text:
    Hubble v. Perrin and Hinkle.
    Bill in chancery can not be sustained to subject moneys owned by one or two partners to pay partnership debt, until the partnership estate liable to execution is exhausted.
    This cause came before Judges Hitchcock and Burnet, in Clark •county, 1827.
    The bill was filed under section 59 of the act directing the mode of proceeding in chancery.
    The complainant alleges that the defendant, Perrin, was formerly a partner in trade, with one Gibbs. That the firm of Perrin & Gibbs contracted sundry debts, which remained unpaid on the dissolution, of their partnership; that they are possessed of real estate in the county of Champaign; that several judgments were obtained against the firm, on which executions were taken out and levied on the said real ^estate ¡ that one of those judgments is in favor of the complainant; that the property levied on is wholly insufficient to satisfy the judgments ; that no other property of the said firm,, or either of them, can be found; and that the defendant, Hinkle, as clerk of the Supreme Court, has in his hands the sum of three hundred dollars, paid by virtue of a decree of this court, for the use of the defendant, Perrin. The prayer of the bill is, that the money so held may be applied in payment of the debt due to the complainant.
    Perrin, by his answer, admits the partnership and the judgments; hut he sets out and describes several tracts of land belonging to> himself separately, and a house and lgt belonging to the firm of Perrin & Gibbs, which are liable to be taken by the judgment creditors. He admits the money in the hands of Hinkle to be his, but insists that it ought not to be applied in payment of partnership debts, while there is partnership property undisposed of.
    Anthony argued for complainant.
    Mason, for the defendants.
   By the Court :

The facts stated in the answer are substantially made out by the exhibits. It appears that there is real estate belonging to the late firm of Perrin & Gibbs, which the complainant may resort to, if the property already levied on should prove insufficient. This being the fact, the bill can not be sustained. The statute authorizes a judgment creditor to resort to the chancery side of the court, to reach property or money in the hands of third persons, when the defendant has not real or personal property sufficient to satisfy the judgment, which can be taken in execution. This provision was made to prevent a failure of justice, and is to be resorted to only in cases of necessity. That necessity ought to be apparent, to give jurisdiction to this court. On the point, whether the facts on which the jurisdiction of the court depends, must be specially stated in the bill or not, there has been, and still is, a diversity of opinion among -the members of the court. But it is presumed, there can be but *one opinion, whether the facts must not be fully made out, at the hearing, in order to sustain the bill. In this respect, wo think there has been a total failure on the part of the complainant. He admits that he has an execution levied on real property, not yet disposed of, the proceeds of which can not be now known, and it is in proof that there is other property not levied on.

But there is another objection to the relief prayed. Equity will not lend its aid to subject the separate property of a partner to the payment of partnership debts while the joint property of the firm is unexhausted. That is the proper fund for the payment of partnership debts, and must be resorted to before the separate funds of the partners can be reached, through the agency of this court.

Bill dismissed.


source: Caselaw Access Project

author: By the Court :

license: Public Domain

text:
    The Commissioners of Clermont County v. Lytle.
    Judges of the common pleas not disqualified by interest to try a cause, where the commissioners are a party, and money the subject in controversy.
    Before Judges Burnet and Sherman, in Clermont county, 1827.
    This case was certified from the common pleas, on the ground that the associate judges wore citizens of Clermont county, and as such interested in the event o,f the suit.
   By the Court :

This case is not within the original jurisdiction of this court. It has been sent here on a supposition that the associates are interested, and that therefore there was not a sufficient number of disinterested judges of that court to sit on the trial. The only interest which they have is common to every citizen of the county, and if it be sufficient to disqualify them, it would sustain a challenge to the array and to the competency of every witness residing in the county. We are of opinion, however, that the interest is not sufficient to produce these embarrassing consequences. The claim of a few hundred dollars, by a county containing twenty thousand inhabitants, can not create an interest to ^disqualify a judge, a juror, or a witness. We find many cases in which citizens of towns, counties, and states have been admitted as competent witnesses on behalf of such town, county, or state. • In Cumming v. Pinkham, Adams, 353, it was ruled that an inhabitant of a town was a competent witness, though the town was a party in interest, and called him to testify in its favor. In Bloodgood v. Jamieson, 12 Johns. 285, it was decided that an inhabitant of a town, liable to be taxed for the support of the poor, is a competent witness for the plaintiff, in a suit for a penalty, to be applied to the use of the poor of that town. In Orange v. Springfield, 1 South. 186, an inhabitant of a township was a witness in a question of a settlement of a pauper. In Schenck v. Corshen, 1 Cox, 189, it was decided that an inhabitant of a county or township was a competent witness in a suit in which such county or township was interested. In Connecticut v. Brandish, 14 Mass. 296, it was decided that in an action by a state, in the courts of another state, an inhabitant of the state suing is a competent witness for the plaintiff. Other cases might be referred to were it necessary, but we are satisfied that the common pleas of Clermont county is the proper tribunal to hoar and decide this cause, and that this court has no right to take jurisdiction of it. It must therefore be remanded.


text:
    Wilson v. A. Delarack and the Administrators of M. Delarack.
    Case made in hill, and denied in answer by administrators of intestate, must be made out by proof.
    Heard before Judges Burnet and Sherman, in Butler county, 1827.
    The bill states, that McManus executed a mortgage to the complainant, Wilson, to secure the payment of a sum of money, and .-•afterward sold the mortgaged promises to the defendant, A. Delarack, subject to the mortgage. That a part of the purchase money was left in the hands of A. Delarack, to be applied in discharge of ■the mortgage. That A. Delarack delivered goods to Wilson at ■ different times, to the amount of one hundred and ninety-two dollars. That a ^settlement afterward took place, at which the amount was ascertained. That an agreement was then made, that the sum should be credited on the mortgage; but the mort.gage not being present, that Wilson should give to A. Delarack ■his note for the amount, which should be afterward indorsed on ■the mortgage, and the note canceled. That in pursuance of his .agreement, Wilson gave his negotiable note to A. Delarack, who shortly after assigned it to his father, M. Delaraek, without consideration, and to defraud the complainant. It is further stated, that M. Delaraek has obtained judgment against the complainant for the note. The bill prays for a perpetual injunction, and that the amount due on the note may be applied as a credit on the mortgage. The insolvency of A. Delaraek is also alleged.
    The answer of A. Delaraek admits his purchase from McManus, subject to the mortgage, and also the delivery of the goods, the execution of the note by Wilson, and the assignment of it to M. Delaraek, but denies the agreement that the amount should be credited on the mortgage, and avers that the assignment to his father was bona fide, and for a valuable consideration.
    The administrators of M. Delaraek answer that they are ignorant of the principal facts alleged in the bill. They admit the assignment of the note to their intestate; they believe it was made in good faith, and for a valuable consideration. They deny fraud, and claim the judgment to be legally and equitably done.
    Dunlevy and Colett, for complainant.
    Sargeant, for defendant.
   By the Court :

The fraud charged in the bill is denied in the answers, and is not sustained by the testimony. It appears from the exhibits that the complainant has obtained a judgment on his mortgage for the amount due, by virtue of which, the mortgaged premises have been sold, so that A. Delaraek has lost the property, and the money he has paid on it, and *the object of this bill is, in effect, to require of him a further payment. To do this, a very clear case ought to be made out.

If A. Delaraek, either at the delivery of the goods, or the execution of the note, agreed that the amount should be credited on the mortgage, and if the note was given on the faith of such an agreement, it was a fraud in him afterward to assign it, and so far as his interest is concerned, the agreement ought to be enforced.

On the supposition that the facts in the bill are true, the delivery of the goods created no debt on the part of Wilson, and the note being given for a special, purpose, could not be assigned, without a breach of faith on the part of the payee; but the difficulty is, that the complainant does not sustain his case. The answers deny the equity of the bill. The testimony in support* of the bill amounts to nothing more than strong presumption, which is rebutted by presumption, on the other side, equally strong.

If the goods were delivered as a payment on the mortgage, a receipt would have answered the purpose much better than a note; or if a note was preferred, why was it made negotiable, and why did the complainant take a judgment for the full amount of the mortgage, without giving credit for the goods.

If these matters can be satisfactorily accounted for, still, as the bill is denied, the complainant was bound to sustain it by testimony sufficient to overbalance the answer. This he has not done. The testimony as to the agreement is vague and uncertain, and leaves it about as probable that it was not made as that it was.

This being our view of the case, it is not necessary to examine it in reference to the rights of Si. Delarack, the assignee.

Bill dismissed.


text:
    Waggoner v. Speck and the Heirs of Cooper.
    Real estate, occupied by permission of the owner on a parol agreement that the occupation should continue during the life of the occupant, can not be subjected to occupant’s debts in equity.
    Heard before Judges Hitchcock, and Burnet, in Montgomery county, 1827.
    The bill charges, that Waggoner has received a judgment against Speck, in the common pleas of Montgomery county. That he holds another judgment against Speck by assignment. That no property can be found, on which the ^executions on those judgments can be levied. That Speck purchased a lot from Cooper in his life, which he improved, and now lives on ; and that he refuses to take a deed for the said lot, with a view of keeping it out of the reach of his creditors. The bill prays that the lot may be sold, and that the heirs of Cooper may be required to make a title to the purchaser. The defendant, Speck, denies that he purchased or paid for the lot, or that he has any title to it, legal or equitable. He admits that he is in possession of the lot; alleges that he took possession by the permission of Cooper, who promised that he would permit him to occupy it during his life, and that Cooper had said, at different times, that he intended to give the lot to the daughter of the defendant.
    The heirs of Cooper have answered, that being infants of tender years, they have but little knowledge of the matters in the bill. That they have understood and believe that the defendant, Speck, never purchased the lot. That he occupied it by the indulgence of their father, but that he has no right to it, legal or equitable. ■ »,
    The case was argued by Stoddart for the complainant, and Bacon, Smith, and Lowe, for the defendants.
   By the Court :

It appears from the testimony that the defendant, Speck, has occupied the lot in question several years, and that he has improved it; but there is no evidence of any contract between him and Cooper for a purchase, nor does it appear that any payment has been made, either on account of a purchase, or of a lease. Several of the witnesses state they have heard Cooper say, he would let Speck live on the lot during his life, and that he intended to give it to his daughter Nancy, and it is evident that Speck relied on such a promise when he took possession and made his improvements; but these facts and circumstances make out a different case from that which is stated. The discrepancy is so great as to render it impossible to give relief in any form, under the present bill.

The objection relied on in the argument that the contract, if auy existed, was not in writing, would not, of itself, necessarily bar the complainant from the relief which he seeks. It has become the settled construction of our statute for the prevention of frauds and perjuries, that the delivery *of possession is such a species of part performance as may take a case out of the statute, when the effect of it is not controlled by other facts connected with the case.

Bill dismissed.


text:
    Moore v. Beasley.
    Tenancy from year to year.
    Tenant having enjoyed possession of premises leased, can not dispute the lessor’s title.
    If the lessor has been in possession, the lessee can not give nil habuit in evidence, without having been evicted.
    Parol lease and possession taken under it is not within statute of frauds.
    Before Judges Burnet and Sherman, in Brown county, 1827.
    This was a writ of error to reverse a judgment rendered in the common pleas. It appeared from the record, that the plaintiff below brought an action of assumpsit for uso and occupation. The defendant pleaded the general issue, with notice that he would offer evidence to prove that the premises for which the rent was claimed were not the property of the plaintiff. At the trial, the plaintiff proved that he leased the property to the defendant for one year, for twenty dollars ; that at the time of the agreement, there was a conversation on the subject of continuing the lease for a longer term; that the defendant took possession in 1820, under the above renting, and has continued to occupy the premises ever since; and that the plaintiff had been in the habit of leasing the same premises to different persons, for fifteen or twenty years.
    The defendant, under his plea and notice, offered in evidence a grant of the premises to C. Wallace, made in 1824, and a sale from Wallace to himself. This testimony was objected to, and overruled.
    The defendant then moved for a nonsuit, on the ground that the contract was void, under the statute against frauds and perjuries, which was overruled.
    He then moved the court to instruct the jury that the case was within that statute, which was also refused, and bills of exception were taken. A verdict and judgment were rendered for the plaintiff, and a writ of error taken to reverse it, on the matters stated in the bills.
    Brush, for the plaintiff in error,
    relied on the distinction between executed and executory contracts. He contended that the lessor had no title, and that it was a good plea for the lessee to say that the lessor had nothing in the premises ; that Beasley could not have a color of title against the ^government, under whom they claim; that use and occupation at common law is, where there is a contract to pay, and that the statute, George 2, gives the action where there is a contract. He cited 1 Pow. 152; Co. Lit. 47, b; 4 Bac. 64; 15 Johns. 505; 1 Term. 380; 2 Salk. 414; 1 Ld. Raym. 746.)
    Hawes argued the case for the defendant in error:
    He cited 1 Root, 77; 1 Caine, 444; 2 Caine, 215; 3 Caine, 188; 6 Johns. 34; Addison, 356; 2 Binney, 468; 1 Wash. 351; 1 Johns. 322; 1 Mun. 407; 4 Hen. & Mun. 161; 2 Wood Lec. 152; 1 Term, 387; 2 Bibb, 432; Revised Code, 218; 8 Term, 3 ; Robs. Fraud, 240.
   By the Court :

The circumstances under which Moore entered and occupied, made him a tenant from year to year, at the rent agreed upon for the first year, and he is liable to Beasley for rent, at that rate, in an action for use and occupation, unless he can avail himself of one of the grounds set up by way of defense, in the court below, the rejection of which is now assigned for error.

The first ground is, that the defendant below was not permitted to prove a title in himself, acquired, after he had occupied the premises several years, in the character of a tenant to the plaintiff. From the earnest manner in which this pointwas argued, we have been induced to give it a serious consideration, and although it has been our uniform course to reject evidence of this character, under a conviction that the principle was well settled, that a tenant, who has enjoyed the premises to the end of his term without interruption, can not be permitted to question the title of his landlord, we have carefully examined the authorities cited, and the course of reasoning by which the counsel endeavored to apply them. The doctrine in 1 Pow. 152, is, that if one make a lease to another, and the lessor has then no interest in the land leased, it is a good plea for the lessee to say, that the lessor had nothing in the lands at the time of the lease. The doctrine is taken from Coke Lit. 49, b, whore the commentator gives the reason of the text, which is this: “ That in every contract, there must be quid pro quo, for contractus est quasi actus contra actum, and, therefore, if the lessor had nothing in the land, the lessee hath not quid pro quo, nor anything for which he should pay *any rent, and in that case he may plead, that the lessor non dimisit, and give in evidence the other matter.” This commentary seems too plain to require illustration. It can not be affirmed, that a person has nothing in land, which he has had in possession fifteen or twenty years; nor can it be said of a lessee, that he hath not quid pro quo, or anything for. which he should pay rent, after he has received possession from his lessor, and enjoyed without interruption during his term. The plaintiff’s counsel seems to consider a person as having nothing in land, unless he has a perfect legal estate, but such, we apprehend, is not the meaning of the law; a mere possessory title is sufficient. The tenant who has enjoyed his term uninterrupted, has received the full consideration of his promise, and can not afterward plead non dimisit or nil habuit. In Chettle v. Pound, 1 Ld. Raym. 746, which was debt for rent, it was ruled that if the plaintiff had been in possession, though but tenant at will, the defendant could not give nil habuit in evidence, without having been evicted. An eviction in this case is not pretended. The tenant occupied without molestation of any kind to the end of his term.

In Watson v. Alexander, 1 Wash. 351, the court say, the declaration charges enjoyment of the property by the appellants, during the term for which the rent is claimed, which is sufficient to maintain the action. On the whole, we are compelled to say, that our opinion remains unchanged; we still think that a tenant can not be allowed to question the title of his. landlord, from whom he has received possession, after he has enjoyed his term without interruption.

' The second error relied on, depends on the construction of the statute for the prevention of frauds and perjuries. This court has decided, as often as the question has been made, that part performance may take a case out of that statute, and that delivery of possession, on a parol lease, is sufficient for that purpose.

There was, in this case, not only a delivery of possession to Moore, but an enjoyment by him of everything for which he contracted. On the part of Beasley, the contract was fully performed ; it does not, therefore, come within the design of the act.

The case of Wilber v. Paine, 1 Ohio, 252, may bo considered as settling this point.

Judgment affirmed.


author: By the Court:

text:
    Masterson v. Beasley, etc.

      Application to redeem land sold for taxes.

    An appeal does not lie from the judgment of the court of common pleas on application to redeem lands sold for taxes.
    The authority of a person, claiming to act as agent for applicants, to redeem land sold for taxes, is not a matter to be questioned by the purchaser, on certiorari, after the recognition of such power by the common pleas. -
    The validity of the title of the applicant to redeem lands sold for taxes can not be drawn into question on the hearing of the application.
    Before Judges Burnet and Sherman, in Brown county.
    This case was brought before the court at the last term, by appeal. The appeal was dismissed, on the ground that the statute, under which the order was made, did not authorize such a proceeding, and that the right of appeal given by the practice act, was confined to adversary proceedings, conducted according to the course of the common law, and did not extend to summary proceedings authorized by particular statutes.
    The .case has since been brought up by certiorari.

    It appears from the record that in November, 1826, an application was made by N. Beasley, as an agent of the minor heirs of N. Massie, to redeem a tract of land sold for taxes. To support the application, Beasley produced the certificate of the auditor of state_ showing that one hundred acres of land charged with taxes in the name of John Jonett, had been sold to the plaintiff, Masterson, on December 29,1823, for the sum of five dollars, being the amount of taxes, penalty, and interest, due thereon, for the years 1821, 1822, and 1823. He also produced the auditor’s receipt showing that the money had been deposited on December 20,1825, for the redemption of said land as the statute directed. It was also proved that the applicants had given the notice required by law. Whereupon it was adjudged by the court that the applicants were entitled to redeem.
    *The transcript contained a bill of exceptions, taken by Masterson, setting out the notice, the publication, the certificate, and the receipt of the auditor, the patent to the heirs of Massie, and the deposition of Wm. Creighton, Jr., Esq., stating the heirship and ages of the applicants. It also sets out a deed offered in evidence by Masterson, executed by the marshal of the district of Ohio, convoying the land in question to one Charles Johnson, by virtue of a judgment and execution, in the Circuit Court of the United States, against the applicants, as heirs at law of N. Massie, deceased. On this testimony Masterson objected to the application, on the ground that the evidence was not sufficient to sustain it. The objection was overruled and an order of redemption was made.
    The reasons assigned for reversing the order were:

      First. There is no proof of the right or title of the said Beasley, as agent of the said heirs, to the said land or to redeem the same.

      Second. There is not any proof in said record or proceedings, of the agency of the said Beasley to apjoly for said redemption as such agent, according to the act of assembly.

      Third. The said Masterson gave evidence that the title was not in the said heirs of said Massie, or said agent, and that, therefore, they had no right of redemption.
    Brush, for the plaintiff,
    in arguing the case, relied on two grounds:

      First. That Beasley did not show such an agency as entitled him to make the application in the name of the heirs.

      Second. That the legal title was in Johnson, and not in Massio’s heirs; and, therefore, that no application to redeem could be sustained in their names or for their benefit.
   By the Court:

The law for the redemption of land sold for taxes is equitable in its provisions, and ought to receive a liberal interpretation. It provides for the security of the purchaser, and protects his right in any event. If the land be redeemed, the purchaser’s money and interest must be refunded in all cases, and if the applicant has not been under any legal disability, he must pay fifty per cent, in addition, and must *also pay for any improvements which may have been made by the purchaser. Such being the conditions of a redemption, the purchaser can not complain, nor can he expect a rigid construction of the statute against the applicant.

An examination of the record certified from the common pleas, shows that the proceedings, on the part of the applicants, have been technically correct.

The question, whether Beasley was legally authorized to represent the minor heirs of Massio, does not in any degree affect the merits of the case, nor does it concern the rights of the purchaser. The court below were satisfied with the evidence of his authority. The guardians of the minors have not questioned it, nor can the purchaser be permitted to do so. As the redemption is made in the name, and for the benefit of the heirs, there is no ground for apprehending the improper intermeddling of a stranger. It is a matter of but little moment in what way the agent derives his power. He acts as an attorney in fact, and if his authority is not disputed by his principal, no other person has a right to complain, because none other have been injured. The purchaser of the tax title must receive everything to which the law entitles him, before the order for a redemption can be operative.

The second error assigned, is not exactly true in point of fact. The sale by the marshal does not necessarily show that the heirs of Massie have been divested of their legal title. The validity of that sale depends on the legality of the judgment and subsequent proceedings, which the heirs are at liberty to contest, and having this privilege, they must be permitted to protect themselves and their possessions against others. If this objection, to the right of redemption by the heirs, should prevail, their right to contest the title claimed under the marshal would be of but little use, for, whatever might be the result of such a contest, their title would be lost by the collector’s sale.

But the statute does not require the person, who applies to redeem', to show a legal title in himself. The only provision on that subject is, that if, on examination, it shall appear to the court, that the claimant has a legal right to redeem such land, or any part thereof, the court shall adjudge the same to him, etc. It is no part of the duty of the court to decide ^questions of title on applications like this. They are to inquire whether the party has a right to redeem, and not whether he has a perfect title to the land. In the Virginia military district, where the land in question is situate, it may happen that one person claims under a junior entry not carried into grant, while another has the possession, and a patent on an elder entry, each party believing himself to have the better title. In such a case, it would be difficult to decide who had the right to redeem, if the construction of the plaintiff be correct. In a court of law the patent must prevail. In a court of equity, the persons holding the junior entry might prevail.

This and similar cases will show the embarrassment to which the court of common pleas may be exposed, if they are to decide questions of title on applications of this kind.

A stranger having no interest in the land will not incur the trouble and expense of redeeming it in his own name, nor his own right; but if such an attempt should be made, it could not succeed, because it is confessedly the duty of the court to require satisfactory evidence of a right to redeem.

The applicant must show that he, or those for whom he professes to act, are in some way connected with the title to the promises, as by deed, descent, contract, or possession under claim of title, either of which will be sufficient.

An equitable title, or a naked, possession, may give a legal right of redemption under the statute, which was not intended to require investigations of title, further than may be necessary to prevent impertinent applications.

This being our view of the subject, it follows that the proceedings, and the order of the court below, must be affirmed.


text:
    Anthony Weyer, late Sheriff of Belmont County, v. Samuel Zane.
    Judgment of a court of competent jurisdiction, though rendered in a form of proceeding not known to our practice, and apparently without service of process or notice on the defendant, can not he treated as a nullity whilst unreversed.
    This was a scire facias, to revive and have execution of a judgment recovered by the plaintiff, against the defendant, in the court of common pleas of Belmont county, at December term, 1813. The scire facias recited, that at the December term, 1813, a judgment was recovered against Anthony Weyer, then sheriff of Belmont county, upon a motion to amerce, at the suit of Sterling Johnson, for not.collecting and paying the amount of an execution put into his hands, at the suit of Johnson v. Zane. The scire facias then proceeded to recite, that at the same term the said sheriff “ obtained a judgment against Samuel Zane and Elisha Woods, the substance of which judgment is as follows, to wit: Upon a forthcoming bond, for the delivery of property to satisfy an execution against Samuel Zane, in favor of Sterling Johnson, for the sum of two hundred and fifty-four dollars and seventy-nine cents, with interest from August 19, 1813. And on motion of the plaintiff by his attorney, and it appearing to the court, that the plaintiff had this day been amerced in consequence of the defendants failing to deliver the property they had bound themselves to do, to satisfy the execution aforesaid, whereupon it is ordered and ^adjudged by the court, that the plaintiff recover of the defendants the sum of five hundred and ten dollars, in damages, and his costs about his suit expended, which judgment is this day rendered for the plaintiff’s security, in consequence of being amerced, and is to be satisfied by the payment of the sum the plaintiff is amerced in.” The scire facias proceeded to suggest, that Woods was deceased, and that the amount of the judgment on amercement v. Weyer remained unpaid, and prayed that Zane might be summoned, to show cause why the judgment should not be revived and execution had against him.
    The defendant demurred generally to the scire facias, and pleaded other pleas. In the court of common pleas, judgment was given for the defendant. The plaintiff appealed to the Supreme Court, and the case was adjourned here upon the question on the demurrer alone.
    No argument was submitted on either side.
   By the Court :

The demurrer assumes that the judgment set forth in the scire facias is so utterly irregular as to be absolutely void and of no effect. We can not adopt this opinion. The court that rendered it was a court of competent jurisdiction over both parties and subject. However summary their proceedings, or however irregular, the solemn judgment of a competent and authorized tribunal can not be treated as a nullity. There is an explicit and formal judgment, and, although the proceedings upon which it is predicated, may be unknown to our jurisprudence, still, as in all other judgments, they are not open for inquiry, except in regular mode of reinvestigation on writ of error or certiorari. It is seldom that the error complained of, is, in the manner of rendering the judgment itself. Generally, it is founded on some of the intermediato matters, for mistake in which it is supposed that the judgment stands upon an incorrect conclusion, with respect to facts or principles. There is no substantial distinction between this and other cases that we can perceive. The demurrer must be overruled and the cause remanded for hearing on the pleas.


text:
    *Peter Spurk v. David Vangundy.
    Defendant in error dies after assignment of error and joinder, it is not necessary to make his representatives parties.
    This was a writ of error adjourned here for decision from Pick-away county. The declaration was in covenant upon a covenant of seizin, in a deed for the conveyance of land, and contained no averment of an eviction. The cause was tried in the court of common pleas, October term, 1826, and a verdict and judgment given for the plaintiff, to reverse which, this writ of error was brought.
    After the assignment of errors, and the joinder in error, the defendant in error died.
    Ewing, for plaintiff in error,
    insisted, that the court should, nevertheless, proceed to judgment without making the defendant’s representatives parties. He cited 2 Seld. Pr. 406, 407; Ld. Raym. 1295. The question of costs, he maintained, did not affect the principle. 2 Seld. Pr. 406.
    No counsel appeared on the other side.
   The court proceeded to judgment, and upon the authority of the case of Backus’ adm’rs v. McCoy, ante, 211, reversed the judgment.


text:
    John Gist v. G. C. Lybrand.
    When the maker of a note removes from the state where he resided at the time of making it, into another state, the holder is not bound to make a demand of the maker to charge the indorser.
    Indorser resided in the county, nine miles from the city, and spent part of his time in the city, receiving letters and messages at a particular place in tho route of a letter carrier, and proof that notice of non-payment by the maker was put into tho post-office of the city, directed to the indorser. Verdict for the plaintiff; new trial denied, though no proof given by the plaintiff that the city post-office was the nearest to the defendant.
    This cause was adjourued from the county of Knox, and came up for decision on a motion for a now trial, made on behalf of the defendant.
    It was an action upon the case against the defendant, as the indorser of a promissory note, made to Lybrand by Richard Ware, dated Philadelphia, August 4, 1818, payable twelve months after date, and indorsed by the defendant to the plaintiff before it became due.
    One count aveiwed that when the note became payable, diligent search was made for Ware to demand payment of him, but he could not be found, and thereupon the said note was protested for nonpayment, and notice thereof to defendant. Another count stated that after the indorsement, and before the note became payable, Ware secretly ^absconded from Philadelphia, and fled to parts unknown; and when the note became due, diligent inquiry was made for Ware to demand payment of him, but he could not be found, of which the defendant had notice.
    The defendant pleaded the general issue.
    Upon tho trial the defendant’s counsel objected to the admissibility of the evidence offered by the plaintiff to excuse the want of a personal demand upon Ware, the drawer, and also to the evidence offered by the plaintiff to prove notice of non-payment to the defendant, the indorser. But these objections' were overruled by the court, and it was for the alleged mistake of the court, in these particulars, that a new trial was claimed.
    1. As to the demand, the evidence offered by the plaintiff was the following:

      First. John Warnoek deposed that he was well acquainted with Ware; prior to August, 1819, deponent was deputized to serve a warrant on Ware for a debt of ninety-six dollars and seventy-eight cents; went to Ware’s house in Philadelphia; Ware was not to be seen ; deponent called to him, and Ware replied that he was not to be seen by any person on business. Shortly after, this deponent heard it publicly said that Ware had absconded, and had deserted his place of residence to avoid his creditors, and had gone to the college, in Yirginia. Deponent afterward saw Ware casually in Philadelphia, and made demand of payment of said debt, for which he had the warrant; Ware stated he was unable to pay, and before deponent could get out process, Ware suddenly left the city ; has recently understood he (Ware) was in New York.

      Second. William Bozarth was acquainted with Ware, who was a house-carpenter, and kept an iron-mongery store in Market street, above Ninth, Philadelphia. Some time in the year 1818 called at this store, and inquired for Ware, and the person in the store informed him that Ware had gone away, he did not know where, but believed to the South ; shortly after heard, as a matter of common report, that Ware had absconded, and different statements were made as to the place he had gone to. Some time in 1819 or 1820, deponent met Ware in the street, Ware could have been then but a short time in the city; has not since seen *him in the [803-city ; has heard that he passed through the city within two years, on his way to New York; thinks it was during the year 1818 that Ware left the city.

      Third. Peter L. Berry was well acquainted with Ware, and being his bail, was very desirous of finding him before he left the city, but was unable to do so. Ware left the city clandestinely and deponent considered him,as having absconded; does not exactly recollect the time Ware went away; thinks it was about ten years ago, July, 1827. Deponent always believed he left Philadelphia, and went away to avoid his creditors.

      Fourth. Jacob Rheim was acquainted with Ware whilst he resided in Philadelphia. On January 5, 1819, Ware was still residing in the city, and left it in the spring or summer following, to go to Yirginia. He has been absent from the city ever since, except that he was once seen by the deponent, a year or two afterward, in the city. [A written notice is exhibited in the deposition of this witness, which he states to be in Ware’s handwriting, and signed by Ware. It is dated April 24, 1819, at Chester, in Delaware county, and is a notice by Ware to his creditors, that he ha3 applied to the common pleas of Delaware county for the benefit of the insolvent law, and that Monday, May 10, 1819, was the day appointed for the hearing of the petition.] Deponent was informed by Ware, that it was his intention to go to Virginia, to assist in building Jefferson College, and that the job would detain him several years.

      Fifth. John C. Evans. Ware left Philadelphia some time after the beginning of May, and before the month of August, 1819.
    2. As to notice to Lybrand, the indorser, of non-payment, the evidence is:

      First. Joseph S. Randall, in August, 1819, was a clerk to Peter Lohra, notary public, in Philadelphia. On August 7,1819 (as deponent knows from a memorandum made by him at the time), by the direction of Mr. Lohra, he put into the post-office of Philadelphia separate notices for Richard Ware and George C. Lybrand, of protest of the note mentioned in the declaration. [The note and protest are identified by witness, and exhibited in his deposition.]

      *Second. John C. Evans. Lybrand left Philadelphia in the year of 1818, or beginning of 1819, deponent thinks the latter, and has continued to reside at a distance from Philadelphia since. When in Philadelphia, he lived, as deponent believes, with his mother, in Eighth street.

      Third. George Masters. Prior to August, or September, 1818, Lybrand resided in Market above Ninth street, Philadelphia, whore he kept a hardware store. On May 7, 1818, deponent went to live on a place belonging to said Lybrand, in Roxboro township, about nine miles from Philadelphia, as a tenant of Lybrand’s. In the month of August or September of that year, Lybrand came to live on the farm, and continued to live there two or three years. He followed no business there, was frequently in the city, and directed deponent if he should have occasion to see him, during his absence, to call for him at his mother’s in Eighth street; deponent frequently saw him at his mother’s; Lybrand did not put up in the city at any other place, and there deponent was frequently ■directed to call on business for Lybrand; was in the habit of bringing things from that place to Lybrand, and on one occasion, particularly, he recollected carrying a note or letter to him.

      Fourth. David Watson. (Two depositions of this witness.) First. Is, and has been, since 1810, a letter-carrier for a district in the city of Philadelphia; several years ago, was in the habit of receiving letters from the post-office addressed to George C. Lybrand; these letters were left with Lybrand’s mother, in North Eighth street, Philadelphia; this practice of leaving Lybrand’s letters with his mother continued for two or three years ; for several years last passed, deponent does not recollect having received any letters for Lybrand; during the time he was in the habit of carrying Lybrand’s letters to his mother’s, heard no complaint of any miscarriage ; from the practice of the post-office, any letters addressed to Lybrand would have been carried to his mother’s ; does not recollect ever having seen Lybrand.

      Second deposition. In the year_1818, deponent carried letters addressed to George C. Lybrand to the store which Lybrand then kept in Market street; does not recollect of carrying any letters to Lybrand, previously to April, 1818; ^deponent can not state at what time Lybrand left the store, in Market street, but afterward deponent was in the habit of carrying letters for him to his mother’s, in Eighth street; after some time deponent understood he had left Philadelphia, and from that time, has no recollection of any letter being left for him in the post-office; whatever letters came at any time for him after he left the store, were taken to his mother’s, and there left; deponent recollects the person of George 0. Lybrand; deponent recollects after Lybrand left the store, his mother’s was the place pointed out by Lybrand, at which letters to him wore to be left, but can not state this positively; can not state the year Lybrand left Philadelphia.
    W. W. Irwin, for defendant:
    Two questions present themselves for the-decision of the court:
    1. Was the demand of payment such as to enable the plaintiff to recover ?
    2. Was notice given by the plaintiff to the defendant of that demand ?
    The drawer of a bill and the indorser of a note are responsible only after a default of the maker or acceptor, and the holder must first demand payment of him, or use due diligence to demand it, before he can resort to the drawer or indorser. 2 Johns. Cas. 75; 9 Johns. 121; 12 Johns. 423; 4 Mass. 341; Chitty on Bills, 260.

      To prove a demand the plaintiff gave in evidence the deposition of Joseph S. Randall, who testifies that on the 7th or 8th day of August, 1819, he put into the post-office, in the city of Philadelphia, separate notices for Richard Ware and George C. Lybrand, of protest of a certain note, here exhibited by the deponent, and marked with his initials.
    The protest of promissory note, or inland bill of exchange, is not necessary, and is no evidence of the facts stated in it. 20 Johns. 383; 6 Wheat. 140, 572. This court, in the case of the Bank of Chillicothe v. Kerr’s indorsers, made a similar decision, and upon the trial of this cause rejected the protest, which was not given in evidence to the jury.
    *The only evidence remaining is that the witness put notices of protest of a certain note, the one in suit, in the post-office in Philadelphia. As the protest was not necessary, and is-not evidence of the facts contained in it, there was no proof who-held this note, or whose it was when it became due, and there is no proof of a demand, or even an inquiry after Ware, the maker, on the day the note fell due.
    As an excuse for this negligence, the plaintiff offered proof that Ware left Philadelphia before the note was due, and that he had-actually absconded, or gone to the State of Virginia.
    Upon examination it will be found the only evidence of Ware’s-leaving the city was from hearsay. It was reported, but when, or by whom, is not known, that he had absconded. Hearsay is admitted in but few cases, and this is not one of that character. His neighbors could have proved facts, from which inferences might be drawn with certainty. For instance, Stuart, who is named as-giving information to Berry, could have, under oath, testified to facts. But as it is, the reports may or may not be true. They want the sanction of an oath ! The rule requiring the holder of the note to make inquiry for the maker is founded in good sense, and obviates all the uncertainty and inconvenience arising out of hearsay testimony.
    Had the holder of the note made inquiry for Ware, at his last place of residence in the city, on the day the note became due, or had he made'inquiry for him of his neighbors and acquaintances, proof of that inquiry, and that he co uld not be found, would have furnished something like certain data for the court; but instead-of this the plaintiff rests his case on hearsay.

      It is necessary to prove the indorsement of the note by the defendant; a demand on the maker; a notice to the indorser. Why, may I ask, is it not equally proper to prove the indorsement and the notice by hearsay, as well as to prove by hearsay that the maker had absconded, which is equivalent to a demand. Hearsay, and unknown from what quarter it came, and whether creditable or not we can not tell, is a species of testimony too uncertain in its character to rest our rights upon. In cases of boundary, pedigree, etc., it is received from the necessity of the case, but here no such necessity exists.
    ^Notice was given by Ware to his creditors that on the 10th of May he should take the benefit of the insolvent act, at Chester, and he spoke of his intention to go to the college in Yirginia. One of the witnesses says he went there after taking the benefit of the act. His acts and declarations of his intentions are irreconcilable to the hearsay reports of his leaving the city clandestinely, and as the plaintiff is bound to make clear his excuse for omitting to make the demand, the testimony offered falls far short of producing that effect. The weight of evidence is that he left Philadelphia for Jefferson College, to be employed there, and his intention of going there was spoken of by himself, and appears to have been known to several of the witnesses.
    If he merely removed, the plaintiff ought to have presented the note for payment to him, or if going beyond the state changes the character of the obligations between the indorser and the indorsee, so as to make the place of demand local, then a demand ought to have been made in Philadelphia.
    If the maker has removed out of the state, the holder is excused from seeking him further than his last place of residence. Sanger v. Stimpson, 8 Mass.; 5 Binney, 542; Thompson v. Kitchem, 4 Johns. 285.
    When the maker of a note removed to Canada, from Albany, a demand at Albany was deemed sufficient. 14 Johns. 117; Chitty on Bills, 180, 181. In Ohitty, it is laid down as a rule (180) that, “ If the drawee of a bill can not be found at the place where the bill states him to reside, and it appear that he never lived there, or has absconded, the bill is to be considered as dishonored, but if he have only removed, it is incumbent on the holder to endeavor to find out to what place he has removed, and to make the presentment there, and he should in all cases make every possible inquiry after the drawee, and if it be in his power, present the bill to him.”
    Here no inquiry was made for the maker of the note, and no presentment made at the last place of residence of Ware, for payment.
    It may be said that it was useless to make a demand of payment at the last residence of Ware, or to make inquiry for him, if he had actually gone to Virginia. So it may be said of a note payable at a bank, or at any particular Aplace. If the maker has made no provisions for its payment, proof of that fact will not suffice ; but there must be proof of a demand, or of acts equivalent to it.
    The relationship between an indorser and an indorsee is defined by legal rules, and it is not the province of the court to inquire into the wisdom of those rules, and to make changes operating upon past transactions.
    The notice in this case is also deficient. The proof is, that notice of protest of the note was put in the post-office in Philadelphia on the 7th or 8th of August, 1819, directed to George C. Lybrand.
    If he lived in the city the notice ought to have been served on him personally; if removed, the notice ought to have been directed to him at his place'of residence. Holliday v. Martinell, 20 Johns. 168. And in the case of Snider v. Utica Bank, 20 Johns. 383, the court, in speaking of notice, say, “ It is a condition precedent, and that strict proof is required. The law has allowed the indorser his protection, and nothing short of clear proof shall subject him to liability.”
    After Lybrand left the city, there is no proof that he had any transactions in the post-office at that place, or that he had directed his letters to be taken to his mother’s, and if he did, it would make no difference, unless there is proof that the notice was actually taken there. Ireland v. Rip, 11 Johns. 231; 10 Johns. 490. Whether there was or was not a post-office at Roxboro is a matter for the plaintiff to establish. If there was a post-office there, the notice ought to have been directed to that place. If none, then to the post-office nearest to that placed Upon this subject there is no proof; nor is there any proof that the post-office in Philadelphia was the place at which the defendant received his letters, when the' note became due. Upon this subject, suspicion or slight presumption will not do, the law requires clear and uuoquivocel testimony.

      H. Stanbert, for plaintiff:
    The questions understood to be reserved in this case are, whether the court erred in admitting the evidence offered by the plaintiff, upon the trial, to excuse a demand upon Ware, the maker of the note, and to show notice of its non-payment to Lybrand, the indorsor.

      *First. As to the evidence in excuse of a demand. The note fell due on August 7, 1819, which was the last day of grace. It was dated at Philadelphia, and not made payable at any particular place. The evidence shows that, at the making of the note, Ware resided in Philadelphia, but prior to its maturity removed to the State of Virginia.
    Under these circumstances, a personal demand upon Ware was not necessary. In England, when the maker has removed out of the kingdom, no demand is necessary, but the indorser stands committed. Per Mr. Justice Johnson, in Magruder v. Bank of Washington, 9 Wheat. 598. In the United States, it has been repeatedly decided that a removal beyond the limits of a particular state, although it be to an adjoining one, is tantamount to going beyond seas or out of the kingdom.
    It has been so held by this court in respect to the operation of the statute of limitations.
    Without looking further to analogies, we have the highest authority that the very case of the removal of the maker of a promissory note beyond the state, is equivalent to going beyqnd seas, and excuses a demand. McGruder v. Bank of Washington, ut sup.

    In that case, the court observe that “ reason and convenience are in favor of sustaining the doctrine that such a removal is an excuse from actual demand. Precision and certainty are often of more importance to the rules of law than their abstract justice. On this point there is no other rule that can be laid down, which will not leave too much latitude as to place and distance.” Anderson v. Drake, 14 Johns. 114, is to the same effect.
    But it may be contended that although the removal of Ware excused the necessity of a personal demand, yet the note should at least have been presented at his.former residence in Philadelphia, and inquiry there have been made for him. To what purpose? The evidence shows that the presentment of the note at his former residence would have been useless; there was no one at that place to answer to the demand. And why the necessity or propriety of inquiring, when the facts show that if the inquiry had been sue* cessful, the holder of the note need not to have followed him to the place of his removal. The object of inquiry is to direct the *holder to the place where the maker may be found, for the purpose of a personal demand, and it'is merely useless, when, from the situation of the matter, a personal demand is unnecessary.
    It will be found upon examination that the case in Wheaton, above referred to, fully sanctions this position. There, when the note was made, the maker was a housekeeper in the District of Columbia. Ten days before it fell due, he removed out of the district about nine miles, to a place in the State of Maryland. A notary went to his last place of residence in the district, in order thereto present the note and demand payment, and not finding him there, and being ignorant of his then place of residence, returned the note under protest. There was no evidence that any search or a single inquiry was made for his place of removal. If he had removed to another place within the district, this sort of diligence would not have excused a personal demand. The mere circumstance of going to the maker’s house and not finding him there, was of no moment. The court do not take it into the account in holding the indorser, in that case, liable; but his liability is made to result purely from the removal of the maker to another state, without reference to any greater or less degree of diligence or inquiry.
    In the principal case, there are other circumstances besides the removal of the maker beyond the state, which makes it a stronger case to excuse, demand, or inquiry, than that in Wheaton. It is said by the court, in that case, that “ the circumstances of his (the maker’s) removal had nothing in them to sanction its being construed into an act of absconding.” The circumstances attending the maker’s removal, in this case, have everything in them to warrant that construction. It is proven by the witnesses that in 1819, Ware’s circumstances began to fail. In April of that year, he applied lor the benefit of the insolvent law. He secrets himself from the pursuit of his creditors ; shuts himself up in his house, and refuses to be seen upon business; and finally leaves the state before the month of August of that year in a secret manner, without making any provision for the payment of his debts, and with, every mark of concealment from his creditors.
    *The only reason that can be imagined for the presentment of the note, at the last residence of the maker within the state, ia founded on the presumption, that he has there left funds for its payment. Here that reason, however it might weigh in an innocent removal, has no application. There is no room for the presumption that Ware had left funds for the payment of this note, when it is shown that the very object of his removal was to avoid the payment of his debts.
    In England, to use the language of the Supreme Court of the United States in the case above cited, if the maker of the note abscond, the indorser stands committed. Bailey on Bills, 68.
    In the case of Duncan v. McCullough, 4 Serg. & Rawle, 480, Ch. J. Tilghman holds, that if it be proved that the maker had absconded and was not to be found, when the note fell due, a demand of payment would be dispensed with. A presentment of the note, at his last residence, is not stated to be necessary.
    In Putnam et al. v. Sullivan et al., 4 Mass. 45, the maker had absconded before the note was due. There was no evidence of any regular demand, no presentment at his last residence, nor any pretense of inquiry, or search.for him. The court held the indorser liable.
    The principles deducible from these cases may be readily applied ■to the principal case. The removal of Ware beyond the state, excused a personal demand, and of course the necessity of inquiry. The manner of his removal disposes of all objection to the want of ■presentment of the note, at his residence within the state.
    As to the notice of non-payment, the objection relied upon, is to the manner of that notice. It is very clear, upon the evidence, that, at the maturity of the note, .Lybrand resided about nine miles out of the city. If he had continued to reside in the city at that time, this mode of giving notice would, beyond all question, have been proper. It is generally true that when the parties reside in the same place, a personal notice is necessary; but if there be a letter carrier, or penny post, at the place, and the party entitled to notice reside within his limits, then a notice left at the post-office is sufficient. This mode of giving notice is, under such circumstances, the most certain and convenient. The notice is *not left at the post-office to abide the casual inquiry of the party, but it is immediately forwarded to him, and in effect is personally served. No proof need be made that any particular notice or letter has been carried to him by the carrier, for where the general practice is established, it is presumed that every letter left at the post-office, reaches its destination by the accustomed channel of communication. Stephen B. Mum v. Baldwin et al., 6 Mass. 317.
    Notice of the dishonor of a bill, sent by the two-penny post, is sufficient, where the parties live within its limits, whether near, or at a distance from each other. Chitty on Bills, 6 Amer. ed. 222, and cases there cited; Bank of Columbia v. Lawrence, 1 Peters, 578.
    But at the time of putting the notice into the post-office, Lybrand resided upon his farm, nine miles out of the city. It was not incumbent upon the holder, under such circumstances, to send a special messenger to serve the notice upon him, but it was his duty to select that mode of conveyance, by post, which proper inquiry would show to be the best for transmitting the notice. And under the circumstances of this case, as they appear in the evidence, what better mode, next to sending a special messenger, could have been adopted than that pursued by the notary? In the first place, it is to be remarked that there is no evidence of any post-offico nearer to Lybrand than the Philadelphia office. He lived in the country, and as the evidence does not show it, the court can not presume that there was an office more convenient to him. If the Philadelphia case had been presented with this aspect alone, in what would it be defective? Sending a notice to the post-office nearest the party is clearly good. But had it been made -to appear that there was an office nearer to the residence of Lybrand, how would the case then stand ? The holder might safely direct the notice to that, because the nearest office. A party may, however, be so situated, that notice directed to him at any one of several places may answer. Per Mr. Justice Thompson, Bank of Columbia v. Lawrence, 1 Peters, 582.
    Notice need not be sent to the nearest post-office, if a party be in the habit of receiving his letters at a more 'distant one. 1 Peters, ut svp.

    *In Reed v. Paine, 16 Johns. 218, the notice was sent to a post-office, five miles from the defendant, at which he usually received his letters. It was proved that there was an office nearer to him, but the court held the notice sufficient.
    This branch of our case is, upon the evidence, brought to a single alternative. Either this notice put in an office at which the defendant was accustomed to hold his correspondence, and, so far as appears, the nearest to his residence, is sufficient, or it was the duty of the holder to employ a special messenger. And where are the peculiar circumstances in this case, which require that extraordinary mode of conveyance. It is seen that courts do-not demand it, except under a pressing necessity, and for obvious reasons. For it would assuredly very much embarrass the circulation of negotiable paper. It is suporadding a risk not incident to the accustomed channel of communication, and other difficulties which would be found to be of great practical inconvenience.
   By the Court:

We all concur in opinion with the Supreme Court of the United States upon the first point in this case. In the case of Magruder v. The Bank of Washington, cited by the plaintiff’s counsel, they have settled that the removal of the maker of the note, after it was made, and before its maturity, into a different state, from that where he resided when the note was made, excuses the holder from making actual demand of payment from the maker. Whether a demand should be made at any other place, is not made a point or adjudicated upon in that case. But it seems to us a clear consequence of the decision that such demand is unnecessary. The fact of removal commits the indorser, and dispenses with all demand, unless a particular place be appointed for the payment of the note, in the note itself. In this case, the evidence to prove the removal was admissible, and the jury found the fact of the removal. The verdict can not be disturbed on this point.

Second. The second ground urged for a new trial ,is, that the testimony received to prove that notice was given to the defendant, of the non-payment of the note, was not admissible for that purpose. It is fully proved that the defendant ^resided a part of his time in the country, nine miles from the city, and a part at his mother’s, in the city; but transacted no regular business at either place. Notice of the protest was put into the post-office in the city, from whence a letter carrier distributed letters, who testified that he had carried letters to Lybrand from the post-office. The proof is also clear that Lybrand had directed letters and other matters of business, to be left for him at his-mother’s. There is no evidence in this case, whether there was a post-office nearer to his country residence than that of the city, and the counsel for both parties contend that this omission is in their favor. But, as the question is presented to us, we do not consider the fact very material. All the evidence received, was ■properly admissible. Its sufficiency to charge the defendant might ■depend upon the facts. Proof that there was a nearer post-office, ■would have been a sufficient answer to it before a jury. But this, instead of rendering it originally inadmissible, would be defeating it by counter proof. Its operative effect, not its admissibility, depended upon that fact. And its operative effect, too, would depend entirely upon the light in which the other facts might be considered by the jury. Should they be satisfied from the testimony that the notice actually reached the defendant, or that he ■was in the city, at the time the notice was put in the post-office, and receiving letters by the carrier, the fact of a nearer post-office ■would be considered wholly immaterial. It is, therefore, very clear that the testimony was properly admitted. Its effect is not .now before us, and it is unnecessary to express any opinion •upon it.

New trial refused, and judgment on the verdict.


text:
    *Mary Dabney v. H. Manning and C. B. Wick.
    .Power given to executor by will to sell land, when, in Ms opinion, sale can be made to good advantage, and proceeds devised to be distributed to children as they come of age, is a power connected with a trust, and executor entitled to possession of the land.
    .Lands sold on proceedings for partition, subsequently reversed, purchaser who entered under purchase not liable in trespass for acts done while decree was in force.
    This was an action of trespass for breaking and entering the plaintiff’s close, and was adjourned here for decision from the •county of Trumbull, upon a special case.
    The plaintiff was executrix of the last will of N. G-. Dabney, deceased, which had been duly proven and recorded, and the executrix had excepted the trust under it, and qualified. The will contained the following bequest:
    “ I do will and ordain, that my executors hereinafter named, do ¡sell my farm on which I now reside, containing one hundred and sixty-eight acres, whenever, in their opinion, they can do the same Ao good advantage.”

      By other provisions in the will, the proceeds of the sale were devised to be distributed amongst the testator’s wife and children; to be paid to the latter as they arrived at the age of twenty-one. The plaintiff, who was named executrix, was the wife of the testator. The other person named executor in the will declined to accept the appointment.
    The plaintiff adduced no other title or evidence of right of possession than that contained in this devise.
    The defendants set up a defense upon the following foundation: The heirs at law of N. Gr. Dabney were some of them infants. One, who was of full age (the executrix not having sold the estate), filed a petition for partition, in the court of common pleas of Trumbull county, where such proceedings were had, that the court made an order for the sale of the land, it being reported incapable of division. That order appointed N. Scott to make the sale, in these words: “It further appearing to the court here that there is no administrator on the estate of N. Gr. Dabney, it is ordered by the court that N. Scott be appointed administrator, to' make distribution of the avails of said lands, etc. It is also ordered by the court here, that an order issue to said administrator to sell the land, in the petition described, at public vendue,” etc.
    Under this order, Scott proceeded to sell the land; the defendants became the purchasers, and Scott made them a conveyance, in which no reference is made to the judicial proceedings under which he acted. He describes himself as *11 administrator to sell the lands and tenements of Nath. Gr. Dabney, late deceased;” and in the covenant of title, he recites his power thus: “ I, the - said Nehemiah, in my said capacity as administrator to sell the' lands and tenements of N. G-. Dabney, late deceased, do, for myself, my heirs, etc., that at, and until the unsealing of these presents, I am, in my said capacity of administrator, well seized of the premises as a good indefeasible estate in fee simple, and have good-right to bargain and sell the same in manner and form as above written.” Under this deed, the defendants entered and took possession. Subsequent to the sale and conveyance, a writ of error was brought, on the proceedings in partition, and the order of the court of common pleas, directing the sale, was reversed. The defendants then abandoned the possession.
    Upon this state of facts, two questions were raised for decision

      1. Had the plaintiff such possession of the premises, as that she ■could maintain an action of trespass for an unlawful entry upon it?
    2. Can the defendants protect themselves under the purchase ■from Scott?
    P. W. Btjrr, for plaintiff:
    The devise to the plaintiff, as executrix, eonferred upon her a power or trust, coupled with an interest. Howell v. Barns, Pow. Dev. 306; Jackson v. Ferris, 15 Johns. 346.
    The power to sell, given to the executors, is to be exercised by them, in point of time, at their discretion. The proceeds of sale are to be appropriated in payment of legacies, which are not to be paid until legatees respectively arrive at full age. By these provisions, a trust of an important nature is created in the executors, which entitled them to the possession of the land. They, consequently, can sustain trespass for disturbing that possession.
    The sale under which the defendants entered, made by Jones, as administrator, can neither protect nor justify them. Jones could not be appointed administrator, because there was an executrix. Toll. Ex. 119, 120. The grant of administration being void, all acts performed under it are void. *Id. 127, 128. And an enti’y under such authority is a trespass upon him to whom the right of possession belongs.
    Loomis and Mutcaut, for defendants:
    The sale and conveyance by Scott, under an order of the court, forms a valid defense to the present action. The court had juris■diction over the subject, and in such case strangers who acquire rights are protected. In this case the defendants were sti’angers to the px’oceedings in partition, and can not be affected by their reversal. 3 Caine, 261. The original enti’y being lawful, the ■defendants can not be made trespassers by relation. 13 Coke, 21; 11 Coke, 51. And they abandoned the possession upon the reversal of the judgment under which they entered.
    | It is not conceded that, under the will, the plaintiff was invested with an intex-est or trust as well as with a power to sell. The •authorities cited in support of this position do not, so far as we ^an pei’ceive, warrant the conclusion that the will vested any title in the executors that took away the descent to the heirs, or defeated their right of possession previous to the execution of the power. But as we regard the other point of defense sufficient for the protection of the defendants, it is deemed unnecessary to discuss this.
    Burr, in reply:
    It is claimed by the counsel for the defendants that the order of court, the sale and deed by Scott, constitute a part of the proceedings in partition. The power to sell and make a deed to tha purchaser, in proceedings of this kind, is by statute (vol. 22, p. 230) confided alone to the sheriff. No discretion is given to the court of common pleas to make an order to an administrator to sell, substituting him in the place of the sheriff. The sale and deed by Scott were, therefore, without authority. The statute has not, the court of common pleas could not give it.
    The power and jurisdiction of the court of common pleas, with respect to proceedings in partition, are special and limited. As well might the defendants have produced a judgment and execution from a court at law, in support *of the sale and deed by Scott, in the character of an administrator. In both cases the sheriff is the proper and only officer authorized to sell.
    The argument for the defendants assumes too much. The court may have jurisdiction over the subject matter, and their proceedings, notwithstanding, be void/ There must be a jurisdiction over the process, and over the person of the defendant. Further, it is presumed that a judicial proceeding may be void for error in the judgment of the court, as where it should be adjudged that the defendant give a deed of conveyance in a personal action instituted in a court of law, or that the defendant submit to be beaten. An. attempt to enforce such a judgment would undoubtedly be illegal. The plaintiff need not have waited for the reversal, by a superior tribunal, of the proceedings in partition. They would have formed no barrier to an ejectment. The doctrine of relation, therefore, ■has no application in the present case.
    Whatever irregularity there might have been in the proceedings on the indictment, in the case cited from 3 Caine, it does not appear whether the proceedings were void or merely voidable. Nor does it seem material. The plaintiff in that case was, by the proceedings on the indictment, divested of the possession. The possession was in Bull at the time the supposed trespass was committed. It is clear, from the case of Lyford, 11 Coke, 51, and Manilla’s case, 13 Coke, 21, there cited, that the plaintiff could not have sustained his action, had Bull in that case ousted him, even without the color of a judicial proceeding. Had the proceedings been coram non judice, still the action could not have been sustained. The cases, therefore, are not analogous. In this case the defendants, Manning and Wick, entered upon the immediate possession of the plaintiff. Had the demandants been put into the possession of the premises by virtue of the proceedings in partition, had the defendants entered while the plaintiff remained divested of the possession, the cases would have been parallel.
   By the Court :

The testator in this case directed his executors to sell his real estate whenever, in their opinion, they could do so *to good advantage. He devised the proceeds of sale to be paid in shares to his wife and children, and appointed the payments to the children to be made when they should respectively become of age. We can not consider these provisions as giving to the executors a mere naked power to sell the land, because they confide a discretion as to the time of making the sale to good advantage, and because they are intrusted with the charge of the proceeds until the time appointed for paying it to the legatees. The executrix had an interest in the performance of the trust thus confided to her, and she had also an interest as one of the devisees of the proceeds. For the preservation of these interests, the law entitled her to the possession of the land, from which they could not be separated. The title certainly descended to the heir, while the trust remained unexecuted, subject to be divested by the execution of the power. But the right of possession did not descend with the title; that passed with the will for the better enabling the executors to effect the objects of the testator. We are consequently satisfied that the' plaintiff has such right of possession as enables her to sustain this action.

The laws of this state provide, that where lands descend in parcenary to heirs, some of whom may be of full age, and some minors, those of full age may petition for partition; and the power of hearing and determining upon this petition is conferred upon the courts of justice. If, upon certain proceedings, it shall appear that the lands-can not be partitioned to advantage, power is given to the court® to direct a sale, and to distribute the money.

The proceedings and judgments of the courts, in a petition for partition, must, like judicial proceedings in all other cases, bind both parties and privies, while they remain unreversed, however erroneously they may have been conducted.

In this case, the court of common pleas clearly were invested with jurisdiction over the subject, and between the parties. Whether such interest descended to the heirs of Dabney, as entitled one of them to demand partition, was a judicial question, which that court were competent to decide. It naturally arose in the cause, and the decision of it concluded all concerned until reversed. The adjudication *upon every other fact in the cause, was of the same character.

It is urged, that by law the court are, in case of a sale being ordered, directed to require that the sale be made by the sheriff, and that, in this case, they appointed another person to make it. But this error could not have the consequence of taking away their jurisdiction, nor of rendering the sale void. They were authorized to direct a sale, by one person, and they directed a sale by another. There is no just analogy between such a case, and one where the court adjudge that to be done, which the nature of the action does not warrant, as adjudging that a defendant make a conveyance for land, or receive a beating in a personal action.

The judgment or decree, in the proceeding for partition, does not pretend to constitute Scott administrator for any other purpose, than perfecting the objects of that decree. The sale made by him was approved by the court, and the deed made accordingly, although it does not specially refer to the proceedings in partition as its foundation. The defendants purchased under the order of sale, and received their deed in confirmation of that purchase, and took possession under it. For the irregular proceedings of tho court, or of the person acting under its authorities, the defendants were not responsible. Whilst the decree remained in force, the plaintiff was divested of title, and the defendants invested with it. They committed no trespass by entering, for they entered under authority of law; and that they can not be made trespassers by relation, stands as strongly upon authority, as it does upon the principles of good sense, common honesty and justice. It is for the possession thus obtained and continued, and abandoned with the destruction of the foundation upon which it stood, that this suit is brought. It is our opinion that it can not be sustained, and that the law of the case is with the defendants, for whom judgment must be given.


text:
    *Administrators of Winthrop v. Huntington and Wife.
    Person entering into land under color of title, paying taxes and making improvements, as owner, being ejected at law, can not sustain a bill in equity for compensation and reimbursement against the rightful owner.
    This cause was adjourned for decision here, from the county of Huron. The case was this: Winthrop, the original complainant, had derived title to a tract of land in Huron county, under an order of sale, made by the orphans’ court of Connecticut. Huntington’s wife was the heir at law, and, in an action of ejectment, had recovered possession of the lands on the ground that the court directing the sale had no jurisdiction to direct a sale of the land in question, as adjudged by the court in the case of Nowler, Douglass, et al. v. Coit, 1 Ohio, 519. Winthrop and those under whom he claimed, had proceeded as owners to partition the lands, which at the time of sale were held in common by theFireland company, so called, had taken possession in 1807, and improved the lands, by reducing them to cultivation, and by the erection of buildings, and had also paid the taxes. In 1816 the respondents commenced their ejectment, in which they finally recovered. Winthrop then-filed the present bill in chancery against them, claiming to be reimbursed the expenses of partition, the amount of money paid for taxes, and a compensation for the performance of these acts, and preserving the land. The answer admitted the principal facts alleged in the bill, but denied that they gave the complainants any right. It set up other matter in avoidance of the claim. But as that matter was not considered in deciding the cause, it is deemed unnecessary to notice it in the report.
    Whittlesey and Newton, for the complainant:
    We do not apprehend that anything more is necessary than to turn the attention of the court to the decision in the case of Nowler, Douglass, et al. v. Dan. L. Coit, 1 Ohio, 519. The court in that case say, the complainants have derived a benefit from the payment of the taxes, and in equity ought to refund the money. In one sense the defendant is a mere volunteer in making the payment, but when the owner of the land in such case omits to pay the taxes as they fall due, he accepts the payment made by such ^-volunteer, and as to that constitutes him his agent by recognizing his acts. This reasoning applies in its full force to the case now before the court. The complainant supposed he had a good title to the lands, and took care of them as if they were his own. The defendants have derived a benefit by the payment of the taxes, and from surveying and allotting the lands. They have recognized his acts, and the acts of those from whom he derived his title, in the disposition and partition of the land. If he had attempted to perfect his title by omitting to pay the taxes, and had suffered the lands to be sold, and purchased them himself, this court, it is presumed, sifting as a court of chancery, would have adjudged that the complainant was trustee of the land, and that such sale was void. The court having decided that Coit had a lien on the land for the taxes paid him, necessarily subjects the land to the payment of all the taxes, paid either by the complainant, or by those under whom he holds title. The lien passed by the conveyance.
    The complainant holding the land in trust for the defendants is entitled to be refunded the money paid for the taxes, and for permanent improvements. 6 Johns. Ch. 67.
    The defendants slept on their rights from 1807 to 1816, with the full knowledge that the complainant was in possession of the lands, paying taxes on them, and fitting them for market, without taking one step to assert their rights. The excuse rendered is, that they did not know where the lands lay. This they might have ascertained by resorting to the public records. Another excuse is, that the war prevented them from resorting to the courts of justice. It is known that there was no interruption in the judicial proceedings of the country during the late war.
    Webb, for respondents: ■
    On the part of the respondents, it is contended that as the respondents in this suit had first established their right at law, that the complainant can have no right to recover back the taxes or any other money which he has paid.
    There- is no case to be found .in the books which authorizes a claim of this kind, and unless the court undertake to establish some new principles, this cause, on the first point we raise, must be decided in our favor. It may be said there *is no decision directly in our favor. This is no argument against us, but for us. No person before the original complainant in this suit ever thought of setting up such a claim. The case of Nowler and Douglass v.' D. L. Coit, cited by our opponents, so far from establishing anything in their favor is a ease, as we conceive, in our favor. In that case, Nowler and Douglass, instead of establishing their right at law, in the first instance, sought the establishment of their right and legal title in a court of chancery. The court in that case say as they had sought the aid of a court of chancery to establish their title, they should not have that aid unless they would submit to the rule, that he who would have equity should do equity. We-have established oúr right at law, and the language of that decision is virtually this, that had Nowler and Douglass first established their right at law, as they might have done, and the opposite party had sought redress in chancery, and thereby made Nowler and Douglass defendants in chancery, the court would have dismissed the bill. The court say, “perhaps a court of equity ought not im every case of such volunteer, and upon his application, decree a lien for the taxes, but where these taxes have been paid, under an opinion that the person who paid them owned the land, and when the true owners c ome into equity” (by the by, the real owners in this case never did) “ to examine that claim of ownership, and to have it quieted, the rule that he who asks equity must do it strictly applies.” We say that, from the whole circumstances of this case, that this is one of those cases in which a volunteer ought not to have redress, even if we had been originally complainants in-chancery.
    It is said, however, that a trustee may recover moneys by him paid, and the complainant holding the land as trustee for the defendants, is entitled to be reimbursed the money paid for taxes. This argument is of no force, for it is founded on false premises. Can it be said that a man who holds lands adversely to another by a bad title is to be considered as trustee for him who has the better title, so far as that money by him who has such bad title. paid out, shall be refunded by him having the better title. No, it can not be; and the authority cited by the gentleman has no analogy to this case.
    We say further in reply, generally, to the argument of our opponent, that this court, sitting as a court of chancery and ^equity, will take into consideration the origin of the claim, the circumstance that the land of one person was sold for the debt of another; that those debts were fraudulent; that the real owner of the land was an infant without guardian or friends for years, and knew not his rights. All these circumstances differ this case from the case of Nowler and Douglass v. Coit, and all other cases yet decided by this court.
    Whittlesey and'Newton, in reply:
    The respondent say “ that having established their right at law, the complainant can have no right to recover back the taxes or any other money he has paid;” and they treat the subject as if they supposed this was a general rule governing the decisions of courts of chancery. If a mortgagee establish his title to the mortgaged premises in a court of law, still the mortgagor has his equity of redemption. If the mortgagor redeems (the mortgagee being in possession), he is charged, in stating the amount, with the principal and interest of the debt, and the necessary repairs, and the mortgagee with the net proceeds of the rents and profits while he had been in possession. If the mortgaged premises are forest lands held in common, and the mortgagee (being in possession) should incur expenses in aparting them, and in paying taxes, and in allotting them, all being for the benefit of the estate, we conceive there can not exist a doubt that a court of chancery would allow such payment to the mortgagee in stating his account if the mortgagor petitions to redeem, or the mortgagee petitions to foreclose.
    It has been the practice of the court of common pleas in this circuit, when the mortgagee has petitioned to foreclose a mortgage, and the mortgagor has been in possession, but refused or neglected to pay the taxes, and they have been paid by the mortgagee, to allow such payments as a just charge against the mortgagor, and as a good lien on the land. It is believed the Supreme Court would sanction the like practice. If the mortgagor should pay and take up his notes, the title would then, at law, be perfect in him; and if the mortgagee was in possession, the mortgagor might recover in an action of ejectment; but would his having established his title at law cancel the ^equitable claim of the mortgagee to have the money so paid for taxes repaid ?
    - The court are not under the necessity of establishing any new principle, in order to grant the relief prayed for; but to apply an old principle to a new case. We admit that no case, in every particular similar to this, can be found in the books.
    No sales were ever made, under circumstances similar to those made in Connecticut, of the fire lands in Huron county. The State of Connecticut claimed jurisdiction over these lands; the Indian title was not extinguished to them, and at the time of this sale, no territorial court had jurisdiction there. It was the prevailing opinion at the time, and has been until very recently, that these sales were legal. The respondents so considered them» Under the belief that Stewart had a good title, he paid the taxes-to extinguish the Indian title in 1805, and other taxes.for surveying and allotting the lands. The respondents knew where these lands or rights were situated in 1804. They have recognized all of our acts as having been done for them, and for their benefit.
    The complainant contended, on the trial of the action of ejectment, that if Stewart had no title whatever to the lands, the respondents were tenants in common in the whole fire tract; they said, we recognize you as our agent, or trustee, and will accept of the partition as made by you, but they adduced no precedent in their behalf to show that a mere stranger and volunteer could make a legal partition. No case of a higher or purer equitable claim can be presented to the consideration of this court. The complainant acted in good faith; he acted under the decisions .of different judicial tribunals, and prevented the lands of the respondents from being sold for taxes. It is a case in which a court of chancery ought to interfere, and if it was needful, to adopt a new principle to meet it. It will prevent speculators from hunting up-these claims, and purchasing them for mere nominal sums, and turning those out of possession who have made improvements, paid taxes, greatly advanced the value of the lands, and saved them from being sacrificed. The lands were sold for their full value, and for more than double the amount for which larga tracts of land were sold in the most fertile and now thickly inhabited parts of New York. In *doing justice to one individual, the court will dispense public justice by quieting, in some measure, the titles to the lands in Huron county, about one-fourth of which are held by sales made at public vendue in Connecticut. Legislatures and courts have endeavored to lessen as much as possible the evils incident to a general disturbance of the title to lands. Hence, limitation acts, giving a short period to contest a title, are frequently passed, and the successful claimant is compelled by other acts to part with his land at a reasonable price,, or pay to the occupant a reasonable compensation for the improvements he has made. Courts presume many things in favor of a person, who has been long in possession, and after a lapse of time,, adjudge possession to be conclusive evidence of title.
   By the Court:

The complainant in this cause having been ejected from land claimed by him, as owner, in consequence of a recovery against him at law, has filed this bill, seeking to be considered as trustee for the respondents, in all that he did to improve and preserve the lands in the character of absolute owner. The grounds upon which it is attempted to sustain this pretension are, that inasmuch as the identification of the land was the act of the complainant, and that identification is recognized by the respondents, as to this they admit an agency; and as the improvements and payments of taxes, were for the benefit of the respondents, equity may well consider these acts as performed in the character of agent, so as thus to be enabled to do justice to the parties.

We have carefully examined and considered the arguments advanced in support of these positions; but we find nothing in them to warrant us in giving to the acts of a party a character directly contrary to that in which those acts were performed. As a matter of fact, it is indisputable that the complainant did not act as the agent of the respondents, in any one of the matters in respect to which he claims compensation. He took possession of the land, not to preserve it for the respondents, but to occupy and improve it for himself. With this object, and for this purpose, he labored and paid money. And when the respondents ^asserted their right, he controverted it, and compelled them to establish it by a judicial proceeding. There is no allowable legal fiction, by which the court can so change the character of a transaction, as to con-. vert an adverse pretension into an agency for him whose right is resisted.

It is true the respondents have adopted the partition of the land as they have found it. But this conduct is no recognition of the agency of the complainant. It was competent for the owner to take the lands in the place they were assigned to him by others who had claims, whether the assignment was so made as to conclude him or not. This mere act of acquiescence can have no legal or equitable relation to the person on whose claim the assignment was made, and must be considered entirely independent •of every one concerned.

The complainant acted, in all that he did, as a volunteer. It is impossible to give him any other character. And there is not only no case, there can be no principle in which a mere volunteer can maintain a suit in law or equity for compensation; although there are many cases in which the party may be benefited by such interference, and in which an award of compensation would seem to be just. Nevertheless, were it once permitted that one man could volunteer his services to another, and coprce compensation, it would subvert the fundamental doctrines of contract, and open a door for incalculable mischiefs and litigations. The complainant’s counsel are too sensible of this, to assert that a mere volunteer can recover; hence, they attempt to establish an agency in their client, and dp not seem to perceive that to convert a volunteer into an agent, against the consent of the alleged employer, is but maintaining the principle abandoned, in different terms, differently applied.

The answer given by the defendant’s counsel, to the use made of the case of Nowler, Douglas and others v. Coit, is decisive upon its analogy to this case. Nothing is more common than for courts of equity, in decreeing a complainant the relief he seeks, to impose terms upon him, which could not be asserted against him in an original bill at the suit of the respondent. It is an ordinary principle of proceeding in equity, and results from the well-known maxim, that he who asks equity shall do it, or be denied the equity *he asks. In that case the complainant asked the court to quiet his title against claimants under a sale similar to that through which the complainant claimed in this case. And the court proceeded to decree in his favor, upon the condition that he should repay the taxes advanced, and remunerate the party foe his trouble in making the payment. And the decree is predicated upon the common principle, without an intimation that an original bill would have been sustained for that object. In this case the complainant reposed himself upon his adverse right until adjudged against him; and then, in direct contradiction of his former pretension, seeks to come before this court in a new character. Were we to sustain this bill, it could only be on a principle that would entitle every person who took possession of lands belonging to ethers, supposing he had title after he was ejected at law, to come into equity for aid and remuneration. This would certainly be an entire new branch of equitable jurisdiction, to which we are not disposed to be the first to assent.

It is not the mere fact of a recovery in ejectment that excludes the defendant from relief here; but it is the principle upon which that relief is sought, between which, and permitting a mortgagor to redeem after the mortgagee has recovered at law, we can perceive no analogy.

There is no weight in the suggestion that the respondents slept over their rights. They were not barred at law, and in equity the rule is not varied. There is not even a suggestion that they practiced any fraud in permitting the complainant to proceed in his improvements and payment of taxes. TJpon the- ground of fraud only, could a court of equity interfere where the statute of limitations does not apply at law, or by analogy, in this court.

The bill must be dismissed.