author: Gtamble, Judge,

text:
    The City of Carondelet, Appellant, vs. McPherson, Respondent.
    1. The title of Carondelet to common, under the act of June 13, 1812, may be established without a survey, by proof of user prior to December 20, 1803.
    ,:2. As to the power in the general land office to set aside an approved survey made prior to July 4, 1836, and within what time it must be exercised, if it exists.

      3. If a town, through, the proper authorities, consents to, accepts and acts upon a survey of its common as correct, it will be estopped from afterwards claiming, as common, land outside of the survey, against a party having acquired a title to it upon the faith of the correctness of the survey.

      Appeal from, St. Louis Court of Common Pleas,

    This was an action brought by the city of Carondelet in 1852, for the possession of a tract of land bounded south by the northern boundary of the city of Carondelet, as incorporated in 1851, north by the St. Louis common, as surveyed, east by the Mississippi river, and west by the Carondelet common fields. The plaintiff claimed the land as a part of the common confirmed to the inhabitants of Carondelet by the act of congress of June 13,1812, although it was not within any survey of the common. The defendant claimed under a patent from the state of Missouri, dated February 27, 1850, issued in pursuance of an act of assembly. (Sess. Acts, 1849, p. 64.) The land was located in the manner pointed out by said act, as a part of the 500,000 acres granted to the state by an act of congress approved September-4, 1841. The substance of the oral and documentary evidence offered by the respective parties at the trial is stated in the opinion of the court. Under an instruction, which is also set out in the opinion, there was a judgment for the defendant below, from which the plaintiff appealed. The cause was argued in this court by Mr. Casselberry, for appellant, and Mr. Todd and Mr. McPherson, for respondent.
    Mr. Casselberry made the following points, among others : 1. As to the definition of common in the Spanish law he cited 1 Moreau & Oarleton’s Partidas, p. 328. Chouteau v. Eck-hart, 2 Howard, 373. 2 White’s Recop. p. 47, 100, 118. 2. The act of June 13, 1812, did not require that the common should be inhabited, possessed, cultivated or used as common. If it was claimed as such by the people interested, and recognized as such by the existing government, to be used at any future period, when necessity or convenience required, this is all the law of 1812 required. 3. The instruction given by the court, assuming that a survey by tire United States is necessary in order to vest a complete title in the plaintiff, is directly in opposition to the decision of the Supreme Court of- the United 1 States in the case of Chouteau v. Eckhart, 2 Howard, 344. The only object of a survey of a confirmed claim is to locate the land where the boundaries are uncertain; but when the boundaries can be ascertained, a survey is unnecessary. (Smith v. United States, 10 Peters, 331. United States v. ^re-dondo, 13 Peters, 134.) In this.case, the boundaries of the land are very definite. It is bounded on the west by the common field, on the south by the town, on the east by the river, and on the north by a line running west from the Sugar Loaf. This line is clear and definite, as shown on the plats and by the evidence. This court has often decided that no survey is necessary in the case of a town or village lot or common field lot. Mere verbal proof of a confirmation is sufficient. The common was granted by the same law and the same section, and why require a survey? 4. The survey of Brown, as shown on the plat itself, does not include all that is “ claimed,” as required by the act of 1824. All of the common north of the town should have been surveyed separately from that south of the town. 5. There is no estoppel against the plaintiff. To pass an estate by estoppel, the party must have power to pass it by a direct conveyance. (Dugal v. Fryer, 3 Mo. Rep. 31.) Until the city of Carondelet was chartered in 1851, the corporate authorities had no power to make any other disposition of the common than to lease it; and as they had no power to convey in fee simple, they could do no act that would operate as an estoppel, any further than in relation to leases ; and as the defendant denies that he is tenant, he cannot set up an estoppel of any kind. The estoppel of a deed only extends to parties and privies thereto, and not to strangers. The defendant would be a stranger to any estoppel of the kind insisted on. ( Cottle v. Snyder, 10 Mo. Rep. 763.)
    Mr. Todd, for respondent,
    relied upon the following points : I. Upon the law and evidence, the instruction given by the court below in this case was correct. 1. The appellant bas no title to commons, except by virtue of tbe act of congress of June 13, 1812. 2. Under that act, she has no title to commons, unless supported by a rightful claim, or by a valid United States’ survey designating them and severing them from the public domain. 3. She can have no rightful claim to commons except by a concession, or grant or permission from the Spanish government, and of this her highest and sole admissible evidence is the reply of governor Trudeau to the petition of Gamache, and Soulard’s official survey,' by which her common is-located south of her. To this she is limited by her own'constituents and original founders, in their acts of notice of their claim to the recorder of land titles, and the subsequent presentment of their claim before the old board of commissioners. Against this evidence, parol testimony is inadmissible. 4. No United States survey of the common embraces the land sued for. II. The survey of Rector, and of Brown as a retracing thereof, is conclusive upon the plaintiff as to the location of her commons. (See acts of congress providing and regulating surveys, from 1785 to 1886.) III. At least, the survey is conclusive as against the United States and Carondelet, in favor of third persons deriving title from the United States outside of such survey, after the approval thereof by the surveyor general, and before its legal cancellation, if subject to cancellation at all, and in fact cancelled. (3 Howard (U. S.) 773, 787, and cases cited therein. 8 id. 313-14. 5 La. Ann. Rep. 510, and cases there cited. ■ 3 Peters, 96.) IV. The commons confirmed to Carondelet by the act of June 13, 1812, are to be presumed to embrace her claim therefor in location and extent filed by her before the old board of commissioners, and no other, in the absence of further legal action in her behalf by the United States. V. In the absence of the evidence of the plaintiff’s claim for commons, as filed beforethe old board, and of duly authorized surveys, the plaintiff has no title or property to commons of any standing in a court of justice,1' under the laws of this state. The principle of this proposition is founded upon the vagueness and uncertainty of both the location and of the quantity of the commons. YI. The record shows an estoppel upon Carondelet from claiming any land between the south line of the St. Louis common and the north line of Brown’s survey of her own. As to the objection of a want of privity, it may be answered, that defendant occupies the position of the United States, between whom and plaintiff there was a direct -privity. As to the objection that the inhabitants of Carondelet had no incorporation competent to be estopped until 1851, it may be answered, 1. That they had froníl825. (Acts of 1825, p. 211, 212, sec. 1.) 2. If not, still the inhabitants could be estopped in their collective capacity. They are to be regarded as a quasi corporation, a political or municipal body, a town or villagenot as so many separate and independent individuals, holding their commons as tenants in common or joint tenants. (Bird v. Montgomery, 6 Mo. Rep. 523.) ■
   Gtamble, Judge,

delivered the opinion of the court.

The plaintiff claims the land in controversy as a part of the commons of the village of Carondelet, confirmed by act of congress of June 13th, 1812. At the trial, no grant of commons was produced by the plaintiff, and no survey, Spanish or American. The reliance was upon the proof by witnesses, that, at a period before the change of government, the authorities of the village of St. Louis and Carondelet met together to mark the line between their respective commons, and that this meeting was by the direction, or with the knowledge and approbation of the lieutenant governor, and was attended by the surveyor general; that, at the meeting, it was agreed to run the line from a noted mound called the Sugar Loaf,” on the bluff of 'the Mississippi river, to the line of the common fields of Ca-rondelet, or, as some of the witnesses say, to the north-east corner of those fields ; that the line was accordingly run by the surveyor general and cut out and marked by monuments ; that a fence was made upon that line, and tbe inhabitants of the two villages used the land on the different sides as their respective commons. The claim of the plaintiff was entirely rested upon this parol evidence.

On the part of the defence, documentary evidence was given of the claim of Carondelet to commons, as exhibited before the first board of commissioners. The notice of the claim was in these words : Take notice, that we, the inhabitants and settlers of the village of Vide Poche, in the district of St. Louis, claim, title to 6,000 arpens of land, situate adjoining said village, by virtue of a concession from Don Zenon Trudeau, lieutenant governor of Upper Louisiana, dated the 7th December, 1796.” This notice was addressed to the recorder of land titles, and was accompanied with the documents which are set out in the case of Dent v. Bingham, 8 Mo. Rep. 585. It may be necessary to say that there are no boundaries given either in the supposed grant, or in any survey filed with the claim, which apply to land north of the village. The document which is called a grant, is simply a refusal of the lieutenant governor to grant to an individual certain land he applied for, upon the ground that the land demanded was within the limits of land reserved for the purpose of furnishing wood necessary for the use of the village of Carondelet, and declaring that no other concession could be granted in the direction of a line taken from the end of the lands of the village, and running parallel with the Mississippi one hundred and fifty arpens further down said river. The defendant gave in evidence two surveys under the authority of the United States, one made in 1817, and the other in 1884, both professing to be surveys of the common of Carondelet, neither of which included the land now in controversy. The second was but a retracing of the lines of the first survey. The plaintiff, when giving rebutting evidence, produced a decision of the Secretary of the Interior, made in January, 1853, which was probably designed to set aside the surveys of the common, although it does not explicitly declare such purpose. The defendant gave evidence to show that tbe corporate authorities o£ Carondelet bad always xecog-nized tbe survey made in 1834 as tbe' correct survey of tbe common ; bad divided tbe property contained within it into lots, and disposed of tbe same ; bad, in different actions at law involving the title to tbe common, relied upon and used that survey as a correct survey of the claim, and, in other modes, bad acted upon it as a satisfactory survey.

The Court of Common Pleas, at the trial of the case, gave a single instruction, which, under the evidence, was a denial of the plaintiff’s right to recover. It is in these words : " If the premises sued for are north of the town or village of Caronde-let, as the said town or village existed up to the 13th June, 1812, and said premises are not included within any United States survey.of the common of Carondelet, or of the out-boundary of said town or village, officially run so as to include the town or village .and out-lots, common field lots, and common of said town or village, then the jury should find for the defendant.” There was no disputing the fact that the property was north of the village, and there certainly was no survey in evidence, wbicb was made under the authority of the United States and included the premises in controversy.

1. It will be seen, on a careful examination of he instruction, that it was intended to avoid any decision of the question whether there was a subsisting and conclusive survey of he common by the authority of he United States, notwithstanding the act of the Secretary of he Interior in setting it aside, and which would prevent he assertion of any claim by he plaintiff to land not included in such survey. The meaning of he instruction is, that he claim of he plaintiff cannot be sustained without a survey which includes he property in dispute. Whether he instruction was given upon he idea that the claim to common was so indefinite as to require a survey, before the rights under it could attach to any particular tract, or upon a construction of he documents which were filed with he recorder in support of he claim, by which the court regarded he claim to common as south of he village, it is not easy to determine. But if, in either or any view of its meaning, it can be sustained as correct in law, it is proper so to regard it.

The Supreme Court of the United States, in Mackay v. Dillon, 4 Howard, 421, says : "By the first section of the act of 1812, congress confirmed the claim to commons adjoining and belonging to St. Louis, with similar claims made by other towns. But no extent or boundaries were given to show what land was granted; nor is there anything in the act of 1812 from which a court of justice can legally declare that the land set forth in the survey, and proved as commons by. witnesses, in 1806, is the precise land congress granted ; in other words, the act did not adopt the evidence laid before the board for any purpose ; and the boundaries of the claims thus confirmed were designedly, (as we suppose,) left open to the settlement of the respective claimants by litigation in courts of justice or otherwise.” The survey filed with that claim was a private survey, made in 1806. The court declares that the act confirming claims of this description did not adopt any of the evidence of the claims laid before the board, but designedly left open the question of boundaries to be settled by litigation. If the question of boundary arose, and no survey by the United States authority was produced, the extent and locality of the claim confirmed could only be determined by evidence to be given on the trial of a cause, showing either a Spanish concession or other document, as a survey, giving boundaries ; or the user of a particular tract, as common, under the Spanish government.

Since the decision of this case in the court below, the Supreme Court of the United States, in the case of Guitard et al., v. Stoddard, not yet reported, has had under consideration the effect of this act of 1812, in relation to a private claim, and the opinion delivered by Mr. Justice Campbell, after reviewing the previous decisions, states as the result, " that the questions settled by the court are, that the act of 1812 is a present operative grant of all the interest of the United States in the property comprised in the act; and that the right of the grantee was not dependent upon tbe factum of a survey under the Spanish government.”

After referring to the decisions made in this court upon the effect of the act of 1812, and expressing concurrence in their conclusions, the learned Judge proceeds to consider the effect of exhibiting proof of a claim to the recorder of land titles under the act of 1824, and also the consequence of a failure to exhibit such proof. He says, “ this act makes it the duty of the claimants of town and village lots to proceed within eighteen months after the passage thereof, to designate them by proving the fact of inhabitation, &c., and the boundaries and extent of each claim, so as to enable the surveyor general to distinguish the private from the vacant lots. No forfeiture was imposed for a non- compliance. The confirmee, by a compliance, obtained a recognition of his boundaries from the United States, and, consequently, evidence against every person intruding, or claiming from the government ex post facto. The government did not by that act impair the effect and operation of its act of 1812.” Again, he says, “ the question of boundary, under the-act of 1812, as it was decided in Mackay v. Dillon, was left open to the settlement of the respective claimants, by litigation in the courts of justice or otherwise. Nor has this court, in any case, decided that statutes, which operate to confirm an existing and recognized claim or title, with ascertained boundaries, or boundaries which could be ascertained, are inoperative without a survey, or made one necessary to the perfection of the title. A survey approved by the United States and accepted by the confirmee, is always important to the confirmee, for, as is said by the court in Menard's heirs v. Massey, 8 Howard, 294, it is conclusive evidence against the United States, that the land granted by the.confirmation of congress was the same described and bounded by the survey, unless an appeal was taken by either party, or an opposing claimant, to the commissioner of the land office. This consideration depends upon the fact that the claimant and the United States were parties to the selection of the land ; for, as they agreed to the survey, they are mutually bound and respectively estop-ped.”

According to the decisions of the Supreme Court of the United States, the act of 1812 confirmed the lots to individuals, and the commons to the towns, without regard to the question whether there had or had not been a previous survey, and the boundaries of the claims thus confirmed were left open for proof in any litigation that might arise. In each case, the claim was confirmed, not upon the evidence filed before the board of commissioners, but as it had really existed under the Spanish government. The party asserting the confirmation under the act was obliged to show the extent and boundaries of the claim confirmed. If there was a paper title to property confirmed, the confirmation' would be held of course to operate to the extent of the land embraced in such title; but if there was no such paper title, or if there was one which gave no limits to the claim, then the confirmation must rest upon proof of possession or occupancy under a claim of land within given limits.

In the case of the St. Louis Common, there never was a concession in any form, and the documents filed with the recorder were certain regulations by the syndicks of the town relating to the enclosures of the commons, and a survey made in 1806. The regulations gave no boundaries, and the survey was disregarded in Mackay v. Dillon. Yet there was an enclosure of the commons under the Spanish government, and the land within the enclosure was used as commons. Although the confirmation gave no boundaries, and no document filed with the claim, except the private survey, gave any boundaries, and the survey filed was held not to be recognized by congress, still no person ever doubted that the confirmation had a subject upon which to operate, and that it operated upon the claim as it had been evidenced under the former government, by user of the property as commons.

In the present case, the confirmation gives no boundaries ; there is no grant or other document that gives any specific boundaries, yet the confirmation may be shown to apply to land which was held, used and claimed under the Spanish government, without producing a survey by the authority of the United States. Evidence was given on the trial for the purpose of showing that a line was run under the Spanish government, dividing the commons of St. Louis and Carondelet, and including the property now in dispute within the commons of Carondelet, and that it was used as a part of that commons. It is not necessary to say what weight this evidence was entitled to; the question was for the jury. If the land was shown to be within the in closure of the commons of Carondelet, and used as a part of the commons, it would bring it within the operation of the statutory confirmation.

If we take the documents filed before the commissioners as evidence of the locality of the claim confirmed, we find no call from which we can determine that there were not commons claimed as well north as south of the village. The answer of the lieutenant governor to the petition of Gamache is, “ that the land demanded by him is within the limits of land reserved for the purpose of furnishing wood necessary for the use of the village of Carondelet, and the demand which is made by Gam-ache cannot take place, nor no other concession be granted in the direction of a line taken from the end of the lands of the said village, and running parallel with the Mississippi one hundred and fifty arpens further down said river.” This answer is not in itself a concession. It is evidence that land was reserved for the use of the village, and that such reservation included the tract asked for by Gamache. If it be held that the declaration that no other concessions should be made between the Mississippi and a parallel line extending one hundred and fifty arpens from the end of the lands of the village down the river, amounted to a reservation of that tract as a common, still, it is not even strong evidence that land on the north of the village was not then held and recognized as a part of the common.

The instruction then given to the jury in this case, which rendered it indispensable, in order to a recovery by the plaintiff, that a survey by the United States, embracing this land as a part of the village common, should be produced, was not warranted by the law as declared by the Supreme Court of the United States.

2. But it has been argued that, at the time this survey of the common was made, (1834,) there existed no power in the general land office to vacate an approved survey, and, consequently, it is still to be regarded as a subsisting survey, conclusive upon the rights of parties. This record does not show how the proceeding in opposition to the survey commenced in the general land office, or who complained of it, or when the objection to it was first made. This court is deeply sensible of the importance of maintaining surveys which have been long made, and which have become muniments of title, relied upon by our citizens in their business transactions. If a power to disturb them exists any where, it is a dangerous power, the exercise of which must be carefully watched. Remarks were made upon this point in the case of the Inhabitants of Carondelet v. Dent, 18 Mo. Rep. 290, which are applicable to the question as presented upon this record. We will not, therefore, pass upon the question of power in the department to vacate the survey of the commons of Carondelet, without an acquaintance with all the proceedings which resulted in that act.

8. But there is one view of the case which it is proper to present, in order to facilitate its final disposition. In Menard’s heirs v. Massey, 8 Howard, it is clearly laid down that a survey, when regularly approved, is conclusive upon the United States that the land granted by the confirmation is the same included within the survey, and that when it is accepted by the confirmee, he and the government being parties to the selection of the land, and having agreed to the survey, are mutually bound and respectively estopped. The language of the court in that caséis quoted in the. later case of Guitard et al., v. Stoddard, as stating the law.

In this case, a 'survey made in 1834, and approved in that year, appears to have remained as the approved and reeog-nized survey of tbe commons of Carondelet until January, 1853. In tbe mean time, a tract of land contiguous to tbe common, as thus surveyed, is selected by tbe state as a part of tbe public land granted to ber by congress, and tbe title of the present defendant, claiming under the state, is perfected by a patent dated February 27th, 1850. Here, then, tbe United States, many years after tbe survey was made and approved, and, as far as we can see, many years after tbe survey was accepted and acted upon by tbe authorities of Carondelet, have disposed of tbe adjoining land, and tbe title to'it has been regularly completed.

There is evidence upon the record that tbe corporate authorities of Carondelet were cognizant of tbe making of the survey in 1834 ; deputed persons to attend tbe surveyor and to carry the chain ; received the report of tbe persons so deputed that tbe survey was completed; caused a copy of tbe plat to be procured and exhibited as tbe true survey of tbe commons ; directed tbe lines to be marked with stones ; divided the land included in tbe survey into lots conforming to the exterior lines of the commons, as surveyed, and disposed of such lots ; procured a certificate of confirmation of tbe commons to be issued by tbe recorder of land titles, based upon and referring to this survey ; used tbe survey in litigation as tbe correct survey of tbe commons ; thus giving the strongest evidence of consent to and acceptance of the survey.

Now, taking the law to be clear, as laid down in Menard v. Massey, that the parties to a confirmation may, by agreeing to the selection and survey of land confirmed, be “ mutually bound and respectively estopped," this case may be easily settled by finding tbe fact of the consent to the survey by Ca-rondelet, and that it stood as the approved survey when the state selected the land in dispute.

A survey regularly made and approved is conclusive upon tbe government that tbe land within tbe boundaries is tbe land granted, and tbe acceptance of tbe survey by the grantee is conclusive that all tbe land granted is within the boundaries. A person claiming land from the United States, outside of tbe survey, has the benefit of the conclusiveness of the survey against the grantee.

Still, the fact of acceptance and consent to the survey by Carondelet is a fact to be found by a jury, and however strong the evidence may be, we do not feel at liberty to determine, as a matter of law, from the evidence upon the record, that the survey was so accepted and consented’to, as to estop the city in this action from claiming land outside of the survey.

As has already been said, we do not find upon the record any account of the proceeding which resulted in the act of the Secretary of the Interior which has been considered as vacating the survey. The papers which have been copied into the bill of exceptions would appear to show that the survey stood approved and without objection, and certainly without appeal for some seventeen or more years. We do not examine the question of power to vacate a survey made prior to the 4th July, 1886, when the act to reorganize the general land office was passed. (5 U. S. Stat. at Large, 107.) We do not say within what time an appeal must be taken to the higher officers of the land department, admitting the power to review and vacate a survey to exist. But we are prepared to say that, where the power exists, it must be exercised in a reasonable time, and that, after a lapse of many years, with a survey standing as an approved survey, in all the land offices, and assented to by both the parties, a title regularly acquired on the faith of the correctness of that survey, is not to be disturbed by any dispute which may arise between the parties as to its correctness.

The instruction given by the court being considered erroneous, the judgment is reversed, and the cause remanded.


source: Caselaw Access Project

author: Ryland, Judge,

license: Public Domain

text:
    Fisher & Fellows, Plaintiffs in Error, vs. Cutter, Defendant in Error.
    1. D. sold to B. some lard and agreed in -writing as follows : “I am to ship the above lard to Messrs. F. & F., New York, for sale', and to value on them at ninety days from date of delivery of said lard, for full cost of same in favor of said B.; and above lard to be sold to meet payment of the aforesaid drafts.” On the same day, C. executed to D. the following writing: “ Mr. D. having this day sold to Mr. B. 417 tierces of lard, upon terms agreed upon by them, and the said D. having advanced drafts to full amount of cost of said lard, I hereby promise and agree to pay to the said D., or his order, on demand, any amount of reclamation he may have against said B., arising from sales of said lard.” The lard was by D. shipped to F. & F., but by an arrangement between them and B., without the knowledge of D., was not sold to meet the drafts, which were by F. & F. otherwise provided for. Afterwards, the lard was sold for less than the amount of the drafts. B. assigned C.’s agreement to F. & F., who bring suit upon it for the reclamation. Held, C.’s writing was a guaranty, and to be construed in reference to the contract between D. & B.; and the guarantor was discharged by the failure to sell the lard within ninety days.
    (Gamble, J., dissenting, holding that C.’s writing was an original undertaking, and could only be discharged by some act of-B.)

      Error to St. Louis Court of Common Pleas.

    The case is sufficiently stated in the opinion of the court.
    Mr. Kasson, for plaintiff in error,
    insisted upon the following points : 1. This is not, in legal language, a guaranty. It is an independent, original undertaking of Cutter. (8 Kent’s Comm. 121. Smith’s Mercantile Law.) 2. The contract is to be taken most strongly against the maker. (Chitty on Oont. 95, 96.) 3. But if this is to be considered a guaranty, then it is as broad as the liability of the principal, and only his discharge, or a violation of the ordinary course of .trade, could discharge the defendant. (Lawrence v. McCal-mont, 2 Howard (U. S.) 449. 12 East, 227.)
    Mr. Lord, for defendant in error,
    made the following points : 1. The guaranty and contract are to be taken together, and ns the ■ contract contemplated a sale to meet payments at maturity, the subsequent arrangement between Butler and Fisher & Fellows •changed the contract and discharged the surety. (Holcombe & Gholson’s Smith’s Mercantile’Law, p. 465, note a. Parsons on Contracts, 502, 50S et seq. Burge on Suretyship, 214, 215, 216. Chitty on Contracts, (Am. ed.) p. 529 et seq.) 2. Cutter’s agreement was, to pay any reclamations after sale of the property, but the time of sale was extended without his knowledge or consent, and this discharges him. (Bobbins v. Bingham, 4 Johns. 476. Walsh v. Baile, 10 Johns. 180. See note in 3 Wheaton, p. 148, and cases there cited. Comegys v. Booth & Bell, 3 Stewart, 14. Hunt v. Smith, 17 Wend. 179. Hare & Wallace’s Am. Lead. Cases, p. 149, and eases there cited.) 3. Cutter’s guaranty was not intended to protect any one but Dana, whose drafts were paid by Fisher & Fellows, pursuant to the arrangement between them and Butler. (Miller y. Stewart, 9 Wheat. 680-. 2 Penn. (Pen. & Watts,) 27. 6 Gill & J. 247. 8 Wendell, 512. 6 Hill, 540.) 4. The contract is, in its nature, special, and not negotiable. (Chitty (7th Am. ed.) 499, note 2, and cases there cited. 2 Denio, 375. 10 Johns. 179. Penoyer y. Watson, 16 Johns. 7 Blackf. 526.)
   Ryland, Judge,

delivered the opinion of the court..

The question in this case depends on the proper construction of the instrument of writing signed by Cutter. On the 16th February, 1851, Charles Dana signs an instrument in writing, as follows : “ I have this day sold Mr. S. O. Butler 417 tier-ces lard, rendered by Samuels & Moss, and delivered at Hannibal, Mo., upon the following terms, to-wit: at seven and. one half cents per pound, the'weight rendered me by Sam-uels & M., tobe considered the true one, and tare, as marked on each package, to be considered the actual tare, delivery to be made on day of shipment from Hannibal. I am to ship the above lard to Messrs. Fisher & Fellows, New York, for sale, and to value on them at ninety days, from date of delivery of said lard, full costs of same in favor of said Butler, (for which, as also, for shipping, I am to'receive no commissions,) and above lard to be sold to meet payment of the aforesaid drafts ; said drafts shall be negotiated by myself or Butler ; Mr. Norman Cutter is to give his obligation to pay to me any reclamations that may accrue upon sales of above lard, on demand, and any profits that may be realized shall be paid over to Mr. Butler.”

“ St. Louis, Mo. Above terms accepted by S. 0. Butler. February 15, 1851.”

The following is the instrument of writing signed by Cutter :

“ Mr.. Charles Dana having this day sold to Mr. S. 0. Butler four hundred and seventeen tierces lard upon terms agreed upon by them, and the said Dana having advanced drafts to full amount of costs of said lard, I hereby promise and agree to pay to the said Dana, or his order, on demand, any amount of reclamation he may have against said Butler, arising from sales -of said lard. “ NORMAN Cuttbu.
“ St. Louis, February 15, 1851.”

The lard was shipped by Dana to Fisher & Fellows, and drafts ■drawn on them at ninety days in favor of Butler. By arrange•ments between Fisher & Fellows and Butler, the lard was not sold to meet the drafts at ninety days, but was held over and the •drafts met. Fisher & Fellows agreed, for 2J per cent, commission, to hold the lard for ninety days after the drafts came to maturity. The lard was finally sold, but not for a sufficient sum to meet the drafts, charges, commissions, &c. Dana assigned to Fisher & Fellows the guaranty of Cutter, and they bring this suit. It is agreed that neither Dana nor Cutter had any knowledge of the arrangement made by Fisher & Fellows .and Butler to hold over the lard, and meet the drafts some other >way. The court below found for the defendant, Cutter. The -case comes here by writ of error.

1. We think the judgment below correct. In the view we take »o£ this matter, we consider that the undertaking of Cutter must be construed in reference to the contract made by Butler and ©ana. Cutter says, Dana having sold to Butler 417 tierces of lard “ upon terms agreed upon bj them,” and having advanced drafts to the full amount of costs of said lard, &c. Now what were the terms which Cutter had in his mind ? The lard was sold at 7J cents per pound, to be shipped to Eisher & Eel-lows ; drafts at ninety days were drawn on them for the cost of said lard, and the lard was to be sold to meet these drafts. Cutter might well suppose that there would be no loss upon this shipment, if sold, and drafts met at ninety days. Therefore, upon the terms agreed upon by them, Cutter was willing to guaranty and pay for whatever reclamation Dana should have against Butler by reason of these drafts.

I do not consider Cutter’s an original undertaking, but a guaranty, and a guaranty for ninety days’ drafts only. No matter, then, whether Dana knew or not the arrangement between Eisher & Eellows and Butler, by which the drafts were prolonged, and the sales of the lard postponed; he was only to guarantee according to the terms of the contract between Dana and Butler.

I admit that contracts of guaranty, like all commercial contracts, have received a liberal interpretation in furtherance of the intention of the parties ; hut then they should never be extended beyond the obvious import of the terms in their reasonable interpretation. Justice Story said, in the case of Miller v. Stewart, 9 Wheat. 702: “Nothing can be clearer, both upon principle and authority, than the doctrine that the liability of a surety is not to be extended by implication, beyond the terms of his contract. To the extent and in the manner and under the circumstances pointed out in his obligation, he is bound and no further. Courts of equity, as well as courts of law, have been in the constant habit of scanning the contracts of sureties with considerable strictness.” In Lawrence v. McCalmont et al., 2 How. Rep. 449, the same judge says : “ The words of such guaranty contracts should receive a fair and reasonable interpretation, and should not be forced out of their natural meaning.”

Applying these rules to the case before us, and we cannot hesitate to say, that Cutter’s guaranty here has a direct relation to the contract between Dana and Butler,' as it was then made-— the lard to be shipped, and drafts drawn on it at ninety days, and not for 180 days. It was a guaranty against loss upon the contract as then made, and not upon any future contract which Butler might make with Fisher & Fellows. Fisher & Fellows got their pay for this change of the terms. They pay the drafts, and wait ninety days longer. Now Cutter was to guaranty against loss on the sale, that is, loss on the sale at ninety days’ credit, as then made, which is equivalent to guaranteeing against loss on the drafts which Dana had drawn at ninety days on Fisher & Fellows. Surely his contract cannot be extended to a guaranty against any loss which-Fisher & Fellows and Butler might cause by their after arrangements, in holding over the lard and extending the time of the drafts, by renewing them for ninety days.

We do not consider this agreement of Cutter’s as an original agreement, standing alone, and to be construed without reference to the arrangement then made concerning the lard between Butler and Dana. We consider it simply a guaranty that he will pay whatever reclamation Dana may legal y have against Butler', by reason of the drafts then drawn in his favor at ninety days, and it would be unjust to extend this guaranty to any other contract.

The judgment of the court below is therefore affirmed;

Judge Scott concurring. Judge Gamble dissents.

He considers the contract an original undertaking, and not merely a guaranty, and that it could only be discharged or released by act of Dana.


author: Scott, Judge,

text:
    The State, Respondent, vs. Byron, Appellant.
    1. An indictment of a married man for lewdly and lasciviously abiding and cohabiting with a female, under the second clause of section 8 of article 8 of the act concerning “ Crimes and Punishments,” (B,. C. 1845,) must state that the parties lewdly and lasciviously abided and cohabited with each other, in the words of the statute.

      Appeal from Si. Louis Criminal Court.

    Indictment for adultery. The second count of the indictment was precisely as follows : “ And the grand jurors aforesaid, upon their oath aforesaid, do further present, that Richard J. Byron, late of St. Louis county, on the first day of January, in the year of our Lord 1853, and on divers other days and times, between that day and the day of the finding of this indictment, unlawfully and wickedly did lewdly and lasciviously abide and cohabit with one Eliza Miller, he, the said' Richard J. Byron, being then and on said other days and times there a married man, and having then and on said other days and times a wife living,- but the said Richard J. Byron and Eliza Miller were never married to each other; against the peace and dignity of the state.”

      Uriel Wright, Delafield & Kribben, for appellant.

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

delivered the opinion of the court.

Byron, who was a married man, was indicted for living in a state of open and notorious adultery with an unmarried woman, and for lewdly and lasciviously abiding and cohabiting with the same woman, (naming her.) There were two counts in the indictment, charging, these separate offences. The jury found the defendant guilty under each count, and on the first assessed the punishment at three months’ imprisonment in the county jail, and on the second, at a fine of $300. As only one offence was proved on the trial, the court granted a new trial on the first count, and thereupon the circuit attorney entered a nolle prosequi as to that count, and judgment was entered on the second count. A motion was made in arrest of judgment, which was overruled, and the defendant appealed.

The court would have found itself embarrassed in granting a new trial as to one count in an indictment and entering a judgment on the other, had not the difficulty been obviated by entering a nolle prosequi as' to the count on which the new trial had been granted.

1. The clause of the statute under which the second count is framed is in these words : “ Every man and woman (one or both of whom are married and not to each other,) who shall lewdly and lasciviously abide and cohabit with each other,” &c. Now the second count in the indictment, in effect, charges that R. J. Byron, being a married man, but not married to Eliza Miller, did lewdly and lasciviously abide and cohabit with the said Eliza Miller. It is plain that this count does not pursue the words of the statute. The charge should have been, that R. J. Byron and Eliza Miller did lewdly and lasciviously abide and cohabit with each other, he, the said R. J. Byron, being a married man, but not married to the said Eliza Miller.

Judge Ryland concurring, the judgment is reversed, and the defendant discharged ; Judge Gamble not sitting.


author: Gamble, Judge,

text:
    The State, Appellant, vs. Davidson, Respondent.
    1. The principal and security in a recognizance to answer an indictment acknowledged themselves each to he hound in a specified sum. Held, their liability was several and not joint, and a remission hy the governor after forfeiture in favor of the principal would not discharge the security.
    2. A guhernalorial remission from liability upon a recognizance to appear in one county cannot be made to apply to a recognizance to appear in a different county.

      Jlppeal from, Jefferson Circuit Court.

      Scire facias upon a forfeited recognizance. The case is stated in the opinion of the court.
    Mr. JVbell, for appellant.
    1. The governor has no power under the constitution to release parties from the obligations of their recognizances. 2. If he has the power, it has not been exercised as to Davidson, whose obligation was distinct from that of Wright. Besides, the pardon has reference to a recognizance of Wright to appear in the Franklin Circuit Court, and not in the Jefferson Circuit Court.
    Mr. Jones, for respondent.
    1. The discharge of the principal from bis recognizance discharges Ms security. 2. A recognizance may be remitted by the governor after forfeiture. (The Commonwealth v. Denhislon, 9 Watts, 142. State Const, art. 4, sec. 6.)
   Gamble, Judge,

delivered the opinion of the court.

Davidson became bound as the security of one Wright, in a recognizance for the appearance of Wright in the Circuit Court of Jefferson county, to answer an indictment. The recognizance was regularly forfeited, and this scire facias is brought to have execution for the amount. Davidson alone was served, and relies upon a remission of the forfeiture by the governor as his defence. The Circuit Court held it to be a defence.

By the recognizance, Wright, as principal, and Davidson, as security, acknowledged themselves each to be bound to the state of Missouri in the sum of one thousand dollars, for the appearance of Wright in the Jefferson Circuit Court, to which the indictment had been removed on a change of venue from the Eranklin Circuit Court. The remission by the governor remits and discharges Wright from liability upon a recognizance for the sum of one thousand dollars, entered into by Wright for his appearance before the Circuit Court of Franklin county. The Circuit Court held that the remission in favor of Wright discharged Davidson.

1. As we read the recognizance, each person was bound in a sum of one thousand dollars for himself, and not that both were bound for the same one thousand dollars. To make them bound only for the same single sum, it is necessary to strike the word each” out of the recognizance. The remission then of one of the sums is not the remission of the other. If the remission had been of the sum of one thousand dollars in favor of Davidson, the security, it is not supposed that it would be insisted that Wright, the principal, was discharged. Yet the construction of the instrument ought to be the same in each case. The obligation was several, not joint; neither was liable for the sum acknowledged by the other.

2. The remission, moreover, was not applicable to this recognizance. There was in the record a recognizance for Wright’s appearance at the Circuit Court of Franklin county. The one on which this scire facias was issued was for his appearance at Jefferson county.

The judgment is, with the concurrence of the other judges, reversed, and the cause remanded.


text:
    The State, Respondent, vs. Ambs, Appellant.
    1. The laws enforcing the observance of Sunday, (R. C. 1845, tit. Crimes and Punishments, secs. 31, 32, 33 and 34,) are constitutional.
    2. A dram-shop license does not authorize the holder to sell liqu'or on Sunday.
    3. Keeping open an ale house and selling ale on Sunday are two distinct offen-ces, under the 34th section of the act above referred to. A defendant, who pleads guilty to an indictment containing one count for each offence, is subject to two fines.

      ■Appeal from St. Louis Criminal Court.

    Indictment for keeping open an ale house on Sunday, and for selling ale on the same day. The indictment contained two counts, one for keeping open and the other for selling. The defendant pleaded in bar, that, at the time of committing the acts mentioned in the indictment, he was licensed to keep a dram-shop. A demurrer to this plea being sustained, he pleaded guilty to the indictment, reserving the right to move in arrest of judgment for its insufficiency. His motion in arrest was overruled, and he was fined five dollars upon each count, whereupon he appealed to this court. The cause was submitted on printed arguments by Mr. R. M. Field, and Messrs. Delafield & Kribben, for appellant, and on a written argument by Mr. Clover, for the State.
    Mr. Field, (with whom were Delafield & Kribben,') for appellant,
    argued the fo’lowing points : I. The defendant’s license exempted him from the law prohibiting the sale of ale on Sunday. 1. The law on which the indictment is grounded is applicable to unlicensed persons only. 2. If applied to li~ censed persons, it violates that clause of the constitution of the United States, which prohibits all state legislation impairing the obligation of contracts. II. The court below erred in inflicting a double penalty. 1. Only one offence was charged in the indictment. (Crepps v. Durden, Cowp. Rep. 640. Slate v. Cottle, 15 Maine Rep. 473. State v. Stinson, 17 Maine, Rep. 154. State v. Churchill, 25 Maine Rep. 306. Tracy v. Perry, 5 N. H. Rep. 504. Kilbourn v. State, 9 Conn. Rep. 560. Washburn v. Mclnwy, 7 Johns. Rep. 134. Peoples. Mams, 17 Wend. ,Rep. 475.) 2. This error of the court below is incurable. This court cannot impose a single penalty; for it would be exercising original and not appellate jurisdiction. Nor can it remand the case that the error may be corrected below. A case can only be remanded for a new trial. (Crim. Prac. art. 8, §17.) III. The whole system of laws designed to enforce the observance of the Christian Sabbath is unconstitutional. 1. They interfere with the rights of conscience. 2. They impose a -form of religious worship. 3. They give a preference to one religious sect over all others.
    Mr. Clover, for the State,
    argued the following points : I. The defendant’s license was subject to the laws in force when it was granted. (Lambert v. The State, 8 Mo. Rep. 493.) II. A distinct offence is charged in each count of the indictment to which the defendant has pleaded guilty, and the court did not err in imposing two fines. If, however, there was error in this, this court will not reverse, but will correct the error by imposing a single fine. III. The law under which the defendant was indicted is constitutional, ( Specht v. The Commonwealth, 8 Barr, 326. The City of Cincinnati v. Rice, 15 Ohio, 230. The Commonwealth v. Wolf, 3 Serg. & R. 50. The State v. Williams, 4 Tredell, 400.)
   Scott, Judge,

delivered the opinion of the court.

Peter Ambs was indicted for keeping open an ale house on Sunday, and for selling intoxicating liquors on the same day. Both offences were included in one indictment, though in separate counts. He was convicted and fined on each count by one judgment. From this judgment, be appealed to this court.

1. The main question argued in tbe briefs of the counsel in this case was, the constitutionality of the law exacting the observance of Sunday, as a day of rest.. It was maintained for the appellant, that the laws enjoining an abstinence from labor on Sunday, undera penalty, and prohibiting the opening of ale and beer houses, and selling intoxicating liquors on that day, were dictated by religious motives, and consequently could not be sustained, being inconsistent with the state constitution, which ordains that all men have a natural and indefeasible right to worship Almighty Glod according to the dictates of their own consciences ; that no man can be compelled to erect, support or attend any place of worship ; that no human authority can control or interfere with the rights of conscience ; that no person can ever be hurt, molested or restrained in his religious professions or sentiments, if he do not disturb others in their religious worship ^that no preference can ever be given by law to any sect or mode of worship.

The statute compelling the observance of Sunday, as a day of rest from wordly labor, expressly provides, that it shall not extend to any person who is a member of a religious society, by whom any other than the first day of the week is observed as a Sabbath, so that he observed such Sabbath.

Those who question the constitutionality of our Sunday laws, seem to imagine that the constitution is to be regarded as an instrument framed for a state composed of strangers collected from all quarters of the globe, each with a religion of his own, bound by no previous social ties, nor sympathizing in any common reminiscences of the past; that, unlike ordinary laws, it is not to be construed in reference to the state and condition of those for whom it was intended, but that the words in which it is comprehended are alone to be regarded, without respect to the history of the people for whom it was made.

It is apprehended, that such is not the mode by which our organic law is to be interpreted. We must regard the people for whom it was ordained. It appears to have been made by Christian men. The constitution, on its face, shows that the Christian religion was the religioivof its framers. At the conclusion of that instrument, it is solemnly affirmed by its authors, under their hands, that it was done in the year of our Lord one thousand eight hundred and twenty — a form adopted by all Christian nations, in solemn public acts, to manifest the religion to which they adhere.

Long before the convention which framed our constitution was assembled, experience had shown that the mild voice of Christianity was unable to secure the due observance of Sunday as a day of rest. The arm of the civil power had interposed. The convention sat under a law exacting a cessation from labor on Sunday. (1 vol. Edward’s Compilation, 302.) The journal of the convention will show that this law was obeyed by its members as such, by adjournments from Saturday until Monday. In the tenth section of the fourth article of the constitution, it is provided that, if the governor does not return a bill within ten days, (Sundays excepted,) it shall become a law without his signature. Although it may be said that this provision leaves it optional with the governor, whether he will consider bills or not on Sunday, yet, regard being had to the circumstances under which it was inserted, can any impartial mind deny but that it contains a recognition of the Lord’s day, as a day exempt by law from all worldly pursuits. The framers of the constitution, then, recognized Sunday as a day to be observed, acting themselves under a law which exacted a compulsive observance of it. IE a compulsive observance of the Lord’s day, as a day of rest, had been deemed inconsistent with the principles contained in the constitution, can any thing be clearer than, as the matter was so plainly and palpably before the convention, a specific condemnation of the Sunday law would have been engrafted upon it. So far from it, Sunday was recognized as a day of rest, when, at the same time, a cessation from labor on that day was coerced by a penalty. They, then, who engrafted on our constitution the principles of religious freedom therein contained, did not regard the compulsory observance of Sunday as a day of rest, a violation of those principles. They deemed a statute compelling the observance of Sunday necessary to secure a full enjoyment of the rights of conscience. How. could those who conscientiously believe that Sunday is hallowed time, to be devoted to the worship of God, enjoy themselves in its observance amidst all the turmoil and bustle of worldly pursuits, amidst scenes by which the day was desecrated, which they conscientiously believed to be holy ? The Sunday law was not intended to compel people to go to church, or to perform any religious act, as an expres - sion of preference for any particular creed or sect, but was designed to coerce a cessation from labor, that those who conscientiously believed that the day was set apart for the worship of God, might not be disturbed in the performance of their religious duties. Every man is free to use the day for the purpose for which it is set apart or not, as he pleases. If he sees proper to devote it to religious purposes, the law protects him from the disturbance of others ; if he will not employ himself in religious duties, he is restrained from interrupting those who do. Thus the law, so far from affecting religious freedom, is a means by which the rights of conscience are enjoyed. It cannot be maintained that the law exacting a cessation from labor on Sunday compels an act of religious worship. Because divines may teach their churches that the reverential observance of the Lord’s day is an act of religious worship, it by no means follows that the prohibition of worldly labor on that day was designed by the general assembly as an act of religion. . Such an idea can only be based on'the supposition.of an entire ignorance in the legislature of the nature of the worship which God exacts from his creatures. A compliance with the law, induced by a fear of its penalties, could never be regarded as an act acceptable to the Deity. No act of worship, unless dictated by heartfelt love, can be pleasing to the Almighty. God listens alone to the voice of the heart.

Bearing in mind that our constitution was framed for a peo-pie whose religion was Christianity, who had long lived under, and experienced the necessity of laws to secure the observance of Sunday as a day of rest, how remarkable would it have been that they should have agreed to make common, by their fundamental law, a day consecrated from the very birth of their religion, and hallowed, by associations dear to every Christian. Convert Sunday into a worldly day by law, and what becomes of Christianity? How can we reconcile the idea to our understanding, that a people professing Christianity would make a fundamental law by which they would convert Sunday into a worldly day ? It would have been an act of deadly hostility to the religion they professed, exposing it to the danger of being reduced to the condition in which it was before the Roman world was governed by Christian princes. Though it might not be persecuted by the arm of the civil power, it would be driven by the annoyances and interruptions of the world to corners and by-places, in which to find a retreat for its undisturbed exercise.

How startling would the announcement be to the people of Missouri that, by their organic law, they had abolished Sunday as a day of rest, and had put it.out of the power of their legislators ever to restore it as such! With what sorrow would the toil-worn laborer receive the intelligence that there was no longer by law a day of rest from his labor! The poor beasts of burden would soon find by experience, that our laws were no longer tempered by the softening influences of Christianity, and all the social advantages, which great and good men have attributed to the observance of Sunday as a day of 'rest, would be taken away.

In conclusion, we are of opinion that there is nothing inconsistent with the constitution, as it was understood at the time of its adoption, with a law compelling the observance of Sunday as a day of rest. The constitution itself recognizes that day as a day of rest, and from the circumstances under -which it was done, we are warranted in the opinion, that a power to compel a cessation from labor'on that day was not designed to be withheld from the general assembly.

2. A law compelling the observance of Sunday as a day of rest has always been in force under our state government. A license granted by the state must be construed in reference to this law. A dram-shop keeper who should open his shop and entertain his customers on Sunday, as on other days, would violate the Lord’s day act. He is in no worse condition, so far as the authority to sell on Sunday is concerned, because the offence of keeping open a dram-shop on that day is specifically denounced by an act of the legislature. That act was passed, not because to keep open a drinking house on Sunday was no offence, but that such offence might be visited by a heavier penalty than was inflicted for a violation of the Lord’s day act. The argument against this view of the subject is founded in a mistake as to the Sunday law of 1835. The penalty for a violation of that act was five, and not fifty dollars, as was stated.

3. The appellant complains that there was error in assessing a fine for keeping open his ale house, and also one for selling liquors; that the two acts constitute but one offence, and only one penalty was incurred. The words of the act are: “Every person who shall keep open any ale or porterhouse, grocery or tippling shop, or shall sell or retail any fermented or distilled liquor on the first day of the week, shall, on conviction, be fined not less than fifty dollars.” From this provision, it is clear that the keeping open of an ale-house on Sunday is an offence. It is equally clear that the selling or retailing of any fermented or distilled liquor on that day is an offence. Each of these offences is set forth in a separate count in the indictment. Let the- act construe itself. The 31st section prohibits labor on Sunday under a penalty of five dollars. ' The 33d section imposes a fine of fifty dollars for horse racing, cockfighting, playing at cards, &c., on Sunday. Then comes the section under consideration. Now, suppose a person on Sunday morning plows bis field, runs a borse race at noon, and at sun-set plays a game of cards, will not three penalties have been incurred, as much as if these acts had been done by different individuals ? As the opening of an ale-house, and the selling of distilled liquors on Sunday are different offences, why may not several penalties be incurred for their commission? They are charged as separate misdemeanors in the indictment, and the appellant has confessed them as such.

The other judges concurring, the judgment will be affirmed.

A motion for a rehearing of the above cause was filed and overruled.


text:
    McQueen, Respondent, vs. Chouteau’s Heirs, Appellants.
    1. Where a hill is filed for the specific performance of a contract to convey land, the court cannot make an order requiring defendants before the court to defend for all parties interested.
    2. Under the chancery practice which formerly prevailed, an answer, if responsive to the hill, was to be taken as true, if no replication was filed.
    3. Where a tenant disclaims the title of his landlord, and asserts a title in himself, he cannot, when defeated, receive compensation in a court of equity for improvements.
    4. A contract to convey to A. a quarter section of land, to be selected by him, cannot be assigned to B. so as to entitle him to make a selection.
    5. Where a party files a bill in equity for the specific performance of a contract for the conveyance of land, knowing at the time that it is not in the power of the defendant specifically to perform the contract, the court will not, in ordinary cases, decree to him compensation in damages, but will leave him to his remedy at law for a breach of the contract.

      Appeal from Audrain Circuit Court.

    This was a bill in equity filed in the Pike Circuit Court in 1844, by McQueen against the heirs of Auguste Chouteau, for the specific performance of a contract to convey a quarter section of land.
    On the 25th of June, 1829, the administratrix of Auguste Chouteau leased to John J. Grimes, for the term of one year, for the annual rent of one dollar, a league square of land granted to said Chouteau by the Spanish government, but then unconfirmed. The league square comprehended four quarter sections, the grant having been disregarded by the United States surveyors. On the same day, the heirs of Chouteau entered into an agreement under seal with Grimes, by which, after reciting the lease from the administratrix, it was stipulated that, if the title of said heirs should be confirmed by the United States, they would make to Grimes a good title to one of the quarter sections to be selected by him, he paying therefor at the rate of three dollars per acre, “ one half in cash at the delivery of the deed, and the other half twelve months afterwards.” If the claim of the heirs should not be confirmed, but they should be entitled to a preemption right on account of the improvements made and to be made upon the land, then they covenanted to convey to Grimes one fourth of the land to which they should thus become entitled, at the same rate and upon the same conditions that they should obtain it themselves. Grimes, on his part, covenanted to clear, improve and cultivate enough of each of the four quarter sections to entitle the heirs to a preemption right to all of them, in case their claim should not be confirmed. He covenanted not to cut any timber, except such as he might want for his improvements and the support of his farm. If the heirs should fail to make a good title to Grimes, according to the provisions of the agreement, upon the tender of the money, then they covenanted to pay Grimes for his improvements according to a valuation by three disinterested persons.

      Under this lease and agreement, Grimes entered into possession of tbe land, and made improvements. In 1832, be sold bis improvements to McQueen, tbe complainant, and assigned to bim all his interest in tbe agreement. McQueen entered into possession and made further improvements. Tbe league square was subsequently confirmed to tbe beirs of Chouteau. Partition was made among tbe beirs, and tbe legal title to tbe entire tract vested in Thomas F. Smith, one of the defendants, for the benefit of all tbe beirs.
    The bill, after setting out the facts, averred that both Grimes and tbe complainant bad kept all tbe covenants in tbe agreement on their part; that tbe defendant, Smith, bad told tbe complainant that be was willing to comply -with tbe agreement by conveying one of tbe quarter sections, and that he bad a power of attorney from tbe other beirs to do so ; “that complainant informed Smith that be was ready to take tbe conveyance and pay down one half of tbe consideration money, but that Smith did not offer to make the deed nor exhibit bis power to do so.” Tbe complainant, in bis bill, made selection of a particular quarter section, and prayed a decree for a specific performance, if it should be found that tbe defendants could make a good title ; if not, he prayed a decree for tbe value of bis improvements and for general relief.
    Tbe defendants answered, admitting tbe agreement, but denying that tbe complainant bad complied with bis part of it. They charged that be had committed waste ; that Smith, who held tbe title, bad offered to convey to bim a quarter section if be would pay down half tbe consideration money, but that be bad neglected to do so; and that, instead of complying with tbe agreement and purchasing one of tbe quarter sections, tbe complainant bad claimed title in himself to tbe whole of them under a pretended and fraudulent preemption right, and in an action of ejectment brought by Smith, bad set up said fraudulent title as a bar. They also alleged that there were other beirs of Auguste Chouteau who had not been made parties to tbe suit.

      At the April term, 1848, upon a petition filed by the complainant, setting forth that, by reason of the death of some of the original defendants and the marriage of others, the parties had become so numerous as to render it difficult, if not impossible, to bring them all before the court, an order was made directing the defendants already before the court to defend for the others._
    At the April term, 1849, the cause was taken by change of venue to Audrain county. Upon the hearing at the October term, 1852, the complainant read in evidence the lease from the administratrix of Chouteau to Grimes, the agreement between Chouteau’s heirs and Grimes, and the assignment thereof to the complainant. He then proved the value of his .improvements. It was admitted that the defendants had conveyed away the land before the filing of the bill, so that it was not in their power to make a title to the plaintiff for any portion of it. The defendants gave evidence tending to show that the complainant never had made a tender of any portion of the purchase money. There was evidence tending to show that the complainant had committed waste upon the land, and evidence to the contrary. The defendants read in evidence the record of an ejectment suit brought by Smith against complainant, for the four quarter sections, in which he had filed a plea of “not guilty” and in which there was a judgment, for the plaintiff.
    The defendants asked the court to declare the law to be, that the contract between Grimes and the defendants could not be assigned, and that the complainant could not have a decree unless he proved a tender. These declarations were refused, and the court declared that the contract was assignable in equity, and that no tender was necessary, “if the defendants had shown a determination not to perform the contract, or had deprived themselves of the power of performing it.”
    A decree was rendered in favor of the complainant for f 1350 as the value of his improvements, and the defendants appealed to this court.

      Glover & Richardson, (with G. Porter,') for appellants.

      If the complainant was entitled to a decree, it was either because, at the institution of the suit, the contract set out in the bill was a subsisting one which he had performed on his part, or because it had been rescinded, and the parties, at the time, were mutually entitled to receive back what had been advanced on the faith of it. The decree cannot be sustained on the ground of performance by the complainant, because: 1. No tender of one half the purchase money is alleged in the bill. The payment or tender of the money was a precedent condition to the acquisition of an interest in the land he was to select. A court of equity cannot relieve against the non-performance of a precedent condition. (15 Yermont, 757. 2 íáandf. Ch. Rep. 78. Walk. Ch. Rep. 405. 6 J. J. Marsh. 263. 3 Gill & John. 265. 1 J. O. R. 370.) 2. The bill shows that no selection was made, as required by the contract. 3. If the aver-ments of the bill were sufficient, they were denied by the answers, which were to be taken as true, no replications having been filed. 4. Even if replications had been filed, the evidence showed that there had been no performance.
    The decree cannot be sustained on the doctrine of rescisión, because the bill was not framed on that view. Even if it had been, the decree is erroneous in not giving to the appellants the benefits which belong to a case of rescisión. When a contract is rescinded, the parties must restore to each other what they have respectively received under it. (6 Gill & Johns. 435. 2 Dana, 374. Id. 469. 4 Dana, 507. 1 A. K. Marsh. 434. 5 J. J Marsh. 207. 4 Ohio, 229. 2 J. J. Marsh. 520. 5 Dana, 166.) The decree gives the complainant the value of his improvements, and nothing was allowed to defendants for the use of their land for nearly fifteen years.
    McQueen was entitled to no compensation for improvements, because he made them in bad faith. He made them for himself, not for the defendants. He attempted to hold the land by his fraudulent preemption right.
    The court erred in making the order that a portion of the defendants should defend for the rest.

      Mr. Broadhead, for respondent.
    1. Tbe contract set forth in tbe bill is assignable. (Story’s Eq. Juris, p. 866, §1040.) 2. Complainant was not bound by tbe terms of tbe contract to tender tbe money for tbe quarter section be might select, if be knew tbe heirs were not able to make him a conveyance of said land, free from all incumbrances. • 8. Complainant was not bound to tender or pay tbe money until defendants were ready to make him a deed; and if they were not prepared to make him a deed, be might resort to bis other alternative under tbe contract, and claim tbe improvements.
   Scott, Judge,

delivered tbe opinion of tbe court.

1. Tbe irregularities committed in tbe progress of this suit are such as cannot be sustained. When a bill is filed for a specific performance of a contract for tbe conveyance of lands, we are not aware of any principle of tbe law governing courts of equity, which warrants tbe order that was made on tbe application of tbe complainant, that tbe defendants then before tbe court should answer and defend for all the defendants in tbe cause. In some cases, as in tbe instance of creditors seeking an account of their deceased debtor’s estate, for tbe payment of their demands, a few suing on behalf of the rest may substantiate tbe suit, and tbe other creditors may come in under tbe decree. So a bill may be brought by a lord of tbe manor against some of tbe tenants, or by some of tbe tenants against tbe lord, upon a question of common ; or by a parson for tithes against some of tbe parishioners, or by some of tbe parishioners against tbe parson, to establish a general modus. (Harrison’s Chan. 1 vol. 77.) But no case can be found, in which such permission was given in a suit of tbe character of that now under consideration.

2. This was a suit instituted before tbe present practice act went into operation; consequently, it was subject to tbe laws in force governing chancery practice before that event. No replications were filed to tbe answers. In a bearing on such a state of pleadings, the answer is taken for true, if responsive to tbe bill.

8. The fact is set up in the answer that McQueen disclaimed the relation of tenant or purchaser under Chouteau’s heirs. He withstood an action of ejectment and set up a title in himself. This does not consist with the fact that, as assignee of Grimes, he made the improvements for which he claims compensation. If he had really considered himself as the assignee of Grimes, and claimed as such, it was singular that he should defend the ejectment. Why did he not let judgment go in that action, and, enjoining the proceedings on it, show his equitable title to one of the tracts, and not claim all four of them, as he did ? But it was not until he was defeated in a regular action at law, in which he asserted a right adverse to Chouteau’s heirs, that he thought about the contract made by Grimes with the defendants. The fact of his taking an assignment avails nothing in opposition to such conduct. If he acted in bad faith towards the defendants, and made his improvements with a determination to hold the land in despite of them, he cannot now complain that they withhold compensation for those improvements.

4. But what is deemed conclusive in bar of the right of the complainant is, the consideration that the contract was not assignable iii the way in which it was effected. Chouteau’s heirs stipulated to convey one of the four quarter sections, at the choice of Grimes. Now the right of choice is, not assignable. It is strictly personal. The contract that the heirs would convey the quarter section selected by Grimes, is different from one to' convey the quarter section made choice of by the complainant. Grimes and McQueen could not change the contract, and then insist on its performance by parties to it, who did not consent to the change. The defendants have a right to say, this is not the contract into which we entered. If Grimes had made the improvements on the four quarter sections, which would have entitled Chouteau’s heirs to a right of preemption, then he should have made choice of one of them, and assigned it to McQueen. But by the case as made, it appears that the right of election was assigned to McQueen, which it is clear could not be done.

5. It was admitted on tbe hearing of this cause that, before this suit was brought, the defendants had conveyed away the land in controversy. They had offered previously to convey to McQueen, on his compliance with the terms of the contract. This he failed to do. In cases similar to this, courts of equity have refused to decree a specific performance of the contract, and have refused to entertain the bill for the purpose of compensating the complainant for damages, but have left him to his action at law on the agreement. In the case of Hatch v. Cobb, (4 J. C. (N. Y.) R. 559,) it is said that it is doubtful how far the court has juris - diction to assess damages merely in such a case, in which the plaintiff was aware, when he filed his bill, that the contract could not be specifically performed or decreed, as it was a matter of legal cognizance; that though equity, in very special cases, may possibly sustain a bill for damages on a breach of contract, it is clearly not the ordinary jurisdiction of the court. This doctrine is confirmed in the subsequent case of Kempshall v. Stone, (5 J. C. Rep. 193,) in which it was held that a defendant, who had entered into an agreement with the plaintiff for the sale of a lot, and who, after the time of performance had elapsed, sold and conveyed the land to a third person for a valuable consideration, without notice of the agreement, and before the filing of a bill by the complainant for a specific performance of it, would not be compelled to a specific performance, but that the plaintiff’s remedy was at law, for a compensation in damages for the breach of the agreement.

Judge Ryland concurring,

the decree will be reversed, and the bill dismissed.


text:
    Robinson et al., Appellants, vs. Rice et al., Respondents.
    1. It has been repeatedly held that, under the new practice, multifariousness is still an objection to a pleading. Different causes of action against different parties cannot be joined.
    2. A husband in possession of slaves under a will which gives his wife a life estate, cannot pass an absolute estate to a purchaser.

      3. Under the new practice, a party cannot state one cause of action, and ask that, if it proves unfounded, another cause of action may be tried. That is not a joinder of several causes of action.
    4. Where a vendor is in possession of personal property, and sells for full value, a warranty of title is implied.
    5. Where a cause is tried by a court without a jury, the supreme court will affirm if the facts found support the judgment, without regard to the instructions given or refused.
    6. The supreme court cannot review the action of the inferior court upon a motion to strike out parts of an answer, when they are only referred to in the rtj^grd by line and page of the original.

      Appeal from Cole Circuit Court.

    This was an action under tbe new practice, commenced by the widow and heirs of James F. Clendenin, against S. 0. Rice, and the heirs of Jane Lowe, and against S. 0. Rice and Perry Askens, guardians for some of said last named heirs, for the specific recovery of two slaves, named Matthew and Mary, children of a negro woman named Emily.
    In 1829, Joab Barton died, leaving a last will, by which he bequeathed Emily and her increase to his daughter, “Jane Lowe, wife of Charles Lowe, for and during her natural life, and after her death, to her children, in full property forever.” After the death of Barton, Lowe took possession of Emily, who afterwards gave birth to two children, Mary and Charity. About 1886, Lowe sold and delivered Emily, Mary and Charity to James F. Clendenin, for the sum of $650. Afterwards, Emily gave birth to Matthew and two other children. In 1842, Clendenin sold Emily and her two youngest children to one Overton. The petition states that Charles Lowe died about the month of February, 1846, and that his wife, Jane Lowe, died about the same time. The answer admits that Lowe and his wife died about the time stated in the petition; but in a subsequent part of the answer, it is alleged that Jane Lowe died on the 25th of January, 1845, and the court found that both Lowe and his wife died in 1845. The slaves, Mary, Matthew and Charity remained in possession of Clendenin up to his death, in January, 1846. About 1849, William Morrison and his wife, Mary, daughter of J. E. Clendenin, removed to Texas and took Charity with them, and had not returned at the commencement of this suit. Clendenin, at his death, left three children, and a widow, who afterwards intermarried with Isaac L. Robinson. Robinson and wife and Morrison and wife, together with the other two children of Clendenin, were the plaintiffs in this action. The slaves, Mary and Matthew, remained in possession of the widow, administrator and heirs of, Clen-denin after his death until March 10, 1851, when they came into possession of S. 0. Rice, one of the defendants. Rice was guardian of two of Lowe’s children, and it would appear from the answer that he married one of Lowe’s daughters, although it is not distinctly alleged, nor was there any proof upon the subject. Letters of administration were granted on the estates both of Lowe and Clendenin, and they had been finally settled when this suit was begun. Lowe left some personal estate, which was distributed among his heirs at the close of the administration, and also real estate which descended to his heirs.
    The plaintiffs, in their petition, stated that the defendant, Rice, wrongfully obtained possession of the slaves and unlawfully detained the same. They prayed judgment for their restitution, and damages for the unlawful detention. The petition then proceeded to state that when Lowe sold the slaves to Clendenin, he executed a bill of sale containing a covenant of warranty, which had been lost.
    The plaintiffs claimed that Clendenin acquired an absolute estate by the purchase from Lowe, and that they, as his heirs, were entitled to the slaves ; but if the court should be of a different opinion, then they prayed a decree against the heirs of Lowe upon his covenant of warranty.
    The defendants answered, setting up title under the will of Joab Barton. They alleged that the plaintiff, Robinson, carried the two slaves named in the petition to Arkansas, and when pursued, voluntarily delivered them up to the defendant, Rice, upon demand, without any force being used. They admitted the sale from Lowe to Olendenin, but insisted that Lowe only sold an estate fot his wife’s life, and denied any knowledge of a bill of sale with warranty. In conclusion, they prayed judgment for the return of Charity or for her value, for the value of her hire from the. death of Jane Lowe up to the present time, for the hire of Mary from the same date up to the time when she came into possession of Rice, and for the expenses of Rice in getting Mary and Matthew back from Arkanaas, whither they had been taken by Robinson.
    The record shows that a motion to strike out portions of the answer, which are referred to merely by line and page of the original, was overruled. The cause was heard by the court without a jury, and the facts found substantially as above stated. It was found as a fact that when Lowe sold to Olendenin, he executed a bill of sale containing a covenant of warranty. It was admitted that a suit was pending in Callaway county by the defendants against Overton, for the recovery of the slaves sold to the latter by Olendenin. During the progress of the trial, exceptions were taken to the admission and exclusion of evidence, which it is not thought necessary to notice. At the close of the evidence, several declarations of law, in the form of instructions, were asked on both sides, some of which were given and some refused. The court declared that neither plaintiffs nor defendants were entitled to any relief, and dismissed the petition, from which judgment the plaintiffs appealed.
    Morrow, White and Parsons, for appellants.
    1. The motion to strike out so much of the answer as relates to the alleged torts and conversions of Morrison and Robinson should have been sustained. The other appellants could not be affected by Avrongful acts to which they Avere not parties. This part of the answer surely cannot be sustained by the Iuav of set-off. The objection applies with equal force to the claim for hire. (Now Practice Act, art. 6, sec. 7. Sappington v. Jeffries, 15 Mo. Rep. 630. Nidelet v. Wales, 16 Mo. Rep. 214.) 2. This court held in Freeman v. Freeman & Challis, (9 ,Mo. Rep.,) that the husband is in law trustee of his wife’s property, unless another trustee is appointed. This being the case, the sale by Lowe passed the title. If he was guilty of a breach of trust, his estate was amply sufficient to compensate the heirs of the wife in damages. The evidence shows that this was a bona fide sale. There is no evidence of notice of the will. It was not recorded, as required by law. (R. C. 1825, 792, see. 9. 2 Story’s Eq. 289, 290.) 3. The heirs of Lowe are bound by his covenant of warranty, even though not expressly named in it; and Lowe’s estate having descended and been distributed, they are liable to the extent of the value of the property descended or distributed. (Booth v. Starr, 5 Day’s Rep. 419. Boyce v. Burnet, 12 Mass. 410. Hutch-ison v. Stiles, 3 N. H. Rep. 408. 1 Little’s (Ky.) Rep. 397. 20 Pick. 2. 3 Murphy 580. 2 B. Monroe, 63. 4 Kent, 419.) This being a sale of personal property for a fair price by,the party in possession, the law implies a warranty of title. (2 Kent, 478.) 4. The dismissal of the plaintiffs’ petition leaves them without relief, and still liable upon their ancestor’s covenants of title for the slaves sold to Overton, if any such covenants are outstanding. 5. The appellants having obtained possession of the slaves lawfully, under the belief that their title was good and absolute, cannot be required to account for their hire, until after a demand by some person having a better title.

      Edwards and Gardenhire, for respondents.
    1. Lowe’s heirs were not bound by his covenant of warranty unless expressly named in it. (Rawle on Covenants, 438. Smith on Contracts, 20, 21. Loyd v. Thursby, 9 Mod. 163.) 2. The plaintiffs’ suit was properly dismissed. They were asking equitable relief against the heirs of Lowe upon his warranty, and yet they did not offer to return the slave, Emily, and her two children sold to Overton, nor Charity, who had been carried to Texas by two of the plaintiffs. Those who ask equity must do equity. 3. The other defendants are not liable for the trespass of Rice, if the action is sought to- be maintained on that ground.
   Scott, Judge,

delivered the opinion of the court.

1. This is a proceeding under the 8th article of the present practice act, respecting the claim and delivery of personal property. Samuel 0. Rice is the only person complained of as committing the alleged grievance, in taking away the two slaves for whom suit is brought. This being the nature of the complaint, it is difficult to perceive why so many others were made defendants. There is certainly a misjoinder.

It has been repeatedly held that multifariousness is an objection which is not taken away by the present practice act. If the defendant, Rice, has trespassed, why keep the other parties in court, waiting the trial of an issue in which they have no concern ? The petition shows no right in Rice to take the slaves. As guardian, he had no right to sue in his own name to recover slaves belonging to his wards, which slaves had never been in his possession. Rice could not be sued in trespass as a guardian, for his own act. If he committed a trespass, he was liable for .it in his own right, and could not qualify his wrong by maintaining that he did it as a guardian. It does not appear that Rice had any claim in right of his wife. Indeed, it is not shown that he married one of Lowe’s daughters.

2. But, although it is shown that Rice had no right to take the slaves, yet, as the plaintiffs claim under James F. Clendenin, who purchased from Charles Lowe, who only had an estate in the slaves during his wife’s life, and as Lowe’s wife was dead, they had no right to recover them. There is no ground for the assumption, that Lowe was a trustee for his wife, and as trustee, was competent to convey the legal title to the slaves to a bona fide purchaser. The case of Freeman v. Freeman & Challis, (9 Mo. Rep.,) is not in point. That case only maintains that, where there is separate property settled on the wife, and no trustee is appointed, the law will make the husband a trustee. Here there was no separate property in Mrs. Lowe : there is nothing to show that any such thing was contemplated by Joab Barton. The slave was given to his daughter during her life, and by operation of law, that gift passed the property to the husband. But even if the husband was trustee, and could, pass the legal title, yet he could only pass such title as he held as trustee. Now, it is not pretended that his wife had more than a life estate in the slaves. At her death, they vested in her children, who thereupon had an immediate right to the possession of them. It appears from the pleadings that James E. Clen-denin died before Lowe’s wife; if so, his estate would be liable only for those slaves which were disposed of by him during his life-time, or which came to his administrator. Lowe had a right to sell the slaves for his wife’s life-time, and during her life-time, Olendenin’s possession was lawful. If Charity was run off after the death of Clendenin, before the assertion of an adverse claim to her by his representatives, his estate would not be liable for her value.

B. It is to be regretted that Clendenin’s heirs did not bring an action at once on the warranty. The principle is not perceived on which they can claim the slaves in controversy, and ask at the same time, that, if their claim is defeated, then that they may recover on the warranty of title. That would not be a joinder of several causes of action. It is the setting up of one claim, and asking that, in the event it should turn out unfounded, then that another cause of action might be tried. Par-, ties must ascertain the nature of their demands before they go to law. The will of Joab Barton, beyond all controversy, gave only a life estate in the slaves to Mrs. Lowe. At her death, they belonged to her children, and the only recourse of the plaintiffs, if they had any, was on the warranty made by Lowe to Clendenin.

4. Where the vendor is in possession of personal property, and sells it for full value, the law implies a warranty of title. Whether Lowe sold the slaves absolutely, or only his life estate in them, was a question to be determined by the evidence in the cause. Whether there would be a recovery on the warranty might, in part, depend on the result of the suit against Overton for the slaves sold to him, and, whether any thing had been done by James Clendenin or his administrator, which rendered his estate liable for the value of the slave Charity. Certainly, if any of the slaves have been lost to Lowe’s heirs, through the fault of Clendenin, it would constitute a counter claim to the demand of the plaintiffs for relief on the warranty. Morrison, by running off one of the slaves, on the termination of Clendenin’s interest in her, would not subject his co-heirs to a claim for her value.

5. The practice now is, not to review the instructions given or refused when the cause is submitted to the court for trial. This court, in such cases, looks at the facts found, and if they warrant the judgment pronounced, that judgment will be affirmed, without regard to the instructions given or refused.

6. There is nothing in the objection, that the court refused to strike out a part of the defendants’ answer. Even if there was, the point is not saved in such a way as that it can be noticed. The part objected to is designated by a reference to the paging of the original answer, which does not correspond with the paging of the record in this court.

There is nothing in the points about the admission or rejection of evidence which affects the judgment below, in our opinion. Upon the whole, we see no reason for disturbing the judgment of the court below on the merits of theucase as presented. In order to avoid future difficulty, the judgment will be reversed, and a judgment entered dismissing the plaintiffs’ action, without prejudice to a suit on the warranty, should they see proper to bring one, the appellants paying costs;

Judge Hyland concurring.


text:
    Golahar, Plaintiff in Error, vs. Gates, Defendant in Error.
    1. A party who is prosecuted, (under sections 59 and 60 of article one of the act concerning roads and highways, R. C. 1845,) for obstructing a public way over his own land, may show that his property has not been condemned for public use in the manner prescribed by law.

      Error to Moniteau Circuit Court.

    This was an action commenced before a justice of the peace in Morgan county, by Golahar, road overseer, to the use of his road district, against Gates, to recover the statutory penalty for obstructing a county road. The cause was taken by appeal to the Circuit Court, and afterwards, by change of venue, to the Circuit Court of Moniteau county.
    At the trial, the plaintiff read in evidence a transcript of the record of proceedings in the Morgan county court, at the May term, 1850, consisting of the report of the commissioners appointed at a previous term to view and locate the road, together with the approval thereof by the court and the order for the establishment of the road. The commissioners, in their report, after designating the route of the road, state that it “ probably touches on the corner of Gates’land. If it runs over any of Mr. Gates’ land, which we do not know that it does, we áid not' obtain said Gates’ consent.” The record states that the report “ was read in open court, and no objections being made in a legal form, said report was approved and ordered to be recorded, and said road be declared a public route and highway, and that it be opened twenty feet wide as the law ■directs.” The clerk of the county court testified that the defendant was present when the commissioners made their report, and objected to the establishment of the road, but the court overruled his objections and he excepted. There was evidence that the road, as opened, ran through defendant’s land, and that he closed the same up by building a rail fence across it. -
    The court instructed the jury that the defendant, in this action, was liable, if the road was established by the judgment of the Morgan county court, without regard to any informality or irregularity in the proceedings, and refused a contrary instruction. After a verdict and judgment for the plaintiff, the. defendant prosecuted this writ of error.

      Edwards & Parsons, for plaintiff in error,
    relied upon Cooper County v. G-eyer, (19 Mo. Rep.)
   Scott, Judge,

delivered the opinion of the court.

Golahar, as road overseer, instituted this proceeding in a justice’s court against Gates, under the 59th and 60th sections of the act concerning roads and highways, approved 26th March, 1845, for obstructing a highway. The cause was taken by appeal to the Circuit Court, where, on a trial, there was a judgment against Gates, on which he sued out $iis writ of error.

1. Although, on an indictment against a road overseer, -it is sufficient to show that the road, whose want of repair has caused the prosecution, is used as a public highway, yet, when an individual'is prosecuted for obstructing a public way over his own land, it is competent for him to show that his property has not been condemned for public use in the manner prescribed by law. It is the doctrine of this court that, if the rights of any person are compromised by any proceedings to which he is no party, and of which he has no knowledge, and Consequently from which he can take no appeal, he may, in aocollateral action, impeach the validity of such proceedings, and have their nullity judicially declared. The road, for whose obstruction this proceeding was instituted, had been but recently opened. It passed over the defendant’s land, and the commissioners appointed to make the review returned the fact that he did not give his consent to the opening of the road. None of the steps required by law were thereupon taken by the county court, in order to have his land condemned; but that body proceeded as though his consent had been lawfully obtained. It is obvious that, if such proceedings arc tolerated, a person may be deprived of Ms property against his consent, without the least color of authority. Under such circumstances, to hold that he could not assert the nullity of the proceedings in a collateral action, would be to deprive him of all redress whatever.

Judge Ryland concurring,

the judgment will be reversed.