author:
Napton, Judge,
      Richardson, Judge,

text:
    Wiles, Plaintiff in Error, v. Maddox, Defendant in Error.
    1. An execution, issued under a judgment against one of two partners, may be levied upon bis entire interest in tlie partnership effects or upon his interest in any portion of such effects.
    2. In levying such an execution upon partnership property, the sheriff may seize and take into his possession a portion or the whole of the partnership effects, and, it would seem, may give possession to the purchaser thereof at the execution sale. (Riciiaedson, Judge, dissenting, holding that such an execution can he levied only upon the debtor partner’s entire interest in the partnership property and not upon his interest in a portion thereof; that in executing the writ the sheriff can not take the partnership property levied upon from the possession of the solvent partner and surrender it to the purchaser at the execution sale.
    8. The purchaser at such sale acquires only the interest of the debtor partner in the partnership effects sold.
    4. An execution, issued under a judgment against one of several partners, will be a lien on such partner’s interest from the time of its delivery to the sheriff.

      Error to St. Louis Court of Common Pleas.

    This was an action instituted by Peter Wiles against Turner Maddox, sheriff of St. Louis county, to recover possession of two mules alleged to have been wrongfully seized and taken away by the defendant. A delivery bond was given in behalf of defendant. The answer traversed plaintiff’s ownership, and alleged that defendant, as sheriff, seized and sold said mules as the property of D. J. & N. Childs, jr., in obedience to the command of several executions in his hands against said D. J. & N. Childs, jr.
    At the trial the plaintiff proved that on and prior to the 25th day of January, 1856, he was in possession of the mules, claiming to have bought them of D. J. Childs on the 19th day of January, 1856, and that on said 25th day of January, 1856, the defendant seized them under an execution, took them away and sold them. Plaintiff also proved the value of the mules and of their hire, and rested.
    The defendant then offered in evidence the record of a judgment in the case of Meegan v. D. J. & N. Childs, jr., et al., rendered October 31, 1855, and also an execution issued thereon dated November 2,1855, with the defendant’s return thereof. The return showed that the mules were levied on and sold under that writ and twelve others, and that the proceeds of the sale were applied towards their satisfaction. To the reading of this record and execution the plaintiff objected. The objection was overruled. The defendant then offered in evidence the remainder of the executions mentioned in his answer. The court excluded them. Some of these executions were placed in the hands of the sheriff before the 19th of January, 1856; some after that date. Defendant then proved that the mules belonged to the firm of D. J. & N. Childs, jr., in the month of January, 1856. On the cross-examination of a witness, plaintiff offered to prove by him that on the 30th day of October, 1855, and ever since that time, the partnership property of D. J. & N. Childs, jr., was not, and has not since been sufficient, to pay the partnership debts of said firm. The court, on the objection of defendant, excluded this testimony.
    The plaintiff, in rebuttal, read the record, dated January 3, 1856, in the case of Meegan v. D. J. & N. Childs, jr., et al., as follows: “ By consent of parties, it is' ordered that the judgment rendered herein, in October 31, 1855, be set aside as to the defendant Dominick J. Childs, and that this cause be dismissed as to the said Dominick J. Childs.” Plaintiff also offered to prove, by defendant himself, that at the date of the levy by him he knew that said judgment had been set aside as to Dominick J. Childs. The court excluded the testimony. Plaintiff also proved, by Dominick J. Childs, that on the 19th day of January, 1856, he, as one of the firm of D. J. & N. Childs, jr., sold and delivered the mules to plaintiff ; that this sale was made for partnership use; that the consideration paid by plaintiff for said mules was four hundred and fifty dollars.
    The court, of its own motion, gave the following instructions : “ 7. If the jury believe from the evidence that the clerk of this court on the 2d day of November, 1855, issued the execution read in evidence by the defendant in favor of James Meegan and against Nathaniel Childs, jr., and others; that said executions were received by said defendant as sheriff of St. Louis county on said day and year; that the mules in dispute were owned at said time by Dominick J. Childs and Nathaniel Childs, jr., as copartners, doing business under the name and style of D. J. & N. Childs, jr.; that the defendant, as sheriff as aforesaid, on the 25th of January, 1856, levied upon the said mules as the property of said Nathaniel Childs, jr., to satisfy the said executions ; that when this suit was commenced said mules were in the possession of said defendant as sheriff as aforesaid under said levy, and that at said time the said executions remained in the hands of the said sheriff unsatisfied, then the jury will find for the defendant, if the plaintiff’s title was acquired by purchase from said copartners or either of them subsequent to said November 2d. 8. If the mules in controversy were the property, on the 2d day of November, 1855,. of the partnership of D. J. & N. Childs, jr., then under the judgment and execution issued thereupon there was a lien upon the mules to the extent of the interest of Nathaniel Childs, jr., if he was a member of said firm, from the time said execution came to the hands of the sheriff; and if the defendant as sheriff subsequently levied upon and took possession of said mules under said execution, then the plaintiff can not recover in this action, under the evidence, if he purchased said mules from Dominick J. Childs, the other member of the firm, or from the firm itself, subsequently to the time said execution came,into the hands of the sheriff.”
    The plaintiff thereupon took a nonsuit with leave to move to set the same aside.

      Krum & Harding, for plaintiff in error.
    I. The court erred in refusing the third, fourth and fifth instructions asked by plaintiff, and in giving, on its motion, those marked seven and eight. Even if it be admitted that a separate execution may be levied on partnership effects, yet it does not follow that the execution is a lien on such property before levy and after the writ has been placed in the hands of the officer. The doctrine laid down by the court below would make it impossible for one partner to give valid title to personal property sold and delivered, if there happened to be in the hands of the sheriff an execution against his co-partner. (1 Mart. & Yerg. 309 ; 7 N. H. 352; 4 Dev. 367 ; 8 N. H. 238 ; 13 Conn. 461.)
    II. The court erred in excluding testimony offered by plaintiff and in admitting testimony offered by defendant.

      Cline & Jamison, for defendant in error.

      I. The sheriff under an execution against one partner for his separate debt may seize the tangible property of the partnership, and when he does so he acquires a special property in the goods seized. (Coll, on Part. § 821, 822; Story on Part. § 261, 2, 3, 311; 2 Johns. Oh. 548; 20 Maine, 89 ; 1 Gall. 367.) The execution was a lien on the personal property of all the defendants from the time the same was delivered to the sheriff. (R. C. 1845, tit. Execution, § 16.) The execution under which the sheriff levied upon the mules was against both partners, and issued upon a judgment against both and for a firm debt, and the same being regular upon its face and issued by a court having jurisdiction over the subject matter justified the sheriff in levying upon the said mules. (Higdon v. Conway, 12 Mo. 294.) A sheriff may justify by pleading the execution without showing the judgment. (1 Mo. 246, 94; 4 Mo. 2; 6' Mo. 148 ; 6 Johns. 196; 3 A. K. Marsh. 452; 19 Mo. 319.) It is not the judgment but the execution which creates the lien on personal property. The plaintiff showed no title in himself. He claimed to have purchased the mules from one partner while the execution was in the hands of the sheriff, and there was no evidence showing or tending to show the consent of the other partner to such pretended sale, which was essential to vest title in the plaintiff; for their copartnership business consisted, not in buying and selling mules, but in sawing and dealing in lumber.
   Napton, Judge,

delivered the opinion of the court.

This action can not, in our opinion, be maintained. It is an action of replevin against the sheriff for levying an execution against N. Childs, jr., upon the partnership property of D. J. & N. Childs, jr. In law the right to levy an execution against one of two partners upon the partnership effects is recognized with great uniformity both in England and in this country. In New Hampshire a different opinion has prevailed, and there may be cases elsewhere in which the principle has been modified or denied; but in England the common law courts have constantly maintained the right to levy in such cases, and the current of authorities here is in the same direction.

Whether a court of equity or a court of law would interfere, under the circumstances of this case, and stay the proceedings of the sheriff, is a question the decision of which can not vary his liability in action of trespass, trover or replevin, where no such interference has taken place or been solicited. It is agreed, on all sides, that it is only the interest of the debtor partner which is levied on and sold, and this is his share of the effects after payment of the partnership debts. But the sheriff levies on and seizes and takes into possession the partnership effects or so much of them as may be necessary to satisfy the execution. The proceeds go to the creditor, the plaintiff in the execution, and the purchaser acquires the interest of the debtor partner, the defendant in the execution, whatever that may be. If the partnership is insolvent this interest is, of course, of no value, since the partnership debts have a priority; but the sheriff, even in such cases, is protected in his obedience to the commands of the writ, and is not under the necessity of investigating the condition of the concern prior to his levy. It is for the solvent partner, or, in cases of bankruptcy or insolvency, for the assignees or creditors, to institute such proceedings for the protection of their interests as the law and the nature of their case may afford. It is intimated in some of the cases that where the firm is bankrupt or insolvent, or partnership rights have been transferred to assignees for creditors, the court of law from which the execution emanated may grant equitable relief by controlling its process; but this is 'denied by other authorities, and a court of equity is alone held competent to furnish relief. However this may be, it is unnecessary to determine here, since no such application has been made either in law or equity, and the sheriff is sought to be held liable as a mere trespasser.

Principles of public policy, apart from the mere weight of authority, would in our judgment lead to the same result. The right to an execution in such cases carries with it a moral effect highly important to the interest of the community. It will generally lead to an equitable adjustment of the debt-in cases where the partnership is solvent and an interruption in their business would not be desirable. In other cases the property had as well be in the hands of the sheriff, or the purchaser at the execution sale, as in the possession of the insolvent partners, so far as partnership creditors are concerned. Inconveniences may no doubt arise in isolated cases, and perhaps hardships upon solvent partners; but even then these inconveniences and hardships will scarcely counterbalance those which must ensue from a different doctrine. If the creditor of one partner, whatever the amount of the debt may be, has to initiate proceedings, either at law or equity, to ascertain the exact interest of his debtor in the concern after an adjustment of all the partnership accounts, before he can have his execution levied, it would look very much like giving property so situated a privilege which no other possesses, and exempting it for an indefinite period from the process of the law. The cases on this subject are very fully reviewed by Judge Cowen, in Phillips & others v. Cook, 24 Wend. 389, and may also be found in the notes to 1 Amer. Lead. Cases, 323.

So far as the lien of the execution is concerned we see nothing to distinguish this from any other class of executions. As the writ was in the hands of the sheriff before the transfer to the plaintiff, it was a lien upon the interest of N. Childs in the property, and the title acquired from D. J. Childs was subject to that lien.

It does not seem material to determine the validity of the deed of trust to Alton Long, which the defendant offered in evidence. Although this deed, if valid, might show that the defendant had no right to levy on the property, it would also show that the plaintiff had no right of action, since it was made before his purchase from D. J. Childs.

Judge Scott concurring,

the judgment is affirmed.

Richardson, Judge,

dissenting. I can not assent to the doctrine that the sheriff, under an execution against one partner for his individual debt, can seize the goods of the partnership so as to sever the possession from the other partners and deliver it to an execution vendee.

Partnership property is the primary fund for the payment of partnership debts, and one partner has no share in the partnership property except what remains after the payment of all debts and liabilities of the firm, and each partner has the right to have the partnership property applied to the payment of the joint debts before any one of the partners or his vendee or individual creditor can claim any right thereto. Neither partner has a separate interest in any part of the property belonging to the partnership, though each has an undivided joint interest in the whole ; but this interest is not in any particular portion separate from the mass. The right of one partner to the possession of the whole is to hold for the benefit of the firm, and he has no right to sever any specific portion and hold it for his own use or to the exclusion of the other partners. On what principle then can the sheriff, by an execution against one partner for his private debt, take partnership property from the possession of the solvent partners and transfer it to the purchaser at the execution sale, and thus clothe him with rights superior to those which the debtor partner could assert, and place him in a better position than the partner himself ? It is conceded in the opinion of a majority of the court that the purchaser only acquires the share of the debtor partner after the payment of the partnership liabilities, which may or may not be of any value. Then why take the possession from the solvent partners, who are not in default, who are entitled to administer the firm assets for the payment of the joint debts, and who have not only their own interest in the property, which should secure them the possession of it, but a lien in equity on the debtor partner’s interest, and on the whole stock for whatever the concern may owe them on a final account ? The exercise of the power claimed for an execution against one partner will often be at the expense of the ruin of the others. Eor the right to seize the whole stock and remove it to the sheriff’s sale room is not controlled by the extent of the debtor partner’s interest in the whole, but by the amount of the execution; and though the sheriff sells only the insolvent partner’s interest, it is said that he may sell in parcels to different purchasers and deliver possession of each lot as sold. If then an execution is issued against one partner' who has a small interest in a large establishment, and the sheriff may seize and take away from the other partners the whole stock and sell it in parcels — a paper of needles to one, a bolt of cloth to another, and so on until the whole stock is sold and distributed to a thousand purchasers, who may be insolvent and reside in different parts of the country — although the purchasers only take the interests of the debtor partner, they get the possession of the property, and it would be poor comfort to the other partners, after they are ruined, to tell them .that they may institute proceedings in equity against the various purchasers and restrain them from disposing of the property until the partnership affairs are settled and the interest ascertained which they had acquired. The “ moral effect” which an execution armed with such dangerous power carries, is to bankrupt the solvent partners, or compel them, at the risk of being ruined, to pay the debt of their insolvent partner. This cruel remedy is not necessary to prevent a debtor from placing his means in a partnership and defying his creditors, because the law furnishes a remedy consistent with the just rights of creditors and of the other partners.

Cases may be found in the books on both sides of this question, a2id the opinion of the court is abundantly sustained by authorities ; but I think the doctrine, which is most just and consistent with reason, policy and the rights of all concerned, is, that the sheriff only sells the undivided and unascertained contingent interest of the debtor partner, and not in any specific part of the partnership property, but only his contingent interest in the stock and profits, which will be ascertained after the settlement of the partnership accounts and the payment of the partnership debts. The levy should be made of the debtor’s interest in the whole stock, and the sheriff should not take away any specific part of the partnership goods, nor the whole, because the other partners have property in every part as well as the whole. The sale will operate as a dissolution of the partnership, and the vendee will become a tenant in common with the other partners substituted to the rights of the judgment debtor. The sale will carry the debtor’s unascertained contingent interest, whatever it may be; but it will not give the vendee any right to a division or separate possession, though it will give a right to call for an account and thus entitle himself to the interest of the debtor partner, which will be ascertained on a settlement of the partnership affairs. The purchaser, taking in right of the debtor partner, will take nothing more than an intangible interest, which can not be made available until the surplus is ascertained by an account. (Morrison v. Blodgett, 8 New Hamp. 238; Sitler v. Walker, Freem., Miss., 77; Deal v. Bogue, 20 Penn. State 228.) “ The sheriff can sell only the actual interest which such partner has in the partnership property after the accounts are settled, or subject to the partnership debts. The separate creditor takes it in the same manner as the debtor himself had it and subject to the rights of the other partners. The sheriff therefore does not seize the partnership effects themselves, for the other partner has a right to retain them for the payment of the partnership debts.” (In the matter of Smith, 16 Johns. 106.) “ The purchaser takes it in the same manner as the debtor has it and subject to the rights of the other partner, who has a right to retain the possession of the partnership effects for the payment of the partnership debts. The sheriff, therefore, sells the mere right and title to the partnership property, but does not deliver possession.” (Crane v. French, 1 Wend. 313.) “ The sheriff could only sell the interest of Goulding in the partnership property, but neither the sheriff nor the purchaser would have any right to the possession of the property. The other partner would have the right to retain possession till the partnership debts were paid.” (Dunham v. Murdock, 2 Wend. 554.)

In my opinion, the execution against N. Childs did not operate as a lien on the property of D. J. Childs and N. Childs, so as to prevent the other partner from selling it; and the plaintiff, haying purchased the mules from D. J. Childs before the levy, acquired a title which could not be defeated by a subsequent levy and' sale under the execution against the other partner, and I am therefore in favor of reversing the judgment.


source: Caselaw Access Project

author: Scott, Judge,

license: Public Domain

text:
    The State, to the use of Brent, Respondent, v. Grace’s Administrator et al., Appellants.
    1. A guardian died and a final settlement of his guardianship was made by his administrator, and by such settlement a certain sum of money was found to be due to the ward; held, in a suit on the guardian’s bond, that this settlement by the guardian’s administrator was binding on his estate, and created a prima facie liability on the part of his sureties.

      Appeal from St. Louis Court of Common Pleas.

    This was an action on a guardian’s bond, brought in the name of the State of Missouri by John Garnett, to the use of Eliza Brent. The bond was executed by Pierce C. Grace, as principal, and by G. W. Goode and I. W. Taylor, as sureties. This was a suit on the bond against A. J. P. Garesché, administrator of said Grace, and against Goode and Taylor, the securities on the bond. The petition states that Pierce C. Grace, at the March term, 1850, of the St. Louis probate court, was appointed guardian of said Eliza Brent, a minor; that he executed a bond, with Goode and Taylor as securities, conditioned for the faithful discharge of his duties as guardian; that said Grace died ; that Garnett was appointed guardian September, 1854; that afterwards A. J. P. Garesché was appointed administrator of said Grace; “ that the condition of said bond is broken in this, that said guardian did not well, truly and faithfully discharge the duties of his office of guardian aforesaid in this, that upon final settlement of his guardianship with said St. Louis probate court there was found to be due and owing by the said Pierce 0. Grace to the said Eliza a balance of $205.28, all of which will more fully appear,” &c.
    The court found the facts as follows: “ That said Eliza Brent is a minor ; that at the March term of the St. Louis probate court in 1850, Pierce C. Grace was appointed by said court guardian of said Eliza; that said Pierce, as principal, and said George W. Goode and Isaac W. Taylor, as sureties, executed the bond set out in the plaintiff’s petition ; that said Pierce died before September, 1854; that on the 19th of said ’September, John Garnett was duly appointed by said court guardian of said Eliza; that Alexander J. P. Garesché was afterwards duly appointed administrator of said Pierce; that on the final settlement of the guardianship of said Pierce at the June term, 1855, of said probate court, there .was found to be due and owing by the said Pierce, as guardian as aforesaid, to the said Eliza, a balance of two hundred and five dollars and twenty-eight cents ; the said sum so found to be due and owing has not been paid nor any part thereof; said probate court has never made an order on said Pierce or his sureties, nor upon the administrator of said Pierce to pay over said balance, nor was the payment thereof ever demanded of said administrator nor of these defendants before the institution of this suit; that said Pierce was also appointed guardian, as alleged in the answer, of Anna Maria Brent, Thomas Brent, Jane Brent, John Brent and Robert Brent, who, together with said Eliza, were heirs of Robert Brent, deceased; and that the funds which came to the hands of said Pierce so came as a common fund for all of said minor heirs ; that the defendants Goode and Taylor were also sureties of said Pierce on all his bonds as guardian of all said minor heirs; that said Pierce was in advance to the said Anna Maria, Thomas, Margaret, Jane, John and Robert, as in the answer alleged. Whereupon the court declares that the plaintiffs are entitled to recover of the defendants tbe sum of two hundred and eleven dollars and forty-tbree cents.”
    The defendants, Goode and Taylor, moved for a review. The grounds of this motion were, that the court should have found that the final settlement, made at the June term, 1855, of the said probate court, was made by the administrator of said Grace ; that on the facts as found no legal cause of action is shown against said defendants, and on the facts as found defendants are entitled to judgment; that the facts as found show no breach of said bond on the part of said Grace, for whom said defendants were securities; that the defendants, Goode and Taylor, being securities for said Grace, are not liable for and can not legally be held responsible for the acts of other persons, and therefore are not liable for any settlement or balance on a settlement made in 1855, after the death of said Grace.
    The court overruled the motion for a review.

      Gray and Wickham & Snead, for appellants.
    I. No breach of the bond was shown. There was no evidence to show that Grace was properly charged with any sum whatever. No inventory or settlement, made by him in his lifetime, was introduced, proven or found by the court to charge him; no act of his to show that he had any funds in his hands. The only evidence showing or tending to show that there had been funds in his hands was a settlement made at the June term, 1855, by some person unknown. This was no act of the principal, Grace, for whose acts Goode and Taylor stood responsible. It does not appear who made this settlement. It was the act of an outsider, and could not bind the securities. Granting that it was the act of Grace’s administrator it would not bind the securities. If Grace died with funds of his ward in his hands, the debt would have to be proven up against the estate in the probate court like any other creditor’s debt; and if the estate should not pay it, the securities of the guardian would be liable. What right had the administrator of Grace, on his own motion, to make a settlement, or charge his intestate with a debt in favor of his intestate’s ward, any more than he would have a right to admit any other claim against the estate without due presentment and proof? Again, no default on the part of Grace or his administrator to pay over is found by the court; on the contrary, the court expressly finds that the probate court had made no order to pay over, and finds that no demand had been made of defendants before suit brought. The death of Grace was no fault or dereliction of duty. Therefore there should have been a demand of Grace’s administrator, or an order of court to pay over before there was a liability established. The case is different from the case of a revocation of an appointment by the court for some delinquency or default of the guardian.
    II. The matter set up by defendants, showing that Grace was in advance to other heirs of the common fund, was an equitable defence.

      Farish, for respondent.
    I. The administrator of Grace had the right to make the settlement. (Sess. Acts, 1849, p. 55, § 5; Sess. Acts, 1851, p. 51, § 11; 9 Mo. 856.)
    II. No order of payment and no demand were necessary. (Finney, adm’r, v. The State, to the use, &c., 9 Mo. 231; 9 Mo. 778, 356; 18 Mo. 353 ; 3 Mo. 130; 15 Mo. 228.)
    III. The defendants did not give a common bond but separate bonds. The rights of each child are distinct, and the expenditures of each are separate and not common funds.
   Scott, Judge,

delivered the opinion of the court.

It is true that there is no privity between Garesché, the administrator of Grace, who was guardian of the minor Eliza Brefit, and the plaintiff, who is the successor of Grace as guardian. The administrator of Grace, as such, has no control over the estate which Grace held as guardian. If Grace converted the trust funds in his hands, or incurred a liability to bis ward by the mismanagement of her estate, a claim for such misconduct might be preferred against his administrator, and proceeded with like other demands against a decedent’s estate. But the act of March 3d, 1861 (Sess. Acts, 1851, p. 211) provides that when a guardian or curator dies, the county court may ascertain, in any practicable way, the amount in his hands, and his successor may have such proceedings against his securities as are authorized in cases where an administrator fails, when ordered, to pay demands allowed against an estate. We do not regard this act as restrictive to the remedies provided in the 13th and 14th sections of the 5th article of the administration law of 1845.' There is no reason for so restricting the language of the act. A ward should be entitled to the same remedies for a breach of the condition of the bond given to secure the management of his estate, that those have who are interested in the estate of a decedent. The 8th section of the 7th article of the administration law gives a remedy, by an action on the bond, to any party injured, for a breach of any of its conditions. We have seen that the act of 1851, to which reference has been made, authorized the county court, in any practicable way, to ascertain the amount in the hands of the deceased guardian. It is no objection that the court made use of the administrator of G-race for this purpose. No one was more likely to know the situation of his accounts than his administrator, who had access to all his books and papers. The settlement of the accounts of Grace, the guardian, thus made, can not be regarded as the exhibition and allowance of a demand against his estate. The balance, thus ascertained, was binding on the estate of Grace, and created a prima facie liability on the part of his sureties, who might have shown the settlement to be erroneous. (Nolley v. Callaway County Court, 11 Mo. 445.) A sum being found in the hands of the guardian due to his ward, by the provision of the administration law, to which we have already referred, a suit was authorized on the bond. The petition has been examined and we find it like the declaration in the case of Finney et al. v. The State of Missouri, 9 Mo. 624. No demand was averred, and though the declaration was closely scrutinized, it does not appear that any such objection as the omission of a demand was taken. When parties have resisted a claim on other grounds, and have failed, it is with a bad grace that they come into this court and object that no demand was made on them, when every thing in the record shows that if one had been made, it would have been to no purpose.

As the evidence is not preserved in the record, and as no review of the finding of the facts was asked for, we can not go into the question of the sufficiency of the proof to support the finding.

There is no foundation in law fo,r the claim to a set-off made by the defendants, as there was a separate and distinct curatorsliip for each child and a separate bond for the management of each estate. The judgment is affirmed,

the other judges concurring.


author: Scott, Judge. Richardson, Judge. Napton, Judge.

text:
    Vancourt et al., Respondents, v. Moore, Appellant.
    1. A. conveyed certain premises to B. -with -warranty; B. conveyed the same to C.; C. agreed to convey the same to D. ; D. entered into possession and continued in possession thereof until evicted by persons claiming under paramount title; after this eviction D. obtained a decree of specific performance in a suit that he had instituted against C. previous to the eviction; this decree vested in D. all the right, title and interest that C. had in the premises at the date of the sale to D. Held, inasmuch as there was no interest or estate in C. upon which the decree could take effect, that it did not operate an assignment to D. of the covenant of warranty so as to enable D. to maintain a suit thereon against A. (Per Scott, Judge.)
    2. Previous to the decree of specific performance in the suit of D. against C., C. obtained a judgment against A. in a suit on the covenant of warranty, which judgment was paid by A., C. indemnifying him against any liability to any other person on account of his covenants in his deed; held — it appearing that at the time of the eviction of D. he had not paid to C. the purchase money agreed to be paid, and consequently had not a complete equitable title as against C. — that the judgment in favor of C. against A. was a bar to a suit by D. against A. on the covenant of warranty ; that the decree would not, in such ease, relate back to a .point of time anterior to the eviction, although, if there had been no recovery by C. against A., the decree -would so relate and would operate as an assignment of the covenant of warranty. (Per Riohaudson, Judge.)
    3. A. having notice of the equitable rights of D. and taking also a bond of indemnity from C., the decree would relate back to the time of the sale by C. to D. (Per Napton, Judge.)

      Appeal from St. Louis Land Court.

    In tbe year 1843, George M. Moore made a deed of conveyance, with covenants of indefeasible seizin and of warranty, of certain real estate to one Ashford. In 1845 Ash-ford conveyed with like covenants to one Warren. In 1848 a proceeding was commenced in the St. Louis Circuit Court by A. and B. J. Yancourt to obtain a decree for the specific performance of an agreement made by said Warren to convey said real estate to said Yancourts. This proceeding resulted in a decree of said circuit court, at its April term, 1853, by which it was “ ordered, adjudged and decreed by the court, that all the right, title, claim, interest and estate which said defendant had in and on the 24th day of September, 1847, to the said sixteen lots of ground or parcels of land above described shall be and the same is hereby divested out of the said defendant and vested in the said complainants, Alexander Yancourt and Benjamin J. Yancourt, and their heirs forever, as fully and effectually as the same might or could have been conveyed to the said complainants by a quit claim deed therefor executed by said defendant to said complainants on the said 24th of September, 1847 ; and that said complainants pay to the said defendant the sum of f300, residue of the sum of $1900 agreed to be paid as the purchase money of said real estate by said complainants, and,, until the said sum of $300 be paid by the said complainant, that the same be a charge and encumbrance,” &o.

    The present action was an action instituted by A. and B. J. Yancourt against George M. Moore. Plaintiffs set forth the facts above stated and alleged that they took possession of the land in September, 1847, and remained in possession of it under the contract of sale until the year 1850, when the heirs of Amos Stoddard, claiming the land by title paramount, evicted them therefrom; that the title which the said Moore conveyed to Ashford failed entirely, and that the covenants in Moore’s deed were broken.
    The defendant in his answer denied the possession of the plaintiffs, denied the validity of the decree of the circuit court, denied the eviction of the plaintiffs, and alleged that Warren had already recovered judgment against him on the covenants sued on in this suit, and that he had paid the judgment.
    At the trial plaintiffs introduced in evidence the record of the suit of Vancourt et al. v. Warren ; also evidence showing and tending to show that they were in possession of the land in controversy in 1847, and so continued until the heirs and representatives of Amos Stoddard recovered and took possession thereof in 1850-1. Moore claimed title under a New Madrid location. See case of Mills v. Stoddard, 8 How. 345, the report of which was introduced in evidence.
    The defendant offered in evidence the record of the recovery of a judgment in favor of Warren against Moore on the covenants sued on in this action, and offered to prove the payment of this judgment by the defendant. The court excluded this evidence.
    Plaintiff also introduced evidence showing that after Warren obtained a judgment against Moore, he gave Moore }a bond with security indemnifying him against any liability on his covenants to any other person.
    Other testimony was introduced; it is deemed unnecessary to set it forth.
    The court, at the instance of plaintiffs, gave the following instructions: “ 1. In this cause it is admitted that the defendant made a covenant of warranty stated in the petition; and the record in evidexice shows that the plaintiffs are the assignees of that covenant, deriving title thereto from L. L. Warren, to whom it is admitted that Ashford conveyed the lands described in the petition. If the jury believe from the evidence that the plaintiffs were in possession of the premises from 1847 until some time in 1851, when upon claim made thereto by persons having paramount title they abandoned the same, the plaintiffs are entitled to recover the amount of the consideration money paid to Moore by Ashford with interest to this time. 2. If the plaintiffs took possession, under their contract of sale with Warren, on September 24th, 1847, of the lots described in the petition, and so continued in possession until the judgment of the Supreme Court in 1850, declaring the title of the heirs of Amos Stoddard to be paramount to that of the New Madrid location as to land within United States survey 3026, and then upon that judgment being promulgated abandoned the possession, giving way to the claim of the agent of the heirs of Amos Stoddard, then the plaintiffs are entitled to recover against the defendant for a breach of the covenant of warranty declared on in this action.”
    The jury found a verdict for plaintiffs.
    Todd, Krum & Harding, for appellant.
    I. The decree in the suit of Vancourt et al. v. Warren is not conclusive as against Moore. He may attack it collaterally.
    II. If the decree be conclusive it does not carry the covenant of warranty. This covenant is only accessory to the possession, and no possession was shown in either Moore or Warren prior to the contract of plaintiffs with Ashford. (1 Mete. 450 ; 23 Mo. 151, 174.) Where no actual possession is shown, it is presumed to be with those having the title ; and this the plaintiffs assert was in the representatives of Stoddard. The taking of possession by the plaintiffs was their own independent and voluntary act, wrongful as against the representatives of Stoddard and not authorized under and by virtue of their contract with Ashford. (6 Barb. S. C. 116.) A contract of purchase gives no right of entry unless expressly agreed.

      III. The court erred in allowing the plaintiffs interest from the date of defendant’s deed to Ashford.
    IV. There was error in allowing damages to the Ml am mint, of the consideration. There was a recovery of, and eviction from, only an undivided portion of the property.
    V. The court erred in allowing the plaintiffs to recover the full amount of the consideration. Their right or title to any recovery was encumbered, in favor of Warren, by the decree, for three hundred dollars.

      Gantt, for respondents.
    I. The two instructions given to the jury at the instance of plaintiffs contain a correct exposition of the law. (Lawless v. Collier, 19 Mo. 480 ; Gantt & Dickson v. Desire’s Adm’r, 23 Mo. 157.)
    II. The instructions, asked by defendant, were properly refused.
   Scott, Judge.

The fourth section of the act concerning conveyances empowers any person claiming title to any real estate, notwithstanding there may be an adverse possession thereof, to sell and convey his interest therein in the same manner and with the like effect as if he was in the actual possession. It is conceived that this provision does away with that rule of the common law which required a grantor of land to be seized thereof, when he makes his. deed of conveyance, in order that his covenant of warranty may attach to and run with the land. This section was introduced to enable persons having claims to land without possession, or even in case of adverse possession, to alien such lands as though they were seized thereof.

But whilst the law thus enables individuals to dispose of their claims to real estate and thus to affect themselves by their conveyances, there is nothing which authorizes the courts or the officers of the law to sell or convey such claims. If there is no title nor any interest nor any possession in a judgment debtor, in cases without the influence of the registry laws, there is no power in the officer to sell a mere claim under an execution. There being nothing on which the sale can operate it is ineffectual for any purpose, and it is as though it had not been made. If the covenant is of value to the debtor, there are more appropriate ways of subjecting it to the claims of creditors than this, which must al-always result in a sacrifice, as few would be willing to buy a mere law suit. So there being no title nor estate nor interest in Warren at the date of the decree vesting title in the plaintiffs, that decree was wholly ineffectual. It could not operate on a thing not in existence. While a court of equity may make a deed bear date from a day that is past where there is an existing interest, yet, when there is no right nor title in a party at the date of the decree, the court can not make an effectual order vesting an interest as of a former day, there being nothing on which such a decree can operate. In such cases the court should, where it is proper to do so, entertain the petition to give the parties relief for the nonperformance of the contract by the defendant, or remit him to his action for damages for a violation of the agreement. In declaring the decree ineffectual it is not considered that it is at all impeaching or going behind it. While suffering the 'decree to stand, it is only showing that there is nothing on which it can operate; just as in the case of the sheriff’s deed it may be shown that there was no interest in the judgment debtor. In my opinion the judgment should be reversed.

Judge Richardson concurs in reversing the judgment.

Richardson, Judge.

I am in favor of reversing this judgment for the reason that the court improperly excluded the record of the proceedings and judgment in the suit of Warren v. Moore. In 1851, the Spanish title, which was confirmed July 4, 1836, was fully established by a judicial proceeding, and the Stoddards, who claimed under it, went- into possession, so that those who held under the New Madrid location were evicted, and there was a substantial breach of Moore’s covenant contained in his deed to Ashford. At that time Moore was liable to some person for the full amount of the consideration named in his deed, and the question is, to whom was he liable and who was then in a condition to assert and maintain a right of action on the broken covenant? Ashford could not sue, for he had parted with all his interest in the land, and he could not use the covenants which ran with it without first satisfying the liability on his own covenants. (Rawle on Cov. 366.) Warren was the alienee of Ashford, and as such became the assignee of Moore’s covenants and had the fight of action against Moore, unless some other person had a better right; for Moore could only be made liable once for the same cause of action. If Moore suffered Warren to recover, when he could have defended the suit on the ground that Warren had no cause of action because he had assigned the covenant, that judgment would be no defence to this suit. Now it is certain that Warren had a right of action, unless the plaintiffs had; and they had not, because they had neither the legal title nor such an equity as entitled them at that time to be clothed with it. If, in 1851, Warren had merely the bare legal title, and the plaintiffs had a perfect equitable title, by which I mean that they had performed every condition to be performed on their part according to the terms of their contract of purchase and were only waiting for the formal execution of a deed to be invested with the legal title, they could have maintained the action against Moore, and for that reason Warren could not; but in 1851 they had not, if they yet have, paid to Warren all the purchase money, and it does not appear from their bill or in any other way that they had tendered that which remained due; and unless it then appeared that they had done all that was required of them, it could not be assumed that they ever would. Not having the legal nor such an equity as entitled them to it, they could not have sued Moore as assignees of the covenant; and, if they could not, Warren could, and the judgment in his favor is a bar to another suit. The fact that Moore, in the abundance of caution, took a bond of indemnity from Warren on the payment of the judgment is immaterial, for, whether the judgment is a bar or not can not depend on any such circumstance.

The payment of the purchase money and the passing of the title are simultaneous acts and should be done interchangeably. (Marg. of Anspack v. Noel, 1 Mad. Ch. 175.) And though the decree of 1853 is manifestly unjust in directing a specific performance without seeing to the payment of the purchase money, it is not void on its face; and in my opinion if it had been rendered before there was any recovery on the covenant, it would have related back to a point of time before the eviction, and have operated to invest .the plaintiffs with all the rights incident to the assignment of a covenant before its breach. (3 Young & Coll. 505.) But the doctrine of relation is a fiction of law, and ought not to be allowed to work injustice ; and as Moore has once responded to a suit on his covenant, brought by a proper party, he is not liable to another.

Napton, Judge.

The first question discussed in this case is whether the plaintiffs became the assignees of Moore’s covenant of warranty by his purchase from Warren, so as to entitle them to this action. As it did not appear that Moore had any possession, and it did appear that he had no title when he sold to Ashford, it is argued that the covenant of warranty did not run with the land, and such appears to be the settled doctrine in several of the states. But our statute declares that “ any person claiming title to any real estate may, notwithstanding there may be an adverse possession thereof, sell and convey his interest therein in the same manner and with like effect as if he was in the actual possession thereof.” If the same effect is to be given to a conveyance here, where there is an adverse possession, as if the possession was in the grantor, it would appear to follow that the like effect must be given to conveyances where there is no possession at all either in the grantor or adversely to him.

The principal difficulty in this case is in determining the effect of the decree of the circuit court in 1853. By that decree all the right, title and interest of Warren, which he had in September, 1847, (the date of his sale to the plaintiffs,) was divested out of Warren and vested in the plaintiffs “ as fully and effectually as the same might or could have been conveyed to the said complainants by a quit claim deed therefor executed by said defendant to said complainants on the said 24th day of September, 1847.” The decree was unconditional, absolute, without regard to the payment of the purchase money, and attempted to convey the title as a deed would in 1847.

The doctrine of relation is a fiction of law, and ought never to be allowed to work injustice. If the defendant Moore can be injured by antedating the deed from Warren to the plaintiffs, the decree should not be permitted to have a retroactive operation. Moore was sued by Warren on this same covenant in 1852 and a recovery had against him for the purchase money and interest. Previously to this suit Warren had sold to the plaintiffs, and if he had also executed a conveyance- then Moore could have defeated the action by showing Warren’s conveyance. It seems to be settled that where an intermediate covenantee has parted with all his interest in the land, he has no right to use the covenants which run with it, and it is only where he has been made liable upon his own covenants and satisfied that liability that he can maintain his action against the original covenantor. But Warren had not made a deed in 1852 when he sued Moore on his covenants; he had agreed to convey to the plaintiffs, and their title bond was on record. Moore then had constructive notice of the outstanding equity of the plaintiffs. The suit for a specific performance had also been instituted and this lis pendens was also a notice to Moore. His taking an indemnifying bond from Warren to secure himself against his supposed liability to the plaintiffs implies that he had actual notice of this equity. Moore might have required an interpleader to determine the proper party to whom he was liable; he virtually did so by taking the indemnifying bond given in evidence in this case. I am constrained therefore to regard this action as substantially one against Warren, and can therefore see no impropriety in letting the decree have all the effect by relation which it seems to have been intended to carry with it.

The manifest injustice of the decree for specific performance without seeing to the paying of the purchase money is not a matter which can affect this case. That decree has not been appealed from, nor any proceeding instituted by which its validity can be questioned. Its merits are not a matter of inquiry here.

At the date then of the decree, taking it to relate back to 1847, no breach of the covenant of warranty in the deed from Moore to Ashford had occurred, and the plaintiffs were the equitable owners of the covenant, and of this fact the defendant had actual and constructive notice. What might have been the rights of Moore under these circumstances if he had taken no protection from Warren against any contingent liability to the plaintiffs, it is not important to determine. He did take such, steps in thlRlction brought against him by Warren ás to arrest the transfer of the damages to the plaintiff in that action until the controversy between him and the plaintiffs could be adjusted, thereby recognizing the equitable claim of the plaintiffs and the necessity of protecting himself against its possible perfection into a legal title.

As the eviction pr'oved in this case was a mere abandonment of possession to the paramount title, and the title or rather the recovery relied upon to show this eviction went only to a part of the land, it was contended that the court should have directed an apportionment of the damages. But the record showed that the title under which plaintiffs held was entirely swept away by the Spanish claim held by Stod-dard’s heirs, although the judgment in the particular case referred to went only to a part of that title.

The measure of damages in a breach of a covenant of warranty is the purchase money and interest. This is not disputed, but it is suggested that the rents and profits should be considered an equivalent for the interest until an eviction occurred, and this principle is an equitable one where the land is of a character that will yield rents and profits. As the land sold in this case was admitted to be unimproved in any way, the rule will not apply, and the instruction of the court upon this subject was correct.


text:
    Barcus, Respondent, v. Hannibal, Ralls County and Paris Plank Road Company, Appellant.
    1. Where one agrees to construct a plank road and fails to complete the same in the manner prescribed in the contract, he can only recover, if at all, on a quantum meruit.

    2. The value of the work done must, in such case, be adjusted upon the theory that the work, if it had been completed according to the contract, would be worth the contract price.
    3. An engineer of a plank road company, who has power under the contract for the construction of the road to control the contractor, and whose duty it is, among other things, afj^t the road is completed, to make an estimate of all the work done, has nSfpower, if it be found that the road has not been built according to contract, to bind the company to adjust the matter in any particular mode.
    4. Acts of the directors of a corporation, to bind the corporation, must be done in their official capacity.

      Appeal from Ralls Circuit Court.

    This was a suit to recover a balance alleged to be due to the plaintiff for the construction of the Hannibal, Ralls County and Paris Plank Road. It is deemed unnecessary to set forth the facts adduced in evidence; they sufficiently appear in the opinion of the court. The following instruction the court, on its own motion, gave to the jury: “ If the jury find that after the road was constructed the plaintiff proposed that the company should accept and receive the road by a deduction from the contract price thereof of such sums, for deficiencies in the work, as the engineer should estimate to be sufficient to complete the road according to the original contract, and that the engineer did proceed to make such estimates, and that the company afterwards adopted those estimates as a basis of settlement, and agreed to receive the road on that condition, and did afterwards receive and use the road, then both parties are bound by those estimates, unless they shall find that the plaintiff, by false representations of facts known to himself and not known to the engineer, or by fraudulent concealments from the engineer of defects in the road, induced the engineer to make his estimates of defective work less than their just value; in such case the jury shall allow the company; in addition to the estimates of deficiencies made by the engineer, whatever damages the company may have sustained in consequence of siich fraud of the plaintiff.”
    Other instructions were given and refuse’d. The jury found for plaintiff.

      Richmond, for appellant.

      Broadhead and Henderson, for respondent.
    I. By a fair construction of the contract between the parties the engineer was to direct and specify the kind of work to be done, and was empowered to judge of the quality of the work and whether it was done according to his specifications and the terms of the contract, and the company was therefore concluded in the matter by his judgment in regard thereto, unless the plaintiff practiced a fraud upon him.
    II. If the defendants received the road and enjoyed the benefits of it, they are liable to plaintiff for the value of his work and materials not exceeding the contract price, though the work may not have been done according to contract, deducting such deficiencies as may have grown out of a failure to comply with the contract on the part of plaintiff. Under the contract the engineer was the proper person to judge of such deficiencies, and his action in the premises is conclusive upon defendants. (Cutter v. Powell, 2 Smith L. Cases, 22 ; Lee v. Ashbrook, 14 Mo. 378; Britton v. Turner, 6 N. EL 481.) The instructions given by the court were therefore correct. By the terms of the contract the contractor is to “ be governed in all things relating to the work by the engineer.” His directions and acts then become a part of the contract as much as if they were written down and signed by the parties. If the engineer has violated the trust reposed in him by the company, they must look to him and not to the contractor.
   Scott, Judge,

delivered the opinion of the court.

Justice requires that the plaintiff should be paid the full value of his work. As he agreed to build a road in a complete and workmanlike manner for $2,300 a mile, if he failed to make the road as required by his agreement, he can only expect to receive as much as the road built by him is worth, considering that if it had been built in all respects in pursuance to the contract it would have been worth $2,300 per mile. To escape from this equitable mode of determining the controversy, the plaintiff has endeavored to set up an estimate or estimates by the engineer of the defects in the construction of the work, which he maintains are conclusive between the parties to this suit. It was certainly competent for the defendant to contract that the estimates of the deficiencies in the execution of the work should be made by an engineer, and that his estimates should be binding on the parties interested. As the plaintiff sets up this defence in order to avoid the rule dictated by natural justice for the adjustment of this dispute, he should show, by evidence that would satisfy a jury, that there was such an understanding between the parties. There is no hardship in holding the plaintiff to this proof, as in the event of his failure to make it he is still entitled to the value of the work performed by him estimated according to the terms of the contract, inasmuch as the defendant has taken and used the road.

By the contract it was agreed that the work should be completed by the first of November, 1853. In December following the contractor called on the engineer to examine and receive the work. Upon an examination of it the engineer informed tbe contractor that be bad not complied with his contract and that be should not receive the road. Tbe contractor then made tbe proposition to tbe engineer that an estimate of tbe deficiencies in tbe performance of tbe work should be made and deducted from tbe contract price for building tbe road. ■ After this two estimates of tbe deficiencies in tbe construction of tbe work were made by tbe engineer and submitted to tbe company. As by tbe terms of tbe contract tbe engineer was only authorized to make an estimate of tbe whole work when it was completed, and as be refused to receive tbe work on tbe ground the contract bad not been complied with, bis duty in relation to the contract thereupon ceased, and it was not competent for him to enter into any arrangement with tbe contractor in relation to tbe manner in which tbe deficiencies of construction should be made good to the company.

Tbe parties to tbe contract might have agreed that the engineer’s report should determine the amount of deductions to be made from tbe contract price of tbe work, but in tbe absence of any such agreement we do not see bow tbe engineer could bind tbe company, as there was no power for any such purpose in the contract. Nor do we conceive that there is any thing in the record which shows that tbe company ever consented to tbe proposition made by the contractor. We do not see bow tbe presence of tbe directors in their unofficial capacity on tbe day tbe proposition was made can be considered as any evidence of their assent or the assent of tbe company to tbe proposition. They were not so organized as to do any act binding on tbe corporation; nor did they attempt so to do. Nor do we see bow the subsequent action of tbe board on tbe estimates could bind tbe company, as that action ultimately resulted in a determination not to abide by them. The proposition of tbe contractor, as stated by tbe engineer, did not specify that the estimate should be made by the engineer. Tbe fact that tbe board did, by a resolution on tbe 30th of December, 1853, call upon tbe engineer for a final estimate of tbe work done by the contractor, is scarcely any evidence of an agreement between the board and the contractor. As the engineer was an agent for the company, employed at a salary, what was more natural than that they should call upon him for information in regard to the manner in which the work had been performed. The action of the board on the estimates submitted by the engineer is no evidence of their concurrence in the reports; so far from it, they revised and amended them, showing thereby that they did not regard themselves under any contract in relation to the estimates. Indeed, as has been before stated, the contract, as proved by plaintiff’s witness, did not stipulate that the estimate of deficiencies should be made by the engineer.

We have said that the contract did not authorize the engineer to make any arrangement with the contractor by which any deficiency in the work might be made good to the company. The instruction given by the court on this subject seems to base the binding effect of the engineer’s estimate on a supposed agreement made between him and the contractor in December, 1853, and its subsequent ratification by the board. The contract provides that the road shall be built according to the engineer’s specifications and plans, and to be governed by the engineer in all things relating to the work. A subsequent clause, after providing for monthly estimates of the work done with a view to making payment for it, stipulates that within thirty days after the road is completed an estimate of all the work done shall be made and the amount due the contractor shall be paid. These are all the provisions in the contract relative to the manner of its performance ; and it will be seen that they confer no authority on the engineer in relation to the making of estimates in the event of a misunderstanding between the parties arising out of a failure on the part of the contractor to perform his work according to the specifications annexed to the contract.

We do not well see how the instruction relative to the estimates, even admitting that the company is bound by them, can be sustained. It seems to be inconsistent with itself. The phrase “ and that the company afterwards adopted those estimates as a basis of settlement,” taken without reference to the evidence in the cause and the agreement of counsel appended to the bill of exceptions, would seem to intimate that the board adopted the report of the engineer as made, whereas the truth is they amended and corrected it; thus showing, if their act is any evidence, that they did not consider themselves bound by his report, as they assumed the power of correcting it. Thus the instruction would have the jury imply the assent of the company to the engineer’s report from an act which shows their dissent from it. As has been observed, it was natural, under the circumstances, that the board should call upon their engineer for information as to the deficiencies in the construction of the road; and because they did so, and afterwards adopted his report with corrections as a basis for an adjustment of the controversy, it is not easy to see how such conduct furnishes any evidence that they assented to a contract or proposition made to the engineer relative to the ascertainment of the deficiencies in the work, when that conduct shows that they did not assent to it.

What has been previously stated applies to the last portion of the work. Those portions of the work which were received under resolutions of the board, and the deficiencies of which were agreed upon and estimated by the parties, can not be re-examined unless fraud in its execution is alleged and proved. If the work was fraudulently executed or its defects in any manner disguised or concealed, the plaintiff is liable for the consequences of such fraud or concealment, although he had no knowledge of it. He is responsible for ■ the good conduct of those employed by him to do the work, and, however he may stand in the -forum of conscience, he can not avoid a responsibility incurred by his servants or agents; as the injury is the same to the company as if it had been done by the principal himself. As by his employment of unworthy agents he has been the cause of the injury, it is nothing but justice that he should be responsible for it.

We do not consider that, under the circumstances, much if any importance should be attached to the fact that the road was used or occupied by the company. There is no attempt to throw the work on the contractor and thereby escape payment for it. It seems to be admitted on all sides that there was not a compliance with the contract, and the only question is, how much shall be deducted from the contract price for the defects in the execution of the work. A large sum had been disbursed in the building of the road, and it was natural that the company should endeavor to be reimbursed as speedily as possible. The record shows that the defendant had been garnished for the debts of the contractor, and it might have been unavailing had resort been made to him for indemnity for his violation of his contract. . The company seems always to have been willing that the contractor should have the full .value of his labor estimated according to the terms of the contract. After the time for the performance of the agreement had elapsed, it was proposed to give him time to complete it, but he declined the proposition.

The other judges concurring, the judgment will be reversed and the cause remanded.


author: Napton, Judge,

text:
    Draper et al., Respondents, v. Bryson et al., Appellants.*
    1. A purchaser at a sheriff's sale is a purchaser within the meaning of the recording acts.
    2. Under the act of February 1, 1817, (1 Terr. Laws, p. 543,) a purchaser at a sheriff’s sale, who took with notice of a prior unrecorded deed, was postponed to the prior purchaser.
    3. Draper v. Bryson, 17 Mo. 71, affirmed.

      Appeal from Pike Circuit Court.

    This was an action of ejectment instituted August 18, 1848. The facts of the case are fully set forth in the report of the case as heretofore decided by the Supreme Court. (See 17 Mo. 71.) Plaintiffs assert title in their declaration to the north half of lot 91 in the town of Louisiana. Plaintiffs (as also the defendants) claim title through Joel Shaw and Samuel K. Caldwell, who were jointly interested in the lot as the original proprietors of the town of Louisiana. Plaintiffs assert title to Shaw’s interest by virtue of a sheriff’s deed, dated December 10, 1828, recorded December 11, 1823, to one Phineas Block. The sheriff’s sale was had by virtue of an execution under a judgment against Shaw’s administrator. Plaintiffs asserted title to Caldwell’s interest by virtue of a deed from the coroner of Pike county to Phineas Block, dated April 14, 1824, recorded August 10, 1824. [The Supreme Court held the title, under which defendants claim, to be superior to that obtained by plaintiffs through this deed. See 17 Mo. 71.] Phineas Block conveyed the land in controversy to plaintiffs by deed dated June, 1847.
    The defendants claim title under a deed from Caldwell and the heirs of Shaw to John Bryson, bearing date May 14, 1821; acknowledged July 16,1821; recorded August 3,1829. Defendants introduced evidence showing that one John E. Allen purchased the lot in controversy from Shaw and Caldwell, and paid the purchase money ; that Shaw died before a deed was made; that Allen afterwards exchanged lots with Bryson, and that Caldwell and the heirs of Shaw made a conveyance to Bryson in 1821.
    Evidence was adduced by plaintiffs and defendants bearing upon the question whether Block, at the time of the sheriff’s sale to him, had notice of the deed of Caldwell and the heirs of Shaw to Bryson.
    The court, at the instance of plaintiffs, gave the following instruction: “ Unless the jury believe from the evidence in the cause that Block had notice of the existence of the deed from Shaw and Caldwell to John Bryson at or before his purchase at the sheriff’s sale, they should find a verdict for the plaintiffs for the undivided half of the lot in question.”
    This was the only instruction given to the jury. The following instructions, asked by defendants, were refused by the court: “1. If the jury believe from the evidence that Shaw and Caldwell, in the lifetime of Shaw, sold the lot No. 91 in question to John E. Allen and received full pay therefor, then Shaw had not at his death any interest in said lot that could be sold under a judgment and execution against the administrator of Shaw obtained after the death of said Shaw. 2. If they believe that Caldwell and Shaw in their lifetime sold the lot in question to John E. Allen and received pay therefor ; that Shaw soon after died intestate ; that the patent issued to Shaw and Caldwell in October, 1819, for a tract of land including said lot, then the title immediately vested in said Allen, or remained in Caldwell and the heirs of Shaw as trustees for said Allen and his assigns, and no interest at any time vested in the administrator of Shaw that could be sold under a judgment and execution against the said administrator. 5. The judgment in favor of Robert Walsh against John Shaw as administrator of Joel Shaw, read by plaintiffs in evidence, gave no lien on the lot in question ; and a purchaser under an execution thereon receives only such an interest as the administrator could at that time convey. 6. At the death of Joel Shaw, whatever interest he may have had in the lot in question vested in his heirs and not in his administrator; and if the heirs by their attorney in fact conveyed the lot in question to John Bryson before the rendition of said judgment, Block acquired no title to the lot at the purchase under an execution on said judgment, or by the sheriff’s deed read in evidence.”
    The jury found a verdict in favor of plaintiffs for an undivided half of the north half of lot No. 91.

      Broadhead, for appellants.
    I. The instruction given to the jury was erroneous. It left the jury nothing to try but the question of notice. They were not at liberty to inquire whether the deed to Bryson, was recorded within three months from its execution, nor whether Block had his deed recorded within three months. Unless it was so recorded plaintiffs are not in a situation to dispute the deed to Bryson.

      II. The title of Shaw haying virtually passed from him to Bryson — by the sale to Alien and by the deed of his heirs conveying the legal title — long before the rendition of the judgment against the administrator, there was no interest in Shaw or his representatives jvhich they might lawfully convey, and therefore nothing upon which the judgment and execution could operate. (See G-eyer’s Digest,' p. 217, sec. 66 ; Davis v. Ormsby, 14 Mo. 170 ; Scott v. Whitehall, 1 Mo. 549.)
   Napton, Judge,

delivered the opinion of the court.

This case presents virtually the same question determined by the court when this case was here in 1852, a full report of which may be found in 17 Mo. 71. The case was remanded for a trial of the comparative value of the title under the sheriff’s deed to Block, recorded December 11, 1823, and that derived from the deed to Bryson which was recorded August 3,1824. This court then held, if Block purchased at the sheriff’s sale with notice of Bryson’s title, -he was not within the protection of the act of 1817 ; but as his deed from the sheriff was recorded on the day succeeding its execution, and of course was recorded in time under the act of 1817, his title was the better title, if the purchaser was without actual notice of Bryson’s deed. The case was tried upon this point and the jury found there was no notice.

It is now contended, and was urged by instructions offered in the court below, that, as Shaw had no title when he died but had passed it to Allen, there was no title in his heirs or administrator upon which the judgment obtained against his administrator could operate, and consequently that the sale passed nothing to the purchaser. But to say nothing of the fact that Shaw had not executed any conveyance in his lifetime, and consequently that the legal title descended to his heirs subject to the payment' of his debts, a judgment and execution operate to convey the same interest which the judgment debtor could himself convey by deed. A purchaser at a sheriff’s sale under an execution and judgment is a purchaser within the meaning of the recording acts ; and it might as well be said that if a grantor conveys to one to-day, he has no interest, and can therefore convey no interest to another the next day. Yet if he does so, and the second purchaser puts his deed on record first, without any knowledge of the first conveyance, he holds the title. The cases of Jackson v. Town, 4 Cow. 597, and Jackson v. Post, 9 Cow. 120, have been reviewed, and, so far as this point is concerned, overruled by the same court. (Jackson v. Chamberlain, 8 Wend. 624; Jackson v. Post, 15 Wend. 588.) Such is also the principle maintained in Pennsylvania in the case of Lessee of Heister v. Fortner, 2 Binn. 40. The Pennsylvania statute differed from our act of 1817 in limiting the recording act to mortgages or deeds defeasible. The act of 1817 declared that all deeds, conveyances, bonds, &c., should be recorded within three months or be void against subsequent purchasers. Although a judgment creditor is not a purchaser within the act, a purchaser at the execution sale is. The judgment is affirmed.
      Richardson, Judge, having heen of counsel, did not sit at the hearing of this cause.


text:
    Maeder, Respondent, v. City of Carondelet, Appellant.
    1. Although a covenant for guiet enjoyment is implied from the word “demise” in a lease, this implication will not be raised where it is expressly stipulated in the lease that nothing therein contained shall be construed to imply a covenant for guiet enjoyment.
    2. Prior to the revision of 1845 there was no statute in tins state limiting the time within which actions of covenant might be brought.

      Appeal from St. Louis Land Court.

    This was an action by Maeder against the City of Caron-delet commenced February 5, 1855. On the 8th of August, 1843, Carondelet made a lease of a lot in Carondelet common to John Maeder. This lease contained the words “ grant, demise and to farm let,” &c. The lease also contained the following stipulation: “ And it is, further covenanted and agreed by and between the parties aforesaid, their successors in office or legal representatives, that nothing herein contained shall be construed to imply a covenant of quiet enjoyment on the part of the said parties of the first part, and their successors, to and with the said party of the second part and his legal representatives.” By lease dated December 14, 1843, Carondelet leased said tract to Auguste Gamache, senior. This lease was recorded May 24,1851.
    The defendant, in her answer, denied the delivery to plaintiff of the lease dated August 8, 1843; and admitted the execution of the second lease, the one to Gamache. The defendant also set up the statute of limitations ; that there was no covenant of quiet enjoyment in the lease dated August 8, 1843.
    On the motion of the plaintiff the court instructed the jury as follows : “ If the jury find from the evidence that the defendant made a lease to plaintiff in August, 1843, for the premises in question, and that the defendant, in December, 1843, made another lease for the same premises to one Ga-mache without the assent of the plaintiff, and that Gamache took-possession of the premises and caused his lease to be recorded so as to divest the right of plaintiff under the said lease to him, then the plaintiff is entitled to recover the value of the said leasehold interest at the time of the said lease to Gamache and the entry of Gamache thereunder.”
    The court, on the motion of defendant, instructed the jury as follows: “ 1. If the jury believe from the evidence that the cause of action did not accrue within ten years before the time of the commencement of this suit, the plaintiff is not entitled to recover. 2. The plaintiff’s right of action, if any, accrued on the 16th day of December, 1843.”
    Other instructions were asked on both sides and refused by the court. The jury found á verdict for the plaintiff.
    Casselberry, for appellant.

      Primm, for respondent.
   Scott, Judge,

delivered the opinion of the court.

The evidence on the trial shows that no fraud was intended in the transaction between Gamache and the City of Carondelet. The lease to Gamache was relatively at a much lower rent than that made to the plaintiff, and was not recorded until the 24th of May, 1851, a period of seven years and some months. Had there been any design to defraud the plaintiff by the execution of the lease to Gamache, such lease would have been immediately put upon record; as until that was done, no injury from the second lease could have resulted to the plaintiff, as he might at any time during the period just mentioned have put his lease upon record and thereby have retained his priority to Gamache. These observations are not made with a view to convey the idea that there must have been an intention on the part of the defendant to defraud in order to entitle the plaintiff to an action for a breach of the covenant for quiet enjoyment in making a second lease for a lot that had been previously conveyed.

It is said that the covenant for quiet enjoyment does not extend to evictions under rights which are acquired subsequently to the conveyance ; as, for instance, by the location of a town way. Hence the petition must allege the adverse right as existing at or before the time of the grant. But this only means that the title, on which the eviction is had, must not he derived from the covenantee himself. Hence if a conveyance is made to one, and afterwards a conveyance is made to another of the same land and no mention made of the first deed, and the second is first recorded, the grantor is held liable to the grantee in the first deed upon the warranty therein contained. (2 Hilliard upon Real Property, 375; Curtis v. Deering, 12 Maine, 499.) So it is said in Sugden (2 Sugden on Pow. 84) that where the covenantor himself does any act asserting a title, it will be a breach of the covenant, although he covenanted against lawful disturbances only, and the act done by him was tortious and might be the subject of an action of trespass.

If it should be urged that the word demise imports not only a covenant for quiet enjoyment, but also one for power to create the term, and that the effect of the word being limited only so as to take away an action for breach of the covenant for quiet enjoyment, an action for want of authority to convey may still be maintained, it may be answered that this is no action for a breach of any such covenant, and the facts show that at the time of the deed to the plaintiff there was authority in the lessor to create the term. (Gilbert v. Buckley, 5 Conn. 262.)

We do not see what the statute of limitations has to do with this case. Prior to the revision of 1845 there was no limitation in this state to an action of covenant. The sixteenth section of article third of the act prescribing the times of commencing actions provides that the action of covenant must accrue after the taking effect of that act, in order to be affected by its provisions. (R. C. 1845, p. 721.)

We do not consider that we are required in this action to determine whether the facts of this case entitle the plaintiff to any or what relief. The judgment is reversed. (See R. C. 1835, p. 180, art. 3, sec. 30.)


author: Richardson, Judge,

text:
    Fuhr, Respondent, v. Dean et al., Appellants.
    1. Where one having title to land and a right of entry enters thereon, although the entry be by force, the common larv affords no civil remedy to the party dispossessed; he must resort to the statutory remedy by action of forcible entry and detainer.
    2. A right of easement can be created only by deed.
    3. A right to enter on another’s land and to remain there for a certain time, or indefinitely at the pleasure of the party claiming the privilege, is an interest in the land ■which can only be created by deed.
    4. A license can not be revoked so as to make acts done under it trespasses.

      Appeal from Washington Circuit Cowrt.

    Plaintiff, Frederick Fuhr, set forth in his petition that on the 23d of January, 1854, and for a long time, say two years, prior to that day, he was “ legally in possession, for the purpose of mining of lead ore, of a lot of ground in the Gum Diggings,’ in Washington county, about one mile and a half north-west from Potosi, containing one acre, more or less, and set apart from the adjoining ground by stakes,” &c.; and, for the purpose of exploring said ground and raising lead ore therefrom, he had at great expense of time and money sunk a shaft upon said lot, and cribbed it up securely with timber; that he had run two drifts from about the bottom of said shaft — one sixty, the other fifteen feet in length — which drifts had exposed the lead ore to view, and from which shaft and drifts he could legally raise a large quantity of ore; that ,on said 23d day of January, 1854, the defendants unlawfully and with force and violence and against the will of plaintiff entered into said shaft, drifts, &c., belonging to said plaintiff and took possession thereof and expelled the plaintiff therefrom, and are using the said shaft and drifts of plaintiff and raising the lead ore from- the said lot and converting it to their own use ; and they still have and hold to their own use the lead ore which said plaintiff had dug to the value of thirty-five' or forty dollars. “ The • said plaintiff states that he has sustained damage by the unlawful acts of the said defendants to the amount of $1600 ; and for the recovery of which sum he brings this suit.”
    It appeared in evidence that John Dean was the proprietor of a certain tract of land embracing the lot in controversy ; that on the 1st of November, 1853, he sold said land to the Missouri Lead Company, of which defendants were the agents; that Fulir, the plaintiff, was at that time, and had been for some time previously, iu possession of the lot mentioned in the petition; that he was engaged in mining for lead ore; that after the said sale, early in January, 1854, the defendants, as agents of said company, gave notice to said Euhr to quit said lot; that on the 23d day of January, 1854, the defendants entered and forcibly ejected the plaintiff. The court, of its own motion, instructed the jury as follows : “ 1. The extent as to quantity and the duration in point of time of a ‘ miner’s right,’ in the absence of any special arrangement between the miner and the proprietor, is a matter to be determined and regulated by the custom prevailing in that behalf in the particular locality where the right attaches ; and where it appears that such right has attached with the consent of the proprietor, then it continues and is obligatory upon all persons claiming under such proprietor until forfeited or otherwise determined by the act and consent of the miner; and if, while such^ight continues, the proprietor interferes and puts the miner out of his ground, then by such act he becomes a trespasser and is liable in damages for the value of the privilege of which, the mine:* is thus deprived.”

      The jury rendered a verdict in favor of plaintiff for three hundred dollars.

      Noell, for appellants.
    I. The court should have given the instructions asked by the defendants, and erred in giving the first instruction given at its own instance. The plaintiff had no greater interest than a tenant at will. Defendants had a right to terminate the tenancy at any time upon giving reasonable notice. There was no proof of a custom. Besides, no custom can be sustained in opposition to the established rules of law. (R. C. 1.845, p. 529 ; 6 Binn. 417; 1 Wash. C. C. 227 ; 2 id. 24; 10 Mass. 29 ; 3 Watts, 179 ; 2 Johns. 335 ; Wright, 573 ; 1 Hall, 602, 619.) The criterion of damages is wrong. The court instructed, first, that a miner’s privilege extends to any length of time he chooses, and second, that whatever may be the value of such privilege, he is entitled to recover. This gives to a mere tenant at will the full value of the fee simple by way of damages for terminating without his consent his tenancy.

      Frissell, for respondent.
    I. The plaintiff was entitled to a much longer notice to quit. It is conceded that he was a tenant at will. The instructions given were not erroneous.
   Richardson, Judge,

delivered the opinion of the court.

The first instruction given by the court was erroneous, for it assumes that a custom had been proven regulating the rights of miners, but the bill of exceptions is silent except as to the usage of a particular mine. The practice of a few persons in a business in which many are engaged will not establish a custom which all persons who are engaged in the same pursuit are presumed to know and recognize. A custom which would confer a right so important as that asserted in the instruction — being no less than the right of one person to occupy fo.r the purpose of mining the land of another as long as he pleases without a deed or other writing — ought at least to be well established by proof. A local custom must be proved on the trial; and we may suppose there was more evidence given on the trial of this case than we see in the record, but it ought to have been preserved in the bill of exceptions, so that it could be ascertained what interest the plaintiff had in the land.

The judgment will be reversed and the cause remanded to be retried ; and without intending to anticipate all the questions that may arise on another trial, it may be appropriate to notice some of them that will necessarily be presented. It will be developed by the evidence whether the plaintiff claims the right to mine on the defendant’s land as an easement or under a license. If he claims an easement it must be established by deed, for being an incorporeal hereditament it lies in grant and can not pass by livery. (Arnold v. Stevens, 24 Pick. 109.) A mere license may exist by parol, and ordinarily is not assignable, and is revocable unless it has been executed and the party has incurred expense on- the faith of it, so that he would be injured by its revocation. (3 Kent, 452; Pierpont v. Bernard, 2 Selden, 279; Wood v. Lead-bitter, 13 Mees. & Wels. 838.) In Cook v. Stearns, 11 Mass. 536, the court held that a license is technically an authority to do something on the land of another without passing an estate in the land, and a license to do a particular act does not invade the policy of the law that requires conveyances of title or interest in land to be in writing, for it may amount to nothing more than an excuse for an act which would otherwise be a trespass ; but an easement can not be acquired without a deed, or prescription which implies one. Savage, C. J., in Munford v. Whitney, 15 Wend. 380, after reviewing the authorities, observes, “ they all agree in this, that any permanent interest in the land itself can not be transferred except by writing. Much of the discrepancy may have arisen from the different ideas attached to the word license. If we understand it as Chancellor Kent defines it, it seems to me there can be no difficulty. It is an authority to do a particular act upon another’s land; is founded in personal confidence, and is not assignable. For example, A. agrees with B. that B. may hunt or fish on his, A.’s land; A. thereby gives B. a license for that purpose. This gives B. no interest in the land; he can not authorize any other person to go upon the land; it is a personal privilege granted to B. alone. If after A. has given his consent, and before B. has entered upon his land, A. changes his mind, he has a right to do so and forbid B. from entering upon his land for the specified purpose. The license is thus far executory and may be revoked at pleasure. If B. afterwards enters he is a trespasser. If however B. enters before any revocation of the license, the license is then executed, and it ,is not-competent for A. to revoke it and make B. a trespasser. This doctrine is applicable only to the temporary occupation of land, and confers no right nor interest in the land.”

Though it is difficult, often, to determine between an ease;¡ment and a license, it seems to be settled that the right to ¡enter and remain on another’s land for a certain time or indefinitely at the pleasure of the party claiming the privilege is an interest in the land which can only be ■ created by deed. A license can not be countermanded, after it has been executed, so as to permit acts done under it to be treated as trespasses ; and though sometimes it may not be easy to ascertain the point of time at which a parol license may be revoked, when it is no longer executory and the licensee has expended money on the faith of it and is in the enjoyment of the privilege connected with it, yet there must be a time at which it is revocable; otherwise it would create a permanent interest in land. It may be however that when acts have been performed upon the faith of a license, the party giving .it may be equitably estopped from revoking it-to the injury of the other party, but the estoppel will be limited by the injury it is invoked to prevent; as if A. gives B. the privilege of passing over his land, it may be countermanded at any time and no harm will be done, for the parties will stand after the revocation where they were before ; but if the license is that B. may build a house on A.’s land, and B. on the faith of the license erects the house, he might have the right of removing it, and A. would perhaps be denied the power of revocation until B. has been indemnified by the use of the property for the money he had expended on it.

The other judges concurring, the judgment will be reversed and the cause remanded.


text:
    Glasby, Plaintiff in Error, v. Prewitt, Defendant in Error.
    1. The practice act of 1849, except the 25th article, did not apply to proceedings before justices of the peace.
    2. Justices of the peace have jurisdiction in actions of trover only in cases where the damages claimed do not exceed fifty dollars.

      Error to Crawford Circuit Court.

      C. Jones and J. B. Arnold, for plaintiff in error.
   Richardson, Judge,

delivered the opinion of the court.

This case was commenced before a justice of the peace in 1854. The plaintiff filed a written statement of his cause of action, complaining that the defendant had in his possession six hundred bushels of charcoal, the property of the plaintiff, which he unlawfully refused to give up ; that the charcoal was of the value of forty-two dollars ; that the plaintiff had been damaged by the detention thereof forty dollars, and asked judgment for eighty-two dollars. On the trial before the justice the plaintiff recovered a judgment, from which the defendant appealed to the circuit court. On the trial in the circuit court the case was submitted to the court without a jury. No exceptions were taken during the progress of the trial to any decision of the court, and though the record states that the court considered the plaintiff had not proved a demand, this opinion was not announced in an instruction or in any other shape so that it can be reviewed in this court. The evidence was amply sufficient to establish a conversion, and no actual demand was necessary to entitle the plaintiff to recover; birt the court did not find the facts, and no instructions were asked or given, and the case is not properly saved for an appeal or writ of error.

The practice act of 1849, except the 25th article, did not apply to proceedings or actions commenced before justices of the peace, and the court therefore was not required to find the facts on which the judgment was predicated. (Code of 1849, art. 30, sec. 6; 21 Mo. 436; 19 Mo. 82; 20 Mo. 453.) The plaintiff ought, as under the old system of practice, to have asked the court to declare the propositions of law affecting his case, presented in the form of instructions, (9 Mo. 875,) and where the cause is tried by the court sitting as a jury, and no exceptions are taken until after the verdict, the judgment will not be reversed in this court. (9 Mo. 351; 21 Mo. 443; 18 Mo. 509; 19 Mo. 642; 19 Mo. 121; 24 Mo. 524.)

Justices of the peace have jurisdiction in actions of trover, (12 Mo. 51,) but only in cases where the damages claimed do not exceed fifty dollars; and for the reason that the justice had no jurisdiction in this case, the judgment of the circuit court is reversed and the cause dismissed at the cost of the plaintiff.

The other judges concur.


text:
    Hays, Respondent, v. Hays’ Administrator, Appellant.
    1. A report of a referee, to rvhom a cause had been referred under article 16 of the practice act of 1849 to report upon the whole issue, stands as the decision of the court, and the Supreme Court will not review the same upon the facts unless the evidence be preserved in a hill of exceptions.

      Appeal from St. Louis Court of Common Pleas.

      Knox & Kellogg, for appellant.
    Gantt, for respondent.
   Richardson, Judge,

delivered the opinion of the court.

This case required the examination of partnership accounts, and was therefore properly referred under the provisions of article 16 of the practice act of 1849. The referee was directed to hear and decide the whole issue, and his report when filed stood as the decision of the court, in the same manner as if the action had been tried by the court” and his decision upon the matters referred to him was subject to be excepted to and reviewed in like manner. (Art. 16, § 3; Walton v. Walton, 17 Mo. 377.)

The second and third sections of the 15th article regulate the mode of trial by the court and prescribe the course to be pursued by either party who is dissatisfied with the decision. It is the duty of the court to state the facts deduced from the evidence as in a special verdict,’ but not the details of the testimony, and then the conclusion of law upon them, on which the judgment is rendered. Either party may except to any decision upon a matter of law arising on the trial, in excluding or admitting evidence, “ in the same manner and with the same effect as upon a trial by a jurybut as the exceptions would not appear on the record nor in the finding, it is necessary to save them by a bill of exceptions.

If the party against whom the decision is made is content with the facts as found, but objects that they do not warrant the judgment, lie may file his motion asking the court to review its conclusions of law on the facts as found, and the consideration of this motion would not require any examination of the evidence, and it need not therefore be preserved. But if the objection is that the facts stated in the finding are against the evidence, or without any evidence to support them, or that .other facts ought to be found from the evidence which the court has omitted to find, the motion for a review ought to state the particular errors in the finding, “ and make a case containing so much of the evidence as may be material to the question to be raised.” It is manifest that the merits of a motion of the latter kind can not be considered in this court without the evidence on which it is based; and as none of the evidence in this cause is preserved in the bill of exceptions, we can not look outside of the finding. The objections taken to the finding in the defendant’s motion for a review would be fatal to the judgment if they were sustained by the evidence; but as their consideration necessarily requires an examination of the evidence, which is not preserved, we can only look at the finding as it is. The report of the evidence taken by the referee is no part of his finding of facts, but it might have been made a part of the record by being incorporated in the bill of exceptions, which was not done in this case. The facts as found by the referee warranted his conclusion, and the judgment will be affirmed.

The other judges concur.