text:
    Samuel Merry, Plaintiff in Error, v. John Bostwick and George Seeber, Defendants in Error.
    EBB-pi^TO .MADISON.
    A conveyance made to one who is a creditor of the vendor, if made under circumstances of suspicion, and tainted with fraud in law, will be set aside.
    If a creditor who has two judgments proceeds to sell on one, and within the same year sells the same property on the other, a judgment creditor, who redeems from the first sale, will hold the property as against the second sale.
    The right of a debtor to redeem his property sold on execution, within twelve months, cannot be defeated by selling the same property on a second execution.
    Merry, the complainant, and plaintiff , in error, recovered two judgments against Bostwick, one at the January term, 1838, of the Alton Municipal Court, the other at the February term, 1838, of the Madison Circuit Court. Upon the judgment first rendered an execution was issued, and levied upon the property in controversy, in virtue of which the property was sold, and Merry became the purchaser. An execution was also issued upon the second judgment, which was levied upon the same property, and Merry also became the purchaser at the second sale. Seeber became a judgment creditor of Bostwick, and within fifteen months of the date of the first sale redeemed the property. The bill filed states nothing of the first judgment, and seeks to hold the property under the sale upon the junior judgment, as against Seeber, who had redeemed from the senior judgment as a judgment creditor.
    In 1845, the plaintiff in error filed his bill against the defendants in error, setting forth in substance, that he, plaintiff, obtained a judgment of $3,105.66§, and costs, against John Bostwick, one of said defendants, in the Madison Circuit Court, at the February term, 1838; that an execution was issued on said judgment, and levy made on the south-west quarter of section thirty-two, and east the half of the north-west quarter of section thirty-two, all in township six, range nine west, on the 16th December, 1838, and a sale made of said property to plaintiff, on the 37th January, 1840, at $300; that said property was not redeemed, and that the sheriff made and delivered a deed thereof to plaintiff; that the plaintiff also took another execution in said judgment, dated 38th February, 1838, and by virtue thereof levied upon a piece of land described as follows : “ The splendid house, out-houses, and about six acres of land upon which they are situated in Upper Alton, the late residence of John Bostwick, which premises are more particularly described, as follows, to wit: beginning at the east side of Seminary street, in Upper Alton, Madison county, Illinois, at the line between section six and seven, in town five north, range nine west, and running on said section line east forty rods; thence south, five degrees east, twenty-four rods; thence west, forty rods to Seminary street; thence north, five degrees west, on the east .side of Seminary street, twenty-four rods, to the place of beginning, containing six acres of land, more or less; ” which last-named execution, which was levied on the last above-named land, was returned to the clerk’s office before a sale of said land was made; that a venditioni exponas was duly issued on the 6th day of November, 1838, commanding the sheriff of Madison to sell the property thus levied upon, who sold the same to the plaintiff, after having duly given notice of the sale as required by law, at the sum of $300 ; that the sheriff made a deed therefor to the plaintiff, after the time of redemption had expired, the same not having been redeemed. That all the property mentioned herein was levied upon as the property of the defendant Bostwick. ■That Bostwick was the owner of said property, with some personal property, and being in apparent good credit from having the possession of the property aforesaid, the plaintiff was induced, in June, 1836, to contract the debt with Bostwick, on which his judgment was obtained. That in October, 1836, Bostwick, who was then insolvent, and for the purpose of defrauding plaintiff, his creditor, made a deed of the lands herein described to the defendant, George Seeber, his son-in-law, for the nominal consideration of $12,000; and that Seeber, with full knowledge of ■Bostwick’s insolvency, and with a knowledge that Bostwick intended to defraud the plaintiff, and without paying any consideration therefor, took a deed of said premises, from him, Bostwick. That since said deed was made to Seeber, Bostwick has always remained in possession of said property, and has made extensive improvements thereon with his own money. That from the date of said deed, until now, Bostwick has enjoyed the use and possession of all the property in the bill mentioned. That Bostwick has always professed to be the owner of said properly, and has observed the same care in-its preservation as .the real owner would do, and has not accounted at any time to .Seeber for its use. Has also paid all taxes thereon. That Bostwick was insolvent when the plaintiff’s debt was contracted, and when his judgment was rendered; and that Bostwick had no other property except that in the bill mentioned, out of which ■to make the said judgment. Charges combination and fraud, and prays that a decree may be made, requiring defendants to deliver possession of the property, and to make a deed of the property mentioned herein to plaintiff, and to his heirs and assigns; and on failure to do so, that a commissioner be appointed to make such deeds; and also praying that the said deed to Seeber be declared by a decree to be null and void, as to said plaintiff, and for such other relief as to equity and good conscience shall appertain. Also, that the answers may be without oath. To which bill Bostwick answers ; admitting the judgment of plaintiff, and a levy and sale of the property mentioned in the bill; and that there was no redemption, and that the sheriff made deeds, &c.; but denies that plaintiff derived any title from said sales, denying that he had title to said property when the sales were made ; and that the sale of the six acres of the land was void for want of a proper description, and makes the executions on which the land was sold a part of his answer; admits that all said land was levied upon and sold as Bostwick’s property, and that he owned it in the spring of 1836. Denies that plaintiff was induced to give him credit, on account of having the property in his possession, which plaintiff afterwards sold, and says that the inducement to give the credit was from receiving $1,000 in cash, and good indorser on the note, which indorser remained good for eighteen months after the note fell due; avers that he was solvent when said deed to Seeber was made; that he owed from $75,000 to $80,000, while his property was worth $160,000; says he made the deed to Seeber for a valuable consideration and in good faith, and to discharge a subsisting debt then due Seeber to over $12,000. That after paying $12,000 of said debt, by making said deed, he still owed Seeber $600 or $700, for which he gave his note, in October, 1836. Admits that he made improvements on the land to the value of over $4,000 after the sale to Seeber, with his own money, which was the consideration of a five years’ lease made to him by Seeber for the property. That since said lease has expired he has occupied part of the premises for taking care of them, and let some part, the rent whereof has been expended in keeping the property in repair. That he has taken care of said property since the termination of said lease at the request of Seeber; and that there has been no settlement between them since, because he could not rent the property. That Seeber paid the taxes during the time of the lease; that since he has paid them, except one year, which payment of taxes and taking care of the property was the consideration for using the property. Admits that since 1836, he has been agent of Seeber, and denies that he professed to be the owner, as alleged. Alleges that he sold property, between June and October, 1836, to the amount of $18,575, and that he was worth a large sum. That the property he conveyed to Seeber, was worth $12,000 ; and that he was paid in full therefor in the office of J. M. Krum, in Alton, Elinois, which consideration was made up of notes taken up by Seeber, at request of Bostwick, and under an agreement to pay them in Illinois property. That all the improvements he put on the six-acre lot was ¡$14,000 in value, including the §4,000; that in the latter part of the year 1836, he sold property to sundry persons to the sum of $93,700, &c.
    George Seeber answers: Admits the judgment of plaintiff, and taking out execution and sale of the property, and that it was not redeemed; that sheriff’s deeds were made therefor to plaintiff; but denies that Bostwick was then the owner of said lands, or that any title passed to plaintiff by the sale thereof, as he, Seeber, had been owner thereof from October 19th, 1836. ■Says, that the sale of the six acres of land in Upper Alton was void; because, first, of uncertainty in the description; and, secondly', that Bostwick was not the owner thereof when plaintiff’s judgment was obtained. He further avers, that the plaintiff, in January, 1838, in the municipal court of the city of Alton, obtained a judgment against John Bostwick for $1,006.66, besides costs, and took an execution, on which plaintiff purchased six acres of land in Upper Alton, at $500, on the 20th day of August, 1838; and from which sale the said Seeber redeemed the said six acres of land, on the 28th day of August, 1839, by virtue of a judgment for $774.68, rendered in favor of said Seeber against Bostwick, by confession, in the month of July, 1839, at the July term of the Morgan Circuit Court, and took a deed therefor from the sheriff, whereby he became owner of said six acres of land; that, when he-redeemed said land, he was satisfied that Bostwick had no interest therein, and that plaintiff took nothing by his purchase; but that he redeemed to prevent a lawsuit, which he thought might grow out of the plaintiff’s purchase ; that he redeemed against the advice of his counsel, and with a view to purchase his peace. Avers, that he has not resided in Illinois since the purchase of the land from Bostwick, but has resided 150 miles distant; that the six acres of land which he redeemed from the plaintiff’s first sale, and the six acres of land claimed by the plaintiff on his second sale, are one and identical, and that plaintiff received the redemption-money. Admits, that the property was taken and sold by plaintiff, as Bostwick’s property, and that he owned it in the early part of the spring of 1836; but that he did not own it when the judgment was rendered for plaintiff, and when the property was sold. Avers, that when Bostwick made the deed to him of said property, Bostwick was solvent, and had enough to pay all his debts; and that he, Seeber, took his deed in good faith, and to secure a debt of from $12,000 to $13,000, due from Bostwick to him; that, when the six acres were purchased, the materials for building thereon were estimated at from $9,000 to $10,000, which, with the value of the other property, made the consideration $12,000; that, after the sale, Bostwick proposed to take a five years’ lease on the six acres, at $800 a year, and, as the rent for the term, expend $4,000, which should complete the buildings, as originally designed ; that Bostwick has accordingly had the possession of said property ever since, as tenant or agent; and that he, Bostwick, never professed to claim it in any other right since the sale, &c. Says he paid the taxes during the lease, and that the rents have paid them since, except for one year; that Bostwick and himself had a general settlement at the end of the lease, and since that time he has examined Bostwick’s accounts, which have always proved satisfactory to him, Seeber. He avers that, when plaintiff sold the property herein mentioned, Bostwick had other property liable to execution, which was clear of incumbrance, and with which plaintiff could have made his debt. Knew plaintiff was a creditor when Bostwick made him his deed, and believed Bostwick then able to pay all his debts; that Bostwick owed him $12,700, for notes and bills, which he had taken up for Bostwick; that, after taking the property for $12,000, the said Bostwick gave Seeber a note for $700, on which the judgment was founded in Morgan Circuit Court, and under which he redeemed said six acres of land; that, in January, 1836, Seeber met Bostwick in Louisiana, who was there to settle his old debts; that Bostwick, had nothing but property in Illinois with which to pay the Louisiana creditors, who would not take it; whereupon, it was agreed between the defendants, that Seeber should buy up Bostwick’s paper, and that he, Seeber, was to. receive land in Illinois for all the paper he bought up, and for all the claims he also held against Bostwick, whereby he became the holder of paper to the sum of $12,700; that, in October, 1836, Seeber came to Alton, Illinois, to get the property, and, finding the property herein mentioned unincumbered, and the most valuable, Seeber took that, with an understanding with Bostwick that, at the expiration of the lease, Bostwick would sell other property, and pay Seeber his $12,700 and interest back again, and that Seeber would reconvey to Bostwick, the property embraced in the deed of October, 1836; that he could not sell the said property, after its purchase, for over $6,000, from the depreciation of property in the market; that the consideration which he gave for the notes and claims which he held against Bostwick was his own, and not the property of Bostwick. To the above answers exceptions were taken, and the exceptions sustained in part, and the report of commissioners sustained, and leave given defendants to amend their answer, and also leave given to amend original bill. John Bostwick’s amended answer to original bill goes on to specify the various species of indebtedness against himself, which fell into the hands of Seeber, and made up the consideration of the deed of October 9th, 1836, and also which formed the consideration of the $700 note, on which Seeber took the judgment in Morgan county.
    George Seeber’s amended answer to the original bill sets forth: that he received from Bostwick the $4,000 in improvements, as rent for the five years’ lease ; that, since 1841, he has allowed Bostwick to occupy a part of the house for taking care of it and renting the balance; that he has received $250; and that Bostwick has been his agent to oversee the premises. The residue of the answer retracts what Bostwick says as to the indebtedness, which was the consideration of the deed of October, 1836 ; averring, that he paid the full face of the paper taken up for Bostwick, and that all was due to him, when said deed and note were made, and which note was the one on which judgment was rendered, and on which his redemption of the six acres made.
    The amended bill of complainant avers, in substance, that the judgment rendered in favor of Seeber was entered on a warrant of attorney, without any consideration, and that it was got up between Bostwick and Seeber, to defraud and defeat the plaintiff of the benefit of his sale, from which Seeber redeemed by virtue of said judgment, and requiring a specific answer, as to the consideration on which said judgment was founded.
    Bostwick’s answer to the amended bill submits to the court, whether, after plaintiff has taken the redemption-money, he can impeach the judgment on the ground of fraud; but avers, that the note on which the judgment was entered was given to Seeber in October 19,1836, as the balance then due to him, Seeber; that, in 1839, Cowles and Krum, attorneys of Seeber, applied to him for the money, which he could not pay, and gave them the warrant of attorney to confess judgment. That he did not "know what Seeber intended to do with the judgment, when he gave the warrant of attorney to confess it; nor did Seeber know any thing of the matter at the time; nor does he know that the judgment was entered up for the express purpose of .redeeming the six acres of land.
    Seeber’s answer to the amended bill protests also, that the plaintiff, after taking the redemption money, cannot impeach the judgment for fraud, but says, in substance:— That in 1839 he inclosed the note to his attorneys, Cowles & Krum, for collection, and supposed that Bostwick would pay it, with directions to secure the same by suit, or otherwise. That a judgment was taken, and an execution and redemption as aforesaid. That the note on which the judgment was founded, was for the balance found due him in October, 1836, and that the note was then given, &c. Replications filed, &c.
    Testimony of John M. Krum is in substance as follows: That he drew the deed from Bostwick to Seeber; the consideration was $12,000. They had a settlement at that time, and affiant computed interest on notes, purporting to have been made by Bostwick, and accounts presented to him by them; that there was a balance over the $12,000, for which Bostwick gave his note at that time, and on which afterwards a judgment was entered, on a warrant of attorney, in the Morgan Circuit .Court; was Bostwick’s agent in 1835 and 1836, and made sales of real estate for him ; he was engaged in dealing in real estate, and in merchandising; built several stores and dwellings ; could raise money with great facility from bank and elsewhere, on account of his punctuality and business capacity ; had $150,000 of real estate during the first fifteen or eighteen months after coming to Alton ; from 1835 to 1837, it was supposed he had accumulated a large property; it rose rapidly from 1835 to 1837, from 100 to 500 per cent.; real estate-began to depreciate in the spring and summer of 1837; witness knew of property to be sold in 1838 for half its cost in 1836 ; Botswick sold $30,000 worth of property in 1836, greater part for cash ; also, sold $40,000 to John James, in January or February, 1837, and other large sales; that some money was paid and bills given for the balance; which were dishonored in June or July, 1837, when John Bostwick also failed to meet his paper, and let it go to protest; that up to this time he was reputed able to pay his debts.
    William Silliman testifies, in substance, that he knew Bostwick in Louisiana; that he left there in 1835; that he found him in Illinois, in 1836; that, from common report and from Ms own knowledge of Bostwick, he has no hesitation in saying, that when he left Louisiana, he was unable to pay his debts, and that he left debts behind him, and tfiat they must have been very heavy ; that Bostwick told him that he owed about $20,000 ; he also knew Seeber when he lived in Louisiana, who lived there many years; lived with Bostwick, and married Bostwick’s daughter; that from the connection between Seeber and Bostwick, he has no doubt but Seeber knew all about Bostwick’s pecuniary affairs; by reputation, Bostwick was insolvent, and he has no doubt he was truly so, when he left Louisiana.
    The testimony of Lea Hardesty, is in substance, that he knew Bostwick in Louisiana, as early as 1824; that he left there between 1834 and 1836; was clerk of the District Court; that Bostwick was always embarrassed, and that for more than a year before leaving he was considered insolvent; knew Seeber there, and that he was married to a daughter of Bostwick; that from his connection with Bostwick, and living with him, he must have been acquainted with his pecuniary circumstances; that Bostwick was considered insolvent for the ten years which he resided in Louisiana.

      Valentine H. Dunn, says in substance, that he knew Bostwick and Seeber in Louisiana, some eight or ten years before they left the State; he thinks they left in 1835, one going to Illinois, and the other to Missouri; that Bostwick brought to Illinois $2,200 or $2,300, as he told witness, which money belonged to Sophia, his daughter; that Seeber was worth several thousand dollars, and had loaned Bostwick money, as they said; that at the time Bostwick left Louisiana, he was insolvent.
    Charles M. Smith, swears in substance, that he knew Bostwick in Louisiana; he, witness, was his legal adviser, and knew his business; that he had some property in the name of his wife and Sophia Bostwick; this was sold for from $2,000 to $3,000, and the money taken by Bostwick to Illinois ; from his best recollection, Bostwick had the reputation of an insolvent at the time he left Louisiana.
    The depositions of Robert Harrison, Benjamin Green, Andrew McGilton, William G. Pinckard, John James, Ebenezer Marsh, Elias Hibbard, Nathaniel Buckmaster, William McBride, Samuel Wade, James Semple, Seth T. Sawyer, Abraham Breath, and Beal Howard, were taken to establish the following facts on the part of the plaintiff, to wit: That Bostwick, from the date of the deed to Seeber, in October, 1836, to the time of filing this bill, was in possession of said property, conveyed and claimed it as his own; and also that he exercised acts of ownership over the property during that time; that the property conveyed was of far greater value than the consideration expressed, in the deed; that John Bostwick was insolvent during the years 1836 and 1837, and that he was not able to pay his debts in June, 1836, nor in October, 1836, nor at any time afterwards; and also, that Bostwick had no property unincumbered, out of which the plaintiff could have made his judgment, without selling the property conveyed to Seeber. On the part of the defendants, they seek to establish by said witnesses, that Bostwick was solvent during the times spoken of, and could pay his debts, and that Bostwick did not exercise any other control over said property after the sale to Seeber, than as his agent. The plaintiff is of the opinion, that from the testimony last aforesaid, he has most conclusively proved the facts which he has aimed to establish. This will be more fully seen by a view of the depositions, which, by agreement, will be before the court.
    The next, and last piece of testimony, is a copy of the judgment from Morgan county, before William Thomas, Judge. This is a judgment for $774.58, entered on a warrant of attorney, and declaration filed on a note for $645.49, dated July 1, 1839. This judgment was rendered July 3d, 1839 ; and an execution taken out thereon, on the 24th day of July, 1839, directed to the sheriff of Madison county, and never returned.
    On the hearing of this cause, the Circuit Court decreed, that the deed to Seeber, of October 19,1836, conveying to him the south-west quarter, and the east half of the north-west quarter of section thirty-two, in township six north of range nine west, is declared fraudulent and void as against the title of plaintiff to the above described pieces of land, and that Seeber be required to convey them to plaintiff; and in failure, as the decree directs, that the commissioner make said deed; and that said deed, as to all the other pieces of land therein described, is, in all things confirmed and established, and that the defendants pay all costs, &c.
    William Martin and S. T. Logan, for plaintiff in error.
    Two sales of the same property on two different judgments between the same parties, may be made. 2 Watts, 30.
    A judgment by confession, not founded on valid consideration, is void,' if entered to delay creditors. 1 Atk. 162; 9 Johns. 243; 3 Desaussure, 270; 12 Wend. 41; Gales, Stat. 315; 5 Cowen, 548, 575, 586.
    A sale upon a judgment recovered on a fictitious debt, may be set aside. A judgment entered without consideration is void against a judgment creditor, or a bond fide purchaser, under a subsequent judgment. 7 Monr. 485; 1 Paige, C. R. 502, 508.
    Conveyance made to hinder and delay creditors, is void. 2 Johns. C. R. 44; 4 Johns. R. 583; 14 Johns. 499.
    Billings & Parsons, for defendants in error.
    As to when voluntary conveyances are fraudulent as to subsequent conveyances. 8 Cowen, 436.

      A judgment created for the purpose of redeeming, is valid. 2 Cowen, 519.

      Bond fide purchaser protected, notwithstanding fraud of grantor. 18 Wend. 36; 6 Cond. 229 ; 6 Paige, 526.
    A party cannot sell the same land twice before redemption, on two different executions against the same person. Merry’s second sale was therefore void. 4 Cowen, 136; 8 Johns. 332; 5 Hill, 228; 11 Ills. R. 521.
    If Seeber’s judgment was void, he had no right to redeem ; but Merry, having received the money on the redemption, is es-topped from denying the validity of the redemption. 15 Wend. 251; 8 Watts, 280; 7 Hill, 93; 7 Cowen, 552; 10 Barr, 528; 3 Hill, 220; 4 Denio, 148; 11 N. Hamp. 309; 4 Barr, 194; 6 Barr, 249; 10 S. & M. 146.
   Trumbull, J.

By consent, both parties have assigned errors upon this record. The complainant objects to that part of the decree which allows Seeber any portion of the real estate in controversy, and Seeber complains because he cannot have it all. That the deed from Bostwick to Seeber was fraudulent as to creditors we cannot entertain a doubt. It bears date in October, 1836, and purports to have been executed in consideration of twelve thousand dollars paid by the latter to the former.

The evidence clearly shows that Bostwick resided in Louisiana in 1835, and was then insolvent; that he removed from thence to Illinois the same year; that soon after coming to this State he engaged largely in land speculations, and, at the date of the deed to Seeber, had contracted debts, on account of the purchase of real estate, to the amount of eighty thousand dollars ; that Bostwick expended in improvements on the six acres in Upper Alton more than twenty thousand dollars, to say nothing of the other real estate embraced in the conveyance, and .that ten thousand dollars of this amount was expended after the date of the deed; and although Bostwick, according to the speculative value put upon his real estate at that time, was not insolvent, yet it appears that while in such flourishing circumstances, and when property was rapidly appreciating in value, he conveyed to Seeber two hundred and seventy-three acres of land in Madison county, besides the six acres on which he had then expended from ten to fifteen thousand dollars in the erection of a splendid dwelling, which he subsequently finished at a further expense of some ten thousand dollars, all, as Bostwick and Seeber insist, in consideration of the discharge of a debt due the latter of only twelve thousand dollars, and the use of the six acres and dwelling for five years, the parties themselves estimating the rent at $800 per annum. These circumstances, in connection with the character of the improvements made by Bostwick; the fact that he remained in possession and made improvements as well after the sale as before, all the while acting as, and being reputed to be, the owner; the fact that Seeber was his son-in-law; that Bostwick left Louisiana largely in debt, and if not insolvent when the conveyance was made, became largely so shortly afterwards, leave but little doubt that the conveyance was intended to place the property in a situation where it could not be reached by creditors, in case the speculations of Bostwick should turn out disastrously.

The year 1836 is distinguished as a period of reckless speculation and extravagance throughout the United States; and without commenting minutely on the mass of evidence in this record, all of which has been carefully examined, the whole case shows that the conveyance to Seeber was made, as well to place the property it embraced beyond the reach of creditors in case of a revulsion in the affairs of Bostwick, as to discharge a debt due to Seeber.

We think the evidence does show that Bostwick was indebted to Seeber in some amount; but this circumstance does not relieve the transaction from the taint of fraud in law. The statute makes void all conveyances made with the intent to delay, hinder, or defraud creditors of their just and lawful claims. The complainant has shown himself such a creditor at the time the deed to Seeber was executed, and as to him it must be set aside.

If this was the only branch of the case, there could be no doubt of the complainant’s right to have satisfaction of his debt out of the property conveyed to Seeber. But there is another feature in the case which prevents his holding the six acres on which the dwelling-house is situated, either on the purchase heretofore made or subjecting it to an execution hereafter to be issued. The complainant obtained two different judgments against Bostwiek, at different times, before different courts, and for different amounts. The elder of these judgments was rendered at the January term, 1838, of the Municipal Court for the city of Alton, and was for the sum of $1,006.66. The six-acre tract was sold on an execution issued on this judgment and purchased in by the complainant, August 20,1838, for $500, from which sale Seeber, as a judgment creditor, redeemed on the 28th August, 1839, by virtue of a judgment in his favor against Bostwiek, obtained in July, 1839, in the Circuit Court of Morgan county. The redemption-money was paid to the sheriff, and by him to the complainant, who received the same without objection. None of these facts are noticed by the complainant in his original bill, but Seeber sets them up in his answer, alleging that he made the redemption, not because the deed from Bostwiek was insufficient to convey him the title, but to avoid any litigation which might possibly grow out of it.

The complainant admits the judgment sale and redemption as alleged by Seeber in his answer, and seeks to avoid their effect in his amended bill, by alleging that the judgment under which Seeber redeemed was founded on a warrant of attorney executed by Bostwiek to Seeber without any consideration, “ to enable him to procure a judgment thereon which should be used by Seeber to defraud the complainant, and prevent him from enjoying the fruit of his purchase.” It is difficult to conceive how the complainant was to be defrauded of the benefit of his purchase by the redemption. In the very act of redeeming, Seeber refunded to the complainant the whole amount he had given for the land, with ten per cent, interest. This money the eomplainr ant received without objection, and still retains, without even an offer to return it. Under such circumstances, it comes with an ill grace from him to allege that he has been prevented from enjoying the fruit of his purchase. The legal presumption is that he bid for the property what he considered' it worth, and he knew at the time that the defendant in execution would have the right to redeem from his purchase at any time within twelve months, and if he failed to do so, that judgment creditors would have the same right for three months longer. If the redemption was invalid, as complainant, in his amended bill alleges, even then he could not succeed in this suit, for the reason that he does not pretend to claim the property on the first purchase, but under a purchase which he subsequently made at a sheriff’s sale on an execution issued upon a junior judgment. ,

The allegations and proofs must correspond, and the case made by the complainant, under his purchase on a junior judgment, is destroyed by the sale under the first judgment, whether redeemed from or not. Admit that the complainant could do so unjust a thing as to retain Seeber’s money, which is acknowledged to have been paid to redeem the property, and still have the redemption set aside, the consequence would be that he would then be entitled to the property on his first purchase, which would present quite a different case from the one stated in either the original or amended bill. But the idea is preposterous, that in a court of equity the complainant can have both the-land and the money paid for its redemption.

The complainant can claim nothing on his second purchase, made under the junior judgment, for the reason that Bostwick had no such interest in the premises, at the time that sale was made, as could be taken and sold on execution. The premises had been previously sold on an older judgment; and, before the defendant’s right to redeem had expired, within less than twelve months, the complainant caused them to be sold a second time, on a junior judgment.

The only interest which Bostwick then had was the right to redeem; and to allow this right to be sold on execution would defeat the whole policy of the law allowing redemptions. The right was designed as- a favor to the debtor, to afford him an opportunity to save his real estate by the payment, at any time within twelve months, of the price for which it sold, with ten per cent, interest; but it would be entirely cut off by allowing this right to redeem to be sold on a second judgment. Again, such a practice would interfere directly with the mode prescribed by the legislature for redemptions by judgment creditors. The law will not permit them to redeem till the expiration of twelve months from the first sale, and it would be inconsistent with this provision of the statute to allow a judgment creditor to accomplish the same object by a sale made within the twelve months.

It was suggested, upon the argument, that, admitting the second sale to have been invalid, and that the purchaser took nothing under it, still the complainant would have the right to have Seeber’s title, acquired by the redemption, set aside, and the property declared subject to the judgment which the complainant now holds against Bostwick. This cannot be, for the redemption by Seeber must be either valid or invalid. If valid, then he is entitled to the property; if invalid, then complainant is entitled to it under his first purchase, which he does not even pretend, nor could he with any show of justice, after receiving and retaining the redemption-money paid by Seeber.

In no event has Bostwick any interest in the premises which could now be made subject to complainant’s second judgment.

The decree of the Circuit Court is affirmed, with costs.

Decree affirmed.


source: Caselaw Access Project

author: Catón, J.

license: Public Domain

text:
    Joseph Gales et al., Plaintiffs in Error, v. David B. Anderson et al., Defendants in Error.
    ERROR TO HENDERSON.
    A license to keep a ferry between certain points, extending three miles on the Mississippi River, is not exclusive to that extent, but authorizes the establishment of the ferry from any point within the three miles, and when established, other ferries may be licensed within the same limits, so that they do not interfere with the ferry-ways of the ferry' first established. The ferry-ways of the ferry, when located, extend only so far as may be necessary for a convenient landing, and though the owner may have the right, as exigencies require, to change his ferry-landing after he has once established it; yet he has no such exclusive right of ferryage within the prescribed limits, as would prevent the licensing of another ferry within those limits.
    The County Commissioners’ Court, under the law authorizing that court to grant ferry license, was not authorized by any exclusive grants it might make to divest itself of the power to grant other ferries, within any prescribed limits, whenever the public good should require the exercise of that jurisdiction.
    This bill in chancery was filed to perpetually enjoin the defendants from interference with, complainants’ ferry privilege in Henderson county.
    In August, 1846, the complainants filed in the Circuit Court of Henderson county their bill in chancery against David B. Anderson and Henry L. Anderson, wherein they allege, that on the 5th day of September, 1842, that the County Commissioners’ Court of Henderson county, at a regular term of said court, passed and entered on the records of said court as follows, to wit:

      “ Ordained, that Thomas L. Thruston and John F. Webb have a license to keep a ferry across the Mississippi River, from the mouth of the running slough, above the residence of Thomas Morgan, and opposite the city of Burlington, to extend down said river to where the slough enters into the Mississippi River, or big slough opposite the small island; that they shall have the privilege of landing at Montreal in high water. And it is further "ordered, that an order passed the 7th of September, 1841, granting license to William H. Manro to keep a ferry, be rescinded.”
    The bill then alleges, that in pursuance of said order, and in conformity thereto, a license was in September, 1842, duly issued by the clerk of said court, to Thruston and Webb, they having first given bond, and otherwise complied with the laws of the State relating to ferries, authorizing them to keep a ferry across the Mississippi River, opposite Burlington, from the point where the running slough commences near Thomas Morgan’s, and down to where said slough empties into the river, or big slough, near the small island, with the right of landing at any point on the Mississippi River between the commencement and outlet of said running slough; and also to land at Montreal at high water.
    The bill then alleges, that Thruston and Webb, immediately after the granting of the license, and by virtue of the power, authority, and privileges thereby conferred on them, placed upon the Mississippi River, at the place mentioned in the license, a good, substantial, well-furnished steam ferry-boat, to run as a ferry between Burlington and that part of the Illinois shore of said river mentioned in their license, and which boat was adequate to the accommodation of the public and to the transportation of all persons and property to be ferried over the river within the limits of their license; and that from that time to the 6th of August, 1845, they kept the said boat well manned and provided for the ferriage, and did ferry all persons and property offered for ferriage across the river within the limits of their license; and that on the said 6th day of August, 1845, Thruston and Webb, by writing, under their hands and seals, on the back of said license, for valuable consideration, assigned and transferred said ferry license, and all the rights, privileges, and appurtenances arising under or growing out of the same, and delivered the said license to them and put them in the peaceable possession of said ferry, ferry privileges, steam ferry-boat, and furniture, and all things pertaining thereto; and that from that time to the commencement of the suit, the complainants had kept up and maintained said ferry, ready and prepared for the transportation of persons and property across the river within their ferry limits; the assignment of the ferry is as follows : —
    6£ Know all men by these presents, that we, Thomas L. Thruston and John F. Webb, the parties named in the within license, having heretofore held the same as trustees and agents for Joseph Gales and William W. Seaton, and for their use do, in consideration thereof, and at the request of the said Gales and Seaton, and for the consideration of one dollar to us by them in hand paid, by these presents assign, transfer, and set over the said license, and all the rights, privileges, and appurtenances thereunder unto them, the said Joseph Gales and William W. Seaton, their hens, executors, administrators, and assigns forever. Witness our hands and seals, this 6th day of August, in the year of our Lord, 1845.
    “ Thomas L. Thruston, [seal.]
    “John Freeman Webb, [seal.]”
    The bill then alleges, that Thruston and Webb were only the agents and trustees of the complainants, who were the real parties in interest, and that the complainants furnished the said ferry-boat and equipments at a cost of $7,000; and that they had since expended in repairs and in keeping then’ ferry in order, for the transportation of persons and property, about $2,000 per annum, and still maintain and keep up their ferry at about that annual expense; that they are owners of the following real estate in fee-simple, to wit: —■
    1. The north subdivision of the north-west fractional quarter of section four, in township 9 north, and range 6 west, containing 54 and 76 hundredths acres.

      2. The north-west fractional quarter of section nine, in township 9 north, 6 west, containing 9 acres.
    3. The south subdivision of the north-west fractional quarter and the south-west fractional quarter of section four, in township 9 north, 6 west, containing 92 and 34 hundredths acres.
    4. The north subdivision of the north-east fractional quarter of section nine, in township 9 north, 6 west, containing 39 and 85 hundredths acres.
    5. The south subdivision of the north-east fractional quarter (including the south-east fractional quarter) of section nine in township 9 north, 6 west, containing 44 and 2 hundredths acres.
    6. The north-east fractional quarter of section 33, 10 north, range 6 west, containing 153 and 5 hundredths acres.
    7. The north-west fractional quarter of section 33, in township 10 north, and range 6 west, containing 46 and 93 hundredths acres.
    8. And the bill alleges that the complainants were the equitable owners of the west half, south-west fractional quarter of section 33, in township 10 north, range 6 west, containing 29 and 90 hundredths acres.
    And with the bill the complainants exhibit title-papers, from which it appears that in March and April, 1846, the complainants acquired the legal title to the lands numbered 1, 2, 3, 4, 5, and 6, and that John F. Webb and Thomas L. Thruston, by their deed, dated the 23d day of October, 1845, duly conveyed to the complainants, their heirs, executors, administrators, and assigns, as tenants in common, the piece of land above numbered 8, with all and singular the rights, ways, franchises, femes, privileges, and improvements, and appurtenances, to the same belonging, or anywise appertaining, and to the charters, licenses, franchises, and ferry privileges, now and heretofore held and used by or in the name of the said Thruston and Webb, or either of them, between the said town of Burlington and the said Illinois shore, with the steam ferry-boat Shokoton, and as a ferry-boat between those places, to have and hold, &c., the said lands and appurtenances, franchises, &c., to the complainants, &c., forever; and all of which lands the bill alleges are situated in Henderson county, in this State, and bounded on the west by the Mississippi River, a stretch along the bank of the river three miles, and are all included within the grant of the said ferry privilege, granted to Thruston and Webb, and assigned to the complainants, and constitute their landing for said ferry; that ever since the grant of said ferry privileges to Thruston and Webb, an annual tax has been paid therefor to the county of Henderson.
    The bill then adds, that after the grant of the said ferry privileges to Thruston and Webb, and after they had put the ferry into full and successful operation, with boat properly manned and equipped, and ready and able to fully accommodate the public, and was employed in so doing, to wit, on the 25th day of July, 1844, the County Court of Henderson county, on the application of the defendants, David B. Anderson and Henry C. Anderson, made the following order, to wit: —
    “ Ordered, that the clerk of this court issue a license to David B. Anderson and Henry C. Anderson, of Burlington, la. Territory, to run a horse ferry-boat across the Mississippi, from the Illinois shore to Burlington, with the privilege of landing as far-north as the road near the line between township 9 and 10 north, 6 west, and have the privilege of landing at Shokoton when the water is high, or any intermediate point, upon the condition that they pay ten dollars tax and file his bond with approved security, conditioned according to law.
    The bill then alleges, that from the road mentioned in this order, for one and a half miles south down the river, is included in the grant to Thruston and Webb, which has been assigned to and belongs to the complainants, and that said one and one half miles constitutes the most important part of complainants’ landing ; and that the land for said one and one"half miles belongs to complainants, and that there is no landing within that distance except what belongs to complainants, and that the said grant to the Andersons was without the complainants’ consent, and without compensation to them, and without their franchise having been in any manner disused, forfeited, or abandoned; that the said D. B. & H. C. Anderson, immediately after the said order granting them a ferry privilege, a horse ferry-boat on the Mississippi River at said point, and from that time to the present, at intervals, when the water was low, and when the complainants’ franchise was most valuable to them, have continued to run said horse-boat across said river as a ferry, and to land on the land of the complainants, and within the boundaries of their prior grant, to transport persons and property for hire across said river, and landed them upon complainants’ landing, to their great injury and diminution of profit; that complainants have expended $20,000 in seeming their ferry privileges, purchasing land, and erecting buildings, and furnishing boats, &c., therefor, and running and keeping the same in repair, and at all times ready to accommodate the public as a ferry; and that in consequence of the aforesaid interference with their said franchise, they have thus far sustained a net loss of several thousand dollars; that when the river is high, the'ferrying difficult, and the profits small, the said Andersons withdraw their said ferry-boat, but when the river is low, so that a landing can be effected on complainants’ land, ferrying easy and abundant, and profits good, the defendants replace then ferry-boat at their ferry, and use the same in the transportation of persons and property for hire, landing on the complainants’ land, and within the limits of their prior franchise, and thereby diminish the complainants’ profits, so that their expenses exceed their profits.
    The bill then alleges, that the grant of said ferry franchise to Thruston and "Webb was exclusive within the limits embraced in the grant, and that the County Commissioners’ Court of Henderson county had no power or authority to make a subsequent grant of a ferry privilege covering the prior grant under which the complainants claim, without compensation being first made to them therefor, and that the said grant to the Andersons, so far as it interferes with the prior grant, is void; makes D. B. & H. C. Anderson defendants, and prays that an injunction issue against them, enjoining and restraining them and all persons acting under them, from ferrying across the said Mississippi River within the limits of the said grant of complainants, and from transporting persons and property across said river and landing them on the land of the complainants or within the limits of their grant, and from interfering in any way with the rights of the complainants in their said ferry; and that on a final hearing, said injunction might be made perpetual, with a prayer for general relief. Injunction issued according to the prayer of the bill.
    In November, 1846, the defendant, Henry C. Anderson, filed his answer to the bill, alleging that before the grant of the ferry franchise to Thruston and Webb, there was a State road leading from Peoria to Burlington, and that a part of it was reviewed and located in 1841, under an order of the County Court of Warren county, from the bluff to the Mississippi River, which is the road mentioned in the above order granting ferry license to the Aridersons; that before the order granting ferry to Thruston and Webb, a license to keep a ferry, and to land where said road terminated at the Mississippi River, had been duly granted by the Henderson County Court to John Phillips, or some one under whom he claimed, and that in pursuance of said license, a ferry had been run across the river, landing where the Andersons landed, till long after Thruston and Webb commenced running their ferry, so that Phillips or his grantors had the first ferry right and the first ferry-boat landing at the termination of said road; and that Thruston and Webb afterwards obtained their order and license, and established their ferry, running north of said State road; and that two ferries were considered necessary by the authorities on both sides of the river.
    The answer admits that Thruston and Webb obtained an order and license to keep a ferry, as stated in the bill, and that they executed bond, took out license, placed a boat, and commenced running their boat pursuant to license; admits the boat cost $7,000, and that awhile they continued, kept and fun said boat well furnished and equipped according to the license; denies they always did so, and charges that on one occasion they run their boat to St. Louis, and had no ferry-boat at the ferry for about six weeks; admits that Thruston and Webb, by indorsement on their license, for a valuable consideration, assigned to the complainants their ferry line, boat, furniture, ferry privilege, as alleged in the bill; but cannot admit that complainants have, since the assignment to them, regularly kept their boat well manned and furnished to transport all persons and property across said river, or that they have done so, but say, on the contrary, that they have engaged in commerce with their ferry-boat, and have at periods abandoned the ferry with the boat, and run her up the Fever River for wheat, and up to Oquaka and down to Nauvoo with passengers, leaving no other boat at the ferry; admits the execution of the title-papers exhibited in bill, but denies that complainants were the legal or equitable owners of any of the lands therein described, till long after the grant of the ferry to the Andersons; denies that the complainants own all the lands on the Mississippi shore continually to the distance stated in the bill, and particularly the land on which said State road terminates, which belongs to W. H. Manro, who has long owned the same, being west half of the south-west fractional quarter of section thirty-three, ten north, six west, or that complainants or Thruston and Webb own, or ever owned, the first two tracts below the mouth of the running slough mentioned in their license; that after Phillips left his said ferry and took away his boat and abandoned the ferry, the County Commissioners’ Court granted to the Andersons the ferry-privilege, and made the order stated in the bill; that they, on obtaining their license, placed a good horse ferry-boat on the river at the cost of $900, and continued to run, according to their license, in high and low water, and exercised said ferry-privilege legally and without interruption until D. B. Anderson transferred by writing his interest therein to John H. Goff and Isaac Nixon, in June, 1846; and since that time the respondent and Goff and Nixon have continued the ferry-boat, till they recently substituted and run in her place a superior new horse-boat at the cost of $1,500; admits that complainants have paid all taxes and bonuses required by Henderson county, and that the one and one half miles south of the State road is as important as any part of the three miles mentioned in the bill; denies the defendants withdrew their ferry-boat at high water, but says their boat was always running, and at times when the complainants’ boat was laid up; alleges that after the ferries of Thruston and Webb and of the defendants were both established according to law, and both necessary or at least convenient for the public, the complainants purchased of Thruston and Webb, subject to the ferry privilege of defendants, who had an equal and convenient ferry privilege on the Illinois shore; admits the defendants’ ferry has reduced the profits of complainants’ ferry; states that the west half, southwest thirty-three, ten north, six west, where the defendants and his associates have generally landed, does not belong to complainants, and insists on the right of defendants to land their ferry-boat within the three miles mentioned in the bill, to wit, where the State road strikes the river, and above the road as far as said west half, south-west thirty-three, ten north, six west extends, — 1st, because the road is devoted to the public; 2d, because the road is included in the grant to the Andersons; 3d, because the land does not belong to complainants as to the entire limit of the grant to the Andersons, and because the grant to Thruston and Webb was not exclusive; avers that the Andersons paid the bonuses and taxes, entered into the bonds, and performed all the acts required to obtain the benefit of the said ferry privilege, and makes a plat of a State road, marked S R, and the license to the Andersons, marked 4, a part of the answer ; admits no compensation was made to Thruston and Webb or complainants for the ferry privilege granted to the Andersons; admits the complainants received from Thruston and Webb, on their purchase, possession of said ferry-privilege, boat, &c., as stated in the bill; but denies that they or Thruston and Webb had an exclusive right by law or in fact, and prays a dissolution of the injunction.
    On the 5th November, 1846, the defendants filed an amended bill, repeating the substance of the original bill, and making John H. Goff and Isaac Nixon defendants, as purchasers of an interest in the ferry franchise granted to the Andersons, and requiring them to answer the original and amended bill, and praying for an injunction, &c.
    On the 26th of November, 1848, the defendant Henry C. Anderson filed his answer to the amended bill, admitting that Goff and Nixon had, at the time of filing the amended bill, acquired an interest in the Anderson ferry, and, in conjunction with one of the original defendants, continued to run their said horse ferryboat and ferry passengers and property across the Mississippi River and land them within the limits of the complainants’ ferry license; and alleges that the defendant, Henry C. Anderson, on the 18th September, 1847, purchased of Goff and Nixon all their interest in the said ferry, boat, &c., and received possession thereof, and now continues the ferry as aforesaid; and avers that in May, 1848, he purchased of N. &. L. Hopper a piece of land lying on the margin of the river on the Illinois shore and within the limits of the complainants’ ferry, and files with his answer title-papers which show that on the 3d day of February, A. D. 1845, L. & N. Hopper acquired the legal title to fractional section twenty-eight, in township ten, north range, six west, in Henderson county, containing forty-six one hundredths acres, and that L. & N. Hopper sold the same to the defendant H. C. Anderson on the 25th May, A. D. 1848, by a title-bond for $200, payable in $50 payments, in thirty days, six, twelve, and eighteen months respectively, and to be conveyed when payments completed. At the foot of this answer it was admitted by Anderson that the ferrying done and mentioned therein was by the defendants done both ways across the Mississippi River, and the property and passengers transported and landed for hire within the limits of complainants’ license.
    Replications were filed to the answers aforesaid, and the defendants D. B. Anderson and Nixon and Goff were, as non-residents, duly notified by publication of the pendency of this suit, and the bills duly taken pro confesso against them for want of appearance and answer.
    The cause came on to be heard at the September court, 1850, on the bills, answers, replications, exhibits, depositions, and parol testimony. The bills, answers, replications, and exhibits being read, the defendant then read certain depositions taken by him and on file, to show that the complainants had been inattentive to their ferry and regardless of the public accommodation, at times making travellers wait to be ferried over the river, and on several occasions being absent with their ferry-boat for several days, and once for several weeks, without providing other means for the public to cross the river.
    The complainants then called a witness, who related that he was and had been for several years, their agent in running their ferry; that in April, 1844, the ferry-boat was run to St. Louis for repairs, and was gone fourteen days; that that was the spring of the great freshet on the Mississippi River, and that when the boat was taken to St. Louis, and during all the time she was gone, the water was so high that the boat could not land within the limits of complainants’ license; that the boat was never taken away or absent from the ferry at any time when a landing could be made within the limits of the license, but has at all times when not obstructed by ice in the cold weather, or by high water, been run as a ferry-boat according to the license; the boat and accommodation of the ferry have been suitable and sufficient for the travel; whenever the boat was undergoing repairs another boat sufficient for the purpose has been put on; the distance covered by complainants’ license is three miles on the east bank of the Mississippi River, opposite Burlington; the bottom land between it and the bluff is low, generally overflowed more or less every year, and the distance covered by complainants’ license is necessary on that account to secure for the ferry a landing at the various stages of water; a less distance would not answer, and even with this distance it frequently happens that a landing cannot be effected within the limits of the license, either on account of the overflow of the bank of the river, or of the bottom between the bank and the bluff, covering the road so that passengers could not get out; when the water will permit, we always land within the limits of the license; the complainants have now on said ferry a new steam ferry-boat costing $8,000, and fully able and ready to accommodate all travel; the Andersons and those claiming under them have at all times landed within complainants’ ferry limits, and generally at the old State road and on complainants’ land. The complainants have been regularly taxed and paid the taxes for their ferry, and generally land about one half mile north of where the defendants land. All the land owned by complainants lies continuously on the east bank of the river.
    On the hearing the cause, the court dissolved the injunction, dismissed the bill, and decreed costs against the complainants.
    Gales and Seaton sued out this writ of error, and brought the cause to this court.

      Browning and Bushnell, for plaintiffs in error.
    R. S. Blackwell, for defendants in "error.
   Catón, J.

By the first section of the act of 12th February, 1827, it is provided: “ That whenever it shall be considered necessary to establish a ferry or toll-bridge across any lake, river, creek, or any other watercourse within the limits or upon the borders of this State, or to turnpike or causeway any public road or highway, it shall be the duty of the County Commissioners’ Court of the proper county, on due application being made by any qualified person or persons, to establish and confirm the same, by a special order to be made for that purpose, under such regulations, restrictions, and forfeitures as are hereinafter directed and pointed out.” The 9th section of the same act provides that “ the owner or owners, keeper or keepers, at all ferries and toll-bridges which are now or hereafter shall be established by law and kept agreeably to this act, shall have the exclusive privilege of the transportation or passage of all persons, their teams, horses, cattle, and other property, over and across the same, and be entitled to all the fare by law arising therefrom.”

Under the authority conferred in the first section quoted, the County Commissioners’ Court of Henderson county, on the 5th of September, 1842, passed the following order: “ Ordained, that Thomas L. Thruston and John F. Webb have a license to keep a ferry across the Mississippi River, from the mouth of the running slough above the residence of Thomas Morgan, and opposite the city of Burlington, to extend down said river to where the slough enters into the Mississippi River, or big slough opposite the small island; that they shall have the privilege of landing at Montreal, in high water. And it is further ordered, that an order passed the 7th of September, 1841, granting license to William H. Manro to keep a ferry, be rescinded.” Under this order, and the license issued in pursuance of it, the persons named therein established a steam ferry, which they maintained till the 6th of August, 1845, when they assigned their ferry-boat and franchise to the complainants, who have ever since maintained the same. The testimony shows that the distance between the two points named, extending along the east bank of the Mississippi River, is about three miles, and opposite the city of Burlington.

On the 25th of July, 1844, the same court granted a license to the Andersons by the following order: “ Ordered, that the clerk of this court issue a license to David B. Anderson and Henry C. Anderson, of Burlington, Iowa Territory, to run a horse ferry-boat across the Mississippi River, from the Illinois shore to Burlington, with the privilege of landing as far north as the road near the line between towns 9 and 10 north, 6 west, and have the privilege of landing at Stockton when the water is high, or any intermediate point, upon the condition that they pay ten dollars tax, and file their bond, with approved security, conditioned according to law.” In the exercise of the franchise thus granted, a horse-boat has been put on and kept up as a ferry, making a landing near the northern extremity of the limits prescribed in the order, and about a fourth of a mile south of the complainants’ landing, and about a mile and a half north of the south line of the limits prescribed in the order granting the complainants’ franchise. At least I infer these to be the facts, although the testimony fixing some of these points is very obscure, owing, no doubt, to the fact that it was not remembered, at the time the testimony was taken, that we are not as familiar with the relative location of the several points referred to, as were the persons then present. No controversy seems to have been made about these relative locations, else nothing would have been left to inference. The complainants allege that the establishment of this last ferry is an infringement upon their exclusive rights, which they seek to protect by a perpetual injunction.

That the complainants’ franchise is exclusive, the statute leaves no doubt. The ninth section above quoted declares that the owner of such ferry “ shall have the exclusive privilege of transportation or passage of all persons, their teams, horses, cattle, and other property, over and across^ the same, and be entitled to all the fees by law arising therefrom.” Here is most unquestionably an exclusive right granted to the ferryman to cross all persons, &c., upon the ferry thus established. The word same refers to the ferry; and when we ascertain where the ferry is, we know the extent of the complainants’ exclusive privilege. We f agree with the complainants’ counsel, that the landing-place is a necessary appurtenant to, and is indeed a part of the ferry as much as the ferry-boat. But such appurtenance does not extend beyond the ferry ways or necessary landing place. That this was the understanding of this section, by the legislature, is manifest from the fact that they thought it necessary, two years after, to pass another law, in order to extend the exclusive privilege. This is found in the second section of the act of the 22d of January, 1829, which prohibits the establishing a ferry after the first day of May, in that year, when that act took effect, within two miles of any established ferry, on the Mississippi, Ohio, Illinois, or Great Wabash Rivers. As the law stood from the 1st of May, 1829, till the 19th of January, 1833, no rival ferry could be established on any of the rivers named, within two miles of an established ferry; which, of course, gave the owner of such ferry an exclusive right of ferriage within that distance. By the act of the 19th of January, 1833, so much of the laws of 1827 and 1829 “ as prohibits the establishing of any ferry on the waters of the Mississippi, Ohio, Elinois, or Great Wabash Rivers, within two miles of any such established ferry,” was repealed. This certainly left the authority uncontrolled in the County Commissioners’ Court, to establish upon the rivers named rival ferries as near each other as they should think the public good might require.”

But it was insisted, that because the order of the court creating the complainants’ franchise allowed them to establish a ferry across the river, from one point to another on the east bank of the river, which are three miles apart, their ferry embraces the whole three miles; that their landing-place is three miles long on the east bank of the river, and that, as their ferry embraces the whole- of that distance, their exclusive rights are to that extent. If such is the proper construction of the order, and the court had a right to grant so extensive a franchise, there is no escaping the conclusion that the complainants’ rights are exclusive to that extent. We are of opinion that the reasonable and necessary construction of this order, is that the grantees of the franchise should establish a ferry and fix then’ landing-place at some point within the prescribed limits, and that the point thus selected should designate the location of their ferry, and limit their exclusive rights. In ordinary times, and in an ordinary stage of water, that it would be their duty to land there. When the stage of the water should render a landing there impracticable or inconvenient, they should have the right to land at other points. By changing their landing-place temporarily and from necessity, they should not be considered as abandoning their ordinary landing-place. The same construction must be given to the order creating the defendants’ franchise. Should we adopt the construction contended for by the complainants, we should have to hold that the defendants’ exclusive rights extend down the river to the county line,—the extent of the jurisdiction of the court, — for there is no southern limit prescribed in the order establishing the defendants’ ferry, at least none except by implication. But both parties, in the exercise of their franchises, have acted in conformity to the construction which we give the orders creating them. The complainants selected their landing-place on the west half of the south-west quarter of section thirty-three, and their agent informs us that this is their exclusive landing-place in an ordinary stage of water. When the high water compels them to abandon this, they land temporarily at other points, according to the exigencies of the case. The defendants have selected and occupied their landing about a quarter of a mile below that of the complainants, upon or near the township line, landing temporarily at other points, when compelled to abandon their ordinary landing in consequence of high water. With this evidence before us, we cannot doubt as to the location of these two ferries, and the exclusive rights of each are confined to the ferries thus located and used. Should we hold that the complainants’ ferry ways extend the whole three miles, as was contended on the argument, we might impose a burden upon them which would render their franchise valueless. If their ferry ways extend this whole distance, then they must be at all times ready to transport all passengers who present themselves within that distance, for they are bound to be prepared to transport all who present themselves on their ferry ways. But admit that their obligations would not be so extensive, still they are certainly bound to afford reasonable accommodations to the travelling public seeking to cross the river at their ferry. There may be, and indeed the evidence shows that there are, several important thoroughfares terminating upon the river within the distance which the complainants claim as their exclusive ferry landing. Shall they run a boat to each of these points ? If they have the exclusive privilege claimed, they are certainly bound to do so ; and then they have two ferries instead of one, when the order certainly establishes but one ferry. Suppose Burlington had been on this side of the river, and the order had been to allow the grantees of the franchise to establish a ferry to and from that city, specifying no landing-place. Could it be said that the whole city front would constitute their ferry ways, and that no other ferry could be established with authority to land within the city, no matter what the public necessities might require? Could it be said that their ferry ways and exclusive rights extend over private property lying upon the river, the owner of which is by the statute entitled to a preference, if a ferry is to be established upon it, and upon which the complainants could not land without becoming trespassers? Would they be bound, or would they even have the right to run a ferry from each travelled street abutting upon the river ? The reasonable construction of such an order would be, that they might select their point within the limits of the city, upon which they would establish their ferry, and that when selected, they had deferred their rights, which were before indefinite, perhaps with the right of changing their location, if they should choose to do so, without interfering with the rights of others. Suppose the order had authorized them to establish a ferry across the river from the county of Henderson to the opposite side, designating no point or any other limit, would it ever be contended that they had the exclusive right of ferriage on that river, for the whole county, and that all the travel of the county wishing to cross must come to one particular landing, or that they should or could establish a number of ferries many miles apart ? Such a right or duty was not contended for under this license; and the County Commissioners’ Court has no authority to grant a license to keep a ferry, with any more exclusive rights than are guaranteed by the statute. The commissioners cannot confer rights which will prevent them from establishing such other ferries as the public convenience may require.

The first section above quoted provides, “ That, whenever it shall be considered necessary to establish a ferry,” &c., it shall be the duty of the County Commissioners’ Court of the proper county, on due application being made by any qualified person or persons, to establish and confirm the same by a special order, to be made for that purpose,” &c. Here is a duty imposed, as well as a jurisdiction conferred, upon the Commissioners’ Court. The public convenience and the express law require them to perform this duty; and they cannot divest themselves of the power to do so, by granting rights inconsistent with its performance. The commissioners are clothed with this jurisdiction, in order to subserve and promote the public interests, and not for their private benefit; and they have no right to barter away those public interests, by divesting themselves of the power to perform an important duty to the public, which the law conferring the jurisdiction enjoins upon them. If they have a right to grant a ferry license in such a way as to prevent them from establishing other ferries, which, in their judgments, or in the judgments of their successors, the public good might require, they might impose an intolerable burden upon the community for all time to come. It is no answer to say, that the law enjoins upon the grantees of the franchise, to put on as many boats, and to land at as many different points within the prescribed limits, as the public convenience may require. As before shown, such a construction of the license might authorize and require the establishment of several different ferries, instead of one, while the establishment of but one was manifestly contemplated by the order. If the commissioners have the right to grant to one man, or one company, the entire monopoly of ferrying to and from a particular city, they may grant to one an exclusive right to do all the ferrying in the county; and such a monopoly would not only shock the sense of propriety of every reflecting mind, but would be in palpable violation of the spirit and intent of the law. We all know, what the testimony in this record makes most manifest, that, where there is an extensive line of travel, the public accommodation is not sufficiently subserved by placing in the hands of one man, or one company, an exclusive right to do all the ferrying, although they may be required by law to provide sufficient boats to do the business. The terrors of a legal prosecution are not sufficient to procure that prompt, eager, and zealous desire to accommodate the public, which are secured by the stimulating influence of rivalry. The evidence in this case shows, that the ferrymen upon the complainant’s boat were much less accommodating, and that the public was much less efficiently served, before the defendant’s boat was put on, than has been the case since. Formerly, it was a very common, if not a universal, practice, on the complainant’s boat, to refuse to carry over a single passenger or team; but they would wait till others should arrive before they would make the trip ; and it was not unfrequent for them to delay for hours, for no other cause. We are also told by the witnesses, that the public convenience has been materially promoted by the establishment of a new ferry, in securing the passage of the river at times when the old ferry could not or did not run. During one winter, the horse ferry-boat run from fifty to sixty days, when the steam ferry-boat refused to cross at all, but was laid up; and yet, if it had not been demonstrated, by the actual running of the defendant’s boat, it might have been very difficult to establish in a court of justice that, during that time, the complainant’s boat might have been run with safety. These considerations of public convenience are not referred to with a view of showing that any rights vested in the complainants may be taken from them in this mode; but they show the wisdom of the law in withholding from the County Commissioners’ Court the power to grant a license which will prevent them afterwards from establishing such other ferries as the public good may require.

The whole scope of our ferry laws contemplate a ferry landing at some specified point. Thu's, the third section of the act of 1827, under which this license was granted, provides as follows : “And such ferry keeper shall, at all times, keep the place of embarkation and landing in good repair, by cutting away the banks, and erecting wharves and causeways, when necessary, so that passengers, their teams, horses, cattle, and other property, may be embarked and landed without danger or unnecessary delay.” The location of the ferry is at such point of embarkation and landing, which the owner of the ferry is bound to keep in repair, and must be confined to such point, with the reasonable privilege of landing at other places, temporarily, when the stage of the water renders that necessary. At the point selected for his ordinary landing-place, are his ordinary ferry ways, and this is necessarily appurtenant to his ferry; and it is there that his exclusive right of ferrying exists, which is protected from intrusion under any subsequent grant. Suppose this had been a license to erect a toll-bridge, with the same description of location which we find in this order, the party might, with equal propriety, claim that his exclusive right extends over the whole three miles; and yet it has been expressly decided, that he would have defined and limited his rights by the selection of the location and the erection of the bridge. The Cayuga Bridge Company v. Magee, 6 Wend. 85. And that case even goes so far as to decide, that he could not change his location for the erection of a new bridge, after the first had been destroyed. The mere practicability of changing the location, does not vary the character or extent of the exclusive rights conferred. The same fiction, which would make a ferry landing three miles broad, might stretch the abutments of a bridge to the same extent.

When this license was granted, the right to locate the ferry was ambulatory within the three miles, till it was fixed by the establishing of the ferry, and the selection and occupancy of the landing-place; and we will not say, that the owners of the ferry might not afterwards change their permanent location, should they find it convenient and necessary to do so; and, as we know from the character of the river, from very necessity, they must have the right, at high water, to land temporarily at other points. This right is manifestly contemplated by the order itself; and this necessity may serve to explain the indefinite expressions used as to the location of the ferry. Surely it was never the intention of the court to compel the grantees of the franchise, under the third section of the act above referred to, to make a practicable landing, the whole extent of the three miles upon the river; nor did they ever intend to assume any such obligation; and yet, such would seem to be their duty, if their ferry, — their place of embarkation and landing, — is thus extensive. They were, in our opinion, authorized by the order and license to select their landing-place within the prescribed limits. They did so select it; and there is their ferry, and to that is their exclusive right confined ; and the establishment of another ferry, at another point, although within the same limits from which they were authorized to make their selection, is no infringement upon their rights.

The decree of the Circuit Court is affirmed.

Decree affirmed.