author: Judge Sherman :

text:
    Este and Longworth v. D. E. A. Strong and others.
    Decree in equity against guardian, touching the real estate of his ward, does’ not affect the ward unless he is made a party to the original suit.
    Where a guardian has given a lien upon real estate, claimed by and in possession of his ward, such lien can not be overreached by the ward purchasing a paramount title.
    This cause was adjourned from the Supreme Court of Hamilton county. It was a bill to carry into effect a decree pronounced in a case between E. Pearson, and S. R. Miller, guardian of the heirs of Elijah Strong, deceased. The interest in the decree had been transferred to the present complainants, in trust for certain purposes. The state of the case is as follows:
    Pearson prosecuted a suit in chancery against Miller, as guardian of the heirs of Strong, to obtain a decree for the specific performance of an agreement, made as guardian, charging the rents-of a house in Cincinnati, with a balance due Pearson, for erecting the house, upon a previous contract, as guardian, made by Miller, under an order of court to sell part of a lot to improve the residue.
    Miller alone was made defendant, and a decree was pronounced against him for the specific execution of the contract.

      Pending the original suit, the defendant, D. E. A. Strong, had attained his full age, and upon proceeding on a petition for partition had become the sole owner of the house and ground in dispute. And before this, Miller had made a lease, as guardian, for a term of years to the other defendants, upon which considerable rents had accrued and remain unpaid.
    This bill was filed against D. E. A. Strong, the legal owner, against the lessees, and the widow, to whom dower had been assigned, to obtain the benefit of the original decree, and was so framed as to have no reference to any matter behind that decree,
    *D. E. A. Strong pleaded in bar.
    1. That the heirs of Strong were not parties to the original suit, and that, although Miller was his guardian when the alleged contract was made, yet before suit brought Miller was superseded and another guardian appointed in his place ; and that before the decree was pronounceed, he had attained his full age.
    To this plea the complainants replied, that the new guardian permitted Miller to act as guardian, in controlling and renting the property; and that the defendant, Strong, after he had attained his age, sanctioned the acts of Miller. The defendant demurred to this replication.
    2. The defendant pleaded that he had purchased and owned the property under a title paramount to that of E. Strong, for whose children Miller acted as guardian.
    And the complainants replied, denying the validity, of the title purchased, and asserting the continuance of the possession under the heirs of E. Strong, and the lease' of their guardian.
    To this replication also, the defendants demurred.
    The decision of the court being confined to these two pleas, it is considered unnecessary to take any notice of the various other facts presented by answers and pleas in the cause.
    C. Hammond, for complainants:
    The original suit was well brought against the guardian aloné. He had the sole power to lease the lands, and to receive the rents. He had equally power to make improving leases. , Contracts made within the extent of his power binds the ward. 7 Johns. Ch. 154; Cro. Jas. 55, 98.
    It was unnecessary to make the ward a party. He knew nothing of the transaction, and was incompetent to litigate the matter in dispute.
    By his subsequent recognition of the acts of the guardian, the ward is concluded. 2 Wils. 129; 1 Swift’s Dig. 58. It makes no difference that this recognition was of a different transaction.
    The second plea is vicious in its principle. He who has incumbered an estate, can not defeat his own incumbrance *by purchasing in a better title. Nor can he, while he remains in possession, compel one, to whom he has given a lien, to controvert, with him, a title he has purchased from a stranger.
    Caswell and Starr, for defendants:
    If the original suit was well brought against Miller, as guardian, yet the decree can not bind the defendant, because he was of age when the decree was pronounced, and ought to have been made a party that he might have examined the existence and extent of Miller’s act, affecting his rights. For the decree subjects rents that have accrued and must continue to accrue after he attained his age. 1 Har. Ch. 76; Coop. Eq. 33, 181; 1 Mad. Ch. 23, 34, 420; 2 Mad. Ch. 142; 1 Johns. Ch. 349; 2 Johns. Ch. 25; 3 Johns. Ch. 311.
    The guardian could make no lease to bind the estate beyond the minority of his ward. 1 Swift’s Dig. 51; Reeve’s Dom. Rel. 326, 334; 7 Johns. Ch. 150; 1 Johns. Ch. 561; 10 East, 494; 2 Wils. 129; 6 Mass. 58; 2 P. Wms. 278; 2 Mass. 55; 1 Wash. 90.
    The guardian does not so represent the estate of the ward, as that suits can be brought against him in relation to it. The ward must in all cases be the principal, and the guardian appointed to make defense may or may not be the regular guardian. 3 Bac. 412; 4 Mass. 436; Newl. Ch. Pr. 36; 1 Swift’s Dig. 51.
    Courts are ever vigilant in protecting the rights of infants. In some cases they are not concluded by their own admissions, and in England a day is given, after they come of age, to show cause against decrees being conclusive upon them. In some cases they have been permitted to do so, against a decree upon answer by their guardians. 3 Bac. 587, 613; 3 Atk. 626; 1 P. Wms. 503; 2 P. Wms. 401; 2 Mad. Ch. 353; 3 Johns. Ch. 367; 7 Johns. 580.
    When supplemental bill is necessary, after decree in original bill, to bring new parties and new interests before the court, it is open to new parties to make all objections against the decree to be rendered, that they might have against the original decree. 2 Mad. Ch. 407; 3 Br. *Ch. 392. And such is evidently the character of the present bill.
    The second plea proceeds upon the principle that the defendant, Strong, does not hold the property as heir at law, or in any connection with the estate of E. Strong, his father ; but by title paramount. The allegation that Miller, as guardian, was in possession and in receipt of the rents, and that neither the defendant nor Hinde, from whom he purchased, was ever in possession, is no .answer. If the Strongs had no title by inheritance, the possession of Miller, as their guardian, was an act of usurpation, and not of right, which can not affect the right he has acquired.
   Opinion of the court, by

Judge Sherman :

The bill, in this case, is filed to enforce a decree of this court, rendered in the case of Pearson v. S. R. Miller, as guardian of D.E. A. Strong and others, children and heirs of Elijah Strong, deceased, charging the rents of certain real estate with the payment of the balance duePearson for improvements made thereon. Itis carefully framed, to avoid bringing into litigation the matters controverted in the former suit. The defendant, D. E. A. Strong, the only party in interest, seeks to avoid the effect of the former decree by ■showing that Miller was not, at the time of filing the bill by Pear-con, his guardian, and that he attained his full age before that decree was pronounced ;• and upon this plea, and the replication thereto, the question is made, whether the decree against Miller is conclusive and ought to be enforced against the defendants without ■reference to the facts upon which it is was founded.

It is a general rule, that upon a bill to carry a decree into execution, the court will not, unless under special circumstances, examine the justice of the decision or the law of the decree; but, if the case be proper for their interference, will specifically execute •the decree. .There are cases whore this rule has been relaxed and the decree been varied, if, upon examining the proofs taken in the cause, wherein the decree was made or the directions given, a mistake has been discovered. Johnson v. Northy, 2 Ver. 409; West v. Skip, 1 Ves. 245.

*It ought to be observed, that at the time of filing the bill ■against Miller, in which the decree now sought to be enforced was rendered, all the defendants to this suit were in esse, claiming the same rights to and interest in the rents in question as they do-now, with the exception that D. E. A. Strong, one of the defendants, purchased, during the pendency of the former suit, the adverse claim of Hinde and wife to the lot out of which the suits in controversy arise.

If this decree should be enforced against the defendant, D. E. A. Strong, it would have the effect of incumbering his property with the payment of a large sum of money, on the ground that Miller, his guardian, had so subjected it, during his minority, without his ever having had an opportunity of showing either that Miller was not, in fact, his guardian at the time the supposed contract for building was entered into; or, if his guardian, no such contract was made, or any other matter going to impeach the justice or legality of the decree now sought to be enforced.

The extent of the power of the statutory guardian over the real estate of his ward, and how far he can lawfully incumber it for improvements or other purposes, it is unnecessary to consider in this case; for, if the power of the guardian be admitted to the extent claimed by the complainants, but has been so defectively executed as to render it necessary for the party claiming, under the act of the guardian, to resort to a court of chancery to charge the estate of the ward, it is proper that the ward should be a party to such suit; and a decree obtained against the guardian, as such, in a suit where the ward was not a party, would not be conclusive upon him. In those cases, where the legal right of the guardian is unquestioned, as to sell the personal property of the ward for his support and maintenance, and the contract-of the guardian has been executed by the sale and delivery of such personal property to a bona fide purchaser, the sale would be binding upon the ward, and the property would vest in such purchaser without his being at all answerable to the ward for the faithful application of the purchase money. But if the contract of the guardian be executory, and it became necessary to resort to a court of chancery for its execution, the ward ought to be made a party to such *suit; and any decree obtained against a guardian, in a suit in which the ward was not joined, would not be conclusive upon him nor enforced against him upon a subsequent bill founded only on such decree against his guardian.

But whatever might be the effect of a decree against the guardian of an infant, in his character of guardian, upon the estate of his ward, the pleadings in this case show that this relation did not', exist between Miller and the defendant, D. E. A. Strong, at the-time of filing the original bill by Pearson nor at any time during-the progress of the suit to its final termination, by the decree now sought to be enforced. Miller was not, at the commencement of that suit, or ever after, the guardian of D. E. A. Strong, and although he suffered the suit to proceed against him as such guardian, without objection or disclosing the fact of his not being' such guardian, neither his silence nor unauthorized acts, however-fraudulent and injurious to the complainants, can prejudice, much-less conclude the rights of the defendant.

If D. E. A. Strong, after he arrived at full age, having a knowledge of the facts, had recognized and sanctioned the act of Miller in pledging the rents accruing from the city lot toward the payment of the improvements made thereon by Pearson, under the-contract of 1817, it would be obligatory on him, and a court of chancery would enforce the contract against him. But this fact can not aid the complainants in this case, their bill being avowedly framed to charge the rents, on the ground of the decree against. Miller, as his guardian, and not upon the contract of 1817, the improvements made by Pearson, and the recognizing that contract by the defendant, D. E. A. Strong, after he arrived at full age.

The decree is against Miller, as guardian of the heirs of E.. Strong, deceased, and subjects the rents of. certain real estate, belonging to those heirs, to the payment of a large sum of money, those heirs not being parties to the suit in which the decree was-made. During the pendency of that suit the interest of all the heirs was vested in D. E. A. Strong, who had attained full age at the time of the rendition of the decree against Miller, and is now the only *one of the heirs of E. Strong, deceased, interested in the lot, the rents of which are charged with the payment of the-claim of Pearson. Miller, the sole defendant in the former suit, although there described as the guardian of D. E. A. Strong, was-not, in fact, at that time his guardian. To consider, under these facts, the decree rendered against Miller, as guardian, conclusive upon the rights and interests of D. E. A. Strong, would be manifestly subversive of some of the plainest and most obvious principles of law and justice. It would be directly adjudicating upon' the property of an individual without giving him an opportunity of being heard, and that upon a pretense which is shown to be-false; for it is evident that the defendant, D. E. A. Strong, the only person claiming title to the property, the rents of which are .-affected by the decree, has never had an opportunity, directly, by himself, or indirectly, by his guardian, to object to the claim of Pearson, to have the rents applied in discharge of the debt due him for the improvements he made.

If D. E. A. Strong had been made a party to the suit of Pearson against Miller, it would clearly have been competent for him to have shown that Miller was not, at the time when the contract to pledg?e the rents was entered into, his legal guardian, or otherwise authorized to act for him, or in any manner incumber or dispose •of his estate. If this decree could be enforced against him, because rendered against one called his guardian, without inquiry into its merits or the facts upon which it was founded, he would be forever concluded from showing that Miller was not in fact his .guardian. This consequence may also result: that an entire stranger, by assuming the name and character of guardian of a minor, may dispose of the personal property, and incumber the real estate of such minor, in such manner as to be binding and conclusive, and the infant be driven to seek a compensation from the intermeddling stranger for the injury he may have sustained.

Whatever, therefore, may be the extent of Pearson’s equitable lien upon the property of the defendant, D. E. A. Strong, to be reimbursed the amount of his expenditures, for lasting and valuable improvements made on said property *in pursuance of the contract of 1817, with Miller, as the guardian of the heirs ■of E. Strong, deceased, the matter contained in the first plea of the defendant, D. E. A. Strong, is a legal bar to the relief sought by the complainants in this bill, framed', as it is, upon the supposition that the decree in the suit against Miller, as guardian, is conclusive upon the defendants, and seeking only to enforce that decree; and that the legal effect of this plea is not changed by anything contained in the replication thereto.

Upon the question growing out of the second plea of the defendant, E. E. A. Strong, the court have never entertained a moment’s ■doubt, E. Strong, the ancestor of the defendant, E. E. A. Strong, was in possession, and claimed title to the lot in question. Upon his death it descended to his heirs at law. A part thereof was sold by the court of common pleas, as his real estate, for the benefit of bis heirs; the residue, improved by Miller as guardian-of those heirs, leased by him, as such guardian, for a term of years, and' the lessor still continues in possession under the lease. If Miller, as guardian of the heirs, was legally empowered to improve the property (a question not made in this ease), and to give a lien upon the accruing rents for the payment of the costs of those improvements, it is not competent for the heirs, by the purchase of a paramount title, to defeat the previous lien, legally acquired.

If Miller had no anthority to incumber the estate, his act of pledging the accruing rents would be inoperative and void. But if he was authorized to incumber it, bis act must be considered as ■ the act of the heirs, equally binding upon them as if they, being of full age, had incumbered it; and it can not be permitted for a party creating a lien on an estate to defeat that lien by any act of his own. It has, upon this principle, been held that a mortgagOR can not defeat the lien of the mortgagee by the purchase of a paramount title to the mortgaged premises. It would also be unjust,, while the defendant is in the enjoyment of the rents and profits of' the estate inherited from his ancestor, to compel the complainants to litigate the validity of the title of a stranger in order to enforce a lien created by the defendant.

      Note bt the Editor. — What acts of guardian bind ward, etc., see also,, for late cases, xiv. 228; xv. 655.


source: Caselaw Access Project

author: Judge Hitchcock :

license: Public Domain

text:
    *Oliver Barret v. J. R. Reed.

      Qucere, if a constable, pleading bis official authority for making an arrest, can, sustain such plea, by proving that he acted as a constable, and was reputed-to be such ?
    If constable is duly elected, takes the oath of office, and gives a bond, he may justify acting as constable, although the obligee in the bond be not such, as is required by law.
    This was a writ of error to the judgment of the court of common pleas of Ashtabula county. The plaintiff in error was defendant in the court of common pleas, and the case was this:

      Reed brought an action of false imprisonment against Barret and others. Barret justified that he was a constable, and acted .under process. • The other defendants justified under Barret.
    In support of this plea, Barret, in the first place, offered evidence to prove that he acted as a constable, and was generally understood and reputed to be such. This testimony was objected .to and overruled, and Barret took a bill of exceptions.
    It was then given in evidence, on behalf of Barret, that he had been duly elected a constable, had taken an oath of office, and had executed an official bond, made payable to the trustees of the township, in the proper form and with sufficient security. The sufficiency •of this proof was objected to, because the law required the constable’s bond to'be made payable to the township treasurer, and not ■the trustees. The objection was sustained, and Barret took a bill -of exception.
    A verdict was found in favor of the other defendants but against Barret, against whom the court of common pleas gave judgment for the damages found by the jury, upon which he sued this writ of error, the decision of which was adjourned here by the Supreme ¡Court of Ashtabula county.
    Gtddinss, for plaintiff in error:
    It was sufficient to sustain the constable’s justification that he showed himself a constable de facto, acting in that capacity, and reputed to be such. Gordon’s case, 1 East C. L. 315; 3 Term, 632; 4 Id. 366; 6 Id. 663; 3 Johns. 431; 12 Johns. 296.
    The bond made payable to the trustees, instead of the treasuer, -was nevertheless a good bond. 1 Term, 291; 3 Hen. & Mun. 219.
    *The reporter was furnished with no argument for the defendant in error.
   Opinion of the court, by

Judge Hitchcock :

In this case, a number of errors have been assigned by the plaintiff in error, two outy of which have been particularly considered ’by the court. The first is that in which it is substantially alleged, that Barrett, the plaintiff in error, having proven that he was a -constable defacto, the court below refused to let him prove that he committed the act complained of under and by virtue of a warrant, to him .directed, as constable, unless he would first prove ■that he was a constable de jure. The second is that in which it is alleged that Barret, having proven, in addition, that he was duly elected a constable, that he took the necessary oath of office, and gave bond, conditioned for the faithful performance of the duties of his office, in all things conformable to the provisions of the statute, in such case made and provided, except that the same was made payable to the trustees of the township, instead of being made payable to the treasurer, as the law then required, the court below still refused to permit him to prove that the act complained of was committed under and by virtue of a warrant to him directed, as aforesaid, and in pursuance of which warrant, the defendant in error was arrested and imprisoned.

As it respects the first ot those errors, and the question thereon, arising, there is not a perfect coincidence of opinion amongst the members of this court. The principle contended for by the counsel for the plaintiff in error, is one which is recognized and sustained by the Supreme Court in the State of New York, as appears from the case of Potter v. Luther, 3 Johns. 431. The correctness of the principle, too, seems to be sustained by many of the English decisions. Nor is it perceived that any great evil could result from the establishment of such a rule in this state. In a government like ours, where most offices are elective, it can not be believed that there is any danger that any person will presume to discharge the duties of an office, unless he has, at least, some color of right; and should such thing bo attempted, it would be an offense against the law, for the punishment of which ample provision is made.

*On the other hand, it may be urged with propriety, that when an individual is sued in trespass, and would justify on the ground that the act complained of was committed by him while in the discharge of the duties of a public officer, it is in the power of such individual to show conclusively, whether or not he is entitled legally to officiate in such office; and to receive evidence of reputation, or of his being an officer defacto, would seem to be a violation of the rule, which requires that the best evidence which the nature of the case admits of shall be produced. Third persons are not supposed to know whether an officer has taken every necessary step to qualify himself; and, therefore, it is sufficient for them to show that he is such de facto.

As to the second error, above referred to, it is the unanimous opinion of the court, that the exception is well taken, and that the-court of common picas, in making that decision, mistook the law on the subject.

It has been a law of the state from its first organization, and it is a law founded in sound policy, that sheriffs and constables should give bonds with security, conditioned for the faithful discharge of the duties of their respective offices. These officers have important duties to perform. They receive, in the ordinary course of business, large sums of money; and as they are the agents constituted by the law, not only of the law, but in some respects of individuals for whom they act, it is perfectly proper that every convenient method should be adopted to secure the interests of those who are compelled to intrust business in their hands. It would seem to me immaterial, however, to whom the bond is made payable. It is proper this should be fixed bylaw; and convenience dictates that the obligee should be a public officer, or body corporate, where there is perpetual succession. The obligee has no-particular interest in the bond, and if suit is commenced upon it, can not, under any statute, be made liable for costs, in case of failure-in prosecution. The obligee can be viewed in no other light than as a trustee for those who are, or who may become interested.

The statute in force at the time the act complained of in the present case was submitted, required that the constable should give bond in any sum not exceeding two thousand, and not less than four hundred dollars, *wilh one or more securities, resident, etc., conditioned, etc., and payable to the township treasurer. The bill of exceptions states that Barret was duly elected constable ; that he was duly sworn, and that he executed a bond, in-all things conformable to the statute, except that it was made payable to the trustees of the township. Having done this, he proceeded to officiate as constable, and was recognized as such. The question which naturally presents itself here for consideration is, whether the bond thus executed was void. If it was not void, but obligatory on the obligors, the object of the law being to secure the interest of those who should be compelled to intrust business with the officer, that object is attained, and the law has been substantially, although not literally, complied with. A substantial compliance-must excuse the officer. It is all that can, with propriety, be required of him.

Why is such bond void ? Can any other reason be assigned than that it is not according to the letter of the statute ? There is nothing upon the face of it which is illegal. It is not given to secure the performance of an immoral, vicious, or illegal act. The sole object is to secure, on the part of one of the obligors, the performance of duties, which, if no bond had been required, he would have been bound to perform. Suppose there had been no bond required by law, would this bond have been void ? I apprehend not, and it appears to me that the single circumstance that it is required by the statute, that a bond should be made payable-to a different obligee, is not sufficient to destroy its obligatory effects. Upon the whole, I come to the conclusion that the bond,, if not good under the statute, is good at common law, and that any person who should be injured in consequence of the neglect, of the officer to discharge any duty appertaining to his official station, might obtain redress by suit upon it. 1 Wash. 91; 2 Call, 290; 2 H. & M. 459. Such appears to be the opinion of the courts of Virginia, in several cases by them decided. Or it may, perhaps, with more propriety be said, that the opinion of the court in those cases goes rather to establish the doctrine, that a bond, similar to the one under consideration, is substantially in compliance with the statute.

*It is' stated further in the bill of exceptions, that the bond had not been accepted by the trustees. 18 State Laws, 108. The words of the statute then in force, and which have been already referred to, are: “ And every constable within ten days after his election or appointment, and before he enters upon the duties of his office, shall appear before the clerk of the township, and give bond, with one or more sureties, resident in the township, such as the trustees thereof shall approve,” etc. The trustees-as the guardians of the township, are to approve of the sureties. Whether they did so or not, we can ascertain only from the record, or rather from the bill of exceptions, which is a part of the record. It is there stated that Barret “ proved that he had given bond agreeably to the statute, in all respects, except,” etc. From this, it is reasonable to presume that the sureties were approved of, this being one requisition of the statute. It may, perhaps, be thought that this presumption is destroyed by the allegation, that the bond “ had not been accepted by the trustees.” There is certainly a difference between the approval of the “ sureties and the acceptance of the bond” The one will most -naturally precede, and other follow the sealing of the instrument. Any formal acceptance of the bond is believed to be unnecessary. It is to be left with the township clerk, and by him filed away in his office. When it is said that a formal acceptance is unnecessary, I would not be understood that the trustees may not, if they deem the bond insufficient, reject it, and require another. But there are many things which would amount to an acceptance. If the bond is received without objection, it is equivalent to an acceptance. After having received it, and having it filed away by the clerk, in consequence of which the constable proceeds to officiate in his office, neither the trustees nor any other person can be permitted to say that it has not been accepted. To permit this would have a tendency to involve the officer in difficulty, and almost certain ruin. For it will be perceived that, by the law, as recognized by the court of common pleas, that a sheriff or constable who has not specifically and literally complied with every requisition of the law, before proceeding to officiate, although he may have done it sw&slantially, will be liable in ^trespass to every person he shall have arrested, and in trespass or trover for every article of property he shall have seized upon attachment or in execution. Whenever the constable has executed a bond, intended to be in pursuance of the statute, and is not notified that the same is not accepted, he may well suppose that he has done all, in this respect, which can be required of him.

Further, suppose the trustees do not accept the bond, or, in other words, suppose they disapprove of it, what is their duty? If the officer but neglects or refuses to give the bond, it is equivalent to a neglect or refusal to serve in the office. The office is, in fact, vacant. 18 State Laws, 28. By section 15 of the “ act for the incorporation of townships,” it is enacted “ that when by reason of non-acceptance, death, or removal of any person chosen to any office in any township, chosen at the annual meeting, or in case where there is a vacancy, the trustees shall appoint a person to fill such vacancy,” etc. By section 13 of the same act it is provided, “that any person elected to any office under this act, and not exempted by law, who shall neglect or refuse to serve in such office, shall forfeit and pay to, and for the use of the township, the sum of two dollars.” It is .further made the duty of the township clerk to sue for and recover the same. In the case of the constable, if'no bond is executed, the •office is vacant, and the trustees must appoint another person to fill the vacancy. If it be executed, but is not accepted, the same consequence results. It must, of course, follow that if a bond be executed, and no appointment is made, as if to fill a vacancy, the presumption is irresistible that the bond thus made or executed is accepted, especially when the circumstance is added that no prosecution is instituted against the officer elect, for neglecting or refusing to serve in his office.

In the present case it does not appear that any appointment was made to fill the vacancy occasioned by the neglect or refusal of Barret to serve in the office to which he had been elected. It does not appear that he was prosecuted for such neglect or refusal. It does not appear that any exception was taken by those whose duty it was to except, to the bond which he had made and delivered, or .any notice *given to him of such exception. Under these circumstances he might well suppose, and undoubtedly did suppose, that he had taken all the necessary preliminary steps to qualify him to officiate in his office. He proceeded in good faith thus to officiate; and to make him liable in a case like the present, would be unjust and iniquitous in the extreme. It is that kind of injustice and iniquity which the law can not countenance.

Considering, then, that Barret had substantially complied with the law in the giving of bonds, and even if it were not so, that he gave such bonds as were not objected to by the trustees, but were by them considered as sufficient, as is apparent from the circumstance that they did not consider the office vacant, and did not notify him that anything further was required of him, the court of common pleas erred in rejecting the evidence offered by him to prove that the act complained of was done under and by virtue of a warrant directed to him as a constable. Eor this error the judgment of that court, so far as it respects Barret, must be reversed, while it is affirmed as to the other two defendants in the original suit.

The opinion of the court upon this question renders it unnecessary to examine the other errors assigned in the case.

      Note by the Editor. — Constable’s official character is provable by general reputation. The first point made in the above case settled affirmatively, iii. 94. So of a tax eollecclor, v. 215. As to bond of constable, sec also v. 136,


author: Judge Burnet:

text:
    D. McArthur v. Phœbus, Thomas, and others.
    An invalid entry may obtain sufficient notoriety, and subsequently become a. good location call.
    Complainant having obtained a patent, as assignee, is not bound to prove hiapurchase from the assignor.
    Doctrine of notice has no application between claimants of conflicting titles
    The plea of innocent purchaser can not protect the purchaser of a title origi nally defective against a better adverse title.
    An entry can not be made valid by subsequent notoriety.
    Entry originally void because of the disproportion between its length and breadth, may be rendered valid by withdrawal of part, so as to give it the relative proportions.
    Matters not put in issue by the pleadings are not to be investigated. But. allegations on one side, not admitted or denied on the other, are considered in issue, and may be proven.
    Proof as to notoriety of entry.
    Entry defective for want of notoriety.
    This was a bill in chancery between conflicting claimants of land upon distinct entries, surveys, and grants. It was adjourned-from Madison county, and was elaborately argued by Scott and Doddridge for the complainant, and Douglass, apd Brush and Fitzgerald, for the defendants. As the case is fully stated, and the arguments of counsel noticed and recapitulated, in the opinion of. the court, the report is confined to that opinion.
   ^Opinion of the court, by

Judge Burnet:

The complainant claims under an entry in .the name of Bobert Means, made May 23,1808, in the following words: Bobert Means, assiguee, enters two thousand six hundred and sixty-six and two-thirds acres of land, on military warrant No. 5,387, on the waters of Deer creek, beginning at three elms, southeasterly corner to Baron Steuben’s survey, No. 2,698, running north thirty, east two hundred and ninety-six poles, etc. On the margin of this entry is the following memorandum: fifteen hundred acres withdrawn from the northeast end (entered 147).

This entry was surveyed June 14, 1809, recorded August 12,. 1811. Patent obtained October 7, 1812, in the name of complainant, assignee, etc.

Steuben’s survey, No. 2,698, was made June 30, 1796, and in the following words: Surveyed for Major General Steuben eleven hundred and fifty acres of land, on part of military warrant No. 104, on the northwest of the Ohio, and on Deer creek, a branch of the Scioto, beginning at an ash, a white oak, and a maple, northeast corner to James Innis’ survey, No. 1,727, running with Innis’ line, south twenty, west four hundred poles, crossing Deer creek, at one hundred and eight poles to a stake, southeast corner to Innis’, thence south twenty-one, east three hundred and seventy-four poles to three small , thence north sixty-nine, east three hundred and twenty poles, crossing the creek at sixteen poles, to three elms, thence north eighteen, west six hundred and seventy poles to a stake, thence south sixty-nine, west eighty-four poles to the beginning.

The survey of James Innis was made on the same day (June 30, 1796), and calls for Deer creek.

The defendants, Doolittle and Thomas, claim under an entry in the name of Thomas Chilton, made on April 27, 1807, in the words following: Thomas Chilton, heir at law to John Chilton, deceased, enters five hundred and forty-one acres of land, on part of military warrant No. 1,249, on the waters of Deer creek, a branch of the Scioto river, on a branch emptying in on the upper side, by some called Opossum, and by others called Plum run, beginning, by survey made, at three elms and a *large white oak, running south nineteen, west twenty poles, south sixty, west forty poles, to three pin oaks, marked as a corner, north thirty, west one hundred and sixty poles, north sixty, east forty-four poles, north two hundred and ten, east two hundred and sixty, south thirty, east sixty-two, south fifty-seven, east one hundred and twenty, south forty-five, west one hundred and forty-five, thence, and from the beginning, south seventy, west for quantity. This entry was surveyed August 30, 1810, and a patent was granted to Doolittle, July 27, 1812.

The defendants, Dunlap, McHenry, Phcebus, and Senate, claim, ■under an entry in the name of John Stokes, made November 8, 1807, in the following words: John Stokes enters four hundred acres of land on part of warrant No. 1,390, on Opossum or Plum ¿run, a branch of Deer creek, beginning on the run, where the lower line of Thomas Chilton’s entry crosses the same, running down the run, with the meanders thereof, four hundred and eighty-poles, when reduced to a straight line, thence, and from the beginning, at right angles to the general course of the run, on each side, to include an equal quantity on each side, by parallel lines, to the general course thereof. This entry was surveyed December 10, 1811, recorded January 1, 1812, and patented April 8, 1812.

As the defendants have the first entries, and are in possession' under the oldest patents, they may protect' themselves by showing the sufficiency and legality of their own locations, or the insufficiency and illegality of the location, under which the complainant holds. If they have succeeded in establishing either of these propositions, or if the complainant has failed in sustaining the validity of Means’ entry, he is not entitled to a decree. But before I proceed to examine the evidence which has a direct bearing on those points, it will be proper to notice some collateral questions, which have been discussed by counsel in the course of the argument.

1. It is alleged, on the part of the defendants, that there is no proof of the entries and surveys mentioned in the pleadings, or that Steuben’s survey is numbered 2,698.

This objection does not appear to be true in point of fact, and probably would not have been taken, if the connection of-entries and surveys, from the records in Col. Anderson’s office, had been carefully inspected. In the voluminous file *of papers appertaining to the cause, this document must have been overlooked, because it contains certified copies of all the entries and surveys referred to in the pleadings, and was received as evidence without objection. It does not appear on what ground this exception was taken. If it be predicated on a supposed defect, or informality in the mode of authentication, the objection comes too late. The document was received as evidence — the defendant took no exception to it at the time — the complainant has relied on it, and it. would be a mischievous precedent to permit an objection to be-, taken at this stage of the proceedings.

2. It is urged that Steuben’s entry and survey depend on Innis’' entry and survey, the situation of which is not shown.

This objection would have some weight, if the complainant could be required to show that Steuben’s entry was precise and. certain, at the time it was made. This, however, is not the case. It is immaterial to him, whether that location can be sustained or not, because a survey of a void entry may be a good special call in a subsequent entry, if the survey called for has obtained general notoriety before the entry calling for it is made. This being the settled principle, the complainant is not required to show the situation of Innis’ entry nor survey. He may safely admit that Innis has neither entry nor survey, and that Steuben’s entry had neither certainty nor precision, at the time it was made. The reason why Steuben’s survey is a good call, if it shall be found to be such, is, that it had become an object of notoriety, and on that account, might be readily found by a subsequent locator; and that when found, it would, by reasonable attention, lead an inquirer to the beginning of the entey calling for it. A burning spring, if generally known, would be a good call, not because it had become a valid landmark to a former location, but because it would enable a subsequent locator to find the entry calling for it. On the same principle, if Steuben’s survey, at the date of Means’ entry, had become an object of general notoriety, it was a good call on that account, whether the entry of Steuben was a valid appropriation of the land or not. Steuben may have lost his land for want of precision and certainty *in his call, and yet Means, by calling for Steuben’s survey, may secure his land, on the ground that his call was sufficiently certain, precise, and notorious to identify the land intended to be appropriated, and to enable subsequent locators easily to find it.

3. The next objection is, that the complainant has not shown his right to the entry of E. Means.

To this it may be replied : 1. That the assignment of the entry to the complainant is averred in the bill, and impliedly admitted in some of the answers, if not in all. 2. That a patent having regularly issued to the complainant, as assignee of E. Means, is prima fade evidence that the assignment was legally made, and must be considered as conclusive on that point, until the contrary is proved, at least as to third persons, who have no pretense of claim under the assignor, nor any interest in vindicating his rights. The complainant must have produced an assignment of the plat and certificate, or the patent could not have issued in his name. If that assignment was improperly obtained, the original proprietor, or those claiming under him, are at liberty to impeach it. But if this objection be entitled to any weight, it applies with equal force to the defendants. Doolittle and Thomas claim by assignment from Thomas Chilton, who is said to be heir at law to John Chilton, the original owner of the warrant. But no evidence, other than the recital of the patent, is produced to show, either the heirship of Thomas Chilton, or the transfer from him to the defendants. Strictly speaking, this is a question between the complainant and Means, in which the defendants have no concern.

4. It is alleged that complainant had personal notice of the defendants’ entries before he made the entry in the name of Means. The evidence on this subject is that he had notice of those entries in 1809, about the time he surveyed for Means, which was more than a year after the entry. His notice, however, may safely be admitted, to the extent claimed.

It was decided by this court, in Kerr v. Mack, 1 Ohio, 161, that the common doctrine of notice does not apply to cases under the land laws of Virginia, when the parties *claim under distinct entries. Every claimant must rest on the validity of his own location. If that be illegal and void, it does not appropriate the land; and any holder of a warrant may locate the same tract, notwithstanding he has full knowledge of the former illegal entry. Notice can not make that valid, which is void in itself; nor can a legal location be rendered void by a notice, that a prior illegal entry had been made on the same land., This doctrine will be found also in Craig v. Pelham, Printed Decisions, 287; Wilson v. Mason, 1 Cranch, 100.

5. It is urged that these defendants are innocent purchasers, without notice.

The same plea might be advanced in favor of every person who may be so unfortunate as to purchase a bad title ; but ignorance, or want of care, can not destroy the rights of others.

If the contending parties in this suit had purchased from the same individual, and the defendants, under the junior contract, had obtained the legal title for a valuable consideration, and without notice of the elder contract, they would have been protected, but such is not their situation. They have purchased the title of Chilton and Stokes — the complainant has purchased the title of Means; and the only inquiry is, which is the better title. If they have been so unfortunate as tp purchase from a person without title, a knowledge of that fact can not prevent others from pur* chasing from the real owner. This objection is fairly met by the maxim, caveat emptor. In Taylor v. Brown, 5 Cranch, 235, it' was decided that a subsequent locator, without notice of a prior location, can not protect himself by obtaining the elder patent.

6. The next objection is, that in May, 1808, Chilton’s entry had become as notorious as Means’ — that the equity of the parties was, therefore, equal, and that the law must prevail.

It was decided by this court, in Kerr v. Mack, in conformity with the current of decisions in Kentucky, and in the Supreme Court of the United States, that an entry can not be aided by “ after-acquired notoriety.” In the face of that decision, the court did not expect to have the question agitated. It is evident that without the aid of *that description of notoriety, the doctrine of equal equities can have no place in this discussion. The entry of Chilton must be considered as it was on the day it was made; consequently, if it has any equity, it must be older and superior to that of the complainant. The equities can not be equal.

7. It is said that a call to adjoin an entry, requires that all the locative calls of that entry be shown, for which 3 Bibb, 536, is cited. The principle, however, has no application to the complainant, who calls for Steuben’s survey, and not for his entry, but it applies in all its force to the defendants, who claim under •Stokes, whose entry calls for, and depends wholly on the entry of Chilton. It can not be useful, therefore,, to pursue this part of the subject further, unless it shall be found necessary to do so hereafter, in considering and deciding on the validity of Stokes’ entry.

8. Another objection is that the original entry of Means was ■void, because its length compared with its breadth exceeded the proportion allowed by statute.

If this objection has not been obviated by the amendment of ■the entry, made by the withdrawal of the fifteen hundred acres, it would seem to be fatal to the complainant’s claim. The statutes under which these warrants were located (Swan’s Collection of Land Laws, 122), i*equires the breadth of each survey to be at least one-third of its length in every part, unless when such breadth shall be restrained on both sides by mountains, watercourses, or former locations. The calls of the entry show that this proportion has not been observed and it is not pretended that the obstacles provided for exist. The question then is, has the withdrawal of the fifteen hundred acres removed this difficulty. This question admits of but one answer. If the withdrawal has not destroyed the validity of the entry, as the defendants’ counsel contend, it has obviated the difficulty, because the survey that has been made on the residue of the entry, and on which the patent issued, is clearly conformable to the requirements of the statute in this respect.

The question then presents itself, has the withdrawal vitiated the original entry? There is no doubt but that ^locators have a right to amend their entries, or to withdraw them in whole or in part. The rule on this subject seems to be, that the withdrawal of part of an entry will not destroy the validity of that entry as to the residue, provided it be so made as to leave the residue possessed of the certainty and precision required to constitute a good original entry. Sprigg v. Ogden, Marsh. 612. In Preeble v. Vanhousen, 2 Bibb, 121, it is laid down that after a withdrawal the remaining part of the entry should be considered as having the calls of the original entry, and if, with those calls, it would be good as an original location it ought to be sustained. Tested by this rule the withdrawal does not injure the entry, because the calls of the original entry being saved, the residue is certain both as to quantity and situation, and can be ascertained with the same ease and precision as the entire entry could have been ascertained before the withdrawal; hence it follows that if the first entry was good as to its calls, the residue, as an entry, is also good. There is no weight in the argument drawn from the fact that the withdrawal throws the complainant entirely from Steuben’s southeast corner, and consequently from his own beginning corner, because having a right to refer to the corner as one of the locative calls of his entry, it affords the means of ascertaining and fixing his beginning with absolute certainty. “ That is certain which can be rendered certain.” The amount of the argument is, that a withdrawal'can not be made of that part of an entry which includes its beginning, because it must always throw the location at a distance from its original beginning; but we think there is nothing in the objection. The beginning of the first entry may,, by a withdrawal, be converted into a call, pointing out the beginning of the residue of that entry.

On the part of the complainant, it is insisted that the certainty and notoriety of Means’ entry have not been put in issue, and that proof should not be required to establish them, nor admitted to controvert them. It is true that the bill avers the entry of Means-to be good, certain, legal, and valid when made, and the answers neither admit nor expressly deny the averment, though some of the defendants state their ignorance of the facts relating to Means’ entry.

*The complainant attempts to sustain this ground on the case of James v. McKennon, 6 Johns. 543. The rule settled in that case is one which has been generally observed in this court, viz : That evidence oug.ht not to be received of a matter not put in issue. But the important question arising here is, when shall a matter be said to be in issue? The complainant has taken it for granted that the sufficiency of his entry is not in issue, but the authority on which he relies does not sustain him. In that case the bill alleged that defendants had possessed themselves of property to which complainants were entitled, and prayed that it might be decreed to them. One of the defendants in his answer sot up a contract, under which he claimed a right to the property. The replication was general. The defendant proved the contract; the complainant offered evidence to impeach it on the ground of fraud. It was decided that he could not do so, because he had not alleged fraud in his bill or replication, and therefore the fact of fraud was not in issue. Here, it will be remarked, that the contract was not-noticed either in bill or replication.

It was averred in the answer, and that averment was considered as putting it in issue. The silence of the complainant was not taken as an admission, but proof was required. The evidence of fraud was rejected because it was nowhere alleged in the pleadings. But from the course of reasoning it is evident, if an averment of fraud as to the contract had been found in any part of the pleadings, the evidence would not have been rejected. It has been the-constant practice of this coux*t to consider any fact that is distinctly averred in the pleadings, if it be relevant to the matter in controversy, as being in issue, and susceptible of proof. If any material averment in the bill be not answered by the defendant, the complainant has his election to except and require a further-answer, or to proceed and take on himself the risk of sustaining the matter by testimony, and this is sometimes the wiser course, as requiring less evidence than is necessary after the defendant is-driven to a denial. It has been decided in the court of appeals of Kentucky, that if a bill charges the matter to he within the knowl edge of the defendant, and the answer is silent as to the matter so charged, it *will be taken to be admitted, but if not so charged, an omission to answer does not admit it. Moore v. Docket, 2 Bibb, 69; Kennedy v. Meredith, 3 Bibb, 465; Cowan v. Price, 1 Bibb, 173. It was decided in Oldham v. Bowen, 3 Bibb, 539, that a fact charged in a bill and not admitted by the answer, either expressly or by implication, must be proved at the hearing. And in Young v. Grundy, 6 Cranch, 51, it was decided that allegations in a bill, neither admitted nor denied by the answer, must be proved at the hearing. Our practice is in conformity with this rule, and requires the averment, in relation to the sufficiency of Means’ entry, to be sustained by proof, though the answers are silent on that point, nor does this requirement interfere with the rule relied on by the complainant, that the allegata et probata must agree.

Having disposed of these questions, we are next to examine and consider the locations on which the parties severally rely.

The defendants being in possession under the oldest grant, the •complainant can not disturb them without showing in himself the commencement of a good title anterior to their surveys. To effect this three points are to be made out:

1. That Means’ survey was precise and certain at its date.

2. That the entries' of Chilton and Stokes were uncertain and insufficient.

3. That Means’ entry was made before the entries of Chilton .and Stokes were surveyed.

The calls of Means’ entry are for Deer creek and the southeasterly corner of Baron Steuben’s survey, number two thousand six hundred and ninety-eight. It is admitted that Deer creek was generally known in May, 1808, and was therefore a good general call, and it seems to be conceded that Steuben’s entry did not possess the certainty and precision necessary to constitute a valid loca-' tion at the time it was made. It is sufficient, however, for the complainant’s purpose, if he has succeeded in showing that the survey of Steuben had acquired general notoriety on May 23, 1808, when the entry of Means was made. To ascertain this point, it is necessary to examine the testimony. *1. It appears that the survey of Steuben had been made about twelve years before the entry of Means. That Churchill Jones had called for it in his .survey, and that Jones’ survey was improved and settled by at least three persons before and at the time when the entry of Means was made. These circumstances afford a presumption in favor of' the notoriety of that survey. In addition to this, its notoriety is proved by a number of witnesses, six of them being experienced surveyors, prior to the date of Means’ entry.

Isaac Minor settled in the neighborhood in February, 1802; shortly after, he was informed of Steuben’s survey (2,698). It appeared notorious. Many persons were residing in the neighborhood. The adjoining survey had been cut up into small farms, and settled before the date of Means’ entry. He believes that an inquirer on Deer creek would have been directed to Steuben’s survey. Bell’s survey, and Baylor’s survey, immediately below, on the creek, were also settled and improved before the entry of Means was made.

Henry Ward was on Steuben’s survey in 1802, in 1804, and in January, 1807. He states the names of about fifteen persons who were settled in the immediate vicinity of Steuben’s survey, in 1807. That it was known to the settlers generally, and was notorious as early as the spring of 1807. He had been, at different times, with the surveying parties of Evans, Rector, Langham, Massie, and O’Bannon, to all of whom Steuben’s survey was known.

John Harrison first went on to Deercreek in 1806, and settled-in the neighborhood of Steuben’s survey. He gives the names of about twenty persons settled in the vicinity of that survey, before the date of Means’ entry. He thinks it would have been found by an inquirer as early as May, 1808.

Patrick McLain knew Steuben’s survey as early as M¿iy, 1808.

John Fallon knew the survey in 1807. Thinks a locator, by proper diligence, would have found it at that time. That it was notorious, and generally known to surveyors, locators, and others, as early as 1807, at which time, many persons were residing near it.

*Jesse Spencer was acquainted with Steuben’s survey in 1800. He thinks that a locator, in 1807, with proper diligence, could have found it. He believes that survey was notorious, and' generally known to surveyors, locators, and others as early as 1807.

John Evans was acquainted with Steuben’s survey in 1807. The southeast corner was then standing. He believes that any locator, by proper diligence, could have found it in 1807. In January,. 1808, he thinks it was generally known to the inhabitants of the-neighborhood. In January, 1807, he could have found it without difficulty.

Jeremiah Minor removed to the neighborhood of Steuben’s .survey in 1808. Heard it then spoken of by the neighbors as generally known. Thinks anybody could have found it; and that it was as well known in the neighborhood as the creek itself.

John Eckford knew the survey of Steuben in 1807; heard Uangham and other persons speak of it as early as that time.

E. Langham has known Steuben’s survey since 1801. It was then so notorious that he found it very easily from the information of others. The beginning corner was notorious to himself, and the locators and surveyors, as early as 1807.

N. Massie knew the chain of old surveys on Deer creek, including Steuben’s, long before 1807. He thinks any locator, with that connection and reasonable diligence, could have found Steuben’s survey before 1807.

James Gallaway, Jr., thinks there would have been no difficulty in finding Steuben’s survey in 1807. He had occasion to search for it in June, 1809, when he found it without difficulty.

F. Graham, W. Wilson, and J. Freeman identify the survey, .and the elm on the southeast corner called for by Means.

The defendants have introduced a number of witnesses, who testify that Steuben’s survey was not known to them at periods subsequent to the location of Means. We admit the principle, that negative testimony is entitled to its full weight on questions ■of notoriety, for reasons which it is not necessary now to detail, provided the opposing witnesses have equal advantages of information ; but we are decidedly *of the opinion that the negative testimony in this case can not preponderate. The wit.nesses by whom it was proven have not had the same opportunities of acquiring information on the subject as those who testified in the affirmative. Several of them have a direct interest in the .suit. Some of them resided in a more remote settlement. A portion of them appear to be industrious, domestic men, who have paid little, if any, attention to entries or surveys. Some have recently moved to the settlement; others never heard of Steuben’s survey till the commencement of the present suit; though it is admitted by all that if that survey was not notorious before, it became so shortly after the location of Means. The affirmative witnesses, generally, are the most intelligent, and those of them ■who live in the neighborhood reside nearer to the survey, and more immediately on the creek, and would be most likely to be called on for information by subsequent locators.

It is not necessary to consume time, by commenting particularly on the complainant’s testimony, which is very full and precise. We are, on the whole, perfectly satisfied, that the notoriety of Stuoben’s survey, at the date of Means’ entry, is sufficiently established.

Chilton’s entry calls to begin at throe elms, and a large white oak, on the waters of Deer creek, on a branch emptying in on the upper side, by some called Opossum run, and by others, Plum run. Stokes’ entry calls for Opossum run, and the lower line of Chilton’s entry.

Testimony was introduced for the purpose of proving that Opossum run was notorious, when Chilton’s survey was made, and that Chilton’s location had acquired general notoriety before Stokes’ entry was made, but it is very apparent that the testimony does not establish either point. Langham, who made these entries, says that they were made before there was any settlement on the run, and that the run became notorious after the settlements were made; of course it was notorious when the entries were made. But if the defendants had succeeded in proving the notoriety of that run, it would not sustain the entry. The creek, it appears, was two miles in length, and the valley through which it runs about two miles in width. A subsequent locator *was, therefore, subjected to the necessity of searching the whole extent of that valley, to find the marked trees called for. This,we think, was unreasonable, and imposed a duty that the law does not authorize. The entry of Chilton is destitute of the precision and certainty which is required to constitute a valid location. The witnesses who were examined to sustain both of these entries, refer to periods subsequent to their date, and in addition to this, they state, that the entry claimed by Chilton, was known by the name of Langham’s entry, or that the two together were known as Langham’s and Doolittle’s eight hundred acre tract. They never heard them spoken of as the entries of Chilton and Stokes, until after the date of Means’ entry. When Stokes entered, Chilton’s entry, if it had any notoriety, which is, to say the least, very doubtful, was known by the name of Langham’s entry, which circumstance was calculated to confuse and deceive rather than to .aid subsequent locators.

A careful examination of the whole testimony, relating to those entries, leads to the following results: That Opossum run, the only important call in the first entry, did not acquire notoriety till after that entry was made, and that if it had been notorious it was not a good locative call. That at the time Stokes entered, Chilton’s entry was not generally known. That as far as it was known it was called Langham’s entry, and that the lower line of that entry, called for by Stokes, was an. open line, and could not be found without ascertaining the precise situation of every part of the entry. Much of the defendants’ argument, in relation to Stokes’ entry, is predicated on the assumed fact, that Chilton’s entry had been surveyed before the entry of Stokes was made; this, however, as has been shown, was not the case. But. if it should be admitted that Langham had made a survey, as contended, it was unofficial, and not recorded, nor was it called for by Stokes. He calls for the lower line of Chilton’s entry, which line was run in 1810. Till that period, there was no such line in existence, and yet it is relied on as an object of notoriety to sustain an- entry in 1807, about three years before it was run. The age of this line, and consequently of the survey, is also ascertained by the blocks *taken, and returned by the surveyor, from which it appears to have been marked in 1810 or 1811. Were it necessary to pursue this part of the case any farther, reference might be had. to the discrepancy between the objects described in the entry of Chilton, and those actually found on the ground, and to the situation of Stokes’ entry, as it has been surveyed, which appears, from the diagram before us, not to touch any line or point in the entry or survey of Chilton.

The next and last point to be disposed of, is the date of the defendants’ surveys.

It is contended that their entries were actually surveyed before-the date of Means’ entry; and that they are, therefore, protected by the act of Congress of March, 1807.

This objection is positively contradicted by the record evidence before us. The survey of Chilton’s entry was made by N. Massie,. on August 30, 1810, and that of Stokes was made on December 10, 1811, as appears from the records in Col. Anderson’s office, certified copies of which are on the file of papers in this case. The ■entry of Means was made in May, 1808, and surveyed in June, 1809. But the defendants seem to rely on a supposed survey, made by Langham, about the date of the entry. To this it may be replied, in the first place, that there is no conclusive evidence of such a survey. The witnesses say something of Langham’s surveying, but none of them state that he made a regular survey of the whole entry; and the notes taken by him at the time are strongly presumptive that he did not. They show that the lines and corners, generally, were not marked. But if he had made a complete survey at that time, it would not alter the case.

1. Because he was not a deputy, and had no authority to survey.

2. Because there is no such survey recorded.

3. Because the defendants, or those under whom they claim, have relied on the survey of Massie, and made it their own, by recording it, and making it the basis of their legal title.

If that be not their survey, the patent has improperly issued.. Admitting that Langham had made private ^surveys of these entries in 1807, and Massie, relying on his correctness, and to save himself trouble, adopted and certified them as his own in 1810 and 1811, they certainly received all their validity by that adoption, and could operate as surveys only from that time.

The position taken by the defendants goes to destroy the distinction between the acts oí authorized and unauthorized surveyors, which is inadmissible. An official survey is an indispensable link in the chain of title. Such a survey can not be made by a person who has not been legally appointed and qualified, for reasons that are too obvious to be questioned. Every person concerned in the transaction, whether as surveyor, marker, or chain carrier, must be appointed and sworn as the law directs.

From this view of the subject, the complainant is entitled to a decree for such of the land claimed by the defendants as is covered by his amended entry, and the survey in pursuance of it.


author: By the Court :

text:
    Daniel Greene v. J. Dodge and Eli Coggswell.
    Declaration upon an indorsement of a promissory note, guarantying payment by the maker of the note, must aver the consideration upon which such, indorsement is made.
    The guarantors of payment of a promissory note can not be charged unless payment be demanded of the maker when due, and notice of non-payment be given to the guarantors.
    This case was adjourned for decision here, by the Supreme Court of Washington county, and was heard and decided upon an agreed state of facts.
    Sidney Dodge was indebted to the plaintiff upon his own private account, for which he gave to the plaintiff a note, payable at a day future. Upon this note the defendants indorsed their names in blank. This indorsement was made without any consideration from the indorsers to the payee; and at a subsequent period the following was written over it: “We, the undersigned, bind ourselves as security for Sidney Dodge, for the payment of the within note, according to the tenor and effect thereof, to Daniel Greene, the obligee in said note.” The plaintiff had prosecuted a suit against Sidney Dodge to judgment and execution, who had no property from which the judgment could be satisfied.
    *The declaration was special upon the guaranty, charging that it was made for value received, but setting out no other consideration; and it alleged a breach in the non-payment of the note, but without averring any demand upon the payers upon the day the note fell due, or notice of non-payment to the indorsers.
    Several points were made and argued by counsel, but as the court decided the cause upon two only of those points, it is deemed unnecessary to notice the others, in reporting the case.
    Arius Nte, for defendant:
    The plaintiff is not entitled to judgment: 1. Because the declaration states no consideration for the promise of the defendants; 2. That it contains no poper averments of a demand upon Sidney Dodge, and notice to the defendants of non-payment by him; or of execuse for the omisssion of such demand and notice. These -objections apply equally to both counts.
    1. “ Every part of the entire considersation for any promise contained in the agreement, must be stated in the declaration.” 1 Selw. N. P. 90; Clark v. Gray, 6 East, 519.
    “ The statute of frauds has made no alteration in the common law requisites, by superadding a further constituent of the validity of a promise under certain circumstances; and as appears from a multitude of authorities, those collateral promises were nuda pacta, before the statute, unless they were supported by a consideration, which consideration, it was also necessary to set forth in the pleadings.” Rob. 208, and see Id. 204; Forth v. Stanton, 1 Saund. 210, and note 2; Barber v. Fox, 2 Saund, 136. The note to Forth v. Stanton is very explicit to this point. It is there said, “ so with respect to promises to answer for the debt, etc., of another, or collateral promises as they are generally called, there must be a sufficient consideration, such as forbearance, etc., alleged in the declaration, otherwise they also are not binding, though reduced into writing; as where A. has sold and delivered goods toB. and C. afterward promises A in writing to pay for them, this promise is a mere nudum, pactum, and void. 1 Saund. 211, a.
    *It is not necessary, in a declaration upon a collateral promise, to show that the promise was in writing; but it is necessary to set forth therein a sufficient consideration for the promise; without which the declaration is unquestionably bad.
    The counts in this case state notes made by Sidney Dodge, whereby he (in the singular) promised to pay the plaintiff (without negotiable words), certain sums, for value received; and that the defendants indorsed their names upon the back of the notes as •securities for the payment by Sidney Dodge, as is the necessary inference; not stating that the defendants made their note, or notes, or that they promised to pay to the plaintiff the debt of said Sidney, in consideration of any benefit received from the plaintiff by them; or granted to him at their request; or the forbearance, or release, of any right by him at their request.

    Here no consideration for the undertaking of the defendants, as stated, is expressed or implied, vide Robertson, 117, quoted above. The defendants are not stated to be, directly, parties to the notes. The words “for value received,” in the promise of Sidney Dodge, purport, prima facie, a consideration already executed and passed to Mm; but the indorsement, as stated, is no acknowledgment of value received by the defendants: indeed, it directly excludes that inference. By these words, in a bill, it has been said (Grant ». Dancesta, 3 M. & S. 351) : “ That the drawer informs the draweetliat he draws on him in favor of the payee because he has received-value of such payee:” Debt would not lie on the undertaking of the defendants here stated, it being a collateral engagement fof the debt of another; Chitty on Bills, 545, ed. 1821; 2 Ld. Raym. 1040; Holsden v. Horridge, 2 Saund. 62, 65, there cited; though it would lie on the note against the maker, S. Dodge. That would be evidence against him on the money counts, in an action by the payee, the plaintiff here; but would it be so on the like counts-against them ? It is believed not. Why ? Because they do not undertake originally, and directly, as does the maker, but collaterally; they do not acknowledge the receipt of value ; the duty is not theirs. What consideration, then, is hero shown for their promise ? The promise ^raises no consideration ; and that B. owes a debt to A. is no consideration for the promise of 0. to pay it. Such a promise, though in writing, it need hardly be repeated is void. Be it asked, “ may not an action bo sustained on a collateral undertaking, though debt or an indebitatus can not ? It. may; but, it is especially to be noted, that it is only by force of one or the other of two circumstances : The undertaking must, in form and effect, come within the exception recognized by the law merchant purporting thereby a consideration ; or, as subject to the general law respecting parol agreements, a consideration for, and as a necessary part of the collateral agreement, must be distinctly and' specifically shown. This distinction has, it is respectfully submitted, been already established. Neither of these circumstances appears here. The clear result, therefore, seems to be, that the counts in-this declaration are substantially defective, in that they state no-consideration for the alleged promise of the defendants. It only remains, here, to observe that a remark of Judge Kent, in Leonard V. Yredenburgh, upon the consideration to the principal debtor, was upon the motion for a new trial, and distinctively applied by him to the facts as offered in evidence.
    2. That which it is necessary distinctly to prove, in the first instance, to sustain the action, must be specially averred. The-plaintiff’s declaration is also defective in the absence of the proper averments, that payment of the notes was demanded of the-maker when they became due, and notice of non-payment given, in proper time, to the defendant. Nor are there any averments of facts which might excuse the omission. The undertaking of the-■defendants, if their act be such, was, as has been shown, collateral; if effective, in law, it could only be treated as a guaranty. As such, they should have had notice of non-payment, on demand, by Sidney Dodge. The plaintiff has treated the promises as conditional; he has only alleged the liability of the defendants as accruing by a means of judgment and execution against the maker, 'Sidney Dodge, and their promise thereupon. The reasons which require notice to the indorser of a note, of a demand upon and the non-payment, by the maker, apply to a guarantor. He *should, by seasonable notice, be put in a condition to secure his indemnity, from the party primarily liable; and though, •the same strictness is not applied, the difference, were the defendants otherwise liable, is not necessary to be distinguished here. As to the necessity of the averments of demand, etc., see Chitty on Bills, 264, 544, 633; Nicholson v. Gouthit, 2 H. Black. 609; Philips v. Astling, 2 Taunt. 206; 3 Wheat. 154, note.
    In conclusion, it may be added that plaintiff, having treated the undertaking of the defendants as conditional and contingent, ■depending on the failure of Sidney Dodge to pay, he has not by •the manner in which he has declared, shown a liability of the defendants ; for though he alleges, that, by means of the judgment ■and certain executions, the defendants (long after the notes became due) became liable to pay, “according to the tenor and effect of the said note,” and that they promised to pay accordingly; yet it is nowhere averred that Sidney Dodge did not pay, or had not paid, the money mentioned in the note; and it is not averred that they became liable upon the indorsement as stated. If they did not become liable at once (and the plaintiff has not supposed •that they did), by indorsing their names as stated, they could ■only become so by the happening of some contingency, as the nonpayment by Sidney Dodge, when the notes became due; that nonpayment, then, independent of the objection for want of notice, should have been directly averred; and not by an inconclusive inference. As to these parties the judgment is not conclusive of that •fact. That did not make them liable if they were not liable before; and the averment of their liability is not a logical conclusion ■from the facts stated as its consummation. And though it be held that it is not necessary, in a declaration upon a note, to aver a ■liability as accruing upon the making of the note, and by force of the statute, and stating a promise to pay, in consideration of that liability (which is the more logical mode), yet the other mode of declaring simply upon the express promise, can only be applied to a promise which is original and direct. The liability accruing upon a conditional or contingent undertaking must be correctly stated, according to the inceptive engagement and the legal effect *upon the happening of that contingency, which, in law, fixes the liability of the party — making that certain which was before contingent; and the promise which is implied thereupon, as the legal consequence, must bo expressed in accordance with the occasion and the fact of the liability thus stated. The counts of the declaration in this case, are, therefore, it is conceived, uncertain, inconclusive, and insufficient; so that, were the facts stated, in them found to be true, they would not establish any liability in. law, on which judgment could properly be rendered for the plaintiff against the present defendants.
    Mr. Goddard submitted an argument on the same side — substantially maintaining the same points, upon the same authorities- and arguments.
    Mayberry and Ewing, for plaintiff:
    1. The undertaking written above the signature of the defendants, by the holder, being in accordance with the authority givem him by such blank signatures, has relation to the time of the signature itself, and is the same in its legal effect, as if it had been-written by the defendants, at the time of writing their names, before the delivery of the instrument.
    If, then, it should be conceded, that in order to take a collateral' undertaking out of the statute of frauds, it is necessary to express-by the note, in writing, not only the promise itself, but also the consideration of such promise, as in the ease of Wain v. Warlters, 5 E. 10. Yet this case does not come.within the operation of that rule. For, here, the guarantee is a part of the original instrument; it was made with the note, and received with it, and the- “ value received ” in the body of the note, applies equally to, and forms part of the defendant’s undertaking.
    It is precisely, in legal effect, as if the defendants had signed their names on the face of the instrument, below that of the maker, and added, “as security.” Their contract would not, in that caser be a nude pact. It is clearly supported by the consideration of the* note, although it might not be so if after the delivery of the note, such contract *of securityship were entered into. In Leonard v. Vandeburgh, 8 Johns. 40, Chief Justice Kent says: “ To say that the promise is void, for want of disclosing a consideration, is assuming what the plaintiff offered to show ought not to be assumed, for there was no distinct consideration passing between the plaintiff and defendant. Johnson’s note given for value received, and of course importing a consideration on its face, was all the consideration required to be shown. The paper disclosed that the defendant guaranteed the debt of Johnson, and if it was all one transaction, the value received was evidence of a consideration, embracing both promises. The writing imported, upon the face of it, one original and entire transaction; for a guarantee of a contract, implies, ex. vi. termini, that it was a concurrent act, and part of the original agreement.” “ The defendant guaranteed payment of the value received." The case of Hunt, administrator, etc. v. Adams, 5 Mass. 358, is exactly in point. Joseph Chaplin gave his note to Isaac Burnet for one thousand five hundred dollars, on which note the defendant wrote the following guarantee: “I acknowledge myself holden as security for the payment of the demand of the above note. Witness my hand: Barnabas Adams.” The question agitated was, whether there could be a recovery on the paper itself, without further evidence. Chief Justice Parsons, in delivering the opinion of 'the court, says : The defendant is an original party to the contract, as well as Chaplin. The contract, in its legal construction, is a promise, as well by the defendant as by Chaplin, for value received, to pay one thousand five hundred dollars to plaintiff’s intestate. In the case of Adams v. Bean, 12 Mass. 139, which was an assumpsit on a guarantee, written on the back of a lease, that the lessors would perform, Chief Justice Parker, after denying the law of the ease of Wain v. Warlters, adds (supposing it to be law) : “ We think a written agreement, on the back of a lease, that the parties to it should perform their undertaking, sufficiently expresses the consideration; for it may, and ought to be presumed, that the lease would not have been obtained without such guarantee; and the permitting to occupy, in consideration of the promise in writing, of another to pay the rent is, we *think, sufficient to raise a consideration of the promise.” In the case at bar, we conceive that the evidence of a consideration, apparent on the note, is not at all lessened by thez matter admitted by the agreed case. The note, it is true, was given for a pre-existing debt; but that debt was merged iu the note, or at least the right of action suspended, until the credit therein given was expired. It was a new contract which abrogated or modified the pre-existing rights of the parties.
    It is unnecessary to inquire into the soundness of the doctrine laid down in the case of Wain v. Warlters, as it has no application in the present case. That case, however, is overruled in Hunt, administrator, v. Adams, 5 Mass. 558, and Adams v. Bean, 12 Mass. 139, and doubted in Leonard v. Yandeburgh, 8 Johns. 40. It is directly opposed to the principle decided in Egerton v. Mathews, 6 East. 307, and is denied to be law in Minot, ex parte, 14 Ves. 189, and much doubted in Gordon, ex parte, 15 Ves. 286.
    2. It remains to be inquired whether a demand and notice were, in this case, necessary to charge the guarantor on his contract of security. We contend that it was not; for the note in question, not being indorsed by the payor, has never assumed the character of a commercial instrument, and tne law merchant, as to demand and notice, does not apply to R. The doctrine as to what shall be necessary to charge the collateral guarantor of a commercial instrument, is unsettled, and there is some appearance of discrepancy in the cases on that subjeet. It is holdon in Philips v. Astling, 2 Taunt. 206, that a person who has guaranteed the payment of a bill of exchange, though no party to the bill, is exonerated by the neglect of the holder to make presentment, and give due notice of the dishonor of such bill. In Worthington v. Furbor, 8 East. 242, the plaintiff had bound himself as security for the payment of a bill of exchange, by the defendant, who was the acceptor. Before the maturity of the bill the defendant became bankrupt, and his property delivered over to commissioners. The plaintiff paid the bill, and brought his action for money paid, as on a debt accruing after the act of bankruptcy. Furbor resisted the payment of the bill, on the ground that, %s no demand had been made by the holder, the guarantor was not liable, and had paid the money, in his own wrong, and it was material to the defendant to stand as debtor upon the bill (which must have been proved under the commission), rather than the guarantor, who charged him as for a subsequent debt. Per Lord Ellenborough: “ The same strictness of proof is not necessary to charge the guarantors, as would have been necessary to support an action on the bill itself, when, by the law merchant, a demand and refusal by the acceptors, must have been proved, in order to charge any other party on the bill; and this, notwithstanding the insolvency of the acceptors. But this is not necessary to charge guarantors who insure, as it were, the solvency of their principals, and, therefore, if the latter become bankrupt and notoriously insolvent, it is the same as if they were dead, and it is nugatory to go through the ceremony of making a demand upon them.” And in the case of Swingard v. Bowers, 5 M. & S. 62, it was holden that a defendant, who guaranteed the payment of a bill of exchange by the acceptor, was not entitled to notice of the dishonor of the bill, he being no party thereto.
    Now the doctrine to be elicited from all these cases, appears to us to be this: That the guarantor of a mercantile instrument is bound by his guarantee, unless the laches of the holder release some one of the parties to such instrument, for whom the guarantor was bound. The laches of the holder, releasing such party to the instrument, would release the guarantor; otherwise it might happen that the security, having paid the debt of his principal, could not have his recourse over against such principal, who had •never been rendered liable. For it will be observed, in the case of Philips v. Arthing, that the case did not turn on the want of notice to the guarantor. He was discharged by the want of demand on the acceptor, which discharged the drawer and indorsers. And though the case of Worington v. Furbor might rest on its special circumstances, yet the reasoning of the chief justice fully supports the position for which we contend. And the case of Swingard v. Bowers is in point. But no reason can be given why demand and notice should be required to securities on a promissory note, *not made negotiable, any more than to securities on a bond or single bill. The instrument has no mercantile character; no principle of the law merchant applies to it. To charge the maker, nothing is necessary but nonpayment. The holder is bound to do no act. Every act in discharge is to be done by the maker. He must seek the holder if he would make the payment, and the holder is not bound to call on him to demand it. But here are securities, guarantors, for what do they bind themselves? That the principal will perform what the note binds him to do, or in his default, they will perform it for him. His liability -depends on no contingency — theirs on but one, his failure to per•form; and when he fails, the right of action accrues against them. They are fixed in law, by the happening of the contingency, which they had engaged should not happen. This doctrine is supported by the case of Hunt v. Adams, 3 Mass. 358, and the case of White v. Howland, 9 Mass. 315-16, in which last case this point was-expressly settled. Chief Justice Parsons on the bench.
   By the Court :

The authorities and arguments relied upon by the defendants counsel, appear to us conclusive that the declaration ought to aver some legal and valid consideration, for the promise upon which it is sought to charge the defendants. The mere fact of writing their-names upon the note would not subject the defendants. To charge them, it must have been done upon some description of contract with the plaintiff, by which the defendants might gain or the plaintiff might be prejudiced. And that contract, whatever it was, ought to be substantially set out in the declaration. This is not done», and, for that reason, the plaintiff can not recover.

The guaranty of the defendants, as written out, amounts to this, that the guarantors will pay, if the promissor does not. But this is, in its very nature, conditional. There is no pretense, in any of the authorities, that the holder of the paper upon which the guaranty is written, is bound to do nothing. The plaintiff’s counsel do» not proceed upon that ground. If he is bound to do something, what is it? To *sue and obtain judgment, it is asserted, is enough. But we do not think so. To demand payment, and notify the guarantor that it is not made, and that, consequently, he is holden, is the diligence which we think ought to be used. Such demand, with a certain knowledge that notice of failure will be-given to the guarantor, is calculated to have more effect in stimulating to an effort to make payment, than the prospect of a suit and judgment and execution at a future day. It enables the guarantor-to look more effectually to his security, and is, therefore, safest for all concerned. As this demand and notice is neither averred in the declaration nor admitted as a fact in the case, we consider it. also a decisive ground against the plaintiff’s recovery. Judgment, must be for the defendants.

      NoTE by the Editor. — The following principles will be found in Ohio Reports touching the rights and liabilities of those whose names do not appear in the body of notes or other contracts, and who have become connected therewith by indorsement or otherwise; who are, in the decisions, usually called “ strangers: ”
      1. Where a “stranger” affixes his name in blank to a note, etc., at the time of its execution, he will be held to be an original maker, ix. 139; xi. 102; xii. 158; xiii. 228; xvii. 36; xviii. 336; but the “stranger” is usually entitled to-the privileges of a surety, ix. 141; xvi. 1.
      2. The same rule applies to a “ stranger” signing after the note¡ etc., is delivered, if it was the “intention” that he should beso held, xiii. 228 ; xvii. 36; and this “intention” may be proved by parol, ix. 139; xiii. 228.
      3. These rules apply to “notes, bonds, and other written instruments,”' “whether negotiable or not,” xii. 228. But see xi. 102, and cases cited.
      4. “ I guarantee the fulfillment of the within contract,” written on a note, by a “stranger,” and signed at the time of its execution, binds him as a joint maker, and not as a guarantor, xviii. 336, and cases cited; from which it would seem that the limitations and restrictions indicated by the language of the indorsement, will not control the legal effect of the engagement, as it would be inferred they would do, from the language of the court in ix. 141; xii. 168. See also Judge Hitchcock’s dissenting opinion, and cases cited, xviii. 339.
      5. A mere indorsement by a “ stranger,” will, prima facie, be construed to have been made after the delivery of the note, etc., ard to be a guaranty, xii. 158; xiii. 228; xvi. 1; xvii. 36; xviii. 339; but his true character maybe shown by parol, ib.
      6. A guarantor,is entitled to demand on principal and notice of non-payment, see the case to which this note is appended; also, vi. 497; xi. 102; 1 .Swan, 280, note “a.” and cases cited, or an excuse of demand and notice. See cases cited in same note.
      7. The engagement of a “ stranger,” when it is collateral, must be supported by a consideration other than that which moved between the original parties, xvii. 128, and most of the above cases; but the considei'ation need not be in ■writing, ib.