text:
    Pemberton et al., Respondents, v. Pemberton, Appellant.
    1. A parol gift of a slave to one for life, remainder to her children, then living, followed by the possession of the donee for life, is valid.

      JLppeal from Galloway Circuit Court.

    The case is stated in the opinion of the court.

      J. F. Jones, for appellant;
    that a remainder in personal property could not be limited by parol; cited 1 Black. Comm., 398, and' note 11; 1 P. W’ms., 290; 2 Kent’s Comm., p. 852, and notes ; 18 Conn. Rep., 42; Cro. Jac., 459; 1 Bailey’s (S. C.) Rep., 100 ; 1 Dana, 237 ; 3 Dev. (N. C.) Rep., 263; 10 Johns. Rep., 11; 11 Wend., 259 ; 4 Kent’s Comm., 264 ; Fearne on Remainders, 460, 461, 463, 464, and notes ; 2 Vesey, Sr., 171; Pollexfen, 29 ; 6 Yes., Jr., 440; 11 Yes., Jr., 257 ; 2 Ves. and Beames, 63 ; 19 Yes., Jr., 73 ; 1 Merivale, 20; lb. 271; 2 Roper on Legacies, (2d ed.,) 393; 1 Yes., Sr., 133, 134.

      Thomas Ansell, for respondent,
    cited 2 Hall, 543; 2 Strob. Eq., 243 ; 8 Murph., 493 ; 3 Mon., 276 ; 3 Bibb, 40 ; 2 Kelly, (Geo.,) 207; 2 Bouvier’s Inst., 294-5; R. C., 1845, p. 588.
   Ryland, Judge,

delivered the opinion of the Court.

Nehemiah Hundley gave to his daughter Susan Pemberton, then the wife of Edmund Pemberton, and the mother of the plaintiffs, in January, 1842, a certain negro woman named Abigail, and her increase. The words of the old gentleman, for it was a verbal gift, are, “ I then gave Susy Pemberton, my daughter, Abigail and her increase, for life, and at her death, for her and her increase to be equally divided among her children.” “I sent Abigail the next morning to Susy Pemberton.” Susan Pemberton, the mother of the plaintiffs, died in the year 1846, and her husband, Edmund, died in October, 1853.

Edmund Pemberton, after the death of his wife Susan, married again, and the defendant in this action is his widow. This suit is brought to recover a negro boy named Lewis, a child of the said negro woman Abigail, in the possession of the defendant, and claimed by her under the will of said Edmund Pemberton.

The question involves the validity of this disposition of the negro woman Abigail and her increase. Is such a disposition of a slave, without writing, good, in favor of the children after the death of the mother? The circuit court held that it was, and the defendant brings the case here by writ of error.

The statute of 1835, concerning gifts of slaves, is as follows : il Article III, section 1. Slaves shall be held, taken and deemed to be personal property. Section 2. No gift of any slave shall pass or vest any right, estate'or title in or to such slave in any person or persons whatsoever, unless the same be made— 1st. By will duly proved and recorded; or 2d. By deed in writing, to be proved by not less than two witnesses, or acknowledged by the donor, and recorded in the county where one of the parties lives, within six months after the date of such deed. Section 3. This law shall only extend to gifts of slaves, whereof the donors have, notwithstanding such gifts, remained in possession, and not to gifts of such slaves as have at any time actually come into the possession of, and remained with the donee, or some person claiming under such donee.”

From this statute, it is obvious that a parol gift of a slave accompanied by possession, like the gift of any other kind of personal property accompanied with possession, is good and valid. Such a gift needed no writing, neither deed nor will, to be a valid act, passing title from donor and vesting title in donee ; all that is necessary in such gifts, made bona fide, is the possession of the gift by the donee. So far then as respects the gift of Abigail, the negro woman, by Mr. Hundley to Mrs. Susan Pemberton, his daughter, in this case, it is beyond controversy good and valid; for possession immediately accompanied the gift and remained with the donee.

Was it in the power of the donor to make this gift to his daughter for life, and then to become the property of her children ? The children in this case were alive at the time the donation was made to their mother for life, and to them after her death. This donation gave to the mother a life estate, and a vested remainder to her children. The delivery of the possession to the mother, the tenant for life, was a delivery, pro hac vice, to her children.

The question arising in this case has been virtually settled by this court, in the case of Halbert v. Halbert and others, decided at July term, 1855, (see 21 Mo. 277.) There a father gave to his son a slave, upon the condition, that if the son died without leaving issue the slave should revert to the father — a parol gift. The circuit court decided, in an action brought by the father for the slave, after the death of the son without leaving any child living, that the gift to the son, accompanied by the possession, conveyed the absolute property in the slave to the son, and that the plaintiff could not recover. This court reversed that decision and remanded the case; remarking, that one question of inquiry before the jury was, whether the transaction was a gift; and if it was a gift, whether it was absolute or qualified; and if qualified, what was the qualification annexed to it; was it a condition that the slave should be the son’s, if he had children born to him ? or was it a provision to transmit the slave to the son’s descendants, as long as there should be any descendants ; and to secure a return of the slave to the giver upon a failure of descendants, whenever that-event should occur ? We had actually remarked, that if it were the former, it would be a lawful purpose and must prevail; if the latter were the intention of the father, the law will not carry it into execution, but makes the grant take effect as an absolute immediate gift of the whole property to the son.

In the ease of Keene and West v. Macey, (3 Bibb, 30,) the court of appeals of Kentucky held, that when A. gives slaves to W. for life, with remainder to the children of W., the remainder was good. In this case, it appeared that Cornelius Duvall executed a bill of sale, disposing'of certain negroes, of which he was the rightful owner, to his daughter, Esther West, during her natural life, and after her decease to be equally divided between such of her children as might be then living. Esther West died leaving Yandever West, .and the wife of Keene, two of her children then living. West and Keene being possessed of part of the negroes, Macey, claiming by purchase from Rezin West, the husband of Esther, brought an action of detinue against them for the negroes in their possession. JVbn detinet was pleaded, and issue joined thereon. On motion of Macey, the circuit court instructed the jury, that the remainder over of the slaves to the children of Esther West was void; that the sole and absolute property in the negroes passed by the bill of sale to Esther West, and that by operation of law the right thereto accrued to and became vested in her husband Rezin West, under whom Macey claimed title. Macey recovered, and the case was taken to the court of appeals. By the 33d section of the act of 1798, respecting slaves, it is enacted, that no remainder of any slave or slaves shall or may be limited by any deed or last will and testament, in writing of any person whatsoever, otherwise than the remainder of a chattel personal, by the rules of the common law, can or may be limited.

The court observed, the only question involved in the determination of this cause is, whether, by the rules of the common law, a chattel could be granted to one for life, with a limitation in remainder to another ? It was anciently held, that chattels in their nature were incapable of any limitation over, and that a grant or devise of them, but for an hour or a minute, was a gift forever. Hence, 'it was a long time before courts of justice could be prevailed upon to have any regard for a devise over, even of a chattel real or term for years, after an estate for life limited therein; and to get out of the literal authority of the old cases, a distinction was formerly taken, that a remainder might be limited for the residue of the years, but not for the residue of the term. But by a train of adjudged cases, that distinction does not now exist. And the remainder of a term, or of a personal chattel, may be limited by will, whether the term or the lease, or the use and occupation of the land, or the lands themselves, or the use of the chattel, be bequeathed. (3 Saund. 388, note 9 h., and authorities there cited.) To answer the agreement of parties and the exigencies of families, the same reason required that such limitations might be' made by deed. (Wright v. Cartwright, 1 Burrow, 292.) Blackstone, in his commentaries, 2 vol. 398, acknowledges, that by the ancient rules of the common law, there could be no future property to take place in expectancy created in a personal chattel; but says, if a man now, either by deed or will limits furniture, &c.,to A. for life, remainder over to B., it is good. In Higginbotham v. Rucker, (2 Call, 313,) the court of appeals of Virginia decided, that a gift of a slave to one for life, with a remainder to his children, was a'good limitation.

The court then reversed the judgment of the circuit court for the wrong instruction given, thereby maintaining that the remainder to the children was good.' Here the remainder was to the children living at the death of their mother, Esther West. In the case at bar, the remainder was to the children of Susan Pemberton, then living, at the date of the gift — not to such as should be living at her death. “ I gave Susy Pemberton, my daughter, Abigail and her increase, for life; and at her death, for her and her increase to be equally divided among her children.” The children of Mrs. Pemberton, the present plaintiffs, were then in the mind of the donor. He knew them, and they were the objects of his bounty ultimately.

This ease does not present the question of a donation to take place in future, the donor retaining the use and possession for his life. Here is nothing but a simple donation of property to persons in being, the one to have it for life, and the others to have it after the first taker’s death ; and where, in such gifts, the possession accompanies the property in th'e hands of the donees, there can not be a reasonable objection to their validity. Our statute requires wills or deeds, in such gifts of slaves, where the donor retains possession notwithstanding the gift. It does not require any instruments to be written concerning those gifts, where the property given is immediately delivered to the donee. Now, as by our law such a parol gift of slave is good to the donee when possession accompanies it, and every person has by law the right to make such gifts ; where do we find the limitation to this power, to this right to make the gift for the life of one, and at his death to another ? He who can give, by parol, the whole estate absolutely, can surely give a life estate to one, and the remainder thereof to another. The only thing necessary to make such a gift good under our law, is possession in the tenant or donee, for life, and that possession shall be construed to be the possession of the remainder man.

In Higginbotham v. Rucker, the "father gave to his daughter, after her marriage, certain negroes to her and the heirs of her body ; and in case she died without issue, that is, children of her body, the negroes were to return to the father.” This limitation was held by the court of appeals of Virginia to be not too remote, and therefore good. In an action by the father against the husband of his daughter, for the negroes, the daughter having died without issue, the father was permitted to recover. (2 Call’s Rep. 313.)

In Brummett v. Barker, decided in South Carolina, in 1834, the donor undertook by parol to give a life estate to his niece with a remainder over, on her dying without leaving issue. Assuming (as well settled) the principle that such limitation by deed would be valid, the court proceeds to discuss the question whether.a valid limitation over, after the determination of a precedent life estate, might not be created by parol; and then decides the question in the affirmative. Judge O’ijeall, in delivering the opinion of the court, uses the following language: “ There is nothing to prevent a trust in personal property from being created by parol, either written or unwritten, and that, even without resorting to the doctrine in relation to trust of personal property; as it was clear, that any thing that was good and effectual in law to pass personal property, was equally so to limit it.” See the elaborate opinion of Chancellor Dargan, in the court of errors of South Carolina, in the case of Daggers v. Estes in 1848; reported in 2 Strob. Equity Rep. 354. In this opinion most of the cases upon this subject have been ably reviewed.

I do not think it necessary to review the cases myself, satisfied that such gifts as the one in this case now at bar, where possession accompanies the gift, are common in our state, and have always been considered valid.

There is no error in the court below in giving the instructions or in permitting the parol evidence of the gift. As to the error assigned in arrest of judgment, it is without a particle of force. ■ It needs no comment from this court.

Judge Leonard, concurring,

the judgment below will be affirmed.


source: Caselaw Access Project

author: Ryland, Judge,

license: Public Domain

text:
    West and wife, Respondents, v. Forrest, Appellant.
    1. The rejection by the court trying a cause of a competent juror is no ground for renewal in the supreme court, there being no valid objection to the jurors empannelled.
    2. A party, in whipping a female slave, unintentionally but recklessly inflicted blows upon her mistress. In an action by the mistress, field, that the defendant’s liability was not limited to the damages to her person; that the jury might take into consideration the mental anguish and wounded feelings of the plaintiff.

      Appeal from Buchanan Court of Common Pleas.

    Action for an assault and battery. The facts are stated in the opinion of the court. The fourth instruction given by the court below was to the effect that the jury, in estimating the damages, if they believed the assault was “unintentionally but recklessly committed,” might “ take into consideration the pain and suffering, mental anguish and wounded feelings of the female plaintiff.”
    The third instruction asked by the defendant, and refused, was, that “ the measure of damages is a sum of money precisely commensurate with the wounded feelings of the plaintiff, Alvira B. West, by reason of the infliction of the blows.”
    The plaintiff had a verdict of $400, and the defendant appealed.
    Vories, for appellant.
    1. The court below erred in rejecting a competent juror who was not challenged by the plaintiff. 2. The court erred in giving the fourth instruction. (2 Greenl. Ev. § 267, and note ; 5 Mo. 523.)

      Gardenhire and Morrow, for respondent,
    that the rule of damages was properly laid down, cited Littell’s selected cases, 81; 1 Mass. Rep. 11; 3 Wend. Rep. 391; 7 Monroe, 395 ; 11 Pick. 379 ; 2 Gilman, 432; and insisted that the rejection of the juror was no ground of reversal, as it did not appear that the appellant was prejudiced.
   Ryland, Judge,

delivered the opinion of the court.

This was an action of assault and battery, alleged to have been committed by the defendant, on the female plaintiff, Alvira B. West, wife of Francis A. West. The defendant denied having assaulted the said Alvira E. West, but stated that he was whipping a negro woman, whom he had hired of Francis A. West, and who had left his house and gone back to her master’s house; that' he went after her and found her, and ordered her to go back to his house; but, instead of obeying him, she attempted to'go up the steps to the room where her mistress, AlviraB. West, was ; that he commenced whipping her with a cowhide; that Mrs. West came down the steps, and the negro woman ran and caught her around the waist, and with great force conveyed her back into the house; that if Mrs. West was struck, he did not know it, and did not intend it. At the trial, the court, after a certain man had been called up and sworn, and examined as to his qualifications as a juror, discharged him and made him stand aside. The defendant excepted to this act of the court, alleging that the man was a competent and fit person to. be made a juror. He assigns this act of the court as one of his errors upon which he seeks to reverse the judgment below. There is nothing in this point; the jury empannelled was no doubt a good, competent and impartial one. The defendant has not been injured, nor have any of his rights or privileges been improperly denied him by the inferior court. If this court should reverse the judgment below for this act, does the appellant expect to have the man on his next jury ; or does he suppose that this court would so far step out of their legitimate sphere as to direct the inferior court to place the rejected man on the next jury? The absurdity of such a proceeding is manifest. There is nothing then in this point.

The evidence clearly shows a very severe beating of the negro woman; and that she ran to her mistress up the steps leading to the door .of the room occupied by Mrs. West. The negro woman laid hold of-her mistress on the steps, and the evidence leaves little doubt that the defendant did not stop his blows when the negro woman caught her mistress, but he continued to inflict them. One witness says, he saw his arm in motion up to the door as though he were striking. Is it strange that Mrs. West, the owner of the negro woman, should have been (even in her situation, some seven or eight days after childbirth) drawn to the steps of her door by the severe whipping and hallooing of her own servant? — the blows' inflicted by the defendant, and the screams of the negro woman, raising the indignation of, the witnesses who were a block and a half distant, and prompting them to stop work and go and see the cause of the terrible whipping and hallooing. No wonder, under such circumstances, that Mrs. West should step half way down the steps leading from her room to the yard; and no wonder she should by her presence try to save her servant.

The plaintiff’s case was clearly made out before the jury, and by their verdict of four hundred dollars damages they exhibited their sense of such a wrong, and properly vindicated the injuries and wounded feelings of the plaintiff. There is nothing i» the instructions given, nor in those refused to be given, calling for the interference of this court.

The ease was fairly put to the jury, and this court does not feel itself authorized to interfere. Let the judgment below be affirmed;

Judge Leonard concurring;


text:
    Canefox, Respondent, v. Anderson & Crenshaw, Appellants.
    1. A note is executed to three partners, two of whom upon a settlement of the partnership aifairs, for value, sell and transfer hy delivery their interest in the note to the third. Held, that the third might sue on the note in his own name.

      <Appeal from, Greene Circuit Court.

    The ease is stated in the opinion of the court.
    No appearance for appellant.

      Wright and Morrow, for respondent.
   Ryland, Judge,

delivered the opinion of the court.

This was a suit upon a promissory note, executed by defendants, payable to the plaintiffs, Thomas W. Anderson and Joseph Carthol, a firm by the name and- style of B. W. Canefox & Co., or order, fifteen days after date, for four thousand seven hundred and seventy dollars and fifty-seven cents, dated October 14, 1853.

In his petition, plaintiff avers that Thomas W. Anderson and Joseph Carthol sold their interests, respectively, in the said note to the plaintiff for a valuable consideration, by which the said note became the property of the plaintiff; that Thomas W. Anderson, on the 29th of October, 1853, paid on said note the sum of six hundred dollars ; that the remainder of said note and interest are yet due to plaintiff, for which he asks judgment.

The defendants answered, stating that, as to the said supposed purchase of said note by plaintiff for a valuable consideration, whereby he became the owner thereof, they have not knowledge thereof sufficient to form a belief. The cause was submitted to the court for trial, without a jury, and the court found the facts to be, that the defendants, by their promissory note, dated October 14, 1853, promised, for value received, to pay plaintiff and Thomas W. Anderson and Joseph Carthol, (which was a firm trading and doing business by the name and style of B. W. Canefox & Co.,) or order, fifteen days after date, the sum of four thousand seven hundred and seventy dollars and fifty-seven cents, which note was executed in consideration of goods purchased of said firm; and afterwards, on the 28th day of October, 1853, and before said note became due, the said partners of said firm had a settlement of their affairs, and the said Thomas W. Anderson and Joseph Carthol, for a valuable consideration, and in consideration of indebtedness of said firm to plaintiff, sold and transferred all their interest in said note to plaintiff, by delivery; and said firm delivered said note to plaintiff, whereby the said plaintiff became the sole owner of said promissory note, having accepted the same upon said settlement with his said partners, in lieu of so much money ; the court doth further find that the said defendant, Thomas W. Anderson, on the 29th of October, 1853, paid on said note the sum of six hundred dollars. The court find that said Thomas W. Anderson and L. A. D. Crenshaw justly owe and are indebted to said Benjamin W. Canefox, in the sum of four thousand five hundred and eighteen dollars and seventy-three cents, and judgment was accordingly rendered for plaintiff for that sum, with costs, &c. The defendant moved for a review, because the finding was insufficient. This motion was overruled, and he excepted, and brings the case here by appeal. In looking over the record, we find no error, and indeed the appellants have not assigned any errors in this court.

The finding of the court sufficiently states the facts, and the facts found support the judgment rendered by the Circuit Court. The judgment below will therefore be affirmed, with five per cent, damages.

Judge Leonard concurring.


text:
    Neal and others, Defendants in Error, v. Smith, Plaintiff in Error.
    1. Where a partition sale is set aside on amotion which is contested by the purchaser, it is within the discretion of the court to tax the costs of the motion against him.

      Error to Cooper Circuit Court.
    This was a motion to set aside a partition sale. The case was once before in this court, (see 20 Mo. 294,) and was reversed and remanded. Upon a second hearing, the sale was set aside, and tbe Circuit Court taxed the costs of the motion against Smith, the purchaser, who now brings the matter here by writ of error.

      Gardenhire, for plaintiff in error,
    insisted that the motion to set aside the sale was a step in the original cause to which the purchaser was not a party, and that the Circuit Court erred in taxing the whole cost of it against him; . (R. C. 1845, p. 245, § 22 ; 20 Mo. 296 ; Sess. Acts,1847, p. 106.)

      Adams, for defendant in error,
    that the costs were properly-taxed, referred to the act concerning costs. (R, O. 1845, § 7 and 22.)
   Ryland, Judge,

delivered the opinion of the court.

The only question in this case involves the propriety of the action of the court below in ordering the costs of the motion made to set aside the sale, to be taxed against the purchaser, Smith.

This was originally a petition for partition of real estate. The court ordered a sale of the land for that purpose. George W. Smith purchased the real estate at the sale made by the sheriff. James S. Hughes and others (some of the parties to the priginal proceeding for partitition) moved to set aside the sale made, and Smith, the purchaser, contested this motion. The Circuit Court overruled the motion ; the case was brought before this court and the judgment of the court below was reversed, and the case remanded for trial. On the second trial of the motion, issues were made involving the character of the sheriff’s sale, and alleging its fraud and illegality. These issues were found in favor of the motion, and the Circuit Court set aside the sale made by the sheriff and taxed the costs of the motion against Smith, the purchaser, and sole opponent of the motion.- Of this Smith complains, and has brought the matter before this court.

In this matter, Smith, by his counsel, contends that the costs of the motion ought to have been taxed as the othér costs of the proceedings in partition, and should be paid by the parties interested therein. But such is not the opinion of this court. By the 6th section of art. 1st of statute concerning costs, (R. C. 1845, p. 242,) the court has express authority to tax the costs of this motion against the party unsuccessful. In all civil actions or proceedings of any kind, the party prevailing shall recover his costs against the other party, except in those cases in which a different provision is made by law. “ Sec. 7. On all motions, the court may give or refuse costs at its discretion, unless where it is otherwise provided bylaw.” Now the 22d section of the same article, which declares that, “In all cases founded on the statute concerning partition of land, the petitioner or petitioners shall pay all costs in the first instance, but shall be entitled to judgment against each of the parties interested in the partition, for such part of the whole costs attending the proceeding as shall be proportionate to the amount of his interest,” &c. ; and the 2d section of the act of 1847, amendatory of the partition act of 1845, which declares that, “ In all cases of partition, arising under the above act, (that is, act of 1845,) the necessary expense attending such partition, together with a reasonable attorney’s fee, to be assessed by the judge of the court before whom partition is had, shall be equally taxed against all persons interested in such partition, in proportion to their respective interests therein,” are not to be considered as otherwise expressly providing in relation to these interlocutory costs. Nor do these last provisions takb away the discretionary power of the court in relation to such interlocutory costs. The Circuit Court, then, had the authority to tax the costs on this motion against Smith ; and, having done so, we can not say that the discretion was abused. Indeed we think it would have been improperly exercised, if it had failed to tax him with the costs.

Let the judgment be affirmed,

Judge Leonard concurring; Judge Scott sick, absent.


text:
    Coggburn, Defendant in Error, v. Simpson, Plaintiff in Error.
    1. The agent who sells goods, of which he is in possession, as his own property, may recover the price in his own name.
    2. Where a party is in possession of a store, as a clerk or agent of another, his possession is that of his principal.

      Error to Cole Circuit Court.
    Action by Jackson Coggburn on an account for goods sold and delivered, commenced before a justice of the peace.
    At the trial in the Circuit Court on appeal, it appeared that the goods were purchased at a store in which the plaintiff was doing business, either as agent or proprietor, and the only dispute was, whether the store belonged to the plaintiff or to Green B. Coggburn, and upon this point evidence was offered by both parties. Among others, the Circuit Court gave for the plaintiff' two instructions, set out in the opinion of the court, and refused the seventh instruction asked by the defendant, also set out in the opinion. There was a verdict and judgment for the plaintiff, and the defendant brought the 'case here by writ of error.

      M. M. Parsons, for plaintiff in error.

      Gardenhire and Morrow, for defendant in error.
   Ryland, Judge,

delivered the opinion of the court.

The question between the parties in this case involves the mode in which the goods were sold. If the plaintiff sold the goods to the defendant as his own property, or if the goods were purchased by defendant as the property of the plaintiff, then the contract to pay for the goods was a contract to pay plaintiff, and, of course, he has the right to recover in this suit for the goods thus sold. But if the plaintiff sold the goods as the agent of Green B. Coggburn, and as GreenB. Coggburn’s goods, then the contract to pay for the goods was a contract to pay GreenB. Coggburn and not to pay the plaintiff, and consequently the plaintiff can not recover for the goods in this action. The case, therefore, depends upon the simple fact, as to the sale of the goods as the plaintiff’s property, or as the property of his brother, Green B. Coggburn. All that part of the record in which the question about Green B. Coggburn selling or conveying the goods to his brother, the plaintiff, in order to defraud his creditors, is foreign to the matter in issue between these parties. The question whether'.the alleged sale of the goods from Green B. to Jackson Ooggburn, was made to defraud Green’s creditors, was not in issue.between them. All therefore which the record contains in regard to this matter is thrown out of the case and disregarded by this court, and must be so in the further trial hereof. In looking over the instructions asked by the defendant below, in our opinion, his seventh instruction ought to have been given.

The court told the jury, in the first instruction given for the plaintiff, that, “if the jury believe from the evidence that Simpson purchased of Jackson Ooggburn goods of which he (Jackson Ooggburn) was in possession at the time of Simpson’s purchase, and that Jackson Ooggburn was the owner of the goods at the time of the sale to Simpson, they must find for the plaintiff the balance due for the goods.”

The second instruction for the plaintiff was as follows : “ Even though Jackson Ooggburn was not the owner of the goods at the time of the sale to Simpson, yet, if he had possession of them and sold them in his own name, he had the right to sue for and recover the balance due for them in his own name, and Simpson not having filed any offset in this case, either against Jackson Ooggburn or Green B. Ooggburn, is, in such case, liable to the present plaintiff for the balance due for the goods and, disregarding all the other instructions asked for by defendant, let us see his seventh instruction, namely: •“That, although Jackson Ooggburn may have had possession of the store at Spring Garden, yet, if the jury believe that he had such possession as clerk or agent of Green B. Ooggburn, such possession of Jackson Ooggburn was, in law, the possession of Green B. Ooggburn.” This instruction should have been given. It was important to the proper understanding of the case, in conjunction with the two instructions for the plaintiff above recited.

Eor failing, then, to give the defendant’s seventh instruction, the court .below committed error. Its judgment is reversed and cause remanded;

Judge Leonard concurring.


text:
    Kirby, Plaintiff in Error, v. Johnson, Defendant in Error.
    1. A contract was made for the sale of' cattle in the field of the seller. The purchaser told the seller to keep the cattle and feed them until he sent for them, at the expense of the purchaser. The seller agreed to do so, but told the purchaser that, if any of them died, he must bear the loss, to which the latter assented. Held, no deliyery to take the contract out of the statute of fraud.

      Error to Jackson Circuit Court.

    Tbe facts appear in the opinion of the court.

      Napton, for plaintiff in error,
    insisted that there was a sufficient delivery to take the contract out of the statute, and cited Elmore v. Stone, 1 Taunt. 457; Chaplin v. Rogers, 1 East. 192; 11 Johns. Rep. 284.

      Reid, for defendant in error,
    cited Shindler v. Houston, 1 Comstock, 661.
   Ryland, Judge,

delivered the opinion of the court.

The only question in this case is, whether the contract between the parties is within the statute of frauds and perjuries or not.

The facts of the case are as follows : The plaintiff was buying cattle for California, and being at defendant’s house, he went with the defendant to look at some cattle in the defendant’s pasture. They were unable to agree as to the price of the lot, but traded for four yoke of oxen, at the price of forty dollars per yoke. Plaintiff told defendant that he had not the money with him ; but if the defendant would go home with him, or would go back to town with him, he would pay him. Defendant replied that it did not matter about the money : he could pay it when he came for the cattle, which would suit as well. Plaintiff then told defendant that he was not prepared to drive the cattle away, and requested defendant to keep them for him until he sent for them, and to feed them, as he wished them well fed, for which he would pay him well. The defendant agreed to do so. The oxen were not removed from the pasture : the contract was not reduced' to writing ; nor was- any money paid. After plaintiff had started to leave, defendant called to him and Said, “remember, if any of the cattle die, they die yours, and you must bear the loss.” To which plaintiff replied, “certainly.” The defendant sold the cattle the next day, for fifty dollars per yoke, to another purchaser.

The suit is to recover the forty dollars, the difference in the priee. It was originally brought before a justice of the peace, in whose court the plaintiff obtained judgment. The defendant appealed to the Circuit Court, where," on trial, the defendant had judgment; that court holding, that the contract was within the statute of frauds, and that the plaintiff was not entitled to recover.

The plaintiff brings the case here by writ of error, and contends that the contract was not within the statute of frauds, as the facts show there was a sufficient delivery to take it out of the statute, and he relies upon the cases of Elmore v. Stone, 1 Taunt. Rep. 457 ; Chaplin v. Rogers, 1 East. 192, and Vincent v. Germonds, 11 Johns. Rep. 284.

The defendant in error, on the other hand, contends that the facts show the' contract to be clearly within the statute of frauds; that delivery and acceptance must be evidenced by some act of the parties, and that no mere words, however significant, are sufficient; and he relies upon the case of Shindler v. Houston, (1 Comst. Rep. 261.)

Our statute of frauds and perjuries, § 6, declares that “ no contract for the sale of goods, wares and merchandise, for the price of thirty dollars or upwards, shall be allowed to be good, except the buyer shall accept part of the goods so sold, and actually receive the same, or give something in earnest to bind the bargain, or in part payment, or unless some note or memorandum in writing be made of the bargain, and signed by the parties to be charged with such contract, or their agents lawfully authorized.” This is, substantially, the 17th section of the English statute of frauds and perjuries, (29 Charles II.) The English statute fries the price of the goods at ten pounds or upwards ; our statute at thirty dollars or upwards ; in other respects the two sections are almost literally the same. Although the statute of frauds and the statute of limitations were both so much objected to at the time when they were passed that the English judges appeared anxious to get them off the statute book, yet, in later times, the judges have become desirous of giving to these statutes their full effect. (Proctor v. Jones, 2 Car. & Payn. Rep. 532 — remarks of Best, chief.justice.) “ It has been said that the English statute of frauds and perjuries (29 Car. II, c. 3) carries, its influence through the whole body of our civil jurisprudence, and is, in many respects, the most comprehensive, salutary, and important legislative regulation on record, affecting the security of private rights. (2 Kent’s Comm., p. 647, note d.) I concur in ascribing to this statute all that has been said in its praise by the American commentator. To make the contract of sale valid, under this statute, there must be a delivery or tender of it, or payment or tender of it, or earnest given, or a memorandum in writing, signed by the party to be charged ; and if nothing of the kind takes place, it is no contract.” (2 Kent’s Comm. 647-, 494.)

It may not be amiss to examine some of the eases on the subject, as decided by the English, and also by the American courts. 1

In Baldry and others v. Parker, 2 Barn. & Cres. 37, (9 Eng. C. L. R. 16,) Abbott, chief justice, said: “We have have given our opinion upon more than one occasion, that the 29 Car. II, c. 3, is a highly beneficial and remedial statute. We are, therefore, bound so to construe it as to further the object and intention of the legislature, which was the prevention of fraud.” It appeared from the facts in this case, that the defendant went into the plaintiff’s shop and bargained for various articles. Some were severed from a larger bulk, and some he marked in order to satisfy himself that the same were after-wards sent home to him. A separate price for each article was agreed upon. The defendant desired that an account for the whole might be sent to his house, and then he left the plaintiff’s shop; a bill of parcels was accordingly sent, together with the goods, when the defendant refused to accept them ; the court held that there was no delivery and acceptance of the goods, so as to take the case out of the operation of the statute of frauds. Bayley, Judge, said: “The buyer-can not be considered to have actually received the goods, when they have remained from first to last in possession of the seller.” Holroyd, Judge, said, “ As long as the seller preserves his control over the goods, so as to retain his lien, he prevents the vendee from accepting and receiving them as his own, within the meaning of the statute.” Best, Judge, said, “ It was formerly considered that a delivery of the goods by the seller, was sufficient to take a case out of the statute, (that is, the 17th section) ; but it is now clearly settled that there must be an acceptance by the buyer, as well as a delivery by the seller. The statute enacts that, where the bargain is for something to the value of ten pounds, it shall not bind, unless something unequivocal has been done to show that the contract is complete.” Abbott, chief justice, said, “If we held that such a transfer and acceptance were complete in this case, it would seem to follow, as a necessary consequence, that the vendee might maintain trover without paying for the goods, and leave the vendor to his action for the price. Such a doctrine would be highly injurious to trade, and it is satisfactory to find that the law warrants us in saying, that this transaction had no such effect.” In. the case of Phillips v. Bristolli, 2 Barns. & Cress. 511, (9 Eng. C. L. R. 162,) the facts showed that, by the conditions of a sale by auction, the purchaser was to pay thirty per cent, upon the price, upon being declared the highest bidder, and the residue before the goods were removed; a lot of jewelry was knocked off to the defendant, as the highest bidder, and delivered to him immediately. After it remained in his hands three or four minutes, he stated that he had been mistaken in the price, and refused to keep it; no part of the price had been paid : held, it was a question of fact for the jury whether there had been a delivery by the seller, and an actual acceptance by the buyer, intended by both parties to have the ..effect of transferring the right of possession from the one to the other. It was said by the court, in this case, that, “in order to satisfy the statute, there must be a delivery of the goods by the vendor, with an intention of vesting the right of possession in the vendee, and there must be an actual acceptance by the vendee, with an intention of taking the goods as owner. It lies upon the plaintiff, in this case, to make out that there was such delivery and acceptance.” In Howe v. Palmer, 3 Barn. & Ald. 321, (5 Eng. C. L. R. 303, ) it appeared that the vendee verbally agreed at a public market, with the agent of the vendor, to purchase twelve bushels of tares, (then in vendor’s possession, constituting a part' of a larger quantity in bulk,) to remain in vendor’s possession till called for ; and the agent, on his return home, measured the twelve bushels and set them apart for the vendee: the court held that this did not amount to an acceptance by the vendee, so as to take the case out of the 17th section of the statute of frauds. Abbott, chief justice, said in this case, “ there has been no note, in writing, of the contract, and there has been nothing given in earnest, or in part payment’; unless, therefore, the the buyer has accepted and received a part of the goods so sold, this case is within the statute, and no action can be brought on the verbal contract entered into between the parties. The question is, has the buyer accepted? Now, if he had once accepted, he could not afterwards make any objection, even if it turned out that the tares did not correspond with the sample. But it is clear that he had a right to make any objection at the time when they were tendered to him for acceptance. If the defendant, in this case, had gone to the plaintiff’s granary to demand the tares, and upon inspection had discovered that they did not correspond with the sample, it is impossible to say that he might not then have made the objection; and if so, it is clear that there was no acceptance on his part; I therefore think that this case comes within the words of the statute, to which we ought to give full effect,' and not suffer its beneficial provisions to be evaded by subtle distinctions.” Bayley, Judge, said, “I think the safest rule to follow is, to adhere closely to the words of the statute.” He then commented on the cases of Chaplin v. Rogers, in which the jury thought that there was evidence of an actual acceptance, inasmuch as as the vendee had dealt with the hay as his own; and of Elmore v. Stone, in which the buyer directed expense to be incurred, and the directing of that expense was considered evidence of an acceptance on his part, and then concludes by saying that he douhts the authority of the. decision of the case of Elmore v. Stone. In Proctor v. Jones, 2 Carr. & Payne, 532, (12 Eng. C. L. R. 249,) Best, chief justice, said, when the case of Elmore v. Stone was cited by Serjt. Yaughan, “that case has been overruled.” The authority of the case of Elmore v. Stone is therefore now much weakened, if not completely overthrown, by the later English decisions. The following were .the facts in Elmore v. Stone : The plaintiff, who kept a livery stable and dealt in horses, having demanded one hundred and eighty guineas for a pair of horses, the defendant, after offering a less price, which was rejected, at length sent word that “ the horses were his, but that .as he had neither servant nor stable, the plaintiff must keep them at livery for him.” The plaintiff, upon this, removed them out of his sale stable into another stable; this was held a sufficient delivery within the statute of frauds. (1 Taunt. Rep. 458.) This decision, in Elmore v. Stone, was nine years after the case of Chaplin v. Rogers had been decided. The .facts in Chaplin v. Rogers were, in substance, as follows : The parties being together in the plaintiff’s farm yard, the defendant, after some objections and doubts upon the quality of a .stack of hay (particularly the inside part) then standing in the yard, agreed to take it at 2s. 6d. per hundred weight. Soon after, the defendant sent a farmer to look at it, whose opinion was unfavorable. But about two months afterwards, another farmer agreed with defendant for the purchase of this hay, still standing untouched in the plaintiff’s yard r the defendant told the last farmer (Loft was his name) to go there and ask what condition it was in, saying he had only agreed for it, if it were good. The plaintiff then informed Loft it was in a good state : he agreed to give the defendant 3s. and 9d. per hundred weight for it — the defendant having told him that he had agreed to give the plaintiff 3s. and 6d. for it. Loft, thereupon, brought away thirty-six hundred weight; but this latter fact was without the knowledge and against the direction of the defendant. The judges agreed that there was sufficient evidence of a delivery to, and acceptance by, the defendant, to leave the matter to the jury ; the jury found for the plaintiff in this case. These two English cases, and the case of Vincent v. B. & J. Germonds, in 11 Johns. 283, are relied upon by the plaintiff in error to reverse the judgment of the court below. We find that the strongest English case for him — Elmore v. Stone — has been overthrown; that in Chaplin v. Rogers, there was some evidence of delivery and acceptance of the stack of hay. Now, in Vincent v. Germonds, on a sale of cattle, no earnest money was paid, nor any memorandum in writing made, and the cattle were to remain in the possession of the vendor, at the risk of the vendee, until he called for them, and the vendee afterwards came and took away the cattle without saying anything to the vendor: this was held to be a sufficient delivery within the statute of frauds. But this New York case is not like the one now before us. If, in this case, Kirby had gone to Johnson’s in a day or so after the bargain, and driven off the cattle, and Johnson had sued for the pricb, then the cases would have been similar.

In the case of Shindler v. Houston, (1 Comst. Rep. 261,) many of the cases on this subject, both English and American, were examined and reviewed by the court of appeals of New York; and it was held that,, to constitute a delivery and acceptance of goods, such as the statute requires, something more than mere words are necessary. Superadded to .the language of the contract, there must be some act of the parties amounting to a transfer of the possession, and an acceptance thereof by the buyer. I concur in the language of Wright, Judge, in this case, in which he says : “ I think I 'may affirm, with safety, that the doctrine is now clearly settled, that there must not only be a delivery by the seller, but an ultimate acceptance of the possession of the goods by the buyer; and that this delivery and acceptance can only be evinced by unequivocal acts, independent of the-proof of the contract.”

In the case now before us, it can not be pretended that Johnson had parted with his lien upon the cattle for the purchase money. There was no act done after the sale, amounting to a delivery of the oxen by Jphnson to Kirby, and an acceptance by Kirby of the oxen from Johnson; that is, there was no delivery by the vendor, .with an intention of vesting the right of possession in the vendee; and there was no actual acceptance by the vendee, with the intent of taking possession as owner. If the courts of the country should decide that such facts as appear in evidence in this case are sufficient to take it out of the statute of frauds, then it is difficult to find what will come within that statute. Nay, we had better blot the statute from our books at once, and not fritter away its vitality by constructive deliveries and acceptances.

Judge Scott concurring,

the judgment below is affirmed.


author: Leonard, Judge,

text:
    Perry and others, Appellants, v. Calvert and others, Respondents.
    1. A. makes a fraudulent conveyance of land. A judgment is' subsequently recovered against him, and the land is sold under an execution, and B. becomes the purchaser, who afterwards conveys back to A., who then conveys to C., who has notice of the facts, field, that as A. could not have obtained equitable relief against his fraudulent deed, neither can his grantee with notice.

      Appeal from Platte Circuit Court.

    Petition by C. A. & E. H. Perry against Lewis Calvert, Simeon L. Stewart and Malinda Stewart, his wife, praying to have a deed set aside and cancelled.
    The petition stated that on the 10th of November, 1843, Simeon L. Stewart entered at the land office in Plattsburgh a tract of land to which he had a preemption right, and on the next day conveyed the same to the defendant, Calvert, in trust for his wife, Malinda Stewart, during her life, and at her death to go the heirs of her body begotten by him ; that the patent for said land issued to said Simeon on the 1st of April, 1846, long after said conveyance ; that said conveyance, having been executed and delivered before the patent issued, was null and void under an act of congress, and furthermore, that it was executed in fraud of the creditors of said Simeon, he being largely indebted at the time, and having no other property; that 'on the 7th of April, 1846, a judgment was recovered by James H. Stewart against said Simeon, upon which an execution issued, under which said land was sold, and James H. Stewart became-the purchaser, and afterwards received from the sheriff a deed; that on the 8th of July, 1847, said James H. Stewart, for a consideration of $200, sold and conveyed all his right, title and interest in said land to said Simeon L. Stewart; and that on the 7th of May, 1853, said Simeon, for a consideration of $1600 previously paid, executed and delivered to plaintiffs a deed for said land, with a relinquishment of dower by his wife, Malinda.
    Upon these facts, the plaintiffs prayed that the deed to Lewis Calvert might be set aside and cancelled.
    The defendant, Calvert, filed a demurrer to this petition, which was sustained by the Circuit Court.

      Abell & String fellow, for appellants.
    1. The deed from Simeon Stewart to Calvert before the patent issued, is void (4 U. S. S. p. 496, ch. 9, p. 420, 678 ; 5 ü. S. S. 251, 382, 453,456.) 2. The demurrer admits that the deed is void as to creditors, and of course it was a nullity against the title acquired by James H. Stewart under the execution sale. James H. Stewart, having acquired a good title, had a right to dispose of it to anybody — to Simeon, who had made the fraudulent deed, as well as to others ; and by that purchase, Simeon acquired a good title against his own previous deed. But whether good in the hands of Simeon or not, when it passed from him to the plaintiffs, they certainly acquired all the title of James H. Stewart. (2 Hawks, 535 ; Supp. to U. S. Dig. tit. “Estoppel.”)

      H. M. Vories, for respondent,
    that' the plaintiffs could:not set up the fraud of Simeon Stewart as a ground of relief ; cited 13 Mo. Rep. 151; 8 Conn. Rep. 312; 3 Pick. 56 ; 7 Green-leaf, 96 ; 3 A. K. Marsh. 65, 474 ; 3 Paige, 154 , 6 Barb. S. C. Rep. 380 ; 2 Lead. Cases in Equity, part 11, p. 99, 131.
   Leonard, Judge,

delivered the opinion of the court.'

“ All writers upon our law agree that no polluted hand shall touch the pure fountains of justice.” This principle, to be found in every system of jurisprudence, would be sufficient to dispose of the case if Simeon Stewart were the party applying here for the relief instead of his grantee. He could not be allowed to ask a court to annul his own conveyance on the ground that he violated the preemption laws of the United States in making it, or because his purpose was to defraud his creditors. No man can make his ovm iniquity a foundation for legal redress. Lord Mansfield states the matter thus, in Holman v. Johnson, (Cowp. 343) : “ The principle of public policy is, ex dolo malo non oritur actio — no court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If, from the plaintiff’s own stating or otherwise, the cause of action appear to arise “ ex turpi causa,” or the transgression of a positive law of this country, then the court says he has no right to be assisted. It is upon that ground the court goes, not for the sake of the defendant, but because they will not lend their aid to such a plaintiff. And to the same effect is the maxim of the Roman law, “ nemo ex proprio dolo consequitur actionem.”

It is supposed, however, that the present case would not .fall within this principle, even if the suit were in the name of the original party, because the title now sought to be enforced did not originate in the illegal act, but is paramount to it, and that therefore it ought to prevail when subsequently acquired by the original party, even in his hands, against his own previous iniquity; and that however this might be, in reference to the original party, and although he, upon acquiring this title, might be personally bound by this moral estoppel from setting up 'his own immorality, yet that the title is purged of this taint when it passes again from him into the hands of a purchaser for value, although with notice of the fact. We do not concur in this view of the matter. Certainly, the party himself would be bound by the estoppel, so far at least that he would not be allowed to set up his own iniquity as a ground of relief. This is settled by precedent, and is clearly right on principle. (Schutt vs. Large, 6 Barb. S. C. Rep. 373.) And we do not think the case is altered by the mere fact that the plaintiff here is a grantee of the original party, standing in a court of justice and asking its active interference to set aside his own grantor’s iniquitous conveyance, in order that he may have the benefit of the purchase he has made from him. If he were an innocent purchaser, without notice, his case would certainly be entitled to a different consideration ; but that is not the case made in his petition, and which has been passed upon by the Circuit Court. It is true, he expressly avers that he is a purchaser for value, but does not pretend that he bought without notice of the matters set up as the grounds of relief; and as his grantor’s prior deed was duly registered, there is no reason to suppose that such was the fact — if, indeed, the registry would not conclude him in that respect. These principles dispose of the case as it now stands, and result in affirming the judgment of the Circuit Court upon the demurrer.

They leave, however, untouched the question, whether, in a suit at law, by tbe present plaintiff against tbe trustee, to recover tbe possession of the land, be would be allowed to set up these matters as an answer to tbe trustee’s title. This is probably tbe question upon which the parties desired tbe opinion of tbe court; but it is not necessarily involved in the decision of tbe present case, and, we decline expressing any opinion upon it. It is sufficient that the plaintiff, even upon his own showing, is not entitled to tbe relief be asks.

Judgment affirmed.


author: Leonard, Judge.

text:
    Huntington and wife, Appellants, v. House, Respondent.
    X. In a suit by husband and wife under the 'practice act of 1849, the affidavit of the husband is a sufficient verification of the petition.
    2. It is too late to object to the verification of a petition when the case is called for trial.

      Jlppeal from Weston Court of Common Pleas.

    Action for slander and malicious prosecution, brought by Huntington and wife against House. Tbe petition was verified by tbe affidavit of Huntington for himself alone. Tbe defendant answered. When tbe case was called for trial, tbe defendant moved to dismiss tbe suit as to tbe wife of Huntington, because tbe petition was not sworn to by ber, nor ber agent or attorney. Tbe motion was sustained. Tbe plaintiffs excepted, and, after a nonsuit submitted to by Huntington, appealed to this court.

      H. M. Vories, for appellants,
    insisted that tbe verification by the affidavit of tbe husband was sufficient, and that, if not, tbe objection came too late. (Practice Act of 1849, art. 7, § 2. Alfred v. Watkins, 1 N. Y. Code Rep. '343-412, N. S.)
   Leonard, Judge.

Tbe judgment here must be reversed and tbe cause remanded. Tbe affidavit of tbe husband was a sufficient verification of tbe petition. The objection, too, if otherwise well taken, ought not to have been allowed on the calling of the cause for trial. No purpose of justice can be answered by allowing a party, who has thus far waived the objection, to come forward with it at that late hour. The judgment is accordingly reversed, and the cause remanded.


text:
    Agee, Plaintiff in Error, v. Agee’s Administrator, Defendant in Error.
    1. An ante-nuptial agreement provided that the future wife, at the death of her husband and herself, should have “ at her disposal, to dispose to her son James,” certain personal property. Held, that the wife had a mere power of appointment; that in no case could she have any claim in her own favor against her husband’s estate, growing out of this ante-nuptial agreement.

      Error to Chariton Circuit Court.

    This was a demand presented in the county court by Catharine Agee, (formerly Catharine Worsham,) for allowance against the estate of John M. Agee, her deceased husband. The demand was founded upon the following agreement, executed by said John M. Agee immediately before his marriage with the plaintiff:
    “ Chariton county, Mo., February 15, 1858.
    “ This bond is to insure to Mrs. Catharine Worsham in having, at her death and mine, at her disposal, to dispose to her son, James Worsham, one bed and bed furniture, ample sufficient, and also one leather covered trunk, if he, the said James Worsham, is living, and also four hundred dollars from my estate. In return, I, John M. Agee, take in possession all her bonds and’money and other property for my and said Catharine Worsham’s own use and benefit during our life-time, for which I bind myself, my heirs, administrators and executors to pay the same out of my estate. Given under my hand and seal this 15th day of December, 1853.
    “John M. Agee, (seal.)

      One defence relied on by the administrator below was, that he had acquired any right of action which the plaintiff had under this agreement by virtue of an assignment from her of “ all her property, real, mixed and personal, that she was then or thereafter might be entitled to as the widow of the late John M. Jigee, deceased.”

    There was a judgment for the defendant in the county court, and in the Circuit Court on appeal, and the plaintiff brings the case here by writ of error.
    Gardenhire, for plaintiff in error,
    insisted that the agreement was valid and would be upheld, and cited 15 Mass. 106 ; 4 B. Monroe, 380 ; 17 Conn. 201 ; 4 Barb. S. C. Rep. 546 ; that it vested a life estate in the plaintiff, with power of disposal at her death to her son James, if living ; and that, whether living or dead at the death of his step-father, was immaterial; and that the assignment to the defendant of the property to which she was entitled as widow did not pass any property to which she was entitled under the agreement, and upon this point, cited 4 Watts & Serg. 546 ; 4 B. Monroe, 380.
    J. W. Morrow and J. B. Clark, for defendant in error.
    1. The agreement created no demand in favor of the plaintiff against her husband’s estate of which the county court had jurisdiction. 2. It was a power of appointment which could not be exercised until the plaintiff’s death, and which did not bind the estate until it was exercised. 3. The plaintiff’s right to dispose of the property depends upon the survivorship of James Worsham, and the record does not show whether he is living or dead.
   Leonard, Judge,

delivered the opinion of the court.

Questions of this character usually arise upon the construction of wills ; and if the present instrument were testamentary, it would confer only a naked authority upon the intended wife to appoint at her death to her son, if then living, the money and property indicated in it, to take effect out of the husband’s estate after his death, and would vest no property in herself. It is settled that, if a person have a general power of appointment over property, without limitation as to the appointee, and actually exercise the power by deed or will, the property appointed will form part of his assets, and be liable to the claims of creditors in preference to the claims of the appointee. But it is otherwise, if it be a particular power for third persons, designated in the power. But even in the case of a general power of appointment, the property is not considered as belonging to the donee of the power, even in favor of creditors, until he has executed the power, or done some act indicating an intention to execute it. Equity, it is said, will, in certain cases, aid the defective execution of the power, but will never supply the total want of execution. Although the money, which a party possessing a general power has a right to raise, may be considered as his property; yet a party, to be affected by the execution of the power, ought only to be charged in the manner and to the extent limited at the creation of the power.

The courts, even in favor of creditors, only direct the application of the money raised under the power, and hold it, when raised, to be assets for the payment of debts, although otherwise appointed by the donee of the power; but they do not, by their own act, charge an estate, and supply the want of the execution of the power, which would be destroying all distinction between power and absolute property. (4 Kent’s Comm. 359, 360; Lassetts v. Cornwallis, 2 Vern. 465; Holmes v. Coghill, 7 Ves. 506; 12 Ves. 206; 2 Sug. on Powers, 172.)

“Powers,” said Lord Chief Justice Wilmot, (Wilm. 23,) “ are never imperative. They leave the act to be done at the will of the party to whom they are given. Trusts are always obligatory upon the conscience of the party entrusted.” In Brown v. Higgs, (8 Ves. 574,) Lord Eldon said: “ There is not only a mere trust and a mere power, but there is also known to the court a power which the party to whom it is given is entrusted, and required to execute.” And then goes on to remark, “ if the power is a power which it is the duty of the party to execute, he is a trustee for the exercise of the power. The court adopts the principle as to trusts, and will not permit his negligence to disappoint the interests of those for whose benefit he is called upon to execute it. When, however, the expressions used are such as confer only a power on the donee, and the application of the property to the person designated is left entirely at his discretion, no trust will be created.”

In Bull v. Vardy, (1 Ves. jr. 270,) the testator empowered his wife to give away at her death one thousand pounds — one hundred of it to A. and one hundred to'B., the rest to be disposed of by her will. The wife died without having made any disposition of the fund, and in a suit by A., claiming the hundred pounds, it was held that this was no absolute legacy to A., but a naked power in the wife.

If we apply these principles to the present instrument, which is the most favorable view that can be taken of it for the person interested in the power, it can only be considered an agreement on the part of the husband to the effect indicated, which, upon his death, and the due execution of the power by the wife, the courts would enforce against his estate in favor of the son. No appointment, however, has been made, and this plaintiff has but a naked authority to -appoint in favor of her son, and therefore, no matter what construction may be put upon her contract with the defendant, she has no demand to be allowed in her favor against the estate growing out of this ante-nuptial agreement.

Judge Ryland concurring,

let the judgment be affirmed.


text:
    Messersmith, Defendant in Error, v. Messersmith and others, Plaintiffs in Error.
    1. A court of equity never lends its aid to enforce a forfeiture.
    2. Where there is a breach of an express condition in a deed, the remedy of the grantor is by an entry and a suit at law, if necessary, to recover the possession; and the remedy of the grantee, or his heirs, is by a suit in equity to be relieved against the forfeiture upon making a just compensation, if a proper case for equitable relief exists, or perhaps by setting up this matter as a defence when sued at law for the possession.

      3. A mother conveyed land to her son, upon an express condition inserted in the deed, that he should provide for her maintenance during her natural life. The son having maintained his mother many years, died without making any express provision for her by will or otherwise, but leaving ample means for her maintenance, which his representatives offered to apply to that purpose; held, that if there was any breach of the condition, it was a proper case for equitable relief against a forfeiture.

      Error to Cole Circuit Court.

    Petition by Elizabeth Messersmith, the grantor, against the heirs of Hiram Messersmith, the grantee, praying the annulment of a deed and the restoration of the land conveyed, for the non-performance of a condition inserted in the deed.
    The petition stated that the plaintiff, in 1836, executed and delivered to her son Hiram, a deed for certain land, which was subject to a condition therein written, that the said Hiram should provide for her a good and sufficient maintenance during her natural life ; and if he should at any time refuse or fail to provide the said maintenance, then said deed was to be void and of no effect, and in that event the plaintiff reserved to herself the right to re-enter and take possession of the land; that said Hiram took possession of the land, and continued in possession until his death ,in 1852; and that he died intestate, without making any provision for her support and maintenance during the remainder of her life.
    Judgment by default was rendered against the adult defendants, and a guardian ad litem was appointed for the minors, who filed an answer, setting up, among other things, that the grantee, during his life, had performed all things required of him by the condition of the deed, and that his administrator, since his death, was willing and had offered to perform the condition, but that the plaintiff had refused to permit him to do so. The answer also prayed compensation for the maintenance of the plaintiff by Hiram Messersmith during his life, and for improvements made by him on the land, in case the deed should be annulled and the title of the heirs divested. The administrator of Hiram Messersmith also filed an answer setting up the same matters. Both of these answers were stricken out on motion, and a final judgment was entered, vesting the title to the land in the plaintiff. The defendant brought the case here by writ of1 error.

      M. M. Parsons, for plaintiff in error.
    1. The Circuit Court erred in striking out the answers. They contained both a legal and an equitable defence to the action. (2 Verm. 366 ; 2 Story, 24 ; 5 Georgia, 341.) 2. The right to perform the conditions of the deed descended to the heirs and legal representatives of the deceased, whose rights were not defeated by the death of their ancestor. (2 Cruise’s Dig. 28-32; 4 Kent, 130.) 3. There was no breach of the condition of the deed. (2 Cruise’s Dig. 28-32; 24 Wend. 146; 4 Cushing, 184; 1 Hilliard on Real Property, 367, 380 ; 4 Kent, 134.) 4. The court had no power to render judgment against the infants. After the answer by their guardian was stricken out, they were no longer before the court.

      Gardenhire, Morrow and Edwards, for defendant in error.
    1. The condition having been broken, the grantor had a right to re-enter. (1 Bacon’s Abridge tit. condition, 632 ; 2 Elintoff on Real Property, 228-9 ; 1 Reeves’ Eng. Law, 294; 3 Reeves’ Eng. Law, 337; 5 Viner’s Abridg. 41, (A. 2) ; 1 Preston on Estatés, 48 ; 5 Pick. Rep. 528 ; 3 Harr. & McH. Rep. 182 ; 5 Ohio Rep. 387; 2 Plowden Rep. 412 ; 8 Blackf. 138 ; 4 Kent’s Comm. (8th éd.) 130.) 2. The grantee having died without performing the condition, the right to perform it is not transmitted to his heir. (2 Greenleaf’s Cruise, 28.) 3. A part performance of a condition subsequent is no bar to the right of re-entry. (7 Watts, 144 ; 7 Greenl. 225 ; 2 Eairf. 235; Gill’s Rep. 395.) 4. The answer of the infant defendants was properly stricken out; for, if every part of it had been proved, it could not have defeated this action.
   Leonard, Judge,

delivered the opinion of the court.

Without stopping to remark upon the irregularity, occurring in the proceeding, of giving judgment against infants by default, for want of an answer, we proceed at once to dispose of the case upon its merits. Here is an estate in land subject to be divested upon the non-performance of an express condition mentioned in the deed, that “ the grantee should provide for the grantor a good and sufficient maintenance during her natural lifeand the grantee having died intestate without making any provision for her support, she asks the court in the exercise of its equitable jurisdiction to enforce the penalty by directing the deed to be cancelled and the land'to be restored to her. The answer to this is, that a court of equity never lends its aid to enforce forfeiture under any circumstances ; (Livingston v. Tompkins, 4 Johns. Chan. Rep. 415 ;) and as we can not consider this a proceeding at law to recover the possession of the land upon the legal title that would have reverted to the plaintiff upon an entry for the breach of the condition, the judgment must be reversed and the petition dismissed.

In order however that the matter may be properly and finally settled between the parties, in any future proceeding that may be instituted for that purpose, we remark, that for any breach of the condition, the remedy of the grantor is in her own hands, by an entry and a suit at law, if necessary, to recover the possession ; and the remedy of the heirs is by a suit of equity to be relieved against the forfeiture, upon making a just compensation, or perhaps, by setting up this matter as a defence, when sued at law for the possession upon a breach of the condition. But, however this may be, the party will, in one way or the other, be relieved against the forfeiture incurred by the breach of a condition, if a proper case for equitable relief exist. In an early case, Peaety v. Somerset, 1 Strange, 447, it is said : “ The true ground of relief against penalties is from the original intent of the ease, and the court gives him all that he expected or desired; it is the recompense that gives the court a handle to grant relief.” In other words,' the ground of equitable interference is, that we ought to presume the object of entering into the contract was its fulfilment, and not an infliction of an injury on one side, nor the acquisition of a collateral advantage on tbe other ; and that when this object is frustrated, the intention of the parties will be best carried out by substituting an equivalent in its stead, and not by enforcing a recovery which is excessive in value and different in nature ; and relief, we believe, is never denied, where the breach is accidental and without fault, and admits of compensation. (Livingston v. Tompkins, above cited; Popham v. Barnfield, 1 Vern. 89; Carey v. Bertie, 2 Verm. 339.)

If a breach of the condition has been incurred here, merely by the grantee’s dying without making any provision by will for the support of his mother, although leaving ample means for that purpose, which his representatives have offered to apply accordingly, and which she declines receiving, (which we are not now called upon to determine,) it is very clear that it should not be imputed to the fault of the party, and that equity would compel the party to accept a compensation in lieu of the forfeiture.

Judge Ryland concurring;

the judgment is reversed and the petition is dismissed.


text:
    Morgan, Defendant in Error, v. Cox, Plaintiff in Error.
    1. Any negligence in the performance of what is lawful which causes loss to another, is an injury which confers a right of action.
    2. The reasonable care which persons are bound to take in order to avoid injury to others, is proportionate to the probability of injury that may arise to others. He who does what is more than ordinarily dangerous, is bound to use more than ordinary care.
    3. Where injury to another is caused by an act that would have amounted to trespass vi et armis under the old system of actions, as inhere one by the negligent handling of a loaded gun kills another’s slave, it is no defence, it would seem, that the act occurred through inadvertence, or without the wrong-doer’s intending it; it must appear that the injury done was inevitable, and utterly without fault on the part of the alleged wrong-doer.

      Error to St. Clair Circuit Court.

    Action to recover in the form of damages the value of plaintiff’s slave, alleged to have been killed by the accidental discharge of a gun in the hands of the defendant, a minor, by reason of his negligence. The defendant answered by his guardian ad litem, denying the negligence. The facts sufficiently appear in the opinion of the court. There was a verdict and judgment for the plaintiff below, and the defendant brings the case here by writ of error.

      F. P. Wright, for plaintiff in error,
    cited 12 Pick. 177 ; 6 Shepley, 32 ; 11 East, 60 ; 2 Pick. 621; 2 Taunt. 314 ; 18 E. C. L. Rep. 487; 243 O. L. Rep. 391; 2 Iowa Rep. 462.

      Gardenhire, for defendant in error,
    cited Ward v. Weaver; Hobart, 390 ; 9 Mo. Rep. 738 ;/ 4 McCord, 161; 1 Dev. 185 ; 6 Mon. 337 : 2 Miles, 298.
   Leonard, Judge,

delivered the opinion of the court.

We see no grounds for disturbing this judgment. The suit was for the negligent shooting of the plaintiff’s slave, and the only question was as to the fact of negligence. The defendant it seems had been out with his gun, and was asked by the plaintiff to aid him.and his servant in driving an unruly cow across the Osage river ; and while doing so he punched the cow with his loaded gun, and- in replacing it across his horse, the hammer struck the saddle as he supposed and caused it to fire, by which the plaintiff’s servant was shot and killed.

The court directed the jury, that if the killing, although unintentional, was occasioned by the negligence of the defendant, he was liable; and also instructed, at the instance of the defendant, thafrif the gun were discharged while the defendant was replacing it across his horse, he was not liable, unless the firing was occasioned by his negligence in replacing it; but refused to tell the 'jury, that if it were thus discharged and not while it was being used in punching ,the cow, the fact of its having been thus used did not render the defendant liable.

We think the jury were so instructed, as to the law of the case, as to leave the defendant without any ground of complaint; indeed the matter was submitted to the jury quite as favorably for him as the law would permit. The plaintiff put his right of recovery upon the ground of negligence, and the jury were told, that if it appeared from the evidence that the defendant had been guilty of it, they must find for the plaintiff; and ordinarily this would seem to be a sufficient direction, that they could not so find unless the proof satisfied them of the required fact. Here, however, the court, at the instance of the defendant, also directed, that if the accident occurred while the gun was being replaced across the horse, they must find for the-defendant, unless the act was done negligently, and without taking proper care. The refused instruction, as to the effect of the previous act of punching the cow upon the subsequent firing, was quite unnecessary for the defendant, except to lead the jury astray ; for the court had already said, that if the event occurred while the gun was being replaced, the defendant was not liable, unless he were guilty of negligence in replacing it; which was going to the very limit of the law, in that particular, for the defendant.

We are also satisfied, that there was quite enough evidence of negligence, to submit the case to the jury; and if we were called upon to express an opinion upon it, we should not hesitate to say, that it well warranted the verdict. If a person be guilty of an unlawful act, he is responsible for all the damage that is thereby occasioned to others. But here, it is true, the defendant had an undoubted right to carry his loaded gun about with him ; and, therefore, that alone did not renáer him responsible for the private damage that resulted from it to the plaintiff’, or answerable criminally for the destruction of human life that was thereby occasioned. Upon legal principles it must be, that to the extent to which one person has a right to act, others of course are bound to suffer; and any damage that may accrue to them, while he is thus exercising his rights, affords no valid ground of complaint. The loss occasioned in such cases, is 11 damnum absque injuria.” Every person, however, who is performing an act, is bound to take some care in what he is doing. He can not exercise his own indisputable rights without observing proper precaution not to cause others more damage than can be deemed fairly incident to such exercise. “ Sic útero tuo, ut alienum non laedas.” And, therefore, although the mere exercise of a right is not a wrong in any case, any negligence in the exercise of it, that causes a loss to another, is an injury, conferring upon him a right of action. It is correctly said, that generally between persons standing in no particular relation to each other, that alone is reasonable case, which, in the judgment of men in general, is proportionate to the jorobability of' injury to others ; and consequently, he who does what is more than ordinarily dangerous, is bound to use more than ordinary care. The defendant here had a dangerous instrument in his hands, and it was his duty to take proportionate care in handling it. The punching of the cow was a careless use of it, surrounded as he was by others ; and although the accident did not then occur, it was no doubt occasioned by accidentally striking the hammer against the saddle, upon returning the gun to the horizontal position which the defendant had carried it without elevating the muzzle. The accident, in all probability, would not have occurred had the defendant taken that care of the gun that it was his duty to have taken of it while it was loaded, and he himself was surrounded by those whom it might injure if it accidentally fired.

We have thus stated how far a party ought to be held responsible upon the principles of law applicable generally to damage occasioned by negligence, which seems to be the.ground upon which the plaintiff here placed his right of recovering. It must however be admitted, that our law holds a person to a much stricter responsibility when the act amounts to a trespass vi et armis, either to property or person. Under the old system of actions, it was no defence, in such cases, that the act occurred by misadventure, and without the wrong-doer’s intending it, but the defendant must have shown such circumstances as would make it appear to the court that the injury done to thé plaintiff was inevitable, and the defendant was not chargeable with any negligence; for no man should be excused of a trespass, unless it may be adjudged utterly without his fault'. This was so determined in an old case, (Weaver v. Ward, Hobart, 134,) where the action was against ,a soldier who had accidentally shot his comrade while exercising; and in Underwood v. Hewson, (Strange, 596,) the defendant was uncocking his gun, when it went off and accidentally wounded a bystander, and the defendant was charged and holden liable in trespass. And in Cole v. Fisher, (11 Mass. Rep. 137,) it is said, that this decision has never been questioned.

The facts of the present case would, under the former system of procedure, have supported an action of trespass, and can not, we think, be distinguished from the cases cited. In one of them, the party in uncocking his gun accidentally discharged it and wounded a bystander. Here, the defendant accidentally struck the hammer of his gun against his saddle, and the same result ensued. In both cases it was upon the defendants to show, that it happened, as the books say, by inevitable accident, and without the least fault; and the change that has been introduced by the new code in the remedy, has not changed the rules of law as to the liability of the parties. It is enough, however, that, under any view of the law, the defendant was clearly liable for this damage. In the case cited from the Massachusetts Reports, the defendant, after washing his gun, went to his shop-door, which was about a rod distant from the highway, and discharged it for the purpose of drying it; and the plaintiff’s horse, being at the time harnessed to his chaise, and fastened by his bridle to the fence on the opposite side of the road, was frightened and ran away, and broke the chaise, and the defendant was held answerable for the damage, either in trespass or case, according to the other circumstances of the transaction. In Lynch v. Nurden, (2 Stephens, Nisi Prius, 1017,) which was an action for an injury to a child, committed by the defendant in leaving his horse and cart standing alone in a street, into which some children had got, and, teasing the horse, the cart went over the plaintiff and broke his leg; Durham, Chief Justice, before whom the case was tried, held the defendant liable, and said: “If a man were guilty of negligence in leaving any thing dangerous in a street, and an injury arose, though partly by the conduct of other parties, the sufferer unquestionably had a right to recover. If a game-keeper, returning home from his duty, were to leave his loaded gun in a play-ground, and one of the boys should fire it off and injure another, it could not be doubted but that the game-keeper must answer in damages to the injured party.” I recollect myself a case that occurred, where a person in riding through the streets of one of our villages with his loaded rifle before him, lying horizontally across his saddle, it accidentally fired and wounded a person sitting in his own door, and no doubt seemed to be entertained of the responsibility of the party for the damage that resulted. The judgment is affirmed.


text:
    Arthur, Plaintiff in Error, v. Weston and Strode, Defendants in Error.
    1. A conveyance of real estate to W. W. P. & Co., only operates to transmit the legal title to W. W. P.

      Error to Jackson Circuit Court.

    This was an action in the nature of ejectment for the possession of certain lots in Independence. Both parties claimed under Azariah Holcomb, who, by deed, dated December 29, 1832, conveyed said lots to “W. W. Phelps & Co.” On the 11th of January, 1838, W. W. Phelps, Oliver Cowdry and John Whitmore conveyed to the plaintiff.

      The defendant, Strode, claimed-title by regular conveyances, under an execution sale in 1835, upon a judgment against W. W. Phelps and Oliver Cowdry.
    At the trial before the court without a jury, the plaintiff offered to prove that at the date of the conveyance from Holcomb to W. W. Phelps & Co., said firm was composed of Phelps, Cowdry and Whitmore ; but this evidence was excluded, to which the defendant excepted. The court below declared the law to be, that the deed to W. W. Phelps & Co. operated to vest the legal" title in W. W. Phelps only, and that the entire title passed by the sheriff’s deed under the execution sale, and was vested in the defendant, Strode, and gave judgment accordingly.
    The plaintiff brought the case here by writ of error.
    Adams, for plaintiff in error;
    that the deed to W. W. Phelps & Co. vested the legal title in the parties composing the firm, cited 4 Kent, 462; 1 American Lead, cases, 336, 341; 1 Brock. 463 ; Story on Partnership, § 101; 2 Brock. 150.

      Hicks and Bone, for defendants in error,
    cited 4 Mass. Rep. 424; 3 Sumner, 435, 470, 471; '2 Johns, cases, 321; Jackson v. Sisson, 9 Johns. Rep.- 73 ; Jackson v. Carey, 8 Johns. Rep. 385; Cole v. Cole, 15 Johns. 159 ; 3 Kent’s Comm. (6th ed.) p. 37, 38; Bacon’s Abridg. tit.. Evidence, letter G. tit. Grants, letter C.; Story on Partnership, (3d ed.) § 92.
   Leonard, Judge,

delivered the opinion of the court.

The question here is, whether the deed from Holcomb to W. W. Phelps & Co. can be allowed to take effect as a legal conveyance of the land to Phelps, Whitmore and Cowdry, the persons composing the partnership, upon parol proof of that fact, and we think it can not. The question, it is to be observed, is as to legal rights, and not as to the equities of the parties; and we may further observe, it is not merely whether the grantor intended to convey to the persons composing the firm, but whether the partnership style is as a matter of law a good name of purchase, in a conveyance of real property, sufficient to pass the legal title to all the individuals of the firm. It is thus seen, that this is not altogether a question of intention, but mainly a question of law ; not whether the grantor intended to convey the lot to Phelps, Whitmore and Cowdry, but whether these three persons are sufficiently, in point of law, designated in the deed as the grantees by the name or description of “ W. W. Phelps & Co.” A conveyance of real property being required by the statute to be put in writing, the party who is to take as grantee must be sufficiently ascertained by the written instrument, or it is a nullity so far as it purports to effect a transfer of the legal title. It is obvious, however, that the parties may be described with various degrees of certainty ; and the question here is, what is a sufficient description, in this respect, in a conveyance of real property ? The highest degree of certainty was probably obtained by the ancient feoffment, where the parties and the land were all present, and the land conveyed was delivered by the grantor into the possession of the grantee. In the ordinary transactions of life, however, individuals are usually and sufficiently designated by their proper names, and these in our law are deemed sufficient in all legal transactions, without any further description. This however seems to have been otherwise in ancient Egypt, as appears by a deed made two thousand years ago, and recently found in Upper Egypt, in a tomb by the side of a mummy, probably that of the owner, where the parties are identified not only by their names, but by a minute description of their persons — the seller, as “ aged about forty-five years, of middle stature, dark complexion, handsome person, bald, round-faced and straight nosed;” and the purchaser, as aged about forty years, of middle stature, yellow complexion, cheerful countenance, long face, and straight nose, with a scar upon the middle of his forehead.” (4 Kent’s Com. 8th ed. 513.)

But, however this may be elsewhere, it is certain that, under our law, the parties, even to a legal conveyance of real property, may be identified either by their names, without any further description, or by matter of description only. In Shepherd’s Touchstone, (title “ Grant,” p. 235, 236, 237,) it is said: “ If the grant be by deed, the grantee must be sufficiently named, or at least set forth and distinguished by some circumstantial matter, and that he be so named or described as that he may be capable by that name whereby he is set forth. Regularly, it is requisite that the grantee be named by his names of baptism and surname, and so it is most safe; and yet if the grant do not intend to describe the grantee by his known name, but by some other matter, then-it may be good by a certain description of the person, without either surname órname of baptism. And therefore, a grant to the wife'of J. S., or to the first son, or the second son, or the youngest son, or to all the sons, or all the daughters, or to all the-children, or to all the issue of J. S., or to the next of blood of J. S.; in these cases, grants made to these persons in these words are good, for the person is certainly enough described. But if a grant be made to the parishioners or inhabitants of Dale, or to the good men of Dale, or to the commoners of such a waste, or to the lord and his tenants, bond and free, these are not good grants ; for albeit these persons are capable, they are not capable by these means, (for want of identity or that certainty which the law will allow to be tried).” So it is said (3 Bac. Abr. title “Grants,” letter 0, p. 378 & 379): “A grant to George, Bishop of Norwich, when his name is John, or to Henry, Earl of Pembroke, when his name is Robert, is good ; for there can not be more persons of those names. A grant to an Abbot, by the name of the foundation without his name of baptism, is good, if there be not any more Abbots in England of the same name of foundation. If a grant be made to a father and his son, he having but one son, the grant is good, for the apparent certainty of it; but if the father have several sons, it is void, for uncertainty.” In Jackson v. Sisson, (2 Johns, cases, 321,) the patent was to three persons by name, “for themselves and their associates, being a settlement of Friends, on the west side of Seneca Lake ; to have, and to hold, for themselves and their associates” — and the question being as to the legal title, Kent, Justice, said: “ There was no legal estate created by the patent but what vested in the three patentees named. The description of the association by the words, “ a settlement of Friends, on the west side of Seneca Lake,” was too vague and uncertain to constitute a competent grantee at law, or a cestuique use, whose estate the statute would transfer into possession. (Saunders on Uses, 63, 128.) It (the patent) is to J. P., W. P. & T. H., for themselves and their associates, being the settlement aforesaid; and, therefore, from the words of the grant, as well as from the uncertainty of the description, it is evident that the associates had only an interest in equity, and that Parker, and the others, were vested with the legal estate as trustees for the association.”

We repeat, the only question in the present case is, whether the description the deed gives of Phelps, Whitmore and Cowdry is of “ that certainty which the law will allow to be tried,” so as to constitute these persons competent grantees in a legal conveyance of real property. The objection here is not to the admission of the parol proof, merely as such; for such evidence is admissible, to some extent, to determine the application of every written instrument. It is always received to show the correspondence of the parties claiming, and the thing claimed, with the description given of them in the deed. The descriptive matter, whatever it may be, must be in the deed, or in some other written instrument to which the deed refers ; but the evidence, that a particular person or thing answers to the description, is necessarily by parol. To this extent, we must always look outside of the instrument, to ascertain what is meant by it. Neither does the objection here turn merely on the fact, whether or not it be possible, by means of the description, to ascertain the persons intended. That was possible in several of the cases referred to, especially in the New York case ; for the Judge there admits, that although the description given would be insufficient as a legal description of the persons to take as the grantees of the legal estate, they were yet sufficient to create a valid trust in favor of the same persons, and that under the instrument the three grantees held the legal estate in trust for their associates. In a case from Maine, (Beoman v. Whitney, 20 Maine Rep. 420,) this question as to the effect of a deed to Whitney, Watson & Company, came up collaterally, and the court said, who Whitney and Watson were is well known, and was proved in the case. If the other persons embraced under the general term, Company, could not take as grantees, Whitney and Watson who were named could, and thus they would hold for themselves and in trust for those associated with them, and this is sufficient to give operation to the conveyance.” By reference to the adjudged cases, it is seen what matter of description the law deems equivalent to a proper name in designating the parties to a conveyance. In all of them it was of those particulars by which the persons were quite as well known in their neighborhoods as by their proper names, and which of course were of as easy proof; and in some of them the parties were better known by the description than by their names. Such, however, we do not think is the character of the present descriptive matter. There may be, and no doubt are, many cases in which persons would be quite as readily known in their neighborhoods by their partnership’s style as by their proper names ; but it is quite evident, that in other eases, especially if the partners were numerous, or any of them were dormant, it would be a matter of no little trouble, and of a good deal of uncertainty at least, to ascertain who were the persons that really took under the description.

It is a matter of great interest to the country, that its land titles should be kept as free as possible from uncertainty. For this purpose, the law has required them to be put in writing, and in order to give them publicity, has also required that they be put upon a public registry. That these provisions may be effectual for the purposes for which they were intended, the rules of the common luw, as to the designation of the parties, must be maintained in their vigor. None of the adjudicated cases go to the length that we are now asked to go, and we think the public good forbids such a relaxation of the common law rules upon this subject. The case of Hoffman v. Porter, (2 Brock, 158,) to which we have been referred, does not go the length of the present case, and besides the decision was made on the circuit, and given with great hesitation by the eminent Judge who made it. The case was treated as a deed to the father, and that one of his sons that was in partnership with him, which was deemed a sufficient désignation of the particular son intended, and may be likened to the case of the deed to A. and his son (Cro. Jac. 374), where the uncertainty as to the son was removed by proof that the party had but one son.

We must not, however, be misunderstood; our present decision refers to the transfer of the legal estate only, and does not touch the equitable rights of the parties growing out of the transaction. It is not to be extended to the disposition of personal property, nor are we to be understood as declaring, that the same rule would be applicable to a devise of real property; but the point decided is confined to the very case now before us — a legal conveyance inter vivos of real property.

Judge Ryland concurring,

the judgment is affirmed.