text:
    *Lessee of Daniel Burgett v. Elizabeth Burgett.

      Statute of Frauds — Creditors—Feeds.
    A voluntary conveyance, made without consideration, and for the purpose of , defrauding creditors, is not void, except against creditors or subsequent purchasers.
    This was an action of injectment, tried at the July term, 1824, in the county of Butler.
    The plaintiff gave in evidence a patent from the United States to Henry Burgett, for the land in question, and a deed for the same land from Henry Burgett to the lessor of the plaintiff. The defendant then introduced witnesses to prove that the deed from Henry Burgett to Daniel Burgett was wholly without consideration, and intended to defraud creditors, and that Daniel Burgett had notice of that intention. It was admitted at the trial, that John Burgett, late husband of the defendant, was a creditor of Henry at the time of the conveyance to Daniel; that he died in possession of the premises; that the defendant, his widow, had continued in possession ever since, and that John was in possession when the deed was made to Daniel.
    Wood, for the plaintiff,
    contended:
    That the statute of this state, for the prevention of frauds and perjuries, although different in terms, ought to receive the same construction as had been given to 13 and 27 Eliz.
    Sargeant and Dunlavy contended for the defendant:
    That the statute must receive a literal construction, and that if the deed was made with an intent to defraud creditors, it was, in the language of the statute, “utterly void and of no effect,” and that strangers, as well as creditors, might take advantage of it.
    The judges who tried the cause determined to reserve the question of construction for the consideration of all the judges, at the special session next to be holden at Columbus, and with that view instructed the jury in accordance with the literal import of the words of the statute, that if they found the deed from Henry to Daniel Burgett to be without consideration, and intended to defraud creditors, it was void and of no effect, and would not entitle the plaintiff to a verdict.
    *The jury found for the defendant, and on a motion for anew trial, on the ground of misdirection, the question was reserved for decision at the special session.
    Wood, in support of the motion:
    The principal question presented for the consideration of the court on the present motion is, whether a deed made or obtained with inten i, to defraud creditors, or to defraud or deceive purchasers, is void, ab initio, under the second section of the statute against frauds and perjuries, or so far only as it shall operate against the rights of bona fide creditors or purchasers. In other words, would the deed from Henry Burgett to Daniel Burgett, the plaintiff in this suit, though made with the intent above mentioned, be utterly void, so as to convey no title to the plaintiff against a mere trespasser, without a shadow of title?
    It is conceived that the object, and the only object of the legislature, in the enactment of the second section of the statute above referred to, was the protection of the rights of creditors and purchasers. If such be the fact, the Supreme Court were bound so to administer the laws as to give effect to that object, and to that only. This could only be effected by adopting that .construction of the statute which would sustain the deed under which Daniel Burgett claimed possession of the premises in question, except so.far as it might operate against the rights of bona fide creditors or purchasers of, or from Henry Burgett.
    The legislature intended to guard either against the intent to defraud, or against the effect of such intent. That the legislature did not intend to guard against the intent merely will appear sufficiently evident on a moment’s reflection.
    The judicial tribunals of our country are instituted for the administration, not of the moral, but municipal law. Of the secret views or intentions of men, courts of laws will take no notice, unless those views or intentions have been carried into effect, and have an influence on the welfare of others. The acts of men arc the only indicia of their intentions which courts of justice will regard, and their intentions are scrutinized for the purpose only of ascertaining the character of those acts. It is for the regulation of their conduct alone, as members of civil society, that laws are *made and courts instituted. No legislature have ever enacted, no judicial tribunal have ever enforced, a penalty against the mere intent to commit an offense. A violation of the duties which one man owes another may be punished by the community to which the parties belong. But a mere violation of the understanding, which has not been carried into effect, to the injury of any person, never has been, and, it is presumed, never will be, punished by municipal law.
    To punish those violations of the duties which man owes to his Creator, in contradistinction to those which he owes his fellow-citizens, is left for that omniscience, which can not err, and that omnipotence, which can not be defeated. If, then, the legislature did not intend to provide against the mere intent to defraud, their object, and only object, must have been to provide against the effects of such intent; to prevent a debtor, who had obtained credit by virtue of the possession and ostensible ownership of property, from avoiding by a fraudulent transfer the payment of debts contracted on the credit of such property; to prevent a purchaser, without consideration, and with intent to defraud the creditors or purchasers of the grantor, from defeating the claim of a subsequent purchaser for valuable consideration. Agreeably to the construction adopted by the Supreme Court, the deed from Henry Burgett to Daniel Burgett, if made or obtained with intent to defraud the creditors of Henry Burgett, is utterly void, not only as to those creditors, but, ab initio, so as to pass no interest to-the grantee against the grantor. The term “made,” used in the statute, undoubtedly refers to’the grantor; and the word “obtained,” to the grantee. The intent, then, mentioned in the statute, may be limited to the grantor or grantee. We would beg' leave, then, to suppose for a moment, that Henry Burgett, in making the deed under which Daniel Burgett-claims possession of the-land in question, intended to defraud his creditors — that Daniel Burgett was ignorant of that intent — that the creditors of Henry Burgett were all satisfied without recourse to the land, and that Daniel Burgett brought his action of ejectment against Henry Burgett, to obtain possession of the land. Could Henry Burgett defend himself by saying: True it is, I executed the deed, under which Daniel Burgett, the plaintiff, ^claims possession, but I did it with the view of defrauding my creditors ? Here is a case coming clearly within the language of the statute, but we presume that no judicial tribunal, in the exercise of their intellectual faculties; would declare a deed, under these circumstances, void. To obviate-this difficulty, it may be said that no man can deny his own deed.
    But if we are to adhere so rigidly to the statute as the construction, which the court, in their charge to the jury adopted, would-intimate, we are not at liberty to regard anything but the-express declarations of the legislature. Agreeably to that construction a deed is void if made with intent to defraud creditors- or purchasers in all cases, and under all circumstances. It is admitted that if the will of the legislature be clearly ascertained, a court of law are bound to carry it into effect, however inexpedient or injudicious they may deem it. But from the imperfection that attends language, as well as everything else of human origin, the terms employed to express the intention of the legislature may comprise a variety of cases, which the legislature never Contemplated. If, from a reference to the subject matter, the reason and spirit of the law, it may be fairly presumed that the case under-contemplation does not come within the object of -the law, a-judicial tribunal will not extend the provisions of the law to that case. It might with equal propriety usurp legislative power, and. ■exercise both legislative and judicial functions. Gessante ratione ipsa eessat lex, is a maxim universally adhered to in the construction and application of laws. But it may be remarked that in the ■case supposed, Daniel Burgett is represented as ignorant of the fraudulent intent. This, so far as regards the construction of the statute is conceived to be a matter perfectly immaterial. A liberal construction of one part of a statute is fruitless, if rendered ineffectual by a strict adherence to the precise language of another part without regard to the object of the law. But admit, in the case before supposed, that Daniel Burgett was aware of the intent to defraud. Will this court say that the object of the statute would be effected by vacating the deed at the suggestion of Henry Burgett, the grantor and defendant? With him the fraud originated. This court would, it is conceived, *say to him : You shall not take advantage of your own wrong; you shall not deny your own deed. If you have fallen in the toils you spread for your neighbor, we will not aid you in getting out. The object of the statute was not the protection of the parties to the fraud but of bona fide creditors and purchasers, and the court will extend the provisions of the statute no farther than the accomplishment ■of that object requires. It is an established rule in the administration of justice to assist neither party to an illegal contract to enforce or rescind that contract. If a feoffment bo made in consideration to do an act malum in se, the estate of the feoffee is absolute, and a bond made on such condition is void, for the estate settled in the feoffee shall not be defeated nor shall a bond be forfeited for the forbearance of such action. But if an estate be to arise upon a condition precedent, that is illegal; it can never have -effect. The construction for which wo contend, is that put upon 13 and 27 Elizabeth, the object of which we conceive to be the same with that of the second section of the statute against frauds and perjuries enacted by the legislature of Ohio. The statute of New York, enacted for the same purpose, has received the same construction. If such, then, was the object of the legislature, the Supreme Court were bound to adjudge conveyances void for such purpose and to such extent only as might be necessary to ■accomplish that object. Such was the rule adopted by the English courts in their adjudications under 13 and 27 Elizabeth. Burrell’s case, Hop. 166, and Thome v. Newman, 2 Chan. Rep. 37.
    The principle adopted in those cases, it is believed, was never departed from. But it may be replied, that judicial tribunals are bound by the express declaration of the legislature, however inexpedient they may deem the provisions they have enacted. That •if the legislature have declared deeds made or obtained with intent to defraud creditors or purchasers utterly void, courts of law are bound to pronounce them void in all cases, and under all circumstances.
    When the legislature have clearly expressed their will upon any subject, courts of law are bound to carry their will into effect. But from the undeterminable character of language, and the imperfect manner in which it presents the operations of the human intellect, it frequently becomes ^necessary, in ascertaining the object of the legislature, to resort to other circumstances than the language which the legislature may have chosen to convey a. knowledge of their object to the community, and it is to this object, the purpose which existed in the breast of the legislature, that courts of justice are bound to give effect.
    If it can be fairly presumed that the object, and the only object of the legislature, was the protection of the rights of creditors and purchasers, then the Supreme Court were bound so to state the law in their charge to the jury as to give effect to that object, and that object only, however broad or extensive the language of the statute might be.
    Agreeably to the position advanced have been the uniform decisions of judicial tribunals.
    By 13 Elizabeth, c. 13, it is provided that all leases, gifts, grants, etc., made by any persons or corporations therein mentioned, contrary to the tenor of that act, should be utterly void and of no effect to all intents, constructions, and purposes. Yet it has been uniformly adjudged, under that statute, that the lease made by a dean and chapter against the said statute shall not be avoided, nor any covenants therein contained, during the life and continuance of the dean that made the lease. If, then, we have not been mistaken in supposing that the object of the statute was the protection of the rights of creditors or purchasers, and that the court were bound to effect that object, and that only, it remains to inquire whether the construction put upon the statute, by the court in their charge to the jury, would effect that object. It is conceived that to enable an individual to take advantage of the statute, it must not only appear that he is a creditor or purchaser of the grantor of the deed under which the adverse party claims possession, but he must exhibit a claim to the specific property in -question.
    Until this claim is regularly exhibited to the court for their adjudication, his character as creditor or purchaser must be unknown, and the court will never institute an investigation which must be fruitless, nor make a decision which can never be carried into effect. Will a judicial tribunal, at the suggestion of a defendant, a mere trespasser, who exhibits no shadow of title to the property in question, ^institute an inquiry by virtue of a statute whose object is the ptotection of creditors and purchasers, into the intent with which the deed was made under which the plaintiff claims possession? Such an investigation would be entirely fruitless. Admit for a moment that the deed from Henry Burgett • to Daniel Burgett was made to defraud the creditors of Henry Burgett, and that Daniel Burgett was aware of the intent — that Daniel Burgett brought his suit against a mere trespasser in possession. Would the court, with the view to protect the creditors or purchasers of Henry Burgett, at the suggestion of-the defendant, institute an inquiry into the circumstances under which the deed from Henry Burgett to Daniel Burgett was executed. No creditor or purchaser of Henry Burgett could possibly be benefited by such investigation. The court could pronounce no decision on the subject which would operate in favor of creditors or purchasers, if such there were. That the decision of the court may operate on the claim of any individual, he must be a party before the court, and his claim regularly presented for their adjudication. The court, it is conceived, erred in going into the investigation relative to the intent with which the deed from Henry Burgett to Daniel Burgett, the plaintiff, was made, the defendant setting up no title to the premises in question in the character of a creditor or purchaser of or from Henry Burgett. Under no other circumstances could the court institute an investigation into the circumstances under which the deed, by which the plaintiff claims, was executed without an entire departure from the object of the law.
    Admitting for a moment that the defendant, in the case before the court, was a creditor of Henry Burgett, and'that the deed under which the plaintiff claims was made with the view of defrauding her as such, the court would not be justified in extending the provision of the statute to her unless she set up a title to the premises in question, in the character of a creditor or purchaser. She would be no more entitled to the benefit of the statute than any other trespasser. If the premises in question, by virtue of an execution issued on a judgment againt Henry Burgett, had been sold, and the defendant had become the purchaser, and the plaintiff had sought to obtain possession, we ^conceive the court might', with propriety, at the suggestion of the defendant, inquire into the circumstances under which the deed from Henry Burgett to Daniel Burgett was executed. In such cases, and in such only, do we conceive the court can with propriety inquire into the intent with which the deed under which the plaintiff claims was made. Upon these principles we rest our motion for a new trial.
    See 4 Bac. Ab., title Leases, 118, and cases there cited; 2 Ch. Rep. 37:
    Dunlavy, for defendant:
    The true question in this case, if I properly understand it, is this; Is a deed of conveyance made to defraud creditors, etc., absolutely void, or is it conditionally so, or void only as to creditors and bona fide purchasers?
    I contend that such a deed is absolutely void without any qualification, reservation, or conditon whatever; first, because the statute on which the question depends, is positive and peremptory, “ shall be utterly void.” No language can be more plain, nor can any philologist, judge, or chancellor discover anything in the statute itself, I speak of the second section, that can justify him in giving it a meaning that would lead to, or justify any condition, proviso, or reservation. Statutes can only admit of construction where the cause is doubtful, or where there are various matters treated of therein, or others on the same subject matter. In this case, it becomes lawful, and even necessary, so to construe the statute that the whole shall have its due effect, and that the intention of the legislature should not be frustrated. But here is a simple statute made on one subject, couched in terms as strong and as plain as the English language can furnish; and what are those terms? That every gift, grant, or conveyance of lands, etc., shall be deemed utterly-void and of no effect. Now is not this language too plain to be misunderstood, and at the same time too strong to be shaken by any court or judge; nor could it ever have entered into the mind of any person to give it a construction different from the plain and literal meaning, except he was biased by preconceived opinions, or by inadvertently concluding that our statute, being made on the same subject as the British statutes, 13 and 27 Eliz.r must necessarily, in all *cases, have the same construction; nor can anything be drawn from the construction given to statutes on this subject in other states or countries. The above-cited British statutes, although on. the same subject, appear to-be very different in many respects. These'are careful of the rights of creditors, and of bona fide purchasers, and only make fraudulent conveyances void as to these descriptions of persons. The statute of New York, as it appears from the declaration of Judge Spencer, and in which the whole court concurred, contains the same provisions as those of the British statutes.- There can nothing, therefore, be drawn from the decisions of that learned court unfavorable to the position I am endeavoring to establish. But it will probably be contended, that if the doctrine I contend for, should obtain, very serious evils must follow. For instance, that any trespasser, who shall get possession of land, may hold it against all the world, as the fraudulent grantee can not contend with him, as his title is void, and the grantor can not as he has conveyed all his right. Another objection will perhaps be raised, that if the construction should be given the statute I contend for, that a man may avoid his own deed. For if a fraudulent conveyance shall be declared void to all intents and purposes, the maker thereof may, at anytime he thinks proper, avoid the same. But these objections will, on éxamination, be found more specious than solid. For, in the first place, it is impossible that a mere trespasser should get possession of land, under such circumstances as that no remedy could be had against him, but what is founded on title; and as to the other case, it could not possibly happen, because a man is estopped by his own deed, nor can he under any circumstances avoid it, except in cases where he shall charge and prove duress, evident mistake, or fraud in another person. But it does not lie in the power of the court to avoid or annul the force of the statute,, whatever consequences may follow. All they can do is to declare the law, and as to the consequences, let the legislature see to those. Jt will also, probably, be alleged that the court have heretofore given a construction to the statute varied from the one I contend for,- and that to invade or depart from that decision will produce greater evils than to persevere in the error. If, indeed, the court have heretofore ^decided incorrectly, it is high time that they should retrace their steps, and put the law, which they are bound to support and pursue, on its proper basis. It is, I presume, the first time the question has ever been brought directly before the court, and if in adjudications heretofore made, the statute has been inadvertently overreached, it is no reason why the error should be persevered in, when the matter has been fairly put in issue and clearly understood. But if the court have any doubt on this subjfcct, there are, in my opinion, many things that ought to weigh with them in making up their judgment, and deserve a due consideration, before the court decide that the plain and literal sense of the statute is to be disregarded. It is only by taking the statute in the sense I contend for, that it can ever have any general beneficial effect. Fraudulent conveyances are most commonly made secretly, or at least under such circumstances as the parties concerned calculate that the real state of the case will remain unknown to all but themselves. To unravel and set aside fraudulent transactions of this kind has long engaged the learning and skill of judges and chancellors, but it is to be lamented that all their art and labor have measurably proved abortive. Now the difficulty of developing fraudulent transactions will be greatly increased, if not become insurmountable, when it becomes necessary to pursue the property in the hands of a second purchaser, as it will generally be impossible to bring home to him the necessary notice. Hence, I presume, that on examination an instance will scarcely be found, where a creditor has been able to bring home fraud to a second purchaser, except purchasers lis pendens. I trust, therefore, both the letter of the statute, the object of the legislature in passing the law, the mischief to be avoided, and the relief intended to be afforded to innocent persons, will concur to induce the court to pronounce that a fraudulent deed is void. See 18 Johns. 515, 525; Cow. 434.
   Opinion of the court, by

Judge Burnet :

The question of greatest difficulty in this case arises from the fact, that our statute, the second section of which embodies, in part, the substance of the second section of the 13th, and the second section of 27 Elizabeth, contains no express words *confining its operation to creditors, nor any proviso in favor of pur chasers for a valuable consideration and bona fide. The section is •in these words: “That every gift, grant, or conveyance of lands, tenements, hereditaments, rents, goods, or chattels, and every bond, judgment, or execution, made or obtained to defraud creditors of their just and lawful debts, or damages, or to defraud or deceive the person or persons who shall purchase such lands, tenements,, hereditaments, rents, goods,- or chattels, shall be deemed utterly void and of no effect.”

The statute contains no other provision bearing on the subject.

It will be recollected that the statutes of 13 and 27 Elizabeth not •only contain provisos, that restrain them from operating against conveyances made for a good consideration and bona fide, but also restrictions, by which conveyances intended to defraud creditors and purchasers are made void only as against the persons intended to be defrauded.

If the language of our statute is to receive a literal construction, the direction given to the jury was correct, but a majority of the court are of opinion that it ought not to receive such an interpretation, as it would lead to consequences not contemplated by the legislature, and would, in part, defeat the intent of the law, which was, not only to prevent the effect of fraudulent conveyances, but to remove, as far as possible, the inducement to attempt them. The literal meaning of the language used, would render the covenous deed void, not only as to the persons intended to be defrauded, but also as to strangers, and even the grantor himself. If the deed be utterly void and of no effect, in the literal acceptation of those terms, the title must remain in the grantor, and he may, at any time, reclaim the property, by proving his own fraud. The consequences of such a doctrine, and the impmnity which it offers to those who may attempt to evade the statute, could not have been contemplated by those who framed the law, nor do we believe the rules prescribed for construing statutes require, or admit of such an interpretation.

It frequently becomes the duty of courts, in order to give effect to the manifest intention of the statute, to restrain, or qualify, or enlarge the ordinary meaning of the words that *are used. It is said that the power of construing a statute is in the judges, who have authority over all laws, and more especially over statutes, to mold them, according to reason and conscience, to the best ' and truest use. That the learned sense entertained of the statutes 13 and 27 Elizabeth is, that they render conveyance void, to such purposes, and to such extent, as may be necessary to accomplish their object, and that the construction adopted has been the rei gerandce aptior. Roberts frau: cont. 381; 4 Bac., title Statute, H. S. 1.

The intention of the law-makers may be collected from the cause, or necessity of the act, and statutes are sometimes construed contrary to the literal meaning of the words. It has been decided, that a thing within the letter, was not within the statute, unless within its intention. The letter is sometimes restrained, sometimes enlarged, and sometimes the construction is contrary to the letter. 4 Bac., title Statute, J. S. 38, 45, 50. The object of our statute appears, from its title, to be the - prevention of frauds and perjuries, and although it is said, that the title forms no part of the act (1 Ld. Raym. 77), yet the reason of this dictum seems to be the practice of Parliament, by which the title is prefixed to the statute, at the discretion of the clerk of the house, in which the bill originated, but such is not the practice with us. The title is framed in the same manner as the bill, and is sanctioned by the vote of both branches of the legislature; we may, therefore, consider it as explanatory of the object of the law, and it may safely be said that the object disclosed by the title in this case, does not render it necessary to treat a fraudulent deed as utterly void against the grantor, or against strangers who have no interest, claim, or demand, either on the property or on him who has conveyed it. The same inference may be drawn from the language of the section which declares the conveyance, etc., made to defraud creditors or purchasers, to be utterly void. "VYhy should it be void? Because it operates as a fraud on the persons named, not on strangers, who have no interest in the transaction, nor on the maker of the deed, who is the principal or only agent in the fraud. The intention of the statute, then, was' to protect creditors and purchasers, and, to effect this purpose, it can not be necessary to extend it to any other description of persons. The rights of this defendant are not affected by the deed to Elizabeth *Burgett — it was not made to defraud her — she had no interest in the transaction — she was neither a creditor nor a purchaser, and consequently not one of those for whose protection the statute was made. Every statute should be construed with a reference to its object, and the will of the law-maker is best promoted by such, a construction as secures that object, and excludes every other.

The rules laid down in Heydon’s case, 3 Rep. 7, which direct a reference to the common law, before the statute — the mischief complained of — the remedy provided, and the true reason of that remedy, are sufficient to authorize the construction claimed on the part of the plaintiff.

Although the principles of common law are strong against fraud in every shape, yet we find it decided in Twine’s case, 3 Rep. 83, that an estate made by fraud, can only be avoided at common law by him who had prior right, title, interest, debt, or demand, and not by one whose right or demand was more puisne or subsequent to the conveyance. The common law, also, of which the statute is said to be declarative, professed to protect only creditors, purchasers, and those having right. It did not extend its care to trespassers, or to persons pretending to claim without right, or to those who might be caught in their own toils. It was moreover considered, in reference to those for whom it professed to give a remedy, too tender in presuming fraud from circumstance, and too rigid in requiring proof.

This was the scope and extent of the common law, and it shows that the mischief to be remedied by the statute, was the difficulty of proof, and the frauds that might be successfully practiced on persons having right, title, interest, debt, or demand, accruing after the conveyance. Neither the condition of strangers, or persons without right or demand, nor the safety of the fraudulent grantor, entered into the consideration of the common law, nor did their case constitute any part of the mischief to be remedied. Hence we may conclude that the statute was intended, exclusively, for the benefit of creditors and purchasers, and was made to increase the facility of avoiding frauds, on such as were creditors and purchasers prior to the conveyance, and to extend the relief to those whose rights might accrue after the conveyance, consequently the interest of the fraudulent ^grantor, and the pretenses of those who have no right, were not within the mischief, and, therefore, not entitled to the remedy.

It being the duty of courts to give such a construction to statutes, as will suppress the mischief and advance the remedy, we are constrained to say that our statute, as it applies to the case before us must receive the same construction as though it had contained the restriction and proviso found in those of Elizabeth, nor do we believe that in so deciding, we enlarge the rules, or extend the license given for the construction of statutes. Should a case occur in which the intention of the legislature is doubtful, the literal and obvious interpretation of the terms ought to be adhered to; but, in the case before us, the majority of the court •entertain no doubt. The case of the defendant is not within the mischief, nor necessarily within the terms of the remedy. It being decided that the deed in question is void only as to creditors and purchasers, and the defendant being neither a creditor nor a purchaser, it follows that she has no right to impeach it.

On the authority of Anderson v. Roberts, 18 Johns. 515, and the cases there cited, we consider this deed as voidable only by the parties aggrieved. It remains doubtful whether the creditors of Henry Burgett will find it necessary to contest it. Their debts may be provided for in a different way, and should that be the case, for what purpose shall the deed be declared void ? Shall the title be considered as remaining in the fraudulent grantor, or in perpetual abeyance, or extinguished, so as to protect the defendant by the mere circumstance of occupancy. On the principle contended for, we do not see how these consequences are all to be avoided. If the deed be literally a nullity, the parties stand as though it had never been executed; the title remains in Henry Burgett, and he may show his own fraud to avoid his deed. If, on the other hand, the title has passed from him without vesting in his grantee, and the creditors should be otherwise provided for, it is either extinguished, or in perpetual abeyance, so that no person can question the right of him who may happen to be in possession, though without a color of title. Such a state of things, we are confident, the legislature did not design to ^produce— it was neither the intention of their act, nor was it necessary to secure its object. The title certainly passed by the deed to the grantee, subject to the rights of creditors or purchasers, but not liable to be questioned by strangers who have no claim, and as that was the situation of this defendant, she being neither a creditor nor a purchaser, a new trial must be granted.

Judge Hitchcock dissented.


source: Caselaw Access Project

author: By the Court : Judge Pease :

license: Public Domain

text:
    Administrators of Conn v. Executors of Gano.

      Note —Demand—Averment.

    ■When a note or bill is made payable at a certain time and place, no demand' is necessary to charge the maker or acceptor.
    Averment of demand, though immaterial, must be proved.
    This action was founded upon two promissory notes, in which, the defendants’ testator promised at a day certain to pay a sum of money to the intestate of the plaintiffs. The notes contained the words “ negotiable and payable at the Bank of Cincinnati.”

    Each count of the declaration contained an averment, that, the-note when due “ was presented at the said Bank of Cincinnati, being then and there due and payable, according to the terms thereof,, for payment,” and alleges non-payment. On the trial, the plaintiffs offered no evidence of this fact, and the defendants objected that without proof of the averment the plaintiffs could not recover; but the court permitted th.e cause to proceed, reserving the point. A verdict was found for the plaintiffs, and a motion made for a new trial on the ground of misdirection. This motion was reserved for-decision here.
    Este, for the defendants :
    It is settled in England, that where a note is made payable at ® particular place, a demand of payment must be made at that place,, and alleged in the declaration, in order to sustain the action. Chitty on Bills, 321; 14 East, 500.
    The cases of -, -, 8 Mass. 480, and Foden v. Sharp, 4 Johns. 183, seem to indicate a different doctrine; but in the cases of Berkshire Bank v. Jones, 6 Mass. 226, and Woodbridge v. Brigham, Id. 556, 560, *it is decided that the plaintiff must show that on the day of payment the note was in the bank, and that the servants of the bank were there during bank hours, ready to> .receive payment and give up the note.
    Longworth, contra,
    cited 17 Johns. 242.
   By the Court :

The plain interpretation of a promise to pay a sum of money at a certain place upon a certain day, is, that the person making the promise will on the day be at the place with the money ; if he be not there, or does not have the money there, he has not performed his promise. The right of the plaintiff to receive the money does not depend upon his making a demand. It is absolute by the very terms of the promise. If the defendant is ready at the time and place to pay the money, and there is no person there to receive it, his promise is not broken ; the duty to pay the money remains, but no action can be sustained to recover it until a subsequent personal demand be made. This is the plain justice of the case, and is in accordance with the American decisions, which we prefer to follow. It was, therefore, not necessary for the plaintiffs to aver a demand at the'place to maintain their action on these notes.

They have, however, made this averment, and though unnecessary, it is well settled, that being made it must be proved. In an action against the drawer or indorser of a bill, it is not necessary to state that the drawee accepted it; but Chitty says, if it be stated, it must, in an action against the drawer, be proved — p. 459. And in page 514, it is again said, that whenever a particular presentment has been averred, it must be proved; for this reason a new trial must be granted.

Judge Pease :

I concur in the opinion of the coui’t on the first point, but can not on the second.

The averment that the note was presented at the bank, and payment demanded, is decided to be totally immaterial as it respects the plaintiff’s right to recover, and also as it respects the defense. The true distinction between an ^immaterial averment which it is necessary to prove, and one which it is not, I consider to be this: When the plaintiff avers in his declaration a fact, the converse of which being pleaded or proved by the defendant would be a defense to the action, then the averment ought to be proved. But if the fact averred be every way immaterial — if it form no part of the plaintiff’s right to recover, and if the contrary would constitute no defense to the action — then it would be not only useless to prove it, but would be an unnecessary waste of time and money, and a trifling with the administration of justice.

Such is the averment in this case; and when no other reason can be assigned for requiring the proof of an immaterial fact, but that it is averred, I consider the reason insufficient. If the fact that it is averred be a sufficient reason in this case, why not extend it to all others ? The common averment in a declaration in slander, that the plaintiff hath always sustained a good character, is really of more materiality than this ; because under the general issue, and even upon default, the defendant may prove the contrary for the purpose of lessening the damages, which, so far, is a partial defense; but no lawyer will pretend that this averment of good character must be proved to sustain the action. If the averment be wholly immaterial, it is my opinion that it need not be proved, and I would overrule any authority to the contrary.


author: *By the Court:

text:
    *Saunders v. Pope.
    Bailee— Consideration.

    The delivery of a pledge to a third person, not authorized to receive it, is good consideration for an assumpsit.

    This was an action on the case, in which the jury found a verdict for the plaintiff, upon the first count in the declaration, and assessed his damages to $300. A motion was made to arrest the judgment, and its determination adjourned to this court, by the Supreme Court sitting in Hamilton county.
    The first count in the declaration states, in substance, that on the 5th May, 1818, one Nathaniel Pope was indebted to the plaintiff a pleasure carriage in part, and directed and authorized the plaintiff to sell the same to any person for a sum not less than $300, and to receive and apply the moneys to the plaintiff’s own use. That on the 1st May, 1822, J. W. Pope, the defendant, in consideration, that the plaintiff would deliver to him the carriage, promised to pay him $300, when thereto afterward requested; and avers a delivery confiding in this promise.

      Hammond, in support of the motion:
    There is no consideration alleged in this count sufficient to sustain a promise to pay money.
    It is not a declaration upon a sale of the carriage under the authority to sell, set out in the first part of the count; a mere naked, agreement by the owner to deliver a chattel to a third person, is .nota foundation whereon to ground an assumpsit to pay anything. An agreement to deliver only, and a delivery in pursuance of the agreement, would give to the party receiving the delivery no power ■over, or authority to use the chattel. The owner’s right to reclaim immediate possession would not be impaired, and a demand to have the chattel restored to the possession of the owner, would put an end to the rightful possession of the person to whom it was delivered. A refusal to redeliver upon demand would give the owner a right to recover the value in an action of trover. A mere naked agreement to deliver possession confers no right or benefit.
    *An agreement to deliver a chattel to be used or kept for a specific purpose, or for a time certain, would stand upon a different ground. And there is no case of a declaration upon a naked agreement to deliver. There must be a loan, a pledge, or a sale, •connected with the contract to deliver, to make out a consideration in assumpsit for the delivery of a chattel. If, then, the carriage had been the undisputed property of the plaintiff, his declaration makes no case upon which he could recover. As the case really is, he has much less color of right.
    Upon the case as stated in the declaration, the owner of the carriage pledged it to the plaintiff, in security for an existing debt, with an authority to sell it provided it would sell for three hundred ■dollars, and receive and credit the proceeds to the owner’s account.
    It is a well-settled doctrine that the right of property in a chattel pledged, remains in the pawnor. And that the pawnee can not •sell the pledge, so as to vest an interest in the purchaser, except according to the stipulations upon which the pledge was made. 2 Caine, 202; 2 Ves. Jr. 378; 5 Johns. 258; 8 Johns. 96; 12 Johns. 146; Croke Jas. 244.
    The plaintiff in this case received the carriage as a pledge, and agreed to sell it if it would bring $300. He had no power by his contract to dispose of it upon any other terms, and his delivering it to a stranger was a violation of his agreement with the owner. 'The delivery is not alleged to have been made for any purpose consistent with the proper use of a pledge, or the special right of the pawnee. It is stated as a general delivery. The pawnee having thus parted with the possession of the pledge, in violation of' his agreement, the right of the owner to reclaim it from the defendant immediately attached to it. So that the defendant acquired, no right whatever, not even the right to keep possession, or to use-it. The owner might consider it a sale, and charge the pawnee with the $300; or he might reclaim his carriage from the defendant, and upon a refusal to deliver it, recover the value in trover. The consideration alleged in the declaration is, therefore, objectionable : First, because the plaintiff founds it upon a violation of his own agreement; and second, because the defendant received no advantage from the delivery. He did not purchase, neither *did he obtain a right to use or retain. For even if the original owner’s right did not attach, the right of the-plaintiff, as pawnee, to demand an immediate return, was not affected by the delivery — the • declaration merely stating the naked delivery of the pledge, and stating no agreement that the defendant should keep and use it.
    If the contract had been that the plaintiff should redeliver the pledge to the owner, and in consideration thereof the defendant would pay $300, the value, the case would have stood differently;, o^ if the contract had been in consideration that the plaintiff would deliver the pledge to the defendant, at the request of the owner, it would have been well. In either of these cases, the plaintiff would have acted lawfully. He would have violated no obligation ; because it was lawful for him to restore the pledge to the owner. And it was lawful for him to do it upon a just consideration. The defendant would have, in the event of receiving the pledge with the assent of both owner and pawnee, a legal title to the pledge, according to his contract for receiving it with the owner. But here, the delivery being tortious, he acquired no such, right.
    It is not pretended that the plaintiff sold the pledge to the defendant in execution of his authority. Take the case in the strongest sense for the plaintiff, and the carriage remains in pledge to this day between the plaintiff and the owner. No time was-fixed for the sale of the pledge, or for its redemption. No measures had been taken to enforce a redemption before this suit was brought. By the payment of the debt due from the owner at any time hereafter, a right to demand the carriage, and to recover its-value, either against the plaintiff or against the defendant exists, and can be enforced against the defendant. The plaintiff’s recovery can not bar the recovery of the owner. The case in CrokeJames, of the hat-band set with pearls, was a recovery against the person to whom the pledge was delivered. The defendant ought not to be made twice liable for the same chattel.
    But whether the plaintiff be considered as the general or the-special owner of the carriage, the agreement to deliver it only,, without authority to keep or to use it, is not a sufficient consideration whereon to ground the action.
    *G-uil:fob.d, for plaintiff: .
    li is alleged in arrest, that no sufficient consideration is set out. in the declaration to sustain the action.
    The contract as set out is not a nudum pactum. The plaintiff was actually damaged by the performance of his part of the contract. Relying upon the promise of the defendant, he parted with-the possession of a chattel which was available in his hands to the full value of it.
    “ If there be any benefit, labor, or prejudice, however trifling, it is. deemed a sufficient consideration.” 1 Com. 16.
    But the plaintiff was not only prejudiced by the delivery of. the carriage, but the defendant was benefited by the possession, however temporary. The case in Cro. Eliz., cited in 'Com., was for “the consideration that the plaintiff would deliver to the defendant certain goods in which the plaintiff had only a special property ; ” and this was held a sufficient consideration, “ for the defendant has a benefit by the present possession.” 1 Com. 14; Cro. Eliz. 218; Yelv. 4, 50, 128.
    Eor the same reasons, the defendant can not avoid his promise-by showing that the plaintiff exceeded his authority, for granting that the plaintiff had only a special property in the carriage, and could convey no title to it except the bare possession, subject to betaken from him whenever the pawnor chose.; yet from the ease in Cro. Eliz., above cited, the “ present possession ” is a benefit sufficient to sustain the action. No fraud or deception is alleged by the defendant — the contract was fair, mutual, and well understood for aught that appears in the declaration. If there are any defects in the declaration they are cured by the verdict — for: “ The-court will infer almost anything after verdict; and want of certainty in the description or consideration, or of the contract itself, will be thereby aided.” For unless these defects or omis.sions were proved on the trial, “it is not to be presumed that the court would have directed the jury to give, or that the jury would have given the verdict.” 1 Chit. 402; 1 Saund. 228, a, note 1; 1 .Johns. Cas. 100; 1 Johns. 276; 2 Johns. 571; 15 East, 290; 11 Johns. 143.
   *By the Court:

It is not necessary to constitute a good consideration for an .•assumpsit that the party making the promise should receive any .actual value or benefit from the party to whom the promise is made, if, in consequence of the transaction, a loss has been sustained by such a party; this has long been settled.

In this case the plaintiff parted with his pledge, by which he lost a security for so much of his debt, and also rendered himself liable to N. Pope, the owner, for the value of it. This prejudice to him, incurred at the request and upon the promise of the defendant, constitutes a good consideration to sustain an action of •assumpsit. It is of no importance that the defendant could gain mo advantage from the contract; he took that risk upon himself, ,and the fact does not render the contract nudum pactum. The motion must be overruled, and judgment rendered for the plaintiff.


author: By the Court :

text:
    Hunt and Phillips v. Abraham Freeman.

      Intention — Mistake—Trust.
    'The court of chancery will carry into effect the intention of the parties, where, by fraud, or mistake, such intention is not embodied in a written agreement.
    .A trust executed according to the intention of the parties is good at law, where there is no court of equity to aid it.
    This was a bill in chancery, prosecuted by the complainants to obtain a decree quieting their possession of section 35, township 4 east, 2d entire range in Symmes’ purchase, and to enjoin perpetually execution upon a judgment in ejectment, recovered against-them in the supreme court of Warren county, from which court the cause was adjourned for decision here.
    The material facts charged in the bill were as follows: On the-16th of July, 1789, Clarkson Freeman, under whom both parties claim, made a contract with J. C. Symmes to purchase of him eight sections of land specifically described, one of which is the-land in dispute.
    In January, 1790, Freeman agreed with Elias Boudinot for the-purchase of six land warrants, for a section oí land each, and agreed, upon certain terms and conditions, to locate them in Bou-dinot’s name upon six of the sections purchased of Symmes. The warrants were numbered 235, *236, 237, 238, 239, 240. On the 22d of May, 1790, three of these warrants, numbered 237, 238, 239, were located upon three of the sections as agreed upon;., the warrant 239 being located upon section 35, the land in dispute.
    In the year 1792, Clarkson Freeman, being in prison in New Jersey for a judgment for a large sum of money, escaped, and in October of the same year he made a power of attorney to his-brother, Ezra Freeman, authorizing him to dispose of the lands-held upon the six warrants purchased from Boudinot.
    The judgment creditor of Clarkson Freeman prosecuted a suit, against the sheriff for the escape of Freeman, when, for the purpose of indemnifying the sheriff, on the 7th of December, 1795, an agreement was entered into between Clarkson Freeman, by his-attorney, Ezra Freeman, Elias Boudinot, and Aaron Ogden. By this agreement the interest of Clarkson Freeman in three of the-sections of land, held upon the warrants purchased of Boudinot, was pledged in trust to Aaron Ogden as trustee, to be sold at certain times and upon certain terms and conditions, to raise the money recovered against the sheriff. The entries being made in the name of Boudinot, he covenants to convey the legal title to-Ogden should a sale be required, and Freeman covenants that if payments are not made this shall be done. In this covenant the-lands subjected to the trust are described only by the number of the warrants supposed to be located upon them, which are specified as numbers 235, 236, 237, neither of which is located on the section 35 now in dispute.
    Immediately after the completion of this arrangement, the cornplainants, Hunt'and Phillips, purchased the judgment against the -sheriff, and on the 17th of May, 1796, released it as against the ¡sheriff upon receiving from, the trustee a deed declaring the trust.
    In September, 1796, the complainants received from Symmes a ■deed for section 34, covered by warrant 237, for the first installment, which was not then due. This deed was made with the assent of Freeman.
    The second installment fell due December 8, 1797; it was not • ■paid, and no measures were taken to execute the trust with respect to it. It remained unpaid, and on the 5th of November, 1798, Symmes conveyed to Boudinot the ^sections 34 and 35, neither of them located upon the warrants described in the trust agreement; and on the 5th of December following Boudinot conveyed these two sections to Ogden, under the contract of trust, to be sold to raise the remaining installments, the latter of which would fall due December 8, following. On the 8th of January following, Ogden, in execution of the trust, sold the two sections oí land to the complainants. Upon this title the complainants rested -their claim.
    The defendant claimed under a conveyance duly executed from Symmes to Clarkson Freeman, in September, 1796, for the section S5, and a deed from O. Freeman to himself, dated February 5, 1799.
    The bill charged that it was the intention of the parties to cover and secure such sections as had been located, let them be covered by any number of the warrants, provided there were not other sections located more correctly answering the description. It also -charged that Ezra Freeman gave assurance at the time the trust agreement was made that all the warrants were regularly located ; ■but that in fact three only of the six warrants were- located, and that the other three never were located. The three located warrants covered the three sections sold, including that in dispute.
    The principal facts stated in the bill were admitted in the answer. It was silent as to the allegation that Ezra Freeman represented all the warrants as located, and it averred that each of the six warrants was located, and described the land upon which the -location was made. It claimed to be a purchase for valuable consideration, but did not deny notice.
    Aaron Ogden testified that Ezra Freeman informed him that the warrants were all located, and that the trust contract was entered into under that opinion. That land, and not floating warrants, was understood to be the subject of the contract.
    Jon. Dayton testified that Ezra Freeman and A. Ogden requested him to value the lands. That he understood from Ezra Freeman that the warrants were all located, and made the valuation upon ■that impression.
    It was in full proof that two of the warrants named in the *trust agreement, numbers 235 and 236, were not located at the time that agreement was made. The sections upon which the answer alleged that they were located were not of the number sold to Freeman, upon which he contracted with Boudinot to locate •them; and besides this, the same section had been conveyed by Symmes to Boudinot before these warrants were located upon them. The time of the location of the other warrant was not explained, nor was it certain that it had been located. The section named in the answer as covered by it was not one of the number sold by Symmes to Freeman, and referred to in the agreement to Boudinot.
    Two witnesses testified that so early as 1796 they heard the defendant state that he knew the complainants had a mortgage on the land in dispute.
    Este, for the complainants:
    1. It was manifestly the intention of the parties to the mortgage to pledge three sections of land, and not floating warrants.
    This intention is distinctly expressed in the agreement, and is fully proved by the testimony. It is also fully proved that at the time three sections only were located. The intention of the parties can only be carried into effect by subjecting those three sections ; and it is a well settled rule that “grants are to be construed according to the intent of the parties." 3 Bacon, 293; 4 Cruise on Real Property, 293, 294; 4 Dall. 347; 3 Johns. 388; 1 Mass. 219.
    It is a just inference from the whole testimony that Ezra Freeman, when he gave assurance that all the warrants were located, knew the contrary. He therefore practiced a fraud upon the other parties. This fraud attaches to his principal, who, having led the other party into error, shall not be permitted to allege his own wrong to defeat the operation of his own contract.
    2. The contract of trust attached at the time of its creation to this section 35. It was a fraud in C. Freeman, when he knew this,, to take the legal title. This fraud can avail him nothing. The’ complainants purchased the equity, the right upon which the trust operated, at a fair sale, for a fair consideration, and are the rightful owners. In the *hands of C. Freeman this section must be considered the property of the complainants.
    3. The present defendant is not an innocent purchaser without notice. Notice of the complainants’ claim is brought home to him by the testimony of two witnesses, corroborated by all the circumstances. And besides, notice is hot denied. The nature and effect, of notice is well understood. 2 Fonb. 143, 150; Sugd. Vend. 484; 4 Mass. 638; 6 Id. 488, 489; 2 Ves. Jr. 437; New. Con. 511; 2 Atk. 54; Hardin, 37; 1 Johns. Ch. 303, 575; 2 Ves. Jr. 454; 9 Ves. 32.
    Hammond, for the defendant:
    Assuming that the ease is not varied by the defendant’s answer-nor by the proof, and considering the case as if the title remained in Clarkson Freeman, the complainants maintain that, as it was the clear intention of the parties to convey land and not warrants, an equitable interest in the land was created by the deed of trust,, and that as against Clarkson Freeman the complainants as purchasers, at the trust sale, acquired this equity, upon completing the purchase and paying the purchase money. Admitting all the premises assumed, we think the complainants’ conclusion a most obvious non sequiiur.

    Although it were the intention of the parties to convey land, it-is very clear that they did not succeed in carrying that intention into effect. The conveyance in this respect is intrinsically defective ; it does not perfect the intention of the parties. The deed tripartite never attached upon section 35: The trustee had no power over it under the deed. As to it the deed was inoperative. At the time the trust was created the legal title was in Symmes. The terms used in creating the trust did not touch this section. Before the time limited for the execution of the trust, in any part, of it, expired, Symmes vested the legal title in Clarkson Freeman. When the trust was executed, in January, 1799, a complete subsisting legal title for this section, in Clarkson Freeman, was of record in Hamilton county, operating as notice to all the world-The purchasers under the trust purchased nothing but a legal title. The trustee sold nothing else; had power to sell nothing else; and of consequence the purchasers could acquire nothing else. They ^purchased the title sold, such as it was, not a secret equity between the parties, growing out of an intention not ex> pressed in the deed. But admitting that they purchased this equity, what is it?
    It was the intention of the parties in making this contract to create a trust upon the section 35 in dispute; but the terms of description used, did not include it, and therefore the conveyance executed did not carry the intention of the parties into effect. But the original contract, upon which the deed tripartite between the parties is founded, created a right which subsisted between thorn, and which equity will enforce; that equity was to subject this section 35 to the trust created for the payment of the judgment. This trust, thus founded, a court of equity might be called upon to decree and enforce. But certainly a court of chancery can not interfere at once to set up this equity, and to confirm an ineffectual and void attempt to subject the land, by an execution of the trust at law ? Had application been made in a reasonable time, it is possible a court of equity would have charged section 35 with the trust, and decreed a sale of it to pay the trust money. This is all that equity could have done at any time. Now it is too late to do that.
    If the complainants at the trust sale purchase this equity, they could only purchase it as it existed in the cestue que trust. They could not acquire an absolute title to the land, neither could they acquire a right to call upon a court of equity to invest them with that legal title. So that admitting that the purchasers at the trust sale acquired the equity, and that they may now set it up in a court of chancery, still they can now only claim to have it subjected to the trust, and sold upon equitable terms, to refund them the money advanced. This is not asked by the bill, nor is a ease made upon which a decree of this character can be founded.
    The purchasers at the trust sale, the present complainants, were not the original cestue que trust, although they subsequently became the owners of the debt, to secure’ which, the trust was created. Having purchased the debt and obtained from the trustee a deed declaring the trust, they obtained whatever equitable security was created by the original contract. In their hands this equity acquired no new ^character by the purchase under the trust deed. When they come into a court of chancery to set it up, they can not claim to have it converted into a legal title. They had, by the original contract, an equitable security for money, and in their hands equity must still consider it such. They may ask equity to aid in executing the trust. But they can not ask to have a void effort to execute the trust at law confirmed, and a complete legal title vested in them. Their situation can be no better than that of a purchaser at the trust sale, who was a stranger to the previous proceedings. Conceding, therefore, to the complainants the facts they assume, they can not have the relief prayed for.
    It is, however, by no means admitted that the whole facts of the case place it upon the ground assumed by the complainants.
    The bill charges that it was the intention of the parties to convey lands, and not floating land warrants; and also that it was “ the design of the parties to cover and secure such sections as had then been located, let them be covered by what they might, provided there were not at the time other sections located more correctly answering the description, and that the said Elias was induced principally from that consideration to join in the contract.”
    The bill also charges that at the time of the contract, three only of the six warrants were located, and that the residue have not yet been located. And that there were no other lands in the Miami Purchase which Boudinot could convey, except the three sections, 24, 34, and 35.
    The proof of these allegations are essential to support the complainants’ case, and they evidently so considered it, when they charged them in their bill.
    It is satisfactorily proven that it was the intention of the parties to create a trust upon land, and not upon floating land warrants. But this proof is not enough. The parties in the deed have described the lands they meant to convey, and proof of the fact that they meant to convey land, is not sufficient to sustain an allegation that they meant to convey any other particular tract. Every conveyance of land imports of itself an intention to convey land and not floating evidence of title; but where one tract is specially described in the deed, this general evidence of an intention to convey *land can not authorize a court of equity to decree the conveyance of any other specific tract not described in the deed. Possibly this might be done where a clear intention to convey a tract different from that described in the deed is made out in evidence. But that is not the case here.
    The complainants rely upon the depositions of Boudinot, Ogden, and Dayton to prove this intention. Their evidence goes no further than the deed itself, which clearly evidences an intention to convey land. Boudinot says nothing about the intention. Ogden .says the intention was to convey lands, and adds, “ naming the numbers of the warrants in the contract, was not the result of a choice or preference, but merely to designate which of the located sections should be taken." This falls far short of sustaining the allegation in the bill, that it was the design of the parties “to cover such sections as might be then located, let them be covered by what they might.” Here was a positive intention to designate particularly, and not a word about a design to include other than the designated lands. Dayton is equally silent as to the fact of an understanding or design, in regard to located lands, except that lands and not warrants was the subject of the contract, and this is evident from the contract itself. The complainants’ case is not strengthened by these depositions. They prove no material fact whatever.
    The case of Russell v. The Trustees of the Transylvania University, 1 Wheaton, 438, is, in all its essential points, similar to this. The complainants alleged, in that case, that the grantor conveyed one tract of land, when he intended to convey another. They alleged a mistake in carrying the intention into effect, and sought to rectify it. They set out that the grantor had but one tract ini the block of surveys, one of which was conveyed, and that it was the design to convey the tract to which he had title, not that to which he had none. They alleged, also, that he derived title-under a particular warrant, and they alleged, as is alleged in this case, that it was the intention of the parties to the deed, that it should pass the two thousand acre survey, by whatever boundary described, to which the grantor was entitled under the warrant. The court held that without full and explicit proof of this latter circumstance they could not interfere; *even then they only say, “ it is possible the court might be induced to think the plaintiff’s case a good one.”
    As the intention to convey located lands is made out, it is argued that a mere unintentional error ought not to destroy the security intended. This argument would be worth something, were the bill prosecuted by the cestui que trust to set up the security. But it has no application here. It admits that the trust did not, at law, attach to the land in dispute, and the purchasers under the trust at law, purchased nothing but that upon which the trust deed operated. The mistaken notion that notwithstanding the mistake, the deed was really as operative as if no mistake existed, that the purchaier of the supposed legal title could claim in equity all that the cestui que trust might have claimed, has confused the complainants throughout. The same error must have confused others, or this cause, in its present shape, could not have remained so long in court.
    But even between the original parties the consequence of this mistake could not be that which the complainants insist upon. It could not entitle them to fasten the trust upon other lands than those described, unless it be shown that such other lands were really the subject of the contract. That lands were intended to be conveyed, and were not, would be a good reason for avoiding the contract in equity, but would be no sufficient reason for attaching it to any land, owned by the grantor, under warrants purchased of Boudinot, much less could that circumstance authorize the cestui que trusts to choose whether they would take 27 or 35. If it were in evidence that the section 35 was one actually contemplated by the parties; that it was one of the sections actually valued by Dayton, and that the parties supposed they had described it in the deed, then there is no doubt but that equity would secure it to the cesfiu' que trust. If it were in proof that the trustees sold, and the plaintiffs purchased, section 35 without having discovered the mistake and under the belief that it was properly described, there could be no doubt about the case. But this is not pretended. The bill disavows any contract for a particular section, and goes for whatever sections might be located, and if more than three, then for a choice. It is claimed to make the tripartite contract, confined in its terms to specific numbers, a *floating conveyance, to be fastened down upon such tracts as may best suit the views of the cestui que trusts. This, we say, can not be done. So much of the tripartite contract as fairly bears the character which the complainants give it, is void for uncertainty.
    The complainants claim that Abraham Freeman is a purchaser with notice, and stands in the same situation that Clarkson Freeman himself would stand. Whatever the facts in the case might make out on this point, we must concede that upon the answer, the case is not so made that the defendant can protect himself as a purchaser.
    Este, in reply:
    It is admitted that land, and not floating warrants, was the subject of the contract of trust. Three sections were pledged — three sections only were located. If Ezra Freeman meant to act honestly, his intention must have been to mortgage these sections. The intention of all the parties was a pledge of land. These three sections only could be pledged, and therefore the trustee had a right to fasten the trust upon them.
    The case cited by the defendant’s counsel from 1 Wheaton, wo think, is in favor of the complainants.
    It is true in that case it is stated that the grantor intended to convey one tract of land, and by mistake convoyed another ; but it is manifest that the case turned upon the question whether there was sufficient evidence of that intention. If this intention had been' made clear, notwithstanding the great reluctance avowed by the court, from the antiquity of the transaction, to inquire into the intention, there can be no doubt that a decree would have been rendered for the complainants. The court say that “ the whole equity of the complainants must depend upon the alleged intention of the parties at the time of the conveyance.” “ And here,” they say, “ we And the case wholly unsupported by proof.” That there was nothing like it to be found in the deed, in the answer, or in the extrinsic evidence in the cause. But in the case before the court, clear and satisfactory evidence has been produced of the intention alleged in the bill. ' In that case there was no proof— here it is conclusive.
    *But the defendant’s counsel insists, that if section 35 was pledged, the complainants did not purchase the equitable title at the trust sale.
    The trustee was authorized to sell all the interest, whatever it might be, that Clarkson Freeman had in section 35. It is true that it was expected that Judge Symm.es would make a deed to the trustee before the sale, so that the whole title, legal and equitable, might be sold if the payment were not made. Such a deed was made, but not until after one had been executed to Clarkson Freeman. If the deed to C. Freeman had not been made, the purchasers at the trust sale would have acquired the whole title; .but the legal title passing to C. Freeman after the contract, only made him a trustee for the purchaser at the sale. At the time of the contract he had only the equitable title, and if the legal title had not passed from Judge Symmes, the sale could have been made by the trustee of all the rights of C. Freeman to the section, and Judge Symmes would have held the legal title in trust for the purchaser.
    It is contended that if the equitable title were sold, the whole of that equity was the right to charge section 35 with the payment of the debt — that they have no other right than the original cestui que trust — that they acquired no additional right by the purchase — and that, consequently they can not call on a court of equity to invest them with the legal title. In reply it is urged, that the contract was not only a security for the payment of the debt, but contained a power to sell on failure to pay. This power was exercised without question with respect to the two sections, the legal title to which was vested in the trustee. It would not be pretended that it was necessary for application to be made to chancery to charge sections 24 and 34 for the payment of the debt. But C. Freeman had as good a right to authorize his interest in section 35 to be sold as the other sections, and the mere circumstance of the legal title subsequently passing to himself, can not possibly alter the case. If, in addition to the security for the debt, there had not been coupled a power to sell, the argument of the defendant’s counsel would have been unanswerable. But C. Freeman made A. Ogden his agent to sell all his title to section 35, on a certain contingency; that took place, and the *complainants, the representatives of the original cestui que trust, became the purchasers. Before the defendant, then, can resist our claim with success, he must show that the owner of an equitable interest can not sell the same so that the purchaser can call upon the holder-of the legal title for a conveyance; for the complainants have all the equity that the cestui que trust and C. Freeman ever had to the section. The moment the sale was made C. Freeman held the legal title in trust for the purchasers. The sale was fairly made, a valuable consideration paid, and the whole business transacted by an agent fully and legally empowered. Why, then, have not the purchasers a right to call on a court of chancery to invest them with the legal title ?
   By the Court :

There is no doubt but that it was the intention of the parties to the contract creating the trust, upon which the complainants found their title, to subject lands and not floating warrants. This is manifest' from the whole testimony, and the reasons why the numbers of the warrants was adopted by way of description is obvious. Freeman had agreed to locate the warrants upon six out of eight specified sections. Proceeding upon the ground that all the warrants were located, but the parties not being informed of the six sections they covered, this mode of description was the best within their reach. If the warrants had been all located, as Ezra Freeman asserted, the description would have been sufficient. That it was defective, is to be attributed to the mistake or the fraud of Ezra Freeman, and is in no respect the fault of the other parties.

The intention of the parties to describe particular and distinct tracts of land was not carried into effect by the writing executed between them in consequence of a common mistake. The defendant can not ask to place the case upon fairer ground than this, because if Ezra Freeman was not mistaken, when he assured the other parties that all the warrants were located, he was guilty of misrepresentation and fraud-, which is a more unfavorable view than attributing it to a common mistake.

The mistake was that three only of the six warrants were located, and of these three, one only of those upon which *the trust was given, the other two were still unappropriated. It is not to be doubted that upon the discovery of this fact, a court of equity would have charged the trust upon the three located sections, because in so doing they would do nothing but perfect the original object and intention of the parties. It would be but correcting the mistake into which the parties fell from a deficiency of correct information at the time the contract was executed between them.

When this matter was transacted there was no court of chancery in this country where the lands lie to take cognizance of the ease. And if there was a court of chancery in New Jersey, neither the party nor the subject was within its jurisdiction ; the parties, therefore, could only proceed to do that which a court of chancery would direct to be done, and when the rights of the parties were thus fixed, rely upon a court of law to sustain them.

As the property upon which this trust was created was circumstanced, the parties did not require the aid of a court of chancery, and this aid could at no time have become necessary had not Clarkson Freeman obtained a deed from Symmes in violation of the original agreement with Boudinot. By that agreement the control of the legal title to the whole six warrants, or the lands they covered, remained in Boudinot to be transferred to Freeman upon the performance of certain acts. Boudinot having a right to control the title to the whole, had covenanted to convey three that they might be subjected to a particular trust. It rested with him to carry the intention of all concerned, in the trust agreement, into effect, by conveying any of the sections located, in the execution of the trust, when it was ascertained that those designated were not appropriated. It was his duty to retain his control over three sections of the land, if there were so many secured, to satisfy the trust. In the actual case a court of chancery would have enjoined him from parting with this control had he attempted to do it. He might properly, notwithstanding the mistake in the description, have conveyed the three located sections to Ogden, and it would have been a good execution of the trust agreement on his part. No court of chancery, upon the application of Freeman, would have interfered, upon the case as it stood, to restrain Boudinot from thus proceeding; and such a *proceeding must have been subsequently sanctioned by a court of law.

When Clarkson Freeman obtained the conveyance from'Symmes for section 35, he knew that it was one of the three located sections which his agent had agreed should be subjected to the trust. He knew there was no other land upon which the trust agreement could operate, and it wqs a fraud upon that agreement to take the legal title to himself so as to exclude the agreement from operating upon it. It was also a fraud upon Boudinot, in whom, by Freeman’s own contract, the control of the legal title was to remain. By this fraud, as against those upon whom it was practiced, Clarkson Freeman acquired no beneficial interest. The title passed to him, but the subject remained liable to the control of Boudinot, under both the original and trust contracts. And it was competent for Boudinot, in the execution of the trust, to enable Ogden to sell actual ownership, though not the naked legal title to the land. And in a country where there was no court of chancery, a court of law would enforce the validity of the sale by giving the purchaser the possession, and regarding the beneficial ownership as superior to the naked legal title.

It is the opinion of the court that the trust attached upon the three located sections at the moment of executing the trust contract, and that the power to execute this trust was not defeated, or in any degree impaired by the conveyance of Symmes to Clark-son Freeman, which, in respect to the trust, was fraudulent and void. The trust was well performed according to law at the time, and the purchasers at the trust sale became the owners of the land. They are well entitled to the possession, and also to have the legal title united with that possession, such as it exists in the hands of Freeman. A perpetual injunction and a conveyance is decreed.

Judge Bub.net, having been at one time counsel for Hunt and Phillips, did not sit in this cause.


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    *George Hough v. David Young.

      Voluntary Undertaking— Variance — Damages.
    A plaintiff can not support his action by proof contradicting the averments in his own declaration.
    The day may be made material by averments.
    Damages must be founded upon evidence.
    This was an action on the case against the defendant, who was cashier of the Zanesville Canal Bank. Its object was to charge the defendant for negligence in so protesting a note left with him for collection, and to take the steps necessary to charge the indorser, that the indorser was not charged.
    The cause was tried before the supreme court of Muskingum county, and a verdict given for the full amount of the note. At the trial the court instructed the jury that “ the plaintiff was entitled to recover, and that there being no evidence of the ability or inability of the maker of the note, nor any other evidence to show the extent of the plaintiff’s injury, the jury, in estimating the damages, must exercise a sound discretion, and be guided by such light as they had upon the subject.”
    A motion was made for a new trial on the ground of misdirection, and the decision reserved for this court.
    It was proved at the trial that an agent for the plaintiff handed the note to the defendant, as cashier of the Canal Bank, requesting him to have the same note legally protested; that the defendant took the note, and afterward informed the same agent that the note was protested. It was also in proof that the defendant took the note to the notary public on the 2d day of August, 1819, with the words, “ July 30, August 2,” indorsed upon it, and informed him there were no funds in the bank to meet the note. The notary immediately protested the note, gave notice to the indorser, and returned the note to the defendant the samo evening or the next morning.
    The note was dated the 2d. day of May, 1819, payable sixty days from the 1st of June, in the same year.
    Culbertson & Goddard, in support of the motion,
    made two points :
    1. That upon the proof the action was not maintainable.
    2. The instruction given by the court, as to the rule of damages, was incorrect.
    *The testimony is, that the defendant took the note to have it legally protested. He was not a notary public, and could not himself protest it. The proper interpretation of his undertaking is, that he was to hand it to the notary for protest, if not paid when due. It was the duty of the notary to protest it at the right day, and if he made a mistake the defendant is not responsible.
    The negligence complained of is, that the note was protested upon the second and not upon the third day of grace, and the court,.in a suit against the indorser, has decided that this protest and notice did not charge him. If the action be sustained, it establishes the principle that a man may be subjected for damages for error in judgment in transacting a business in which he professed no skill, and for which he was to receive no compensation.
    For this Jones on Bailment, 57, is cited; but admirable as is the. arrangement, and systematic as is the reasoning of this treatise, it must be received, not as an adjudged case, but as tbe reasoning of an able lawyer. The author’s great respect for the civil law sometimes leads him into mistake with regard to the common law. On this very subject Judge Kent, in the case of Thorne v. Deas, 4 Johns. 100, asserts that the doctrine in the essay is “ totally unfounded in reference to the JEnglish law.”

    Coggs v. Bernard, 2 Ld. Raym. 909, is a case of gross neglect, in not doing that with proper care which the party took upon himself to do; but this is a ease of error in judgment as to the time when the note ought to be protested.
    The case of Wilkinson v. Coverdale, 1 Esp. 75, terminated in a nonsuit. The manuscript ease cited by Erskine, and the conversation between him and Lord Kenyon, are not entitlód to the weight of a decision by a full court. The whole relate to insurance cases, and are not applicable here. None of the cases relied on by the plaintiffs stand upon the same principle as this case.
    Bankrupt v. Blackburn, 1 H. B. 158, and Moore v. Mourgue, Cowper, 479, are both strong cases for the defendant; they both put the liability upon the ground of bad faith, or gross negligence, and upon the testimony neither can be here imputed to this defendant. It is not pretended that this was a bank transaction ; if it were, the bank, and not the defendant, *would be liable. As an individual transaction, the notice would be in due time. The defendant did not profess to be versed in the law oí notices to indorsers on promissory notes ; if he erred honestly he is not liable.
    The misdirection as to the rule of damages renders it necessary to grant a new trial. If a plaintiff prove a cause of action, his right to recover damages depends upon the proof of injury. Without such proof he can have nominal damages only. When it is adduced, the damages must conform to it. The jury are sworn to decide the whole case according to evidence. The damages they find must be predicated upon proof, not upon the surmises or suggestions of their own minds.
    Herrick and Stillwell, against the motion:
    The defendant received the note, and undertook to have it “legally ■protested” The plaintiff charges that the nature of this undertaking was to give such notice to the indorser as would subject him, if the note were not paid when due. The jury heard the testimony, and have found the fact to be as claimed by the plaintiff. Upon this motion the contract must therefore be taken as alleged in the declaration. The same answer may be given to the suggestion of the defendant’s counsel, that the undertaking was only to deliver the note to the notary; and it may justly be added, if this was the undertaking, why indorse upon it, as a direction to the notary, the time when it fell due.
    It was the duty of the defendant Jo take care that notice of non-payment was so given to the indorser as to fix his liability. He received the note for this purpose ; and this he attempted to perform. He retained the note until he supposed the time for payment passed. He then delivered it to the notary for the solo purpose of so proceeding as to subject the indorser. He did this on the second day of August, when it w;as ineffectual, instead of taking care that it was done upon the third day of that month, when it viould have been operative. By this blunder the plaintiff has lost his recourse against the indorser, and the drawer being insolvent has lost his debt. And this loss, it is contended, ought not to fall upon the defendant, because he possessed no skill in the particular matter he undertook, was to receive no *compensation, and made a mistake in law, only, without any evil intention.
    The doctrine, however, is otherwise settled, and we think clearly and rightly so settled. In Ooggs and Bernard the defendant professed no skill, and was to receive no compensation, and the negligence for which he was charged resulted from accident, not design. There can be no doubt but that with more strict care than was used, the hogshead of brandy might have been put-down in safety. So, with a more strict attention in this case, the defendant might and would have discovered that the third, not the second day of August, was the proper day to protest this note.
    It is not the compensation to be received that is the ground of liability. It is the duty necessarily resulting from the undertaking to do an act affecting the property of another, and the confidence reposed in the expected performance, and these are equally imperative whether there is to be compensation or not. The case of Coggs and Bernard is a full authority for this. And in this particular the observations of Sir William Jones, in his essay on Bailment, 57, agree with the opinion of Lord Holt, and of Lord Kenyon, in the case of Espinasse, and Judge Kent, in the casa referred to from New York, 4 Johns. 96, also recognized the doctrine to be correct.
    The case from Henry Blackstone, and the one from Cowper, so strongly relied upon by the defendants, both stand upon their own circumstances. They bear no analogy to this case, nor do they impugn the general doctrine. On the contrary, the situation of this defendant, as cashier of a bank, whose duty it is to be coversant with the manner of protesting notes so as to charge an indorser, places him very-much in the same situation, in that respect, as a clerk in the custom-house, in relation to the entry of goods, and, in the case from Blackstone, Lord Loughborough admits that a clerk in the custom-house- would have been liable.
    The question of damages was properly left to the jury. A new trial ought not to be granted on this ground, even if the court consider the instruction incorrect, unless there is reason to believe that justice has not been done; and this is not pretended.
    *It is alleged, in the declaration, that the misfeasance in giving notice or making" protest, was committed on the 3d of August; the proof is, it was committed on the 2d. The time alleged in the declaration is not material. It was only necessary for the plaintiff to prove that the wrongful act was committed before action was brought. Such is the rule in all actions on the sounding in tort, and even in contract, where the time is not a material part of the agreement itself.
   By the Court :

The declaration states that the note in question was dated the 20th day of May, 1819, and was payable sixty days from the 1st day of June in the same year. It also avers that the defendant, on the 3d day of August, 1819, proceeded to make the demand and give the notice of non-payment necessary to charge the indorser ; but did these so negligently that the indorsers were not charged. At the trial the negligence proved and relied upon was, that the demand and notice was made upon the 2d day of August, which, being the day before the last day of grace, was inoperative. The proof is in contradiction to the declaration which avers a demand and notice on the right day. This being the material point of the whole case, it was certainly not competent for the plaintiff to sustain his action by proof so essentially variant from his allegations; though in personal actions generally the day is immaterial, it may nevertheless be made material by the pleadings. And such is the case here; the declaration gave no notice that the negligence complained of referred to the day of giving the notice. The defendant could not come prepared to repel that which the plaintiff averred; yet this he must do, if, upon the proof offered, the plaintiff could recover’. The instruction of the court, that the plaintiff ought to have a verdict, was therefore incorrect. It is unnecessary to decide upon the principal ground of liability.

The rule laid down for assessing damages was also incorrect. If the drawer of the note is solvent, the plaintiff may yet recover from him the amount. This right is not affected by a recovery here. In that event this defendant is only answerable to the plaintiff for the expense incurred in taking '^measures to charge the indorsers, and for disappointment in that particular. To charge him with the whole amount of the note the plaintiff ought to have produced proof that the maker was insolvent. In the absence of this, and of all other proof, he could only recover nominal damages.

New trial granted.