author: Napton, Judge,

text:
    Price’s Heirs, Respondents, v. Evans, et al., Appellants.

    1. The rule that a purchase of an adverse title by a trustee, mortgagee, or tenant for life, enures to the benefit of the cestui que trust, mortgagor or remainder man, is not applicable to eases, where there is no title whatever in the cestui que trust, &e., and the trustee, mortgagee, or tenant for life, not being in possession, is guilty of no fraud or unfair dealing, and derives no unjust advantage from the relation he sustains to the cestui que trust.

    2. Where the title to which a trust or mortgage attaches fails absolutely, the trustee or mortgagee — in the absence of fraud and unfair dealing, or unfair advantage arising out of the relation sustained to the cestui que trust or mortgagor — may purchase and hold for his own benefit an adverse title.
    3. A judgment was rendered in the year 1829, in favor of one A. B. against one C. D. Ai execution was duly issued, and certain real estate of C. X). was seized and sold, and A. B. became the purchaser and received the sheriff’s deed therefor. A second execution was duly issued, and a levy was made upon certain other real estate of C. D. On the day of the sheriff’s sale under this execution, the plaintiff in the execution, A. B., executed and delivered to C. D. the following instrument in writing: “ The understanding between C. D. and myself is that on the payment of my debt due me from said C. D. I am to reconvey all the property already purchased at sheriff’s sale, and am also to purchase in the property to be sold this day by the sheriff, which is also to be reconveyed to C. D. on the payment and full satisfaction of my debt due as aforesaid. March 31, 1851. [Signed] A. B.” A. B., in pursuance of said agreement, did purchase in the various tracts of land advertised to be sold. Held — under all the circumstances of the case, the lapse of time, the acts of the parties, the insolvency of C. D. from before the date of these transactions until his death in 1846 or 1847, the issuing with the knowledge of C. D. of other executions and the levying of them upon other lands of C. D., the little value of the lands purchased at the dates of the levies and sales, the fact that they were largely encumbered and were held for the most part under adversary titles — that the above agreement should be regarded in the light of a mere temporary privilege or indulgence granted to C. D. by A. B.; that A. B. could not be regarded as holding the lands, purchased in by him under said agreement, by way of mortgage.

      Appeal from, St. Louis Circuit Court.

    This was a bill in chancery filed in the year 1845 by Ris-don H. Price against Augustus H. Evans. The heirs of said Price were afterwards made complainants, and certain purchasers from Price were also made defendants. The bill, as amended, charges substantially that on the 28th of August, 1824, Risdon H. Price, sr., made and delivered to A. H. Evans a sealed note for 12089.64, payable one day after date; that though said Evans acknowledged by a writing under seal, [see below opinion of court] dated April 19, 1828, that he held a certain tract of 640 acres, located in virtue of New Madrid certificate No. 399 (the Robertson tract) as a security for the amount due upon said note, and also acknowledged in said sealed writing that some payments had been made on said note, he yet, notwithstanding this, instituted suit against Price on said note, and, not allowing any credits, obtained a judgment against Price, August 4th, 1829, for $2,089.64 debt, and $397.35 damages and costs — $2486.99; that, still allowing no credits, said Evans, between tbe date of said judgment and the year 1833, caused various executions to be issued and levied on a large amount of valuable property belonging to said Price, all of which was purchased at the several sheriff's sales by said Evans, either directly or by agent; that, for the purpose of quieting Price and obtaining his valuable property at a merely nominal price, Evans agreed with said E. H. Price that all the purchases he might make at such sheriff’s sales of Price’s property under process issued under said judgment should be held by him merely as a security for his debt and judgment aforesaid; that to put this beyond dispute Evans executed and delivered to said Price the following agreement in writing, to-wit: “ The understanding between Kisdon H. Price and myself is that on the payment of my debt due me from said E. H. Price, I am to reconvey all the property already purchased at sheriff’s sale, and am also to purchase in the property to be sold this day by the sheriff, which is also to be reconveyed to Price on the payment and full satisfaction of my debt due as aforasaid. March 31, 1831. [Signed] A. II. Evansthat from this it will appear that all purchases of property made by Evans under process issued on his debt and judgment, whether purchased on the 31st of March aforesaid or before that time, were expressly and solely made and to be made by said Evans and held by him as a security for said debt and judgment, and for the benefit of said Price entirely when said debt or judgment should be discharged.
    The bill then proceeds to set forth the issuing of various executions under the judgment against Price, and the sheriff’s sales thereunder; also the purchases by Evans at said sales, either directly or through his agent and attorney ; also that said sales were made at enormous sacrifices, and at a ruinous loss to said Price ; also that, “ for a long series of years before his death, said Price was greatly afflicted both in body and mind, and by reason thereof incapacitated to give any proper attention to his business, and so to watch and to exert himself as to supervise and counteract the frauds, infidelities and shocking spoliations practiced upon him by said Evans, who has, from the time of acquiring the 640 acres of land and New Madrid location in the year 1828, and before the rendition of said judgment against said Price, continued to avail himself of the inert, helpless and defenceless condition of said Price, to practice the most atrocious frauds and spoliations upon him and his property, and still perseveres in his iniquitous conduct by refusing all settlement and satisfaction,” &c.; that as far back as the year 1832 said Evans had been fully paid the debt due him from Price. Complainants pray for an account of the original debt and of the rents and profits received, and for a decree vesting in them the title to the lands; also that any sum found due to complainants may be decreed to them; also for such other and further relief, &c.
    The court rendered the following decree: “ This cause coming on for further proceedings therein, the parties being present by their respective counsel, and due deliberation being had therein, and forasmuch as it appears to the court that on the 4th day of August, in the year 1829, as alleged in complainants’ bill, the said defendant, Augustus H. Evans, recovered in this court a judgment-for two thousand five hundred and eighty-six dollars and ninety-nine cents against Ris-don H. Price, sr., since decased; and forasmuch as it appears that the said Augustus H. Evans, at two several sheriff’s sales on executions under said judgment — which said sales took place respectively as alleged in complainants’ bill, on the 30th day of July, in the year eighteen hundred and thirty, and on the 31st day of March, in the year 1831 — purchased in certain tracts and lots of land belonging to the said Risdon H. Price, sr. — which said tracts and lots of land are all those embraced in the two sheriff’s deeds to said Augustus H. Evans, the one dated the 5th of August, in the year 1830, and recorded in the recorder’s office of St. Louis county, in book Q, page 240, the other not dated, but acknowr ledgcd April 28d, 1831, and recorded in the same office in book R, p. 66 — under an understanding and agreement with the said Risdon H. Price, sr., that he, the said Augustus H. Evans, should hold the tracts and lots of land, so purchased in bj him, in trust as a security for the payment of said judgment debt, and should reconvey the same to the said Risdon H. Price, upon payment of the said judgment debt to him the said Evans; and forasmuch as it appears to the court, and the court so declares the facts to be, that the said tracts and lots of land so purchased in by the said Evans (excepting a tract of 640 acres located in virtue of New Madrid certificate No. 399, issued to Andrew Robertson, or his legal representatives, as to which, under the facts of the case, the court adjudges and declares that the trust sought to be enforced by the complainants does not in equity attach) were, until the payment of the said judgment debt, in the manner stated below, held merely as a security for the payment of the said judgment; and forasmuch as it appears from the report of the commissioner appointed by the court to take an account in this cause, as the same has been corrected, amended, and reformed by this court, after due consideration thereof, that the said judgment debt — by the purchase, at sheriff’s sales other than the two sheriff’s sales above mentioned, of other lands belonging to the said Risdon H. Price, sr., by the proceeds received by the said Evans of sales of various portions of the tracts and lots of land so acquired and held as a security as above declared and sold and conveyed away by the said Evans, and by the receipt of the said Evans of the rents and profits arising from the said tracts and lots of land, and in other ways — has long since been paid to the said Augustus H. Evans; and forasmuch as it appears — after making all just allowances to the said Augustus H. Evans, for all his expenditures concerning the said tracts and lots of land, so as above acquired and held as a security, in paying taxes on the same, and in paying costs and counsel fees in suits in respect thereof, and in purchasing in and extinguishing outstanding claims, and for his services in attending upon, managing and controlling the same — that there is a balance upon the whole account against the said Augustus EL Evans, and in favor of the complainants who are the children and heirs at law of the said Risdon EL Price, sr., deceased, which said balance amounts to the sum of five thousand nine hundred and five dollars and sixty-seven cents; — therefore it is ordered, adjudged, declared, and decreed, that the said Augustus EL Evans now holds all the right, title and interest which may now be in him, the said Evans, in and to all the several tracts and lots of land so acquired as above stated, and formerly held as above stated and declared as a security for the payment of the said judgment debt, absolutely in trust for the said complainants, the children and heirs at law of Risdon EL Price, sr., deceased; and it is further ordered, adjudged and decreed, that all the right, title and interest of the said Augustus EL Evans in and to the various tracts and lots of land so declared and decreed to be held absolutely in trust for the complainants as the children and heirs at law of the said Ris-don H. Price, sr., deceased — and more particularly all the right, title and interest of the said Evans in and to all that lot or piece of land in the city of St. Louis, being the south half of the south-east quarter of block 57, in the said city, and bounded east by Second street, and south by Myrtle street, which said lot or piece of ground is described in the sheriff’s deed to said Evans, above referred to as being sixty feet front (French measure) on Second or Church street, and one hundred and fifty feet on Myrtle street — be and the same are accordingly hereby devested out of the said Augustus EL Evans, and vested in the complainants, Risdon EL Price, Frederick Price, James Price, Martha House (late Price) wife of Samuel House, Anne Price, wife of John 0. Price, and Eliza Price, to the end and intent that the said complainants have and hold the said tracts and lots of land free and clear of all claim and pretence of claim on the part of the said Augustus H. Evans, to them and their heirs forever, in fee simple. And it is further ordered that a writ of possession issue in favor of the said complainants, to put them, the said complainants, in possession of the said lot or piece of ground, being the south half of the south-east quarter of block 57 in said city of St. Louis, and situated at the corner of Second and Myrtle streets. And it is further ordered, adjudged and decreed, that the complainants do recover of the said Augustus H. Evans the said sum of five thousand nine hundred and five dollars and sixty-seven cents, the same being the true balance against the said Evans upon the whole account taken in this cause. And it is further ordered and adjudged that the complainants do recover their costs in this cause against the said Evans, and have their writ of execution for the said debt and costs.”
    The bill at the hearing was dismissed as to the assignees of Evans. Appeals to this court were taken by the defendant Evans, and also by complainants.
    It is deemed unnecessary to set forth the facts more fully ; they sufficiently appear in the opinion of the court.
    Shepley, Biddlecome and Johnson, for Augustus H. Evans.

      S. T. Glover, Buckner and H. M. Jones, for Price’s heirs.

      Cline & Jamison and Wickham & Sneed, for assignees of Evans.

       Richardson, Judge, having been of counsel, did not sit at the hearing of this case.

   Napton, Judge,

delivered the opinion of the court.

This case is a complicated one, but its determination will depend chiefly upon the decision of two principal points. The first relates to the decree of the court dismissing the, bill as to the tract of 640 acres located under New Madrid certificate 899. The second involves the construction of agreement marked “ B,” and the conduct of Evans in reference thereto.

The title to the 640 acres located by virtue of New Madrid certificate 399, and known also as the Robertson tract, is controlled mainly by an agreement executed by Evans on the 19th of April, 1828, and marked in the record as exhibit “ A,” considered in connection with the bill, answer and evidence touching this branch of the case. The agreement “ B” may also, in one view, draw within its control the title to this tract; but as a matter of convenience I- will first consider the question without reference to exhibit “ B.” The agreement of April, 1828, called exhibit “ A,” is as follows : “ Whereas I am the owner of a certain sealed note, made by Risdon H. Price to me, dated 28th August, 1824, payable one day after date, for the sum of $2,089.65, with interest thereon at ten per cent, per annum, on which note some payments have been made: Now be it known that all the right, title or interest, owned or held by me in a certain tract of land located in virtue of New Madrid certificate 399, dated 11th August, 1818, for six hundred and forty acres of land, and my interest in said certificate, (which certificate was conveyed by James Tanner to Risdon H. Price, dated 19th August, 1819,) are held by me as security for the amount due me on said note, and that when said note shall be fully paid and satisfied, I will convey to said Price or his assigns the said certificate and location made thereunder, as far as I may be or have been interested in the same. In witness whereof, I have hereto set my hand and seal, this 19th day of April, 1828. [Signed] A. H. Evans, (seal.)”

The bill charges that in August, 1824, Price executed to Evans his note for $2,089.64, payable one day after date, with ten per cent, interest per annum until paid, and that to secure said debt, Price in 1828, conveyed to Evans 640 acres of land located by virtue of New Madrid certificate 399 and survey 2775, and that the agreement marked “A” was executed by Evans as evidence of this transaction.

The answer admits the execution of the agreement of April, 1828, called exhibit “ A,” but states that neither the defendant nor Price had any title to the New Madrid certificate 399, or the land located under it, called the Robertson tract, at the date of the execution of this-agreement; that at this time the title was held adversely to both by persons from whom the defendant subsequently acquired it. The answer sets out the title which Price had at this time, and which it was understood be conveyed to Evans. Price’s title was acquired (so the answer states) from one Tanner, who had obtained it from one Roberts. This was in 1818. Afterwards Price, ascertaining that he got no title from Tanner, recon-veyed to Tanner in order that Tanner might bring suit upon the covenants in Roberts’ deed to him. The suit was brought and Tanner obtained a judgment against Roberts; an execution was issued and levied on the land, and under this execution the defendant Evans bought it for forty-six dollars; and this was all the claim he had when he signed agreement “A.” The reason for giving it was, as stated in Evans’ answer, that Price, as he obtained no title from Tanner, had a claim on Tanner for the consideration money, which Tanner acknowledged to the amount of $200, and it was agreed between Tanner and Price that Tanner should pay this to Evans, and Price, thinking that Evans had bought something at the sale on Tanner’s execution against Roberts which might prove valuable, it was agreed between Price and Evans that upon such payment by Tanner he (Evans) would transfer to Price any such title when the note to Evans was paid. Tanner, it is declared in the answer, never paid any thing, and was wholly insolvent up to the time of his death ; nor did Price pay any thing. Evans then had an execution levied on the said tract of 640 acres with a view to get rid of any outstanding interest which Price may have been thought to have under agreement “A.”

The title which Evans afterwards procured is adverse to all the claims of Roberts, Tanner and Price. That title is set out in the answer and is as follows : In 1810 Andrew Robertson was the owner of land in New Madrid injured by earthquakes, and on the 20th of July, 1810, conveyed the injured land to one Humphreys. In 1816 Humphreys conveyed to Theodore Hunt, and Evans bought Hunt’s title under a judgment execution and sheriff’s sale in 1880.

The answer moreover avers that at the time this paper marked exhibit “ A” was made, Price had given deeds of trust upon this land to the Bank of Edwardsville, to secure the payment of $10,000 to the bank; that in 1820 he executed another deed to McDonald and Ridgley, to secure a large amount of indebtedness which has never yet been paid; that in August, 1821, the land was levied on by execution and sold to James McGunnegle, and a deed made to said McGun-negle ; that in 1823 the same tract was sold to Riddick, and afterwards Oomegys and Persehouse, judgment creditors, redeemed it and procured a deed from the sheriff; that all these titles were outstanding at the date of the execution of the agreement called exhibit “ A,” and rendered the title utterly valueless. The exhibits accompanying the answer show the various sales, deeds, &o., referred to. The defendant relied upon a title adverse to and totally unconnected with Price’s title, and further stated that the land was still in dispute. No evidence was offered touching this branch of the case, and its decision must depend upon the bill, answer and exhibits.

It is frequently laid down in general terms that if a trustee, mortgagee or tenant for life purchases an adverse title, such purchase enures to the benefit of the cestui que trust, mortgagor or remainder man. As a general proposition this may be sufficiently definite, but where the title of the cestui que trust, mortgagor or remainder man is destroyed, it is not true that the trustee, mortgagee or tenant for life may not acquire the real title, provided his condition and conduct are free from fraud. If by reason of his position as trustee he has the possession, and in acquiring the adverse title he takes undue advantage of the cestui que trust, courts of equity have gone so far as to hold such acquisitions to be still controlled by the trust. But in the absence of fraud and in the absence of possession, I have not seen any case where it has been held that such purchases shall enure to the benefit of the cestui que trust, where the cestui que trust has at the time of such acquisition no title. One would suppose that the destruction of the title to which the trust related virtually destroyed the trust, and it is not easy to see why the trustee, his duty ceasing with the existence of the subject matter of the trust, should not be at liberty to deal in reference to the property as well as any other person. To say that a new title shall be grafted on an old one which has no existence, is an anomaly in language. There must be some interest in the cestui que trust — something tangible to keep the trust alive, and on which the newly acquired title can be grafted. Whilst therefore the courts have seized upon very slight circumstances to keep the trust in existence — such as the possession of the trustee, his using the money of the cestui que trust in buying the adverse title, or any underhanded or unfair dealing on his part — they have at the same time admitted, where the title of the cestui qae trust is totally gone and no circumstance of fraud exists, the trustee may acquire for his own use the real title.

Such was declared to be the law in Lesley’s case, decided in 1680. (Freeman, Ch. 59.) “ A man is guardian or trustee for an infant to whom-lands are descended or devised, but the title is, re vera, in a third person; if the guardian or trustee buy in the title of this third person, this shall not be taken to be a trust for the infant; for he is at liberty to purchase it as well as any body else, and so it was held in the case of Combes and Throckmorton, per Cancellar.” This is declared by the learned annotator who publishes the reports to be a dictum, and unsupported by modern authorities ; but the cases cited by him exhibit no such contradiction, and, although the doctrine is laid down in a more unqualified manner than subsequent decisions will justify, yet the principle is correct, and is to be understood without reference to any of those circumstances of fraud or misconduct which it is admitted will keep the trust alive.

This principle, with its true modifications, is very clearly stated and illustrated by Lord Manners, in the case of Nesbitt v. Frederick, 1 Ball & Beatty, 42. That was a case of a mortgagee renewing a lease in his own name after the old lease was forfeited and he was not in possession and gave due notice to the mortgagor to redeem. “ The principle to be extracted from all the authors,” says the chancellor, “ amounts to this, that whenever a mortgagee, executor, trustee or tenant for life gets an advantage by either being in possession or behind the back of the party, mortgagor, cestui que tr.ust or remainder man, he shall not retain the same for his own benefit, but hold it in trust. The new lease in any of these cases will be considered as a graft upon the old one.” As the mortgagee in that case had given notice that he would not redeem, and did not, as the chancellor expressed it, go behind the back of the mortgagor, (which I take to be only a mild way of imputing fraud,) and was not in possession, the new lease was not held to be affected by the mortgage.

In conformity to this is the opinion of Sir William Grant, in Randall v. Russell, 3 Mer. 190. Mrs. Russell was, under her husband’s will, a tenant, durante viduitate, of a lease from a college, which had expired during her husband’s lifetime, but which he had continued to hold up to his death as tenant from year to year, with the privilege of renewing. Mrs. Russell renewed the lease for nineteen years, but the college selling the reversion to a private person, she bought the reversion, and a bill was filed by the devisees to have her declared 'a trustee for them as to this reversion, or to give them as against her the benefit of the nineteen years’ lease. The court held that the purchase of the remainder could not, under the circumstances, enure to the benefit of the devisees, upon the principle that after the reversion passed from the college, it did not concern them whether Mrs. Russell or any other person had purchased. In other words, as her situation as lessee gave her no particular advantage over others in the purchase of the reversion, and that purchase did not in any way affect the interest of the devisees, she was not a trustee for the uses of the will so far as this purchase was concerned. The remarks of the master of the rolls will abundantly show the grounds of his opinion. “No case,” he says, “ was mentioned in which this sort of equity had been carried to such a length. The ground commonly stated on which the renewed lease becomes subject to the trusts of a will disposing of the original lease is, that the one is merely an extension or continuation of the other. But the fee is a totally different subject, which the testator had it not in his contemplation to acquire or dispose of. Yet if Mrs. Russell had purchased from the college, it might be said that she had thereby intercepted and cut off the chance of future renewals, and consequently made use of her situation to prejudice the interests of those who stood behind her, and there might be some sort of equity in their claim to have the reversion considered as a substitution for those interests, although, as I have already said, I am not aware of any decision to that effect. But here the situation of the parties was altered by the act of the landlord without any intervention of the tenant for life. The college had aliened the property to an individual. The benefits attending the tenant-right of renewal with a public body are gone. A lease at a rack rent was all that was to be expected from the private proprietor. Mrs. Russell’s purchase from the first vendee wrought no change whatever in the situation of those who had interests in the lease as a college lease. Before she bought, it had become a lease that must expire at the end of fourteen years. Whether Mr. Hull, who bought of the college the reversion, sold or kept the reversion, was a matter of indifference to them. It is not enough to say that Mrs. Russell’s situation as tenant for life gave her the opportunity of making the purchase. They must go on and show what right or interest of theirs she acquired or defeated by making the purchase.”

Where the cestui que trust can not be injured, by reason of his title being entirely gone, the purchase of the trustee can not and ought not to be held subject to the trust which is virtually extinguished by the destruction of its subject matter, unless the conduct of the trustee, or some advantage he acquires by reason of this relation, should warrant the courts in creating a new trust, or extending the old one so as to embrace the new title. This is the doctrine as stated by Chancellor Kent in Holridge v. Gillespie, 2 John. Ch. 33, who declared it very much in the same language employed by Lord Manners, in Nesbitt v. Frederick. “ It is a general principle,” says C. Kent, “ pervading the cases, that if a mortgagee, executor, trustee, tenant for life, &c., wbo lias a limited interest, gets an advantage by being in possession or behind the back of the party interested in the subject, or by some contrivance in fraud, he shall not retain the same for his own benefit, but hold it in trust.”

Such is also the principle of Kentucky cases, where the subject has frequently come up, some of which have been cited in this case as being supposed to enunciate a different doctrine. In McLanahan’s heirs v. Henderson’s heirs, 2 A. K. Marsh. 388, the action of the court was in nowise inconsistent with this doctrine, as a very condensed statement of the facts will show. McLanahan bought a preemption and settlement right from Wilcoxson, and agreed if he succeeded in getting any land patented under this claim that Wilcox-son should have one-half. Wilcoxson conveyed his interest to Henderson. McLanahan succeeded in his entries, surveys and patents. Part of the land however he lost by suit; part he voluntarily relinquished to an interfering claimant, and he also bought the interfering claim of one Keller. The court held McLanahan responsible for the land he relinquished, and that the cestui que use, or his assignee, Henderson, should participate in the benefit of the purchase from Keller, upon paying his share of the purchase money. Although so much of this judgment as held McLanahan responsible for the part he voluntarily relinquished would seem to be going very far, unless his conduct in that matter showed such gross negligence as amounted to fraud, yet the court did not carry the responsibility of the trustee further than the cases warrant in holding his purchase from Keller as for the benefit of the cestui que use. McLanahan had a preemption right and a settlement right under which he had at least acquired possession, and as the purchase from Keller was made to strengthen his title, it would properly enure to the benefit of Wilcoxson’s assignee, who was the equitable tenant in common with him. In Pugh’s heirs v. Bell’s heirs, 1 J. J. Marsh. 399, it is merely decided that a purchase by a trustee from the cestui que trust will not be enforced in equity where the consideration is inadequate and the cestui que trust was ignorant of his rights — a principle too clear to be disputed. In Morrison’s Exec’r v. Caldwell, 5 Monr. 435, it is incidentally said that a trustee was not permitted by law to do any thing to the prejudice of the cestui que trust, or to acquire titles to the trust estate, in his individual character, to the injury of the trust. Qualified as this opinion is stated, it is not perceived to be inconsistent with what we have previously stated to be the rule; although the remark happens to be a mere dictum, the trustee in that case having conveyed to the persons holding-under the cestui que trust. The case of Bowling’s heirs v. Dobbyn’s Adm’r, 5 Dana, 434, is a full recognition of the general doctrine on this subject. In this case a tenant for life— in possession after ejectment against her and judgment, but before ouster — purchased the opposing title. This court concedes the principle that it was competent for a trustee, mortgagee or tenant for life, after recovery in ejectment, to abandon their claims and take shelter under the opposing title, without waiting to be ejected by writ. But the court ascertaining that the money used to effect the purchase was the money of the estate — that is, would ultimately go to the remainder man — held the purchase as enuring to the benefit of the person in remainder. The court intimate that perhaps in such cases, even where the tenant purchased with his own funds, if he was still in possession, a court of equity might treat the purchase as for the benefit of the estate, upon reimbursing the trustee for expenses, &c. But it is not suggested that where there is no possession a trustee would be debarred from buying a title, where that of his cestui que trust was entirely gone, and holding it to his own use.

In England most of the cases occurring in the books relative to this doctrine are cases of leases, and although, after the expiration of a lease, there may be no legal obligation on the landlord to renew to the tenant in possesion, it seems to have become an established practice to consider those who are in possession of lands for lives or years, as having an interest beyond the subsisting term. This interest is regarded as a valuable one, especially in leases from the crown, the church, or some college or corporation. (Lee v. Vernon, 5 Parl. Cas. 14.) So in Kentucky the courts treat settlement rights, preemption rights, &c., as conferring great advantages to the party in possession in procuring the title. It may be expected therefore that the most liberal extension would be given to the law in favor of tenants, cestuis que trust, &c., in these two classes of cases. How far such motives ought to operate in the case now under consideration it may not be important to inquire.

The agreement marked exhibit “ A” may be considered as partaking of the nature of a mortgage. It is an acknowledgment by Evans that the title to New Madrid certificate 399, and the land located thereunder, was held by him as security for a note given by Price, and an agreement on his part that when this note was paid he would convey to Price this title. The language is, “ I will convey to said Price or his assigns the said certificate and location made thereunder, as far as I may be or have been interested in the same.” That the title referred to was the one procured hy Price from Tanner is not declared in so many words in the agreement; but to ascertain what this title was we must have recourse to Evans’ answer, there being no evidence on either side except the exhibits of Evans in support of his answer, and which the opposite party tendered as proof upon the trial. It seems from the answer that, at the date of this agreement, Price held no title at all to this New Madrid location. The title which he had bought of Tanner he had reconveyed to Tanner to enable Tanner to recover upon Roberts’ covenants- to him. This suit, it appears, was brought and a judgment recovered and an execution on this judgment levied on this land. Evans purchased at this execution Roberts’ interest in the land, which it would seem from the very statement could not have been very valuable — Roberts being sued for want of title, and a judgment going against him on this very ground. It is obvious that this title was hardly worth the forty-six dollars Evans gave for it or bid for it. However, Price being indebted to Evans and Tanner being indebted to Price, the latter desired that any thing which could be made out of Tanner’s execution should go to Evans ; and Price, conceiving, as Evans declares, that his title so bought at the sheriff’s sale against Roberts might-be valuable, secured its re-conveyance to him when the debt should be paid.

This was the title which Evans held when he executed agreement “ A,” and which by that agreement he held in trust for Price. Did Evans’ position as mortgagee of this title forbid him, upon equitable principles, from purchasing the real title, and will a court of equity decree a conveyance of the real title, if Evans is found to have it, to his cestui que trust, Price ? Evans, it will be observed, did not get the possession of this six hundred and forty acres, located under New Madrid certificate 399, from Price, nor does it appear that he has ever yet obtained possession from any source. There was no connection whatever between the title, which Evans procured through Hunt and Robertson, with the title of Roberts or Tanner or Price ; nor does it appear that the chain of title derived from Price furnished any clue whatever to a discovery of the title through Robertson. It would not seem that the title of Price furnished any aid or gave him any advantage in procuring the real title, if indeed he has a valid title now. There was no dealing “ behind the back” of Price, so far as the bill, answer and evidence disclose. Price was not in a condition to speculate in new acquisitions of this character ; he was not able to maintain those he already had. Under these circumstances we think the decree of the circuit court was correct in dismissing the bill as to New Madrid certificate No. 399, unless the subsequent agreement marked “ B,” and the conduct of Evans relating thereto, should be thought to affect the transaction; and this brings us to the second branch of the case, which involves the construction of this second agreement.

In 1831, about three years after the date of agreement marked exhibit “ A,” and after Evans had, under an execution against Price in 1830, purchased Price’s title to some six or seven tracts of land or town property in St. Louis, and on the day when a second sale was about to take place, Evans gave to Price the following writing, called in the record exhibit “ B

The understanding between Risdon H. Price and myself is, that on the payment of my debt due me from said R. H. Price, I am to reconvey all the property already purchased at sheriff’s sale, and am also to purchase in the property to be sold this day by the sheriff, which is also to be reconveyed to Price on the payment and full satisfaction of my debt due as aforesaid. March 31st, 1831. [Signed] A. H. Evans.”

The question is whether this agreement created a trust on the part of Evans in relation to the property thus purchased at the sheriff’s sale, and if so, whether the trust is still subsisting and obligatory, and whether this is such a trust as the courts will enforce under the circumstances disclosed by the bill, answer and proofs in the case. The answer of the defendant denies the existence of the trust, and denies that the paper was ever designed to create an indefinite trust or was any thing more than a temporary privilege to Price to take back the interest which Evans had acquired or might acquire in his lands upon the payment of his debt. The circumstances attending the execution of this paper and the motives which led to it are stated in the answer, as follows : The defendant had made one sale under his judgment against Price and was about to sell other lands or lots, when on the day of the sale he was accosted by Price with a proposition for a delay of a few days with an assxxrance that he was then negotiating for the money to pay off the judgment and would probably be able to raise the money. The defendant was anxious to get his money and did not want Price’s property, but, as Price had frequently made similar promises before this, he was unwilling to incur the expense of re-advertising, and therefore, under the assurances of Price that he would soon raise the money, and with the belief that a few days would determine whether this would so turn out or not, he executed this agreement or instrument. No consideration was given for it, and no confidence or trust was designed by the defendant, but simply a short indulgence to Price to enable him to raise the money. Shortly afterwards, Evans states, Price informed him that his negotiation had failed, and that he could not raise the money ; and from this date until the time of filing the bill neither Price nor any person for him had ever claimed any rights under this agreement, or pretended that he was a trustee or mortgagee.

This is the account of the transaction in substance as given by Evans. The testimony shows that at the time of this transaction, and long before — as early as 1819 or 1820 — and long after, Price was wholly insolvent and continued to be so up to his death in 1847. It also appears that at this time real estate in St. Louis and its vicinity was difficult to dispose of and commanded very low prices ; that lands, with undisputed titles, lying in the vicinity of the tracts purchased by Evans at these sales, could be bought at from three to ten dollars an acre, and would not command at forced sales under execution more than government price. From this time and up to the commencement of this action real estate appreciated in value to an almost unprecedented extent. Land, which in 1832 could not be sold when offered at fifteen dollars an arpent, was subsequently sold, as one witness stated, at three hundred dollars per arpent, and this, in the opinion of this witness, was an average specimen of the increased value of real property during the period referred to. There was also, as Mr. Walker, the sheriff, stated, a quantity of public land in this vicinity to be entered at the government price. It appears that in 1831, and after the execution of this paper, B,” Evans issued or had issued on his judgment other executions, and Evans states in his answer that the sales under them in 1831 and ’32 were with the knowledge of Price.

It is stated in the answer, and indeed abundantly appears throughout the record, that out of the numerous titles to lands and lots which Evans bought under these execution sales, hardly one was an undisputed title ; that a large proportion of them was totally worthless, and scarcely one of them not affected by outstanding encumbrances of some sort, or adverse claims ; that in the investigation of these titles, paying off these encumbrances, and instituting and defending and conpromising suits, a vast amount of labor, research and pecuniary expenditure were necessarily incurred by Evans. These facts are stated in the answer, and are amply sustained by the proof.

In arriving at the proper construction of a written instrument, it is the object of courts of justice to ascertain the intention of the parties to it. If the language is unequivocal and no facts are disclosed to control or modify it, there is no room for hesitation or doubt. But as a written instrument means whatever the parties to it intend that it shall import, there is probably no safer guide to lead to its proper construction than the acts of the parties themselves. It will not do to look at the action of one party only, but of both ; and if their conduct will consist with one construction, and is totally irreconcilable with another, there ought to be no hesitation in preferring that which the parties themselves have acted on and adopted, notwithstanding a different construction would more naturally be given to the language in which the agreement is written. It is proper therefore to read this agreement marked exhibit “B” by what law-writers usually term “ the light of surrounding circumstances.” The homely adage that actions speak louder than words” is just as applicable here as in the ordinary occurrences of daily life. The proposition we have to examine is, what was the meaning and intention of Evans and Price — the one in giving, and the other in receiving, the paper writing of March, 1831 ? We do not mean to place any stress upon Evans’ answer in ascertaining what his intention and understanding was, because when a man is charged with fraud and breach of trust, he of course denies it, though he is sometimes unable to give a very plausible account of the transaction consistent with his denial. We speak now of Evans’ actions rather than his statements, and his statements only so far as they are beyond dispute supported by uncontradicted testimony and corroborated by his own conduct. It may be safely asserted that Evans did not execute this instrument with any view to acquire by it any additional security' to himself. He already had a judgment lien upon all Price’s real estate, and that lien had already been enforced by execution sales, under which he had purchased, and was about to be enforced upon other lands, which Evans also proposed to purchase. Evans was manifestly no better off in the way of security for his debt after he had signed this paper than he was before. We do not mean to say that any substantial pecuniary consideration is necessary to sustain an executed trust, or that a court would not enforce the performance of such a trust and compel an account, although no obvious pecuniary consideration induced the trustee to assume that character. This question of consideration has been much discussed in this case, and many adjudged cases have been cited in reference to it, but in our view its determination is unnecessary. We are merely referring to the want of consideration or benefit to Evans as a fact plainly appearing on the face of the transaction, and as it illustrates the intent and motives of Evans. If Evans then intended by the execution of this instrument to assume the management of Price’s land titles, to investigate their strength and weakness, to remove all encumbrances, and watch over them through all the tedious and expensive litigation to which he knew them to be destined, he at least undertook this burden without any perceptible benefit to himself, and would seem to have been of a singularly benevolent disposition.

But let us turn to Evans’ subsequent conduct and see whether there is in it any thing to lead to the inference that Evans considered himself as holding Price’s property under a quasi mortgage or trust. In the course of the same year in which this agreement was made, and in the year following, additional executions were sued out by Evans and levied on additional property of Price. Evans could not be ignorant of the fact that Price was in possession of the paper writing he had signed and handed to him in March, 1831. If he and Price understood that paper to have been in the nature of a mortgage or trust, how can this conduct of Evans, in having fresh executions levied on Price’s property, be accounted for ? True, it may be said that this was all done with the consent of Price, and with the understanding that the purchases were to be affected by the same trusts. Certainly, if the paper executed at the second sale was designed as an indefinite trust, it was a manifest breach of that trust to press the executions upon other property, unless it was understood that such purchases were also for Price’s benefit. But this explanation is hardly consistent with the charges in the bill, which, so far from asserting Price’s assent to the subsequent acquisitions of Evans, declares them to have been a fraud upon his rights under the contract between them, and prays the court to hold them subject to the same trust. Evans then, with a knowledge that Price had in his possession an agreement — which, upon the supposition that it was still in force and obligatory, was a virtual suspension of further executions and sales, unless such execution sales were at Price’s instance and for his benefit — proceeds within a few months and has new executions levied manifestly for his own benefit and to secure the judgment debt. We think it useless to dwell on this feature of the case. The construction which Evans gave to paper “ B” can hardly admit of doubt. He unequivocally denies all trust in his answer, and, if that be disregarded as valueless, his whole conduct from 1881 to the day of filing this bill shows that he never acted as a trustee, or considered himself as clothed with any such fiduciary relation to Price. Every circumstance attending the history of this transaction corroborates Evans’ answer, so far as his own understanding of the matter is concerned. Evans did not consider, after the failure of Price to raise the money in the spring of 1881, that the written memorandum he gave Price had any further obligation on him. He acted on this opinion throughout; he so states in his answer, and his acts correspond with his statement. Indeed if Evans had thought and acted differently it would present a remarkable instance of the voluntary imposition of immense labors and sacrifices of time and money for tlic benefit of another, such as we do not often meet with in human affairs.

It is a matter of no consequence however in what light Evans viewed this paper executed in 1831, if Price understood it to be a trust and its language would authorize such construction. In seeking to ascertain Price’s understanding of this instrument, the first matter which strikes our attention is the total silence of Price for fourteen years. Living-in the same town with Evans for some years after this transaction, and never at any time so far removed as not to have convenient access to him, we do not find, from the bill, the answer, or any testimony in the case, that Price ever mentioned this subject to Evans, from the month or year in which the paper was signed, during fourteen years, up to the day ho filed his bill for a specific performance. We speak now of lapse of time, not in reference to its effect as a limitation, nor simply as an argument against a specific performance, weighty and persuasive as it is and must be in that point of view, but as a practical interpretation of the instrument given by Price himself. Is it credible that Price believed his neighbor to have in his control and under his management a large amount of his property, to which lie was to be restored upon the payment of his debt, without ever mentioning the subject to that neighbor for fourteen years, without any investigation into the progress of its management, and with no inquisition into the results likely to be realized ?

In this connection it is proper to recur to the levies upon Price’s property, made in the summer of 1831 and in the following winter. Evans, we have seen, did not hesitate to sue out additional executions, notwithstanding the instrument of March, 1831; and Price, he asserts in his answer, was fully cognizant of the sales under them. Without attaching any particular weight to Evans’ statement on this point, it could hardly consist with rational probabilities that Price could be otherwise than informed of executions and sales of his own property directly at his door. But there is no proof that Price took any steps to prevent these sales. Oonld he not have applied to the court and restrained Evans from such abuses of process by a creditor who had already arranged his debt, secured it by a trust, and virtually debarred himself from the right to make additional levies upon his property ? Evans however proceeds, and Price quietly submits. Considering the agreement of 1831 as a temporary privilege to Price, which, having failed in its design, had no longer any subsistence, the conduct of Price is consistent enough. But treating the agreement as a trust, a subsisting trust at the time of the third issue of executions, Price’s submission to such imposition is wholly unaccountable.

The change in the value of the property from 1831, when this agreement “ B” was executed by Evans, to 1845, when this bill was filed, is a circumstance entitled to great weight. Taken in connection with the long period of time which the plaintiff has suffered to lapse before bringing his claim to the notice of the defendant, it can not fail to influence the standing of the plaintiff in a court of equity. The change in the value of the titles, which Evans bought, is also a circumstance to be noticed. The testimony is clear that Evans has been engaged in long, tedious and expensive litigation concerning these titles since their first acquisition, and it seems that by suit or by compromises he has succeeded in making some of them available. The sales of some have been made to yield him the amount of principal and interest which Price owed him, and probably something more; and valuable portions of the property are still retained by him. But if his energy and perseverance have enabled him to save from the wreck — the debris as the counsel very well termed it — of an insolvent estate, some property, to which time and a general appreciation in the value of property and his labor have given their principal value, it would be subversive of all just notions of equity to permit Price, after a silence of fourteen years, to claim the benefit of a contract, which if ever binding was to all appearance treated as abandoned and discharged.

It can not be doubted that Evans’ motive in giving Price tbe instrument which is the basis of this proceeding was to hasten the procurement of his money. No reasonable man, we think, could have hesitated to prefer the three thousand dollars, which in this case was about the amount of the debt, to the chances of a profitable speculation in the litigated and encumbered titles which an execution against Price could reach. That amount of money in 1831, according to the testimony of all the witnesses, could have been readily invested in undisputed titles, which would have participated in all the advantages which change of times has conferred on the titles acquired from Price, without being attended with any of the labor and risk.

A point is made in this case, as stated in the bill of exceptions, which it is proper to notice, although no stress was laid upon it in the argument. An offer was made to prove that Price was insane in 1832, and perhaps afterwards, but the evidence was rejected by the court. The bill contained no such allegation. The original bill filed by Price in 1845, by way of apology for the want of a specific and detailed list of property charged to have been fraudulently obtained by Evans, states that the “ complainant had been for many years greatly afflicted in body and mind, and had given little or no attention to his business.” This, though somewhat amplified, is substantially the language of the amended bill. We do not consider this as an allegation of insanity. Such a fact, alleged and proved, would have a material influence on the case, but we have considered it throughout without reference to this proffered evidence.

The case of Hiester v. Maderia, 3 Watts & Serg. 384, is said to be very much such an one as the present, and it is cited in support of the decree of the circuit court. We can see but little resemblance in the cases in all the essential facts and circumstances that tend to illustrate and determine the true character of a transaction. Hiester and Maderia were partners in the purchase of nine tracts of land in the interior of Pennsylvania. The lands were valuable, as Maderia’s share of the purchase money due would show, and the titles, it is to be inferred, were beyond dispute. Maderia, being behindhand in paying up to Hiester his portion of the purchase money, a suit was brought against him and a judgment recovered and an execution levied on his interest in these tracts. Maderia attended the sheriff’s sale with nine hundred dollars in his pocket to pay off the execution, supposing this sum to be sufficient. It turned out that about twelve hundred and fifty dollars were due. Hiester was also there, and as he did not himself know exactly the amount due on this execution, and the matter required some calculation, he received the nine hundred dollars, and he and Maderia executed a paper, the substance of which was that Hiester was to buy all the land at the sale, and upon Maderia’s paying whatever was due on the judgment in three months, Hiester was to convey to Maderia his third part — the amount to which Maderia was entitled under the original agreement. Maderia died — when, it does not appear — but suit was brought by his heirs; and this paper, executed and signed by Hiester and Maderia, was held to be an equitable mortgage. Except that this was a transaction which occurred between creditor and debtor at an execution sale of the debtor’s property, I see but little if any other resemblance between it and the case at bar. There could be no doubt of the equity of compelling Hiester to convey on payment of the small amount due. They were partners in the original purchase; the lands were of undoubted value and the titles beyond dispute. No laches occurred on the part of Maderia so far as the case shows. There could be no doubt of the meaning and intent of the parties to secure the payment of a small sum by an instrument in the nature of a mortgage ; and time not being essential in a case of this kind, and no circumstance stated to show that it could have or did have any material influence upon the conduct of either party, and no change in the value of the land, so far as we can see from the report, occurring, we see no reason why the trust should not have been enforced. But there is nothing in the principles, which led to this conclusion, inconsistent with those which have led us to a different conclusion in the present case.

Without referring particularly to any other of the many cases which have been cited and examined in this case, we pass to the conclusion, that in our judgment, considering all the circumstances attending the execution of this instrument of March 31st, 1831, and the conduct and situation of the parties in reference to it, both before and after its execution, we do not regard it as a mortgage or an indefinite trust, but at most a temporary privilege or confidence, designed by both parties for a temporary purpose, and failing in that purpose, abandoned and consigned to oblivion, having no influence whatever upon the conduct of either party in all their subsequent transactions.

The judgment of the circuit court will be reversed and the bill dismissed ;

Judge Scott concurring ; Judge Richardson not sitting.


source: Caselaw Access Project

author: Scott, Judge,

license: Public Domain

text:
    Able et al., Plaintiffs in Error, v. Union Insurance Company, Defendant in Error.
    1. Reformation of a written agreement on the ground of mistake will be decreed only when the proof of the mistake is clear and satisfactory.
    2. Where the reformation of a written instrument is sought, the petition should state the terms of the contract as sought to be reformed with certainty.

      Error to St. Louis Court of Common Pleas.

    This was an action on a policy of insurance on the freight list of the steamboat Australia from St. Louis to Port Pierre, on the Missouri river. The policy was made out “ against the absolute total loss of the boat by burning or sinking.” The prayer of the petition was twofold; first, for a reformation of the policy by making it declare the insurance to be “ against absolute total loss only,” and secondly, for judgment as for a total loss.

      The case was tried by the court sitting as a jury. The court found the facts and rendered judgment thereon for the defendant.

      Hudson & Thomas, for plaintiffs in error.
    I. The policy in question does not contain the terms of the agreement entered into by the parties, but on the contrary contains a clause wholly at variance with the agreement, and if sustained would render the policy utterly valueless to the plaintiffs as a contract of assurance. The clause in the policy declaring the insurance to be “ against the absolute total loss of the boat” was wholly unauthorized and in direct violation of the agreement between the parties. The testimony shows indisputably that the agreement between Able and Risley was that the plaintiff should be insured against a total loss of the freight list. Not one word was said, nor even an allusion made to the loss of the boat. The freight list was the subject insured. The defendant by agreement insured the plaintiffs against loss on their freight list, received their money for the premium, and after this, without the knowledge or consent of plaintiffs, inserted a clause in the policy which was not contemplated and which destroyed the original agreement between the parties.
    Drake, for defendant in error.
    I. There was no case made for reforming the policy. (Lyman v. U. S. Ins. Co. 3 Johns. Ch. 630; Gillespie v. Morn, id. 585 ; Henkle v. Royal Exch. Ass. Co. 1 Yes. 317; Andrews v. Essex E. & M. Ins. Co. 3 Mas. 6.)
    II. The charter of the company requires all the contracts of insurance to be in writing. If the proof would authorize the court to reform the policy, still the plaintiffs could not have relief, for there is no power in the court to decree that the plaintiffs may recover upon a different contract from that stated in the policy. (2 White’s Lea. Cases in Eq. 571; Miller v. Chetwood, 1 Green Ch. 199 ; Best v. Stow, 2 Sandf. Ch. 298 ; Chetwood v. Brittan, 1 Green Ch. 438; Elder v. Elder, 10 Maine, 80 ; Jordan v. Sawkins, 3 Brown Ch. Cas. 388 ; 1 Yes. 402; Rich v. Jackson, 4 Brown Ch. Cas. 514; Clinan v. Cooke, 1 Sch. & Lef. 22; Woollam v. Hearne, 7 Yes. 516; Dwight v. Pomeroy, 17 Mass. 303 ; Osborne v. Phelps, 19 Conn. 63 ; Brooks v. Wlieelock, 11 Pick. 439; Westbrook v. Harberson, 2 McCord, 112.)
    III. If the policy is to stand as it is, there can be no recov ery, for there was no absolute total loss of the boat.
    IY. If the policy is to be reformed, it must read so as to insure against “ an absolute total loss only,” and in that case there can be no recovery, because, 1st, the plaintiffs could not abandon for a technical total loss. (Willard v. M. and Man. Ins. Co. 24 Mo. 561.) 2d, The defendant did not contract that the boat should earn freight within any given time. The plaintiffs were not therefore authorized to abandon the voyage on account of a detention of the boat for a long or shorter period. The plaintiffs took upon themselves the chances of a short or of a protracted voyage. (Jordan v. Warren Ins. Co. 1 Story, 342 ; Anderson v. Wallis, 2 Maulé & Sel. 240.) 3d, The boat was repaired, and re-engaged in business, and for aught that appears might have performed the voyage ; but her owners made no effort to do so. They had no intention of resuming the voyage at all. Its abandonment was their own voluntary act, without any necessity caused by any peril insured against, and by that act they lost all recourse upon the defendants. (Salters v. Ocean Ins. Co. 14 Johns. 138 ; Jordan v. Warren Ins. Co. 1 Sto. 342.) 4th, In order to entitle plaintiffs to recover there must have been a destruction of the voyage, either by the actual destruction of the whole cargo, so that it could not be delivered in specie, or by at least such an injury to the boat as would authorize her abandonment to the underwriters — that is, a technical total loss. There was no absolute total loss within the terms of the policy. (Ogden v. General Ins. Co. 2 Duer, 204 ; Hugg v. Augusta Ins. Co. 7 Howard, 595.) 5th, The plaintiffs voluntarily gave up the cargo to the shippers and allowed it to be sold without demanding any part of the freight, although they were entitled to full freight on all they gave up. This was their own voluntary act, without any legal necessity. By it they put an end to the voyage. By thus relinquishing freight which they might have received they lost all claim on the defendant. The defendant’s contract was to indemnify them against “ absolute total loss only,” and the loss could not be said to have been of that character when they were entitled to freight and voluntarily waived an exaction of it. (Herber v. Hallett, 3 Johns. Cas. 93; G-riswold v. N. Y. Ins. Co. 3 Johns. Cas. 321; Jordan v. Warren Ins. Co. 1 Story, 342.)
   Scott, Judge,

delivered the opinion of the court.

It is a well settled rule that no written agreement will be reformed unless the evidence produced to show the mistake is clear and satisfactory. It would seem to follow, as a consequence from this principle, that the party seeking to correct a mistake in the terms of a written contract should state in plain and precise language the contract as it was made and understood hy those who are to be bound by it. The evidence in support of a contract can scarcely be clear and satisfactory when the terms of the contract themselves are doubtful and uncertain. In the amended petition it is averred that the defendant “ agreed to insure and did in fact insure the plaintiffs against total loss on their said freight list from St. Louis to Fort Pierre, against fire and the perils of navigation.” After this there comes the following averment: “The defendant received the amount of premium agreed upon, and by its agent agreed to insure and did in fact insure the plaintiffs against total loss from fire and the perils of navigation in the sum of $3333 on the freight list of the said boat from St. Louis to Fort Pierre aforesaid.” It is further averred that the defendant agreed to make, execute and deliver to the said Barton Able a policy pursuant to said agreement as soon as the same could be done, and deliver the same to him.” After these averments respecting the contract which was really made between the parties, the petition complains that a policy was delivered to the plaintiff, acting for himself and others, at a time when his engagements did not afford him an opportunity for examining it, which contained the following “ most unreasonable, unusual and unjust clause,” to-wit: “ This insurance is declared to be upon the freight list of the steamboat Australia and only against the absolute total loss of the boat by burning or sinking.” The plaintiffs aver that their contract and agreement with the defendant was “ that they were insured by the defendant against a total loss of their freight list by the burning or sinking of said boat.”

It will not be- maintained that the contract last stated by the plaintiffs is consistent with the contract stated in the beginning of the petition. But independently of the difficulties which arise from the face of the petition to granting the relief prayed — which makes it a matter of uncertainty as to what was the real contract between the parties — the evidence, taking it in the most favorble light for the plaintiffs, shows that the contract as agreed upon was a policy on an “ absolute total loss only” of the freight list, leaving it to be inferred that it was against the usual perils insured against in the navigation of our inland waters. Thus the evidence on which the plaintiffs rely does not prove that the contract should be reformed as they pray that it may be. To say the least of it, the circumstances, all considered, make it a matter of uncertainty whether the parties ever understood each other in relation to the terms of any agreement. The other judges concurring, the judgment will be affirmed.


author: Richardson, Judge,

text:
    Caldwell, Defendant in Error, v. Dickson, Plaintiff in Error.
    1. 'Where a slave is hired for a fixed period, the hire to he paid at the expiration of the period, the master can recover nothing for the services of his slave if without legal cause he takes his slave away before the expiration of the contract term of service. (Caldwell v. Dickson, 17 Mo. 575, affirmed.)
    2. It is the province of the court and not of the jury to construe written instruments.

      Error to Marion Circuit Court.

    This was an action on the following instrument: “West Ely, Mo., December 25th, 1860. Know all men by these presents, that I, William T. Dickson, have this day hired of Mr. L. G-. Caldwell a negro girl named Annie, to have the said girl until the 25th day of December, 1851, at which time said girl to be delivered up to said Oaldwell. Eor the hire of said girl I am to pay fifty dollars in cash and her doctor’s bill, and also to clothe her comfortably according to the season, and return her in the same condition. I am also to pay her taxes. Witness my hand and seal the day and year above written. [Signed] William T. Dickson.”
    At the instance of the plaintiff the court gave the following instruction: “If the jury find from the evidence that the plaintiff, on the 25th of December, 1850, hired to the defendant a slave called Ann for the term of one year ending on the 25th of December, 1851, and in accordance with said hiring delivered said slave to the defendant, and that'defendant in consideration of said hiring agreed to pay plaintiff the sum of fifty dollars, without stipulating for any credit or time of payment, the performance of the service for the entire term of hiring is not a condition precedent to the payment of the hire, and the jury ought to find for the plaintiff in proportion to the time defendant had the possession of said slave under said agreement.”
    The jury found a verdict for plaintiff.

      T. Vanswearingen and W. E. Cooke, for plaintiff in error.
    I. The instruction given to the jury at the instance of the plaintiff is in direct contravention of the law laid down by this court. (See Caldwell v. Dickson, 17 Mo. 675.)

      T. L. Anderson and Carr, for defendant in error.
   Richardson, Judge,

delivered the opinion of the court.

The contract between the parties to this action on which the suit was brought is in writing, and its construction was a matter of law to be decided by the court and not by the jury. The principles on which this case was to be retried were laid down by this court in 17 Mo. 575, and it is hardly necessary to repeat that the hire of the slave was not due by the terms of the contract until the end of the year, and if the plaintiff before that time took the slave from the defendant’s possession without his consent, or without the right to do so secured by contract with the defendant, he can not recover for any portion of the hire.

The instruction asked and given at the instance of the plaintiff was erroneous, because it submitted to the jury the meaning of the contract, which it was the province and duty of the court to declare. »

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


text:
    The State, Defendant in Error, v. Guyott, Plaintiff in Error.
    1. The Supreme Court will not review instructions unless the evidence introduced be preserved in the bill of exceptions.
    2. An indictment, founded on section 33 of the act concerning slaves (R. C. 1855, p. 1477), charging that the defendant at, &c., on, &c., “ being a tavern-keeper, and duly and regularly licensed to keep a tavern, unlawfully then and there did sell to a certain slave — the name of which slave and the name of the owner or master or overseer of which said slave are to the jurors aforesaid unknown — intoxicating liquor, to-wit, one gill of whisky, for five cents, without permission in writing of the master, owner or overseer of said slave being first then and there had and obtained so to do,” is sufficient.

      Error to Marion Circuit Court.

    Indictment for selling a commodity to a negro. The indictment charged that “ on the fifth day of June, 1856, and at the said county of Marion, one John Guyott unlawfully then and there being a tavern-keeper, and duly and regularly licensed to keep a tavern, unlawfully then and there did sell to a certain slave — the name of which slave, and the name of tbe owner or master or overseer of which said slave are to the jurors unknown — intoxicating liquor, to-wit, one gill of whisky, for five cents, without permission in writing from the master, owner or overseer of said slave being first then and there had and obtained so to do.”
    The bill of exceptions does not contain any of the evidence adduced on the trial. It contains only the following instruction given at the request of the jury and against the objection of defendant: “ The court instructs the jury that if they are satisfied from the evidence that the defendant or his agent sold intoxicating liquors to a negro or black person, that the jury may presume that such negro was a slave.”
    The defendant was found guilty and fined twenty dollars.

      Wm. E. Cooke and Vanswearingen, for plaintiff in error.
    I. The indictment is too vague, uncertain and indefinite. The name of the slave, and the name of the master, owner or overseer of the slave should have been stated in the indictment. (Arch. C. P. 42 ; Rex. Horne, Oow. 675; 1 Chitty C. L. 172.)
    II. No evidence was adduced proving or tending to prove the offence charged.
    III. If the offence charged against the defendant could be the subject of indictment, the defendant should have been indicted for a violation of the license law. The proof shows that he was the keeper of a tavern at the date of the alleged offence. (State v. Auberry, 7 Mo. 304.)
    IV. The instruction given was erroneous. The law, upon a criminal charge, raises no such presumption as is set up in the instruction. In order to convict a man of an offence against the existing law, all the material facts which constitute the offence, and which are necessary to enable the party to avail himself of the verdict and judgment in bar of another prosecution for the same offence, must be stated upon the indictment, and all these allegations must be proved as laid. (2 Russ, on Crimes, 704; 5 East. 259; 2 East. 33.) It is well settled that every material affirmative proposition which enters into the substance of the charge preferred by indictment must be proved by the prosecution, without resort to presumptions of any character. (2 Leach, 594 ; 2 Russ, on Cri. 690.)

      C. G. Mauro, (circuit attorney,) for the State.
    I. The indictment is good. The instruction given to the jury simply declares a well settled principle of law. It is impossible to judge of its applicability, as the defendant has not seen fit to incorporate the evidence into the bill of exceptions. The proposition being-legally correct, the presumption is that the judge rightfully gave it.
   Richardson, Judge,

delivered the opinion of the court.

The bill of exceptions contains nothing but one instruction, which we can not review for the reason that the evidence is not preserved. (State v. Vaughn, 26 Mo. 29.)

The indictment is good. If the name of the slave or his owner or master was unknown to the grand jury, it was sufficient to state the fact in the indictment. (State v. Harris, 2 Snead, 224; State v. Miller, 7 Ired. 275; 13 Mo. 246; 14 14 Mo. 340; 15 Mo. 430.) The other judges concurring, the judgment will be affirmed.


author: Richardson, Judge.

text:
    The State, Defendant in Error, v. Guyott, Plaintiff in Error.
    1. State v. Guyott, ante, p. 62, affirmed.

      Error to Marion Circuit Court.

      W. E. Cooke and Vanswearingen, for plaintiff in error.

      C. G. Mauro, (circuit attorney,) for defendant in error.
   Richardson, Judge.

This case is in all material respects like the case of the State v. Guyott, decided during this term. Judgment affirmed.


text:
    Lavender, Respondent, v. McCloud, Appellant.
    1.The Supreme Court will not review instructions unless the evidence is preserved in the bill of exceptions.

      Appeal from Stoddard Circuit Court.

    Noell, for appellant.
   Richardson, Judge.

The transcript of the record does not contain any of the evidence, and it has often been decided and twice reaffirmed at the present term (State v. Vaughn and State v. Guyott) that this court will not review instructions unless the evidence is preserved in a bill of exceptions. It may be observed however that the instruction bore on the question of damages, and, as it appears from the verdict that the jury gave none, it did not injuriously affect the defendant. The other judges concurring, the judgment is affirmed.


text:
    The State, Respondent, v. Metzger, Appellant.
    1. Inferior tribunals not proceeding according to the course of the common law are confined strictly to the authority given; it must appear on the face of their proceedings that they have jurisdiction.
    2. Justices of the peace have no jurisdiction, under the “ act to define the jurisdiction and regulate the proceedings of justices’ courts in cases of breaches of the peace” (B. C. 1855, p. 977), in cases of assault and battery, unless the offence be committed in their respective counties.
    3. Where, in the case of a prosecution before a justice of the peace for an assault and battery, a conviction is had and the defendant appeals to the circuit court, he is entitled to have the prosecution dismissed if the transcript of the justice does not show that the offence complained of was committed in the county in which the justice held his court.

      Appeal from Gasconade Circuit Court.

    The facts sufficiently appear in the opinion of the court.

      C. Jones, for appellant.

      C. G. Mauro, (circuit attorney,) for the State,
    cited Wharton C. L. 193 ; Stewart v. State, 6 Ohio, 242 ; State v. Bowling, 10 Hump. 52; Clark v. The State, 12 Georg. 350 ; R. C. 1855, p. 977.
   Richardson, Judge,

delivered the opinion of the court.

The transcript of the justice, on which the circuit court took cognizance of the case, does not contain the warrant, or any affidavit or other statement that an offence had been committed, except the minute on the docket, and it nowhere shows that the assault was committed in Gasconade county. This was a criminal proceeding, and the usual liberality that is indulged to uphold the proceedings of courts of common law jurisdiction can not be invoked in this cause. Justices of the peace have no jurisdiction, in cases of’assault and battery, under the act concerning breaches of the peace (R. C. 1855), except such as occur within their respective counties, and the transcript ought to have shown on its face that the justice had jurisdiction of the offence. It is a well established principle of law that inferior tribunals not proceeding according to the course of the common law are confined strictly to the authority given, and the ground of their jurisdiction must appear on the face of their proceedings. (9 Wheat. 549; 1 John. Cas. 20.) In the case of The People v. Miller, 14 John. 370, the defendant had been convicted of a misdemeanor in the court of special sessions of Otsego county; the case was taken on certiorari to the Supreme Court, and, it not appearing on the record in what county the offence was committed, the judgment was reversed, and the court declared: “ it is essential that it should appear that the court had jurisdiction of the offence, and it had no jurisdiction unless it was committed in the county of Otsego.” So also in Powers v. The People, 4 Johns. 292, the defendant had been convicted before three justices of stealing a handkerchief, and on cer-tiorari the proceedings were quashed because it did not appear that the value of the article stolen was less than twelve dollars and a half; and the court observed, “it is a salutary rule with respect to inferior courts that the cause, of which they take cognizance, should appear to be within their jurisdiction.”

It may be that some paper before the justice, which he did not send up with the appeal, properly laid the venue, but as none appeared in the transcript the court ought to have sustained the defendant’s motion to dismiss.

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


text:
    Cashman et al., Defendants in Error, v. Anderson et al., Plaintiffs in Error.
    1. Where an answer is stricken out for insufficiency, and the defendant prays the court to grant him time in which to file an amended answer, the court is not bound to grant delay, as a matter of right, where it would operate to delay justice or injure the plaintiff but may, in the exercise of a sound discretion, refuse to grant time unless the defendant will state the character of the amendment he desires to make.
    2. Where a motion to strike out an answer is taken up and disposed of on the day it is filed — both parties being present and neither objecting. — this action of the court can not he assigned for error.

      Error to Lewis Circuit Cowrt.

      J. G. Blair, for plaintiffs in error.

      Wagner, for defendants in error.
   Richardson, Judge,

delivered the opinion of the court.

This suit is on a negotiable promissory note executed by the defendants to J ames G. Guthrie and endorsed by him before its maturity to the plaintiffs. At the return term the defendant Thompson E. Anderson filed his answer, but his co-defendant did not answer. The case was set on the docket for trial on the seventh day of the term, and on the fifth day the plaintiffs filed their motion to strike out the answer for the reason that it did not contain matter constituting a de-fence. The motion was heard on the day it was filed and sustained, and thereupon the defendant asked leave to amend his answer without stating in what particulars he desired to amend, but the court refused leave, and the cause being submitted to the court judgment was rendered for the plaintiffs. Thereupon the defendant filed his motion to set aside the judgment for the reason that the court improperly refused him leave to amend his answer and because the court improperly gave judgment. This motion was overruled, and the defendant excepted also to the refusal of the court to permit the answer to be amended. The record does not show that any exception was taken to the action of the court in sustaining the motion to strike out the answer.

Though we think the answer was insufficient, it is unnecessary to decide that question, for it does not appear that any exception was taken to the ruling on that point.

The liberal spirit of our system of practice encourages the exercise of a large discretion in the courts in permitting amendments, but it would be unwise to doclare that a party, whose pleading is adjudged insufficient, has an absolute right for time to make amendments without stating to the court the general character at least of the amendment he proposes to make. There can be no reason for asking time, unless it appears that it ought to be given to promote the ends of justice, and that it is proper in order to afford a party the opportunity of presenting in form a sufficient defence. To say that the right for time to prepare an amended answer is absolute will often, especially in courts that are in session but a few days, give a defendant with a bad answer an advantage ho could not have with a good one. The issues made by good pleading in many cases may be tried and a final judgment rendered at the return term, when by giving a defendant, whose answer is adjudged insufficient, time to amend near the close of the term without any reason given for the asking, would often defeat the plaintiff of a trial and operate practically as a continuance of the cause. When the court can indulge a party without any injury to his adversary, there may be no reason for requiring a statement of the amendment intended to be made ; but, when the end of the term is near at hand, it would work injustice to disarm the courts of the power of exercising a sound discretion on this subject.

It is the usual practice to dispose of all motions in a cause before it is called for trial, and it was proper that the motion in this case should be heard and determined before the day the case was docketed for trial. An answer that fails to set up a defence may be reached by motion. (15 Mo. 628.) The twenty-eighth section of article 6 of the practice act of 1855 requires that “ motions filed in term shall be filed at least one day before the day they may be argued or determined.” The manifest object of this provision is to prevent surprise of the adverse party, and though in this case the motion was determined on the same day it was filed, it appears that both parties were present and neither objected to the court taking it up.

After the motion to strike out the answer was sustained, no reason being given for further delay, the court properly rendered final judgment.

The other judges concurring, the judgment is affirmed.


text:
    Robinson et al., Respondents, v. Lawson, Appellant.
    1. Where an answer is stricken out for insufficiency, and the defendant prays the court to grant him time in which to file an amended answer, the court is not bound to grant delay as a matter of right; where the granting of time in which to answer would operate to delay justice or injure the plaintiff, the court may, in the exercise of a sound discretion, refuse to grant time unless the defendant, or his counsel if he be absent, will make known the character of the amendment he proposes to make.
    2. Where a judgment by nil elicit is rendered, if the demand sued on is unli-quidated, a writ of inquiry is necessary.
    4. In cases arising under the practice act of 1849, the assessment of damages might have been made, under the writ of inquiry, at the same term at which the interlocutory judgment was rendered.
    4. In the case of a judgment by nil dicit the traversable allegations of the petition are admitted.

      Appeal from Washington Circuit Court.

    Noell, for appellant.
    I. The court erred in striking out defendant’s answer. It set up a good defence. If the answer was insufficient, the court did not exercise properly its discretion when it refused time to answer. It was one of those cases in which the plaintiff would not have been entitled to judgment at the first term. No exceptions were taken to the answer until the last day of the term, though it had been filed for nearly a week. The defendant was not present to make the necessary affidavit for time or to the answer. Without doubt there was an unsound exercise of discretion.
    II. The court had no right to render judgment for the amount of plaintiffs’ claim without proof. The petition does not allege that the goods were of the value claimed, nor that vthey were contracted for at the prices specified in the account. It was not necessary for defendant to put in issue the value of the goods charged to have been sold, or to put in issue 'a contract price, inasmuch as no value or contract price was alleged.

      W. Carter, for respondent.
    I. It was not error to permit the motion to be taken up and argued the same day it was filed and when the case was called for trial. This suit was brought under the code of 1849.
    II. It was discretionary with the court whether it would grant time to file an answer.
    III. The court committed no error in rendering judgment at the return term of the writ. (Secs. 2, 8, of article 12 of Code of 1849; id. sec. 4, art. 15; Louden v. King, 22 Mo. 336 ; 15 Mo. 415.)
   Richardson, Judge,

delivered the opinion of the court.

This suit was commenced April 6th, 1856, upon an open account for goods, wares and merchandise. The defendant answered during the return term of the writ, and four days after the answer was filed, and on the last day of the term, the plaintiffs filed their motion to strike out the answer for the reason that it was vague, uncertain and not responsive to the petition. The motion was sustained, and the defendant’s counsel then asked that the case should be continued and time given to answer further — the defendant being absent from court; but the court refused to give time or to continue the cause, and thereupon proceeded without proof to render final judgment for the amount claimed in the petition.

The answer was evasive and inferential and hardly amounted to the particularity of the general issue, and the motion to strike out was properly sustained.

Though the defendant was not personally present when the motion was sustained, it is to be presumed that his counsel, who drew the answer, knew the nature of his client’s defence, and could state such facts as would appeal to the discretion of the court in deciding on the application for time to prepare and file a better answer. No doubt reasonable indulgence would have been granted if a statement had been made representing that the defendant had a real defence, but it is manifest in this case that the granting of time would have operated as a continuance of the cause, which the defendant was not entitled to as a matter of right. (Cashman v. Anderson, ante, p. 67.)

This action was for an unliquidated demand and a writ of inquiry was necessary to assess the damages. This could have been done immediately, and a jury was not necessary unless required by the parties; but it does not appear that the writ was ordered or executed. This case was begun under the practice act of 1849, and must be conducted under it. The second section of article 12 provides: “ If the action be founded on a bond, bill or note for money, and there be no answer as hereinbefore required, the clerk may, under the direction of the court, enter judgment for the amount which shall appear to be due. In other cases, where there is no answer as aforesaid, the plaintiff may, if he require it, have a jury to assess bis damages. If no jury be required, the court may assess his damages and render a judgment thereon.”

After the answer was struck out, the case stood as upon a default which admits the traversable allegations in the petition, (24 Mo. 63,) and no more proof was required than is necessary in the assessment of damages on a default.

The judgment will be reversed and the cause remanded,

the other judges concurring.


text:
    Stalcup, Plaintiff in Error, v. Garner, Defendant in Error.
    1. 'Where, in a suit against A. and B., a cause of action against A. alone is joined with a cause of action against B., the petition is multifarious. A demurrer will lie to such petition.
    2. Where, in a suit instituted by C. against A. and B., the petition sets forth that A. conveyed a certain tract of land to B. and by mistake misdescribed the same; that B. conveyed the same tract to C. and also by mistake misde-scribed the same, and there is a prayer for the reformation of both deeds ; held, that the petition is multifarious.

      Error to Monroe Circuit Court.

    This was a suit instituted by John Stalcup against William Garner, John M. Garner and others. The petition sets forth substantially that William Garner, being seized of the S.E. J of the N.W. J and the W. | of the S.W. £ of section 32, in township 56, &c., conveyed the same to one Duncan in trust for his (Garner’s) children, of whom John M. Garner was one; that the deed by mistake misdescribed the said tracts intended to be conveyed, locating them in section 35 — in which the said Wm. Garner owned no land — and not in section 32; that said John M. Garner, being of age, conveyed to the plaintiff, Stalcup, his undivided interest in said tracts, but by mistake the description contained in the deed failed to embrace a portion of the land intended to be conveyed; that Duncan abandoned the trust, &c. The petition prayed a reformation of both deeds, and a decree of title in plaintiff.
    A demurrer to this petition was sustained.

      Carr, for plaintiff in error.
    I. John M. Garner could have instituted a suit previous to Ms conveyance to plaintiff for the correction of the mistake in the deed of Wm. Garner. By the conveyance of John M. Garner this right passed to plaintiff. The petition is not multifarious. (Farrar v. Patton, 20 Mo. 81; Temple v. Price, 24 Mo. 288 ; Brinkerhoff v. Brown, 6 Johns. Chan. 133 ; Dix v. Briggs, 9 Paige, 595; Watson v. Cox, 1 Ired. Eq. 389; Robertson'V. Stephens, 1 Ired; 249 ; 2 Dev. & Bat. Eq. 31.)
   Richardson, Judge,

delivered the opinion of the court.

In many cases the transactions mentioned in a bill are so interwoven, and the settlement of one is so dependent on the closing or adjustment of another, that justice can not be administered without uniting in one suit all the parties interested in the principal matter of controversy; and as was observed in Campbell v. Mackay, 1 Myl. & Cr. 603, Gaines v. Relf, 2 How. 642, and Oliver v. Piatt, 3 How. 412, it is impracticable to lay down any general rule as to what constitutes multifariousness as an abstract proposition, but each case must be determined by its own circumstances. There are however, in equity pleading, certain general rules which are well defined, though sometimes it may be difficult to apply them on account of the intricacy of the facts.

There are two kinds of multifariousness; first, where several distinct claims against the same defendant are combined in one suit, which is called a misjoinder of claims ; secondly, “where different matters, having no connection with each other, are joined in a bill against several defendants, a part of whom have no interest in or connection with some of the distinct matters for which the suit is brought; so that such defendants are put to the unnecessary trouble and expense of answering and litigating matters, stated in the bill, in which they are not interested and with which they have no connection.” (Adams’ Eq. 310; Newland v. Rogers, 3 Barb. Ch. R. 434.)

The rules of pleading either in proceedings in equity or in actions at law do not now, as .such, prevail in this state, but they serve to illustrate the proper construction of the present code; and it is worthy of observation that the legislature, in presenting the new system of practice, has justly regarded many of the provisions of the old, and has incorporated many of its rules, which are founded on principle, into the new code. It is not now an objection that several causes of action against the same defendant are united in one suit, provided they are of the character indicated in section 2, article 6, of the practice act of 1855 ; but the causes so united “ must be separately stated,” and they “ must affect all the parties to the action.” And it has been decided in New York, under a statute in the words of ours, that causes of action, to be joined, must be in favor of all the plaintiffs and against all the defendants. (Enos v. Thomas, 4 How. Prac. 48; Wells v. Jewitt, 11 id. 242.)

The fifth subdivision of the sixth section, which prescribes the cases in which a defendant may demur, assigns as a ground “ that several causes of action have been improperly united;” and, whether the scope of this cause of demurrer will extend to the objection of not separately stating causes of action that may be united in one complaint if properly stated, it is manifest that it was intended to reach a petition which contains causes of action not embraced in the classification enumerated in the second section, or that includes defendants who may be interested in. some of the causes of action, but not in' all.

If a plaintiff has several demands against one defendant, arising for example on accounts and notes, he may include them all in one suit, but they must be stated separately in different counts. But suppose A. has a note against B. and also against B. and C., he can not declare on both notes in the same suit if he makes C. a party, because the latter is not required to stand in court and suffer the delay, inconvenience or expense of the litigation touching the note with which he has no concern.

This petition contains two causes of action; first, the mistake sought to be corrected in the description of the deed from William Garner to Duncan in trust for his children; and, secondly, the mistake in the deed from John M. Garner to the plaintiff. If the two were not blended but were separately stated as the law requires, it would be very apparent that, although all the defendants were properly joined as to the first count, none of them but John M. Garner had any interest in or connection with the cause of action in the second. The mistake in the second deed has no connection with the mistake in the first, and did not in any way conduce to it; and the mistake in the second deed did not even occur in following the misdescription in the first; for it locates the land in the right section, township and range, and the error is in a matter not common to both deeds. Assuming that there was a mistake in the first deed, what interest had the other defendants in the controversy between the plaintiff and John M. Garner growing out of the mistake in the second deed ? It was competent for John M. Garner to correct the mistake in the conveyance he had made by voluntarily executing another deed, which would have operated to substitute the plaintiffs in his right to demand by suit against the other defendants the correction of the mistake in the deed of William Garner; but he did not do so, and, because it became necessary for the plaintiff to sue him, there was no propriety in joining the other defendants who had no interest in that controversy. John M. Garner may have no defence, or he may deny that there was any mistake, or insist that it has been corrected, or that the contract has been rescinded; and whilst this litigation is pending there can be no reason for compelling the other defendants to wait in court for the trial of a question, in which they have an interest, until a question is settled in which they have no interest.

The petition is multifarious, and this objection can be taken under the code, (17 Mo. 231; 20 Mo. 229,) and is embraced by the fifth clause of the sixth section of the practice act of 1855. The judgment is affirmed,

the other judges concurring.


text:
    Cadwallader et al., Appellants, v. Cadwallader, Respondents.
    1. Where the evidence in a canse is oral the Supreme Court will be less inclined to disturb a finding of the facts than in a case where the evidence is documentary.
    2. Where a suit is brought for foreclosure of a mortgage the administrator of the mortgagor, being a party thereto, should defend the suit; his omission to defend the suit would not, however, raise a presumption of fraud.

      Appeal from Jefferson Circuit Cowrt.

      Noell, for appellant.
    I. The evidence does not sustain the finding.

      Frissell, for respondent.
   Richardson, Judge,

delivered the opinion of the court.

This case was commenced under the act of 1849, and was tried by the court without a jury. The object of the suit was to set aside a judgment of foreclosure of a mortgage and the execution sale under it, on the ground that the judgment was obtained by fraud. The whole case turns on the integrity of the judgment, and all the other questions of fact are dependent on it and collateral to it; and whether there were errors of calculation or mere irregularities is immaterial unless the main fact was established. The defendant stood in court with the note, mortgage deed, and judgment, all regular on their face, and being entitled to the usual presumptions that the law raises from the possession of such instruments, the burden of proof rested on the plaintiffs.

The testimony of one witness introduced by the plaintiffs, the mortgagor’s widow, was direct and positive to the point that the mortgage debt had been fully paid and satisfied during her husband’s lifetime, and that she derived that information from the mortgagee. She also stated that the fact was well known and had been spoken of in the family. But there was other evidence in the cause, and the conduct of the heirs was inconsistent with the hypothesis of the amended petition. The original petition did not assert that the debt had been paid, and, though it alleged that the proceedings of foreclosure were fraudulent, it did not indicate in what particular, and it did not proceed on the theory that the mortgage had been satisfied, for it prayed that the plaintiff might be permitted to redeem upon the payment of the amount due on the mortgage. To say the least, the evidence was conflicting.

If the testimony in a cause is documentary, this court could pass on its effect, and might decide the case according to the weight of evidence; but when a cause turns on parol evidence, which must be considered in reference to the age, memory, means of knowledge and bearing of witnesses on the stand, we are inclined to defer to the judgment of the court that tried the case, unless it is manifestly wrong; and we can not say that the finding of the court in this case was .unsupported by the proof.

The conduct of the administrator, in not defending the action to foreclose the mortgage, was improper. He ought to have required of the plaintiff the fullest proof. But we are not prepared to say that this omission of duty either implied fraud in fact or stamped the transaction as a fraud in law. The other judges concurring, the judgment will be affirmed.