author: Judge Sherman:

text:
    *Lessee of Bond v. Swearingen.

      Conveyance for Gaming Consideration — Attachment—Sale by Auditors — Ancestor and Heii — Estoppel.
    Estate forfeited to lieirs by conveyance for gambling debt" may be taken by heirs, subject to the debts of the grantor.
    "Whether the grantor in a voluntary deed be indebted at the time of the grant is a fact to be found by the jury.
    If lands are located and surveyed by an ancestor, and patented to heirs, they take by descent.
    Heirs taking by descent are estopped by the deed of their ancestor.
    This was an action of ejectment, and came before the court upon a motion for a new trial, made by the plaintiff, and reserved in the county of Ross. As the opinion and decision of the court is confined altogether to the title of the defendant, so much only of the statement of the case, and the argument of the counsel, as relate to that title, are presented. _
    The suit was brought to recover a lot in the town of Chillicothe. The tract of land, including the lot in question, was entered by N. Massie on the 27th of June, 1795, as in his own right— was surveyed on the 24th of December, 1796, and the plat and certificate of survey recorded in the surveyor’s office, June 9, 1797.
    On the 21st day of September, 1797, Nathaniel Massie conveyed the lot in question to Basil Abrams, by deed of general warranty.
    Basil Abrams, on the 21st of May, 1801, conveyed the lot in question to John S. Wills, by deed of general warranty, for a consideration expressed of $1,200. The real consideration was, as proved and admitted at the trial, that Wills won the lot of Abrams at a game of billiards.
    Soon after the execution of this deed Basil Abrams left the country to which he never returned. On the 15th of February, 1802, an attachment against B. Abrams, as an absconding debtor, was sued out of the common pleas of Ross county, and levied upon the lot in question, upon which such proceedings were had that the lot was sold by auditors, and regularly conveyed, under which conveyance the defendant claimed.
    The debts of Basil Abrams, as found and certified by the auditors, amounted to $1,999.22.
    In the year 1811, Nathaniel Massie deceased, leaving several children his heirs at law. After his death it was discovered that no patent had issued for the tract of land in which the lot is included, and a patent was obtained to his heirs, dated 31st December, 1814.
    *Upon the trial of the cause before the supreme court of [396 Ross, county, the jury found a verdict for the defendant, and a motion was made for a now trial, upon the ground that the verdict was against law. The decision of the motion rested altogether on the validity of the defendant’s title.
    Leonard, for the plaintiff:
    The defendant’s title rests upon the proceedings in attachment, and they can avail nothing unless the lot was the property of Basil Abrams, liable to his debts at the time the attachment issued.
    The deed from Abrams to Wills, made on the 21st of May, 1801, was for a gambling consideration. The law of the territory, then in force, provided, that any conveyance made to satisfy or secure money, or other thing, won of the vendor, should inure to the use of the heir of the vendor, and should vest the whole estate and interest of such a person in the lands sold, to all intents and purposes, in the heir of the vendor, as if such vendor had died intestate. By force of this law, the deed to Wills operated to divest Basil Abrams of title, and to vest that title in Eleanor Abrams, his heir.
    But it is asserted that the heir took the estate subject to the debts of Basil Abrams, and, therefore, it was liable to be taken in attachment for his debt. Upon what principle is this doctrine founded ? There is no provision saving the rights of creditors, and can the court interpolate such a provision ?
    In England there are many cases where the commission of crimes operated a forfeiture of estates. Such laws, too, have prevailed in some of the states of this Union; but in none of these cases does the fact of the felon being in debt overreach the forfeiture for the protection of the creditor; at least I have been able to find no case where a creditor has set up a right to pursue an estate so forfeited.
    If, however, the heir in this case took the estate subject to the debts of Basil Abrams, are the proceedings in attachment evidence against the heir upon that point ?
    The heir, whose rights are to be affected, was no party to the proceedings; they were res inter alios actce; he can *only be affected by a decision in a case where he was a party. He had a right to a day in court to contest the justice of the debts, and if charged upon the estate in his hands, he should have an opportunity to save his estate by paying the debts.
    Evidence of the indebtedness of Abrams was adduced at the trial, but could the right of the heir in whom the law vested the estate be thus collaterally assailed ? The estate having vested in him might be charged with the debts by legal process ; but until so charged the title remained where the law cast it.' The fact of Abrams being in debt would not divest the estate out of the heir, unless it was charged with the debt in a legal manner, and the title transferred legally in discharge of the debt. The parol evidence given, that Abrams was at the time indebted, could not affect the title.
    There are two exceptions to the auditor’s deed, under which the defendant claims. There should have been proof that the lot would not rent for sufficient to pay the debt in seven years; and also proof that legal notice of the time and place of sale was given. 3 Territorial Laws , 15, 16 ; 1 Ohio, 27.
    It is alleged that the notice at this distant day should be presumed. It is replied that the heir at law, upon whom the estate was cast, was a minor at the time the estate was vested, and has but a short time since attained her majority.
    But long since all these proceedings, the grant creating the legal title to the tract of land, including this lot, issued to the heirs of Nathaniel Massie. By the grant the legal title vested in the patentees, from whom the defendant deduces no title. The legal title can not be affected by proceedings had before it was in existence.
    It is understood that the defendant insists that the title vested, in Massie’s heirs, by the patent, inures for the benefit of those claiming under deed made by Massie so as to vest, in all such, an operative legal title. This can not be the case: because the legal title comes to the heirs of Massie, by purchase, and not by descent. The term heirs used in the patent, is merely descriptive; it can upon no principle be taken as a term of limitation.
    *It has justly been remarked that “ words of purchase,” and “ words of limitation,” have been good clients in Westminster Hall; and there is no doubt that if once introduced into our courts, they will be good clients here. The line that divides them is described by
    “ Hooks, angles, crooks, and involutions wild,”
    and the cases in which they have been agitated are truly of a “ multiplicity and incongruity ” most appalling. But there is no case, in which, where a title emanates directly, and originally from the sovereign to the heir, that the grantee has been considered as in by descent.
    The question whether the heir shall take by descent or by purchase only arises when an estate is created in the ancestor and limited to the heir by the same conveyance. For even in Shelly’s case it is admitted that if an estate be conveyed to the ancestor for life, by one conveyance, and the remainder be conveyed to the heir, by a separate conveyance, the heir takes as purchaser. And, in the principal case, the right of Edward Shelly and h'is heirs male was derived from the same common recovery. So in Wood’s case, stated by the defendant’s counsel in Shelly’s case, the covenant, upon a certain event, to stand seized of lands to the use of the covenantee and his heirs, was the foundation of the title of both. The same conveyance created the estate of ancestor and heir — and it could make no difference, as the estate was in its nature contingent, that the ancestor died before the event happened upon which it vested in possession. Its original character remained the same as if that event had happened in the lifetime of the covenantee, or ancestor. In the case stated of an exchange of land, the exchange is supposed to be made by conveyance, containing words of limitation to heirs general or special; indeed the whole doctrine, perplexed and vexatious as it certainly is, has no application to any case other than where an estate is derived to ancestor and heir from the same conveyance. That is not the case here. However, the estate of the heirs of Massie derived to them as heirs under the grant from the government, may be predicated upon the original interest of their ancestor, yet they do not take the legal title by descent, but by purchase.
    The rights of purchasers under Massie, or his creditors, are in no other way affected by the doctrine we maintain, *than that their rights must be secured by a court of equity, instead of a court of law.
    Where the ancestor has paid the consideration, and the heir receives the conveyance, although he must necessarily take as a purchaser, because the estate is not so derived that he can take by descent, yet, in equity, the estate is assets for the payment of debts; and if the ancestor had made a contract to sell, the heir taking the title would, in equity, bo deemed a trustee for the purchaser. It might be more convenient, in such case, to adjudge the heir in by descent, so that where the ancestor had conveyed, the title might inure. But this would be establishing a new doctrine, which, to say the least, might introduce as many mischiefs as it would remedy.
    If, then, the heirs of Massie took the legal title by purchase and not by descent, the defendant’s title is incomplete.
    Brush and Fitzgerrald, for the defendant:
    The deed from Basil Abrams to Wills was a voluntdry conveyance, made without any consideration to sustain it. If by operation of law it divested Abrams of his estate, and instead of carrying that estate to the grantee, transferred it to the heir of Abrams, this effect did not change its character as a voluntary conveyance, and therefore as against the creditors of Abrams it was void, under the statute of Elizabeth then in force in this country.
    But if it were not void against creditors as a voluntary deed, yet the heir who took the estate must take it subject to the debts of the grantor then due. For had the estate vested in consequence of the death of the ancestor, the heir would have taken subject to those debts. And the law, which casts the estate upon the heir, casts it upon him in terms, for every intent and purpose the same as if the grantor had died intestate.
    There was no necessity to make the heir party to the proceedings against Basil Abrams. The attachment against him reached every interest which he had held, that was liable to the payment of his debt. He was in esse and competent to appear and defend the suit. If he did not do so, *the heir is bound by the judgment against him, and is estopped to deny its effect. 1 Salk. 276.
    It is objected that the sale by the auditors is invalid, because it does not appear that the lot would not rent for sufficient to pay the debts in seven years. An inquest for this purpose was unnecessary ; the property was valued under the attachment law, and the whole valuation was considerably less than the debt.
    The case is not like that of Patrick, Lessee, v. Osterout, 1 Ohio, 27, quoted by the other side. Here was a valuation or appraisement, and it appears in the record. The attachment law only requires that the court shall be satisfied that the property will not rent, and of this the valuation left no doubt. The order for effecting the sale is conclusive upon that point.
    With respect to the proof of notice, that is not a fact which can affect the sale. In the case of Wheaton v. Sexton, 4 Wheat. 506, the court say: “ The purchaser depends on the judgment, the levy; and the deed. All other questions are between the parties to the judgment and the marshal. Whether he makes a correct return, or any return at all, to the writ is immaterial to the purchaser, provided the writ was duly issued and the levy made before the return.”
    Douglas, on the same side:
    The defendant being fairly and fully invested with all the right conveyed by N. Massie to Basil Abrams, is possessed of the legal estate, in virtue of the grant to Massie’s heirs, which inures to his benefit under the covenant of warranty in the deed from Massie to Abrams. The opinion of Judge Swan, in the case of Tabb and Massie’s heirs, is full to this point, and though not an. authority in this court, is entitled to weight and consideration, both for argument and research.
    The same decision was made, on the same point, in the case of Johnson v. Miller’s and Massie’s heirs, in the United States Circuit Court, after keeping the case under advisement for twelve months.
    Independent of authority, there would seem to be one plain practical principle which must test the question. If, in a suit against them upon a bond of their ancestor, in *which they were named, the heirs of Massie should plead rein per descent, and a replication ol assets, setting out the title of Massie, and of the heirs in these lands, would this replication be bad upon demurrer? If such replication would be bad, the heirs would take the estate discharged of the ancestor’s debts; if good, their actual interest in the land descends from him, and his acts must be as operative upon them, as they could have been upon himself.
    It is a well settled rule that a man can not, “ either by conveyance’at the common law, or by limitation of uses or devise, mako his right heir a purchaser.” Vent. 372. And in all cases where an estate vests in the ancestor, the heir takes the same estate by descent. Blackstone lays it down that if the ancestor “ die before entry, still his heir shall take by descent, not by purchase; for where the heir takes anything that might have vested in the ancestor, he takes by descent, and not by purchase." 2 Com. 242. In this case the right originated in the ancestor, and the legal title might have vested in him. For the same consideration it is vested in the heir, who must be considered as holding by descent.
    It is generally agreed that the short amount of the rule in Shelly’s case is this, “that no man shall raise in another an estate of inheritance, and at the same time make the heirs of that person purchasers." A rule of which Mr. Justice Blackstone remarked, “ that no court of justice in the kingdom had the power, or (he trusted) the inclination to disturb.”
    The question of descent or purchase in Shelly's case arose under a common recovery, in which Edward Shelly, the recoverer, deceased after judgment, but before the emanation of the writ of seizin. Richard Shelly, to whom the use was limited by the recovery, as heir male to the recoveree, entered and although no estate ever vested in Edward Shelly under the recovery, yet it was adjudged that Richard took by descent from his ancestor Edward, and not by purchase.
    As the recovery in this case was incomplete, and constituted but an inchoative title until the execution of the writ of seizin, it is supposed to be strikingly analogous to this case, in which the inchoative right was in the ancestor, and perfected in the heir after . his death by the grant. The ^principle being, that where the heir takes that which his ancestor, if alive, would have taken, he is in by descent. This is recognized as the correct doctrine in Jenkins, 249; 14 Vin. 269; Sir T. Jones, 59; Coke Lit. 229; 8 Mod. 23 ; 3 Bibb, 2; 12 Johns. 318; 14 Johns. 405.
    The heirs of Massie, taking by descent from him under the grant, are estopped from disputing the title in their ancestor, hence their title inures to the benefit of his grantee. Barr v. Gratz, 4 Wheat. 222; 4 Bibb, 536; 1 Salk. 276; Coke Lit. 352, a.
   Opinion of the court, by

Judge Sherman:

The result of the motion for a new trial in this cause must depend upon the question, which of .the parties has a valid legal title to the promises in question. The defendant has obtained a verdict» and that verdict ought not to be set aside if his title papers, connected with the evidence in the cause, show a subsisting legal title in him. In order to determine this question, it is necessary to ascertain the effect of the deed from Basil Abrams to John S. Wills, of May 1, 1801; the proceedings had under the attachment, at the suit of Ecuben Abrams against B. Abrams, and the grant by the government of a tract of land, including the premises in controversy, to the heirs of Nathaniel Massie, deceased.

The deed from B. Abrams to J. S. Wills, of the lot in question, dated May 1, 1801, is admitted to have been executed upon a gambling consideration.

By the act of the territorial government, then in force, entitled “ a law to suppress gaming,” it is provided, “that all conveyances, etc., made for a gambling consideration, shall inure to the use of the heir of the bargainer, etc., and vest the whole estate, and all the interest of such person in the land so bargained, to all intents and purposes,, in the heir of the bargainer, the same as if the bargainer had died intestate.”

It is believed that this act of the territorial government has never received a construction by our courts.

It is contended by the plaintiff’s counsel, that the lot in question, by virtue of this act, became forfeited to the heirs of B. Abrams upon the execution of the deed from him to *Wills, and that they took the same discharged from all liability for his debts.

In the opinion of the court this construction is neither warranted by the words nor intent of the law. The legislature can, without doubt, attach forfeitures to the commission of offenses, and such forfeitures may be general, including all the property of the offender, subject only to actual liens, or limited in amount or kind, and restricted by provisions for the benefit of créditos and others, Whatever may be the nature or kind of forfeiture, it is never carried by construction beyond the clear expression of the statute creating it.

When a deed is founded on a gambling consideration, the statute vests in the heir of the bargainer all his interests to all intents and purposes, the same as if such bargainer had died intestate; the law considers the bargainer per hoc vice as dead; the heir takes the same as if the ancestor, instead of executing the conveyance, had that moment died. The estate does not become forfeited, but the grant is to inure to the benefit of the heir of grantor, and he takes the lands mentioned in the conveyance by virtue of the statute, the same as he would had they descended to him by the death of the ancestor. He takes as heir, and not as the grantee of government of a forfeited estate. The property vesting in him as heir, he necessarily takes with all the responsibilities and liabilities attached to that relation. The expression of the statute that the interest of the bargainer shall vest “in the heir the same as if the bargainer had died intestate,” would be rendered vain and useless by any other construction than that the land so coming to the heir shall in his hands be subject and liable to all claims that it would had it descended to him by the death of the bargainer.

The construction contended for by the plaintiffs would work manifest injustice in many eases. An individual who had obtained credit, and become indebted, could not well devise a more ready and easy way of protecting his property from his creditors than by conveying the same for a gambling consideration, if such conveyance was to inure to the use of his heirs, the natural objects of his care and bounty, to the exclusion of the claims of his creditor.

The expression *of a law should be clear, and the intent manifest, before a court could be justified in giving it a construction that would obviously protect fraud and deprive creditors of their just claims upon the property of the debtor, and such would be the effect of this law, if the construction contended for by the plaintiffs should prevail. The heirs of B. Abrams would hold this estate as forfeited to them by the act of their ancestor, free from any liability to the claims of his creditors. We are satisfied such was not the intent of the territorial government in adopting this law; but that it was intended to protect the improvident from gambling away their property to the injury of their creditors and heirs, and that to effect this purpose the statute prevents all lands conveyed for a gambling consideration from vesting in the grantee named in the deed, but makes such deed inure to the use of the heir of the grantor, so that he shall take the lands subject to the same liabilities he would, had he inherited them in the usual course of descent.

It will be perceived upon the perusal of this statute that it nowhere expressly prohibits gaming, or subjects persons guilty thereof to any species of judicial prosecution, and it is difficult to perceive how a forfeiture of lands should result from the doing of an act neither prohibited nor punished.

At the time Basil Abrams executed the deed to J. S. Wills for a gambling consideration, the real, as well as personal estate of the debtor, was subject to the payment of his debts. If he was living, his real estate, if it would not extend in seven years for sufficient to satisfy the judgments against him, might be levied on, and sold. And in case of his dying intestate, the whole real estate of which he died seized, and which of course descended to his heirs, might, if necessary, be sold by the order of the court of probate for the payment of debts, or the judgment creditor might enforce a sale.

The heir took the estate with this legal liability or incumbrance attached thereto, and had B. Abrams died on the 1st May, 1801, the day of the date of the deed to J. S. Willis, without executing that deed, the lot now in question would have descended to Eleanor, his heir, subject to the payment of his just debts. The territorial law gave to the heir of a grantor for a gambling consideration no greater interest in the lands conveyed than if the same lands had come to the *heir by descent. Their lands are therefore subject to the payment of the debts of Basil Abrams.

If the deed from B. Abrams to Wills, inuring as it does by virtue of the statute to the benefit of his heirs, be considered as a voluntary conveyance, without valuable consideration from him to them, the effect is the same, for by the statute of Elizabeth, then in force in the territory, as well as by the principles of the common law, such voluntary conveyance is void as against creditors.

It is said that admitting this property liable to payment of the debts contracted by B. Abrams before the conveyance to Wills, there was not evidence to warrant the jury in finding him so indebted.

This was a question of fact submitted by the court to the jury for their determination, and the evidence fully justified the finding. It appeared that immediately after executing the deed to J. S. Wills, B. Abrams shut himself up and kept concealed, until a few days thereafter ho left the country. He had, therefore, little or no opportunity of contracting debts, and after divesting himself of his property it is not presumable he would obtain extensive credit; and yet the auditors appointed under the attachment to adjust and examine the several claims against his estate, report a list of his creditors, to whom he was severally indebted in sums from $1.91f to $669.50, amounting in the whole to the sum of $1,996.22. In addition to this there was direct evidence of his indebtedness at the time of his executing the deed.

If the matter were even doubtful, it was the province of the jury to weigh the testimony and determine the fact, and the court ought not to disturb the verdict because the fact was not proved beyond doubt. It is sufficient that there was testimony going to establish the fact, especially in the absence of all proof' to the contrary and after the lapse of twenty years.

But it is said that admitting the sale by the auditors under the attachment transferred to the purchaser all the interest that B. Abrams ever had in the lot in controversy, yet as the deed from Massie to Abrams was executed before Massie had obtained a grant fromthe United States, although subsequent to his entry and survey, Abrams acquired but *an equitable interest, and the patent, after the death of Massie, having issued to his heirs, they acquired an estate by purchase, and the plaintiff claiming under a deed from their trustee has the legal estate.

This presents a question upon which the court have felt the most anxious solicitude, and upon which they have not arrived to a conclusion without doubt and embarrassment. It is a question of groat interest to the inhabitants of the Yirginia military district, as well as the parties to this suit.

Nothing is more common than for the holder of a Virginia military land warrant to make an entry of the same, cause it to be surveyed and recorded, go into possession of the lands designated in such entry and survey, reside thereon for years, making large and valuable improvements, and die without obtaining a patent which is afterward issued to his heirs. If those heirs acquire the estate by purchase from the government, they must at law hold the same free from the debts and contracts of their ancestor; if by descent, the estate in their hands will be liable to the payment of the debts of their ancestor in the same manner and to the same extent it would had the patents issued to him in his lifetime. The question whether heirs acquire an estate in lands so situate by purchase or descent, is one, therefore, of great importance.

Nathaniel Massie, as early as 1795, made an entry of 1,900 acres, including the lands in controversy, in the books of the principal surveyor of the Virginia military district, and within a short time thereafter, caused a survey thereof to be made and recorded in conformity to the Virginia land law. He had done everything incumbent upon any holder of a warrant to appropriate the lands described in his survey, and had entitled himself to a patent therefor. He had, by the Virginia land law, acquired an indefeasible estate in the lands, and by. our statutes it was subject to taxation, dower, and many other incidents of real estate.

In Kentucky, where the titles to a large portion of the real property depend upon the location conforming to the Virginia land laws, it has been held that an entry or survey is an inchoate, legal title, and that lands so held will descend, may be devised, or aliened, and are subject to be sold on execution issuing from a court of law. Thomas v. Marshall, Hard. 19. It would seem to follow, as a necessary consequence, *that it must be considered as legal assets in the hands of the heir, subject to the payment of the debts of the ancestor. The heir inherits it as he would any legal estate to which the ancestor had an imperfect or incomplete title.

The act of Congress of August 10, 1790 (1 U. S. Laws 252), to enable the officers and soldiers of the Virginia line, on continential establishments, to obtain titles to certain lands lying northwest of the river Ohio, etc., after various provisions respecting the locations and surveys of said lands, directs that the President shall cause letters patent to be issued for the lands designated in said entries to the persons originally entitled thereto, theix* heirs or assigns, or their legal representatives, their heirs or assigns. It is by virtue of this provision that the patent issued to the heirs of N. Massie. It is because they, standing in his place and representing him, are entitled to the same rights he had at his death. They take the same interest he would have taken had the patent issued to him in his lifetime.

The recitals in the patent show the consideration upon which it issued. The entry of the ancestor, the warrant under which it was made, the survey had thereon, and the acts of Congress regulating the appropriation of the land and the issuing of the patent, are all referred to, and all show it was not a gift by the government to the heirs of Massie, but that it was the execution of a trust in his favor, so far as the same could be executed after his death, by transferring to his heirs the naked legal title to lands which he had fully appropriated and for which he was in his lifetime entitled to a patent. There is no pretense of any consideration moving from the heirs for the grant under which it is claimed they hold as purchasers; on the contrary, the patent furnishes conclusive evidence that the consideration moved from the ancestor; that it was the services for which the warrant therein named issued, the location and survey in conformity to law, that caused the emanation of the patent. The ancestor had fully and legally appropriated the land. The naked legal title remained in the United States, as trustee, at the time of Massie’s death, and his heirs procuring that legal title by virtue of the act of Congress of 1790, vested in them no greater or other estate than their ancestor would have taken had the patent issued in his lifetime.

*It was said in Shelly’s case, 1 Rep. 98 : “ When the heir takes anything which might have vested in the ancestor, the heir should be in by descent. Then, although it first vested in the heir, and never in the ancestor, yet the heir shall take it in the nature and course of descent,” and the principle was adopted by the court in giving judgment. In Wood’s case, reported in 2 Rolle, determined in the court of wards, 3 Eliz., and recognized as law in Shelly’s case, it was held “ that if a man seized of the manor of S. covenants with another that when J. S. shall enfeoff him of the manor of D., then he will stand seized of the manor of S. to the use of the covenantee and his heirs. The covenantee dies, J. S. enfeoffeth the covenantor, the heir shall be adjudged in course and nature of descent, and yet it was neither a right, title, use, nor action that descended, but only a possibility of a use which would neither be released nor discharged, yet it might, if the condition had been performed, have vested in the ancestor.”

It will be readily perceived that this case is stronger in most of its features than the case at bar. The covenantee had no estate or interest in the land ; none was to arise except upon the happening’of an uncertain event which did not take place until after his death. In the present case; the ancestor had done all that was required by law to perfect his claim to a grant from the government. His estate was not dependent upon any uncertain event. There was no contingency which could enlarge or diminish his estate, the mere form of sealing the grant was only wanting to evidence by the highest and best title known to our laws, his interest in the lands. He could have assigned the entry and survey, and the assignee would have been entitled to a patent in his own name, or he could have devised it, and the devisee would have had an indefeasible estate. He could have maintained ejectment against any person not having a grant from the government. In short, by his warrant, entry, and survey, he had acquired an incomplete or inchoate legal title to the land designated in his entry; this right and title was not destroyed by the death of the ancestor, but descended to the heir as part of his estate; and if a patent afterward issued to the heir it does not enlarge his estate or increase the quantum of his interest in the land, but changes *the evidence of his right from an entry and survey to a grant from the government in whom the mere legal title was vested in trust for those who should legally appropriate the land.

The case of Chapman v. Dalton, Plowd. 284, is, although not strictly analogous, illustrative of the same principle. D., the defendant, leased land for twenty-one years to J. C., and covenanted with lessee to make to him and to his assigns a good lease for twenty-one years, to commence immediately after the end of the first term; the lessee dies, having appointed an executrix; the executrix makes her executor and dies ; the first term expires. It was held that the executor of the executrix of the covenantee should have an action of covenant for the second lease, and that it would, in his hands, bo legal assets. The reasons of the court are not given in the report, but the decision is obviously on the ground that as the covenant was made with the first testator, the title thereto was derived from him to the plaintiff, and that which is done, in performance of the covenant, ought to be in the plaintiff, in the same degree, as the covenant was in him, so that he shall have the lease in the like manner as he had the covenant.

If a lease, made to an executor in performance of a contract with the testator, would be legal as contradistinguished from equitable assets, in the hands of such executor, and for the reason that the right to such lease. was derived from the testator, then it would seem that, by analogy, the heir would take by descent those lands, the right to which the ancestor had by contract with government, and in performance of which contract a patent had issued to the heir.

It was held by'the court of appeals in Kentucky, in lessee of Gist’s heirs v. Robinet, 3 Bibb, 2, that a right to land, under the proclamation of 1763, neither located nor surveyed, could be devised; and although the devisor, after making the will, procured a warrant, caused a survey of the lands to be made, obtained a grant therefor, and died without republishing his will, it was decided that the devisee should hold the lands, the court at the same time recognizing the principle that lands acquired after the making of a devise could not pass thereby. In this case, although the warrant, entry, survey, and grant were all after the devise, yet they were all in execution of, and had reference to *the proclamation of 1763. By the issuing of the grant to the devisor, subsequent to the making of the will, he did not acquire a new estate ; it was not, in the language of the books, lands acquired after making the devise, or they would not have passed by the will, but descended to the heir.

“In case of an exchange, one of the exchangers enters, the other dies before entry; now the heir of him that had not entered may enter, and he shall be in by descent, although the father never had anything in it.” Jenk. 249; 14 Vin. 260. This is on the same principle recognized in Shelly’s caso, that if the act, which is to perfect the title to the estate, might have taken place during the life of the-ancestor, the heir shall be in by descent, although in fact the title was first perfected by the heir, and by his act. In the case at bar, the only act necessary to perfect the' title in Nathaniel Massie was the pealing the patent. This act might have taken place in his life, and would have perfected in him the legal title to the lands designated in his survey; the legal title is, after his death, perfected in his heirs by the doing of the only act necessary to complete it. It would seem to result, from the authorities cited, that they would be in by descent, and not by purchase.

In the case of Smith v. Trigg, 8 Mod. 23, it was held that if a copyholder sui’render to the use of his will and devises to his heir, and then dies before admittance, the heir, after admittance, shall be in by descent.

In the case of Marks v. Marks, 10 Mod. 425, where lands were devised to be for life, remainder to B. in fee, provided that if C., within three months after the death of A., the tenant for life, should pay B. five hundred pounds, then to C. and his heirs. C. died during the life of the tenant for life, who afterward dies, and it was held that the heir of C. should be allowed to perform the condition of paying the money to B., and that he should take the land in course of descent from his ancestor C. Here, by the will, a mere executory contx-act is limited to the ancestor, without in terms being extended to his heirs, and by performance of the condition the estate might' have vested in him. The right to perform this condition descends to the heir; the vesting of the estate is a necessary consequence of such pei’formance, and the court therefore hold that the heir *shall be in the estate by descent, because the right to perform the condition upon which the estate depends came to him by descent.

It is a general rule that the heir shall not take by purchase when he may take the same estate in the land by descent. 7 Cranclx, and the authorities there cited.

If a man devises to his heir at law an estate, neither greater nor less than he would have taken without such devise, he shall be adjudged to take by descent, even though it be charged with incumbrances. 2 Bl. Com. and authorities there cited.

In Vent. 372, the court say it is a long-established rule that “.a man can not, either by conveyaxice at the common law or by limitation of uses or devise, make his right heir a pux*chaser.”

The court are of opinion that as the patent must have issued to Nathaniel Massie, had he been alive at its emanation, as he had at the time of his death an inchoate legal title to the lands designated in his sux’vey, which could be transferred, was subject to dower, the payment of taxes, and many other incidents of real estate; as he had a right to a patent therefor, which right vested at his death in his heix’s, and the patent issued to them from necessity, occasioned by his death; that they, standing in his place, and ¡representing his rights, are, by the principles of the common, law, .in this estate by descent, and not by purchase.

This opinion renders it unnecessary to give any construction to •the two acts of the legislature, vo'l. 18, p. 93, and vol. 19, p. 80, ap-pointing a trustee for the heirs of Nathaniel. Massie, deceased, or to determine the effect upon this.case of the provisions therein contained, that the title which shall be acquired by said heirs, by virtue of any proceedings under said act, shall be considered in all courts as being taken by descent.

The only remaining question necessary to be considered is, whether the heirs of Nathaniel Massie, and those claiming under ■them, are estopped from denying his title to the lots in controversy, or, in other words, whether the patent inures to the benefit of the purchasers from Massie, and those deriving title from such purchasers.

Massie, after making his entry and survey, and before the issuing of a patent, conveyed the lot in question to Basil *Abrams for a valuable consideration, by deed of bargain and sale, with covenants binding himself and his heirs to warrant and defend the title.

The authorities, both English and American, abundantly and clearly show that had N. Massie, after executing his deed to B. Abrams, acquired, by patent from the government or otherwise, a perfect title to the lands conveyed by him, he, his heirs, and all others claiming under him, would have been estopped from setting up the after-acquired title to the prejudice of his grantee. 1 Ld. Raym. 729; 12 Johns. 201; 13 Johns. 316; 4 Bibb, 436. In Coke Litt. 352, a, it is expressly said that privies in blood, as the heir, are bound by, and may take advantage of estoppels.

The heirs of Massie, standing in his place and inheriting from him, are bound by his warranty, and estopped by his grant from controverting the goodness of his title at the time he conveyed.

If -the heirs of Massie could recover these lands on the ground that their ancestor, when he conveyed, had not a perfect legal title, they, claiming by descent from him, would be responsible in consequence of such recovery to his grantee, and those claiming title from him, upon the covenants of warranty contained in his deed, and it is to avoid this circuity of action that the heir has been held to be estopped from denying the title of his ancestor.

This doctrine would not apply were they purchasers from govment; but having derived all their interest in this estate by descent from their ancestor, Massie, they areestopped by his grant, and bound by his covenants, in which they are named.

We have no doubt that N. Massie, after his entry and survey, had a right to dispose of and alien the lands included in such survey; and when a patent afterward issued either to him or his heirs, whereby the legal title was perfected, it inured to the benefit of his grantee, and all persons claiming under such grantee, so as to perfect their title.

This opinion renders it unnecessary to examine the title of the plaintiff to the lot in controversy; the defendant having the legal title is entitled to judgment upon the verdict. The motion for a new trial must be overruled.


source: Caselaw Access Project

author: *By the Court :

license: Public Domain

text:
    *Richard Douglas v. John Waddle.

      Indorsers — Securities.
    Indorsers of promissory notes, indorsed for the use and accommodation of the drawer, are co-securities, and the last indorser can not recover more than a contributable share against a previous indorser.
    This was an action of assumpsit. The declaration was by the indorsee of a promissory note against his. immediate indorser; it contained also the common money counts. The cause was tried in the supreme court of Ross county, and a verdict given for the defendant. A motion was made for a new trial, and the decision of the motion referred to this court for decision.
    The facts were these: On the 6th of October, 1818, a note, drawn by James Barnes, payable to the plaintiff, Douglas, and indorsed by Douglas and the defendant, Waddle, was discounted by the office of discount and deposit of the Bank of the United States at Chillicothe, where it was made payable, and the proceeds drawn upon the check of Waddle, the last indorser, and carried to the account of Barnes, the drawer. Though treated in form as a real note of business, it was, in fact, for the accommodation of Barnes, the drawer. Four notes were successively drawn, indorsed, and discounted in the same manner, and the proceeds of each successive note applied to discharge the amount due upon the one preceding it. A note was then drawn by Barnes, payable to the defendant, Waddle, and indorsed by him and one Hoffman, discounted and applied as before. Four notes were again successively drawn by Barnes, payable to Waddle, and indorsed by Waddle and the plaintiff Douglas, and the proceeds applied in the same manner. The last of these was the note in question, upon which suit was brought by the bank, under the statute against drawer and indorsers as co-defendants, and judgment and execution had, upon which the plaintiff and defendant each paid half the amount, and the plaintiff claiming that the defendant was-liable to him for the amount by him paid, obtained the note,. Struck out his own indorsement, and brought this suit.
    Brush and Fitzgerald, and Douglas, for the plaintiff:
    The right of the plaintiff to recover depends upon long-established and well-settled principles of mercantile law. *So soon as a promissory note is indorsed, it assumes the same character, and becomes subject to the same rules, as a bill of exchange.. The indorser is the drawer, the maker of the note the acceptor, and the indorsee the payee, or person entitled to receive the-money. This was settled in the case of Heylen and others v. Adamson, 2 Burr. 676, and has since been strictly adhered to. Upon this state of the law Douglas, to whom Waddle indorsed the note, was entitled to recover the amount from Waddle, the indorser. That he himself sold the note, and was afterward compelled to pay it and take it up, does not alter his rights.
    The ground of defense taken in this case is: That this was an accommodation note, drawn by Barnes, and indorsed by the-plaintiff and defendant for his accommodation; that as between them it was not a real transaction ; no consideration was paid by either to the other; that though it assumed the form of a real making and selling a note, it was, in fact, but an agreement that the indorsers should become securities for the drawer. It is, however, well settled, both in England and America, that in an action by the holder of a note or bill, against drawer, acceptor, or indorser, the fact that the defendant made, accepted, or indorsed the paper for the accommodation of another, without consideration, can not be set up as a defense. Charles v. Marsden, 1 Taunt. 224 Smith v. Knox, 3 Esp. 46 ; Wiffen v. Roberts, 1 Esp. 261; 2 Caine, 343; 7 Johns. 361; 18 Johns. 327; 14 Cranch, 141; 2 Litt. 174.
    The statute of this state, authorizing a joint suit against drawer and indorsers, is supposed so to operate as to make them principal ;and securities; and the decisions under it, with respect to execution going against principal and surety, it is contended, must be founded on that doctrine. This inference is’not a just one, as it re* lates to this case, because tbe statute was unnecessary, if without it the holder of the paper could consider drawers, acceptors, and indorsers, as joint debtors, against whom he could proceed jointly. This is pretended by no one. Besides, the statute distinctly contemplates a separate defense. In Kentucky they have a similar statute, and there it has been expressly adjudged that one indorser can not have contribution against another, because their undertaking is not joint but several. 2 Litt. 174.
    *It is urged that there is a general understanding throughout the state, among those who indorse accommodation paper, that 'they are joint securities, and that this general understanding constitutes the law. General understanding is certainly a new agent in legislation — a new source to supply a rule of civil conduct in our country. Whatever matter may be given in evidence to defeat a recovery, may generally be pleaded in bar to the action; .and if general understanding may make the law in one case, it may in another. Establish the doctrine as now contended for, and we must hereafter add a new title in our treatises on pleading — the title of “general understanding." We must have a plea of the general understanding, and a series of decisions establishing the state of facts which shall constitute this general understanding, and declaring the rules of evidence by which it shall be proven. Certainly this notion of a rule of law, founded upon general understanding, is too absurd to be seriously considered. It bears no .analogy to the doctrine of general-or special customs, which, in a few cases, are held to constitute a peculiar law.
    But it is denied that any such general understanding prevails in the state. None such was proved on the trial of the cause. The attempt to prove it was overruled by the court, which, of itself, is decisive that it can have no just weight in deciding the motion under consideration.
    The principle contended for must, in its application to all the various subjects connected with it, subvert the whole system of mercantile law in relation to bills of exchange and promissory notes.
    It subverts the rules of evidence, because it permits parties to-prove facts inconsistent with the legal interpretation of their contracts, as reduced to writing. The note and the indorsements considered, as the writings themselves import, constitute several separate undertakings to pay money, and unless explained by the proof of other facts, must be so understood and adjudicated upon. Proof is let in that the whole was an affair for the accommodation of one of the parties, and by this proof the effect of the writings-is totally changed. They are no longer separate contracts, founded upon separate dealings, but are one joint contract, founded upon a single transaction, and the consequent rights of the *parties are placed upon a different foundation. It is not easy to foresee what may result from an innovation like this upon well-settled usages.
    It must affect the certainty and uniformity of character hitherto-attached to these instruments. They mean one thing in the hands of one set of men, and another thing in the hands of another set. And their character must depend upon parol proof whether the holder was a party to the original transaction, and whether that was one of accommodation or otherwise. The perjury of a single-witness may thus render a genuine note or bill of totally different value to him who holds it from what its face imports, and from what he may have received it for in market.
    If, as between the original parties, an accommodation bill ornóte is but an agreement of some to become security for others,, it must, upon principle, retain this character in the hands of all who receive it, with notice of that fact, and be subject to all the-doctrines in relation to principle and surety, whatever they may be.
    An accommodation note, drawn and indorsed in this state by one indorser, and in the State of New York by another, must be-subject to the operation of different rules of liability. If the indorser in New York can reach his previous indorser, in the tribunals of that state, he will be liable, but not liable if brought, before our own courts.
    It is well understood that the undertaking of the indorser of accommodation, as well as real paper, is conditional. His agreement is that he will be liable if the holder demand payment at tha proper time and place, and in a proper time and manner notify him that payment is not made. Two difficulties in relation to this must be introduced by the doctrine now insisted upon. The-undertaking to the real holder of the note is totally different from the agreement between the parties. And their respective liabil • ities must depend, not upon their own contract, but upon the act of the holder. If there be more than one indorser, and the holder fail to notify one of demand and non-payment, so as to charge him, the joint contract is put an end to. The indorser charged can have no redress against his co-indorser for contribution, and if the holder choose to charge the first indorser by a notice, no act of his can subject the second ^indorser. Indeed, it is not perceived, even if all the indorsers be charged properly, if the holder choose to collect the amount from one, how the others are to be redressed.
    When the parties intend to make a joint contract and a joint’ liability, it is easy to do so. Had that been the intention here, the note could have been drawn payable to both indorsers, and then a joint indorsement would have created a joint liability. But when the written contract of the parties creates, in law, separate. and not joint liabilities, there can be no reason for making a new contract between them, more especially when to do it, introduces a new doctrine, the consequences of which can not be anticipated, and the very introduction of which is a subversion of an existing rule of long-established authority in the countries from which we derive our maxims and rules of jurisprudence in other cases.
    King and Leonard, for the defendant:
    The single question to be decided in this ease is, whether indorsers on accommodation paper are, as between themselves/ to be considered co-securities, or whether they are separately liable as well to each other, in their order of indorsement, as to the holder of such paper.
    It is not admitted that this question has been anywhere distinctly decided; although it is evident, from the eases cited, that points have been ruled which seem to involve the decision that no distinction exists between accommodation and other paper. But the opinion seems to have been adopted as a matter of course, without inquiry as to the foundation upon which it rests.
    In England, the law merchant is a peculiar branch of their municipal code. It is founded entirely upon customs prevalent among merchants. These customs have been, from time to time, found by the verdicts of juries, as different questions arose, and after having been found upon proof, in a few cases, have been received, in other cases, as established without proof. The days of gi’ace allowed upon bills and notes is of this character, so is the time of making demand and protest, and the manner of giving notice to indorsors of non-payment. On this subject it has been decided by our own Supreme Court, that a custom of making this demand *and giving notice on the fourth day, prevalent in the Rank of Chillicothe, was binding upon those who/transacted business in that bank, or in other banks at that place, although this custom or ■mode of doing business was not according to the general law.
    We all know that this decision did not and could not proceed upon the old common law doctrine of custom, which is a different 'thing from the custom of merchants. The latter means, in fact, .nothing more than a general understanding as to the mode of transacting a certain business by those engaged in the transaction of that business. This general understanding is considered as entering into, and forming a part of their contracts, in reference to which they are to be interpreted and enforced.
    The forms of drawing and indorsing these instruments are not of the inflexible character assumed by the opposite counsel. If an indorser be sued, it is competent to prove that the paper was drawn for his accommodation and the proceeds received by him, to answer an objection that notice was not given. It is only a different application of the same principle to receive evidence that the paper was indorsed by-all the indorsers as accommodation paper.
    The understanding upon this subject, among those who have indorsed, has been general. Parties who have become liable as indorsers have apportioned the loss among themselves without controversy. In this very case it was so apportioned. The plaintiff then so understood’the law.' His suit is founded upon a new understanding of it.
    His first understanding accords with .the strictest rules both of justice and equity. Where two persons lend their names to a mutual friend, one ought not to bear the whole loss. More especially a technical rule of law ought not to be got up to fix that loss upon him, contrary to the mutual understanding of all the parties. We do not ask to subject a particular contract, to be interpreted by a general understanding, in relation to such contracts. ¥e ask only 'to have this particular contract interpreted as the parties themselves understood their respective liabilities, and we introduce the general understanding to illustrate and strengthen the position w¿ take.
    *The eighth section of the act regulating judgments and •executions, passed February, 1820, directs that “where judgment is rendered upon any bond, sealed bill, promissory note, or other instrument of w.riting, in which two or more persons are jointly or severally bound, if it shall be made appear that-one or more of said persons signed the same as surety or bail for his co-defendant, it shall be the duty of the clerk entering judgment thereon to certify which is principal debtor, and which is surety, and the act further provides that, in such case, the property of the principal shall be exhausted, before that of the security shall be taken in execution.”
    It has been again and again decided that under this law, indorsers of accommodation Dotes are sureties, not liable to have their property seized in execution until that of the principal is exhausted. It is the settled practice, not only in the state courts, but in the Circuit Court of the United States. And in that court it was sharply contested by the counsel for the Bank of the United States. The judge justly remarked he could not blink so hard as not to see the real nature of the transaction, because the forms of doing business were of different import. If the plaintiffs are right, this practice is wrong. As it has universally obtained, no better evidence could be adduced of the general understanding. For it could not have obtained, had a different sentiment prevailed.
    The inconveniences suggested by the plaintiff’s counsel are moré imaginary than real. They are founded upon adjudications as to real business paper, where the making and the indorsing were in fact separate contracts, arising upon separate considerations. To these they are applicable, and with respect to these it would be unsafe to attempt innovations. A different understanding has prevailed, and been the basis of very extensive credits and dealing. No mischiefs have resulted. And it is not probable that a decision declaring the law to be as parties have understood it, and- acted upon it, will introduce mischief — a different decision would be likely to introduce many mischiefs, by leading to the ripping up of settlements made, and disturbing rights long adjusted.
   *By the Court :

The principle that the indorsee of a negotiable promissory note may sustain an-action against a previous indorser, upon the indorsement alone, without showing other consideration, was originally settled upon sound and correct notions of justice. And, in its application to a proper case, it is a rule which ought not to be disturbed. A promissory note was created as evidence of a real debt due from the maker to the payer. It was received and held as such. If transferred or indorsed by the payee, the indorsement, was a real, separate contract between the indorser and indorsee of the note; the latter received it for a consideration paid, and hence, the indorsement, like the making, was held to be evidence of a debt due from the indorser to the indorsee. The same fact attended every subsequent indorsement, and attached to it the same consequences. As between parties to a note thus made and indorsed, the principle maintained by the plaintiff is well applied. But where the transactions of the parties are, in fact, of a totally different character, neither the reason of the rule, nor the justice of the case, admits its application.

The form of transacting a real business was in time used for the creation of an artificial credit. Notes were made, indorsed, and. thrown into the market for the purpose of raising money for one of the parties only, the others being in fact securities, and receiving nothing whatever upon their indorsements. It is urged that, in England and in some of our sister states, this species of notes is. placed upon exactly the same foundation with real paper, and that no distinction can be safely made between the two classes. So far as it relates to the interest of a bona fide holder, who has advanced his money, this is right and just; and so far the rule rests upon authority. There is no decision adduced by which it is adjudged that this rule is inflexible in its application to the original parties who made and indorsed the note, and between whom nothing was paid. And, if a direct authority did exist in another country, we should feel ourselves bound to examine the subject upon principle before we adopted it here.

In this country the parties to this description of paper usually understood their relation to be that of principal *and security, and upon this understanding they have generally acted, both in creating the paper, and in adjusting their liabilities upon it.. Were it fully admitted that no rule of law could be founded upon general understanding, the admission would have no bearing in this-case, where the inquiry is, whether the form of creating a note, and putting it into market, shall absolutely settle the rights of those concerned, contrary to their own understanding of the matter. When the litigation is between the original parties, we are-of opinion that the form of making and indorsing a note does not preclude an inquiry as to what the parties intended, and what was the real transaction between them. And the propriety of making-this investigation is the more manifest from the well-known fact, that many more notes like this are created artificially in this country than are made and indorsed upon actual dealings between the. parties.

The real principle upon which the plaintiff proceeds, is that he purchased the note from Waddle and paid him a consideration for it. He must be the owner of the note or he has no right to recover in an action founded upon an indorsement on it. It appears-from the evidence, that Waddle, when he indorsed the note, delivered it to Barnes, the drawer, who took it to the plaintiff and' obtained his indorsement. When the note was handed to Douglas it was not for the purpose of vesting in him any property. Suppose he had retained it then and brought this action; would any lawyer contend that parol evidence to explain when the note-was made, and bow Douglas became possessed of it, could not be received? It is assumed that no lawyer would attempt this, and-if Douglas had not then an interest in this note, upon which he-could sustain this action, how, and when did he acquire such an interest? He could not acquire this interest by subsequently paying half the money due upon it; for that payment only entitled him to demand the amount paid from him for whom it was-made; it could invest him with no new interest in the note. It is-therefore clear, that if Douglas can maintain an action upon theindorsement, it must be in consequence of the interest acquired in the note by Barnes’ handing it to him for indorsement; and that he then acquired no interest *upon which he could maintain an action, admits, we think, of no doubt. He knew that Waddle-did not, in fact, own the note, but had indorsed it for the aeeomdation of Barnes, as a security. He knew that he himself indorsed-it for the same purpose, and not as owner; it was intended to pay-.-a debt due from Barnes, who, and not Waddle, was the person to be benefited. Douglas himself never had a beneficial interest in the note; and the money paid by him was paid for Barnes, not for Waddle. He therefore can have no action against Waddle for the .amount.

Oases have occurred without number in which two or more persons have indorsed notes to be discounted in bank, when neither would have indorsed alone, because no one of them was willing to risk the payment of the whole debt; and when the requisite number of indorsers have been obtained, they have paid no attention to the order in which they placed their names on the .paper. Such was the fact in this very case. This could only arise from a distinct understanding among the parties, that the indorsers stood in the relation of sureties to each other.

By the nineteenth section of the act regulating judgments and executions,'we are directed to receive parol proof when one or more iof the defendants signed the note as' securities, and-it is made the duty of the clerk, upon such proof, to certify which of the defendants is principal debtor, and which is security, in order that the.property -of the first may be exhausted before execution can be levied on the latter. We have uniformly understood this law as applying to the indorsers upon accommodation notes, and have so applied it, and this .could be d.one upon no consistent principle but that of con.sidering such indorsers as securities.

The defendant, under this statute, might, when judgment was •rendered against the drawer, the plaintiff and himself, have applied to have the certificate made that he, with the plaintiff, were -.sureties. Upon the proof in this cause the certificate must have been made. It would be absurd -to consider and treat them as securities as be ween them and the creditor; but between them•selves as parties to separate contracts.

*Where the original transaction was in its character and object that of principal and security, the court, as between the original parties, will so consider them, no matter what form may have been giv.en to it; and where there are two or more indorsers upon an accommodation note, all of whom indorsed before the mote became operative by being transferred to some person not a party, for value received, and all of whom are charged by notice •of demand and non-payment, they shall be treated as co-securities, .and contribution shall be made between them as such. In this relation the plaintiff and defen'dant stood to each other. Each has-paid his half upon the principle of being joint securities. The plaintiff can not recover in this action.

With respect to the various difficulties urged by the plaintiff’s counsel as necessarily resulting from this decision, it appears to the court that the opposite counsel have sufficiently answered, them. If, however, the .salutary and just principle upon which this decision is predicated can not be extended to every case without too great innovation upon established doctrines, the only consequence will be, that it must be- limited to cases situate as this. It will be time enough to meet these suggestions when a case-arises in which they are presented for determination.

See Renner v. Bank of Columbia, 9 Wheat. 582.


author: By the Court :

text:
    Jacob Huddle v. Thomas Worthington.
    Condition— Covenant.

    A declaration in a covenant, founded on the condition of a bond containing: no express agreement, is bad.
    This was an action of covenant. The declaration contained a single count, as follows: “ For that, whereas, by a certain writing obligatory, commonly called a title bond, executed, etc., in the usual form, it was concluded and agreed, on the part of the defendant, in manner following, to wit: the defendant by the same writing obligatory did covenant, "promise, grant, and agree to, and with the plaintiff and his heirs, that the said defendant should and would, on or before the 20th day of August next ensuing the date of said bond, by a good and sufficient general warranty deed in fee ^simple, convey unto the said plaintiff or his heirs a certain tract of land, etc., alleging a breach for non-conveyance.
    The defendant craved oyer of the bond, the penal part of which was in the usual form for the payment of a sum of money; he also-craved oyer of the condition, which was in the following words: “The condition of the above obligation is such that if the above-bound T. Worthington shall convey, by-a good and sufficient gen-eral warranty deed, in fee simple, on or before the 20th day of August next after the date hereof, to the said Jacob Huddle or his heirs, a certain tract of land, etc., then this obligation to be void,” etc. Upon this the defendant demurred to the declaration, and the decision was adjourned to this court by the supreme court •sitting in Ross county.
    Creighton and Bond, for the plaintiff:
    We suppose that both the principle that an action of covenant lies upon the condition of a bond like this, and the mode of declaring which we have adopted, rest upon the authority of adjudged cases.
    The case of Ward v. Johnston, 1 Mun. 45, was an action of covenant upon the condition of a bond to convey land. That condition •differs in nothing from this, except it contains a recital that land had been sold. The declaration was upon the condition alone, reciting that the covenant was made under a penalty. And here we say that the covenant was made in a title bond, which is substantially the same.
    The case referred to was much litigated. In the court of appeals Mr. Wickham made the same objection taken here, but cited no .authority in support of it. In reply Mr. Wirt cited 6 Viner, 376, p. 4, as being full in point to support the action. The judges gave their opinions seriatim, and no notice whatever is taken of the point that covenant would not lie upon the condition. The decision is that the action was well conceived, which could not be if 'this point was well taken.
    Kennedy v. Kennedy, 2 Bibb, 264, is also a case of covenant brought upon a penal bond conditioned for the conveyance of land. The exact mode in which it is declared upon is not stated. But the action is sustained expressly by the *eourt> upon the ground that the condition setting forth that land is to be conveyed contains the agreement of the parties, and therefore amounts to a •covenant, and the court refer to and adopt the doctrine of Lord Mansfield, 2 Burr. 826, that “ the condition of a bond is an agreement in loriting.”

    The case of Dougherty v. Llewellen and Stewart, 3 Bibb, 364, is distinctly stated by the court to be “ a suit in covenant brought upon the conditions,” and they also state the first question made, to be, “ can an action of covenant be maintained on condition of the bond”
      'They decide that it can be so sustained, and there is nothing that we can perceive to distinguish that case from this.
    Leonard, for the defendant:
    In support of their mode of declaring, the plaintiff’s counsel have cited several authorities, and in one case have referred to the argument of Mr. Wickham. We also refer to that argument; and it will be seen that he lays down the law as it is laid down in Comyn’s Digest, Covenant, A. 2, that covenant lies on a deed wherever there is an express agreement, or one is distinctly implied by the terms used in it.
    On a bond to pay money to be defeated by the performance of a condition, debt or covenant will lie on the penalty. At common law the party had his election to pay the penalty or to perform the condition. At common law he is not considered as stipulating to perform the condition, but as agreeing to pay the penalty, with the liberty of saving himself therefrom by performing the condition. It is in fact an alternative agreement. Courts of equity, however, interfered both to relieve the party from the payment of the penalty, as also to enforce the specific performance of the agreement contained in the condition. This, the courts of law strenuously resisted, and Lord Coke, I think, particularly distinguished himself in the contest. The court of equity considered the construction put on penal bonds as narrow. But both the ■courts of law and equity adhered to their respective constructions. Where, therefore, Lord Mansfield says the condition of a bond is an agreement, he means it is so considered by courts of equity, and so he expresses himself directly afterward. If an action of covenant may be brought directly on the condition, in what *light is fhe penalty to be viewed ? What is the amount of damages the jury may assess? Strictly they should assess the damages sustained; suppose they exceed the penalty, are the jury to be restrained to that amount? They may find less, why not more? The penalty is not the stipulated damage in case of a failure to comply with the condition. As the condition alone, and without aid of the penal part of the bond, comprises an agreement, and the action is brought directly thereupon, for not complying with that agreement, I see no reason why we should not go further, and say the jury must assess the damages really sustained, without any limitation on account of the sum mentioned in the penalty.

      Where a party enters into covenants to perform certain acts, aid in the’agreement there is also comprised a stipulation that in case-of failure therein a certain penalty shall be paid, an action of covenant lies upon the covenants, and the amount to be recovered therein, is by no moans limited by the penalty, or an action of debt may be brought on the jmnalty, and the amount thereof only recovered. In such an article of agreement there are covenants to do certain things, for the breach of which damages without stint may be-assessed by the jury; as there is also a penalty imposed on the party which may likewise be foundation of an action of debt on failure to comply with the covenants in the article. Look, then, at the case of a bond made by several, the one as principal, and the-others as sureties, with the collateral condition that the jmincipal should build a house, go to Rome, or convey a tract of land. If this-condition comprises an agreement at law, an action of covenant might be sustained thereon, against the principal, for omitting to-do these several acts, as likewise against the sureties for the breach of the covenant.on their part, made that the principal should perform them. Thus the sheriff and his sureties -would ,alL be liable, in an action of covenant, for the sheriff’s neglect in discharging his official duties. For most assuredly if there is an agreement, on the part of the sheriff in the condition of his bond, to discharge those duties, there is also an agreement on the part, of the sureties to the effect that the sheriff shall not neglect them; and thus sureties might be held beyond the stipulated penalty of the bond, and so the matter is viewed in the case cited from 1 Munf. 54. *“ Although I admit an action of covenant will lie on the penalty of the bond where the obligor binds or obliges-himself to pay the same, or in any way stipulates that he-will pay the penalty, as by saying he is content to pay the same, or otherwise, yet so far am I from admitting that an action of covenant-will lie on the condition, that I think, and will cite an authority for my opinion (vide Hard. 178), that a bond may be so framed that an action of debt only will lie on the penal part of the bond. Debt is the proper remedy, where there is a debt only, covenant where there is an agreement to pay money. If the obligor obliges -himself to pay, here is a covenant. If he says that he acknowledges himself indebted, here is no stipulation to pay, here is only an admission of a debt, and that admission liable to be defeated by the performance of the collateral matter stipulated in the condition ; and this is the substance of what is said by the chief baron in the case last cited from Hardre. Would it not be going far to say that although an action of covenant can not be brought on the penalty, yet it may on the condition, and I am satisfied that the court, if they look at the authorities cited in Comyns’ Digest, Covenant A. 2, Action M. 4, and those mentioned in Chitty’s Pleadings, 109, Covenant, will come to the conclusion that the sealed acknowledgment of a debt will not support an action of covenant, which will only lie where there is some sealed-engagement to do some certain act, which engagement is not complied with. See the absurdity of such a case as the following: A man covenants to do certain acts by deed, he afterward enters into bond, conditioned to perform the covenants contained in the first deed. An action of covenant might be brought on the covenants contained in the condition of the bond, for not keeping his covenant, to keep his covenants in the first deed, and another action on the first deed for breach of those covenants. Take a bond conditioned that Lafayette should come to America; or that General Jackson should be president. Will an action lie on the condition, an action of breach of covenant, because General Jackson was not elected president, or Lafayette did not come to our country? Was that the understanding of common lawyers anterior to the statute of William? Ah 1 but that statute has altered the common law. To be sure, but bow? By making it compulsory, *on the party, to have. bis damages assessed for breaches of the condition, and enabling him to assign more than one breach. Is not that the whole and entire effect of the statute? Does it alter the form of action, or make that a covenant, which was only a condition? Had we not better adhere to the old law as it stood, where there is no reason for alteration, and the more especially, where the alteration would be accompanied with many inconveniences, and would introduce inconsistencies and improprieties into the technical parts of the law ? To use an expression of the venerable Judge Reeves, would it not “ mar the symmetry of the law ?”

    Hammond, in reply:
    In all penal bonds, the condition is introduced to set out the real agreement between the parties. It contains the contract. The obligatory, or penal part, is in fact no part of the agreement. It is so treated by courts both of law and equity, unless at law the ■pleadings omit to make a case in which, the condition can be noticed.
    In the'presen# case, the agreement was to convey a tract of land —a bond is given, the condition of which is, that the defendant shall convey to discharge the obligation, otherwise it remains in full force. The conveyance is not made, but certainly that does ■not defeat the contract. The purchaser has a right to the land, founded upon the contract, not to the penalty only. The condition, in all such cases, must include a covenant that the obligor will do what the condition states is to be done. If this covenant be necessarily included in the conditien, then an action can be brought upon it.
    It is asked, what in such case becomes of the obligation or penal part? By electing to sue upon, and enforce the condition, t'he ■obligee waves his right of action for the penalty; and in assessing damages, except against securities, no notice is taken of it. The ■obligee is not limited against the principal to the amount of money named in the penalty, if his pecuniary loss by the non-performance exceeds that sum. As against securities it is held that they have fixed the amount to which they agree to be liable in the penalty, and can not be charged beyond that amount. Was covenant, in such case, brought against securities, the jury would *be restrained from giving damages beyond the amount of the bond. But the principal stands upon different ground. He is liable to the . other party for his actual damages. If these exceed the amount of the condition, a jury may give them, whether covenant" be brought upon the obligatory or penal part of the bond.
    Because a case may be supposed, in which covenant can not be brought upon either the obligation or condition of a bond, that fact furnishes no argument against sustaining the action where the terms of the writing admit of a different construction. In this case the condition contains an agreement to convey land. It can receive no other rational interpretation. It is clear, from the whole writing, that the contract was for the sale and conveyance of the land named in the condition. The writing imposes upon Worthington an obligation to convey. He has covenanted to do it. This is the manifest implication ; and upon principle, as well as upon the authorities cited, the action is well brought.
   By the Court :

We are of opinion, that an action of covenant can not be sustained upon the condition of a bond like this, separated, as it is in the declaration, from the penal or obligatory part of the bond. It might be different, if the entire bond was declared on, as in the -case in 1 Munford, stating that the covenant was made under the penalty in the obligatory part specified.

Judgment must be for the defendant.