author: By the Court: Judge Burnet’s

text:
    *Nathan Starr v. Ephraim Starr, Truman Starr, and Giles Griswold.

      Fraudulent Conveyance.

    In a suit by a purchaser under execution, an original judgment can not be controverted.
    A conveyance made voluntarily by a debtor to his creditor is without consideration, if the parties afterward treat the debt as still subsisting between them.
    'There may be a tacit as well as an express trust.
    This was a suit in chancery reserved for decision here, in Cuyahoga county. It was in the nature of a quia timet bill, and its object was to disembarrass certain lands of a title set up to them by the defendants, Truman Starr and Giles Griswold.
    The complainant derived title under certain proceedings in ¡attachment prosecuted by him against Ephraim and William Starr. The attachment was sued .out of the common pleas of Cuyahoga •county, on the 13th day of May, 1819; the lands in question were ■attached, and such proceedings had that they were sold and purchased by the complainant, and a regular deed obtained from the sheriff.
    The bill charges that Ephraim Starr, the original debtor and owner of the lands, had previously made a pretended sale to the other two defendants, fraudulently and without consideration, and upon a secret trust that Ephraim Starr should have the benefit, and calls upon the defendants to answer.
    Ephraim Starr, in his answer, states that in the year 1816, Nathan Starr, the complainant, and William Starr were partners in trade in New York, and agreed upon a dissolution. That William Starr assumed the payment of all the debts of the firm, and that Ephraim became his security in a bond to Nathan, to indemnify . Nathan against the debts of the firm. It.was upon this bond that the proceedings íd attachment were had, and Ephraim denies any knowledge of the debts of the firm paid by Nathan after making the bond. He further states that in the year 1817, he resided in New York, and was indebted to Truman Starr about $11,000 for money borrowed, and to Giles Griswold about $3,000. That to' secure the payment of these sums, he, on the 1st day of May, 1817, conveyed to Truman Starr the lands in question, with others, in the whole about 5,000 acres, with intent that Truman should convey an equal .proportion to Giles Griswold, which deed he delivered to Truman Starr, and received from him a power of attorney to sell the same lands.
    *He further states that some time afterward he found it necessary to apply for the benefit of the insolvent laws in the State of New York. And at this time, the deed, not being recorded, was returned to him by Truman Starr, and Truman Starr, as well as Griswold, signed his petition as a creditor, praying that he might have the benefit of the insolvent laws. He further states that after his discharge under the insolvent law, feeling himself morally bound to pay the debts due Truman Starr and Giles Griswold, he made to them a new deed, antedated so as to bear date the 1st May, 1817, the purpose of which was to protect sales made under Truman, anterior to the date of the second deed. This deed, he states, he made without the knowledge of Truman Starr, and kept it in his possession until September, 1818, when it was delivered, and his notes held by Truman Starr given up and canceled. The original power of attorney from Truman to Ephraim Starr was retained under which sales had been made by Ephraim as attorney for Truman, and moneys received and accounted for. He relies upon his discharge under the insolvent laws of New York, as discharging him from liability on his covenant to Nathan Starr, upon which the proceedings were had. He denies all fraud and .■all secret trusts in making the conveyance.
    Truman Starr’s answer is substantially the same. Griswold, in his anwer, states that he knows nothing of the facts charged, further than that Ephraim Starr- was indebted to him, and that he had received a conveyance of land from Truman Starr, in pursuance of an understanding between Ephraim and Truman at the time the conveyance was taken by Truman of the land in dispute.
    At the hearing, the complainant adduced an authenticated transcript of the proceedings and discharge of Ephraim Starr, under the insolvent act of New York, from which it appeared that Truman Starr and Giles Griswold were petitioning creditors.
    The defendants produced the deed from Ephraim Starr to Truman Starr, which bore date May 1, 1817, and -had on it a certificate of its acknowledgment by Ephraim Starr, before a master in chancery, September 10, 1817. It also had on it the certificate of the acknowledgment by Mrs. *Starr, dated September 17, 1818. Her name, inserted in the body of the deed, and her signature, are in different ink from the other parts of the deed, and the ink appears to correspond with that in the certificate of her acknowledgment; it was recorded before the attachment issued.
    Copies of the power of attorney from Truman to Ephraim Starr} and an agreement of counsel as to sales made by Ephraim in the name of Truman, under that power, were also produced. The deed from Truman Starr to Giles Griswold was executed after the attachment issued.
    Mr. Whittlesey, for the defendants,
    maintained:
    1. That the answers being responsive to the bill, and denying the trust charged, and the fraud alleged, in the making of the deed, these allegations must be put out of the case, unless the answer is disproved by testimony, which is not done here. 10 Johns. 524.
    The fact that Truman Starr and Giles Griswold were petitioning creditors for Ephraim Starr, subsequent to the execution of the deed, and thereby avowed the existence of the debts which the deed was given to liquidate, is insufficient to show fraud in making the deed. If the deed was made for a good consideration, it is not rendered void by the commission of a criminal offense afterward in relation to the same transaction; nor does the commission of such offense relate back so as to raise a trust, or constitute a fraud.
    2. It is not fraudulent for a debtor to prefer one creditor to another. 5 Johns. 412; 3 Johns. Ch. 446; 4 Johns. Ch. 682; 2 P. Wms. 428; 15 Johns. 571. The insolvency of the debtor does not vary the case,
    3. The redelivery of the deed did not reeonvey the title. 3 Cruise, 370; 6 East, 86; 8 Johns. 395; 1 Johns. Ch. 422.
    The complainant has admitted the original execution of the •deed; and the original consideration being stated in the answers in reply to interrogatories, it is evident that the fee passed. It vested in Truman Starr, and could only be divested by a reconveyance. If this position is not tenable, then it is insisted:
    4. That the debt, though extinguished by the discharge under the act of insolvency, was revived by the new deed, *and constituted a good consideration. A promise to pay a debt thus situate, is founded upon consideration and may be enforced. 7 Johns. 36; Cowper, 544; 2 Term, 763. The second deed was made and recorded before the attachment sued out, and there is no proof •of any creditor then existing to be defrauded. The judgment on the attachment is ex parte. If it conclude Ephraim Starr, it can not conclude the other defendants.
    5. The contract upon which Nathan Starr recovered, was dis* charged by the proceeding under the insolvent law of New York. 9 Johns. 325. The defendant was not liable upon it. It is not a subsisting debt to taint a conveyance with fraud as against a •creditor.
    Lyman and Brush and Fitzgerald submitted arguments on the same side:
    They further contended, that in respect to Giles Griswold, he -could not be affected. He knew nothing of the principal matters, was party to none of them; but was a creditor, and received hia ■deed in payment of a fair debt, and ought to be protected.

      Kelly and Grimke, for complainants:
    Whether there were two, or only one deed, or whether the first or second deed be considered as the one upon which the defendants rely, can make no difference. Both were voluntary, and made by a man in failing circumstances. All such deeds are held fraudulent, and were so held at the common law, without the aid of statutory provisions.- Cow. 432. The doctrine maintained by Lord Mansfield, in the case cited, is fortified by a multitude of decisions, both in England and America. It is distinctly recognized by Chancellor Kent, in Boyd v. Dunlap, 1 Johns. Ch., and in Hildreth v. Sands, and Roberts v. Anderson, 2 Johns. Ch., and by the Supreme Court of the United States, 8 Wheat. 243.
    Deeds not made for a valuable consideration, as to creditors are voluntary. But this deed was in every sense of the term voluntary. It was never required by the grantee, was made without his knowledge upon the mere voluntary motion of the grantor, and the debt, which was the consideration, still subsisted. It remained in the power of the *grantor, and the estate was put under his control, and evidently managed by him, for himself.
    The secrecy with which the deed was preserved, is also a badge of fraud. The secret interest, pretended to be created for Giles Griswold, is another badge of fraud. In respect to him, Truman Starr was a trustee, not for Giles Griswold, but for Ephraim Starr. Indeed, the whole case shows that Truman was, in fact, a trustee for Ephraim of the whole title. Where the deed remains under the control of the grantor, or where there is a secret trust for his benefit, the deed is fraudulent and void. 1 Ch. Cases, 244; Neal’s Equity, 126.
    It is true the answer in terms denies botji the fraud and the-trust.- But this denial can avail the defendants nothing. The facts, they state themselves, admit of no interpretation other than that the whole was a fraudulent scheme.
    Both Truman Starr and Giles Griswold were petitioning creditors for Ephraim Starr after the execution of the first deed. As their debts were the avowed consideration, they must have been extinguished, had the transaction been in good faith. They swore they were creditors when the petition was filed. By this they are concluded. And as their debts were not extinguished, the first deed was without consideration clearly and unquestionably, upon, the facts as stated by the defendants themselves.

      The second deed is without consideration. The debts due from Ephraim Starr to Truman Starr and Giles Griswold were discharged by the discharge of Ephraim Starr under the insolvent law of New York. They were petitioning creditors, and assented, to the discharge. They must be bound by an act to which they assented, for which they petitioned.
    This debt, however it might be revived by a promise to pay it between the parties, can not be revived by the mere execution of a deed, as in this case, against other creditors. The case, ex parte Burton, 1 Atk. 255, is an authority to this ¡mint.
    The covenant of Ephraim and William to Nathan Starr was not affected by the discharge of Ephraim under the ^insolvent law of New York. At the time of that discharge, Nathan had no cause of action on that covenant. It had not been broken. Nathan Starr was not a petitioning creditor for Ephraim Starr, and could not be, for he was not then his creditor at all. The debts which Nathan Starr was compelled to pay, were not scheduled as debts due from Ephraim Starr in his schedule. He made oath to that schedule as containing all the debts he then owed. He can not be permitted to say that this debt was then due, and his oath false.
    The case of Giles Griswold can not be distinguished from that of Truman Starr. It stands upon the same deed with that of Truman Starr, and, if that deed be fraudulent and void as to one, it must be as to both. 3 Johns. 371.
   By the Court:

The complainant claims title under a sale upon execution, founded on a judgment rendered at law, in action of covenant commenced by attachment. This judgment can not be here controverted. It is conclusive that Ephraim Starr owed him the debt, for which it is rendered at the time stated in the proceedings, and places him in the attitude of a creditor, entitled to contest the fairness of the title which the defendant set up to the land in dispute.

This title is a deed of conveyance from Ephraim Starr to Truman Starr, dated May 1, 1817. The deed is produced, and upon inspection, it appears to have been acknowledged by Ephraim Starr upon the 10th of September, 1817, and by his wife upon the 17th of September, 1818 — the wife’s name and signature being -inserted in ink different from that of the writing in the body of the deed, and corresponding with that of her acknowledgment. It is evident that although two deeds are spoken of in the answers, there never was but one executed. The same deed made and acknowledged by Ephraim Starr in 1817, was executed by Mrs. Starr in 1818. There is no reason to presume that the master in chancery, taking Ephraim Starr’s acknowledgment, antedated his certificate. And this must have been done, if the deed produced was executed after Ephraim Starr’s discharge, as stated jn the answer.

The defendants all insist that the first deed was executed in May, 1817, to secure the debts due from Ephraim *Starr to Truman Starr and G-iles Griswold. The date of the deed corresponds with this statement, and the court being satisfied that there was but one deed, and that this is it, the right of the defendants, Truman Starr and Giles Griswold, depend upon the validity of this deed.

The court agree with the defendants’ counsel, that the redolivery of the deed did not reconvey the title. That redeliverv is of no other importance than as one of many circumstances elucidating the character of the transaction. The deed is absolute and indefeasible ; the consideration for which it was given, must have arisen at the time of its execution. If given in payment of an existing debt, there must have been an agreement that the debt should be extinguished. If the debt subsisted, and was really due, after the deed was made, there was no consideration.

It is distinctly admitted by all the parties, that the debt was not extinguished, but remained due between them. Truman Starr presented himself a petitioning creditor for account of this very debt. Giles Griswold did the same with respect to his. Roth made affidavit that his debt was due to him, which could not be the case, if it had been paid by the conveyance of the land in question. Ephraim Starr, in his answer, distinctly states that it was in September, 1818, that the notes, evidences of the debt, were given up and canceled upon the delivery of the pretended second deed. Truman Starr states the same thing. The avowed object of making the alleged second deed was to discharge this debt, which Ephraim felt a moral obligation to pay.

The deed, if operative at all, was operative from May, 1817. At that time, and until September, 1818, the parties to it show that it was without consideration. And being so, the grantee held the title in trust for the grantor. It was not recorded, and there -is no evidence, except the allegation in the answers, that it ever ■was in the'power of the grantee before September, 1818; and how long it was in the power, if ever, is not alleged.

The suggestion in the answer that Truman gave up the deed to become a petitioning creditor, is in every view of it most lame -and impotent. If the transaction had been in good faith, the execution of the deed extinguished the debt. The redelivery, or giving it up, could not revive the debt, ^unless there was a eon-•tract that it should do so. Such a contract would, have vested an interest in Ephraim which he was bound to put in his schedule for the benefit of his creditors. Nothing of this kind was done. If the debt was paid by making the deed, Truman Starr was guilty of both fraud and perjury in presenting himself a petitioning creditor. If the debt was revived by agreement when the deed was given up, Ephraim Starr was guilty of perjury, and fraud too, in not assigning it for his creditors’ benefit. But if the conveyance was voluntary, upon no secret trust distinctly expressed, the conduct of the parties is more consistent than it could be upon any other supposition.

The circumstance that Ephraim Starr, the grantor, continued •to exorcise control over the property, and sell and dispose of it, receiving the purchase money, and making conveyances, is an additional badge of trust and fraud. It does not essentially change the character of this part of the transaction, that Ephraim acted under a power of attorney from Truman. That power was created at the time of the conveyance, and continued unrevoked after the return of the deed to Ephraim. Like the deed itself, it was kept a secret until it became necessary to use it to enable Ephraim to enjoy the benefit of the land.

It is another strong and unfavorable circumstance that the deed, ■though unrecorded, was permitted to remain for so great a length of time, in the hands of the grantor; and was a second time brought out, not at the request of the grantee, but upon the motion of the grantor, and the consideration got up, that of a debt discharged by the proceedings under the insolvent law, upon the petition of the grantee.

All the principal facts of the case unite in convincing a majority of the court, that the deed was originally made voluntarily and without consideration, and that the object was to cover the land from creditors, and save it, that it might be enjoyed by the grantor. That this trust was not formally declared or expressed between the parties, is no reason why it can not exist. The law is-not to be evaded by contrivances of this nature. A trust, tacitly created, is more difficult to reach than one that is expressed; but when it is ascertained the same consequence is attached to it.

*Griles Griswold is in no better situation than Truman Starr. His title rests upon the same deed, which was never operative. And although he was no party to the original transactions, yet he acquired no interest in the lands until the conveyance was made to him. He could not enforce the parol trust in Truman Starr, if there were no doubt of its existence. And his deed is made since the land was attached, and since a right was commenced in the complainant. Both deeds must be decreed fraudulent and void.

Judge Burnet’s

dissenting opinion:

I dissent from the opinion of the court in this case, principally, because the defendants, Truman Starr and Giles Griswold, have expressly denied the fraud imputed to them, and their answers have not been contradicted by a single witness.

They were creditors to Ephraim Starr, for money lent, to a greater amount than the estimated value of the land, and whatever might have been the fraudulent views of Ephraim Starr, or the imposition practiced by him, on his creditors, these defendants are not infected by it. Fraud must be proved; it can not be presumed. The facts from which unfavorable inferences might be drawn, against these defendants, appear to‘ be satisfactorily explained. They may all be true, and they perfectly innocent. On such grounds, I can not agree that the complainant, who is an after creditor, has a right to wrest from tl^em their tabula in naufragio, and effect, for his own exclusive benefit, the same object, which he alleges is a fraud in them. Their equity, to say the least of it, is as strong as that of the complainant. It is prior in point of time, and they have the law on their side. Equity being equal, the law prevails. Prior est in tempore, potior est injure.

The deed first executed, and delivered by Ephraim to Truman,was for a valuable consideration. It was made before his application for the benefit of the insolvent laws of New York, and when he was at liberty to prefer one creditor to another. The execution and delivery of this deed vested the legal title in the grantee, and the conveyance was complete. As the land was not received in fall discharge of the debt due to Truman, and to Gris-wold, it *was perfectly consistent with the nature of the transaction, that the notes of Ephraim should be retained until the proceeds of the land should be ascertained. When that was done, the amount was to be credited, and the residue, if any, would have continued a subsisting debt.

The redelivory of the deed to Ephraim did not divest the grantee of his title, or render the conveyance void, and the fraud that might have been practiced afterward, on the bankrupt laws of New York, could not relate back, so as to avoid a conveyance previously made, in good faith, and for a valuable consideration.

The second deed may be considered as a nullity, because there was no interest in the grantor that could be conveyed by it, and I can not discover how tho validity of the first deed can be affected by the subsequent conduct of the parties, in relation to third persons, who had no interest or concern in the transaction.


source: Caselaw Access Project

author: Judge Hitchcock:

license: Public Domain

text:
    Courcier and Ravises v. Thomas Graham.
    Pleading— Title — Evidence.
    Covenants independent, dependent and mutual.
    The plea of non est factum puts nothing in issue but the execution of the deed.
    Upon default, plaintiff in covenant is not bound to prove the averments of his declaration.
    When deed may be presumed.
    •Complete connected paper title is necessary where a party covenants to make an indisputable title.
    A deed attested by one witness does not convey title.
    The value of merchandise agreed upon by the parties can not be controverted where fraud is not alleged.
    This was an action of covenant, founded upon an article of agreement executed on the 26th day of March, 1818, for the sale of a tract of land particularly described and upon particular terms.
    The plaintiff stipulated to deliver to the defendant merchandise to the amount of $11,418.32, upon account of the purchase of the-land; and from time to time, when thereto required, within one-year from the date, to deliver to the defendant or his order any further quantity of merchandise, as he or his agent might select, to the amount of-dollars, further on account of the land.
    The price of the land was to be fixed by three persons living in Cincinnati, to be chosen by the parties within six months; Graham covenanted that if he approved the price fixed he would, at the end of one year from the date, by a good and sufficient deed of conveyance and assurance in the law, well, and sufficiently, grant, convey, and assure the land to the plaintiffs, in fee simple, clear of all incumbrances, and at the *same time deliver the: possession of the premises to them, they securing to be delivered on demand to the defendant, or his order, such goods suitable to the Cincinnati market, at a fair price, as he may choose, to the amount of any difference beyond the amount of goods and merchandise then actually received.
    The declaration contains a single count. After reciting the substance of the covenant, and averring the delivery of the-$11,418,32 amount of goods, it alleges that the plaintiffs have, “at all times since the making the said article, been ready and willing, when legally required, and upon reasonable request made by said Graham or his order, to deliver to him or his order any other and further quantity of goods, wares, and merchandise, which he, the said Graham, or his agent, might select, when the same should be selected, on account of the aforesaid tract of land, agreeably to the provision and stipulations contained in said, article. And the plaintiffs further say, that since the execution of said articles they have at all times been ready and willing, in pursuance to the terms thereof, to receive a good and sufficient deed,, etc., and to pay or deliver to said Graham, or to secure to be delivered to him or his order on demand, such goods, suitable to the Cincinnati market, at a fair marketable price, as he or they may choose, to the amount of the difference, etc. And they further say,, that since the execution of these articles, and since the expiration of the .year therein mentioned, they have at all times, at the period in said articles contemplated, been ready to receive possession of the premises in the said article described. And in fact they say their covenants have been kept and performed. And they further in fact say, that although the period of one year,. mentioned in said articles, at the end of which the said Graham, by his covenant, should have conveyed the said land, has long since elapsed and gone by; and although the said tract of land has been long since valued, and the price fixed to the same, and the said valuation approved by said Graham, yet said Graham, well knowing the premises, and well knowing that he had and did receive the goods and merchandise in said articles specified, amounting in value to $11,418.32, and that the said plaintiffs had well and faithfully fulfilled and performed *all and singular the covenants and agreements on their part in this behalf to be kept and performed, nevertheless, said Graham has not executed and made to said plaintiffs a good and sufficient deed, nor hath he delivered possession, nor hath he secured to be paid the value of the said goods and merchandise; wherefore his covenants he hath not kept, but hath broken the same,” etc.
    The plea is non est factum, without an affidavit, but accompanied with a notice stating an offer to perform, a tender of the deed, bad quality of the goods, etc.
    The plaintiffs gave in evidence the covenant declared upon, and proof of the delivery of the merchandise stated in it. They also gave in evidence a letter from Graham to the plaintiffs, dated at Philadelphia, October 20, 1818, stating that he had approved the price fixed by the valuers, and intended to comply with the contract; and submitting for consideration a connection of the paper title, and a conveyance from himself to the plaintiffs; and remarking it was doubtful whether he could tender a performance at any other time than the end of the year, and adding, “I am ready either now or then to perform what is necessary;” and remarking also, that the deed from Symmes to Dayton, under whom the title was derived, was not among the papers, but should be supplied.
    The plaintiffs also gave in'evidence a letter from them to the defendant, dated October 22, 1818, objecting to the sufficiency of the title:
    1. That there was no deed from Symmes to Dayton.
    2. That Mrs. Symmes had not relinquished her dower.
    3. That the deed from Yanhorne to Williams was not recorded in time.
    4. That there was no certificate that there were no unsatisfied judgments against intermediate owners.

      Upon this proof the plaintiffs rested the case, stating to the jury that they claimed to recover the $11,418.32, with interest.
    The defendant moved the coui’t to direct a nonsuit, upon tha ground that the evidence given by the plaintiffs did not make out their cause of action as alleged in the declaration, and the court-reserved the decision of this motion until the cause was further heard, and directed the defendant to ^proceed in the ease. The defendant then gave in evidence that he had tendered a deed to the plaintiffs on the 30th of March, 1819, in compliance with his contract, and also, that he had offered to the plaintiffs for their acceptance a deed, with an abstract of the title, in October, 1818, and also, in February, 1819, before the end of the year in the covenant stated, to which the plaintiffs objected, because there was no deed from Symmes, who received the patent from the government, to Jonathan Dayton, under whom Graham deduced title, and because of several supposed existing claims for dower. The defendant also gave evidence of the possession of Joel Williams, from whom he purchased, and of a connected and uninterrupted possession, from and under a purchase made from Dayton, in the year 1791. And also the paper title from Dayton to the respective persons in succession, who had held possession down to Joel Williams, from whom the defendant derived possession, except a deed from Riddle to Yanhorne, which deed, dated in the year 1808, attested by one witness, acknowledged before a justice by the grantor, and recorded, the defendant also offered in evidence ; but upon the suggestion of the plaintiff’s counsel, it was rejected by the court. The defendant also gave in evidence a deed from J. O. Symmes to Moses Miller, for a tract of land adjoining the section No. 19, in which the land in question is situate, bearing date November, 1798, reciting that Jonathan Dayton was the purchaser and locatorof section 19. The defendant also gave in evidence the deposition of Jonathan Dayton, stating that a deed had once existed from Symmes to himself for said section.
    Upon this evidence'the defendant asked the court to instruct the jury that, by a just construction of the covenant, the place for the carrying it into execution was Cincinnati; that the deed must be made, the possession delivered, and the delivery of the goods on demand secured, at the same time; and the plaintiffs not having alleged in their declaration, or shown in evidence, that they were ready at Cincinnati at any time to perform the contract on their part, and accept a performance from the defendant, they could not recover at all in this action, or if they could recover, could only recover nominal damages. But the court instructed the jury that the plaintiffs were entitled to recover the full damages *they might have sustained without adducing any proof of the matters claimed as necessary to be made out in proof by the plaintiffs.
    The defendant also asked the court to instruct the jury that upon the evidence adduced, they ought to presume a deed from John Cleves Symmes to Dayton. And that the deed from Riddle not being in evidence before the court, and not having been objected to by the plaintiffs, at any time, until the trial in the common pleas, and the possession under it having continued so that the possession of Graham or those claiming under him could not bo disturbed, a good and sufficient title was made out to satisfy the terms of the covenant. But the court instructed the jury that no continuance ■of possession for any time less than where the statute of limitations would operate to bar a recovery in ejectment was sufficient to warrant the presumption of a deed, and that if the title was found to have been in Dayton, no other title would satisfy the terms of the contract, except a complete connected paper title from Dayton to Graham, the defendant.
    The defendant also gave in evidence to the jury, that the goods delivered as stated in the covenant were of very inferior quality, and were not worth in money the sum stated as their price, and asked of the jury, if they found a verdict for the plaintiffs, to find such sum only as the true cash value of the goods. But the court instructed the jury that it was not competent for the defendant to contest the justness of the price fixed upon the goods in the covenant, and that such price must be taken by the jury as their true value.
    The jury found a verdict for the plaintiffs for the amount of the goods, with interest.
    The defendant moved the court for a new trial upon the ground of misdirection in all the matters here stated. The consideration and decision of this motion, as well as of the point reserved in regard to a nonsuit, was adjourned to Columbus.
    Este and Hammond, for the defendant:
    Upon the evidence adduced by the plaintiffs, they are not eh» titled to recover, and a nonsuit ought to be directed.

      *The object of the action is either to disaffirm the contract and recover the deposit or purchase money paid; or to affirm it, and recover the value of the bargain.
    If the first, the evidence is insufficient; it shows only an inability to comply in October, when the party had until March following to enable himself to complete the contract. The right of one party to abandon the contract, upon the ground that the other is unable to perform it, can only be sustained by proving an inability to comply at the time of performance. The proof here is, only that the title to be conveyed was not complete five months before the conveyance was to be made.
    The party who intends to disaffirm his contract, and claim to receive back the money paid on it, ought to give notice of such intention, and when he sues, shape his action and declaration accordingly. Sugden on Vendors, 159; 2 Esp. 639; 3 Bos. & Pul. 162, 246. Neither the declaration nor testimony, makes a case of this character.
    The declaration in this case affirms the whole contract; it assigns breaches upon every covenant, and avers a performance or readiness to perform all the covenants on the part of the plaintiff. By the terms of the article, the plaintiffs were to perform everything they undertook to do, before the defendant was to convey the land. In relation to the conveyance, everything was precedent. The averment, therefore, that the plaintiffs had performed, or were ready to perform, was indispensable. Without it, their declaration would have been bad. 1 Salk. 112; 7 Term, 121; 8 Term, 366; 1 East, 201; 5 East, 107, 112. From the same authorities it appears, that it was as necessary to prove these averments, at the trial, as it was to insert them in the declaration. No such proof was adduced ^ for this reason the plaintiffs ought to have been nonsuit.
    There ought to be a new trial:
    1. Because the plaintiffs did not entitle themselves to recover anything beyond nominal damages.
    2. Because the defendant had tendered a good title.
    3. Because the court misdirected the jury as to the value of the merchandise received under the contract.
    1. There must be some place where the contract was to be performed; that place was Cincinnati. There only the *possession could be delivered. There the title could be investigated. There the law as to the validity and execution of the deed could be best understood. The plaintiffs could not recover without proof that they were at Cincinnati on the day ready to give security for the delivery of the balance of the goods, and receive a title. The authorities above cited are full to this point. And of these necessary facts no proof was offered.
    It is said that this proof, under the pleadings, is not'necessary; that non est factum puts nothing in issue but the execution of the deed. But non est factum is the general issue, and puts the plaintiff upon the proof of his whole case. Were it, however, as is contended, non est factum pleaded, can not place the defendant in a worse condition than if no plea were put in and judgment signed' against him on default, and in that ease, if the plaintiff seeks to recover more than nominal damages, where the action sounds in damages which are uncertain, he must prove his whole case. 2 Black. 748; 3 Term, 302, per Buller; Strange, 1149; 1 Sel. Prac. 335; Doug. 302.
    2. The title of the defendant, and which he offered to the plaintiffs, was a good and indisputable title. He showed a conveyance to himself from the person last seized and a paper title, accompanied withja possession from the year 1791 downward. One deed in the chain of title was defectively executed. But though inoperative as a conveyance, it was good and available to protect the possession given under it against the partyand his heirs. Neither could recover in ejectment against the person claiming and in possession under the purchase. The title, which can not be disturbed, is indisputable.
    No deed was produced from Symmes to Dayton ; but there was full proof of its having existed. If this had not been done, it ought to have been presumed after a lapse of twenty-seven years, and a possession evidently founded upon the fact that there was such a deed. Phil. Ev. 119; 7 Wheat. 110; 6 East, 215; 10 Johns. 377.
    It is not enough for the plaintiffs to cast doubt upon the title. In a case like this they must prove it to be positively bad. Sug. Ved. 157 ; 4 Esp. 221; 3 Bos. & Pul. 426.
    3. The defendant was not concluded by the stipuláted *price of the goods delivered on the contract; but might prove that they were of less value.
    It was not a contract to purchase - for cash, but for an exchange of commodities. In such cases, where estimations are made on both sides, it is usual to affix a price essentially different from which ■either party would agree to pay in money. When a recovery in money is to be substituted for the article originally contemplated by the parties, the true value in money of the commodity received, ought to be the rule of damages. The case of Basten v. Butler, 7 East, 479, and the cases cited in the notes, sustain us in the principle we contend for.
    Rowan, for the plaintiffs:
    The suit in this case was an action of covenant; the breach alleged was a failure to convey a tract of land.
    The plea was non est factum. Under that plea, and by virtue of the statute in that case provided, the defendant specified in a written notice the grounds upon which he rested his defense.
    Those specifications are to be considered in the nature of special pleas to the action, and like all other pleas, admit whatever is well pleaded in the declaration, which they do not traverse or deny.
    The pleas, therefore, not having denied the readiness on the part of plaintiffs to comply with their part of the covenant, admitted it, ■and thereby absolved plaintiffs from the necessity of proving it; for what is admitted by the pleadings need not bo proved.
    The motion, therefore, made by the defendant to instruct the jury, as in case of a nonsuit, because the plaintiffs did not prove the readiness, which they had alleged in the declaration, to comply with the covenants on their part, was properly overruled by the court. Upon any other principle, the pleadings, instead of conveying notice to his adversary, of the grounds relied upon by each, would operate as a decoy, and entrap instead of promote the justice of the case.
    Whatever is said about the competency of the declaration is foreign and irrelevant. It can only be brought before the court, by demurrer, or error in arrest of judgment.
    *What is said about the place of performance can cut no figure. If the defendant had pleaded his readiness to perform, and his incapacity to do so without the concurrent agency of plaintiffs at Cincinnati, then the court would have been obliged to have determined the place at which performance was, by the covenant of the parties, to have been done. But the matter was not drawn in question by the pleadings. The same principle applies tv all that is said in relation to the absence of proof on part of plaintiffs, as to their readiness to secure, the payment of balance.
    For it is a settled rule of law, that the obligor is bound to perform his covenant according to its import, unless the con;urrent agency of the obligee is necessary to the performance on his part. But the defendant has not, in this case, intimated by his pleas, that he was restrained from performance, by the absence of such concurrent agency.

    "VYhat is said about the necessity the plaintiffs were under of affirming or disaffirming the purchase, or contract, in their declaration ; or of their going in the declaration for the earnest money, or-for the worth or value of the contract, is considered irrelevant. First, because they did not, and could not, legally arise in the cause, there being no demurrer to the declaration ; and next, because the. action was brought on a specialty, and the contract being by specialty, no other mode of suit or of declaration, is sanctioned by rules and usages of law ; an action for the earnest or deposit money must have been an action on the case for money had and received, etc. But that action will only lie whore the contract is by parol. The contract in this case was by deed or specialty. The distinction of contracts into parol and by specialty is well known; and that a seal constitutes the boundary line is not less known, and that the action for money had and received, will not lie where the contract is by specialty, can not be doubted.
    The grounds for a new trial are considered utterly untenable. A motion for a new trial must, in every case, address itself to the sound discretion of the court, and it is to be granted, or refused, as upon a just survey of the case, and all its circumstances, the court shall believe the substantial justice of the case requires.

    *In this case it is alleged that the substantial justice of the case requires it: 1. Because proof as to the value of the goods received by defendant was not permitted by the court. In answer to that, it is alleged that what is agreed by the parties, need not be proved, and the parties had themselves agreed upon the value of the goods and, therefore the court rightly excluded proof as to their value. And next, because the defendant, by complying with his contract, might have silenced all dispute upon this subject.
    But it is again said that the defendant was ready, willing, and able to comply with his contract. This leads to a consideration of so much of the contract as relates to his capacity. By the covenant he was to convey to the plaintiffs by a deed in fee simple, clear of all incumbrances; the title to be indisputable, etc. Did the defendant exhibit an indisputable title ? Did he even exhibit a title free from, or clear of, all incumbrances? There were two links broken, or rather absent from his chain of title. There was no conveyance from Symmes, the patentee, to Dayton. There was no legal deed from Riddle to Yanhorne. There were sundry dower claims unrelinquished.

    The first question is, what is meant by the words indisputable title, in this covenant? Did the parties mean a clear, well connected, legal title, according to the laws regulating conveyances, and the tenure of realty thereby, or did they mean an inferential title, one which might be deduced, in a course of disputation, from possession, and facts in the country, which existed in presumption of law upon a given state of fact, or a title in fact, which silenced all presumption, and excluded all facts which it did not imports Surely the latter. This is the meaning of those terms, in common parlance, as well as in law. It is a rule, that in expounding deeds, the terms are to be taken most strongly against the obligor. This was evidently the understanding of defendant himself, because he acknowledged when he presented the abstract of title, the absence of the deed from Symmes to Dayton, and his obligation to procure it.
    But the idea of substituting possession for title never occurred to him, when making out the abstract of his title.
    That dower is an incumbrance has been settled over and over again. The chancellor has repeatedly enjoined the *payment of the balance of the purchase money until dower should be relinquished. An indisputable title, free from all incumbrances, means not only that it shall be free from actual existing, but from probable, and even potential incumbrance.

    The chancellor will never decree the payment of the purchase money, when doubt hovers over the title, still less when there are two links wanting in the chain of title, and when there are several dower claims which may be asserted.
    The verdict, then, is according to the justice of the case, and ought not to be disturbed. It is according to the law of the case, and ought not to be disturbed.
    The pleas were, first, non est factum, which questioned only the •execution of the deed; second, tender of performance; and third, want of value, or rather reduction of value on the goods.
    For each of these notices must be considered in the nature of ■a special plea. Taking, then, the three pleas together, or separately, all the allegations of the declaration, which are not controverted by them, stand admitted, and being admitted, need not be proved by plaintiffs, and can not be questioned by defendant. By his plea of tender, he takes upon himself the proof that he has offered to convey an indisputable title, clear and free from all incumbrances, and admits that he was reduced by the performance of plaintiffs, and their relative posture to him in other respects, to the necessity of making a tender of a conveyance of that character. In every view, therefore, of the case, judgment should be rendered upon verdict for plaintiffs.
   Opinion of the court, by

Judge Hitchcock:

In the case of Kingston v. Preston, Doug. 690, 691, Lord Mansfield observes, “There are three kinds of covenants: 1. Such as are called mutual and independent, where either party may recover damages from the other for the injury he may have received, by a breach of the covenants in his favor, and where it is no excuse for the defendant to allege a breach of the covenants on the part of the plaintiff. 2. There are covenants which are conditions dependent on each other, in which the performance of one depends on the .prior performance *of the other, and, therefore, till this prior condition be performed, the other party is not liable to an action on his covenant. 3. There is also a third sort of covenants, which are mutual conditions to be performed at the same time, and in these, if one party was ready, and offered to perform his part, ¡and the other neglected or refused to perform his, he who was ready and offered, has fulfilled his engagement, and may maintain an action for the default of the other, though it- is not certain that either is- obliged to do the first act.”

Much difficulty arises at times in the construction of covenants, .and in ascertaining whether .they are dependent or independent; but the same rules must be adopted as in the construction of other instruments of writing. The intention of the parties is to govern, and that intention must be collected from the whole instrument taken together. The order of time in which the several acts are .to be performed, however much they may be transposed in the deed, will show the intent of the transaction. If, upon the whole, it shall appear to have been the intention of the parties to trust-each to the personal security of the other, the covenants must be considered as independent. So when the covenants in a deed are established, in one particular instance, to be independent, it seems to he settled that they must be so considered throughout, although in the deed there may be mutual acts to be performed at the same time, or although the plaintiff had covenanted to do certain acts, on his part, in the intermediate time, between the performance of the different acts to be done by the defendant. 2 Johns. 273, 387; 5 Johns. 78; 2 H. Bl. 389. So where mutual covenants go only to a part of the consideration, and a breach of that part may be-paid for in damages, it has boon determined that they are to be-regarded as independent. 7 Johns. 244, and cases there cited.

In declaring in covenant, the declaration must be varied according to the nature of the instrument declared on. If the liability of the defendant depends upon the performance of a prior covenant or condition on the part of the plaintiff, performance ora tender of performance must be averred, or the declaration will be bad on demurrer. If the covenant contains mutual conditions to be performed at the same time, the ^plaintiff must aver that be was ready and offered to perform on his part, but it is not-necessary that he should aver performance, or an actual tender of performance. 1 East, 203; 3 Bos. & Pul. 457; 5 Johns. 179.

There is, perhaps, more difficulty in determining to which class-of covenants the contract before the court belongs than seems to be apprehended by counsel. The agreement was made on the 27th of March, 1818, at which ti me, merchandise, estimated at the value of eleven thousand four hundred and eighteen dollars and thirty-two cents, was paid by the plaintiffs, Courcier and Ravises, to the defendant, Graham, and paid as expressed in the contract, on account of the purchase of the land. They covenanted to deliver the aforesaid amount of merchandise forthwith, and the evidence proves that it was forthwith delivered. In addition to this, they covenanted that they would, “from time to time, when thereunto required, within one year from the date hereof, deliver to him, the-said Thomas Graham, or to his agent, or order, any further quantity of merchandise, as he, the said Thomas Graham, or his agent, or order, may select, at a fair market price, to the amount of-dollars, further on account of the aforesaid tract of land.” The defendant, Graham, agreed on his part, that, if he approved of the price at which the land should be valued, he would, at the end of one year from the date of the agreement, convey, by good and sufficient deed of conveyance, etc., the same land to the plaintiffs, they securing to be delivered, on demand, to the said Graham, or his order, etc., goods suitable to the Cincinnati market, etc. But if Graham did not approve of the price at which the land should be valued, then, at the end of one year from the date of the agreement, he was to secure the payment for the goods which had then been received, and which should thereafter be received, etc., in four annual payments, with interest after one year. By the terms of this contract, the land was to be conveyed, and the purchase money secured at the same time, and had these been the only acts cpvenanted to be performed, the covenant would have been clearly within the description of those containing mutual conditions to be performed at the same time, and neither party could have sustained an action against the other without showing a readiness and offer to ^perform. The plaintiffs covenanted to deliver goods of the value of eleven thousand dollars and more forthwith. Had they refused to deliver these goods, might not the defendant have had his action against them for the breach of this covenant, and that, too, without waiting until the end of the year? They further covenanted to deliver other merchandise in addition, within the year; and had this merchandise been selected and demanded, what could have prevented the defendant from maintaining an action against the plaintiffs for a breach of this covenant, provided they had refused to deliver the merchandise thus selected and demanded. Graham, on his part, was bound to do nothing until the end of the year, except to agree in the appointment of three persons to value the land. He was neither bound to convey, nor to secure payment for the goods. Now if to this case we apply the principles which were settled in the case cited from 2 and 5 Johnson, it would appear to me to be at least doubtful whether these must not be considered as independent covenants.

Again — let' us compare the covenants in this case with those in the caso of Bennett v. The Executors of Pixley, 7 Johns. 249. In that case the declaration stated that the testator, on the 22d of February, 1802, by his writing obligatory, sealed, etc., promised and agreed with plaintiffs, in consideration of $400 to him paid, to convey to the plaintiff, on or before the 1st day of December then next, one certain lot of land, lying, etc., and if the said lot ■of land should be appraised over the sum of $400, etc., same was to be made up to the testator, and if it was appraised under $400, the sum which it fell short was to be deducted out of certain motes, etc. In the case before the court, Courcier and Ravises covenanted forthwith to deliver goods estimated.to be worth more than $11,000, which goods were actually delivered at the time of making the contract; within six months after that time the land was to be valued; at the end of the year it was to be conveyed; if the valuation exceeded the amount of goods received, the plaintiffs were to secure the difference, to be paid in goods on demand ; but if the valuation fell short of the amount of goods received, then payment was to be secured by the defendant.

*There appears to be a groat degree of similarity in the features of the two cases. In one, $400 was paid in land; in the other, more than $11,000 was to be paid, and actually was paid upon the execution of the contract. In both, the land was to bo valued and conveyed at a subsequent period, and in both, if the valuation exceeded the amount already paid, the vendee was to make up the difference, in the one case by payment, in the other by securing payment; and if the valuation fell short of the amount already paid, then the difference to be accounted for by the vendor. It may be said that in the ease cited there was no agreement that the amount beyond the $400 should be paid at the time the conveyance should be executed. But what say.the court? “Assuming that there was a covenant on the part of the plaintiff to pay for the amount of the appraisement beyond $400; yet it only went to a part of the consideration, and the rule is settled that where mutual covenants go only to a part of the consideration, and a breach of that part may be paid for in damages, the defendant shall not set it up as a condition precedent. The covenants in such case are to be considered as independent.” “ The damages sustained would be very unequal if the covenant of the plaintiff was held to be a condition precedent. He, in the meantime, loses his $400, and the testator might not lose anything. The plaintiff had in part (at least) executed the bargain by paying the $400, and the testator ought not to keep that sum without conveying the land, because, that possibly there may be a surplus to receive, and be may sustain some damage by the plaintiff not tendering that surplus. This would be unjust. He is bound to convey, and he may then resort to his action if a surplus should be found to ■exist upon the appraisement.”

The principle decided, and the reasoning adopted, apply strongly to the case under consideration.

The mutual covenants go only to a part of the consideration. •More than $11,000 was actually paid, and additional payments were to be made or secured, provided the land should be valued • •at an amount greater than what was then paid. In this case it may be said that the damages .would be unequal if the covenant of the plaintiff was held to be a condition precedent. He would lose his $11,000, *and Graham might not lose anything. In this case the'plaintiff has in part (at least) executed the bargain -by the payment which he has made, and in this case had Graham, .at the end of the year conveyed the land, and had the plaintiffs refused to secure the payment of the surplus, he might have had his action to receive that surplus.

If the cases cited are law (and the principles by them decided appear to be consistent with reason, justice, and common sense), I should be led to the conclusion that the covenants in the case before the court must be regarded as independent. But as the decision of the court upon the motion for a nonsuit is not founded upon this idea, it is unnecessary to give a definite opinion upon the point. 'The defendant contends that the covenants are dependent, or, at least, that they contain mutual conditions to be performed at the ■same time. The plaintiffs in their declaration have thus treated them, and have alleged performance on their part, or a readiness and offer to perform. Upon the trial, these averments in the declaration were not proven, and if by the .pleadings they were properly put in issue, the motion for a nonsuit should have prevailed.

Whatever is admitted in pleading need not be proved, and whatever is not denied may be considered as admitted. In covenant greater strictness is required in pleading than in most other actions. If the defendant relies upon matter of excuse for the nonperformance of his covenant, he must plead it specially. If he would excuse himself on the ground that the plaintiff hath hot performed a condition precedent, this must be pleaded specially. 1 Chitty’s Pleading, 483. This form of pleading is adopted in the books, and I find no case where the plaintiff, for the purpose of supporting his action merely, has been compelled to prove the performance of a precedent condition, unless the fact of performance was in some shape denied by the plea. "If the defendant relies’ upon his own performance, it must be specially pleaded, and under this plea I presume it will not be contended that the plaintiff would be bound to prove the performance of a precedent condition. The performance of the defendant, and not of the plaintiff, is the thing in issue, and for the purpose of trying that issue the performance of the plaintiff is admitted.

*In the present case the plea is non est factum. "What is put in issue by this plea? Counsel for defendant say that this is a general issue plea, and that a plea of the. general issue puts the plaintiff upon proof of all the material averments in his declaration. This, as a general rule, is undoubtedly correct. But in some actions, it is said in the books, there is no general issue. And in some actions the general issue plea is not considered as a denial of all the allegations of the declaration. In replevin, for instance, the plea of non cepit puts in issue nothing but the taking of the property. Under that plea the plaintiff is not bound to prove any interest in the property taken. Yet this is a general issue plea; and what is denied in an action of debt or covenant by the plea of non est factum, except the sealing and delivery of the deed upon which the action is founded. Cbitty, in his treatise on Pleading, vol. 1, p. 116, says that this plea puts nothing in issue but the sealing of the deed; and Espinasse, in his Digest, 306, that the issue is only upon the existence or goodness of the deed. For this dictum he cites 2 Black. 1152. The doctrine laid down by Chitty and Espinasse is supported by this and other adjudged cases. Muscett v. Ballet, 2 Cro. 369; Bishop v. Brook, Com. Rep. 303; Gardner v. Gardner, 10 Johns. 47, are full in point, so that the counsel for the defendant must be mistaken in supposing that this is a denial of all the material averments in a declaration, for most declarations in covenant contain other averments than the single allegation of the sealing and delivery of the deed. But are not these ojúnions and decisions consistent with reason and common sense ? One principal object of pleading is that the parties may have notice of the grounds of complaint and defense upon which they severally rely. The plaintiff in his declaration alleges, among other things, that the deed declared on is the deed of the defendant. To this declaration the defendant pleads non est factum; in other words, he denies the existence or goodness of the deed. By this plea he apprises the plaintiffs that he shall contest the validity of the deed in some way; but does he apprise him of any other defense? Under this plea the defendant may show that the deed was void at common law ab initio; that it was delivered as an escrow, or that it became void Rafter it was made, and before the commencement of the suit, by erasure, interlineation, alteration, etc. Evidence of this description the plaintiff must expect to meet. But would proof that the plaintiff had not performed a precedent condition in the same deed by him to be performed, be evidence that the deed was not the deed of the defendant; or would it destroy its validity? Evidence of this description under a proper state of pleading might and would destroy the plaintiff’s right of action, but would not prove that the deed was void. This idea, with respect to the operation and effect of the plea of non est factum, seems to have been generally entertained by pleaders, and therefore, in many instances, we find this plea connected in the same case with a special plea that a plaintiff has not performed a condition precedent. If a plea of nonest factum put such performance in issue, such practice would not have been introduced. And it is because the operation of this plea is thus limited, and because there is no one plea that puts in issue every material allegation in a declaration in covenant, that some writers on the subject of pleading have said that in this action there is, properly speaking, no plea of the general issue.

In the case under consideration, the defendant having pleaded as before stated, the cause was submitted to the jury. The plaintiffs introduced in evidence the deed, the validity of which was not questioned. He introduced further evidence to prove the amount of damage sustained. The testimony, was competent, and having it before them, the jury could not have found that the deed was not the deed of the defendant, but must of necessity return a verdict for the plaintiffs upon the issue joined; and the court could not with propriety have directed a nonsuit.

Having disposed of the question upon the point reserved, I will now proceed to consider the motion for a new trial.

On the trial of the cause, the counsel for defendant insisted, that by a just construction of the contract, Cincinnati was the place where the same should have been performed. And as plaintiffs had neither averred in -their declaration, nor shown in proof, that they were ready, either by themselves or agents at Cincinnati, to perform or accept a performance from the defendant, therefore, they were not entitled *to recover, or, if entitled to-recover, could only recover nominal damages. The court, however, were of opinion, and so instructed the jury, that the plaintiffs, under the pleadings, were entitled to recover the full amount of damages sustained. It is said that in this opinion the court were mistaken. As to the rights of recovery, sufficient has already been said. If. the declaration was defective, this should have-been taken advantage of by demurrer, or (if the defect was not cured by verdict) by motion in arrest of judgment. By craving oyer, the deed itself might have been made a part of the record. The defendant having relied upon the plea of non est factum, and the issue being found against him, no sufficient reason can be assigned why the plaintiff should not recover the damages proven to have been sustained. These damages were the value of the merchandise delivered, estimated at eleven thousand four hundred and eighteen dollars and thirty-two cents. This amount was sought to be recovered, together with the interest, and to this they had a right.

An attempt has been made to assimilate this case to a case standing on default. The reason assigned for this similarity is, that the plea was not sworn to according to the statute. But in this case, as well as every other where a plea is filed, there was an issue to be tried. That issue must be found either for plaintiffs or defendant. In a case standing on default, the jury have nothing to do but to assess the damages.

That the defendant did not rely for his principal defense upon the plea filed,, we may well conclude, from the circumstance that several notices are attached to and connected with the plea. The-principal object of pleading non est factum seems to have been to lay the foundation for giving notice, and to save the trouble of special pleading with technical precision. These notices are, in substance, that the defendant will, on the trial, prove performance, tender of performance, readiness and offer to perform, etc., and also that the plaintiffs refused on demand to deliver the goods and merchandise which had been selected, and that the merchandise delivered was of less value than eleven thousand four hundred and eighteen dollars and thirty-two cents. In sui^port of the notice connected with his plea, the defendant gave in evidence the facts particularly set forth in the ^motion, and the court instructed the jury as therein stated. Was there anything incorrect in this opinion, or any mistake as to matter of law ?

The first position of the court was, that no continuance of possession for any time less than where the statute of limitations would operate to bar a recovery in ejectment, was sufficient to-warrant the presumption of a deed. The authorities cited by counsel show that continuance of possession for a less period of time, accompanied by other circumstances, might be sufficient to warrant this presumption. In Bealy v. Shaw and others, 6 East, 215, Lord Ellenborough says, “ I take it, that twenty years exclusive .enjoyment of the water in any particular manner, affords a conclusive presumption of right in the party so enjoying it, derived from grant or act of Parliament. But less than twenty years enjoyment may or may not afford such a presumption, according as it is attended with circumstances to support or rebut the right.” From this I infer, that possession alone would not be sufficient to warrant the presumption, unless continued for twenty years; and, if so, the court were correct. The possession under Dayton had continued for more than twenty years, and this possession was accompanied by circumstances which would justify the jury in presuming, and they probably did presume, a title in that individual. But suppose the expression used by the court upon this point was not sufficiently guarded, or even that thei'e was a mistake as to the law, could this circumstance have made any difference in the final decision of the case ? If it would not, to grant the motion for a new trial would be worse than useless.

The next position assumed by the court was, that if the title was found to have been in Dayton, then no title would be sufficient to satisfy the terms of the contract, except a complete connected paper title from Dayton to the defendant, Graham. By the terms of the contract, Graham covenants that he will “ by a good and sufficient deed of conveyance and assurance in the law, well and sufficiently, grant, convey, and assure the aforesaid tract of land, with the appurtenances, unto the said Andrew Courcier and Frederic Ravises, their heirs and assigns, in fee simple, clear of all incumbrance, the title to the same to be indisputable.”

*The evidence adduced and admitted by the court showed a paper title from Dayton to Riddle, and from Yanhorne to the defendant. What was there to prove title in Yanhorne? Possession, and nothing but possession, unless it be the fact that he was putin possession by Riddle. This fact hardly conduces to prove title, Graham, then, could trace his title back no further than to Yanhorne, whose only evidence of title consisted in a possession commenced in 1803, and which, at the time of the tender, had continued in himself and those claiming under him for about eleven years. Under these eircumstanees, had Graham conveyed the land to the plaintiffs, and had they accepted the conveyance, would it have vested in them.a “title to the same indisputable?” Most clearly it would not. Here was an important link wanting in the chain of title From the evidence before the jury, the fee was vested in Riddle. And had Riddle commenced his action of ejectment against Graham, the latter would have been without defense. Will it be said that Riddle would have been estopped by his deed attested by one witness ? It must be recollected that this deed was not in evidence. It had been excluded by the court, and there was nothing submitted to the jury to prove that the title had ever passed from Riddle. In this situation of the case, I can have no doubt that the court were correct in instructing the jury that there must be a complete connected paper title from Dayton to Graham, to satisfy the terms of the contract.

The deed from Riddle to Yanhorne was properly excluded. By the first section of the act providing for the execution and acknowledgment of deeds, passed February 14, 1805, it is provided that all deeds for the conveyance of lands, etc., “ shall be signed and sealed by the grantor, in the presence of two witnesses, who shall subscribe the said deed of conveyance, attesting the acknowledgment of the signing and sealing thereof,” etc. This law was in force at the time the deed from Riddle purports to have been executed. This deed was defective, inasmuch as it was attested but by one witness. The law was not complied with. It could convey at most only an equitable interest. The plaintiffs were to receive a legal estate, free from incumbrance, the title to which should be indisputable. This *deed did not convey such an estate; of course, it could not be received in evidence.

On the subject of damages, the jury wore instructed that the price fixed upon the merchandise in the covenant must be the governing principle, and that it was not competent for the defendant to contest the justness of the price. In this opinion it is insisted that the court mistook the law, and the case of Basten v. Butler, 7 East, 479, is relied on as an authority to show this mis» ■take. In that case the plaintiff declared as upon a quantum meruit, for work and labor done and materials found. There had been no previous contract as to the price to be given, and the claim rested solely upon the worth or value of the work. The court decided that it would be proper to permit the defendant to prove that the work was less valuable than claimed to be by the plaintiff; and they go so far as to intimate that when there has been a particular price agreed upon, for which work and labor shall be done, the defendant having given notice, may show that the materials arc bad and the work defectively done. But in cases of this description, the decisions have been variant, although the rule appears to •be finally settled, as stated by Lord Ellenborough in Farnsworth v. Garrard, 1 Campbell, 28: “ That if there has been no beneficial service, there shall be no pay; but if some benefit has been derived, though not to the extent expected, this shall go the amount ■of the plaintiff’s demand, leaving the defendant to his action for •the negligence. The claim shall be co-extensive with the benefit.”

The case of Basten v. Butler would, in some degree, compare with the case before the court were this a quantum valebant, and ■had there been no previous agreement as to the price of the goods. In this case, however, the goods were estimated at a specific price. This price was agreed upon by the parties. The defendant agrees to pay this price at a future period in land if he is satisfied with the valuation. The valuation is made, and he assents to it; but he fails to make the conveyance, and thus remains debtor for tho goods. No fraud was practiced; none was pretended. He agreed •to the price of the goods with a full knowledge of their character; and it is not competent for *him now to say that they were ■of less value. There must be judgment on the verdict.

Judges Pease and Sherman concurred.

Judge Burnet, having been counsel with Graham,- did not sit in ■this cause.


author: By the Court : Judge Burnet’s

text:
    Elisha Fitch v. Eli Sargeant.

      Special Contract.

    'When a special contract is put an end to by act of the parties, the plaintiff' may recover on general counts.
    This was an action of assumpsit. The first count in the declaration stated in substance that, in consideration that the plaintiff, at the request of the defendant, had before that time leased and let to the defendant a certain house and lots of ground in the town-of Pike, for the term of one year, together with the ferry and boat hear said town, the defendant promised to take proper care of the premises,' to attend the ferry, and pay the plaintiff as rent therefor a large sum of money, to wit: The sum of two hundred and twenty-five dollars.
    The second count, after stating the contract the same as in the first, alleged a promise to pay the plaintiff for the enjoyment of the premises so much as he reasonably deserved to have, etc. Thedeclai’ation also contained general counts. The breach alleged was injuring the premises and non-payment of rent. The defendant pleaded the general issue, with a notice of special matter.
    The contract, as proved by the plaintiff’s witnesses, was that-Fitch rented to Sargeant the house, lots, and ferry, for one year, at $200. That the defendant said if he made enough to enable him to pay more rent he would, do it; bat $200 was the rent agreed upon. The plaintiff also proved that the property had been abandoned by the defendant before the expiration of the year, and had received some injury.
    The defendant proved that after he took possession of the-premises and ferry, the lessor’s right to the ferry was decreed by the court of common pleas to another person, and the lessee was entirely deprived of the use of the ferry. *Upon which the defendant sent the plaintiff notice that as he had lost the ferry lie could not remain in the house and pay the rent, but should leave it. The plaintiff directed a third person to take charge of the house if the defendant should abandon it. The defendant soon-after left the premises, and they were taken charge of by the person spoken to by the plaintiff.
    The defendant moved the court to direct a nonsuit upon tho ground of variance between the contract laid in the declaration and that proved. But the court directed the cause to proceed, and the jury found a verdict for the plaintiff for an equitable proportion of the rent, taking into consideration all the circumstances.
    The cause was tried in Pike county before Judges Hitchcock and Burnet. The defendant moved for a new trial upon the ground of misdirection in refusing to direct a nonsuit, and the motion was adjourned here for decision.
    Creighton and Bond, in support of the motion:
    In an action of assumpsit, upon a special contract, the declaration must state the contract truly and correctly. A material variance is fatal. Ld. Raym. 735; 2 East, 2, 4, note A; 1 Bos. & Pul. 351; 2 Bos. & Pul. 116.
    The declaration sets out a positive, unconditional agreement to lease the house, lots, and ferry, for one year, at $225. Tho proof is an agreement to lease for $200, and to pay more if the profits of the business will justify it. Here is a material variance: 1. In the sum agreed to be paid; and 2. In the omission of the contingency upon which a greater sum was to be given.'
    The plaintiff can not recover upon the special agreement laid in his declaration, because he has not proved it. He can not recover -upon his general counts, because he has proved an open subsisting special agreement, under which his right to recover arises, and upon which he must proceed. This contract has not been executed by the parties, or put an end to, or abandoned; for when the defendant left the premises, it was no abandonment of the contract; on the contrary, he proceeded upon the proposition that the contract was still in force; that the plaintiff was unable-to *make it good ; and that therefore, by its terms, he was not required to proceed in further executing it.
    The court ought to have directed a nonsuit, and not having done so, a new trial should be granted.
    Douglas, for the plaintiff:
    There is no material variance between the declaration and proof; the $225, as the rent of the ferry, is laid under a videlicet. In ibis form of pleading the party is not confined to any particular sum. No case can be cited where, upon a general count, the party was confined to it without a scilicet. This count is in its nature .general, as well as the one succeeding it.
    In the case of Arnfield v. Bate, 3 Maule & Selwyn, 174, Lord Ellenborough observes; “ And though the two sums came very near to each other, yet that would not help the plaintiff; but he ought to have laid the sum under a videlicet, and then he would not be bound by any particular sum." In the case of Durston v. Tuthun, there cited, is full to the same point.
    Nor does the contingency of paying a greater sum, if the profits of the ferry would justify it, alter the state of the case. This being not specified, could well be recovered under the general •counts.
    In the case of Baptiste v. Cobbold, 1 B. & P. 7, plaintiff declared upon an agreement for 521. 10s. rum money, and gave in evidence a note for that sum, with an additional stipulation of a pint of rum per day; it was held to be no variance.
    2. If the contract was put an end to, the authorities are clear that the plaintiff is entitled to recover upon a quantum meruit; •here the act was on the part of the defendant.
    The rigid rule which formerly obtained upon the subject of special contracts and general counts, has been deservedly compared to the inflexible one of non-amendment in former ages. The progress of the science has relaxed it. The rule as now settled is: “ That when the terms of a special agreement to do a certain thing for a certain sum, have been performed by the plaintiff, the law raises a duty in the defendant, for which indebitatus assumpsit will lie.” Kelly v. Foster, 2 Binney, 4; Jacobson v. Ex’rs of Legrange, 3 Johns. 199.
    *Where the act is consummated, let it be never so special, the law varies the duty, and such will be found to have been the general course of dccision. The cases cited by defendant’s counsel were upon executory contracts, and the confusion seems to have arisen from the want of a due consideration to contracts executory, and contracts executed. The case of Penny v. Porter, 2 East, 2, is a leading case upon the subject, but it was for breach of an open contract in not delivering wheat. In Kelly v. Foster, Chief Justice Tilghman, after a full view of the authorities, observes, “that he is always glad to find authority for supporting the verdict of a jury, where the merits appear to have been fairly before them,., and for supporting that kind, of pleading which is attended with the least difficulty.”
   By the Court :

A majority of the judges are of opinion that the special contract was put an end to by the concurrent act of the parties. The defendant sends word to the plaintiff that he can no longer retain the possession of the premises, but intends to abandon them. The-plaintiff directs a person, in the event of such abandonment, to take charge of them. After this, the defendant leaves the house- and lots, and the possession is resumed by the plaintiff. The special contract is thus given up, and the right of the plaintiff to-recover rent for the time the defendant enjoyed the premises must-be decided by the same rules as if the possession had been originally taken upon an understanding that the defendant should pay what was reasonable. The verdict of the jury is founded upon this view of the subject. Substantial justice has been done between the parties, and a new trial ought not to be granted.

Judge Burnet’s

dissenting opinion:

I dissent from the opinion of the court, given in this case, from-a conviction that the variance between the contract proved, and that set out in the declaration, is material and fatal. The sum laid-in the declaration, as the consideration of the lease, is $225. The-sum proved by the witnesses is $200 certain, and more if the defendant could afford it.

*1 do not perceive any resemblance between this case and those cited by the plaintiff. This contract has not been performed by either party. Eitch did not secure to Sargeant. the use of the-ferry for the term stipulated, in consequence of which Sargeant. left the premises before the term expired, under a belief that he had a right to do so. The contract is open, and the question between the parties seems to depend on its legal import, and the-effects of their acts under it. The plaintiff contends that he has a right to recover the full amount of rent stipulated to be paid for the term, and also damages for breach of the engagement to keep the premises and boat in repair, and to deliver them in good order. The defendant contends that, in consequence of the loss of the-ferry, lie was not bound to perform on his part, and that he is not answerable for rent or damage.

I do not see how these questions can be settled on the general •counts, or how such questions could exist, if the contract had been either abandoned or performed. If the plaintiff had proved the •contract precisely as he has stated it, the subject of controversy would have been the loss of the ferry and the damage done to the property, and whether the former exonerated the defendant from the payment of the whole or a part of the rent, and whether the latter entitled the plaintiff to damages, and, if so, to what extent?

These questions arise out of the contract, and must be determined by a reference to it. Their existence shows that the contract is •open and disputed, and the variance between .the contract charged, •and that proved at the trial, shows also that the terms of the contract are disputed.

I know of no exception to the general rule that a contract open and disputed must be declared on specially. As Eitch was bound to secure to the tenant the use of the ferry for the whole term, when, he failed to do so, he broke the contract. The defendant has also failed to perform it, by losing the boat, injuring the property, and withholding the rent, or a part of it; consequently, neither party has performed. The removal of Sargeant from the house, before the expiration of the term, was no abandonment of the contract; it was neither more nor less than a declaration that, having lost the ferry, he was not bound to perform, the *correctness or incorrectness of which depends on the terms of the contract. This fact does not assimilate the case to that class of cases in which the plaintiff abandons and sues to recover back his deposit, nor to the cases in which the plaintiff, having fully pei*formed, resorts to his general counts.