.
    I. The deed of Mrs. Collins, though defectively acknowledged, is a sufficient note in writing within the statute of frauds. She adopted this deed after the death of her husband, and it became a sufficient memorandum or note in writing. (10 Mo. 268; 15 Mo. 369.) The delivery of possession, making lasting improvements, and the payment of the purchase money, are sufficient to entitle the plaintiff to a decree of title. (15 Mo. 369 ; 25 Mo. 63 ; 23 Mo. 423 ; 21 Mo. 331; 19 Ala. 481; Browne on Stat. of Frauds, 482.)
   NaptoN, Judge,

delivered the opinion of the court.

There are difficulties in allowing Mrs. Collins’ conversation with the plaintiff in 1854 to set up the deed, executed in 1853, as a sufficient memorandum in wilting within the statute of frauds. That deed, not having been acknowledged according to law, had no validity as a deed against Mrs. Collins, and, as a contract, could not bind her, as she was at the time of its execution feme covert. Although a nullity in the law, it had however a physical existence ; and as it contained a distinct account of the sale of the land, a minute description of the land itself and a specification of the terms of sale, it might very well have been adopted, or ratified, by a subsequent agreement, if that subsequent agreement was in the form required by the law. In such case it is obvious that the binding force of the contract is in the subsequent agreement and not in the deed, and the agreement must therefore be in writing. If the deed can be adopted or set up by a mere parol declaration, made by Mrs. Collins after the removal of her disability of coverture, it would seem to let in all the evils which the statute was designed to guard against.

The case does not, however, in our opinion, turn upon this point; for, conceding that there was no memorandum in writing, there is still ample proof to authorize a decree for specific performance of the agreement.

After the death of Collins, and after the mistake in the acknowledgment of the deed was discovered, the proof is un-contradicted that Mrs. Collins expressed her entire satisfaction that the sale should stand, and promised to execute another deed so soon as proper steps could be taken to secure the purchase money to her children. Mrs. Collins died shortly after this conversation. The purchase money has been all paid to her administrator; and the plaintiff, who took possession of the land in 1853 immediately upon the execution of the deed, has been in possession ever since and made .improvements on the place.

The circuit codrt seems to have dismissed the bill upon the ground that the possession of the plaintiffs was anterior to the contract sought to be enforced, and that the improvements made were not of such a character or of such value as of themselves to warrant a decree for .specific performance.

It is well established that the delivery of possession of a tract of land, to form the groundwork of a decree for title, where the contract is wholly parol, must be in pursuance of the alleged contract. The principle itself is self-evident, but its application has been chiefly illustrated in two classes of cases. The first is where the party is in possession as tenant and attempts to set up a new lease or an absolute purchase. Here the relation of landlord and tenant exists at the time of the alleged contract, and the circumstance of the tenant’s continuing in possession amounts to nothing. So where the relation between the parties is that of father and son, the possession of the latter admits of a similar explanation, and by no means necessarily leads to an inference that the land has been given or sold to the son. (Eckert v. Eckert, 3 Penn. 332.) But where the parties are strangers, as in the case now under consideration, the case is different. As was said by the Master of the Eolls, in Morphell v. Jones, 1 Swanst. 181, “ the admission into possession having unequivocal reference to contract has always been considered an act of part performance. The acknowledged possession of a stranger in the land of another is not explicable except on the supposition of an agreement, and has therefore constantly been received as evidence of an antecedent contract, and as sufficient to authorize an inquiry into the terms.” • ^

It is impossible to distinguish the contract consummateáT by the supposed conveyance in 1853 and the parol agrgir ment of Mrs. Collins in 1854, so far as a delivery of possession under the contract is concerned. The latter parol agreement may be considered as relating back in time to the former, or as amounting to a second delivery of possession at the date of the second agreement. To all intents and purposes, so far as the question of possession or the time of its being taken is concerned, they are one and the same. The facts, as stated in the finding of the court, or as more fully detailed in the bill of exceptions, show, beyond all doubt, that the possession of the plaintiff' was under and by virtue of the contract of sale now sought to be enforced.

Judge Ewing concurring, the judgment is reversed and the cause remanded. Judge Scott absent.