text:
    William Dickhut, plaintiff in error, vs. Thomas Durrell, defendant in error.

      Error to Adams.

    Where a motion for a new trial was made in the Court below and overruled, the evidence embodied in a bill of exceptions, but no allusion made in the bill to the motion or decision of the Court thereon, the decision of the Circuit Court, in overruling the motion, will not be reviewed by this Court.
    Where a bill of exceptions was signed and filed several days after the trial took place, embracing the evidence and instructions of the Court, and concluding, “ To all of which said defendant excepts,” no error predicated upon such bill can be noticed by this Court.
    A party, to avail himself of an exception to a decision of the Circuit Court, must take the exception at the time the decision is made; and the bill of exceptions must affirmatively show that it was taken at that time.
    This Court will not presume that an exception was taken at the proper time, merely because the Judge who tried the cause has signed a bill of exceptions, when the bill does not show upon its face at what time the exceptions were, in fact, taken.
    An established rule of practice, which has been acted upon for several years, ought not to be changed, even admitting that at the beginning it would have been better if a different rule had prevailed.
    Where a demurrer is sustained to a plea, and the defendant is required to answer over, and he docs file other pleas, the demurrer is waived, and the decision upon it cannot be assigned for error.
    To an action on a covenant for the delivery of a specific quantity of lumber, the party relying on a performance of his covenant, must in his plea aver that he was ready and able to deliver the lumber at the timo and place mentioned in the covenant.
    An averment that the covenantee was then and there informed and advised that the lumber was ready for him, is insufficient.
    This was an action of covenant instituted in the Adams Circuit Court, by the defendant in error against the plaintiff in error, upon a sealed agreement of the parties, in substance as follows, viz1:

      “That the said Thomas Durrell agrees to raft at Hill’s mill, on the Wisconsin river, 110,000 feet of pine lumber,which belongs to said William Dickhut and Robert Bennison, and to deliver said raft, in good order, on the wharf at the city of Quincy, as soon as the same can be done; all at the expense and charge of the said Durrell. In consideration of which the said Dickhut agrees to pay the said Durrell $ 370, when said lumber shall be delivered as aforesaid.
    “William Dickhut, (seal.)
    “Thomas Durrell, (seal.55)
    The declaration contained two counts, which are substantially alike, and contain the following averments :
    “ And although the said Durrell hath well and truly performed and fulfilled all and singular the covenants in the said agreement mentioned, on his part and behalf to be done and performed, and did, as soon as soon as the same could be done, to wit, on the 4th day of April, 1840, provide, at his own expense and charge, a sufficient number of hands to raft 110,000 feet of pine lumber from Hill’s mill, on the Wisconsin river, and to deliver the same, in good order, on the wharf at the city of Quincy, and proceeded immediately, to wit, on the said 4th day of April, 1840, to said Hill’s mill, on the Wisconsin river, and demanded said 110,000 feet of pine lumber, and was ready and willing, and offered to raft the same from said Hill’s mill, on the Wisconsin river, and to deliver the same, in good order, on the wharf, at the city of Quincy, as soon as the same could be done—all at the. expense and charge of him, the said Durrell, yet protesting that the said Dickhut hath not performed and fulfilled any thing in the said article of agreement mentioned on his part and behalf to be done and performed. The said Durrell, in fact, saith, that the said Dickhut, after the making of said article of agreement, wholly failed and refused to furnish to him, the said Durrell, the said 110,000 feet of pine lumber at Hill’s mill, on the Wisconsin river, to be rafted by him, the said Durrell, to the city of Quincy, although the said lumber was demanded by the said Durrell at the said Hill’s mill, to be rafted as aforesaid, and hath wholly failed and refused to pay to the said Durrell the said sum of $370, as he had covenanted to do, and still doth refuse,” &c.
    The defendant, Dickhut, appeared to the action, and pleaded, in the first instance, four pleas: 1st, non est factum, upon which issue was taken. 2d, a plea of general performance, in the usual form, to which plaintiff demurred, and defendant confessed the demurrer. 3d, a plea alleging that when plaintiff arrived at Hill’s mill, the 110,000 feet of lumber was ready to be delivered to the plaintiff, and was offered to the plaintiff, and he refused to receive and raft the same, &c. A replication was filed, traversing the facts stated in the plea, and issue was joined thereon. 4th, a plea in these words : “ And for further plea, &c. plaintiff actio non, because he, the said defendant, says that when the said plaintiff arrived at Hill’s mill, on Wisconsin river, there was then and there ready for delivery to him a large quantity of pine lumber, to wit, 30,000 feet, and that said lumber was then and there offered to the said plaintiff, and he was then and there requested to take the same to be rafted and delivered according to the terms of the covenant aforesaid; and said plaintiff was then and there informed and advised that all the balance of said 110,000 feet of lumber should be furnished and delivered to him, the said plaintiff, as fast as he could raft the same; Rut the said plaintiff then and there wholly refused apd neglected, and hath ever since refused and neglected, to raft said lumber and deliver the same to the said defendant,” &c.
    To this plea a replication in these words was filed : “And the said plaintiff1 says precludi non, &c., because he says he did not refuse to receive and raft the said 110,000 feet of lumber, in manner and form,” &c.
    Defendant demurred to this replication, and the Court sustained the demurrer to the fourth plea, and the order of the Court was, “that the defendant do further answer to the said plaintiff’s declaration.”
    The defendant thereupon filed his pleas numbers 5 and 6. These pleas averred that the defendant was ready to furnish,, and did offer to furnish, the 110,000 feet of lumber at Hill’s mill, &c., to the said plaintiff, &c., upon which issues were joined.
    The cause was tried on the third day of March, 1842, upon the issue joined as hereinbefore set forth, before Justice Douglas, and a jury, when a verdict was rendered in favor of the plaintiff for the sum of $ 284 25, damages, and a judgment pronounced thereon. A motion for a new trial was made on the 9th day of March, 1842, overruled, and a bill of exceptions taken and filed at the time the motion for a new trial was overruled.
    The bill of exceptions sets out all the evidence, and instructions asked and given on the part of the plaintiff, and numbered
    1 to 5, and concludes as follows, viz : “ To all of which the said defendant, by his counsel, excepts, and prays that this his bill of exceptions may be signed, sealed, &c.” No mention is made of a motion for a new trial, and no exceptions other than in the manner above named were taken to the instructions of the Court.
    The errors relied upon are:
    1. Overruling defendant’s motion for a new trial.
    2. Giving the instructions asked by plaintiff.
    3. Sustaining demurrer to plea No. 4.
    Williams & Lawrence, for plaintiff in error:
    As to the construction of the contract: Watts vs. Shephard, 2 Ala., 425; McGeecher vs. Hill, 1 Ala., 140; Young vs. Foster, 7 Porter, 420.
    As to the bill of exceptions : The bill of exceptions was filed in this case upon the overruling of the motion for a new trial, as stated in the order of the Court, and the exception is stated in the present tense. The reasonable intendment is that the exceptions were seasonably taken. Harlow vs. Humiston, 6 Cowen, 189; Wakeman vs. Lynn, 9 Wend., 242. In any event, now that a decision overruling a motion for a new trial can be assigned for error, It is in season to except to the instructions upon the decision of such motion. There are but two cases in our reports which look to the contrary: 2 Gilman, 293; 3 Scam., 17. The case in Gilman we regard but as a dictum; ( as the Court reversed the judgment on other grounds,) which dictum is placed on the authority of the case in Scammon. The case in Scammon is also but a dictum of the Judge who delivered the opinion, the counsel in that case not having assigned for error the instructions of the Court, and not having made those instructions a ground for a new trial in the Circuit Court. The fact that these instructions were not made a ground for a new trial in the Court below, is first given in the opinion of this Court as the reason for refusing to consider those instructions. We therefore deem ourselves at liberty to say, that these cases are not authority, and that the question is still open to be examined upon principle.
    The original rule as to taking exceptions at the trial, applied only to exceptions to evidence. Wright vs. Sharp, 1 Salkeld, 288—9; 2 Tidd’s Practice, 863; Bacon’s Abridg., title, “ Bills of Exceptions.” It has been held in numerous cases that exceptions may be alleged to instructions of the Court, after the verdict is returned, but before it is pronounced in open Court. 1 Binney, 38; 4 Dallas, 249; 10 J. R., 312; 5 Monroe, 177; 8 S. & R., 211. The distinction as to taking exceptions before and after verdict is practically abolished in this state, by the law alleging exceptions to the overruling of a motion for a new trial; and the bill of exceptions in this case was filed in Court on the decision of such a motion, and one of the grounds of the motion was the erroneous instructions of the Court. The following cases are to the point: 4 Bibb, 278; 9 Conn., 545; 7 Watts & Searg., 172, quoted 1 Sup. to U. S. Dig.; 5 Smedes & Marshall, 51; 3 Pick., 173. See, also, 8 Cowen, 707-8-9, showing how anxiously an appellate Court will devise means of overcoming technical objections, where there is manifest error on the face of the record.
    (We annex comments on the authorities cited by the counsel for the defendants in error.)
    Comments on cases cited by defendants:
    The case of Clemson vs. Krupper, Breese, 162, merely decides that a refusal to grant a new trial cannot be assigned for error. The bill of exceptions was to the evidence, and not to the instructions. The Court further say, that if the counsel mistook the law in regard to bills of exceptions, it might be ground for relief in a Court of Equity. Rather strange doctrine. In the case of Snyder vs. Lapamboise, Breese, 270, in which there was a bill of exceptions to evidence, the evidence not being excepted to at the time, the Court say, in regard to the inadmissibility of the evidence, that “were there no other objection to the judgment, the Court might well doubt whether they ought to interfere,” and then, proceed to reverse the judgment, because the instructions were wrong. The case of Gilmore vs. Ballard, 1 Scam., 253, merely remarks generally that an exception must be taken on the trial, and is. decided wholly upon the ground that the cause having been tried by the Court, and no motion having been made for a new trial, the Supreme Court could not review the evidence. Leigh vs. Hodges, 3 Scam., 17, is the opinion of Judge Brees e already commented upon, where the misdirection of the Court had not been made a ground for the new trial below. In Miere vs. Brush, 3 Scam., 23, the record recited that, c5on the 18th day of August” (after the term) “ the defendants filed in the clerk’s office their bill of exceptions,” and the Court say, “ it no where appears on the record that they alleged any exception whatever to any decision of the Court.” The case of Gibbons vs. Johnson, 3 Scam., 63, was where the bill of exceptions was not taken till two days after the judgment. In the case of Vanderbilt vs. Johnson, 3 Scam., 50, the record did not show upon what grounds the motion for a new trial was made in the Court below, or that the affidavit in the record had been brought to the notice of the Court on hearing the motion, or that an exception was taken to the decision of the Court, which the Court say should have been done for the purpose of incorporating the affidavit, and other evidence relied on, in their bill of exceptions. The case of Heaton vs. Kemper, 2 Scam., 367, was precisely like the case at bar: the bill of exceptions appearing as to form, and the time when taken, and in all other particulars, to be identically like the one in this case, and the court do consider the instructions and pass upon them. In Cummings vs. McKinney, 4 Scam., 59, the Supreme Court did consider and pass upon a bill of exceptions taken after the overruling of a motion for a new trial. In Saunders vs. McCollins, 4 Scam., 419, no bill of exceptions of any sort was taken. The case of Barnes vs. Barber, 1 Gilm., 408, has not the remotest application to the case at bar. In Wren vs. Moss, 1 Gilm., 560, the Court reversed the judgment, because the Circuit Court had refused an instruction, though it is not stated in the case that the refusal to instruct was excepted to at the time. In Miller vs. Dodson, 1 Gilm., 574, the Court merely say that the refusal of the Circuit Court to grant a new trial, cannot be inquired into, as no exception was taken, and that the record showed no reason for granting a new trial. The case of Hill vs. Ward, 2 Gilm., 293, is the one already commented upon, and contains, as we deem, but a dictum of the Court referring to Judge Breese’s dictum in Leigh vs. Hodges, 3 Scam., 17, already referred to, for authority.

      These are all the cases in our reports, except 5 Gilm., 456, noticed below, referred to by the counsel for the defendant; and it will be perceived that there are only two of them (Leigh vs. Hodges, 3 Scam., 17, and Hill vs. Ward, 2 Gilm., 293,) which even refer to the question as to whether the instructions of the Court may not be made the ground of a motion for a new trial, and presented to this Court upon the decision of such motion, though the instructions may not have been excepted to at the time they were given.
    In Evans vs. Fisher, 5 Gilm., 456, another case cited by defendants, the Court merely say that a bill of exceptions should,, appear on its face to have been taken at the trial, but the Court refuse to strike the bill in that case from the record, because it had been prepared and signed after term. In Sheppard vs. Wilson, 6 Howard, U. S. Rep., the Court decide that the Supreme Court of Iowa committed no error in rejecting a bill of exceptions, taken and purporting on its face to have been taken over two years after the trial of the cause. In Line vs. Evan, 1 Pike, 358, the Court merely decide that the pleadings should not be put into a bill of exceptions, and state truly the object of a bill—to preserve the evidence. In 2 Pike, 20, there was no bill of exceptions setting out the evidence in the case, but only notes of the evidence, which the Court refused to consider. In Walton vs. The U. States, 5 Cond. Rep., 721, the exceptions were to the evidence, and the Court say that the exception should be taken at the.trial; but in this very case the Court, before remarking this, had considered the evidence, and decided the case upon the merits. In 3 Pike, 452 and 461, the bill of exceptions was filed the day after judgment was entered, and considered a good bill. In the case in 3 Howard’s Miss. Rep., 117, a motion had been made in the Court below for leave to withdraw a plea on affidavit. The bill of exceptions did not state the motion, and it was brought before the Supreme Court only by affidavit. The Court decide that the motion should have been presented in the bill. In this case there was a bill taken, after a motion for a new trial had been overruled, and the Court considered the questions presented by it. In 1 Howard, 126, the instructions had not been excepted to when they were given, and no motion for a new trial had been made.

      Browning & Bushnell, for defendant in error:
    1. An agreement will be construed with reference to extrinsic circumstances surrounding the transaction, and the situation of the parties, and the subject matter of the contract. Sayer vs. Peck, 1 Barb., 464; Hasbrook vs. Paddock, 1 Barb., 635, 638-9; Brown vs. Slater, 16 Conn., 192. The language used by one party in a contract is to receive such a construction as he supposed the other party would give to it, or such construction as the other party was fairly justified in giving it, and where equivocal words are used, they are to be taken most strongly against the party using it. Gunnison vs. Bancroft, 11 Vermont, 490; Evans vs. Saunders, 8 Porter, 497; Hawes vs. Smith, 3 Fairf., 429. Words in a contract will be construed to give effect to the contract, and so as to meet the real intention and understanding of the parties. Thrale vs. Newall, 19 Vermont, 202; Ferguson vs. Coleman, 3 Richardson, 99; Wilson vs. Jones, 8 Alaba., 536; Russel vs. Nicoll, 3 Wend., 118.
    2. The representation in the contract is, that Dickhut & Bennison had lumber at the mill at the time of the contract. It does not represent that they would thereafter have the lumber sawed, or that they had a contract for lumber at the mill and were to have it at a certain time, but that they actually had it there. It did not appear even that the lumber was sawed or was to be sawed at that mill, or that it had any connection with the mill, except as the point at which their then lumber was located. Lumber at the mill in gross, to be sawed by the mill owners, and to be delivered to them; was not their lumber till actually measured and set apart for them; and if Hill had had a contract to deliver the lumber at the mill at a day named, it would still have remained Hill’s so long as it was mixed up with other lumber. That Durrell was to go and get the lumber “ as soon as it could be done,” shows that the understanding was that Durrell was to find the lumber there. Barnes vs. Graham, 4 Cow., 452; McDonald vs. Howell, 15 John., 351; Russell vs. Nicoll, 3 Wend., 112, 118. There is no .proof whatever that there was even an offer to Durrell to furnish him with the 110,000 feet of lumber belonging to Dickhut & Bennison, whose lumber alone he had contracted to raft. Proof that there was sufficient lumber in quantity without proving it was the lumber of Dickhut & Bennison, was not sufficient. Cobb vs. Williams, 7 John., 24; Newton vs. Galbreath, 5 John., 119; Barnes vs. Graham, 4 Cow., 452. By the contract the lumber was to be there ready for him. Diekhut was bound to see that it was all there. Full performance in this respect was required of him. Rice vs. Churchill, 2 Denio, 145; Hammond vs. Gilmore, 14 Conn., 479, 485; Kimball vs. Grover, 11 N. H., 376. And Durrell was not bound to accept any of the lumber till it was all ready. He was not bound to accept of a part performance. Davenport vs. Wheeler, 7 Cow., 231; Cobb vs. Williams, 7 John., 24; Bruce vs. Pearson, 5 John., 535; Russell vs. Nicoll, 8 Wend., 118; Wilcher vs. Hale, 11 Eng. Com. Law, 224. If Diekhut did not have the lumber there, but expected to have it there on demand, or in a reasonable time on demand, so that Durrell would have to wait, he should have so informed Durrell. But in requiring peremptory movements of Durrell, he clearly did not expect any delay. If he represented the lumber as then being there, and he had at the time known the fact, it would have excused Durrell from any attempt to perform his contract. Harrington vs. Wills, 12 Vermont, 505, 509; Boodell vs. Parsons, 10 East., 359. Nor can Diekhut, having set up a complete performance by his plea, show any excuse or waiver of performance. Davenport vs. Wheeler, 7 Cow., 231.
    But the questions sought to be raised in this case do not properly arise on the paper in the case called a bill of exceptions. It was signed and filed several days after the trial. It does not purport to be on exceptions taken at the time of the occurrences, nor is the motion for a new trial, the overruling of which is now assigned for error, even noticed or alluded to in the bill of exceptions. Exceptions to evidence must be taken as soon as the Court decides to admit or reject it, though the exception may be reduced to form afterwards. Pool vs. Fleeger, 11 Pet., 185, 211; Ex parte Bradstreet, 4 Pet., 102. A party cannot assign for error the admission of testimony to which he did not except. Sawyer vs. City of Alton, 3 Scam., 129; Smith vs. Moore, 3 Scam., 464; Scott vs. Floyd, 9 Pet., 441. The giving or refusing instructions must be excepted to at the time, and if not done, no exception can be taken to the decision of the Court in giving or refusing instructions, on a motion for a new trial. Hill vs. Ward, 2 Gilm., 293; Leigh vs. Hodges, 3 Scam., 15; Gibbons vs. Johnson, 3 Scam., 63; Gilmore vs. Ballard, 1 Scam., 252; Miere vs. Brush, 3 Scam., 24; Ward vs.Ward, 3 Gilm., 285; Updike vs. Armstrong, 3 Scam., 566; Randolph vs. Asley, 8 Missouri, 656; Bompart vs. Boyer, ibid, 234; Life and Fire Insurance Company vs. Mechanics’ Insurance Company, 7 Wend., 34.
    The exceptions should be express and direct to the point in question. They may all be grouped in a single sentence; but they must be at least mentioned as exceptions taken at the proper time, and applied by the bill to the points raised for the examination of the Court, on writ of error. This bill excepts to ee all the foregoing,” but whether to the evidence or to the instructions no one can tell. Wallace vs. Warren, 17 Wend., 259; Frier vs. Jackson, 8 John., 495; Ludlam vs. Broderick, 3 Green, 269, 275; Trueluck vs. Peeples, 1 Kelly, 1; Reab vs. McAlister, 8 Wend., 109. The correct practice is to prepare the bill of exceptions on the trial, and file it of the term. Where this is inconvenient, a note of the exception should be taken at the time, and leave given by entries on the record, to reduce the note of exception to form afterwards, when the bill should be filed nunc pro tunc. But at whatever time the bill is reduced to form and signed, it should purport on its face to have been taken and signed at the time of the occurrences mentioned in it; otherwise, though copied into the record, it will be considered as no part of the record, and will be wholly invalid and disregarded. Evans vs. Fisher, 5 Gilm., 453 ; Leigh vs. Hodges, 3 Scam., 17; Walton vs. The United States, 5 Cond. Rep., 721; Shepherd vs. Wilson, 6 How. U. S., 260, 274-6; Law vs. Merrils, 6 Wend., 268; Wilson vs. Owens, 1 How. Miss., 126; Green vs. Robinson, 3 How. Miss., 105; The Governor vs. Evans, 1 Pike, 349, 360, 361; Lenox vs. Pike, 2 Pike, 14, 21—24; Shepherd vs. White, 3 Cow., 32; Gibbons vs. Johnson, 3 Scam., 61; Ex parte Bradstreet, 4 Pet., 107; Hawkins vs. Lowrey, 6 J. J. Marsh., 443.
    Great stress is laid in numerous cases upon-the fact that the statute requires that the exception should be taken at the trial. Such is our statute. Where this is required by statute we have been able to find no case in which it was not held that a bill of exceptions must show on its face, in express terms, that the exception was, in fact, taken at the proper time. See Revised Stat. 1833, page 491, sec. 19; do., 1845, page 416, sec. 21. Even in New York it is a question of practice. The law does not specify the time when the exception shall be taken, and the exception, when taken, must appear on the face of the hill to have been taken at the time. Law vs. Jackson, 8 Cow., 746; 9 Wend., 241; Dean vs. Endley, 10 Wend., 255; The People vs. Dalton, 15 Wend., 581; 6 ibid, 268; Willard vs. Warren, 17 Wend., 259; 8 Cow., 746; 3 Pick., 174. The Court cannot reverse the judgment on the ground that the Court below erred in overruling the motion for a new trial. No exception was taken to the overruling of the motion. Independent of the fact that the general exceptions noted in the bill of exceptions were not taken in time, no exception was, at any time, taken to the overruling of said motion. The bill of exceptions is here copied into the record, and shows positively and conclusively that no such objection ever was taken, either at the time or afterwards, in the Court below. The bill of exceptions does not even notice or allude to any such motion, and it is only from an order on the record that we arrive at the knowledge that such motion was made. The decision of the Court in overruling the motion for a new trial, cannot be inquired into here, where it was not excepted to in the Court below, and at the time. Miller vs. Dobson, 1 Gilm., 574; Hill vs. Ward, 2 Gilm., 285; Barnes vs. Barber, 1 Gilm., 401, 407-8; Vanderbilt vs. Johnson, 3 Scam., 50; 1 U. S. Dig., page 412, sec. 37; Clemson vs. Kruper, Breese, 162; Gibbons vs. Johnson, 3 Scam., 61.
    On the examination of the above cases, and the original record on file therein, the Court will find that the hill of exceptions contained the evidence and instructions, yet the Court-would not act on the evidence or instructions, simply because the bill of exceptions was not taken and so shown to be in apt time, a view sustained by all the decisions as irrefragable. Nor does the fact that the evidence and instructions are all set out in the bill of exceptions, make any difference, unless the exceptions are properly taken at the proper time, and so shown by the bill. The bill is to be disregarded for all purposes, and the Court cannot in such cases look into the bill to see whether the Court erred in overruling the motion. That question has been already decided in this Court, and a similar question has been decided in New York. It results, as a necessary consequence of the principle so often decided, that the hill is a nullity.‘ The hill cannot surely be a nullity, and be at the same time good and available for all the purposes for which alone a hill of exceptions is taken, to wit, to bring before the Court, for the revision of errors said to have taken place during the progress of the trial. Leigh vs. Hodges, 3 Scam., 15 5 Gibbons vs. Johnson, 3 Scam., 63 3 Whiteside vs. Jackson, 1 Wend., 418, 4213 Clemson vs. Kruper, Breese, 162.
    As to the third plea: The defendant waived that plea by pleading over. If the defendant demurs to the declaration and then pleads to the declaration, he waives his demurrer. Snyder vs. Gaither, 3 Scam., 92 3 3 Ala., 347 3 Wilcox vs. Woods, 3 Scam., 52. And if the demurrer to the declaration has been overruled, pleading to the declaration waives any error in such ruling. Vanderbilt vs. Johnson, 3 Scam., 48. And, in general, if on overruling a demurrer, the party resorts to ulterior pleading to the same point, the demurrer is waived. Barr vs. Phillip, Breese, 19 5 Burditt vs. Burditt, 2 A. K. Marsh., 143. So, in a case precisely like this, if after a demurrer to a plea is sustained, the defendant asks leave to plead over, he thereby waives the ruling on the demurrer. Wann vs. McGoon, 2 Scam., 74. The ordinary judgment on sustaining a demurrer to a plea, is final and not respondeat ouster. The defendant in this case will-be presumed either to have denied this judgment of respondeat ouster, that he might plead over, or to have availed himself of the privilege of that judgment, by filing pleas four and five. These pleas state in express terms that they were filed by leave of the Court. In either event he has the same benefit as if he had literally amended his plea, and shows he was not willing to risk his case on the demurrer. The principle of waiver clearly applies to it; he did not stand by his demurrer. Bell vs. Morehead, 3 A. K. Marsh., 158; 5 Gilm., 459.
   Opinion by Mr. Justice Trumbull :

We regret that the record in this case is so made up as to prevent an examination of the merits of some of the errors assigned, otherwise we should have no hesitation in reversing the judgment.

No exception was taken to the decision of the Court overruling the motion for a new trial, nor is any allusion made to that motion in the bill of exceptions. The plaintiff in error cannot now, therefore, object that his motion for a new trial was disallowed, nor can he avail himself of any error of the court in giving instructions, because the record does not show that the instructions were excepted to at the time they were given.

It appears from the record that several days after the trial took place, and at the time the motion for a new trial was overruled, the defendant below filed his bill of exceptions, which, after giving the evidence in the cause, sets forth the instructions that were given, and concludes as follows : “ To all of which said defendant excepts;” thus showing that the exception was then, for the first time, taken. This Court has repeatedly held that a party, to avail himself of an exception to a decision of the Circuit Court, must take the exception at the time the decision is made, and that the bill of exceptions must affirmatively show that it was taken at that time. Gibbons vs. Johnson, 3 Scam., 63; Miere vs. Brush, ibid, 23; Leigh vs. Hodges, ibid, 17. We are now called upon to change the rule which has been adopted, and to presume that an exception was taken in proper time, when the Judge has signed the bill of exceptions, and it does not show upon its face at what time the exception was taken, or rather, when, as in this case, it does show, that it was not taken at the time the decision complained of was made. This we cannot do. The case of Gibbons vs. Johnson, was precisely like this, and we decided at the last term of the Court at Ottawa, in the case of Evans vs. Fisher, 5 Gil., 453, that a bill of exceptions, in all cases, should appear on its face to have been taken and signed at the trial; and if for any cause it is not then done, it should be executed nunc jpro tunc, so as to appear to have been taken at the trial.

But we are not disposed at this time to enter into a discussion of the propriety of the rule adopted. It has been established by a number of decisions of the Court, and acted upon for several years as a settled rule of practice. In such a case the rule ought not to be changed by the Court, even admitting that at the beginning it would have been better if a different presumption had been indulged, and a different rule established. The fifth instruction was clearly erroneous, but inasmuch as it was not ex-eepted to when given, the giving of it cannot now be assigned for error.

It is also assigned for error that the Court improperly sustained the demurrer to the fourth plea. It appears from the record that when the demurrer was sustained to that plea, an order was entered by the Court that the defendant answer over, and he did answer further, by subsequently filing other pleas. According to the decision of this Court, in the case of Wann vs. McGoon, 2 Scam., 74, the filing of the subsequent pleas might well be regarded as a waiver by the defendant of his fourth plea; but whether this be so or not the plea was clearly bad. It stated that part of the lumber, thirty thousand feet, was offered to the plaintiff when demanded, and that the plaintiff was informed and advised that all the balance of said lumber should be furnished as fast as he could raft the same. Had issue been taken upon this plea, one point of inquiry would have been, whether the plaintiff was informed and advised as alleged in the plea—a matter wholly immaterial in the case. The plea, to have been good, after setting forth the offer to furnish part of the lumber, should have averred that the defendant was ready to furnish the balance as fast as the plaintiff could raft it.

The agreement is not to be understood as containing a covenant on the part of Dickhut, that he had the whole one hundred and ten thousand feet of lumber on the bank of the Wisconsin river, at the time of making the contract for rafting the same, but a fair construction of the contract required that the lumber should have been ready as fast as Durrell could raft it. Judgment affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Opinion by Treat, C. J.:

license: Public Domain

text:
    Sarah Mason, late guardian of Martha Maria Mason and Paris Mason, appellant, vs. Isaac N. Piggott, appellee.

      Jlppeal from Jersey.

    Because a Court of Equity has concurrent jurisdiction with a Court of law, it will not, therefore, take cognizance of a case already pending in a Court of law, and oust it of jurisdiction.
    As a general principle, in all cases of concurrent jurisdiction, the tribunal which first obtains jurisdiction of the subject matter, must proceed and finally dispose of it. A Court of Equity will not take jurisdiction where it has first been acquired by a Court of law, unless there is some equitable circumstance in the case, which the party cannot ayail himself of at law.

      Bill in Chancery.—Upon the 17th day of May, A. D. 1849, the complainant filed his bill in the Jersey county Circuit Court, averring, that, on the 27th day of May, 1836, he made a contract (which is made an exhibit, marked u A35) with the defendants, for the purchase of certain real estate in the town of Grafton; that, at the time said contract was made, the spirit of wild speculation was at its zenith, and prices of real estate were ruinously high; that, at the time the contract was made, the defendants, nor either of them, had any right, title or interest, in the lots sold; nor have they acquired any since; that the title, at the time of the sale, was in Martha Maria Mason, and the defendants had no right to sell the same; that the said Sarah never complied with the requirements of the act of the Legislature referred to in the contract; that the contract was void as to Martha Maria Mason; that, after the lapse of several years, and after the lots had utterly depreciated in value, and were almost entirely worthless, Martha Maria intermarried with Wm. H. Allen.
    The bill avers that it is falsely and fraudulently pretended by defendants, that in the month of May, 1842, said Allen and his wife, and said Sarah Mason, executed, acknowledged, and tendered to complainant, a good and sufficient warranty deed for said lots, whereby would have been conveyed to him an indefeasible estate in fee simple; and demanded payment of complainant’s notes referred to in said contract; that complainant refused to pay notes and receive deed. Bill avers that complainant was sued to the September term of Jersey Circuit Court, 1842, in assumpsit on said notes, by Paris Mason, for the use of the said Sarah; that said suit is now pending and undetermined on the common law side of the Court. Bill avers that no such deed ever was tendered to complainant as above referred to; that he has offered defendants to repudiate and deliver up said contract, and demanded the notes; and he now offers so to do, and demands and insists upon the recision of the contract and notes, and that the same may be cancelled and for nothing held. Prays that defendants may be enjoined from proceeding in their action at law, and that said contract may be cancelled. Bill sworn to, and injunction granted.
    Exhibit “A,” referred to in the bill, is as follows :
    “ Know all men, by these presents, that I, Sarah Mason, guardian of Martha Maria Mason, infant heir of James Mason, deceased, by Paris Mason, my attorney, by deed bearing date the 12th day of May, 1835, am held and firmly hound unto I. N. Piggott, of the county of Greene, and state of Illinois, in the penal sum of three hundred and sixty-two dollars 5 the payment of which, well and truly to be made, I bind myself and my successor, as such guardian, firmly by these presents.
    “ The condition of the above bond is such, that whereas, the said I. N. Piggott has this day purchased at public sale lot No. 12, in block No. 10, and lot No. 11, in block 38, in the town of Grafton, county of Greene, and state of Illinois, for the sum of one hundred and eighty-one dollars; and the said I. N. Piggott having executed his notes for the sum of one hundred and sixty-two and 90-100 dollars, bearing even date herewith, and payable to Paris Mason, for the use of Sarah Mason, guardian of said infant heir, one and two years from the date hereof; now, therefore, if the said I. N. Piggott shall pay, or cause to be paid, said sum of money specified in said notes, according to the tenor and effect thereof, then the said Sarah Mason, guardian as aforesaid, by the said Paris, her attorney as aforesaid, covenants for herself and her successor, to make and execute a good and sufficient deed, with warranty, of the above described lots of land, to said I. N. Piggott, or his assignee, in pursuance of and according to the provisions of an act passed by the Legislature of the state of Illinois, entitled An act for the benefit of the infant heir of James Mason, deceased,” approved January 20th, 1836. But should said I. N. Piggott, or his assignee, fail to pay said sum of money specified in said notes, within ten days after the same becomes due, he hereby forfeits all claim to said lots, and all moneys paid thereon; and this bond, in such event, shall be void, both in law and equity, and the title to said lots shall continue in the original proprietor, as if no sale had been made.

      “ In testimony whereof, I have hereunto set my hand and seal, by Paris Mason, my attorney as aforesaid, this 27th day of May, 1836. Sarah Mason, [l. s.]
    “ By her attorney, Paris Mason.”

    Defendants filed demurrer to the bill, in which complainant joined. Demurrer overruled. Defendants stood by demurrer, and declined to answer further. Court decreed complainant entitled to the relief prayed for; that the title bond, being exhibit “ A,” and the notes of complainant be cancelled, and for nothing held; and that complainant surrender to defendants said title bond; that defendants give up the notes; and that defendants be perpetually enjoined from suing for the same.
    Heard before Woodson, Judge, at October term, 1849.
    H. W. Billings and L. B. Parsons for appellants :
    The demurrer to the bill in this case should have been sustained, for the reason that the Court had no jurisdiction.
    I. In all cases of concurrent jurisdiction, the Court which first exercises it, must decide finally. Green vs. Robinson, 5 How. Miss. R., 104; Flournoy’s Ex’rs vs. Holcomb, 2 Munf., 84; Smith vs. McIver, 5 Cond. R., 664; Merrill vs. Lake, et al., 16 Ohio, 404; State Bank vs. Stanton, 2 Gil., 853; Lishey vs. Smith, 7 Humphrey, 299; Le Guen vs. Gouvernour, et al., 1 J. Cases, 493; Beaty vs. Ross., 1 Branch, 198; Haden vs. Garden, 7 Leigh R., 157; 2d Story’s Equity, secs. 875, 885, 896.
    2. All the rights of the parties in this case could have been fully determined at law. Mason vs. Caldwell, 5 Gil., 204.
    3. Want of parties to a bill may be raised at the hearing. 1 Barb. Ch’y Practice, 321.
    D. A. Smith, for appellee.
   Opinion by Treat, C. J.:

We have no doubt about this case. It was decided in Mason vs. Wait, 4 Scammon, 127, that the sale of the Grafton lots was not binding on the ward; and that a purchaser might set up in defence of an action on the notes the inability of the guardian to convey a good title. It was held in Mason vs. Caldwell, 5 Gilman, 196, that it was competent for the ward, after she arrived at full age, and before a purchaser had avoided the contract by an offer to surrender the title bond, connected with a demand for the return of the notes, to adopt the contract, by executing and tendering a deed that would pass a good title, and demanding payment of the notes. It results from these decisions that a purchaser can defeat a recovery on the notes, on the ground of a failure of consideration, where the ward has done nothing to confirm the contract; or he may put an end to the contract by affirmative acts on his part, and thereby prevent the ward from ratifying and enforcing it. The complainant has, therefore, a complete defence to the action on the notes, unless there was a ratification of the contract on the part of the ward, prior to the commencement of the suit. Instead of making it in that action, he seeks to transfer the case to chancery; not because the defence cannot be successfully made at law, but on the ground that a Court of Equity has concurrent jurisdiction. It by no means follows becausé a Court of Equity has concurrent jurisdiction with a Court of law, that it will take cognizance of a case already pending in a Court of law, and oust it of jurisdiction. As a general principle, in all cases of concurrent jurisdiction, the tribunal which first obtains jurisdiction of the subject matter, must proceed and finally dispose of it. A Court of Equity will not take jurisdiction where it has first been acquired by a Court of law, unless there is some equitable circumstance in the case which the party cannot avail himself of at law. Subject to this qualification, the rule is inflexible. Smith vs. McIver, 9 Wheaton, 532; Merrill vs. Lake, 16 Ohio, 373; Flournoy vs. Halcomb, 2 Munford, 34; Green vs. Robinson, 5 Howard’s Miss. R., 80. The allegations of the bill, if true, show that the complainant has a full and adequate defence at law, and he must there interpose it. No circumstance is alleged that demands the interference of a Court of Equity.

The decree of the Circuit Court will be reversed, with costs, and the bill dismissed.

Judgment reversed.


text:
    Adam Swartz, plaintiff in error, vs. Thomas L. Barnes, garnishee of J. Rapplye.

      Error to Hancock.

    Affidavits cannot be used to qualify or contradict tbe positive statements of a record.
    This was an action originally commenced before a justice of the peace. The garnishee appeared before the justice and answered. An appeal was taken to the Circuit Court. The cause came on to be heard at the September term, 1849, before Min-shall, Judge. The judgment of the Circuit Court, which was rendered on the nineteenth of September, sets out that the parties appeared by their attorneys, “ and issue being joined, dispense with a jury, and for trial submit this cause to the Court; whereupon the Court, after the hearing of the evidence and arguments of counsel, finds the issue in favor of the said defendant, garnishee as aforesaid,” and gave judgment for costs against the plaintiff. A motion for a new trial was entered on the twenty-second of September, which was overruled. A bill of exceptions was tendered and filed, on the last named day.
    The bill of exceptions states, “that on the fifth day of September term, and on the calling of this cause for trial, came the parties by their attorneys, and thereupon a jury was ordered, and thereupon four of the jury were called by the clerk; whereupon the court, after hearing the arguments of counsel, determined the cause upon the merits, to which the plaintiff, at the time, excepted; and now again came the plaintiff by his attorney, and moved the Court to grant the plaintiff a new trial upon reasons and affidavits on file.”
    Five affidavits were filed, setting forth that the affiants understood plaintiff’s counsel to state to the Court that he was willing to submit to the Court the question of law, to wit, “whether the judgment to be found by a jury, if any should be by them found, should be for money or personal property,” and that they did not understand plaintiff’s counsel to submit to the Court the matters of fact, and that he wished the cause tried by a jury.
    Several errors were assigned, in substance, that Court erred in discharging the garnishee, and rendering judgment for costs against the plaintiff, and in deciding the cause upon the merits, when only a question as to the kind of judgment to be rendered, if the jury should find for the plaintiff, was submitted to the Court.
    G. Edmunds, for plaintiff in error, on the argument, made the following points:
    The suit was regularly commenced before the justice, and record shows sufficient. Revised Statutes, 60 and 61, secs. 9, 11 and 12, and p. 307, sec. 38. The paper filed as an answer, is not such an answer as the statute contemplates. It should have been on oath, in open Court, and not in writing, like an answer in Circuit Court. Revised Stat., p. 61, sec. 12, p. 67, sec. 18. On appeal, trial to be without written pleadings. Revised Stat., p. 325, sec. 66.
    The submission to Court at April term was waived by continuance, and subsequent attempt to try. Taking the whole record, it shows there was no submission at the September term, to the Court, or waiver of jury. The cause was not submitted to the Court for final hearing. The Court refused to impannel or submit cause to jury. Rev’sd Stat., p. 414, sec. 11. Should the judgment be for money or property, if jury found for the plaintiff, only was submitted.
    The Court arbitrarily discharged the garnishee, and rendered judgment against plaintiff, without a hearing.
    The record clearly shows, that the plaintiff did not consent to try the cause by the Court; that he did not dispense with or waive a jury; that there was a misunderstanding; the Court should have granted a new trial.
    Williams & Lawrence, for defendant in error:
    Record shows that there was not a refusal to submit the case to a jury, but that the case had been submitted to the Court, at a prior term, and that during the term at which the case was decided, four jurors were inadvertantly called to try the case ; when, upon suggestion that the case had been submitted to the Court, the Court thereupon proceeded to give judgment.
    The affidavits filed and included in the bill of exceptions do not properly form a part of the record. The record from the justice does not, but should show, that a judgment had been rendered against the defendant, before the Court could proceed against the garnishee. Proceedings against a garnishee are accessary to a judgment against some party.
   Opinion by Treat, C. J.:

The point relied on for the reversal of this judgment is, that the Court proceeded to hear and determine the case, instead of submitting it to a jury for trial, as demanded by the plaintiff in error. There is nothing in the record to sustain this assignment of error. The record expressly states that the parties dispensed with a jury, and submitted the cause to the Court for trial. This entry must be held to be conclusive of the question.

On a motion for a new trial, the plaintiffs read some affidavits, for the purpose of showing that he did not waive his right to a trial by jury, hut the affidavits cannot here he used, to qualify or contradict the positive statements of the record.

As the evidence is not reported, no question arises as to the correctness of the decision of the Court, in discharging the garnishee.

Let the judgment be affirmed with costs.

Judgment affirmed.


author: Opinion by Mr. Justice Catón :

text:
    John Beel, appellant, vs. Thompson Pierce and Anson O. Fairman, appellees.

      Appeal from Madison.

    A petition for forcible detainer, 17)11011 shows that A, one of two defendants, had rented fifteen acres, parcel of a larger tract, and that he withholds the whole tract, and that B, the other defendant, unlawfully entered into the same premises under A, and that both unlawfully withhold them from the plaintiff after notice, is insufficient.
    To give the Court jurisdiction, the petition should show, that the defendants entered into the premises, under a lease, or by the assent or acquiescence of the plaintiff, or some circumstance from which it can be presumed that the relation of landlord and tenant existed.
    Forcible entry and detainer must be shown, or the Court acquires no jurisdiction except so far as the relation of landlord and tenant is shown to exist.
    A particular description of the land claimed should be given. A description of about fifteen acres, a part of a tract of one hundred and sixty acres, not showing which part of the one hundred and sixty acres, is too loose.
    This was an action for a forcible detainer, from Madison county. The complaint before the justice declared that the defendants were in possession of certain tracts of land, of which plaintiff claimed to be the owner in fee simple; said land lying and being in the county of Madison and state of Illinois, to wit: the south-east quarter of section sixteen; also, the north-east quarter of the south-west quarter of section number twenty-one, township three north, range nine, west of the third principal meridian, together with all and singular the tenements and appurtenances thereto belonging, and as such entitled to immediate actual and exclusive possession of said premises; and that he, the said plaintiff, rented about fifteen acres of the said first mentioned tract of land to Thompson Pierce, one of the defendants, for one year, which expired on the 28th day of February, 1849, and that said Pierce unlawfully and without right withholds the possession of the whole of the above tracts of land from said plaintiff. Said plaintiff further states that'one Anson O. Fairman, the other defendant, is connected with the said Pierce, and wrongfully and unlawfully entered into said premises with the said Pierce, and, together with the said Pierce, forcibly and unlawfully withholds the possession of said premises from the said plaintiff, after notice given them according to law.
    On 10th March, 1849, a trial was had before a justice and a jury of twelve, and the defendants found guilty as charged.
    From this finding the defendants prayed an appeal to the Circuit Court, and filed their bond on the 14th March, 1849. At August term, 1849, of the Madison Circuit Court, the defendants moved the Court to dismiss said cause for want of jurisdiction. The Court, Underwood, Judge, presiding, dismissed said cause on account of the insufficiency of the affidavit; to which decision of the Court, in dismissing said cause, the plaintiff at the time excepted, and prayed this appeal, and assigns for error, that the Court erred in dismissing said suit on account of the insufficiency of the affidavit.
    J. Gillespie, and Billings & Parsons, for appellant:
    The complaint states that Beel was the owner of a tract of land, and entitled to the immediate, actual and exclusive possession thereof; and that he rented fifteen acres of it for one year, which expired February 28th, 1849, and that Pierce unlawfully withholds the possession of the whole of the land, and that one Anson Fairman is connected with the said Pierce, and entered under him, and that they both withhold the possession of the whole of said land.
    The complaint is sufficient.
    1. In 6 Blackford, 145, it is laid down by the Court, that a complaint was sufficient where it stated that plaintiff bought the land of defendant, and that by agreement the defendant was allowed to continue in possession until a certain day, and held over after that day, although the plaintiff never had actual possession, and that an action of forcible detainer can he sustained.
    2. The relation of landlord and tenant is to be presumed in the whole tract, where the tenant leases a part of the land, and occupies the whole, with the assent of the landlord.

      In 5th Gilman, 293, it is laid down by the Court that there is no precise form of complaint in an action of forcible detainer. It is sufficient if the complaint show the relatjpi of landlord and tenant to have existed; that the time for which the premises were let has expired, and that the tenant persists in holding the premises after demand made in writing for the possession thereof. “The possession of the tenant is the possession of the landlord, ” is a well known principle of law. If it is conceded that Beel was the owner of the land, and that Pierce was a tenant of his, for part of the land, and took possession of the whole, Beel was in possession of the whole, being the owner in fee simple, the complaint being taken as true. Although the complaint does not aver in so many words that Beel was the landlord of Pierce, yet that relation is inferred from the complaint; and although it does not state that Pierce entered the balance of the land under the lease, yet it states that Fairman under Pierce entered into the possession of the whole land, which supplies the defect, if .there be any in the charge in regard to Pierce, Pierce being the tenant of Beel hy the lease. All that is required in a complaint is, to show that the relation existed in terms that can be understood by the manner in which it is set forth.
    In 1st Monroe’s Reports, 50, it is laid down that the actual residence on one part of a tract, claiming the whole, is such an actual possession of the land as comes within the meaning of the act; and that an entry on any part, without the consent of such actual possessor, would subject the intruder to this remedy.
    In regard to possession: In 3d Little’s Rep., 383, it is laid down that where a tenant enters on a farm under a lease, he acquires possession of the woodland which belongs to the same tract or parcel of land, unless he be circumscribed by the terms of the lease, and the true criterion is an enjoyment of the profits. In 2d Marsh., 18, and 3d J. J. Marshall, it is laid down by the Court, that an occupant possessing himself of a part of a tract of land, with intent to take possession of the whole, is possessed of the whole, although it be done without the assent of the owner. How much more would he have possession if he takes possession with the assent of the owner.
    The complaint in all these cases must be construed with reasonable certainty, and when the relation of landlord and tenant can be inferred, it ought to be. If the plaintiff was not, under the complaint, entitled to a restitution of the whole of said land, he certainly would be entitled to a restitution of the part leased. In 3d Marshall, 164, 1 Monroe, 38, 2 J. J. Marshall, 183, the principle is well established, that on a traverse the jury may find guilty as to part of the premises leased, and the plaintiff shall recover according to the proof.
    In regard to the description of the land leased, see 4 Alabama, 112 ; 9 do., 611; 8 do., 87; 1 Scammon, 407; 4 Missouri, 98; 3 Little, 297. In all these cases the principle is laid down that all that is required is a general description of the premises, so that it will convey a distinct or definite idea of the land sought to he restored. In the Alabama case, the premises were described as N. E. sec. 5, T. 8, R. 11 east, and fifty acres of land; which was held suificient.
    In the Missouri case, the premises were described as one house and garden; which was held sufficient.
    There is another point in this case : in regard to Fairman holding under Pierce. In Snoddy vs. Watt, 9 Alabama, 611, it is laid down that to warrant a proceeding for an unlawful detainer, it is not necessary that the defendant should be a tenánt of the plaintiff, or a tenant of his tenant. It is sufficient if he holds under, from or by collusion of the plaintiff’s tenant.
    E. Keating, for appellees:
    First, forcible entry and detainer is a possessory action, and the title to the lands, &c., cannot he tried. 2 U. S. Annual Dig., 196, s. 14; Settlers. Henson, 1 Morris, 111; McKeen and wife vs. Nelms, 9 Ala., 508; Phelps vs. Baldwin, 17 Conn., 209. Second, the plaint must make out a case. Whittaker vs. Gautier, 3 Gilman, 443; Wells vs. Hogan, Breese, 264. Third, the plaint must particularly describe the premises. Rev. Laws 1845, 257, sec. 4. Fourth, the plaint must show possession or relation of landlord and tenant. Phelps vs. Baldwin, 17 Conn., 209; Walters vs. Rogers, 9 Ala., 834; Whittaker vs. Gautier, 3 Gilman, 443. Fifth, a trespasser may maintain the action. Lorimer et al., Adm’rs, &c., vs. Lewis et. al., 1 Morris, 253. Sixth, the trial before the Circuit Court was a trial de novo. Rev. Laws 1845, 257. Seventh, if tenancy of two is averred, the proof must correspond, or an acquittal must follow. Sneaker vs. Quick, 7 Halstead, 129.

      Objections to the plaint in this case: If it is attempted to sustain the plaint on any other ground than the existence of the relation of landlord and tenant, then there is not such actual or constructive possession averred as is required by the decision. 3 Gilman, 443. If the ground of tenancy is assumed, then the plaint only sets forth a lease of fifteen acres, and that fifteen acres is not so described as to be sufficient for a warrant, in case of recovery. See plaintiff’s authorities.
    If it is contended that the defendants hold all or entered all by virtue of the lease, the answer is, the plaint should have shown this fact: it does not. Forcible entry and detainer being a mere possessory action, the plaint should show that the complainant has had possession, or, as in case of tenancy, there is such a relation existing as shows the defendant is not in a condition to deny the title of complainant, and the law being enacted to give a summary remedy to the party who has once had possession to recover it, the Court will not give such a construction as will enable a party to gain possession of property he has never before actually or constructively been in possession of.
    Although Fairman rented the whole of the tracts from Pierce, he thereby became no more the sub-tenant of Beel than Pierce had been the tenant of Beel, to wit, as to fifteen acres, for the plaint does not claim that Pierce ever rented more than fifteen acres, or ever entered into any other than the fifteen acres, and does not deny that Pierce was and had been in possession of the balance of the tracts long before even Beel claimed to have title to any of the same.
    Wjvi. T. Martin, on same side:
    The affidavit is not sufficient to give the Court jurisdiction. The statute gives the action of forcible entry and detainer, where the complainant has been forcibly entered, and turned out of possession. To sustain such action, the complaint must show that the plaintiff was in the actual possession of all the land included in the affidavit, and that the defendant hath taken the possession of the whole of the premises described. Rev. Stat., p. 256, sec. 1.
    To sustain the action of wilful detainer, the complaint must show the relation of landlord and tenant, and that the tenant, or those claiming under him, holds over after the expiration of the term, and after demand, &c. In this action the plaintiff can only recover such premises, and no more than is embraced in the lease, and such premises must be described with such certainty as will enable the sheriff to give the possession. Rev. Laws of 1845, sec. 4.
    ■ The plaintiff cannot, on a complaint for fifteen acres of land, detained after the term expires, allege that he also holds one hundred and eighty-five acres more, and recover on such affidavit two hundred acres.
   Opinion by Mr. Justice Catón :

The complaint in this case shows, that Beel is the owner, and entitled to the possession, of two tracts of land, amounting to two hundred acres, and that he rented about fifteen acres of one of the tracts, to Pierce, for one year, which expired in February, 1849; and that Pierce unlawfully withholds the whole of the premises from the plaintiff. The complaint then shows, that Fairman unlawfully entered into the possession of the same premises, under Pierce, and that they both unlawfully withhold them from the plaintiff, after notice, &c.

This petition was insufficient to give the Court jurisdiction. It does not show that either of the defendants entered into the premises, except the fifteen acres, under the lease, or by reason of Pierce’s having the lease, or in any way with the assent or acquiescence of the plaintiff, so that there is no circumstance stated, from which we can presume that the relation of landlord and tenant existed. From aught that appears, the defendants may have taken possession of all but the fifteen acres, under a claim of title in themselves, adverse to that of the plaintiff, or under a lease from some other person. As no forcible entry and detainer is pretended, the Court acquired no jurisdiction, except so far as the relation of landlord and tenant is shown to exist.

The petition is also defective, even as to the fifteen acres. The statute provides, that the complaint shall be set down in writing, “particularly describing the lands,” &c. R. S., 257, sec. 4. Here there is no such description of the fifteen acres. It is described as “ about fifteen acres of said first mentioned tract of land.” In what part of this tract of one hundred and sixty acres of land these fifteen acres were located, the eomplaint does not show. This, by the most loose construction, cannot he said to be a particular description of the laud. We have no doubt that the Circuit Court decided properly, in holding the complaint insufficient, and in dismissing the cause, and its judgment is affirmed, with costs.

Judgment affirmed..


text:
    Dirk Jonkin Gerdes Kruse, appellant, vs. John Scripps, appellee.

      Appeal from Schuyler.

    If a tract of land is conveyed by metes and bounds, or any other certain description, the grantee takes all the land included within the designated limits, although the quantity may exceed what is stated in the deed j. and he is restricted to those limits, if the quantity proves to be less than is represented.
    The statement of quantity is considered the most uncertain part of the description, and when inconsistent with boundaries, courses or distances, quantity must be rejected.
    “Where a mortgage was expressed to be “ for sixty-one acres of land, to wit, the south-east quarter of section number twenty-eight, township two/’ &c„, it was held to cover the entire Congressional tract, and the description of “ sixty-one acres,55 as the quantity, was disregarded.
    A subsequent purchaser is to be charged with full notice of the legal effect of such mortgage. His rights areno greater than those of the mortgagor.
    This was an action of ejectment, returned at the March term, 1841, of Schuyler Circuit Court, by Scripps, the defendant in error, against Kruse, averring that he was possessed of the southeast quarter of section numbered twenty-eight, in township numbered two north, of range number one, west of the fourth principal meridian 5 and the north-west quarter of number thirty-two, in township number three north, of range numbered one west of the aforesaid meridian, with all the privileges and appurtenances, &c., which he claimed in fee. And that he was peaceably possessed of the following lands, to wit, sixty-one acres, to wit, the south-east quarter of section number twenty, in township number two north, and range number one west of the said fourth principal meridian, situate, lying and being, &c., with appurtenances, &c., which he claimed in fee. And that he was possessed &c. of sixty-one acres of land hounded as follows, to wit: beginning at the north corner of the south-east quarter of section number twenty-eight, two north, range one west of said meridian, thence south ninety poles, along the section line, thence West 108 44-100 poles, thence north 90 poles, to the east and west dividing lines of said section twenty-eight, thence east 108 44-100 poles, to said place of beginning, with appurtenances &c., which he claimed in fee &c.; and being so possessed, defendant entered into and upon the same, &c. There were six different trials with different results. At the last trial, the plaintiff below obtained a verdict and judgment. The judgment was, that the'plaintiff recover his damages, and also possession of the said premises. A writ of possession was granted, and judgment for costs. Motions for a new trial and in arrest of judgment were made and overruled; whereupon defendant prayed an appeal, which was allowed. Heard before and judgment by Mr. Justice Purple, at March term, 1848.
    The plaintiff below derived his title by virtue of a mortgage from one James H. Smith, in which the land was described, as 4£sixty-one acres of land, to wit, the south-east quarter of section number twenty-eight, in township number two north, and range one west; ” which mortgage was foreclosed by scire facias, and he became the purchaser at the sale.
    The bill of exceptions was filed containing the evidence &c., exhibiting said mortgage and the proceedings taken to foreclose the same, the sale under the foreclosure, and the sheriff’s deed. It appears that defendant and plaintiff derived their titles from a common source; the plaintiff in error being the grantee of said Smith, by deed, bearing date subsequent to the date of the mortgage" from Smith to Seripps.
    The following errors are assigned :
    The Circuit Court erred in overruling defendant’s objection to the mortgage, and in permitting the same to be read in evidence to the jury.
    The Court erred, also, in overruling defendant’s objections to the sheriff’s deed, offered in evidence.
    Also, in overruling defendant’s motion to exclude all the title papers of plaintiff. And in overruling the motion for a new trial.
    A. Williams and S. S. Blackwell, for appellant, made the following points in argument:
    1. The description in the mortgage deed is uncertain.

      2. The mortgage is merged in the judgment, and can no longer he used as evidence of title.
    3. The defendant was entitled to notice to quit.
    One of the counsel for the appellant, in opening this cause, stated that the question relating to the sufficiency of the description in the mortgage, became an interesting one, when taken in connection with the history of the trials in the Court below. Five different Judges had presided at the several trials. One decided, that there was a patent ambiguity, in the description of the premises; another, that it was a latent ambiguity; a third, that it was neither a patent or a latent ambiguity, but a mixed one; while the fourth held that there was no ambiguity whatever, and that the description carried the whole quarter section, and the false circumstance of quantity was to be rejected as surplusage. The fifth Judge held that no question could arise upon the construction of the mortgage deed, as it was merged in the judgment of foreclosure upon the proceeding by scire facias.

    Browning & Bu.shnell, for appellee :
    The quantity of land mentioned in a deed is only a part of the description, and must yield to the location by certain boundaries. All the land contained within these boundaries and belonging to the grantor, pass by the deed, whether more or less than the quantity mentioned by the deed. Powell vs. Clark, 5 Mass., 355; Jackson vs. Barringer, 15 John., 471; Champion vs. White, 5 Cow., 509; Howe vs. Bass, 2 Mass., 380; Hathaway vs. Power, 6 Hill, 453. The least certainty in the description of lands in a deed, must yield to the greater certainty, unless they can be reconciled. Worthington vs. Hyler, 4 Mass., 198; Jackson vs. Moore, 6 Cow., 716 to 721, and note. Where a deed describes land by its admeasurements, and at the same time by known and visible monuments, the latter shall govern. 4 Comyn Dig., 287 ; Pernan vs. Wead, 6 Mass., 131; Frost vs. Spaulding, 19 Pick., 445. And where there is a contradiction in a deed, quantity must give way to monuments, courses and distances. Jackson vs. Loomis, 18 John., 81; S. C. 19 John., 449; Jackson vs. Root, 18 John., 60.; Jackson vs. Clark, 7 John., 217. And where the question turns upon the construction of a deed, it will receive the same construction against a subsequent purchaser from the grantor, as against the grantor himself. The purchaser takes with notice of the legal construction of the deed. Subsequent events cannot effect the construction of a deed. Worthington vs. Hyler, 4 Mass., 196; Jackson vs. Loomis, 18 John., 81, 87; Van Wyck vs. Wright, 18 Wend., 157; Hathaway vs. Power, 6 Hill, 453.
    Nor is the title of Scripps under the mortgage merged in the deed to him, on the sale under the foreclosure of the mortgage, so as to prevent Scripps from bringing or maintaining his action of ejectment. This point has been often decided. Williams vs. Brunton, 3 Gilm., 600, 622-3; Den vs. Vanness, 5 Halsted, 102, 106-7; Den vs. Stockton, 7 Halsted, 322; Cooper vs. Whitney, 3 Hill, 95; State Bank vs. Wilson, 4 Gilm., 57, 61; Klock vs. Kronkite, 1 Hill, 107. Merger is never favored at law, and still less in equity. It will not be permitted to work injustice. It is always a question of intention, and it will be allowed only for special reasons, to promote the ends of justice, and to subserve the fair intention of the parties. Where the person, in whom the legal and equitable title unite, has a beneficial interest in keeping them separate, no merger takes place. Lockwood vs. Sturdevant, 6 Conn., 373; James vs. Morey, 2 Cow., 246; Harr vs. Ellis, 6 John. Ch., 393; Baldwin vs. Norton, 2 Conn., 161. Even in cases where the doctrine of merger technically applies, the lesser estate is not lost—annihilated. It no longer exists separately, but in union with the greater, and the greater in union with the less, and the greater estate is from the time simply released and discharged from the charge or incumbrance of the less ; on the same principle that no man can be indebted to himself. No greater estate is created. The lesser estate is simply suspended, not lost. Whether or not its action is suspended even depends upon whether justice require it cotemporaneously to exist. Persons having interests depending on the particular estates will be left in the same condition, in point of benefit, as if no merger had taken place. For the purpose of upholding those interests, the particular estate, though merged, is not destroyed. It continues in point of title, although said to be merged in point of law. 2 Thos. Coke, 451-2, top paging.
    The sheriff’s deed on the foreclosure is not the foundation of a new title. It is not inconsistent with the title under the original mortgage. It is only in aid of and to perfect that title. Such is the intention of the mortgagee in purchasing on foreclosure. Williams vs. Brunton, 3 Gilm., 623; Den. vs. Stockton, 7 Halsted, 322. The mortgage gives a defeasible legal title. It leaves an equity outstanding in the mortgagor. It is to foreclose that equity, and not to acquire the legal estate, that the foreclosure is had. The legal estate is already in the mortgagee. The mortgage is thus the foundation, the first fact, in the creation of a perfect and indefeasible legal title, and the subsequent acts, the foreclosure, relates back to the mortgage. They are based upon the mortgage, and derive their existence and efficacy from the existence of the mortgage. It is a common principle that where divers acts concur to one definite result, the original act is preferred, and draws to itself ail subsequent facts. Such is the doctrine of relation, which is applied to sustain rights acquired under mortgages, judgments and other analagous cases, and to prevent them from being overreached by subsequent claims, intervening between the inception and perfection of the title. Jackson vs. Call, 3 Cow., 79; Lessee of Boyd vs. Longworth, 11 Ohio, 252; Johnson vs. Stagg, 2 John., 520; Klock vs. Kronkite, 1 Hill, N. Y., 107 ; Hammon vs. Warfield; 2 Har. & John., 151, 158; State Bank vs. Wilson, 4 Gilm., 57, 64. But even supposing a merger takes place— what is merged, the legal or equitable title ? It is the equitable—the lesser title—that is merged. 2 Thos. Coke, top paging, 448, note k; 4 Kent Com., 99, 100. But the mortgagee has the legal title ; the mortgagor had only an equity left, and the mortgagee on the purchase at the sheriff’s sale, would only acquire an equity, which, on the principle of merger, must merge in the mortgage title, if either is to merge in the other. 4 Kent, 154, 156; Blaney vs. Beane, 2 Greenleaf, 132, 137; 5 Cond. Rep., 655; Howe vs. Lewis, 14 Pick., 331; Erskine vs. Townsend, 2 Mass, 493, 494-5. Indeed, so ineffectual was the deed executed by the sheriff on the foreclosure, to give the legal title, that, as the mortgagee became the purchaser, there was no occasion for a deed to be made to him by the sheriff at all. Without the deed, the equity of redemption would have been equally barred by the mere sale. Jackson vs. Colden, 4 Cow., 266, 276, 281; 1 Revised Stat. N. Y., 312—old stat. That it has been considered that in such a case the title by the sheriff’s deed would merge in the mortgage deed, see Cooper vs. Whitney, 3 Hill, 95; Den vs. Vanness, 5 Halsted, 102, 106-7.
    As to notice to quit: A mortgagor in possession is not entitled to notice to quit before ejectment brought by the mortgagee. Adams’ Eject., 108-9; Rockwell vs. Bradley, 2 Conn., 1; Wakeman vs. Banks, 2 Conn., 445; Fuller vs. Wadsworth, 2 Iredell, 263; Weaver vs. Belcher, 3 East., 449; Keach vs. Hall, Doug., 21; Williams vs. Bennell, 4 Iredell, 122; Den vs. Stockton, 7 Halsted, 322, 324; Doe vs. Giles, 15 English Com. Law, 485; Smartle vs. Williams, 1 Salk., 245 and note a.

    Contra, in New York, where the mortgagor is entitled to notice to -quit before ejectment brought. This was, however, decided without much consideration, and as a mere question of practice, and not of law. Jackson vs. Loughhead, 2 John., ,75; Jackson vs. Green, 4 John., 186; Jackson vs. Hopkins, 18 John., 486. Though the lessee or assignee or grantee of the mortgage is not entitled to notice to quit. Den vs. Stockton, 7 Halsted, 322; Jackson vs. Fuller, 4 John., 215; Jackson vs. Stackhouse, 1 Cow., 122. Nor is notice to a vendee to quit necessary. Jackson vs. Miller, 7 Cow., 747-51; Jackson vs. Moncrief, 5 Wend., 26, 29. On claiming the land adversely is not entitled to notice to quit. Jackson vs. Dyer, 3 John., 422; Jackson vs. Chase, 2 John., 84; Shackelford vs. Smith, 5 Dana, 236-8; Jackson vs. Tyler, 2 John., 443.
   Opinion by Treat, C. J.:

If a tract of land is conveyed by metes and bounds, or any other certain description, the grantee takes all of the land included within the designated limits, although the quantity may exceed what is stated in the deed; and he is restricted to those limits, if the quantity turns out to be less than is represented. The statement of quantity is considered as the most uncertain part of the description, and when inconsistent with boundaries, courses or distances, must be rejected. Powell vs. Clark, 5 Mass., 355; Jackson vs. Barringer, 15 Johnson, 471; Jackson vs. Moore, 6 Cowen, 706; Hathaway vs. Power, 6 Hill, 453; McClintock vs. Rogers, post.

In this case, the premises in dispute passed by the mortgage. The mortgagee took all of the land within the limits of the quarter section, without reference to the number of acres stated in the mortgage. The statement of quantity must yield to the more definite description given to the land. No description could be more satisfactory and certain than the one contained in the mortgage. The tract, as surveyed and designated by the United States, is granted. By this description, its precise locality and extent can be ascertained. If the statement of quantity is inconsistent with the other parts of the description, it must be disregarded. Reject the words “ sixty-one acres of land,” and the description is perfect and complete. To give effect to these words, the more reliable parts of the description must be rejected, and the mortgage, as to the land in controversy, held void for uncertainty.

If the premises passed by the mortgage, the title of the mortgagee cannot be affected by that of the subsequent purchaser. The construction of the mortgage must be the same, whether the mortgagor has conveyed the equity of redemption or not. Subsequent events cannot change the construction to be given it. The purchaser is to be charged with full notice of the legal effect of the mortgage. His rights, in this respect, are no greater than those of the mortgagor. Jackson vs. Loomis, 18 Johnson, 81; Van Wyck vs. Wright, 18 Wendell, 157,

The doctrine of merger has no application. The title of Seripps relates back to the execution of the mortgage. The subsequent proceedings on the mortgage were in aid of his original title. Williams vs. Brunton, 3 Gilman, 600; State Bank vs. Wilson, 4 Gilman, 57; Den vs. Vanness, 5 Halsted, 102; Den vs. Stockton, 7 Halsted, 322.

A notice to quit was not necessary. The relation of landlord and tenant did not exist between the mortgagee and the purchaser. Jackson vs. Hopkins, 18 Johnson, 487; Wakeman vs. Banks, 2 Connecticut, 445.

The judgment of the Circuit Court must be affirmed, with costs.

Judgment affirmed.