text:
    Dowling & wife, Respondents, v. Todd, Appellant.

    1. No action at law can be maintained by a parent for the possession of bis child; if the child be unlawfully restrained of his liberty a writ of habeas corpus should be resorted to.

      Appeal from Weston Coivrt of Common Pleas.

    This action was commenced January 26, 1853, in the Platte circuit court. It was removed by change of venue to Weston court of common pleas. The plaintiffs, Timothy Rowling and Martha Dowling his wife, allege in their petition that in August, 1852, the defendant, William Todd, stimulated by fanaticism, seduced from the possession and control of plaintiffs a child, a son aged thirteen years, in May, 1852, named John Saunders, the child of said Martha Dow-ling by her former husband; that plaintiffs have ever since tried to get possession of said child, but have been prevented by the machinations of defendant; that defendant, in December, 1852, without the consent or knowledge of plaintiffs, “ procured the judge of the probate court of this [Platte] county to violate the law by making an order appointing defendant guardian of said childthat the services of said child have been worth since he has been under defendant’s control, seven dollars per month. “ Plaintiffs therefore ask the court to vacate, annul, and forever set aside said order of the judge of said probate court; and they further ask judgment that the defendant return said child to plaintiffs ; and also judgment for the worth of the services of said child from the first day of August last,” &c.
    The court made the following finding of the facts: “ That the plaintiff Martha Dowling is the mother of the said John Saunders mentioned in the petition — his father being dead; that there was no legal adjudication as to her competency or fitness for the duties of guardian of the said John Saunders ; that said Martha Dowling had no notice of the appointment of the said defendant as guardian of the said John Saunders by the probate court; and the court also finds from the evidence that said Martha Dowling is competent and fit for the duties of guardian of the said John Saunders ; and that his age is under twenty-one years. Upon which facts so found as aforesaid the court declares the law to be, that the mother, after the death of the father, is entitled to the custody and control of her child until it is twenty-one years of age; and that the appointment of said defendant as guardian of said John Saunders, without notice to his mother, and without inquiring as to her competency or fitness, is null and void. It is therefore ordered and adjudged by the court, that said order in said petition mentioned appointing said defendant guardian of said John Saunders be set aside as null and void; and that said defendant permit said mother to take and exercise control over said John Saunders.”
    -, for appellant. It was contended in a written brief filed at a former term bj Judge Napton (now judge of supreme court) that the circuit court had no power or jurisdiction, in a collateral proceeding, to annul or vacate an adjudication in the probate court; that the appointment of defendant as guardian was valid until set aside by some proceeding recognized by the law; that the superintending control of the circuit court can pot bo assumed in a mere collateral proceeding. The finding of the court was simply that the mother was competent and fit, although, for aught that appears, her husband may have been the most unsuitable person in the world. The finding of the court is not a finding of facts and of material facts, but an abstract declaration of law that the mother was natural guardian when the father was dead ; and this is not the law, when the second marriage has taken place, so far as property of the child is concerned. The remainder of the finding is that the adjudication of the probate court was not valid. This was a question of law. Even on the question of notice there is no finding that the plaintiff Dowling, the husband, did not have notice, but only that his wife had not. The court seems to have thought that the first section of our act concerning guardians made it the imperative duty of the court, under all circumstances, to suffer the natural guardianship of the mother to continue till twenty-one, although she may have married a man totally unfit for such duties. The court undertakes to decide that the probate court had never considered the fitness of Mrs. Dowling to continue in the guardianship of her son, because that court found Mr. D. unfit and not her in so many words. I hold that this question was necessarily passed upon by the probate court when they permitted the minor, who was over fifteen, to select his grandfather for his guardian.
   Scott, Judge,

delivered the opinion of the court.

There is nothing in the finding of the court which warrants the judgment which was rendered in the cause. This is a very irregular proceeding, and the court wholly mistook its powers and duties in the trial of the action. The only matter which gave any ground for a suit against the defendant in the petition mentioned was the depriving the parents of the services of their child. Yet, in relation to this subject, there is no fact whatever stated in the finding; and thus all foundation for a judgment against the defendant is taken away.

The mother should not have been deprived of the guardianship of her child without notice of the proceedings against her. But if this want of notice rendered the order of the court void, no original suit could be brought to set it aside. It might have been appealed from; or if, as the court declared, the order was void, then all courts would have so regarded it in any proceeding in which it might have been. introduced; and the party in that manner would have obtained every purpose which was contemplated by this singular suit.

No action could be brought for the child. A parent has no property in the person of his child. If he is deprived of his services by another he may sue and recover the value of his services. If the child is taken and held by another unlawfully or illegally restrained of his liberty, a writ of habeas corpus will restore him to his liberty. Courts of equity sometimes on- the filing of a bill will interpose and dispose of the guardianship of a ward of the court.

Judge Richardson concurring, the judgment will be reversed; Judge Napton not sitting.


source: Caselaw Access Project

author: Napton, Judge,

license: Public Domain

text:
    Binion, Appellant, v. Browning, Respondent.
    1. A. borrowed of B. $120 to enable him to enter a tract of land and was to have the money for a year by giving a mortgage upon the land when entered ; the land was entered but the mortgage was not given. Held, that B. might maintain an action against A. within the year for the money so loaned. The agreement to give a mortgage being within the statute of frauds, the promise to wait a year for the money was therefore without consideration.

      Appeal from, Barry Circuit Court.

    Wright, for appellant.
    I. If tlie plaintiff agreed to wait a year for the repayment of the money loaned, it was evidently upon the condition that the payment should be secured by mortgage upon the land. The court was of opinion that as there was no expressed time proved when tire mortgage should be executed, therefore defendant had the entire year in which to do it. This is not law. The law implied that it should be done in a reasonable time. Plaintiff having waited for ten months he then rightly instituted suit.
    II. The court erred in refusing to permit plaintiff to take a nonsuit; the cause had not been finally submitted to the court.
   Napton, Judge,

delivered the opinion of the court.

The defendant in this case, in the early part of September, 1854, borrowed of the plaintiff one hundred and twenty dollars to enable him to enter a tract of land, and was to have the money for twelve months, by giving a mortgage, upon the land when entered. There was proof that the land was entered and that the mortgage was not given when this suit was instituted, which was in August, 1855. Upon these facts the court declared the law to be for the defendant, and judgment was entered accordingly.

We think the plaintiff was entitled to his judgment. The contract for the mortgage was within the statute of frauds, and the promise of the plaintiff to wait twelve months was therefore without consideration. In McGowan v. West, 7 Mo. 569, it was held, that, where a note was given in consideration of a parol contract to convey land, in a suit upon such note the defendant could not plead in bar that the consideration was the parol contract, because it was at the option of the plaintiff to insist on the statute or not, and his suit upon the note might be constituted as a disclaimer of- the protection of the statute, so far as be was concerned. If therefore the plaintiff was not in fault, the defendant could not in this way rescind the contract. That case was not like this. Here the mutual promises form the consideration of the agreement. The plaintiff sues for his money, and the defendant insists on the promise of the plaintiff to wait twelve months, a promise manifestly given on consideration of the verbal promise of the defendant to secure the money by a mortgage. Apart from the inability of the plaintiff to enforce this promise, the time for its effectual performance had passed when ten or eleven months had elapsed after the entry of the land, and when the entire object of the conveyance as a security may have been defeated. The case of Barnes and others v. Wise, 3 Mon. 170, cited in the opinion of McGowan v. West, is an authority to show that under circumstances like the present the statute of frauds is available to the plaintiff and that his money was due immediately. The plaintiff did not repudiate the contract, but the defendant has. The fact that no specific day was fixed for making the mortgage is immaterial. As security was the object of the plaintiff and the consideration for his agreement to give time, it was the obvious meaning of both parties that the mortgage should be given when the land was purchased. The judgment of the circuit court will be reversed and a judgment will be entered here for the debt and interest.

The other judges concur.


author: Richardson, Judge,

text:
    Wolcott, Plaintiff in Error, v. Lawrence County, Defendant in Error.
    1. In erecting county buildings the county courts must strictly pursue the provisions of the act concerning county buildings. (R. C. 1845, p. 286; R. C. 1855, p. 498.)
    2. No recovery can be had against a county on a quantum meruit for erecting a court-house for the county; a recovery, if had at all, must be had upon a special contract entered into in conformity to the provisions of the act providing for erecting county buildings. (R. C. 1845, p. 286.)

      Error to Lawrence Circuit Cowrt.

    The error complained of in this case is the sustaining of a demurrer to the following petition: “ Plaintiff states that said county of Lawrence owes him the sum of $1883.25, the balance due him for building a court-house on the public square in the town of Mount Yernon, in said county of Lawrence, the permanent seat of justice of said county, and furnishing the materials for the building said house; that he built said house under the direction and supervising control of Samuel M. Anderson, superintendent, and of the county court of said county; and at the May term of said county court, he delivered said house, fully completed, to said county court for the use of said county, at the special request of said county, who then and there promised to pay plaintiff what it was reasonably worth to furnish the materials and build said house, whereby the said county became liable to plaintiff to pay him what it was reasonably worth to furnish the materials and build said court-house as aforesaid. Plaintiff says that the furnishing the said materials and building said house was reasonably worth the sum of $7629.90 ; that said county of Lawrence has paid at different times to plaintiff therefor sums of money amounting in the aggregate to the sum of $5,745.95 ; that the said balance amounting to the said sum of $1,883.95 is yet due plaintiff; that said county neglects and refuses to pay plaintiff said balance. Plaintiff therefore prays judgment for the said sum of $1,883.25 against said county of Lawrence, and as in duty bound, &o.

    “ And plaintiff further states that at the time he delivered said house to said county court, as before stated, the said county court, on behalf of said county and plaintiff, entered into an agreement of record to refer the question of how much ought to be allowed plaintiff as the balance for building said house to two men from each municipal township in said county, as will fully appear by reference to a copy of said record of agreement herewith filed; that at the time and place named in said submission all the arbitrators named in said submission except two met, and tbe justices of said county court and said plaintiff also being present, it was then and there agreed between said justices of said court and plaintiff that the arbitrators then and there present should proceed to determine what the said plaintiff ought to have as the balance for furnishing materials and building said house ; and plaintiff further avers that said arbitrators then so met as aforesaid, neither party requiring them to be sworn, did then and there hear the proofs upon the said question, and did then and there render their award in favor of plaintiff, whereby they did then and there allow plaintiff the sum of |950 ; which said award the said court afterwards refused and still refuses to abide by; and, although often requested to abide by said award and grant a warrant on the county treasurer of said county for the amount so awarded as aforesaid, the said court refused and still refuses to do so, whereby the said county of Lawrence became liable to plaintiff for the said sum of $950, so awarded as aforesaid ; a copy of which said award is herewith filed and made an exhibit in this cause. Plaintiff states that said court, in behalf of said county, made and entered into said agreement to submit said question to arbitrators as aforesaid, in consideration of plaintiff’s delivering to them the said house as aforesaid. Plaintiff prays judgment for the said sum of $950, so awarded as aforesaid, together with all legal interest thereon; and as in duty,” &c.

      F. P. Wright, for plaintiff in error.
    I. The county courts are agents of the counties. The plaintiff under contract with the county court furnished materials and built the court-house. It has been received without objection. The people of the county are using, occupying and enjoying it. It is a well settled rule of law, as well as of justice, that where an agent does an act for the use of his principal, and the principal enjoys the benefits and fruits of the act, it is too late for him to say that the act was not legal or was not by his authority. The principal may ratify the unauthorized act of the agent. The county, acting through the county court, may do the same. (Ruggles t. Washington County, 8 Mo. 348.)
    II. The suit is properly brought against the county, the work having been done for the county, and accepted and enjoyed by the county. (5 Indiana, 31.) The county, having accepted the work, would be liable on an implied promise to pay as much as the work was really worth. (Lomax v. Baily, 7 Black. 599.) In the present case there was an express promise to pay.

      Ewing, for defendant in error.
    I. For general purposes and with respect to many things the county court has a large discretion. As to the subject matter of this proceeding, nothing is left to its discretion. (R. C. 1845, p. 287.) The statutory authority must be pursued. It is apparent from the petition that none of the requirements of the act have been complied with. (See Story on Agency, § 165,199, 200, 307 ; 7 Monr. 581; Lee v. Monroe, 7 Cranch, 366; 1 Mo. 427; McDonald v. Franklin Co. 2 Mo. 176 ; Delafield v. Illinois, 2 Hill, 175 ; United States v. Ames, 1. Wodb. & Min. 90.)
   Richardson, Judge,

delivered the opinion of the court.

The county court is only the agent of the county, and, like any other agent, must pursue its authority and act within the scope of its power. In respect to many things that concern the county, it has a large discretion; but in reference to the erection of county buildings its authority is defined by a public law, and is special and limited. It can not act like general agents, whose acts may bind their principals if performed within the general scope of their agency, though in violation of private instructions unknown to those who deal with them,; for it has no power over the subject except such as is given by law; and every person who deals with the county court, acting in behalf of the county, is bound to know the law that confers the authority. There is no differ-en.ce in this respect between public and private agents; and if the county court exceeds its special and limited authority, conferred by the .statute, in a material matter, the county will not be bound.

The act concerning county buildings (R. C. 1845, p. 286) regulates the whole subject. The manifest policy of the act was to prevent the embarrassment of counties by the erection of buildings more costly than their necessities require, and the incurring of liabilities beyond their ability to pay. The first step to be taken by the county court, before proceeding to the erection of a county building, is to ascertain that sufficient funds are in the treasury unappropriated, or that the circumstances of the county otherwise permit; and then to make an order appropriating a certain sum for the purpose, which shall cover the maximum cost; and the contract price can not exceed the amount appropriated. This provision was evidently suggested by the universal experience that the cost of public works generally exceeds the estimate; and there would be no safeguards for the funds or credit of a county if the public buildings were let out to be built by contract and the price left to be determined according to the value of the work after its completion.

When the county court is satisfied that “ sufficient funds are in the treasury or that the circumstances of the county will otherwise permit, it may .order the erection of a building, stating in the order the amount to be expended for that purpose, and shall appoint a suitable person to superintend the work, who shall take an oath faithfully to discharge his duties.” (Section 4.) It is made the duty of the superintendent to submit to the county court a plan of the building to be erected, the dimensions thereof, and the materials of which it is to be composed, with an estimate of the probable cost thereof. (Sec. 10.) When the plan is approved by the court the superintendent shall advertise for receiving proposals for erecting such building, “ and shall contract with the person who will agree to do the work on the lowest terms, not exceeding the amount appropriated.” (Sec. 11.) The superintendent shall take from the undertaker a bond to the county with sufficient security for the performance of the work at such time and in such manner as shall be agreed upon according to the plan. (Sec. 12.) It is the duty of the superintendent to overlook and direct the execution of the work, to see that the materials are good and the work executed according to contract, and shall make report of the progress and condition thereof from time to time to the county court. (Sec. 13.) When any instalments shall become due to the contractor according to the contract, the county court shall make an order that the same be paid out of the county treasury. (Sec. 14.) But no such order shall be made unless the superintendent shall certify that a due proportion of the work has been completed according to contract. (Sec. 15.)

This law is the warrant of attorney to the county court. All its provisions are plain, and the contractor, before he undertakes the work, as he deals with an agent whose powers and duties are prescribed, ought to see that the agent is pursuing its authority; for the agent can not bind the county except as it is commanded or permitted to do. If the agent of a private person produced to a builder a power of attorney authorizing him to contract for building a house of certain dimensions and the cost not to exceed a given sum, and in the face of his authority should contract for a house of a different kind and at a greater cost, no one would pretend that the contract would bind the principal unless he subsequently ratified it; and it is only the application of this familiar rule that we apply to this case. If any effect is to be given to the law at all, its plain directions must be followed, and to allow a manifest departure from them would not only be a violation of an established rule that governs the relation of principal and agent, but would remove all the restrictions which the law has imposed upon the county court in contracting debts to be paid by the county.

The petition in this case docs not aver a contract of any kind with the county court, but the plaintiff seeks to recover upon a quantum meruit. In our opinion tbe county is not liable upon an implied promise. The acceptance of the building by the county court did not help the plaintiff, for the ratification must come from the principal; (Delafield v. Illinois, 2 Hill, 175 ;) and if the county was not liable for the claim as stated in the petition it was not bound by the award. The demurrer was properly sustained, and the judgment will be affirmed;

the other judges concurring.


text:
    Lewis, Defendant in Error, v. Nuckolls et al., Plaintiffs in Error.
    1. The general assembly by an act approved November 15, 1855 (Local Sess. Acts, 1855, p. 109) granted to one A. an exclusive right to keep a ferry on the Missouri river within certain limits, and provided that a failure to comply with the requisites of the charter should be sufficient to authorize the county court to establish another ferry within said limits. B. applied to the county court for a ferry license within the limits of A.’s eliarter. A. opposed the granting a license to B. The county court granted a license to B. A. appealed to the circuit court, which affirmed the judgment of the county court, refusing to try the question anew upon the facts. Hdd, that, conceding that an appeal would lie, although none was provided for in the act, the court was not bound to try the cause anew.

      Error to Holt Circuit Court.

    Loan, for plaintiff in error.
    I. An appeal lay to the circuit court to reverse tbe informal judgment of tbe county court declaring a non-compliance with the terms of the charter. (Sanders v. Rains, 10 Mo. 173.) The court erred in affirming the judgment of the county court. At the time of the rendition of said judgment said court had no jurisdiction of the persons of said Nuck-olls ; nor had it jurisdiction of the subject matter of the suit, to-wit, the charter. So far as it declared that the Nuckolls had not complied with their charter, it should have heen reversed. A non-compliance with the charter could only be judicially declared in a direct proceeding against the Nuck-olls for that purpose.

      Gardenhire, for respondent.
    I. The judgment of the county court was properly affirmed. The evidence in that court was not properly saved. It does not appear that what was saved was all the evidence. The circuit court could only act on the evidence before the county court. (County Court of St. Louis v. Sparks, 11 Mo. 202.) The charter expressly gave the county court authority to grant licenses within the charter limits for a breach of the charter. The plaintiffs in error appeared to the proceeding, opposed the grant, were fully heard, and the case was decided against them. This was an end of it. There is no pretence that there was a compliance with the charter.
    II. The charter provided no mode for compensating land owners within two miles of the chartered ferry for their right to keep a ferry on their own land, which the charter attempted to take away. Is not this in violation of the constitution ?
   Napton, Judge,

delivered the opinion of the court.

In November-, 1855, Heath Nuckolls and Stephen E. Nuckolls procured from the legislature a charter to establish a ferry on the Missouri river, in Holt county, which was to continue for fifteen years, and gave them exclusive ferry privileges for four miles up and down the river. The county court of Holt county was to fix the rate of ferriage, to take the necessary bonds, and were also empowered by the act to license other ferries within the prescribed limits in the event that the Nuckolls failed to keep up their boat in the manner the charter directed. At the November term of the Holt county court, 1856, Lewis applied for a license to keep a ferry on his own land within the limits of Nuckolls’ charter. The two Nuckolls appeared and opposed the grant, but the court upon the evidence submitted decided that H. and S. F. Nuckolls had failed to keep a boat and hands according to their charter, and therefore ordered that Lewis have a license. A motion was made by the Nuckolls to set this judgment aside, but the motion was overruled, and they appealed to the circuit court. Upon trial in the circuit court, a bill of exceptions, which had been taken in the county court an$ which purported to contain all the evidence upon which that court had acted, was the basis of the action of the circuit court, and, without hearing the case anew as was proposed, the circuit court affirmed the judgment of the county court. There was -a motion for a new trial and also in arrest of judgment, but both were overruled.

The judgment of the circuit court must, in our opinion, be affirmed. Conceding that an appeal lay to the circuit court, the only effect it had was to take the i'ecord up to that court as a certiorari would. No power was given by the charter or by the general law regulating the supervising control of the circuit court over the county courts to authorize the circuit court to try the case upon the facts.

It is urged here that the county court had no jurisdiction over the question of forfeiture of the charter because the Nuckolls were not notified. The record shows that they were present, and resisted the application of Lewis, and that they took the appeal. Whether they appeared voluntarily or by summons is immaterial.

The other judges concurring, the judgment is affirmed.


author: Scott, Judge,

text:
    Gilman, Defendant in Error, v. Hovey & Buchanan, Plaintiffs in Error.
    1. Although a judgment by confession may have been rendered by a clerk in vacation, under article 22 of the practice act of 1849 (Sess. Acts, 1849, p. 96), upon a verified statement defective in that it did not sufficiently set forth the facts out of which the confessed liability arose, it is not therefore a nullity ; unless set aside or vacated its validity can not be questioned collaterally.
    2. Judgments confessed under article 22 of the practice act of 1849 are liens upon real estate.

      Error to Jackson Circuit Court.

    The following finding of the 'facts sufficiently shows the nature of this suit: “ The court finds the facts of this case to be, that on the 17th day of May, 1854, and for some time prior thereto, defendants, under the name, firm and style of Hovey & Buchanan, were engaged as partners in the practice of law at Independence, Missouri, holding themselves out to the public as qualified- for and engaged in the practice of law ; that it was a part of their business, as such attorneys, to draw deeds, examine titles, &o.; that on said 17th day of May, 1854, plaintiff had in said Jackson county certain goods, groceries, &c., which one Abrahams proposed buying, and which plaintiff proposed selling to him if he would execute his note therefor due in six months, and secure the payment thereof to. his satisfaction; that said Abrahams agreed to take said goods on said terms, and to secure the payment thereof by giving a lien upon the following lands, [describing them] ; that said lands were worth a sufficient amount to secure the amount of the price of said goods; that before accepting said note and the lien upon said land to secure the payment thereof, plaintiff by his agent applied to defendants or one of them, in their professional capacity as attorneys as aforesaid, to examine into the title to said lands to ascertain if said Abrahams had a good title thereto, and if there were any encumbrances thereon of record in said Jackson county ; that prior to said examination, defendants were informed of the object for which said examination was to be made, to-wit, that a lien might be taken on said lands to secure the payment of the purchase money for the goods aforesaid, and defendants were instructed, if they found the title to said lands valid and free from encumbrance, to prepare a deed of trust from said Abrahams to plaintiff upon said lands to secure the payment of the purchase money for the goods proposed to be sold to said Abrahams as aforesaid by plaintiff; that they undertook to make said examination, and after sufficient time for examination they reported to plaintiff’s said agent that the title of said Abrahams to said land was valid, and that there were no encumbrances thereon of record in said county; and thereupon they prepared a deed of trust on said lands from said Abrahams and wife to Alexander Street as trustee, to secure the payment to plaintiff of the purchase money of said goods, to-wit, the sum of $1050 ; that said Abrahams executed his note to plaintiff for said sum due in six months, and said Abrahams and wife executed said deed of trust to secure the payment -of said note, and, upon the execution of said deed of trust and note, plaintiff’s said agent upon said security delivered said goods to Abrahams ; that the said plaintiff by his agent paid defendants for their said services two dollars and fifty cents, the sum demanded by them therefor. And the court further finds that on the 23d day of February, 1854, a judgment was rendered in the said Jackson circuit court by the clerk of said court in vacation, by confession, in favor of one Levi Berg and against said Abraham M. Abrahams, for the sum of $2,410.47, which said judgment was a matter of record in said Jackson circuit court, and upon which said judgment had been paid the sum $702.42 prior to the said 17th day of May, the balance of said judgment remaining unpaid and a subsisting lien on the land aforesaid on said 17th day of May, 1854 ; that there was an index to the judgments rendered in said Jackson circuit court, and that the judgment confessed as aforesaid was indexed upon the day it was confessed as aforesaid; upon which same judgment execution issued; under which execution the sheriff of Jackson county levied upon the lands aforesaid, and, on the 13th day of March, 1855, sold said lands; and the amount for 'syhich said lands were so sold was not sufficient to pay the balance due on the said judgment confessed by said Abrahams as aforesaid; that at the timé of the sale of said land by said sheriff said Abrahams was and ever since has been insolvent; that no part of said note executed by said Abrahams to plaintiff for said goods has been paid; also that defendants failed to examine the records to ascertain if there were any judgments against said Abrahams in said Jackson county on said 17th day of May, 1854, at which time said deed of trust was drawn. And the court further finds that plaintiff offers to subrogate the defendants to all his right by reason of the said deed of trust. And thereupon the court declares the law arising upon said facts to be that the judgment confessed by said Abrahams in favor of said Berg was a lien upon the lands described in the aforesaid deed of trust at the time of the drawing and execution thereof; that by reason of said judgment plaintiff has wholly lost his debt so intended to be secured by said deed of trust; and that said defendants were guilty of palpable negligence in not examining and making known to plaintiff’s agent the existence of said judgment in favor of said Berg and against said Abrahams. The court thereupon finds for plaintiff the sum of one thousand and fifty dollars in damages.”
    The following is the confession of judgment referred to in the finding:
    “ Berg v. Abrahams. In the circuit court of Jackson county, Missouri. Confession of judgment before the clerk of said court in vacation. Whereas I, the above named defendant, am justly indebted to the plaintiff aforesaid in the sum of six hundred and ninety-seven dollars and twenty-nine cents, on account of a balance due, including interest on the promissory note hereto annexed, dated February 20th, 1852, and due six months after date; and whereas I am justly indebted to said plaintiff in the further sum of seventeen hundred and thirteen dollars and eighteen cents ($1,718.18) on account of a certain other promissory note, (and interest thereon to this date) hereto annexed, dated August 2d, 1852, and due six months after date; now therefore I, the defendant aforesaid, hereby authorize Samuel D. Lucas, the clerk of the Jackson county circuit court, to enter judgment against me in favor of the above named plaintiff for the amount due on said two notes, to-wit, for the sum of two thousand four hundred and ten and forty-seven one-hundredths dollars ($2,410.47). Given under my hand this 23d day of February, A. D. 1854. [Signed] A. M. Abrahams.”
    This statement was properly verified, and accompanying it were two notes made by Abrahams in favor of Berg — one dated February 20, 1852, for $1,143.83, upon which there was a credit of $504 — the other dated August 2, 1852, for $1,610.89; each note due six months after date.

      “ Levi Berg vs. Abraham M. Abrahams. In vacation in the Jackson circuit court, Missouri — February 23d, 1854. Now at this day comes the plaintiff aforesaid by his attorney as well as the said defendant in his own proper person, and the said defendant (being personally known to the undersigned, clerk of the Jackson circuit court aforesaid) files herein his written statement, verified by affidavit, setting forth that the said defendant is justly indebted to said plaintiff in the sum of two thousand five hundred and ten dollars and forty-seven cents on two certain promissory notes specified in said statement, and consenting that judgment may be forthwith rendered against him, the said defendant, for the said sum upon the surrender of the said notes as aforesaid, and the said notes being produced and given up to the keeping of said court: Now therefore it is considered that the said plaintiff recover against the said defendant the sum of two thousand four hundred and ten dollars and forty-seven hundredths of a dollar (the amount of said notes and interest thereon) in the manner aforesaid, together with his costs and charges in this behalf laid out and expended, and that he have thereof execution. [Signed] Samuel D. Lucas, clerk of Jackson circuit court.”

      Hovey (with whom was Ryland) for plaintiffs in error.
    I. The court erred in permitting the supposed judgment in favor of Berg against Abrahams to be read in evidence. It was void for want of a sufficient statement to authorize the clerk to enter the same. (Sess. Acts, 1849, p. 96 ; Plum-mer v. Plummer, 7 How. Prac. R. 62; Schoolcraft v. Thompson, id. 446 ; Lawless v. Hackett, 16 Johns. 149; Chappel v. Chappel. 2 Kern. 215; 4 Zabr. 358; 2 South, 479.) Although a defective execution of a power may be cured, a want of power can not. (See 1 Sugden on Powers, 264 ; 4 "Watts & Serg. 511.)
    II. Said supposed judgment was not a lien upon the land. It is not the judgment of a court of record, and the act of 1849 fails to make it a lien. (Denn v. Reed, 10 Pet. 524 ; R. ,C. 1845, p. 659, § 18,19 ; 1 Terr. Laws, 119 ; 6 B. Mon. 154.)

      III. Plaintiff applied to Buelianan in bis professional capacity. He is liable only if bis opinion evinced culpable ignorance of tbe business of a lawyer, in which character be assumed to act. (4 Burr. 2060.) The position of Buchanan is precisely the same, so far as the plaintiff is concerned, as if the confession and entry of the clerk had been presented to him, and he had been asked and paid for his opinion as to whether the same was a valid judgment and a lien upon the land, and, in consideration of the fee, he had counselled him that it was neither a judgment nor lien. The examination or non-examination of the records was fraught with no consequences to plaintiff. It was the correctness of Buchanan’s conclusions of the law arising upon the records as they really existed, that could alone affect the plaintiff Being sued in ■his professional capacity, Buchanan is only answerable for the correctness of his conclusions. Defendants were not shown to be partners in the business of examining titles. Hovey was not liable in any event. The examination and report of Buchanan were a gratuity, in good faith, and the same was not a subject of partnership nor of joint liability. If Buchanan had reported that the supposed judgment was valid and a lien upon the land, he would have been guilty of culpable ignorance of the adjudications of an appellate court appointed by law to construe the very statute, under which this confession was made. (2 Kernan, 215, and cases above cited.) The report that Buchanan gave was one that a faithful and learned lawyer might well give upon full inspection of the records and a careful reading of the supposed judgment.

      Adams, for defendant in error.
    I. Negligence in failing to make proper examination of the records for judgments, and in failing to report the judgment against Abrahams, is the foundation of this action, and it was not the want of skill or ability in the defendants to make the examination or to decide upon the legal effect of such a judgment. There was a judgment in fact. It was the duty of defendants to report it to plaintiff. Then, if he had thought proper, he might have taken their opinion as to the effect of such judgment; and if their opinion had been adverse to the validity of the judgment and the plaintiff had acted on their opinion, he might then have predicated an action upon the charge of a want of learning and skill in their profession; and the defence might have raised the question (which they now seek to raise and which is not in this record) whether it was not a matter of such doubt as to excuse them. They, however, failed to search the records. The question as to the validity of the judgment was not before them. If the judgment had been reported and an opinion given, plaintiff might or might not have relied upon it. Defendants were guilty of gross negligence in omitting to examine the records and in failing to report the existence of the judgment against Abrahams.
    II. The judgment was a valid judgment. (Finley v. Caldwell, 1 Mo. 364; Phelps v. Hawkins, 4 Mo. 384 ; Hill v. Dowdall, 6 Mo. 198; 1 Terr. Law, 686; G-eyer’s Dig. 264; R. C. 1845, tit. Judgment.) Unless it was an absolute nullity it was the duty of defendants to report it to plaintiff. The validity of the judgment could not be questioned collaterally. So long as it existed on the records it would be a valid lien, and a sale under an execution would pass the title. (Brigg v. Adams, 2 Salk. 674; 17 Johns. 145 ; Rector v. Hart, 8 Mo. 448 ; 4 Bibb, 336.) The court had jurisdiction of the parties and of the subject matter, and the power to render the judgment and the supposed defect in the statement upon which the confession was made could only be inquired into in a direct proceeding to set aside the judgment. Even in such a proceeding this statement ought to be held sufficient. The decisions in New York are conflicting. (7 How. Prac. R. 448, 446, 62; 2 Kernan, 223.) But it is presumed that no court has held such a judgment an absolute nullity, or that its validity could be questioned collaterally.
   Scott, Judge,

delivered the opinion of the court.

This case, having been begun under the act of 1849, comes before us on the overruling of a motion for a review of the finding of the facts, and also for a review of the law declared upon the facts. Some of the facts found, which are sought to be reviewed, are mere conclusions of law from other facts in the finding, and will not be noticed in this place.

One important fact in the finding, the truth of which the defendant denies, was that the defendants were partners in, or that it was a part of their business, as partners, to examine the titles of real estate. There was evidence tending to show that such was the course of business of the concern. In addition to that set out in the motion for a review, is the conduct of Hovey, when application was made to him, in declining to undertake the examination himself, and in referring the agent of the plaintiff to the defendant Buchanan, who was a partner of Hovey in the practice of law; thus indicating that he did not decline for the reason that such employment was no part of the business of the profession or of the partnership. Moreover, Hovey gave as the cause of his not undertaking the examination proposed by the agent of the plaintiff, that, at the time, he had other engagements. This objection, if it could be sustained, would only relieve Hovey, who, we cheerfully say, does not appear himself to have been chargeable with the slightest blame in this transaction, except that which by implication of law arises from his association with his co-defendant Buchanan as partner.

Another objection to the finding is that the court found a material fact which was not in issue, to-wit, that the defendants were guilty of negligence in not examining in order to ascertain if there were encumbrances on the lands. This fact, it is maintained, was not in issue and should not have a place in the finding. The allegation in the petition is, that the defendants “ were guilty of neglect and want of due diligence in examining into, and in the investigation of, the situation of said land and the title thereto.” The fact found by the court is, that the defendants failed to examine the records to ascertain if there were any judgments against said Abrahams in Jackson county; and from this failure the inference is drawn by the court that the defendants were guilty of negligence in not examining to ascertain the existence of the said judgment. As there was a general allegation of neglect and want of due diligence in examining into the situation of the title to the land, and as it was necessary to look as well into the docket of judgments as the record of deeds in order to know the condition of the title, and as the record-book might have been examined whilst the judgment docket was overlooked, we are of the opinion that the allegation in the petition warranted the court in making a finding as to the negligence of the defendants in failing to ascertain whether there were judgments.

The point mostly relied on by the defendants is that the confession of judgment, not having been taken in conformity to the provisions of the statute, is void, and created no encumbrance or lien upon the land; that — the statute requiring the facts, out of which the debt arose, to be concisely stated, and that it be shown that the debt is justly due, and these requirements not having been complied with — there was no authority in the clerk to take or enter the confession of judgment, and consequently his act was null and void. In the case under consideration, the only evidences of the debt accompanying the statement on which the confession was entered were two promissory notes, the consideration of which was not set out. It may be admitted that such a statement was insufficient under the statute. A statement upon which to enter judgment without action under the act of 1849 is not sufficient, where it merely states and sets out a promissory note, executed by the defendant to the plaintiff, as the consideration of the indebtedness. In New York, where there is a statute on this subject, from which it seems ours was borrowed, this principle seems to be well settled. (Chappell v. Chappell, 2 Kernan, 215.) But while we'admit this to be the law, we are not prepared to say that a statement thus defective renders a judgment confessed upon it a nullity. We do not conceive that the doctrine in relation to powers or their execution has any thing to do with the question under consideration. To maintain that judgments thus confessed in courts of general jurisdiction are nullities, would be affecting tbeir validity to an extent beyond all reason. It would be giving those who have no interest in the transaction, and who can in no way whatever be affected by it, a power to defeat it. If all those who are in anywise interested in a judgment acquiesce in it, why should a stranger be permitted to call in question its validity ? Under the principle contended for, all those whose rights are affected by a judgment may acquiesce in it; land may be seized and sold under it without any objection by those who are interested; and yet if after-wards a stranger should enter on the purchaser, he could not be ejected, because the judgment being a nullity no sale under it would convey a title. When a judgment has been entered in a court of general jurisdiction, none of the cases cited go the length of maintaining that a defect in the statement under which it was confessed would render it wholly ineffectual and void for all purposes. The statement may be amended; the judgment may be reversed, vacated or set aside; but none hold that it is a nullity. When the general power of a clerk to take a confession of a judgment is conceded, why should that judgment, entered on the records of the court, be regarded otherwise than those rendered by the court in term time ? It is a judgment of a court of general jurisdiction, and until it is invalidated it will pass a title by a sale under it. The very case of Chappell v. Chappell, to which reference has been made for another purpose, is a strong one to show that, for a defect in the statement like that in the case before us, the judgment is not a nullity. To the same effect are the cases of Plummer v. Plummer, and Schoolcraft v. Thompson, 7 How. Prac. Rep. 62, 446. The cases of Parker v. Briggs, 1 Southard, 161, and Clever v. Applegate, 2 Southard, 479, were in relation to judgments confessed in an inferior court.

Another point in the cause is, that the judgment confessed, even though not void, is yet no lien; that the statute authorizing the taking a confession of judgment does not confer a lien on the lands of the defendant. We do not consider that there is any force in this objection. The chief inducement to the taking a confession of judgment is the security it gives by reason of the lien. The lien of a judgment, according to the principles of the common law, is not created by the express words of a statute to that effect, but it is considered as an incident to the right to subject the land to execution. So soon as land was subjected to execution for debt, just so soon the courts held that the judgment was a lien. It will hardly be maintained that an execution could not be issued on a judgment confessed under our statute in relation to the confession of judgments without action. (Reed v. Austin, 9 Mo. 722.)

We are not of the opinion that the pleadings and evidence in the cause involve any question touching the skill of the defendants in their profession. The complaint is of negligence in performing an act which was undertaken to be done, whereby the plaintiff lost the security for his debt. If the existence of the judgment had been communicated to the agent of the plaintiff, he might have altogether refused the security offered. He might have been unwilling to incur any risk and would have held on to the possession of his goods. It is not for the defendants to fail to inform themselves of the existence of the judgment, and afterwards maintain that it was erroneous or irregular, or that there was or might be a question of its validity about which members of the profession might entertain contrary opinions. The judgment itself, as a fact, should have been sought after in the docket and a knowledge of its existence communicated to the plaintiff, who would then have determined for himself whether he would take the security.

There is no ground of complaint against the plaintiff because he did not communicate to the defendant the fact that his debt was not paid at maturity, and on account of his subsequent delay in enforcing its collection. Believing from the information of the defendants that his debt was secure, nothing was more reasonable than that he should rest satisfied until it was his pleasure to collect his debt. If he had not been misled by the advice he received, no one possibly could have been injured by such a course, and it is not for those whose conduct was the cause of the delay afterwards to complain of it.

Judge Napton concurring,

judgment affirmed.


text:
    Gray et al., Defendants in Error, v. Givens, Plaintiff in Error.
    1. Where it appears from the “ list of patent certificates prepared for issue hy the recorder of land titles, under the act of Congress of February 17, 1815, ' (and supplementary acts) for the relief of those inhabitants of the county of New Madrid -who suffered by earthquakes,” that the recorder had prepared a patent certificate for issue to a New Madrid claimant, it will be presumed that a plat of survey of the land upon whicli the New Madrid certificate had been located had been previously returned to the recorder.
    2. As a general rule the statute of limitations will commence running in favor of an adverse possession from the date of the accrual of a right to dispossess by action the adverse possessor.
    3. An action in the nature of an action of ejectment may be maintained in this state on a New Madrid location. (R. C. 1855, p. 690.)
    4. The statute of limitations commences running against one claiming title under a New Madrid location from the date of the return of a plat of the survey of the land, upon which the location had been made, to the recorder of land titles.
    5. It is competent for the general assembly to authorize actions of ejectment to be maintained on New Madrid locations, and the statute of limitations to run against New Madrid locators, previous to the issuing of patents by the United States ; to do so is no interference “ with the primary disposal of the soil by the United States.”
    6. In an action in the nature of ejectment, although the plaintiff claims the whole, he may recover an undivided part.
    7. If he show himself entitled to an undivided interest in the premises in controversy, he can recover only such undivided interest, although the defendant should be a stranger to the plaintiff's title; he will hold the moiety recovered in common with the defendant.

      Error to Cooper Circuit Court.

    This was an action in the nature of an action of ejectment to recover possession of a part — to-wit, north-west quarter and the south-west quarter — of section 9, in township 48, of range 16, in the county of Cooper. Plaintiffs claim title under a New Madrid location as the legal representatives of William Cox. Said Cox possessed a “ head-right” in the county of New Madrid, which was afterwards confirmed by act of Congress. This “ head-right” in 1805 he conveyed to Edward Robertson, sr. Edward Robertson, sr., conveyed a portion of this “ head-right” — 300 arpens — to his son, Edward Robertson, jr., who took possession. After the confirmation to Cox, he and his wife, at the request of Edward Robertson, sr., conveyed the said 300 arpens to Edward Robertson, jr.; who afterwards conveyed the same to John C. Gray, sr., the ancestor of plaintiffs. These conveyances were made before the New Madrid certificate issued. There was evidence tending to show that two hundred arpens more of said “ head-right” was held by John O. Gray by direct purchase from Edward Robertson, sr. The deed was lost or mislaid. The New Madrid certificate — No. 453 — was issued October 6, 1818, and was located the same day on the section in controversy. The patent to William Cox, or his legal representatives, was issued in 1855.
    The defendant relied on the statute of limitations; and for the purpose of making out his defence offered in evidence a tax deed to one Kavenaugh, and offered to show that Kave-naugh and those holding under him had been in adverse possession for more than twenty years before the commencement of this suit. The court excluded the testimony.
    The court, at the instance of plaintiffs, gave the following instructions to the jury : “ If the jury believe from the evidence that the plaintiffs were legally entitled to the possession of the land in controversy or of any part thereof at the commencement of this suit, then they must find their verdict for the plaintiffs. 2. If the jury believe from the evidence that Edward Robertson, sr., before the New Madrid certificate was issued to William Cox or his legal representatives, sold to his son, Edward Robertson, jr., 300 arpens of said Cox’s “ head-right,” and that his son took possession of the same, and afterwards and before the issuing of said New Madrid certificate, tbe said William Cox and bis wife, at the request of said Edward Robertson, sr., made tbe deed, read in evidence, to said Edward Robertson, jr., for said 300 arpens, and that the said Edward Robertson, jr., afterwards made tbe deed, read in evidence, for said 300 arpens to John C. Gray, deceased, in bis lifetime, then the ownership was thereby vested in said John C. Gray ; and if the jury farther find that, after so becoming the owner of said 300 arpens, the said John C. Gray'departed this life leaving the plaintiffs his heirs at law, as stated by Susan Gray in her deposition, then the plaintiffs thereby became and are legal representatives of William Gox within the meaning of the patent from the United States read in evidence, and as such are legally entitled to recover the possession of the land in controversy from the defendant. 3. If the jury find from the evidence that William Cox conveyed his ‘ head-right’ to Edward Robertson, sr., before the New Madrid certificate was issued to said Cox or his legal representatives, and that said Robertson, before said New Madrid certificate was issued, sold and convoyed 200 arpens of said ‘ head-right’ to John C. Gray in his lifetime, then the ownership of said 200 arpens was thereby vested in said John C. Gray; and if the jury find that the said John C. Gray, so being the owner of said 200 arpens, afterwards departed this life leaving the plaintiffs his heirs at law, as stated by Susan Gray in her deposition, then the plaintiffs are legal'representatives of William Cox within the meaning of the patent from the United States in evidence, and as such they are legally entitled to the possession of the land in con-,, troversy, and are entitled to recover the possession thereof from the defendant.”
    The defendant prayed the court to give the following instructions : “ 1. The certificate of new location issued by the recorder of land titles at St. Louis, in the year 1818, in the name of William Cox or his legal representatives, and the patent issued by the United States thereon in the name of said Cox or his legal representatives, dated-, 1855, both of which have been read to the jury by plaintiffs, are no evidence that John C. Gray, sr., the ancestor of plaintiffs, and through whom they claim title to the land in controversy, was the owner of the ‘ head-right’ or the legal representative of said Cos. 2. If the jury believe from the evidence that William Cox in the year 1805, by deed of that date, conveyed to Edward Robertson, sr., his whole ‘head-right,’ situate in the county of New Madrid, and in lieu of which the land in controversy was located; and further find that John C. Gray, sr., did not, subsequently to said deed of 1805, by direct or mesne legal conveyances from said Edward Robertson, sr., derive title to said ‘head-right,’ then said Edward Robertson, sr., was the legal representative of said William Cox, and the jury must find for the defendant. 3. The deed executed by William Cox and wife on the 31st day of December, 1813, to Edward Robertson, jr., for the (quantity of 300 arpens of the ‘ head-right’ conveyed in 1805 by said Cox to Edward Robertson, sr., and which was read to the jury by plaintiffs, is no evidence of a conveyance from Edward Robertson, sr., to Edward Robertson, jr., of 300 arpens of said head-right; and the jury are to disregard said deed in making their verdict. 4. Oral evidence can not be substituted for any instrument which the law requires to be in writing. The jury will therefore exclude from their consideration all admissions proved to have been made by Edward Robertson, sr., of having conveyed his right to the Cox head-right. 5. If the jury believe from the evidence that Cox’s original head-right was one thousand arpens, and that the plaintiffs have shown themselves entitled to any part of the head-right, their interest in the new location is in the same proportion as it was in the head-right, and they can only recover from Givens such proportion of the amount he holds as the amount he holds bears to the 640 acres on the new location. 6. The plaintiffs in this case must recover upon the strength of their own title and not upon the weakness of the adversary. 7. If the jury believe from the evidence that William Cox, in 1805, conveyed his head-right to Edward Robertson, sr., it rests upon the plaintiffs to deduce their title from Robertson, sr., in writing; and if they hare failed to do so, the jury must find for defendant. 8. The jury can not, in this caso, find any thing for rents or for waste and injury.”
    Of these instructions asked the court gave the 1st and 6th, they not being objected to by plaintiffs, and refused the others. Exceptions were duly taken. The jury found a verdict for plaintiffs.
    Morrow, for plaintiff in error.
    I. All the parties in interest ought to have joined in the suit, and not having done so, the first instruction asked by plaintiff in error ought to have been given. (Sess. Acts, 1849, p. 75-6, sec. 1 — 7.)
    II. The court below erred in refusing to receive the proof offered by plaintiff as to his possession of more than twenty years of the premises in question, and in allowing the evidence to go to the jury in relation to conveyance by Edward Robertson.
    III. The statute of limitations begins to run from the moment the right of entry accrues, and a subsequent issuance of a patent will not abrogate or repeal our statute of limitation. (Rector 1 Walsh, 1 Mo. 238 ; Hunter v. Kempliill, 6 Mo. 106.) A party claiming under a New Madrid certificate had a right to enter the moment his location was made and completed according to the laws of the United States, without waiting for q patent; and, having a right of entry, had a right to sue, and, having failed to assert his right, is barred by our statute of limitations. (R. C. 1825, p. 343, tit. Ejectment, sec. 2; R. C. 1835, p. 234; R. C. 1845, p. 440; Mer-cas’ Lessee v. Seldon, 1 How. 37.) A clerk in the land office at Washington can not reinstate a right, that may have been lost by the laches of the party claiming, by signing the President’s name to a document called a patent. (Biddle v. Milton, 13 Mo. 535; 12 Mo. 184 ; 13 Mo. 335.) In actions of ejectment under our statute concerning New Madrid locations, a court of law has the same power as a court of equity with reference to the title. (Mitchell et al. v. Twiker, 10 Mo. 260.) From the moment of the return of the survey to the surveyor general’s office, plaintiff had a right to assert his claim to the possession of the land in controversy; and having failed to do so, is barred by the statute of limitation. (Cabanné v. Lindell, 12 Mo. 184; see Morton v. Blankenship, 5 Mo. 346.)
    IY. The plea of the statute of limitations in this case does not interfere with the primary disposal of the public soil of the United States. (Stephenson v. Smith, 7 Mo. 610.)
    Y. There are five titles recognized by our statute upon which an action of ejectment may be based, none of which are legal titles according to the common law. (R. C. 1845, p. 440.) This being the law, the defendant’s answer puts in issue the plaintiff’s right to recover, and the defendant may give in evidence any matter in bar of the action. (R. C. 1845, p. 441.) The defendant is the legal representative of William Cox to all intents and purposes. Defendant bought the land for taxes due the state, and thereby became the legal representative of the one who owned the land at the time the taxes became due. The patent is to William Cox or his legal representatives; the defendant is his legal representative ; therefore the patent issued for his benefit. It makes no difference whether defendant became the legal representa-' tive of William Cox by his consent or by operation of law. We have not been able to find a case, where an action of ejectment could be maintained upon an inchoate title, that the courts have held that the actual fee must be in the plaintiff before he was bound to assert his right. In all the states and in cases coming from those states where such doctrine has been held, the common law prevailed; id est, the party plaintiff must recover upon a strict legal title. In this state it is not so. (See McCoy v. Dickinson College, 4 Serg. & R. 302; Cabanné v. Lindell, 12 Mo. 186; Bryan v. Wear & Hickman, 4 Mo. 106.)
    Adams, for defendants in error.
    I. The legal title remained in the United States till the emanation of the patent in 1855, and the statute of limitations as against that title did not commence running till the patent was issued. (Landes et al. v. Perkins, 12 Mo. 257 ; Lindsay v. Miller, 6 Pet. 666 ; 16 Ohio, 34 ; Chiles v. Calk, 4 Bibb, 554; 20 Mo. 110, 431; West v. Cochran, 17 How. 414.) Although the plaintiffs, under the statute laws of Missouri, might have brought an action of ejectment on their New Madrid location, yet they were not bound to do so, and might rest satisfied till the whole title passed from the United States by the patent. To hold that the statute could be pleaded so as to bar a title before it passed from the United States would be interfering with the primary disposal of the soil by the United States, and in direct conflict with the constitution of this state and of the United States. (See Const, of Missouri, art. 10, sec. 1, and Const, of U. S., art. 4, sec. 3.) The question is not, whether, if an action had been brought on the inchoate title before the emanation of the patent, the statute could have been pleaded, but whether the title vested by the patent can at law be defeated by the running of the statute before the patent issued. But even in an action on the inchoate equitable title, the statute would not commence till the survey was approved by the surveyor general and returned to the recorder of land titles ; and the survey in this case was not approved or* returned to the recorder of land titles till 1854. (Cabanné v. Lindell, 12 Mo. 184.)
    II. The respondents showed themselves entitled to five hundred arpens of Cox’s head-right. In regard to two hundred arpens there can be no dispute, as their ancestors held a direct conveyance for that amount from Robertson, sr., and he from Cox; and being thus entitled to a part of the head-right, they were legal representatives of Cox within the meaning of the patent issued by the United States ; and, although they may be tenants in common with others, yet, as against the defendant, who is a stranger and intruder, they are entitled to recover the whole land.
    III. There is no pretence that the defendant is in anywise connected with the title derived from the United States by contract, purchase or otherwise, so as to authorize him to come into a court of equity to compel a conveyance of the legal title, and for this purpose, as one of the grounds in support of his equity, to rely upon his great length of possession and adverse enjoyment as evidence of such purchase. If such a defence was relied on, it would have to be set up in the answer with the same particularity as would have been required under the former practice in a bill in chancery. (See Carman v. Johnson, 20 Mo. 110 ; Magwire v. Price, 20 Mo. 431; West v. Cochran, 17 How. 414.)
   Richardson, Judge,

delivered the opinion of the court.

It appears from the record that a New Madrid certificate, No. 453, was issued by the recorder October 6th, 1818 — by which William Cox, or his legal representatives, was entitled to locate six hundred and forty acres on any of the public lands, the sale of which was authorized by law, in lieu of a like quantity in New Madrid county which had been injured by earthquakes — and was located the day it was issued on section 9, township 48, range 16 west.

As a preliminary to the other questions in the case, it is proper, first, to determine, as a matter of fact, when the plat and survey of the location were returned to the recorder. The record further shows that in May, 1854, a plat and description of the survey of this location were made in the office of the surveyor of Illinois and Missouri, without an actual survey on the ground, but from materials which had been in the office, and no doubt in the land department at Washington, for more than thirty years ; for, in the caption to the plat, it is recited “ that the boundary lines of this tract, as hereby described, are ascertained from the field notes of the subdivision of the survey of the said township surveyed by Wm. Y. Rector, deputy surveyor, in the month of January, 1817, under his contract with the surveyor of lands in the United States in the territories of Illinois and Missouri, dated 18th October, 1816, and its connections with the adjoining private claims — Nos. 2807, 2869, and 2878 — from the field notes of the survey thereof as executed in May, 1819.” The patent was issued March 6, 1855.

As a part of the plaintiffs’ documentary evidence there appears, properly certified, this paper :

A list of patent certificates prepared for issue by tlie recorder of land titles, under the act of Congress of 17th February, 1815 (and the supplementary acts), for the relief of those inhabitants of the county of New Madrid who suffered by earthquakes :

The fact that a plat of this location was constructed in the surveyor’s office at St. Louis in 1854 does not repel the presumption that one had previously been made and returned to the recorder in 1820; and we think this transcript from the recorder’s office of the list of patent certificates furnishes conclusive evidence that the plat and survey of this location were returned to him March 9th, 1820, and that the record from which the transcript was taken is of equal dignity to a patent certificate. The second section of the New Madrid act makes it the duty of the' principal deputy surveyor of the territory of Missouri to return a plat of each location made to the recorder, together with a notice in writing designating the tract located and the name of the claimant on whose behalf the same was made. This is the only means provided by law by which the recorder officially obtains information that a location has been made; and when he is thus furnished with the necessary information of the lands selected, and the name of the claimant, it is made his duty, by the third section, to give to the party a patent certificate. It appears here that the recorder, on the 9th of March, 1820, prepared a patent certificate for the claimant of this location, which he numbered and entered in the tabular list kept in his office. To suppose, then, that this record was made by the recorder, without the proper information which the law requires to be in his possession before making it, would require the assumption that he had violated his official duty, and committed a fraud. The usual evidence in actions of ejectment on New Madrid locations, of the return of the survey to the recorder, is the patent certificate, or the extract, like the one in this case, from the tabular list kept in the recorder’s office ; and we are unwilling to deviate from a rule of evidence so long acquiesced in.

Assuming, then, that the survey was returned to the recorder in 1820, the inquiry arises, as a starting point for the running of the statute of limitations, whether it began in 1820, or at the emanation of the patent in 1855. Our statute permits an action of ejectment to be maintained on a New Madrid location, and as a general rule limitation will begin to run from the time a cause of action accrues, and a suit may be maintained. The Supreme Court of the United States decided, in Bagnell v. Broderick, 13 Pet. 448, and Barry v. Gamble, 3 How. 51, that the land was appropriated and severed from the public domain when the plat and survey of location were returned to the recorder, and afterwards in Lessieurs v. Price, 12 How. 74, reasserted the doctrine and held that when the return was made the applicant became entitled to the land, and the land which he had abandoned vested in the United States. In Cabanné v. Lindell, 12 Mo. 184, the question was whether the limitation began from the time of notice of the location to the surveyor or from the time of the return of the survey to the recorder ; and on the ground that the title did not vest, according to the authority of Bagnelle v. Broderick, until the survey was returned, it was decided that limitation did not commence until that time. Since then the question has been at rest, and it has been understood as the law of the state that limitation begins to run on a New Madrid location in favor of an adverse possession when the survey has been returned to the recorder. In many cases patents for New Madrid locations have not yet been issued, and if parties claiming under them do not apply for them they never will be issued ; and it would be singular if in such cases there is no limitation, though there is title and a right of action. No case has been decided by this court, of which we are aware, that gives color to the idea that the statute of limitations is suspended in favor of a New Madrid location until the patent issues, and we do not think that the plaintiffs’ argument is supported by the cases to which we have been referred. In Chiles v. Calk, 4 Bibb, 554, it does not appear that the plaintiff had a right of action until the patent issued. The plaintiff, in Lindsay v. Miller’s Lessee, 6 Pet. 666, exhibited a patent dated in 1824, which was founded on an entry and survey executed the same year, and he had no cause of action until that time; and though the defendant had been in posssession for more than thirty years under an older patent from the state of Virginia, it was decided that his patent' was void, and that the statute of limitation did not run against the state, and therefore did not begin, to run against the plaintiff until he had a right of action. The argument in Duke v. Thompson, 16 Ohio, 34, puts the case on the ground that no action at law or equity could be maintained upon an entry under a Virginia military warrant until a patent had been issued; and it was observed by the judge who delivered the opinion of the court, that “ it was not until 1841 (the time the patent issued) that the complainant could prosecute the claim.” Cochran v. West, 17 How. 414, does not relate to this subject; it only decides that a confirmation under the act of 1807, to be designated by a survey, attached to no land until the survey was made.

It is insisted that as the fee remained in the United States until the patent was issued in 1855, it would be an interference with the primary disposal of the soil to apply the statute of limitations to the plaintiffs’ title before the emanation of the patent. (Const. of Mo. art. 10, sec. 1.) The provision in our constitution which denies to the general assembly the right to interfere with the primary disposal of the soil by the United States was suggested by the proviso in the fourth section of the act of Congress authorizing the people of the territory of Missouri to form a constitution and state government. This act was preparatory to the withdrawal of the sovereignty of the United States from the territory of Missouri, and to the inauguration of a new sovereign by the establishment of the state government; and as the public domain, by a principle of national law, worrld otherwise have passed to the local sovereign, we suppose the object of this compact was to save the public lands from the operation of this principle, and to preserve to the United States their proprietary interest in them, with full power to dispose of them as they thought proper. This state, with full recognition of the United States as the fountain of title to the public lands, has the right to preserve the peace among her own citizens who occupy them, and to adjust in her own courts conflicting interests and disputes that arise between claimants who derive title from the federal government; and, regarding the United States as having the absolute and primary right to dispose of the soil, our courts have asserted the undoubted right to declare the holder of a patent obtained by fraud a trustee for the owner of the equitable title and thus cause a patent issued to one person to enure to the benefit of another. (Smith v. Stephenson, 7 Mo. 610; Carman v. Johnson, 20 Mo. 100.) It was decided in Carroll v. Safford, 3 How. 441, that land entered, for which the purchaser held only the receiver’s certificate, was liable to be taxed and sold by the state for the public dues on it, though the patent had not been obtained ; and that the exercise of this power by the state was not “ an interference with the primary disposal of the soil.” In such case the purchaser has not the legal title, but, having made the entry and paid for it, the United States could no more sell it to another than if the patent had been issued, and the purchaser at the tax sale would acquire the equities of the owner, and the patent, when issued, would enure to his benefit.

There is no pretence that the plaintiffs had title to all the land sued for and recovered. At most they only made a prima facie case for an undivided interest, and yet, under the instructions given and refused, the court held, if they could recover at all, they were entitled to recover the whole.N It was formerly held, that a plaintiff in ejectment could not recover an undivided part when he claimed an entirety ; (Carroll v. Norwood, 5 Har. & J. 155;) but this strictness. no longer prevails ; and though a plaintiff may recover less than he claims, it is apprehended that he can not recover more than he shows title to. But it is said that though this is the general rule, there is a difference when the defendant is a stranger to the plaintiff’s title, and that as to him one tenant in common, though entitled to only a part, may recover the whole, and when he is put into possession will hold for the other tenants in common as well as for himself. At common law tenants in common could not recover on a joint demise, and “ as the right of possession, which depends on title, is several, a recovery by one will restore him only a moiety of the possession against the disseisor, who will hold the other moiety with him in common.” Our statute permits tenants in common to join, but there is no use in this if one can recover for the others; and if this is the law, A. may recover for B., though B. could not recover for himself. It often happens that one tenant in common is barred by limitation when the other is not, and a title may be acquired by adverse possession. (Biddle v. Mellore, 13 Mo. 335.) The defendant will prevail against one when he can not against the other. But this would amount to nothing if the plaintiff not barred and claiming but a fractional interest can recover for the other against whom the defendant might have title by lapse of time. The plaintiff who claims and recovers the entirety, though entitled only to an undivided interest, will not generally, after he has been put into possession of the whole, share his good fortune with his co-tenants, especially if they are barred by limitation; and the practical result will be that he will keep all, though he has been permitted to recover on their account.

Judge Napton concurring,

the judgment will be reversed, and the cause remanded.


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    Gordon, Respondent, v. McCurdy, (interpleader,) Apellant.
    1. Interpleas can be resorted to in attachment suits only -where the property attached is personal property.

      Appeal from Plalte Circuit Court.

    This was an action against Elijah Cady on a promissory note for $492.60. On the 17th day of January, 1856, an attachment was issued in aid of said suit, and on the 19th day of the said month it was levied on certain real estate in Weston as the property of Cady. In the progress of the cause Solomon P. McCurdy filed an interplea claiming the property attached by virtue of a deed of trust bearing date January 17,1856, executed by said Cady to said McCurdy and one Hulse to secure the creditors of the said Cady. The deed was executed in St. Louis and was filed for record in Platte county, January 28, 1856. The plaintiff filed a replication to this interplea, putting in issue the material allegations in the plea, and charging that the deed was made in fraud of creditors. The jury upon the issues raised upon the interplea found for the plaintiff.
    Adams, for appellant.
    I. The alleged fraud in the debt of Meigs & Dwink could not avoid the deed of assignment. As to the other creditors named in the assignment the deed was good. (Hardcastle v. Fisher, 24 Mo. 74.) To vitiate a deed of assignment the fraud must be brought home to the assignee. (Wise v. Wimer, 23 Mo. 237 ; Gates v. Labeaume, 19 Mo. 238; 24 Mo. 74.) The deed of assignment was executed before the attachment, and, though not recorded until after the attachment was levied, it would be good against the attachment. (14 Mo. 170; 20 Mo. 133.)

      Hall and Loan, for respondent,
    contended, among other things, that the statute permitting parties to interplead in attachment cases was intended to apply to those cases where the property attached was personal property.
   Scott, Judge,

delivered the opinion of the court.

An interplea in an attachment suit is a remedy conferred by the statute. Its use therefore must be limited to the cases in which it is authorized by law.

There is nothing in the statute which intimates that an interplea can be made for real estate. So far from it, its language seems to confine the remedy to cases in which personal property is attached. There is not the same motive for allowing it in the one case as in the other. Land is fixed and permament, and if one has a right to it, that right can not be affected except he has notice and is brought in as a party. Others may litigate about it without affecting him; indeed the proceedings under our attachment laws are already sufficiently embarrassing and involved without adding to them another element of confusion. Lands can not be attached by process issuing from a justice’s court, yet upon examination it will be found the language of the section prescribing when the interplea shall be allowed in a justice’s court is in exact correspondence with that used in the section permitting an interplea in the circuit court. “ Property, money, effects or credits attached” are the words used in both sections. Section 89 ,of the first article of the act concerning attachments mentions the garnishee as the person in whose hands the property or other things subject to an interplea may be. Now by reference to the sections directing the mode by which attachments may be served, it will be seen that the word garnishee can only be predicated of one who holds personal effects subject to attachment and garnishment. The phrase, too, in the same section, “ in whose hands the same may be,” clearly carmes the idea that things personal were only intended, as such language is never used in reference to the possession of real estate.

The other judges concurring, the judgment will be affirmed.


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    The State, Respondent, v. Stumbo, Appellant.
    1. An indictment is not rendered invalid by reason of an omission to state therein the time at which the offence was committed, where time is not of the essence of the offence. (R. C. 1855, p. 1176, § 27.)
    2. The discovery of evidence of a character merely cumulative is no ground for a new trial.

      Appeal from Dade Circuit Court.

    This was an indictment for selling liquor without a license. It was not stated in the indictment when the alleged offence was committed.

      F. P. Wright, for appellant.
    I. The indictment is bad. A new trial should have been granted.

      Ewing, (attorney general,) for the State.
   Richardson, Judge,

delivered the opinion of the court.

The only objection to the indictment is that it omits to state the year in which the offence was committed. This objection is disposed of by the 27th section of article 4 of the act regulating proceedings in criminal cases, (R. C. 1855, p. 1176,) which declares that no indictment shall be deemed invalid, nor shall the trial, judgment, or other "proceedings thereon be stayed, arrested, or in any manner affected, “ for omitting to state the time at which the offence was committed in any case where time is not of the essence of the offence.”

Evidence had been given by the defendant, on the trial, of the same kind and to the same point as that stated in the motion and affidavit to have been discovered after the trial. It was then merely cumulative and was not sufficient to authorize a new trial. (Beauchamp v. Seance, 12 Mo. 57; State v. Larimore, 20 Mo. 425.)

With the concurrence of the other judges, the judgment will be affirmed.


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    The State, Respondent, v. Stotts, Appellant.
    1. A. and B. were jointly indicted for a felonious assault; A. was tried separately and convicted, and his punishment assessed at the payment of a fine; afterwards, upon the trial of B., A. was offered as a witness in his behalf: held, although it did not appear that he had paid the fine, that he was a competent witness.

      Appeal from Lawrence Circuit Cowrt.

    This was an indictment against John Stotts and Thomas Stotts for a felonious assault upon one Alexander Smith— John Stotts being indicted as principal in the first degree, Thomas as being present aiding and abetting.

      Gardenhire, for appellant.
    I. Thomas Stotts ought to have been admitted as a witness. (1 Arch. C. P. 152-8 ; 2 Ya. Cas. 317.)

      Ewing, (attorney general,) for the State.
    I. Thomas Stotts was not a competent witness. (State v. Ward, 15 Mo. 128.)
   Richardson, Judge,

delivered the opinion of the court.

Thomas Stotts was jointly indicted with the defendant, and on a separate trial was found guilty and his punishment assessed by the jury to the payment of a fine of five hundred dollars. Afterwards on the trial of the defendant he offered to introduce Thomas Stotts as a witness, but the court rejected him.

It may be stated generally that when two persons are jointly indicted, neither is admissible as a witness for the other, whether they are tried jointly or separately; (State v. Ward, 15 Mo. 28;) but an accomplice separately indicted may be examined as a witness for the defendant. (United States v. Henry, 4 Wash. C. C. 428.) And so, also, though two are jointly indicted, if one in a separate trial is acquitted or convicted, he may be a witness for the other. (Whart. C. Law, 368; Arch. Crim. Plead. 153; Res v. Ges, Car. & M. 111.) Some of the cases require that conviction, in order to restore competency when the punishment is by fine, shall be followed by satisfaction; but that has not been the uniform practice in this country. For many offences the judgment, by operation of law and as a part of the punishment, disqualifies the party from testifying as a witness in any case, and to say that a convicted accomplice in such cases can not testify until after judgment, would destroy the right to call him at all. It can not be maintained that in all cases the conviction must be followed by the sentence of the court or the satisfaction of the judgment; and if an accomplice can be used after conviction and before judgment in cases where the punishment is infamous, it would be unreasonable to apply a more rigid rule to persons convicted and liable to suffer only a pecuniary penalty. The witness was improperly excluded, and the judgment will be reversed and the cause remanded ;

the other judges concur.


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    Blackburn, Respondent, v. Jackson et al., Appellants.
    1. A verbal acknowledgment or promise is insufficient to take a case out of the operation of the statute of limitations. (R. C. 1845, p. 720, § 13; R. C. 1865, p. 1052, § 12.)
    2. In a suit on a judgment of a sister state the record showed that the writ of summons was returned “executed in full;” held, that there was prima fade evidence of jurisdiction of the person.
    3. A formal levy of an execution alone, where the property levied upon is returned to the defendant, operates no extinguishment of a judgment.

      Appeal from Lawrence Circuit Court.

    This was an action commenced in April, 1851, against Alvah Jackson and John Spillman on two promissory notes dated January 1, 1840 — one for $44, the other for $44.65— both payable one day after date. The plaintiff by an amended petition introduced another cause of action — a judgment rendered in the circuit court of Allen county, Kentucky, in May, 1839, for 1253.93. This was a judgment by default, and was against William Coleman, Alvah Jackson and John Spillman. The return of the writ of' summons in this case was thus: “ Executed in full, May 3, 1839. [Signed] J. Thomas, D. S., for R. H. Paris, S. A. C.” There was no appearance of either of the defendants. An execution was issued upon this judgment and levied upon certain real estate of Coleman and Spillman, and certain personal property belonging to Spillman. The real estate was sold, but the personal property was returned “not sold for want of time.” A venditione exponas was issued, of which the following return was made : “ The property levied on was given up to the defendants and returned from this levy by order of the.plaintiff. October 31,1839.”
    In the present suit, Alvah Jackson being a non-resident, there was publication as to him. Spillman having died, his administrator became a party to the suit. He pleaded nul tiel record as to the judgment sued on, and also that the release of the property levied upon in Kentucky operated a satisfaction of the judgment; also the statute of limitations as to the notes sued on. At the trial evidence was introduced in behalf of plaintiff to the effect that Spillman had agreed verbally with ah agent of plaintiff in 1850 that if he (the agent) would wait and forbear to sue until he, Spillman, could go to Arkansas and see Jackson and return home, then he would pay the notes; that he did so wait and forbear to sue.
    The court found for plaintiff and rendered judgment on the notes and on the judgment.

      F. P. Wright, for appellants.
    I. A levy on sufficient personal property to satisfy a judgment, though the execution be returned unsatisfied by direction of the plaintiff, extinguishes the judgment. (Jackson v. Bowen, 7 Cow. 13 ; Blair v. Caldwell, 3 Mo. 249; 4 Cowen, 417 ; Clark v. Withers, 1 Salk. 323.)

      II. The court erred in permitting the record of the Kentucky judgment to be read. The return made is not even prima facie evidence of personal notice.
    II. The court erred in permitting the parol promise of Spillman to be given in evidence. (R. C. 1855, p. 1052, sec. 12.)
    Gardenhire, for respondent.
    I. No exceptions were properly saved to the admission of evidence. The facts found warrant the judgment.
   Napton, Judge,

delivered the opinion of the court.

The statute of limitations having been pleaded, it was error in the court to permit the verbal promise of Spillman to take the case out of the statute. Our law requires such promises, in order to be available, to be in writing. (R. C. 1845, p. 720, sec. 13.)

In relation to the Kentucky judgment, it is objected that the service of the writ of summons was insufficient, and that there is therefore no record of a judgment which can be enforced here. The return is “ executed in full.” The record contains this further statement: “ This day came the plaintiff by his attorney, and the defendants being duly summoned and not appealing,” &c. In the case of Wilson v. Jackson, 10 Mo. 331, such a return was held prima facie evidence of service where it was made upon a capias in Virginia. That the Kentucky court considered the return evidence of service is manifest from the record which recites, as a foundation of the judgment by default, that the defendants were duly summoned. In this case there is no plea that the party was not served with the writ, nor any evidence submitted tending to establish such a defence. The objection therefore to the form of the return was we think properly disregarded by the circuit court.

Wo do not consider the levy made upon Spillman’s property as an extinguishment of the judgment. The property was returned to the defendant by the plaintiff’s order, as it appears from the sheriff’s return, and such a levy as this is no satisfaction. No injury is sustained by the defendant, and it is not understood to be the law that a formal levy alone extinguishes a judgment. (Moss v. Craft, 10 Mo. 721; Williams v. Boyce, 11 Mo. 537.)

The judgment will be reversed and the cause remanded;

the other judges concurring.


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    Carriger’s Administrator, Respondent, v. Whittington’s Administrator, Appellant.
    1. A. constituted B. his agent and authorized him to sell a pre-emption claim belonging to him; B. sold the land and received the purchase money; the sale was made after the death of A. but in ignorance thereof and in good faith; the purchase money was paid to B. after knowledge on his part and on that of the purchaser of the death of A. Held, that A.’s representatives were entitled to recover of B. the purchase money so received.

      Appeal from Buchanan Court of Common Pleas.

    This was an action by the administrator of Christian Car-riger to recover certain sums of money alleged to have been received by William W. Whittington, defendant’s intestate, as the agent of said Carriger. Evidence was introduced that in 1846 said Carriger had a pre-emption claim; that he went to California leaving Whittington his agent; that he received the rents accruing, and also sold the claim to one De Witt; that he received in 1847 fifty dollars for rent of this land; in 1848 twenty dollars ; that in 1850 he received from De Witt five hundred dollars, the purchase money agreed to bo paid for the pre-emption claim; that Carriger died in 1846 on the way to California. It did not appear that his death was known to Whittington and De Witt at the time of the sale. The court instructed the jury as follows: “ If the jury believe from the evidence that William Whittington, as the agent of Christian Carriger, received of Neff, in the spring of 1847, fifty dollars, and in the spring of 1848, of Patton, twenty dollars, and in the spring of 1850, of De Witt, five hundred dollars, with interest, for the price of Carriger’s farm, and that the plaintiff, Charles F. Holly, as public administrator of Andrew county, has charge of said Carriger’s estate, they will find for the plaintiff the amount so received by said Whittington.”
    The court refused the following instructions, among others, asked by defendant: “ 1. Unless the jury believe from the evidence that Christian Carriger was alive at the time William Whittington made the sale and received the money in evidence, they will find for defendant. 2. If the said William Whittington was the agent of Christian Carriger, deceased, and received the money in evidence as such agent, then the jury will find for the defendant, unless the plaintiff has proved that said money was demanded before the commencement of this suit. 5. If more than five years have elapsed since said money was received and before suit, they will find for defendant. 6. If the jury find from the evidence that Carriger merely authorized William W. Whitting-ton to sell for him, the said Carriger, the land mentioned in evidence, then so soon as said Carriger died said Whitting-ton had no further authority to act as such agent; and if he was so dead at the time of said sale then the juiy will find for the defendant.”

      Vories, for appellant.
    The court erred in refusing the first and sixth instructions asked by defendant; (Story on Bail. § 488; Hunt v. B,ous-manier, 8 Wheat. 174;) also in refusing the other instructions asked by defendant; (Cocherill v. Kirkpatrick, 9 Mo. 697 ; G-reenl. Ev. 82 — 8 ; 16 Mo. 478 ; Benton v. Lindell, 10 Mo. 559 ;) also in giving the instruction asked by plaintiff.

      Loan, for respondent.
    I. The court properly refused the instructions asked by defendant.
   Napton, Judge,

delivered the opinion of the court.

It does not appear in this case whether at the time of the sale of the pre-emption by Whittington to De Witt the death of the principal, Carriger, was known to the parties or not. It is inferable that at the time of the payment of the purchase money to the agent, in 1850, Carriger’s death was known to both parties. It is probable that when the contract was made in 1847, Carriger’s death, which took place in the previous summer on his way to California, was not known to either.

Although by the common law an agency terminated by the death of the principal, and all subsequent acts of the agent cease to bind his heirs or executors, yet judicial tribunals, especially those having equitable jurisdiction, have, for the convenience of trade and commerce and in accordance with the principles of natural justice-, very much modified this doctrine. When the death of the principal is unknown to both' parties at the time the contract is made, so that there is no binding contract on him or his representatives, the agent is not personally responsible. (Smout v. Ilbery, 10 Mees. & Wels. 1; Story on Agency, § 265; Blader v. Free, 9 Barn. & Cress. 167.) In Cassiday v. McKenzie, 4 Watts & Serg. 282, the Supreme Court of Pennsylvania declared in good sense and sound reason there was no difference between a revocation of an agency by the act of the principal and a revocation by his death, which was the act of God, and that in either case, where the parties dealing were acting in good faith and ignorant of the revocation, the principal or his representatives ought to be bound. In neither case did the court suppose the agent would be; and they repudiate the opinion of Lord Ellenborough, in Watson v. King, 4 Camp. 5 Esp. 117, and of Lord Loughborough, in Tate v. Hilbert, 2 Ves. jr., —, where a power of attorney, though coupled with an interest, was held to be instantly revoked by the death of the grantor.

To determine the case now under consideration it is not important to inquire whether the heirs of Carriger have any claim upon the purchaser De "Witt, or not, for the land or pre-emption right, or whether the collection of the purchase money from Whittington by Carriger’s administrator would have any bearing, either in law or equity, upon the determination of that question. It is manifest that the purchaser is, under the circumstances, without recourse upon the agent Whittington, and this is all which it is material to decide in allowing this recovery on the part of Carriger’s administrator. It is clear from the testimony that when the money was paid over by De Witt to Whittington, "both the agent and the purchaser were aware of Carriger’s death, and this circumstance would relieve the agent from personal x-esponsibility as much as if both parties had been ignorant of the principal’s death. (Story on Agency, § 265.) In addition to this, the purchaser De Witt was a witness at the trial, and interposed no objections to the recovery. On the contrary, he was a witness for Carriger’s representative. Should it turn out that Carriger’s heirs have title to the land, he could not look to Whittington, as he not only had notice of the death of Carriger at the time of the payment to Whittington, but is also fully notified of this proceeding to compel the agent to pay over to the principal. As the purchaser is the only person who could be injured by this proceeding, and he does not olfer to interplead, it may be assumed that he is satisfied with his title to the land, or would as soon rely upon the responsibility of Carriger’s representatives as upon that of Whittington’s.

There is nothing in the objection to the want of a demand in this case. The administrator would have no authority to pay money on demand. A claim against him must first be allowed by the probate court, and a demand would have been useless.

Nor is there any thing in the objection raised on the statute of limitations. That statute did not commence running until the grant of letters of administration.

The other judges concurring, judgment affirmed.