text:
    Wolf et al., Defendants in Error, vs. Robinson et al., Plaintiffs in Error.
    1. The heirs of an intestate, by obtaining a decree for the legal title to real estate of which he died seized in equity, cannot defeat the right of the administrator to sell his equity for the payment of debts ; and the purchaser at the administration sale may enforce a conveyance of the legal title.
    2. The title of the purchaser at an administration sale does not depend upon the truth of the facts stated in the petition upon which the order of sale was made. This cannot he contested in a collateral proceeding.

      Error to Franklin Circuit Court.

    This was a petition to obtain the legal title to certain real estate in the town of Washington.
    Charles Eberius died in 1889, leaving the defendants his heirs at law. At the time of his death, he held a title bond for the property in controversy. After his death, the defendants, in a statutory proceeding against the administratrix of the obligor in the bond to enforce a specific performance, obtained a decree vesting in them the legal title. Afterwards, the administrator of Eberius, upon a petition to the county court, representing that the personal estate of the intestate was insufficient to pay his debts, and accompanied by the proper lists and inventories, obtained an order for the sale of the real estate. The plaintiffs claim by regular conveyances under' the sale thus made, as to the regularity of which there was no dispute, except as hereinafter stated.
    The above facts appear in the petition of the plaintiffs.
    The defendants answered, admitting the material facts stated in the petition, but relying upon the decree as conclusive of their title, and alleging that no necessity existed for the sale by the adminstrator of Eberius, as the personal estate was sufficient to have paid all the debts of the intestate, if it had not been wasted.
    This answer was stricken out; and a decree was afterwards entered vesting the legal title in the plaintiffs, according to the prayer of their petition. The defendants appealed.

      J. D. Stevenson, for plaintiffs in error.

      JV*. Holmes, for defendants in error.
   Scott, Judge,

delivered the opinion of the court.

1. The heirs of Eberius, by obtaining a decree for the legal title to the estate of which he died seized in equity, could not defeat nor affect the right of the administrator of Eberius to sell his equity in the land for the payment of the debts due by his intestate. This is no proceeding to invalidate the decree obtained by the heirs of Eberius, vesting them with the legal title to the land in controversy ; so far from it, it affirms the validity of that decree, and seeks a conveyance of the title obtained by it.

2. There is nothing in the answer which affects the purchasers under the administrator’s sale with notice of any irregularity-in that proceeding. The county court had jurisdiction of the subject matter of the suit. A decree for the sale of the land was regularly pronounced, and it is not competent for the heirs, in a collateral proceeding, to contest the truth of the facts on which the order of sale was made. They should haye appealed from the order, if it was not warranted by the circumstances. They cannot now gainsay the fact that the sale of the real estate was necessary for the payment of the debts. That matter has passed in rem judicatam and cannot now be controverted but for fraud, to which it must be shown that the plaintiffs were privy. That an administrator, by a maladministration of the assets of an estate, had rendered a sale of the real estate necessary for the payment .of the debts, is no objection to the validity of a title acquired by a purchaser at such sale. A purchaser is not bound to maintain the truth of the facts on which an order of sale of the real estate of a decedent is based. With the concurrence of the other judges, the judgment will be affirmed.


source: Caselaw Access Project

author: Leonard, Judge,

license: Public Domain

text:
    Gale, Appellant, vs. Mensing. Respondent.
    1. A conveyance by a trustee passes the legal title, although he may be guilty of a breach of trust.
    2. The effpct of the satisfaction of a mortgage is to extinguish the incumbrance upon the title, for the benefit of whoever is the owner of it at the time.
    3. A conveyance to trustees, for the benefit of creditors who should sign it, is not, as a matter of law, void, because of the omission of the creditors to sign it.

      Appeal from Franklin Circuit Court.

    Action for the possession of six lots in the town of Washington, claimed by the plaintiff under a sheriff’s deed upon an execution sale, under a judgment against B. fr A. King. Matthew Caldwell, the landlord of the defendant, also claimed title under the Kings.
    The Circuit Court, trying the cause without a jury, found substantially the following facts :
    On the 4th of June, 1888, the Kings mortgaged the, lots in controversy to Matthew Caldwell to secure an indebtedness of $300. On the -6th of June, 1888, they conveyed to C. S. Jeffries and W. V. N. Bay, trustees for the benefit of creditors,- all their estate, real and personal, in. law or equity, directing the mode and manner of sale and the proceedings of the trustees in the execution of the trust. The trustees were authorized to sell at public or private sale. By the terms of this deed, it was necessary that the creditors should sign it, in order to receive any benefits under it. (This deed was not set out in the finding, nor were its provisions, further than above stated, nor did it appear in the record.) On the 3d of March, 1841, Bay and Jeffries conveyed the lots to Matthew Oaldwell in consideration of an acknowledgment by him of satisfaction of the mortgage, which was entered upon the record on the same day. This deed recited that the lots were not worth more than the amount for which they were mortgaged to Oaldwell, and therefore the trustees made the conveyance to avoid the expense of a foreclosure.
    On the 20th of March, 1843, an alias execution issued upon a judgment recovered against the' Kings, October 31st, 1838, under which these lots were levied upon and sold to the plaintiff on the 5th of April following.
    Upon these facts, the Circuit Court gave judgment for the defendant, and the plaintiff appealed to this court.

      J. W. Noell, for appellant.
    1. After the execution of the mortgage to Caldwell, and the deed of trust to Jeffries and Bay, the Kings still owned the equity of redemption, which Jeffries and Bay had no power to convey. 2. The sale by Jeffries and Bay to Caldwell was void. They had no power to give him the land in payment of his debt. All they could do was, to sell the land subject to Caldwell’s mortgage, for the benefit of the creditors secured by the deed of trust. The execution of powers of sale by trustees must be in strict conformity to the terms of the trust. 3. The deed of trust to Bay and Jeffries, at the time of their conveyance to Oald-well, had, by its own terms, become a nullity. It was to operate in favor of those creditors only who should sign it, and no creditor has ever done this. (1 Hilliard on Mortgages, p. 245, §7, p. 438, §36. Crow & Tevis v. Ruby, 5 Mo. Bep. 484. Swearingen v. Slicer, 5 Mo. Bep. 241. Gray & Howard v. Shaw, 14 Mo. Bep. 341, and authorities there cited. 3 Wharton, 347.) 4. Caldwell’s mortgage being satisfied, and the deed of trust to Jeffries and Bay being null and void bj its own provisions and conditions, the full legal title was left in the two Kangs, and it was purchased by plaintiff at sheriff’s sale.

      J. D. Stevenson, for respondent.
   Leonard, Judge,

delivered the opinion of the court.

This petition was to recover the possession of land upon the legal title, and not for any equitable relief. The deed from the Kings to Jeffries and Bay was not a mortgage, but a conveyance of the whole title, subject only to Caldwell’s mortgage, and it vested the legal ownership in the trustees against all persons except Caldwell and his assignees. So far as the record shows, this conveyance was not, as the appellant seems to suppose, a second mortgage, nor a mere naked authority to sell for the benefit of creditors ; but, as we have already remarked, a transfer of the legal ownership, upon the trusts declared in it,., subject to Caldwell’s mortgage.

It is not void as a mere matter of law, on account of the-omission of the creditors to sign it, as they were required to do,, in order to entitle them to any benefit under it, and there, is no question saved in the record as to its invalidity on the score of' fraud in fact. The consequence is, that their conveyance to. Caldwell, in satisfaction of his mortgage debt, vested the entire legal ownership in him, and the subsequent satisfaction- of the-mortgage extinguished that incumbrance upon the title, for the benefit of whoever was the owner of it, instead of returning that title to the Kings, who had previously parted with, all their-interest in the land by their deed to Jeffries and Bay.

There is no question here as to the mere legal propriety of' the conduct of the trustees in conveying to Caldwell. Whether that act was a breach of duty for which they are- liable- to. whoever were the beneficiaries of the property at that time, cannot be discussed in this record. It is sufficient here that the legal ownership was in them, and that they made the transfer to Caldwell, which we must presume was proper,, and not a breach of trust, until it is so shown in a proper proceeding instituted against them for that purpose. The judgment is affirmed.


text:
    Ferris’ Administrator, Respondent, vs. Hunt, Appellant.
    1. After the death of an administrator, plaintiff, a succeeding administrator was substituted as plaintiff, without the appearance of the defendant, or the service of a scire facias. The defendant afterwards appeared, and filed a motion to set aside the order of substitution, which being overruled, he appealed to the supreme court, where the oi’der was set aside. Sold, this was such an appearance by the defendant as dispensed with the necessity for a scire facias after the cause was remanded to bring him into court; being already in court, he might bé required to show cause against the proposed substitution, and upon his failure to do so, the order might be renewed.

      Appeal from Washington Circuit Court.

    Action originally commenced before a justice of the peace in the -name of Yates, administrator of Ferris, afterwards appealed to the Circuit Court, where, at the April term, 1853, Yates having died, Ashley, the succeeding administrator, was, on his motion, substituted as plaintiff, without the appearance of the defendant, or the service upon him of a scire facias. At the same term, judgment was rendered against the defendant, and he afterwards appeared and moved to set the same aside. His motion was overruled and he appealed to the supreme court, where the judgment was reversed and the cause remanded, on the ground that Ashley had been substituted as plaintiff, without the appearance of the defendant or a scire facias served upon him. (18 Mo. Rep. 480.) At the June term, 1854, of the Circuit Court, Ashley again moved for an order substituting him as- plaintiff, having previously given the defendant notice of his intention so to do, but his motion was overruled, and ho excepted. He then sued out a scire facias, returnable to the October term following. At the October term, the defendant .appeared and moved to quash the scire facias, on the ground that it was sued out after tbe expiration of the third day of the second term next after the term at which the death of the original plaintiff was stated on the record. The motion was overruled, the court made an order substituting Ashley as plaintiff, and the case was called for trial. The defendant claimed a continuance, but it was not granted, and no further defence being made, judgment was rendered for the plaintiff, from which the defendant appeals.
    Mr. Jfoell, for appellant,
    cited Fine v. Gray, (19 Mo. Rep: 83,) that the scire facias was too late.
   Leonard, Judge,

delivered the opinion of the court.

The party’s appearance in court and motion to set aside the order allowing the cause to be continued against him in the name of the deceased plaintiff’s successor, was a sufficient appearance to have justified the court, upon setting that order aside, to require the party to show cause against the proposed substitution, and upon his failure to do so, to have renewed the order without any scire facias to bring him into court. When, therefore, the order was in effect set aside here, and the cause remanded for further proceedings, the court was then at liberty to proceed in the matter without a scire facias, the party being already in court — a party to this proceeding by his own voluntary appearance — and the proceeding to have the cause continued in the name of the present plaintiff may be considered as having been commenced on the day the party made his motion in court to set aside the order, and so is within the time allowed by the statute for that purpose.

The judgment is affirmed.


author: Scott, Judge,

text:
    Perkins, Respondent, vs. Carter, Appellant.
    1. The mere addition of the words, “ and relinquishes her dower,” in the certificate of a married woman’s acknowledgment of a conveyance of her own estate will not avoid the deed as to her. ( Chmvin v. Wagner, 18 Mo. Rep. 531, upon this point, affirmed.)

      Appeal from Lincoln Circuit Court.

    This action was brought bj tbe beir of Sarah A. Perkins, to recover possession of a tract of land in Lincoln county. The defendant claimed title under a deed executed by Sarah A. Perkins (to whom the land was patented before her marriage) and her husband, Charles E. Perkins. The certificate of acknowledgment to this deed was as follows :
    “ State of Missouri, county of Lincoln, ss. Be it remembered'that, on the 20th day of October, A. D. 1841, before me, the clerk of the county court of Lincoln county, Missouri, personally appeared Charles E. Perkins and Sarah Ann, his wife, both personally known to me to be the persons whose names are subscribed to the foregoing instrument of writing as having executed the same, and severally acknowledged the same to be their own free act and deed for the purposes therein mentioned. The said Sarah Ann being first examined by me separate and apart from her said husband, first being made acquainted with the contents thereof, says she executed the same deed, and relinquishes her right of dower to the land therein mentioned, voluntarily and freely, of her own accord, without any undue influence of her said husband. Taken and certified and given under my hand and seal of office, the day and year above written.
    (L. S.) . “EeaNcis Parker, Clerk.”
    It did not appear in the body of the deed that the estate conveyed belonged to the wife. The Circuit Court held that it was insufficient to divest her title. After verdict and judgment for the plaintiff, the defendant appealed.
    Mr. Clover, Mr. Gantt and Mr. Polls, for appellant,
    relied upon Chauvin v. Wagner, (18 Mo. Bep. 581.)
    Mr. Broadhead, for respondent,
    attempted to distinguish this case from Chauvin v. Wagner, by the fact that here it did not appear in the deed itself, with the contents of which the wife was certified to have been made acquainted, that she was conveying hep own estate.
   Scott, Judge,

delivered the opinion of the court.

This was an action brought by the respondent to recover possession of a tract of land claimed by her as the heir of her mother. Erom the form of the certificate of acknowledgment to the deed executed by the husband and wife, it will be seen that the same question arises in this case that was determined in the case of Chauvin’s Heirs v. Wagner, (18 Mo. Rep. 531.) The matter there settled was, that the words, “ and relinquishes her dower to the real estate therein mentioned,” contained in a certificate of acknowledgment of a married woman to a deed conveying her own estate, do not avoid the deed as to the wife.

After mature deliberation, the court has come to the conclusion, that an adherence to the opinion expressed in relation to this question, in the ease to which reference has been made, will subserve the ends of justice and conduce to the security of titles to real estate, especially when consideration is made of the want of skill in many of those to whom, from necessity, the law has been compelled to entrust the power of receiving the acknowledgment of deeds.

Experience and observation show that the error, in all these cases, is not in doing the act — not in a failure to obtain the wife’s consent in a suitable manner, but in a want of skill in certifying the manner in which it has been done.

If the case to which allusion has been made has gone farther than some others, yet, in spirit, it harmonizes with them, as all courts have felt themselves warranted in departing from the exact language prescribed by law, in order to uphold the conveyances of married women.

This question does not turn on the contents of the deed, but on the form of the certificate. The terms of the deed can impart no efficacy to the certificate, nor supply any of its defects. If the contents of the deed are sufficient to convey the estate proposed to be aliened, the only remaining inquiry is, as to the sufficiency of the certificate of acknowledgment. It can make no difference, then, whether it appears or not on'the face of then deed that the land conveyed was the property of the wife.

The other judges concurring, the judgment will be reversed.


author: Ryland, Judge,

text:
    Gibbons et al., Appellants, vs. Gentry, Respondent.
    1. G. in Kentucky, in 1829, executed a deed for slaves to trustees, to be held, with their increase, for the benefit of G. and wife during their lives, and after their deaths to be divided among their children. This deed was acknowledged and recorded. The certificate of acknowledgment ran in the name of J. B., clerk of the county court, but was signed at the foot “ J. B., by J. J. A., deputy clerk.” G. remained in possession of the slaves, and shortly afterwards removed with them to Missom-i, where he sold two of them to the defendant, who had notice of the deed, and the surviving trustee joined in the bill of sale. In a suit brought by the children of G., after the death of himself and wife, to recover the two slaves thus sold and their increase, Held,
    1. That the deed was not void upon Us face under the laws of Kentucky in force when it was executed, and that the acknowledgment was sufficient.
    2. That the legal title not being in the plaintiffs, the suit was not properly brought; that it should have been in the name of the trustees, or if they were dead, or refused to accept the trust, the petition should have been framed for the appointment of trustees, or for the execution of the trust without their intervention.

      Appeal from Marion Circuit Court.

    This action was brought in 1851 by the children of Isaac B. Gibbons, to recover, upon the legal title, slaves claimed by them under a deed executed in Kentucky in 1829 by their father, since deceased, under whom also the defendant claimed by purchase in Missouri in 1831. The record showed the following facts :
    On the 81st of July, 1829, Isaac B. Gibbons, then residing in Green county, Kentucky, executed a deed to' Stanton Buckner, of Marion county, Missouri, and Richard A. Buckner, of Green county, Kentucky, for the slaves in controversy and others, to be held by them in trust for the support and maintenance of the grantor and his wife during their lives, and the education of their children, and after their death, to be divided among the children. This deed is set out at large in the opinion of the court, together with the certificate of acknowledgment and of record. It was acknowledged and recorded in Green county, Kentucky, September, 18, 1829, and in Marion county, Missouri, March 12, 1881. Gibbons remained in possession of the slaves after the execution of the deed, and in October or November of the same year, removed with them to Marion county, Missouri. Thé defendant offered evidence tending to show that Gibbons was largely indebted when he executed the deed; but there was other evidence tending to show that he paid all his debts in Kentucky, before removing to Missouri. It was in evidence that in July, 1829, Gibbons owned no other property of consequence than the slaves included in the deed. There was evidence tending to show that Richard A. Buckner, who died in 1848-9, in Kentucky, accepted the trust and acted under it; but that Stanton Buckner, the other trustee, who went to California, in 1850, had always refused to act.
    After Gibbons removed to Missouri, he continued to remain in possession of the slaves, having but little other property. He contracted debts, judgments were recovered against him, and executions issued, which were levied upon some of the slaves. In March, 1831, he sold two of the slaves to the defendant, and with the price received paid off the executions and other debts contracted for the support and maintenance of his family before the Kentucky deed was recorded in Marion county. Before making the purchase, defendant heard of the Kentucky deed, and applied to Stanton Buckner for information, by whom he was told that the deed was of no effect, neither of the trustees having accepted the trust or acted under it, and Gibbons having always been in possession of the slaves. At the request of the defendant however, Stanton Buckner joined in the bill of sale, as did also Williams, the son-in-law of Gibbons, whose widow was one of the plaintiffs. The bill of sale to defendant was dated March 14, 1831, after the Kentucky deed was recorded in Marion county, but there was evidence that the purchase was made before that date. Gibbons afterwards removed to Arkansas, where he died in 1848, his wife having died some years prior to that date. This action was brought by his children to recover the two slaves sold to the defendant and their increase.
    It was agreed that all the statutes of Kentucky bearing upon the questions in the case should be considered in evidence.
    The Circuit Court refused all the instructions asked by the plaintiffs, and gave all asked by the defendant, including the following:
    “If the jury believe from the evidence, that the defendant purchased the two slaves from Isaac B. Gibbons in 1831, and paid said Gibbons a fair price for said slaves, the deed under which the plaintiffs claim is void as to the defendant, and they ought to find a verdict for the defendant.
    The plaintiffs submitted to a nonsuit, and appealed to this court.

      Glover & Richardson, (with Richmond,) for. appellants.
    1. The deed of trust executed by Gibbons in 1829 was a valid deed, and vested in the trustees a remainder in the slaves to the use of the children of .the grantor after the death of himself and wife. It was not void as immoral or contrary to public policy. (2 Kent, 352. 2 Black. 398. 3 Litt. (Ky.) Bep. 276. 7 Harr. & John. 257. 1 Humph. 273. 2 Yer-ger, 584. 9 Gill & John. 77. 1 Florida, 86. 13 Ala. 738, 748. 2 Brevard, 38. Id. 411. 5 Humph. 393. 1 Bawle, 349.) 2. All the statutory provisions in force in Kentucky, necessary to the validity of the deed, were complied with. It was acknowledged within eight months after it was executed, and recorded. (1 Morehead & Brown’s Dig. p. 738-9.) 3. The trust for the children was fully established by the deed, whether the trustees accepted it or not. A trust is never allowed to fail for want of a trustee. 4. The deed was recorded in Marion county, Missouri, in due time ; but it'was not necessary that it should have been recorded there at all. The title once vested according to the laws of Kentucky, it could not afterwards be divested by way of forfeiture for non-compliance with further conditions. (13 Ala. 737, 742. 4 Humph. 211. Martin & Yerger’s Rep. 102. 13 Pet. 106. 11 Mo. Rep. 556. Story on Conflict of Laws, p. 219, §263.) 5. The statute of limitations is no bar to the plaintiffs’ claim, because their right of action did not accrue until the death of their father and mother. 6. It is said that this deed was void as a conveyance to the use of the grantor under the statutes 50 Edward III, ch. 6, and 3 Henry VII, ch. 4, which are alleged to have been in force, in Kentucky when it was executed. But those statutes were never construed to avoid any deeds except such as were made with a fraudulent intent. (2 Reeves’ Eng. Law, p. 401. 4 id. p. 140. Crabbe’s Eng. Law, p. 440. 2 Kent, 440. Trevors. Trevor, IP. Wm’s, 621. Glanvitte v. Payne, 2 Atk. 39. 1 Eq. cases, abridged, top p. 39. Scroggs v. Scroggs, Ambler, 72. Harvey & wife v. Hsh-ley, 3 Atk. 607. 2 Vernon, 702. Hollo to ay v. Heading-ton, 8 Simons, 324, (11 Eng. Ch. Rep. top p. 459.) 2 Vesey, jr. 331. 2 P. W’ms, 349. Davenport v. Bishop, 2 Younge & Coll. 451. 2 Mylne & Craig, 376. 2 Irish Eq. Rep. 113. Williams v. Williams, 15 Vesey, 419. 4 Brown P. C. 580. 1 Cox Ch. Rep. 215. 7 Hare, 318. Atherly on Settlements. Cowp. .432. 4 Kent, 349.) It may be that merely passive or nominal trusts might be held to be within these statutes, but not active trusts. (5 Iredell, 578. Id. 255. 1 Hill, (S. C.) 413. 1 Dev. Eq. Rep. 359. 1 Johns. Ch. Rep. 54. 11 Paige, 136. ,1 Sandf. Ch. Rep. 104. 4 Paige, 354.) Even if the conveyance to the use of Gibbons during his life should be held void under these statutes, it does not follow that the interests of the remaindermen must be held void also. 7. The deputy clerk of the county court had power to do all that the principal could do.
    The following Kentucky statutes were referred to by the appellants as those upon which they relied: 1 Morehead & Brown’s Dig. p. 429, tit. “Conveyances,” top p. 432. Ib. 437, 443, 612, 734 to 741. 2 Ib. tit. “ Slaves,”, p. 1471 to 1480 inclusive. 1 Ib. 175, 411.)

      Pratt & Redd, for respondent.
    I. The deed under wbicb plaintiffs claim, being a voluntary deed, was, as the law stood prior to the Kentucky statute of frauds, absolutely and^er se void as to a subsequent purchaser for value, with or without notice. (2 Taunt. 82. 2 Black. Rep. 1021. 1 Bos. & Pull. 334. 2 Yesey, sr. 10. 1 Atk. 94, side p. 18 Yesey, jr. 89. Ib. 111. 1 Cowper, 280. ) II. The law stood thus until the passage of the statute of- frauds of 1798, (Littell & Swigerfc’s Dig. p. 618,) and the 41st section of the act concerning “Slaves,” (Littell & Swigert’s Dig. 1158, 2 Morehead & Brown’s Dig. 1479-80,) by which a voluntary deed might be shown to be good, by proof that it was legally acknowledged or proved and recorded within eight months. This deed was not •legally acknowledged or proved. There was no law in force in Kentucky in 1829 which authorized a deputy clerk to take the proof of deeds. III. The plaintiffs can claim no title to these slaves under the deed of their father, for the following reasons : 1. They were disposed of by the grantor during his life for the support of himself and the plaintiffs, his children, 'and the deed can only take effect as to such as remained undisposed of at his death. 2. It was a conveyance to the use of the grantor who was largely in debt at the time. The statute 3 Henry YII, ch. 4, was in force in Kentucky at the date of the deed. 3. Admitting. that the deed gives the plaintiffs an equity in the slaves, and that they might file a bill to enforce the trust, yet they cannot recover in this action, in which they sue for the possession. By the terms of the deed, the trustees alone were entitled to the possession.
   Ryland, Judge,

delivered the opinion of the court.

Some time in July, 1829, Isaac B. Gibbons, the ancestor of the appellants, who then resided in Green county, in the state of Kentucky, having wasted a large portion of his estate by dissipation, made a deed to trustees, of which the following is a copy :

“ This indenture, made this 31st of July, 1829, between Isaac B. Gibbons, of the county of Green and state of Kentucky, of the one part, and Stanton Buckner, of the state of Missouri, and Richard A. Buckner, of the county of Green aforesaid, of the other part, witnesseth: That the said Isaac B. Gibbons, for the love, good will and affection which he has towards his children, Louisa B. Gibbons, Judith Presley Thornton Gibbons, Morris Gibbons, and Caroline Aylett Gibbons, and also for the consideration of one dollar, in hand paid, the receipt of which is acknowledged, hath granted, bargained, sold and delivered to the said Stanton Buckner and Richard A. Buckner, the following slaves, to-wit: Abram and Molly, his wife ; Ben, John, Spencer, Peter, Jack, Dick, Brent, George, Manuel, Spencer, (son of Nancy,) Lucinda, Nancy, Ellen, Maria, Lydia, (daughter of Lucinda,) and Jane, and their future increase : To have and to hold the said slaves and their increase to the intents, uses and purposes following, to-wit: That the said Stanton Buckner and Richard A. Buckner are to retain the title and possession of said slaves and their increase, and to permit the full benefit of their labor and hire to be applied to the support and maintenance of the said Isaac and his wife, for and during their natural lives, and for the support, maintenance and education of their said children. At any time that the said Gibbons and wife may choose to deliver any of said slaves to any one of their children before mentioned, on being requested by the said Gibbons and wife, the said trustees, jointly or separately-, are to permit such child to take said slave or slaves so designated, and to charge them at a fair valuation to such child, taking care not to permit any child to take more than what may be supposed to be his or her equal part; and at the death of said Gibbons and wife, whatever may still remain on hand, not so disposed of, is to be divided among the said children, so as to make their respective parts as nearly equal as possible. To Elizabeth L. Williams, daughter of said Isaac, be has already given a negro man named Robert, and a negro woman named Lydia, which were estimated at one thousand dollars at the time they were given. If the parts of said negroes and their increase, which may be given to each of said children named above; be more than equal to the value of the two given to said Elizabeth L. Williams, at the time they were so given, such child so receiving shall pay or secure to be paid to said Elizabeth, so much as will make the part of said Elizabeth equal to any one of the other children first named, or said part may be retained, so as to make said Elizabeth’s equal to the respective parts of the other children, the design being to make all the children equal in their respective parts, including the said Elizabeth. In testimony whereof, the said Gibbons hereunto sets his hand and affixes his seal, the day and year first above written. “IsaaoB. Gibbons, (seal.)
“Test: Aylett Buckner, Arthur P. Buckner, Kentucky.”

This deed was proved and recorded in the office of the clerk of the county court of Green county, Kentucky, in the manner shown by the following certificate endorsed thereon :

“ I, John Barret, clerk of Green county court, do hereby certify that this deed of gift from Isaac B. Gibbons to Stanton Buckner and Richard A. Buckner, trustees for Louisa B. Gibbons, Judith Presley Thornton Gibbons, Morris Gibbons and Caroline Aylett Gibbons was, on the 31st day of July, 1829, presented to me in my office, and proven by the oath of Aylett and Arthur P. Buckner, the two subscribing witnesses thereto, to be the act and deed of the said Isaac B. Gibbons ; whereupon, the same, together with the foregoing certificate, is truly recorded in said office. Given under my hand this 18th of September, 1829.
“ John Barret,'
“ By James J. Allen, D. C.”

Some time in March, 1831, the said deed was again acknowledged before Theodore Jones, recorder of Marion county in this state, and recorded in his office, in conformity to the laws of this state. Isaac B. Gibbons removed with his family from Green county, Kentucky, to Marion county, Missouri, in the fall of the year 1829, bringing with him the most of the slaves mentioned in the deed of trust.

After his reaching Missouri, he contracted debts, on which judgments were after a while obtained, and executions were had against him and levied on some of the said slaves.

On the 14th of March, 1831, I. B. Gibbons sold to the respondent, Moses Gentry, the negro woman, Nancy, one of the slaves in question, and her child, and with the consideration money received paid off the executions. Gentry immediately took possession of Nancy and her child, and has held them and other children, born of Nancy since, up to the commencement of this suit, which the plaintiffs bring, upon the ground that the sale to Gentry was in violation of the trust, and passed no title as against the appellants. Isaac B. Gibbons died in 1848, having survived his wife. Richard A. Buckner died in Kentucky in 1848 or ’49.

The respondent stated in his answer that, prior to the purchase, he had heard of the deed of trust, and on inquiring of Stanton Buckner, was assured of its existence, but that said Buckner told him it was a sham business, prepared by the friends of Gibbons, who was addicted to drinking, to prevent his wasting his property. After this, he agreed to buy the ne-groes of Gibbons, if Buckner and Williams would join I. B. Gibbons in the bill of sale, which they did. Gentry insists, in his answer, that the deed of trust was never delivered, never legally acknowledged or recorded in Kentucky; denies that by such deed any interest passed to the appellants under the laws of Kentucky; that if said deed was executed, it was made with intent to defraud the creditors of Isaac B. Gibbons, who was indebted at the time. He insists that the bill of sale pass-, ed the title not only of Gibbons, but of his wife and children. He also relies on the statute of limitations of five years. On the trial, the appellants were forced to a nonsuit by the ruling of the court below.

On the argument in this court, several questions have been made, which it is proper to notice; for, although the judgment below must be affirmed, on the ground of the suit not being brought by the proper parties, still it has been deemed by the court most advisable to give our views of some of these questions, should the parties interested see fit to renew the suit in proper mode hereafter.

From the ruling of the court below on several of the instructions asked, it is plainly to be seen that, in the opinion of that court, the deed of trust from Gibbons to the Buckners is void per se — void on its face. This, in the opinion of this court, is wrong ; the deed is not void upon its face. No one will pretend to deny the power of Gibbons to convey this property to trustees for the benefit of his wife and children, if he had no creditors ; and should have the’deed acknowledged and recorded as the statute of Kentucky required. We will not pretend to give any opinion in relation to the statutes of 50 Edward III, ch. 6, and 8 Henry VII, ch. 4, being in force in Kentucky or not. Nor will we give any opinion of the laws of Kentucky bearing on this subject, further than to say that we consider the acknowledgment before the deputy clerk and his certificate sufficient, (Moore v. Farrow, 3 A. K. Marsh. 41.) We do not .feel disposed to lay down the rules of law which may hereafter be invoked in this case; nor to express our opinion whether the intention expressed by the deed in question would be carried out by the principles of the common law or not. We say the deed is not fraudulent on the face of it — not a fraud per se ; that it is properly acknowledged and certified by the deputy clerk; that the question of fraud made by the answer should have been submitted to the jury under proper instructions from the court.

There are cases certainly where it would be proper for the court to declare that -a deed is fraudulent on its face. But the case should be a strong one to call for the exercise of this power. Fraud is so much a question of intention, so essentially a matter of fact, that it is better, in a majority of cases, to refer its existence or non-existence to the finding of a jury.

Tbe old doctrine of fraud per se, once so familiar, bas been greatly modified, .and tbe courts are growing less inclined to administer its basty conclusions, always severe, and sometimes unjust. In this instance, there is nothing on tbe face of tbe deed showing fraud, or authorizing tbe court to declare it void. Rut it is entirely proper for tbe defendant to show, if be can, that, in point of fact, tbe deed was made with tbe fraudulent intent charged in his answer; also, if I. B. Gibbons did, soon after tbe execution of this deed, voluntarily pay off all bis creditors, tbe fact ought to be received as competent evidence in reference to tbe motive with which be is charged in making tbe conveyance.

Tbe plaintiffs show a deed of trust by which tbe legal title to the property appears not in them at least. Now these trustees, if they accepted tbe trust, must sue if they are alive. If they did not accept the trust, or will not sue, then the petition must be framed for tbe appointment of a trustee, or that tbe court shall direct tbe execution of tbe trust. These were tbe views entertained by this court at tbe last term, and should then have been given. However, I now deliver them as tbe opinion of Judge Scott, Judge Gamble and myself, tbe judges before whom tbe case was then argued.

The judgment of non-suit is affirmed.


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    Miller, Appellant, vs. B. F. & J. Thurmond, Respondents.
    1. Under the first section of the fourth article of the practice act of 1849, the jurisdiction of courts, in suits where land is the subject of litigation, depends exclusively upon the residence or presence of the parties, and not upon the location of the land. That section repeals the second section of the first article of the act concernirg practice in chancery, (R. C. 1845.)

      Appeal from Franklin Circuit Court.

    ■Suit to obtain tbe legal title to land in Franklin county. Tbe defendants filed a plea to the jurisdiction of tbe court, upon tbe bearing of which, it was admitted that one of the defendants resided in Green county, in this state, where the sum.” mons was served upon him, and the other in California; whereupon the suit was dismissed, and the plaintiff appealed.

      Stevenson, for appellant.
    Suits concerning real estate must be brought in the county where the land or the greater part thereof is situate. (R. C. 1845, Practice in Chancery, art. 1, sec. 2.) This provision is not repealed by the new practice act. (Art. 30, sec. 4.)

      C. Jones, for respondent.
   Leonard, Judge,

delivered the opinion of the court.

Under our new practice act, (art. 4, sec. 1,) the jurisdiction of the court is made to depend exclusively upon the residence and presence of the parties, without any reference to the position of the land sued for, when land is the subject of the suit, and the consequence is, the old statute rule in relation to equity suits affecting real estate, prescribed by the second section of the first article of the revised chancery practice act of 1845, is repealed.

Here, one of the two defendants was a non-resident of the state, and the other resided in Green county, where he was served with process, and the suit was brought by a resident of Franklin county for land there. In such a case, by the express words of the law, the suit must be either in the county in which the resident defendant resides, or in the county in which the plaintiff resides, and the resident defendant is found ; and here, of course, it was improperly brought in Franklin county,'where, although the plaintiff resided, the defendant was not present to be served with process.

The judgment is affirmed.


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    Phelps, Appellant, vs. Relfe, Respondent.
    1. P. gave a note, with E. &. E. as his sureties, to whom he executed a mortgage on real estate for their indemnity. R. & E. subsequently paid the note in equal proportions. E. afterwards purchased P.’s equity of redemption in the real estate under execution. There was an understanding between E. & E. that the purchase was on their joint account, but the deed was made to E. and it did not appear that R. was in a situation to enforce the agreement. In a suit by P. against R. for the statutory penalty for refusing to enter satisfaction of the mortgage, and to compel him to deliver up the note in his possession to be cancelled, held, that it could not be maintained.

      Appeal from Washington Circuit Court.

    This was an action brought to recover the statutory penalty for a refusal to enter satisfaction of a mortgage, and to compel the defendant to deliver up a note to be cancelled. The facts-are stated in the opinion of the court.

      M. Frissell, for appellant.
    The purchase under execution by Evans & Relfe of Phelps’ equity of redemption esrtin-guished the mortgage and with it the mortgage debt. (1 Hil-liard on Mortgages, 329, §61, 330, §64. 2 Ib. p. 1 and' 2.)

      J. W. JVoell, for respondent.
    1. As the mortgagor had no interest remaining in the mortgaged property, he could not be aggrieved by a failure to enter satisfaction. (R. C. 1835 and 1845, tit. “Mortgages.”) 2. The facts shown do not constitute a satisfaction of the mortgage.
   Ryland, Judge,

delivered the opinion of the court.

Some time in February, in the year eighteen hundred and. thirty-four, the plaintiff, Timothy Phelps, borrowed of Washington county the sum of four hundred dollars, for'the payment of which he executed his note, with James H. Relfe and James C. Johnson his sureties. At the same time, the plaintiff, in order to secure his said sureties, executed to them a mortgage on a certain tract of land situated in the county of Perry, containing two hundred and thirty-eight acres and nineteen hundredths, originally confirméd to Noel Hornback, and numbered on the official plat 377. This mortgage was shortly after its date duly recorded in said county of Perry. James S. Evans was subsequently substituted for said James 0. Johnson. In November, 1839, an execution was issued in favor of Austin H. Hawkins against the plaintiff, Phelps, and was by the sheriff of Perry county levied upon the land above described ; and on the 23d of March, 1840, the said sheriff sold all the right, title and interest of the plaintiff in and to said land, and said James S. Evans, who had been substituted in place of the surety, Johnson, became the purchaser thereof. This purchase by Evans was with an understanding on the part of Relfe to be on their joint account. The deed was made to Evans alone. Relfe and Evans afterwards disagreeing in regard to the manner and terms of the purchase, Evans has never made Relfe any title to any part of the land, but retains the whole himself. The defendant, Relfe, and the said Evans have each paid one half of the amount due on the said note to the county of Washington. The defendant, Relfe, has never received any thing for the money which he paid to Washington county as surety for Phelps, unless the above purchase of Phelps’ land by Evans is held to be such. The land, at the time of the purchase thereof by Evans, was supposed to be worth from eight to ten dollars per acre ; but after the flood in the year eighteen hundred and forty-four, and down to the trial of this ■suit, was worth not more than two dollars and fifty cents per ¡•acre. On or about the 30th day of December, 1851, the plaintiff requested the defendant to enter satisfaction on the margin • of the record of said mortgage, which the defendant has hitherto failed to do.

This suit is for the penalty prescribed by the statute for failing to enter satisfaction on the margin of the record of a mortgage, when it has been paid ; also to compel defendant to bring in the note to Washington county before the court to be can-celled, so far as regards the rights of the defendant, Relfe, ¡and for other and general relief.

These are the facts substantially as found by the court, and upon these facts, the Circuit Court refused to give the plaintiff any relief, and entered a decree for the defendant. The plaintiff thereupon prayed for an appeal, and brings the case here for further adjudication.

1. The statute concerning mortgages, (R. C. 1845,) which was the law in force at the time the request in this case was made to have satisfaction entered on the margin of the record, declares, in section 22 : “If any mortgagee, his executor or administrator or assignee receive full satisfaction of any mortgage, he shall, at the request of the person making the same, acknowledge satisfaction of the mortgage on the margin of the record thereof, or deliver to such person a sufficient deed of release of the mortgage.” See. 23. “ If any such person thus receiving satisfaction do not, within thirty days after request, acknowledge satisfaction on the margin of the record, or deliver to the person making satisfaction a sufficient deed of release, he shall forfeit to the party aggrieved ten per cent, upon the amount of the mortgage money absolutely, and any other damages he may be able to prove he has sustained, 'to be recovered in any court of competent jurisdiction.”

Sec. 24 declares the effect of such acknowledgment of satisfaction thus made, and of such deed of release acknowledged and recorded, to be, “ to release the mortgage and bar all actions brought thereon, and reinvest in the mortgagor or his legal representatives all title to the mortgaged property.”

How can the mortgage in this case be considered satisfied? Only by reason of the purchase by the mortgagee of the mortgaged premises, and this purchase can be considered a satisfaction of the mortgage, alone because it vests in the mortgagee the mortgaged property. Would it not be a strange proceeding to require a mortgagee, who is paid in this manner, to acknowledge satisfaction on the record and thereby restore the property received to the mortgagor ? Such is the glaring absurdity of the case upon which this plaintiff seeks not only relief, but insists upon the imposition of a penalty upon another.

The principle is well established that the purchase by the mortgagee of the equity of redemption in the mortgaged premises extinguishes the mortgage debt, and the effect is the same, whether the purchase is by a direct contract with the mortgagor or at a sale of the land by execution under a junior judgment. (1 Bailey’s Eq. Rep. 338. 2 Cow. Rep. 300.) In this case, however, the court is not to be understood as expressing the opinion that the matters set up and found as above, constitute any payment of the mortgage, as against Relfe. It is enough to say, if they did, that would be the very reason why the plaintiff should not have the relief he seeks.

The judgment is affirmed; the other judges concurring.


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    Chouteau’s Executor & others, Appellants, vs. Burlando & others, Respondents.
    1. D. was originally the owner of 10,256 arpens of land, out of which he had conveyed 4000 arpens to his son, and afterwards mortgaged 4426 arpens described as his remaining interest in the tract. A sheriff’s deed subsequently conveyed all his interest in the whole tract except 4426 arpens described as sold by the sheriff at a previous term of the court, of which previous sale there was no evidence in the record. Held, the sheriff’s deed passed no interest in the 4426 arpens covered by the mortgage.
    2. The omission of the officer taking the acknowledgment of a mortgage to certify to the personal identity of the grantor, can only be taken advantage of by a subsequent purchaser for a valuable consideration.
    3. The lapse of thirty years held no bar to the foreclosure of a mortgage upon wild and unimproved land, where neither mortgagor nor mortgagee had been in possession, there being evidence that the mortgagor abandoned all claim to the land after executing the mortgage, and that the mortgage debts were unpaid. A mortgage may be enforced so long as it is available, although the debt secured by it is barred by the statute of limitations.
    4. As by our sfatule the letters of an administrator are revoked by the fact of his becoming a non-resident, he cannot afterwards be made a party to a suit in his administrative capacity.

      Appeal from Ste. Genevieve Circuit Court.

    This was a petition filed in March,1854, to foreclose amort-gage executed by Pascal Detchemendy to Pierre Chouteau and others in 1822, to secure various debts owing to the mortgagees in severalty. The mortgage is the same referred to in the cáse of Moreau v. Detchemendy, (18 Mo. Rep. 522.) The plaintiffs were the mortgagees or their personal representatives, and the defendants were the administrator and heirs of Pascal Detchemendy, the claimants of the land, and a portion of the mortgagees or their representatives, who refused to join as plaintiffs. Upon the filing of the petition, it appearing that John L. Detchemendy, who had been the administrator, and was also an heir of Pascal Detchemendy, was a non-resident, an order of publication was made by the clerk in vacation, notifying him of the institution of the suit.
    The claimants of the land answered that they were purchasers for a valuable consideration, without notice of a subsisting mortgage ; and that the claims of the plaintiffs were barred because not presented for allowance against the estate of Pascal Detchemendy within the time prescribed by law, and also by the statute of limitations. The trial was by the court without a jury.
    It appeared that Pascal Detchemendy, being the owner of three adjoining surveys of land on the river Establishment, containing about 10,256 arpens, by two deeds dated respectively July 20th and September 21st, 1821, conveyed to his son, Clement Detchemendy, 4000 arpens, to be so taken as to embrace certain mills and other improvements on the west end of the tract, reserving to himself a life estate in twenty arpens, including the house in which he lived. Subsequently, on the 27th of June, 1822, he executed the mortgage in question, .in which the land conveyed was described as 4426 arpens which remained to him after the conveyances to his son. The certificate of acknowledgment to this mortgage did not state that the party executing the same was personally known to the officer. On the 16th o£ July, 1823, after a sale under an execution against Pascal Detchemendy, the sheriff executed to the purchaser a deed, which, after reciting that the execution had been levied upon “ all the right, title, interest and property, which the said Pascal Detchemendy had in and to a certain tract of land known as the large survey of Pascal Detchemendy, said to contain 10,256 arpens (except 4426 arpens sold at sheriff’s sale at the last term of the Circuit Court of Ste. Genevieve,') situated on the river Establishment,” conveyed “all the right, title and property of him, the said Pascal Detchemendy, in and to the aforementioned premises.” There was no evidence in the record of any previous sheriff’s sale. All the title acquired by the sheriff’s deed was conveyed to> Clement Detchemendy on the 2d of February, 1827. Clement took possession of the mills in 1821, after the deeds from his father, and continued in possession until 1839, cutting wood on the whole tract, but up to 1835, claiming only 4000 arpens under the two deeds from his father, and his father’s life estate in the twenty arpens under the sheriff’s deed. In 1835, he acquired a tax title, after which he claimed the whole tract. The tax title consisted of two deeds, which described the land conveyed as “ 2602 acres of land, being part of 6002 58-100 acres, in township 37 and 38, of range 7, survey number 884 assessed in the name of Pascal Detchemendy, and originally claimed by Francis Moreau, and situate on Establishment; and 1361 12-100 acres of land, being survey number 2060, in township 37 of range 7, on Establishment, assessed in the name of Pascal Detchemendy under Francis Poilivre ; and 1361 12-100 acres, being survey number 2059, in township 37 of range 7, on the Establishment, assessed in the name of Pascal Detchemendy and originally claimed by him.” In 1836 and 1839, Clement Detchemendy conveyed all his interest in the entire tract to Joseph Boullier and Joseph T. Landry, whose title was afterwards acquired by the defendants, Dah-mon, Mailer and Burlando. The parties succeeding Clement Detchemendy had a possession of the same character as his.

      Pascal Detchemendy continued to live in the house reserved in his deeds to his son until 1825, cutting wood over the whole tract, when he removed to Washington county, where he died in 1844. There was evidence in the record that he did not pay taxes on the land after executing the mortgage, and of declarations by him that he had given up the 4426 arpens to his creditors. The eastern end of the tract, supposed to be covered by the mortgage, was a pine forest, wholly unimproved, and was not sufficient to pay the mortgage debts. There was evidence tending to show that the debts had never been paid. Clement Detchemendy testified that his father was never able to pay them, and that some years after he removed to Washington county, he expressed dissatisfaction that the mortgagees did not proceed and sell the land under the mortgage. None of the mortgagees or those claiming under them were ever in possession of the land, or/ever openly asserted any claim to it, although most of them resided in and near Ste. Genevieve county from the date of the execution of the mortgage. Clement Detchemendy stated that he had paid one of the debts secured by the mortgage since quitting possession of the land.
    Upon the above facts, the Circuit Court declared that the plaintiffs could :not maintain their suit.

      G. E. Young, for appellant.
    I. The presumption of payment from lapse of time is not an absolute bar to the foreclosure of a mortgage, but may be rebutted by evidence. (2 Hilliard on Mort. 3 and 5. 10 Johns. Rep. 414. 3 Johns. Dig. 311. T Wend. 94. Cowper, 109.) II. The proof in this case repels any such presumption. 1. Because P. Detch-emendy was insolvent and never able to pay. (Cowper, 109. 12 Yesey, jr., 266. 1 Bay, 482.) 2. There was not twenty years possession by the mortgagor or any one claiming under him. (Angel on Adverse Enjoyment, 62. 5 Wend. 295.) 3. There was payment of pne of the mortgage debts within ■twenty years. 4. The mortgagor acknowledged the debts to subsist within twenty years. (2 Cox, 295.) 5. Because proceedings at lav/ had been instituted by some of the creditors within twenty years, as admitted in the answer. 6. Because the mortgaged premises were wild and unproductive lands, and not at any time heretofore of sufficient value to pay the debts. (10 Johns. Rep. 417.) 7. Because of the great number of creditors interested in this mortgage. (Hill on Trustees, 266.) III. There never has been any possession of the mortgaged premises, since Pascal Detchemendy left in 1825, by any one claiming under him or otherwise.

      Rozier, Frissett, JYoell and Perryman, for respondents.
    1. The mortgage set up by plaintiffs is barred by lapse of time. It is more than thirty years old, and unsupported by a single act of possession during all that time. (2 Hilliard on Mortgages, p. 7, §14, p. 10, §24. 5 Johns. Ch. Rep. 552. 4 Paige, 441.) 2. The facts in proof are not sufficient to rebut the presumption of payment arising from lapse of time. There was no proof of possession by the mortgagees, no payment of interest, and no recognition by the mortgagor of the existence of the mortgage within twenty years. 8. The mortgage, not being properly acknowledged, did not operate as constructive notice to purchasers, and therefore is not binding upon the respondents. 4. The general principle that the lapse of twenty years after a right of action accrues raises the presumption of payment applies as well to mortgages as all other sealed instruments, and that, without reference to any question of fact as to possession. Possession by the mortgagee must be shown affirmatively to rebut this presumption, and it does not devolve on the mortgagor to show an adverse possession.
   Scott, Judge,

delivered the opinion of the court.

1. The sheriff’s deed under the judgment and execution of Menard did not embrace 4426 arpens of the grant to Pascal Detchemendy. This quantity was expressly excepted, and whatever may be the operation of that deed in other respects, yet, being the conveyance of a public officer, acting in invitum on the rights of others, by no rule of construction applicable to the voluntary grants of private persons, can it be made to pass an interest which, by the very terms of the instrument, was not designed to be conveyed. This consideration disposes of the defence set up by the respondents, that they are purchasers for a valuable consideration without notice, as it appears that they have not and never had any other than the tax title to the land in controversy. If the defendants mean to rely on their tax titles, then they must be presented to the court in such a manner as that a satisfactory judgment can be pronounced upon their validity. As the record now stands, the deeds conveying those titles play no other part than to confuse and embarrass a record already sufficiently entangled and difficult to be unravelled. It does not appear whether or not those deeds cover the land in controversy.

2. It disposes, too, of the objection raised on the finding of the fact by the court that there was no declaration of a knowledge of the personal identity of the mortgagor by the officer talcing the acknowledgment, as they, not being subsequent purchasers of the land mortgaged, cannot be affected by the omission.

3. The facts, as stated in the record, do not warrant the conclusion to which the court came in relation to the right of the plaintiffs to foreclose. Although a debt is barred by the statute of limitations, so that an action cannot be maintained to recover it, yet, if that debt is secured by a mortgage, its payment may be enforced, so long as the mortgage is available. (Angel on Lim. 77-8.) An important consideration is, that the land was wild and unimproved. The portion of the large grant on which the mortgagor resided, which, however, was no part of the mortgaged premises, was abandoned by the mortgagor a few years after the forfeiture of the mortgage, and he never returned to it. The mortgagor complained of the delay in foreclosing the mortgage. His own son testified to his inability to pay his debts. There was no possession by the mortgagor, in the sense that is required, in order to raise the presumption of satisfaction of the debts. Under the circumstances, it is as fair to presume that the mortgagee was waiting f.or an enhancement of the value of the mortgaged premises, as they were insufficient to satisfy the debts, as to presume the satisfaction of the mortgage from the delay in bringing suit. Neither party was in possession. The land was wild and uncultivated. In such case, the most natural presumption would be, that things continued as they were at the beginning.

As Pascal Detchemendy died in the year 1844, we may suppose that the debts were all barred at that date, so that an action at law could not be maintained for their recovery. No inference, therefore, unfavorable to the mortgagees, can arise from their failure to present them to the administrator for allowance, even had there been assets in his hands sufficient to satisfy them.

After twenty years' possession by the mortgagee, the burden is on the mortgagor to show that such length of possession does not bar a right of redemption. The mere declarations and conversations of the mortgagee in possession, have not been received to destroy the presumption of payment arising from twenty years’ possession. (Angel on Lim. 497.) But when declarations and conversations come in aid of the fact of abandonment of the mortgaged premises, which is open and notorious, there would seem to be no impropriety in receiving them.

So, on the other hand, where the’mortgagor has been permitted to retain possession, the mortgage will, after a length of time, be presumed to have been discharged by payment of the money or a release, unless circumstances can be shown sufficiently strong to repel the presumption, as payment of interest, a promise to pay, an acknowledgment by the mortgagor that the mortgage is still existing and the like. (Hughes v. Edwards.) In the absence of all possession by the mortgagor or the mortgagees, it is obvious that these principles have nothing to do with the case under consideration,

4. It is strange that an order of publication should have been made against John L. Detchemendy, as non-resident administrator. The 58th section o£ the 1st article of the act concerning administration, enacts that letters of administration, in no case, shall be granted to a non-resident, and when an executor or administrator shall become non-resident, his letters shall be revoked. If the administrator, as such, was a necessary party to the suit,, the proper course to be pursued was, to have the first letters revoked and another administrator appointed. The administrator not having been properly a party before the court, no judgment affecting the estate of which he was administrator, can be rendered against him for costs or any other thing.

The judgment will be reversed, and if there is any thing in the tax titles of the defendants, they can in a future trial be presented in an intelligible way. The other judges concur.


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    The State, Plaintiff in Error, vs. Searcy, Defendant in Error.
    1. The law prohibiting the sale of liquor (R. C. 1845,) without a license is constitutional.

      Error to Monroe Circuit Court.

    The case is stated in the opinion. Written arguments on behalf of the state were filed by Mr. Carr and Mr. Clover. There was no appearance for the defendant.
   Ryland, Judge,

delivered the opinion of the court.

At the June term, 1854, of the Circuit Court within and for Monroe county, the grand jury indicted the defendant, Searcy, for selling intoxicating liquors in quantities less than one quart, without a license. This indictment was found upon a violation of the act of 1845, entitled “ An act to regulate groceries and dram-shops,” approved March 25, 1845.

The defendant appeared and moved the court to quash the indictment, assigning for reason, that the first and third sections of the said act were repugnant to the constitution of the state. This motion was sustained, and the defendant discharged. The State duly excepted to the decision of the court, and brings the case here by writ of error.

The only question before us is that involving the constitutionality of this statute. The first and third sections are as follows: Sec. 1. “No person shall directly or indirectly sell intoxicating liquors without taking out a license as a grocer or dram-shop keeper.”

Sec. 3. “No grocer shall, directly or indirectly, sell intoxicating liquors in any quantity less than a- quart, nor shall he permit any intoxicating liquors sold by him to be drank at his grocery, or at any place under his control.”

Sec. 4. “ A dram-shop keeper is a person permitted bylaw, being licensed according to the provisions of this act, to sell intoxicating liquors in any quantity less than a quart.” This last section has been repealed by an act passed in 1849, approved March 12, by which last act a dram-shop keeper is permitted to sell intoxicating liquors in any quantity less than ten gallons at any one time.

The nineteenth section of the act of 1845 fixes the penalty for a violation of the provisions of the act at not less than twenty nor more than one hundred dollars.

There is no provision of the constitution of the state of Missouri which denies to the legislature the power of enacting this statute. This statute is nothing more than an assertion in part of what is called or known familiarly as the police power of a state; a power to preserve the peace, promote good morals, restrain vice, and protect the property and health of the people. That the several state governments have exercised these and kindred powers to the very amplest extent, from the earliest period of their existence, is matter of history.

A similar statute in New York has been held not to conflict with the constitution of the United States. (See Ingersoll v. Skinner et al., 1 Denio, 540.)

In the case of the Commonwealth v. Kimball, (24 Pick. 859,) the Supreme Court of Massachusetts held that the statute requiring a person to be first licensed as a retailer of spirits, before he could presume to sell in a less quantity than twenty-eight gallons, was not repugnant to the constitution of the United States. Chief Justice Shaw says, in delivering the opinion of the court in this case : “ The power to pass la^s for regulating licensed houses, as one of the powers of general police, is clearly vested in the state, and is as clearly not vested in the general government. But in carrying into effect a law flowing from one of the acknowledged powers of a state, they may resort to means, which, in their operation, would oppose or impede a law of the United States, made in pursuance of its acknowledged powers. In such case, the law of the state must yield, so far as it can have this effect. But such conflict is not to be presumed, but, on the contrary, it must be clearly shown and established. In the present case, it is not shown, nor can we presume that the law regulating the sale of spirituous liquors by retail, and confining the power to sell in that form to those who shall first have obtained the recommendation of the proper oflicers for that employment, will frustrate, defeat or impede any law of the United States.”

The State v. Muse, (3 Dev. & Bat. 319 :) A statute of North Carolina, prohibiting the sale of spirituous liquors and other articles, except by licensed stores and taverns, near a church or meeting house, or other place of divine worship, was, by the Supreme Court of that state, held to be constitutional.

License cases, 5 How. Sup. Ct. U. S. Rep. 504 : The liquor laws of Massachusetts, New Hampshire and Rhode Island declared constitutional. The design of these laws was manifestly to prevent tippling and disorder by promoting temperance and sobriety; obviously a part of the system of internal police of every well regulated government.

The Supreme Court of Alabama held that a power granted to the corporation of the city of Mobile “to license bakers and regulate the weight and price of bread, and prohibit the baking for sale,” except by those licensed, is not contrary to the constitution of the state. (See Mayor and Aldermen of Mobile v. Yuille, 3 Ala. 137.) The Supreme Court of Tennessee held that the legislature had the power, under their state constitution, to prohibit, in general, the keeping of stallions and jacks for purposes of profit in the propagation of stock,; and also to prohibit, in general, the exhibition of shows, and yet concede these privileges to all those who shall apply for a license and pay for the privilege the amount specified by law. (Mabry et al., v. Tarver, 1 Humph. 94. 12 Conn. 7. 8 Ohio, 521. 3 Smedes & Marsh. 584. 7 How. Sup. Ct. U. S. Rep. 283, Passenger cases. R. M. Carlton’s Rep. 26.) And it is believed, when such powers are denied to the legislative departments of the states, there will be but little left for which their continued existence is at all important.

Questions have sometimes arisen in the courts as to whether a state statute had not been so framed as to constitute a regulation of commerce, in the sense in which that subject has been placed under the control and power of congress ; or so as to impose a duty on imports or exports, contrary to the provisions of the constitution of the United States. In the case of Crow v. State of Missouri, (14 Mo. Rep. 237,) the question was made at the bar, and discussed by the judges, whether a tax on an occupation, graduated by the amount of property on hand, might not be considered as a tax on the property itself, and if so, whether it should not stand affected by the provision in our constitution which requires the taxation of property to be in proportion to the value.

No such question arises here, and whatever may have been the conflict of opinion that has sprung up in our judicial tribunals, when other subjects have been brought into the scope of the controversy, there seems to be no room to doubt that the statute now under consideration would be promptly upheld by the supreme courts of every state in the Union.

That such a statute is not unconstitutional, has been already adjudged, in the following cases decided by this court: Austin v. The State, 10 Mo. Rep. 591. State v. Lemp, 16 Mo. Rep. 389. City of Hannibal v. Guyott, 18 Mo. Rep. 515. The Circuit Court therefore erred in sustaining the motion to quash the indictment. Its judgment is reversed and the cause remanded for further proceedings ; the other judges concurring.


author: Scott, Judge.

text:
    Ex Parte Mallinkrodt.
    1. A notary public has no power to commit a witness for refusing to produce books and papers under a subposna. duces tecum.

      Habeas Corpus. From the jailor’s return to a wfit issued by this court, it appeared that the petitioner was in custody under a mittimus issued by a notary public of St. Louis county, for an alleged contempt in not producing certain books and papers in obedience to a subpoena duces tecum issued by the notary, before whom he had been summoned to give his deposition as a witness on behalf of the plaintiffs in a certain cause pending in the St. Louis Circuit Court. The mittimus set forth that the petitioner admitted having the books and papers in his possession when the subpoena was served upon him, and that he had since delivered them to one of the defendants, to avoid the necessity of producing them at the taking of his deposition, whereupon the notary committed him to 'jail, there to remain until he should produce them, their materiality being made to appear by the affidavit of the agent of the plaintiffs.

      Kribben and Henning, for the petitioner.
   Scott, Judge.

The act of 18th February, 1847, empowered notaries to take depositions under the act concerning “ Depositions, ” approved January 17, 1845. The fifteenth section of the act referred to authorized the officer empowered to take depositions, to compel the attendance of witnesses, in the same manner and under the like penalties as any court of record of this state.

The eighth section of the act concerning witnesses provides that any person summoned as a witness and attending, who shall refuse to give evidence, which may lawfully be required to he given by such person, may be committed to prison by the person authorized to take his deposition.

The power of notaries, in taking depositions, is strictly statutory. They can do nothing not expressly authorized and under the circumstances which authorize it. There is no power given to an officer taking depositions to commit a witness for refusing to produce books. Powers in derogation of the liberty of the citizen must be strictly construed.

Let the prisoner be discharged, the other judges concurring.


text:
      Edgell, Respondent, vs. Sigerson, Appellant.
    1. In a pleading under the new practice, to avoid the estoppel of a judgment, it is sufficient to allege that it was obtained by fraud, without stating the facts which constitute the fraud.
    2. A judgment obtained by fraud is void.

      Appeal from St. Louis Court of Common Pleas.

    This was an action commenced in January, 1854, upon a note dated October 1, 1848, expressed on its face to bear interest from date, payable annually.- The petition stated that the plaintiff, in 1852, had commenced a suit against the defendant to recover the instalments of interest then due, in which the defendant had pleaded that the clause in the note specifying that interest was payable annually had been inserted after its execution without his knowledge, authority or consent, and that the plaintiff had recovered a judgment in that suit. This allegation in the petition seems to have been intended to estop the defendant from setting up the same matter as a defence in the present suit.
    The defendant answered, alleging that after he had executed the note, and after it had passed from his possession, the words “ with interest from date at six per cent, per annum, interest payable annually,” were fraudulently inserted in tbe note by tbe then bolder, without his knowledge or consent, and that it was subsequently transferred and delivered to tbe plaintiff ; and insisting that said fraudulent alteration rendered tbe note void. . He admitted tbe recovery of a judgment in a suit for interest, as stated in tbe petition, but alleged that “ said judgment was obtained by fraud and by perjury committed on tbe trial of tbe issues in tbe cause,” and was therefore null and void.
    This answer was stricken out on motion, and a judgment rendered for the plaintiff, from which tbe defendant appealed.

      Krum & Harding and ¿1. M. Gardner, for appellant.
    Fraud in the recovery of the judgment is distinctly alleged in the answer. If this were true, the judgment would constitute no bar to the defence set up. (1 New Hamp. Rep. 257. 15 Johns. Rep. 121.) This defence was well pleaded, (See v. Cox, 16 Mo. Rep. 166.)

      Shepley and Kasson, for respondent,
    among other points,, insisted that, under the new practice, one object of which was-to prevent delay and fictitious defences, the judgment which, would estop the plaintiff from setting up an anticipated defence-was properly pleaded in the petition, and that the allegation, of the answer that the judgment was obtained by fraud and perjury, without stating who was guilty of the fraud or in what it consisted, was not sufficient to avoid the effect of the judgment, being a conclusion of law and not a statement of facts. (Me-Murray & Thomas v. Gifford, 5 Howard’s Prac. Rep. 14.).
   Leonard, Judge,

delivered tbe opinion of tbe court.

1. This judgment must be reversed for the error of tbe court in pronouncing against tbe defendant as for want of an answer.

Without stopping to settle the propriety (which is certainly very questionable) of tbe mode of pleading adopted by. tbe plaintiff on tbe present occasion, in order to avail himself of tbe alleged estoppel by reason of tbe judgment, it is enough that tbe answer contains sufficient matter to avoid tbe estoppel-

In disregarding the answer, the court below appears to have gone upon the idea that, under the new system of pleading, the alleged fraud set up as a ground of nullity in the judgment was not well pleaded, on the score of its being a statement, not of the facts constituting the fraud, but of the conclusion of law upon the facts.

Under the former system, it was sufficient to state this matter in this general form. Fraud usually consisting of a great multiplicity of facts and circumstances, it was found by experience highly inconvenient, if not quite impracticable, to set them forth with particularity, and hence this general mode of stating such matter of defence forced itself into use, and was approved of by the courts. (Montgomery v. Tipton, 1 Mo. Rep. 318. Pemberton v. Staples, 6 Mo. Rep. 59. Hill v. Montague, 2 Maule & Selwyn, 377.) And we see no reason for holding otherwise under the new code, although we are .aware of .a decision to that effect in New York, under a similar -system. (McMurray & Thomas v. Gifford, 5 How. Prac. Rep. 14.) The common law definition of a pleading is, the statement, in a logical and legal form, of the facts which constitute the plaintiff’s eause of action or the defendant’s ground of defence, (1 Chit. Plead. 244,) which is the very language, so far as the present question is concerned, used by our code in defining a complaint and answer. Facts, and facts only, are to be stated. The pleader must not descend into a mere detail of the evidence, nor stop short at general conclusions of law, but must set down the issuable facts, and them only. This is the language of both systems, but it must be understood according to the necessities of the case to which it is applied. No system, it is believed, was ever yet put in practice in which the ultimate facts, as they actually took place, constituting the ■ cause of action or ground of defence, were, in all cases, without exception, required to be set forth. It would be utterly impracticable to do so. Indeed, perhaps the greater portion of the matters stated in pleadings are the legal results of what actually occurred, rather than the occurrences themselves, as they transpired, and tbis is so much tbe case, that it bas been said, these ultimate results are tbe true issuable facts, and constitute tbe only proper objects of averment in pleading.

Of course we do not mean to say that general pleading is admissible now, in like manner and to tbe same extent that it was under tbe old law; but only that there are cases now, as formerly, where it is practically impossible, owing to tbe multiplicity and minuteness of tbe facts and circumstances constituting tbe particular matter or point relied upon, to go further than to state the result, as the issuable facts in tbe pleading, and that tbe present case is one of that character.

2. If the judgment here relied on as an estoppel were obtained by fraud, it was void. (Farmer’s case, 3 Coke’s Rep. 77. State v. Little, 1 New Hamp. Rep. 257.) And as the answer insisted upon the invalidity of the note, on the ground of the alleged alteration, and avoided the estoppel by the alleged fraud, it contained a defence to the action, and ought not to have been treated as a nullity.

We express no opinion as to tbe proper mode of treating an answer which is so indefinite as not to indicate, with sufficient precision, tbe particular defence intended tobe relied upon, but only declare that this answer is sufficient in that particular, and therefore ought not to have been treated as a nullity.

Judge Ryland concurring,

the judgment is reversed and the cause remanded.


text:
    Almeida, Appellant, vs. Sigerson, Respondent.
    1. A party sued before a justice filed as an off-set an account exceeding the justice’s jurisdiction, but attempted to be brought within it by a credit for the amount of the plaintiff’s demand. Held, this could not he allowed as a set-off.

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

    Tbis action was commenced before a justice on an account for forty-seven dollars and thirty cents. Tbe defendant filed as an off-set a demand against the plaintiff for one hundred and thirty-seven dollars, upon which there was a credit for the amount of the plaintiff’s demand, leaving a balance due of eighty-nine dollars and seventy cents, for which amount the defendant had judgment in the commissioner’s court. The plaintiff filed a motion in arrest, which was overruled, and he appealed.

      S. Beber, for appellant.

      ¿3. M. Gardner, for respondent.
   Leonard, Judge,

delivered the opinion of the court.

The defendant’s set-off is founded on an account for $137, which he credits with $47 30, (the amount of the plaintiff’s account sued upon,) leaving a balance of $89 70, for which he asked and obtained judgment.

The objection is, that the amount claimed in the set- off exceeds a justice’s jurisdiction, which is the same in set-off as in an original suit, and therefore limited, in a case like the present, to a balance of not exceeding ninety dollars.

Although apparently within the words of the statute, the party is in effect sueing in set-off for the whole sum, ($137,) and asking that $47 30 of it may be applied in extinguishment of the plaintiff’s debt, and for a judgment for the whole amount claimed in his plea, as the balance ; and it is not, in truth, a cross action by way of set-off for a mere balance of $89 70. If the defence were pleaded in the words of a formal plea of set-off, this would appear plainly enough, as the prayer of the plea would be that so much of the balance ($89 70) now claimed, as should be necessary for that purpose, might be applied in extinguishment of whatever sum should be found due the plaintiff, and for a judgment for the residue, which, according to the words of the plea, would be what remained after a second deduction of the plaintiff’s demand.

It is an ingenious enough attempt to evade the statute, but it cannot be allowed to prevail.

The judgment is reversed, and the cause remanded.


text:
    The State, at the relation of Bates, vs. The St. Louis County Court.
    1. The provision, in the act establishing the St. Louis Land Court approved February 23,1853, that the judge should receive the same compensation as the judge of the St. Louis Court of Common Pleas then received means, not only that he should receive the same amount, but from the same sources.

    Edward Bates, Judge of the St. Louis Land Court, presented his petition for a writ of mandamus to the St. Louis county court, requiring the latter to allow and pay to him out of the county treasury such an amount as, together with two hundred and fifty dollars received from the state treasury and forty-one dollars received on account of judgment fees, would make up his quarter’s salary of seven hundred and fifty dollars ; or show good cause to the contrary. In answer to the writ, the county court appeared by attorney, and as cause for the refusal to pay, alleged that there -was no law of the state by which that court was authorized or required to pay or cause to be paid any portion of the salary of the judge of the Land Court.

      C. Gibson appeared for the relator.

      Jl. Todd, for the county court,
    insisted that the judge of the Land Court was a state officer, and of course to be paid out of the state treasury, it not being otherwise expressly provided*
   Scott, Judge,

delivered the opinion of the court.

By an act of the general assembly passed 23d February, 1853, a Land Court was established for St. Louis county. This court was required to be held by a judge elected by the qualified voters of St. Louis county. Edward Bates, the plaintiff, was elected to that office, and after being qualified, he entered upon the discharge of his duties. He has received a salary as judge, up to this time, the same in amount and payable in the same manner as the judge of the St. Louis Court of Common Pleas, the statute creating the Land Court enacting that the judge thereof shall receive the same compensation as th Judge of the St. Louis Court of Common Pleas. The judge of the Court of Common Pleas received at the date of the act referred to, as a salary, first, an annual sum of one thousand dollars, payable quarterly out of the state treasury; secondly, certain fees provided by the statute and taxed upon final judgments rendered in said court; and thirdly, an additional amount payable out of the county treasury, the whole compensation not to exceed three thousand dollars.

On the 5th of March, 1855, an act was passed directing that the judges of the St. Louis Circuit Court, the St. Louis Court of Common Pleas, and the St. Louis Criminal Court shall be each paid a salary of two thousand dollars out of the state treasury. Since the passage of this act, the county court of St. Louis county refuses to pay any portion of the salary of the judge of the Land Court, maintaining that the whole of his salary is of right payable out of the state treasury. For the purpose of determining this question, this writ of mandamus has been awarded, and the facts stated in the petition admitted by the county court.

1. It was contended on the part of the defendant that the judge of the Land Court is a state officer, and as such entitled to receive his salary from the state treasury as all other state officers ; that the act of the legislature creating the Land Court, in enacting that the judge thereof should receive the same compensation as the judge of the St. Louis Court of Common Pleas, intended merely to fix the amount of the compensation, leaving the payment thereof to be made, as the salaries of all other state officers, out of the common treasury.

There is one difficulty attending this view of the subject not easily to be overcome. Salaries are not of right payable quarterly. If an annual salary is given to an officer regularly, that salary is not payable until a year’s service is rendered. An express enactment is necessary to make it payable quarterly. If, in enacting that the judge of the Land Court should receive the same compensation as the judge of the St. Louis Court of Common Pleas, nothing more was intended by the general assembly than to fix the amount of the salary, then there would be no direction as to the manner of payment in point of time, and it could be drawn but once a year. Now we cannot suppose that the law designed to make the judge of the Land Court an exception to all the other officers of the state, and pay him his salary at the end of each year, instead of paying it quarterly as all other salaries are paid. This omission then would seem to imply that something more was intended by the reference to the salary of the judge of the Court of Common Pleas. If the mode of payment, as to time, was contemplated, what is to prevent us also from looking into the sources of the payment? Rut is a salary payable quarterly out of the state treasury the same as one of like amount payable out of the county treasuries of all the counties in the state ? Would an officer hesitate in making his choice between these salaries ? Is not one preferable to the other ? How then can we say that they are the same ? Is a salary payable quarterly the same as one for the like amount payable annually?

Rut if we regard the policy of the state as indicated by her legislation, it would be apparent that the general assembly never intended that the whole of this salary should be paid out of the state treasury. With the wisdom or liberality of this policy, we have nothing to do. Our province is, to administer the law in the spirit in which it is made. There are other judges in the state performing duties similar to those performed by the judges of St. Louis county. The legislature has evinced the intention to make the salaries of all the judges throughout the entire state of the same class, the same in amount, as far as they were payable out of the state treasury. It has been unwilling to' create dissatisfaction among some of the judges, and furnish them with a pretext for asking an increased compensation, by enlarging the salaries of the judges in any portion of the state out of the common funds. If an increase has been made in a salary, it has been at the expense of the county in which the court existed. The judges of the St. Louis courts, however urgent the reasons were, had been enabled to obtain an increase of their salaries, only throwing the burden of the increase on the suitors in her courts and her county treasury. This was the policy of the state at the time of creating the Land Court in St. Louis county. Now when we consider that this Land Court was established in St. Louis county, when, by the settled policy of the state, none of her judges were permitted to receive but a portion of their salaries from the common treasury, we are driven to the conclusion that the legislature, when it enacted that the judge of the Land Court should receive the same compensation as the judge of the St. Louis Court of Common Pleas (a court established for St. Louis, and a portion of whose salary only was payable out of the state treasury, intended not only that the salary should be the same in amount, but the same in all respects.

Although the office of judge of the St. Louis Land Court is an honorable and responsible one, yet there is nothing in its organization or the nature of the powers with which it is entrusted, that would necessarily warrant a difference, as to the mode of its compensation, between it and the other courts established in St. Louis county. There is no doubt if an office is created by law, and the salary of that office is fixed, and nothing declared as to the mode of its payment, that of right it would be payable out of the common treasury. But the case supposed is not this case. We consider that the mode of payment is designated in the act creating the Land Court, by the reference to the compensation of the judge of the St. Louis Court of Common Pleas, a court like the Land Court, that was established for St. Louis county, whose judge, by the policy of the state, was .not permitted to receive but a portion of his salary out of the state treasury; and because there is nothing about the Land Court which should, in this respect, distinguish it from all the courts established in St. Louis county, the salaries of whose judges are only in part paid out of the common funds of the state. The other judges concurring, a peremptory mandamus will be awarded.