author: SCOTT, Judge,

text:
    Morris, Defendant in Error, v. Morris, Plaintiff in Error.
    1. Where a cause is properly triable by the court, the parties are not entitled as a matter of course to have issues framed and submitted to a jury. The cases in which it is peculiarly appropriate to direct issues to be submitted to and tried Try a jury are those in which single material facts are disputed and the evidence is conflicting.
    2. Issues submitted to a jury should be framed in language plain and perspicuous.
    3. Instructions given to a jury should contain no comments on the evidence.
    4. Resulting trusts are not within the statute of frauds.

      Error to Lawrence Circuit Court.

    This was an action by Jesse E. Morris against Zachariah Morris, John P. Campbell, L. J. Morrow and W. Morrow. Campbell died and the suit was finally dismissed as to all the defendants except Zachariah Morris. The plaintiff in his petition set forth in substance that one Robert Morrow entered a certain tract of land in the land office; that at the time of the entry by Morrow plaintiff was in possession of said land and had a portion thereof in cultivation and had improvements ; that afterwards the plaintiff purchased said land from said Morrow, and was to pay him therefor the money the latter had paid upon its entry, with interest thereon; that plaintiff employed one Asa Smith to accompany said Morrow to the town of Springfield to pay said Morrow the purchase money and get a deed from Morrow to the plaintiff; that he instructed thorn to apply to John G-. Campbell to write the the deed and attend to the taking of the acknowledgment; and that he would pay Campbell for his trouble and expenses ; that Smith as agent of the plaintiff paid said Morrow the said purchase money; that Morrow agreed to make and deliver a deed to plaintiff and leave the same with Campbell; that Campbell fraudulently inserted his own name in said deed; that Campbell conveyed said land to Zachariah Morris, who took with notice. Plaintiff prayed for a decree of title.
    The following issues were submitted to the jury: “ 1st. Did plaintiff purchase the land in question, and procure John G-. Campbell to write the deed, pay the purchase money, and have possession of the land at and before the purchase ? 2d. Had the defendant notice that plaintiff had purchased said land from Morrow and procured Campbell to write the deed previous to the defendant’s purchase from Campbell ? 3d. Had plaintiff possession of the land when Morrow executed the deed to Campbell ?” All these issues were found for plaintiff.

      Crawford, Edwards Sf Ewing, for plaintiff in error.
    I. Campbell’s heirs should have been made parties to the suit, because, if the facts set forth in the bill are true, Zachariah Morris would have a remedy over against them in the event that Jesse Morris sircceeded, and they should have been parties. Plaintiff in this bill does not aver that he paid Smith the purchase money to pay to Morrow, nor does he aver that the money paid to Morrow for the land was his money. The facts are not sufficiently stated to take the case out of the statute of frauds. (See Johnson v. Magruder, 15 Mo.-.) The proper issues were not presented to the jury. Defendant relied upon the statute of frauds as to the alleged purchase of Jesse Morris from Morrow, but such issue was [not] presented to the jury by the court. Every issue presented in the case may be found for the plaintiff and still the plaintiff would not be entitled to recover. The statute of frauds was well pleaded to the action. There is no pretence that the contract between Jesse Morris and Morrow was in writing; and the plaintiff fails to make such a case as will take the case out of the statute of frauds. The court erred in refusing to permit the witness to answer the question put in relation to the general character of A. Z. Smith for truth and veracity. The court erred in giving the instructions asked by the plaintiff. They were not warranted either by the evidence or the law.
   SCOTT, Judge,

delivered the opinion of the court.

If J. P. Campbell loaned the money to Smith with which he says he paid for the land and took the deed in his own name for his indemnity by an arrangement with Smith, who was the agent of the plaintiff, then it would seem that this action has been misconceived, as the plaintiff could not expect to recover without reimbursing Campbell or those claiming under him. The testimony of Smith as preserved in the record is very unsatisfactory. He does not say who furnished the money which he paid for the land. Whether, by contract with the plaintiff, Smith was to furnish the money for him or whether the plaintiff himself put the money in Smith’s hands, does not appear. If Campbell loaned the money and had to take a deed in his own name for his security, that is no reason why he should not be paid for writing the deed. It does no.t appear but that there may have been an arrangement with Campbell for the loan of the money with the privity of the plaintiff. The father of the plaintiff testifies that Campbell, before his conveyance to the defendant, told him that he had no claim to the land in controversy, but another witness stated that the plaintiff told him that he had been wronged by Smith. The evidence in relation to the character of Smith was all-important and should not have been excluded.

The issues in this case were very bunglingly framed. It seems they were filed after the jury was sworn, but by whom the record does not inform us. It does not appear whether the court directed them or not. The case was properly tria-ble by the court, and when cases are so directed to be tried, it is not for the parties, as a matter of course, to require a jury. The court has a discretion and should exercise it in order to determine whether the case is a proper one for a jury. We know that there are a great many cases which can with no propriety be tried by a jury. When a single material fact is disputed in a cause and the evidence is contradictory, courts will direct it to be tried by a jury; but these cases half tried by a court and half by a jury are always in perplexity and confusion. Judges should not relieve themselves by throwing the responsibility of trying causes on juries when the law contemplates that the duty shall be discharged by themselves.

The first issue is defective because it is so worded that it does not appear whether the payment of the purchase money ■therein mentioned was by Campbell or by the plaintiff. It is a matter of uncertainty whether the jury was directed to find whether the plaintiff or Campbell paid the purchase money. ' It is not maintained that it may not be conjectured what the language means or what was intended, but issues submitted to a jury should be in language so plain and perspicuous that no doubt could arise as to their meaning.

The second issue directs two facts to be found, neither of which disposes of the cause, nor both together ; but, if found, merely serve as the ground-work of an inference which, if it existed, would be material in determining the controversy. This is rendered plain by the instruction given by the court, and which instruction is objectionable, as it amounts to a comment on the evidence, which the court by statute can not make but by consent.

The third issue related to the possession of the land in controversy. We do not see how the matter of possession is material in this suit. The defendant did not pretend any title to the land before his purchase from Campbell. There is no pretence that the statute of limitations has any application, or, if it has, it has not been suggested anywhere in the record. How then can the fact of possession affect the merits of the controversy ? Of what avail could it be as notice, as no title previous to the defendant’s purchase is claimed for him ? The plaintiff must show fraud in Campbell before he can succeed, and if such fraud is established, how can the defendant’s possession help him as he claims under Campbell ?

The case of the plaintiff proceeds on the hypothesis that Campbell having in bad faith procured the legal title to the land, a trust results to him to have the title reconveyed. It is very clear under this view that the statute of frauds has nothing to do in determining this controversy, as it is well settled that resulting trusts are not within the statute of frauds and perjuries.

As the judgment will be reversed it will be needless to review the instructions. They are not very perspicuous, and would serve rather to confound a jury than to aid them in their deliberations. When the law is so plain, what can be the object of many instructions ? When each party takes extreme views of the law of a case, why not reject both sets of instructions and frame such as will fairly set forth the law ? From what has been said, the burden, it is obvious, is on the plaintiff to show that Campbell acquired the legal title to the land in dispute in bad faith or in fraud of the rights of the plaintiff knowingly, and that the defendant took a conveyance from Campbell with the knowledge of the bad faith or fraud on his part in acquiring the title. The char- • acter of the parties to this transaction, actors and witnesses, must and should have influence in determining it. That is not a matter for this court. It is for those who may have known them and may hear the witnesses testify.

Judgment reversed and remanded;

Judge Richardson concurs. Judge Napton absent.


source: Caselaw Access Project

author: Richardson,- Judge,

license: Public Domain

text:
    Wood et al., Appellants, v. Phelps County Court, Respondent.
    1. Granting that an appeal would lie from tile judgment of a county court in a proceeding instituted to obtain a removal of the seat of justice, it would only lie in the case of a final judgment.
    2. Neither under the general act regulating the removal of seats of justice (R. C. 1855, p. 518), nor under the act organizing Phelps county (Sess. Acts, 1857, Adj. Sess. p. 397) would an appeal lie to the circuit court from an order of the county court sustaining or overruling a motion to set aside or vacate a former order of the county court approving the location of the seat of justice.
    3. Where a public act requiring the exercise of judgment is to he performed by several commissioners appointed in a statute, all of them must meet and confer.
    4. Though a majority of the commissioners appointed by the act organizing Phelps county (Sess. Acts, 1857, Adj. Sess. p. 397_) may make a location of a seat of justice, yet all the commissioners appointed must meet and confer with respect to such location.

      Appeal from Phelps Circuit Court.

      Parsons Sf Pomeroy, for appellants.
    I. The county court had no right to reject the petition for the removal of the county seat. The circuit court committed error in dismissing the appeal. The commissioners gave no notice of their intended meeting. The general law requires such notice. The law required all the commissioners to qualify. The circuit court should have heard de novo the petition of the inhabitants for the removal of the supposed county seat, as also their objections to the location. (R. C. 1855, p. 533, § 8.) Three-fifths of the taxable inhabitants of the county are appellants here.

      E. B. Ewing, (attorney general,) for respondent.
    I. The petitioners were not entitled to an appeal. The circuit court did right to dismiss it. (Tetherow v. Grundy County, 9 Mo. 118.) Neither the statute concerning the organization of counties nor that concerning seats of justice authorizes an appeal. (R. C. 1855, p. 504, 513.) See also act to organize Phelps county. There was no final judgment of the county court from which an appeal would lie. But if the proceedings of the commissioners were in any respect irregular, such irregularity could not be remedied by an appeal. The commissioners or a majority of them were required to report their proceedings to the county court, not the circuit court. But if the general law concerning the organization of counties governed the commissioners in the discharge of their duties, there is no such irregularity as invalidates their proceedings. (Act concerning the organization of counties, R. 0. 1855, p. 505-6.) It devolved upon the plaintiffs to aver and prove facts that would invalidate the proceedings of the commissioners. This nowhere appears from the record.
   Richardson,- Judge,

delivered the opinion of the court.

By the second section of the act organizing Phelps county, approved November 13, 1857, George M. Jamison, of Crawford county, Cyrus Colley, of Pulaski .county, and Gideon R. West, of Osage county, were constituted a board of commissioners to locate the seat of justice of Phelps county, and were instructed to locate it at the most suitable place in the county on the line of the survey of the south-west branch of the Pacific railroad. The seventh section of the act required the commissioners to meet at the residence of John Webber, in said county, on the 80th of November, 1857 ; or on any other day thereafter that a majority of them might name, and proceed to locate the county seat and report the same to the county court. The seventh section further provided that a majority of the commissioners should be sufficient to make a location, but should one or more of them fail to act for any reason, it should be lawful for the county court of the county in which such delinquent commissioners resided to supply the place by appointment. •

It appears from the record that on the 20th January, 1858, Cyrus Colley and George M. Jamison reported to the county court that they had located the county seat on a tract of land described in a deed, which they presented, executed by Edward W. Bishop, and on the next day the report was approved by the court. It does not appear on what day the commissioners met for the purpose of entering on the performance of their duty, but it was shown that Gideon R. West, of Osage county, failed to qualify or ' to act; that the other commissioners had no communication with him on the subject of the location, and that only two of them "ever qualified or acted in making the location. On the 9th February, 1858, a petition was presented to the court, purporting to be signed by James Woods and 615 other tax payers of the county, complaining of the action of the commissioners in locating the county seat and asking the court to make an order to remove the seat of justice to another place, and at the same time a motion was filed, grounded on the petition, for the appointment of five commissioners to select another site. Seventeen reasons are assigned in the motion, many of which are inconsistent with each other, for some of them assume that the county seat had never been located at all, inasmuch as the proceedings of the commissioners were irregular and void; whilst others concede that it had been lawfully established, hut urged that it ought to be removed to another place, because it was unwisely located and a majority of the tax payers were dissatisfied and desired a change. On the 10th February, Hamilton Lenox and others filed their remonstrance against the removal of the county seat, and the matter was continued until the 22d day of the month, when it was again continued until the next term of the court. On the 24th February the following entry appears: “ Now on this day come the petitioners by their counsel and present their motion to the county court for an investigation of the alleged illegality of the location of the county seat of Phelps county, which motion is by the court overruled; whereupon said petitioners gave notice of an appealand thereupon the case was taken by appeal to the circuit court. The motion mentioned in the entry is not set' out in the record, and we can not tell either its aim or the reasons stated in it, and it does not appear that it sought to have the order of the court approving the report set aside; but that it only asked “ for an investigation of the alleged illegality of the location of the county seat.” The circuit court dismissed the appeal.

It is evident that an appeal did not lie from any order the county court had made touching the petition to remove the county seat, for no final decision had been made by the court on the subject. The petition had been neither granted nor refused, and before the appeal was taken an order had been made continuing the matter until the next term ; and if an appeal will lie at-all from the judgment of the county court in a proceeding to remove a county seat, it would only lie in the case of a final judgment.

The proceedings of the appellants in the county court were intended in the beginning only to procure the removal of the county seat according to the provisions of the act to provide for the removal of seats of justice. (R. 0. 1855, p. 513.) There is nothing in the record to show that a motion was made at any time to reject the report, or to set aside the order approving it, and if the parties designed to take that course, they approached the subject by singular indirection. But treating the case as though a motion had been made in proper form and at the proper time, we do not think an appeal could be taken from an order of the county court sustaining or overruling it. Neither the act organizing Phelps county, nor the general law on the subject of locating Beats of justice (R. C. 1855, p. 503), makes any provision for an appeal. One citizen of the county alone surely could not take an appeal, for all the other citizens might acquiesce in the judgment of the court, and if one could not appeal, two could not, nor could three, or any other given number, and therefore the right of appeal can not depend on the number who may unite in it. (Tetherow v. Grundy County Court, 9 Mo. 119.)

The judgment of the circuit court dismissing the appeal will be affirmed, but we think it proper to say that, in our opinion, the report of the two commissioners shoiild have been rejected, and the county court ought to vacate the order approving it. Three commissioners were appointed in order that each of them might have the benefit of the advice and information of the others, and it was supposed that their associated counsel and judgment woxild produce a wiser and more satisfactory result than if only one or two acted. Where a public act requiring the exercise of judgment is to bo performed by three or more commissioners appointed in a statute, all of them must meet and confer, though the question may be determined by the opinion of a majority, unless the concurrence of all is required. When all are present and acting, two may decide; but two can not act without at least consulting with the thirdfor it might happen that if the third one had been present, his opinions and arguments would have influenced the others and changed the result. (Rogers, ex parte, 7 Cow. 530, note.) The statute appointing these commissioners permits a majority of them to locate the county seat, but it contemplated that all should meet and confer, for it expressly provides that in case one or more of them should fail to act, the county court of the county in which the delinquent commissioner resided should supply his place by appointing another. The commissioners were not required to make the. location within any- fixed time, and therefore, as they have not yet discharged the duty assigned them, there is no reason why they may not yet perform it. The county court ought to set aside the order approving the report, and notify the commissioners to proceed to execute their trust; and if the court refuses to do its duty, which we can not suppose it will do, an adequate legal remedy will then doubtless be suggested and adopted.

Judge Scott concurs. Judge Napton absent.


author: Scott, Judge,

text:
    Atkisson, Defendant in Error, v. Steamboat Castle Garden, Plaintiff in Error.
    1. Mere hearsay testimony, the acts and declarations of third persons in no •way related to the party against whom it is sought to use them, is inadmissible.
    2 In an action against a carrier to recover damages for his failure to transport goods to their place of destination, if the owner seeks to recover the value of the goods at the place of destination, the freight that would have been earned by the carrier in transporting the goods to their place of destination must be taken into estimation and allowed the carrier.
    3. If a carrier deliver goods at their place of destination after the appointed time, the acceptance of them by the owner will not discharge the carrier from liability for the breach of his contract; so the acceptance of goods from a carrier at a place short of their place of destination will not absolve him from liability for a breach of his contract committed before delivery; in such cases, the carrier is exempt from damages only where there has been no breach of the contract previous to the delivery of the goods.

      Error to Camden Circuit Court.

    This was an action against the steamboat Castle Garden to recover damages for the breach of a contract to transport certain goods, wares and merchandise from St. Louis to Warsaw, on the Osage river, and to tow a flat-boat loaded with whisky and lumber from the mouth of the Osage to said Warsaw. Neither the goods nor the flat-boat were taken to their place of destination, but were delivered at a point short thereof after a detention of a considerable time and in a damaged condition.

      Ediuards and Ewing, for plaintiff in error.
    I. The court erred in admitting the evidence of Jopling contradicting his receipt, given by him while acting as agent of the plaintiff, for the flat-boat, whisky and plank. The court erred in overruling the objections by defendant to the evidence of W. E. Tutt. The court erred in permitting the instrument of writing signed by Lyle to be read to the jury. The court erred in giving the third, fifth and seventh instructions asked by the plaintiff. The court erred in giving the third, fifth and seventh instructions asked by plaintiff as to the measure of damages. The court should have refused those asked by the plaintiff as to the measure of damages, and given those asked by the defendant on that question. The court erred in refusing the fourth and sixth instructions asked by the defendant.

      F. P. Wright, for defendant in error.
    I. The instructions Nos. 3, 5 and 6, given on the part of the plaintiff, are correct. The fourth instruction asked by defendant was properly refused, and particularly as by instruction eleven the court excluded from the consideration of the jury all admissions and declarations of the clerk of the boat except such as were made by the clerk while the goods were in his immediate possession of raider his control as clerk. Declarations and admissions made by an agent are competent; they in fact constitute a part of the res gestee. (Story on Agency, § 134,135 ; 1 Stark. Ev. 35.) The sixth instruction asked by defendant was properly refused. There is no evidence that Atkisson gave Jopling any such authority as assumed by the instruction. The law would not imply it. The receipt was written by the agents of the boat, and contained statements known by them to be untrue, with, the fraudulent intent of screening the steamboat from its liability, and admissions thus fraudulently obtained were not binding on Atkisson. Taking the instructions all together, the criterion of damages was properly stated. Plaintiff’s fifth and sixth instructions, as to the damages for property lost, used and destroyed by defendant, were sufficiently favorable, and the eighth instruction on the part of the defendant was too favorable for defendant. When goods are entrusted to a carrier and they are not delivered according to contract, the value of the goods with the interest thereon from the day they should have been delivered at the place of destination is the measure of damages. (Sedgwick on Damages, p. 372 ; Shaw & Austin v. S. C. R. R. Co. 5 Pick. 462 ; 14 Ill. 156 ; Bailey v. Shaw, 4 Foster, 297.)
   Scott, Judge,

delivered the opinion of the court.

The judgment in this case must be reversed, if for no other reason than on account of the error in admitting as evidence the paper headed “ sold J. F. Weidemeyer.” This paper contained the amounts of the various bills of the goods shipped on the “ Castle Garden,” which were alleged to have been made with different merchants in St. Louis, with freight, insurance and ten per cent, added to the cost. There was no evidence of the authenticity of these bills or of their correctness. The witness Tutt merely stated that the plaintiff had made a contract to sell said goods to Weidemeyer before they were sold to McOlung and whilst the said merchandise was on said “ Castle Garden” on her way to Warsaw. The paper was then read with proof of the signature of Weide-meyer, which was subscribed, after the institution of this suit, to an acknowledgment at its foot, to the effect that he had bought the within bills of goods from Jas. Atkisson, at the prices, &c., named. So it would seem that this evidence was made for the cause. The offers, acts or declarations of Weidemeyer could not be made evidence against the defendant, as they were not under oath. If his evidence was necessary, he should have been produced as a witness. There is no attempt on the part of the plaintiff to defend or even explain this departure from the rules of evidence.

We do not understand the seventh instruction given for the plaintiff. Its object is not perceived. If it was intended to give the measure of damages in an action for a breach of the contract of affreightment, it failed of its end. Neither did the fifth instruction given for the plaintiff state correctly the measure of damages in cases where a carrier fails to transport goods from one port to another in pursuance to the terms of his contract. The rule, as settled in such cases, as to the measure of damages, is the value of the goods at the place of destination, deducting freight and other expenses of transportation; for the shipper of merchandise would have to pay freight to the port of destination in order to obtain its value at that place; and if it never was delivered and no freight was paid in respect to it, if he would have the value at the place of destination, he must deduct the freight and expenses that would have been expended had the goods been delivered at the appointed place. (Nourse v. Snow, 6 Maine, 208; Watkins v. Laughton, 8 John. 213 ; Angel on Carriers, § 482; Sedgwick on Damages, 372.) So if the carrier earns freight in respect to the goods by carrying them to the port of destination, but not as required by his undertaking, or to a point short of it from which they were or might have been carried at a less expense by using ordinary diligence, the freight that was or might have been earned will be allowed to him. (Sedgwick on Damages, 372; McGregor v. Kilgore, 6 Ohio, 143.) The allowance of interest in these cases depends on circumstances, 'and will be given or withheld accordingly, as in all other cases of unliquidated damages.

We do not see that there was any error in admitting in evidence the paper signed by Lyle at the time he discharged the cargo at Linn creek; that paper contained nothing more than the declaration of the law of the case. If goods are to be delivered at a certain time, and they are delivered and accepted after the time appointed, the carrier is not thereby discharged from the payment of damages for the violation of his contract -unless it is so agreed. So if goods are shipped ^ on a voyage and the owner agrees to receive them at a place short of the port of destination, that will not free the carrier from the responsibility of damages incurred by a breach of the contract of affreightment made by him before the delivery of the goods at the intermediate place. In such cases the carrier is only exempt from the payment of damages when there has been no breach of the contract previous to the delivery of the goods. (Angel on Carriers, § 336 ; Bowman v. Teoll, 23 Wend. 306.)

There was no error in permitting the witness Jopling to explain the circumstances under which he gave the receipt for the goods at the mouth of the Osage. It would be strange if the law were otherwise. If one obtain money from another for the delivery of property which is unjustly withheld, the money may be recovered back. If one tampers with the agent of another and induces him to do an act in the name of his principal which he has no authority to do, can not the circumstances be shown in order to invalidate the act ? The defendant would induce the agent of another to give a false receipt in his name without authority, 'and then maintain that the facts can not be inquired into because the act of the agent is the act of the principal. This argument amounts to nothing more than the illogical exceptio ejusdem rei, cujus dis-sohdio petiiwr.

The court admitted the declarations of the agent of the boat. Some of these declarations were evidence and some were not. Exceptions irere taken to the admission of these declarations and they were admitted against the exceptions. Afterwards the court gave an instruction that all the declarations and admissions of the clerk of the boat, except such as were made by the clerk while the goods were in his possession or under his control, were excluded from the consideration of the jury. Under these circumstances, it would have been better had the court informed the jury specifically what declarations were'withdrawn and what were not. It was an -unsatisfactory way of avoiding the consequence of the admission of illegal evidence. If all the declarations had been withdrawn such a course might have been well enough, but to receive good and bad indiscriminately, and then leave to the jury to determine, though under an instruction, what should and what should not be excluded, was certainly a very unsatisfactory way of disposing of the matter.

As the judgment will be reversed, it is unnecessary to say any thing in relation to the instructions as to the measure of damages for not delivering the whisky or lumber. It is obvious that that rule is applicable to them which fixes the measure for the merchandise.

Reversed and remanded;

Judge Richardson concurs. Judge Napton absent.


text:
    Bray, Respondent, v. Thatcher et al., Appellants.
    1. Where a plaintiff seeks relief other than the recovery of money only or of specific real or personal property — as where the annulment of deeds is sought on the ground that they were obtained by duress and violence — the cause must be tried by the court and not by the jury.
    2. A. and B. combining, by threats of violence against C., extorted from the latter the transfer to themselves of a certain tract of land owned by the latter — one portion thereof being conveyed to A., and the other to B. — A. conveyed his portion to D., who took with notice. C. instituted an action against A., B. and D. to obtain an annulment of said deeds. Held, that the petition was not multifarious.
    3. Courts of equity will set aside deeds obtained by duress.

      Appeal from, Mercer Circuit Court.

    This was an action by Hardin P. Bray against Daniel N. Thatcher, Lilburn P. Smith and Azariah L. ■ Hupp. The plaintiff set forth that on the 5th of January, 1852, he owned in fee simple a specified tract of land; that on said day “ one Daniel N. Thatcher and one Lilburn P. Smith, together with divers other persons, riotously assembled themselves together for the purpose of compelling plaintiff to make to said Thatcher and Smith a deed to the above described tract of land, and by divers threats and menacings toward said plaintiff, of and by said parties when so assembled, of great personal injury to the person of said plaintiff and of his life; that by such threats and menacings, with force and violence. toward plaintiff, the said plaintiff, through [fear] of his life or of some great bodily injury and personal indignity and violence to his person, did, although against his will and without his consent, sign and acknowledge deeds” — one to Thatcher for one-half of the above mentioned tract, and the other to said Smith for the other half — “• for the nominal sum of fifty-two dollars and fifty cents paid by each of said parties ; which said sum so paid was fixed and set by said parties, so threatening and menacing plaintiff as aforesaid, of their own arbitrary will and without the consent of plaintiff; all of which plaintiff was compelled to agree to and accept against his will, through fear of his life and great bodily injury to his person that afterwards, on the 23d of February, 1853, the said Thatcher conveyed the tract of land conveyed to him to one Azariah L. Hupp; that said Hupp well knew that the deed from plaintiff had been ¡procured by force and violence and through fear. The plaintiff prays the court to set aside the deeds of plaintiff to Thatcher and Smith, and that from Thatcher to Hupp, and for a decree of title in himself. The plaintiff brought into court the sum of one hundred and five dollars, so paid to him by Thatcher and Smith, and offered to refund the same.
    The defendants demurred to this petition on the ground of multifariousness.- The demurrer was overruled. The cause was submitted under instructions to a jury, who found for the plaintiff.

      Davis and -Tindall, for appellants.
    I. The defendants were improperly joined together in the action, and the court ought to have sustained the demurrer of defendants or afterwards have sustained the motion in arrest of judgment. There is no joint or common interest either in the lands or the possession of the lands, which were the subject of the suit. (See Stancup v. Garner, 26 Mo. 72 ; Doan y. Holly & Walker, id. 186 ; 25 Mo. 359 ; 3 Barb. Ch. 434 ; 17 Mo. 228.) A new trial should have been granted on motion of defendants because of giving wrong instructions by the court. A deed which has been acknowledged and recorded will not be avoided upon a plea of duress. (3 Bac. Ab. 255, tit. Duress ; 1 Story on Contr. 404.) A fear of injury to a man’s person, not amounting to loss of life or or limb, or a mayhem, would be insufficient to invalidate his deed made under such fear. (Sec 3 Bacon’s Abridg. Duress, p. 252; 1 Black. Comm. 131; Shepherd’s Touchstone, 61.) The latter clause of the first instruction given for plaintiff misled the jury as to the law. The verdict, being general, is not sufficient; it should be special and responsive to the allegations in the petition. By what authority is a judgment entered against Hupp for the land alleged to be conveyed to Smith.? (19 Mo. 554.) The court below mistook the law in refusing to compel the plaintiff to elect which of the causes of action he would proceed on first, and to amend his petition. (See Moony v. Kennett, 19 Mo. 554.)

      Ryland and E. B. Ewing, (attorney general,) for respondents.
    I. The grounds raised by demurrer can not now be raised here, because the defendants answered and the demurrer must be considered as withdrawn. The court below properly overruled the defendant’s motion to elect on which of his causes of action he would proceed, this not being such a case in which such motion can prevail. The instructions for plaintiff were proper, and were in accordance with the law and the facts in proof. There is no multifariousness in the petition, and the issue being found for plaintiff, there was no cause to arrest the judgment. (Story, Eq. Plead. § 284, 286, 283, 534; 6 Johns. Ch. 140 ; 8 Clark & Ein. 428 ; 2 Ans. 473.) The proof shows'Such duress by threats as will warrant the court to declare the law to be as laid down in the instructions given, and to set aside the deeds as void.
   Scott, Judge,

delivered the opinion of the court.

This is not an action for the recovery of money only, or of specific real or personal property. The object of the petition is to set aside conveyances of land and procure re-conveyances on the grounds of violence and fraud practiced in obtaining them. Such being the aim of the suit, it was not properly tried by a jury. It is obvious that the responsibility of trying the action has been shifted from the court and imposed on a jury against the provisions of law. It is no answer to this to say that the court may have adopted the finding of the jury as its own, for courts frequently acquiesce in the verdict of juries, where, had they been the triers of the fact, their verdicts would have been different. It is clear that this cause has not been tried by the tribunal appointed by law. There is another difficulty in the way of this proceeding. Causes which by law are to be tried by a jury can only have a misapplication or mistake of the law of the case reviewed in this court by bills of exceptions containing the instructions complained of. In such cases, if there is no bill of exceptions containing the instructions, or if no instructions are asked, and the wrongful misapplication of the law to the facts is the only error of which complaint is made, there can be no reversal; the judgment will be approved. In cases, however, where by the law the,trial must be by the court, a majority of this court holds that the case may be reviewed here although no declarations of law as applicable to the facts were made in the inferior tribunal. If a case properly triable by the court is improperly submitted to a jury, what is to be the rule ? (R. C. 1855, p. 1261.)

We do not conceive that the petition is obnoxious to the charge of multifariousness. The circumstance that the parties concurred in a joint act which resulted in the injury of which the plaintiff complains distinguishes this from ordinary cases. If the two defendants had taken a joint deed as t»éausing/he the reward of their fraud and violence, there would have been no question as to the propriety of tbe petition. The fact that they shared the spoil between themselves can not affect the remedy of the plaintiff. If the defendants Thatcher and Smith had passed their titles to innocent purchasers, it is conceived that all the parties to the wrong and violence would in solido have been liable to make good the loss sustained by the plaintiff; and being thus liable^i.hflrocfS^be no impropriety in joining them as defendag If by separate acts of violence on separate occasions, ferent persons, the plaintiff had been his property, there would have been an ing these several causes in one action; but of whom complaint is made united in the injury, they were all jointly liable, and the d^^SoToT the spoil among themselves can not affect the remedy of the plaintiff.

Whatever may be the law as to the plea of duress when set up as a defence to an action on a bond, it can have no application to this suit, which is one in the nature of a bill in equity to set aside deeds obtained by violence and fraud. But we see no ground on which it can be maintained that the facts in this case would not support a strict plea of duress as framed in the old books of entries. The mob menaced the life of the plaintiff and actually used violence towards him. The defendants were present, adopted and gave countenance to their lawless acts, which were done for their benefit. To hold that conveyances obtained under such circumstances could not be set aside would be a reproach to any system of jurisprudence. The grounds on which courts of equity proceed furnish ample ground to administer to the plaintiff the relief he seeks. Those courts relieve against fraud, violence and imposition; and a grosser outrage than that presented by the record in this case rarely comes under the cognizance of courts of justice. It was a fraud in the defendants to take advantage of the violence of the mob to extort deeds from the plaintiff against bis will and on their own terms. For the reason giren in the former part of this opinion, the judgment will be reversed and the cause remanded.


text:
    Dickerson, Appellant, v. Chrisman, Respondent.
    1. Where a suit results adversely to the plaintiff and he becomes liable for costs and judgment is rendered accordingly, it is no error as against him that, judgment for costs is also rendered against another irregularly made a party to the suit at the instance of the defendant.
    2. Where a deposition is offered in evidence, and its admission is objected to for various reasons, if the objection that the absence of the witness has not been-accounted for be not made, it will be deemed to have been waived.
    3. Declarations of a grantor of real estate, made before the grant, to the effect that he had previously sold said real estate to another, are admissible in evidence against such grantee and all persons claiming under him.
    4. Where there is a parol sale of real estate and the vendee is placed by the vendor in such a situation that a fraud will be worked upon him unless the contract of sale is fully performed, this will be deemed such a part performance as will take the case out of the statute of frauds.
    5. The rule that a judgment is an entire thing, and if reversed as to one must be reversed as to all, is only applicable to judgments at law.

      Appeal from Moniteau Circuit Court.

    This was an action in the nature of an action of ejectment to recover possession of certain real estate in the town of California. The suit was instituted in February, 1856. Plaintiff claims title under a deed from one Browning, dated July 12, 1855, and recorded September 11, 1855. The plaintiff claims also rent from the defendant and compensation for waste. The defendant set up as a defence to the suit that he purchased the property in controversy of said Browning on or about the 1st of May, 1855 ; that he took possession of the same and paid about eight hundred dollars thereon, leaving the same amount unpaid; that Browning executed and acknowledged a deed of said property to defendant, but fraudulently refused to deliver it; that plaintiff, with full knowledge of these facts, fraudulently contrived and confederated with Browning and obtained a conveyance of the same property to himself. The defendant offered to pay the remainder of the purchase money and prayed for a decree of title against plaintiff and Browning ; that Browning be made a party to the action ; that an order of publication against Browning bo made, he being a nonresident of the state. An order of publication was made against Browning. The cause was tried by the court without a jury. The court found for the defendant Chrisman. The finding of the facts fully supported the defence set up. The court, by its decree, vested the title to the lots in controversy in Ohris-man, and decreed that Chrisman pay to Browning eight hundred dollars, the balance of the purchase money, with interest. Judgment was rendered against Dickerson and Browning for costs.
    White, for appellant.
    I. The court erred in not striking out the amended answer of respondent, because he was not entitled to recover on the face of it. More than twelve months had elapsed after bringing suit before Browning was proposed to be brought in as a party. Nearly two years had transpired since respondent had been notified by Browning that he would not deliver him the deed, by which time Browning had gotten out of reach of the process of the court. No demand for the deed was made and no offer by respondent to either pay Browning the purchase money or secure its payment. This proceeding was irregular, and at any rate Browning could only have been made a party by application by petition to the court for that purpose. (See Practice Act of 1849, art. 3, § 10.) The court erred in awarding an order of publication against Browning ; no affidavit was filed as the statute requires. (See Practice Act of 1849, art. 5, § 8.) The order of publication was also defective, first, as to the number of weeks the publication was to be made, nor does said order state the fact that the “ Boonville Observer” is a newspaper published in this state. (See Practice Act of 1849, art. 5, § 12.) The court erred in going into a trial between appellant and respondent before the expiration of the time set by the court, within which time Browning was required to plead, and in taking proof and tryingdhe cause at a term previous to the term at which final judgment was rendered against Browning. (See Practice Act of 1859, art. 5, § 14.) The court erred iu receiving testimony of common report among the associates of appellant to establish title in respondent, common report being wholly inadmissible to establish title to realty, and parol evidence being only admissible to prove possession and not title. (Smith v. Phillips, 25 Mo. 255; Bompart v. Roderman, 24 Mo. 401.) The court erred in not excluding Gildersleeve’s deposition, because at the time it was taken Browning was not a party, and at the time it was used he was. The court erred in not giving the instructions asked, and the findings of the court were not warranted by the testimony in the cause. The court erred in decreeing title in respondent; the allegations were not sustained by the proof. The remedy should have been in damages. (1 Johns. Ch. 6 ; 25 Mo. 162 ; Phillips v. Thompson, 1 Johns. Ch. 148; Williams v. Robidoux, 11 Mo. 660.) Courts will not decree specific performance of contract unless possession has been given under the contract of sale, and valuable and lasting-improvement made in good faith. (White v. Watkins, 23 Mo. 423 ; Gratiot v. Sigerson, 25 Mo. 63 ; Bean v. Yalle, 2 Mo. 109 ; Roberts on Frauds, 135 ; 2 Story’s Eq. § 762, 766.) Title could not be decreed to respondent unless entire payment of the purchase money had been made'. (Jewett v. Palmer et al., 7 Johns. Ch. 65; Paul v. Fulton, 25 Mo. 162.) The rule is that where both parties claim an equitable title, the one who is prior in time has the better right; but this rule will not apply here. (Boone v. Chiles, 10 Peters, 210.) To make appellant a purchaser with notice, it should have appeared on the trial that he knew when he bought that Browning had conveyed by deed to respondent. (Still v. Paul, 8 Mo. 479.)

      Douglass and Hayden, for respondent.
    I. The case lias not been properly saved. The motion for a review is insufficient. The suit was commenced whilst the practice act of 1849 was in force, and it must be governed by that act. (R. C. T855, p. 1026, § 18; id. 1293, § 44.) The motion for review does not set forth the facts to be found differently, nor the evidence bearing on them. (Prac. Act, 1849, art. 15, § 3 ; Skinner v. Ellington, 15 Mo. 488 ; Gibo-ny v. Bedford & Kitchen, 17 Mo. 56 ; Raymond v. Edgar, 19 Mo. 32; Freeland v. Eldridge, 19 Mo. 325.) The finding of facts is sufficient. (Brown v. Emmerson, 18 Mo. 105 ; Conrad & Bennett v. Belt’s Adm’r, 22 Mo. 116.) But if the case had been properly saved, no errors could appear. The judgment against Browning was properly rendered. (R. C. 1855, p. 1279, § 8.) Dickerson was a purchaser with notice of the prior purchase made by Chrisman. He told E. H. Doggett that Chrisman had purchased, and this was before the 12th day of July, 1855, the day of Dickerson’s purchase, and this was actual notice. (Bartlett v. Glasscock, 4 Mo. 62.) Chrisman was in possession and this was evidence of notice. (Vaughn v. Tracy, 22 Mo. 415; 25 Mo. 318.) It was also the common talk and belief in the community, Dickerson’s place of business, and among his associates. (Benoist v. Darby, 12 Mo. 196 ; Brander v. Ferriday, 16 La. 296.) Dickerson having purchased the property with full knowledge and actual notice of the prior purchase of Chrisman, became a trastee for Chrisman and is bound to convey the legal title to him. (1 Story’s Eq. § 395, 396, 397 ; Murray v. Ballou, 1 Johns. Ch. 566 ; Murray v. Finnister, 2 ib. 185; 15 Ves. 350; Farrar v. Patton, 20 Mo. 84; Trues-dell v. Callaway, 6 Mo. 605.) The instructions asked by plaintiff were properly refused. (Robinson v. Rice, 20 Mo. 230 ; Clouse v. Maguire, 17 Mo. 158 ; Wilburn v. Clark, 22 Mo. 503.) Browning’s declarations and admissions were competent evidence. (Cavin v. Smith, 24 Mo. 221.)
   Scott, Judge,

delivered tlie opinion of the court.

We will notice the points, on which a reversal of the judgment of the court below is sought, in the order in which they are presented in the plaintiff or appellant’s brief.

There is nothing in the objection that the court erred in not striking out the amended answer of the defendant. The answer contained the facts constituting the defence of the respondent, and it was necessary that they should have been in issue in order to determine the controversy between the parties. It is rather singular that a plaintiff should complain of the delay of a defendant.in not disclosing his defence. If he wanted earlier knowledge of it, why did he not bring his suit sooner ?

The second complaint made against the judgment below is that the order of publication against Browning was not published in conformity to law, and consequently that he was not properly before the court. This suit having been begun under the practice act of 1849, that act will determine the course of proceeding to be observed in conducting it. We do not see how Dickerson can complain of the manner in which Browning was made a party to the suit. If Browning has been improperly joined, he may make the objection. There is no judgment against him except for costs, nor was any asked. How, then, can the mere naming him as a party in the proceedings affect Dickerson ? Browning might complain, but, if he is silent and acquiesces, who shall make objections for him ? Dickerson is not damnified by any irregularity in the proceedings against Browning. The judgment against him is just what it would have been had not Browning been named.

Conceding that the evidence of G-ildersleeve was in itself admissible, we do not see on what ground the objection to the deposition can be sustained. The point that the absence of the witness was not accounted for was not made until it it had been read. As objections to the reading of the deposition were made, and as the objection that the absence of the witness had not been accounted for was not among them, tbe court was warranted in regarding that objection as waived. There was nothing in the other objections to the deposition, as they were not read as the admissions of a party, but as the declarations of a vendor in possession of real estate affecting those who subsequently claim under him. This subject will be again adverted to.

The propriety of the admission of the evidence in relation to the notoriety of the contract between Browning and Chris-man is fully sustained by authority. Such evidence was clearly competent to prove notice to Dickerson of the contract. (Benoist v. Darby, 12 Mo. 206 ; 2 Stark. 191; Muller v. Moss, 1 Maul. & Sel. 325.) There was however no necessity for such testimony in the cause, as the fact of notice was clearly established by other evidence.

An objection is made to the admission by the court in evidence of the declarations made by Browning before he conveyed to Dickerson that he had sold the property to Clirisman. The fact of a sale to Clirisman was controverted, and these declarations were given in evidence to show a parol sale in order that the defendant might establish his defence and entitle himself to the relief he sought by his answer. The rule seems well established that the declarations of the grantor, bargainor or vendor of real estate, such declarations being made at any time before the act of granting, bargaining or vending, are admissible against the immediate grantee, bargainee or vendee, and all who claim more remotely under the sanie title. (Cowen & Hill’s Notes, 652.) The case of Davis v. Spooner, 3 Pick. 284, is thus stated in the book just referred to : “ In a writ of entry for White Farm, both parties claimed under a deed from S., the deed by which the demandant claimed being oldest but not recorded. The defendant, however, purchased with actual notice of the first deed. This being shown, and that the grantor had fraudulently obtained and suppressed the first deed — held, that his declarations were admissible to prove its existence and contents, as coming from one under whom the defendant claimed.” In its main features this case is almost parallel with that now under consideration.

The most important question in this case is, whether there was such a contract between Chrisman and Browning as can be specifically enforced, although not reduced to writing. The deed executed by Browning for Chrisman must be laid out of the case, as it does not appear to have been delivered. The want of a delivery rendered it ineffectual for any purpose. There is not any difficulty in the way of enforcing the contract against Dickerson, as the court finds the fact that he had actual notice of the contract, and the evidence fully warrants the finding. The acts that shall be deemed such a part performance of a parol contract for the sale of lands as will take it out of the operation of the statute of frauds are not well defined, and the cases show much contrariety of opinion on the subject. Judge Story says : “A more general ground, and that which ought to be the governing rule in cases of this sort is, that nothing is to be considered as a part performance which does not put the party in a situation, which is a fraud upon him unless the agreement is fully performed. Thus, for instance: if, upon a parol agreement, a man is admitted into possession, he is made a trespasser, and is liable to answer as a trespasser, if there be no agreement valid in law or equity. Now, for the purpose of defending himself against a charge as a trespasser, and a suit to account for the profits in such a case, the evidence of a parol agreement would seem to be admissible for his protection, and if admissible for such a purpose, there seems no reason why it should not be admissible throughout.” (Story’s Eq. § 761.) The instance stated as an application of the rule is so extremely similar to the circumstances of the case before us that we are relieved from the necessity of .seeking further illustrations. If the statute in this instance should interpose an obstacle to the relief sought by the defendant, it would furnish a protection to a great fraud. The defendant was let into possession under a contract on which he had paid a large portion of the purchase money, and is now exposed to an action of ejectment and is forced to defend himself against an account for the mean profits. The house he contracted for was used and intended for a hotel, and with it he purchased the furniture. So he is subjected not only to an action of ejectment, to an account for rents, but a quantity of useless furniture is left on his hands. If the principle above stated has any force, it must reach a case of this kind. If it is true that a statute designed to prevent frauds shall not be made a means of protecting them, the plaintiff must fail in this suit.

This being a trial by the court, there was no necessity for instructions. The practice act of 1849, under which the action was begun, did not require them.

The rule, that a judgment is an entire thing and if reversed as to one must be reversed as to all, is one only applicable to judgments in courts of common law jurisdiction; or, in other words, to judgments at law. The answer of the defendant converted this proceeding, in effect, into a suit in the nature of proceedings in equity. The eighth section of the thirtieth article of the act of 1849 prescribed the mode by which a party against whom a judgment by publication was obtained might be relieved. Dickerson has no right to appear in this court and seek a reversal of the judgment against Browning when he is not affected by it. This court will not suffer one who is beyond its jurisdiction to make objections to the proceedings of our courts, unless he will come in and enter his appearance and thereby place himself in a situation that a personal judgment can be rendered against him. If he is aggrieved, he can only obtain redress in the manner pointed out by the statute. Dickerson can not complain, if he was liable to a judgment for costs, that the judgment was jointly rendered against him and another. That the judgment was rendered against another together with himself does not injure him.

Affirmed;

Judge Richardson concurs. Judge Napton absent.


author: Richardson, Judge,

text:
    Kennett et al., Appellants, v. Plummer et al., Respondents.
    1. Whatever may he the nature of the title acquired hy the state of Missouri by virtue of the act of Congress of June 10, 1852, granting lands in aid of the construction of certain railroads — whether the state acquired the fee simple title to the lands clothed with a political trust for the execution of which the faith of the state was pledged by the acceptance of the grant, or whether the act of Congress created an estate upon condition subsequent —a mere trespasser can not defend against a grantee of the estate by invoking a supposed right of the United States to enter for condition broken.
    2. Until entry by a mortgagee for condition broken, or until foreclosure, the mortgagor is the owner of the mortgaged estate and may lease the same, or otherwise deal with it as owner.

      Appeal from Newton Circuit Court.

    This was an action, under tbe act to prevent certain trespasses (R. C. 1855, p. 1552), to recover damages for an alleged carrying away by defendants of a large amount of lead ore from tbe land of plaintiffs. Tbe land upon which tbe alleged trespasses were committed is section six, township twenty-five, range thirty west, situate in Newton county. Plaintiffs claim said land by virtue of a lease from the Pacific Railroad, dated “June 11, 1857, for a term of ten years. Tbe petition sets forth the title of the plaintiffs as follows : 1st, act of Congress of June 10, 1852, entitled “ An act granting the right of way to the state of Missouri, and a portion of the public lands, to aid in the construction of certain railroads in said state2d, an act of the general assembly of the state of Missouri, approved December 25, 1852, entitled “ An act to accept a grant of land made to the state of Missouri by the Congress of the United States to aid in the construction of certain railroads in this state and to apply a portion thereof to the Pacific Railroad,” (Sess. Acts, 1853, p. 10) ; 3d, an act of Congress of August 3, 1854, entitled “ An act to vest in the several states and territories the title in fee simple of the lands which have been or may be certified to them4th, the approved list of the commissioner of the General Land office; 5th, the lease above mentioned from the Pacific Railroad to plaintiffs. Plaintiffs also alleged the due incorporation of Pacific Railroad; that the requirements of the laws in regard to survey, location of road, selection of lands, <fcc., had been complied with; also, that under the act of December 10, 1855 (Sess. Acts, 1855, Adj. Sess. p. 472), a mortgage had been executed by plaintiffs to the treasurer of the state of Missouri, embracing the land upon which the trespass was committed.
    The defendants demurred to this petition. The court sustained the demurrer.

      Stevenson, for appellants.
    I. Appellants were the legal owners of the land by virtue of their lease, and as such had a right to sue respondents for the trespass complained of. The title of the Pacific Railroad is the title of the appellants, and under that title the Pacific Railroad had a clear right of action. (Tuck. Com. 86, 88 ; Lomax Dig. 332.) A less estate than a fee simple known as a qualified fee carries with it, until the estate is defeated, the same rights and privileges over the estate as if it were a fee simple. (Lomax Dig. 23.) Until the consideration is broken the estate is an estate of freehold. (Tuck. Comm. 89.) If there was any doubt about the title of the railroad to the lands, in controversy, the act of Congress of August 3d, 1854, confirms in the state a fee siniple. The state having granted the lands to the Pacific Railroad on the conditions contained in the act of Congress, the act of August 3,1854, enured to the benefit of Pacific Railroad, the donation by the state to the Pacific Railroad being alone hampered by the original restrictions imposed by Congress. No one but the donor and the privies of the donor can take advantage of a defeasance of the estate; and whether the estate is conditional or not, it is not to be taken advantage of by defendants. (Tuck. Comm. 88, 90; Lomax’s Dig. 333, 363 & 364; 4 Kent, Comm. 131.) The statutory trespass is given to the owner of the land, and it is not essential to aver or prove any thing beyond the ownership of the land. The acts of Congress and the legislature of Missouri only direct the manner in which the lands may be sold, and in nowise limit tile rights of the Pacific Railroad to the land granted so as in anywise to debar the Pacific Railroad. from all rights incident to the estate granted. The execution of the mortgage does not divest the mortgagor of his ownership of the property until after forfeiture and foreclosure. (1 Hilliard on Mort. 137-9.) A mortgagor may make a lease and it is good against all the world but the mortgagee. (Lomax Dig. p. 432; Tuck. Com. 107.) The intestate of a mortgagee is only in the nature of a security; the mortgagor is the true owner. (Lomax Dig. 432; Tuck. Com. 97, 98; Hilliard on Mortg. 140, § 12.) A mortgagor or his assignee can not be treated as a trespasser by the mortgagee; much more then is a stranger not to impeach his right. (Lomax Dig. 431, 432; Tuck. Com. 107.) A mortgagor can sell, lease and encumber the mortgaged estate at any time before forfeiture and foreclosure. The only effect of the mortgage is that it is an incumbrance, and the title conveyed is a complete investiture on the grantee, lessee, &c., subject to the mortgage debt. (Lomax Dig. 431; Tuck. Com. 107.)

      Hendrick and Garter, for respondent.
    I. The lease, of Blow & Kennett was not only unauthorized but in violation of the terms of the grant, and conferred no right upon Blow <fe Kennett whatever, especially as the object and purpose of the lease were to commit an authorized trespass to the prejudice of the reversionary interest of the United States. The lease is void because for a longer time than the Pacific Railroad was given to complete said road by act of Congress of June 10,1852. (Kennedy & Moreland v. The heirs of McCarteny, 4 Porter, 141.) The petition does not state facts sufficient to constitute a cause of action, because it shows no right, title or interest of plaintiffs to the land; nor does it show that plaintiff ever had possession of the land or any right to the possession thereof; nor does it show that the mineral was the property of plaintiffs, or that it was dug tip out of tlie land in question since the date of the lease. It does not appear that the mineral was not taken up out of the land long before the date of the lease. Nothing appears in the petition to show that the mineral was dug out of the land in question by defendants, or that plaintiffs had any interest in the mineral or possession of it.
   Richardson, Judge,

delivered the opinion of the cour-t.

The main objection taken to the plaintiffs’ right of recovery is, that the lease under which they claim is void ; first, because it is in violation of the condition on which the grant of the lands was made by Congress; and, secondly, because the mortgage to the treasurer of the state, which had been previously executed by the lessor, was still outstanding. Whatever title the state of Missouri acquired by the act of Congress of the 10th of June, 1852, was vested in the Pacific Railroad by the act of the general assembly approved December 25, 1852 ; and whether the state acquired the fee simple title to the lands, clothed with a trust for. the execution of which the public faith was pledged by accepting the grant, or whether the act of Congress granted an estate upon conditions subsequent, is immaterial to the decision of this case. Whenever the United States interpose for the purpose of having a trust executed, or enter for a broken condition, it will be time then to determine the legal character and conditions of the grant; but a mere trespasser can not protect himself under any right which the United States might assert; (Cooper v. Roberts, 18 How. 181;) and, as conditions are only reserved for the benefit of the grantor, a stranger can not take advantage of the broach of them. (4 Kent, 127.)

The modern doctrine is well established that a mortgage is but a security for the payment of the debt or the discharge of the engagement for which it was originally given, and until the mortgagee enters for breach of the condition, and in many respects until final foreclosure of the mortgage, the mortgagor continues the owner of the estate, and has a right to lease, sell, and in every respect to deal with the mortgaged premises as owner, so long as he is permitted to remain in possession. (4 Kent, 157.) Of course he can not impair the rights of the mortgagee, and every person taking under him will hold subject to the mortgage and to all the rights of the mortgagee. It does not appear that the mortgagee has ever objected to the lease as interfering with his rights or as impairing the security the mortgage was intended to give, or that there has been any forfeiture of the conditions ; and a stranger surely should not be permitted to volunteer such objections, which are strictly technical, to avoid liability for unauthorized trespasses.

The demurrer was improperly sustained, and the judgment will be reversed and the cause remand;

Judge Scott concurring. Judge Nap ton absent.


author: KiohaRDSON, Judge,

text:
    Brewster, Respondent, v. Link, Appellant.
    1. In actions founded on the “ act to prevent certain trespasses,” (R. C. 1845, p. 1068,) the jury can assess single damages only; the jury should assess the value of the property taken or injured; the court will then, if a proper case "be made out, give judgment for treble the amount so assessed.
    2. The question of “probable cause” is in such cases to be determined by the court.
    3. Where the petition contains counts under the statute and at common law, and the jury render a general verdict, the court is not authorized to treble the damages.

      Appeal from St. Louis Land Court.

      T. Polk, for appellant.
    I. The jury could only assess single damages. When damages are to be trebled, it must be done by the court, not by the jury. (1 Oow. 584, 160 ; 8 Johns. 844 ; 4 Mo. 564; 7 Mo. 149; 8 Mo. 350; 12 Mo. 511; 1 Mo. 280.) The fourth instruction authorizes the jury to assess treble damages against the defendant. This was error; nor is it any the less error that the defendant prayed a similar instruction, which was also given by the court. The court having given the fourth instruction against the objection of the defendant, he might well ask an instruction putting the same erroneous legal proposition in a shape less prejudicial to his case. The instruction is erroneous for other reasons. The damages were flagrantly excessive.

      Bland 8f Coleman, for respondent.
    I. The defendant can not successfully complain of the instruction given on the prayer of the plaintiff. The defendant asked and the court gave an instruction asserting the same proposition asserted in the instruction alleged to be erroneous. The defendant can not allege as error that which was done at his own request and by his own instructions.
    II. There is nothing in the record to show that the jury gave a verdict for any thing more than single damages. (George v. Eook, 4 Mo. 149.) The verdict is that the jury “ And for the plaintiff and assess his damages at the sum of 1100.” (17 Mo. 465 ; Labeaume v. Woolfolk, 18 Mo. 514; 24 Mo. 492 ; 26 Mo. 143.)
   KiohaRDSON, Judge,

delivered the opinion of the court.

This was an action of trespass alleged to have been committed by the defendant on land that belonged to the plaintiff. The petition contains three counts — two of which were intended to be framed on the statute of 1845 to prevent trespasses, and the other is a common law count for entering the plaintiff’s close and cutting and carrying away timber, and removing wood and rails. The jury found a general verdict for the plaintiff and assessed his damages at one hundred dollars. The court gave the following instruction at the plaintiff’s instance: “ If the jury shall believe from the evidence in the case that the fence in question was erected by the plaintiff, and that at the time of the erection thereof he was in the possession of the land upon which it was erected, and bad been in such possession for a period of years prior thereto, and that the defendant removed the fence, and that such fence was not upon the land of the defendant, then the defendant is entitled to treble the amount of damages sustained in consequence of such removal, unless the jury shall believe that the defendant had probable cause to believe that the land on which the fence stood was his own.”

The practice is well established that in actions founded on the statute, entitled “ An act to prevent certain trespasses,” the jury can only assess single damages; and that when a proper case is made out for trebling the damages, it can only be done by the court; (Lowe & Forsythe, v. Harrison, 8 Mo. 350 ; Walther v. Warner, 26 Mo. 148;) and the court is not authorized to treble the damages assessed by the jury in a general verdict, in a case where the petition contains counts under the statute and at common law; (Lowe & Forsythe v. Harrison, 8 Mo. 350 ;) or the petition goes for a wrongful entry and other damages, and the verdict omits to find the value of the thing injured, destroyed or carried away. (Ewing v. Leaton, 17 Mo. 465 ; Labeaume v. Woolfolk, 18 Mo. 514 ; Herron v. Hornback, 24 Mo. 492.) The plaintiff does not defend the instruction, but contends that it did not prejudice the defendant, as there is nothing in the record to show that the jury gave any thing more than single damages. As the jury can lawfully only assess single damages, it will generally be presumed that they gave nothing more, (Cooper v. Martin, 6 Mo. 634,) but this presumption will not be indulged when the jury is expressly told by the court that they may give treble the amount of damages sustained by the plaintiff.

After the instructions asked by the plaintiff had been given against the defendant’s objections, he asked the court to instruct the jury to the effect that the plaintiff could not recover in any event more than single damages, if they should find that the defendant had probable cause to believe that the land on which the trespass was alleged to have been committed, or the things injured or destroyed, taken or carried therefrom, were bis own. It is insisted that as the defendant, in the instruction which he asked and the court gave, conceded that it was the province of the jury, in a given, state of facts, to treble the damages, that he can not now complain of the instruction given at the plaintiff’s instance. If the defendant had asked the same declaration of law contained in the plaintiff’s instruction, and no more, it might be insisted that he had waived his objection to that instruction ; but as he was compelled to take the law as the court chose to give it, he did not lose the right to insist on his exceptions in this court by seeking to break the force of an erroneous proposition in a form less hurtful to his case.

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


author:
RichaRDSON, Judge,
      Scott, Judge,

text:
    Bradley, Appellant, v. Holloway, Respondent.
    1. Where, in St. Louis county, a levy of an execution or attachment is made upon personal property, a person other than the defendant in such execution or attachment, claiming the property so levied on, has a choice of remedies. He may make claim to the property in accordance with the third section of the local act of March 3, 1855, (Sess. Acts, 1855, p. 464); in which case, if the sheriff or other officer demands and receives a sufficient indemnification bond from the plaintiff in the execution or attachment, the claimant will have no remedy against the officer but must resort to a suit on the indemnification bond. Should the claimant, however, not make claim in the manner provided in said section, he may maintain an action against the sheriff or other officer for the possession of the property levied on.
    2. A sheriff or other officer levying an execution or attachment is not authorized, under said act of March 3, 1855, to demand an indemnification bond of the plaintiff in the execution or attachment unless claim is made to the property levied on substantially as provided in the third section of said act.

      Appeal from St. Louis Law Commissioner’s ' Court.

      Dedman, for appellant.
    I. The act of March 3,1855, is merely cumulative in its provisions and not obligatory. Parties claiming personal property seized under execution or attachment are not obliged to enforce their claims under it.

      Bay, for respondent.
    I. Bradley omitted to set forth his claim in writing as required by the third section of the act of March 3,1855.
   RichaRDSON, Judge,

delivered the opinion of the court.

The plaintiff brought an action of replevin against the defendant for a wagon and yoke of oxen. The cause was tried without a jury; and it appears, from the facts found by the court, that the defendant, as constable of Merrimac township, levied on the property in dispute whilst in the plaintiff’s possession, by virtue of an execution issued by a justice of the peace of that township agninst Benjamin Haley. The court further found that the property did not at any time belong to Haley, but that it belonged to the plaintiff, which he demanded of the defendant before the commencement of the suit, though not in the manner indicated by the third section of the act entitled “ An act concerning the duties of sheriff and marshal in the county of St. Louis in relation to the levy and sale of such property under execution or attachment as may be claimed by third persons,” approved March 8,1855. (Sess. Acts, 1855, p. 464.) On these facts judgment was rendered for the defendant, and the plaintiff was ordered to return the property or pay one hundred dollars, the assessed value thereof, at the election of the defendant.

The only question in the case arises on the construction of the local act referred to. The obvious purpose of the act was to relieve to some extent the ministerial officers named in it from the embarrassing duty of ascertaining at their peril, in all cases, whether property levied on by them belongs to the defendant in the writ or not. By the common law, the sheriff is bound, when he receives an execution, to make reasonable inquiry to ascertain if the defendant has any property in his county subject to levy, and if he finds the defendant in the possession of any, whether it is claimed by a third person or not, he will be liable to the plaintiff in an action for a false return if he fails to levy, and the burden of proof will fall on him to show that such property was not in fact subject to the execution. If, on the other hand, he makes a levy, and the goods do not belong to the defendant, he is liable to the owner in an action of trespass. Though the owner may assert his title in the most solemn form, and exhibit the proof of it to the officer, the latter can not require indemnity from the plaintiff, who may fold his arms and say to the sheriff, do your duty at your peril; and in this dilemma, liable on one hand to an action for a false return, and on the other to an action of trespass, the sheriff must judge for himself both the law and the facts.

The statute under consideration relieves the office of sheriff of some of its responsibility, and provides that when personal property is seized by virtue of an execution or attachment, which is claimed by any person other than the defendant in such execution or attachment, and the claimant shall set forth his claim in its particulars, verified by affidavit as prescribed by the third section, the officer may release his levy and refuse to execute the writ, unless the plaintiff gives a bond of indemnity with sufficient security conditioned as directed by the second section. The sheriff has no right to surrender property levied on, or to require a bond from the plaintiff, on the mere claim of a stranger; bxxt when the particulars of the claim are stated and sworn to, the officer may say to the plaintiff that a claim has been made to the property by a third person in a manner that entitles it to respect, and that he will refxxse to execute the writ unless a bond is given as provided by law. As the plaintiff is not required to give a bond unless a claim is made substantially in a certain manner, neither is the owner compelled to prefer his claim in the mode indicated by the third section ; but if he does, by that act alone he makes his election to give xxp any right of action against the sheriff, and to seek his remedy on the bond. If a bond is not given after a claim is properly made, tbe officer may release bis levy ; but if a sufficient bond is taken, tbe officer is no longer liable, and tbe bond is interposed between bim and tbe claimant. In our opinion, tliis is tbe spirit and object of the act; and whilst this construction gives the act some practical and useful effect, it restrains it from working tbe gross injustice and mischief which would result from tbe view taken by tbe law commissioner.

By tbe first section it is declared that when any sheriff, &c., shall levy on any personal property, and any person other than tbe defendant in the writ shall claim the same, the officer shall demand a bond of indemnity of the plaintiff and may refuse to execute the writ until such bond be given. The officer can not release his levy or require a bond unless the property is claimed, and the third section defines the kind of claim meant by the first section. It says, “ no claim made to any personal property levied on as aforesaid shall be valid or lawful as against such officer, unless such claimant or his agent shall set forth his claim in writing,” &c. The claim here spoken of refers to the claim mentioned in the first section, and the third section may be read thus : “ No such claim made to any personal property levied on as aforesaid shall be valid or lawful as against said officer,” that is, shall be lawful or sufficient to authorize the officer to release his levy, or to require a bond of the plaintiff, “ unless the claimant shall set forth his claim in writing, verified by the affidavit,” &c.

It is contended that the officer is not liable in any case unless the claimant shall set forth his claim as directed by tlié third section, and that, even though the claim is made in that mode, no action can be maintained against him if he takes a sufficient bond from the plaintiff; so that, no matter where the property is seized or sold, or how the claim is made, or whether made at all, the officer is not liable. Such a construction would deny any redress to a person whose property may be levied on and sold without his knowledge to pay another’s debt, and would compel the owner of a family picture, or other property more prized than money, to see it sold and delivered to a stranger and then to take the chances of recovering it, or its money value a jury may set upon it. We can not believe that the legislature, out of tenderness to officers, whose fees compensate them for the risks they take, intended to sanction such a sacrifice of the rights of other persons. If the claimant is willing to accept the value of his property in damages, and to discharge the sheriff from liability, he may present his claim in a manner which will justify the officer in abandoning his levy, unless a sufficient bond is executed by the plaintiff; and when a bond is thus given at his instance, he thereby releases the sheriff and must look to the purchaser or the plaintiff and his sureties on the bond. But we think that the act does not apply to a person who makes no claim whatever, and that there is no legal difference between making no claim and making a claim not in conformity to the statute.

This case illustrates the injustice that would be inflicted by yielding to the construction contended for by the defendant. The court found that the property in controversy belonged to the plaintiff; that the defendant in the execution had no interest in it, but that the plaintiff could not recover, and must return his own property to the constable or pay one hundred dollars at the election of the defendant, because, though he had demanded his property, he had omitted to do it in the set words of the statute. When the money is paid to the defendant, he may apply it to the execution, and the owner of the property unjustly taken to pay another’s debt will have no cause of action, except against the plaintiff who may have directed the trespass, and that remedy will be fruitless if the party is insolvent. Such a penalty ought not to be imposed unless the plain language of the law demands it.

On the facts found the plaintiff was entitled to recover, and the judgment of the law commissioner will be reversed and a judgment entered in this court in favor of the plaintiff ;

Judge Napton concurring.

Scott, Judge,

dissenting. We must suppose the act of March 8d, 1855, entitled “ An act concerning the duties of sheriff and marshal in the county of St. Louis, in relation to the levy and sale of such property under execution or attachment as may be claimed by third persons,” (Sess. Acts, 1855, p. 464,) was intended for some purpose. With the policy or impolicy of the law we have nothing to do. When the will of the legislature is clearly expressed by a constitutional law, we have but to carry that will into execution. The constitution never designed that the judiciary should sit in judgment upon the wisdom or policy of the acts of the legislative department. It is clear from the terms of the act that it had for its object the protection of the officers therein named from the claims of persons asserting a right to goods taken by virtue of legal process. As the law was designed to protect the officers against the claimants of property seized under process, it could never have contemplated, that, whether the officer should be protected or not would be entirely at the discretion of a claimant. We must not suppose that the general assembly, whilst intending to protect an officer against the claim of a person interfering with the execution of the process of the law, provided that whether the officer should be protected or not would depend entirely on the will of the person interfering with him. Under the construction given, if the claimant makes a demand for the property in a way altogether irregular, or does not make it at all, he will have his action against the officer, thus making a law that was intended to protect one against another extend the protection only at the will of him against whose acts the protection was designed.

The action of replevin is not adapted to this 'end. If property may be replevied while in the sheriff’s hands, then such replevy will be a valid return to the writ. Who then is to defend the action of replevin prosecuted against the sheriff? Shall he at his own costs be required to employ counsel and defend the action for the benefit of the plaintiff in the execution ? In some cases the plaintiff may do this; in others he will not, and thus, by a hardy act on the part of a bold claimant, the claims of creditors may be defeated. With the construction given the act, it would have been a great deal better if it had never been passed. As to the protection from sale of things enhanced in value to the owner by the preiium affectionis, our law has always afforded a means by which an officer could be enjoined and restrained from the sale of such articles without the aid of a writ of replevin.

In my opinion, if the claimant of property has notice of the seizure of it by the officer, and fails to make his claim to it in the manner pointed out by the act, his recourse against the officer is gone, and he is confined to bring his action against the plaintiff in the execution when he has made himself liable, or to the purchaser of the property at the sale made by the officer; and there is not the least hardship in this, as by complying with the directions of the law the claimant might have had ample security for the property claimed by him. In my opinion, the judgment should be affirmed.


author: RichaRdsoN, Judge,

text:
    Stillwell, Defendant in Error, v. Temple, Plaintiff in Error.
    1. Relief against penalties will not be afforded at the instance of the persons in whose behalf the penalties are stipulated for.
    2. A. leased a dwelling-house to B. for one year. A. stipulated in the contract of lease that he would at any time during the year sell and convey the premises to B. on certain specified terms. B. covenanted that he would during the term demand a conveyance and comply with the conditions of sale. It was further agreed as follows : “ Upon the completion of said sale and purchase as and in the manner aforesaid, said lease and rent shall cease; and to secure the faithful payment of said rent and making of said purchase as and in the manner, aforesaid, the said B., has assigned unto said A. his right and title to three hundred shares of the capital stock of the St. B. & B. Mining Company, now owned by him, which shall become the absolute property of said A. without redemption, and as and for liquidated damages and not as a penalty, in case said B. should fail faithfully to pay said rent and make said purchase when and in the manner aforesaid; hut upon such faithful performance the stock shall revert and he reassigned to him.” B. failed to pay the rent or to make the purchase as agreed. A. brought suit against B. to recover one year’s rent of the premises and damages for the failure of B. to purchase the premises; he did not offer to return the stock mentioned in the contract or to give credit for its value. Held, that A. was not entitled to recover; that the stipulation with respect to stock, whether regarded as a penalty or as stipulated damages, was a har to such recovery.

      Error to St. Louis Land Court.

    The court, at tbe instance of the plaintiff, gave the following instructions to the jury : “ 1. If the defendant executed the' lease and agreement read in evidence, and if the defendant failed to purchase the premises described in said agreement according to the terms and conditions thereof, then the plaintiff is entitled to recover for one year’s rent of said premises according to the price of said rent named in said lease, and in addition thereto such damages as the jury shall believe the plaintiff has sustained by reason of the defendant’s failure to purchase said premises in conformity with the terms of said agreement. 2. The measure of damages for the failure on the part of defendant to purchase the property described in the lease and agreement read in evidence is the actual damage the plaintiff has sustained by reason of such failure.”
    The court refused the following instructions asked by the defendant: “ If the jury believe from the evidence that, at the time of the execution of the agreement sued on, the defendant assigned to plaintiff defendant’s right, title and interest in three hundred shares of the capital stock of the St. Louis & Birmingham Iron Mining Company, and that it was then agreed that said stock so assigned should become the absolute property of plaintiff without redemption, and as for liquidated damages and not as a penalty in case defendant should fail to pay the rent and make the purchase as provided in said agreement; and if they further believe from the evidence that the defendant paid the rent for the first year, and that by agreement between the parties the terms of the original agreement were continued in force for one year longer, to-wit, until April, 1855, and the plaintiff continued to hold said stock upon the terms provided in said original agreement as thus extended, they must find for the defendant, unless they further believe from the evidence that plaintiff, before the commencement of this suit, reassigned said stock to defendant, or offered so to do, and that defendant refused to receive the same. 2. They are further instructed that .the law will not permit plaintiff to retain and hold the stock described in said agreement as a penalty or forfeiture, and also to recover in this suit for the breaches of the covenants in said agreement.”
    The defendant offered to prove that the stock spoken of in the agreement “ was of the par value of fifty dollars per share.” The court, on the motion of plaintiff, refused to permit the testimony to be introduced.

      Hill, Glover Sf Hill, for plaintiff in error.
    I. The court erred in excluding evidence as to the par value of the stock.
    II. The court érred in giving the instructions asked for by plaintiff and in refusing those asked for by defendant. The language of the agreement is too strong to leave the least doubt of the intention of the parties to liquidate the damages.

      Krum 8f Harding, for defendant in error.
    I. The testimony offered to prove the par value of the stock was properly excluded. The value of the stock was not an issue in the case; and if the plaintiff was not entitled to hold the stock, no foundation was laid by the answer or the evidence to charge him with its value by way of set-off or otherwise. But the plaintiff, by the terms of the agreement, had a right to hold the stock.
    II. The proposition embodied in the refused instructions of the defendant is not law. It is tantamount to saying as matter of law that the plaintiff had no right to claim either rent or damages of the defendant, notwithstanding his covenants. It is manifest that this is not according to either the letter or spirit of the agreement. Reassigning the stock would make no difference in this result, unless such reassignment was by agreement of the parties to be a cancellation of that part of the agreement which relates to the stock. The rent was definitely fixed by the agreement. The agreement with respect to the stock relates to the damages in case of a failure to -purchase. If this clause is to have any effect, it must be construed as a penalty. (See 5 Sandf. 192; 18 Barb. 886 ; 9 Jones, N. C., 15 ; 11 Texas, 278.) The transfer of the stock was merely by way of security. The damages not liquidated. No sum was fixed. Assuming the par value of the stock as fixed, it must be regarded as a-penalty. Suppose the defendant had performed his covenant to purchase but had failed to pay rent; wouldit.be said that the rent was paid by the transfer of the stock ? The case does not come within the rules which govern questions of liquidated damages.
   RichaRdsoN, Judge,

delivered the opinion of the court.

The parties to this action entered into a written contract by which the plaintiff agreed to lease to the defendant for the term of one year a dwelling-house in the city of St. Louis, and the defendant agreed to pay therefor, in monthly instalments, seven hundred and thirty-five dollars. By the same instrument, which was under seal, the plaintiff stipulated that he would at any time during the year sell and convey the premises to the defendant at the price and on the terms therein particularly set forth, and the defendant covenanted that he would during the term demand a conveyance and comply with the conditions of the sale. It was further agreed “ that upon the completion of said sale and purchase as and in the manner aforesaid, said lease and rent shall cease ; and, to secure the faithful payment of said rent and making of said purchase as and in the manner aforesaid, the said Temple has assigned unto said Stillwell his right and title to three hundred shares of the capital stock of the St. Louis & Birmingham Mining Company now owned by him, which shall become the absolute property of said Stillwell without redemption, and as and for liquidated damages and not as penalty, in case said Temple should fail faithfully to pay said rent and make said purchase when and in the manner aforesaid; but upon such faithful performance the stock shall revert and be reassigned to him.” At the end of the year, the contract in all its provisions was renewed and extended for another year. The defendant paid the rent for the first year, but paid nothing for the second year, and did not complete the purchase of the property, though the plaintiff was ready and willing and offered to perform the agreement on his part. Without offering to return the stock mentioned in the contract or to give credit for its value, the plaintiff brought an action on the defendant’s broken covenants, in which he sought to recover one year’s rent and damages for the failure of the defendant to purchase the premises. After the commencement of the suit, but before the trial, the plaintiff sold the property, and it will be observed that the petition does not ask to have the contract of purchase specifically enforced, which the plaintiff had rendered impossible, but the action sounds entirely in damages.

The defendant contends that the parties to the contract mutually agreed that in the event of a breach of its provisions, the stock assigned and delivered to the plaintiff should cover the damages, which might be incurred, as liquidated or settled damages, without reference to the actual injury sustained. The plaintiff, on the other hand, insists that the stock or its value should be considered only as penalty, which was intended as a security for the actual damages that might accrue by the failure of the defendant to perform his contract.

The courts have indicated a strong inclination towards that construction which excludes the idea of liquidated damages and which limits a recovery to compensation for the real injury ; but the rule is almost invariably invoked in favor of the party who is bound for the penalty, and it is seldom that a party who has exacted a penalty is heard to ask to be relieved from it. If the defendant was here seeking to be relieved of a forfeiture, and to redeem the stock on condition of paying tlie damages which the plaintiff had suffered by a breach of his covenants, it would become material to determine whether the stock should be treated as liquidated damages or as a penalty. But that question, in our opinion, is immaterial to the decision of this case, for, no matter how it might be determined, the plaintiff is not entitled to recover. If the parties at the time of making their agreement, in order to avoid any future dispute as to the amount of damages which might result from a violation of the contract, agreed upon a definite sum represented by the stock, the plaintiff must look to the stock, as he had agreed to do, as a complete and adjusted indemnity; and if, on the contrary, the construction contended for by the plaintiff is maintained, and it is held that the stipulated amount is to be regarded, as a penalty, then it is not perceived on what principle he can ask to be relieved from a penalty he exacted himself, and be permitted to recover beyond the amount of it. Suppose that, instead of the stock of the mining company, bank stock worth a premium had been deposited to cover the breaches in advance, or rather that fifteen hundred dollars in money had been given to the plaintiff, with the express agreement that he should keep it as his own and as a full compensation for any damage he might suffer by the failure of the defendant to comply with the agreement; would it be contended that he had a right to hold on to the money and recover what he could besides ? Could he be heard to complain that he was not fully compensated? In the case supposed the deposit would be regarded as the maximum of the defendant’s liability, and though he might be relieved from a forfeiture of the whole sum on paying the actual damages occasioned by his default, the plaintiff would demand nothing beyond it. The defendant might insist that he should not lose all without reference to the extent of the injury the party had sustained; but as a penalty is generally fixed at a sum large enough to cover any probable liability that may be incurred, the plaintiff would not be allowed to recover beyond it. There can be no reason, if a person proposes to make a purchase at a future day, why he can not deposit stock, or any other property, with the stipulation that in the event of being disappointed in procuring means to complete a purchase, he shall only forfeit the deposit. He may be willing to lose that much for the chance of making a bargain, but unwilling or afraid to run the risk of being ruined if he should fail to comply with the terms of a sale.

The plaintiff insists that the clause of the contract under consideration relates only to the damages that might be incurred by the failure of the defendant to purchase the property. As any arrears of-rent could easily be computed, there was little reason for securing it by a penalty, or liquidating -the damages that might result from the nonpayment of it; but the parties chose to contract otherwise, and on turning to' the clause, it will be seen that the obligation to pay rent is indissolubly connected with the agreement to purchase ; and the plaintiff’s construction can not be maintained without doing violence to his language and wresting words from their context.

Judge Scott concurring, the judgment will 'be reversed.