text:
    Griffith, Respondent, v. Schwenderman, Appellant.
    1. I/eases to infants are not absolutely void; they are only voidable.
    2. Actual possession of part of a tract of land under claim and color of title to the whole is constructive possession of the whole as against all persons not having title; as against such person in possession of part, the constructive possession of the residue would lie in the true owner.
    3. Possession of a parcel that has been occupied for twenty years can not be connected with the possession for a shorter period of another tract so as to bring the latter within the operation of the statute of limitations.

      Appeal from St. Charles Circuit Court.

    This is an action of ejectment to recover possession of lot No. 28, in block No. 8, in St. Charles common. Plaintiff is an infant. She claims title under a lease made to herself on the 23d of October, 1856, by the city of St. Charles. This lease was made upon the surrender by plaintiff of a lease made by ihe trustees of the town of St. Charles on the 18th of June, 1831, to one Asa Griffith. The defendant claimed title by virtue of an entry, in the year 1836, in the United States land office at St. Louis, of the east one-half of the south-east quarter of section No. 34, in township 47, range 4. The defendant relied on the statute of limitations. The court ruled substantially' that actual possesion of part of the tract entered by defendant’s husband in 1836 did not amount to constructive possession of the whole as against plaintiff.

      U. Wright, for appellant.
    I. The court instructed the jury erroneously. (See 4 Bibb, 100 ; 5 Litt. 211; 4 Monr. 44; 2 Dana, 127 ; 4 Dana, 282 ; 7 Dana, 434; 2 B. Monr. 379, 430 ; 11 B. Monr. 98 ;' 12 B. Monr. 195; 2 Har. & Jo. 87; 10 Pet. 412; 11 Pet. 41; Angelí on Lim. 428, 429; 2 Marsh. 19; 3 id. 545; 9 B. Monr. 83.) The paper purporting to be a lease from the trustees, dated June, 1831, ought not to have been received in evidence. Plaintiff’s right accrued, if at all, in 1856. (2 Smith’s Lea. Oas. 539; 4 Bac. Abr. 217.) It was never executed by the corporation. It purports to be executed by the trustees, but is not signed by them, nor by any one legally authorized to sign. (R. C. p. 806; 19 Mo. 132; 1 Pars, on Contr. 118; Angelí & Ames on Corp. 293; 12 Wheat. 64; Comb’s case, 9 Co. 76, b.; 11 Mo. 209 ; 4 Bac. Abr. 140 ; 16 Mo. 42 ; 2 Cush. 337 ; Sto. on Agency, 147; 1 Amer. Lea. Cas. 577.) The assignment on its back was improperly read. The proof of its execution was defective. The damages should not have been computed further back than the demise laid in the petition.

      Krekel and Wells, for respondent,
    cited 9 Humph. 714; 1 Gratt. 225 ; 12 N. H. 9 ; 2 S. & R. 439 ; 4 id. 465 ; 3 Ired. 587 ; 7 id. 175 ; 20 Mo. 769; 5 Dana, 65; 1 Hill, 135 ; 2 Har. & Jo. 280 ; 20 Penn. 32.
   Scott, Judge,

delivered the opinion of the court.

The lease made by the city of St. Charles to the plaintiff on the 23d day of October, 1856, was at least binding on the city. It was signed, sealed and delivered, and passed title to the plaintiff. Leases to infants are not absolutely void; they are but voidable, and it is not for third persons to set up the defence of infancy. A deed might be in such terms as would induce a court to pronounce it void as to an infant. But leases to infants are, like all other contracts, void at their election. (Taylor’s Landlord & Tenant, 58.)

The damages recovered having been remitted, it will not be necessary to consider the question arising on the lease made to the ancestor of the plaintiff on the 18th June, 1831, as the lease subsequently made to the plaintiff in 1836 enabled her to maintain this action, the prior deed being only of avail in estimating the damages.

The plaintiff claims under a lease made by the city of St. Charles of a lot of her commons which were confirmed to her by the act of Congress of the 13th June, 1812. The defendant claims under an entry with the register and receiver of the United States long subsequent. It is not controverted but that the plaintiff had the better legal title. The defendant relies on the statute of limitations, and contends that, having been in the actual possession [of part] with a color of title to the whole, she is deemed possessed of the whole, and, twenty years having elapsed since her entry and her possession being adverse, the plaintiff can not maintain this action against her. The rule of law with which the defendant seeks to protect herself is only applicable to those disturbing her who have no title. Her title failing as regards the plaintiff, she can have no constructive possession as against her. It may be conceded that the plaintiff has no other possession than that legal constructive possession which in law always follows and accompanies the legal title; that she has had no actual possession. Yet the defendant having no title as against the plaintiff, her constructive possession, available against an intruder, can not prevail against the legal constructive possession of the plaintiff. Under such circumstances the defendant can affect the plaintiff’s possession only so far as there has been an actual adverse occupancy by her for twenty years — an adverse exclusive possession.

She can not connect a parcel that has been occupied for twenty years with a parcel that has been occupied for less time and protect them both by the statute. The authorities for this are abundant. (Burns v. Swift, 2 Serg. & R. 436; Angell on Limitations, 432; Bailey v. Carleton, 12 N. H. 13; Stewart v. Harris, 9 Humph. 714; Smith v. Ingram, 7 Ired. 175.)

The judgment will be reversed and a judgment entered here remitting the damages. Judgment giving the value of the monthly rents will be given from this time; plaintiff to pay costs of this court.

The other judges concur.


source: Caselaw Access Project

author: Richardson, Judge,

license: Public Domain

text:
    Bradley, Defendant in Error, v. Creath, Plaintiff in Error.
    1. The supreme court will not review instructions unless they are excepted to at the time they are given or refused.

      Error to Marion Circuit Gou/rt.

      T. C. Reynolds and Pratt & McCabe, for plaintiff in error.
    Dryden, for defendant in error.
   Richardson, Judge,

delivered the opinion of the court.

The only error complained of in this case is, that the court refused to give an instruction asked by the plaintiff, and though it was made the ground of a motion for a new trial it does not appear that an exception was taken at the time. It is the practice of this court not to review instructions unless .they were excepted to at the time they were given or refused. (Powers v. Allen, 14 Mo. 367.)

The other judges concurring, the judgment will be affirmed.


author: Scott, Judge,

text:
    Collins, Defendant in Error, v. Parker, Plaintiff in Error.
    1. Case affirmed.

      Error to Hannibal Court of Common Pleas.

      Porter & Harrison, for plaintiff in error.

      Lamb & Lakenan, for defendant in error.
   Scott, Judge,

delivered the opinion of the court.

The only question involved in this cause is one of fact— whether Richards, in sending the note to Indiana for collection, was acting as the agent for the plaintiff or defendant. The jury, under suitable instructions, having found a verdict for the plaintiff, we see no reason to disturb it. The instructions asked by the defendant and refused were substantially embraced in those given by the court.

The other judges concurring, the judgment will be affirmed.


author: Napton, Judge,

text:
    Field, Defendant in Error, v. Barr, Plaintiff in Error.
    1. Allegations of value in a petition are not admitted by a failure on the part of the defendant to deny them in an answer, or by a default; they are not material traversable allegations.

      Error to St. Louis Court of Common Pleas.

    The following is the petition in this case: “ Plaintiff states that defendant owes him three hundred and twenty-five dollars on account of thirteen gravel train or construction cars left by plaintiff with defendant, in May, 1854, for safe keeping. Plaintiff states afterwards defendant sold said cars and received the proceeds, to-wit, the amount above stated, which he has not accounted for, although demanded; that the same were worth said sum; and therefore he asks judgment.”
    Judgment by default was rendered against the defendant. The cause coming up for an inquiry of damages, the court instructed the jury that “ the defendant having failed to answer the plaintiff’s petition, the plaintiff is entitled to a verdict for the amount of the proceeds of the cars as stated in the petition, without any other proof, and also interest on that amount from the commencement of this suit.”
    N. Holmes, for plaintiff in error.
    I. The court instructed the jury erroneously. (Robinson v. Lawson, 26 Mo. 69; Wood v. Steamboat Fleetwood, 19 Mo. 530 ; Arnold v. Palmer, 23 Mo. 411; 18 Mo. 396 ; 11 Mo. 10.)

      Shreve, for defendant in error.
   Napton, Judge,

delivered the opinion of the court.

The instruction given in this case was erroneous. The defendant did not admit the value of the railroad cars, or the amount of money received from their sale. These allegations of value are not what are termed traversable, so as to conclude the opposite party if not answered. It was so held in the case of Wood v. Steamboat Fleetwood, 19 Mo. 531, and in a case where there was an answer and no denial of the allegation therein. A fortiori, it must be so where a default is taken for want of aii answer.

Judgment reversed and cause remanded;

the other judges concur.


text:
    Chick, Plaintiff in Error, v. Parker, Defendant in Error.
    1. In cases tried by a court -without a jury under the practice act of 1849, the court should find the facts.

      Error to St. Louis Land Cowrt.

      E. Bates, for plaintiff in error.

      Barrett, for defendant in error.
   Richardson, Judge,

delivered the opinion of the court.

This suit was commenced under the practice act of 1849 and was tried by the court without a jury. The record shows that the case was tried and judgment given without finding the facts, and for this omission the judgment must be reversed and the cause remanded. (Ragan v. McCoy, 26 Mo. 166.)

The other judges concur.


text:
    The State, Respondent, v. Warne, Appellant.
    1. The fifth section of the seventh article of the act concerning practice in criminal cases (E. C. 1855, p. 1196) is not applicable to prosecutions for assault and battery commenced before justices of the peaee; the jury, in the case of a conviction, must assess the fine to be paid. (See E. C. 1855, p. 979, § 11.)

      Appeal from St. Louis Criminal Court.

    This was a prosecution for assault and battery. The cause was taken by appeal to the St. Louis criminal court. The jury in the latter court returned the following verdict: “We, the jury, in the case of The State v. Thomas S. Warne, find the defendant guilty of assault and battery, and can not agree as to the penalty.”
    The court assessed the fine at one hundred dollars.

      J. C. Jones, for appellant.

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

delivered the opinion of the court.

The fifth section of the seventh article concerning practice in criminal cases does not extend to trials for assault and battery before a justice. The 11th section of the law specially applicable to this subject declares that all trials under it shall be by a jury, &c., who shall assess the fine, &c. (R. C. 1855, p. 979.) The court had no authority therefore to assess the fine in this case, and the judgment must be reversed. The instructions given in the case were correct. We pass by the oral remarks of the court in relation to one of the witnesses without comment, as it is not likely that they will recur upon another trial.

Judgment reversed and cause remanded.

The other judges concur.


text:
    Manny, et al., Respondents, v. Frasier’s Administrator, Appellant.
    1. A. and B. as partners owed a debt to C.; A. sold out his interest to D., who agreed with A. and B. to assume and pay the debt due C. Held, that C. could not maintain an action, in his own name, against D., on his said promise to recover the said debt.

      Appeal from Ralls Circuit Court.

    The plaintiffs in their petition allege substantially that the partnership firm of Bell & Stieknell was indebted to them on two promissory notes ; that Bell sold out his interest in the partnership to Erasier ; that Erasier on coming into the firm agreed with Bell & Stieknell to assume and pay certain debts of the firm, among others the notes due plaintiffs. Plaintiffs seek to recover the amount of said notes of the said Erasier’s administrator.

      Allen, for appellant.
    I. If defendant is liable at all, it is to Bell & Stieknell, and not to the plaintiffs. There is no privity of contract between plaintiffs and defendant. (Story on Contr. 549; 1 Strange, 592 ; 4 Seld. 207 ; 15 Georg. 321; 3 B. Mon. 356.)
   Scott, Judge,

delivered tlio opinion of tlie court.

This is not like the case stated in the books where A. owes B. and B. owes C. $100, and the three meet, and it is agreed between them that A. shall pay C. $100. B.’s debt is extinguished and C. may recover that sum against A. (Black v. Paul, 10 Mo. 104.) Nor does it fall within the rule that if one person make a promise to another for the benefit of a third, the latter may maintain an action upon it (Chitty, 5)— a doctrine which has been recognized by this court in the cases of the Bank of Missouri v. Benoist & Hackney, 10 Mo. 519, and Robbins v. Agnes, id. 538. In the case before us there was a debt already existing between the plaintiffs and Bell & Sticknell, and the defendant assumes or agrees with Bell & Sticknell to pay the debt they owe to the plaintiffs. This is not like a promise of A. to pay B. for the benefit of C. There is no privity of contract between the defendant’s intestate and the plaintiffs. It is similar to all the undertakings of one partner to pay the debts of the firm. No instance has been found in which a creditor of the firm has been permitted to sue on such an undertaking in his own name. (6 Watts, 182, 349.)

Judgment reversed;

the other judges concur.


text:
    Armstrong, Respondent, v. Johnson et al., Appellants.
    1. A suit on a promissory note by an assignee against the maker is triable at the first term, although the assignment is denied.

      Appeal from Shelby Circuit Court.

      Pratt and McCabe, for appellants.

      Dryden, for respondent.
   Napton, Judge,

delivered the opinion of the court.

There is no point of law saved in this case, except the overruling by the court of the defendant’s motion for a continuance. The only ground in this motion was, that the suit was not triable at the first term, it being an action upon a note by the assignee against the makers and the assignment being denied. The judgment is affirmed with ten per cent, damages.

The other judges concur.


text:
    Herndon et al., Plaintiffs in Error, v. Herndon’s Administrators, Defendants in Error.
    1. On the death of a husband without children, the increase of a female slave, that came to the husband in right of the marriage, remaining undisposed of at his death, passed, under the dower act qf 1845 (K. C. 1845, p. 430, § 3), with the mother to the widow.

      Error to Monroe Circuit Cowrt.

    The facts sufficiently appear in the opinion of the court.

      Dryden and McVagh & Brace, for plaintiffs in error.
    I. The language of the dower act does not embrace the increase of a female slave after it comes to the husband. (3 Mo. 98.)

      Howell, for respondent.
   Napton, Judge,

delivered the opinion of the court;

The only question in this case is, whether under our dower law, (R. C. 1845, 430, § 3,) on the death of the husband without children, the increase of the slaves that come to the husband by the wife, remaining undisposed of at his death, go with the mother to the widow. This question was determined affirmatively by this court in the case of Cotton and Cotton’s administrator at the January term, 1851; though, from some cause not now known, no opinion is to be found on file in the case. Our conclusion in the present case is the same. It is conceded that a strict and literal interpretation of this section of our law might exclude the increase; for, as the husband is the absolute owner of the mother, the increase may be said to become his by reason of such ownership and not by virtue of the marriage. But indirectly they do come to him by virtue of the marriage, and the construction which gives to the widow the increase along with the mother is more accordant with the general policy of our law.

In this state, and indeed in most of the slave states, the issue of a female slave follows the condition of the mother; and if during a tenancy for life the mother has children, they go with the mother to the person who has the remainder or reversion. A difference has thus been adopted between slaves and other property, founded upon motives of humanity and having regard to the moral as well as legal relations between master and slave. This distinction is so well understood, not merely by the profession, but so generally recognized and acted on by the community at large, that it is no violent presumption to suppose that the legislature intended, by the general terms which they have used in the dower law, to embrace the increase of slaves, as well as the slaves themselves, as property coming by the marriage.

The other judges concurring, the judgment is affirmed.


text:
    Stavely, Respondent, v. Kunkel, Appellant.
    1. An appeal to the supreme court must be made, under the revised code of 1855, during the term at which the judgment or decision appealed from is given; it can not he made before the clerk in vacation. (R. C. 1865, p. 1287, sec. 11.)

      Appeal from Hannibal Court of Common Pleas.

      Allen, for respondent.
   Scott, Judge,

delivered the opinion of the court.

The revised statutes of 1855 require an appeal to be made during the term at which the judgment or decision appealed from was given. This provision is to be found in the 11th section of the 13th article of the act to regulate practice in courts of justice. This appeal having been made before the clerk in vacation must therefore be dismissed.

Appeal dismissed.

The other judges concur.


text:
    Hargadine, Plaintiff in Error, v. Pulte, Defendant in Error.
    1. A. died in 1844, devising his property as follows : “ I hereby grant, give and bequeath unto my beloved wife, B.', all and singular my property and estate, real, personal and mixed, in law and equity, including as well all I possess at present as such as I may acquire hereafter, to have and to hold the same unto her, my said wife, as her own and exclusive property, and to the exclusion of all and every person or. persons, be the same relatives or not, forever.” The said A. left him surviving his said wife and four children. Held, that there was an intestacy as to the children of A., they not being named or provided for within the meaning of the 30th section of the act concerning wills. (R. C. 1835, p. 620.)

      Error to St. Louis Land Court.

    This was an action of ejectment to recover possession of a certain lot in the city of St. Louis. Plaintiff claims title through the widow of one Philip A. Pulte, who died seized of the said premises in the year 1844. The said Pulte made a will devising his property as follows : “ I hereby grant, give and bequeath unto my beloved wife, Philipine Bernadine, all and singular my property and estate, real, personal and mixed, including as well all I possess at present as such as I may acquire hereafter; to have and to hold the same unto her, my said wife, as her own and exclusive property, and to the exclusion of all and every person or persons, be the same relatives or not, forever.” The defendant is a son of said P. A. Pulte, and holds possession of said premises for himself and the other children of said Pulte.

      N. Holmes, for plaintiff in error.
    I. The case of Hockensmith v. Slusher, 26 Mo. 237, settles the principles of this case. The intention to cut off the children is clearly indicated in the will.

      C. Gibson, for defendant in error.
    I. It can not be determined from the will itself whether or not the testator ever had a child. (See Bradley v. Bradley, 24 Mo. 316.)
   Napton, Judge,

delivered the opinion of the court.

This case falls within the principles and reasoning of the case of Bradley v. Bradley, 24 Mo. 316. Where a testator declares his wife to be his sole heir, the implication of an exclusion of his children is just as strong as where the estate is given to the wife “ as her own and exclusive property, and to the exclusion of all and every person or persons, be the same relatives or not.” In truth, the multiplication of words in this last case rather weakens the force of the first clause, as the phrase “ relatives” might be very naturally understood as not embracing one’s children.

The other judges concurring, the judgment is affirmed.


text:
    Pratte et al., Appellants, v. Coffman’s Executor, Respondent.
    1. A devise of land will carry witli it a crop growing thereon at the death of the testator unless the testator otherwise directs.
    2. A testator devised a plantation to three grand-children; he then proceeded to direct the sale by the executor of certain real estate, “also all the perishable part of my estate, such, as horses, mules, cattle of every description, plantation tools, household and kitchen furniture, crops on hand, and all other personal property not herein otherwise disposed of,” &c. Seld, that a crop growing on said plantation at the death of the testator passed to the devisees and not to the executor.

      Appeal from Ste. Genevieve Circuit Court.

    This was a cause submitted to the circuit court upon an agreed statement of facts. Joseph Coffman died leaving a last will and testament, by which, among many other devises, he devised a plantation known as the Bellefontaine tract to his three grand-children, Mary, Joseph and Bernard Pratte. At the time of the testator’s death there was a crop of wheat growing on said plantation. By the ninth clause of the will it was provided as follows : “ It is my will and desire that my executor hereinafter named shall sell the interest I own in the mill property of Hormie & Coffman, with the lands adjoining, and also the interest I bought under two sheriff’s sales in certain land sold as the property of Thomas Madden, jr., son of Richard Madden, deceased; also all the perishable part of my estate, such as horses, mules, cattle of every description, plantation tools, household and kitchen furniture, crops on hand, and all other personal property not herein otherwise disposed of; to receive and collect the proceeds of said sales, together with all other sums of money which may be due me by bond, account or otherwise at the date of my decease; and all sums of money on hand; and, so soon thereafter as sufficient sums shall be received for that purpose, that he pay the specific legacies above given, with interest from the date of my decease.” The executor appropriated and converted to his own use the said crop of wheat. The court gave judgment upon the agreed case for defendant.

      Noell, for appellants.
    I. By “ crops on hand” is not meant growing crops. The growing crop passed to the devisees. (1 Williams on Ex’rs, 600 ; Mcllvaine v. Harris, 20 Mo. 457.)

      Scott & Watkins and B. A. Hill, for respondent.
    I. The growing crop of wheat passed to the executor. The devise did not carry with it the standing crops growing upon the premises at the time of the testator’s death. (See ■ West v. Moore, 8 East, 339 ; Cox v. Godsalve, 6 East, 602 ; Seabrook v. Williams, 3 McCord, 371; Penhallow v. Dwight, 7 Mass. 34 ; Taylor v. Bond, 1 Busbee, N. C. 5 ; 5 Barn. & Ad. 105 ; Roberts v. Barker, 1 Crom. & Mees. 809 ; Evans v. Roberts, 5 B. & Or. 829; 1 Williams on Ex’rs. 456.)

   Scott, Judge,

delivered the opinion of the court.

On general principles a devise of land carries with it the crops growing upon it. If the devisee is entitled to the crop as against the heir, it is because it is considered as a part of the realty and goes along with it. In the case of McIlvaine v. Harris, 20 Mo. 457, it was held that a growing crop of wheat was an interest in land. . As between the executor and heir, growing crops may be personalty; but, as between heir or executor and devisee, they are deemed a part of the realty. It is clear, then, that by the devise the growing crop passed along with the land and must remain with it, unless the testator has otherwise directed, which it is admitted that it was competent to him to do. The clause in 'the will on which the defendant relies directs the executor “ to sell all the perishable part of the estate, such as horses, mules, cattle of every description, plantation tools, household and kitchen furniture, crops on hand, and all other personal' property not herein otherwise disposed of.” The tract of land devised to the plaintiffs was a considerable distance from the homestead of the testator, where he had a large estate. It is clear that all the words of the will may be satisfied without taking the crop growing on the land devised. There may at the same time belong to a person a crop on hand and a growing crop. The words “ other personal property” show what the testator had in his mind. By employing the tei’ms other personal property” he conveyed the idea that all the property before enumerated was personal property. He directs, too, that all his perishable property be sold, and enumerates it in part, in which enumeration are “ crops on hand.” It is not usual to denominate growing crops as perishable property. But crops on hand,” or which have been gathered, may be so termed with the strictest propriety of language. If the testator regarded the crop growing on the land devised as personal property, which he must have done if it is embraced in the words of the clause above cited, then he did not intend to give it to the executor, because he willed to him only the personal property not herein otherwise disposed of. If he regarded it as realty it did not pass, for he only gives the executor the personal property. The case mostly relied on by the defendant is that of West v. Moore, 8 East, 341. There the testator devised estates in fee to one, and to his executor all his money, stock upon his farm, with the implements of husbandry, and all other his personal estates of what nature or kind soever. It was held that the crop growing upon the estates passed to the executor. This case only shows how differently the words “ stock on a farm” are understood in England and among us. In construing a Missouri will, would it ever have entered into the head of man to conceive, unless he had accidentally read the case referred to, that by the words “ stock on a farm” the testator intended to pass a growing crop ? The reasoning of Lord Ellenborough in that case is favorable to the plaintiffs. He says, in the testator himself, the standing corn, though part of the realty, subsists for some purposes as a chattel interest, which goes on his death to his executors as against the heir, though as against the executors it goes to the devi-see of land, who is in the place of the heir. This is founded upon a presumed intention of the devisor in favor of the devisee. But this again may be rebutted by words which show an intent that the executor shall have it. In the case referred to, the devise to the executor was of “ all other his personal estates of what nature soever;” here the bequest is of all “ other personal property not herein otherwise disposed of.” The growing crop having passed to the devisees, there is nothing in the will which satisfies us that the testator intended that it should be taken from them.

Judge Richardson concurring,

the judgment will be reversed and the cause remanded.


text:
    Drake, Appellant, v. Jones et al., Respondents.
    1. L., being indebted to D., E. and E., assigned to D. in trust to secure said D. E. and E. certain promissory notes executed by O. & R. One J. recovered a judgment against L. Afterwards said L., D., E., E., 0. & R. entered into an arrangement, by which, upon the allowance of certain credits upon said notes, 0. conveyed a certain lot of ground to L., and L. at the same time conveyed the same in trust to secure D., E. and E. The sum bid by D. at this sale was less than the amount of the indebtedness, to secure which the deed of trust was given. The land was sold under this deed of trust, and D. became the purchaser. J. caused an execution to be issued upon his judgment against L. and to be levied upon L.’s interest in said lot. Held, that L. had no interest in the lot upon which J.’s judgment might operate as a lien; that consequently no title would pass to a purchaser at a sheriff’s sale under said execution; that an injunction would not lie to restrain a sheriff’s sale thereunder.
    2. Sheriff’s sales can not be enjoined on the ground that they will pass no title and may cast a cloud on the title of the true owner.

      Appeal from Hannibal Court of Common Pleas.

    The facts sufficiently appear in the opinion of the court.

      Porter & Harrison and W. M. Cooke, for appellant.
    I. Lowe had no beneficial interest in the land purchased by the notes belonging to the St. Louis creditors. The judgment in favor of Jones was not a lien upon the mere legal title in Lowe. (1 Paige Ch. 280 ; 5 S: & M. 702 ; Tallman v. Farley, 1 Barb., S. C., 280 ; Kiersted v. Avery, 4 Paige, 15 ; Whitworth v. Gaugain, 3 Hare, 416 ; Laughton v. Horton, 1 Hare, 549.) Again, Lowe never had such a seizin in the land as would subject it to the lien of -a judgment. (4 Kent, 39.) Drake was entitled to his injunction against the sheriff and Jones to restrain the sale under the execution. (See Gamble v. City of St. Louis, 12 Mo. 620 ; Lockwood v. City of St. Louis, 24 Mo. 21; Petit v. Shepherd, 5 Paige, 493 ; Norton v. Beaver, 5 Ohio, 178; Wright, 127; Kenyon y. Clark, 2 Rho. Is. 67; Dyer v. Armstrong, 5 Ind. 437 ; Money v. Dorsey, 7 S. & M. 727 ; Wilson v. Butler, 3 Munf. 559; 2 Sto. Eq. § 1503, b., 701, 827, 698.)

      T. L. Anderson, for respondents.
    I. An injunction will not lie in a case like the present. (Eden on Inj. 12.) The inquiry in this case is not whether the plaintiff has a better title than Lowe, the defendant in the execution, nor whether any title will pass by sale under the execution; but whether the sale would impair the rights of the plaintiff.
   Richardson, Judge,

delivered the opinion of the court.

In June, 1852, S. J. Lowe held three notes on Owsley & Reyburn amounting to $5,000, due at different times ; and, being indebted to the plaintiff and other creditors in St. Louis about $4,500, he endorsed and delivered said notes to the plaintiff in trust for the purpose of securing the said debts. Afterwards, in October, as it was feared that the creditors would not realize their demands out of the notes held as collateral security, it was agreed that if Owsley would convey a lot in Hannibal, (together with the quit-claim deed of Ro-bards,) the conveyance would be accepted in part satisfaction of said notes to the amount of $3,500. As to Owsley, he was to receive an absolute credit on the notes for $3,500; but as between Lowe and his creditors, the lot was to stand as security for their debt in lieu of the credit endorsed on the collaterals. Accordingly, it was agreed between all the parties that Ousley and Robards should convey the lot to Lowe and that Lowe should simultaneously execute a deed of trust on the same, in the usual form, for the purpose of securing the said debt to his creditors ; and pursuant to this understanding Ousley and Robards executed and delivered to the attorney of the creditors a deed conveying the lot to Lowe, and at the same time Lowe conveyed the lot to Judge Cooke in trust for the purpose of securing the said debt of $4,500. The debt named in the deed of trust not being paid, the trustee advertised the lot for .sale according to the terms and stipulations of the deed, and at the sale the plaintiff became the purchaser, and received a deed. Ousley and Reyburn received a credit on the notes held by the plaintiff for $3,500, and no part of the consideration for the conveyance was paid by Lowe and the deed never came into his hands. Between the time that the foregoing arrangement was agreed on and finally consummated, the defendant recovered a judgment against Lowe in the Hannibal court of common pleas, and in January following caused an execution to issue which was levied on the lot conveyed by Ousley and Robards; and the sheriff having advertised it for sale, the plaintiff filed his petition for an injunction on the ground that the judgment was not a lien as against the plaintiff’s title, and that the sale, without passing any title, would cast a cloud on his title. The court granted a temporary injunction, but on the final hearing dismissed the petition and dissolved the injunction.

The endorsement of the notes of Ousley & Reyburn to the plaintiff vested in him the legal title to them, subject to a trust in favor of the creditors whom he represented, and the lot being purchased with the notes the creditors had the right in equity to pursue the fund; and consenting to the conversion of the notes into land, the trust attached to the land and the same interest resulted in the land that they had in the notes. The conveyance to Lowe clothed him with nothing but the naked legal title, and if he had not made the deed of trust the creditors could have asserted their equity against him, and he would have held the title as their trustee and subject to their beneficial interest. As the lot did not sell for enough to pay the creditors, Lowe had no interest in it subject to execution, and the defendant by bis judgment acquired no lien, and an execution sale under it would have passed no title. Lowe had only a transitory seizin for an instant; for, at the same time that the title passed to him, he conveyed it away, as he was bound to do, and as the creditors could have compelled him to do if he had refused. The lot did not vest in him for his own use, and he was a mere conduit for passing the title to the party entitled to it. If a defendant to a judgment purchases land and receives only a title bond, any interest which he has that is subject to execution is subordinate to the vendor’s paramount lien for the unpaid purchase money; and so if he receives a deed, but at the same time executes a mortgage to the vendor to secure the purchase money, his transitory seizin would not be affected by a judgment lien, except for any interest that might remain after satisfying the mortgage. The effect would be different if a conveyance or mortgage is made to a third person not representing the purchase money. This principle is illustrated in the dower law. The widow is entitled to dower in all land of which her husband was seized during the coverture; but Chancellor Kent says that a transitory seizin for an interest will not give her dower, when the same act that gives the estate to the husband conveys it out of him, and that the right of dower only attaches when the land vests in the husband beneficially for his own use. (4 Kent, 39.)

Courts of equity sometimes entertain bills quia iimet to prevent anticipated mischief, when a party attempts to do what he has no right to do, and when the injury, if suffered to be done, might not be reparable. But we think it would be unwise to permit a sheriff’s sale to be enjoined because it will pass no title and may throw a cloud over the title of another. By our statute, it is not only the land of a defendant that is subject to sale under an execution, but any interest whatever, legal or equitable; and as a sheriff’s deed will have no greater operation than the defendant’s quitclaim deed, nothing will pass by a sale if the defendant has no interest subject to execution. In some of the states a party out of possession is not permitted to sell land adversely held, but here he may multiply deeds that will not pass shadows, and it is never supposed that a sheriff’s deed necessarily passes any thing; for if the defendant has nothing, nothing will pass. A plaintiff may experiment with his execution, and, after. selling whatever interest the defendant is supposed to have, may abandon his purchase as not worth the expense of recording a deed; but to compel him to wait with his execution and become a party to a suit or as many suits as may be brought by strangers to the judgment claiming the property, would not only be transposing the order of trials by litigating a title before instead of after a sale, but would greatly increase useless litigation and prematurely bring on trials in equity proceedings before a sale, instead of trying the title in ejectment after the sale.

If the effects of a sale under the defendant’s execution, whilst it passed no interest, would cast a hurtful doubt on the plaintiff’s title, which he could only remove by evidence in pais, and the purchaser could stand by indefinitely and refuse to litigate his right until the evidence to repel it might be lost and the plaintiff less able to contest it, and in the mean time the true owner be unable to sell and afraid to improve and thus be denied the full dominion over his property, then the exercise of the power of the court by the writ of injunction would be properly invoked as a means of preventing injury and of precautionary justice. But our law has disarmed a person having no title of the power by false clamor to injure the title of another in that way. In the first place, provision is made with minute particularity for perpetuating testimony; and then again, if the plaintiff is out of possession, he may immediately bring his ejectment; but if he is in possession, and wishes to silence an adverse claimant, he may file a petition and compel him to bring an action to try the title, or be forever barred from claiming any right or title adverse to the petitioner. (R. C. 1855, p. 1241, § 62.)

Notice may be given at the sheriff’s sale of the outstanding equities of third persons, which will affect the purchaser; and if the defendant has no vendible interest, the purchaser will get nothing, and he will not be allowed to suspend a pretended title over the true title to the injury of the owner. A proceeding by injunction ought not to be substituted for the action of ejectment, and when the interest of a defendant is advertised to be sold under execution it would be improper to litigate and determine the title of as many claimants as there may be before a sale by an equity proceeding, when no real controversy might arise after a sale, and, if it did, the title could be better settled then than before.

Our first impressions of this question were the same that they now are, but the learned argument of the plaintiff’s counsel created doubts that led us to a careful examination of the subject in all its bearings, which has resulted in the conviction, that, under our system of laws and the practice in reference to execution sales, it would be unwise and create great confusion in the administration of justice to permit sales under execution to be enjoined on the ground that they will pass no title and might cast a cloud on the title of the true owner. Several of the authorities cited from other states, as to the power to enjoin in cases like the present one, seem to be in point; but our system is different from theirs, and we think that sound policy requires us to deny the relief the plaintiff seeks in the form and at the time it was asked.

In our opinion, the bill was properly dismissed, although we think that Lowe had no interest in the property subject to the defendant’s execution ; but, of course, in assessing the damages, if the defendant has sustained any, on the dissolution of the injunction, the amount of his execution will not be considered, because he was only arrested for a time in the pursuit of a shadow.

The other judges concurring, the judgment will be affirmed.


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    Burns, Respondent, v. Patrick et al., Appellants.
    1. Where a wrongful entry has been made upon premises in the possession of a tenant, he and not his landlord is the proper person to institute and maintain an action of forcible entry and detainer.
    2. Where it appears from the face of the record of a cause appealed to the supreme court that the plaintiff has no cause of action, the supreme court will reverse a judgment rendered in his favor, although the point upon which the reversal takes place was not brought to the attention of the lower court.

      Appeal from St. Louis Land Court.

    The complaint is in substance as follows: The plaintiff alleges that the defendants, “ with force and strong hand, entered upon and into the following described land and premises [describing it], and broke open the doors and windows and other parts of the dwelling houses on said lot erected, and in which the tenants of this complainant then and there resided, and turned the said tenants of this complainant out of possession of said lot and tenements by force, frightening, threats and other circumstances of terror, which said tenants of this complainant so turned out of possession were [naming them] ; and so this complainant charges that said Patrick and Ladd, with force and strong hand, on the day and year aforesaid, turned this complainant out of possession of the lot and tenements aforesaid; and this complainant further charges that the said William Patrick and Attilus A. Ladd detain now and hold, and from the 8th day of November, 1855, have detained and held, the lot aforesaid from your complainant. Wherefore your complainant prays,” &c.

      Todd and A. S. Jones, for appellants.
    I. The complaint shows that at the time of the alleged entry the tenants of plaintiff were in possession of the premises. The landlord can not maintain the action. ('24 Mo. 107 ; 26 Mo. 216.) The instructions given were erroneous.
    Gray, for respondent.
    I. It is too late to raise the objection that the complaint shows that the plaintiff’s tenants and not the plaintiff were in possession and were forced ont of the premises. (See 4 Mo. 445 ; 8 Mo. 59 ; 13 Mo. 455.) The utmost liberality is allowed in the construction of causes of action before justices of the peace. (15 Mo. 442; 16 Mo. 154; 20 Mo. 568 ; 21 Mo. 13 ; 24 Mo. 533 ; 25 Mo. 57 ; 23 Mo. 407.)
   Scott, Judge,

delivered the opinion of the court.

The plaintiff in this action can not recover on the ground that the defendants wrongfully and without force by disseizin obtained and continued in possession of the premises in dispute after demand made in writing for the deliverance of possession thereof, because there is no proof of any such demand in the bill of exceptions. There is a demand copied among the papers in the cause, but not being embodied in the bill of exceptions it can not be noticed by this court. Moreover, the complaint is so framed as not to bring it within that provision of the statute.

The complaint on which this proceeding is based shows that the plaintiff is not entitled to recover. The complaint is that the tenants of the plaintiff were turned out of possession ; and if this was so, then the tenants should have instituted this proceeding. It is no answer to this objection that it was not raised in the court below by demurrer or in arrest of judgment. It is well settled that when a record is brought into this court, and it appears from the face of the record that the plaintiff has no cause of action, the judgment will be reversed, although the point was not made in the court below. This has been long the practice of this court. As liberal as the present practice act is, the defendant, by not taking the exception that the petition does not state facts sufficient to constitute a cause of action by demurrer or answer, does not waive the same. (R. C. 1855, p. 1231, § 2.)

We do not deem it necessary to review other points made in the cause, as they were mostly founded on the language of the various instructions and involved no principle.

Judgment reversed;

the other judges concur.


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    McKnight, Appellant, v. McCutchen, Respondent.
    1. Where there has been no settlement of the accounts of a partnership and no balance ascertained, an action in the nature of an action of assumpsit can not be maintained by one partner against the other to recover such undetermined balance; it is not the province of the jury to take an account and adjust the equities arising out of unsettled partnership transactions.

      Appeal from St. Louis Cowl of Common Pleas.

      Casselberry, for appellant.

      Johnson, for respondent.
    I. One partner can not maintain assumpsit against another partner whilst the partnership concerns remain unadjusted. (Thompson v. Elliott, 5 Mo. 118; Springer v. Cabell, 10 Mo. 640 ; Murray v. Bogert, 14 Johns. 318 ; 17 Johns. 80 ; 11 La. 681; 2 La. Ann. 154, 277; Rice’s Dig. 75.)
   Richardson, Judge,

delivered the opinion of the court.

The plaintiff’s petition is almost as general as the common counts in an action of assumpsit. The defendant denied all the allegations in the petition, and set up as a set-off a balance alleged to be due him on account of partnership transactions between him and the plaintiff. The cause was tried by a jury. It appeared on the trial that there had been a partnership between the parties in a mercantile adventure to New Mexico ; that there was a loss on it, and that the defendant was indebted to the plaintiff, but there never was any settlement between them, or a promise by the defendant to pay any given sum. The court instructed the jury that the plaintiff was not entitled to recover.

It was not the province of the jury to take an account and adjust the equities of the parties arising out of unsettled partnership transactions and to strike a balance, for the law has provided a more reliable and accurate mode of ascertaining the rights of partners after a dissolution. After the facts of the case were developed by the proof, the plaintiff did not ask leave to reform his petition and make such averments as would entitle him to relief, and as he could not go to the jury on the case made, the instruction was properly given. It seems that if only one item of a partnership remains to be liquidated, one partner may sue another in assumpsit; (Byrd v. Fox, 8 Mo. 574;) but the law is well settled that when there has been no settlement of accounts, and no balance ascertained, one partner can not maintain assumpsit against another. (Stothert v. Knox, 5 Mo. 112; Springer v. Cabell, 10 Mo. 640.) This was the doctrine in Pennsylvania, where they have no courts of equity; and though it was argued that an action for money had and received should be allowed to perform the office of a bill in equity, Tilghman, C. J., said it was important that the forms of action should not be confounded, and that, as it would be extremely difficult and in many cases almost impossible to settle partnership accounts before a jury, it was most convenient that such accounts should be settled before auditors.

Judge Napton concurring,

the judgment will be affirmed.


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    Leahy et al., Plaintiffs in Error, v. Dugdale’s Administrator, Defendant in Error.
    1. A contractor engaged in tire performance of certain work may assign to another the money to be due to him on its performance.

      Error to St. Louis Circuit Court.

    Francis Dugdale contracted with the Central Plank Road Company to construct the eighteenth and nineteenth sections of said road. ■ Dugdale afterwards entered into an agreement with Michael O’Leary and James B. Neenan, as subcontractors, for the construction of said sections. Said O’Leary and Neenan, after having performed about half of the work tinder said agreement, assigned the same to Patrick Leahy and Peter Neenan ; also the money and debts due from Dugdale arising out of the construction of said sections ; also all benefit and advantage to which they were entitled or might arise out of their contract with Dugdale on the construction of said road. Said Leahy and Neenan completed the construction of said sections. Dugdale had notice of this assignment to Leahy and Neenan. After the receipt of such notice he acknowledged, as garnishee of O’Leary and Neenan, indebtedness to the latter in various sums amounting in the aggregate to 1487.66, and paid the same to the creditors of said O’Leary and Neenan. The court instructed the jury that the plaintiffs were not entitled to recover.

      Voorhis & Davis, for plaintiffs in error.
    I. The action was properly brought in the names of the appellants. (Sess. Acts, 1849, p. 75; 20 Mo. 455 ; 21 Mo. 108 ; 18 Mo. 564.) The assignment to Leahy and Neenan passed all the interests, legal and equitable, under said contract of O’Leary and Neenan. (2 Sto. Eq. § 783; Adams Eq. 171; 3 Sand. Sup. 379; 20 Mo. 507 ; 1 Monr. 32; 2 Seld, 179; 5 Paige, 632.) It was not necessary to obtain the consent of Francis Dugdale to the assignment. (21 Eng. L. & Eq. P. 566; 3 Mass. 558 ; 2 Duer Ins. 57.) Dugdale had notice of the assignment before any garnishments were served upon him. (See 3 Foster, 245; 21 Mo. 138 ; 2 Seld. 179.) The woi’k was completed by plaintiffs and the same accepted by the company, and Dugdale received payment for the same; he can not therefore, after having gathered the fruits of the labors of the plaintiffs, refuse to pay them. The assignment passed to the assignees all money due and to become due to the assignors.

      A. J. P. Garesché, for defendant in error.
    I. There was no privity of contract between plaintiffs and defendant. An executory contract can not be assigned by one party without the consent of the others.
   Scott, Judge,

delivered the opinion of the court.

There is no doubt of the correctness of the proposition that an executory contract is not assignable. (Robson v. Drummond, 2 B. & Ad. 303 ; Ohitty on Oontr. 739.) But we do not conceive that this principle has any application to the circumstances of this case. There are contracts in which one party contracts for the personal services of another for his skill, knowledge and experience. In such cases the services of the person undertaking to do the work are engaged and he can not perform it by another. But in most contracts for labor the work may be done as well by one as by another. In many instances the contract is such that the contractor must necessarily engage assistance as he may be unable to do all the work himself, and such is the expectation of the parties when they enter into the contract. The contract involved in this suit is one of this character. The plaintiffs did the work under those who contracted with Dug-dale. The company for whom the work was done accepted it and paid Dugdale. It is too late now for Dugdale to say he did not recognize the plaintiffs as contracting with him. In accepting pay for the work done by them, he at least recognized them as the agents for those who were bound by the contract to do it. They, then, were entitled to their wages. Dugdale knew that the money he received had been assigned to the plaintiffs. But for their services, he would perhaps never have received it. When a contract is being performed, it is competent to him who contracts to perform it to assign the money to be due on its performance, and especially to those who are actually performing the contract. Dugdale is clearly liable to the plaintiffs for all the money due them which he paid away after notice of the assignment.

Reversed and remanded;

the other judges concur.


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    Jaccard et al., Respondents, v. Shands, Appellant.
    1. Fraud in the consideration of a negotiable promissory note is no defence to an action thereon by an endorsee to whom the same was endorsed before maturity without notice.

      Appeal from St. Louis Court of Common Pleas.

      H. N. Hart, for appellant.
   Scott, Judge,

delivered the opinion of the court.

This is an action on a negotiable promissory note endorsed to the plaintiffs before maturity. The defence is fraud in the consideration, and failure of consideration. Nothing is clearer than that such a defence is wholly inadmissible against the endorsee of a negotiable note, endorsed before maturity. The court very properly overruled the instruction asked by the defendant.

The other judges concurring, the judgment will be affirmed.


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    Miller, Respondent, v. Wall et al., Appellants.
    1. Where a constable wrongfully levies an execution upon property exempt by law from execution, relief can be had, upon his official bond, against him and his securities, only by action thereon in the name of the state; the 23d and 28th sections of the eighth article of the act concerning justices' courts do not furnish a summary remedy in such case. (K. C. 1855, p. 968.)

      Appeal from St. Louis Law Commissioner’s Court.

      Lackland, for appellants.
    I. Justices of the peace have no jurisdiction of actions on penal bonds. They have jurisdiction only in the cases specified in the statute. No remedy is provided for the defendant in an execution. This case is outside of the classes of cases referred to in the twenty-third and twenty-eighth sections. The snit, if maintainable at all, should have been brought in the name of the state. There is a misjoinder of defendants.

      Voorhis, for respondent.
    I. The case is clearly within the twenty-third and twenty-eighth sections of the eighth article of the act concerning justices’ courts. (R. 0. 1855, p. 968.) The action is properly brought in the name of Miller. This is not a suit on the official bond of the constable. It is the summary proceeding provided in the said sections. There is no misjoin-der of defendants.
   Richardson, Judge,

delivered the opinion of the court.

The plaintiff brought a suit in his own name against the defendant Wall and his sureties on his official bond, before a justice of the peace. The ground of action is that Wall, as constable, with an execution in his hands against the plaintiff, levied on property which by law was exempt from execution.

As a general rule, suits on official bonds must be brought in the name of the state to the use of the party injured; (Sickles v. McManus, 26 Mo. 28;) but there are exceptions to this rule as to all the cases provided for in the twenty-third and twenty-eighth sections of the eighth article concerning justices’ courts. (R. C. 1855, p. 963.) The only question in this case is whether the plaintiff’s cause of action is embraced in either of those sections. We think it is not. The twenty-third section was designed to give a simple and speedy. remedy to the plaintiff in a justice’s execution, or any person who has placed a bond, note or account in the hands of a constable for collection, and the twenty-eighth section applies to persons who are interested in fees to be collected by a constable on execution; but neither section indicates any remedy for the defendant in an execution who may be injured by any unlawful act or omissions of a constable.

The other judges concurring, the judgment will be reversed.


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    Ridgley, Respondent, v. Steamboat Reindeer, Appellant.
    1. The forty-second section of the act concerning boats and vessels (R. C. 1855, p. 813), providing that suits to enforce liens in any other than the first class shall, in St. Louis county, be commenced within six months, does not apply to causes of action that had accrued more than six months previous to the 1st of May, 1856 — the day the revised code of 1855 went into effect.
    2. Whether a default shall be set aside is a matter within the discretion of the courts to which application is made for that purpose.
    3. Suits instituted in the St. Louis court of common pleas are triable at the return term “ in all cases in which the parties continued to be proceeded against at such term shall have been personally summoned for at least fifteen days before the first day of sueh term;” (R. C. 1855, p. 1595;) inquiry of damages may be made at the return term in a case of judgment of default against a steamboat.

      Appeal from, St. Louis Court of Common Pleas.

    This was an action against the steamboat Reindeer to recover the value of a slave alleged to have been transported out of this state in said steamboat. Judgment by default was rendered against the steamboat. This default the court refused to set aside.

      G. P. Strong, for appellant.
    I. The court should have set aside the' default and permitted the defence to be made, and should have set aside the final judgment and permitted an answer and a regular trial. The discretion of the courts in the matter of setting aside defaults must be exercised in a reasonable manner. The affidavits show that the slave was not carried away by the boat.
    II. The lien against the boat was discharged by the failure of the plaintiff to bring his action within six months after the cause of action accrued. (R. C. 1855, p. 313, § 42.)
    III. The court erroneously refused to let the execution of the writ of inquiry be continued to the next term. There was no personal service in the case. It was a proceeding in rem.

      Knox & Kellogg, for respondent.
   Napton, Judge,

delivered the opinion of the court.

This suit was brought on the 10th September, 1856, on a cause of action alleged to have accrued on the 14th September, 1855. The forty-second section of the act concerning boats and vessels, in force when this suit was brought, required all suits upon liens given by the act, except those enumerated in the first class (of which this was not one), to be commenced (in St. Louis county) within six months. Before this law took effect, twelve months were allowed for suits of this character. The question is, whether the forty-second section of the act of 1856 applied to this case.

It is very clear that if this was an ordinary civil action and not one for a penalty, it was not barred, because it is not necessary in order to give reasonable effect to the statute of 1856 to give it any retrospective operation. As the statute did not prescribe any time within which suits upon past causes of action and not then barred by any existing statute should be barred, the reasonable intendment must govern that the act was designed to be entirely prospective, and was not intended to cut off causes of action which were not then barred by previous statutes. Any other construction would lead to suits clearly not contemplated by the legislature, and which, if foreseen, would of course have been provided for. On the last day of April, the day before the revised code of 1856 took effect, Ridgley had a cause of action which was not barred by any statute then in force. On the contrary, he had until the 14th of September, 1856, within which to bring his suit. If the revision of 1856 and the forty-second section be applied to this case, his remedy was not merely affected, but it was entirely cut off, for the six months had entirely expired. This was evidently not the intention of the law. Where the legislature intend to legislate upon past causes of action, as they may do in the opinion of some, they would of course give a reasonable time after the passage of the act within which to bring suits upon them.

These observations are made upon the assumption that there was nothing peculiar in this action distinguishing it from ordinary suits on contracts. It is urged that, admitting the law to be as aboye stated, it ought not to be applied to this case, because it is a suit for a penalty; that the legislature has a right to repeal a law giving'a penalty at any time without just cause of complaint to any one; that there is no vested right in a penalty as there is in a contract; and therefore a strict and literal construction may with propriety be given to this forty-second section in the case now under consideration. It is no doubt true that there is no vested interest in a penalty, and that the legislature may repeal the law which gives it, at any time, without affecting the rights and interests of any one; but in this case they have not in fact repealed the penalty, nor have they in any respect changed the law as it stood before on this subject. The forty-second section applies in general terms to all the cases enumerated in the second, third and fourth clauses of the first section of the act, and it would be difficult to maintain one construction of the section in reference to one class of cases to which it refers, and another construction for another class. The section in terms makes no distinction and evidently designs none. That they had the right to make such a distinction can not alter the construction of the section ; neither can the admitted existence of other remedies concurrent with this, as that is equally true of all the liens specified ip. the law.

The cases of Field and Cathcart v. Mason, 8 Mo. 687, and Webb v. Coonce, 11 Mo. 10, are sufficient to show that the refusal of the court below to set aside the default was not such an unwarrantable or improper exercise of his discretion as to -justify the interference of this court. There was certainly negligence of the party, if not of his attorney; for the writ advised him in what court the suit was brought, and he gave a bond for the boat in which the same thing is recited.

It"is objected that the inquiry of damages was executed at the return term of the writ. The twenty-ninth section of the act establishing a land court in St. Louis county, makes all suits in this court triable at the return term (R. C. 1855, p. 1595), where the service is fifteen days before the first day of such term.

Judgment affirmed ;

the other judges concur.


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    Papin, Defendant in Error, v. Massey, et al., Plaintiffs in Error.
    1. The commissioners appointed by the act of Congress of July 9, 1832, (4 Statutes at Large, p. 565,) -wore authorized to examine those unconfirmed claims only that had been previously filed in the office of the recorder land titles; no new claims could be filed. After the passage of said act, claims undisposed of in the interval after their reservation from sale had ceased stood as they did before the passage of the act of May 26, 1824.
    2. A confirmation by the act of Congress of July 4,1836, (5 Statutes at Large, p. 126,) to a person or his legal representatives, will enure, if he had assigned his interest previously to the confirmation, or was dead at that time, to his legal representatives; that is, to his heirs or to the assignee of whole or part. If only part had been assigned, the assignee and heirs would take as tenants in common.
    3. A., the owner of an unconfirmed Spanish grant for 30,000 arpens, entered into a bond with B., in the penal sum of $20,000, conditioned for the conveyance by himself and his heirs of 14,000 arpens out of said grant of 30,000 arpens, provided said grant should be confirmed to the said A. or his representatives. Said grant was afterwards confirmed to said A. or his representatives. Held, that the eohfirmation enured to the benefit of B., as the legal representative of A., as to that portion (14-30) of the confirmed claim covered by said bond.
    4. A party to a suit has no right to the reversal of a judgment therein for errors that do not in any way affect him, but other of the parties alone.

      Error to Franklin Circuit Coivrt.

    On the 13th of October, 1797, James Mackay obtained from the Spanish government a grant of 30,000 arpens of land, which was located in separate tracts. The whole of said grant of 30,000 arpens was afterwards confirmed to the said Mackay or his legal representatives, by the act of Congress of July 4, 1836, with the exceptions made by the second section of said act. Portions of said grant had been conveyed away by the United States previous to the confirmation. On the 10th of May, 1819, said Mackay executed and delivered to Charles Dehault Delassus the following instrument : “ Know all men by these presents, that I, James Mackay, of the village of Carondelet, county of St. Louis, and Missouri territory, am held and firmly bound unto Charles Dehault Delassus, in the sum of twenty thousand dollars, money of the United States, to which payment well and truly to be made I bind myself, my heirs and successors, by these presents, sealed with my seal and dated this tenth day of May, year of Grace eighteen hundred and nineteen. The condition of this obligation is such, that if the above bound James Mackay, his heirs, executors or administrators, shall make or caused to be made unto the said Charles Dehault Delassus, his heirs or assigns, a deed of quit-claim for fourteen thousand arpens of land out of a grant of thirty thousand arpens of land granted to the said James by the Spanish government on the thirteenth day of October, 1799 — partly surveyed under the Spanish government and partly under the American government — recorded in the recorder’s office, book B, page 36 ; and situated on the rivers Cuivre, Boeuf and Bourbeuse — provided the whole of said grant of thirty thousand arpens be confirmed by the government to the said James or his representatives. But if the said goverment shall confirm to the said James as aforesaid only as many arpens as are contained in one league square, then and in that case the said James shall make the aforesaid deed of quit-claim to the said Charles for three thousand arpens of land only out of said grant and no more, and so in proportion shall be the division of any less quantity, always excepting and reserving from such division all the pieces or parcels of land which the said James gave already to those who settled on said grant — which pieces or parcels of land do not amount to more than twelve hundred arpens — then this obligation to be null and'void; otherwise to remain in full force and virtue. [Signed] James Mackay (seal). [Test:] M. P. Leduc.”

      On the 14th day of October, 1836, Delassus assigned and conveyed to Mary P. Leduc the above bond or obligation and all Ms interest in the tract of land mentioned therein. This assignment, though absolute on its face, was by way of security for a debt due from said Delassus to said Leduc. Mac-kay died about the year 1822, leaving a widow and eight children. Delassus died in May, 1842. Leduc died in 1842, devising his whole estate to Hypolite Papin. Said Papin also died in the year 1842, devising all his property equally to his children. In the year 1854, Joseph L. Papin, (plaintiff in the present suit,) who was administrator with the will annexed, of Leduc, commenced a suit in the St. Charles circuit court against the heirs and administrator of said Charles D. Delassus, to foreclose the equity of redemption of said parties. Said Papin recovered a judgment in this suit against said administrator for §34,125, and the equity of redemption was foreclosed, and a sale of fourteen-thirtieths of said 30,000 arpens decreed. At the sale of that portion of said confirmation which is in controversy, said Joseph L. Papin became the purchaser, and received the sheriff’s deed therefor.
    This is a suit by said Joseph L. Papin for partition of two parcels of land situate in Franklin county, being part of said concession and confirmation of 30,000 arpens. Defendants Blumenthal and Whitmore assert title under the heirs of James Mackay. The court, after deducting a certain proportional interest, assigned to the plaintiff Joseph L. Papin fourteen-thirtieths of the residue. A sale of said tracts was decreed.

      Dick and Knox & Kellogg, for plaintiffs in error.
    I. The bond of Mackay was inoperative to create an equitable ownership in the laud in dispute. It was optional with the obligor to perform the condition. (State v. Woodward, 8 Mo. 354; Sweringen v. Christy’s Adm’rs, 24 Mo. -.) Mackay had no title when he made this bond. He never acquired the title. Any inchoate right of his was subse quently barred. The grant to tlie heirs of Mackay of July 4, 1836, gave them the unencumbered title. (See Strother y. Lucas, 6 Pet. 763 ; 12 Pet. 453 ; Le Bois v. Brammcll, 4 How. 459; Landes v. Brant, 10 Mo. 370 ; 15 Mo. 223; 16 How. 62.) The bond recited no consideration, and none was proven. To warrant a decree for specific performance a consideration would have to be proved. (Adams’ Eq. 78, 80 ; 4 Johns. Ch. 500 ; 6 id. 224; 7 Dane’s Abr. 543; Mosely, 37; 17 Mo. 242.) The deed of May 23,1838, from certain of the heirs of Mackay to Leduc operated to merge and extinguish the bond. Besides, the bond itself was not legally proven. (Geyer’s Dig. 127; 8 Mo. 481; 1 Dana, 166.)
    II. The court committed error in holding that the form of the deeds to Whitmore and Blumenthal was such as to take them out of the protection of the registry law. It is only in relation to the common law release, which was a secondary conveyance, that it has been held that only what the roleaser has passes. (5 Mo. 387; 8 Mo. 482; 9 Mo. 729; 11 Mo. 77; 7 Conn. 250; 21 Ala. 134.) The evidence did not prove actual notice of the bond.
    ITT. Partition does not lie where plaintiff’s title is denied.
    IY. The court erred in admitting the record of the suit in St. Charles county; and also in admitting evidence of the transaction in 1822 between Leduc and Delassus, and in admitting the sheriff’s deed to plaintiff. There was no privity between the parties to that suit and the defendants as to the title to this land.

      S. T. & A. D. Glover, for defendant in error.
    I. The bond of Mackay was operative to create an equitable estate in Delassus. (2 Sto. Eq. § 175 ; Newland on Oontr. 307.) The confirmation was not to the heirs of James Mackay, but to Mackay or his legal representatives. (Pen-rose v. Watts, 8 How. 338.) The bond was properly proved. (6 Bina. 49; 1 Phill. 473, 466.) The bond was supported by a sufficient consideration. The seal imported a consideration. (6 Johns. Ch. 302; 3 Des. 341; 2 How. 426; Parsons on Contr. 354; 2 Mass. 162.) It ought to prevail over a subsequent purchaser who had notice. The evidence shows actual notice to Blumenthal and Whitmore. They claim under quit-claim deeds. The deeds from the Mackay heirs were operative to convey only such interest as they had. (13 Mo. 380; 20 Mo. 81; 3 Whea. 452.) The title in this case is denied by a part only of the defendants. The transaction between Delassus and Ledue was a mortgage. As a mortgage, it was necessary to foreclose it. The administrator of Ledue was the only proper plaintiff. The proceedings in St. Charles county were regular and- were conclusive between Leduc’s and Delassus’ representatives.
   Scott, Judge,

delivered the opinion of the court.

The turning point in this cause is, as to the enurement of the confirmation made to James Mackay or his legal representatives by the act of Congress of July 4th, 1836. This confirmation embraces all the land the subject of this suit. The claim confirmed was filed before the commissioners, and was finally rejected in November, 1809. The appellant maintains that after this rejection the claim was by the act of 26th May, 1824, barred and extinguished ; that under the subsequent act of July 9th, 1832, Mackay’s old claim being dead, James Mackay’s heirs appeared, claiming, and produced new testimony in support' of their claim; and the claim being reported for confirmation and confirmed as stated, it enured to the heirs of Mackay. The second section of the act of 1832, in directing the commissioners to proceed to an examination of the claims with or without any new application of the claimants, never intended that the commissioners should examine any others than the unconfirmed claims before that time filed in the office of the recorder. No claim could for the first time be filed before the board organized by the act of the 9th July, 1832. The second section means nothing more than that the commissioners should act on the claims before that time filed, whether they were requested by the claimants to do so or not. The privilege extended to the claimants to take new testimony was not designed to give them the right to file any new claim. The testimony taken could only be such as would support a claim already filed. What is there to distinguish this claim from all other’s acted on by the board ? If this claim was dead and extinguished, why were not all the others in the same situation ? Although in the interval between the 26th May, 1828 — the last day for filing petitions under the act of 26th May, 1824 — and the act of 9th July, 1832, for organizing the board, the reservation of these claims was taken away and they were subject to be sold as public lands, yet on the passage of the act of the 9th July, 1832, the reservation was restored. This restoration of the reservation made the undisposed of claims as though they had never been extinguished, and they stood as they did before the passage of the act of May 26th, 1824.

The claim, as has been stated, was confirmed to James Mackay or his legal representatives. The terms of the confirmation must determine the person to whom the claim is confirmed. There is no other guide. James Mackay, at the date of the confirmation, was dead. It enured then to his legal representatives. These representatives may be his heirs or assigns. If he had conveyed the claim, it would have enured to his assignee. If there had been no conveyance the title would have passed to his heirs. If only part of it was conveyed, the heirs and assignee would have taken it as tenants in common. This has been the uniform construction of a similar phrase in the recorder’s certificates under the act for the relief of sufferers by the earthquakes in New Madrid. The confirmations under the act of the 4th July, 1836, have received a similar construction. Whatever may have been the language of the supreme court in the case of Bissell v. Penrose, the fact is that Rudolph Tellier showed himself to be the assignee of Benito Vasquez, one of the original grantors of the concession. But wo do not conceive that there is any thing in that case which conflicts with any opinion expressed by us. There, the court refers to and adopts the instructions of the commissioner of the general land office, in which is found the following passage: “ You will make out a patent certificate in the name of the person to whom the land was confirmed, or his legal representatives, and the patent will be issued to the confirmee or his legal representatives, thus relieving you, as well as this office, from the labor and responsibility of examining and deciding upon all transfers or assignments of the claims, and leaving the genuineness and validity of such transfers to be decided upon by the courts of the state, which are the only proper tribunals for such investigations.” (2 Land Laws, p. 747, 748.) In the case of Bissell v. Penrose, the confirmation was to Benito, Antoine, Hypolite, Joseph and Pierre Vasquez or their legal representatives; and Rudolph Tillier showing himself to be the assignee of Benito, the court held that the confirmation enured to him. That was a confirmation under the act of July 4, 1836. (Hogan v. Page, 22 Mo. 65; Mercier v. Letcher, id. 66.)

The next question in order is, whether the bond executed by Mackay, on the 10th May, 1819, to Delassus conveyed any interest in the concession to him. The bond is a penal one for the sum of twenty thousand dollars, conditioned that Mackay shall convey to Delassus fourteen thousand out of a concession of 80,000 arpens made to him by the Spanish government, if the grant was confirmed. This concession embraces the lands in dispute. Many objections have been made to this bond, and it was very zealously argued that it passed no interest in the land to Delassus. Although a deed could not have been required from Mackay until the land was confirmed, the title bond being as effectual in equity to pass an interest as an actual conveyance there was no necessity for a deed. This bond was executed after the introduction of the common law. Where a person has stipulated to do a particular act under a penalty in case of omission, and it plainly appears that the specific performance of that act was the primary object of the agreement, and the penalty intended to operate merely as a collateral security, though at law the party might make his election either to do the particular act or to pay the penalty, a court of equity will not permit him to exercise such a right, but will compel him to perform the object of the agreement. It plainly appears from the bond that its object was to secure the conveyance of the land. It was then a contract which a court of equity would specifically enforce. If it was such a contract it created an interest in the land, for courts of equity regard that as done which a party agrees to do. A bond imports a consideration. To require proof of the consideration of a bond upwards of thirty years old, would have the effect of declaring all such instruments of no avail. After such a lapse of time, it would be an accident if the consideration of a bond could be proved. Of what avail would be the rule of law which makes age prove the due execution of an instrument, if the consideration of it has afterwards to be established. In olden times the usual way of making a penal bond was to sign the obligatory part, and under the signature to write the condition, which need not to have been signed. The signature to this bond is under the condition, but that does not affect it. There is no foundation for the opinion that the owner of an inchoate Spanish grant could not affect it with equities as readily as he could lands to which he had a perfect title. Such claims were always held and esteemed as lands. They were transmissible by descent, devisable, could be assigned and transferred, were subject to execution, and could be affected with equities like any other real estate of which a person could be seized. Because the policy of the federal government did not permit these inchoate rights to be made a foundation for asserting a title as against the United States until their validity was recognized, that does not affect this question, which is, how these concessions were regarded by our laws, not how they were considered by the government of the United States as to itself. It is true that the courts can not decide upon the rights of the parties anterior to the confirmation in relation to the inchoate title and divert and alter the effect of the confirmation. But that principle is not involved in this controversy. Its application would take the matter in dispute for granted. Those claiming under Delassus do not maintain that they have an equity to the inchoate title, which would give them a right to demand of the confirmee conveyance of the legal title granted by the confirmation, but they assert that by the terms of the confirmation they are themselves the confirmees. The principles which influence courts of equity in decreeing the specific performance of contracts can not have any application in this suit. As the legal title passed by the confirmation to those claiming under Delassus, there was no necessity for the interference of a court of equity.

If then those claiming under Delassus are the confirmees of the Spanish grant, then all questions as to the deeds from Mackay’s heirs to Blumenthal and Whitmore are beside the case, so far as those claiming under Delassus are concerned. If the legal title passed to them by the confirmation, neither Mrs. Mackay nor the heirs of Mackay could affect it by their conveyances, as the confirmation enured as a grant to them. The heirs of Mackay could no more convey that title, so far as it enured to those claiming under Delassus, than they could convey the land of any other person.

We understand that Blumenthal and Whitmore alone complain of the judgment of the circuit court. They have no right to reverse that judgment for any errors which do not affect them. The plaintiff Joseph L. Papin was one of the heirs and devisees of Hypolite Papin, who was the devisee of Leduc, who claimed under Delassus. According to the theory of the case as stated by the appellants, he had an interest in the land then which entitled him to bring this suit. Now, that he claimed and had assigned to him more of Hy-polite Papin’s interest in the confirmation than he was entitled to does not affect Blumenthal and Whitmore. Increase or diminish Joseph L. Papin’s interest in his father’s share, and it does not lessen or affect the interest of Blumenthal and Whitmore. But if there were errors in the proceedings instituted to foreclose the equity of redemption of the alleged mortgage, does it therefore follow that the validity of those proceedings can be contested in a collateral action ? Admit the court erred in regarding Leduc’s title as an equitable mortgage, yet when a sale was made under the judgment rendered, although that judgment was erroneous and might have been reversed, yet the title would pass. If the heirs of the mortgagee were necessary parties as plaintiffs or defendants — which is not at all certain, as under our system of law the legal title of the mortgagee can be passed by a judicial sale — yet the omission to make them parties would not render the judgment void. (Sto. Eq. Pleading, p. 183-4.) If an administrator should represent an absolute interest in the land to be but a mortgage and have the equity of redemption foreclosed, whereby the estate of which he had the charge was damnified, he would be liable on his bond for such maladministration ; and if he became a purchaser at the sale under the decree of foreclosure he would be a trustee for those to whom the estate belonged. In this proceeding the legal title is alone in question. Joseph L. Papin is possessed Of that title. The judgment then was not erroneous in assigning to him all of Hypolite Papin’s interest. In expressing this opinion, however, we do not wish to be understood as intimating that J. L. Papin may not be compelled to convey the legal title to the portions of the other heirs and de-visees of Hypolite Papin. We do not consider that this judgment at all affects any right the other heirs of H. Papin may have to treat J. L. Papin as a trustee. Indeed wo understand the petition as acknowledging the equitable rights of the other heirs in the portion assigned to J. L. Papin.

Judgment affirmed;

Judge Napton concurs. Judge Richardson not sitting, having been of counsel.