text:
    Harrison, Appellant, v. Cachelin, et al., Respondents.
    1. Adverse possession^ to constitute a bar under the statute of limitations, must be uninterrupted.
    2. Tile Supreme Court will reverse judgments of the lower courts and award ney trials, without regard to the number of new trials previously granted, wherever erroneous instructions have been given to the jury.
    3. A., by mistake, conveyed to B. whiteacre instead of blackacre ; held, that a bona fide purchaser for value, from B., without notice of the mistake, would acquire a good title as against A. and those claiming under him. A purchaser, without notice of the mistake, at a sheriff’s sale on execution under a judgment against B., would be protected under this rule.

      •Appeal from St. Louis Land Court.

    This was an action in the nature of an action of ejectment, commenced in the St. Louis Land Court, on the 30th day of January, 1854, for the possession of the south-west quarter of block No. 18, in Eiler’s survey of the former town (now city) of Carondelet, against Constant Cachelin, a tenant of the other defendants. After the commencement of the suit, the other defendants, on their own motion, were made parties.
    The defendants, in their answer, deny the right of the plaintiff to the possession of the property ; and state that they, and those under whom they claim, were in the adverse possession of the premises for twenty years prior to the commencement of the suit; that on the 2d day of June, 1884, the board of trustees of the town (now city) of Carondelet, claiming to own the legal title to said premises, did, by ordinance of that date, passed by authority of an act of the legislature, approved February 13th, 1838, ordain “ that every person who shall have been in possession of any lot in said town, and shall have cultivated the same, being an inhabitant, and having' so been possessed prior to 1832, shall be entitled to a deed in fee simple for the same said ordinance making it the duty of the chairman of said board to execute such deed as the respective claimants should be entitled to ; that the defendants, Leon Levy and Nicholas Levy, and those under whom they claim, were included in the provisions of said ordinance; that on the 4th day of May, 1835, the board, by their chairman, did execute to William Carr Lane a deed, purporting to convey to him, among other property, the premises set out in the petition, which, at the time of such conveyance, the defendants charge were the property of the defendants, and those under whom they claim, and for which the defendants were then entitled to a deed by virtue of said ordinance ; that on the 22d of August, 1840, the board, by resolution of that date, after reciting that “ in 1835 the board of trustees deeded to said Lane the property aforesaid, and that it now appeared that one Leon Levy was entitled to the same property by right of settlement, and that in consequence of the claim of the representatives of said Levy, the said Lane had offered to reconvey said property to said town,” authorized the chairman to make a deed to said Lane for the north-east quarter of block lettered C, in exchange for said property; that in pursuance of this resolution, the chairman, on the 22d day of January, 1841, did convey to said Lane the said north-east quarter of block lettered C, and in exchange for the property set up in plaintiff’s petition; that on the 22d day of April, 1841, said Lane, in pursuance of the resolution, did convey to the said town (now city) the north-west quarter of block 18, which adjoins the premises sued for ; that the property intended to be conveyed in said last mentioned deed by Lane, was and is tbe south-west quarter of the block, being the premises sued for; that the description of said north-west quarter, in said deed, was and is a mistake, and was intended to describe the said south-west quarter mentioned in the petition; that the plaintiff had notice of all the aforesaid facts before and at the time he acquired any title or claim to the same ; .that on the 2d day of March, 1854, the city of Carondelet, in pursuance of an ordinance, approved February 15th, 1854, did convey, by quit claim deed, all of the right and title of said city in the premises described in the petition, to Leon Levy and Nicholas Levy, two of the defendants, and that the title to said premises is in the said Leon Levy and Nicholas Levy.
    On trial, it was admitted by the parties that the premises in controversy are a part of the common of Carondelet, confirmed by the act of congress of the 18th of June, 1812 ; and that the defendants were in possession of the premises in controversy at the time of the commencement of this suit, and still are in the possession of the same.
    The plaintiff then read in evidence a deed from the corporate authorities of the former town of Carondelet, to William Carr Lane, dated May 4th, 1885, and recorded January 20th, 1836,' conveying to said Lane the premises in controversy.
    The plaintiff then read in evidencé a transcript of the record containing the judgment, execution, return thereon, and proceedings, of the Circuit Court of St. Louis county, in a case wherein Charles Ames was plaintiff, and William Carr Lane was defendant. The judgment is dated November 3d, 1844, and the execution is dated November 13th, 1849. The plaintiff then read in evidence a deed for the premises in controversy from William Carr Lane, by the sheriff of St. Louis county, to the plaintiff, dated December 13th, 1849, and recorded December- 21st, 1849. This last deed was by virtue of a sale under said execution, which took place on the 12th-day of December, 1849.
    It was admitted by the parties that the former town of Ca-rondelet was incorporated by tbe county court of St. Louis county, on tbe 2d day of August, 1832, and that tbe legislature did, on tbe 13tb day of February, 1833, pass a law authorizing tbe corporate authorities of said town to sell the premises in question among other real estate therein named. Tbe plaintiff only claimed nominal damages, and here rested bis case.
    Tbe defendants then proposed evidence to sustain that part of tbe answer which relates to the alleged mistakes in conveying tbe premises in controversy to said Lane, and tbe plaintiffs objected to tbe introduction of any evidence of tbe kind proposed by tbe defendants as aforesaid ; which objection was overruled; exceptions were duly taken by tbe plaintiff.
    William Carr Lane was then called by tbe defendants as a witness, who says : “I bought, at tbe first sale of Carondelet commons, a lot outside of tbe limits of tbe town — three quarters of block 18 ; ground selected for me by Eiler. I bought a large amount; some time afterwards tbe town notified me that they bad conveyed to me one-fourth of a block that belonged to some one else. I said there would be no difficulty; a deed was sent to me. I bought north-west, south-east and southwest quarters of block 18. I do not recollect what was tbe description of tbe quarter they said they bad conveyed to me by mistake ; they stated that it belonged to some one besides myself. I do not recollect who it was. They may have stated which quarter, but I do not remember which it was. I do not remember whether I saw any member of the board. It was a written communication, and I answered it. They then sent a deed for the quarter in block C, in exchange for what I conveyed. I executed the deed they sent, without seeing whether it corresponded or not. I do not know from whom I received it; but it was sent by authority of Carondelet.” The plaintiff objected to the admission of this testimony ; the objection was Overruled. Plaintiff duly excepted.
    The defendants then read in evidence the various ordinances, resolutions, deeds, conveyances and other instruments referred to in their answer, which were all objected to by the plaintiff, and the objection overruled by the court, and the decision of the court excepted to by the plaintiff. The deed from William Carr Lane, (conveying the north-west quarter of block 18,) dated April 22d, 1841, to the town — or rather to Joseph Le Blond, chairman — was not recorded until March 11th, 1852 ; the deed from the town to Lane, dated. January 2d, 1841, was recorded December 15th, 1849; the deed from Oarondelet to Leon Levy and Nicholas Levy, of March 4th, 1854, was recorded on the same day.
    The defendants then introduced evidence tending to show that the premises had been in their possession, and those under whom they claim, from about the year 1832 to the year 1844, (excepting a few short intervals,) and also tending to show that there was once a house on the lot, but it fell to pieces and was carried away before 1844; and the flood of 1844 washed away all of the fences and other improvements ; and no one ever made any improvements on, or took possession of the lot, until some time in the year 1851, when a small house was erected on the lot, and Constant Cachelin occupied it as tenant for the Levy family; but that the lot was usually called the Levy lot, in the neighborhood, and the Levy family always said it was their lot.
    The defendants then read in evidence a deed from one Simon Busha and wife, to Leon Levy, sr., dated April 7th, 1837, and recorded April 29th, 1837, conveying to Levy said lot. Plaintiffs objected to the admission of this deed ; the objection was overruled ; plaintiffs duly excepted.
    The court gave the following instructions :
    “1. Unless the defendants show a deed to their property executed by the city of Oarondelet, for the piece of land sued for, he has no paper title that can avail him as against the plaintiff.5’
    “2. If the jury believe from the evidence in this cause, that the deed offered in evidence by the plaintiff, dated the 4th day of May, 1835, and purporting to have been executed by Peter J. Shoultz, chairman of the board of trustees, within and for the town of Carondelet, to William Carr Lane, properly describes tbe land sued for; and that tbe deed also offered in evidence by tbe plaintiff, dated December 13tb, 1849, purporting to have been executed by Louis T. Labeanme, sheriff of St. Louis county, properly describes the land sued for, they will find for tbe plaintiff, unless they find from tbe evidence that tbe defendants, and those under whom they claim, have bad a continuous and uninterrupted adverse possession of the land for twenty years consecutively before tbe bringing of this suit; and, unless tbe jury find from tbe evidence, under other instructions given herewith, that said lot was conveyed by the city of Carondelet to Lane, by mistake, and that Lane tried to re-convey it by deed, but failed to do so by mistake.”
    “3. If the jury find from the evidence, that the city of Ca-rondelet, in making of the deed of conveyance to William Carr Lane, of May 4th, 1835, conveyed to said Lane the lot in question, being the south-west quarter of block No. 18, by mistake and error; and if they also find that the said city and said Lane both acknowledged the said error and mistake, and attempted tp correct the same, the city, by conveying to Lane other property of equal value ; and Lane, by attempting to re-convey the lot in question to said city by the deed in evidence of April 22d, 1841, and that the said last mentioned deed was really intended to re-convey to said city the south-west quarter of block No. 18, but by mistake and error conveyed the northwest quarter of block No. 18, then the jury is instructed that the sheriff’s deed to Harrison, the plaintiff, of December 13th, 1849, did not operate to convey to said plaintiff any legal or available title to said lot, as against these defendants.”
    “4. If the jury believe from the evidence, that the defendants, and those under whom they claim, have had open and visible possession of the premises in dispute, adverse to the title of the plaintiff, for the period of twenty years next before the commencement of this suit, they will find for the defendants.”
    “ 5. To constitute actual possession, it is not necessary that the possessor should live upon or be upon the land, or have the same enclosed by a fence, or have houses or other buildings thereon. The actual possession, if proved to the satisfaction of the jury, is continued by a continual claim of right, and the exercise of the acts of ownership which proprietors do ordinarily exercise over the vacant or untenanted land, and such possession will continue until there is an actual adverse possession.
    Plaintiff duly excepted to the giving of these instructions.
    The plaintiff' asked the court to instruct- the jury as follows : ‘il. Adverse possession, to avail as a defence in this action, is thus defined by the ‘court: If, under a deed or instrument of writing, purporting to convey the land, the grantee, or those under him — defendants being of such persons — had absolute possession of any portion of the tract or piece of land conveyed, claiming the whole for twenty years’ uninterrupted and continuously next before this suit was brought; or if, having been in absolute possession under a deed or conveyance, he continued to'exercise ownership, openly and notoriously, by usual acts of owners, such as paying taxes, driving off trespassers, and claiming the land among and to those with whom he associates for twenty consecutive years uninterruptedly next before this suit was brought.”
    “2. If there is no deed or instrument of writing in the chain of title to the land, whereby it is described, and bounded, there can be no adverse possession that will avail the defendants, under the statute of limitations, unless there is proved uninterrupted, continuous and unbroken absolute possession of all the land in controversy, for the space of twenty years next before the bringing of this suit.”
    The court refused to give the above instructions, which refusal was duly excepted to by the plaintiff.
    The jury found for the defendants, and judgment having been given for them, the plaintiff appealed to this court. A previous verdict of the jury, in favor of the defendants, had been set aside, on motion of plaintiff, and a new trial granted.

      Casselberry and W. L. Williams, for appellant,
    cited Jackson v. Halstead, 5 Cow. 219 ; Jackson v. Schoonmaker, 2 Johns. 2B0 ; Bailey v. Irley, 2 N. & Me. 343 ; King v. Smith, 1 Rice, 10; Blood v. Wood, I Metc. 525; Doe y. Campbell, 10 Johns. 477 ; Proprietors of Kennebec Purchase v. Skinner, 4 Mass. 416 ; Kincaid y. Louge, 7 Mo. 166 ; Robinson y. Douglas, 2 Aik. Rep. 364 ; 4 Bibb, 544 ; 1 Marsh. 59, 506 ; 5 Litt. 22 ; 6 Serg. & Raw. 1; Abell v. Harris, 11 Gill & Jo. 371 ; Sorber v. Willing, 10 Watts, 142; Naglee v. Albright, 4 Whart. 291; Reily v. Chouquette, 18 Mo. 224.

      Primm & Romyn, for respondent.
    I. Under the practice act of 1845, only “ one new trial shall be allowed to either party,' except,” &c. (R. C. 1845, tit. Practice at Law, art. 7, § 3, p. 830.) The practice act of 1849 in nowise changes the requisitions or the prohibitions of the act of 1845. (Sess. Acts, 1849, p. 87, art. 11, § 3.)
    II. Two trials have been had in this cause, in each of which verdicts have been found for defendants. The whole scope of the decisions of the Supreme Court has been adverse to granting a revision of the judgments of courts below, predicated upon the repeated verdicts of juries. (See Hill v. Wilkins, 4 Mo. 86 ; Hill v. Deaver, 7 Mo. 57 ; Humbert v. Eckert, ib. 259.)
    IV. The facts developed in this cause, upon the trial below, warranted the instructions given by the court, and justified the jury in rendering a verdict against the plaintiff.
   Scott, Judge,

delivered the opinion of the court.

1. The defendants rely on an adverse possession of such duration as gives them title against the plaintiff. There is nothing in the case which shows that they pretend to hold adversely to Carondelet. On the contrary, they look to her for a title; claim one from her as early as 1840, as appears from the face of the resolution passed during that year, and finally accept a deed from her. Now Carondelet owned the lot and retained the title until it was conveyed in May, 1835, to William Carr Lane, under whom the plaintiff claims. This suit was commenced January 30th, 1854. The statute then had not run against the title conveyed by Carondelet when this suit was instituted. The defendants accepted a title from Caron-delet and used the deed conveying that title in this suit. How was their possession, then, adverse to that of Carondelet ? Thus it would seem that both of the parties have, within a period short of the time necessary to create a bar by the statute of limitations, acknowledged Carondelet therightful owner of the lot in controversy. We do not hereby intend to convey the idea that the defendants are estopped by any thing that has been done from setting up a title adverse to Carondelet, but merely to express the opinion, that, as the matter appears to us from the record, had the question of adverse possession, as against Carondelet, been submitted to the jury, they would have been warranted in finding a verdict against the defendants on that ground. But take it that the defendants claim to hold adversely to the title of Carondelet, and there is nothing detailed in the evidence which would warrant an instruction that would defeat the plaintiff. This may be a hard case, but hard cases must not be made a pretext for breaking down those principles of law on which repose the rights of the great body of the community. No landholder would be safe if the facts given in evidence in this cause should be deemed sufficient to give a right against him under the statute of limitations. The interruption in the possession, from the year 1844 till 1851, was such as to take away the force of all possession prior to 1851. If one trespasses on the land of another and afterwards voluntarily leaves the possession, shall a claim of right, subsequently persisted in and only evidenced by oral declarations, be available, under the statute of limitations, to take away the right of the legal owner ?

2. As to the point that one new trial has been granted to the plaintiff, and that consequently, under the statute, he can not have another, reference is made to the case of Boyce’s adm’r v. Smith’s adm’r, (16 Mo. 317,) which maintains that, when a new trial has been refused, the Supreme Court, on appeal or writ of error, will look into the record, and if it finds that incorrect instructions have been given to the jury, will reverse the judgment and award a new trial, without regard to the number of new trials previously granted to the appellant or plaintiff in error.

3. In the case of Vaughn v. Tracy, (22 Mo. 415,) it was decided that the fact of possession by another was not, of itself, notice under our law concerning conveyances to a subsequent purchaser, of any prior unrecorded deed held by the tenant in possession ; that such possession, though not of itself evidence of a prior unrecorded deed, yet might go to the jury as evidence of the actual notice of such deed, required by the statute, in order to defeat a subsequent conveyance. Now the instruction given by the court, in relation to the mistake in the deeds, simply failed to apprise the jury that notice of such mistake must be in Harrison at the time he purchased at the sheriff’s sale, in order to defeat his right of recovery. It is by an equity set up in the answer that the defendants seek to prevent a recovery by Harrison. If Harrison was a bona fide purchaser for a valuable consideration, without notice, courts of equity will give no relief against him. The legal title to the lot was in Lane, by mistake, it is true; yet, if, whilst it.was in him, it was sold to a Iona fide purchaser, the mistake can not be corrected at the expense of that purchaser. If Lane, himself, had sold the lot in dispute to a bona fide purchaser, his title, beyond all controversy, would have passed. The fact that the sale was made by an officer deputed for that purpose by law, seems to make no difference. The cases of Ells v. Tousley, (1 Paige Ch. 280,) and Gouverneur v. Titus, (6 Paige Ch. 251,) clearly show that, if a purchaser at a sheriff’s saléis ignorant of the mistake in a deed of land conveyed to the debtor, he will take the title of the debtor, unaffected with the equity of the vendor to have the error corrected.

The judgment is reversed, and the cause remanded;

the other judges concur.


source: Caselaw Access Project

author: LEONARD, Judge,,

license: Public Domain

text:
    Alexander Liggat, Defendant in Error, v. Oliver A. Hart, Plaintiff in Error.
    1. Under the revised codes of 1835 and 1845, (R. C. 1835, tit. Wills, sec. 1, p. 617, R. C. 1845, p. 1078,) as under the act of July 4th, 1807, (1 Terr. Laws, ch. 39, sec. 18, 19, p. 132,) real property acquired after the date of a will would pass to the devisee, where such appeared to he the intention of the testator.
    2. Where a will, after the making of several specific bequests, proceeded as follows: “ I hereby direct, authorize and wish my executors to sell the whole of my real, personal and mixed property, on a credit of twelve months, the proceeds of which, together with what cash I may die possessed of, after all my just debts have been paid, and the sum of one hundred dollars to such of my legitimate nephews as at my death may be found named James, ($100 each,) I wish disposed of in the following manner, viz: to be sent by my executors to Ireland,” &c., to be invested for the benefit of the testator’s brothers and sisters, &c. ; held, that it sufficiently appeared upon the face of the will that it was intended to cover, and provide for the sale of, all the real property owned by the testator at the time of his death.

      Error to St. Louis Land Court.

    The following agreed case was submitted to the Land Court under article 20 of the practice act of 1849 (Sess. Acts, 1849, p. 95) :
    “ On the 7th of July, 1851, Patrick McLaughlin, being seized in fee, conveyed to James Boal, and his heirs, the undivided third part of a lot of ground in block No. 99, in the city of St. Louis, having a front of 47 feet, more or less, on Locust street, and a depth of 57J feet running southwardly ; bounded north by Locust street, east by a lot of one Martin, south by a lot of John Eyrne, and west by a lot of Baptist Godoir. Prior to this conveyance, said Boal had no interest in said land. James Boal died in the year 1851. In the year 1835, he had made and published his last and only will and testament, a copy whereof is as follows :
    “ £ In the name of Israel’s God, Amen. I, James Boal, of the town of Lynchburg, and state of Virginia, do make this, my last will and testament, revoking all others. First, I return to my brother John Boal, the gold watch which he presented me some time ago ; secondly, I give and bequeath to my uncle, Alexander Liggat, and his heirs forever, my lot of ground in the Presbyterian graveyard, near Lynchburg ; thirdly, I hereby direct, authorize and wish my executors to sell the whole of my real, personal and mixed property, on a credit of twelve months, the proceeds of. which, together with what cash I may die possessed of, after all my just debts have been paid, and the sum of $100 to such of my legitimate nephews as at my death may be found named James, ($100 each,) I wish disposed of in the following manner, viz : to be sent by my executors to Ireland, and placed in the hands of two or three such persons as my brothers and sisters may select as trustees; said trustees to pay out of the said fund to each of my brothers and sisters, annually, the sum of ten pounds sterling, as long as they shall live. The balance to be loaned out by said trustees, taking bond, with good security, and payable to themselves and successors, subject to the payment annually of the interest and the above named dividend of ten pounds sterling to each of my brothers and sisters ; and in case of the death of either of the above named brothers and sisters, the dividend of such is to stop and to be kept in the principal fund. And when all my brothers and sisters shall have died, and it appears that there is still a balance, it is my wish and desire that said balance, principal as well as interest, be equally divided among my legitimate nephews and nieces, including also such as are named James. I hereby appoint Alexander Liggat and Patrick Matthews to execute this, my last will and testament; and, in the event of their death, such other two of my friends as the corporation court of Lynchburg may select, provided such will act without receiving any further compensation or commission than the expenses incurred by them in the performance of that friendship. Witness my hand and seal at Lynchburg, this 23d day of December, in the year 1835, in the 36th year of my age, and of my residence in America the eighteenth.
    James Boal, (seal.)'

      “ There were two subscribing witnesses to this will, and it was duly admitted to probate in St. Louis county, on the 4th November, 1854.
    “ The deceased, James Boal, had never been married. His next of kin and nearest blood relation of all who were resident in the United States was Alexander Liggat. He had brothers and sisters in Ireland, together with their children, but these were and always had been non-resident aliens. Alexander Liggat was his uncle.
    “ On the 21st day of June, 1855, Alexander Liggat made with Oliver A. Hart a contract in writing for the sale of the said undivided third part of the lot of ground above described for the sum of $1525 00, whereof one-fourth was to be paid in cash, and the balance in three equal annual instalments, bearing interest from the day of the sale, and secured by a deed of trust on the property sold. The plaintiff, Alexander Liggat, tendered a deed in due time to the defendant, Oliver A. Hart, and demanded payment of the purchase money, the deed and the demand being according to the contract aforesaid. Defendant refused to pay the money or give security or receive the deed, on the ground that the title of the plaintiff was not marketable — that is, not valid. The title is valid, if the plaintiff takes the interest of James Boal as heir at law. If the court shall be of opinion that the title of the plaintiff is not marketable, then a judgment shall be rendered for the defendant. If the court shall be of opinion that the title of the plaintiff is marketable, a decree shall be rendered for the specific performance of the contract of sale made between plaintiff and defendant on the 21st June, 1853, either party may appeal or sue out a writ of error.”
    Upon this case, the court gave judgment for the specific performance of the contract, deciding, 1. That James Boal died intestate as to the land in question, which was acquired after the making and publication of his will. It is unnecessary to inquire whether the devise, so far as it operated at all, was of realty or personalty, or whether non-resident aliens can take and hold real estate, by will, until inquest of office found. 2. That the only heir of James Boal, capable of taking the land by descent, is the plaintiff, and that he has all the title thereto which James Boal had at the time of his decease. S. That as the agreed case admits the title to be valid, if plaintiff takes the interest of James Boal, the plaintiff is entitled to a specific performance of the contract of sale, mentioned in the case made, and a decree should be entered accordingly.
    The defendant, Hart, took all proper exceptions, and moved for a review of the case and judgment for the defendant; which being overruled, he brings the case here by writ of error.

      Glover & Richardson, for plaintiff in error.
    I. By our laws, in December, 1835, when the will of James Boal was made, a testator might, if he used apt words for that purpose, devise lands which he should acquire after making his will. It was the statute 32 Henry VIII, ch. 1, which authorized the disposition of lands by last will. (2 British Stats, at large, 272 ; 8 Bacon’s Abr. 441.) The English courts placed on the language of this statute a severe construction (Plowden, 544 ; 2 Ves. jr. 427), and it became a settled rule of decision that a testator could not, under this statute, under any circumstances, devise all his real estate, but that so much only would pass by his will as he happened to have or own at the making of it. This doctrine was very inconvenient, and has given way to legislation in England, and also, to a great extent, in this country. (G-eyer’s Dig. 430 ; R. 0. 1825, p. 790 ; Smith v. Eddington, 8 Cranch, 66 ; Harrison v. Allen, 3 Call, 296; 4 Seam. 67; 2 Indiana Rev. Stats. 308 ; Maine Rev. Stats., 1840, p. 376 ; 4 Kent, 512.) A testator clearly might, under the acts of 1815 and 1825, dispose by will of after acquired lands. The revised code of 1835 did not abridge the power of devising given by the acts of 1815 and 1825.
    II. The will of James Boal is sufficient in the language it employs, to pass the after acquired lands, supposing the de-visees competent to take, they being aliens.
    III. Inasmuch as the will directs the lands to be sold and the proceeds to be disposed of, the lands must be regarded as money, and there is no legal objection to the devise taking effect, notwithstanding the alienage. As to this point, see the following authorities: 2 Story’s Eq. 100 ; 2 Kent, 62, 63 ; 14 Mo. 528 ; 3 Wheat. 503 ; 6 Paige, 448.

      T. T. Gantt, for defendant in error.
    I. The first point decided by the court below was correctly decided. After the first day of December, 1835, when the act of that year concerning wills went into effect, a testator could not make a will to operate upon land in Missouri acquired after the date of the publication of his will. The act of 1845, on the subject of wills, was almost, word for word, the same with that of 1835. The words of the statutes of 1815 and 1825 (see 1 Terr. Laws, p. 405, § 25 ; R. C. 1825), and still more, those of the act of July 4th, 1807, (1 Terr. Laws, p. 131, §18,) were, however strikingly different from those of the act of 1835. Granting that by these several acts of 1807, 1815, and 1825, a devisor might dispose of after acquired lands, it is evident that our statute of wills, adopted in 1835, and readopted in 1845, was, in respect to the power of disposition, a return to the English statute of wills, of 32 Henry VIII, ch. 1. Our statute is, not in terms but in meaning, the same as the English statute. The words “persons having moneys, lands,” &c., of the English statute, were supposed by the judges, in the case of Butler v. Baker, (3 Co. Rep. 30,) to be a basis for that quaint, verbal criticism, to which the learned of that day were so much addicted. But, in Cowper’s Reports, p. 90, it was declared that it was not to this phraseology that the uniform construction of the English statute was due, but to the plain, obvious import of the words employed. In our own country, upon statutes similar to the English statute, and upon the English statute itself, there have been repeated decisions establishing the legal doctrine that after acquired lands do not pass by a will. (See 1 Salkeld, 237 ; 1 Saund. 277, note 4 ; Archer v. Bokenham, 11 Mod. 148; Harwood v. Goodright, Cow. 90-1; Hogan v. Jackson, ib. 305 ; Langford v. Pitt, 2 P, Williams, 629; Hogan v. Jackson, G Mass. 149 : Bollard y. Carter, 5 Pick. 112 ; Rogers v. Potter, 9 Johns. 312 ; Mc-Kinnon y. Thompson, 3 John. Oh. 307 ; Livingston v. New-kirk, id. 812 ; Kendall v. Kendall, 5 Munf. 272 ; Burke v. Young, 2 Serg. & R. 388-9; Kemp v. McPherson, 7 Har. & Johns. 320, 335.) Eyen where statutes, much more unambiguous than ours was in 1825, are in force, as in Yirginia, the clearest manifestation of an intention that a will shall operate on after acquired lands, is declared to be necessary, in order that it shall have that operation. (See Smithy. Eddrington, 8 Crunch, 66 ; Harrison v. Allen, 3 Call, 389 ; also Philadelphia y. Davis, 4 Raw. 490-; Burke v. Young, 2 S. &R. 388.)
    II. The second point decided by the court was correctly decided. The only heir at law of James Boal, capable of taking the land by descent, was the plaintiff, Alexander Liggat. (1 Thomas’ Coke, 90-91 ; 3 Cruise’s Dig. 365-6 ; 2 Kent Com. 60 — 1.) There-is nothing in our statute respecting aliens, (R. C. 1845, p. 113, which is a transcript of the law of 1835,) or in our statute of descents and distributions, changing the rule of the common law in this respect.
    III. The third point decided by the court, being a corollary from the first two propositions, is correct.
   LEONARD, Judge,,

delivered the opinion of the court.

Mr. Butler, in a very able note to Coke’s First Institutes, (191, a,y after specifically pointing out the difference between the Roman and the feudal law, upon the subject of succession, to the estates of deceased persons, thus forcibly sums up the the contrast: By the Roman law, the heir was a person appointed indiscriminately by the law or the deceased to represent him, and, in consequence of that representation, was entitled to his property, and bound by his obligations. In the feudal law, the heir was a person of the blood of the ancestor, appointed by the original contract to the succession, and, in consequence of that succession, was supposed, more by the general notions of mankind than by the notions of the feudal polity, to represent the ancestor. By the Roman law, the heir succeeded to the property of the ancestor in consequence of this civil representation of him, and supposed continuation of his personal estate. In the feudal law, he acquired a national representation to the ancestor, in consequence of the feudal succession. In the Roman law, real and personal property was equally the subject of inheritance. In the feudal law, inheritance was confined to real property. The Roman heir claims as such all from the person last possessed, and nothing from the original donor. The feudal heir claims as such all from the donor, and nothing from the person last possessed.55 The power of an owner to appoint a successor to his property, both real and personal, after his death, which seems to be nothing more than one of the natural rights of property, prevailed to its full extent among the Saxons of England. When, however, upon the establishment of the Normans, the feudal system became part of the law of England, so that tenants in fee could not alien without the consent of the lord, the power of disposing by will, as well as every other mode of aliening land, generally ceased. And, although the feudal restraint upon alienation could not but gradually yield, as an unnatural limitation upon property, and accordingly many of the restraints were removed before Glanville wrote, yet the power of disposing by will was not allowed for a long time afterwards, partly from the fear lest persons should be imposed upon in their last extremity, and partly for the want of that notoriety which the common law required in all transfers of real property. During the suspension of the direct power, which continued from Henry II to the latter end of the reign of Henry VIH, it was indirectly but substantially acquired, and exercised by means of uses. This indirect practice, however, of devising lands, was at length checked by the statute of the 27th Henry VIII, which, transferring the legal estate to the use, extinguished, for a time, the separate equitable ownership, and with it the incidental power of devising. The consequence was, that lands again became generally unalienable, except by a conveyance, to take effect in the lifetime of the proprietor ; but the legislature found it necessary, within a few years afterwards, to allow of testamentary dispositions of land, and for that purpose the statute of wills was passed in 31 Henry VIII, and amended in the 34 of the same king (1 Powell on Devises, ch. 1; Cruise on Real Property, tit. 38, ch. 1).

While the power of disposing of lands by will was exercised by means of uses, the will being considered the mere appointment of a use, it was holden that it could only operate on lands of which the party was possessed at the time, and could not affect any lands subsequently acquired; and the courts accordingly adopted the same narrow principle when they came to put a construction on the statute of wills ; and, therefore, although the idea of a real devise was, as Lord Mansfield remarked, (Cowper, 303,) derived from a Roman will, which was the appointment of an heir to succeed to the property and to discharge the obligations of the ancestor, including his testamentary donations, yet it was treated in the English law not like an English will of personal property, when the executor corresponds with the instituted heir of the Roman law, but as a particular conveyance of the lands embraced in it, and was subjected, in the particular now under consideration, to the rules applicable to such conveyances, instead of being treated as a testamentary disposition to take effect after the death of the disposer. It accordingly became a settled rule in the construction of the English statute of wills, that, if a testator devised all the real estate of which he should be seized at the time of his death, and after the making of the will he purchased lands in fee, such after acquired property, whether it was conveyed to the testator or to a trustee for him, did not pass by the will, but descended, as to the legal inheritance in the former case, and as to the equitable in the latter, to the testator’s heirs at law (1 Jarman on Wills, 85; Booker v. Cooke, 1 Salk. 237; S. C., 3 Bro. P. Cases); and the reason of this was, not on account of the intent on the part of the testator, but because be bad no legal power to dispose by will of land wbicb be did not own at tbe time ; and tbe reason given for this construction was not merely that a limited testamentary power was conferred by tbe very words of tbe act, but because such was tbe legal consequence, in the absence of any express provision to the contrary, of considering a devise, not in tbe nature of a will, but of a particular conveyance. Under tbe old law, therefore, when a testator made a general gift of his real and personal estate, be was considered as meaning to dispose of these respective portions of property to tbe full extent of bis testamentary power, and it accordingly took effect as a gift of such real estate as belonged to him at'tbe time of tbe execution of tbe will, and as to tbe personalty as a disposition of whatever be should possess at tbe period of bis decease; and this construction has prevailed in the United States, wherever the British statute of wills has been adopted, either by express enactment, or as a part of tbe general system of law.

Lord Mansfield once remarked, that common sense would never teach a man tbe difference between tbe testamentary gift of a horse and a house, and chat, originally, tbe construction might as well have been otherwise, but that it was then too well settled to be disturbed. Indeed, experience has at length taught tbe British nation that it had better have been settled otherwise from tbe beginning, as tbe construction given has been found to defeat tbe real intention of testators, and accordingly they have remedied tbe evil in 1 Vic. ch. 26, by providing that testators may dispose of all tbe real and personal estate to wbicb they may be entitled at the time of their death, and that every will shall be construed, with reference to the real and personal estate comprised in it, to speak and take effect as if it bad been executed immediately before tbe death of tbe testator, unless a contrary intention shall appear by the will; and tbe result is, that tbe distinction in an English will between real and personal property, that was not obvious to common sense in the days of Lord Mansfield, is now abolished, and an English devise of land operates now as a will of personal property did before the passage of the late act, and passes whatever real estate the testator may possess at the time of his death, unless a contrary intent appear. It is also to be remarked, that the same experience that produced the British amendment act upon this subject, has resulted substantially in the same enactments in the several states where the English rule of interpretation had been introduced and prevailed. Accordingly, in Massachusetts, at their revision in 1835, (Rev. Stat. 417, sec. 3,) it was provided, that after acquired real property should pass by a will, in like manner as if it were possessed at the time of the making of the will, if such appeared to be the intent of the testator ; and similar enactments have been adopted in Maine, New Hampshire, New York, Pennsylvania and other states. (Winchester v. Foster, 3 Cush. 366.)

The Virginia statute of 1785 expressly extends the testamentary power, to. the real property which the testator may have at his death, and was followed in this particular in Kentucky and Illinois; and the result of the decisions in these states is, that after acquired lands pass, when such appears to be the intention of the- testator, although in Virginia they retain the rule adopted in England, that the words of the testator, in reference to his real property, are to be understood as referring to the time of the making of the will, unless a different intent appear. (Turpin v. Turpin, 1 Wash. Virg. Rep. 75; Harmon v. Allen, 3 Call, 297; Warner’s executors v. Swearingen and wife, 6 Dana, 200; Wells v. Watson, 4 Scam. 66.) The legislation in our own state has been somewhat peculiar. The first act upon the subject, passed in 1807, was copied from the Virginia statute of 1785, and confers, in one section, upon persons of full age, testamentary power over all real estate then owned, or which the testator may have at his death; and, in a subsequent section, confers testamentary power over the personal estate, in general terms, upon persons who are over eighteen years of age. The law so continued, without any change, until the revision of 1835, when, under the plan of revising then adopted, of dropping what were deemed superfluous words, the phraseology was changed to what it now is, and the testamentary power, over both real and personal property, was incorporated into one section, and conferred in the same general words ; and the same phraseology was continued in the revision of 1845, and we presume also in the last revision. The language now used, however, is not the language of the old English statute — “ that any person having an estate may dispose of it at his pleasure,” &c.; but that every person may, “ by last will, devise all his estate, real, personal and mixed,” &c.

No doubt is entertained but that, under the act of 1807, after acquired real property would pass by will, whenever such appeared to be the intention of the testator. The reason why it did not pass under the English statute, was the want of testamentary power; and that power being expressly given by our original act, the objection was out of the way; and such seems to have been the construction given to the statute in Virginia, Kentucky and Illinois.

But the question is as to the construction of the present law. Must we hold that the act now in force does not confer testamentary power over after acquired land, and, on account of the change in the phraseology of the statute, which was made in 1835, go back to the construction put upon the original statute ? We think not. The language now used does not require such a construction at our hands. It is different from the language of the English statute of wills. The testamentary power is given here in general language ; it embraces both real and personal estate, and is a power to make a testamentary disposition of all the testator’s property, without any distinction between real and personal property, and not a mere power of particular disposition. It is more in the nature of a Roman will than an English devise of real property. But, however this may be, when we consider the' plan of revising that was adopted — the impolicy of creating changes in laws off daily practical importance — the little probability, when all around us were abandoning the old, narrow construction of the testamentary power, that our legislature should adopt it, for the first time, by an express provision for that purpose — and when we consider, too, that neither the community nor the profession have generally, as we believe, been aware of the supposed change — and that men have generally acted as if the original act of 1807 were still in force, and that estates have been administered and distributed accordingly, — we do not think that we would be warranted in declaring that the legislature, by the change in the language, intended to effect the substantial change in the meaning of the law that is supposed, and we shall accordingly give to the act, as it now stands, as literal a construction in favor of the testamentary power as we should have felt constrained to have given to the original act.

In this view of the subject, the question for our consideration is, what was the intention of the testator, fairly inferable from the will ? Did he intend to die testate as to all the property he should leave, or did he mean to embrace within his will such land as he then owned, together with all the personal property he might have at his death, and leave the real property he should subsequently acquire to go according to law ? No plain man, after reading the will, would hesitate a moment in answering this question; but it is said that we are bound by a legal rule of construction, which constrains us to consider a will in reference to the real property, when a contrary intent does not appear on the face of it, as referring to the time it was made, although, as to personal property, it speaks from the death. We all know that this is purely an artificial rule, and that, in a majority of the cases to which it is applied, it defeats the intention of the testator. Men know that their wills are not to take effect until they die, and they make them for the purpose of fixing the distribution of their property from that moment, and it was under this view of the subject that in the statute of 1 Vic. ch. 26, as well as in some recent American statutes, it is declared that the will shall be considered as speaking from the moment of the death of the testator, unless a contrary intention appear. But admitting, for the purpose of the present case, that this rule of construction, as to the time to which the will refers, is applicable to' our own statute, we think there is enough in this will to show that the testator’s mind was directed to the time of his death, and that the general disposition which he made of his property, had reference to that period and not to the date of the will. After disposing of a watch to one, and a lot in a burial-ground to another, the will proceeds in these words : “ I hereby direct my executors to sell the whole oj my real, personal and mixed property, on a credit of twelve months, the proceeds of which, together with what cash I may die possessed of, after all my just debts have been paid, and the sum of one hundred dollars to such of my legitimate nephews as at my death may be found named James, I wish disposed of in the following manner, viz: to be sent to my executors in Ireland,” to be there invested for the use of all his brothers and sisters and their children. The testator contemplated a sale of his property immediately after his death, and in describing the property to be sold, evidently refers to all that should then belong to his estate, whether real or personal. In Brown v. Soheer, (1 Cush. 133,) where the construction of the will was under the Massachusetts act, to which we have referred, according to which, in order to pass after acquired lands, it was necessary that the intention should “ clearly and manifestly appear,” the court remarked : “Whenever there is a devise of the whole estate or of all the residue of the estate of a testator, there being both real and personal estate upon which the will may operate, an intention to give after acquired real property may perhaps be justly inferred, unless there be some indication of a different intention to be found in the will.” In the present case, it is plain enough that the testator intended to die testate as to the whole of his property, no matter of what kind it might be. He intended it all for his brothers and sisters and their children, with the trifling exceptions that are expressed, and we should defeat and not execute his will, if we were to make a distinction, that he never thought of, and pronounce that the real property, acquired after tbe date of tbe will, was not embraced in it, but was left by bim to be distributed according to law. Tbe judgment must therefore be reversed, and tbe cause remanded.


author: Ryland, Judge,

text:
    Scott et al., Plaintiffs in Error, v. Bailey, Armstrong and others, Defendants in Error.

      1. One William Bailey executed a deed of trust of certain real estate to secure the payment within twelve months of an indebtedness, recited therein to be due “ to Patrick H. Scott and Sarah B. Scott, in the sum of about two thousand dollars, being the amount of principal and interest due upon a promissory note drawn by the said Bailey and endorsed by the said Patrick H. and Sarah B. Scott, and now past due and held by Mrs. Elizabeth Ca-bell, of Winchester, Virginia.5’ In point of fact, it was intended by the parties to the deed of trust to secure the said P. H. Scott and S. B, Scott against liability upon a bond executed in favor of the said Mrs. C. Cabell^ by the said Scotts, jointly with, and as the sureties of the said Wm. Bailey. Held, that this mis-recital of the nature of the indebtedness was not such as to avoid the deed of trust.
    2. Parol evidence is admissible to show that the relation of principal and surety exists between the co-obligors of a bond.

      Error to St. Louis Land Court,.
    This was an action in tbe nature of a proceeding to foreclose ' a deed of trust or mortgage. Tbe petition stated that William Bailey, one of tbe defendants, on the 20th October, 1843, by bis deed of that date, duly recorded, conveyed to E. W. Bisque, one of tbe defendants, a tract of land in St. Louis county, described in said deed and in said petition, in trust to secure, among other things, “ tbe payment, in twelve months from date of the deed, of about $2000 to P. H. & S. B. Scott, [plaintiffs in this action,] being tbe amount of principal and interest due on a promissory note, made by Wm. Bailey, in favor of P. H. & S. B. Scott, and by them endorsed, and then held by Mrs. Elizabeth Cabell, of Virginia. ” That the instrument, the payment of which the said Wm. Bailey intended by said deed of trust to secure, is in tbe words and figures following : “ $1860. Lynchburg, Va., Nov’r. 8, 1840. Twelvemonths after the 4th of November next, we, or either of us, promise to pay to Mrs. Elizabeth Cabell, her heirs or assigns, the joint and full sum of $1860, to bear interest at the rate of six per cent, per annum from date, Nov’r 8, till paid, and for the payment of which sum we bind ourselves, our heirs, firmly by these presents ; sealed with' our seals and dated November 8, 1840. [Signed] Wm. Bailey, (seal). S. B. Scott, (seal). P. H. Scott, (seal).” That P. Hi Scott and S. B. Scott signed this instrument as sureties of Wm. Bailey, and that the said Wm. B. mistakenly described it as being a note whereof plaintiffs were endorsers ; the fact being that said instrument was, as set forth, a writing under seal, and that the plaintiffs were the sureties of Wm. Bailey therein, to pay Mrs. Elizabeth Cabell the sum of “ about $2000,” the precise sum really due on 20th October, 1843, being $2080 ; and said Bailey referred to said instrument by memory only, and. so misdescribed it in the foregoing unessential particulars.
    The petition stated that Risque was a non-resident; that Mrs. Cabell had obtained judgment on the said written instrument against the plaintiffs and said Bailey, and that the plaintiffs had paid the same, and they asked for judgment for the sale of the land conveyed to Risque to repay the money by them paid on the judgment.
    Armstrong was not a party to the suit originally. Upon his own motion, he was made defendant, and answered, denying that the deed of trust dated October 20, 1843, was in trust to secure the payment in twelve months after date, of about $2000 to P. H. & S. B. Scott, principal and interest, due upon a promissory note made by Wm. Bailey, in favor of plaintiffs, and by them endorsed to Mrs. E. Cabell, denying also that any money was secured by said deed to be paid to the plaintiffs ; averring that whatever debt, if any, was due from Bailey and plaintiffs to Mrs. Cabell, has been paid and satisfied before the commencement of this suit, and therefore can be no longer a lien on the land described in the petition; denying that plaintiffs have any right to cause said land to be sold for the nonpayment by Bailey of said promissory note; denying knowledge of Bailey’s intention to secure the bond mentioned in the petition, or whether such bond existed, and alleging that the deed of trust purported to secure a note, not a bond; and that if the money was due upon a bond and not a note, then the deed of trust was no security for it; that plaintiffs were not sureties for Bailey in said bond, but co-obligors, and that evidence to show that they are sureties is not admissible ; that the payment of said bond or of the judgment thereon, by the plaintiffs, is an extinguishment of the lien, and no assignment, legal or equitable, of the security, resulted to them from such payment ; that if such judgment was obtained as is stated, it fixed the character of plaintiffs as co-obligors, and estops them to say that they were sureties of Bailey; that a judgment was rendered apainst Bailey in 1845, under which Darby purchased all the interest of Bailey in this land and sold the same to Armstrong by a warranty deed, for full value, in July, 1845. Bailey answered, confessing the petition. An order of publication was taken against Risque, and a formal judgment by default was entered against him.
    The cause was tried by the court sitting as a jury, and the court found the facts in controversy as follows : “ That on the 8th November, 1840, Wm. Bailey, Patrick H. Scott and Sarah B. Scott made their joint and several bond, under their several seals, whereby they bound themselves to pay to Elizabeth Ca-bell and her heirs $1860 within one year from the 4th November, 1841; that on the 20th October, 1848, said Wm. Bailey conveyed to E. W. Risque the land described in plaintiffs’ petition, in trust to secure the payment in twelve months after date thereof of about $2000 to P. II. & S. B. Scott (the plaintiffs), being the amount of principal and interest due upon a promissory note, made by Wm. Bailey in favor of P. H. & S. B. Scott, and by them endorsed to and then held by Mrs. Elizabeth Cabell, of Yirginia ; that on the 5th March, 1845, a judgment was rendered in the St. Louis Circuit Court for $1205, in favor of John W. Nelson, plaintiff, against Wm. Bailey, defendant; that an execution issued thereon, and that the sheriff of St. Louis county did, by virtue of said execution, levy upon and sell all the right, title and interest of Bailey in the land to JohnF. Darby, who was the highest bidder therefor, for the sum of $895 ; that the sheriff made a regular deed therefor to said Darby on the 23d April, 1845; that on the 16th July, 1845, John F. Darby, by regular deed of grant, bargain and sale, conveyed ssid land to D. H. Armstrong for the consideration of $1200; that said sum was then a fair price for said land; that Armstrong had no actual notice of the deed of trust from Bailey to Risque above mentioned ; that Mrs. Cabell recovered judgment against the plaintiffs in 1847, upon their aforesaid bond ; that plaintiffs paid said judgment to Mrs. Ca-bell in 1847; that Wm. Bailey paid no part of said judgment; that plaintiffs were the sureties of Wm. Bailey in said bond in fact, hut co-obligors on the face of the bond; that Wm. Bailey designed to secure the payment of that bond by the deed of trust to F. W. Risque, and that he misdescribed the instrument intended to be secured by mistake and carelessness.
    “Upon the foregoing facts, the court declares the law to be that D. H. Armstrong, being an innocent purchaser for a fair price of the real estate in question, it is not competent for the plaintiffs in this action to subject the said real estate in the hands of Armstrong to the payment to the plaintiffs of the amount which they had paid to Mrs. Cabell as securities for Bailey on said bond for $1860 ; that the instrument purporting, to be secured by the deed of trust being entirely different from the instrument set up by the plaintiffs in their petition as the foundation of the indebtedness, it is not competent for the plaintiffs to establish, by parol evidence, that the description in the deed of trust was made by mistake, so as to authorize plaintiffs to charge the land with the payment of the said bond, the property being in the hands of an innocent purchaser.”

      T. T. Gantt, for plaintiff in error.
    I. Armstrong had constructive notice of the deed of tfust, it being alleged in the petition, and not denied in the answer, that it was recorded in St. Louis; besides, it was proved on the trial that it was duly recorded in October, 1843. Having notice of the deed of trust, he had notice that P. H. and S. B. Scott were sureties for Wm. Bailey for the payment of about $2000, principal and interest, to Mrs. E. Cabell, and that the object of the deed of trust was to secure them against their liability as his securities. The record showed that the land was encumbered in favor of the Scotts in the sum of about $2000. It is in nowise material that the instrument, by which their liability to Mrs. Cabell was shown, was misdescribed in the deed of trust. The purchaser, Armstrong, having notice by the record of the liability of the Scotts to Mrs. Cabell, could not have been injured by a misrecital in the deed of trust of the nature of that liability.
    II. There is no weight to be attached to the objection that it appeared by the deed of trust that nothing had been paid at the date of the deed by P. H. and S. B. Scott for Wm. Bailey, and that there was no debt due from him to them which could be secured. (See Duvall v. Raisin et al., 7 Mo. 449.)
    III. The extinguishment of the debt due Mrs. Cabell did not defeat the security created in favor of the Scotts by the deed of trust.
    IY. Parol evidence was admissible to show that P. H. and S. B. Scott, although co-obligors on the face of the bond, were, in point of fact, sureties of Wm. Bailey. (Garrett v. Eurguson’s adm’r, 9 Mo. 125.)
    Y. Under the registry acts of other states, it has been held that though there be a mistake in the record of a deed of mortgage, so that the record does not show an encumbrance corresponding to the fact, but does show an encumbrance altogether different; then, if the encumbrance be as great as or greater than the actual encumbrance, the encumbrancer shall be protected. If the encumbrance shown by the record be less clearly than the actual encumbrance, then the encumbrancer shall be protected to the extent of the encumbrance shown by the record, but no further. (See Beekman v. Frost, 18 Johns. 544; 1 Johns. Ch. 288.) It follows that the mere misdescription can not injure the claim of the encumbrancer, the material thing being the amount of his claim. Misdescription touching the account on which it accrues, can affect no one injuriously.
    YI. The deed of trust should stand good for the whole sum actually due at its date from Bailey to Mrs. Cabell.

      B. A. Hill, for defendant in error.
    I. Armstrong is an innocent purchaser, and it is not competent for plaintiff to charge the land so held by Armstrong, except in strict accordance with the terms of the deed of trust. The deed of trust can not be reformed so as to alter or vary the rights of Armstrong. There does not appear to have been at the date of the deed of trust any indebtedness by Bailey to plaintiffs ; nor does it appear that plaintiffs had endorsed any promissory note to Mrs. Cabell. Plaintiffs are guilty of laches which bar them from asking the aid of a court of equity.
    II. Plaintiffs were joint co-makers of the bond to Mrs. Ca-bell, and can not prove by parol that they were only the sureties of Bailey. They are estopped from denying that they are joint co-makers of the bond. It is impossible then to reform the bond, and there is no prayer for it. This being clear, the plaintiffs can not insist that the bond, as it stood, was the instrument secured to be paid by the deed of trust. The plain language of the deed of trust clearly repels any such presumption. (Jackson v. Sackett, 7 Wend. 94.) Plaintiffs rely upon the evidence of Wm. Bailey to prove the mistake in the deed of trust and the interest he had in making the deed; and they at-, tempt to proye by him that the deed was executed for the purpose of securing a different debt from the one described in the deed. Bailey is not a competent witness to- prove such facts. The suit is prosecuted for his immediate benefit ;■ for if the land is charged with the debt, Bailey is discharged and his debt to plaintiffs is satisfied. (See art. 25, sec. 2 of practice act of 1849 ; Sess. Acts, 1849, p. 100.) /The instrument sought to be reformed for the alleged mistake is within the statute of frauds and perjuries, wbicb requires all sucb instruments no£ only to be in writing, but also duly acknowledged and recorded. There is no ambiguity on the face of the deed ; there is no pre-tence of fraud. It is clearly settled that parol evidence is not admissible to control or substantially vary a written instrument. (Porterichv. Poulet, 2 Atkyns, 38S; 3 Atkyns, 8.) This is the rule at law as well as in equity. (1 Phil. Ev. 448, 449, 551; 1 Greenl. Ev. § 275; Stackpole v. Arnold, 11 Mass. 30, 31; McClelland v. Cumberland Bank, 24 Maine, 566 ; Irnham v. Child, 1 Brown C. C. 92, 95; Kick v. Jackson, 4 Brown C. C. 514; 1 Phil. Ev. 547, 559 and 561; Postimore v. Morris, 2 Brown C. C. 218 ; Woolam v. Plearne, 7 Yesey, 311 ; Cummings v. Arnold, 3 Mete. 489 ; 1 Sugden on Vendors, 155 ; Chitty on Contracts, 97 ; Dwight v. Pome-roy, 17 Mass. 324 ; Bradbury v. White, 4 Greenl. 394; Stephens v. Cooper, 1 Johns. Ch. 429; Movan v. Hays, 1 id. 339 ; Steer v. Steer, 5 id. 1; Church v. Church, 4 Yeats, 280 ; Harrison v. Talbott, 2 Dana, 258 ; Timberlake v. Par-ishj 5 id. 350 ; Brown v. Haven, 3 Eairf. 179 ; Holmes v. Simons, 3 Desons, 149,152 ; Dupree v. McDonald, 4 id. 209 ; Tilton v. Tilton, 9 N. H. 392; Eveleth v. Wilson, 15 Maine, 109 ; Richardson v. Thompson, 1 Hump. 151 ; Chittwood v. Brittain, 1 Greenl. Ch. 439 ; Babcock v. Smith, 22 Piek. 61, 70 ; Leach v. Leach, 18 id. 68.)
    III. Defendant, Armstrong, is an innocent purchaser, and, although he may be said to have had constructive notice of the deed of trust, yet he could not, upon any principle, be held to be affected by the alleged mistake in the deed. He had no notice of any such mistake, and his equity is superior to that of the plaintiffs. (Story’s Eq. § 165 et seq. 1, 77, 8; Sugden on Vend. Ch. 3, p. 143, 159, 7th ed. ; Imenal v. Patterson, 10 Barr. 285 ; Hill on Trustees, 516, 517 ; Jerrard v. Saunders, 2 Yes. jr. 458.) The purchaser must have notice of the mistake, in order to be affected by any such mistake. (United States v. Monroe, 5 Mason, 572 ; Miles v. Bacon, 4 J. J. Marsh. 457, 465; Eerras v. Cherry, 2 Yernon, 383 ; Wall v. Arrington, 13 Greo. 88.) It is well settled that in a case like the present, the mistake must be particularly alleged, and the petition must pray for a reform of the deed. (5 Mason, 572.)
    IY. The plaintiffs have suffered too long a time to elapse before seeking to correct the mistake alleged ; there has been gross laches, and as the equities of the plaintiffs and Armstrong are equal, this court ought to refuse any relief upon that ground alone, if there were no other.
   Ryland, Judge,

delivered the opinion of the court.

This is an action by Patrick H. Scott and Sarah B. Scott against William Bailey and others. It is founded on a deed of trust, dated October 20th, 1843, made by Bailey to Ferdinand W. Risque, of a certain tract of land in St. Louis eounty, m order to secure among other things “ the payment, in twelve months from the date thereof, of about two thousand dollars, to Patrick H. Scott and Sarah B. Scott, being the amount of principal and interest due on a promissory note made by Bailey, in favor of said Patrick H. Scott and Sarah B. Scott, and by them endorsed, and then held by Mrs. Elizabeth Cabell, of Virginia.5’ The action is against the said Bailey .as the creator of the trust, the trustee, Risque, and the purchasers under Bailey, in order to subject the property to the purposes of the trust. The proceeding is under the act of 1847, authorizing deeds of trust to be foreclosed as mortgages. The deed of trust was properly recorded ; the facts were found by the court as set forth in the statement of this case ; and the court below, upon the facts found, dismissed the plaintiffs’ petition. Plaintiffs bring the case here by writ of error.

The court found “that Wm. Bailey, Patrick H. Scott and Sarah B. Scott, on the 8th of November, 1840, made their joint and several bond, under their seals, whereby they bound themselves to pay to Elizabeth Cabell and her heirs one thousand eight hundred and sixty dollars within one year from the 4th of November, 1841.” The court also found that the plaintiffs, P. H. Seotfc and Sarab B. Scott, were tbe sureties of Wm. Bailey in said bond in fact, but co- obligors on tbe face of tbe bond; that Bailey designed to secure tbe payment of that bond by tbe deed of trust to Risque, but that it was mis-described by mistake. Tbe court found that Mrs. Cabell recovered judgment on tbe said bond in 184T, against tbe plaintiffs, and that tbe plaintiffs paid it.

Tbe debt secured in tbe deed of trust is described as follows: “The payment, in twelve months from date of tbe deed, of about two thousand dollars to P. H. and S. B. Scott, being tbe amount of principal and interest due on a promissory note made by Wm. Bailey, in favor of P. H. and S. B. Scott, and by them endorsed, and then held by Mrs. Elizabeth Cabell, of Virginia.” The question here is, whether the description given in tbe deed is, in point of law, a sufficient description of the liability secured against. And it is not, whether parol evidence is admissible to reform the deed, or to show that by mistake one debt was described, when another and a different debt was intended. In the opinion of this court, the description is- sufficient, and the court below should have so regarded it. The grantor in the deed of trust did not pretend to describe tbe instrument with certainty. He says, the payment of about $2000 to P. H. and S. B. Scott, principal and interest, on a promissory note, made by Bailey in favor of them, and by them endorsed and now held by Elisabeth Cabell, of Virginia; whereas, the debt was evidenced by a bond to Mrs. Cabell by Bailey, and the two Scotts were his sureties to her. The object was to secure them for their liability for Bailey’s debt to Mrs. Cabell. There was no attempt to describe tbe instrument particularly; neither the date, the time when due, nor the amount. The grantor knew that he owed Mrs. Cabell about two thousand dollars ; he knew that P. H. and S. B. Scott were bound as bis sureties to her for tbe debt, and in his deed of trust he describes the debt as evidenced by his note to his sureties and by them endorsed to his creditor. The principal matters are set forth with certainty enough : the creditor, Mrs. Cabell, of Virginia ; the securities, and the debt.

In Jackson v. Bowen, (7 Cow. 13,) the reference in a mortgage to the collateral surety was to a bond bearing even date for $750, executed by the mortgagor to the mortgagees. The bond intended was dated a few days prior to the date of the mortgage ; was to the mortgagees and two others'; and was a bond of indemnity, &e., against a promissory note for $750, executed by the mortgagees and two others to the mortgagor or order, dated November 18, 1817, which the makers were obliged afterwards to pay; it was held that the variance was immaterial, and that the reference was sufficiently certain, or, if not, that it might be made so by parol evidence, showing that this was the bond intended. The note in this case, intended by the mortgage, was on demand, payable to the mortgagor or bearer, and dated on the 17th of November, 1817 ; whereas, the bond recited it as a note for $750 generally payable to the obligor or order, and dated 18th November, 1817. This variance was considered as immaterial, and it was held that the obligees might, by parol, show what note was intended by the bond. Woodworth, J., in delivering the opinion of the court, said : “ The mortgage was prior to the judgment; it was to secure $750 according to the condition of a bond executed to the mortgagees. The bond produced was executed to the mortgagees. The reference in the mortgage is not of a bond to them solely, and the addition of two other names is not therefore contradictory. The mortgage does not profess to set out the bond particularly. What is stated is a matter of description merely, not an affirmation of the precise form of the bond. The material fact alleged is, that there was a bond to secure $750 to the persons named as mortgagees ; but whether to them solely or jointly with others, is not averred. It is well settled that even a mistake in a recital to a bond does not vitiate, for it is no direct affirmation, and is not an essential part. In what manner and at what time the bond was payable, is nowhere alleged; that necessarily depended on the instrument referred to. The legal presumption is, that this was the bond intended, at least until some doubt was raised. But there is no room for presumption; the fact is established by parol testimony, which was properly admitted. The condition of the bond recites the .giving of a note for $750, payable to Noble or bearer. Here, the same principle that makes the bond admissible under the description in the mortgage, is applicable. The note is substantially described ; the substitution of bearer for order, according to the doctrine before advanced, is immaterial. It was a mis - description merely. There is satisfactory evidence that this was the note against which the makers were secured. They have taken it up, and were entitled to the benefit of the mortgage as a valid security.” We think the principles of this case from Cowen are correct and sound, and, applying them to the case at bar, it will appear very conclusively that the variance in the description of the debt secured from the debt intended to be secured, and which existed at the time of making the deed of trust, is immaterial. The principal object was to secure the two Scotts as his sureties in a debt due by him (Bailey) to Mrs. Elizabeth Cabell. The deed did not pretend to describe minutely the instrument by which this debt was evidenced ; and the plaintiffs having taken up the bond for which they were his sureties and brought suit upon Jhe deed of trust, it is legally presumed that this was the instrument by which their liability was created for Bailey, and to secure them against which this deed was executed. But the proof of Bailey puts it beyond doubt. The finding of the court also puts it beyond doubt. (See Johns v. Church, 12 Pick. 557.)

There can not be a necessity for this court again to assert that parol proof is properly admissible to show that a co-ob-ligor in a note or bond is a surety for the principal obligor therein. In Duvall et al. v. Rasin et al. (7 Mo. 449,) this court held that endorsers were viewed as creditors, and a deed of assignment for their security is valid, althoughcno payments had been made by them at the time of its execution. The defendants were at liberty to show that this was not the debt intended to be secured by the deed of trust; but in the absence of all proof that there ever was any other debt to Mrs. Cabell which was secured to her by the Scotts as sureties for Bailey, and with the proof before the court, judgment should have been rendered in favor of plaintiffs, subjecting the trust property to sale.

Had the plaintiffs alleged in their petition that they had never become the sureties for Bailey in any other but the one debt, and that this was evidenced by the bond set forth in their petition to Mrs. Cabell, there could' not have remained a shadow of doubt upon their right to offer the proof by parol, that this was the intended debt alluded to in the deed of trust, and consequently of their right to recover and subject the trust estate to the purposes therein mentioned. ,

Upon the whole case, it is the opinion of this court that the judgment below must be reversed, and the cause remanded,

the other judges concurring.