text:
    Honnick, Plaintiff in Error, v. Phœnix Insurance Company, Defendant in Error.
    1. Where a policy of insurance, in which fire and íce are excepted perils, is renewed by an endorsement in which it is stated that it is “ understood that the assured is not entitled to claim for any loss or damage arising from ice,” held, that a second renewal hy endorsement, in which it is stated that the “ within policy is renewed,” &c., applies to. the original policy and not to the said policy as renewed by the first endorsement. A loss by fire occurring after the second renewal is not covered hy the policy.

      Error to St. Louis Court of Common Pleas.

    This was an action on a policy of insurance, which had been twice renewed by endorsements. The original policy was dated December 11, 1851, and was for one month, “ on a lot of brushes, valued at $-4000, shipped on a flat-boat called the Rough and Ready No. 5, with privilege of trading down the Ohio and Mississippi rivers, from this date, and with privilege of continuing the policy one or more months upon' payment of premium, excluding from this risk all loss or damage arising from fire or from ice.” The sum insured was $2000, at 1|- per cent, premium, $25. Afterwards, on the 20th of January, 1852, the said policy was renewed for one month, for the sum of $4000, as appears from the following endorsement: “ January 20th, 1852. $4000." In consideration of a premium of sixty dollars, the within policy is renewed for the period of one month, as is hereinafter stated, and for the sum of $4000, on brushes within described; it being understood that the assured is not entitled to claim for any loss or damage arising from ice,” -&c. There was also a further renewal by the following endorsement: “ Offiee Phoenix Insurance company, St. Louis, April 12th, 1852. In consideration of the premium of forty-five dollars, the within policy is renewed for one month, commencing on this 12th day of April, 1852, and for the sum of three thousand dollars, on brushes, within described. Prem. $45. W. II. Pritchard, Sec’y. ” The plaintiff, after showing that the brushes covered by the policy were destroyed by fire, on the 10th day of May, 1852, during the pendency of the risk last mentioned, and also the extent of the loss, and the value of the brushes, at the time of their destruction by fire, rested his ease ; whereupon the court, upon the motion of the defendant, gave the following instruction : “ The jury are instructed that the policy and proofs introduced by the plaintiff in this cause do not entitle-him to recover in this suit, and they will find for the defendant.” The plaintiff excepted to the giving •of said instruction. Plaintiff then offered and asked leave to prove by parol what in the last renewal of.,said policy of insurance was the intention of the parties, and that it was their intention to insure against loss by fire, and the court refused to allow plaintiff to make such proof, assigning as a reason for not opening the case after instructions given, that the proposed testimony was incompetent as tending to vary the express terms of a written contract, to which refusal- o’f the court plaintiff at the time excepted. Plaintiff then took a nonsuit, with leave to move to set the same aside ; and upon the refusal of the court to set aside the said nonsuit, the cause was brought here by writ of error.

      B. A. Hill & D. W. Hill, for plaintiff in error.
    1. If the last renewal renewed the policy as it existed at the time of such renewal, then the risk of fire was assumed.' The original risk was for $2000, at a premium of per cent, per month, on a lot of brushes, and the risks of fire and ice were excepted in the written part of the policy- The new risk was taken on the 20fch January, 1852, still in the winter season, and the premium was increased to 1J per cent, per month, and the exception of the fire risk was not made, hut the exception of losses by ice was retained. This was an express annulment of the .original exception of fire, and the policy stood as a full indemnity for all the perils except ice. The winter being over, the new risk of the 12th of April, 1852,, was taken without any exception specified in the renewal. The season of ice had passed, and it, the only excepted peril, was not stated as an exception. This last renewal was of the policy as it stood at the time that renewal was made, and ice was not specially excepted in the second renewal for the simple reason that the season of ice-had passed!. The same premium is paid for the last' renewal as for the first renewal; being i of one per cent, more than the-premium paid for the first insurance. 2. The court should give-a liberal construction to this contract, taking into consideration all the surrounding facts and circumstances. (Story on Con. § 640 ; 1 How. 169 ; 2 How. 426 ; 2 W. & S. 546 ; IS B. Monroe, 814'; 1 Seld. 475.)

      Hudson & Thomas and Kasson, for defendant in error,
    cited 4 Kent’s Com. 109, note ; Taylor’s Land. & Tenant, 15T and 158 ; 10 Barb. 440; 2 Wood & Min.- 472.)
   Ryland, Judge,

delivered the opinion of the court.

The question in this' case is, what was renewed? The original policy, or the renewed policy as endorsed on the original l There being two renewals, the last one being the foundation of this action. This question is one alone of construction, and we hesitate not to declare that, in our opinion, the last renewal embraces only the original policy as it was first made between the parties, and not the policy as it was first renewed.

The plaintiff contends that the last renewal has reference only to the policy as it was after its first renewal ; thereby making, as he says, fire one of the perils insured against. Now, in the original policy, “fire” and “ice5® are both excepted. Upon the first renewal, “ ice” only was excepted. The plaintiff contends that this exception on the back of the policy, excluding “ice” only, and not “fire” and “ice,” as was the case in the original policy, made the policy, as renewed for the first time, a policy against fire as well as other dangers therein enumerated, and then contends that the last renewal was hut a continuance of the policy as renewed before, consequently not excluding fire as one of the perils.

The terms of the last renewal are as follows : “ Office Phoenix Insurance company, St. Louis, April 12, 1852. In consideration of the premium of forty-five dollars, the within policy is renewed for one month, commencing on the 12th day of April, 1852, and for the sum of three thousand dollars, on brushes, within described. Prem. $45. W. H. Pritchard, Secretary. ”

On looking to the first renewal endorsed on same policy, I find the subject insured to be “ brushes, within described.” The second renewal is in general terms. The within policy is renewed “ on brushes, within described.” Now it is obvious that had the parties intended to renew the renewed policy, they would have chosen apt and proper_words to effect that purpose ; they would not have said, “ the within policy is renewed,” aud «topped at that. There can be no doubt, it seems to the court, what was meant by this last renewal. It was the original policy, and that excluding fire and ice both; consequently fire was not one of the perils insured against, and the instruction of the court below was proper.'

The judgment of the court below will therefore he affirmed;

the other judges concurring.


source: Caselaw Access Project

author: Ryland, Judge,

license: Public Domain

text:
    City Bank of Columbus, Respondent, v. Phillips, Appellant.
    1. It is a good defence to an action on a promissory note, given as a premium note to an insurance company, that the maker was induced to give the said note by false representations of the solvency of the company, made with intent to deceive; nor is it necessary that those false representations should be actually made to the maker of the note himself; any false and fraudulent representations held out and made to the world at large for purposes of deception, as by the public statement of the condition of the company, and relied upon by the maker of the note, will constitute a good defence.
    2. Notice to several directors of a bank, taking a note by endorsement, of fraud in the consideration of the note, is notice to the bank. Such notice may well be presumed, where some of the directors of the bank are also directors of an insurance company, by whom the note was endorsed to the bank, and in whose hands the note was void for fraud.

      Appeal from St. Louis Court of Common Pleas.

    The' facts appear in the opinion of the court.

      Hudson, for appellant.

      Drake, for respondent.
   Ryland, Judge,

delivered the opinion of the court.

Thi-s was an action by the city bank of Columbus on a negotiable note, dated May 1st, 1851 ; it was a premium note, given for the insurance on a steamboat. The bank took the note on discount in the usual course of business. The defence set up in the answer was that the Columbus insurance company was insolvent, and fraudulently entered into the contract of insurance ; that by reason of the fraud the contract was void, and the insurance company acquired no right to recover upon the note, and that the city bank of Columbus, when she took the note, knew this. The note was executed to James M. Clendennin, the agent of the Columbus insurance company, dated 1st May, 1851, and payable six months after date. The note was endorsed by Clendennin, the agent, to the Columbus insurance company, and was by the company discounted at the bank, the plaintiff in this action.

On the trial, the defendant offered evidence tending to show that the Columbus insurance company was wholly insolvent at the date of the issuing of the policy and of the note; that the same persons who controlled the bank also controlled said in-' surance company; that the directors, or a portion of them, were stockholders and directors in both institutions, and knew of the utter insolvency of the insurance company at the date of said note ; also evidence of the false statement filed by the insurance company in the office of the clerk of the county court at St. Louis, 'and the false statement made by the published condition of the insurance company, and that defendant had read said statement before taking out said policy of insurance ; that long before the maturity of said note, the insolvency of said insurance company became notorious, and the company • ceased to do any business, and never paid any losses thereafter ; that the company failed for several hundred thousand dollars over the assets. There was no proof that Clendennin, the agent, knew that the insurance company was insolvent at the time of giving the policy and taking the note. The following instruction, among others, was given for the plaintiff: “ If the jury believe from the evidence that the plaintiff acquired title to the note sued on before it became due, and for a valuable consideration, then the defendant, in order to avail himself of the insolvency of the Columbus insurance company, as a defence to this action, must prove to the satisfaction of the jury the following facts: That said company, when said note was given, was, and knew itself to be, insolvent, and unable to fulfill the contract of insurance, on account of which said note was given ; that said company, knowing itself to be insolvent and unable, induced the defendant to give said note, by false representations of its solvency, actually made to him, for the purpose and with the intent fraudulently to deceive him, and induce him to give said note ; and that the plaintiff, when it acquired title to said note, knew for what it had been given, and that it had been obtained from the defendant by means of such false representations, actually made by said company, with such fraudulent intent.” And also the following was asked by defendant, but was refused : If the jury believe from the evidence that the note sued on in this case was given for a premium of insurance effected by the Columbus insurance company for said defendant, and that at the time the said insurance was effected and note given the said insurance company was insolvent, and that its insolvent condition was at that time and as early as the first day of January, 1851, known to the officers and directors of said insurance company, or some of them, and that the said insurance company made statements and exhibits of its condition on the first day of January, 1851, which were false, and known to be so by its directors or some of them, and that the statement of the condition of said company., given in evidence by defendant, was filed in the office of the clerk of the county court of St. Louis county, as early as 8th February, 1851 ; and if the jury further find that the note in question was transferred by said insurance company to plaintiff, and that at that time the directors of said plaintiff, or some of them, knew for what consideration said note was given, and had knowledge that at the time said note was given the said insurance company was insolvent, and that it had made, prior to the date of said note, such false and fraudulent misrepresentations, then the plaintiff can not recover.”

1. This instruction, given for the plaintiff, is erroneous. The court here tells the jury that the defendant, in order to avail himself of the insolvency of the Columbus insurance company, (if the jury believe that the plaintiff acquired title to the note sued upon, before it became due, and for a valuable consideration,) as a defence to this action, must prove, to the satisfaction of the jury, the following facts, to-wit: “That said company, when said note was given, was and knew itself to be insolvent and unable to fulfill the contract of insurance, on account of which said note was given ; that said company, knowing itself to be so insolvent and unable, induced the defendant to give said note, by false representations of its solvency, actually made to him for the purpose and with the intent fraudulently to deceive him, and induce him to give said note ; and that the plaintiff, when it acquired title to said note, knew for what it had been given, and that it had been obtained from the defendant by means of such false representations, actually made by said company with such fraudulent intent. ” Surely the law does not require that the false representations must be actually made to the party himself, in order to avoid the note. Any false and fraudulent representations held out and made to the World for the purposes of deceit and deception, by which the defendant becomes imposed upon, and on account of which he comes under an obligation to the party making such, would, in law, discharge him from such obligation, would be a fraud upon him, though he had never been spoken to by the party making these representations. It -is enough if he was entrapped by them, and that they were designed to entrap some one. This instruction, then, did not lay down the law correctly, and for this the case must be reversed.

2. The same persons or a portion of them control both institutions, the bank and the insurance, company. The insurance company becomes insolvent — hopelessly unable to pay for any losses. That, company make false publications as to its condition and ability to pay. It also files, under the statute law of this state, a statement of its condition with regard to its means and liabilities. This our law requires, because the company has its agent here doing business for it. This statement is to be filed with the clerk of the county court of St. Louis county. This statement should b.e honestly and truly made. This statement, filed by the company in this case, was provéd to be false. Now it is but a reasonable presumption that what one of these companies or institutions does, is known to the other; that the condition of each is known to the other. The same directors, or a portion of the-directory and stockholders in each is the same. Notice, therefore, may be well presumed against the bank. “ It is a well established principle, both in law and equity, that notice to an agent in the transaction for which he is employed, is notice to the principal; for otherwise, where notice is necessary, it might be avoided in any case by employment of an agent. The rule applies equally to a corporation as to a natural person. In case of a joint agency as of directors of a bank, knowledge of a material fact, imparted by a director to the board at a regular meeting, is notice to the bank. Notice to either of .the directors, whilst engaged in the basi ness of the bank, is notice to the principal, the hank.” (Angel & Ames on Corporations, 299 ; 2 Hill, 451.) Apply this principle here, and if the directors of the insurance company knew that the company was insolvent, that it had made false statements — false publications of its situation, and thereby induced persons to take policies of insurance and execute to the company notes for the premiums, when it was utterly unable to pay for any losses that might happen, then assign over these premium notes, or have them discounted at a bank where the directors are, in part, the same men who manage and control the insurance company, and I see no reason why a knowledge of the fraud of the insurance company may not be carried home to the bank upon any note of the premium notes thus obtained. The bank should not discount notes taken by the institution which is known to the bank to be hopelessly insolvent. There is here in proof such connection between these two institutions, such a unity in the controlling power of the tw.o, so broad a connection, that notice can well be imagined passing from one to the other-of all the-transactions of both.

The instruction prayed for by the defendant, in the opinion of a majority of the judges, was improperly refused. It should have been given. For the errors aforesaid, in giving and refusing instructions above pointed out, the judgment below is reversed, and the cause remanded ;

Judge Scott concurring.


author: Leonard, Judge, Scott, Judge.

text:
    Deane, Appellant, v. Todd et al., Respondents.
    1. Where an assessment of a fax has been made by the assessor, and the party upon whose property the assessment has been made fails to make complaint, in respect to any error in the assessment, to the court of appeals when sitting for the correction of such errors, and the tax-books are made out and are delivered to the collector ; held, that the ordinary judicial tribunals have no authority to stay the collection of the tax at the suit of the tax-payer. The law has provided a special tribunal for the correction of errors in the assessmentof taxes, and to that resort must be had, (Scott, J., dissenting.)

      Jippcal from Washington Circuit Court.

    Plaintiff filed his petition in the Circuit Court'of Washington county, praying that Todd, the sheriff and collector of said county, might be enjoined and restrained from collecting a certain tax alleged to have been improperly assessed against the plaintiff, and also praying that the county court of said county be directed to set .aside and annul the assessment of said tax. It appears from the finding of the court, that on the 1st of February, 1854, the .plaintiff was a resident of Washington county; that on that day he held a note or bond on the Potosi lead company for $72,800, to fall due October 1st, 1854, it drawing interest from its date. The Potosilead company, as a corporation, was entirely insolvent on said 1st of February, 1854; but many of the individual members of the said corporation were entirely solvent.' It is alleged in,the petition, and not denied in the answer, that the only security the plaintiff had for the payment of the said sum of $72,800, was a mortgage of a certain tract of land which was assessed by the assessor of said county at $4,000. It is also found by the court that the plaintiff removed from the state of Missouri in April or May, 1854, he fixing his residence thereafter in the state of New York, and leaving one John Dean, jr., as his agent. After plaintiff had left the state, the assessor called upon John Dean, jr., the agent, for a list of plaintiff’s property, and he gave to the assessor a list which did not contain the above note and mortgage for $72,300 ; which was afterwards added by the assessor and assessed at its apparent value. It is alleged in the petition, and not denied in the answer, that the plaintiff was returned by the assessor as a non-resident, and that his property was put upon the non-resident list; that neither the petitioner nor his agent were in the state'at the time the court of appeals for said county was held, nor at the time notice, was given of holding said court, and that they had no notice that the note had been added to the list handed to the assessor by plaintiff’s agent, until after the court of appeals had passed, and the tax-books had been handed to the collector. The plaintiff, upon learning of the said assessment, after the adjournment of the said court of appeals, applied -to the county court to be relieved from the payment o£ the same. His application was refused, and thereupon the present suit was brought.
    Frissell, for appellant.
    1. The debt of $?2,300 was not taxable for the reason that the Potosi lead company was insolvent. (Sess. Acts, 1849, p. 118.) 2. The reason for not applying to the court of appeals is sufficient. (R. S. 1845, p. 934, sec. 33.)

      Perryman & Carter, for respondent.
    1. The plaintiff has lost his remedy by permitting a term of the court of appeals, regularly advertised and held according to law, to pass, without making any complaint against the assessment. He has lost his remedy by his laches. (2 Sto. Eq. 895, 8,96.) 2. The plaintiff being a resident of Washington county, February 1st, 1854, the note was a proper object of taxation. (R. S. 1845, p. 931, 932, § 10, and 21 ; Sess. Acts, 1849, p. 112, 113.) 3. The fact that the Potosi lead company, as a corporation, was insolvent, did not make the said note an improper object of taxation. The individual corporators were solvent and liable. (R. S. 1845, p. 233, § 13.) 4. It does not matter that the property of plaintiff was put upon the non-resident list, as he was a resident of Washington county, February 1st, 1854.
   Leonard, Judge,

delivered the opinion of the court.

Assuming, for the purpose of the present case, that the plaintiff ought not to have been taxed on account of the debt due him from the Potosi lead company, the assessment was not therefore void, so that the tax-book, delivered to the collector, conferred no authority upon him to collect the amount standing there against the plaintiff. It was at the utmost only erroneous, and for the correcting of such errors the law had provided a special tribunal, and directed the assessor’s book to remain in the county court clerk’s office, open to the inspection of all ■persons interested, for ten days preceding the opening of the ourt of appeal's. After the appeals are heard and determined, the tax-book is made out from the corrected book of the assessor and delivered to the proper officer,, and it is his duty to •collect the sums there specified, from the persons upon whom they are assessed ; and for that purpose he has the same power to sell personal -property that is conferred by an execution -at law. It can not be maintained that the ordinary judicial tribunals hawe-authority to stay the collection of a state and county ■tax, at the suit o-f a tax payer, upon the ground of an excessive or otherwise erroneous assessment. It was fit that a remedy should he provided to correct the-errors of the assessor, but the necessities of the case required that it should be a speedy and summary one, and such a -remedy has been accordingly provided, and must be considered as-exclusive. If the party omitted to appeal, it was his own fault or misfortune and not the fault of the iaw: and if he -was deprived of his appeal by -the improper conduct of the assessor, this might be a ground for holding the officer responsible for the loss occasioned to the plaintiff; hut it would furnish mo ground for the courts to stop the collection of the tax until the propriety of it could be heard •and determined in a suit instituted for that purpose-, between the tax payer on the one side, and the collector -and judges of the county court upon the other. If the assessment against the plaintiff could be considered, as a nullity, conferring no authority upon the assessor to sell the personal property of the plaintiff, the remedy of the party would be-to sue the officer for the trespass, and disregard the pretended title of the purchaser. So that, either way, there is, we think, no ground for this suit. The assessment may be erroneous ; but if it be, we -can not remedy it without overturning fundamental legal principles, and the party, therefore, must apply elsewhere for relief.

Judge Ryland concurring, the judgment is affirmed.

Scott, Judge.

Several late cases have given the relief «ought by the appellant and plaintiff -in this proceeding. We have acted on the principle that relief would be given by injunction where an attempt was made to collect a tax not due by law For some years this jurisdiction has been exercised withou question. The point was raised and ably argued in the case of Ferguson v. The City of St. Louis, and it was solemnly decided that bills praying for relief under such circumstances should he entertained. Since that time, which was some- six or more-years ago, no question has been raised as to the jurisdiction of our courts in such cases. The case referred to has not been reported. I see no reason why that practice, thus sanctioned, and which has led to no inconvenience, should be departed from in this instance, unless the extreme severity of the case should! be made the foundation of the exception. Here, a sum amounting to nearly a thousand dollars, not one cent of which is due by law, is attempted to be extorted from a citizen under a pretence of right.

I have always thought that the ground on which coarts of equity, in some of the states, refused to interfere- in such cases, was that the remedy was complete at law, inasmuch as the officer collecting- such a tax would be a trespasser, and- no title-would pass to any property he might sell. To put it on the ground that the assessment is merely erroneous, and if the tax payer fails to take his appeal, he is without remedy, is to make an assessor a court of general jurisdiction, whose assessments, equalling judgments in point of force, can not be impeached in a collateral proceeding — a principle which -would lead to such oppression and injustice as would appal the most hardy. The case under consideration fully illustrates the evil tendency of the principle maintained. The plaintiff here, in obedience to-the requirements of the law, furnished the assessor with a list, of his taxable property which was correct. The assessor, without informing the tax payer of his conduct, disregards the list and assesses him, in the teeth of the statute, with some seven or eight hundred dollars, on a debt due him by an insolvent corporation. As the tax payer was not informed, as he should have been by the assessor, that his list was disregarded, as he-was not delinquent, inasmuch as he had done every thing required of him by law, why should he lose his rights because he did not appeal, when it was impossible for him to do so, as he was prevented by the illegality,of the conduct of the assessor? In my opinion, the judgment should be reversed.


author: Leonard, Judge,

text:
    Dessaunier and others, Appellants, v. Murphy, Respondent.
    1. Where parties have been under disabilities so that their title to land, held adversely, h.is not been barred by the operation of the statute of limitations; held, that their failure to object to the adverse occupation, and to the making of improvements, &e., -will not estop them from setting up title.
    2. The presumption of a deed of conveyance from facts and circumstances, without the production of the instrument or any direct proof of its existence, and which juries are sometimes permitted, and, if the facts warrant, directed to draw, is a disputable presumption and not a conclusive presumption, or presumptio juris et de jure.

      Appeal from St. Louis Land Court.

    This was au action in the nature of an .action of ejectment to recover possession of an undivided one-fifth part of a tract of about forty arpens, situate in the Grand prairie common field, near St. Louis. The land claimed, was part of United States survey No. 1589, under a confirmation by act of congress of 29th April, 1816, to “ William Bizette or his legal representatives.” Plaintiffs claim title as'the legal representatives of William Bizette. Defendant, in his answer, traverses all the allegations of the petition, except _that he admits being-in possession of a part of the land sued for, to which he asserts title and ownership in himself ; also sets up the statute of limitations as a bar to a recovery. Upon the trial, it appeared in evidence that the land sued for was confirmed to William Bizette’s representatives by act of congress of April 29, 1816 and surveyed for said representatives, September, 1838, by United States survey No. 1589 ; that at a public judicial sale of the estate of Wm. Bizette, then deceased, his brother, Chas. Bizette, became the purchaser of the property in controversy, and a deed dated February 18, 1775, was made to him, conveying the same ; that before this sale, said Charles Bizette had married one Mary Papin, under a previous marriage contract, in which, among other things, it was stipulated that the parties thereto should “ be one and common in all property moveable, and in acquisitions immoveable, conformably to the custom esr tablished in this colony,” &c., and that “ the said future consorts take each other with the property to them actually belonging, and that which may come to them in the future, and with all acquisitions, and gains, either of moveable or immoveable, which property, from whatever side it might come, and in whatever place it may be located, shall enter entirely into the community, without exception or reserve;” that Charles Bizette died in the year 1780, leaving, him surviving his wife Mary and three children, born at St. Louis, to-wit: Mary Louise, Paul and Antoine ; that the said Mary, widow of Chas. Bizette, married JohhB. Provenchere in the year 1781, and died January 22d, 1819 ; that said John B. Provenchere died about 1819 or 1820, the said Provenchere and wife living in the vicinity of St. Louis ; that said Mary Louise Bizette married Louis Boisse in the year 1795, and died in the year 181S, the said Louis dying October 12, 1819; that the said Mary Louise and Louis Boisse had five children, Emily, (the plaintiff, Emily Dessaunier,) Louise, (the plaintiff, Louise Deroine,) Margaret, (mother of the other plaintiffs,) Baptiste and Louis ; that the said Emily was born in May, 1799, and was married to J. B. Gaignon, June 22d, 1818, who died about nineteen- or twenty years before the trial; she afterwards married one Dessaunier, since deceased ; that the said Louise Boisse (plaintiff) married Francis Deroine, October 27,1819, about twenty- ■ two or twenty-three years before the trial, who died three or four years before the trial; that she was fifty years old' at time of trial ; that the said Margaret Boisse married Paschall Mallette, October 17, 1812, and died about twenty years before the trial, leaving the following children, to-wit: 1. Paschall Mallette, (one of the plaintiffs,) aged 34 or 35 years at time of trial; 2. William, (also one of plaintiffs,) aged about 34 or 35 years at time of trial; 3. Frederick, (one1 of plaintiffs,) dead about nine months before trial; 4. -Lbuis (plaintiff) aged at same time about 20 years ; 5. Charles (plaintiff), aged at same time, 35 or 36 years; 6. Francis (plaintiff), aged at same time about 21 or 22 years ; 7. Lize,'who died about 22 years before the same time, leaving a child, who, soon after the death of its mother, was taken to France by its father, and had not been heard from for seven or eight years.
    The defendant introduced in evidence archives No. 2371 and 2590. Archive No. 2371 purported to be an inventory taken in August 18, 1781, of the effects of the estate of Charles Bizette, deceased, taken under the authority of the lieutenant governor, upon a petition of the widow of said Bizette, praying that an inventory might be taken and the effects sold for the payment of debts and for the benefit of the children of the said Bizette, the widow being about to marry again. The tract of land in controversy was included in this inventory. Archive No. 2590 purported to be sale of the effects of Charles Bizette, deceased, under an order,.of and in the presence of lieutenant governor Cruzat. This sale took place September 17th, 1781, and was on a credit of one year. In the list of effects sold, there is no mention of the land in controversy in the present suit, or of any real estate. This archive also tended to show that John B. Provenchere, (who afterwards married the widow Bizette,) was appointed guardian and curator of the minor children of Charles Bizette, and'authorized as such guardian and curator to take charge of all the effects of Charles Bizette. Defendant then offered in evidence a deed óf J. B. Provenchere and Marie Christine, his wife, dated May 4th, 1811, to Joseph Brazeau, purporting to convey the land in controversy. In this deed, it is recited that Joseph Brazeau had purchased the said tract at the public sale which had been made after the decease of Charles Bizette ; that the said conveyance was made in consideration of the sum of forty dollars, which had been paid by the said Brazeau, “ as is evidenced by the receipt annexed to these presents,” which annexed receipt is as follows : “ I, the undersigned, give a full discharge of Mr. Brazo of the sum which he owes to the estate of the late Yizet, for a piece oi land which was sold to him at public sale. St. Louis of Illinois, October 12, 1782. 200 livres, or $40.
    mark of x “ Provenchere.”
    Said deed was recorded June 18th, 1811. There was also-offered in evidence a deed of the said Joseph Brazeau, dated June 18, 1811, to Auguste and Louis Brazeau, of the land in controversy, acknowledged and recorded.same day ; also a deed dated August 13, 1818, recorded August 15th, 1818, of Auguste and Louis Brazeau, to Angus L. Langham, purporting to-convey the land next south of that in controversy in the present suit. In this deed, the land conveyed is bounded north by Angus L. Langham. There was also evidence tending to show that Langham went upon the land in the fall of 1818, in October or November, and built a house and made enclosures upon it, and that the land had been claimed through him since then to the present time, and that it had been in possession of some one since Langham left it, claiming through him, except for a year or two, say from 1828 to 1829, when it was not known whether any one was upon the place or not. The following instruction asked by defendant, was given by the court: “If the jury believe from the evidence that Charles Bizctte purchased the land in controversy at a public sale of the estate of William Bizette, on or about February 18th, 1775 ; that before its purchase he was married to Mary Papin, in pursuance of the contract therefor read in evidence ; that after this sale, and about May 26th, 1780, said Charles died, leaving the said Mary his widow, and a daughter, Mary ; that afterwards said widow was married to John Bte. Provencliere,- and the said Mary to Louis Boisse ; that said Provenchere was made guardian of the children of Charles Bizette; that they all after-wards continued to live in this vieinity, until their deaths, as given in evidence ; that as early as 1811, the said Provenchere and the said Mary, as his wife, made a deed, conveying said tract to Joseph Brazeau, under a claim by him (Brazeau) and -admitted by said Provenchere and said Mary, his wife, of having purchased it at a public sale of the estate of Charles Bizette, and that said claim and admission were inserted in said deed ; and that said deed was recorded in the records of deeds for the county-of St. Louis, in the same year ; that said Brazeau, in the same year, conveyed said tract by a deed of warranty unto Auguste and Louis Brazeau, and that this deed was also put upon said records in the .-same year; that afterwards and as early as 1818, said Auguste and Louis admitted in writing that Angus L. Langham was the owner of said tract, and that said admission was put upon said records in the same year, 1818; that said Langham, in the same year, entered into the possession thereof, and made substantial and costly improvements thereon, and that this tract has ever since been possessed and improved .adversely to all others by said Langham and those claiming by, through or under him, and that defendant •claims through him, said Langham, the possession of the portion thereof that he has in possession., then the jury should presume n good title in the defendant of the part of said tract ■he is possessed of, and find for the defendant.” To the giving ■of this instruction plaintiffs excepted. The following instruction was asked for by the plaintiffs and refused by the courti ■“Although the first instruction asked by the defendant and given by the court states that the jury should, under a state of ■case therein set out, presume a good and valid title'in the defendant, yet this presumption is a mixed question of law and fact; the court has decided in the said instruction given, what •is conceived to be the law, and it is for the jury to decide the facts ; now if, with all the testimony and circumstances in •this case, as submitted to the jury, they shall bo of opinion that the land in dispute was not .sold at public sale in 1782, after Chas. Bizette’s death, to Joseph Brazeau, and if the proof-does nob satisfy the jury that Charles Bizette or his lega-l representatives,, conveyed this land, and that therewas.no possession of it until, in 1818 it was taken possession of by Langham, they are at liberty to come to a different conclusion than -the one they are directed to make by said instruction given for defendant, and may,, under other instructions, find for the plaintiffs or defendant, as-the proof may justify.” To the refusal of the court to give-this instruction plaintiffs excepted. There were others asked by the plaintiffs and refused by the court, which it is unnecessary to set them forth, as all the questions discussed turn upon, the giving of the instruction above set forth. The plaintiffs-took a nonsuit, with-leave to move to set the same aside ; and a. motion-to-that effect was made and overruled. This suit was-instituted September, 1853, and the trial was had NovembeB27, 1854-.

      Williams and Morehead, for appellants.
    1. Presumption/ of title cannot spring up in a case like this. There was no-deed and no-possession upon either of which to base a presumption. For the doctrine of presuming title or rather of presuming deeds, the court is referred to-1 Greenl. E.v. § 4&> 47, 48 ;; 1 Cow. & Hill’s notes, 355, note 311. 2. When Langham first-entered into possession of this land, the plaintiffs were under-disabilities which continued-, so that they could not be barred by the statute of limitations. If so, they could not be presumed-! against. (1 Cow. & Ililh, 356 ; 4 J. J. Marsh. 516-27 ? Sumner v. Child, 2 Conn. &14-20 ;. 11 How. 329.)' Suppose-there bad been-no possession of the land until now, could title-be presumed in Langham or his representatives ? If not, how? can it he presumed as against those under disability?. The disability to sue destroyed all presumption as to one under it, and/ the title stands just as if there had been no possession. 3.. The instruction given is wn’ong under any view of the law. It. professed to refer the facts to the jury, while it decided the-ease for the defendant. The refusal to tell the jury what to-, do, provided they did not find the- facts as set out in. the in.struction, is tantamount to shutting out the plaintiffs altogether. Let all the facts assumed in the instruction given he'true except the long possession, and where would be the title ? Would the facts assumed in the instruction have been sufficient to authorize the presumption of a perfect title in Langham, when he took possession in 1818 ? Certainly not. How then can such title be now presumed, when those against whom he has been holding have been under disabilities, created by our statute of limitations ?

      Todd & Krum, for respondent.
    1. The instruction given was warranted upon the principles of legal presumptions and of estoppel. (1 Greenl. Ev. § 14 et seq.; 1 White Rec. 15,16 ; 10 Mo. 312; 17 Mo. 207-360 ; 1 McLean, 69 ; 2 Hawks, 233.) At the date of the deed of Pro'venchere and wife to Brazeau, (May 4th, 1811,) Mrs. Provenchere was entitled to one half of the land conveyed, by virtue of the marriage contract with her former husband, Charles Bizette, said contract having established a community between the parties thereto as to the property in controversy. If the recital in this deed be true, then Brazeau became the owner of said land in 1782, at the public sale of Charles Bizette’s estate. That said recital is true is a matter of legal presumption under the evidence. Although the report of the judicial sale omits to show a sale of this property, this does not disprove it. Brazeau had nothing to do with the report, and should not be prejudiced by the omission. Provenchere had power, as guardian.and curator of the children of Charles Bizette, under'the approbation of a proper officer, to sell real estate of his wards. (1 White Re-cop. 16.) Against all the plaintiffs the statute of limitations had been running for nearly twenty years before the commencement of this suit, and during all this time, as well as for more than ten years before, the defendant and those he claims under had notorious possession of the land in controversy, were improving it, and claiming it as their own, under deeds publicly recorded and under purchases, both ordinary and judicial, and without objection on the part of the plaintiffs ; they should therefore now be adjudged estopped from claiming it.
   Leonard, Judge,

delivered, the opinion of the court.

The substantial question here is, whether the facts recited in the instruction the court gave, constitute, in point of law, a title to so much of the land sued for as had been in the actual possession of Langham and those claiming under him, since he first took possession in 1818. The court directed the jury that, if the recited facts existed, “ they should presume a good and valid title in the defendant,” and we understand this to mean that, from these facts, the law raised a conclusive presumption of title, dispensing with any further corroborating circumstances, and forbidding all opposing proof — u presumptio juris et de jure” — and not a mere disputable presumption of law, which, although deduced by the law itself, and declared to be prima facie evidence of the fact, might be met and repelled by contrary proof. This conclusive presumption, it is said, is not a rule of inference from testimony, but a rule of protection adopted by the law as expedient and for the general good, attaching itself to the circumstances, when proved, and not deduced from them.

In reference to the natural presumptions to be drawn by a jury accordingly as their consciences may be satisfied of the fact, we remark that juries are frequently advised to presume conveyances, although at the same time left free to act according to their own convictions of the' truth (1 Grreenl. Ev. secs. 46-48)'; and it might, perhaps, be insisted here, that this is the extent to which the present instruction goes, amounting only to advice; but it has been otherwise argued before us, and we suppose was not so understood in the court where it was given.

The title admitted to have been originally (in 1782) in the ancestor of the plaintiffs, must be considered as still in her and her descendants, unless it has been divested in some lawful way. The court, when the cause was tried, declared that the facts stated in the instruction had that effect, and this must proceed either upon the ground of an estoppel or of a legal presumption, conclusive against the other pai;ty of some lawful transfer of the title on his part, by which he is concluded, no matter how the fact may, in truth, have been.

In reference to the estoppel, we shall only remark that we do not think the omission of these parties, since 1811, to claim the lot, estops them from now exercising their original rights, even admitting that a conveyance was then made and put upon the record by the mother and former guardian transferring the lot to another, upon the alleged ground stated in the deed of a previous official sale, made in 1782 ; and that, in 1818, those claiming under this conveyance took possession of the lot and have since made costly improvements upon it, the plaintiffs and their ancestors residing all the time in the neighborhood. What effect all these circumstances ought to have with a jury in raising a presumption that the former owners have in some lawful way parted with their title, is another question; but no court, we think, has ever yet ventured to declare that what is here relied upon would amount to an estoppel, and we are not bold enough to do so.

We remark that the advice given to juries, to presume conveyances between private individuals in England, as stated by Tindall, Chief Justice, in Doe v. Cooke, 6 Bing. 179, is confined to cases “ where a title has been shown by the party who calls for the presumption, good in substance, but wanting in some collateral matter necessary to make it complete in point of form.” The advice, to presume conveyances from trustees to the lawful owners, reconveyances of satisfied mortgages and conveyances from old to new trustees, are instances of the application of the rule in England. The American cases, however, have, no doubt, gone beyond this, and advised juries to presume conveyances in cases where, from long acquiescence on the part of the original owners in the adverse enjoyment of the property by others, connected with other corroborating circumstances, it is fair to presume, in point of fact, that their possession had a legal commencement. (Sumner v. Child, 2 Conn. 628; Clark v. Fanee, 4 Pick. 245; Farrar v. Merrill, 1 Greenl. (Maine) 17; White v. Loring, 24 Pick. 322.)

These, however, are generally mere natural presumptions — ■ inferences of fact, that a legal conveyance has been made, to be drawn by the jury, without the production of the instrument or any direct proof of its existence, from the facts and circumstances that the law allows to be given in evidence for that purpose, and which, if satisfactory to their consciences, is a sufficient warrant in law for their finding accordingly. And in all such cases, it is obviously first a question for the court whether the circumstances offered in evidence are sufficient, in point of law, to submit the question as a matter of fact to the jury, and afterwards for the jury to determine whether they are sufficient to satisfy them of the fact to be inferred. We remark also, that the circumstances may be' such that the law will deduce from them a presumption of right in the possessor, either conclusive or only prima facie, to prevail until overcome by contrary proof.

The present instruction, going the length of declaring that, if the facts there specified are true, the jury ought, from these facts alone, without reference to any thing else, to find a valid title in the defendants, we all think is erroneous, and that, for this reason, the judgment must be reversed.

We have already stated that.these facts do not conclude the plaintiffs, by way of estoppel, from exercising their original rights, nor furnish a conclusive presumption of the transfer of their rights in some way or other to the defendants. The title here relied upon by the defendants, originated, it is said, in 1782, in an official sale of the property of the father’s succession ; but it is remarked that no actual possession appears to have been taken under the purchase until at least as late as 1818 ; and it may also be assumed, for the present purpose, that this possession did not confer a title by the statute of limitations, on account of the disabilities of the original owners. Mere possession, unaccompanied by other circumstances, can not afford a conclusive presumption of title, unless, continued for the length of time and under the circumstances prescribed by the statute of limitations, (when it has that effect by mere force o£ the statute, as a conclusive presumption, declared by the legislature,) although, when connected with other circumstances, it may justify a jury in presuming a conveyance, or the court in deducing a legal presumption of the transfer of the right, according to the character and weight of these circumstances. In the present case the material fact, beside the long continued possession, ” is the alleged sale made or completed by the guardian of the ancestor about 1782, and the payment at that time of the purchase money, evidenced by the receipt recited in the deed of 1811; and if this fact were established, it might then be proper to advise a jury to presume a conveyance of the title, from any proper party, pursuant to and in confirmation of the sale, even against married women; or the court, it may be, would he warranted in deducing a legal presumption of some transaction, sufficient to pass the formal title. Here, however, the fact of sale is not one of the facts from which the presumption of title is drawn ; that matter is not submitted by the instruction to the jury. We are, however, not to be understood as saying that the fact of sale could not he inferred by a jury, from the circumstances in the case, or, indeed, that it ought not to have been presumed, if, as is insisted, the receipt was executed at the time of the transaction ; but all we now declare is, that the facts stated in the instruction do not afford a conclusive presumption of title ; so that it was the duty of the' jury, if they found these facts to exist, so to pronounce.

The judgment is reversed, and the cause remanded,

all the judges concurring.


author: Soott, Judge Leonard, J.

text:
    Taylor, Appellant, v. City of Carondelet, Respondent.
    1. The trustees of the town of Carondelet were empowered, hy the act of February 6, 1839, (Sess. Acts, p. 210,) to grant leases of the land belonging to the corporation, and were clothed with “ all the power and authority necessary to carry into effect the objects of the act, and to do all acts that might he proper for that purposeheld, that under this act the trustees of the town might, in accordance with a town ordinance to that effect, make leases containing a clause of forfeiture for nonpayment of rent reserved, and that such forfeiture, when declared in proper form, could not be relieved against, although no demand of rent had been previously made. The corporation, in its political capacity, having required the insertion in the lease of the clause of forfeiture, it is as though it had been done by the legislature. (Leonard, J., dissenting.)

      Jippeal from St. Louis Land Court.

    The incorporated town o£ Carondelet was proprietor of a large tract of land, consisting of several thousand acres, granted to the inhabitants as a common in Spanish times, and confirmed to them by the United States. The general assembly of this state by act of February 6, 1889, (Sess. Acts, p. 210,) empowered the trustees of the town to grant leases of,this land, renewable forever, reserving rents. The board of trustees was by this act clothed with “ all the power and authority necessary to carry into effect the objects of the act, and to do all acts that might be proper for that purpose.” On the 12th day of January, 1845, the trustees of Carondelet passed town ordinance No. 78, directing a sale of lots in survey No. 3, and that the purchaser should pay two per cent, on the amount bid, as an annual rent for ninety-nine years, and four per cent, forever afterwards. The fifth and sixth sections of this ordinance are as follows: “Sec, 5. The leases shall contain a provision to the following effect, viz : That, should the rent reserved as aforesaid, or any part thereof, on any lease, remain unpaid for six months after the same shall become due, the board of trustees may, by resolution, declare such lease terminated and void, and the same shall expire and be determined from that day.” “ Sec. 6. The leases provided for in this ordinance are to contain all the conditions and provisions which the board of trustees may think necessary, to secure the rent as aforesaid.” Under this ordinance, the trustees leased to one Burnet lot 72, in survey 3, containing about ten acres, at the yearly rent of four dollars and ninety-nine cents, payable on the 4th of April. This lease expressly referred to the town ordinances, and contained the following clause : H And it is further covenanted and agreed by and between the parties aforesaid, that if at any time the rent aforesaid for six' whole months shall be in arrear and unpaid, the said parties of the first part, or their successors in office, may terminate this lease by order or resolution, to be entered on record among the acts and proceedings of the said board, and may enter and .take possession of the • demised premises, free from any claim of the delinquent lessee, his executors, administrators or assigns.” On the 15th of March, 1849, Bennet acquired the leasehold interest by mesne assignments under Burnet. On the 8th May, 1852, Bennet conveyed an undivided moietyto Camden. Neither Burnet nor any claiming under him ever made any improvements on the lot, nor did they even take actual possession ; it lay wholly unenclosed and unoccupied. In 1851, the town of Carondelet was erected into a city, with enlarged limits, embracing the leased premises. The powers of the old town trustees were vested in the new city council. The rent under the lease for the years 1850 and ’51, was wholly unpaid. On the 10th July, 1852, the city council terminated the lease by resolution, in proper form.’ In the fall of 1852,-Bennet and Camden applied to the city council to repeal the resolution, making, at the same time, a tender of the said rent, taxes with interest, and costs. The application was denied by the council. In this state of things, on the 17th day of January, 1858, and on the 2d March, 1853, Taylor, the plaintiff, became the purchaser of Bennet’s and Camden’s interest. He then commenced an action by petition in St. Louis Land Court, praying that the said resolution of forfeiture may be rescinded and annulled on the terms of his paying the back rents with interest and costs. The court below, upon the foregoing facts appearing on the trial, refused relief and dismissed the petition. The plaintiff has brought the case here by appeal.

      Reber and Carroll, for appellant.
    1. The indenture executed to Burnet is a lease, and established the relation of landlord and tenant, with all the incidental rights and duties; it was not a sale. See Sess. Acts, 1839, p. 210 ; Ordinance 78 (of Oarondelet). 2. The plaintiff is entitled to the relief prayed, upon the well settled doctrine that courts of equity will relieve a tenant who has forfeited his estate by the nonpayment of rent at the appointed time. (2 Sto. Eq. p. 545 ; 2 Platt on Leases, 475, 477; Oomyn’s Land. & Ten., 4 vol. Law Lib. p. 322 ; 2 White’s Lead. Cas. in Equity, 70 Law Lib., 458 ; Platt on Con. 253 ; Wadman v. Ooleraft, 10 Yes. 67; Sanders v. Pope, 12 Yes. 289; Bowser v. Colley, 1 Hare, 126.) This relief is not granted on the ground of mistake, fraud or accident, but upon the broad equity that the tenant shall not suffer when he is willing and able to make the landlord whole. (2 Sto. Eq. p. 554 ; also 18 Yes. 58.) 3. The plaintiff then is entitled to relief unless his situation is different from that of ordinary tenants. The inhabitants of Oarondelet were the absolute owners of their common. (Act of Cong. January 27, 1831.) The act of February 6, 1839, merely gave the power to lease, and did not prescribe the form of the leases. When the leases were made, their incidents and the rights of lessor and lessee were determinable by the nature of the contract and the general law of the land. The ordinances of Oarondelet cannot, in any just sense, be considered as statutes, having the power to impose forfeiture. They are no more than the powers of attorney of the inhabitants authorizing certain agents to lease lands belonging to them. The corporation, in leasing its land, is acting in a private proprietary character, and not in a public municipal capacity. See Major, &c., v. Bailey, 2 Denio, 433 ; Grant on Corp. 129.) 4. The corporation had no power to declare forfeitures without a legislative grant, given in express terms, or by necessary implication. (Cotter v. Doty' 5 Ohio, 393.) The power reserved in the fifth section of the ordinance, and inserted in the lease, is substantially nothing more than the common clause or proviso inserted in leases from time immemorial. 5. The effect of the proviso of forfeiture for nonpayment of rent is the same, whether the lease is declared void or the landlord has simply the right of're-entry. (1 Hare,-109 ; 2 Platt on Leases, 327 ; 4 Oruise, 73, notes.) 6. The primary object of the clause of forfeiture was to enforce the payment of'rent, not to terminate the contract. 7. A demand of rent was necessary. (12 Ohio, 212 ; 17 Petl 267 ; 1 How. 216-17.) Although the king may not be bound to make demand of rent, corporations cannot claim that privilege. (Knight’s case, 5 Ooke, 57.)

      R. M. Field, for respondent.
    No demand of the rent was necessary before terminating the lease by resolution of the council. The old rule of the common law undoubtedly was, that to enable the lessor to take advantage of a clause of reentry for the nonpayment of rent, he must, on the day when the rent becomes payable, and at the uttermost convenient time before sunset of that day, make a formal demand of the rent at the most public place on the demised premises. (Co. Litt. 201. 1 Saund. 287, note.) It is conceived that in no case would this rule be adopted by the courts here, where the demised premises were actually vacant and unoccupied. - But, however it might be in respect to individuals, the rule, it is believed, never had any application to leases by the officers of public municipal corporations, who are exercising the administrative powers of the government. Coke says that when the king makes a lease rendering rent, the place of payment is not the land, but the exchequer. (Co. Litt. ubi supra.) All cities and incorporated towns have public offices, at which the dues of the corporation are payable. 2. The plaintiff is entitled to no relief in equity. The general rule that equity will interfere and relieve against a forfeiture incurred by the nonpayment of rent, on the ground of accident or mistake, is admitted. See 2 Platt on Leases ; 2 Sto. Eq. 506. Some of the cases go so far as to say that equity will relieve where the nonpayment is wilful; but it is believed that the general doctrine is that there should be some circumstance of accident, mistake or peculiar hardship to justify the action of the court. (Livingston v. Tompkins, 4 Johns. Ch. 447 ; Baxter v. Lansing, 7 Paige, 350 ; Newman-v. Rogers, 4 Bro. O. O. 398 ; Hill v. Barclay, 18 Yes. 60.) There is no circumstance óf accident or hardship in this case. Besides, it is a settled rule, that no forfeiture incurred under the provisions of a public law can be relieved against in equity. (Peachy v. Somerset, 1 Strange, 447 ; Gorman v. Loav, 2 Edward Ch. R. 324.) If the legislature-had itself prescribed the terms of the leases, and when a forfeiture should be incurred, it would hardly have been contended by the plaintiff that the court could relieve in the face of an express statute. Substantially, however, that is the case now before the court. The legislature gave to the trustees of the town power to make leases and to expend the rents for municipal purposes ; and “ all the authority necessary to carry into effect the power granted, and to do all acts that might be proper for that purpose. ” It will not be pretended that the fifth section of the ordinance passed by the trustees was not proper to effectuate the purposes of the act, or beyond the authority delegated by the legislature. This section, then, has all the force of a statute.
    Upon the same principle, courts refuse to relieve against forfeitures incurred by the nonpayment of public dues. The principle has been applied to private corporation, where the object is of a public nature. The case of Sparks v. Liverpool Waterworks Oo. 13 Ves. 434, is strikingly in point.
   Soott, Judge

delivered the opinion of the court.

In considering the question presented by this record, we must bear in mind that the respondent, the city of Carondelet, is a public municipal corporation. The power of the general assembly of this state to create such bodies is unquestioned, and the expediency of its exercise is admitted on all hands. The corporations thus established, have, within the sphere of their delegated powers, as absolute control as the general assembly would have, did it retain the delegated powers, and exercise them by its own latvs. The act of the 6th February, 1839, empowered the trustees of the town of Carondelet and their successors, to grant leases of their commons, and they were endowed with the power and authority necessary to carry into effect the object of the act. This delegation of power substituted the trustees of the town of Carondelet for the general assembly, and, to the extent of the pow'er delegated, vested them with the right to exercise that authority as effectually as it might have been exerted by the legislative power of the state. Prior to the execution, by the trustees of the town, of the lease of the commons which gave rise to this controversy, an ordinance was passed dated the 12th day of January, 1845, which contained this requirement: The leases shall contain a piovision to the following effect, viz : 'That, should the rent reserved as aforesaid, or any part thereof, on any lease, remain unpaid for six months after the same shall become due, the board of trustees may, by resolution, declare such lease terminated and void, and the same shall expire and be determined from that day.” The lease in controversy was made in pursuance to the terms of this ordinance. The corporation, in its political capacity, having required the insertion of the clause of forfeiture, it is as though it had been done by the legislature. Had the board of trustees, of their mere volition, leased their lands as any other proprietor might have done in the exercise of his ownership, the principle on which the plaintiff seeks relief might obtain. In such case, there might be no difference between the corporation and .any private individual, and courts might exercise their equitable jurisdiction in suitable cases, in relieving against forfeitures as freely against the one as the othej;. The corporation having legislative power over the subject, the insertion of the clause of forfeiture, deriving its existence from legislation, is no violation of the law of the land, though it may be absolute ; for it is a principle, that a clause of forfeiture in a law is to be construed differently from a similar clause in a contract or engagement between individuals. A legislature can impose it as a punishment, but individuals can only make it a matter of contract. (3 Howard, II) Prom the view we take of the subject, the clause of forfeiture was as binding on the lessee as though it had been enacted by the general assembly. The legislature delegated its judicial powers over the matter to the corporation, and the corporation, within the sphere of its delegated power, could act as authoritatively in relation to it as the legislature. The law-making power, in fact, made the board of trustees a miniature general gssembly, and gave their ordinances, on this subject, the force of laws passed by the legislature of the state. In giving the corporation legislative powers on the subject of leases, the general assembly must ■have necessarily intended that its ordinances should operate as laws and not as contracts. The state of things presented by this record, shows the necessity for the power exercised by the corporation. If the common-law requisites to enforce a forfeiture were made necessary, no body would collect the rents for them. The amount due from each would be so small, and the tenants so numerous, that the rents would not defray the expenses of agencies. The principle that a corporation can not-impose a forfeiture without express authority in its charter for that purpose, does not affect this controversy. Such principle seems only applicable to by-laws creating offences. Such bylaws, without the sanction of usage, or of an act of the legislature, can not create a forfeiture, to be levied by distress or sale of goods for their violation. (Kirk v. Nowil, 1 T. R. 118; Adley v. Reeves, 2 M. & Sel. 60.) They may impose a forfeiture for a violation of a by-law, but it can only be collected by an action of debt, unless the distress and sale are given. (Clark v. Tacket, 2 Ventris, 183.) This is the meaning of the saying, that a corporation can not impose a forfeiture without express authority.

Judge Ryland concurring, the judgment will be affirmed.

Leonard, J.

I do not concur in the opinion of the majority of the court. Here is a lease reserving a money rent, the payment of which the parties have secured by a provision in it to the effect that the lease shall cease upon the rents being six months in arrears, accompanied by a formal resolution of the" board declaring the forfeiture ; and the present application is for relief against this forfeiture.

. Penalties are a common expedient, resorted to everywhere, to secure the performance of contracts, and are found annexed both to obligations for the payment of'money, and'also to obligations for the doing or forbearing of other acts. And it would seem that, in all civilized communities, it has been found necessary to lodge in some tribunal a power to mitigate them and reduce them to the actual or probable amount of the damage the party has sustained. (1 Bell’s Com. Laws of Scotland, 656; 1 Pothier on Oblig. by Evans, 345.) In English jurisprudence this relief is afforded in equity, and the ground upon which it is there placed is, in the language of the chancellor, in Peachy v. Duke of Somerset, (1 Strange, 447, and 2 White’s Lead. Cases in Equity, 448,) ££ from the original intent of the case, where the penalty is designed only to secure the money, and the court gives all that the party expected or desired.” Accordingly, from an early period, equity relieved at any indefinite time against forfeitures incurred by the nonpayment of rent, upon "the payment of principal, interest and costs, and this equity was recognized' and regulated by the English legislature in the 4 Geo. ch. 28, and also by our own legislature, in a similar provision, to be found in the 20th section of the act concerning ££ Landlord and Tenant.” To entitle the tenant to relief, he is not bound to account for his omission to pay at the appointed time, nor is he required to show any equitable circumstance giving him a title to -the interference of the' court, and we therefore can not withhold the relief here unless the present can be distinguished from ordinary cases of this kind.

It is to be remarked that the principle on this subject, applicable to cases of contract between party and party, is not applicable to penalties and forfeitures given by the statute or to conditions in law, and.in the early case of Peachy against the . Duke of Somerset, already referred to, the chancellor remarked' that “ cases of agreement and conditions of the party and of the taio are certainly to be distinguished,” and on this ground he denied relief to a copy-holder, who had incurred a forfeiture of his copy-hold by making leases, &e., contrary to the eustona of the manor. When the legislature inflict a forfeiture as a penalty, on account of the performance or omission of an act, those who administer the law can not relieve against it, unless there be peculiar circumstances attending the particular transaction that furnish equitable grounds for relief, (Keating v. Sparrow, 1 Ball & Beatty, 368) ; and it is supposed that the present forfeiture is of that character, .and so not subject to equitable interference. The landlord here is a municipal corporation, expressly authorized by statute to grano leases o-f their lands, renewable forever ; and having by an ordinance provided that, in all leases to be granted, a clause should be inserted to the effect that, if the rent should be in arrear for six months, the board of trustees should have power to declare the lease terminated, and that the same should cease from that time ; and this clause having been put into the present lease as part of the contract, it is supposed.that the forfeiture is a pen-. alty inflicted by taw, and not by contract; in other words, that the provision binds the lessee by its own force as an ordinance and not as one of the terms of the bargain. Certainly I do not so view the matter. It could not, I think, be insisted that this provision in the ordinance would have affected the tenant if it had been wholly omitted from the contract; and yet, it must have been equally obligatory in that ease as in the present, if the position here suggested is to be maintained. No doubt it was competent for the legislature to provide that, in all leases to be granted by the corporation, if the rent remained unpaid, the corporation might terminate the lease by a resolution to that effect, entered upon their minutes ; nor is it doubted but that such a law would have excluded the tenants from the relief to which they would otherwise have been entitled. This is substantially the provision in reference to the lenses of the St. Louis commons, and such, it is believed, is the construction given to it. (St. Louis Commons, Act 18th March, 1835.) But the legislature have not so provided as to the Carondelet commons ; and, although there was no reason for making the distinction, and, in all probability, the distinction made was accidental and not intentional, yet we can not disregard it and treat these leases as it would have been our duty to have treated them, if the effect of the nonpayment of the rent had been declared by the legislature, instead of by the corporation. In the St. Louis cases, the nullity insisted upon is declared by the law of the land ; in the Carondelet leases it is the ordinance of a municipal corporation that is to produce the result; and the vice of the argument, I think, is in supposing that the legislature, in the grant of the power to make leases, included any political power to change the laws of property. The whole matter, it seems to me, may be stated in a few words. The corporation, in the exercise of their power to grant leases, have, in order to secure a punctual payment of the rent, contracted with the tenants for a forfeiture in case of nonpayment; and this, forfeiture is subject to the general law of the land, for the obvious reason that it has not been otherwise provided by statute, nor have the legislature given the corporation-any political authority to inflict it as a penalty. I am therefore for applying to this lease the same remedies that are applicable to all others under the general law.


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    Aubuchon et al., Appellants, v. Murphy et al., Respondents.
    1. A certified copy from the record of a memorandum of sale, not a Spanish archive, executed December 26, 1786, and not recorded before the year 1811, may, under the “act concerning evidence,” (R. C. 1845, p. 469, 470,) be read in evidence only upon prbof of such facts and circumstances as, logeihei- with the certificate of acknowledgment or proof, -will satisfy the court that the person who executed the instrument is the person therein jiamed as grantor.

      •Appeal from St. Louis Court of Common Pleas.
    This is an action in the nature of an action of ejeetment, by plaintiffs, Aubuchon and Tallé dit L’Anglais, to recover an undivided portion of a tract of three by forty arpens, in the Grand prairie common field of St. Louis. The plaintiffs claim title under the widow Hebert, to whose .representatives it is alleged the said tract was confirmed; L’Anglais claiming an undivided one-tenth of said tract by descent from her, and Aubuchon, the other plaintiff, an undivided one-fifth of the same, as having purchased the said interest from other heirs of the said widow Hebert. The defendants denied plaintiffs’ right of possession or title, set up title in themselves, and state that, the most southern one of the three by forty arpens had been conveyed by widow Hebert to Labuxiere in 1777, and that the two northern ones had been sold at the church door before December, 1786, by Charles Sanguinet, as testamentary executor of widow Hebert. Defendants claim title by virtue of the said conveyance and sale, and further allege that they, and those under whom they claim, had had possession of the. tract sued for for more than twenty years prior to the commencement of this suit. On the trial, jlaintifis introduced in evidence the concession to the widow Hebert and the confirmation to her legal representatives, and the United States survey thereof, being survey No. 1256, and. also introduced evidence tending to prove a derivative title in plaintiffs under the widow Hebert.
    Defendants introduced evidence tending to show a derivative title in themselves, from the widow Hebert, through a conveyance from her to Joseph Labuxiere, dated July 9th, 1777, of the most southern of the three lots. The defendants then offered in evidence archive No. 2389, a translation of the material parts of which is as follows : “ No.-2389. In the town of St. Louis of Illinois, on the 30th day of November, in the year 1784, in consequence of the decease of Helene Danis, widow of Ignace Hebert, deceased, who (widow Hebert) died intestate in this said town, on the 28th day of the present month, I, Don Francisco Cruzat, lieutenant colonel of infantry, commander-in-chief, and lieutenant governor of the western part and district of Illinois, went at about half-past nine, A. M., of that day, to the residence of the aforesaid deceased, accompanied, with the assisting witnesses, Mariano Yzayuirre, and Josef Barnes, to make the inventory and appraisement of all the property belonging to the said deceased ; for that purpose have been selected and officially appointed as appraisers, Sylvester Sarpy, Charles Sanguinette, Joseph Motard, and Pierre Perry, who promised on oath faithfully and lawfully to perform the duties of that office, and every thing being valued in money, the present inventory was commenced in the following manner: One and a half arpens of land in front by forty arpens in depth, situated in the Grand prairie, between the cultivated lands of Louis Chevalier (Cheballier) and Joseph Brazeau, valued at twelve livres (12). [There were numerous articles enumerated, which it is unnecessary to set forth.] And after having proceeded with the inventory from three o’clock, p. M.,. to half - past five, p. M., as nothing more was found belonging to the estate of the said Helene Danis, deceased, .the present inventory was closed, it being written on eleven' leaves, including this ; the appraisement amounting to the sum of six thousand three hundred and thirteen livres fifteen cents, and all the aforesaid property was placed under the care of Charles Sanguinette, to keep and preserve it under the strict obligation to divide among the lawful and nearest heirs of the aforesaid deceased, with judicial authorization and according to the rights of every one, the property of the said (widow Hebert) as enumerated in this inventory. He accepted of this charge and swore to fulfil the duties of it in a faithful and lawful manner, considering that he was officially instructed with it for the object so mentioned ; therefore he signed this inventory in the presence of the assisting witnesses and of the said appraisers, who signed also with myself, the said lieutenant governor, on the same day and year as above. Chs. Sanguinet, Pre. Peri, Josef Bermeo, Joseph Motare!, Mariano Yzayuirre, Franciso Cruzat, Stre. Sarpy.”
    “To the lieutenant governor: Sir — Charles Sanguinet, a merchant of the town of St. Louis, in the best form, according to law, represents to you, as administrator, officially appointed, and having under his care the property belonging to the estate of the deceased, Helene Danis, that it is advantageous to the heirs, some of whom are under age, that all the property be sold at public sale, to the highest bidder, and that the purchasers having given a good and sufficient security, residing in this town of St. Louis — the term of payment for all the purchasers at the end of September, in the year 1785; I therefore beg you to order and decree according to my demand, which is just, and I swear, in due form of law, that it does not proceed from any evil design, &c. St. Louis of Illinois, December 11th, 1784. Chas. Sanguinet.”
    “ Considering the foregoing petition, let the object of said petition be granted, and let the morning of the 13th inst. be indicated for the beginning of the sale ; let this be made known to Charles Sanguinet. St. Louis of Illinois, December 11, 1784. Franc0. Cruzat.”
    “In the town of St.'Louis of Illinois, on the 13th day of December, 1784, I, Franc0. Cruzat, commandant and lieutenant governor of the western part of Illinois, in virtue of the foregoing petition presented by Chas. Sanguinet, as administrator, and having in his possession the. property which has been inventoried as belonging-to the deceased, Elena Danis, I went at about 10 o’clock, a. m,, accompanied with the assisting witnesses, Mariano Yzayuirre and Josef Bermeo, to the residence of said deceased, to dispose at public sale all of said property ; and when a sufficient number of people had collected, it was made known to the public that the purchase money should be paid during the month of September of next year, 1785, in current money of tins country, or in shaved deer-skins, of merchantable quality, at the rate of forty sous a pound, each purchaser to give a ^joocl and sufficient security residing in this town ; and after having proceeded with the sale from three oVlock, p. m., to five, there being no more effects of said estate to be sold, the present sale has been terminated (the minutes of which cover sixteen leaves, including this one,) and the proceeds amount to the sum of 10,907 livres and 10 sous in money, payable in the course of September of next year, 1785 ; and the said assisting witnesses and administrator have signed with me, the said commandant and lieutenant governor, on the day •and month and year aforesaid. Chs. Sanguinet, Josef Beimeo, Mariano Yzayuirre, Franc0. Cruzat.”
    To the reading of this-paper in evidence the plaintiffs objected, because, 1st, not filed in the cause as an exhibit; 2d, not properly authorized ; 3d, incompetent and irrelevant. But the court admitted the paper, and plaintiffs excepted.
    Defendants then'offered in evidence a certified copy of a memorandum of sale, recorded in the recorder’s office of the county of St. Louis, on the 18th June, 1811, as recorded in the original record, in book C, p. 396, and the acknowledgment as recorded at p. 401 of the same’book, which is as follows :
    “ 27 Janlf 1785. Nous, Louis St. Ange de Bellerivo, capitaine commandant de la partie Franchise aux Illinois, et Joseph Labuxiere, sub-deleguée de monsieur l’ordinnateur de la Louisiane, et sur la demando de la dame veuve Hebert, habitante laboreuse qui désire cultiver la terre nous lui avons concedé et concedons a titro de proprietó pour elle ses hoirs on ayant causes, uno Ierre sitme a la Grande prairie, contenante trois arpens de face sur le profondeur ordinaire de quarante arpens, tenant d’un c6té a Guillaume Biseto, et de l’autre cSté au nomm'e Taillon, aux conditions de mettre en valeur la ditte terre sous Pan et jour, et qu’elle sera sujette aux charges publiques et autres qu’il plaira á sa majesté d’y emposer. Donné a St. Louis aux Illinois, le dix-huit Juillet, mil sept cent soixante-neuf. Signs sur le registre — St. Ange et Labuxiere. Enregistré folio 28. J’ay, éxécuteur testamentare de madame Helene Denis, veuve Hebert, reconnais et eertifií d’avoir vendu á la porte de église a la criée auplu aux en ¡^ierisse.ur [.?] la presente tarres que de deux arpens a Mr. Joseph Brazeau pour prix et sommo de quarante livres en argent, dont je reconnait que de Sr. Brazeau m’a payé comptant, dont quit a St. Louis des Illinois, le 26 Décímbre, 1786. Chas. Sanguinet. ” ££ Recorded this 18th day of June, 1811. M. P. Leduc, recorder.”
    “ State of Missouri, county of St. Louis, ss. I, the undersigned, recorder in and for the county of St. Louis, do hereby certify the foregoing to be a true copy of an instrument of writing, and also of the date of recording the same, as fully as the same remains of record in my office, in book C, p.' 396. Witness my hand and official seal, at St. Louis, the 28th day of January, 1852. S. D. Barlow, recorder. (Seal.)”
    ££ See p. 396. Territory of Louisiana, district and township of St. Louis. Before me, the subscriber, oho of the justices of the peace in and for the township aforesaid, personally came and appeared Charles Sanguinet, who acknowledged the within instrument, to-wit, the deed bearing date the 26th December, 1786, to be his act and deed for the purposes therein contained. Given under my hand this 29th day of June, 1811. M. P. Leduc, J. P. Recorded this 29th day of June, 1811. M. P. Leduc, recorder.”
    ££ State of Missouri, county of St. .Louis, ss. I, the undersigned, recorder in and for the county aforesaid, do hereby certify the foregoing to be a full and complete copy of a certificate of acknowledgment, of the reference in the margin, and of the date of recording thereof, as fully as the same remains of record in my office, in book C, p. 401. Witness my hand and official'seal at St. Louis, the 28th day of January, 1852. S. D. Barlow, recorder. (Seal.)”
    The defendants also offered, in connection with the said cer- ■ tified copies, the index of said record book, as follows, and also the first volume of the general index of said recorder’s office of St. Louis county; also the record -books themsel-vesto all which the plaintiffs objected, because, 1st, said papers had not been filed in this cause ; 2d, not properly authenticated; 3d, not originals, hu^copies, and copies of copies ; 4th, imperfect and incomplete ; 5th, incompetent and irrelevant and illegal. The court below admitted this paper, and the plaintiffs excepted, and took a nonsuit, with leave to move to set the same aside ; which was accordingly done in due time, and this motion was overruled, and plaintiffs excepted. '
    Defendants claimed to derive title under the said two instruments to the two northern of the.three by forty arpent lots, and introduced evidence tending to show a derivative title to them from Joseph Brazeau.

      T. Polk, for appellant.
    1. The copy of the record of a a paper purporting to be a deed or memorandum of sale from Charles Sanguinet to. Joseph -Brazeau, dated Dember 26th, 1786, ought to have been excluded from the jury. It was not filed in the cause. (Code of Practice, art. 7, § 13.) That which was offered was either a copy of the original memorandum of sale (the record itself) or a copy of a copy of the same. The original ought to have been produced or its loss or destruction shown. (1 Stark. Ev. 336 ; R. 0.1845, p. 227.) This memorandum was not admissible under either the 13th or 14th sections of the act concerning evidence. (R. C. 1845, p. 469.) It was not an archive : this is admitted. If it be treated as an American instrument, it was not entitled to be recorded at the time of the record, June 18, 1811, because not acknowledged. (1 Terr. Laws, 47, 58, 179.) It was not acknowledged until June 29, 1811, and then the certificate of acknowledgment, and not the deed, was recorded in a different place in the record book ; never having been recorded together as one instrument, and consequently was not admissible under either the 16th, 17th, 18th or 19th sections of the act concerning evidence. (R. C. 1845, p. 469, 470.) The sale to Brazeau by Sanguinet, as set forth in above memorandum, was not authorized by the order of the lieutenant governor, as contained in the paper purporting to be archive No. 2389. The date of the memorandum is more than two years after the time fixed by the order for the sale.

      Field and Shepley, for respondent.
    1. The court properly admitted in evidence the memorandum of sale by Sanguinet, as administrator of widow Hebert. It was admissible under the 18th section of the act concerning evidence. (R. O. 1845, p. 469.) It was admissible also on the ground that it is a document from which, after the lapse oE time and other cir-' cumstances, the jury might presume a judicial sale. (1 Cow. & Hill’s notes, 386 to 371.) It was at least good evidence of •a color of title, upon which to baso a title by virtue of the statute of limitation, and as showing the extent of the possession. See 6 Mete. 337 ; 5 Mete. 15, 173. It was no objection to its admissibility that no testimony was. offered to prove the loss of the original, it not being an instrument that is supposed to be in the possession of defendants ; the admission of a copy was wholly within the discretion of the court. Nor is it an objection to its admissibility that the deed and the acknowledgment were recorded at separate places in the same hook ; nor is there any discrepancy between the order of sale in the inventory and the facts as stated in the memorandum of sale. The memorandum does not show when the sale was made. If any discrepancy exists, it does not affect the question of the admissibility of the memorandum.
   Leonard, Judge,

delivered the opinion of the court.

The written memorandum of sale by Sanguinet is treated by both parties as an American'instrument, and of course it has not been insisted that the copy was competent' evidence as a certified copy of a French or Spanish archive, under the act of I6lh February, 1847, “to preserve ancient archives.” The only question therefore is, whether it was admissible under the act of 1845, concerning evidence. The plaintiff objected to the instrument for want of proper proof of authenticity, and insists here upon every objection that he is entitled to- make. IP it had been the original instrument, instead of a copy, we think it should have been excluded for want of the proof of the grantor’s identity, required by the 18th section of the act of 1845, concerning evidence, and that for 'this', reason the judgment must be reversed. We incline to think that, notwithstanding the other objections that have been taken to it, the paper might have been received as a certified copy, under the 19th section of the act, upon such proof as would have satisfied the court of the grantor’s identity ; but no such proof was made, and the objection is insisted upon, and we have no power to dispense with it, however merely formal it may be in the particular case.

Very considerable changes have, from time to time, been made in our registry laws. Before the act of December, 1821, no proof of the grar-tor’s identity was required, and neither recorded deeds nor certified copies were authentic instruments of evidence until the act of 1825. This act allowed deeds, proved and recorded under it, and certified copies, to be read in evidence upon the proof there required. Subsequently, the legislature went a step further, and provided in the 17th section of the act of 1845, before referred to, that all conveyances proved or acknowledged according to the existing law, although not declared to be evidence, should bo received in evidence, if they had been recorded wilhin one year from the date'(the time prescribed by the first law of 1804, for the registry of deeds, and subsequently reduced to three months by the act of 1817,) and more than twenty years before they are offered in evidence, thus substituting in lieu of the proof of identity required by the act of 1821, what the legislature deemed-equivalent proof — a registry made recently (not exceeding one year) after the execution of the deed, and twenty years’ exposure to the public upon the records of the proper county'. In the subsequent (18th) section, they go yet further, and provide for deeds that do not carry with them this evidence of authenticity, and allow them also to be read, although not recorded within one year, and more than twenty years before the .trial, upon such facts, as, together with the certificate, will satisfy the court of the identity of the grantor; and in the succeeding (19th) section, if the original is lost or destroyed, or not in the power of the party, a certified copy'may be received upon the same-evidence required in case of the original.

This is the law, and if a party desire the benefit of its provisions, he must make the required proof — we cannot dispense with it. The judgment is reversed, and the cause remanded.


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    Ubsdell & Pierson, Appellants, v. Cunningham, Respondent.
    1. Instruments in the following forms: “ Due A. B. §100, to be paid over to him as soon as collected at P., now in the hands of H. B. P. of that place,” and “Due A. B. $34 63 for goods purchased- of him while at P., to be paid as soon as collected from my accounts at P.,” are promissory notes, not mere conditional obligations to pay. The words “ to be paid,” &c., merely prescribe the time of payment by indicating the fund out of which the debtor expects to pay, and thereby securing to him the delay necessary to render it available.
    2. When all has been collected upon the claims that can be collected at all, the notes become due and payable.

      Appeal from St. Louis Law Commissioner’s Court.

    This was an action originally commenced before a justice of the peace, and taken thence by appeal to the law commissioner’s court. The cause of action was founded on the following instruments, notes or due bills : <c New York, March 7, 1849. Due Messrs. Ubsdell & Pierson one hundred dollars, to be paid, over to them as soon as collected at Pokeepsie, now in the hands of Horace B. Potter of that place. (Signed) H. D. Cunningham.” “ $34 63. Due Messrs. Ubsdell & Pierson, thirty-four dollars and sixty-three cents for goods purchased of them while at Pokeepsie, to be paid as soon as collected from my accounts at Pokeepsie. New York, March 7, 1849. (Signed) H. D. Cunningham.”

      On the trial before the law commissioner’s court, the following agreement or stipulation was given in evidence on the part of the plaintiffs : “ John A. Ubsdell and Charles Pierson v. Henry D. Cunningham. It is stipulated in this case that the notes and accounts placed in hands of H. B. Potter, mentioned in the due bills sued on in this case, have been collected before this suit was brought} so far as said notes and accounts were collected. August 22, 1854.” It was also in evidence that plaintiffs were in March, 1849, co-partners, under the name and style of Ubsdell & Pierson, and doing business in the city of New York. There was also evidence tending to prove that unsuccessful efforts had been made by II. B. Potter to collect the accounts left in his hands by defendant, Cunningham, and that such accounts were now collectable.
    Upon this evidence, the court, on motion of defendant, instructed the jury that the plaintiffs were not entitled to recover ; whereupon the plaintiffs took a non-suit, with leave to move to set the same aside; which motion having been made and overruled, the case is brought here by appeal.

      Krum & Harding, for appellants,
    cited Sears v. Wright, 11 Maine, 278.

      Reber, for respondent.
    1. The instruments of writing sued on are payable conditionally, and are therefore not promissory notes. (Story Prom. Notes, § 22 ; Hill v. Halford, 2 Bos. & Pul. 418.) 2. Not being notes, a consideration should have been proved. 3. The obligation of the defendant to pay is conditional and plaintiffs’ proof showed that the condition had not happened and by no fault of defendant. (Allen v. Davis, 11 Mo. 479.)
   Leonard, Judge,

delivered the opinion of the court.

The only question that can be made here is, whether the obligation incurred by these note? is suspended upon the condition that the accounts referred to should be collected, or whether the words in one note, “ to be paid as soon as collected from my accounts at Pokeepsie,” and in the other, “ to be paid as soon as collected at Pokeepsie, now in the hands of H. B.' P. of that place,” ought to be understood merely as prescribing the time of payment, by indicating the fund out of which the debtor expected to pay, and thereby securing to him the delay necessary to render it available. Both notes contain direct acknowledgments of indebtedness, the language being “ Due Messrs. U. & P. --dollars, ” although only one of them discloses the cause of it (goods sold) ; and we think the subsequent words, “to be paid,” &c., were not intended to show' that the debts were conditional — depending for their existence as valid demands against the makers, upon the fact that the sums to be paid could be collected out of the accounts referred to, but only to prescribe the time of payment, by reference not to days and years, but to a reasonable time for the collection of the accounts. This construction is warranted by the language used, and we have no doubt will execute the real intention of the parties.

It being admitted that all had been collected upon these claims that could be collected, the term prescribed for the payment of the notes had expired, and they became due according to our construction of them. The judgment is therefore reversed, and the cause remanded,

Judge Ryland concurring.