author: Ryland, Judge,

text:
    Maguire and others, Defendants in Error, v. Page and Morton, Plaintiffs in Error.
    1. By act of congress of July 4th, 1836, an unconfirmed Spanish claim of one J. M. in and to a tract of land within the St. Louis common, the paramount title to which was in the city of St. Louis, was confirmed to the representatives of the said J. M. A., B. and C. were the legal representatives of J. M. as to portions of this tract, and had all his title to such portions. B. by falsely representing himself to he the legal representative of M. (not however by derivation of title through A.) as to that portion claimed by A., under J. M., as well as to that portion for -which, he had a derivative title from J. M., procured a. compromise deed from the city of St. Louis, embracing the portion claimed by A. This compromise deed was made to B. under a resolution of the board of aldermen of the city authorizing the conveyance to him, as the representative of J. M. A. did not appear before the board of aldermen to claim a conveyance to himself as the representative of J. M., nor did he know of the proceedings of the board of aldermen, nor of the conveyance by the city to B., nor of any'claim by B. to the portion claimed by himself. Held, that the deed thus obtained by false representations did not enure to the benefit of A. as to that portion claimed by him by derivative title from J. M.; and that a petition against B.’ setting forth the facts above stated and praying a decree for the tract so claimed by A. as above stated, upon the payment of the compromise money — $20 per acre — with interest, contained no equity.

      Error to St, Louis Court of Common Pleas.

    The facts sufficiently appear in the opinion of the court.

      Shepley & Williams, for plaintiff in error.

      I. The plaintiffs are in no condition to complain, and have no equity however unauthorized the act or the city of St. Louis may have been in making the deed to Morton. The city of St. Louis had absolute title to the land in controversy. The city then having the title, without the representatives of Mackay having any claims upon them whatsoever, could dispose of the land in conformity to law to whomsoever she pleased. The city itself is to decide what lands are in controversy, and with what claimants or set of claimants it will settle and compromise. The city exercised the right it possessed, and by its resolutions offered to compromise to George Morton, P. M. Dillon and Frederick Dent, to them as individuals and to them alone. The resolutions and ordinances of the city offered no compromise and gave no privilege to the representatives of James Mackay; therefore, if it be true that the city had no right to compromise with Morton as to this land, because he represented no antagonist title, then the title is still in the city. The finding states that neither Rutgers nor his representatives knew of the conveyance by the city, nor of the proceedings and resolution of the board until years after it occurred, and that there was no one before the board representing Rutgers. Yet they set up this claim just as if they had appeared before the board, offered and requested a compromise, and Morton had, by fraudulent representations, induced the city to compromise with him and not with them.
    II. But Dent, whose title Morton had purchased before the deed of the city was made to him, though it was not conveyed to him until afterwards, was before the committee claiming to be the representative of Mackay for the land afterwards conveyed to Morton as the assignee of Dent, and the city was authorized to convey to him.
    Ill: Even if it be admitted that the plaintiffs, at the time the city conveyed to Morton, or shortly after, would have been entitled, upon payment of the sum paid by Morton, to a conveyance, yet they now have no equity that they can enforce. They must show that they at once claimed the benefits of the eom-promise, and insisted that it enured to them. It must conclusively be shown that they considered it then a thing beneficial to them, and that they put forth their arm to grasp it. There is no evidence in this case which shows, or tends to show, any other state of facts than that the plaintiff, for years after the deed was made to Morton, relied solely under their title under Mackay, and were content to abide by it as the paramount title. There is no evidence that for years, after the deed was made, they were willing to pay twenty dollars per acre, required by the city. There is no evidence but that, until after the decision in the case of Mackay v. Dillon, they were always ready and willing to encounter the city title, whether it was held by the city, Morton, or any one else. There was no movement made as to payment or tender of compromise money paid, and no effort, in any way, to obtain the city title by the plaintiffs, until after the lands had risen enormously in value.
    IV. If a fraud or deception has been practiced by Dent or Morton, it is a fraud upon the city, and not one against the representatives of Rutgers, with whom Dent was in no way interested, he asserting an antagonistic title to theirs. Neither Dent or Morton claimed or asserted title through Rutgers.
    V. No fraud or deception was practiced by either Dent or Morton upon the board of aldermen or the mayor, and the finding of the court is erroneous in this particular. Morton’s position as a member of the committee on commons, under the facts in evidence, in no way affects this case.
    VI. Even if, as against Morton, the plaintiffs would be entitled to the relief prayed for, yet, as against Page, they are not entitled, unless it can be shown that he had knowledge or notice of these transactions, or held the property in secret trust for Morton’s benefit; and the finding of any such facts by the court is erroneous. That there was knowledge or notice on the part of Page is not pretended, but the effect is to prove that he holds this property for Morton’s benefit. The finding of court, that he held it in secret trust for Morton, is not warranted by the evidence. ' If originally held by Page in secret trust, yet there was no, trust after the purchase by Page at sheriff’s sale. Morton says he knew nothing of it.
    VII. No decree should hare been made without making the land subject to payment of the debt to Russell.

      T. Polk, for defendant in error.
    I. Morton having procured from the city a deed for the portion of the Mackay claim belonging to Rutgers by falsely representing himself as the owner thereof, held the same in trust for Rutgers and his representatives. (Perkins v. Hays, 1 Cooke, 166 ; Lloyd v. Spillet, 2 Atkyns, 148 ; United States v. Hughes et al., 11 How. 552 ; Stephenson v. Smith, 7 Mo. 610.)
    II. The defendant, Page, having notice of all the facts, and receiving his conveyance of the land, without consideration, holds the same upon the same trusts as affected it in the hands of Morton. (Wilson v. Mason, 1 Cranch, 100 ; Murray v. Ballow, 1 Johns. Ch. R. 566, 400, 136 ; Graves v. Graves, 1 A. K. Marsh. 166 ; 2 id. 149.)
   Ryland, Judge,

delivered the opinion of the court.

Maguire and others brought their action, in the nature of a suit in chancery, against Page and Morton, in the St. Louis Common Pleas, to declare a constructive trust in relation to a piece of ground in the St. Louis common, on account of alleged fraudulent contract of Morton in procuring the legal title thereto from the city of St. Louis ; alleging that defendant, Page, holds under Morton, with notice of plaintiffs’ right, or, as the trustee of Morton, under secret trust. The same transaction is found in the ease of Swartz v. Page, heretofore before this court, reported in 13 Mo. 603. (See statement in that case.)

There was conceded to James Mackay, in his lifetime, a tract of land, a part of which was embraced within the St. Louis common, as it (the common) was surveyed by the United States. The portion lying outside the common was confirmed in 1816, and the part within the common, 'containing about 209 arpens, was confirmed on 4th July, 1836. The said Mackay, by his will, authorized his widow and executrix to sell and convey portions of his real estate. The executrix sold and conveyed to Arend Rutgers, on the 5th day of May, 1825, a tract of land containing 33 arpens.

The plaintiffs set out and show their derivative title under Rutgers. In March, 1825, the sheriff of St. Louis county conveyed to Abner Blaisdell, under judgment and execution against the estate of Mackay, a lot of 15 19-100 acres, bounded east by land of Rutgers, north by land of Chouteau, south by Soulard. Derivative title to that lot from Blaisdell to Morton was shown. Of the 33 arpens sold by the executrix to Rutgers, 8-|- acres lie within the survey of the common ; this lot is claimed by the plaintiffs in this action, and the decree of the court below was made therefor in their favor.

On 2d of April, 1836, the defendant Morton, Patrick M. Dillon and Frederick Dent, were owners of portions of. the Mackay claim lying within said survey of the common. Morton, in addition to the portion for which he held a deed, also had a contract with Dent by which the latter had agreed to convey to him an additional part thereof, to which he, Dent, orally represented that he held the Mackay title, and which covered the 8-J acres belonging to Rutgers. But Dent had not the Mackay title to this 8J acres. The committee of the board of aldermen of the city of St. Louis on commons, of which committee Morton was a member, made a report recommending that the mayor and board of aldermen convey all their right and title to the land within the survey of the common, known as the Mackay claim, to the representatives of said Mac-kay, for and in consideration of the sum of twenty dollars per acre. The legislature having, by an act passed in March, 1835, empowered the mayor and board of aldermen of the city of St. Louis, to settle or compromise, on the most advantageous terms, with all persons having claims within the common conflicting with the claim of the inhabitants of the city of St. Louis, the board of aldermen passed a resolution that P. M. Dillon, George Morton and Frederick Dent, being the legal representatives of James Mackay, shall receive deeds for the land claimed by them, and which is within the survey of the common, by their paying twenty dollars per acre therefor.

The claim of Arend Rutgers was never presented to said committee, nor did any one claim any part thereof before the said committee.

Before the report of the committee on commons recommending a compromise, and before the resolutions of the board in relation thereto, Dent had bargained with Dillon for that part of the Mackay concession conveyed to Dent by the sheriff’s deed, dated in August, 1825, which lies west of St. Ange avenue, and had made a verbal bargain with Morton for all that part so acquired by said Dent, lying east of St. Ange avenue. After said resolutions were adopted, Morton, fearing that Dent would not stand to his bargain, and having heard Dent state that by virtue of his deed from the sheriff, in 1825, he was entitled to all of the Mackay concession lying within the St. Louis commons, procured a deed to be drawn up, describing all land lying within the Mackay concession, east of St. Ange avenue and west of the east line of the commons, including that claimed by Rutgers, as well as that claimed by himself, and that claimed by Dent east of St. Ange avenue, and presented it to the mayor of the city to be by him executed ; representing to the said mayor at the same time, that he, Morton, had bargained with said Dent for his, Dent’s, interest in the land described in said deed, and that Dent’s claim under Mackay extended to the east line of the commons. Morton^ by said representations, which are charged to be false, on the 10th day of May, 1836, procured the execution of tha deed by the mayor, whilst in fact Dent’s deed from the sheriff did not include the said land claimed by Rutgers, nor any part of it.

Dent and wife afterwards, in March, 1837, conveyed by deed to Morton lands, the description of which is the same as in the deed from the mayor to Morton, so far as it relates to the land in controversy. The deed from the mayor of St. Louis to Morton was filed for record the same day it was executed, 10th May, 1836. Notwithstanding the fact of the filing and recording of this deed appears by the certificates endorsed thereon by the proper officer, yet the court below finds that “ Arend Rutgers died in 1837, without having learned the proceedings of said committee or said board, or of any conveyance by the city to said Morton, nor of any claim by said Morton or Dent to any part of the land claimed by said Rutgers or his said representatives ; nor did any of said Rutgers’ representatives know or hear of said proceedings of said committee or board, or of any conveyance by the city to Morton, nor of any claim by said Morton or Dent to any part of said Rutgers’ tract, until long after said conveyance by the city to Morton had been executed.” The counsel for the plaintiffs, in his statement of the case, says: All this remained unknown to said Rutgers and his representatives until 4th March, 1851, when the plaintiff, Maguire, tendered to the defendant, Page, the full amount of the compromise money paid by Morton to the city for the premises in controversy, with interest thereon, as also costs and expenses, and demanded a deed of said premises, which was refused.”

The sheriff’s deed to Frederick Dent, in the bill of exceptions, was for land sold by virtue of an execution in favor of B. & J. Pratt, against the executors of the estate of James Mackay, deceased; the execution was returnable to the July term of the circuit, 1825, and the land is described as a tract of land containing two hundred arpens, part and parcel of a concession to said James Mackay, situated south of Auguste Chouteau’s mill tract, bounded north by said Chouteau, west by vacant land, south by vacant land and land of A. Soulard, and east by land of A. Rutgers and J. Mullanphy; all the right, title, claim, interest, estate and property of the said James Mackay to this tract, was sold by the sheriff to said Dent, the deed being dated 6th July, 1825.

Judgment was rendered in this action against Morton by default, and Page having answered, the case was submitted to the court.

Morton was introduced as a witness by the plaintiff. He stated that he did not answer the bill of the plaintiffs; he had no answer to make. He says : “I got a deed from the city to the land in dispute ; I obtained it as others obtained theirs, who compromised with the city, by presenting my deed to the mayor and having him sign it. Before the committee had acted on our claims, Mr. Dillon and myself bargained orally with Dent; Dillon, for all of Dent’s claim west of St. Ange avenue, and I, for all east of said avenue.' After the report of the committee, Dillon told me that Dent was going to fly the bargain, and I therefore included in the deed, which I handed to the mayor, all that' Dent represented he had bought at sheriff’s sale ; I did that to hold Dent to his bargain. I had it surveyed and the description made out by De Ward, the city engineer, and the deeds made out from that; I was one of the committee on commons ; no objection was made to my claim by any of the committee, that I ever heard of ; I made no representations to the committee other than that I was entitled to the land as others who had claims, to the committee. I was entitled to that land as all others were who had Spanish claims, and presented my claim to the committee in the same way. I do not recollect the committee passing upon my claim ; no dissenting voice to mine, that I recollect of ; my deed did not contain more than I claimed. I claimed under the Mackay claim ; I had fifteen acres and more there; then I bargained with Dent and agreed to purchase from him ; I did not state to the committee the description of the land I claimed; I did not exhibit my title and papers to the committee, as I recollect; I don’t recollect whether the committee reported in writing; I don’t recollect who wrote the deed. The description was from De Ward’s survey. I was aware at the time that Rutgers had an adverse claim to the land there. Dent told me he (Dent) had a better title by an old sheriff’s deed. I bought from Messrs. Gorman and White fifteen acres or thereabouts ; I understood that Gorman got the same from some one who had bought from the sheriff; I never saw that deed, that I now recollect ; I don’t know what was called for by the deed of sheriff to Dent; never examined it; I had Mr. Dent’s assurance that his was the best title; I had no deed from Dent when I compromised with the city ; I got a deed from him afterwards ; I had made the representations to the committee ; I only spoke before them of the quantity claimed on account of my bargain with Dent. Dent wanted to sell to Dillon, and Dillon told me that Dent was about to take advantage of me, and I got my deed from the city; I paid Dent about $1100. I should not have claimed Rutgers’ land, under my agreement with Dent, had I known that the sheriff’s deed to Dent, bounded the land east of Rutgers ; but I bargained with Dent, and claimed only according to Dent’s statement and representations to me. The boundaries of what is in the deed of Dent to me includes this land in dispute. The 8-|- acres were not in the first bargain. He brought me a deed, and I paid him $1100 for the interest which he represented as his.”

From the view we take of this case, it is not necessary to trace the title from Morton down to Page. There is no question as to the superiority of the title of the city. That the title was in the city to the portion of the Mackay concession lying within the common, is conceded by both parties ; nor can there be any longer a question on this subject. The authority given by the act of the.legislature to the mayor and board of aider-men to settle and compromise the conflicting claims of persons claiming title to lands within the city commons, and the acts done by said board under and by virtue of such authority, are also valid and binding. Here, the compromise is specially named and authorized to be made with P. M. Dillon, George Morton and Frederick Dent, legal representatives of James Mackay, deceased. It is so made, and the mayor executes his deed to Morton for forty-nine acres and forty-five hundredths of an acre, which is specially designated in said deed ; the consideration thereof being $900, or twenty dollars per acre for forty-five acres, tbe four fifty-five one-bundredtbs acres being taken up in tbe avenues running through and bounding tbe land. Morton claimed this land by virtue of bis derivative title from Blais dell, and by -virtue of a bargain made with Dent. He made no claim in the name of Rutgers or bis representatives. He did not pretend that be bad any interest to tbe Mackay claim through Rutgers, or through any one claiming under Rutgers. He claimed through his grantors up to Blaisdell and through Dent.

Now had Rutgers presented his claim to the board for compromise, the board, no doubt, would have been equally as willing to accept the terms from him as from others, and would have authorized a deed to have been made for his claim. But Rutgers does nothing to bring about such a compromise; for nothing appears on this record to the contrary but that he did suppose his title through Mackay’s concession better than the city’s title to the land within the common. It was long after Rutgers’ death that the Mackay claim was pronounced inferior, to the city’s title. (Mackay v. Dillon, 4 How. S. C. 421; Le Bois v. Brammell, 4 Howard, S. C. 449, decided by the Supreme Court of the United States in January, 1846.) Now admit the worst phase against Morton that can be drawn from the facts and documents appearing in this case, and he can not be charged- with any fraud or misrepresentation before the board of aldermen or to the mayor, against Rutgers or those claiming under him. Grant that he claims more land and different land, and pays for more land and other land than Dent and himself; both had a just right to claim. But this did not preclude Rutgers from making his claim, obtaining his deed, and holding to such land under the city as the deed from the city would have conveyed to him. But it is said Morton got the land that Rutgers would have got from the city, and got it by making false representations to the city ; not under the Rutgers’ claim though, nor in defeat of the claim, if it had been made properly and at the proper time. Then Morton must claim adversely to the Rutgers’ claim, and can not be converted into a trustee for Rutgers and those claiming under him.

How long can it be supposed that the city was bound by her offers and resolutions to compromise her title to the common with those claiming adversely to her, and that, too, at twenty dollars per acre ? Could Mackay’s legal representatives, or Rutgers or his legal representatives, have demanded of the city that in 1846 she should carry out her offers and resolutions for compromise, which had been made ten years before, and had remained so long unnoticed or disregarded by the claimants ? Will any one pretend that such a demand would have met with the slightest respect from the city ? Rutgers nor Mackay, nor either of the representatives of either Mackay or Rutgers, had any meritorious cause to demand of the city a compromise. They had paid the city nothing; there was no consideration moving from them to the city. But she voluntarily resolved to compromise the claim of the Mackay title with Dillon, Morton and Dent; and did so, conveying to Morton all his and Dent’s claim, as set forth by Morton. Would any one pretend that, if the Mackay title had prevailed over the city’s title, that any portion of the Rutgers’ claim within the compromise between Morton and the city would have been affected by such compromise, so as to be thereby taken from Rutgers’ representatives ? Would it not have been a complete answer that Rutgers and the representatives of Rutgers were strangers to such compromise ; had nothing to do with it, and can not be bound by it ? Suppose it was a fraud perpetrated by Morton against the city, what right have Rutgers’ representatives to come into a court of chancery and ask that the fraud may be converted to their benefit ? It was not perpetrated by their agent, nor with their means, nor in their names, nor against their rights ; for, so far as regards the city, they had adverse claims, and if they refused or omitted to avail themselves of the terms of compromise offered by the city, it is their misfortune. Morton’s compromise did not prevent Rutgers from compromising ; and bad he done so, then, had there been any conflict or controversy about any particular part or tract of land acquired by each other under such compromise, the courts would have determined to which one the land in dispute properly belonged. But Rutgers, so far from compromising, appears to have totally disregarded the whole matter during his life, and his representatives for many years after his death. For, although the deeds of the city to Morton, and of Dent to Morton, have been recorded in the proper office, yet the court below finds that Rutgers never learned any thing about it, and his representatives not for a long time thereafter. Why was this? It must be because Rutgers relied upon the 'strength and validity of the Mackay title, or was unwilling to trouble himself to know what the city was doing or had done in regard to her title ; or was not willing to pay the price asked by the city, per acre, for her title, by way of compromise.

There is nothing on the record showing that Morton represented Rutgers or his heirs by purchase or private arrangement, made by him with them ; nor is there any thing showing that the 8$ acres were included by the mayor’s deed to Morton by their consent; and they can not be allowed to lay by for ten or fifteen years until the Mackay title has been declared unavailing against the city’s title, and then come forward and charge fraud upon Morton, and pray that the fraud may be converted to their advantage. ' So far as the Rutgers’ representatives are concerned, Morton takes the place of the city. As they could not compel the city now to compromise, I see no better claim in their favor to compel Morton, The city never had Rutgers’ title to the land in controversy; the city had no claim under Mackay or under Rutgers, or their representatives. The city had a claim of her own — a claim adverse to Mackay and Rutgers ; and when she compromised, she gave up her own superior title. Morton never got Rutgers’ title from the city. He got the city’s title to a piece of land to which Rutgers had a claim arising in opposition to the city’s title. He did not get the city’s title by pretending he owned Rutgers’ title. It is laid down that, where a person by fraud obtains a title to that which equitably belongs to another, he shall be considered, in the light of trustee to that other, and will be compelled, in a court of equity, to convey to him his legal title. What was Rutgers’ title here? At most, so far as regards the city’s title, he had the right, if he thought proper, to purchase it at twenty dollars per acre ; that is the full extent of his right. He neglects to do this, and another gets a compromise, who succeeds by asserting that his claim embraces such a contract; he obtains a deed; he made improper and false assertions in regard to the extent of his claim, and thereby obtains a deed for a part not properly within his claim, but in the claim of Rutgers. The title which Rutgers had utterly fails; he omitted to get the city’s title. Now what right has he or his representatives, after this, to come forward, because the city was imposed upon by her grantee, and make that grantee his trustee. The cases of Perkins et al. v. Hays et al., (1 Cooke, 163,) United States v. Hughes et al., (11 Howard, 552,) and of Stephenson v. Smith, (7 Mo. 610,) are nowise similar or analogous to the case at bar. It will be useless, therefore to extend this opinion in commenting on .them. The doctrine of resulting trusts, laid down by Lord Hardwicke, in Lloyd v. Spillet, (2 Atkyns, 150,) is recognized, and would be applied where the facts warrant it.

In Hill v. Reardon, (2 Russell, 645, 3 Cond. Eng. Ch. 253,) will be found a case more analogous to the one at bar than any other we have as yet been able to find. The head note of this case is as follows: “Under the conventions with France for indemnifying British subjects for confiscation of their property by the French revolutionary government, and the act of 59 Geo. III, ch. 31, compensation for an estate and the movaable property on it was awarded by the commissioners to ‘ A.’ as executor and residuary legatee of ‘ B.’ A bill was filed by one of the co-heiresses of the wife and children of B., all of whom had died during his lifetime, alleging that by the then existing laws of France the will of ‘ B’ was inoperative, and that a moiety of the property did not belong to him, but to his wife, from whom it had descended to the children, and from them to the plaintiff and another person as co-heiress with her, and claiming for such co-heiresses a moiety of the compensation. No claim had been duly made before the commissioners in respect to the alleged title which the plaintiff sought to enforce ; neither had there been any discussion before them as to that title ; but the facts out of which it arose were disclosed or alluded to in the proceedings which led to the award. Held, that, under such circumstances, the Court of Chancery would not interfere to relieve the plaintiff.”

Before the commissioner appointed under the act of parliament, 59 Geo. III, ch. 31, to carry into effect several conventions for liquidating claims of British subjects and others, against the government of France, Mr. Devereaux, as representative of a Mr. Fanning, caused three claims to be duly entered in the register kept by the commissioners, and in support of them brought forward the following state of circumstances, substantially : “ In 1777, James Fanning, by birth an Irishman, purchased an estate called Roche Talbot, situated in a district which was then a part of the provinces of Maine and Anjou, but is now in the department of the Sarthe, in France. He resided there until February, 1791, when the progress of the revolution induced him and his daughter to come to England, and in September, 1792, he was followed thither by his son. His wife had died in 1788. The local authorities having prevented the agents of the family from collecting the rents, the son, in November, 1792, addressed a letter on the subject to the directory of the department of the Sarthe, in which he affirmed that ‘ Roche Talbot’ had been bought with moneys belonging entirely to his mother. In February, 1793, the father, son and daughter addressed 'to the French minister of foreign affairs a letter of remonstrance on the injustice of excluding them from the income of the property, and circumstances were stated in the letter from which it was manifest that the deceased, Mrs. Fanning, had had, and that after her death her son and daughter had, an interest in the lands. Their remonstrances were unsuccessful, and the rents were collected by the functionaries of the public treasury. In September, 1798, the national convention made a decree for confiscating the property of all English, Irish, Scotch and Hanoverian subjects ; and in the following March, a small part of 'Roche Talbot’ was sold by the department of the Sarthe, and other portions of it at subsequent periods; but the woodlands, for the most part, remained unsold. The son died unmarried and intestate in 1796, and the daughter died unmarried and intestate in 1801. In 1804, Mr. Fanning made his will, by which he gave legacies to some charities and the residue of his property to Deve-reaux, and appointed Devereaux and another person his executors. Mr. Fanning died at Paris in August, 1806, without leaving any issue him surviving. The will was not proved till 1817, and it was then proved by Devereaux alone. In 1814, Devereaux, as executor of Fanning, claimed restitution of the unsold woodlands as within the fourth additional article of the treaty of the preceding May. The British commissioners applied to the French authorities on the subject, and by the orders of the minister of finance he was, in January, 1815, put in possession of that part of the estate. Shortly aftewards, he was called upon by the public authorities to pay a sum of 13,530 francs as the amount of the duties which became payable on the successive devolutions of the woodland. In estimating the duties, it was assumed that upon the death of the mother one-fourth of the property had descended to the daughter, and another fourth to the son, as heirs of their mother ; that upon the daughter’s death, one fourth part of her interest went to .the father and the remaining three-fourths to her brother; that upon the brother’s death, one half of his share devolved to his father, and that the whole interest of the father had become vested in Devereaux. The formal instrument, requiring payment of the duty, stated that Mr. Fanning bad acquired the property dans sa cammunauté. avcc la dame son-épouse, and that Mr. Devereaux bad been put into possession as beir and testamentary executor of Mr. Fanning. Under these circumstances, Mr. Devereaux claimed compensation, first, for the amount of immovable property which had been confiscated, with interest thereon ; secondly, for the amount of the movable property which had been confiscated, with interest thereon; and, thirdly, for the intermediate profits of the unsold woodlands from time to time, when they were put under sequestration, until the date of their restitution. The claims were investigated before the' commissioners, and by awards of 29th September, 1820, and 18th and 23d of January, 1821, large sums were ordered to be paid to Mr. Devereaux as executor of Fanning, in respect to each of the three claims, and ordered a due proportion of the rentes, which were at the disposition of the commissioner, to be transferred to him.

On the 17th of March, 1821, Christopher Hill and Ann his wife, who was stated to have become on the death of the daughter of Mr. Fanning, in 1801, and to have ever since been one of the co-heiresses of Mrs. Fanning, and also one of the co-heiresses ex parte materna of both her son and daughter, filed their original bill in the Court of Chancery, asserting a right to a portion of the rentes so awarded, though they had not made any claim before the commissioners. They alleged that ‘ Roche Talbot’ had "been bought with the money of Mrs. Fanning, and had been conveyed to her husband and her and their heirs, as tenants in common; that upon the death of Mrs. Fanning, her moiety of the estate descended to her son and daughter as tenants in common in fee, and upon the death of the son vested wholly in the daughter, and upon her death, in the plaintiff, Ann, and the defendant, Mary Lewis, the other co-heiress ; that the plaintiffs and Mary Lewis were entitled to a moiety of the sums awarded for compensation; that, by the law of France, property which had been sequestered or confiscated, on account of emigration of the owner, belonged, if he died before the 5th of December, 1814, to the heirs and not to devisees or legatees; that Devereaux, therefore, had not, under the will of Fanning, or as his executor, any interest in the property or in the rentes awarded in lieu of it; and that he had preferred his claims to the commissioners without the knowledge of the plaintiffs, or of Mary Lewis, or of the attorney general. It was suggested also that Fanning, at his decease, left no heir or next of kin, and the attorney general was therefore made defendant. Devereaux answered the bill, alleging that, by the law of France, the property, at the time of the death of Fanning, belonged to him, and that he had power to dispose of it by will, and the only valid title to the property and to the compensation was in his executor and residuary legatee. He insisted that the court had no jurisdiction, and that the decision of the privy council was final. The commissioners of liquidation stated that they had not been able to form a satisfactory judgment as to the conflicting claims of plaintiffs and De-vereaux ; or, as to either of the two questions, whether Fanning, the father, after the decease of his wife and children, became entitled to the whole estate ; and whether he had at the time of his decease any power to dispose of it, or of any compensation to be made in lieu of it. There was evidence of the pedigree of the plaintiff, and of those alleged rules of French law' on which the plaintiffs and defendant respectively relied.

At the hearing, the vice chancellor dismissed the bill, on the ground that the court had no jurisdiction. The plaintiffs appealed. Before the lord chancellor, the plaintiffs’ counsel contended that Devereaux could not receive the compensation otherwise than subject to such rights as might exist in other British subjects, and that there was nothing in the conventions or in the act of parliament to destroy those rights ; that the award gave Devereaux the legal title to the money ; but, as no interest in the estate, in respect of which the compensation has been awarded, was ever transmitted to him, he must hold that money for the benefit of those who represented the true owners of the property for which it is substituted.

“ The defendant’s counsel urged that the commissioners and privy council, in making tbe award in favor of Devereaux, had decided two points ; first, that “ Roche Talbot,5’ with the movable effects on it, was property for which the representative of those who, at the time of the confiscation, were owners, had a right to indemnity ; secondly, that Devereaux was the representative of those owners, and was entitled to receive the sum allotted for compensation. On the other hand, the plaintiffs allege that, though compensation was due for the confiscated property, no part of that compensation should have been awarded to Devereaux. He was devisee and executor of Fanning. One moiety of the property, it is said, never belonged to Fanning, and Fanning had no power to dispose of the other moiety by will; consequently, the title of Devereaux was altogether chimerical. Admit the truth of the whole case stated in the bill, what would be the result ? Why merely that the award of the commissioners was altogether erroneous. The bill therefore is filed, not to enforce equities, but to set aside the award of the only competent tribunal — to annul the legal title which that tribunal has established, and to set up another title purely legal and adverse. Such a jurisdiction does not belong to the court. Suppose we have no title (say the defendant’s counsel) to the rentes which have been awarded to us, how does, the plaintiff thereby acquire a right to have the money paid over to him ? Our want of title might afford a reason for the calling upon us to pay back the money to the French government, from whom we received it; but it furnishes no reason for handing it over to the parties who never attempted to establish their title against France.

“ [The Lord Chancellor: In case of trust or fraud, I have not the least doubt of the jurisdiction of the court to interfere. It is said that, in cases of perfectly adverse titles, there is no jurisdiction. Suppose it were so, yet there must be jurisdiction to the extent at least of examining whether the titles are perfectly adverse, and therefore what is called the preliminary objection can not be gone into without a full discussion of the facts and merits of the case.]

“ The first question here is, can Devereaux be considered a trustee ? Is there such a statement of facts on the record as clothes him with the character of trustee ? And if there is, what is the effect of the conventions and act of parliament and the awards of the commissioners on the trust so reposed or represented as being reposed in him ? Secondly. If the case before the court is not one of fraud or trust, but of perfectly adverse title, the question will assume this shape: ‘You, Deve-reaux, have gotten a decision in your favor from the commissioners. I never claimed before them, and I have no decision awarding compensation to me. But you have gotten that which, if I had claimed, I should have gotten.’ How far do these conventions and this act of parliament hit such a case?

“ [The Lord Chancellor : I am of opinion that these conventions and this act of parliament do not prevent the court from having jurisdiction. And, on the question, whether, upon the whole of this record, the plaintiff has any title which a court of equity can enforce, I should propose to hear one counsel on each side.]

“ The case was again argued, and the Lord Chancellor delivered judgment. ‘ After giving great consideration to this cause, I am of opinion that this bill must be dismissed. I continue to think that this court has jurisdiction to attach equities on the award of the commissioners in some cases ; but 1 do not think that the claim of Devereaux and Reardon can be considered as a claim, in respect of which they can be deemed to be affected by equities (upon the state of this record) in favor of the plaintiffs.’ The bill was dismissed without costs.”

This case presents much stronger points in the plaintiffs’ favor than the one before this court. Here, the claims are by heirs against an executor and residuary legatee. The compensation was made for confiscating property claimed by the heirs to have been the property of their ancestors. The executor is not charged with fraud, to be sure ; nor is there any ground to charge Morton with fraud against the plaintiffs here. If Morton was not entitled to the piece of land deeded to him, his act in obtaining it from the city can not be made to operate in favor of plaintiffs. Suppose tbe city should have thought proper to have contended with Morton for the land, on account of fraud alleged to have been practiced against her by Morton, in obtaining her title, and should have succeeded in cancelling and vacating the deed to Morton, was she still bound to convey to Rutgers’ representatives the land at twenty dollars per acre, or at any price. Was there any equity in Rutgers’ representatives against the city ?

•Upon a thorough and careful examination of the case presented to us, and after great consideration, this court is of the opinion that the plaintiffs have no right to the relief sought by their bill. There is nothing by which we can attach a trust to Morton in favor of Rutgers’ representatives to affect the property in dispute. Morton must be considered as claiming entirely adverse to them. The lower court, therefore, should have dismissed the bill of the plaintiffs upon the final hearing. Its decree, in favor of the plaintiffs, is reversed, and the bill of plaintiffs is dismissed, with costs;

the other judges concurring.

       Although it is thus stated, it appears that the son died first.


source: Caselaw Access Project

author: RylaND, Judge,

license: Public Domain

text:
    Dunn, Plaintiff in Error, v. Wade, Defendant in Error.
    1. Accommodation endorsers of a promissory note may, as between themselves, be co-securities, and where, in such a case, one of such endorsers pays the whole amount of the note, he will be entitled to contribution from the other, whatever may be the order of the enndorsements.

      Error to St. Louis Circuit Court.

      Knox & Kellogg, for plaintiff in error.

      Comfort & Manter, for defendant in error.
   RylaND, Judge,

delivered the opinion of the court.

The amended petition of the plaintiff alleges that David ' Runnion made his certain promissory note, dated May 23d, 1854, and thereby promised, ninety days after date, to pay to the order of John Dnnn (the plaintiff') twenty-five hundred dollars, negotiable at the bank of the state of Missouri, without defalcation or discount; that said note was endorsed by the said John Dunn and William Wade, as co-securities ; and that said note was an accommodation note, endorsed as aforesaid for the accommodation of the said David Runnion, who procured said endorsement solely for the purpose of getting said note discounted ; all of which was well known to both said Dunn and said Wade, when they endorsed said note. The petition alleges Runnion’s insolvency some weeks before the maturity of the note, and that this insolvency was known to both Dunn and Wade co-securities as aforesaid, some weeks before the maturity of the said note. Plaintiff states that he paid the amount of said note at its maturity, being twenty-five hundred dollars. He further states that said note was paid as aforesaid at the request of said William Wade. He asks judgment for $1250, the half of said note, paid by said Dunn as co security for said Wade as aforesaid, with interest.

To this petition the defendant demurred, because the said amended petition does not state facts sufficient to constitute a cause of action ; and states the following as a cause of demurrer : The said amended petition shows that the defendant was the last endorser upon a negotiable promissory note, previously endorsed and since paid by the defendant, and does not allege any agreement or contract between plaintiff and defendant changing defendant’s liability prima facie as such last endorser. There is no agreement alleged to have been made between plaintiff and defendant that they should become co-securities of said David Runnion upon the note mentioned in the plaintiff’s amended petition.

The court sustained this demurrer, and rendered judgment thereon for the defendant. The plaintiff brings the case here by writ of error.

There is nothing in the law prohibiting two persons from becoming co-securities for another on a negotiable promissory note, so far as it regards or concerns themselves ; and when such persons have become co-securities for a third person, it matters not whose name is first or last endorsed. Here, the plaintiff avers that he and Wade did become co-securities for Runnion on this note ; that it was merely to enable Runnion to get the note discounted that they became his co-securities ; that Runnion became insolvent before the maturity of the note, and that he, as one of the co-securities, paid the note when it matured ; and that he paid it at the request of his co-security, Wade. There was no necessity to state the evidence of the fact of such eo-seeurityship in the petition, and the defendant should have denied it and required proof, if such was not the fact. The Circuit Court, therefore, erred in sustaining the defendant’s demurrer. Its judgment must be reversed, and the cause remanded,

with the concurrence of the other judges.


author: Scott, Judge,

text:
    Lathrop, Plaintiff in Error, v. Harlow, et al., Defendants in Error.
    1. A letter to an agent in New Orleans, in the following form: “ St. Louis, November 21st, 1853. Dear sir — Please send us, as soon as possible, fifty bales of moss, well dried and put up in good order. You will buy it for us at the lowest market price, and you are hereby authorized to draw on us for the amount at thirty days from date of bill of lading. Ship at as low freight as possible. W. M. H. & Co.5’ — will amount to an acceptance of a bill, drawn by the agent, in favor of a person to whom this letter was shown by the agent, and who, upon the faith thereof, received the bill for a valuable consideration.
    2. The principal would, in such a case, be bound, although the agent drew the bill upon a shipment of only forty-ihne bales of moss.

      Error to St. Louis Court of Common Pleas.

    Demurrer to a petition. The petition is substantially as follows : That on the 21st of November, 1853, the defendants addressed and transmitted to one A. K. Lee, at the city of New Orleans, Louisiana, who received the same, a letter, in the words and figures following, to-wit : “To Mr. A. K. Lee, New Orleans. St. Louis, Nov. 2lst, 1858. Dear sir — Please send us, as soon as possible, 50 bales good moss, well dried and put up in good order. You will buy it for us at the lowest market price, and you are hereby authorized to draw on us for amount at thirty days from date of bill of lading. Ship at as low freight as possible. Respectfully yours, Wm. M. Harlow & Co.”
    That the said A. K. Lee did, on the 20th of December, 1858, ship on board the steamboat Henry Chouteau, forty-nine bales of moss, to be delivered at the port of St. Louis, to the order of said A. K. Lee, and^on the same day, for the amount of said 49 bales of moss, drew his certain bill of exchange, in writing, hereto annexed, and thereby requested the defendants at the said city of St. Louis, thirty days after date, to pay to the order of one John M. Colby, the sum of $1081 50, value received, and the said Colby endorsed and delivered said bill to the plaintiff; and the above mentioned letter of defendants to ?said A. K. Lee had been previously shown to plaintiff, who, ¡upon the faith thereof, received said bill for a valuable consideration.
    That immediately after receiving said bill of exchange, plaintiff forwarded the same, with said bill of lading, endorsed by said A. K. Lee, to his agents, Lucas & Simonds, in the city of St. Louis, who, on or before February 6th, 1854, tendered said bill of lading to defendants and requested them to accept said bill of exchange ; but they refused to receive said bill of lading or to accept the bill of exchange.
    The petition further set forth a protest for non-acceptance, also for non-payment; also that defendants refused to receive the moss on its arrival in St. Louis ; also a sale of the moss by Lucas & Simonds,-as agents of plaintiffs, for account of defendants, and an application of the proceeds of sale, $752 92, as a credit on the bill. Plaintiff asked judgment for the sum claimed to be still due, $328 68, with statutory damages at the rate of ten per centum.

      To this petition defendants demurred, on the ground that the facts stated were not sufficient to constitute a cause of action, and assigned, 1st, that it does not appear that the defendants ever accepted or agreed to aceept the bill of exchange upon which the action is founded; 2d, that it does not appear from the said petition that the moss, for which it is alleged said bill of exchange was drawn, was ever shipped to defendants as is directed in the alleged authority to A. K. Lee to draw upon • them ; 3d, the bill of exchange sued on is not within the alleged authority of defendants to A. K. Lee to draw upon them.
    Judgment was given on this demurrer for defendants.
    CL D. Dra7ee, for plaintiff in error.
    I.The letter of appellees, set out in the petition, was an acceptance of the bill of exchange drawn by A. K. Lee under the authority thereof. (R. C. 1845, p. 172, § 3.)
    H. The petition alleging that the plaintiff received said bill of exchange after said letter had been shown to him, and upon the faith thereof, and for a valuable consideration, this was a matter to be decided by evidence upon a trial, and should not have been passed upon by the court oh demurrer.

      Comfort & Jbianter, for defendants in error.
    I. The tenor of the petition is to charge the defendants as acceptors of the bill sued on. Even if there was, by virtue of the letter of authority to A. K. Lee, a promise to Lee to accent his bill, this promise is not good to Lathrop for the reason that it could not be assigned. (McEvers v. Mason, 10 Johns. 206.)
    II. The defendants never did aceept or agree to accept the bill sued on. The authority given to A. li. Lee to draw expressly specifies fifty bales of moss — forty-nine only were shipped. If the holder of the bill seeks to make the defendants liable upon their ''promise to aecept, the authority to draw should have been strictly followed. (Lanfear v. Blossman, 1 La. 148 ; Mason' v. Hunt, 1 Douglass, 297.)
    III. Lathrop did not buy the bill solely upon the faith of the letter giving authority to draw, for He took an assignment of the bill of lading for further security, and unless he did purchase the bill of exchange solely upon the faith of the letter to Lee he can claim no benefit under it. (Lewis v. Kramer, S Maryland, 265.)
   Scott, Judge,

delivered the opinion of the court.

One of the points made by the defendants is, that the promise in writing to Lee, the agent, to accept his bill, was not assignable, and consequently the plaintiff, Lathrop, the endor-see, had no right of action. The case of McEvers v. Mason, (10 Johns. 213,) is cited in support of this point. But a reference to that case shows that it was decided on common law principles alone. Formerly, there were different opinions entertained in relation to the questions whether a bill of exchange could be accepted by parol, and whether a bill could be accepted before it was drawn. In this state of the law, our statute was passed, which enacts that “ an unconditional promise, in writing, to accept a bill before it is drawn, shall be deemed an actual acceptance in favor of every person to whom such written promise shall have been shown, and who, upon the faith thereof shall have received the bill for a valuable consideration.” The averments in the petition bring the case within the words of the statute, and dispose of this objection.

Another point made is, that the agent did not comply with the terms of his authority, and consequently his act is not binding on his principal. The agent bought forty-nine bales of moss, whereas he was required to purchase and draw for fifty bales. There is no doubt that, where there is an entire con-/ tract for a specific quantity of goods, or for several articles,] the vendee is not bound to receive part; and if part only bej delivered, he may return it. But if he retain the part delivered, after the time for the completion of the contract has elapsed, he is liable upon a quantum meruit for the value of such portion of the goods. By retaining the part delivered, there is implied a new contract to pay for that part. ( Chitty on Cont. 446.) But this principle, it seems, is not applicable to purchases made by agents. Kent says : “IE the agent executes the commission of his principal in part only, as if he directed to purchase fifty shares of bank stock and he purchase thirty only, it then becomes a question whether the principal be bound to take the stock. The principal may, perhaps, be bound to the extent of the execution of the commission in these cases, though it has not been executed to the utmost extent, and this seems to have been the conclusion of' the civil law. But a distinction is to be made according to the nature of the subject. If a power be given to buy a house with an adjoining wharf and store, and the agent buys the house only, the principal would not be bound to take the house, for the inducement to the purchase has failed.” (2 Kent’s Com. 618.) Story, in his work on agency, adopts the views expressed by Kent. (Story on Agency, § 170.) To the same purport is Livermore, (1 vol. 99; Gordon v. Buchanan, 5 Yerger, 811.)

As to the point, whether the plaintiff took the bill on the faith of the letter of the defendant, that is a matter of fact for jury. It is so averred in the petition, and for the purposes of this case as it now stands here, it must be so regarded. The other judges concur. The judgment is reversed, and the cause remanded.


text:
    Renshaw, Appellant, v. Triplett and others, Respondents.
    1. A notice of the protest of a hill of exchange for non-acceptance or nonpayment, placed in due time in the post-office, directed to a prior endorser, is sufficient to hold such endorser, although, from the failure of the mail, it should not reach its destination.
    2. Where a hill of exchange was protested for non-acceptance, and notice was duly sent to the last endorser through the post-office, which notice never reached its destination through a failure of the mail; and the hill was after-wards presented for payment and was protested for non-payment, due notice of which was given to the last endorser: held, that, although the protest for non -acceptance was duly noted upon the face of the hill received hy the last endorser at the same time with the notice of the protest for nonpayment, yet a notice of the protest for non-payment only, given by such endorser to a prior endorser, without a notice of the protest for non-acceptance would be sufficient to charge such prior endorser.
    3. Where the last endorser of a dishonored bill receives due notice of its dishonor from the holder, and with this notice to himself, receives, enclosed in the same letter, notices directed to prior endorsers, the due service of these notices upon such prior endorsers will, it seems, be sufficient to charge them.

      •Appeal from St. Louis Court of Common Pleas.

    This was an action against thé defendants as first endorsers of a bill of exchange. The bill was dated May 12, 1853 ; was drawn by M. Langhorne on J. J. Childs, of New Orleans, in favor of the defendants, and payable thirty days after date. After several endorsements, the bill came to the possession of and-was held by the Bank of the State of Missouri. The bank, by its cashier, endorsed the bill and transmitted it to the Bank of Louisiana, at New Orleans, for collection.. The Bank of Louisiana caused the bill to be presented to-Childs, the drawee, for acceptance. Acceptance was refused, and the bill was protested for non-acceptance, on the 31st day of May, 1853. This protest was duly noted on the face of the bill. On the day of the protest, the notary who made the protest enclosed notices to the drawer and each of the endorsers in one envelope, directed to the cashier of the Bank of the State of Missouri, St. Louis, Missouri, and deposited the same in the post-office at New Orleans. This • package was never received by the Bank of the State of Missouri, or its cashier. _ On the day of the maturity of the bill, it was presented to the said Childs for payment, and payment thereof was refused. The bill .was protested for non-payment, and notices of protest were made by the notary for the drawer and each of the endorsers, and enclosed in the same manner as the notices previously sent had been. These were received by the Bank of Missouri. There was evidence on behalf of the plaintiff tending to show that these notices of protest for non-payment were served by the Bank of the State of Missouri, on the day of their receipt, on the drawer and the several endorsers of the bill. The signatures of the drawer and endorsers were proved, and the bill read in evidence. The title of plaintiff was admitted.
    The plaintiff resting here, the court, upon the motion of defendants, gave the following instruction to the jury: “Upon the evidence given in this cause, the plaintiff is not entitled to recover.” To the giving of this instruction, plaintiff duly excepted. Thereupon, plaintiff submitted to a nonsuit, with leave to move to set the same aside, which motion having been made and overruled, the case is brought here by appeal.

      Krum & Harding, for appellant.
    I. The holder of the bill at the time of its protest for nonacceptance (the Bank of Louisiana) was, for all the purposes of this case, a distinct and independent holder, and its acts are to be regarded as they would be if it were a holder for value. (Story on Prom. Notes, § .326 ; see cases'cited infra.')

    H. The Bank of Louisiana was only bound to notify its immediate endorser, the Bank of the State of Missouri, and the latter was entitled to one whole .day after its receipt of notice, in which to notify its immediate endorser, the prior endorsers having the same right in their turn. (Story’s Prom. Notes, § 331, 335, a; 5 Mete. 212 ; 1 Ohio State R. 206 ; 4 Hill, 129.)
    IH. The Bank of Louisiana had performed its whole duty when it caused a notice to be deposited, in proper time, in the post-office at New Orleans, and addressed properly to reach its immediate endorser, and it was wholly immaterial, as far as the liability of the latter was concerned (treating the Bank of Louisiana as a holder for value) whether the notice ever reached its destination or not. (Story’s’Prom. Notes, § 328.)
    IV. It is a general rule that if the holder does any act, or is guilty of any laches, whereby the drawer or acceptor is discharged, all of the parties to the bill, subsequent to the drawer or acceptor, are also discharged, because they have lost their recourse against those who were liable over to them.

      Y. The Bank of Missouri did not lose its remedy over, on the return o£ the bills, by reason of the failure of the mail. It had not exhibited any want of diligence, and was entitled to one day after its own receipt of notice, in which to notify its immediate endorser. (Story’s Prom. Notes, § 335, a.)

    YI. The first notice of protest for non-acceptance which the Bank of Missouri received, was when the bill came back under protest, with the notice of protest for non-payment. It is admitted by the pleadings that notice of the non-payment was given by the Bank of Missouri to the prior endorsers as soon as received. And appellant contends that it was not the duty of the bank to give, at the same time, a useless and idle notice of protest for non-acceptance. (See 9 Howard, 552.) Notice of dishonor was given as soon as received, and that was enough to enable all concerned to look after their interests in the premises.
    YII. The enclosure of notices, in the manner indicated in the bill of exceptions, viz., there being separate notices for each firm or individual who was party to the bill, and all endorsed in one envelope, directed to the last endorser, whose residence was the same as that of the other endorsers, is a sufficient separate notice to each endorser. (See 22 Conn. 213; 7 Gill, 216; 18 Ohio, 54 ; 5 Shep. 360.) The question as to whether such an enclosure is due diligence, is for the court to decide as a matter of law. (7 Gill, 216 ; 2 How. 457 ; see also 1 Ohio, 296 ; 9 Howard, 552 ; 6 Watts & S. 399 ; 4 Ad. & El. 870.) If then there was nothing unusual or of practical inconvenience in making the enclosure of the notices in the manner aforesaid, the court ought to declare that due diligence had been used, in giving notice to each of the prior endorsers, and that they are charged with notice, notwithstanding the non-arrival of the package containing said notices.

      B. A. Hill & Kasson, for respondents.
    I. The omission to give notice of non-acceptance discharged the endorsers. (Story on Bills, § 284 ; Glasgow v. Copeland, 8 Mo. 268.) There was no notice of non-acceptance given to the defendants, the first endorsers of the bill. It is manifest that the notary of the Bank of Louisiana did not know, the residence of the drawer and the several prior endorsers ; and as agent for the Bank of Missouri, he performed his duty, according to the custom of the bank, by sending all the notices to the bank, to be served upon the respective parties, according to law. The sending of the notices to the Bank of Missouri was notice to the bank only, and not to the parties whose notices were enclosed therein, until they were served. (Story on Bills, § 294.) But it is further objected by the plaintiff, that the Bank of Missouri never having received any notice of non-acceptance from the notary, it is to be excused from giving notice of that which it had no information. This pretext is entirely overthrown and answered by the fact that the protest for nonacceptance appears upon the face of the bill, as of the 31st May, 1853, and this bill came to the bank thus noted upon the face before any notices of non-payment were sent out, and then the duty to notify for non-acceptance clearly arose, and it was imperative for the bank to give the notice of non-acceptance, or the endorsers and drawer were discharged. If this last objection have any force, still it doth not appear how the Bank of Missouri could excuse itself for the failure to give notice of non-acceptance, on the ground of neglect or failure of its agent to secure a transmission of the notice to it. It was competent for the Bank of Missouri to note the residence of each endorser and drawer, so that the notice could be sent direct to each by its agent at New Orleans in case of non-acceptance or non-payment, and then the notices by mail to each party would have bound them. But this course was not adopted, and it chose to act as principal, and, according to the custom of the bank it became the party to give the notice, and its agent, standing between it and the acceptor, only did what it required, and the notices were only between the two banks, and the privity can not be held to extend to other parties. Now, although notices may be clearly given by an agent to all the parties, yet, if the agent only give notice to bis principal, tbe principal must himself give notice in order to bind prior parties. If the notice to the principal miscarries, upon what ground is the principal to be discharged from his obligation to give the notice ; and, more particularly, how is the principal to excuse his laches, when we show actual notice to him of the protest for non-acceptance noted upon the face of the bill ? ( See Sewall v. Russell, 8 Wend. 276; Tal-bott v. Clark, 8 Pick. 51 ; Mead v. Ejixgs, 5 Cow. 303; Chace v. Taylor, 4 Har. & John. 54 ; Freeman’s Bank v. Perkins, 6 Shepley, 292 ; Fleming v. McClure, 1 Brevard, 428 ; Riggs, to use, &c., v. McDonald, 1 Ala. 643 ; Story on Bills, § 228 ; O’Keefe v. Dunn, 5 Maulé & Selw. 285-6-7; Blesaid v. Hirst, 5 Burr. 2670; Goodall v. Dailey, 1 T. R. 712; Roscow v. Hardy, 2 Camp. 458 ; 6 Taunton, 305 ; Chitty on Bills, 313 ; United States v. Barker, 4 Wash. C. C. 464 ; 12 Wheaton, 559 ; Carmichael v. Pennsylvania Bank, 4 How., Miss., 567.) The protest for non-payment gave no notice of the non-acceptance, nor any information of the fact, so as to inform the creditors that they could look only to the drawer, and had not the security of the name of the acceptor.
   Scott, Judge,

delivered the opinion of the court.

This case comes here on the general instruction, that, on the evidence, the plaintiff was not entitled to recover. Under such circumstances, the counsel have agreed that the only point determined below was, whether there was such notice to the prior endorsers as would warrant a recovery against them by a holder who had taken up. the bill whilst in the hands of the Bank of Missouri.

A bill of exchange, payable thirty days after date, was endorsed to the Bank of Missouri after several intermediate endorsements. The bank endorsed it for collection to a bank in New Orleans. The bill was presented for acceptance, and acceptance being refused, was protested. Notice of this protest was deposited in the post-office, directed to the Bank of Missouri, enclosing notices also to the prior parties to tbe bill. The letter enclosing the notices o£ the protest for non-acceptance was never received by the Bank of Missouri. Afterwards, the bill was protested for non-payment, and due notice of this protest was given to all the parties. The bill enclosed in this notice of protest was noted on its face as having been protested for non-acceptance, and after the receipt of it no notice was then given of the protest for non-acceptance.

Are the endorsers on the bill prior to the endorsement to the Bank of Missouri, liable on this state of facts ? The fact that the bill was only endorsed to the bank in New Orleans as agent for collection, does not affect this question, it being well settled, that, for all the purposes of thé law, the agent or banker to whom a bill has been transmitted for"the purpose of procuring payment thereof at its maturity, is 'treated as substantially a distinct and independent holder. (Story on Prom. Notes, § 326.) It is equally well settled that, though a bill payable at a particular day, or at so many days after date, is not required to be presented for acceptance before it is due, yet it may be so presented, and if that is done and acceptance is refused, the holder must conduct himself in the same way, and make protest and give notice in the same manner as he would upon a bill payable at so many days after sight. (Story on Bills, § 228.) If there be several endorsers on a bill, the last of whom shall receive notice of the dishonor from the holder, it will be sufficient for him on the next day to communicate notice thereof to the next antecedent endorser, and he to the next, and so on ; and thus, in some cases, several days may elapse before notice reaches the first endorser. The holder of a bill, when it has been dishonored, may either resort to his immediate endorser, and then he must give him notice in due time ; or he may resort to any or all of the other endorsers, in which case he must give them notice respectively, in the same manner as if each was the sole endorser; for the holder is not entitled to as many days to give nolice as there are prior endorsers, but each endorser has his own day. (Story on Bills, § 294.)

IE a notice is put in the post-office to go by the proper post, it is not important to the rights o£ the holder whether the notice ever reaches the party entitled to it or not. All that the law requires of him is to send due notice in proper time, and he has discharged his whole duty when he puts it into the proper post-office, in due time, directed in a proper manner, (Story on Prom. Notes, § 328.)

IE, according to the foregoing principles, notice is imputed by law to the Bank of Missouri, then she was not guilty of any negligence in not giving notice to the prior endorsers. Unless she was served with notice, she could not give it. The Bank of Missouri was entitled to one day to give notice, after her own receipt of notice. As she never did receive notice, she could not be guilty of negligence in not communicating it to others. If the principle is correct of imputing notice from merely placing in the post-office a letter containing it, whether that letter is received or not, then there is no hardship in holding the prior endorsers of this bill liable though they have not received notice. If the bank is held liable without actual notice, why should not the prior endorsers be equally bound ? It would be against every principle of justice to visit on one party only the consequences of the accidental failure to receive notice, when he is no more in fault than any of the other parties. Under such circumstances, equity requires that the liabilities of the parties to the bill should not be disturbed, and that they should stand as though all had received notice.

As to the ground taken that the bank should have given notice of the non-acceptance of the bill after she received notice of the non-payment, it appearing from the face of the bill, enclosed in the letter containing notice of the non-payment, that it had been protested for non-acceptance, it may be answered that notice of non-payment was sufficient to put all parties upon inquiry after their interests. Moreover, a right of action on a bill accrues immediately after protest for non-acceptance, although the bill may not be due. (Chitty on Bills,. 340.) Now if the right of action accrues immediately on protest for non-acceptance, that right could not afterwards be defeated by a failure to give notice of non-acceptance after notice of the protest for non-payment was received. (Lambert v. Ghiselin, 9 How. 552.)

The judgment is reversed, and the cause remanded ;

the other judges concurring.


author: Ryband, Judge,

text:
    Perry’s Administrators and others, Respondents, v. Roberts, Appellant.

      1. A. gave to B. his title bond for the conveyance to B. of a tract of land upon the payment of the purchase money agreed upon, for which B. gave to A. his promissory notes. Held, that the heirs of A. are properly made co-plaintiffs with his administrators, in a suit brought to recover the amount due on the promissory notes, in which it is sought, on account of B.’s insolvency, to subject ths land to the payment of the debt.

      Jlppeal from, Madison Circuit Court.

      Frissell, for appellant.

      JYoell, for respondents.
   Ryband, Judge,

delivered the opinion of the court.

This is a suit to recover the purchase money of a tract of land sold by John Perry in his lifetime to the defendant, Roberts, for which land Perry executed his title bond to Roberts, conditioned to execute a deed upon the payment of the purchase money. The suit was originally brought by the administrators for the purchase money, without any reference to the tract of land. The petition was subsequently amended, alleging the insolvency of Roberts, and praying a decree subjecting the land to the judgment of the debt. In this amended petition, the heirs of John Perry, in whom the legal title to the land was vested, were made co-plaintiffs with the administrators. Judgment was rendered in favor of the administrators for the amount of the debt yet due ; and it was decreed that the land be sold to pay the judgment. The defendant filed his motion in arrest of judgment on the ground that the heirs of John Perry were- improperly made parties; which motion being overruled, exceptions were taken, and the defendant brings the case here by appeal. To the amended petition no answer was ever filed, and the new allegations remained un-contradicted. The question arising on the motion in arrest of judgment is the only point involved in the case.

The defendant, Roberts, the appellant in this court, insists that here are two distinct separate sets of parties plaintiffs, and two distinct causes of action, and two separate judgments ; and that in consequence thereof the judgment below ought to have been arrested.

The respondents here, the plaintiffs below, insist that, inasmuch as the legal title to the land, attempted to be subjected to the payment of the debt due John Perry’s estate, was in his heirs, it was necessary and proper that they should be made parties to the proceedings, in order to bind them by the judgment of the court.

Now this proceeding may be regarded as a proceeding to foreclose a mortgage. The legal title was in Perry at his death ; it was left in him for the purpose of securing the payment of this debt. The administrators were competent to sue on the notes or bonds for the purchase money; but when they were satisfied, from Roberts’ insolvency, that the land itself must be made subject to the payment of the debt, it was necessary and proper to make the persons, in whom was the title to this land, parties to the proceeding, in order that they might become bound by it, and that the land might therefore bring its value when sold under judgment, as by such sale the whole title would pass. .Had the action been for the recovery of the money alone, without regard to the land, then the heirs should not have been joined as parties. Rut it is for the interest of all concerned that when the land is to be reached, and when the object of the suit is to subject the land to the payment of tbe debt, such persons should be made parties to the action in whom there is any title, that, being parties, and bound by the judgment, the whole title to the land might be sold, and a better price obtained for it. The new code of practice authorizes such a joinder of parties ; and the judgment will be affirmed,

the other judges concurring.


author: LEONARD, Judge,

text:
    Chauvin and others, Plaintiffs in Error, v. Lownes and another, Defendants in Error.
    1. Amendments should he liberally allowed where the errors are unintentional, and no injury will result to the adverse party.
    2. Chauvin v. Wagner, (18 Mo. 531,) affirmed.

      Error to St. Louis Court of Common Pleas.

    This was an action in the nature of an action of ejectment, brought by the heirs of Emily Chauvin. It is one of several suits (the case of Chauvin v. Wagner being one) brought by said heirs, and came on for trial after the decision of the Supreme Court in that case, to the report of which (see 18 Mo. 531) reference may be had. On the trial, it appeared in evidence that, among other children, Emily Chauvin had a daughter, Louise, who married Charles A. Genestelle, and died surviving her mother, leaving two children of said marriage. These children, Emilie and Sophia Genestelle, were parties to this suit, suing by their next friend, their father, Charles A. Genestelle. One of these children, Sophia, and her father, C. A. Genestelle, died since the commencement of this suit. Their death being suggested upon the record, Louis C. Hirschberg, entered his appearance as guardian for the said Emily Genes-telle.
    The deed of Chauvin and wife to Desiré (see Chauvin v. Wagner, 18 Mo. 531) was introduced in evidence, and testimony tending to prove a re-delivery of said deed by Mrs. Chauvin after the death of her husband ; also to prove the ex-cution thereof by Mrs. Chauvin.
    The court gave the following instructions : “ 1. If the jury find that Louise Genestelle, wife of Charles A. Genestelle,. survived her mother Emily Chauvin, and that the plaintiff, Emilie Genestelle, is the child of the said Charles A. and Louise Genestelle, and that said Charles A. was living at the commencement of this suit, the jury ought to find for the defendants. 2. It being admitted in this cause that prior to the deed to Desiré, the title to the premises in dispute was in Emily Chauvin, wife of Erancis D. Chauvin, and that said Framjois had only a life interest therein, and that said Francis died in 1885, and said Emily in 1849 ; the court instructs the jury that the said deed, even if executed and acknowledged by said Francjois and said Emily, as the same purports to have been, and delivered to said Desiré in the lifetime of said Framjois, passed only the life interest of said Francois in the lot therein described, and was wholly inoperative to pass the title of said Emily ; and therefore, if the jury find that Robert Chauvin and Y. H. Chauvin and Lucille Chauvin are the children of said Emily Chauvin, and that Louise Genestelle, wife of Charles A. Genestelle, was the daughter of said Emily Chauvin, and died before her said mother, leaving two children, Emily and Odelia, and that Sophie Hirschberg was a daughter of said Emily Chauvin, and died after her said mother, leaving a child, the jury should find for the plaintiffs, unless they further find that said deed t'o Desiré was executed by said Emily, and that after the death of her said husband she re-delivered the said deed, to Desiré or his representatives. 3. If the jury find from the evidence that said Francis D. Chauvin and Emily his wife executed said deed as the same purports to have been executed by them, and that the same, in the lifetime of said Francois, was by him delivered to said Desiré, and that said Desiré paid a full consideration for the fee simple of the lot therein described to said Framjois ; and that said Desiré took possession of said lot, claiming to be the owner thereof by virtue of said deed ; and that'after the death of said Franqois, the said De-siré and his representatives continued in open, notorious, active and exclusive possession of said lot, and put large and valuable improvements and buildings thereon, claiming to be the owners thereof ; and that, after the death of her said husband, with full knowledge of all these facts, she received or consented to the appropriation of a part of the personal estate of said Franqois, or of the proceeds of his said estate, to her own use and support, and acknowledged that she executed said deed, or sold and conveyed said lot as said deed purports, and that she assented that said Desiré and his representatives should remain in possession of said lot and put valuable improvements thereon, claiming to be the owners thereof, and to retain possession of said property, under said deed, as her act and deed, for the purpose of passing all the title and interest in said lot, — then the jury may presume a re-delivery of said deed by her after her husband’s death.”
    To the giving of these instructions, plaintiffs duly excepted. Prior to the reading of these instructions to the jury, and after they were passed upon by the court, the counsel for the plaintiffs, Mr. Lord, having learned, during the progress of the trial, that Louise, mother of Emilie Genestelle, plaintiff, had survived her mother, Mrs. Chauvin, requested the court to strike out the name of the said Emilie from the record, or to dismiss the suit as to her. The court refused to permit this to be done. Plaintiffs thereupon suffered a nonsuit, with leave to move to set the same aside. A motion to that effect having been made and overruled, the case was brought to this court by writ of error.

      C. B. Lord, for plaintiff in error.
    I. The will of Madame Chauvin in effect deprived Charles A. Genestelle of any interest in her estate. Ejectment does not lie by him who has not an immediate interest or possession. (1 Rol. 3.)
    II. The court erred in giving the first instruction. The rule applied in this case was a highly technical one, and one which courts have^been constantly relaxing when a •proper case bas presented itself. (Jackson v. Sclover, 10 John. 868.) It bas always been held that “ Ejectments are under the control of the courts, and may be managed by them to answer every end of justice and convenience.” (3 Comyn’s Dig. 609, tit. “Ejectment,” A.) A demise being laid in ejectment, before the title of the lessor of the plaintiff accrued, can not be taken advantage of after issue joined. (Withington et al. v. Christian et al., 2 Rand. 353.) The proper parties were before the court, and it would be the abuse of a technicality to compel them to commence their suit over again, when precisely the same parties would be again before the court. The court should have permitted the amendment asked for, and allowed the other plaintiffs, in case of a verdict in their favor, to have recovered their interest in the land in dispute. (Practice Act of 1849; art. 11, § 5 and 6; see brief in Chauvin v. Wagner, 18 Mo. Rep. 531.)
    J. R. Shepley, for defendant in error.
    I. Emilie Grenestelle, dying after her mother, and before the commencement of this suit, leaving a husband and children surviving her, whatever right she had was vested in her husband, a tenant by the curtesy during his life, and the suit should have been brought in his name and not in the name of the child. (Reaume et al. v. Chambers et al., 22 Mo. 36.)
    II. If the husband was the proper party to the suit, then it was too late, after instructions had been asked and given, to seek to dismiss as to Emily Grenestelle, and to go on with the trial as to the other interests.
    III. At most, the matter was entirely in the discretion of the court, and this court will not interfere in the exercise of this discretion. (Russell v. Spear, 5 How. Prac. R. 143.)
    IY. If, upon all the facts in the case, the judgment be for the right party, as this is the case of a nonsuit voluntarily ta'ken, the judgment below will not be disturbed ; and in this case, in any event, the probability of a recovery of any of the parties plaintiff will depend upon the validity of the acknowledg - ment by Mrs. Chauvin of the said deed of Chauvin and wife to Desiré. If the acknowledgment of Mrs. Chauvin to the deed to Desiré be good and effectual to convey her title, that is an end to the case. This case now stands in a different position from that in which the case of Chauvin v. Wagner stood. The court now unanimously agree in overruling the case of McDaniel v. .Priest. (See Perkins v. Carter, 20 Mo. 465). The validity of the acknowledgment is now narrowed down, and depends upon the question of whether it is necessary that the acknowledgment should contain the talismanic words ‘1 and does not wish to retract.” A substantive compliance with the requirements of the statute is sufficient. No mere verbal criticism upon the words of the statute should control. If this be the proper rule to apply, then whatever might be the opinion of the court in the application of nice verbal criticism to the words of the.statute, this acknowledgment will be supported.
    The decision in 11 Illinois, 123, upon a statute precisely similar to ours, conclusively shows not only that it is doubtful whether it was the intention of the legislature that the certificate should contain these words, but, by the unanimous opinion of a highly respectable court, that was not the intention. How then can justices of the peace and clerks of the court be supposed to be better informed than such a court ? But if no such rule as we have invoked is to obtain in the construction of the statute, we yet affirm that the statute does not, by any fair construction, require those words to be inserted in the certificate.
   LEONARD, Judge,

delivered the opinion of the court.

The plaintiff took a nonsuit upon the court’s refusing to allow them leave to amend the statement of their cause of action. We think the original courts can hardly be too liberal in allowing amendments where the error is unintentional, and no injury will result to the adverse party. This, however, is pretty much a matter of discretion, and we do not interfere in such cases, unless there be a palpable abuse of it. We can not say that was so here, and therefore shall not disturb the judgment.

Our attention is called again to tbe question decided in Chauvin against Wagner, (18 Mo. 532,) as to tbe sufficiency of tbe certificate of acknowledgment upon Mrs. Cbauvin’s deed to pass tbe inheritance of a married woman. We consider tbe decision in tbe former case conclusive as to tbe insufficiency of all sucb certificates, when taken under the act of 1825. Tbe certificate in Perkins v. Carter was taken under the act of 1835, which did not require tbe words ££ and does not wish to retract” and this court held there that tbe insertion of tbe words “ and relinquishes her dower to the real-estate therein mentioned” did not render tbe certificate ineffectual to pass the inheritance of tbe wife. (20 Mo. Rep. 465.). Tbe judgment is affirmed.


author: Leonabd, Judge,

text:
    Downey et al., Respondents, v. Burke, Appellant.
    1. Where there is a special contract to do certain work, and there is a failure to perform the work according to the contract, there can he no recovery had" upon the contract.
    2. Where, however, useful labor is actually performed, and is received by the employer, an obligation is thereby created to pay the reasonable value of the services rendered, talcing into consideration and making allowance for the damage resulting from the breach of the contract.

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

    This was an action originally commenced before a justice of tbe peace. The account filed before tbe justice was for work done and materials furnished in the construction of a stone wall by plaintiffs. The cause was, appealed to tbe Law Commissioner. Tbe performance of tbe work was proved on tbe trial, and its value; also that during its progress defendant made payments upon tbe same. There was also evidence tending to show a failure on tbe part of plaintiffs to perform tbe work according to contract, in that tbe wall, when built, did not correspond with tbe grade of tbe street, as it was agreed it should. The cause was tried bj the court sitting as a jury. The following instruction or declaration of law was asked by the defendant and refused by the court: “If the court, sitting as a jury, finds from the evidence that plaintiffs made a contract with defendant to build a good substantial wall, even with the grade of the street, on defendant’s lot, in St. Louis, and that plaintiffs failed to perform their contract, plaintiffs can not recover.”
    Judgment was rendered for plaintiffs. Exceptions were duly taken by defendant. Defendant appealed to this court.

      Ji. TV. Lewis, for appellant.

      C. C. Carroll, for respondents.
   Leonabd, Judge,

delivered the opinion of the court.

There was no error in the refusal of the defendant’s instruction that, “ If there were a special contract and the plaintiff had failed to complete the work, he could not recover.” Where there is a special contract, and the job is to be paid for, the party who has failed to comply, on his part, certainly has no right of action upon the contract, and, in such case, if there be nothing more in the transaction, the express contract excludes any implied contract. It is, however, generally true in morals, that one who is made richer by the act of another, done without any purpose of donation on the part of the latter, and which the former has accepted, ought to recompense the party, at least so far as he himself is a gainer; and the legal doctrine laid down in Britton v. Turner, (6 New Hampshire, 481,) is, we think, a just application of the principle of morality to transactions of this character. When a party is to pay upon a special contract, he is not liable till the money is earned according to the agreement, and the law will not imply a contract different from that which the parties have entered into, except upon some further transaction between them. In case of nonperformance, if the nature of the case be such that the employer can reject what is done, he is entitled to do so, and the party performing tbe labor can n t recover any thing ; but if the employer actually receive useful labor and thereby derive a benefit beyond the damage resulting from the breach of the contract, the labor done and the benefit derived from it produce an obligation to pay to the extent of the reasonable worth of the excess ; and this rule is equally applicable, whether the labor was received by the assent of the party before the breach, under a.contract by which, from its nature, the party was to receive the labor from time to time, until the completion of the whole contract, or whether- it was received subsequent to the performance of all which was in fact done.

It did not follow, therefore, in the present case, that the plaintiff could not recover upon the transaction, although there were a failure to complete the special contract, if the defendant accepted the deJ&atéSl^s labor and materials, and was himself a gainer thereby beyond the damage he sustained from the plaintiffs’ breach of the agreement. The judgment is accordingly affirmed.


text:
    Sturgess, et al., Respondents, v. Steamboat Columbus, Appellant.
    X. Where a bill of lading given by the master of a boat contains the following clause : “ privilege of reshipping in case of low water” — this is a privilege reserved to the boat, and does not impose upon it an obligation to reship in case of detention on account of low water.

      Appeal from St. Louis Law Commissioner’s Court.

    This was an action brought before a justice of the peace and appealed to the Law Commissioner’s Court, where it was tried by the court sitting as a jury. The'action was a complaint under the “ Act concerning boats and vessels,” for breach of a contract of affreightment, alleged to consist in not having delivered to respondents twenty-five sacks of sweet potatoes, in good order and condition, at St. Louis, according to the terms of the bill of lading. The bill of lading contained the clause: “ privilege of reshipping in case of low water.”
    On the trial, the plaintiffs read said bill of lading. It was admitted that the potatoes, when received by the boat, were in good order and condition, and were rotten, in bad order and spoiled when delivered to plaintiffs. Plaintiffs rested, after proving the quantity and value of the potatoes. For the de-fence, it was proved that the boat left Natchez on the 23d or 24th of December, 1854, (the time of the shipment,) and arrived in St. Louis on the 9th of January, 1855 ; that she was detained eleven days at Cairo, by ice and low water, and made and completed her trip as soon as it was possible to do under the circumstances. It was also proved that the potatoes were properly stowed on the boat, in.the proper place for stowing such articles, at that season of the year. This was all the testimony. Upon this testimony, the court declared the law to be as follows, viz : “A steamboat having the right reserved to reship cargo, ought to exercise that right whenever it becomes necessary, by reason of any causes which conduced to granting the right by the shipper. The burden of proving that the defendant could not reship, is upon the defendant.”
    To which declaration of the law the defendant duly excepted. The court found for the plaintiff.

      Krum & Harding, for appellant.

      Comfort & Manier, for respondent.
   LEONARD, Judge,

delivered the opinion of the court.

The power of reshipping, in case of low water, contained in this bill of lading, is a privilege reserved to the boat, and not a duty imposed upon it. By the contract of affreightment, the carrier is bound to transport the goods to their destination in his own vessel, unless prevented from doing so by some event not occasioned by himself, and which he could not control, 11 vis major and all the authorities concur that by the maritime law in that event, the voyage being broken up, the ship owner is at liberty to tranship, an i earn his full freight by the fulfillment of his contract in another bottom. (Shepton v. Tho nton, 9 A 'o'. & Ellis, 344.)

If, however, the event produce only a temporary suspension of the voyage, (neither party being at liberty to put an end to the contract,) it is the duty of the carrier to resume it as soon as the obstacle is removed, and to proceed with the goods in his own boat to the place of delivery ; but this clause relieves him from this necessity in the particular case provided for, and gives him the privilege of sending the cargo forward in another boat, without effecting any other change in the rights or duties of the parties. The judgment must therefore be reversed, and the cause remanded.


text:
    Hays and others, Plaintiffs in Error, v. Steamboat Columbus, Defendant in Error.
    1. One who endorses a note given by the master of a steamboat for stores and supplies furnished, and who pays the same at its maturity, does not thereby become subrogated to the rights of the one furnishing the supplies to a lien on such steamboat.

      Error to St. Louis Court of Common Pleas.

    The facts of this case, as set forth in the petition, are substantially as follows : John Williams & Co. furnished stores and supplies to the steamboat Columbus, for the amount of which Pulton, the master of said boat, gave his promissory note. Plaintiffs, in order to prevent the seizure of said steamboat under the act concerning boats and vessels, became endorsers upon this note, and paid it at its maturity. Plaintiffs afterwards drew their bill of exchange on said Pulton, the master, for the amount paid by them to Williams & Co., which Pulton accepted, but failed to pay at maturity. Plaintiffs seek in this action to enforce a. lien against tbe boat for tbe amount so paid and furnished by them as aforesaid.
    To tbis petition there was a demurrer, on which judgment was given for defendant. The case is brought here by writ of error.

      T. T. Gantt, for plaintiff in error.
    I. The claim of John Williams & Co. was a lien on the boat. The plaintiffs, if they had lent the money to the captain for the purpose of purchasing from Williams & Co. the stores and supplies which that firm furnished, would have had a lien for the money so lent. (Phelps v. Eureka, 14 Mo. 532.) But by paying Williams & Co., at the request of the captain, the amount of their claim, while it was yet a lien, and in order to prevent the seizure of the vessel, they occupied ground still more meritorious. The lien was not extinguished by the giving of the note. (Steamboat Charlotte v. Hammond, 9 Mo. 58.)

      Krum & Harding., for defendant in error.
    I. The lien or right of action under the statute against the boat for the supplies in question, was in favor of Williams & Co., who furnished the supplies. The lien given by statute is to the party who furnishes the supplies, and is not assignable. Were it assignable, the plaintiffs do not show themselves to be assignees.
    II. The plaintiff, by paying the note given for the supplies furnished by Williams & Co., were not subrogated to the eights of the latter, so far as the lien on the boat for the supplies was concerned. This is not a case for subrogation.
   LEONARD, Judge,

delivered the opinion of the court.

The plaintiff, it seems, became the security of the captain for boat stores upon a note given by the latter for the price of them ; and being afterwards compelled to pay the debt, the captain gave him a bill on New Orleans for the money, and this being unpaid, we are now asked to declare that the surety may proceed for it against the boat, under the statute concerning boat liens, for supplies furnished, &c.

This demand is not embraced by the words of the act. It is not for the supplies themselves, but on account of the money paid for them as the captain’s surety, and we do not think it falls within the reason of the boat lien law, and of course it can not be enforced as an original privileged debt under the act. These secret, tacit mortgages upon boats (for they are such rather than liens, in the common law acceptation of the word,'being unconnected with the possession) we must presume to be just and proper when applied to the original debts specified in the statute ; but it does not seem the part of a wise policy to extend them beyond the words of the law, and the obvious reason and necessity for passing it. If a party, by a legal assignment of the favored debt, might succeed to this right of the original creditor, we are not aware of any legal principle upon which we can hold that the payment made by the surety, instead of extinguishing the debt with all its accessary obligations, had the effect of continuing in force this statute remedy, and of substituting in reference to it the security in the place of the original creditor. We held in a case at the present term, that in equity the surety was entitled to demand 5f the credir tor all the securities the latter had taken from the debtor to secure the payment of the debt, and that therefore^ to the extent to which he extinguished these securities, to that extent he discharged the surety, and that this might be relied upon as a defence to the legal liability ; but that is not the present case. There are cases, too, in which a court of equity will-substitute the surety in the place of the original creditor, and even set up in his favor securities that have been extinguished at law ; but we do not think we are at liberty to go so far as to declare in reference to this statute remedy, that the payment by the security had the legal effect of continuing it in force, and of substituting, ipso facto, the surety in the stead of the original creditor, so as to give him a title by succession to maintain this legal proceeding against the boat.

The judgment must be affirmed.