author: Soott, Judge,

text:
    King et al., Respondents, v. Blennerhassett et al., Appellants.
    1. A., being indicted for the murder of B., employed C. as attorney-at-law to defend him. As compensation for the services to be rendered, A. conveyed to C. a tract of land. C., after rendering some service as attorney, died, and D. was employed as attorney to defend A. As compensation for professional services rendered, A. conveyed to X). the same land previously conveyed to C. Held, that there was no equity in favor of D. that would entitle him to have the conveyance to C. set aside and the title vested in himself in whole or in part.

      Appeal from, Jefferson Circuit Cowrt.

    This was an action by Robert A. King and Edmond A. Nickerson against the administratrix and heirs of R. S. Blen-nerhassett, deceased. The plaintiffs in their petition seek to have a certain deed of conveyance made by Nelson Cross to said R. S. Blennerhassett set aside and the title to the land embraced in said deed vested in plaintiffs. The facts substantially are as follows : One Nelson Cross was indicted for murder by the grand jury of Jefferson county. He employed R. S. Blennerhassett as counsel to defend him. Mr. Blennerhassett agreed to attend to the case nntil it should be finally disposed of, and to take in full compensation for his services a conveyance of a certain tract of land containing about forty acres. Cross made a conveyance of said tract to Blennerhassett. Blennerhassett rendered some services as counsel, examining into the facts, and applying for and securing a change of venue, &c., but died before the cause came on for trial. When the cause came on for trial, Cross employed the plaintiffs as counsel to defend him. Eor their services he conveyed to them the same land previously conveyed to Blennerhassett. The plaintiffs offered to pay to the defendants such sum as the court should ascertain to be a reasonable compensation for the services rendered by Blen-nerhassett before his death. The above are the facts as set forth in the petition and made out by the evidence.
    - The court set aside the deed to Blennerhassett and decreed that the title be vested in plaintiffs upon their paying to defendants seventy-five dollars and costs of suit.

      C. C. Simmons, for appellants.
    I. The plaintiffs have totally failed to present a case which entitles them to a standing in a court of equity. (1 Young & Coll. 481; Sto. Eq. § 1040 ; Sto. on Oontr. § 376; 22 Mo. 370 ; Chitt. on Contr. 743 ; 3 Rand. 504; 6 Conn. 458.)

      King Sf Nickerson, for respondents.
    I. The consideration of the deed failed by reason of Blen-nerhassett’s death. The court very properly set aside the deed upon making compensation for the services which he had performed. Whatever equity Cross had enured to plaintiffs.
   Soott, Judge,

delivered the opinion of the court.

We do not see on what rules of law or principle of equity this suit can be maintained. The deed to Blennerhassett was an absolute and unconditional one. Had the land been conveyed for money and the purchase money been unpaid, the grantoi’S would have had a lien on the land for the sum remaining due. Here the land was granted for services performed and to be performed. If those who conveyed the land had any recourse against Blennerhassett for his failure to perform the services stipulated, it would be an action against his representatives for damages. There is no rule of equity, that we are aware of, that would create a lien on the land for the payment of those damages. The subsequent deed, then, to the plaintiffs conveyed no interest in the land to them, as there was no interest in. the grantors to convey. The deed, under-the most favorable aspect, could only have operated as an assignment of the right of action against Blen-nerhassett’s estate to the plaintiffs. It is not necessary to determine now whether it had that effect or not, as we do not deem it important.

The petition is not for the specific performance of the contract with Blennerhassett, nor yet to set aside the conveyance for a total or partial failure of consideration; in either of which views the defendants would have a right to retain the land on making good the consideration of the deed. The right of the plaintiffs to a decree is based solely on the conveyance of the grantors, who had previously conveyed to Blennerhassett.

It may bo observed that all the grantors who joined in the deed to Blennerhassett did not, as appears from the deed as set out in the bill of exceptions, unite in the deed to the plaintiff. How, then, would they be entitled to recover the entire lot relying on their deed alone ? This point was not raised in the court below, nor do we base our judgment upon it. The motion in arrest of judgment should have been sustained. Judgment reversed;

the other judges concur.


source: Caselaw Access Project

author: NaptoN, Judge,

license: Public Domain

text:
    Salmons’ Adm’rs, Respondents, v. Davis et al., Appellants.
    1. One S. died in Kentucky in 1826. No administration in form was had upon his estate, hut his widow and heirs made a division of his property, and a certain female slave named Milly was, with other property, assigned to the widow. About ten years after the death of her said husband the widow removed to tlie state of Missouri, bringing with her said slave Milly and her children. She died in 1865, and by her will disposed of said Milly and her children. Letters of administration were afterwards taken out upon the estate of S. .BeW,'that the administrators of S. were proper parties plaintiff in a suit brought for the possession of said slaves in behalf of the representatives of said S.
    2. The possession of a tenant for life is not adverse to the reversioner or re-mainderman ; arid he can not, by his acts and declarations, make his possession adverse so as to enable him to invoke the statute of limitations.
    3. A husband dying, his widow and heirs made a division of his estate, includ ing slaves, among them. The widow afterwards dying, the administrators of the husband instituted suit against persons claiming under the widow for the possession of certain slaves that had been assigned to the widow. He Id, that a bond executed by the heirs at the time of the division and by which they bound themselves to abide by the division, but which was not signed by the widow, though read over to her and not objected to, was admissible in evidence as part of the res gesta, in behalf of the administrators, to show that the assignment was made to the widow as dower and not absolutely.
    4. Declarations of a person in possession of personal property as dowress for life only, can not be received in evidence to elevate her estate into an absolute one.

      Appeal from Pike Circuit Court.

    The facts sufficiently appear in the opinion of the court.

      Broadhead and Wells, for appellants.
    I. By the law of Kentucky at the death of Salmons, slaves descended to the heirs, as real estate. The title, therefore, vested in the heirs, and the administrators could acquire no title.' The county court of Lincoln county had no authority to grant letters on the estate of Salmons, he never having resided or owned any property in this state. The court admitted illegal evidence, to-wit, the declarations of J. K. Salmons and others, heirs of Joel Salmons, contained in the deposition of Williams. The bond of the heirs was not admissible in evidence. It was not executed by the widow. It did not bind the widow and was never intended to do so. The declarations made by Mrs. Salmons as to her absolute title to Milly were improperly excluded. These declarations were competent to show the nature of her possession. The error of the court was in assuming that it was proven that Eve Salmons took a life estate only. The court erred in refusing the instructions asked.

      Henderson and W. Porter, for respondents.
    I. The articles of agreement were properly admitted in evidence. The declarations of the widow were properly excluded. (21 Mo. 522; 24 Mo. 221; 27 Mo. 220.), The statute of limitations is not applicable to the present case. (Angelí on Lim. 181; 5 B. & Aid. 204; 12 Wheat. 129 ; 2 Mart. 422.) The statute can not run against an administrator until the grant of letters. (19 Mo. 467; 26 Mo. 291.) The court properly excluded the declarations of some of the heirs of Joel Salmons; so the declarations of Nathan Salmons, one of the administrators. The court properly refused the instructions asked. The suit was properly brought in the name of the administrators. (1 Marsh. 14; 1 Monr. 255; 6 Monr. 139; 1 J. J. Marsh. 16; 2 Bibb, 188; 2 J. J. Marsh. 203 ; 1 Kentucky Stat. p. 666, § 41.) It was no case for the application of the statute of limitations. There was no cause of action until the death of Mrs. Salmons. (Angelí on Lim. 185; 5 B. & Aid. 204; 23 Mo. 344; 12 Wheat. 129.) The slaves were received as dower. Mrs. Salmons had only a life estate. The instructions given were correct. (21 Pick. 88, 80; 4 Ala. 166; 24 Mo. 399; 1 Dana, 340; Story, Confl. 429, 439; 9 Wheat. 571; 5 Pet. 518 ; 20 Johns. 265 ; 1 Mo. 726 ; 1 Williams on Executors, 267 ; 14 Péters, 32; 2 Phill. Ev. 550 ; 8 Wheat. 671; see 2 Mo. 48; 1 Harr. 337; 2 Bibb, 89 ; 1 A. K. Marsh. 10; 3 Litt. 180 ; 5 Oranch, 358 ; 27 Mo. 421.)
   NaptoN, Judge,

delivered the opinion of the court.

One of the principal questions in this case is whether the administrator of Joel Salmons or his distributees should have brought this action.

Salmons died in Kentucky in 1826. No administration in form was had upon his estate, but his widow and children (who were all of age but one) divided out his property, and the mother of the slaves now sued for, with other property, was assigned to the widow as her share of the estate. The theory of the action is that the slave was received as dower. However that may have been, the widow brought the slave Milly and her children from Kentucky about ten years after the death of her husband, and died here, shortly before this suit was instituted, in possession of the'slaves. She undertook to dispose of them by a will, and her executors are accordingly the defendants in this suit, maintaining that the title of Mrs. Salmons to the slave Milly was absolute; and the plaintiff, representing the interests of the personal dis-tributees of Joel Salmons, maintaining that the title of Mrs. Salmons was only for life, and that on her death the slaves vested in him as administrator of Joel Salmons. The question is, taking the plaintiff’s view .of the facts to be true, can the administrator, under the circumstances, maintain the action, or. must the heirs of Joel Salmons bring the action in their name ? The question only affects the form of the proceeding, for if the plaintiff prevails as administrator, he will recover merely as a trustee for the distributees.

It is well settled both in Kentucky and Virginia, where the law declares slaves to be real estate for some purposes, that they do not, in cases of intestacy, descend like land directly to the heirs, but go to the administrator as assets. Without the assent of the administrator, the title of the heir is not complete, and he can not maintain an action for them against a third person. After the passage of the act of 1800 in Kentucky, (2 Littell, 374,) slaves, devised were no longer considered assets in the hands of the executors, but were held to pass, like land, directly to the devisee. But where there was no will, notwithstanding the statute declared them to be real estate, slaves, just as other personal property, passed upon the death of their owner into the hands of his administrator, and he alone could sue for them. (Woodyard’s heirs v. Threlkeld, 1 A. K. Marsh. 14; Irons v. Luckey, ib. 54.)

There is no doubt, therefore, that the administrator is the proper person to sue for slaves belonging to the estate of his decedent in ordinary cases, and where the property has never been administered on and handed over to the persons entitled to it after the payment of all claims against the estate.

Where there is a particular estate in a chattel and a remainder over, a delivery to the owner of the particular estate may be considered as a delivery to the person who has the remainder. Upon the death' of the tenant for life in such cases, the title to the property is vested in the person having the remainder, and he alone is the proper person to bring an action for its recovery. As where a person dies, leaving-slaves to A. for life, with remainder to B. absolutely; upon the death of A., to whom the executor or administrator of the devisor has delivered them, B. may maintain his action. The property has passed from the estate, and the administrator has nothing more to do with it.

But where a life estate is created by will or by law, and no remainder is designated, the reversion, as the remainder is then called, falls back into the assets of the original estate, and the administrator, in such cases, is the proper person to sue. Such may be regarded as the character of the present case, where slaves have been assigned as dower, which is a life interest only, and the reversion on the death of the dow-ress is in the estate of the husband. The administrator of that estate, and not the heirs or distributees, may well sue, considering the property as falling back into the mass of assets. This course will not only be more convenient, but in some cases it may be important to the rights of the distribu-tees, who may have been unequally advanced in former distributions, and who may, through the intervention of this administration, have these inequalities corrected. Whether, under the circumstances of the present case, such as the death of Salmons’ intestate more than thirty years ago in Kentucky, and the acquiescence of all parties in the possession of the negroes in controversy by Mrs. Salmons as dower, the consent of the administrator of Salmons might not be presumed, and an action be maintained by the heirs, is not the question here. The question is, not whether the heirs might not under certain circumstances sue, but whether in this case the administrator could; and our opinion is, that, under the circumstances of this case., the suit was properly brought by the administrator.

The statute of limitations appears to have no bearing on this case, although some instructions were asked, and some evidence was offered, having reference to a title under this statute. A person having a life estate in property can not, by his acts or declarations, set up pretensions to an absolute estate, so as to make his possession an adverse one to the reversioner or remainderman. The reason of this is that there is no right of action in the reversioner until the particular estate lias determined, and the possession of the tenant is entirely consistent with the title of the reversioner. In fact the latter concedes the existencé of the former, and whatever the tenant for life may do or say about his title can be of no consequence to the reversioner; for, whether true or false, the latter can not disturb the life tenant during the admitted duration of his tenancy. It is impossible, therefore, for the tenant for life to make his possession an adverse one to the claim of one who has the remainder or reversion. It is not like the case of a trustee and a cestui que trust. The trustee may disclaim his trust and hold adversely to his ces-tui que trust as well as all others. The cestui que trust, unless laboring under some of the disabilities recognized by the statute and provided for, may sue the trustee at any .time; and therefore if an adverse possession continues long enough, it will protect the trustee, notwithstanding the general principle of equity law that no length of time will bar a trust. This general maxim is applicable only to cases where the relation of trustee and cestui que trust continue and is recognized; for when the trustee disavows his trust openly, and maintains a position adverse to his cestui que trust, as he may do, he has the same benefit from the statute of limitations which all others have. But the case of tenancy for life is different. There is no one to sue, no matter how often or how openly and loudly such tenant may claim to be absolute proprietor; for the person in remainder or reversion concedes the right of possession for life and can not therefore disturb it. The case, therefore, did not require any instructions based upon the statute of limitations.

If Mrs. Salmons took the slaves as her dower or as tenant for life, her possession could not be made adverse to the persons in remainder or reversion ; and if Mrs. Salmons, as was contended on the part of the defendant, took an absolute estate, then the statute of limitations was out of the question.

The question of fact, upon which this case turned and upon which instructions from the court were given, was whether Mrs. Salmons took the slave Milly, the ancestress of the slaves sued for, as her dower and as a tenant fpr life, or whether, by virtue of the arrangement which took place between her and the heirs after the death of her husband, she acquired an absolute title to them. It appears that shortly after the death of Joel Salmons, his children paid off the debts of the estate, and having selected persons to appraise the property, divided it among themselves, after assigning to the widow the slave Milly and some other property. It is immaterial whether this division was binding upon the heirs or not; it was satisfactory to them and was satisfactory to the widow. It was made more than thirty years before this suit was brought, and has been acquiesced in ever since. The paper which preserved the evidence of this division was signed by all the children and was in the form of a penal bond with conditions. It was not signed by the widow, but was read over to her and was not objected to. This paper was given in evidence on the trial notwithstanding the objections of the defendants. We think the paper was admissible as a part of the res gestee. It was contemporaneous with and explanatory of the whole transaction.

It will be observed that by the law of Kentucky, as it was at the time of this transaction, a widow’s dower in the slaves of her husband could not under any circumstances by the -meré force of the law exceed a life estate. (1 Litt. Ch. 293.) There was no provision, as there is in our state, for her taking any proportion of the slaves absolutely. We do not say, that, by consent of the heirs, such an interest could not be yielded to the widow ; but the legal presumption, in the absence of any agreement, would be, that slaves taken as dower would be taken only for life. The instruction, therefore, which the court gave the jury on this point, was certainly quite as fa-vorablé to the defendants as the law would permit. The court did not give to the plaintiff the benefit of a presump tion which the law gave thenr in the absence of any agreement to the contrary.

Upon- another point, also, the instructions of the court were more favorable to the defendants than the law warT ranted. By the laws of Kentucky, in 1826, a nuncupative will of slaves was not allowed. Such at least is the construction of the act of 1800, which directed slaves to pass by will as land, given by the courts of that state. (McCans & wife v. Board’s heirs, 1 Dana, 341.)

The exclusion of the declaration of Mrs. Salmons, tending to show her claim of an absolute title in the slaves, was proper; (Watson v. Bissell, 27 Mo. 223.)

The declarations or statements of Robert Salmons, John K. Salmons, and E. Chasten, distributees of Joel Salmons, deceased, were properly excluded. These persons were not parties, and were competent witnesses. Some of them did testify in the case, but no foundation was laid for contradicting their evidence, or impeaching their veracity, by declarations inconsistent with their statements in court.

The declaration of Nathan Salmons, the administrator, was also properly excluded, because it was made long before he was administrator; and as to matters which occurred previous to his taking out letters, he was fully competent to testify, although a party to the suit.

In relation to portions of the deposition of N. N. Williams, admitted on behalf of plaintiffs, which are objected to as hearsay and incompetent, it is sufficient to say that no exception was taken to those depositions at the trial.

Judge Ewing concurring, judgment is affirmed. Judge Scott absent.


author: Ewing, Judge,

text:
    Peers, Respondent, v. Davis’ Administrators, Appellants.
    1. Where a contract is reduced to writing, the written instrument is presumed to contain the whole contract; parol evidence is inadmissible to contradict or vary its terms.
    2. Palse representations made by a vendor in the sale of a chattel, to amount to a fraud upon the purchaser, must he known to be false when made, and made with intent to deceive.
    3. Where a new trial is sought on the ground of surprise by the exclusion of depositions of witnesses residing more than forty miles from the' place of trial, the affidavit accompanying the motion for a new trial should set forth the testimony contained in the depositions, or at least the substance of it, so that it could be determined by the court whether it is material or not.
    4. Surprise, in its legal acceptation, denotes an unforeseen disappointment in some reasonable expectation against which ordinary prudence could not have afforded protection. The fact that witnesses, whose depositions are taken, reside within forty miles of the place, is a fact of which the party taking such depositions can inform himself by ordinary diligence; if it be not known, the want of knowledge is to be attributed to his own laches, and surprise thus produced can not be ground for a new trial.

      Appeal from St. Francois Circuit Court.

    This was an application to the county court for the allowance of a demand against the estate of Luke Davis. The foundation of the demand on a promissory note for one hundred dollars given by said Davis to one Milton Sebastian. This note was given in part consideration of the sale of a female slave named Katy, and was assigned to plaintiff. The bill of sale executed by said Sebastian, so far as it is necessary to set forth the same, is as follows : “ Know all men by these presents, that I, Milton Sebastian, of, <fec., for and in consideration of the sum of two hundred dollars, to me in hand paid by Luke Davis, of, &c., the receipt whereof, &c., do by these presents bargain, sell, transfer, assign and deliver unto the said Luke Davis, his executors, &c., a negro woman, slave for life, called and known by the name of Katty, now about the age of fifty years old, together with all my right, title, interest, claim and demand of, in and to the said negro woman slave: To have and to hold, &c.; and the said Milton Sebastian for himself, his executors and administrators, does hereby covenant to and with the said Luke Davis, his executors, &c., that said negro woman is a slave for life. G-iven, &c. [Signed] Milton Sebastian [seal].”
    The evidence tended to show that at the time of the sale the negro woman was between seventy and eighty years old, and was quite worthless as a slave. The defendants offered Koen, one of the defendants, as a witness to testify, as stated in the bill of exceptions, “ as to matters occurring anterior to the death of his intestate, to show the representations made by Mr. Sebastian at the time he sold the negro woman.” The court refused to permit him to testify, on the ground of incompetence. Certain depositions were excluded on the ground that the witnesses resided within forty miles of the place of trial. Several witnesses were introduced, who, as stated in the bill of exceptions, “ severally testified to a conversation in which Luke Davis, in a grocery, about a year ago, stated that he told Sebastian, at the time the bill of sale was being written, to put the age of the negro at about fifty or fifty-five years, and not to make her too damned old, as he might want to sell her again.”
    The court, at its own instance, gave the following instructions : “ 1. If the jury find from the evidence in-the cause that the note sued on was given in consideration of the purchase of the xiegro woman from Milton Sebastian, and at the time of the sale Sebastian made false and fraudulent representations in regard to the age, qualities or bodily capacity of said slave, whereby the purchaser Luke Davis was deluded into the purchase; and if they further find that in consequence of the age, qualities, or physical condition, the said, negro woman was worthless and of no value, they will find a ■verdict for the defendants. 2. But the jury are further instructed that the want of value of the slave in consequence of her age and physical infirmity is not of itself sufficient to invalidate the sale, unless accompanied with proof of false representations by Sebastian at the time of the sale, by which the said Davis was deceived and deluded into the purchase.”
    The court refused the following instructions asked by defendants : “ 1. If the jury find from the evidence that the note read in evidence was given in consideration of the purchase of a negro woman from Milton Sebastian, and that said Sebastian falsely represented to said Davis at the time of the sale that said negro woman was many years younger than she was in fact, and that he also falsely represented to said Davis the qualities and capacity of said negro much better and greater than they were in fact, which representations were the main inducements to the trade, and that the negro woman was in fact worthless, diseased and many years older than represented by said Sebastian, then the plaintiff can not recover in this action. ' 2. The statement in the bill óf sale by Sebastian, in describing the negro slave, that she was fifty years of age, amounts to a representation on his part that she was of that age, or at least not greatly above that age, and if such statement was untrue it is in law a fraud upon Davis.”
    The jury found for plaintiff.
    Noell, for appellants.
    I. The court erred in excluding the testimony of Hardy Koen. He is not incompetent as a party. (R. C. 1855, tit. Witnesses; 20 Mo. IT; 28 Mo. 65.) The court erred in refusing the second instruction asked. The statement in the bill of sale amounted to a representation. The second instruction given was erroneous. It is not the law that there must have been false representations. If the property was wholly worthless from disease such as rheumatism, and Sebastian sold the negro and failed to disclose the fact, then the defendant would have been entitled to relief. No man is allowed to take something for nothing. There must be a consideration for every promise: The court erred in refusing a new trial on the ground of surprise. The depositions were taken because the witnesses, it was believed, resided more than forty miles from the place of trial. It seems they lacked a mile or two of the distance. The defendants were surprised by the action of the court.
    Beal, for respondent.
    I. The note sued on is for value received, negotiable and payable without defalcation or discount, and not subject to any set-off or any other defence as against the assignee. (20 Mo. 854.) The court properly excluded Hardy Koen as a witness. The court properly refused to allow the depositions to be read. The affidavit of defendants of surprise does not help the defendants’ manifest negligence. It was their business to know whether their witnesses resided at such distance from the place of trial as would entitle them to read their depositions. The instructions asked were properly refused. (27 Mo. 21, 55.) ■ 'The instructions given put the case fairly before the jury. There was no evidence of any misrepresentations made by Sebastian at or before the sale. (7 Mo. 514.) Statements made after the assignment of the note by Sebastian were not competent evidence. (6 Mo. 48; 18 Mo. 405 ; 27 Mo. 440.)
   Ewing, Judge,

delivered the opinion of the court.

The exceptions to the ruling of the court below, insisted on here, are in excluding the evidence of Koen, administrator of Davis, and one of the defendants ; refusing the second instruction asked by appellant, and overruling motion for a new trial.

Upon the first point it does not very clearly appear what was proposed to be proved by the witness Koen. It was stated generally to be representations made by Sebastian, the vendor of the slave in controversy, at the time he sold her to Davis. If these representations referred to the transaction of sale, or any thing relating to the contents of the bill of sale, the evidence was incompetent, because the instrument itself was the best evidence of the- agreement of the parties, and it could not be contradicted or varied by parol evidence. Where the contract is in writing, the instrument is presumed to contain the whole contract. But the facts sought to be proved by these representations are -so vaguely and indefinitely indicated, that upon this ground, if for no other reason, we might well conclude that no error was committed in rejecting the evidence. In such cases this court can not say there is error, unless the facts, which the excluded testimony is intended to prove, are so indicated as to enable this court to determine whether they are admissible, and, if admissible, whether they are material upon this point. Therefore we are of opinion there was no error, for the reason stated, irrespective of the question of the competency of the witness, about which we express no opinion.

The second instruction asked by the appellant was erroneous and properly refused. In the first place, the bill of sale in evidence contains a warranty that the negro sold was a slave- for life and no other; and it is not pretended that there is any warranty as to the slave’s age. As to her age there is simply a representation, and that is made in such guarded and cautious terms and with such qualification as clearly to show the vendor’s intention to incur no liability on that score, and to suggest the rule caveat emptor as the one which should- govern the transaction in this respect. But the error of the instruction is in asserting the proposition that a representation by a vendor in the sale of property that is untrue is a fraud upon the purchaser. This is a non sequitur. However representations by the vendor not known to be true may be regarded in morals, they are not such as subject him to legal liability, unless known to be false. Bep-resentations made in the sale of chattels, although untrue in fact, may be made with no design to deceive, or commit a fraud upon the vendor, and may be perfectly consistent with honest intentions and good motives in the transaction. •

If the purchaser of the slave were suing for damages upon the ground which is set up as a defence in this action, it would not suffice to allege simply that the seller made false representations as to the slave’s age, or as to any other matter which might be the subject of the alleged misrepresentations. Such facts would constitute no cause of action, and there would be no recovery unless there was an allegation of fraud.

In order to make a representation a ground for an action of deceit or fraud, it must be shown that the representation was known to be false, and that it was made with an intent •to deceive, though the known falsity of a representation' would be strong evidence of a purpose to practice a fraud., Where there is no warranty there can be no recovery for¡ false representations made in the course of the sale unless they were known to be such by the vendor. In all such ;, cases the ground of deceit is disposed of when the existence f of the defect is found by the jury to have been unknown to! the vendor. This doctrine is applicable only to the action; or the defence of a deceit in the sale of a chattel. (Jolliffe v. Collins, 21 Mo. 242.)

If the slave, owing to her advanced. age and bodily infirmities, was of little value, and the purchaser had a hard bargain, yet he chose to rely upon his own knowledge in making the purchase and not to exact a warranty except as to the single particular already mentioned.- As to the age of the slave, which is represented in the bill of sale as being about fifty-five years, the evidence clearly shows that there was no cause of complaint on that ground; for at the time of the sale and when the bill of sale was being written, several witnesses testify that the decedent, Davis, told the vendor, Sebastian, to represent the age- as the instrument expresses it, and “ not to make her too old” — giving as a reason that he might wish to sell her again.

The remaining point is the refusal of the new trial. The bill of exceptions shows that certain depositions offered by-appellants were excluded for the reason that the deponents resided within forty miles of the place of trial. In support of the motion the appellants filed their affidavit alleging that they were taken by surprise by the exclusion of the depositions ; that they were of opinion that the witnesses resided more than forty miles from Farmington; and went into the trial in full confidence that such was the fact, and that they would have the benefit of said depositions. It further alleges that they expect to prove false and fraudulent representations made by Sebastian in regard to the age, qualities and physical condition of the slave.

The affidavit contains no averment of merits, or that the verdict is unjust. Moreover, the ground relied upon is insufficient in omitting to state in the affidavit what the depositions contained.. The evidence should have been set out, or at least the substance of it, so that this court could determine whether it was material. It might have been immaterial ; if so, there would have been no cause for a new trial. It is not enough that the party himself states the facts he supposes the excluded evidence will tend to prove. But had the evidence appeared in the affidavit, the facts alleged as the ground for a new trial, it is conceived, would not have warranted it. Surprise in its legal acceptation, it is said, denotes an unforeseen disappointment in. some reasonable expectation against which ordinary prudence would not have afforded protection. Where the witnesses resided, whether more than forty miles from the place of holding court, was a fact of which the party could readily have informed himself by ordinary diligence; and that it was not known is to be attributed to his own laches; and surprise produced by the laches of the party is never a good cause for a new trial. (3 Graham & Wat. New Trials, 949.)

The other judges concurring, the judgment will be affirmed.


author: Scott, Judge,

text:
    Jamison, Plaintiff in Error, v. Glascock, Defendant in Error.
    1. A person standing in a fiduciary relation to another will not be permitted, in the management of'the property committed to his charge, to derive an advantage at the expense of his cestui que trust.

    2. This rule applies to the case where a. person, in whose favor another has confessed a judgment, accepts a power of attorney constituting him an agent of the latter to dispose of certain lots and parcels of land, and then has an execution issued upon the judgment by confession and levied upon those lots, and purchases the same himself at the sheriff’s sale.

      Error to Ralls Circuit Court.

    This was a suit in the nature of a bill for the redemption of mortgaged property. The plaintiff, John Jamison, prays an account and a decree for a reconveyance of the property alleged to have been acquired and 'held in trust. The facts as they appeared in evidence are substantially as follows: John Jamison, plaintiff in this suit, was collector of the county of Ralls. French Glascock, the defendant, was one of the securities on the official bond of said Jamison. Jami-son being a defaulter, Glascock assumed the indebtedness of Jamison to the county, amounting to $608.82, and gave his own bond, with securities, to the county for that sum, the county releasing Jamison. This bond or note of Glascock was dated August 27, 1849. On the 28th of August, 1849, Jamison confessed a judgment in the Ralls circuit court in favor of Glascock for $608.82. The written statement made by Jamison upon which'judgment by confession was rendered stated the indebtedness to be “ for so much money by the said Glascock assumed for me to the county of Ralls, and paid off by his bond and security, which the said county accepted, and discharged the judgment held by said county against me.” The bond given to Ralls county has been fully paid and satisfied — Glascock paying one hundred dollars on August 30,1849, two hundred dollars on January 1,1850— and Jamison paying the balance, three hundred and twenty-six dollars, on June 6, 1850. Jamison went to Texas in tbe year 1850. Before be left, he executed a power of attorney dated June 12, 1850, to the defendant Glascock and others, constituting them attorneys in fact to collect and receive all debts, dues and demands due to said Jamison, and empowering them or any one of them to sell and convey certain real estate, therein described, situate in Balls and Marion counties. On the 16th of September, 1850, at the instance of said Glascock, an execution was issued upon the judgment confessed in the Balls circuit court. This execution was directed to the sheriff of Marion county. This execution was levied on the 8th of February, 1851, upon certain lots belonging to said Jamison in the city of Hannibal. These lots were embraced within the power of attorney given by Jamison to Glascock and others. At the sheriff’s sale, March 12.1851, Glascock became the purchaser of said lots, seven in number, for the sum of one hundred and seventy-five dollars, of which one hundred and sixty-five dollars and eighty-eight cents were credited on the judgment. In the year 1850, one Losey, under a judgment before a justice of the peace in favor of said Losey and against said Jamison, had levied upon five of said lots, and had bid off the same for three dollars and fifty-five cents. On the 21st of September, 1850, Losey, upon receiving the amount of his judgment from Glascock, relinquished his bid. This relinquishment was made to Jamison. Glascock stated to Losey that he was Jamison’s agent. One Abner Smith had a mortgage upon the lots in Hannibal for two hundred and six dollars and sixty cents. This mortgage Glascock paid off October 7.1851, and it was released by entry of record. The transactions had by Smith with Glascock were had with him, as Smith testified, in the capacity of agent of Jamison. Glas-cock had sold all but one of said lots.
    The plaintiff asked the court to declare the law of the case as follows: “ 1. If it appears from the evidence in the cause that the plaintiff (Jamison) gave to the defendant (Glascock) the judgment by confession given in evidence for six hundred and eight dollars and eighty-two cents, to indemnify the said defendant as tó his liability for that amount as security for said plaintiff in his bond as collector of the revenue in and for Ealls county, Miss'ouri; and that it was then understood and agreed by and. between said plaintiff and said defendant that said pláintiff, 'intending to leave the state soon thereafter, should give the defendant a power of attorney authorizing him to settle u^ plaintiff’s business and sell the real estate now in question ; and that in pursuance thereof plaintiff gave defendant the power of attorney'read in evidence, and defendant accepted the agency and trust created thereby, and that said defendant, instead of selling and disposing of said Jots under said power of attorney, sued out an execution on his said'judgment and caused the same to be levied on and sold under said judgment and execution, and bought them in at greatly less than their value— all after plaintiff had left the state, in the absence of plaintiff and without any notice to him — then the finding should be for the plaintiff. 2. If the defendant [plaintiff] confessed the said judgment in plaintiff’s [defendant’s] favor in consequence of an agreement between the plaintiff and the defendant to the effect that the judgment should be an indemnity to the defendant as to his liability as plaintiff’s security in the bond as collector, and for no other purpose, then the said judgment was in the nature of. a mortgage, and the lots purchased under the same and bought in by defendant are subject to redemption by the plaintiff, and the finding should be for the plaintiff.”
    The court refused so to instruct dr declare. The plaintiff thereupon took a nonsuit, with leave,- &c.

      Porter Sf Harrison, for plaintiff in error..
    I. Glascock being appointed and having assumed to act as agent for Jamison, in 1850, in taking care of and selling the lots in question for Jamison, he can not be permitted to so use his judgment by confession as to sacrifice his principal’s interests to his own advantage. Standing as he did in a fiduciary relation to said Jamison, all the benefits of the redemption from Losey’s execution and sale of said lots, after the reimbursement of his advances and payments for Jamison, enure to Jamison. The court should have declared the law to be as assumed in plaintiff’s first instruction. (See Story on Ag. § 210, 215 ; 1 Story Eq. 821; Jeremy Eq. 395 ; Hill on Trustees, 157, 535.) The fact that Glascock was a judgment creditor made him none the less an agent and trust.ee. The fact of the parties assuming the fiduciary relation towards each other, which they did in 1850, imported an agreement that Glascock should pursue that course which would be most promotive of and least prejudicial to Jami-son’s interests. Equity will imply such an agreement as in point of fact was undoubtedly made in this case.

      Pratt 8f McCabe, for defendant in error.
    I. The court properly refused to declare the law as prayed. The judgment by confession was not to secure against a contingent liability, but to satisfy, so far as the plaintiff’s property would go, a debt which the plaintiff owed the de-the fendant. In the power of attorney no allusion is made to the debt, which plaintiff says was secured by the confession of judgment. The judgment under which the sales were made was totally disconnected with the objects which Jamison had in view when he created the pretended agency, and as a consequence no trust could arise. The confession of judgment gave Glascock a lien on the real estate of plaintiff, and even if a subsequent arrangement had been made between the parties, the lien of'his judgment could not have been disturbed, unless the evidence of the agreement was of as high a nature as the record of the judgment. The evidence is altogether insufficient to clothe the land with any kind of trust. Where land is purchased at a judicial sale, it is not competent to show by parol that the purchaser agreed with the former owner to permit the latter to redeem. (8 S. & E. 492.) Glascock never was in a position to have taken advantage of the plaintiff. He did obtain no advantage. The entire property of Jamison was insufficient to pay Glas-cock’s debt. (9 Wend. 36.) Any declarations that Glas-cock may have made as to bis agency would not raise a trust which equity would enforce. (5 Wend. 389.) There was no fraud.
   Scott, Judge,

delivered the opinion of the court.

This case turns on the propriety of the instructions asked by the plaintiff and refused by the court.

If the substantial facts, whose existence is assumed by the first instruction asked by the plaintiff, are proved, (and in the hearing of this writ of error we .must take them to be true,) we do not see how the conduct of the defendant can be reconciled to those principles which have been established by courts of equity for the government of the conduct of trustees. The office of a trustee is one of confidence, and he is watched with the greatest vigilance lest he should abuse the confidence reposed in him. - As he voluntarily assumes the trust, the law will not permit him, in the management of it, to make to himself any profit or ’advantage at the expense of the cestui que trust. He can not become the purchaser of the trust property but at the option of those for whom he acts, as he thereby unites in himself the opposing characters of the seller and purchaser — the interest of the former of which is to sell for the highest price that can be obtained, while that of the latter is to buy. for the least sum at which the property can be acquired. In such cases equity does not examine for fraud on the part of the trustee who attempts to purchase the subject of the trust, but takes away the temptation, by holding him incapable of making a purchase which shall bind those for whom he is entrusted ; and it gives them the option to vacate or affirm the purchase of their trustee. The rule prevents a conflict between the interests and the duty of the trustee, and shuts out a difficult and embarrassing inquiry into his motives. It is necessary for the security of those whose property is held in trust, and promotes integrity in the dealing of the trustee with the property that has been entrusted to his care and management.

The defendant having a confession of judgment against the plaintiff, by law he would have a right to enforce the judgment by execution, and to become a purchaser at the sale under it. But there was nothing to prevent the defendant from divesting himself of this right, if he thought proper to do so. Having it in his power to collect his judgment at any time, as both he and the plaintiff knew, what could have been his motive in acting under a power of attorney which authorized him to sell the very lots which were afterwards sold under the judgment ? The power of attoi'-ney was executed after the confession of the judgment. What hopes must have been excited in the plaintiff by the defendant accepting the power of attorney authorizing him to sell the land ? It must have lulled his apprehensions respecting the sacrifice of his property under the judgment which had been confessed. How naturally would the thought occur to the plaintiff that the defendant would not use his judgment, as he had a power of attorney to sell. Could the plaintiff have supposed that, after this, the judgment would have been enforced, until he at least had notice of a failure to raise money under the power of attorney ? It may be said that the defendant had a right to issue the execution and to become a purchaser under it. But would not the acceptance of the power of attorney be an abandonment of this right ? After consenting to sell the lots under a power of attorney, and thus placing himself in a fiduciary relation to them which prevented his becoming a purchaser, he could not use his judgment in such a way as to relieve himself from the incapacity to which he had voluntarily subjected himself. As his rights as a creditor were in conflict with his duties as an agent, the former must yield to the latter. By taking upon himself the office of agent, he waived his right as a creditor so far that he could not become a purchaser.

The case of Rogers v. Rogers, in Hopkins’ Ch. R. 515, is very similar to that before us. There, a person by his will appointed an executor. Between tbe time of making the will and the death of the testator, the person named as executor became a judgment creditor of the testator, and after his. death qualified as executor. The testator left debts unpaid and an estate consisting of personal and real property. The personal estate was insufficient to pay the. debts. The executor caused all the lands of the testator to be sold under an •execution issued upon the judgment held by himself as a creditor, and he became a purchaser. The sale and purchase were vacated at the instance of other persons interested in the estate of the testator. The chancellor remarked : If the executor had not accepted the trust, he would have been at full liberty to pursue all his remedies for the satisfaction of his judgment; and if loss to' others had followed the exercise of his rights as a creditor, he would not have been responsible. When he accepted a trust which imposefi on him the duty of taking every legal-and prudent measure to pay the debts of his testator from the personal and real estate, he was no jonger at liberty to exert his rights as a creditor in opposition to his duties -as executor. He continued a creditor, but he relinquished any right of a creditor which might interfere with his duty as a trustee. Having accepted the trust, he could not, in the character of creditor, do any act which should subvert or impair the interests of those for whom he was trustee.”

The circumstance that the trustee was an executor constitutes no real difference between the case cited and that now under consideration. The executor, knowing that he was a judgment creditor, voluntarily took upon himself the office of executor. There was no legal compulsion on him to accept the duty of executing the -testator’s will. Thus willingly making himself a trustee, the executor was held to have relinquished his right to become a purchaser at a sale of the property with which he was. entrusted. So here, although the judgment creditor might have enforced his judgment and have become a purchaser at a sale under it, yet, voluntarily clothing himself with a trust in relation to the property which disqualified him from acquiring it at a sale, he must be regarded as having renounced that right. The rule of equity applicable to this subject extends not only to trustees strictly so called, but also to persons standing in a similar situation, — such as executors dealing with the estate of their testator; or committees with the estate of the lunatic ; or commissioners, assignees, or solicitors of a bankrupt or insolvent estate purchasing any portion of the assets ; or the agent of the trustee who becomes the purchaser of the trust property; or a governor of a charity taking a lease of the lands of a charity; or an agent for buying or selling property buying or selling for or to himself. In none of these instances will the transactions be suffered to prevail against the equitable rights of the injured parties. (Hill on Trustees, 223.)

We deem that most of the grounds taken by the defendant in support of the judgment have been answered in what has been already said. We do not see what the statute of frauds has to do with this controversy. If the case is as stated in the first refused instruction, then, if it is within the statute of frauds, so are all the cases in which the trustee becomes a purchaser of the trust fund; for this suit can be maintained on no other ground than that a trustee charged with a trust in relation to property has become the purchaser of that property.

Why does the defendant attempt here to explain the object of the power of attorney, after having so emphatically denied that he ever accepted any agency under it ? He asserts here that the bulk of the plaintiff’s property was in Kalis county. This may be probable, as he took a confession of judgment there, the lien of which we may suppose he thought would be a sufficient security for his debt; but this fact is not in the record. We may not know how the facts are in relation to this matter, but we know the lien was only such in the county in which the judgment was confessed. Assuming that the bulk of the property was in Ralls, the plaintiff asks why this suit was not brought for the lands in Ralls county. This inquiry implies that lands, were sold in that county to pay the defendant’s debts. But if the bulk of the property was there, why would he go to. Marion county, where his judgment was no lien, and seize' 'property to satisfy his debt, unless he would tell us that all the property in Ralls had been exhausted. If he would" turn away from property in that county subject to his execution, and go into Marion in search of town lots, it would certainly be a circumstance against him. We do not know how this matter is, but we think it very singular that it was not fully explained in the court below.

We are of opinion that there was no error in refusing the second instruction, as there was no evidence to warrant it. Reversed and remanded;

the other judges concur.


text:
    Hahn’s Administrator, Respondent, v. Sweazea, Appellant.
    1. To -warrant the reversal of a judgment on the ground of the admission of irrelevant testimony, it must appear that it was calculated to mislead the jury.
    2. Remission of damages may he made hy a plaintiff after a motion for a new trial has been overruled.

      Appeal from Bollinger Circuit Court.

    The facts sufficiently appear in the opinion of the court.
    Noell, for appellant.
    I. It was error to permit the witness to detail the statements of "plaintiff made in reference to the marks and descriptions of the filly. The court should have given the instruction asked, excluding the evidence so far as it tends to prove title or identity. The court erred in refusing the second instruction asked. Where the scale is equally balanced by the evidence on both sides, the possession of property will be left where it is found. .There was not a particle of evidence to sustain the verdict for damages. Nor does the remission of damages, after the motion for a new trial was overruled and exception taken, alter the case.

      Glover 8f Richardson, for respondent.
   Scott, Judge,

delivered the opinion of the court.

This was an action to recover the possession of a bay filly and damages for her detention commenced under the act of 1849, and in which the plaintiff recovered judgment.

On the trial, during the examination of one of the plaintiff’s witnesses, he was asked by plaintiff to state what plaintiff said in the presence of defendant’s family (the defendant being absent) when the plaintiff went to demand the filly. The defendant admitted a demand and objected to the evidence going to the jury, as he was not present. The court overruled the objection and the witness was permitted to state what was said by the plaintiff. The substance of the testimony was that the plaintiff described the filly by two unusual marks, both of which were on the mare in controversy, and declared that unless the filly he claimed had these marks she was not his property. After this testimony was heard by the jury, the court directed them that it was only evidence of a demand. After the evidence had been closed on both sides, the defendant asked the court to instruct the jury that the statement of the plaintiff tending to show title in himself to the filly and giving a description of her, is not evidence for the plaintiff to prove title or to prove the identity of the filly in controversy. This instruction was refused.

We can see no reason why the court permitted the evidence to go to the jury, nor why the instruction was refused. It is certainly, to say the least of it, a very unsatisfactory way of conducting a trial, to allow a witness to give illegal testimony, knowing at the time it will turn out so. Improper evidence will sometimes escape a witness, as it is not known what he will state, and the court will sometimes change its opinion npon reflection and strike out evidence when it has been received. But it is strange that a court would permit a witness to testify, when it is known that his testimony will be illegal." When the demand, was admitted, there was no necessity for the witness proceeding any farther in his statement. In truth, the'evidence was inadmissible to establish a demand, as the defendant was not present. The court must have known that the object of the party was a sinister one; and why was he indulged ? After the allowance of this evidence, under the circumstances, the court surely would not have erred had it given the instruction asked by the defendant.

Although the conduct of the court was, such as might well have created dissatisfaction in the mind of the defendant, yet strictly we can not say that there .was such error as, under all the circumstances, will warrant a reversal. The jury was verbally directed to disregard the improper evidence except on the point of a demand, and on looking at the evidence in the record we can not sáy that the hearing of the illegal evidence by the jury caused a prejudice to the defendant. The declaration of the plaintiff heard by the jurors was supported by the testimony of several witnesses in their description of the Ally. They described her as the plaintiff did. We must suppose that the jury governed themselves by the direction of the court.

' The case did not turn so much upon the equilibrium of evidence as upon the credibility of the witnesses. There is no doubt that when the evidence ,is of equal weight on both sides, in the minds of the jury, that they should leave the parties as they find them. When a plaintiff would take from another what is in his possession, he must produce evidence that would satisfy the mind that it would be right to do so. But as this case evidently turned on the credibility of the witnesses, as has been observed, we can not say that the defendant was prejudiced by the refusal of his second instruction, especially when we take into consideration those given for the other side.

The remission of the damages during the term was in time, although it was not done until after the motion for a new trial had been overruled and exceptions taken.

Upon the whole, on looking through this record, we’ are not satisfied that the defendant would be benefited by a new trial. Affirmed;

the other judges concur.


text:
    Lewis, Plaintiff in Error, v. Bowen’s Administrator, Defendant in Error.
    1. No endorsement or written assignment of a promissory note is necessary to enable the holder thereof to maintain an action thereon in his own name.

      Error to Marion Circuit Court.

      S. S. Allen, for plaintiff in error.

      Pratt Sf Me Cabe, for defendant in error.
   Ewing, Judge,

delivered the opinion of the court.

This was a suit commenced in the county court of Marion county upon a note executed by William Bowen, deceased, to James Parker, and by him transferred by delivery merely to the plaintiff Lewis. Lewis had judgment in the county court, from which Bowen appealed to the circuit court. On the trial in the circuit court, the execution of the note having been duly proved, plaintiff offered it in evidence, which was rejected. He thereupon suffered a nonsuit, which he moved to set aside. The motion was overruled, and the cause is brought to this court by writ of error. The only point in the case is the refusal of the court to permit the note to be read in evidence, because there was no assignment in writing or endorsement.

Under the practice act now in force, which abolishes the distinctions in the forms of actions and requires suits to be prosecuted in the name of the real party in interest, no endorsement or assignment in writing is necessary to enable the bolder of a promissory note to maintain an action in his own name. This point was decided in the case of Boeka v. Nuella, 28 Mo. 180. See also Bennett v. Pound, ib. 599.

The judgment will be reversed and the cause remanded;

Judge Napton concurring. Judge Scott absent.


author: Napton, Judge,

text:
    Linville et al., Respondents, v. Welch, Appellant.
    1. What is due diligence in giving notice of dishonor of a bill of exchange is a question of law when the facts are admitted; where the facts are disputed, the court should give hypothetical instructions, leaving the facts to be determined by the jury.
    2. If the residence of the endorser of a dishonored bill of exchange is unknown to the holder, inquiry should be made to ascertain his domicil or place of business.
    3. A bill of exchange drawn in one state of the United States upon a person in another state is to be treated as a foreign bill of exchange; in case of dishonor, protest is necessary; it is not necessary, however, that the notice of dishonor should be accompanied by a copy of the protest. The notice may be a verbal one.
    4. Presentment of a bill of exchange to _the drawee must be made in a reasonable time. What time will be reasonable depends upon the circumstances of the case.

      Appeal from Adair Circuit Court.

    This was an action against the defendant as endorser of a bill of exchange for five hundred dollars, dated October 24, 1854, at Cincinnati, Ohio, and drawn by Ellis & Sturges in favor of defendant, Thomas Welch, upon the banking-house of Lolcer, Renick & Co., at St. Louis. The bill was endorsed by Welch to plaintiffs. From the notary’s entry on the face of the bill and the protest it appeared that the bill or draft was protested for nonpayment on the 13th of December, 1854. On the day of the protest the notary sent notice of protest to Ellis & Sturges at Cincinnati, Ohio, and also sent notices to Welch, directed to Cincinnati, Ohio, and to St. Louis, Mo. It appeared that the plaintiffs sent the bill to their agent at St. Louis, Mo., and he, on the 17th of November, 1854, presented it to Loker, Renick & Co., who refused to pay the same. The banking-house of Ellis & Sturges had failed November 7, 1854. The agent returned the bill or draft to the plaintiffs, who sent the same back to the agent to present again. He did so on the 13th of December, and the bill was protested on that day for nonpayment. There was no protest made upon the first refusal of payment There was evidence that defendant had notice of the first refusal of payment.
    The court, at the instance of the plaintiffs, gave the following instruction: “ If the jury believe from the evidence in the cause that the bill was presented to Loker, Renick & Co. for payment in a reasonable time, and that payment was demanded and refused, and that the defendant was notified of the presentment and refusal to pay in a reasonable time, then they will find for the plaintiffs.”
    The court refused to give the instructions asked by defendant. The jury found for plaintiffs.

      Barrow 8f Platte and McCabe, for appellant.

      Glover Richardson, for respondents.
    I. The presentment of the draft was made in a reasonable time. Both a verbal and written notice was given. It was regularly protested. A verbal notice was sufficient. (Story on Bills, § 300 ; Chitty on Bills, 502; 3 Kent Com. 106.)
   Napton, Judge,

delivered the opinion of the court.

The instructions given by the court in this case were erroneous. What is due diligence in giving notice of dishonor of a bill of exchange is a question of law, when the facts are agreed on ; and when the facts are disputed, the court should give hypothetical instructions, leaving the facts to be determined by the jury. (1 Peters, 583.)

Upon the facts disclosed in the bill of exceptions in this case, it is impossible for this court to pass upon the sufficiency of the notices attempted to be given by mail. So far as the evidence goes, it seems clear that notices put in the post-office at St. Louis, directed to the defendant at Cincinnati and at this place, were insufficient. There is no direct evidence to show where the defendant resided, or where his place of business was, but it may be inferred from the evidence that he lived in Edina. If so; and that fact was known to the plaintiffs or their agent here, notices directed to the defendant at Cincinnati or St. Louis were of course no notice at all. If the residence of the defendant was unknown to the plaintiffs or their agent here, inquiry should have been made to ascertain his true domicil or place of business. (Story on Bills, § 299.)

It appears to be the prevalent and settled opinion now, that a bill of exchange drawn in one state of the United States upon a person in another is to be treated as a foreign bill of exchange, upon the same principle, we may suppose, that the courts in England held a bill drawn in Scotland or Ireland upon a person in London to be a foreign bill, after the Union; (Buckner v. Findlay & Van Seer, 2 Peters, 589; Mahony v. Ashlin, 2 Barn. & Adolph. 589; 3 Kent Comm. 94;) and in all cases of foreign bills of exchange a protest is necessary. . (Story, § 277.) But it is not necessary that the notice of the dishonor should be accompanied by a copy of the protest; it is sufficient for the notice to state that the bill has been protested, leaving the proof to be made at the trial, if the case is contested. (Story, § 302.) And the notice may be a verbal one made to the parties in person. (Story, § 300.)

In relation to the presentment to Loker, Renick & Co., the law requires this to be made in reasonable time, and what that will be must depend upon the circumstances of the case. That the presentation made in this case by Matthews, on the 13th December, was not within reasonable time, would seem to follow from the fact that a previous presentation had been made on the 17th November.

Judgment reversed and the case remanded.

The other judges concur.


text:
    Barley & Wife, Respondents, v. Tipton, Appellant.
    1. A justice of the peace rendered a judgment against A. and B. A. dying, an execution was issued and levied upon certain property as the property of B., and the constable sold the same. Previous to the issuing of the execution by the justice, A. had sold and conveyed said property to C. Meld, in a suit by C. against the constable to recover damages for a wrongful levy, in which suit it was assumed that A. had title to the property at the time of his transfer to C., that the defendant was not in a position to make out a defence by showing that A. had transferred the property to C. with a view to defraud his creditors.
    2. A constable who levies upon and sells property under an execution not directed to him and illegally in his hands, may be treated as a mere trespasser; the constable must derive his authority from the justice who rendered the judgment or his successor in office.

      Appeal from, Montgomery Circuit Court.

    This was an action against the defendant, Jonathan Tip-ton, a constable- of Monroe township, Lincoln county, to recover damages for an alleged wrongful levy upon certain hogs. The facts briefly are as follows : One Thomas Money, in January, 1849, executed a bill of sale, which was duly recorded, conveying certain hogs to his sister Catherine Money, afterwards married to David Barley and plaintiff in this suit. In June, 1849, on the day of, or the day after, the death of Thomas Money, one McKee obtained a judgment before John Reed, a justice of the peace of Hurricane township, Lincoln county, against Thomas Money and Anna Money. Execution was immediately issued against both defendants and certain hogs were levied upon and sold as the property of Anna Money. The hogs sold were a portion of those embraced in the above mentioned bill of sale to Catherine Money. The execution issued was directed to the constable of Hurricane township. This constable afterwards returned the execution not satisfied. The justice renewed the execution, and at the risk and request of the plaintiff authorized Joseph Sitton to execute and return the same. The execution afterwards, in some unexplained manner, came into the hands of Joseph Hardesty, a justice of the peace of Monroe township, in said county. He renewed the same for sixty days, and authorized Jonathan Tipton, the defendant, to execute and return the same. Tipton executed the writ as above stated. The court struck out that part of the answer in which the defendant attempted to justify the alleged trespass under the authority of the execution, and in which he set up that the bill of sale by Thomas Money to Catherine Money was executed in fraud of the rights of the creditors of Thomas Money.
    The court instructed the jury as follows : “ The bill of sale read in evidence passed the title to a lot of hogs to Catherine Money ; and if the jury find that a portion of said hogs were taken by defendant, they will find for plaintiffs the value of the pork so taken.”
    There was a verdict for plaintiff.

      E. A. Lewis, for appellant.
    I. The instruction given was erroneous. It assumed too much and took the case out of the hands of the jury. There was no proof of title in Thomas Money when he executed the bill of sale to Catherine. Nor was his ownership admitted in the pleadings. The defendant levied on the hogs as the property of Anne Money. It should have been left to the jury to determine whether Thomas Money was the owner at the time of the execution of the bill of sale; whether, considering all the circumstances of the sale, it ever was completed even as between the parties.
    II. The court erred in striking out of the defendant’s answer the allegations touching the judgment and execution and defendant’s acts as constable under the same, and the acts of Catherine Money pending the levy and sale which operated as an estoppel to her afterwards seeking to invalidate the official acts of the defendant. (Story on Ag. § 91; Story on Eq. § 192, 385 ; 6 Ad. & El. 474; 18 Barb. 435.) It does not appear from the constable that he derived his authority from a justice of the peace of a different township from that in which the judgment was rendered. The legal presumption is that the constable received the execution from the justice that rendered the judgment.
    III. The court erred in rejecting the testimony offered to show that the bill of sale was designed as a mere blind to deceive creditors.

      Henderson and Hunt, for respondents.
   NaptoN, Judge,

delivered the opinion of the court.

The main effort in this case, on the part of the defendant, the failure of which is complained of, was to get in his proofs of the fraudulent intentions of Thomas Money in making the bill of sale to his sister, the plaintiff. The difficulties in the way of such a defence as this appear to be insurmountable. The execution, which defendant had in his hands, was against Thomas Money and Anna Money; but Thomas Money was dead, and had been long before the execution was renewed. So far as Thomas Money was concerned, the paper was a nullity, and this property could not be reached in that way. If the execution is to be treated as a valid one against Anna Money, and a justification is attempted to be set up under it in that view, then the fraud of Thomas Money is foreign to the case ; so that, in either view of the defence, no ground is laid for an attack upon the conveyance from Thomas Money to his sister, the plaintiff.

The instruction given by the court, that the bill of sale from Thomas to Catherine Money conveyed the title to the hogs levied on, was doubtless occasioned by the previous decisions of the court, not only in excluding all testimony tending to impeach this transaction for fraud, but all the documentary proof of a valid execution. The defendant was regarded in the light of a naked trespasser.

The instruction goes very far in taking from the jury all consideration of the title of Thomas Money, or of Anna Money, if she ever had any; but, under the circumstances and facts in evidence, we can not say that the instruction could possibly have injured the defendant.

There was no evidence to show title in Anna Money, the person against whom the execution'could only have been directed or levied. There was no evidence offered in the case on either side to show that Anna Money had ever set up any claim to this property, or had ever exercised acts of ownership over it, or had ever been in possession of it; on the contrary, the title of Thomas ■. Money previous to his transfer to his sister was not a controverted point in the case. Both sides conceded it; the plaintiff assumes it as the source of her title; and the defendant’s evidence throughout was all based upon -the same assumption, and was therefore aimed to establish that Thomas .Money had transferred the title to plaintiff for the purpose .of defrauding his creditors. For the'purposes of this trial, therefore, it cannot be said that the court committed an error in giving an instruction which disregarded and left out of view any hypothesis based upon a claim of title, or thé existence of title, at any time in Anna Money. Had there been any controversy in this point, such an instruction might .have been improper, and certainly would have been improper, were it not for another difficulty which the defendant had to encounter in his defence. The execution which the defendant had in his hands was issued originally by a justice of the peace of Hurricane township, and was directed to the constable of that township; whereas the defendant was constable of Monroe township, and it appeared upon the face of the execution that he had no authority to execute it. The execution seems to have been renewed, after its first return unsatisfied, by the justice who first issued it, and put into the hands of one Joseph W. Sitton. Then it appears to have fallen into the hands of a justice of Monroe township and by him put into the hands of defendant, who was constable of that township, to be executed. It should have appeared that the last named magistrate was the successor of the one who originally renewed it; but not only does this not appear positively, but the contrary is shown by the papers; for the successor of Reed, the first justice in Hurricane township, who issued execution, is the justice who certifies the papers, and he is a different person from the person who, as justice of Monroe township, undertakes to authorize the defendant to execute the writ.

So that, in every view of the case, the defendant stood before the court as a mere trespasser. The only defence which, under such circumstances, seemed to be available was, that the plaintiff had no title; but as he was not in a condition to dispute the validity of the transfer from Thomas Money to her, and offered no evidence to show that Anna Money ever had any title, and in fact conceded, by his attempted defence, that Thomas Money did have the title previous to his sale to the plaintiff, this ground was a very shadowy and narrow one, and was in truth utterly cut off by the mere proof of possession in the plaintiff.

Judge Ewing concurring, judgment affirmed. Judge Scott absent.


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    Orrick et al., Defendants in Error, v. Bower et al., Plaintiffs in Error.
    1. Where an administrator’s deed conveying lands refers to the report of sales made by the administrator to the county court, such report, together with a plat of lots sold accompanying it, will be regarded as incorporated with the deed for purposes of construction and interpretation; they will be admissible in evidence to determine the boundaries of the land conveyed by the administrator’s deed.
    2. A call for quantity in a deed must yield to a more definite description by metes and bounds.

      Error to St. Charles Circuit Court.

    This was an action in the nature of an action of ejectment to recover possession of a piece of land containing one 62-100 acres. Both plaintiffs and defendants claim title under Nicholas Janis, deceased — the plaintiffs by virtue of deeds from the heirs of said Janis, and the defendants under a deed from the administrator of said Janis. The administrator in this deed recited an order of sale made by the county court of St. Charles county, the proceedings under this order, the report óf the administrator to the court, and the approval thereof by the court. Accompanying this report was a plat of the lots sold. Lot eight, as marked out upon this plat, did not include the land in controversy, and contained three 97-100 acres only. This report' and the accompanying plat were admitted in evidence against the objection of defendants. The defendants asked the court to “ decide that if the estate of Janis, at the date of the administrator’s sale, owned the land South of lot eight, then the deed will be extended south so as to include the quantity of • five 59-100 acres mentioned in said deed ; that the call in said deed for its southern boundary can not limit the quantity called for in said deed.”

      C. Weils, for plaintiffs in error.
    I. The court erred in admitting the report of the administrator to limit the amount of land conveyed.
    II. The court also erred in admitting the plat attached tó the report. It conflicts both with tire report and the deed.
    III. The court erred in refusing the instruction asked.

      E. A. Leiois, for defendants in error.
    I. The administrator’s report and the accompanying plat were properly admitted. (16 Mo. 124; 9 Mass. 161; 8 Binn. 455 ; 17 Mass. 207; 2 Ohio, N. S. 361; 21 Pick. 135 ; 14 Mass. 149; 9 Cranch, 173; 4 Wheat. 444; 37 Maine, 63.) The quantity expressed in the deed is to be taken as a mere estimate and not a part of the description; a discrepancy therein can not disturb the location of the boundary lines thus ascertained.
   Ewing, Judge,

delivered the opinion of the court.

The first point that will be noticed is whether the court below erred in admitting as evidence the report of sale made by the administrator and the plat accompanying it. It is urged first, that the report could not be admitted to limit the amount of land conveyed by the deed to defendants, because it is not referred to in the administrator’s depd; and second, that the plat attached to the report was improperly admitted, because it conflicts with both the report and deed.

The report of a sale of real estate made by an administrator is the foundation of the title, and its approval by the court is his only authority for executing a conveyance ; and when it is referred to in the deed, it thus becomes a part of it, and they are to be construed together as one instrument.

In this case, the statute on the subject of administration sales of real estate seems to have been duly complied with. The deed of the administrator shows that a full report of his proceedings was made to the county court, and that the same was duly approved. It is true, that there is no express reference in the deed to the plat; but the plat is referred to and made a part of the report, and thus becomes virtually a part of the deed, as much so as if it had been incorporated into the body of it.

The admissibility of the plat as evidence and its effect are different things, which seem to have been confounded in the second point made by counsel. If the plat, by reference in the deed, becomes a part of the latter, it is admissible for that reason irrespective of any supposed conflict that may appear between them. What its effect may be in this respect, or how far one may control the' other in ascertaining the description of the land conveyed, is a question of interpretation, and not one of competency. In such cases, the writing referred to may or may not qualify the descriptive parts of the conveyance, and one may correct an erroneous description contained in the other, or even vary or add to as well as explain it.

But the objection is not well taken for another reason. The acceptance of the deed was an acceptance of the plat, which was a part of it; and the defendants, (plaintiffs in error,) are estopped from impeaching it. They claim title under the deed of the administrator, and set it up as a defence, alleging in their answer that the land in controversy was conveyed thereby. If they have title to any part of the land conveyed by that deed, the report and its approval is the basis of it. The land claimed by the plaintiffs in error is described in the deed as lot number eight, which is a small part of a large survey, and is described in- part by reference to the land of third persons, which is also similarly designated on the plat. The plat is thus made a necessary means of identifying the land, and of ascertaining Its relative situation to other lands sold by the administrator according to the plat, and which are referred to in the deed as -its boundaries; and the plaintiffs in error, in claiming under the deed, rely also upon the report and plat.

The question in this case is one of boundary, and it relates to the southern boundary of the land conveyed by the deed of the administrator. In the deed it is described as “ all the right, title and interest which Nicholas Janis at the time of his death had in and to the real estate, being lot number eight of survey No. 159, bounded south by part of said survey; west by lots of Henry Bower, Jean Komepeter and Henry Dave; north by Charlesworth’s farm; and east by commons ; containing five and 59-100 acres.” The deed from the heirs of Nicholas Janis to Orrick (defendant in error) describes the land thereby conveyed as “ a tract of land lying northward of the city of St. Charles, and including part of survey No. 159, originally confirmed to Nicholas Janis under Antoine Janis, together with lands lying south-wardly of and adjoining said survey; the tract hereby conveyed being bounded on the north by the lands sold by Arnold Krekel, administrator of the estate of Nicholas Janis, deceased, to Rice and Barwise and to H. Bower; on the east by lot claimed by Henry Beckman,; south by lot of Lorenzo Holmes; and on the west by the St. Charles and Marais Croché macadamized road; and being all the land there lying contiguously which belonged to the estate of Nicholas Janis, deceased, and which the parties of the first part claim by inheritance or otherwise.”

It is contended by the plaintiffs in error that the land in controversy must be embraced in the deed to Rice and Bar-wise in order to make up the quantity therein stated to be conveyed; and that the southern boundary is so indefinite as to authorize an extension in that direction for that purpose. On the contrary, the defendants in error insist that no part of the land in dispute is included in lot number eight according to the deed and plat.

If the boundaries of the land designated as lot number eight can be ascertained from the deed with the report and plat, the quantity embraced within such boundaries, whether more or less than the quantity called for in the deed, passes thereby. Quantity becomes material only where the boundaries are uncertain or doubtful, and then it is entitled to consideration according to the circumstances of the particular case. It forms no part of the description of the land conveyed, where monuments or visible objects are called for as boundaries, but is mere matter of estimate. Therefore, if all the particulars of the description by metes and bounds do not concur in designating as lot eight a parcel of land which includes the one 59-100 acres in controversy, then it is no part of the land intended to be conveyed.

There is no difficulty in applying these rules satisfactorily to this case. It is evident, by comparing the deed and plat together, that to fix the southern boundary of lot eight where plaintiffs in error claim it should be, would be to derange the boundaries of the land and substitute another and different description. The call in the deed and plat for the western boundary is lots of Henry Bower, Jean Komepeter and Henry Dave; but if the southern boundary is extended as proposed, the western boundary would then be the lots of the persons named and the king’s highway ; and the northern boundary, instead of the call for Charlesworth’s farm, would be that farm and the land of Henry Bower — thus, giving an entirely different form to the land, and substituting other and different calls, and so varying the description as to include a parcel of land not designated by the plat or deed. If, instead of the call for the land of Bower, Komepeter and Dave as the western boundary, it bad been designated by commencing at a point on the southern line of Charles-worth’s farm, thence south to the- south-east corner of the land of Bower, then it is evident that upon well established principles the purchaser would hav'e been restricted to the quantity within the area thus bounded, although it may have been less than the deed calléd for, and for a like reason should he be restricted to the quantity within the area of which the lands of Bower, Komepetér and Dave forms the western boundary. In the one case,'the beginning and terminating points are visible objects or monuments, definite and certain; in the other, it is a line coinciding with the eastern boundary of the lots of those persons, throughout its whole extent, which is equally definite. Hence the quantity called for in the deed must yield, as being a less certain criterion of the intention of the grantor to the more definite description of metes and bounds. Had the eastern and western lines of lot eight been described ajs extending from points on the Charlesworth farm south to points on the land of Janis so indefinite as not to be ascertainable with the requisite certainty, the quantity in such case might become material as descriptive of what land was intended to be conveyed; and the rule of interpretation insisted upon by counsel for plaintiff in error would apply.

Judge Napton concurring, the judgment will be affirmed. Judge Scott absent.


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    The State, Respondent, v. Cushing, Appellant.
    1. It is improper to direct a jury in a criminal case to disregard the entire evidence of a -witness, if they believe him false in any particular.
    2. The courts should not, in instructing juries, comment upon the testimony.
    3. It is not incumbent upon the State in a prosecution for murder, if there is a failure to prove that the mortal blow was struck with the weapon mentioned in the indictment, to prove what the weapon used was.

      Appeal from St. Franpois Circuit Court.

    The following is a portion of the charge of the court to the jury: “ Murder in the second decree differs from murder in the first degree more in the nature and quality of the evidence necessary in each degree than in the character of the constituent facts pertaining to each; for, in murder in the first degree the law requires that the deliberate purpose to take life or do some great bodily harm should be shown and established by the evidence, and by evidence alone ; such evidence as of its own proper and natural weight establishes affirmatively the existence of such deliberate purpose to kill, <fcc.; whereas murder in the second degree may be made to appear from the fact of killing alone, the prisoner failing to explain by evidence on his part that it was done otherwise than with such deliberate intention, as that it was done in the heat of sudden and uncontrolable passion in lawful self-defence, or in some other less criminal manner. If, therefore, the evidence in the cause is of such character as of its own proper and natural force satisfies the minds of the jury that the prisoner did deliberately and purposely kill the deceased as charged, they will find him guilty of murder in the first degree. But if, on the contrary, the evidence does not thus satisfy the minds of the jury by its own proper force that the prisoner did thus deliberately and purposely kill the deceased as cliai-ged, then, in the absence of any extenuating evidence reducing the offence to some grade of manslaughter, or of its being a killing by accident, misfortune, or in justifiable self-defence, the jury will find the defendant guilty of murder in the second degree, and fix his punishment to imprisonment in the state penitentiary for a term not less than ten years.”
    The following is the fourth instruction asked by the defendant and refused: “ 4. The indictment in this case having alleged that the mortal blow was struck with a bottle or with some other weapon to the jury unknown, said allegation is not established unless it is proved that the mortal blow was struck with the bottle or by some other weapon. If the jury find it was not with the bottle, then it is incumbent on the State to prove what the other weapon was.”

      Noell, for appellant.
    I. The State failed to prove the venue. The instructions given are erroneous. The instructions concerning murder in the second degree and concerning circumstantial evidence are erroneous. The instructions asked should have been given.

      Mauro, (circuit attorney,) for the State.
   Napton, Judge,

delivered the opinion of the court.

An examination of the testimony in this case has satisfied us that if the jury committed any error in their verdict, it was an error in favor of the accused.

The instructions upon which the case was tried are substantially correct. The one chiefly complained of, concerning murder in the second degree, appears to, conform-to the views expressed by this court in the case of the State v. Phillips & Ross, 24 Mo. 488.)

The instructions asked by .the defendant were, in our opinion, properly refused. The first is an instruction directing the jury to disregard the entire evidence of a witness, if they believe him false in any particular. Such instructions invade the province of the jury, whose business it is to determine the credibility of witnesses, and who are not to be hampered in exercising their judgment by any inflexible rules on the subject. The second instruction is a comment on the testimony, which, under our practice, is not permitted, and so is the third. The fourth is not law.

The proof of the venue in this case was a matter for the jury. (State v. Lamb, 28 Mo. 228.) The judgment is affirmed;

the other judges concur.


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    Parker’s Administrator, Respondent, v. Moore, Appellant.
    1. The yerdict of the jury should be responsive to the issues made by the pleadings.
    2. Where an instrument in writing signed by a party is offered in evidence against him to prove facts recited therein, it will not, if otherwise relevant and competent, he rendered inadmissible by reason of an erasure upon it, whether material or not; that circumstance will be open to comment and for the consideration of the jury.

      Appeal from Ripley Circuit Court.

    The facts sufficiently appear in the opinion of the court.

      Noell, for appellant.
   Napton, Judge,

delivered the opinion of the court.

' This was a suit on a note given by Moore to Parker in his lifetime for $1,130, dated March 24, 1854. The plaintiff, who was Parker’s administrator, declared on the note as upon a note given to himself. The defence sot up in the answer was that the note was a mistake ; that in its present form of a note to Parker alone it was for twice the amount it should have been, or it should have been drawn payable to Parker and Moore. The answer explains the circumstances under which the note was executed. It states that Parker and Moore were about engaging in partnership as merchants ; that Parker advanced towards the concern $1,242 and Moore $112, and the note in question was given to make the advances of Parker and Moore equal; that as $1,130 was the amount advanced by Parker orer the sum advanced by Moore, and that the note was given for that sum, when it should, under those circumstances, have been given for half that sum.

Upon the trial of the case before a jury, the court excluded a paper, offered in evidence by the defendant, in the handwriting of Parker, and signed by both Parker and Moore, purporting to be articles of copartnership and explaining the amount of advances by each party, and stating that Moore was to give his note for $1,180, that being the amount which Parker put into the concern over the sum paid in by Moore. This paper was excluded on account of an erasure or obliteration of the day of the month on which it purported to have been executed.

The verdict of the jury was that defendant executed the note to plaintiff, and that the amount of the note, both principal and interest, was yet due. The judgment of the court was for the plaintiff for the full amount of the note.

To say nothing of the variance between the note given in evidence and that described in the petition, the verdict of the jury is not responsive to any issue made in the case. The execution of the note sued on was not denied, nor was it pretended that any portion of it had been paid. The defence set up was that the note was a mistake, either in amount or in the omission of one payee. The verdict of the jury, seems to be a special one, and it is, to say the least, equivocal in its terms. Every fact found by the jury may be true, and yet the defendant’s answer may also be true and constitute a good defence to a portion of the note.

The paper offered by the defendant should have been submitted to the jury. Its execution was proved, and its contents were material and pertinent to the issue. The erasure or partial obliteration of the date was a circumstance which did not affect the competency of the paper as testimony. That circumstance was open to comment and was for the consideration of the jury. It does not seem that the erasure was material; but whether material or not, it would be evidence. This suit is not based upon this paper ; the parties to it are not sought to be held, liable upon it in this action. There is no question in this suit as to its validity or binding character. It is offered to explain the character of a note which seems to have resulted from the agreement of which this paper is a wi’itten memorandum, and as such it is evidence, whether a material erasure was on it or not. Besides, it does not appear, nor is there any thing to show, whether this obliteration was accidental or intentional; whether, if the latter, it was made by either of the parties to it, or by a stranger. These circumstances would be material in determining how far it was binding upon the parties to it; but whether it was binding or not, it was evidence collaterally to explain the transaction which has given rise to this action.

Judgment reversed and cause remanded.

The other judges concur.