text:
    The State, Respondent, v. Ramsey, et al., Appellants.
    1. Where an indictment for a felony is pending before the St. Louis Criminal Court, the judge of the St. Louis Circuit Court is not authorized to let to hail the person so indicted; and a recognizance entered into before him for the appearance of the accused before the St. Louis Criminal Court is void.

      •Appeal from St. Louis Criminal Court.

    The recognizance entered into in this cause was declared by the St. Louis Criminal Court to be forfeited, and judgment was rendered thereon against the principal and surety, who bring the case to this court by appeal. At the time the recognizance was taken by the judge of the St. Louis Circuit Court, the Criminal Court was not in session.
    Blennerhassett, Wright and Shreve, for appellants.

      H. A. Clover, for the State.
   RylaND, Judge,

delivered the opinion of the court.

The only question in this case involves the authority of the judge of the Circuit Court of St. Louis county to let the prisoner, Bamsey, to bail. He was indicted for a felony by the grand jury of Franklin county, before the Franklin county Circuit Court. He applied for and obtained a change of venue. The Franklin Circuit Court changed the venue to the Criminal Court of St. Louis county, instead of the St. Louis Criminal Court. While the cause was pending before the Criminal Court, the party, Bamsey, was brought before the judge of the St. Louis Circuit Court and let to bail.

It is insisted that, under the statutes of this state, no court or officer in such a case, (indictment for felony,) can let to bail, except the court where the indictment is pending, or the judge of that court, or the County Court of the same county, or sorpe judge or justice of the County Court; and that all other courts and officers are, in such cases, expressly excluded from letting persons indicted for felony to bail. A majority of this court is of the opinion that the judge of the Circuit Court, in this case, had no authority to let to bail or to take a recognizance, and, consequently, the judgment below must be reversed. By sections 19 and 20 of article 4 of the act concerning practice and proceedings in criminal cases, (B. C. 1845, p. 870,) it is provided : “ Where the indictment is for a bailable offence, the defendant may be let to bail by the court in which such indictment is pending ; or, if such court be not sitting, by the judge thereof, or by any judge or justice of the County Court of the county in which the indictment is pending. When the indictment is for a misdemeanor, the sheriff may himself admit the defendant to bail,” &c. Sec. 21. “ No court or officer, other than those specified in the two last sections, shall let to bail any person indicted for any offence.”

As this question can rarely if ever occur in any other county than St. Louis, it is of no great moment to the state at large. The legislature intended to limit and did limit the officers to whom the power to let to bail should be entrusted after indictment found. Persons indicted for felonies could only be bailed by the court in which the indictment. was pending, or by the judge of that court, if in vacation, or by sows judge or justice of the County Court. When this statute was enacted, some of tbe Circuit Court judges presided over many counties ; even now St. Louis county is the only one in this state which composes by itself alone a judicial circuit. Consequently, when the Circuit Court had adjourned its sessions, should a person who had been indicted for a felony be 'taken by the sheriff, the law did not require him to be carried.to the judge’s residence, in a distant county, to be let to bail, but allowed a judge of the County Court to bail him. The County Court is composed of three justices, or judges, as they are commonly called; hence there are three men in every county authorized by law to bail, and four in the county where the circuit judge resides. In misdemeanors, every sheriff can bail as well as the other officers. This number is sufficient. The circuit judge and the county judges know, or are more likely to know, the nature of the offence, and the abilities, in a pecuniary point of view, of the persons offered as bail. The circuit judge, in every other county but St. Louis, can bail. Here, the Criminal Court and the criminal judge occupy the same situation as the Circuit Courts and the circuit court judges in other counties in criminal cases.

This indictment was not pending in any court over which the circuit judge of St. Louis presided; and he could not let to bail, in our opinion, under the statutes. We consider the expression, “ any judge or justice of the County Court” as embracing the same officer. It does not, in our opinion, mean any judge of any court, no matter what; but judge or justice of 'the one court — the County Court. The law called these officers 11 justices” — the people, judges — of the County Court; hence the use of both official names for the same officer.

We do not think the statute concerning habeas corpus interferes with this view. The circuit judges, in their respective circuits, can without doubt bail, on writs of habeas corpus, any defendant indicted for a bailable-felony in any one of the courts over which said judge presides ; but not for such of-fence pending in a court not in his circuit. Here, the Criminal Court bad cognizance of tbe offence: the indictment was for a felony pending in the Criminal Court; the judge of that court, in vacation, was the officer to let to bail. He stood in the place of the circuit judge of this county, and is to perform the duties here which circuit judges perform in criminal cases in counties outside of St. Louis county.

Let the judgment therefore be reversed;

Judge Leonard concurring ; Judge Scott dissenting.


source: Caselaw Access Project

author: LEONARD, Judge,

license: Public Domain

text:
    The State, Appellant, v. Jamison, Respondent.
    1. It is no defence to an indictment for selling intoxicating liquor without a license, that the County Court, acting under the act of March 1, 1851, and in consequence of a remonstrance of a majority of the taxable inhabitants of a township, refused to grant such license. Whether the license is withheld rightfully or wrongfully, is immaterial.

      Appeal from Crawford Circuit Court.

    This was an indictment for selling liquor without a license. Defendant moved to quash the indictment, and made an order of the County Court of Crawford county a part of the motion. Said order is as follows : “ Upon the presentation of a petition, signed by a majority of the taxable inhabitants of this municipal township, to-wit, the township of Meramec, in Crawford county, signed by one hundred and eight, remonstrating against the County Court granting any dram-shop license for said township within the year next succeeding this, the presentation of said petition; and the court being satisfied that the said remonstrance was signed by a large majority of the taxable inhabitants of said township, it is ordered by said court that no license for the keeping of dram-shops in said township, for the next twelve months from this date, shall issue.”
    The ground for the motion to quash was that the act of March 1st, 1851, (see Sess. Acts, 1851, p. 216,) under which the above order was made, is unconstitutional and void. The court held said act to be unconstitutional; whereupon the State appealed to this court.

      H. Jl. Clover, for the State.

      C. Jones, for respondent.
   LEONARD, Judge,

delivered the opinion of the court.

There is a sufficient bill of exceptions here, although very informally drawn. The constitutionality of the act of 1st March, 1851, upon which the case was determined in the court below, is not involved in the record, and of course we express no opinion upon it. The indictment is sufficient, and it is no defence that the County Court improperly refused the defendant a license when he applied for it. It is the granted license that justifies a party in carrying on the business of a a “dram-shop keeper,” and therefore, even although the County Court ought to have granted it notwithstanding the remonstrance of the inhabitants, (about which we express no opinion,) yet, as they did not, the defendant had no authority to engage in the prohibited trade. It may be that it was improperly withheld, but it is enough here that it was withheld, and whether rightfully or wrongfully, is not now material. In either event, the defendant was guilty if he engaged in the prohibited traffic. The judgment is reversed, and the cause remanded.


author: Scott, Judge,

text:
    Chouquette et al., Plaintiffs in Error, v. Barada et al., Defendants in Error.
    1. In order to constitute such a continuous adverse possession in successive occupants as will amount to a har under the statute of limitation, it is necessary that there should he some privity between such occupants.
    2. A will not providing for children of the testator, though voidable under section 20 of the act concerning wills and testaments, (K. C. 1825, p. 195,) by those injured by it, is good as against strangers ; unless the children of the testator assert their right against the will, the title will remain in the devisee.
    3. A finding by the court that possession has been held adversely, is equivalent to a finding that the possession has been held under a claim of title.

      Error to St. Louis Land Court.

    This was an action in the nature of an action of ejectment, to recover possession of a lot in the city of Carondelet. The petition, so far as it is necessary to set forth the same, is as follows : “ Plaintiffs state that they are tenants in common of the following described lot of ground or parcel of land, lying in the city of Carondelet [describing it] ; that said plaintiffs are entitled to immediate possession of said land, as tenants thereof, in fee simple absolute, having acquired the same by deed from the city of Carondelet, dated August 14th, 1852, and herewith filed, and the said Moritz Taussig and William Taussig have acquired by deeds, herewith filed, the interest conveyed by said deed of the town of Carondelet to Antoine Mo-tier and Ophelia, wife of Joseph N. Yien, so that the said Ju-lien Chouquette is entitled to one half of said land in his own right, the said Julien Chouquette and Victoire his wife, in right of the said Yictoire, are entitled to one-eighth of said land, the said Charles Motier to one-eighth, and the said Moritz and William Taussig to one-fourth ; that the said land was formerly part of the commons of Carondelet, and was conveyed as aforesaid to the said parties, who are legally entitled to the possession thereof in the proportions above named and mentioned,” &c., &c.
    Sullivan and Papin, landlords of Barada, being permitted to defend, by their answer denied the title of plaintiffs, and set up the statute of limitations.
    It was agreed that the cause should be tried by the court upon certain agreed facts and admissions, the substance of which is as follows : “It is admitted that the land in controversy lies within the survey made of the common of Carondelet in 1834 by Brown, and in that part of it lying north of the River des Peres ; that Antoine Motier resided on the land in controversy from 1825 until his death, which took place in 1834, about the 1st March; that he left eight children, whose names are Antoine (1), Yictoire (2), married to Julien Chouquette, Charles (3), Baptiste (4), Andrew (5), Elizabeth (6), married to Garci, Louis (7) and Ophelia (8), and also his widow, Felicité ; that Felicité died before 1st August, 1852 ; that the annual value of the land is twenty-five dollars, and at that rate per month; that Carondelet was incorporated on the 2d of August, 1832.
    “ On the part of the defendants, it is admitted by the plaintiffs that Antoine Motier occupied and lived on the land sued for from the year 1825 till his death in 1834, and that Felicité, his widow, occupied and lived on the same land from her husband’s death until October, 1847 ; that by virtue of a regular judgment against Felicité Motier, the sheriff of St. Louis county levied on and sold to Sullivan and Papin the land in controversy, as the land of Felicité Motier, the deed to Sullivan and Papin being executed in 1845 ; that Sullivan and Papin then Sued Mad. Motier in ejectment, recovered judgment, and executed a writ of possession in October, 1847, and that ever sirice then Sullivan and Papin have had possession of said land, claiming it as their own.
    “By the defendants it is admitted that in the interval between 1834 and 1853, the town of Carondelet has repeatedly recognized Brown’s survey of the common ; that after the death of A. Motier, his family continued to reside with their mother on the land in controversy for several years ; that A. Motier died in March, 1834, having first made his will, by which, without mentioning or providing for any of his children, he gave all his interest in this land to his widow, Felicité.”
    The finding of the court was as follows : “ Upon the pleadings, evidence and admissions of the parties, the court finds the following facts, to-wit: 1. That the land described in the petition lies within and was formerly part of the Carondelet commons ; that the city of Carondelet, by deed dated August 14th, 1852, conyeyed all its estate and interest therein, as follows : to the plaintiff, Julien Chouquette, one half; to the plaintiff, Yictoire Chouquette, one eighth ; to the plaintiff, Charles Mo-tier, one eighth, and to Antoine Motier, and Ophelia, wife of Joseph hi. Yien, each one eighth; and that before the commencement of this suit, the plaintiff, Moritz Taussig, by deed, acquired all the interest of the said Ophelia and her husband in the said premises, and the plaintiff, Wm. Taussig, in the same manner acquired all the interest of said Antoine Motier therein. 2. That the defendants, Sullivan and Papin, are in possession of said land, and have been in possession thereof, claiming the same as their own, from the 6th of October, 184T, and the said Sullivan and Papin, and Felicité Motier and Antoine Motier, under whom said defendants claim, have been in the actual and continuous possession óf said land from the year 1825 to the present time, and have held the same during said time adversely to the inhabitants of the town of Carondelet, and, after the incorporation of the city of Carondelet, adversely to the said city, under which the plaintiffs claim title. 8. That the inhabitants of the town of Carondelet were incorporated August 2d, 1832, and the city of Carondelet on the 1st day of March, 1851.

      “ Upon the facts of this cause as found, the court is of opinion, and so declares the law to be, that the plaintiffs are not entitled to recover.”
    Judgment was accordingly for defendants. Plaintiffs bring the case here by writ of error.

      T. T. Gantt, for plaintiffs in error.
    I. There was no bar by the statute of limitations, because, 1st. The approved United States survey of the common of Carondelet bears date July 29, 1834, and this suit was brought within twenty years of that date, to-wit, on 28th January, 1854. Before that survey was approved, there was no complete right of action, and in fact no right of action at all. 2d. There was no adverse possession of the land, or no possession of it adverse to the heirs of A. Motier, before the 6th October, 1847. 3d. Less than twenty years elapsed between the death of A. Motier and the bringing of this suit, and defendants claim under a different person from the heirs of Motier. 4th. Defendants can not connect their possession with that of Motier, sr. The will of A. Motier was, as against his children, a nullity. 5. The case does not state any evidence or contain any admission warranting the inference that the possession of Madame Motier was adverse to her children. 6th. Mad. Motier’s possession was not exclusive. The case states that her children lived with her on the land for several years. They had the right of their father, be it much or little, by descent from him, the attempt to devise to their mother being a nullity. 7th. Mad. Motier’s possession was the possession of her children, and would be so, no matter what her intentions were on the subject. The law will hear no evidence to vary its own intendment. (See generally Donald v. Byrne, Batty’s Rep. 873 ; Cook v. Nicholas, 2 Watts & Serg. 27; Buller’s Nisi Prius, 102 ; 1 Fairfield, 2'56 ; R. C. 1825, Act concerning Wills and Testaments, see. 20, p. 795 ; 7 Paine C. C. 457 ; 9 Wheat. 288, 289 ; 2 Serg. & R. 527 ; Reading v. Royston, 2 Salk. Rep. 423 ; Empson v. Shackelford, 5 Burr, 2604.)

      S. Heber, for defendants in error.
    I. The deed of Carondelet of August, 1852, passed no title for the obvious reason that the city had no title to convey. Twenty years’ adverse possesssion had taken away the common title. (Biddle v. Mellan, 13 Mo. 853 ; Joyal v. Rippey, 19 Mo. 660, 667; Blair v. Smith, 16 Mo. 273.)
    II. The inhabitants of Carondelet were incorporated August 2, 1832, and could have brought their suit immediately with or without a survey. (Carondelet v. McPherson, 20 Mo. 192.)
    III. There was a possession for twenty years adverse to Ca-rondelet, and it is totally immaterial that it was held part of the time by the ancestor of some of the plaintiffs. The plaintiffs cannot declare on one title and recover on another. (Butcher v. Death, 15 Mo. 271 ; Link v. Yaughn, 17 Mo. 585 ; Perry v. Barrett, 18 Mo. 140 ; Duncan’s adm’r v. Fisher, 18 Mo. 403 ,* Beck v. Ferrara, 19 Mo. 30 ; Payne v. Clark, 19 Mo. 152.) Besides, the plaintiff, Julien Chouquette, shows no connection with the possession of the Motiers.
    IV. The possession of the defendants, Sullivan and Papin, and that of Felicité Motier and Antoine Motier, was so connected as to be a continuous possession of more than twenty years adverse to Carondelet, and of course adverse to any claiming under Carondelet. (Angel on Lim. p. 447.) '
   Scott, Judge,

delivered the opinion of the court.

It is apparent from the petition that the plaintiffs only claim through the title they acquired from Carondelet, and on that they rely for a recovery in this case. This makes it unnecessary to inquire into any title they or any portion of them may have as the heirs of Antoine Motier.

It can not be disputed that, in order to make a continuous adverse possession in successive occupants, it is necessary that there should be some privity between them. When one occupant enters after another, it must be with the consent of his predecessor, indicated by contract, or by an act of the law passing the possession from one to another, in order to make a continuous adverse possession.

Possession may be adverse as to one, whilst it is not so as to another. Mrs. Motier’s possession may have been adverse to Carondelet and not to her children. This consideration, so far as the present case is concerned, disposes of all the authorities produced by the plaintiffs to show that the possession of the matter was not adverse to her children. The law of those cases is not controverted.

The question presented for our determination is, whether there was an adverse possession of sufficient duration, as against the town of Carondelet, to bar the plaintiffs who rely exclusively on the title derived from that town. Whether we regard Mrs. Motier as holding under the will of her deceased husband, or in virtue o£ ber right to quarantine, either aspect will make her possession in privity with that of her husband, and that possession, when transferred by act of the law, will constitute a continuity of her adverse possession in those to whom her right was transferred. The will of Motier was not a nullity. An inofficious will or testament, though voidable by those who are injured by it, yet, as against strangers, passes the title to the devisees or legatees. Had Mrs. Motier brought an ejectment against a stranger, and relied on her husband’s will in support of her title, we know of no principle on which the stranger could assert its nullity on the ground that the children of the testator were unprovided for. Qui libet potest renunciare juri pro se introducto. The children are not bound to claim against the will, and if they renounce the right conferred by law, who shall insist on it for them ? If the children should' ' never assert their right against the will, the title must remain in the devisee. This is similar in principle to the cases in which the law declares instruments void as to those who are injuriously affected by them, whilst it holds them effectual between the parties. Besides, the proviso to the 20th section of the act concerning wills, (R. 0. 1825,) shows that the will, though by its terms it makes no provision for the children, yet by evidence aliunde may be supported by establishing the fact that the children were provided for in the lifetime of the testator— a provision entirely inconsistent with the idea that an inofficious will is a nullity. When the children complain, the widow may show that they were advanced in the lifetime of the testator ; but surely, she will not be required to do this at the suit of a stranger. In addition to this, the 23d section of the same act provides a remedy by which the pretermitfced children may obtain their rights under an inofficious will, which scarcely contemplates that such a will is an absolute nullity. The will of Motier being only voidable by his heirs in the event they were not advanced in his lifetime, until it was avoided the right to the possession was in his wife, and that possession having been transferred to the defendants by the act of the law, there was such a privity of possession between Motier and bis wife, and between his wife and the defendants, as would make a continuous adverse possession for more than twenty years as against the town of Oarondelet.

As the facts are found which constitute the adverse possession, and as it is stated in the finding that the possession was adverse to Oarondelet, the implication necessarily arises that Mrs. Motier held claiming title. We think it sufficiently appears that she held and occupied claiming title adversely to the town. Though not found in so many words, it is in equivalent language. In the case of Pijopseot Proprietors v. Nicholas, (10 Maine, 256,) the finding was, “ that the defendant has held quiet possession of the demanded premises for more than twenty years,” — a finding different from that in this case, inasmuch as if is entirely silent as to the hostile character of the possession.

Since the above opinion was written, it having been suggested that the plaintiffs have another title which was not tried in this action, and that it may be jeoparded by an affirmance of this judgment, the cause will be remanded, at the costs of the plaintiffs ;

Judge Byland concurring.


text:
    The State, to the use of Reyburn et al., Respondents, v. Ruggles et al., Appellants.
    1. An administrator de bonis non is not liable for a failure to collect judgments recovered by a previous administrator, and which were assets belonging to the estate, where it does not appear that he had notice of their existence.
    2. The Supreme Court will not draw inferences of fact from other facts stated in the finding of the court below.

      Appeal from Washington Circuit Court.

    This case has heretofore been in this court, and will be found reported 20 Mo. 99. The cause was tried upon the following agreed statement of facts, which also constituted the finding of the facts by the court: “ That Joseph N. Reyburn, administrator with the will annexed of Joseph Reyburn, sold property of deceased and took notes for same; that the judgments mentioned in the petition were recovered by said Joseph N. Rey-burn in his lifetime on said.notes, and at his death said judgments were not satisfied. E. S. Ruggles was appointed administrator de bonis non of said Joseph Reyburn, and his inventory of papers, delivered to him or coming to his hands, contains the receipts of P. Cole for the notes on which said judgments were founded. A receipt presented by defendants of Joseph N. Reyburn is admitted, and that Joseph N. Reyburn, while administrator, ordered out executions against the defendants, and they were returned on his order, and at the time they were so returned the defendants in the judgments were solvent. E. S. Ruggles was also the administrator of the estate of J. N. Reyburn, and made final settlement in March, 1853.”
    Upon these facts, the court stated the following conclusion of law : “ That the judgments of Joseph N. Reyburn v. Jones and others, being obtained upon notes taken by said Joseph N. for property of the estate purchased at the sale, are not on that account the individual property of said Joseph N., but were in his hands as assets of said estate of Joseph Reyburn, deceased ; and having come or been brought to the knowledge of said Ruggles after he became administrator de bonis non, and he failing to collect or account for said judgment, is liable therefor.” Judgment was accordingly rendered on the bond against the principal and sureties, from which judgment an appeal was taken to this court.
    Perryman, for appellants.

      Frissell, for respondents.
   LEONARD, Judge,

delivered the opinion of the court.

The agreed facts do not warrant the recovery, and therefore the judgment is reversed. The misconduct charged against Ruggles, administrator de bonis non of Joseph Reyburn, whose original administrator was Joseph N. Reyburn, is that the first administrator recovered certain judgments, which were existing assets of the estate when tbe present administrator came into office, and might and would have been collected had he used proper diligence in respect to them, but that he permitted them to remain uncollected until they were lost to the estate, by reason of the insolvency or removal of the debtors. It is stated in the agreed case that the first administrator took out executions upon these judgments, which were returned by his order, and that the debtors were then solvent; but it is not stated that they were solvent when the present defendant came into office, or that he had notice of them as existing assets of the estate, unless we are to infer this from the fact that Cole’s receipt for the notes, upon which the recoveries were had, was in the defendant’s inventory of the estate.

This administrator was not bound to take notice of these judgments at his peril. He is not to be held liable as an insurer, but, like all other persons engaged in transacting business for others, must use good faith and exercise reasonable diligence ; and if he fail in either respect, he is justly responsible. If these recoveries were, as we presume them to have been, by the first administrator upon notes taken by him at his official sale, they must be considered, under our administration laws, as belonging to the estate ; and if the defendant had actual notice of them, as such, or, by the use of reasonable diligence in the discharge of his official duties, would have come to such knowledge, it was his duty to endeavor to collect them ; and if he failed to do so, he must answer for his conduct. But we can not pronounce against him upon the facts here stated. We do not sit here to draw inferences of fact, and therefore can not infer that he had notice of the judgments as part of the estate, or that the debts were lost by his omission to sue out execution. (Pearce v. Burns, 22 Mo. 581.)

No exception has been taken here in reference to the parties to this proceeding, and therefore we express no opinion as to the right of the heirs of a deceased legatee to maintain the suit, instead of the executor or administrator, or upon the propriety of several distinct legatees, uniting as plaintiffs, in a suit of this character, upon an administrator’s official bond. The judgment is reversed, and the cause remanded.


text:
    Bank of Missouri et al., Respondents, White, et al., Appellants.
    1. There is no equity in favor of creditors of an intestate’s estate, or of the heirs of such intestate, to set aside and annul a sale and conveyance of land by an administrator for the payment of debts, where such sale and conveyance are absolutely void; if the sale be void, creditors may proceed in the probate or county court for a resale, and the heirs may have (heir action for the possession.
    2. Where a creditor of an intestate’s estate seeks to set aside a sale and conveyance made by the administrator for the payment of debts, on the ground of fraud, the administrator not being a party to the suit; held, it not appearing that the suing creditor is the only creditor of the estate, that a decree directing the payment of such creditor out of the proceeds of a resale, is erroneous.

      ^Appeal from Lewis Circuit Court.

    The facts sufficiently appear in the opinion of the court.

      Pratt, Glover & Richardson and H. M. Jones, for appellants.

      Driden and Green, for respondents.
   LEONARD, Judge,

delivered the opinion of the court.

This wa3 a petition to set aside a sale and conveyance of real estate made by an administrator for the payment of debts under the decree of a probate court. A single creditor and the widow and heir of the intestate are the plaintiffs, and the purchasers of the land are the defendants. The petition charges that the sale was never approved by the probate court, as required by law ; and that the purchasers acquired the land, at a great sacrifice to the owners, by fraudulent and other improper conduct at the bidding ; and that the administrator (who is not a party to this proceeding) has made his final settlement, leaving the debt of one of the plaintiffs, who is the only remaining creditor of the estate, unpaid. Upon a trial by the court, it is found that the sale was never approved by the court; that the defendants effected the purchase by the alleged misconduct; and that one of the plaintiffs is a creditor of the estate, but whether the only creditor or not is not found. Upon these facts, the court declared that the sale was void for want of the judicial confirmation, and also on account of the alleged fraudulent conduct of the purchasers, and thereupon decreed a resale of the land, ordering the proceeds to be applied, first, to refund the purchase money, then to pay the creditor plaintiff his debt, and the residue to be distributed among the heirs of the estate.

It is insisted that the administrator’s sale is a forced sale of the heirs’ land, and that an express sanction of it by the tribunal that ordered it is prescribed by law as essential to its validity, and that the present sale is void for want of this confirmation. If this be true both in law and fact, no title passed ; the condition of the party is not changed by the unfinished proceeding, and the creditors and heirs of the estate, instead of filing their petition for equitable relief against the purchasers, are at liberty to pursue their appropriate legal remedies for the enforcement of their respective rights, — the creditors, by a proper proceeding in the probate court for a resale of the land, and the heirs, by their suit at law to recover the possession. With this remark we dismiss this part of the case, and refrain from expressing any opinion at this time upon this legal question, as it may be that the facts are not now sufficiently developed to enable us to determine it correctly in reference to the rights of the parties. It is enough for the present siiit, that if the sale and conveyance be void for want of confirmation, as plaintiffs insist, then they are not entitled to the equitable relief sought for by this petition, but must seek their remedy in a different manner.

If, however, the sale, instead of being void for the reason above suggested, were merely voidable in equity on account of tbe fraud practiced by the purchasers, equity will relieve by converting the purchasers into trustees against their will, and making the land subservient to the rights of the defrauded parties by way of equitable trust. A creditor, however, can not acquire any priority for his debt by filing a bill of this kind ; and therefore, where there are several creditors, it would be proper for the court, instead of taking upon itself the administration of the fund, to order it to be paid into the hands of the administrator, to be applied according to law, under the supervision of the proper probate court. But the allegation here is, that there is but a single creditor, who, of course, is entitled to the fund before the heirs; and if this be so, we see no reason why he should not be paid immediately out of the fund, instead of being remitted together with the fund to the county court for that purpose. That fact, however, is not found, and we shall therefore reverse the judgment and remand the cause. It has been strongly insisted before us that there was no evidence to establish the fraud ; but as the course of the court has heretofore been, whenever the finding was defective, to set it aside altogether, and direct a new trial, and as that is the course we adopt in the present case, we refrain from expressing any opinion upon the evidence, and leave the tribunal, whether court or jury, before which the trial will be had, to determine the question of fact, uninfluenced by any expression of our opinion upon the subject.

The judgment is reversed, and the cause remanded.


text:
    The State, to the use of Morrison’s Administrator, Appellant, v. St. Gemme’s Administrator, Respondent.
    X. No action on an administrator’s bond will lie in favor of one claiming to be a creditor of the intestate’s estate, until his demand against the estate has been established in someone of the ways prescribed bylaw; consequently the statute of limitations will not run in favor of the administrator in such a case until such demand is so .established.

      •Appeal from Ste. Genevieve Circuit Court.

    The facts sufficiently appear in the opinion of the court.

      Young, for appellant.

      Frissell, for respondent.
   LEONARD, Judge,

delivered the opinion of the court.

The plaintiff commenced his suit originally on the 26th August, 1839, and, having suffered a non-suit, brought the present action within the year, so that it may be considered, in reference to the statute of limitations, as commenced on that day. The beneficiary in it is Zeigler, administrator of Morrison, who, in his lifetime, recovered a judgment in the Ste. Genevieve Circuit Court, in November, 1829, against Madame St. Gemme, as administratrix of her late husband ; and this judgment was afterwards, in April, 1830, exhibited in the County Court of Ste. Genevieve county, and there allowed and placed in its proper- class for payment out of the assets of the estate. The present suit is against Lecompte, as administrator of Madame St. Gemme, upon her administration bond to the governor; and the petition, after suggesting the recovery and allowance of the debt against the estate, and that certain slaves of the estate came to her hands to be administered, which she had appropriated to her own use and died possessed of, charges substantially, as the breach of duty complained of, that she omitted to pay the debts of the deceased, as far as the assets in her hands extended. Upon a trial by the court, the facts found are, that Madame St. Gemme, on the 2d day of September, 1828, applied to the Ste. Genevieve County Court for leave to retain certain slaves out of the inventory of her husband’s estate (where she had placed them), on the ground that they belonged to her .under a marriage contract with her late husband, and that the court made the order accordingly, and that she ever afterwards, down to her death, openly claimed the ownership of them ; and thereupon the court decided that the plaintiffs’ cause of action accrued at tbe time of this open claim of ownership, and that ten years having elapsed afterwards and before the commencement of the suit, it was bound by the statute of limitations, and the propriety of this decision is the question here for our determination.

Although an administrator’s bond is given to the state or the governor, and must therefore be sued upon in the name of the formal party, it is substantially a bond to all who are legally interested in the proper discharge of the official duties it is intended to secure; and a suit upon it, for the use of any one, is substantially the suit of the beneficiary, and so treated by the courts. Hence, in the State, to the use of Menard, against Pratte, (8 Mo. 286,) upon an administrator’s bond, it was holden, that the plaintiff’s^ cause of action was bound by the lapse of ten years, notwithstanding the principle that the statute does not run against the State, on the ground that it was the suit of the beneficiary and not of the State. Again, in such a suit, it is not sufficient for the beneficiary to stop short upon showing some act of the administrator amounting to a breach of official duty ; but he must go further, and show some legal right in himself affected by this alleged misconduct; otherwise he can not recover.

It is a settled principle in the construction of the statute of limitations, that the statute does not begin to run until there be persons in being callable of suing and being sued, according to the maxim of the Roman law, “ contra non volentem agere non currit prescriptioUpon this principle, it was decided in Murray v. The East India Co., (5 Barn & Ald. 204,) that the statute did not begin to run against an obligation for the payment of money falling due after the death of the payee, until administration was granted; and so when the debtor dies before the debt falls due, the same rule applies; and in Montgomery v. Hernandez, (12 Wheat. 129, 2 Mart. 422,) the proceeds of a ship and cargo, in the hands of the the marshal, were ordered, by a decree in admiralty, to be restored to a party, and an appeal having been taken from this order to the Supreme Court, it was decided that the cause of action against the marshal and his securities, upon his official bond, to recover this money, did not accrue to the party, within the meaning of the statute, during the pendency of the appeal.

With these elementary principles for our guide, the question now before us may be settled. We think the present plaintiff had no fight to sue on this administration bond until his debt had been allowed against the assets in one or other of the modes then prescribed by law, either by a judgment against the administrator in a court of record, or by an allowance of the demand in the proper probate court. (R. C. 1825, tit. “Administration,” sec. 52.) The judgment here against the estate was obtained in November, 1829, after the passage of the act of December 30, 1826, prohibiting the allowance of an execution upon such a judgment; and this judgment, we think, was necessary to clothe the plaintiff with the character of creditor of the assets, and to give him a legal right to sue for any waste of them by the administrator, and to recover the damages sustained by him in consequence thereof. Although the waste complained of may have been committed before the recovery of the judgment, the present plaintiff had no right to sue on account of it until his legal interest in the assets had been established in one or the other of the modes prescribed by law for that purpose. Until this was done, the administrator was not bound to apply the assets to the payment of the alleged debt, and it would seem, therefore, to follow, as a necessary consequence, that the creditor could not sue for the waste of assets in which he had not yet established any interest, and in this way be allowed to recover money out of a bond given as security for them, when the claim, upon being duly presented for judgment or allowance against the estate, might be finally rejected. It may be that other creditors have permitted their right to sue on the bond for this breach of duty to be barred by the statute; but as the present plaintiff, under the view we have taken of the law, had no right to his present suit until his claim against the estate had been established by the judgment of November, 1829, against the administrator, and as ten years from that time had not ela.psed at the commencement of the first suit, he is not concluded by the lapse of lime. The lower court, however, fixing its attention, it would seem, exclusively upon the consideration of the question as to the time at which the cause of action accrued against the defendant, overlooked, in the hurry of the trial, the question as to the time at which it accrued to the plaintiff, and in this manner fell, we suppose, into the error suggested. The question decided by the Circuit Court need not, according to our view of the law, be determined in the present case, and we therefore decline expressing any opinion upon it. It is a question not free from difficulty, and it is left open for future decision, wholly untouched by the present opinion.

Judge Hyland concurring,

the judgment is reversed, and the cause remanded for further proceedings.


author: Rylaud, Judge,

text:
    Ritter, et al., Respondents, v. Steamboat Jamestown, Appellant.
    1. A sale on execution in the state of Louisiana of a steamboat, under a proceeding instituted in that state against the boat and the owner thereof, in which judgment is given against the owner, with privilege on the said steamboat, the said execution being a personal writ against the said owner, commanding the sheriff to demand the amount of the judgment of the owner, and upon his failure to pay to cause the same to be made out of his present property, &c., does not divest the said steamboat of liens previously acquired under the laws of this state.

      Appeal from St. Louis Circuit Court.

      T. Polk, for appellant.
    The Circuit Court erred in the first instruction it gave to the jury. The proceedings in the District Court of New Orleans, and the sale by the sheriff, in pursuance thereof,'to Carson & Brooks, were effectual to pass the title of the steamboat Jamestown to the said C. & B., discharged of the lien of the respondent’s demand. They were in the nature, and had the effect, of a proceeding in rem in admiralty. (Einneys v. Steamboat Fayette, 10 Mo. 612 ; Steamboat Raritan v. Smith, 10 Mo. 527; Watts v. The Royal Saxon, Am. L. Jour., vol. 2, No. 6, p. 324 ; Civil Code of La., vol. 2, p. 486, § 3, arts. 3204, 3205, 3206-7-8-9-10-11-12-13-14-15; Code of Prae. of La., art. 201, 202, p. 284-5, 289, 293, 269.)

      J. JR. & T. Barret, for respondent.
    The proceeding in Louisiana not being a proceeding in. rem, it' amounts to nothing more than an attachment to secure the debt; and a sale under an attachment does not pass the title divested of liens. (S. B. Sea Bird y. Beehler, 12 Mo. 569 ; 1 Conklin’s Admiralty, 492, 494 ; Story’s Conf. Laws, 402, 592 ; 5 La. 295.)
   Rylaud, Judge,

delivered the opinion of the court.

This is a proceeding, under the act of this state concerning boats and vessels, against the steamboat Jamestown, for furnishing said boat with provisions, stores and supplies, to the amount of three hundred and ninety-four dollars and six cents. These provisions were alleged to have been furnished said boat on account of Capt. Dodge, who was then captain of said boat; they were furnished for the use of the boat; that the boat was then used in navigating the waters of this state. The petitioners allege that their cause of action against said boat accrued within six months next preceding the suit, and that the boat has entirely failed to pay for the same. Wherefore they ask judgment against said boat for the said sum of money above mentioned.

The steamboat Jamestown was seized, and the master execu - ted bond with security, which was approved, and the boat discharged from further detention. The owners of the boat filed their answer, requiring the petitioner to make proof of their cause of action. They also set up as a defence that the boat had been sold in the state of Louisiana, under a process in the courts of that state, enforcing a lien for a privileged debt; that they became the purchasers at the sale in New Orleans, and that by such sale the boat was discharged from all liens thereon, and an absolute title to said boat became vested in them. They aver that the demand of the plaintiffs existed prior to 2d day of December, 1851, that being the date of the commencement of the proceedings against the boat in New Orleans, under which she was sold and bought by these owners, discharged from all liens, as they contend. There was a trial by jury, and verdict for plaintiffs. The defendant moved for a new trial, which being overruled, they bring the case here by appeal.

The bill of exceptions states that the plaintiffs introduced evidence making a prima facie case. The defendant gave in evidence various portions of the civil code of Louisiana ; also portions of the code of practice of Louisiana ; also exemplification of record of the Second District Court of New Orleans, Louisiana, of the case of Henry Dietrich v. Steamboat Jamestown, captain and owners ; also proved the bill of sale for the boat made by the sheriff of New Orleans to the owners here defending, and read the same to the jury. The court gave the following instruction : “ The jury are instructed that the proceedings in the District Court of Louisiana, set forth in the answer, which resulted in a sale of the boat to Carson & Brooks, and as given in evidence by the defendant, were not effectual to divest any claim or lien which the plaintiffs may have against said boat under the laws of this state.” The defendant objected and excepted to the giving of this instruction. As this instruction raises the question of most importance, and as there are no serious objections to the other instructions given, I have not noticed them. The main question is, did the Sale of the boat, in the manner and mode as is set forth in the exemplification of the proceedings in the District Court of New Orleans, state of Louisiana, in the case of the Dietrich v. The steamboat Jamestown, captain and owners, have the legal effect to pass the title of the boat to the purchasers at that sale, free and divested of all prior liens against the boat ? The Circuit Court held that the sale did not have the effect to discharge the boat of prior liens, and that, in this case, she was liable to the plaintiff’s action.

This question is the same substantially as was decided by this court in the case of the Steamboat Sea Bird v. Beehler. (22 Mo. 509.) In looking into the record of the case from the District Court of New Orleans, it is clear that it was not a case of admiralty proceeding. It was not a case against the boat above, but was against the boat, the captain and owners. It was not a proceeding in rem, strictly speaking. The petition in that case begins by stating, “that Egbert Dodge, of Alton, state of Illinois, captain and owner of the steamboat Jamestown, and the said steamboat Jamestown, a vessel, &c., are justly indebted to the petitioner,” &c., and prays for judgment “ against said Dodge and the steamboat Jamestown, with privilege of clerk and one of the crew of said steamboat Jamestown, and for general relief, to be paid by privilege and preference from the proceeds of said boat.”' Captain Dodge appears in court and makes answer for himself and boat, confessing the allegations in the petition, and says nothing why judgment should not be rendered against him and the boat. The petition is filed on the 2d day of December, 1851; the answer is made the same day ; judgment is given for the plaintiff on the same day. This is a personal judgment against Egbert Dodge, with the privilege on the steamboat Jamestown or her proceeds. There is a long list of intervenors, in whose favor against the defendant, Dodge, judgments are rendered, with the privilege against the proceeds of the sale of the steamboat Jamestown. The execution on the judgment against Dodge, in favor of Dietrich, was a personal writ against said Dodge. It commanded the sheriff to demand the amount of the judgment of the said Egbert Dodge, and if he shall not pay the same, after legal demand, that then you cause the same to be made out of the personal estate of said Dodge, except slaves ; in case he has not personal estate exclusive of slaves, then to make tbe same out of Ms real estate and slaves. TMs sale, then, under the view taken by the court in the case of the Sea Bird v. Beehler, is not like a proceeding in admiralty against a vessel — a proceeding in rem alone, by which all the world are bound — but rather like our own proceeding in attachment, in which the property attached and sold still remains under the liens theretofore on it.

In the case of Raritan v. Smith, (10 Mo. 527, and Finney et al. v. Steamboat Fayette, 10 Mo. 612,) the proceedings were against the boat — were in rem — and a judicial sale, in such proceedings, passed the boat to the purchaser, discharged from all liens 'created by law. These cases were noticed and approved in the' case of the Sea Bird v. Beehler. There is nothing inconsistent in the opinions delivered in these cases. In the case of the. Sea Bird, the proceedings were not alone against the boat; they were not in rem; they were against the boat and the owners of the boat. They were not such proceedings as admiralty courts use against vessels, and therefore not to be controlled by the rules of such courts. In the case now before us, the judgment is a personal one against Dodge, after his appearance and answer confessing the allegations in the petition of the plaintiff. There is a mixture of proceedings. One part is personal; the judgment and execution, the petition and answer, are all based upon the personal liability of Dodge as well as of the boat. The permission of intervenors and their judgments, and the distribution of the proceeds of the sale among the creditors, partake of the nature of proceedings in rem in admiralty. But yet we can not say that this is a proceeding in rem. The judgment, in this case, would support an action against Dodge in another jurisdiction. It can not be construed, therefore, to be alone a judgment in rem. A sale under it will not free the boat from prior specific liens under our boat law. I suppose a suit against the owner of a boat, with privilege against the boat, under the laws of Louisiana, to have no more effect than a suit here against the owner, with an attachment against the boat. If the privilege against the boat have the effect of a proceeding in admiralty in rem, then the defendants should have made that appear before us. We consider this case fully within the case of the Sea Bird v. Beehler. The judgment must therefore be affirmed;

the other judges concurring.-


text:
    The Pacific Railroad v. The Governor.

    1..Under an application for a mandamus to the governor, requiring him to issue the bonds of the state to arailroad company under a law alleged by him to have been passed by the general assembly over his veto without the observance of the forms prescribed by the constitution, a majority of the court concurred in sustaining jurisdiction of the application, and passing upon the validity of the law, reserving the question of power to mandamus the governor for the final hearing upon the return to a conditional writ. (Judge Leonard dissenting.)
    2. The validity of an enrolled statute, authenticated in the manner pointed out by law, by the certificate of the presiding officers of the two houses of assembly that it passed over the governor’s veto by the constitutional majority, can not be impeached by the journals showing a departure from the forms prescribed by the constitution in the reconsideration of the bill.
    Application for a mandamus to Sterling Price, governor of the state of Missouri, requiring him to deliver to the Pacific Railroad Company eight hundred bonds of the state, under an act entitled “ An act to secure the completion of certain railroads in this state,” passed over the governor’s veto on the 10th of December, 1855. The governor refused to issue the bonds on the ground that the law was unconstitutionally passed. An ag'reed case was made, the substance of which is stated in the opinion of the court. The act referred to was deposited with the laws in the office of the secretary of state, authenticated in the manner pointed out by the first section of the second article of the act concerning laws (R. C. 1845). The matter was argued by T. T. Gantt and H. R. Gamble on behalf of the Railroad, and by Mr. Gardenhire, attorney general, on behalf of the governor.
    Mr. Gamble argued the following points :
    I. This court has jurisdiction of every application for a mandamus, although it may refuse to issue the writ where the applicant has no legal interest in the performance of the duty, or has another adequate remedy against the officer, or the officer has a discretion in relation to the duty to be performed. The power to issue the writ to the governor is not to be denied because he is an officer of the executive department of the government, nor because his office is established by the constitution. (Marbury v. Madison, 1 Cranch.) The argument of the attorney general, in .the case of Stockton and others v. Kendall, (12 Pet.) conceded that any officer, even the president, might be obliged, by mandamus, to perform an act purely ministerial.)
    II. The act in question is so presented to the court in the agreed case, with the signatures of the officers of the assembly, that it can not be questioned ; and the journals are not to be referred to for the purpose of impeaching it. (Upon this point, the counsel argued that, in the absence of any constitutional provision on the subject, it was competent for the legislature to prescribe what should be conclusive evidence that á law was constitutionally passed over the governor’s veto, and that this was done by the first section of the second article of the act concerning laws (R. C. 1845). He referred to Story on the Constitution, § 839, 840, as to the purpose for which journals are kept. lie also commented upon the cases cited from 23 Wend. 103 ; 2 Hill, 31; 4 Hill, 484; 1 Denio, 14 ; and Gif-ford v. Livingston, 2 Denio ; and concluded that in none of them was it distinctly settled that an act can be impeached by the journals.)
    III. If the journals are examined, they will show no departure from the provisions of the constitution affecting the validity of the act.
    Mr. Gantt stated the points argued by him, as follows :

      I. In determining the validity of the act, the court can not look behind the enrolled bill, which is a record of the most absolute kind.
    II. The provision of the constitution supposed to have been disregarded, is one which prescribes a merely formal mode of proceeding and is directory only.
    III. If the observance of the provision be nevertheless important, it will be seen by looking into the journal that it has been observed.
    Mr. Gardenhire argued the following points :
    I. The enrolled bill and the certificate endorsed thereon, signed by the speaker of the house and the president of the senate, is not conclusive evidence that the constitutional requisites have been observed. (State v. McBride, 4 Mo. 303 ; 1 Kent, p. 500, note ; 14 Ills. 300; 23 Wend. 103, 104, 163 ; 2 Hill, 31; 4 Hill, 384, 390; 2 Stephen’s Comm. 403 ; Dwarris on Stat. 31; 1 Greenl. Ev. § 482; 1 Bouvier’s Law Die. 6T4 ; T Cow. 613.) The constitution provides a mode of authenticating a bill passed over the governor’s objections, by requiring the yeas and nays to be entered upon the journals, with the governor’s objections. This is the constitutional substitute for the governor’s signature, and the journals are the first, the original records of it, and it is not in the power of the legislature to change the constitutional mode of authenticating a law.
    II. It was necessary to enter the governor’s objections upon the journals of both houses.
    III. The bill under consideration was not passed in the manner prescribed by the constitution, and it is not a law of the land.

       This case was prepared for the press by Mr. Samuel A. Bennett, former Reporter.

   Scott, Judge,

delivered the opinion of the court.

On the 10th day of December, 1855, an act entitled “An act to secure the completion of certain railroads in this state” was passed by the general assembly, the governor’s objections to the contrary notwithstanding. This act was authenticated pursuant to tbe constitution and laws, and was deposited by tbe governor in the office of tbe secretary of state. It is agreed between tbe parties to this proceeding, that, according to tbe provisions of this act, if it is binding as a law, tbe Pacific Railroad Company became entitled, upon tbe performance of certain conditions therein mentioned, to have and demand from tbe governor of tbe state of Missouri, eight hundred state bonds, each for tbe sum of one thousand dollars, payable thirty years after date. It is also admitted that tbe said company has performed tbe conditions prescribed by tbe law, and did, on tbe 17th day of January, 1856, demand of tbe governor tbe said state bonds, and that tbe governor refused to issue them, alleging as a reason for such refusal, that the proceedings of tbe general assembly, after tbe return of said bill by him with bis objections thereto, were not in conformity to the constitution, and especially to tbe requirements of tbe 10th section of tbe 4th article of that instrument.

Extracting from tbe agreed case tbe substance of so much of tbe journals as shows wherein consisted the alleged irregularity in reconsidering tbe bill, after its return with tbe governor’s objections, it appears that the bill was sent to the governor on tbe 4th day of December, 1855, for his approval; on tbe 10th day of that month, it was returned to tbe senate (tbe bouse in which it originated) by tbe governor with his objections, which were spread upon the journal of that day, and ordered to be printed. Tbe bill was reconsidered on tbe same day and passed by tbe majority required by tbe constitution, its passage being evidenced by tbe names of those voting for and against it being spread upon tbe journal. After having passed tbe senate, the bill, together with tbe governor’s message, was, on motion, ordered to be sent to the bouse of representatives. On tbe same day that tbe bill passed the senate, tbe fact of its passage by that body was communicated to tbe bouse of representatives', and it was immediately taken up for consideration, and after an unsuccessful motion to defer its reconsideration until tbe following day, and after dispensing with tbe reading of the governor’s objections, it passed by the requisite majority — the ayes and nays for and against the bill being, spread upon the journal. On the 12th of December, on motion, the governor’s objections to the bill were spread upon the journal of the house of representatives ; and on the 18th day of December, the senate journal was, on motion, so amended as to make it appear that on the day on which the bill passed the senate, it was ordered that the bill and message of the governor be sent to the house of representatives. It was further agreed that the admissions made on the part of the governor were made because the duties required by said bill are not poli: tical duties appertaining to his office of chief magistrate, but duties created by said bill, which he was willing to perform, if said bill be a law; in which event there shall be no necessity for the actual emanation of the writ of mandamus, the governor being only desirous to know whether the said law be constitutional or not. The foregoing are substantially the facts on which the mandamus is prayed, requiring the governor to issue the bonds demanded by the Pacific Railroad Company.

This application involves several novel and very important questions. But it has been intimated that the matter first to be determined is whether a mandamus can issue to the chief executive officer of the state, requiring him to do any act; and that in the event the opinion should be entertained that a mandamus can not issue to the governor, then the judgment of this court, on the other questions involved in the case, would be extrajudicial, and should not be expressed.

We know no rule or principle of law which prescribes the order in which the matters of law involved in a controversy of which a court has jurisdiction, shall be considered. If a question is fairly involved in a controversy, and it is so presented by the parties to it that its determination would settle the litigation, it would be unusual for the court to evade the question presented, and rid itself of the controversy by an opinion that would leave the legislation between the parties undetermined, to be again renewed. This is a matter of prudence and discretion, in the exercise of which courts will be governed by circumstances. By the constitution of this state the supreme court has power to issue writs of mandamus, and to hear and determine the same. To the delegation of this power there is no exception. The jurisdiction conferred extends to all writs of mandamus, without any limitation whatever, and without any regard to the oficial rank or condition of the party. The jurisdiction granted, it is supposed, is to be exercised as jurisdiction is exercised in all other cases. When a court has a general jurisdiction over a subject, and a case arises for the exercise of that jurisdiction, the most appropriate course is to issue the writ to bring the party before it, and then to hear and determine the question whether the case made is a proper one for the remedy sought. That the exception is to the jurisdiction of the person makes no difference. That exception, when the court has jurisdiction of the subject matter of the suit, is to be taken and determined like all others, after the return of the writ. It is erroneous to say that the court has no jurisdiction to issue a mandamus to the governor. The court has power to issue the writ, and after a return to it, will determine whether that officer is subject to it or not. If the conclusion is attained that the case is not a proper one for a mandamus, that is not a denial of the jurisdiction to hear and determine the cause, but a determination of the controversy in favor of the party claiming an exemption' from the operation of the writ. Applications for a writ of mandamus may be based on such grounds as would, at the first blush, satisfy a court that it could not be sustained. Under such circumstances, it might, for the sake of expedition, be refused on the ground stated by the petitioner. This would be no denial of the jurisdiction of the court. As the court can issue the writ in cases of any doubt or importance, an order is made, as a matter of course, on the party to whom the writ is prayed, requiring him to show cause why he should not be required to do the act whose performance is sought to be coerced by the petitioner, and, on his return made to this order, all the questions involved in the case aré determined. In the case of Low v. Governor Towns, (8 Georgia, 365,) a mandamus was applied for to the governor. An order was made and served, requiring him to show cause why a peremptory writ should not go ; the governor appeared in obedience to the rule, and, upon his showing cause, the court held that for political reasons the chief magistrate of the state could not, by mandamus, be compelled to perform even a mere ministerial act; yet an opinion was expressed in relation to the matter in controversy between the parties. In the case of Taylor v. The Governor, (1 Ark. 21,) on an application for a writ of mandamus to the governor, the court, without determining the question whether a mandamus can be awarded to the chief magistrate of a state, gave an opinion on the merits of the controversy, and refused the writ. In the case of Marbury v. Madison, (1 Cranch, 50,) the supreme court of the United States granted a rule on the secretary of state, to show cause why a mandamus should not issue directing him to deliver a commission. The court heard the cause, expressed the opinion that the petitioner was entitled to his commission, and afterwards refused to issue a peremptory mandamus on the ground that the law conferring jurisdiction on the supreme court to issue writs of mandamus to public officers, was not warranted by the constitution. This was done by Chief Justice Marshall. If, by the law of the land, a writ of mandamus can not issue to the chief magistrate of the state, we do not maintain that he can waive this exemption. ' The rule, qui libet potest renunciare juri pro se introducto, is not applicable to the case. The question, whether a governor of a state can, by a mandamus, be compelled to perform a mere ministerial act imposed on him by law, has been discussed in the courts of some of the states of the Union, and has undergone seme contrariety of determination. In the case of Bonner v. Pitts, (7 Georgia, 473,) it was the opinion of the court that a writ of mandamus might be issued to the governor of a state, requiring him to do a ministerial act. 'In the case of Taylor v. The Governor, (1 Ark. 21,) the question was left-undetermined. In the argument of the case of Stokes v. Kendall, (12 Pet. 524,) the attorney general o£ tbe United States, though appearing on behalf of the officer to whom the writ of mandamus was prayed, conceded that such a writ might be issued against the President of the United States to compel him to perform a duty merely ministerial — an admission entitled to some weight, when we take into consideration the officer by whom and the circumstances under which it was made. On the other hand, in the case of Low v. Governor Towns, (8 Georgia, 361,) we have seen that it was held that a writ of mandamus could not be issued to the chief magistrate of a state. The like doctrine was maintained in the case of Hankins v. the Governor, (1 Ark. 570,) and the court, in that case, refused to express any opinion on the matter in controversy, departing from the course that was pursued by the same court, in the case of Taylor v. the Governor, to which reference has already been made. (Story on the Constitution, vol. 2, § 1569.)

In the discussion of the question whether the chief magistrate of a state is subject to the writ of mandamus, the distinction between acts purely ministerial, about which he has no discretion, but is required by law to do them, and those in the performance of which his discretion or judgment is to be exercised, is constantly taken. The performance of one class of these duties, it is maintained, may be enforced by a mandamus, whilst the other, it is conceded on all hands, is of such a character that its performance can not be compelled by the courts. In order, then, to a full investigation of the question whether the writ can issue to the governor, it is necessary to look into the law to ascertain the nature of the duties enjoined, preliminary to which the question would naturally arise whether the law was constitutional. It may be urged that the question may be considered whether the writ of mandamus will, in any case, be issued to the governor, and if it should be determined that it can not be done, then there is an end of this controversy, so far as this court is concerned. In addition to the considerations heretofore addressed to this view of the subject, it may be remarked that this is a real controversy between the parties to this proceeding. A large portion of the people feel a deep interest in the execution of a law, which they believe is not only essential to prevent a great sacrifice of capital already invested, but is ultimately connected with the improvement and permanent welfare of the state. A question arises whether that law is constitutional or not. An officer entrusted with the execution of that law entertains doubts whether it has passed in conformity to the requirements of the constitution, and seeks to have those doubts removed by the tribunal appointed, in the last resort, to ascertain and determine the meaning of the constitution and laws. In the proceeding instituted for that purpose, the constitutionality of the law is clearly involved, and it may be a question necessary to be determined in order to the settlement of this controversy. There are other questions involved, the determination of which, in a particular way, while it would end this suit, would not determine the matter in dispute. Under such circumstances, how much soever we may sympathize with those who were opposed to the passage of the law, we do feel that we would not have discharged the duty imposed on us, were we to select one of the questions involved, which, if determined in a particular way, would relieve us from the responsibility of settling the point in controversy. If, by such a course, this act should fail of being executed, no step has fallen under our observation so well calculated to inspire distrust in our institutions and laws. This court ordinarily, without hesitation, decides questions which are not necessary to be. determined in order to dispose of a suit, but which are required to be settled in order to adjust finally the matter in litigation between the parties.

The question involved in this case, about which our opinion alone is sought, is presented in such a way by the argument of parties, as to render it unnecessary to decide whether a mandamus can issue to the chief executive, requiring him to do any act. Nor do we determine it, or preclude him from insisting on his exemption from it. We will express an opinion in relation to the point submitted for our judgment, and will so shape our course that the governor will, so far as our action is concerned, be entirely at liberty to raise the question of his liability to be coerced by a writ of mandamus, and have it judicially determined — a question about which we express no opinion, especially as it has not been argued on the part of the executive. After offering the foregoing considerations in vindication of the course which a sense of duty requires us to pursue on this occasion, we will proceed to consider the question which this application submits for our judgment.

Whilst the power of the courts to declare a law unconstitutional is admitted on all hands as being necessary to preserve the constitution from violation, yet such a power is claimed and exercised in relation to laws which on their face show that the constitutional limits have been transcended. The reason of this principle limits the claim of jurisdiction to such cases. The constitution is designed to limit the powers of the government, and to confine each of the departments to its appropriate sphere. If the legislature exceed its powers in the enactment of a law, the courts being sworn to support the constitution, must judge that law by the standard of the constitution, and declare its validity. But the question, whether a law on its face violates the constitution, is very different from that growing out of the non-compliance with the forms required to be observed in its enactment. In the one case, a power is exercised, not delegated, or'which is prohibited, and the question of the validity of the law is determined from the language of it. In the other, the law is not, in its terms, contrary to the constitution ; on its face it is regular, but resort is had to something behind the law itself in order to ascertain whether the general assembly, in making the law, was governed by the rules prescribed for its action by the constitution. This would seem like an inquisition into the conduct of the members of the general assembly, and it must be seen at once that it is a very delicate power, the frequent exercise of which must lead to endless confusion in the administration of the law. This inquiry may be extended to good as well as to bad laws — to those passed as well with the approval of the governor, as to those which are passed his objections to the contrary notwithstanding ; for it is clear that, if a law passed over the objections of the governor may be impeached by inquiring whether the forms of the constitution were observed in its enactment, the same inquiry may be instituted in relation to laws passed with his sanction ; and thus statutes, constitutional on their face, regular in their terms, which may have been the rules of action for years, and under which large amounts of property have been vested, and numerous titles taken, may be abrogated and declared void. A principle with such a consequence should be supported by a weight of authority which no court can resist. When we reflect on the manner in which the journals are made up, and the rank of the officers to which that duty is entrusted, how startling must the proposition be that all our statute laws depend for their validity on the journals of the two houses of the general assembly showing that all the forms required by the constitution to be observed in their enactment have been complied with. The required forms may be observed, and the clerks may fail to make the necessary or correct entry. If the journals had been designed as the evidence in the last resort that the laws were constitutionally passed, would not some method have been adopted by which greater care would have been exacted in entering the proceedings of the two houses ? Would the task of making them have been entrusted to a single clerk, with a power in the houses to dispense with their reading, even should there be a rule requiring them to be read — a matter, however, about which the constitution and laws are silent ? In that country from which we borrow so many of our ideas respecting government and laws, and whose common law and early statutes constitute the substratum of all our systems of jurisprudence, the statute roll is the only and the exclusive evidence of what the statute law is, so long as it is in existence. Then it is maintained that, if the journal were every way full and perfect, yet it hath no power to satisfy, destroy or weaken the act, which, being a high record, must be tried only by itself — teste meipso.- “ Journals are no records, but remembrances for forms of proceedings to the record; they are not of necessity, nor have they always been. They are like the dockets of the prothonotaries, or the particulars to the king’s patent. The journal is of good use for the observation of the generality and materiality of proceedings and deliberations, as to the three readings of any bill, the intercourses between the two houses, and the like ; but when the act is passed the journal is expired.” (Hobart, 110.) “ The judges ought to take notice of a general law, for they are to determine whether it be a statute or not, and therefore a man can not plead mil tiel record to it. It shall not be proved by a journal.” (Hale’s History, 13.) Numerous authorities might be cited of the same purport.

So it appears that by the common law the statute roll was the absolute and conclusive proof of a statute. This record could not be contradicted. It implied absolute verity. There was no plea by which the existence of a statute could be put in issue. Under this state of the law our constitution was adopted. That instrument provides that every bill, having passed both houses, shall be signed by the speaker of the house of representatives and by the president of the senate. This is the mode adopted for the authentication of every bill, and furnishes the evidence of its passage by the two houses in the first instance. The governor’s signature to a bill is not required as a means or part of its authentication, but as evidence of his approval. The governor being no member of either house, and in contemplation of the constitution not being present during their deliberations, could not know whether a bill had passed the two houses or not. The constitution itself contemplated that there might be laws without the signature of the governor, and therefore the mode of authentication adopted was the evidence of the passage of all bills, in the first instance, by the two houses, as well those passed with his approbation as those passed against his consent. Now, looking at the matter by the light of reason alone, is not tbe evidence furnished by the roll that the bill has passed the two houses, stronger and more conclusive to the mind than that furnished by the journal ? The constitution does not expressly require a journal to be kept, though it evidently contemplates that there would be one. But it nowhere provides how the journal shall be authenticated. It does not require that it shall be signed by any one, not even a clerk. It is not required to be read or examined. Now, is not the evidence furnished by the bill, authenticated in the manner prescribed by the constitution, with the signatures of the highest officers of the two houses, more conclusive to the mind than the unauthenticated journals kept by the two houses ? But on what principle is a resort had to the journals to impeach the validity of a law ? It could not be done at common law ; there is nothing in the constitution which authorizes any such resort even by implication. There is no statute law which sanctions such a course. Where, then, is the authority found for going behind the statute roll, and looking into the journals of the two houses, in order to ascertain whether they have conformed their conduct to the constitution in the enactment of the laws ? Greenleaf is cited (§ 491) to show that the journals of either house are the proper evidence of the action of that house upon all matters before it. This is unquestioned law. But it is clear that the author did not mean that the journals, which are not records, are evidence to contradict the most solemn records known to the constitution and laws. In support of the position, reference is made to English authorities. Now those authorities, while they admit the journals are evidence, could never intend that they were evidence to contradict the statute roll; for if any one- thing is better settled in the English law than all others, it is that the statute roll is a record of so high a nature that it imports absolute verity, and can not be contradicted. The case of Root v. King, (7 Cowen, 613,) is also cited by Green-leaf to show that the journals of the houses of assembly are evidence ; but a reference to that case shows that the point, whether they are evidence to contradict the statute roll, was never thought of or considered. Documents may be evidence for one purpose, but not for another. The oath of a competent witness is evidence; but because it is evidence, is it therefore to be received to contradict a solemn record? Bat it is said that courts have the undoubted right to declare the laws unconstitutional. No principle is better settled than this. But it has no application to the question under consideration; it has been applied to those cases in which it appears from the face of the law itself — cases in which it was conceded that the forms of the constitution were observed in its enactment. It has not been perverted to the purpose of going behind the statute roll in order to ascertain whether the legislature did not depart from the rules prescribed by the constitution for the government of its conduct in making the laws. In our investigation we have not met with a single case in which the courts have looked behind the statute roll in order to determine whether, in passing a law, the members of the legislature conformed their conduct to the rules directed by the constitution to be observed in framing laws. The case of Spangler v. Jacoby, (14 Illinois, 299,) does not detract from the correctness of this assertion. Nor do the cases of Douglass v. Bank of Missouri, (1 Mo. 23,) and the State v. McBride (4 Mo. 303). The question, how far it is permitted to go behind a statute roll in order to ascertain whether a law has been passed in conformity to the requirements of the constitution, has been considered in the courts of the state' of New York. But the history of the controversy will show that the power assumed in this case was never claimed by one for the courts. By the constitution of the state of New York it is prescribed, “that the assent of two-thirds of the members elected to each branch of the legislature shall be requisite to every bill appropriating the public moneys or property for local or private purposes, or creating, continuing, altering or renewing any body politic or corporate.” If was provided by a law that no bill shall be deemed to have been passed by the assent of two-thirds of the members elected to each house, unless so certified by the presiding officer of each bouse. A statute made it tbe duty of tbe secretary of state to certify and endorse upon every bill tbe day, month, and year when tbe same became a law, and made such certificate conclusive evidence of tbe facts therein declared. Under this provision of tbe constitution and these statutes, tbe general banking law and others, altering tbe charters of bodies politic, were passed ; they passed, however, as ordinary laws, and were not endorsed by tbe presiding officers of the two houses as having passed by a two-thirds vote. Questions arose whether these laws were not within the meaning of the constitution, and therefore should have been passed by a vote of two-thirds of the members of each house. It was held that these laws were not within the provision of tbe constitution requiring a two-thirds vote for their passage, and so a decision of the question, as to their constitutionality, became unnecessary. The extreme claim of those who maintained that the constitutionality of these laws might be inquired into by going behind the certificate of the secretary of state, was limited to the examination, whether the requisite number of votes had been given to pass them. The constitution requiring that the vote of two-thirds of the members should be necessary to pass such laws, it was maintained that the number of votes- by which they had passed was of their essence and vitality, and therefore could be inquired into. Those who maintained this opinion deprecated any further inquiry into the manner in which the general assembly had conducted itself in the enactment of laws, maintaining that the certificate of the secretary of state was conclusive as to all other matters. This is as far as any case which has been shown us has gone. It is the principle of the case of Spangler v. Jacoby, (14 Illinois, 299,) to which reference has been made. It is the principle of the case of the State v. McBride (4 Mo. 23). The case in Illinois seems to be founded on the peculiarity of the constitution of that state. The case of McBride was not a case in which the authenticity of a statute roll was involved, but grew out of the provision in our constitution respecting the mode of making amendments to it, and is deemed inapplicable to the question under consideration, as neither the constitution itself nor any statute prescribed a mode by which they should be authenticated, or declared what should be the evidence of their passage.

IE the principle contended for in this case, and which, to the extent claimed for it, we have found maintained in no other, is sanctioned, then every law may be overturned which is shown by the journals to have been irregularly passed. It is asked, is the constitution to be departed from with impunity, and is there no way to confine the legislature to the observance of the rules of conduct prescribed by the constitution for its government in the enactment of laws ? Our government is administered by means of trusts reposed in agents. Powers are confided to all the departments to be exercised in a mode prescribed by the organic law. The course required to be observed in the performance of an act is not always of its essence or vitality. When an act is directed to be done in a particular way, the direction may be merely mandatory- — that is, it is not of the essence of the act, but the act may stand in law notwithstanding the direction was not strictly observed. This is a familiar principle. Those exercising the powers of the several departments are sworn to support the constitution ; yet if they violate their duty, the exigencies of government require that their acts must be upheld. This is not true of all violations of the constitution, but is particularly applicable to violations of the class of those which are urged against the validity of the law under consideration. We do not mean to say that the general assembly violated its duty in the mode adopted in the reconsideration of the bill which is now before us. All we design to hold is, that there are forms to be observed in the enactment of laws ; that the members of the legislature are sworn to observe those forms ; and yet, if they are violated, the constitution never intended that their acts should be void. The provisions of the constitution alleged to have been violated in the reconsideration of this bill were designed to be directory. The objections urged against the manner of its reconsideration are of such a character that it is impossible to say that if they did not exist the result would have been the same. If the form of spreading the message upon the journal, and reading it in both houses, had been complied with before the bill had been reconsidered, and all the members of both houses had stopped their ears and absolutely refused to hear or be informed of the-nature of the governor’s objections, would not the law still have been binding ? Would not the spirit of the constitution have been violated by such a course, and yet the law be adjudged constitutional ? The same arguments, which show that there must be an inquiry into the regularity of legislative proceedings, are as strong to show that there should be an inquiry into the acts of the other departments. Would it be allowed to inquire whether a judgment pronounced by this court, regular on its face, was not concurred in by the requisite number of judges ? If the minutes of the court showed that a judgment was different from that entered of record, could the minutes be produced in evidence to invalidate the judgment ? The constitution, in requiring the governor to approve a bill, contemplated that the act of approval should be done understanding^ ; that he should be informed of its contents. Now, in order to defeat a law, could it be shown that the governor approved it without knowing any thing whatever in relation to it ? The sense of the words in which the forms to be observed in legislation are prescribed, may be matter of doubt. Different opinions may be entertained as to the meaning of the language in which they are expressed, as well as to the end or object of them. This very case furnishes an illustration of the 1ruth of this remark. The members of the general assembly may conscientiously believe that they have pursued the constitutional course. But to give the executive and judicial departments a right to re-revise this exercise of their judgment, would it not be subjecting the legislature to a surveillance, which, instead of making it a coordinate department, would subject it to a dependence on the others. There is a fitness in making each department the sole judge of the rules prescribed for its conduct; this is necessary to render them coordinate, and not dependent on each other.

It remains to consider an argument drawn from tbe omission in tbe constitntion to provide a mode of authentication for those laws returned by the governor without his signature, and, after reconsideration, passed by both houses. From this omission the argument was advanced that the constitution, failing to provide a mode of authentication for such laws, the journals of the two houses were the only evidence of the passage of them, and from those journals it must appear that the action of the two houses was in conformity to the forms prescribed by the constitution. The constitution having omitted to provide how those laws should be authenticated, it was competent for the legislature to do so. Hence we find- that as early as the year 1820 a statute now in force, in relation to this subject, was passed.

We do not maintain that the legislature can prevent a scrutiny into its acts, which the constitution designed should be made, by any mode of authentication it may adopt. We have endeavored to show that the constitution never contemplated that objections of the character urged against the law, whose validity is now under consideration, should be raised against a bill passed with the approval of the governor. There is no reason why objections of a like character should be raised against a bill passed against his will. As the constitution did not contemplate that such objections should be fatal to the validity of a law, the mode of authenticating bills passed over the objections of the governor, provided by the act of' 1820, and which continues in force to this day, is consistent with the constitution and is-binding and conclusive. As the signatures of the presiding officers of the two houses were the evidence of the passage of a bill in the first instance, nothing was more appropriate than that the certificates of the same officers should be evidence of its passage against the consent of the governor. As their certificate shut out objections against the manner of passing bills in the first instance, it is entirely consistent with the constitution and with reason that a like certificate should silence all objections of alike character taken against the mode of passing it on its reconsideration.

Upon the whole, we are of the opinion that the objections taken against tbe mode of passing this law by tbe general assembly on its reconsideration, are untenable; that tbe constitution and law precludes an inquiry as to the existence of such objections, tbe constitution regarding tbe provisions, alleged to have been violated in the passage of this law, as merely directory, and being so, a departure from them, even if there was a departure, would not render tbe law void. Under tbe circumstances, we will not direct a peremptory writ, but a rule nisi will be made.

(Leonard, J., dissents.)


author: Rylaed, Judge,

text:
    Hornsey & Wife, Appellants, v. Casey, Respondent.
    1. An election, made by a widow under the 3d section of the dower act, (E. C. 1845, p. 430,) to take one half of the real and personal estate belonging to her husband at the time of his death absolutely, will operate as a bar to dower under the.first section of the same act.

      ■Appeal from Washington Circuit Court.

    Tbe facts of this ease sufficiently appear in tbe report of tbe former decision of this writ, contained in 21 Mo. 545.

      T. C. Johnson, for appellant,
    cited Stone v. Stone, 18 Mo. 391; Davies v. Davies, 5 Mo. 189; Lawrence v. Baubier, 2 Bailey’s. Rep. 651; Ex’rs of Hopkins v. Mazyck, 1 Hill Cb. R. 251; Lawdner v. Chisholm, 2 McCord’s Ch. R. 462 ; Lansdown v. Lansdown, 2 Moseley R. 364 ; Hall v. Reid, 2 Barb. Cb. R. 505; Fitzgerald v. Peck, 4 Littel, 127 ; Chaplin v. Layton, 18 Wend. 424 ; Crazier v. Acer, 7 Paige Ch. R. 143 ; Hall v. Hall, 2 McCord, 280 ; Pinckney v. Pinck-ney, 2 Richardson’s Eq. R. 237.

      Frissell, for respondent.
   Rylaed, Judge,

delivered the opinion of the court.

This is the same case reported in 21 Mo. 545. The only remaining question is, whether the election made under a mistake as to her rights may be set aside on a proper application for that purpose. The petition was amended, after the case was reversed and sent back, by adding an averment that Casey, the purchaser, took with knowledge of all the facts charged in relation to the sale of the real estate, &c. To this,amended petition defendant demurred. Judgment was rendered thereon for defendant.

This case is subject to the same law as before laid down in regard to it. The only question now is, whether Mrs. Horn-sey can be relieved against her election, and be allowed now to take dower under the first section of the dower law. In our opinion, the plaintiffs, Hornsey and wife, have no such right; they are not entitled to be thus relieved. They deliberately made their election by deed ; they were not content to take dower under the first section ; they wanted more and a larger estate ; now when they find themselves disappointed, they wish to take only what they at first rejected. They have shown themselves entitled to no such relief.

In the petition they have not pretended that they were deceived ; they have stated no fact constituting a mistake ; they were not misled by any false or deceptive statements ; they knew the differences in regard to dower under the first section and under the third section, or they would not have made their election by deed. The judgment must therefore be affirmed ;

Judge Leonard concurring. (Soott, Judge, dissenting.)


author: Scott, Judge, LEONARD, Judge.

text:
    Logan’s Adm’r, Appellant, v. Caldwell, Respondent.
    1. A deed of conveyance of a tract of land, executed by A., contained the following reservation: “The said A. reserves the use of said tract of land and farm thereon, or the rents and profits arising from it, during his life and the life of his wife.” Held, that this reservation created no interest in the wife, and that the personal representatives of A. and not of his wife, would be entitled to money becoming due for the use and occupation of the premises by A.’s grantee after the death of A. and before that of his wife. , (Leonard, J., dissenting, holding that, upon the death of the husband, the interest created by the reservation, being a freehold interest, passed to the heir, and not to the administrator.)

      Appeal from Perry Circuit Court.

    This was a suit instituted by the administrator of John Logan bo recover rent claimed to have become due under the reservation contained in a deed from John Logan to the defendant, Caldwell. It appears by the finding of the court that defendant Caldwell had paid for the use and occupation of the promises up to the death of Logan. The court decided that the defendant was “not responsible to the plaintiff, the administrator of Logan, for any rent accruing after the death of Logan, the same belonging to Rosannah W. Logan, the widow of Logan, she having survived him.” Judgment was accordingly given for defendant. Plaintiff appealed.
    Frissell, for appellant.

      JYoell, for respondent.
    I. After the death of John Logan the rents reserved in that deed were reserved for the benefit of his wife Rosannah W. Logan, and the administrators of John Logan have no right to recover the same. Such was the plain intention of the parties as appears from the face of the deed, and that intention, when executed, will be carried into effect. (Perry v. Craig, 3 Mo. 360 ; Gathwright v. Calloway county, 10 Mo. 663; Com. Dig. 23.)
    II. The rent claimed in this case having accrued after the death of plaintiff’s intestate, does not accrue to him as administrator, even should the deed warrant the construction claimed by his counsel. If any right of action exists, it is in the heirs and not the administrator. (Bacon’s Abr. tit. Rent, 348-9.)
   Scott, Judge,

delivered the opinion of the court.

John Logan conveyed a tract of land to the defendant, Caldwell, in fee, with the following clause, by way of exception or reservation, viz: “ With this exception, that said John Logan reserves the use of said tract of land and farm thereon, or the rents and profits arising from it, during his life and the life of his wifeJohn Logan’s wife survived him, and the question is, whether this clause gives the rents and profits accruing after his death to his wife.

We see nothing in the language used which can by any implication create any estate or interest in the wife. If the reservation had been during the life of the wife alone, would she have taken any interest ? Can the circumstance that it is made during the joint lives of herself and husband vary the effect of it ? If a landlord reserves a rent in a lease to B. during the life of 0., does that, by any implication, entitle C. to the rent? We see no difference between that case and the present one. There is nothing in the relationship between husband and wife which can make a difference.

It was insisted for the defendant that the administrator of John Logan had no right to sue for the rent; that if any right of action existed, it was in his heirs and not in his administrator. We do not consider that the clause in the deed that has given rise to this controversy, created the relation of landlord and tenant between John Logan and the defendant. A rent, strictly speaking, must be certain, or that which may be made certain. Here, there is no reservation of any thing certain. The entry of the defendant under the deed impliedly raised on his part a promise to pay for the use and occupation of the land.' That promise to Logan was transmissible to his personal representatives. Judge Ryland concurring, the judgment will be reversed, and the cause remanded.

LEONARD, Judge.

The reservation here, I think, is to the husband during the joint lives of himself and wife, and the wife, therefore, took no interest, although it is very probable the husband meant otherwise. Upon the husband’s death this was an estate pur atiter vie, and, being a freehold interest, did not vest in the administrator, so as to entitle him to sue for the use and occupation had after the husband’s death. (4 Kent Com. 26, 27.) In most of the states provision has been made by statute, vesting such estates in the administrator; but nothing of the kind has been done here. If it were to be considered as an estate pur outer vie in a rent, instead of an estate in the land, it would, at common law, be extinguished by the death, (Co. Litt. 41, b, and Hargrave & Butler’s note 240,) and we have no statute remedying this defect.

There is no express contract here on the part of the grantee in the deed to pay the husband for the'use of the land, and although, while he was alive and the owner, such a contract would be implied from the use in favor of the husband as owner, none can be implied after his death, without first assuming that this freehold interest in the land belonged to the administrator as such.

I think the judgment is right, although for a different reason from the one upon which I suppose it was given.