text:
    Hood, Defendant in Error, vs. Mathis & Sally, Plaintiffs in Error.
    1. A court cannot direct a verdict for one of two defendants, for the purpose of enabling his co-defendant to introduce him as a witness, if there is any evidence at all against him.

      2. It is too late to make the application after the evidence and arguments on both sides are closed, when it is altogether within the discretion of the court whether the case shall he opened for the admission of further evidence.
    3. It is no abuse of the discretion of a court to allow a plaintiff, after the argument is commenced, to recall a witness to supply an unintentional omission.
    4. As the action of use and occupation can only be maintained when the relation of landlord and tenant exists, it is unnecessary for the plaintiff to show title.
    5. Under the third and fourth sections of article 8, of the act concerning justices’ courts, (K. C. 1845,) where judgment is rendered by the justice against two defendants, the surety in the appeal bond is liable, though the judgment in the appellate court is only against one of them.

      Error to Benton Circuit Court.

    This suit was commenced before a justice of the peace by Hood against Mathis & Williams for a year’s “ rent of ten acres of land.” There being a judgment against the defend- ' ants in the justice’s court, they appealed to the Circuit Court, giving the statutory bond, conditioned for satisfaction “if the judgment of the justice be affirmed, or if on the trial anew in the Circuit Court, judgment be given against the appellants.”
    At the trial in the Circuit Court before a jury, there was evidence tending to show that the defendant, Williams, owned land adjoining that of plaintiff, and that there was a dispute as to their division line. The line was run by a surveyor, and a witness “ thought” that, though Williams was dissatisfied with it, it was understood that it should stand until the field notes could be obtained. Williams had previously been, and continued to remain, in possession of a cleared field on plaintiff’s side of the line ; and he agreed with Mathis that if he would make a crop of corn on the field, he should have one-third of the crop, and he (W.) would furnish team and hands. The field was afterward worked by Mathis and a son of Williams. There was evidence tending to show that Mathis promised to pay plaintiff the rent of the land in corn, but one witness stated that he never heard any thing said about rent until the crop was made. There was no evidence of any express promise on the part of Williams. The plaintiff offered to show title, but his evidence was excluded on the objection of the defendants. After the close of his case, and after two of the defendants’ counsel had addressed the jury, plaintiff was permitted to recall a witness to prove the value of the corn, to which the defendants excepted. After the close of the argument on both sides, the defendants’ counsel asked the court to pass upon the evidence against Williams, in order that he might be introduced as a witness ; but the court declined to do so, and an exception was taken.
    The court instructed the jury, that if the defendants rented the land and promised to pay the rent, and occupied under such renting, they were liable.
    An instruction that the possession of Williams was prima facie evidence of ownership, and that it was necessary for the plaintiff to show title, was refused. An instruction that a promise by Mathis to pay the rent was not binding unless there was a consideration was refused, but offered to be given with the qualification that the use of: the land was a sufficient consideration. The jury returned a verdict against Mathis, and in favor of Williams, upon which judgment was entered against Mathis, and Sally, the surety in the appeal bond.

      F. P. Wright, for plaintiff in error.
    1. The court should have permitted the jury to have first passed upon Williams, so that Mathis might have had the benefit of his testimony. {Campbell & Brown v. Hood, 7 Mo. Rep. 211. Brown v. Burns, 8 Mo. Rep. 26.) 2. The evidence did not warrant the instructions given, and those refused should have been given. The action for use and occupation is founded upon the relation of landlord and tenant, and can only be maintained where there is an agreement, express or implied. An agreement may be implied from a permissive holding, but there was no evidence that Williams held by permission of Hood. Mathis took possession as the tenant of Williams, and Hood never said any thing to him about the rent until he had made his crop, and a promise then to pay would have been void both as an attornment to a stranger, (R. C. 1845, tit. Landlord and Tenant, § 11,) and as without consideration. The use of the land was no consideration unless plaintiff showed title. 3. It is submitted whether judgment could be entered against the surety in the appeal bond, Williams having been acquitted. 4. The court erred in permitting plaintiff to introduce evidence in chief after he had closed his case.

      Gardenhire, for defendant in error.
    1. There was no error in refusing to let the jury pass upon Williams’ case, that he might be brought in as a witness for Mathis. If there was any evidence at all against him, he could not be a witness. (1 Phill. Ev. 73. Cow. & Hill’s notes, pari 1, 143. 14 Johns. 119. 15 Johns. 223. 1 Root,~~4_SQ_. Addis. 353. Coxe, 1.) 2. The instructions given were unquestionably proper, as they made plaintiff’s right to recover depend upon a renting from Hood, a promise to pay the rent, and occupation under such renting. Under these instructions, no question can arise about consideration or attornment to a stranger. 3. Under plaintiff’s instructions, be could not recover unless tbe relation of landlord and tenant existed, and if it did exist, tbe tenant could not dispute bis landlord’s title. 4. Tbe judgment against tbe surety in the appeal bond was proper. (R. C. 1845, p; 668, sec. 4, p. 671, § 23.) 5. The manner of examining witnesses is within tbe discretion of tbe court trying tbe cause. (8 Mo. Rep. 26.)
   Leonard, Judge,

delivered the opinion of the court.

1. The rule as to the acquittal of a defendant, in order that be may be examined as a witness for bis co-defendant, is thus stated by Gilbert, in bis Law of Evidence, p. 117: “ If any person be arbitrarily made a defendant to prevent bis testimony in tbe cause, be shall not prevail by that artifice, but tbe defendant against whom nothing is proved shall be sworn notwithstanding ; for here the defendant does not swear in bis own justification, but in justification of another, with whom be is joined in tbe action unnecessarily; and were not this allowed, it were but for tbe plaintiff to turn all the several witnesses into defendants, and be might be able to prove what be pleased, without contest; therefore, if there be an action of trespass against two, and there be no evidence against one of them, he may be evidence for tbe other.”

In order, however, to render him a competent witness, the practice now is to direct tbe jury to find a separate verdict in bis favor, and the case being thus at an end as to him, his competency is restored. (1 Phil. Evidence, 56.) Some difference, it seems, has prevailed in tbe practice of tbe courts as to tbe point of time in tbe progress of the cause at which the acquittal is to take place. (1 Phil, on Ev. 57. Huxly v. Berg, 1 Stark. 98. Wright v. Paulin, 1 Ry. & Mo. Rep. 128. Wynne v. Anderson, 3 Car. & Payne, 596.) But in Child v. Chamberlain, (6 Car. & Payne, 216,) Park, Justice, said: “It has been settled by tbe unanimous opinion of tbe judges, that if there is no evidence against any one defendant, at the conclusion o£ the case on the part of the plaintiff, such defendant is to be acquitted, so that all tbe defendants, not fixed by the plaintiff’s evidence, are to be acquitted before any part of the defendant’s evidence is gone into.”

Gilbert (Law of Evidence, 118) states that the rule must be understood, where there is no manner of evidence at all against the defendant; for, if there be evidence against one, though not enough to convict him, in the judge’s opinion, yet such person can be no witness for the other, because his guilt or innocence must wait the event of the verdict, for the jury are the judges of the fact and not the judges and in Brown v. Howard, (14 John. Rep. 119,) it is said, “ where the least evidence is given against one of several wrongdoers, he cannot be discharged on the trial, for the purpose of being received as a witness.” The court, it seems, directs the acquittal, and of course, the rule is only applicable where there is a defect of evidence to carry the case to the jury as to the particular defendant whose discharge is asked for, of which the court is the proper judge, and not where the question is as to its sufficiency to convict the party, which is a matter to be submitted to the judgment of the jury. Under the English law, the rule cannot be applied to actions upon contracts, except, perhaps, in cases where one of several defendants has pleaded a personal discharge, as a certificate in bankruptcy. (Currie v. Child, 3 Camp. 283. Emmet v. Butler, 7 Taunt. 599. 1 Moore, 332. Bate v. Russell, Moody & Ma. 332.) But it is otherwise, under the altered condition of our law in relation to suits upon joint undertakings. (Campbell & another v. Hood, 7 Mo. Rep. 211.)

2. In the present case, however, we do not think that there was such a lack of evidence against Williams as made it the duty of the Circuit Court to direct his acquittal, in order that he might be examined as a witness for his co-defendant; but if there was, we could not reverse the judgment, because the application was made after the testimony and the argument on both sides was closed, at a time when it was altogether within the discretion of the court whether the case should be opened for the admission of further evidence, and there is nothing in the record showing that this discretion was at all abused.

3. Neither did the court abuse its discretion in allowing the plaintiff to recall a witness to prove the value of corn ; the omission of this proof was a mere slip, unintentional, of course, and proper to be supplied.

4. We cannot discover any error in the ruling of the court as to the law of the case, either in the instructions given or in those refused. The action was for the use and occupation of land, and, of course, the plaintiff could not recover, unless the relation of landlord and tenant existed between him and the defendants ; and if it did, they were not at liberty to controvert his title.

5. The judgment was also properly entered against the defendant’s surety in the appeal bond, notwithstanding the acquittal in the Circuit Court of one of the two defendants against whom the original recovery was had. To hold otherwise, would be a very narrow construction of the statute, (R. C. 1845, tit. “Justices’ Courts,” art. 8, sections 3 and 4,) required neither by the words of the act nor the obvious intention of the legislature, and tending rather to defeat than to promote the administration of justice.

The judgment must be affirmed.


source: Caselaw Access Project

author: Scott, Judge, Ryland, Judge.

license: Public Domain

text:
    Beatie & others, Appellants, vs. Butler & Fowler, Respondents.
    1. The dealh of the mortgagor does not extinguish or suspend a power of sale in a mortgage.
    2. An innocent purchaser at a sale under a power in a recorded mortgage is not affected by an unrecorded agreement executed by the mortgagee at the date of the mortgage that the time of payment of the mortgage debt should be extended upon payment of interest.
    3. Possession by the mortgagor’s tenant is not notice to the purchaser of the unrecorded agreement.

      4. As to the effect of possession as notice of an equity or unrecorded title under our statute of conveyances.
    5. Notice that a sale was to take place “ at the town of St. Joseph,” held sufficient notice of the place of sale under the circumstances.

      Appeal from Buchanan Circuit Court.

    This was a petition to set aside a sale made under a mortgage, by the mortgagee. The plaintiffs were the heirs at law and widow of Josiah N. Beatie, deceased, and the defendants were Martin Butler, the mortgagee, and William Fowler, the purchaser of the mortgaged lots.
    The facts were found by the court, and may be stated to be these:
    On the 21st of December, 1844, Beatie borrowed of Butler $1525, and bought a stock of goods of Butler & Dynes, (partners in trade,) for $2147 52, and gave his note for the first named sum, payable on the first of January, 1846, with interest at ten per cent., and anote for the second named sum, payable on first of May, 1847, with ten per cent, interest from January 1st, 1846. To secure these debts, he executed on the same day a mortgage of lots 1, 2 and 3, in the town of St. Joseph, and a large tract of land in the county of Andrew, and five negroes, conditioned that if Beatie failed to pay said sums, or any part thereof, with the interest thereon, at the time the same should become due, Butler, the mortgagee, was empowered, upon thirty days’ public notice being given in three of the most public places in the county of Buchanan, by posting up written advertisements describing the property and the place of sale, to sell for cash in hand said property in the manner following, to-wit: So much thereof, to be selected by Butler, as would satisfy the note for $1525 and interest; the residue to be also sold in manner and form above stated, if required for the liquidation of the note for $2147 52. This mortgage was acknowledged and recorded December 23, 1844.
    At the same time, Beatie and Butler executed an agreement, under seal, by which it was agreed that if Beatie should pay the interest of the $1525 note, (which was due January 1st, 1846,) he should not be required to pay the principal before January 1st, 1847. This agreement was retained by Beatie and not recorded.
    In 1845, Beatie died, leaving a widow and several infant children. Administration upon his estate was granted by the county court of Andrew county to Prince L. Hudgins. Beatie died in possession of lots 1, 2 and 3, in St. Joseph, and after his death, his administrator took possession by his tenants.
    On June 4, 1846, Butler gave notice that he would sell the farm of 1000 acres in Andrew county, and the lots in St. Joseph, Nos. 1, 2 and 8, at the town of St. Joseph, on the 6th of July, 1846. These notices were posted up as required by the deed.
    On the 15th of June, Butler went to Andrew county, and the county court, at his instance and with the consent of the administrator, made an order on the administrator to pay the interest on the $1525 note, and Butler was paid the amount of the interest up to that date. This payment was claimed and made under and by virtue of the article of agreement of December 21st, 1844. The agreement was not produced at the time, but was found by the administrator long after the sale.
    On the 6th of July the sale was made on the premises, and it was found by the court that they sold for their full cash value. St. Joseph, at the time of the sale, was a town of about five hundred inhabitants,* and the business part of the town was confined almost entirely to two blocks adjoining the lots sold. The sale was well attended. Hudgins, the administrator, was present, but made no objection to the sale, and after it was over, directed the tenants of the lots to pay rent to Fowler; the purchaser. Fowler had no notice of the agreement in relation to the extension of credit, nor of the payment of interest, but knew of the possession of the lots by the administrator’s tenants. At the time of the sale, all of Beatie’s children were minors. No notice of the sale was given either to the widow or heirs of Beatie.

      Upon this state of facts, the court was asked to set aside the sale and permit the heirs of Beatie to redeem the lots by paying the principal and interest of the purchase money paid by Fowler. The bill was filed in November, 1851. The Circuit Court refused to set aside the sale and dismissed the bill, and an appeal was taken.
    Napton, (with Abell & Stringfellow,) for appellant.
    1. The death of the mortgagor, Beatie, extinguished the power to sell. (Gibsoti’s heirs v. Jones, 5 Leigh, 370.) 2. The mortgage and the article of agreement, executed at the same time, and relating to the same subject matter, are but one instrument. (4 Mass. 569. 1 Johns. Cases, 91. 15 Johns. Rep. 463. 3 Wend. 234. 8 Mo. Rep.149. 13 Wend. 114. Whitehurst v. Boyd, 8 Ala. Rep. Sewall v. Henry, 9 Ala. Rep. 5 Pick. 395. 10 Pick. 250, 302.) 3. The agreement by which, upon payment of interest, on the $1525 note, the payment of the principal was deferred until January 1st, 1847, was a valid agreement. 4. The payment of the interest by Beatie’s administrator, though made after the day fixed by the instrument, having been accepted by Butler, was as effectual as if made on the day. (15 Pick. 262. 10 Mass. Rep. 419. 11 Mass. 217. 1 Conn. 91. Co. Litt. 218, a. 3 Salk. 3. Cowp. 808. 2 T. R. 925. 1 Conn. 91.) 5. If the foregoing propositions be correct, it follows that the sale of the mortgaged premises on the 6th of July, 1846, was made six months before the debt was due. Such sale can convey no title to a purchaser, any more than a sale under a mortgage after the mortgage debt has been paid. A purchaser under a power buys at his peril, and if there is no subsisting power or authority to sell, no title is acquired, and this principle equally reaches the case of a bona fide purchaser without notice. (Wood v. Colvin, 2 Hill, 566. Jackson v. Anderson, 4 Wend. 482. Stafford v. Williams, 12 Barbour, 240. Jackson v. Moore, 18 J. R. 441. 1 Watts & Serg. 333. Jackson v. McKinney, 3 Wend. 234. Bevinney v. Smith, 3 Johns. Ch, Rep. 344. 7 J. R. 217, 226. 6 Wend. 213. 11 Barbour, 191.) 6. But it is insisted that Eowler had notice. The possession of Beatie and of his representatives, after his death, was known to Fowler before he bid for the land and before he paid his money. This was notice of every claim which the tenant could enforce against the vendor. (16 Yes. 249. 7 Yes. 436. 14 Yes. 596. Landes v. Brant, 10 Howard. 2 J. J. Marsh. 180. 3 Paige, 421. 5 Johns. Ch. Kep. 32.) 7. Where a trust or authority is delegated for mere private purposes, the powers of the trustees, whether express or implied, must be executed strictly; and the principle applies equally to trusts, or powers coupled with an interest, as to mere naked authorities, where the trust or power does not survive. (8 Cow. 583-4. 4 Kent. 330.) 8. The notice of the place of sale was insufficient. (5 Leigh, 370. 3 Johns. Ch. Eep. 344-5. 7 J. R. 217. 1 Bibb, 257. 1 Peters, 138. 4 Dana, 185.) 9. Where the existence of a power depends upon some fact not apparent on the face of the deed creating it, the existence or non-existence of the fact must necessarily be established by parol. In such cases, all that courts can require is, that the tenant in possession shall act in good faith, and give the proper information when called upon. If his conduct or language mislead a purchaser, the latter would not be disturbed ; but if he is without fault, the equity of the former being equal to that of the latter, his legal title, having never been divested through the want of power on the part of the vendor, will be preferred.
    Gardenhire, Vories, Hall and Loan, for respondents.
    1. The power being coupled with an interest, Butler had power to sell after Beatie’s death. (Story’s Ag. § 489. 8 Wheat. 203-4-5. 4 Kent, 147. 5 Paige, 114. 1 Caines’ Cases in Error, 1. 4 J. C. R. 37,115. 10 Paige, 208. 3 Litt. 410. 1 Greenleaf’s Cruise, book 2, p. 99.) 2. Fowler was only bound to look to the mortgage as he found it upon the record, and is not bound or affected by the agreement between Beatie and Butler for the postponement of the payment of the note to Butler, being a purchaser for a full consideration, without notice of the agreement. (14 Serg. & R. 334, 389. 7 Watts, 382. 5 Pick. 459. 1 Paige, 208. 5 Binney, 314. Story on Ag. § 73. 12 Mod. 346. 3 Litt. 410, 423. 6 Johns. 144. 3 Pick. 177. 5 Gill & Johns. 383. 5 Yermont, 149. 1 Paige’s Ch. Rep. 202.) 3. Our statute (R. 0. 1845, tit. Conveyances, § 42,) provides that no instrument in writing, affecting real estate in law or equity, is valid except between the parties thereto, and such as have actual notice thereof, until the same is deposited with the recorder for record. As to the meaning of actual notice, see Story’s Eq. § 399. 2 Bouv. Law Die. 241. 8 Mo. Rep. 24. 13 Mo. Rep. 299, 300. 11 Metcalf, 247-8. 26 Maine, 484. 29 Maine, 140, 144, 145, 146.) 4. The possession by tenant was not even constructive notice to Fowler of the unrecorded agreement. It was not adverse to, but consistent with the title sold by Butler. At most, it could only impart notice of the tenant’s title, and not of the landlord’s. (Story’s Ag. § 72-3. 5 Binney, 314. 2 Sug. on Yend. top p. 339. 7 Watts, 272. 2 Sumner, 486, 554-5-6-7. 23 Maine, 170.) 5. The notice of the place of sale was sufficient. It was reasonably certain as to place, and sufficient to prevent fraud or the sacrifice of the property. (12 Wheat. 570. 13 Ohio, 120. 13 Mo. Rep. 398. 14 Mo. 345. 7 Ohio, 16. 10 Mo. Rep. 96.) 6. Notice of sale to Beatie’s heirs was not necessary. He himself would not have been entitled to notice, and they stand in no better condition. 7. The article of agreement did not affect the power of sale in the mortgage. It only gave Beatie a right to recover damages of Butler for a violation of its provisions. (1 Paige, 202. 3 Litt. 410. 6 Mo. Rep. 392. 7 Mo. Rep. 462.) 8. The interest was not paid until after the time fixed by the agreement, and so the condition, upon which the sale was to be postponed, was not complied with.
   Scott, Judge,

delivered the opinion of the court.

1. The argument that the death of Beatie should have suspended all proceedings under the mortgage, in analogy to the suspension of all process of execution under the administration law, against tbe estates of decedents, cannot be maintained. The law may suspend its own process. As it gives the process, it may regulate it. But deeds of trust and mortgages, with the power of sale, arise from the consent and agreement of parties, and there is no propriety in depriving creditors of the fruits of their foresight and caution. The statute of the 25th January, 1847, is an answer to the argument. That statute, notwithstanding the death of the grantor, in a deed of trust recognizes a right of sale in the trustee, though its exercise is postponed for nine months after the death of the maker of the deed. At this term of the court, in the case of Chase, adm'r, v. Grant, adrrv'r, we have held that the death of a mortgagor did not suspend nor defeat the proceedings to foreclose a mortgage, given by the act concerning mortgages.

2. We do not see the force of the argument that the mortgage and the agreement to postpone the sale, are to be regarded as one instrument. It may be so ; yet the registry act is to be considered. If it requires an instrument to be recorded, and it is not done, the party guilty of the negligence must suffer the consequences. Beatie had his agreement in his pocket, and if he failed to put it upon record, it was his own folly. An innocent purchaser cannot be made to suffer for his neglect. The deed conveyed to Butler the land, with a power of sale. As the estate was in him entirely, it is impossible to see how the death of Beatie could affect his power over it. The distinction! between the mere grant of a power and of an estate is obvious to every member of the profession, and is recognized on alii occasions. Where there is a mere grant of power, the death of the grantor of the power extinguishes it. It cannot be exerted-,, because when exercised, the act relates back to the date of the-power; and as the author of the power is dead, he can do no-act. To give it effect, would produce the absurdity of making, a dead man do a valid and binding act. But, when the estate-is granted, coupled with a power, then it is as though it belonged to the grantee, and was his own property. His conveyance at law is binding and effectual, whether he conforms to. tbe limitations imposed on tbe exercise of tbe power or not» But courts of chancery will, in such cases, compel tbe observance of the restrictions imposed on tbe trustee ; and if a vendee is cognizant of a violation of the trust, or is guilty of laches, in not informing himself of restrictions on the power, when he should have done it, he must suffer the consequences. But if the owner of an estate will convey it absolutely, with a power of sale, and a sale is made to an innocent purchaser, he cannot complain that restrictions were not complied with, which he himself has failed to make known.

We do not consider that the cases in which it has been held that a sale under a satisfied judgment was void, are in point. Here, there was no extinction of the debt. It remained and was unsatisfied. Neither the debt nor the power was extinguished. It was a mere question of time. The deed, as recorded, showed that the power might be exercised. If there were any impediments to its exercise, the ignorance of those impediments was caused by the laches of the grantor, and the consequences of his neglect cannot be visited on an innocent purchaser.

We do not see that the case of Jackson v. McKinney, (3 Wend. 234,) has any application to the controversy under consideration. There was no question made in that suit as to notice or the registry of deeds. The case turned entirely on the effect of a deed of conveyance under the statute of uses. That, too, was an action of ejectment.

3. We cannot perceive what the doctrine of notice has to do with this case. There is no one claiming an interest in the land in controversy but the heirs of Beatie. If Beatie were alive, could he set up any equity in himself, growing out of the fact that he had a tenant on the land ? Beatie had no equity as against the purchaser under Butler. How can the fact that Beatie had a tenant on the land give him an equity ? If the estate conveyed by him was justly sold, so far as the purchaser, Fowler, was concerned, even admitting that notice of the tenant’s title was notice to him of Beatie’s title ; it was Beatie’s title he was purchasing, and it was that which he acquired. They who insist on the fact of notice in Fowler, seem to labor under the impression that the possession of the tenant of Beatie was notice to Fowler of the existence of the agreement postponing the sale. This is an error. At most, it could only be evidence of a title or right in Beatie, and, as Fowler was purchasing Beatie’s right, conveyed by the deed to Butler, of what avail was notice of Beatie’s right ? The constant course is for the mortgagor to remain in possession of the mortgaged premises until a sale or foreclosure; and would it not be a monstrous doctrine that the possession of the mortgagor or his tenant, at the time of sale, should be constructive notice to every purchaser of every latent defect in the proceedings to foreclose the mortgage?

But the possession of the tenant, if notice at all, was only notice of his own right, not of that of his reversioner. This seems to be the settled doctrine. (2 Sug. 293. Flagg v. Mann and others, 2 Sumner, 557.) In this case, there is no tenant who is opposing the right acquired by Fowler, under the proceedings of the mortgagee to foreclose the mortgage.

4. But we do not consider that, under our statute regulating conveyances, that possession by itself can be considered as any hind of notice. If the fact of an adverse possession is brought home to a purchaser, it may be evidence to be left to the jury, with other circumstances, to receive that degree of weight to which they may think it is entitled. But mere possession of itself is no notice, either actual or constructive, under our statute of conveyances. This conclusion is arrived at, not by overthrowing English or American cases on this subject, but by giving to our statute that construction its language and spirit require.

It is a requirement of our statute that every instrument in writing that conveys any real estate, or whereby any real estate may be affected in law or equity, be recorded; and no such instrument can be valid, except between the parties thereto and such as have actual notice thereof, until it is recorded. In this enactment, we may see a great advance to the measure of having all instruments in writing, affecting real estate, spread upon the record. This is done with a view to prevent strife, litigation and fraud. If one desires to purchase a tract of land and sees another in possession of it, what is more natural, under our law, than that he should go to the record and examine whether the person in possession has any deed or instrument in writing conveying to him any interest in it ? If he finds none, to what other conclusion can he come than that the person in possession has only such an estate as by the statute of frauds and perjuries may be conveyed without writing, which can only be a loase or estate at will ? Why should a purchaser go to the tenant to make inquiry of his estate in the land, when the law refers him to the record ? In England, he goes to the tenant, for the obvious reason that there, by the general law, no deed is required to be recorded. It is this adherence to English authorities, made under a system of law which has little or no resemblance to ours, in this respect, which is daily depriving us of the benefit of our registry acts. We cannot be too cautious in adopting the English law on this subject, for, except in particular localities, it has never required deeds to be recorded; while the object of ours seems to be, to have every instrument affecting real estate spread upon the public records. In England, strained implications of notice are made to correct the frauds and injustice resulting from the want of a registry act. In this state, to affect purchasers with such implications is to mislead and deceive them. They have a registry law to protect them, and after they have resorted to it, and are assured of their safety, to affect them with circumstances which are little or no evidence of notice, would be a great injustice. So long as our courts adopt the English law with respect to notice, so long they weaken the effect of our registry act, by inducing persons having instruments in writing, affecting real estate, to withhold them from record, and introducing all the evils our statute regulating conveyances was designed to prevent. In states were there is a registry act, though without the stringent provision that is found in ours, it has been held that the notice of an unrecorded deed, to affect a subsequent purchaser, must be such as, with attending circumstances, will affect him with actual fraud. A notice, merely sufficient to put a party upon inquiry, is not sufficient to break in on the registry act. (Dey v. Dunham, 2 J. C. R. 182. Jolland v. Stainbridge, 3 Ves. 478.)

Our statute uses the words “ actual noticeP Now what is aetual notiee, and how is it to be proved? What is actual notice, we conceive, is a question of fact for a jury. When this is said, we suppose the matter is made sufficiently explicit. The jury will only find the facts when such evidence has been submitted to them as produces the conviction that a purchaser was really aware of the existence of the instrument which he seeks to defeat at the time of his purchase. Now what evidence is it to a jury that a purchaser had notice of the title of another in possession, when it is not shown that he was aware of the fact that there was an adverse possession. The fact that another is in possession, when known to a purchaser, may be submitted to a jury, in connection with other circumstances, to show that he had actual notice of an adverse title. But the mere fact itself, with nothing more, cannot, as we conceive, tend, in the least, to a conviction that there was any notice, such as is required by the statute. Actual notice does not require positive and certain knowledge, such as seeing the deed; but that is sufficient notice, if it be such as men usually act upon in the ordinary affairs of life. When it is shown that purchasers are affected with a knowledge of such circumstances, then the foundation is laid from which the inference of actual notice may be drawn. ( Curtis v. Mundy, 3 Metc. 405.) In the states of Maine and Massachusetts, there are registry laws similar to those found in our code. In legislating upon the subject now under consideration, they require actual notice," in order to affect a subsequent purchaser, with knowledge of a prior unrecorded deed, and these words, in their acts, receive the interpretation that has been given them in the preceding observations. In the case of Pomeroy v. Stephens, (11 Metc. 244,) the court held that, “ under the statute which provides that no unrecorded deed of an estate, in fee or for life, shall be valid except against the grantor, &c., and persons having actual notice thereof, evidence of open occupation of land, and fencing it, by a party who has an unrecorded deed therefor, is not sufficient to warrant the inference that a third person had any notice of such deed. It was said that, since this provision, no implied or constructive notice of an unregistered deed will give it validity against a subsequent purchaser ; that it was not sufficient to prove facts that would reasonably put him on inquiry. He is not bound to inquire, but the party relying on an unregistered deed, against a subsequent purchaser, must prove that the latter had actual notice of such deed.” To the same effect is the case of Stafford v. Weston, (29 Maine Rep.) where the foregoing case is cited with approbation.

What has been said in relation to the doctrine of notice, is only intended to be applied to the notice alluded to in our statute concerning conveyances, or, in other words, to that notice which is set up to affect or defeat a subsequent purchaser or incumbrancer of an estate in favor of one holding the same or asserting an interest therein, under a prior unrecorded deed or instrument of writing. The learning in relation to notice, as applied in various other transactions, sometimes being founded on equitable notions, sometimes depending on considerations of policy, is not designed to be affected by any of the foregoing remarks.

5. We cannot say that the advertisement of the sale of the premises by the mortgagor, was not made in compliance with the terms of the deed. The deed required that the property sold and the place of sale should be described in the advertisement. The property was advertised to be sold in the town of St. Joseph. It is objected that this was too vague a description of the place of sale. It is not pretended that there was any sacrifice of the property, growing out of the vagueness of the description of the place of sale. The administrator of the estate of Beatie was present. The business of the town of St. Joseph was done almost entirely in two blocks. The property was sold on the premises, which adjoined these two blocks, and on the same street with them. The town contained about five hundred inhabitants at the time, and thirty or forty persons were present at the sale.

Judge Ryland concurs in affirming the judgment, though not in so much of the opinion as relates to what is notice, under the act concerning conveyances. Judge Leonard not sitting.

Ryland, Judge.

I concur in affirming the judgment, but do not concur in that part of the opinion relating to notice from possession under our statute.


author: Leonard, Judge, Scott, Judge,

text:
    Wilson, Appellant, vs. Drumrite & Vaughn, Respondents.
    1. Every conveyance, intended as a security for money, is a mortgage, and no agreement of the parties at the time can take away or limit the right of redemption.
    2. W. by deed absolute on its face, conveyed land to D. as security for the price of the land warrant. There was a verbal agreement that D. should reconvey if the money was paid by a specified day; hut if not, the land was to he his, and he was to sell the same to get his pay. The money not being paid within the time limited, D. conveyed a portion of the land to a purchaser for value, without notice. In a suit by W. to redeem, held that the conveyance was a mortgage, and that D. could be compelled to account for the value of the land sold, and reconvey the residue.
    (Scott, J., dissenting, holding that the transaction was a mortgage with power of sale, and W. was only entitled to a reconveyance of the land unsold.)

      Appeal from, Greene Circuit Court.

    This was a suit brought by Wilson against Drumrite & Yaughn, the object of which was to redeem two hundred acres of land, held under a conveyance from the plaintiff to Drum-rite, purporting to be absolute, but claimed by the plaintiff to have been intended as a mortgage. The defendant, Vaughn, held one hundred and twenty acres under a deed from Drum-rite, but was alleged to have purchased with notice of the plaintiff’s equity.
    The petition stated that, in 1849, Drumrite sold a land warrant to the plaintiff at the price of $125, to secure the payment of which, plaintiff' conveyed to Drumrite the 160 acres, upon which he located the warrant, and also another forty acre tract owned by him, the whole being the land in controversy.
    The defendants, in their answer, admitted the sale of the warrant, but denied that the subsequent conveyance was made as a security for the price, or was intended as a mortgage. They stated that plaintiff proposed to give Drumrite a mortgage, but he refused to accept it. They stated the facts to be, that upon the negotiation for the purchase of the warrant, plaintiff agreed to convey to Drumrite the land upon which it was located and the other tract, if Drumrite would verbally agree to reconvey upon payment of the price of the warrant, at the time agreed upon, viz : Fifty dollars in six weeks, from the date of the entry, and seventy-five dollars by the first of March, 1850, and, if plaintiff did not pay according to contract, the whole of the land should be Drumrite’s, and he should sell any or all of it to pay himself for his warrant and trouble; that Drumrite assented, and under this agreement transferred the warrant and received the conveyance ; that plaintiff failed to pay when the money became due, and that afterwards Drum-rite sold three of the tracts to Vaughn for $140, which, together with twenty dollars received from the plaintiff, he conceived would compensate him for the warrant, and his trouble and expenses ; and that he had offered to reconvey to plaintiff the remaining eighty acres, but plaintiff had refused to receive a conveyance. The defendant, Vaughn, denied any notice of the plaintiff’s equity, and alleged that he purchased in good faith and for value ; and the jury, in a special verdict upon issues submitted by the court, of which this was one, found such to be the fact.

      Upon the special finding of tbe jury upon the issues submitted, (one of -which was whether the conveyance was intended as a mortgage,) the Circuit Court rendered a judgment for the defendants, from which the plaintiff appealed.

      J. M. Richardson argued the case for the appellant,
    but his brief is not found on file.

      Wright & Price, for respondents.
    1. The conveyance being absolute on its face, it was a, question of fact for a jury whether it was intended as a mortgage, and they having found that it was not, this court will not disturb the finding. (16 Mo. Rep. 129 — 240.) 2. The most favorable light in which the transaction can be regarded for the plaintiff is, that it was a conditional sale ; and having failed to pay at the time agreed upon, his conditional right ceased. The payment was optional with Wilson. In a mortgage, there is an obligation to pay. (1 Call’s Rep. 244. 7 Cranch, 218. 7 Conn. 143. Powell on Mort. 173. 1 Madd. Ch. 516. 1 Vernon, 268.) 3. Even if the conveyance is to be regarded as a mortgage, Vaughn is not affected by it, as the jury found that he was a purchaser in good faith without notice. (2 Sumner, 234.) 4. The petition contained no equity. The land on which the warrant was located belong to Drumrite until he was paid for the warrant. He only sold a part of the land for the purpose of making his money, and offered to reconvey the entire balance. The equity of redemption was attached to mortgages on account of the hardships of the law, and equity will not interfere when injustice may be done the mortgagee. (1 J. J. Marsh. 344. 5 Eng. Cond. Ch. Rep. 268.) 5. A deed absolute on its face cannot be shown to be a mortgage in the absence of fraud, accident or mistake. (2 Story’s Eq. § 1018.)
   Leonard, Judge,

delivered the opinion of the court.

1. In Hargrave and Butler’s notes on Coke’s First Institute, (205, a, Note 96, Book 3,) it is said : “ It may be laid down generally, and subject to very few exceptions, that, wherever a conveyance or assignment of an estate is originally intended as a security for money, whether this intention appear from the deed itself or any other instrument, it is always considered in equity as a mortgage, and redeemable even though there is an express agreement of the parties that it shall not be redeemable, or that the right of redemption shall be confined to a particular time, orto a particular description of persons.”

By the English law, a conveyance of property as security for the payment of money, is a redeemable mortgage, no matter what the parties intend in reference to the right of redemption. This right is inseparably incident to such a conveyance, and can only be extinguished by a judicial sentence of foreclosure or a sale pursuant to the agreement of the parties. The equity of the moi’tgagor is said to be part of the law of the land, so that it cannot be provided against or controlled by the contract of the parties ; and every effort that has been made to create an irredeemable security for money, by a conveyance of property, has been met and frustrated by the courts. ( Seton v. Slade, and Hunter v. Seton, 7 Ves. Rep. 272. 1 Hilliard on Mcrtg. ch. 4, sec. 1, and cases there cited.)

We learn that creditors under the Roman law, in the time of Justinian, attempted to restrain the right of redemption by providing that the conveyance should be absolute unless the money was paid at the day ; but that emperor declared, on the ground of public policy, that all such stipulations should be void as originating in, and tending to, oppression. (1 Spence Equit. Jurisdiction, 600.)

Undoubtedly, a party may make a sale of his property, with the privilege of repurchasing it at a specified price, or, as it is usually termed, a conditional sale; but he cannot, under the color of such a transaction, create an irredeemable security for money. It is said by Ruffin, Justice, in Poindexter v. McCannon, (1 Dev. Eq. Rep. 375, 376 :) “A mortgage and a conditional sale are nearly allied to each other. The difference between them is, that the former is a security for a debt, and the latter is a purchase for a price paid, or to be paid, to become absolute on a particular event, or a purchase, accompanied by an agreement to resell upon particular terms. The only difficulty is to ascertain the character of the transaction. When it is once ascertained to be a mortgage, all the consequences of account, redemption, and the like, follow, notwithstanding any stipulations to the contrary; for the power of redemption is not lost by any hard conditions, nor shall it be fettered to any point of time, not according to the course of the court.”

2. The present transaction, according to the defendant’s own account of it, was a security for money; and it is quite immaterial that there was no written obligation or express undertaking on the part of the debtor to pay. A debt was contracted by the purchase of the warrant.

The defendant, (we confine ourselves to his own statement of the matter,) sold the warrant for one hundred and twenty-five dollars, upon credit, payable in two instalments, and, to secure the payment of the money at the times agreed upon, took from the defendant an absolute conveyance of the land located by the warrant, and of an additional forty acre tract that belonged to the plaintiff, and gave him his verbal promise to recovery, if the money was paid as it fell due. It may be admitted that the defendant refused to take a mortgage, and that it was expressly agreed between the parties that there should be no re-conveyance of the land except upon the condition of punctual payment at the times indicated; yet, the conveyance was given and taken as security for money to be paid, and therefore for that very reason is, by the law of the land, a mortgage — a redeemable conveyance, and it was not in the power of the parties to make it otherwise.

The defendant expressly admits in his answer that the land was conveyed to him to secure the payment of the price of the warrant, and this, of course, is sufficient, without any thing more ; but the transaction itself was most manifestly of that character upon the defendant’s own showing of the matter. There was here no conditional sale of the property ; the plaintiff did not go into the market to raise money upon a sale of his land, reserving to himself the privilege of repurchasing at a specified time, but, according to the substance of the transaction, made a purchase, and then conveyed the land, bought with other land, to the vendor, as a security for the price to be paid.

We have nothing to do here with the question of the admissibility of parol evidence to convert an absolute conveyance into a mortgage. The obligation to reconvey, if the money was paid on the day, being admitted in the answer, no question of that character arises here. Nor have we any thing to do with the moral propriety or impropriety of the plaintiff’s conduct, in withholding the payment of the money, it may be vexatiously ; and then insisting, after a considerable lapse of time, upon his right to redeem, contrary to his express contract. It is enough for us that the transaction was a security for money, and, therefore, of necessity, a mortgage — a redeemable conveyance — and that, upon the admission of the defendant, Drum-rite, it is our duty so to declare.

The result is, the judgment must be reversed, and the cause remanded. The transaction must be decreed as against the defendant, Drumrite, upon the admission in his answer to be a mortgage; but as he has conveyed a part of the mortgaged premises to his co-defendant, Yaughn, who is found to be a purchaser, for value, without notice, Drumrite must account for the value of the land sold, and reconvey the residue to the plaintiff upon the payment of what shall be found to be due upon a settlement of the account between the parties.

The judgment is accordingly reversed, and the cause remanded.

Scott, Judge,

dissenting. In my opinion, as the parol declarations or admissions of Drumrite were received to convert his absolute deed into a mortgage, they should have been taken altogether. Do this, and it will appear from the admfssions that if it was a mortgage, it was one with the power of sale; and as the conveyance made by Drumrite to Yaughn was nothing but an execution o£ the power of sale reserved to Drumrite in the agreement between him and Wilson, there is now no right of redemption in Wilson. If there was any thing due Wilson after the sale to Yaughn, this was not the proper form of action for its recovery. Wilson should have a deed for the portion of the land not sold, and should pay all the costs as well in this court as in the court below.


author: Ryland, Judge, Scott, Judge,

text:
    Despain, Defendant in Error, vs. Carter & others, Plaintiffs in Error.
    1. Possession, valuable improvements made, and part payment, under a parol contract for the sale of land, entitles the purchaser to a specific performance.
    2. Where the facts specially found by a court or jury are sufficient to support a decree for a specific performance, it will not he reversed because of a defective statement of the contract in the petition. (Scott, J., dissenting.)

      Error to Buchanan Circuit Court.

    Petition by Sarah Despain against the administrator of Lewis Despain and John Carter for the specific performance of a contract for the sale of a piece of land. Robert W. Donnell and Hugh D. Louthen, purchasers from Carter, with notice pending suit, were afterwards made co-defendants. The facts are sufficiently developed in the opinion of the court.
    Loan, for plaintiffs in error.

      Vories, for defendant in error.
   Ryland, Judge,

delivered the opinion of the court.

This is a suit for the specific performance of a parol sale of land, upon the ground of possession taken, lasting improvements made, and part payment of the consideration money.

The plaintiff below obtained a decree for the specific execution of the contract, and the defendants bring the case here by writ of error.

The principle objection made by the plaintiff in error to the decree of the court below, is upon the face of the plaintiff’s petition, that it does not set forth any specific and definite contract for the sale of any land by the defendant, Carter, to the plaintiff, Sarah Despain ; that the petition leaves the matter doubtful, whether the plaintiff, Sarah, was an original purchaser of the land in her petition mentioned from the defendant, Carter, or a sub-purchaser under her son, Lewis Despain.

In looking over the petition, there is some ground for this objection. It contains a very loose and garrulous narrative of the transaction between the defendant, Carter, and the son of the plaintiff, and the plaintiff herself. The counsel for the plaintiff below, respondent here, in answering the objection, admits that, under our new code, he stated in the petition the facts just as the old lady, his client, told them to him. The defendant, Carter, denies every important statement in the petition on which the plaintiff relies for relief. Although this case is one of the class most properly and most usually decided by the court, without the intervention of a jury, yet a jury was demanded, and to its verdict the issue was submitted.

The court gave the following instruction of its own accord:

“If the jury believe from the evidence, that about the first of November, 1847, the defendants, John R. Carter, Lewis Despain and plaintiff made a contract, under and by virtue of which defendant agreed to convey to plaintiff the south half of the north half of the north-west quarter of section thirty-one, (31,) in township 58, in range 35, in Buchanan county, in consideration of her paying fifty dollars, to be paid in rails, and the further consideration of her paying the entrance money to enter the same at the land office, at $1 25 per acre, and that under and by virtue of said contract she went into the possession of said land with defendants’ consent, and made lasting and valuable improvements on the same, they will find the issue for the plaintiff, and incorporate the facts found in their ver-diet. IE they find as above, they will also find the value of the improvements made by plaintiff; the amount paid by plaintiff to defendant, under the contract, if any thing ; how much remains due and unpaid, if any thing; and if any part of the consideration is unpaid, whether the plaintiff offered or not to pay defendant the amount so unpaid before this suit was brought, and when. They will also find whether the second payment of the money to enter the land was offered to defendant before the 1st of January, 1850, and whether the third payment was offered before the 1st of January, 1851. Unless the jury believe as in the first instruction, they will find for defendant.”

The instruction given on the part of the plaintiff, and the one alluded to, is as follows :

“ The plaintiff moves the court to instruct the jury that the facts stated in plaintiff’s petition, that defendants, Robert W. Donnell and Hugh D. Louthen, purchased or pretended to purchase the land in said petition mentioned, with a full knowledge of plaintiff’s rights, and in order to defraud and litigate plaintiff out of her rights in said land, not being denied in their answers, are to be taken as true, for the purpose of the trial of the cause.”

The jury returned the following verdict: “We, the jury, find that a special contract was made by defendant, Carter, with plaintiff, to convey to said plaintiff the south half of the north half of the north-west quarter of section 31, in towmship 68, in range 36, in Buchanan county, in consideration of which plaintiff was to pay fifty dollars, to be paid in rails, and furnish the entrance money to enter said land at the land office in Savannah, at f 1 25 per acre ; and that under and by virtue of said contract, plaintiff went into the possession of said land with defendant’s consent, and made lasting and valuable improvements thereon. We also find the value of improvements made by plaintiff on said premises to be one hundred and thirty dollars, and that plaintiff paid defendant rails to the amount of thirteen dollars and fifty cents on said contract, and seventeen dollars in full for first payment of entrance money, in pursuance of said contract, and that the sum of twenty dollars remains due and unpaid upon the fifty dollars ; and that plaintiff did, by her agent, tender to defendant the amount so due, in the fall of the year 1849. We also find that second and third payments, due land office, were tendered to defendant in the fall of 1849. We also find that plaintiff was in peaceable possession of said land at the time defendant sold the same to Donnell and Louthen, and that they knew of plaintiff’s rights.”

The court then found further that the amount of money necessary to enter the said land named in said finding of the jury is forty dollars, and the court declares the law to he that, upon the payment of the said sum due by plaintiff on her said purchase, so found by the jury, and the money necessary to pay for entering said land at the land office, which is in all sixty dollars, she is entitled to a conveyance of said land from said defendants, John R. Carter, Robert W. Donnell and Hugh D. Louthen, of all their right, title and interest in and to said land.

Without stating the whole of the evidence on the record, there is, in my opinion, evidence putting the matter beyond doubt that the plaintiff entered into the possession of the land in controversy, with the knowledge and consent of the defendant, Cai’ter ; that she made lasting and valuable improvements thereon — a hewed log house, with brick chimney and shingle roof — had a well dug some twenty-two feet deep, and fenced in a small lot. These are such improvements as indicate the idea of ownership of the soil, or at least a contract, under which the ownership will in time be acquired. The land here is but a forty acre tract, estimated at the time of contract to be worth one hundred dollars, of which fifty dollars must be paid in the land office, in order to acquire the title from the state, and fifty to the defendant, Carter. The jury estimated the improvements to be worth more than the contract price of the land, namely, one hundred and thirty dollars. The facts also show that a portion of the purchase money, about forty dollars in all, bad been received by Carter, in money and rails. Here then are facts, found by tbe jury who heard the evidence, which will justify the court in decreeing a specific performance in this case — which take the case out of the statute of frauds— facts which have been held frequently, in similar cases, sufficient to authorize the courts to decree specific performances. As to what acts amount to a part performance, I deem it not necessary to go into a lengthy examination of the cases upon this subject. The general rule is, that the acts must be such as could be done with no other view or design than to perform the agreement, and not such as are merely introductory or ancillary to it. Mr. Justice Thompson, in delivering the unanimous opinion of the'court of errors of the state of New York, in the case of Niven v. Belknap, uses the following language : The difficulty here presented arises from the statute of frauds, which declares that no interest in land shall be granted or assessed, but by deed or note in writing.” This is, undoubtedly, a wise and beneficial law. Rut, in the language of adjudged cases upon it, it may be justly said that, to allow a statute having the prevention of fraud for its object, to be interposed in bar of the performance of a parol agreement, in part performed, would be evidently to encourage one of the mischiefs which the legislature intended to prevent. It is, therefore, an established rule that a parol agreement, in part performed, is not within the provisions of this act. (Fonb. 182, note. T. Ves. jr., 333.) The relief against the statute, in these cases, of part performance, is founded on the fraud and deceit whichi usually characterize the circumstances. Whether it was expedient, in the first instance, to make fraud a ground for giving relief, so as to enforce agreements against the express provisions of the statute, is now a useless inquiry, as there is-hardly any rule of equity better established on authority. (Roberts, 133. 3 Atk. 3 and note.) It is admitted that these acts of part performance must be clear and unequivocal, and such as cannot, rationally, be presumed to have been done, unless on account of the agreement. (3 Atk. 4.) When the act of performance is taking possession, it must be done as owner of tbe estate, and an act which the party would not have done had he not considered himself in that light. (2 Bro. C. C. 561. 2 Johns. Rep. 587. 2 Story’s Equity Jurisprudence, § 761, 762, 763. Davenport v. Mason, 15 Mass. Rep. 93.)

Whenever the party has been let into the possession, and has made valuable improvements, expended money in building or repairs, these acts have been long and I may say uniformly considered, as taking the case out of the statute ; if this were not so, the party would be the victim of a fraud practised on him.

I consider the verdict of the jury in this case placing the plaintiff below just in the situation where she would have been always relieved by a court of equity. The jury find that there was a special contract made by defendant, Carter, with plaintiff, for -the land in controversy; they find the consideration; and that under and by virtue of the contract, the plaintiff went into the possession of the land with the defendants’ consent, and made lasting and valuable improvements thereon. They find these improvements to be worth a larger sum than the consideration money for the land. I remark that the facts found in this case, beyond all doubt, in my mind, bring the plaintiff within the general rule, and that the courts would relieve her by decreeing a specific performance.

She took possession as owner; she built her house and dug her well as owner ; she paid part of the rails — part of the money, and tendered the residue in cash. Her situation is not like one who has only paid money, which can be returned with interest. Her part performance is of a different and higher order — more favorably noticed by courts of equity.

I find no error in the instructions given for the plaintiff by the court below, nor in refusing the instructions asked for defendants, which could materially injure the defendants. The court properly laid down the law of the case to the jury. There is no error in refusing to adopt the issues tendered by defendants and placing them before the jury ; they are not better calculated to enable the jury to arrive at the merits of the controversy between these points, than the direction given in the court’s instruction, of its own accord, to the jury. Nor is there any force in the objection to the further declaring and finding of the court as to the amount of the consideration still due by plaintiff to defendant, Carter. These defendants must take an unusual course in such cases ; they must have a jury to find the facts ; they had to be sure of the right so to do, and the finding of the jury has settled the matter in favor of the plaintiff. The case, as stated by the plaintiff’s petition, and the facts incorporated in the finding of the jury, will, in my opinion, warrant the decree made by the court below.

I consider it right to apply here the common law rule, in regard to the defective statement of the cause of action, and the effect of a verdict of a jury upon such statement; there being now no distinction in cases of law and equity, our statute having abolished all such distinctions. If it be proper to adopt this rule, then the verdict here being so specific, so particular, it entirely does away with the objection which, without such particularity, might be urged against the petition.

I do not well see how this court is to reverse a judgment or decree, when the finding of the jury or court below contains a sufficient amount of facts to warrant the judgment or decree, although there is much uncertainty or generality in the statement of the cause of action in the petition. Though the petition be defective, yet, being answered, and the verdict finding facts, show a right on the plaintiff’s part to the judgment or decree, the same must remain, unless there be other causes of error on the reeord than the uncertainty of the plaintiff’s petition.

In conclusion, in this ease, we conceive that the petition of the plaintiff does set forth a contract; true, its terms are very general; it is very loosely stated and set forth, but, nevertheless, a contract is stated as having been made by the petitioner and defendant, Carter. The verdict of the jury finds this contract, and sets it forth specially and particularly. Now, .in our opinion, this special verdict has the effect to make this otherwise loose contract assume a form certain and specific enough to justify the decree of the court carrying it into specific execution. The decree of the court, therefore, is affirmed in all things, except as to the time given to plaintiff to pay the balance of the consideration money, which time is extended to two months after the judgment of affirmance in this case is certified to the court below, which the clerk is ordered to do immediately.

Judge Leonard concurring herein; Judge Scott dissenting.

Scott, Judge,

dissenting. In my opinion, there is no contract stated in the bill, in such a manner as to entitle the plaintiff to a specific performance of it. From the bill, it would seem that we are required to find out what the contract was, and then to decree its specific performance. If the plaintiff herself does not know the terms of the agreement, whose performance she seeks to enforce, it is hard to impose on the court the duty of ascertaining if. The contract is stated in various ways in the bill, and it is impossible for me to determine what it is. It is a well established principle that to entitle a party to a specific performance of a contract, that it must be certain in all its parts.


author: Scott, Judge,

text:
    Jolliffe & Holland, Appellants, vs. Collins & others, Respondents.
    1. Where a hill of sale of a patent right is a simple transfer of title, containing no warranty, the purchaser cannot set up a parol warranty.
    $. In order to make a representation a ground for an action of deceit or fraud, it must have been known to he false, and have been made with intent to deceive.
    3. As to what is a useful invention.
    4. A note given for a patent that is void, by reason of its being useless, is without consideration.

      5. In an action for a balance due upon a note given for a patent right, to which the defendant pleads merely want of consideration and deceit, he cannot have judgment for money paid upon the note.
    6. A certificate to a deposition that it was reduced to writing in the presence of the witness, and subscribed in the presence of the officer, is sufficient, although it omits to state that it was reduced to writing in the presence of the officer.

      •Appeal from Andrew Circuit Court.

    Action for a balance due upon a bond for the direct payment of money. The defendants answered that the bond was given for the right to make, use and vend in certain counties in Indiana a patent right improvement in a revolving hay rake, and set up in substance three pleas : 1st. Want of consideration, because the patent right was useless and void. 2d. Fraudulent and deceitful representations in regard to the utility of the improvement, and 3d. Representations which amounted to a warranty. They asked judgment against plaintiffs for the amount paid upon the bond.
    At the trial before a jury, the defendants read in evidence the depositions of various witnesses taken before a justice of the peace in Indiana. The certificate of the justice stated that the examinations were reduced to writing in the presence of the several witnesses, and subscribed by them in his presence ; but did not expressly state that they were reduced to writing in his presence. The judge, in his certificate to the official character of the justice, stated that he was a justice of the peace within and for the county, “duly elected, commissioned and qualified.” An exception was taken to the overruling of a motion to suppress these depositions. The witnesses testified in substance, that the plaintiffs, about the time of the sale of the patent right improvement, publicly represented that it was very valuable and a great saving of labor, and that in fact it proved to be of no utility, and was not used by the farmers. The plaintiffs then read in evidence the bill of sale from them to the defendant. It was a simple transfer of all their right, title and interest in the patent in and for certain enumerated counties, and contained no warranty or affirmation as to tbe utility or value of the improvement.
    The court instructed the jury as follows :
    “ If the patent right improvement was worthless and of no value, they will find for defendants the amount paid upon the same as set up in their answer.”
    “If the jury believe from the evidence, that the consideration of the^ bond sued upon was a certain improvement invented in the revolving hay rake, and that plantiffs represented the same to defendants to be a useful and valuable invention, which representations were relied upon by defendants, and were untrue and the said invention worthless, they will find for defendants ; but if such representations were not made, and if made, not relied upon by defendants, they will find for plaintiffs.”
    Several instructions asked by defendants were refused, one of which was to the effect that the defendants were not responsible for representations made unless they knew them to be false.
    The jury returned a verdict for the defendants for the amount paid on the bond.

      Hall and Gardenhire, for appellants.
    1. The depositions should have been suppressed. The statute requires that they should he reduced to writing in presence of the officer. (R. C. 1845, tit. Depositions, § 14.) The certificate must show that the requisites of the law have been complied with. (1 Peters, 351, 356.) 2. There was error in the giving and refusal of instructions. (2 Croke, 4. 2 Esp. 572. 31 Eng. C. L. Rep. 116. 8 Blackf. .518. 19 Wend. 159. 1 Dana, 611. 2 Kent’s Comm. 479. 15 Mo. Rep. 410. 8 Mo. Rep. 394. 1 J. R. 129, 453, 274. 4 J. R. 421. 5 J. R. 354. 20 J. R. 196. 9 Watts, 55. 1 Denio, 385. 7 Cran. 92. 2 Bibb, 616. 11 Mees. & Weis. 401. 14 Mees. & Weis. 651, 663. 21 E. C. L. Rep. 218. 4. Blackf. 57. 6 Barbour, 557. 7 Serg. & R. 681.)

      Vories, for respondents.
    1. The certificates to the depositions show that they were reduced to writing in the presence of tbe witness, sworn to by bim and subscribed in tbe presence of tbe officer, which sufficiently shows that they were reduced to writing in the presence of tbe officer. 2. Tbe instructions given were correct. He who sells an article for a particular purpose, making statements at tbe time of tbe sale as to tbe utility and usefulness of tbe article sold to induce another to purchase, such other relying upon tbe representations, is bound to make tbe representations good. (2 Cow. 129. 5 J. Ch. Rep. 174. 8 Cranch, 280. 9 Yesey, 21. 3 Story, 732, 659. 1 Story, 172. 9 Mo. Rep. 840. Story’s Eq. § 193, and notes, § 197. 4 Barn. & Cress. 108. 6 Taunt. 108. 1 Stark. N. P. R. 504. 2 Pick. 214. 2 Kent, 611.) 3. If tbe patent right was not for a useful, but frivolous invention, then tbe patent was void and the consideration failed. (14 Pick. 217. 1 Mason’s Rep. 182.)
   Scott, Judge,

delivered the opinion of the court.

1. Tbe plaintiffs, on the trial of tbe cause, read in evidence, without objection, the written contract for the sale of tbe patent right, which was the consideration of tbe bond on which this suit was brought. This conveyance or bill of sale of the patent right is entirely silent in relation to any warranty or representation as to the utility of the invention patented. There is nothing in it that can be construed to be a warranty of any quality of the invention. This being so, all question as to a warranty are beside the case, for it is a well established principle, that if a bill of sale contains no warranty, but a simple transfer of title, the vendee cannot set up a parol warranty, for it must be presumed that the article contains the entire contract. (Reed v. Wood, 9 Ver. 285. Parsons on Contracts, 471.) The case of Van Ostrand v. Reed, (1 Wend. 432,) is one very similar to that under consideration. It arose out of the sale of a patent right. There, there was a bill of sale or written conveyance, but it contained no warranty. It was alleged that representations were made that the machine was a good and useful machine and improvement. In opposition to the attempt to introduce parol evidence to establish these representations, the court says : “ Suppose one man sells to another a horse ; he represents him sound, gentle and useful; but a bill of sale is given in writing which contains a bare transfer of the animal, without any warranty or engagements as to the soundness or good qualities of the horse: could the purchaser in that case go back and prove the representations and assertions made before the execution of the bill of sale ? Where a contract has been consummated by writing, the presumption is that the writing contains the whole contract.”

By an instruction given in the court below, the cause was made to turn on the question of warranty. As we have seen that there was no warranty in the transaction between the parties, the judgment, then, is erroneous, and must be reversed.

2. As the cause will be remanded, it may be as well to say something in relation to the question of fraud. From the evidence preserved in the bill of exceptions, such a defence could scarcely be sustained. In order to make a representation a ground for an action of deceit or fraud, it must be shown that the representation was known to be false, and that it was made with an intent to deceive, though the known falsity of a representation would be strong evidence of a purpose to practice a fraud. Where there is no warranty, there can be no recovery for false representations made in the course of a sale, unless they were known to be such by the vendor; in all such cases, the ground of deceit is disposed of, when the existence of the defect is found by the jury to have been unknown to the vendor. This doctrine is applicable only to the action or the de-fence of a deceit in the sale of a chattel. ( Chandelor v. Lopus, 1 Smith’s Leading Cases, 188.) How far or under what' circumstances a representation may be construed into a warranty, we have seen is an inquiry that is precluded in this action.

3. As to the question whether there was a total failure of the consideration of the instrument on which this suit was brought, the patent being useless, we may remark that Judge Story, in the case of Lowell v. Lewis, (1 Mason, 186,) held that the term “ useful” was satisfied if the alleged invention was capable of use, and was not injurious to the well-being, good policy, or sound morals of society. But when the evidence in this case is considered, it will be difficult to say that the invention was useless. The number of individuals who had used the improvement, and testified, from their own knowledge, to its great utility, forbids the idea that a jury could find that it was worthless. It is much more reasonable to suppose that there was some error in the construction, or some want of skill in the use of those hay rakes the defendant’s witnesses saw, than that they, who, from the actual use of the invention, testified to its utility, should be mistaken. The witnesses, moreover, who speak against the patent, use general language, and none of them descendió particulars, showing the inutility of the invention. There is naturally a prejudice against every thing that is new, and men may easily be found who will give an opinion against the utility of an invention, about which they know nothing. That a patent is not saleable in a certain district of country, is but slight evidence of its utility. We all know that, from various causes, there are a great many useful inventions that are not saleable in particular regions of country.

4. The law seems to be, that a note given for a patent that is void, by reason of its being useless, is without consideration. (Dickenson v. Hall, 14 Pick. 220. Van Ostrand v. Reed, 1 Wend. 225.)

5. As the money paid on the note was not pleaded by way ...of set-off, we see no ground on which the defendants were entitled to recover it in this action against the plaintiff's.

6. We are of opinion that the depositions were certified in such manner as entitled them to be read.

The other judges concurring, the judgment will be reversed, and the cause remanded, to be proceeded in, in conformity to this opinion.


author: Leonard, Judge,

text:
    Chiles & Wife, Plaintiffs in Error, vs. Bartleson & others, Defendants in Error.
    X. A testator “ willed and bequeathed” certain negroes and all his land to his wife, and, in a subsequent section, provided that, at her death, the bequests” to her should be equally divided among his four children, and after specific legacies to the children, concluded his will with the declaration that all the bequests in it to his two daughters were “to them and the heirs of their bodies.” Held that his intention was, to give a life estate in the land to his wife, remainder in fee simple to his sons and in fee tail to his daughters; and that under our statute, (R. C. 1845, tit. conveyances, § 5,) the effect was to give the daughters a life estate, remainder in fee to their children.

      Error to Jackson Circuit Court.

    This was a petition for partition filed by Henry T. Chiles and his wife, who was a daughter of John Bartleson, against the defendants, who were also children of said Bartleson. John Bartleson died seized of the land, leaving a will, the material provisions of which are as follows :
    § 3. I will and bequeath unto my beloved wife, Frances Bartleson, my negro man, Charles, his wife, Clara, and their four children, and all of my lands, with the appurtenances thereunto belonging, with a sufficiency of stock to support the farm.
    § 8. And further, after the above and foregoing bequests have been complied with, then out of the remainder of my estate, it is my will that the bequests made to my four children shall be made equal, according to my estimate, valued agreeably to their several bequests; the residue of my estate to be equally divided between my wife and four children. Jind further, it is my will that the bequests made to my wife, Frances, at her death, be equally “ divided between my four children.”
    “ Be it known to all, that the bequests made to my two daughters in my above and foregoing will are made to them and the heirs of their bodies.”

      The fourth, fifth, sixth and seventh sections of the will make specific bequests to each of the testator’s four children, two sons and two daughters.
    The Circuit Court held that the daughters were entitled to a life estate, “ remainder in fee to the heirs of their bodies,” and gave judgment of partition accordingly.

      Smart & Sheley, for plaintiffs in error.
    1. The third clause of the will vested in the widow an estate in fee simple in the laud, and at her death the same descended to her heirs, who are the plaintiffs and defendants. 2. If the eighlh clause of the will operates upon the third, and vested in the widow a life estate, then the clause restricting the estate to the daughters being contrary to the statute in operation, the fee vested in the daughters immediately upon the death of the testator, subject to the widow’s life estate. (10 Barb. Sup. Ct. Rep. 388. 2 Selden, 420. 3 Denio, 485. 2 Johns. Cases, 384. 2 Com-stock, 386. 3 Selden, 259.) 3. The clause attempting to restrict the estate willed to the daughters operates only upon the clauses making specific bequests to them, and not upon the remaining portion of the estate. The testator uses the wmrd “bequests.”

      Napton, for defendants in error.
    The construction placed on this will by the Circuit Court, and which is believed to be correct, is, that a life estate was given to Mrs. Bartleson, with remainder in tail to her two daughters, which latter is converted by our statute into an estate for life. In the third clause an absolute estate is given to' the wife, but the eighth clause reduces this to a life estate, and- the concluding portion of the eighth clause makes the daughters tenants in tail. Borne reliance seems to be placed upon the use of the word " bequests,” which it is said only applies to personal property, and therefore that the eighth clause was not designed to affect the land mentioned in the third ; but an examination of the will shows that the word was used generally by the testator, to app y to both real and personal property. It is evident that the testator had no knowledge of the technical distinction between devises,

      bequests, &c. The cases cited from New York, where the rule in Shelly’s case was not then abolished, have no application here.
   Leonard, Judge,

delivered the opinion of the court.

The intention of the testator is plain enough ; the whole will must be read together, and effect given to every clause of it, and the words used are to be understood in the sense indicated by the whole instrument. Our duty, in the language of our own statute, is “to have regard to the true intent and meaning of the testator.” The father gives his land to his wife, then provides that, upon her death, it shall be divided between his four children, and after various specific gifts to them, concludes his will with the express declaration that the bequests in it to his daughters “are made to them and the heirs of their bodies.” His intention, manifestly, is to give the land to his wife during her life only, with remainder to his children, to his sons in fee simple, and to his daughters in fee tail. This limitation, extending to every thing, the daughters received under the will— the statue (tit. “Conveyances,” sec. 5,) however intervenes, and converts what would otherwise have been under the British statute of entails, an estate tail in the daughters in the land, into an estate for life only, with remainder over in fee to their children ; and such, therefore, is the legal effect of the will, and we know of no rule of law that invalidates this disposition of the property. Certainly, the cases cited from New York have nothing to do with the matter.

The decision of the Circuit Court that the daughters take estates for their lives only, in the land sought to be divided, is most clearly right, and the judgment is affirmed.


text:
    Nelson & others, Plaintiffs in Error, vs. Wyan & others, Defendants in Error.
    1. A testator, in his will, devised specific land of an estimated value to each of his children, and directed that, upon final distribution, the devises should he equalized, and the balance of his estate equally divided. Held, that, in equalizing the devises, the child who received land of the greatest estimated value, was not to he charged with interest upon the excess.
    2. In distributing an estate, interest is not to he charged upon advancements.

      Error to Cooper Circuit Court.

    Bill in chancery, filed in 1847, by a portion of the heirs of Jacob Wyan, deceased, against the other heirs and executors, for a partition of the real estate and a distribution of the personal assets belonging to the estate.
    Jacob Wyan died in the spring of 1842, leaying six children, to some of whom he had made advancements during his life. In his last will, he made specific devises of land to each of his children, and to two of them a bequest of $2000, to be taken out of the stock of a firm of which he was a member at the time of his death. The will then proceeded as follows :
    “It is my wish and desire that each one of my children should receive an equal portion of my estate in a final distri: tion, estimating and counting the advancements to eacja^; also the lands and property before mentioned as devisen and given to each, as I here estimate the same. I have here©|gjy given my daughter, Sarah J. Trigg, by way of advancement, the sum of $1000 in cash, and I value the real estate Ifer given and devised at the sum of $6000. I have hereto given to my daughter, Mary J. Nelson, the sum of $2000, in money, by way of advancement, and I estimate the real estate herein given and devised to her at the sum of $5000. I have heretofore given by way of advancement to my daughter, Margaret J. Russell, the sum of $2000, and I estimate and value the real estate herein' given and devised to her at the sum of $4000. I bare heretofore given to my daughter, Nancy S. Myers, the sum of $1000, by way of advancement, and I value and estimate the land herein willed and devised at the sum of $6000, and the stock at $2000, making in all $9000. I estimate and value the real estate and bequests herein given and devised to my son, Wesley, at the sum of $8000. I estimate and value the real estate herein devised to my daughter, Pau-lina E. Wyan, at the sum of $4000.”
    After making provision for his widow and authorizing his executors to sell any portion of his real estate except such as was specifically devised, the testator concluded his will as follows : “It is my will and wish that all the residue of my estate, not hereinbefore disposed of, shall be distributed among my children, (naming all of them,) so that each one, with the advancements and bequests herein mentioned, shall receive an equal portion of my estate after such distribution.”
    On the 22d of July, 1842, soon after the testator’s death, his executors paid to Nancy B. Wyan the $2000 bequeathed to her in money, and subsequently paid various amounts at different times to each of the children. The bill charged that “ since the death of the testator” the several children had taken possession of the real estate devised to them, and this was admitted in the answer ; but it did not appear whether it was productive or unproductive.
    The prayer of the bill was that partition and distribution be so made that each of the children would receive an equal portion of the estate, “ counting the advancements to each of the heirs and the amount each may have received since the death of the testator.”
    The cause was referred to a commissioner to take an account. From the commissioner’s report, it appeared that, in stating the account, he proceeded upon the assumption that the testator “ intended that his children should be made equal out of the principal of his estate as he left it at his death, and that each should receive a corresponding or equal portion of the rents, profits, interest or moneys arising from the sale of real estate or otherwise that may have accrued in the hands of his executors after his death;” and accordingly, he allowed “interest on all sums due those legatees who had received smaller be-bequests and advancements until they have received an amount equal to the legatee who received the largest bequest and advancement. ” As Nancy S. Wyan received the $2000 bequeathed to her on the 22d of July, 1842, the commissioner adopted that as the date of the commencement of the account, and assuming that she then received $9000, including the advancement, bequest, and estimated value of the real estate devised, allowed interest from that date on the sums necessary to make the other children equal, until they received them. The report showed a balance in the hands of the executors to be distributed. From the evidence before the commissioner, it would seem that it was agreed by all the parties that interest should be allowed upon the cash payments made by the executors.
    Exceptions were taken to the report and sustained, and the Circuit Court decreed that advancements, specific devises and bequests be “ equalized out of the real estate, without any interest, and that the balance of the estate on hand be equally divided among the legatees.” The complainants and one of the defendants, against whom this ruling operated, brought the case to this court by writ of error.

      Washington Adams, for plaintiffs in error.
    1. The report of the commissioner shows that there were ample moneys in the hands of the executors to equalize the legatees, and they should have been equalized in money. 2. The equality ought to be produced out of the principal, and as the incident (the interest) should follow the principal, each devisee ought to be allowed a portion of the interest, ratably with the amount required to equalize his share. (White’s heirs v. White’s tddm’r, 3 Dana, 377.)

      P. R. Hayden, for defendant in error.
    There was no error in refusing to allow interest. The testator had a right to devise his property as he pleased, and to give to some the enjoyment o£ their shares earlier than to others. The will looks to a future period for the “ final distribution/’ and the intention of the testator manifestly was, that when that period arrived, the advancements, specific devises and bequests should be equalized in kind, according to the value put upon them in the will, without interest; and that the balance of his estate, including accumulated interest and profits, should be equally divided. The inequality, arising from the enjoyment at an earlier date, if any, was one made by the testator himself, who had a right to make it. But the commissioner charged interest upon the testator’s estimation of the value of the land, when in fact it did not appear that it had been productive or increased in value. The specific devises are to be regarded as advancements, upon which it is settled that no interest is chargeable. (3 Pick. 450. 17 Mass. 356. 6 Watts & Serg. 203. 5 Dana, 168. 9 Dana, 13.) But even if the testator is to be considered as intending that the equalization should be made at his death, and if the amounts necessary to make up the excess to those who received smaller shares are to be regarded as so much of their money in the hands of the executors, still it is settled that legacies do not draw interest; though if the funds out of which they are payable are productive, the legatee is entitled to the interest or profits actually accumulating. It was upon this latter principle and no other that the case cited from 3 Dana was settled. But in the case at bar, it does not appear either that the payment has been wilfully postponed by the executors, or that any profits, by way of rent or otherwise, have accumulated in their hands.
   Scott, Judge,

delivered the opinion of the court.

1. This was a bill in chancery, commenced under the former system of practice. From the contents of the bill, it may be gathered that its chief aim was to obtain a partition of the real estate of Jacob Wyan, deceased, among his heirs. Such being its end, we are surprised that the plaintiffs in error should persist in the statement, that the most valuable portions of the:real estate had been sold, under the authority of the will, by thé,.ex-ecutors. It may be, and is probable, that the case has altogether outgrown the pleadings, and that it is now in a very different situation from that which it occupied at its beginning. Be that as it may, wo will proceed to give our opinion on the point in the cause as we gather it from the objections to report of the commissioner, spread upon the record ; and we must be permitted to say, that we are utterly at a loss to conceive on what ground the plaintiffs in error base their claim to the interest for which they contend.

We entirely approve the principle of the case of White’s heirs v. White’s heirs, (3 Dana, 378,) as it is understood by us ; and if there are any facts in the present case which would render it applicable, it should be enforced. In that case, an estate was to be distributed equally among heirs. The administrator had in his hands a sum of money for distribution. A portion of the heirs received their share of it, and the balance remained undistributed, bearing interest. Afterwards, when the balance was to be apportioned out, they who had received their shares maintained that the heirs who had received nothing should be paid out of the principal and interest, and thereby leave a balance for another distribution ; but the court refused this, and held, that, inasmuch as a portion of the heirs had received their shares from the administrator, and the shares of the rest remained in his hands, making interest, it was right that they should have the interest their shares had made, and allowed them their portions and the interest that had accumulated on them from the time a part of the heirs were first paid. The justice of this course commends itself to every one. But that is not this case, and has nothing to do with it. There, the money was paid by the administrator, not advanced by the father. It was money and not barren and unproductive lands or lots. The amounts here sought indirectly to be charged, with interest, are advancements made by the testator, and those advancements made mostly in lands which it does not appear were-productive, and which, it is maintained, though they be unproductive, does not alter the case. The law with respect to interest on legacies has no application here. As we understand the matter, there is no controversy as to the interest allowed for the purpose of equalizing the payments actually made in cash. It is only to so much of the report as allowed interest in the excess of value in real estate received by one heir more than another, of which complaint is made.

2. The rule is, that advancements do not bear interest. (Osgood v. Brook’s heirs, 17 Mass. 356. Hall & wife v. Davis, 3 Pick. 450.) It would work gross injustice to make them do so. A parent advances to a child a thousand dollars ; twenty years after, he advances to another child, who> was then unborn: now, this rule of making advancements bear interest would require the parent, in order to equalize his bounty, to give to the child last advanced, as our rate of interest is now, ten per cent., three thousand dollars. He must have his thousand dollars by way of advancement, and his twenty years’ interest thereon, making two thousand dollars more, in order to make him equal with the child first advanced. An advancement is at the risk of the child advanced, from the time it is made. If it is lost, or is destroyed, or perishes, it is at the risk of the child advanced. It is his loss, and he is chargeable with the value of it, at the time the advancement is made, and with no more. So, if the property or money advanced is increased — if it becomes more valuable; as the child would not have been credited by it had it perished, so he shall not be chargeable with any profits it may make. So, if there was any color for the allowance of interest made by the commissioner in calculating the excess in value of real estate received by one heir more than another, the assumption of July, 1842, as the time at which it should begin to be computed, was entirely gratuitous. A father proposes advancing his children equally ; he gives one of them, on the attainment of majority, $1000; five years after, another of his children becomes of age : now, in order to make his advancement equal to that of the child first provided for, must he not only receive a thousand dollars, but interest on that sum from the time the first advancement was made ? These advancements are gifts; they are not debts which are discharged. If I give one child one thousand dollars, I do not owe the like sum to another, with interest, until I see fit to pay it. If I give one man a thousand dollars one year, and five years thereafter give a thousand dollars to another man, have I not been equally liberal to both of those men ? The natural sentiment of justice in men harmonizes with these views. We cannot, in this instance, suppose that the testator desired any thing else than to conform his action to that sense of justice planted in all mankind. The words of his will show that he meant to be equally kind to all his children, except as stated, and why should those words receive a construction which is at war with the notions of justice usually entertained by men, and make him do that very thing which his language was designed to guard against ?

It is strange that the idea should occur to any one, that, because the testator in his will stated the sums at whieh the lands given to some of his children during his lifetime should be estimated, in making a distribution of his estate, that therefore we should, against the truth, take it that such a sum, in money, was actually advanced. But if such had been the fact, we know of no principle which would warrant us in allowing the ether heirs interest on sums equal to those advanced, until they received their distributive shares. The estate consisted, mostly, of real estate; the advancements were mostly made in real estate; whether it was improved or not, does not appear. Now those not advanced, or not advanced with a sum equal to others, might have had their portions of the real estate assigned to them immediately after the death of their ancestor. Why did they wait 2 If the estate given by way of advancement was unproductive, it would be great injustice to allow the interest claimed by some of the heirs. A testator may make such a will; he may require that his estate should be distributed in the mode contended for by the plaintiffs in error ; but there is nothing in the terms of the will, whose construction is involved in the case under consideration, which requires that such a claim should be allowed.

Judge Ryland concurring, the judgment will be affirmed; Judge Leonard not sitting.'