text:
    McPike, Plaintiff in Error, v. Kerr’s Executor, Defendant in Error.
    1. A. executed in favor of B. the following agreement: “ I hereby obligate • myself to insure to B. ten per cent, per annum profit upon the amount of capital invested by him in the trade of merchandise to be managed by me at Louisiana, Mo. March 18, 1846. [Signed] A.” C. endorsed this agreement as security for A. B. invested money upon the faith of this agreement and endorsement. Held, that the liability of A. and C. was contingent and conditioned upon the profits accruing falling below ten per cent, upon the amount invested by B.

      Error to Pike Circuit Court.

    This was an action commenced August 18, 1852, by Abraham McPike, as assignee of James McPike, against William Kerr. Kerr dying, his executor was made defendant. The amended petition is in substance as follows : That on March 18, 1846, one Hyman E. Block, being about to enter into partnership with James McPike, bqund himself by an instrument in writing of that date to insure to the said James Mc-Pike the payment to him of ten per cent, per annum profit upon the amount of capital invested by him, the said James McPike, in the mercantile business- to be managed by him, the said Block, at Louisiana, Mo.;, that, at the same time, William Kerr, defendant, in consideration that said James McPike would furnish said Block capital to conduct said mercantile business, and as an inducement therefor, agreed with the said Block and J. McPike that he would become the surety of the said Block for the payment of the annual interest on the amount of capital so invested ; that thereupon defendant endorsed said instrument as security thereto; that thereupon said J. McPike paid said Block the sum of $1,200 as so much capital invested in said business, which defendant well knew; that on January 1, 1850, said J. McPike, for value, assigned said instrument with the obligation therein contained to plaintiff, the said James McPike having, previous to said assignment, paid to the said Block for the said business the sum of about $2,000 in addition to the sum of $1,200 above stated ; that Block had the sole management of said mercantile business, and, if he realized a profit of ten per cent, upon the capital invested, has not paid the same or any part thereof to said James McPike, or to this plaintiff; nor has the said defendant paid the same or ' any part thereof. Plaintiff asks judgment for $1,010.”
    At the trial the instrument mentioned above in the petition, together with the endorsement thereon, was introduced in evidence. They are set forth below in the opinion of the court. James McPike testified that this instrument “ was given by him to Block to be executed the day before said Block received the $1,200, being his amount of capital put into the firm of H. E. Block & Co. He told Block he could not get the $1,200 until Kerr had executed the paper ; and the understanding of Block and witness was that Kerr was to sign the paper with Block and under his name. The day after Block brought the paper to witness signed as it now is with Kerr’s name on it on the back. "Witness never had any conversation with Kerr on the subject until a year or more after on his way to St. Louis, when Kerr told him he was bound for ten per cent, interest on the capital ($1,200) he had put into the concern of H. E. Block & Co.” This was all the testimony introduced. The court, at the instance of the defendant, instructed the jury that “no evidence having been given that the defendant was notified of the default and nonpayment of the interest, or that he would be held liable on his guaranty, before suit was brought, they must find for defendant.”
    The plaintiff took a nonsuit, with leave, &c.

      Broadhead, for plaintiff in error.
    I. The contract is not a guaranty but an obligation on the part of Block to pay ten per cent, per annum to McPike upon the amount of capital invested, and Kerr became his security on that obligation. (1 Pars, on Contr. 493; 24 Pick. 250.) The fair construction of the instrument is that Block was to pay ten per cent, to McPike on the capital invested by him, and as much more, if any thing more were made, as the business would yield. The undertaking of Kerr is not a guaranty. It is a direct promise to pay McPike the interest specified in the body of the'instrument; nothing collateral about it; no promise to pay if Block does not. McPike would not pay the money unless Kerr would sign the paper. When Kerr did sign, the money was paid. (12 Mass. 154, 297.) The court erred in giving the instruction asked.

      Henderson and Fogg, for defendant in orror.
    I. The court did not commit error in giving the instruction asked. The contract was not to pay to McPike absolutely a sum equal to ten per cent, on his capital invested. It was an undertaking to insure or guaranty that the business of the concern would yield a profit of ten per cent, per annum on the capital invested. It was collateral. (2 Parsons on Contr. 144.) The contract of Block was collateral. Kerr’s contract was a mere guaranty. No liability can accrue against either Block or Kerr unles.s the concern shall fail to realize the stated profits, and before that can be ascertained the partnership affairs must be adjusted and settled. The obligation was future in its operation, and the amount to be paid by Kerr, if any thing, uncertain. If the concern realized five per cent, then his liability could not exceed five per cent. In such case the guarantor is entitled to notice of the amount to be paid. (1 Pars, on Contr. 501; 22 Maine, 175; 11 Mete. 361; 1 Eng. 142 ; 13 Conn. 28; 13 Term. 106; 16 Yerm. 63.)
   Ewing, Judge,

delivered the opinion of the court.

The instrument which is the foundation of this suit is as follows: “ I hereby obligate myself to insure to James Mc-Pike ten per cent, per annum profit upon the amount of capital invested by him in the trade of merchandise to be managed by me at Louisiana, Missouri. March 18, 1846. [Signed] Hyman E. Block.” Upon the instrument is this endorsement: “ William Kerr; for the annual interest alone.” This is an action by the plaintiff, as assignee of James McPike, against Kerr’s executor, to recover one thousand and ten dollars, the annual interest claimed to be due on the capital invested by James McPike as a partner of Block in the mercantile business. The question is whether this undertaking of Kerr is in its legal effect a direct and absolute promise to pay the annual interest, or whether it is conditional and the liability it creates contingent. This question will be determined by ascertaining the nature of Block’s obligation. The engagement of Block, the principal, was to insure to McPike, his partner, ten per cent, per annum profit upon the amount of capital invested by him. By this instrument he intended to secure himself against the ordinary risks of the enterprise to the extent at least of the stipulated profit; but it is evident that he did not intend to restrict himself to that sum if the profits of the business exceeded it. If greater than ten per cent., he would be entitled to them; if less, the deficiency is secured by the obligation of Block and Kerr. The language of the instrument, the nature of the transaction, and the relation the parties sustained to each other as partners, make it manifest that Block was to be liable in the event only that the profits of the business should be less than ten per cent, per annum. The terms of the instrument are peculiarly expressive of sucb intention, and are inappropriate to convey a different meaning. Whatever the extent of Block’s liability may be beyond the stipulated profit, if any, Kerr’s undertaking is expressly restricted to that, and the liability of both is that far commensurate by virtue of the instrument, and may be enforced when it is shown that it has not been realized from the business. '

The liability of the surety is generally measured by that of the principal, and will not be construed to be greater unless it is expressly assumed. It is not to be extended by implication. If Block is only contingently liable, Kerr’s liability is also contingent, and both, in this respect, stand upon the same ground as to the ten per cent, profit. Kerr’s engagement must be interpreted in connection with Block’s; and, upon looking at the writing executed by the latter, we understand what is meant by the endorsement. The words “ annual interest” there employed evidently mean the per cent, profit which the other side of the paper calls for; and is not an obligation to pay ten per cent, annually on the capital, irrespective of the conditions which, as already observed, its terms clearly import. Thus viewing the undertaking and liability of Kerr, the petition fails to show any cause of action against him. What the profits of the partnership were is nowhere averred in tfie petition. Eor aught that appears, they may have been equal to or exceeded the sum stipulated for in the instrument of writing sued on; and, if so, no liability is incurred by the defendant, as Kerr’s executor, to pay any thing. If there is a deficiency it must be alleged and proved. The petition being therefore defective, the judgment will be affirmed, without reference to the instruction given by the court, which we think erroneous in maintaining that' notice of Block’s. default was necessary. As we regard the transaction, such notice was not necessary; but, as for the reason stated there could have been no recovery on the petition, the judgment will be affirmed;

Judge Napton concurring. Judge Scott absent.


source: Caselaw Access Project

author: Ewing, Judge,

license: Public Domain

text:
    Carman, Appellant, v. Johnson, Respondent.
    1. The official correspondence of the commissioner of the general land office and of the register and receiver of the United States land offices is admissible in evidence to prove the official acts of those officers.
    2. In a case arising under the act of Congress of January 12, 1825, (4 Stat. at Large, p. 80,) where the entry and purchase of land at a land office of the United States is void by reason of a prior sale by the United States, the only relief to which, the purchaser is entitled is the repayment of the money paid by him.
    3. In no case do the various acts of Congress of March 3, 1819, (3 Stat. at Large, p. 526,) of May 24, 1824, (4 id. p. 81,) of January 12, 1825, (4 id. p. 80,) or of May 24, 1828, (4 id. p. 301,) entitle one entering land at a land office of the United States to a change of the entry and a transfer of the payment made to another tract, except in case such purchaser had made entry of a tract not intended to be entered by reason of a mistake as to the true numbers of the tract intended to be entered.
    4. An entry of land in a land office of the United States, made without warrant and authority of law, is a nullity.
    5. A patent obtained by fraud will enure to the benefit of the person in fraud of whose rights it is obtained.

      Appeal from Lewis Circuit Court.

    This case was formerly in the supreme court. The decision of the court is reported in 20 Mo. 108. It was an action in the nature of an action of ejectment to recover possession of a tract of forty acres, the south-west quarter of the north-east quarter of section twenty-nine, in township sixty-six, of range seven west. The facts as they appeared in evidence are substantially and briefly as follows : In September, 1846, Carman entered at the land office at Palmyra a tract of forty acres that had been previously entered by S. and W. Hunt. The mistake having been discovered, Car-man, on the 26th of May, 1847, relinquished to the United •States the tract so mistakenly entered, and made application to be allowed to change the entry and to enter the tract in controversy in lieu of the other. This application and the accompanying affidavits wére forwarded by the register to th'e commissioner of the general land office. While this application was pending, the defendant Johnson made application at the land office at Palmyra to enter the tract in controversy. He did make such entry on the 21st day of June, 1847. The entries upon the books of the receiver and register were’ afterwards erased by those officers on the ground that the entry by J ohnson was conditional and made under an understanding with the register that J ohnson was to see Carman, and if the latter insisted upon his right to the tract, then Johnson was to surrender his receiver’s receipt and receive back his purchase money. There was much testimony bearing upon the nature of the conversations and understanding had and entered into between Johnson and Davis, the register. Afterwards, on February 4, 1848, Carman — having received a draft for fifty dollars from the treasury department of the United States, which sum was refunded to him for the land entered by him by mistake — entered the land in controversy. He, Carman, on the 19th of April, 1850, received a patent therefor from the United States. There was much evidence introduced, against the .objection of plaintiff, consisting of official correspondence of the commissioner of the general land office, of the register and the receiver at the land office at Palmyra. The court admitted in evidence, against the objection of plaintiff, the deposition of Rush, the present register of the land office at Palmyra. In this deposition Rush set forth the usage of the land office in cases of applications for changes of entries. He stated that where such applications were made the land sought to be entered was withheld from sale until the commissioner of the general land office had acted upon the application. He also stated that no application for a change of entry had, so far as he remembered, been granted at the Palmyra office, except in case where the party made a mistake as to the numbers of the tract entered at the time of entering, and shows that he intended to enter' the tract to which he asks the change to be made. If the entry was illegal on account of the land having been previously sold, the practice ’ is to refund the purchase money and not to grant a change of entry.

      The cause was tried upon an amended answer, in which the defendant set forth the circumstances under which the various entries were made and the patent of plaintiff obtained, and prayed for a decree of title. The court submitted to the jury the following issues: “ 1st. What have been the value of the rents and profits of the land in controversy since the defendant entered into the possession thereof ? 2d. Was the patent issued to the plaintiff by the United States government for the land in controversy obtained by the plaintiff fraudulently ? 3d. At the time of the alleged entry by defendant of the tract in controversy, was there an application of the plaintiff pending before the land department at Washington city for a change of a prior entry by him to the tract now in controversy ? 4th. Has the defendant made any permanent improvements on said land; if so, what; and what what is their value ?”
    The plaintiff asked the court to instruct the jury as follows : “ 1. If the jury shall find from the testimony that Joseph Carman had applied for the land in controversy to the register on the 26th of May, 1847, and that his application was pending at the time of the attempted entry by Johnson, said entry itself was void by law, and the register had no authority to sell to said Johnson. The issuing of the patent to Carman vested the title in him. 2. If the jury shall find that Carman did apply to enter the land in controversy on the 26th of May, 1847, and said application was pending, that no acts of the register or of Joseph Carman after said date would be fraudulent as against Johnson. 3. Before Johnson can set up fraud against Carman, he must show that he had an interest in the land as against the United States, or some right acquired in the entry under the law of the United States; and in that case the acts of Carman or of the register in requiring affidavit from Johnson or notice to Johnson [sic] ; nor if it should be found that Car-man had deceived Johnson or made false representations to him on his erasure of his entry on the books, could be set up in his favor against the patent, unless an interest is shown in Johnson. 4. If the jury believe from the evidence that Car-man did in fact apply for a change of entry to the land in question on the 26th of May, 1847, and that said application was pending when Johnson applied to enter said land on the 21st of June, 1847, then Johnson acquired no right by his said application to enter an attempted entry, and no representations made either by Carman or Col. Benjamin Davis in relation to said application of-Carman, of May 26, 1847, or in relation to Johnson’s subsequent application, can be held as fraudulent against Johnson, nor can they affect the title of Carman under the patent, and they should therefore find the second issue for Carman.” Of these instructions the court gave the third and refused the others.
    The court, at the instance of the defendant, gave the following instructions: “ 1. An application for a change of entry, in'cases where by the laws of the United States no change of entry is authorized and in which no change is granted, amounts in law to no application and is void from the beginning. 2. The laws of the United States do not authorize a change of entry in. cases where the United States had no title to the land entered, whether by previous sale or otherwise; but that in such cases the law only authorizes the refunding of the purchase money. - 3. If the jury believe from the evidence in the cause that the plaintiff (Carman) purchased by mistake the soutli-itest quarter of the southwest quarter of section twenty, township sixty-six, range seven, which had been previously sold to Silas and William Hunt, and to which the United States had then no title, that in such case the plaintiff could not make a legal application for a change of entry, but could only apply for refunding the purchase money; and if the jury shall so find the facts in this case, they should find the third issue in the negative; that is, that Carman, the plaintiff, ha'd not applied for the land in controversy, unless lie made some other application, of which there is no evidence in this case. 4. If the jury shall believe from the evidence in this cause that the plaintiff, or any person for him, sent false statements to the general land office, and shall also believe that these false statements induced the department to issue the patent to the plaintiff, then the jury should find the second question submitted to the jury in the affirmative. 5. If the jury shall believe from the evidence that the plaintiff (Carman), or any person for him and at his instance and request, made false statements and representations to the general land office with regard to either his application for the land in controversy or to the purchase thereof by the defendant, and that such false statements induced the department to issue the patent to the plaintiff, then the jury should find that the said patent was fraudently obtained. 6. If the jury shall believe from the evidence in the case that the plaintiff (Carman) entered by mistake forty acres of land which had previously been sold to Silas and William Hunt, and that the plaintiff, on the 26th of May, 1847, made his relinquishment of said entry and applied to change the same to the land in controversy, and shall also believe that instead of granting the change of entry the department at Washington refunded the purchase money to Cai-man (the plaintiff), then the jury should find the third issue in the negative.”
    The jury found the issues as follows: “ We, the jury, find the following issues: 1st. In the first question we find nothing due for rents and possession. 2d. We find the patent was obtained by fraud. 3d. We find there was no application to Carman for said tract in controversy at the time of Johnson’s entry. 4th. The house is worth thirty-five dollars.” On this verdict the court decreed the title in defendant.
    Givens, Dryden and Lipscomb, for appellant.
    I. The letters of the register and receiver, the auditor of the treasury, and of the commissioners of the general land office, were irrelevant and calculated to mislead. They should not have been read. The statement of Rush was incompetent. The cause should have been tried by the court without a jury. There is evidence showing conclusively that plaintiff made his application to enter the land in question on the 26th of May, 1847, twenty-five days before defendant applied; yet plaintiff’s first and fourth instructions were refused for the reason, as stated upon their margin, that there was no evidence to predicate them upon. These instructions as well as the second should have been given. (20 Mo. 108.) Defendant’s first instruction submits to the jury a question of law. So the other instructions likewise submit questions of law and are also erroneous. The prior application of plaintiff gave him a prior and better right. There is not the slightest proof of fraud. The finding of the jury is unsupported by the evidence, and is not responsive to the questions submitted.

      Bush, Ghreen and Woodyard, for respondent.
    I. The land at the time of defendant’s entry was vacant. There was no application by the plaintiff to enter the land, neither was there an application for a change of entry pending at the time of defendant’s entry, and the register could not legally refuse to defendant the right to enter the same. Such a refusal would be a fraud upon his rights. The erasure of his entry from the books of the land office was a fraud upon his rights. The plaintiff’s patent was obtained by fraud, and he held as trustee for defendant. Plaintiff entered the land with full and actual knowledge of all the facts. Judgment was properly rendered for defendant. (2 Sto. Eq. p. .895, 398; 9 Mo. 323; 7 Mo. 610; 16 Mo. 543.) The finding of this jury was supported by the evidence. ■
   Ewing, Judge,

delivered the opinion of the court.

As preliminary to the main and most material point in the case, we will notice briefly an objection to certain evidence, documentary and oral, which was admitted on the trial, and which is assigned for error. The documentary evidence consisted of official letters of the commissioner of the general land office and the first auditor of the treasury, showing the action of that department upon the-application of the appellant in 1847 — a joint letter of the register and receiver, Mahan and Griffith, of February 1,1850, in reply to a communication from the commissioner of the general land office in reference to the claim of the respondent to the land in controversy, in which they state that the entry of the appellant appears to be regular, through all the records of their office, with certain exceptions, which are noted, and which consist of erasures upon the books in connection with the respondent’s entry; also two letters of Commissioner Butterfield, one of date April 19, 1850, to the register and receiver, in which he announces his decision in the case and that he had caused appellant’s certificate of purchase to be relieved from suspension, the other April 19, 1850, to the respondent Johnson, in which he gives his reasons for the decision announced in the previous letter.

We think the evidence was properly admitted. The letters of Messrs. Young and Collins, first referred to, show the action of the department upon Carman’s application, and the act of Congress by which they were governed in ordering the money to be refunded to him for the land he had erroneously .entered. The other letters are the official correspondence of the commissioner and the officers at Palmyra relating to the contested case of Carman and Johnson, which present their official action in the premises and the grounds upon which that action was predicated. These documents; with others offered and read on the trial, were part of the same transaction, and were admissible as evidence of the official acts of officers, the validity of which was the very question involved.

As to the testimony of Rush relating to the usage of the office, it is sufficient to say that, so far as it was [at] all material or relevant, it was but a statement of what is obvious upon an inspection of the law governing the land officers in such cases, and what must have been the practice of the office if the law had been complied with.

The material point to be considered is whether there was any legal application for the land in controversy pending at tbe time the respondent applied for and entered it in June, 1847 ; in other words, whether the previous application of Carman, in May of that year, was such as the law recognized, and had the effect to withdraw or suspend the land from sale until the proceeds of the land erroneously entered by him had been refunded by the government, and to give him the right to apply them to the land in dispute.

This question must be determined by the acts of Congress on the subject of correcting erroneous entries of land and of refunding money by the government to purchasers in such cases.

The first act on this subject is that of March 3, 1819, which provides that in every case of a purchaser of public lands at private sale having entered a tract different from that intended, and being desirous of having the error corrected, he shall apply to the register of the land ofiice, and if it appear to the satisfaction of the register and receiver that an error has been made, and that the same was occasioned by original incorrect marks made by the surveyor, or by the obliteration or change of the original marks and numbers, or that it has, in any otherwise, arisen from mistake or error of the surveyor or officers of the land office, the case is to be reported to the secretary of the treasury, with the testimony and the opinion of the land officers thereon ; and the secretary of the treasury may direct that the purchaser shall be at liberty to withdraw the entry so erroneously made, and that the moneys which had been paid shall be applied in the purchase of other lands in the.same district, or credited in the payment for other lands which shall have been purchased at the same office. (3 U. S. Stat. at Large, 526.) The next act is that of May 24, 1824, which is supplementary to the the foregoing, and extends the provisions of the act of 1819 so as to embrace cases where the error was not occasioned by the acts of the officers mentioned in the latter, and to cases of entries, not intended to be made, by a mistake of the true numbers designed to be entered; and it also provides that the purchaser, under certain restrictions as to quantity and time, may have the mistake corrected by making affidavit to the facts of the mistake, and that every reasonable precaution and exertion had been used to avoid the error. This evidence, with the opinion of the land officers, being submitted to the- commissioner of the general land office, he may, if satisfied of the truth of the facts, change the entry and transfer the payment from the land erroneously entered to that intended to have been entered, if unsold ; but if sold, to any other tract liable to entry. (4 U. S. Stat. at Large, 31.) The act of May 24, 1828, is supplementary to the act of 1819, and so extends its provisions as to embrace cases where the lands have been patented. (Ib* 301.) The act of January 12, 1825, is entitled “An act authorizing repayment for land erroneously sold by the United States,” and provides that where a purchase is void by reason of a prior sale by the United States, or for want of title thereto in the United States from any other cause, the purchaser' shall be entitled to repayment of any sum paid for any such tract of land, on making satisfactory proof to the secretary of the treasury that the same was erroneously sold in the manner aforesaid by the United States, who is authorized and required to repay such sum of money. (4 Stat. at Large, 80.) These are the several laws on the subject of erroneous entries to which we have been referred, and they are believed to be all that have any application to the question under consideration.

Premising that the application of Carman, the appellant, upon which he relies, was made to the register on 26th May, 1847, and the entry of the respondent in June thereafter, the affidavit of Carman, accompanying his application, states that he applied at the land office at Palmyra and entered a tract of land different from that in dispute (which he describes) in September, 1846, and, being since informed that said tract had been previously purchased by the Hunts, he asks to change said entry and locate in lieu thereof the land in controversy. Annexed to this is the affidavit of Griffith,, to the effect that he believed the appellant did not know the tract bad been entered, and that he aimed to enter it in good faith. At the same time, and as a-part of his application, the appellant executed a relinquishment to the United States to this land, in which he recites the act of Congress of January 12, 1825, before referred to, as authorizing repayment for the land he had erroneously purchased. These papers are accompanied also by a joint letter of the register and receiver to R. M. Young, commissioner of'the general land office, referring to the erroneous purchase by Carman of Hunts’ land- and to the relinquishment to the government under the act of 1825.

Whether there was any legal or valid application by the appellant for the land in controversy depends upon the fact whether the land erroneously purchased previously was or was not the property of the United States at that time; if not, this fact, irrespective of the mere form of the application or what it may set forth, would seem to be decisive of the question. If his entry was void for this reason, he could only ask to have the money refunded by the government. He could not ask to withdraw the entry and have his money transferred to any other land. The.act of 1825 is not supplementary or amendatory of any-previous act, but is substantive and independent, and provides for a class of cases not embraced by any other law. The case of the appellant falls within the provisions of that act, because his purchase was void for want of title in the United States. This was the view of the subject taken by Commissioner Young and the officers of the treasury department, as is evident from their action on the application of the appellant in directing his money to be refunded, and in which reference is expressly had to the act of 1825. The money was refunded, and the land not actually entered until the ,4th February, 1848.

It is manifest that there is no authority under the act of 1819 for refunding purchase money, for land erroneously entered, because, if there was, there would have been no necessity for the act of 1825, which expressly authorizes this to be done. Instead of being refunded under the former act, it provides tliat the purchaser may withdraw the entry erroneously made, and the moneys which had been paid shall be applied in the purchase of other lands in the same district, or credited on other lands previously purchased at the same office. What distinguishes this act from the subsequent ones is that the errors must be such as originate with the surveyor or land officers; and that, if the purchaser wishes the mistake corrected, he may have it done on condition that the.purchase money shall be applied to other lands. The distinguishing feature of the act of 1824 is that it provides for errors not occasioned by any act of the surveyor or land officers, and does not therefore embrace this case. Another distinction between this and other acts referred to is, that, upon the correction of the erroneous entry being made, the payment is to be transferred to the tract intended to have been entered, so that, under this act, if an erroneous entry has been made without any agency of the officers, the purchaser, if he wishes it corrected, may have it done by transferring the payment as before stated, but is not entitled to have the money refunded. It is very obvious that there is nothing in any of the acts on the subject that authorizes a change of the entry of one tract to another, unless the party has made a mistake in his numbers at the time of entering, and establishes satisfactorily to the land department that he intended to enter the tract to which he desires the change to be made. The application of the appellant shows nothing of this kind.

In this view of the acts of Congress and of the application of Carman, it follows that the land in. controversy was subject to entry on the 21st June, 184T; and the respondent having paid his money and obtained a certificate of purchase, he acquired rights which could not be divested by the acts of the land officers or of the appellant. The application and entry of the latter was a nullity and gave him no legal or equitable right. The land, in contemplation of law, was in the same condition, when the respondent applied for it, as though the appellant had made no application or made no attempt to become the purchaser, and the sale to him was ■unauthorized and improvidently made.

Upon an issue submitted to the jury on the trial of the cause, they found that the appellant had notice of the prior right of the respondent, and that the patent under which he claims title was obtained by fraud. Under such circumstances, the entry of the respondent will prevail over the patent granted to Carman, and is of course unaffected by any acts of the land officers at Palmyra or the commissioner of the general land office, which, as we have seen, were without authority of law.

Judge Scott concurring,

the judgment will be affirmed.


author: Napton, Judge,

text:
    Stevenson, Defendant in Error, v. Stevenson, Plaintiff in Error.
    1. Where the evidence in a divorce case is conflicting, and the decision of the court that tries the cause depends upon the credibility of the witnesses, the supreme court will not interfere.

      Error to St. Louis Court of. Common Pleas.

      Woods Sf Buckner, for plaintiff in Error.

      Cline <§• Jamison, for defendant in' error.
   Napton, Judge,

delivered the opinion of the court.

The judgment in this case must be affirmed, under the rule of practice acted on by this court in the case of Gillespie v. Gillespie, 28 Mo. 598. The evidence, is conflicting, and indeed the decision of the case depends entirely upon the credibility of the witnesses — a matter in which this court must necessarily defer to the opinion of the court which granted the divorce.

Judgment, affirmed.

The other judges concur.


text:
    Eaton’s Administrator, Defendant in Error, v. Perry, Garnishee, Plaintiff in Error.
    1. Drunkenness does not render a deed made under its influence absolutely void, but only voidable; so long as the grantor in the deed acquiesces in it, it can not be impeached by third persons on the ground that it was executed by him when drunk.
    2. The first section of the act concerning fraudulent conveyances does not embrace deeds founded upon a valuable consideration.
    3. The fact that a mother, intending to preserve the property of a dissolute and spendthrift son for his future support, procures a deed of conveyance thereof to herself, can not of itself, no debts of the son at the date of the execution of the deed appearing, make the deed void.

      Error to Washington Circuit Cowt.

    This was a garnishment proceeding upon an execution issued against William M. Perry upon a transcript of a judgment rendered by a justice of the peace. Sarah A. Perry, his mother, was summoned as garnishee. The plaintiff filed allegations and interrogatories. In the allegations it is charged that Mrs. Perry purchased the interest of her son in the estate of his uncle John Perry, deceased, for §1,500, which was less than one-fourth its yalue ; that William M. Perry was drunk and incapable of managing his business; that he was largely indebted at the time of the sale; that said purchase was made by Mrs. Perry with collusion of others to cheat said William and prevent his paying his just debts; that the consideration of §1,500 was not even paid ; that notes were given, which were afterwards cancelled with a view to defraud creditors. The garnishee in her answer denied being indebted to her son William at the time of the garnishment. She admits that she bought her son’s interest in his uncle’s estate at less than its value, and that she did it for the sake of preserving it for his support. She denied that he was drunk at the time he made the conveyance, and that he was largely indebted at that time; and says that what debts he did owe are paid, and that he owes no debts except such as have been contracted for drink.

      At tbe trial tbe plaintiff introduced tbe deed in evidence, and offered evidence to show that William M. Perry was drunk when tbe deed was executed; that bis brother Samuel bad tried ineffectually to get a deed from said William M. Perry; that the value of the interest conveyed was worth four or five thousand dollars. The date of tbe judgment before the justice of the peace was. August 20, 1853 ; of the execution, March 11,1856 ; of the service of garnishment, April 24, 1856. The date of the deed to Mrs. Perry is July 7, 1852.
    The court, of its own motion, gave the following instructions : “ 2. If the jury find that the defendant or her agent took advantage of the drunken condition of William M. Perry, and fraudulently procured him to sell and convey his interest to her at a greatly inadequate price, they will find for the plaintiff the amount of' his debt. 3. If tbe jury find that the conveyance of William M. Perry’s interest in his uncle’s estate was made to his mother in trust and for the use and benefit of William M; Perry, they will find a verdict for the plaintiff for the amount of his debt and interest thereon from the date of the judgment.”

      Frissell, for plaintiff in error.
    Perryman, for defendant in error.
   Napton, Judge,

delivered the opinion of the court.

The second instruction given by the court in this case was, in. our judgment, erroneous.

Drunkenness does not render a deed .made under its influence absolutely void, but only voidable. A deed, made by a person when drunk to such an extent as would authorize him to repudiate it, may be ratified by the maker when sober so as to bind him and his personal representatives. (Taylor v. Patrick, 1 Bibb, 168; Arnold v. Hickman, 6 Munf. 15.) Judge Colcock remarks, in Williams v. Inabuck, 1 Bailey, 343, " Even if a man is so much intoxicated as not to know what he is doing, he may afterwards confirm the contract by his acts. If he does not intend to be bound by it, he should go, the instant he is restored to his senses, and return all that he received as a consideration.” Besides, the defence of drunkenness, like that of infancy, duress, imbecility, &c., is a personal one, and if the party, whose interest is affected by a contract made when drunk, chooses to abide by it when sober, third persons are not permitted to interpose. (See Cole v. Gibbons, 3 P. Wins. 290.)

The drunkenness of William M. Perry, the grantor in the deed sought to be impeached by one of his creditors, had nothing to do with the case so long as William M. Perry himself acquiesces in this deed. There is nothing in the case to show that William M. Perry desires to avoid this deed, and, for aught that appears, he may have ratified it, when sober.

There was no evidence of any actual fraud on the part of the mother, in procuring this deed from her son, other than the circumstance of drunkenness, to which we have alluded. The habitual intemperance of the son, connected with his utter unfitness to manage his own affairs, certainly furnished no grounds for imputing fraud to his mother for simply attempting to place his property, or rather his expected property, beyond the reach of sharpers. That part of the second instruction, therefore, which put to the jury the question of fraudulent designs on the part of Mrs. Perry, appears to be entirely gratuitous.

The third instruction submitted to the jury a question of law — the proper construction of the first section of the act concerning fraudulent conveyances. The court should have explained to the jury what circumstances constituted a conveyance “ a trust to the use of the person making it” so as to be within the operation of this section. (Robinson v. Robards, 15 Mo. 459.) It will be seen that this section applies only to voluntary conveyances, and does not embrace deeds founded on a valuable consideration. (1 Tuck. Comm. 344.) The deed from William M. Perry to his mother was founded on a valuable consideration; but if it was merely voluntary, and there were no debts at the time of its execution, it is not perceived bow the circumstance that Mrs. Perry, the grantee, intended to preserve the property for her son’s support could of itself make the deed void.

The judgment is reversed and the case remanded.

The other judges concur.


author: Scott, Judge,

text:
    Marsh, Respondent, v. Richards, Appellant.
    1. Where a party sues on a special contract to reoorer compensation due on its performance, he must show performance thereof on his part, or a legal excuse for nonperformance.
    2. Where a contractor engages to furnish materials and perform certain work for another — as to construct the hrick work of buildings — and he does perform the contract, hut notin the manner or with the materials required, he may, notwithstanding, if the party tor whom the work is done receive and enjoy the same, recover compensation therefor.
    3. The value of the work as actually done proportionally to the price fixed in the contract is the measure of damages in such case.
    4. Where a contractor engages to construct buildings with pressed brick fronts, and he uses a brick of inferior quality, the relative cost of pressed brick and the kind of brick used is a proper' matter to be considered by the jury in ascertaining the compensation to be allowed the.contractor.
    5. When two causes of action are joined in a petition, they should be stated separately.

      Appeal from Hannibal Court of Common Pleas.

    The plaintiff iii his petition set forth that on the 12th of February, 1857, he entered into a written agreement with the defendant to furnish the materials for and to construct and finish the walls of certain buildings. The stipulations of the contract are set forth, and it is stated that the fronts of the houses were to be built of pressed brick. Eor the work done plaintiff was to be paid at various rates of $8, |8.50,19.50 and $10 per thousand bricks. The work was to be completed by the 1st of September, 1857, and to be paid for as it progressed. Plaintiff then alleges that he duly performed the undertakings made incumbent upon him by said agreement “ except in the manner hereafter stated.” He then proceeds to set forth the amount of work done under the contract, together with certain items of extra work; also the particulars in which he had failed to comply with the contract. It is admitted that pressed brick were not used as stipulated, and as a justification for not using them it is alleged that defendant consented to modify the agreement in that respect and to allow plaintiff to use “ stock” brick. It is also admitted that the stipulated work was not completed at the time agreed upon, -September 1, 1857. This failure was charged to be owing to the fault and omission of defendant. The work, it was alleged, was completed about November 1,1857, and delivered to and accepted by the defendant. The petition then proceeds as follows: “ Plaintiff says that defendant owes him, for work and labor done and performed and materials furnished him in the construction of said buildings, the following sums.” He then sets the items of work down with their value, being the same items as had previously been set forth in the petition as done under the contract (including the extra work) and charged for at the contract price. He admitted payments amounting to 11,225, a-nd claimed a balance of $960.94.
    The answer admitted the execution of the contract as alleged. It denied that the amount of brick work done was as great as was stated in the petition ; denied the alleged modification of the contract so far as the “ pressed brick” were concerned; denied that the failure to complete the work stipulated for at the time agreed upon was owing to the fault or omission of defendant; and set up the noncompliance of plaintiff with the contract by way of counter-claim.
    At the trial the plaintiff introduced the contract in evidence, and also evidence showing the amount of the brick' work done and the value of the extra work done, and rested. The defendant then asked the court, among other instructions, to give the following: “1. As to so much of plaintiff’s demand as relates to materials and brick work done on the buildings mentioned in the petition, plaintiff can not recover any thing, b'ecause it is admitted by the petition that the brick used were not pressed brick as required by the contract, and because there is no evidence tending to show a modification of the contract as to the kind of brick to be used as charged in the petition. 2. As to the demand for materials and brick work, the plaintiff can not recover any thing, because it is admitted by the petition that the work was not completed at the day appointed in the contract for its completion, and because, further, there is no evidence in the cause tending to show the excuse alleged, or any excuse for plaintiff’s default. 3. The jury ought not to find for the plaintiff the price agreed in the written contract read in evidence to be paid by defendant for the materials to be furnished, and the work and labor to be performed by the plaintiff in the erection of the walls in said buildings on Centre and Main streets, because it is admitted by the petition that the materials to be used under said contract in the construction of said walls were not used by the plaintiff in the construction of the walls which he did erect; nor can they find for the plaintiff the reasonable value of the materials furnished and the work and labor performed by the plaintiff in the construction of said front walls, because it is not averred in the petition or proved by the evidence what was or is the reasonable value of the same.” The court refused so to instruct. The defendant offered to prove the relative market value in Hannibal, in 1857, of pressed and common and stock brick. The court ruled out the evidence at the instance of plaintiff. Witnesses stated that they could not estimate the difference of market value in Hannibal between a pressed brick front and a- stock or common brick front. Evidence was also introduced bearing on the subject of the default of the defendant in obstructing the completion of the brick work at the time stipulated.
    The court, at the instance of the plaintiff, gave the following instructions: “ 1. If the jury find from the evidence that at the time the contract was entered into the cellar walls were not erected, and that- it was understood between the parties that defendant should have the cellar walls put up ready for the brick work, the defendant was bound to have the cellar walls ready for the brick work within a reasonable time after the contract between plaintiff and defendant was entered into ; and if the jury further find that the defendant failed to have said cellar walls ready for the brick work within a reasonable time, and that plaintiff was ready and able to have put the brick work within the time specified in the contract, but was prevented from doing so by reason of such failure on defendant’s part, then defendant is not entitled to any damages by reason of plaintiff’s failure to complete the brick work within the time agreed on. 2. The jury ought to allow plaintiff for the quantity of brick laid in the walls or the buildings according to the prices specified in the contract read in evidence, deducting therefrom the sums of money paid by defendant to plaintiff; and if the balance thus ascertained exceeds the amount of damages allowed defendant upon his counter claim, the jury ought to find a verdict for plaintiff for this excess; and the jury ought to allow to defendant the damages he sustained by plaintiff’s act in substituting stock brick in the fronts instead of pressed brick. The measure of such damages is the amount the substitution of stock brick in the place of pressed bricks in the fronts would lessen the value of the building in the market as shown in the evidence.”
    The court refused the following instruction asked by defendant : “ The jury ought to find a verdict for the defendant on his counter claim for the amount of damage it may appear from the evidence he sustained by reason of the failure of the plaintiff to complete liis part of the work on said buildings by the first day of September, 1857; and the measure of said damage is the reasonable value of the rents and profits of said buildings during the time it may appear from the evidence the defendant was deprived of the use and enjoyment of said buildings by reason of plaintiff’s failure to complete the work contracted by him to be performed by the said 1st of September, 1857.” The jury found for plaintiff and assessed damages at $889.46.

      Lamb fy Lakenan, for appellant;
    I. This suit was based upon the written contract. No recovery can be had unless a strict compliance with the contract be shown. (4 Mo. 41; 23 Mo. 228.) The petition admits a failure to comply with the contract. There is no proof whatever to show a modification of the contract. The plaintiff having declared upon the special agreement, he can not recover for work and labor done and materials furnished. The court erred in refusing to give the first instruction asked at the close of the testimony of the plaintiff. At that stage plaintiff had shown no cause of action whatever. The court erred in excluding the evidence offered by defendant in relation to the damage he had sustained by reason of the substitution of an inferior kind of brick for the pressed brick. The circuit court required the appellant to show the difference by a market valuation at Hannibal between a building when finished with a pressed brick front and a finished building with a front such as that made by the plaintiff for the building in controversy. The witnesses all agreed that they knew of no such mode of valuation. The court should have received the testimony offered by defendant in regard to the relative valuation of pressed brick and that used, as well as the relative cost to plaintiff of procuring the two kinds of material. (2 Pars. 460 ; 2 Louis. 45; 7 Hill, 62.) The petition admitted that the building was not finished at the time prescribed. The court should have given the second instruction asked. There was no evidence then before the jury touching the alleged excuse. The jury found against the evidence.

      Porter Harrison, for respondent. -
    I. The court committed no error in refusing the instructions asked at the close of plaintiff’s case. Those instructions were based upon the unfounded hypothesis that the petition was predicated solely on the written contract. It contained a separate statement and claim for work and materials substantially good as a common count. The instructions assumed there was no evidence of the value of the work done and materials furnished. The answer admitted the brick used to be worth $8.50 per thousand. The evidence offered to show the abstract market value or cost of pressed brick was rightly refused. The principal contract of plaintiff was not to furnish brick, mortar, &c., of a certain description, as upon a sale to him at certain prices, but to do the brick work of certain buildings at stipulated prices and at a stipulated time, with brick of a certain quality or description. The erection of the buildings was the principal subject of the contract; the furnishing of the materials the incident. The work having been done and received, the plaintiff is bound to pay the value of the work done and received, not exceeding the contract price, deducting therefrom what the work was worth less, by reason of any deviations from the contract, either as to the character of the materials used or of the workmanship employed, than the same woi-k would have been worth had no such deviations occurred. (14 Mo. 885 ; 9 Mo. 218 ; 23 Mo. 230; 26 Mo. 102; 7 Pick. 184; Sedgw. on Dam. p. 220.) Plaintiff failed to prove the damage done by reason of the deviation of plaintiff from the specifications of the contract, viz., that the building was worth less, or how much less it was worth, by reason of the substitution of a different kind of brick. It is the value of the work when done, and not of the materials, that must be the test of damage.
   Scott, Judge,

delivered the opinion of the court.

There is no doubt that when a plaintiff sues on a special contract to recover the compensation due on its performance, that he must show that the contract has been performed or a legal excuse for its nonperformahee. But it is not necessary always to sue on the special contract. After a contract has been performed, the money due the contractor may be recovered on the common counts unless the contract contains some special stipulation or condition requiring an averment of performance. The present practice act lias not done away with the common counts, though now, when resorted to, they must contain a plain and concise statement of the facts constituting the cause of action. (Howard’s Practice, 195.) Although it is generally true that a party must perform his contract before he can be entitled to the compensation due on its performance, unless it is otherwise stipulated, yet there are cases in which the services rendered by the contractor are valuable to him for whom they were performed, and he has expressly or tacitly accepted them. In such cases, although the work has not been done within the stipulated time nor in the manner or with the materials required by the terms of the contract, he who performed the work may recover what it is reasonably worth to the owner, not exceeding the contract price. When work is to be performed with a specified material, or in a particular manner, for a price agreed upon, and which is favorable to him who has the work performed, the contractor, can not, by violating his contract, place himself in a better situation than if he had complied with his undertaking. The terms on which it was proposed to do the work may have been the inducement to the contract, and to permit the contractor to violate his contract and to recover the full value of his labor and materials would be encouraging dishonesty and unfair dealing. In such cases, the measure of damages would seem to be justly arrived at by the statement, that if the work, when done under the contract and in pursuance to its terms, is worth the price agreed upon, what is the work worth, done as it is, proportionally to the price fixed by the contract ? In this way, he who has contracted for the work will retain the advantage he had a right to secure to himself in fixing the price of the work, and of which the contractor can not deprive him by his own act in violating his undertaking. This, of course, goes on the ground that the party insists on his contract, and has not consented to its -abandonment by the con-' tractor. When he, who has contracted to have work done, is in a situation to see and to know that the work is not being done in pursuance to the terms .of the contract, it will always be prudent to object at once, as otherwise the jury may draw such inferences as to its abandonment from his failure to do so as all the circumstances may warrant. Fair dealing and a desire to avoid litigation would seem to require this much. When a contract is by consent abandoned, there will be no hardship in allowing the contractor to recover the value of his materials and labor on a quantum meruit.

We do not conceive that the petition in this case is founded on the special contract. It is very informal, but it must be regarded as a complaint for the nonpayment of the sum which the plaintiff’s services and materials were worth. The petition contains two causes of action stated in a way contrary to the terms of the statute. When two causes of action are joined in a petition, they should be stated separately, and each cause should stand by itself, and there should be some words showing that another cause of action was about to be stated. This petition begins with the statement of one cause of action, and in the middle of it sets out another, and af-terwards resumes the statement of the cause first begun to be set out. Such a course must inevitably produce confusion ; and it is strange that parties, who conceive that they have a good cause of action, should not endeavor to set it out in a plain, simple way, so as to be easily comprehended. If he wishes to join in the same petition two causes of action, after one cause is fully stated, he should begin the second statement, and every subsequent one, with the words and for another cause of action,” &c., or some such words as will clearly set forth his intention. Plaintiff can not and ought not to expect any advantage by jumbling several causes of action together in such way as gives rise to a contention whether one or more causes are united in the petition, and as to the relief to which he is entitled. So the statute requires that the several defences should be stated separately, just as several pleas were formerly pleaded in suits at law.

We are of opinion that the court erred in excluding evidence, of the value of pressed brick and in giving the instruction in relation to that subject. In excluding evidence of tbe value of pressed brick, the court took from the jury the principal element which would be regarded in ascertaining the amount of injury sustained by the defendant in consequence of the violation of the contract by the plaintiff. That evidence might not be conclusive, nor would it be the only matter weighed by the jury in forming their verdict, but certainly it was a subject for their consideration, and no reason is seen why it should be excluded. Not satisfied with this, the party would have the court establish a measure for the ascertainment of the defendant’s damages which was utterly impracticable, and which was pronounced to be so by all of the witnesses examined on the subject. The standard proposed was such that nothing was known about it. Indeed it is not easily understood what is meant by the market value” of houses. The plaintiff’s undertaking to build the front walls with pressed bricks at a low price may have been the inducement to the defendant to enter.into the contract. The jury should have been instructed, that, in fixing the damages sustained by the defendant, they should take into consideration the price of the work as declared by the contract, and then determine, if the work when done in pursuance to the contract is worth that sum, what it is worth done as it is. A contractor, who has undertaken to build a house with a costly material, will not be permitted to use an inferior one, and then say that the difference is a matter of taste, and that the one house is as valuable as the other. If one pays for the gratification of his taste, he has a right to have it gratified. But this is not matter of taste, as pressed bricks are worth more than ordinary ones in a building. (Farmer v. Francis, 12 Ired. 283.)

Judge Ewing concurring, the judgment is reversed and the cause remanded. Judge Napton absent.


text:
    Parks, Appellant, v. Watson et al., Respondents.
    I. A., being the owner of two sections of land, by instrument dated in 1836 and recorded in 1837, sold and agreed to convey to B. an undivided one-fourtli part thereof. The interest thus acquired passed to and became vested in C. by deed dated April 29, 1842, but not recorded until December 20, 1847. A., bj deed dated in 1839 and recorded in 1841, conveyed said two sections to D. and E. subject to the rights of B.’s representatives under the above agreement. Under this deed to D. and E., C. became interested to the extent of an undivided fourth part of the interest thus acquired by said D. and E. In 1844, under an execution issued against C., the sheriff levied upon “ all the right, title, interest and estate of the said C. in and to” the several tracts embraced in the deed from A. to D. and E., together with other tracts. In the levy and advertisement the tracts described in the deed from A. to D. and E. are designated by the numbers of the sections, township and range, after which there follows this further description : “Being the same property conveyed by A. to D. and E. by deed dated 28th of June, 1839, and recorded in book 0, p. 351 and 352.” The deed of the sheriff adopts the descriptions contained in the levy and advertisement, and conveys to the purchaser “ all the right, title, interest and claim” of C. in and to said fa-acts so described. Held, that the purchaser, by this sheriff’s deed, acquired title to that interest only which was vested in C. under the deed from A. to D. and E., and not to that held by him, at the date of the levy and sale, under the title acquired by B. from A.

      Appeal from St. Charles Circuit Court.

    This was a suit in the nature of a bill iii equity. All parties' claim title to the land in controversy under Jamison Samuel, who entered, and obtained patents for, sections twenty-seven and twenty-eight, in township forty-eight, of range five east. Samuel, by an instrument dated January II, 1886, and recorded June 6,188T, “bargained and sold unto George Shannon, of, <fec., one undivided fourth part of” said sections twenty-seven and twenty-eight. Said instrument, after more particularly describing said sections, proceeds as follows : “And the two sections constitute one body of land, one-fourth part of which I hereby promise and bind myself to convey by deed in fee simple to the' said George Shannon, to be selected on any of the outer lines, the whole fourth to be in one body and in due proportion to the figure of the whole plat of the whole body of land hereby entered. And I promise to make said conveyance whenever I receive patents for the same, or sooner, if said Shannon requires it. In witness whereof,” &c. Shannon mortgaged the interest thus acquired to one Ayres, January 29, 1836. This mortgage was foreclosed, and at the sheriff’s sale under the decree of the court Ayres became the purchaser. The sheriff’s deed to him was acknowledged May 17, 1839, and recorded August 29,1840. Ayres conveyed said interest to Elias T. Langham by deed dated April 29, 1842. This deed was recorded December 20, 1847. Langham, by deed dated August 4, 1848, and recorded'the same day, conveyed the same to his daughter Wenona Langham. This was a voluntary conveyance. In March, 1856, the said Wenona and her husband conveyed said one-fourth interest to the plaintiff Robert H. Parks. The title thus acquired is that asserted in this suit.
    Said Jamison Samuel, by deed dated June 28, 1839, and recorded June 21, 1841, conveyed to Angus W. McDonald and Kennedy Owens, among other tracts, the following: “ Sections numbers twenty-seven and twenty-eight, in township forty-eight, of range five east, containing each six hundred and forty acres ; these two sections to. be subject nevertheless to the rights in law derived or derivable to the legal representatives of the late Judge Shannon under a certain instrument of writing executed by the said Jamison Samuel unto the said Judge George Shannon, deceased, in his lifetime.” By instrument in writing, dated July 8, 1841, but not recorded, and executed by A. W. McDonald and Elias T. Langham, it was acknowledged and declared that said Langham was interested in said purchase equally with McDonald, and that his name ought-to have been inserted as grantee in the deed from Samuel. On the 25th of April, 1843, McDonald recovered a judgment against Langham in the St. Louis court of common pleas. An execution was issued on this judgment to the sheriff of St. Charles county. Under this execution the sheriff levied upon “ all the right, title, interest, and estate of the said Elias T. Langham in and to” certain tracts of land, a portion of which are described in the sheriff’s advertisement as follows: “ 1st, one section of land (No. 27) twenty-seven, in township number forty-eight (48), range five east, containing sis hundred and forty acres; 2d, one section of land, number twenty-eight (No. 28), in township number forty-eight (48), range five ' east, containing six hundred and forty acres; {The advertisement proceeds to enumerate three other tracts;] being the same property conveyed by Jamison Samuel and wife to Angus W. McDonald and Kennedy Owens by deed dated 28th of June, A. D. 1839, and recorded in the recorder’s office of St. Charles county, in book 0, page 351 and 352.” The sheriff’s deed, which was acknowledged May 14, 1844, and recorded September 14, 1848, conveyed “ all the right, title, interest and claim which the said Elias T. Langham had in and to said several tracts of land” to Angus W. McDonald, adopting the description contained in the advertisement. The defendant Watson claimed title by virtue of various conveyances from McDonald and Owens.
    The plaintiff prayed that the court would “ decree a fee simple title in the petitioner in and to the one-fourth part of said two sections of land, and have the same set off to him on one of the outer lines of the said two sections of land in one body, according to the aforesaid agreement of the said Jamison Samuel and George Shannon; and that the west half of section twenty-eight above described be set off and allotted to him, the said half section being one-fourth of the said two sections of land, and being in one body, and on one of the outer lines of said two sections of land, and in due proportion to the figure of the whole body of said two sections of land, and for such other and further relief,” &c.
    The plaintiff asked the court to “ decide that no title to the land in controversy passed to Angus W. McDonald by virtue of the sheriff’s deed of May 13, 1844, except such title as was conveyed to McDonald and Owens by the deed of Jamison Samuel of June 28, 1839.” The court refused so to “ decide, but decided that said sheriff’s deed conveyed to McDonald all the title to said land that said Langham had at the date of the levy of execution on said land, and at the time that the execution came to the hands of the sheriff of St. Charles, derived from any sotirce whatever.”
    Leonard, Wells and É. A. Lewis, for appellant.
    I. The words, in the sheriff’s deed to McDonald, “ being the same property conveyed by,” &c., are restrictive of the general description before given. (5 Mete. 25; 6 Mete. 532 ; 5 N. H. 536 ; 7 N. H. 244; 5 N. JBT. 59; Greenl. Ev. § 286 ; 2 Phill. Ev. 718, 734; Glamorgan- v. Lane, 9 Mo. 475 ; Broom’s Legal Max. 273; 6 Conn. 722; Elagg v. Bean, 5 Foster, 49 ; 1 Dev. 242 ; 14 Penn. State, 29; 11 Barb. 174; 4 Mass. 205 ; 4 Foster, 54; 13 Maine, 430 ; 37 Maine, 63.)

      Glover Sf Richardson and Broadhead, for respondents.
    I. The court rightly refused the instructions asked. The legal effect of the sheriff’s deed was to pass all Langham’s interest in sections twenty-seven and twenty-eight. (5 Mete. 28; 4 Mass. 196 ; 2 Mete. 41; 6 Mete. 529 ; 36 Maine, 316 ; 31 Penn. State, 475; 2 Parsons on Contr. 59.)
   Napton, Judge,

delivered the opinion of the court.

The sheriff’s deed, which we are called upon to interpret in this case, in pursuance of the words of the levy, advertisement and sale, conveyed “ all the right, title and estate” of Langham in “ sections twenty-seven and twenty-eight” (township and range being specified) and in several other pieces of land, all of them, including these sections, being enumerated in the deed from Samuel to Owens and McDonald, and proceeds with this further description: “ Being the same property conveyed by Jamison Samuel and wife to Angus McDonald and Kennedy Owens, by deed dated 28th June, 1839, and recorded in recorder’s office of St. Charles county, in book 0, p. 351 and 352.”

The deed from Samuel to McDonald and Owens, thus referred to, does not convey the entire sections twenty-seven and twenty-eight, but only three quarters of them, excluding from its operation an undivided fourth of the two sections previously conveyed by the grantor to George Shannon. It appeared from another instrument of writing also on the record, that Langham was equally interested with McDonald in this purchase made from Samuel, and that it was through inadvertence or mistake that his name was omitted in the deed. These deeds showed that at the date of the sheriff’s sale, heretofore adverted, to, Langham had one-fourth of three-fourths of the two sections, deriving his title from the conveyance of Samuel to McDonald and Owens, referred to in the sheriff’s deed.

Previously to the sale from Samuel, the original proprietor, to McDonald and Owens, as appears from the recitals in the deed to these persons, as well as by the instrument of writing itself by which it was effected, Samuel had conveyed to George Shannon a fourth part of these two sections, which “ was to be selected on one of the outer lines of the entire tract, and was to be in one body and in due proportion to the figure of the whole body of the said land.” This title, by conveyances and mortgages, had been, at the date of the sheriff’s levy, entirely vested in Langham.

Langham was then, at the date of this sheriff’s sale, the owner of one-fowrth of these sections by a title derived from the deed of Samuel (the original proprietor) to Shannon, and of the fourth of the other three-fourths by conveyances based upon the deed from Samuel to McDonald and Owens.

The question in this case is whether the sheriff’s deed conveyed both these interests, or only the interest which he held under a derivative title, based upon the deed to McDonald and Owens, particularly referred to in the sheriff’s deed.

There is something on the face of the sheriff’s deed as well as his levy and advertisement, which seems to convey the idea that Langham was not the owner of the entire sections twenty-seven and twenty-eight. No one, we think, could read the sheriff’s advertisement and take up such an impression from its phraseology. It seems to be implied, by the use of the words “ all his right, title and interest,” as well as by the diffuse or extended, description which follows, that he was not and did not pretend to be the owner of the entire tract of land indicated by sections twenty-seven and twenty-eight. It is clear that the sheriff did not so regard him, for, if he did, it is impossible to account for the unnecessary circumlocution employed by the sheriff to describe a thing at once so simple, plain and easy to be expressed.

This being the general impression conveyed by the sheriff’s- description, the question would naturally arise with those who proposed to bid or to buy, what is the interest which Langham has in these two sections, and which it is proposed by this advertisement to sell ? The answer to that by the sheriff is, “being the same property conveyed by Jamison Samuel and wife to Angus McDonald and'Kennedy Owens, by deed dated,” &c. This deed shows that only three-fourths of the two sections were conveyed by it, and if Langham’s title was based upon it, his interest could not exceed that proportion of the whole tract. This deed, it is true, does not use Langham’s name, nor was it material that it should, for a reference to the public records, just as accessible as this deed, to which purchasers were referred, would show that Langham had one-half of McDonald’s interest. The mere reference to the deed by the sheriff would be sufficient to advise any one that Langham’s interest had its source in that title; for, if it had no connection with it, such a reference to it would be a mere absurdity, unless we adopt the suggestion that it was designed to be a more perfect description of sections twenty-seven and twenty-eight. This last suggestion is not entitled to much weight, and involves the extremely improbable supposition that the officer supposed he could, by any amount of circumlocution, make a description of a section of public land clearer than a simple enunciation of its number would make it. But the deed is evidently referred to for no such purpose, but to show the quantity of title he was selling and its origin.

In interpreting,written instruments of every kind, courts must resort and invariably have resorted to extrinsic circumstances. The situation and surroundings of the person whose deed or will is under examination, and of the subject matter affected by the paper, will necessarily enter into the consideration of a cotirt in determining the intent of the instrument. We must place ourselves in the condition of the person writing to understand what he means and intends. Hence cases upon the construction of written instruments can not go far as precedents, and do not usually throw much light upon other cases. A very minute circumstance or expression will change the whole force of a paper, and each case, after all, is settled by its own circumstances.

In reaching the conclusion, however, which we have done in this case, we do not consider that it is unsupported by authority. On the contrary, we think the weight of authority sustains us, and we are not prepared to admit that any of the decided cases necessarily conflict with the view we have taken of the case. Some of the cases appear to conflict, probably do conflict, but most of them are reconcilable, and the apparent diversity grows out of really different circumstances, and a resort to different rules of interpretation. Sometimes the general intent of an instrument is quite apparent, and courts, in such cases, disregard details conflicting with such general intent; sometimes one rule of interpretation is chiefly relied on, properly so in the case, whilst in another, with equal propriety, another maxim is resorted to for the purpose of elucidating the intent.

It is not proposed to review the authorities in detail; but we refer to a few of them to illustrate our views.

The case of Sheppard v. Simpson, 1 Dev. 242, is very much like this case in all its particulars. There the sheriff’s deed conveyed “ all the interest” which the defendant in the' execution had to a certain tract of land, describing it, and then the language of the deed is: “ Being the land devised to C. S. by his father D. S., and the undivided share of the 'said C. S. in the lands of his deceased brother J. S.” This deed was held to pass only the interest derived by 0. S. from his father and his brother, although, at the date of the levy, advertisement and sale, the defendant in the execution owned the entire tract of land described by the will of his mother. The case is not distinguishable from the present, and some observations made by the judge who delivered the opinion of the court in that case may be transcribed as applicable to the present. “ It is of great importance,” said Judge Taylor, “ to the public, that the land sold at a sheriff’s sale should be so specified and defined that every person attending may know what price to bid, and to be under no doubt as to the land he is bidding for. If the whole of C.’s land passed under this deed, it would give an undue advantage to those bidders who were apprised of the true state of the title, and enable them to purchase the whole tract, while others were regulating their bids by the belief that nothing more than the land described by the sheriff was set up for sale.”

The cases of Barnard v. Martin, 5 N. H. 534, and Allen v. Allen, 14 Maine, 887, are cases of voluntary conveyances, where general terms of description — as the word homestead, .house, farm, &c. — are restricted by subsequent special boundaries. They are in accordance with the cases quoted from North Carolina.

The case of Northington v. Hillyer, 4 Mass. 205, is decided upon its own peculiar circumstances. It was a case in which the general intent of the grantor was most manifest, and the court would not permit an additional particular description, calculated to throw obscurity over -the entire deed, to defeat the main purpose of the parties to'it; and it was therefore rejected as false description. That was not a sale by an officer under judicial process; and, if it had been, it is not clear that the court would have come to the same conclusion. (Mason v. White, 11 Barb. 174.)

The cases of Wheeler, adm’r, v. Randall, 6 Metc. 532; Thatcher v. Howland, 2 Metc. 41; Elliott v. Thatcher (reported in a note to this last case), and Melvin v. Prop. Locks, &c., 5 Metc. 15, are cases in which the general intent of the deed to convey all the property first described is thought to be so plain as to authorize and require the courts to disregard subsequent clauses apparently restricting the operation of the deeds. They are all based upon the maxim, falsa demonstratio non nocet. The case of Elliott v. Thatcher, like that of Northington v. Hillyer, is a case of plain mistake in the additional descriptive words used; and to give, them their full force or make them restrictive would be against the plain general intent of the deed. These cases are entirely reconcilable with the decisions in North Carolina and New Hampshire, although the case of Melvin v. Prop. Locks, &c., 5 Metc. 15, may not be, and was at all events not so thought to be by the judges who decided it.

We proceed, in this case, upon a cardinal rule of interpretation, that effect is to be given to all the words of a written instrument. If the words are restrictive, then the grant will be restrained within the limits of the restrictive clause, if by so doing we can make it available. If the restrictive terms have nothing to operate on, they must be rejected as insensible. (Shepherd’s Touch. 247.) We may believe, from the circumstances of the case, that if the sheriff had known of Langham’s interest under Shannon he would undoubtedly have sold it, as well as that based upon the title under McDonald and Owens; but the question is, did the sheriff so intend, and did the bidder so understand it? Looking at the advertisement, what may we suppose the purchaser to have been buying ? Langham’s interest in sections ' twenty-seven and twenty-eight, undoubtedly; but what that interest was would be the next inquiry by the bidder, and the answer to that is to be found, as we think, in the reference made by the officer to the deed from Samuel to McDonald and Owens. This clause is not, as we understand it, cumulative, but restrictive, and can not be rejected as mere falsa demonstratio.

Judge Ewing concurring, judgment reversed and cause remanded. Judge Scott absent.


text:
    McCune, Respondent, v. McCune, Appellant.
    1. When a person parts with his property, he may attach such lawful conditions to the transfer as he thinks proper.
    2. Slaves were devised by a husband to his widow for life, with remainder to their children at her death. The persons appointed by the will to make the division among the heirs, with the consent of the widow made a division of the slaves among the heirs and widow, she reserving the right to take back the slaves at any time she should choose to do so. This condition was not communicated to the heirs. Held, that the acts and declarations of the heirs were inadmissible in evidence against the widow to show that she had consented to an unconditional surrender of the slaves allotted and an abandonment of her life estate, unless it were shown that she had knowledge of, or assented to, or acquiesced in, such acts and declarations, in some form or other.

      Appeal from Ralls Circuit Court.

    It is deemed unnecessary to set forth the facts more fully than they appear in the opinion of the court.
    Henderson, for appellant.
    I. The mode of appraising the slaves, the valuation at their full worth, the payment of money between the heirs to make their slaves equal, the agreement of the heirs to support an aged slave whose support devolved on the plaintiff in consideration of the division, the fact that notes previously given by the heirs to the executor were adjusted in this transaction, their rights made equal in every thing to that date, and all obligation over to the estate cancelled at the time, with the knowledge and consent of plaintiff, and that one of the parties receiving slaves on that day and under the same distribution and division was permitted to take them to California without objection on her part, and under the belief of the other heirs that the division was final, conclusive and operative on all the parties, are facts throwing light upon the transaction, and the court should not have excluded them. J. S. McCune’s letter should have been admitted. The instructions asked and overruled should have been given. The instruction given for plaintiff was erroneous, in that it declared it was unnecessary to communicate the conditions of the possession to the defendant.
    Broadhead, for respondent.
   Ewing, Judge,

delivered the opinion of the court.

This was an action by the widow of Samuel McCune, deceased, to recover the possession of three slaves, which, with all the other property of the testator, were given by his will to respondent during her life or widowhood, with power to dispose of all or any of the slaves should they become disobedient ; and at her death said property was to be divided among the three children, Henry, Joseph and Rebecca. "William L. McCune, John S. McCune and Thomas Cleaver were appointed by the will to make division of the property. In 1852 and after testator’s death, the three last named persons met at the house of resjiondent and made division of a portion of the slaves among the heirs. The slaves in controversy were assigned to appellant and his wife Rebecca, and he took possession of them.

The respondent insists that the slaves were merely loaned to appellant, and that the right was expressly reserved to take them back at any time. The appellant alleges that the partition was intended as a surrender and abandonment of her life estate, and that no conditions were annexed. On the trial respondent read the will, introduced some evidence as to the value of the slaves and their services, and closed. Appellant then proved the division of the slaves, as already stated, at the house of the respondent; that it was made as equal as possible among the heirs ; and that those allotted to appellant shortly thereafter went into his possession, three or four being assigned at the same time to the respondent. It was also proved by John S. McCune, the executor of the will, that the division was made at his instance; that, being desirous of getting the estate off his hands, the legatees being of age, he proposed to respondent that she should reserve such of the slaves as she wished, and .consent to a division of the remainder among the heirs; that she at first objected, saying that it was the request of the testator that the negroes be kept together during her life, and that she had promised him to do so, but finally consented, reserving the right to take them back at any time she chose to do so; that among the slaves selected by the widow was an old woman, and upon witness advising her to take a yoxxnger one, she declined, saying she could take any of them'back whenever she desired. After this the division was made as stated; the witness took receipts as executor from the parties for the negroes. The heirs were not informed by him of any conditions, nor of the conversation he .had with the respondent. He declined communicating the conditions to appellant and the other heirs in order to avoid unpleasant feelings on their part towards the respondent and to have the business of the estate settled. Appellant then offered to prove that in the valuation of the slaves they were valued regardless of the widow’s life estate; that in the distribution an. old and decrepit slave in respondent’s possession, and a part of the property bequeathed to her by her late husband, was to be taken care of and supported by the three legatees ; also that the heirs paid money to each other at' the time to make the shares equal; and that one of the legatees had since removed to California taking the slaves allotted to him with the knowledge of the respondent. He further offered to prove that all the property received by the legatee, Rebecca, in the lifetime of her first husband Wright was turned over to the witness (Cleaver) for the benefit of the two children of said Wright. The rejection of this evidence is assigned for error.

Much of this evidence was wholly irrelevant and had no tendency to prove any assent, either express or implied, to an unconditional surrender of the slaves in controversy to the appellant, or any abandonment of her life estate in them. That one of the heirs may have taken the slaves allotted to him out of the state with respondent’s knowledge, is entirely consistent with the conditions on which she parted with them and with the right she asserts to those in controversy. As to the acts and declarations of third persons concerning the division of the slaves, and their valuation as it respected respondent’s life estate, it is not perceived how she is to be affected by them without showing that she had knowledge of them and gave her assent or, acquiescence in some form or other. The evidence tended to prove not how the respondent understood the arrangement, but how it was understood by other persons, and was properly excluded. The appellant also offered to read in evidence a letter of Jno. S. McCune to Samuel 0. McCune, which was excluded. This letter was dated St. Louis, October, 1852, about two months after the division of the slaves took place, and relates to matters foreign to the issue. The objections to the other evidence excluded apply with equal force to this.

On the part of the respondent the court instructed the jury that they might infer a gift from the circumstances of the case in the absence of acts and declarations to the contrary, but that inference may be rebutted by acts or declarations made at the time to the contrary, and if they find that plaintiff, when she assented to the division of the slaves, attached any condition to that assent, it was not necessary to communicate that condition to the defendant, but she can only be held to have parted with the property upon such conditions. The court, on its own motion, instructed the jury, submitting to them the question of the intent and purpose with which the slaves in controversy were delivered to the appellant, and that if there was a delivery to appellant shortly after his marriage with respondent’s daughter without notifying him of any conditions, or that she intended to loan the slaves only, the law would presume a gift of her life interest in the slaves as an advancement, but that this presumption might be rebutted by the evidence. The jury were also told by an instruction given at the instance of appellant, that if the slaves were delivered to him with the understanding on the part of respondent that she could reclaim them at pleasure, yet they ought to find for defendant if she afterwards abándonéd her right. The other instructions asked by the appellant, which were refused, need not be noticed in detail.' Several of. them assert a proposition, the converse of that contained in the instruction given at .the instance of the respondent ; and the others are based, upon the hypothesis of a gift of the slaves, and an abandonment from.lapse of time.

The instructions given present the law of the case fully and fairly to the jury upon the evidence. The first instruction only asserts in effect that a party can not be divested of his property without his consent, and that when he does part with it he may annex such lawful conditions to the transfer as he may think proper. This is substantially the instruction. There is no controversy as to the right of the respondent to the property under the will, nor as to the right of the appellant .to a share of it in right of his wife at the termination of the widow’s life estate. It is insisted, however, that, having consented to a partition of the slaves and a delivery of possession of a part of them to the appellant, without notifying him of the condition she annexed thereto, she can not now avail herself, of it, in seeking to reclaim them. If tlie executor acted prematurely and without authority in making partition of the slaves and delivering them to the heirs, then such illegal act can not divest the title of respondent, and she can reclaim them at any time, as she could recover any other property to which she knight be entitled. If the partition and the delivery pursuant to it were made with the intention and expectation on the part of the heirs and executor that it should be final, and- pass the life estate of the widow, it was no act of hers, no. arrangement to which she was a party, and by which she can'not be boun(d unless it was in accordance with the terms she prescribed. In such case the possession acquired by the appellant was acquired without the consent of .the respondent and does not bind her.

John S. McCune, through whose instrumentality the partition was made, seems to have acted for both parties, and not as the agent peculiarly of the respondent. But, if he is to be regarded as the agent of the respondent, he was an agent with limited and specific powers as to the particular transaction, and his agency must be construed according to its real nature and extent; and the other party must have acted at his own peril, and was bound to inquire into the nature and extent of the authority actually conferred. In such cases there is no ground to contend that the principal ought to be bound by the acts of the agent beyond what he has authorized, because he has not misled the confidence of the other party who has dealt with the agent. Each party is equally innocent, and, in a just sense, it can not be said that the principal has enabled the agent to practice any deception on the other party. (Story on Agency, 122-4.)

The judgment will be affirmed,-

Judge Napton concurring. Judge Scott absent.


author: NaptoN, Judge,

text:
    Miller, Appellant, v. Iron County, Respondent.
    1. The county courts are not agents of their respective counties in exercising their statutory jurisdiction over prohate matters, guardians, minors, lunatics, idiots, &c. In this field of jurisdiction they are a branch of the state judiciary, and the counties can not be held responsible for their action.

      Appeal from Iron Circuit Court.

    This was an action under the provisions of the act of December 12, 1855, (R- C. 1855, p. 47,) against the county of Iron to recover damages alleged to have been sustained by the plaintiff by reason of the death of her husband through the gross negligence of the county court of Iron county in not appointing a guardian for and in not confining one Richard Callaway, who had been found, under an inquisition had by said county court, to be of unsound mind and dangerous to be permitted to run at large. Plaintiff’s husband was, it was alleged, killed by said Callaway. The court sustained a demurrer to the petition.

      Perryman Sf Carter, for appellant.
    I. The court erred in sustaining the demurrer. (2 Denio, 433; 1 Sandf. 223; 3 Hill, 612, 531; 3 Comst. 463; 12 Mo. 414.)

      Pipkin, for respondent.
    I. The court properly sustained the demurrer. (1 Hill, 545; Hill, S. 0., 571; 1 Amer. Lea. Oas. 622.)
   NaptoN, Judge,

delivered the opinion of the court.

We consider it against all the well settled principles of law to hold a county responsible for the action of the county court, held within its limits, in the exercise of that jurisdiction over insane persons confided to it by statute. We do not regard the county court of Iron 'county as in any proper sense a mere agent or servant of that county in exercising its statutory jurisdiction over probate matters, over guardians and minors, lunatics, idiots, and insane persons, apprentices, &c. In this field of jurisdiction, the court is a branch of the state judiciary, exercising in fact a jurisdiction originally found in the chancery courts and ecclesiastical courts of England, and conferred here by statute upon these county tribunals. It would be quite as reasonable to sue the county of Iron for injuries sustained by some action or non-action of the circuit court. The county courts, in matters of this sort, are as much state courts’ as the circuit courts. Their judges were formerly appointed by the governor, and, although they are now elected by the people of the county, yet when elected, they constitute a part of the state judiciary. They administer the laws of the state in matters entrusted to their jurisdiction; and the counties as municipal corporations, and the people of the counties, have no control over their action, and of course can not be held responsible for it. ■ Their jurisdiction, it is true, is confined within the bounds of their counties, so far as persons are concerned, but so it is in reference to the circuit courts.

This view of the subject presents a fatal objection to the action in this case; we have, therefore, not deemed it necessary to look into the question discussed in the briefs. How far a municipal corporation is liable for the acts of commission or omission of its officers and servants, is, we think, a matter not necessary to be determined in this case.

Judgment affirmed ;

the other judges concur.


text:
    Kretschmar v. Board of Commissioners of St. Louis County.
    1. The clerk of the St. Louis criminal court is entitled to the fees allowed by the third section of the act of February 12,1857. (Sess. Acts, 1857, p. 63.) He is not restricted to the fees allowed in the eleventh, section of the act of December 6, 1855. (B. C. 1855, p. 756.)

      Application for Mandamus.

    This was an application to the supreme court for a mandamus directed to the Board of Commissioners of St. Louis county, commanding said board to allow and order to be paid certain items contained in a fee-bill allowed by the St. Louis criminal court in favor of the clerk of said court. These items consisted of fees charged and allowed in favor of said clerk under the third section of the act of February 12, 1857. (Sess. Acts, 1857, p. 63.)

      Cline 8f Jamison and Lackland, for Kretschmar.

      S. II. Gardner, for Board of Commissioners.
    I. The act of 1855, in so far as it relates to the fees in criminal cases that may be charged against the state and county, has in no respect been repealed or modified. The plaintiff can charge the defendant such fees, and at such rates, only as are authorized by the act of 1855.
   Napton, Judge,

delivered the opinion of the court.

The third section of the act of February 12, 1857, entitled “ An act to amend an act entitled ‘ An act to regulate fees,’ approved December 5,1855,” provides that the clerks of the several circuit courts of this state, and of the court of common pleas of the county of St. Louis, and of the St. Louis land court, shall receive, in all civil proceedings, the following fees for their services.” Here follows an enumeration of’the fees. The section then concludes thus: “ Anri the clerks of county and probate courts, and of the criminal court of St. Louis county, and of allcourts of common pleas having civil jurisdiction, the same fees as above for like services.” The eleventh section of the act óf 1855, to which this law is an amendment, provided “ that the clerks of the several courts of this state possessing criminal jurisdiction, shall be entitled to the following fees for their services in criminal proceedings; and no fee in suqh proceedings shall be allowed by virtue of any other provision in this act contained.” And then follows the fees allowed the clerks of criminal courts in criminal proceedings'.

The question submitted upon the application for a mandamus in this case is, whether the clerk of the criminal court is entitled to the fees given by the third section of the Act of ■February 12, 1857, in criminal cases.

Some of the services enumerated in the. third section above referred to are such as may be rendered in both civil and criminal cases ; but it is perfectly -clear that no clerk in the state, except the clerk of the criminal courtof St. Louis, could claim any of the fees therein specified in any criminal case. The fees by the first part of the section are restricted to civil cases; but we think it is equally clear that the clerk of the criminal court of St. Louis is entitled to these fees by the express words of the act.

Why the clerk of the criminal court of St. Louis was allowed fees, which by the law are prohibited to all other clerks in criminal cases, is not a Subject for our inquiry, when it appears to be the plain intention of the legislature that this discrimination should be made. As this clerk is the cle^c of a court which has no jurisdiction in civil cases, if we apply the restriction upon the fees made in the first part of the section to him we annul the provision in his favor altogether. We must understand this provision, so far as it regards the criminal court in St. Louis, as repealing the restriction of the eleventh section of the law of 1855.

Judge Ewing concurring, the mandamus upon the commissioners will, according to the understanding of the counsel on both sides, be made peremptory.