author: Caton, J.

text:
    James Rogers, plaintiff in error, v. Richard H. W. Brent, defendant in error.

      Error to Lee.

    A judgment, of the Circuit Court is a lien upon land held by the defendant in the judgment, at the time of its rendition, under a Certificate of entry or purchase from the United States, and such lien is not affected by a subsequent assign» ment of his certificate by the defendant and the issuing of a Patent from the government to the assignee.
    A. entered a tract of land in the United States Land Office; while he held the land under his certificate of entry, a judgment was recovered against him in the Circuit Court, execution issued, the land sold on the execution, and a deed, in due time, made by the sheriff; subsequent to the sale, and before the time of redemption expired, A. assigned his certificate of entry to B. who received a Patent for the land from the Government, and then conveyed to C.: Held, in an action of ejectment brought by C., that the sheriff’s deed related back to the judgment and operated a complete transfer of A’s title; that the assignment from A. to B. only passed the right of redemption ; that this right not having been exercised, the assignment to B. was wholly void, and the Patent issued on such assignment fraudulent, and to be treated in this action as conveying no title to the ^patentee as againt the claimant under the sheriff’s deed, and that C. could not recover in the ejectment.
    A title derived from the Government is to be adjudged by the same rules of law as one derived'from an individual owning the fee, and when the Government is made the instrument of fraud in granting title, Courts will interfere to protect the injured party as readily as in cases of fraud between individuals.
    The Common Law Courts may entertain jurisdiction of questions of fraud, and a conveyance, whether by deed from an individual, or by Patent from the Government, although executed with all the forms of law, when obtained in fraud of the rights of others, may, in an action of ejectment, be disregarded by the Court as void, at the instance of the injured party or those holding under him.
    No statute should be so construed as to protect a fraud; and the fourth section of chapter forty of the Revised Statutes, which enacts that a Patent for land shall be deemed and considered a better legal, and paramount title in the .patentee, his heirs, or assigns, than the official certificate of any Register of a Land Office of the United States of the entry or purchase of the same land, does not apply to a Patent obtained by a fraud on the holder of the certificate, in a suit with such holder or his assigns.
    It is the right of a party, when he offers evidence in its proper order, which proves, or tends to prove any necessary fact in the case, to have it go to the jury: for the reasonable presumption is, that it will be followed by such other proof as is necessary for its proper connection; and if it is not, it then becomes irrelevant, and, if desired, may be withdrawn from the jury.

      Ejectment, brought by the defendant in error against the plaintiff in error, and tried at the August term, 1848, of the Lee Circuit Court, Before the Hon. Thos. C. Browne and a jury-
    The plaintiff below, to show title, gave in evidence a Patent from the United States to Jesse Bowman, assignee of Samuel M. Bowman, for the premises in question, and a deed from Jesse' Bowman and Anna Bowman to himself for the same lands.
    The defendant below then offered in evidence a certificate of George Mixter, Register of the Land Office at Dixon, Illinois, dated the 20th of August, 1847, that Samuel M. Bowman, on the 19th of May, 1840, purchased the lands in suit from the United States and made full payment for the same at that time; and defendant below stated that he expected to prove, that the certificates of sale on which the Patents issued, were held by said Samuel M.- Bowman and not assigned by him until the 6th of April, 1843; to the reception and reading of which certificate the plaintiff below objected, which objection was sustained by the Court, and the certificate excluded, to which decision the defendant below excepted.
    The defendant below then offered in evidence a certified copy of the assignment (of the duplicates upon which the Patents aforesaid were issued), from Samuel M. Bowman to Jesse Bowman, dated the 5th of April, 1843, which copy was duly certified by Richard M. Young, Commissioner of the General Land Office, under the seal of the General Land Officeto the reception of which, plaintiff below objected, and his objection was sustained, and the said certificate and copy of assignment excluded; to which decision the-defendant below excepted.
    The defendant' below then offered in evidence the record of a judgment in said Lee County Circuit Court, rendered September 12'th,-1842, in favor of H. F. Rodney and William Rodney, and' against Samuel M. Bowman and Charles A. Lane, partners, &'c., to the reception of which record the plaintiff below objected, and his objection was sustained by the Court, and the record excluded, to which decision defendant below excepted.
    The defendant below also offered in evidence an execution issued on said judgment against Bowman & Lane, under the seal of said Lee County Circuit Court, dated the 28th of September, 1842, with the sheriff’s return thereon, showing a levy, appraisement, and sale of the premises in question (the sale under date of December 26th, 1842) to E. Southwick, plaintiff’s attorney, and also a sheriff’s deed to said lands, under said sale, dated December 17, 1844, all of which papers were separately offered, objected'to by the plaintiff below, and excluded by the Court; to which several decisions the defendant below excepted.
    The jury found a verdict for the plaintiff, on which the Court rendered judgment, and the defendant sued out his writ of error.
    The plaintiff in' error assigned for errors the several decisions of the Circuit Court in-excluding the evidence recited above.

      I. 0. Glover fy B„- 0. Cook, for the plaintiff in error.
    The legal persumption that a deed was executed on the day it bears date, never obtains when the deed is proved to have been in the hands of the grantor subsequent to its date. 1 Denio, 323.
    Delivery is essential to make a deed operative. Bryan v. Wash, 2 Gilm. 565; Ferguson v. Miles, 3 do. 364; Hulick v. Scovil, 4 do. 159,
    Á title acquired subsequent to the commencement of the action is not sufficient, for in such case the defendant does not, at the commencement of the suit, wrongfully withhold the possession- as averred in the declaration.
    The certificate ofithe- Register was evidence of title in Samuel M. Bowman at the time of the sale of the land on the judgment. Rev. Stat. 232; Delaunay v. Burnett, 4 Gilm. 454.
    The case of McConnell v. Wilcox only decides that a certificate is not evidence as between the United States and a third person;.-

      There is a distinction in this case. Here, the question is not as against a conflicting Patent, or as against the United States, but as to what constitutes the first transfer of title from the purchaser.
    To say that a person who has purchased lands of the United States may, after judgments are rendered against him and the land sold on execution, assign the duplicate, and defeat the purchase, would open the door to enormous fraud.
    Lands are taxed from entry and before they are patented. Is not a judgment for taxes a lien?
    The assignee of the duplicate was chargeable with notice of the judgment.
    The United States, after sale and before the Patent issues, is a trustee for the purchaser or his assignees, and the law may execute the trust and convert the equitable into a legal title.

      E. S. Leland, for the defendants in error.
    The certificate of the Commissioner of the General Land Office is not sufficient to prove when the certificate of entry was assigned The certificate supposed to be assigned, or a certified copy thereof, should have been produced, in order that the Court might see whether the assignment of said certificate is valid. It should appear from the certificate that the paper, of which a'copy is given, is a. paper belonging to the Office of the Commissioner. 2 Story’s U. S. Laws, 1238.
    There is a variance between the judgment and the execution offered in evidence by defendant; also between the sheriff’s deed and the judgment. Den v. Farlee, 7 Halst. 326; same v. Morse, ib. 331; same v. Wright, 1 Peters’ C. C. R. 66.
    The defendant below was not injured by the exclusion of his offered evidence, because there is no evidence in this case, nor was any offered, to connect him with Southwick’s title.
    An action of ejectment tries the legal title. An equity can not prevail against the legal title in ejectment. The interest purchased at the sheriff’s sale can be only an equity. Bagnell v. Broderich, 13 Peters, 436; Wilcox v. Jackson, ib. 498; Acts of 1838-9, page 196.
   The Opinion of the Court was delivered by

Caton, J.

This was an action of ejectment, and upon the trial in the Circuit Court the plaintiff below introduced a Patent from the United States, for the premises in question, to Jesse Bowman as assignee of Samuel M. Bowman, dated on the 1st of May, 1843, which was followed by a deed from JeSse Bowman to Brent, dated December 1st, 1846. The plaintiff then proved the possession of the defendant, and closed his case.

The defendant then offered to prove by the Register’s certificate, that the land in controversy was entered at the Land Office by Samuel M. Bowman on the 19th of May, 1840, and that he assigned his certificate of purchase to Jesse Bowman on the 5th of April, 1843. He also offered the record of a judgment in the Lee Circuit Court, against Samuel M. Bowman, which was entered on the 12th day of September, 1842, upon which an execution was issued on the 28th of the same month, by virtue of which the sheriff levied on the premises in question, and advertised and sold them according to law to Southwick, who obtained a sheriff’s deed on the 17th of December, 1844. A.s each portion of this evidence was offered it was objected to, and ruled out by the Court, and an exception taken. A verdict and judgment were entered for the plaintiff.

It is first necessary to inquire what rights were acquired under the judgment and sheriff’s sale and conveyance, as against the patentee and his grantee, and then whether these rights could be asserted and vindicated in this action of .ejectment.

By section one, chapter fifty seven, of the Revised Statutes, “all interest of the defendant or any person to his use, held or claimed by virtue of any deed, bond, covenant or otherwise for a conveyance, or as mortgagee or mortgagor of lands in fee, for life, or for years,” are made subject to execution. This language is sufficiently comprehensive to embrace the interest of a purchaser of Government land while he holds the certificate of purchase, and before the Patent issues. But that no doubt might be left on the subject, the third section provides, that “the legal holder or holders by record of any certificate of purchase of lands from the United States, shall be deemed to be within the true intent and meaning of this chapter.” At the time of the recovery of this judgment, the issuing of the execution, and of the levy and sale under it, Samuel M. Bowman was the legal holder of record, of the certificate of purchase for the premises, as the assignment to Jesse Bowman was not made till the 5th of April, 1843, about seven months after the judgment was recovered. All of the interest which Samuel M. Bowman ever had in the land, whether legal or equitable, passed to Southwick by the sale under the excution and the sheriff’s deed, as completely as if the transfer had been by voluntary conveyance, and Southwick was as much entitled to a Patent in-the one case as he would have been in the other, and such is the effect given to these judicial transfers by the General Government. See Opinion of U. S. Att’y Gen’J, Pub. Land Laws, part 2d page 3.

The nature and extent of the interest of a purchaser under a certificate were before the Supreme Court of the United States, in the case of Carroll v. Safford, 3 Howard, 441; as well as the right of the State laws to control and dispose of that interest. In that case the Court said: “When the land was purchased and paid for, it was no longer the property of the United States, but of" the purchaser. He held for it a final certificate which could no more be canceled by the United States, than a Patent. It is true, if the land had been previously sold by the United States, or reserved from sale, the certificate or Patent might be recalled by the United States as having been issued through mistake. In this respect there is no difference between the certificate holder and the patentee.” The right of the State authorities, under the State laws, to dispose of lands absolutely, thus situated, was fully sustained in that case.

At the time of the assignment by Samuel M. Bowman, he had no interest in the premises except the right of redemption, of which the assignee never availed himself, and the sheriff’s deed must relate back to the time of the judgment, which was notice to all the world of everything which was legally done under it. The rights acquired by the . sheriff’s deed stand upon as high ground as if the Patent had been issued to Jesse Bowman without any assignment at all; for as to those rights the assignment was utterly void. The assignor had no interest which he could assign except the right of redemption, and the assignee was bound to know this. A Patent issued under a void assignment could convey no more right than one issued upon a second sale when the first was valid, and in such a case, the Supreme Court of the United States has said that the Patent conveys no title. In the case already- referred to, on page 461, the Court said : “Now lands which have been sold by the United States can in no sense be called the property of the United States. They are no more the property of the Unites States, than lands patented. So far as the rights of the purchaser are concerned they are protected-under the patent-certificate as fully as under the Patent. Suppose the officers of the Government had sold a tract of land, received the purchase money, and issued the patent-certificate, can it be contended that they could sell it again-and convey a good title? They could' no more do this than they could sell land a second time which had been previously patented. When sold, the Government, until the Patent shall issue, holds the mere legal title-to the land in- trust for the purchaser.”

Suppose this land had been regularly assessed for taxes as the property of Samuel M.' Bowman, before he assigned to Jesse Bowman, and sold for non-payment of the taxes, the redemption expired, and a tax deed executed, would it be contended that the Patent subsequently issued to the assignee would defeat the tax deed, in a' Court of Law? And yet it would be difficult to show how the tax deed would convey any higher title or greater interest than the sheriff’s-deed. Suppose the Patent had been issued to Samuel M. instead of Jesse-Bowman, would it be contended that the Court might not go "-behind that Patent, and protect the rights acquired under the sheriff’s ~sale? And yet Jesse - being chargeable with notice, acquired no better title under the Patent than Samuel M. would have acquired, had it been issued to him.

The Commissioner of the General Land Office is not a judicial officer, and his determination concludes the rights of no one. 1 McLane, 535. If he issues a Patent to a person not entitled to it, either the State or Federal tribunals may inquire and determine who has the better right. This is no “interference with the primary disposition of the soil-by Congress.” 3 Howard’s (U. S.) R. 461.

A title derived from the Government is no better than one derived from an individual owning the fee, and must be adjudged by the same rules of law; and a fraud may as well be perpetrated in obtaining a title from the Government as from an individual, and it is the duty of the Court to protect the injured party against the one as well as the other. A fee simple title is the same, come from whatever source it may, and a fraud is none the less a fraud because the officers of the Government are imposed upon and made the instruments of its perpetration.

That a Court of Equity would treat the holder of the Patent title as a trustee, and compel him to convey to the one entitled to it under the sheriff’s sale, was hardly denied upon the argument, and the only serious question made is, whether a Court of Law has the power to investigate this question of fraud and protect the party against it.

The jurisdiction of the two Courts is almost equal in their right to try and determine questions of fraud, but their means of proving the fraud are not equal, and their mode of granting relief is widely different. The superior facilities of a Court of Equity to investigate the question and to grant the relief, render it frequently advisable to resort to that Court at once, but that is no reason why the party may not avail himself of such relief as a Court of Law can give him when he can prove the fraud. Courts of Equity, in cases of fraud, frequently affirm the fraudulent act, and compel the party who has fraudulently obtained an apparent right, to transfer it to the person who is in equity entitled to it, while the Court of Law, for want of such a power, will treat the fraudulent act as a nullity — as if not done át all. The books abound with cases where, in actions of ejectment, an apparently good title is treated as a nullity, because it was obtained by fraud. Hardly a day passes but the Common Law Courts are inquiring whether the conveyance relied upon was not made to defraud creditors, and when the fraud is established, the deed is held to be void. This doctrine and practice are too familiar to require a reference for their sup-port, and yet this record presents in principle just such a case. Surely the rights of the, purchaser at the sheriff’s sale are no worse than they would have been, had the fraudulent act been done before the sale, or before the judgment. Had Samuel M. Bowman purchased of an individual instead of the Government, and taken a bond for a deed, his interest, under our statute, would have been subject to sale under the execution, and it would hardly be denied that a Court of Law would treat as a nullity, a deed to the assignee of Samuel, when it was established that the assignment was made and the deed obtained to defraud creditors, or to defeat a title previously obtained by a sale under an execution against Samuel. The ease supposed is parallel with the one before us. Both would be treatd alike in a Court of Equity, and they must share the same fate in a Court of Law.

But Courts of Law are not limited in their inquiries into fraudulent conveyances, to cases where the title was obtained to defraud creditors, but their jurisdiction on this point" seems to be almost universal. Courts of Law, as well as Courts of Equity, have even gone so far as to break in upon and disregard the express provisions of legislative Acts giving a preference to certain conveyances, as well as the conveyances themselves, where the deed and the statute are attempted to be used for fraudulent purposes. Such is the case when a junior deed, which has been recorded, and . thus, by the terms of the recording Act, is entitled to a preference over a senior unrecorded deed, is set up in opposition to the latter, the grantee in the junior deed having ■ notice of the prior conveyance. Jackson v. Burgott, 10 Johns. 457, was an action of ejectment, and the defendant relied upon a deed dated subsequent to that of the plaintiff, but of prior registry, and one of the points made by •the defendant’s counsel, was, “That if he had notice, the lessor of the plaintiff cannot avail himself of that fact' in a Court of Lawbut it was held, that the subsequent purchaser, having had notice of the prior conveyance, the deed to him was fraudulent and void, and that a Court of Law had concurrent jurisdiction with a Court of Equity to try the question of fraud, and that it would disregard the fraudulent deed. Chief Justice Kent said: “The foundation of the English doctrine is the -fraud of a second purchase •under a knowledge of the first, and when that appears, (as it will in almost all cases where the second purchase is made with a knowledge of the first, and with a view to-defeat it,) it cannot consist with the honor of the law, or with the wisdom of the administration of justice, that the fraud should remain triumphant.” Again, he says, “and Courts of Law have concurrent jurisdiction in all cases of fraud. Fraud will invalidate in a Court of Law as well as in a Court of Equity, and annul every contract and every conveyance infected with it.”

Upon a like state of facts in the case of Morris v. Gill, 1 Chip. 49, Chief Justice Chipman held the same rule, and said “That it would be mischievous to allow such fraudulent acts to prevail in a Court of Law, only to turn the parties over to a Court of Equity, where they would be immediately set aside. Fraud, if fully proved, invalidates every transaction, as well at Law as in Equity.” Neither the recording Acts of England, of New York, or Vermont, make any exception where the subsequent recorded deed is obtained mala fide, but, by their terms, give all such junior deeds a preference over a prior unregistered conveyance. Still, we see that Courts of Law will inquire into the fraud, and refuse to give effect either to the statute or the deed, where the design is to perpetrate a fraud. Rarely will the Courts of Law be called upon to extend the doctrine further than this.

In order to show the universality of this rule, and the extent to which Courts of Law will investigate questions of fraud, we will refer to two cases of another class, where it was admitted by the Court that there was no fraud in fact or intended fraud, but merely a fraud in law, for which the deeds were only voidable, and not absolutely void. Den v. McKnight, 6 Halst. 385, was an action of ejectment. The plaintiffs claimed the premises as heirs at law of Thomas Moore, deceased, and the defendant claimed under a deed from Haines, executor of Burton, who derived title through Abbott, the grantee of Burton, who had conveyed the premises as executor of the plaintiffs’ ancestor. The Court found that the conveyances from Burton, as executor, to Abbott, and from Abbott back to Burton, were merely color-able, and that the sale was in reality by the executor to himself, and hence in law fraudulent. In speaking of sales made by trustees to themselves, the Court remarks : “They are, I think, voidable, not void. They may be avoided by the cestuis que trust, and their heirs, from whose ratification, they may, even as to themselves, become valid. Strangers or third persons cannot impeach or question them.” Upon the power of the Court to take cognizance of the question, the Court says: “The lessors of the plaintiff may availthemselves of the objection to the validity of these deeds, in the present action of ejectment, and are not obliged, in order t© impugn them, to resort to the Court of Chancery.”

The same question arose upon a similar state of facts, except that the sale was by an administrator under an order of the Court, in the case of Den v. Hammel, 4 Harr. 73. The Court there said: “The next question is, whether a sale and conveyance under the decree, if fraudulently made by the administrator, can be avoided in a Court of Law, or whether relief can be had only in a Court of Equity. The cases preclude all doubt on this point.” “The authorities show that a fraudulent deed may be invalidated in a Court of Law if the fraud can be sufficiently proved.” Indeed, in none of these cases were the fraudulent deeds absolutely void, but were only voidable at the election of the injured parties or their representatives.

In the case before us, had the original grantor been an individual, although innocent of the fraud, a Court of Law would hold the conveyance to the fraudulent grantee void, and refuse to recognize it, and why shall not the same rule prevail where the conveyance is from the Government? Itis notdeniedthatina Court of Equity the rule would be the same. The Government was but a naked trustee, and its conveyance conveys no better title, and is entitled to no higher immunity, than that of any other trustee who holds the legal title.

The law is, that the Common Law Courts may entertain jurisdiction of questions of fraud, and that a conveyance, whether it be by deed from an individual, or by a Patent from the Government, although executed with all the forms of the law, when obtained in fraud of the rights of others, may, in an action of ejectment, be disregarded by the Court as void, at the instance of the injured party, or those holding under him.

But it was argued that our statute precludes the Court from inquiring into the validity of a Patent when opposed to a final certificate. So far from that being the case, we think the statute, if it affects the question at all, strengthens the right of the person claiming under the certificate, to resist a Patent fraudulently obtained, for it gives to his title an effect in a Court of Law before unknown.

Sec. 4, chap. 40, Rev. Stat., provides, that ci the certificate of any such Register of the entry or purchase of any tract of land within his district, shall be deemed and taken to be evidence of title in the party who made such entry or purchase, or his heirs or assigns, and shall enable such party, his heirs or assigns to recover the possession of the land, described in such certificate, in any action of ejectment or forcible entry and detainer, unless a better legal and paramount title be exhibited for the same.”

Sec. 5. “A Patent for land shall be deemed and considered a better legal and paramount title in the patentee, his heirs or assigns, than the official certificate of any Register of a Land Office of the United States, of the entry or purchase of the same land.”-

There are two prominent provisions in these two sections. The first is, that the equitable title, which is evidenced by the Register’s certificate, shall enable the party to recover in an action of ejectment; and the other is, that the legal title, which is conveyed by the Patent, is paramount to such equitable title. The first proxdsion is a new one, and secures to the party holding the equitable title aright which did not exist at the Common Law; while the second is merely the affirmance of a Common Laxv principle, and designed to prevent the previous provision being so construed as to make the equitable title paramount to the legal. It was certainly competent for the Legislature to confer upon the Courts of Law the right to protect an equitable title in an action of ejectment. Indeed, they may give the Courts of Law just so much equitable jurisdiction as they please, and prescribe the mode in which the relief shall be granted. Such is the character of the jurisdiction conferred by this statute. It is true the statute does not authorize a party to defend his possession with such equitable title, but that follows as a necessary consequence of his right to recover upon it. As before remarked, the word paramount, in this statute, is used for the purpose of still preserving the Common Laxv distinction in the grade of title, and to give a preference to the legal, when fairly obtained, over the equitable title. So, in cases arising under the registry Act. There the title acquired by the.deed first recorded, is, in as unqualified terms as are used in this statute, declared to be paramount, and yet in an action of ejectment, when it is tainted with fraud, by the construction uniformly given, it loses its paramount character and must give way to a title which, by the letter of the law, is made inferior to it. By reason of its superior equity the latter prevails. When the apparently paramount title is infected with fraud, it is not the better legal title within the meaning of the statute. The Courts of Law are expressly authorized to protect and enforce this equitable title, and it was never the intention of the Legislature to defeat it by one nominally of a higher grade, but which was obtained in fraud of it. Such a result would' not comport with the manifest intent of the Legislature or a just administration of the law. If the construction contended for must be adopted by the Courts of Law, then the same rule must be adhered to by the Courts of Equity, and then the fraud must triumph everywhere. No statute should be so construed as to protect a fraud, for it is not to be presumed that the Legislature so designed it. When they intend such a result, they will use language which is not open to construction. If our statute gives a fraudulent Patent title a preference over another which, by the very act, is raised above its common law level, then have the Legislature weakened and prostrated that very title which they intended to elevate and strengthen. We have before shown that the Supreme Court of the United States has said, that a Patent issued upon an unauthorized entry, made after the officers of the Government had sold the land, received the purchase money, and issued a patent-certificate, conveys no title. 3 Howard, 461. And yet the construction contended for would make the Patent conclusive against tire certificate holder. The statute was designed for the use and benefit of of the certificate holder, and must not be so construed as to make it destructive of his rights, which might have been protected by the Common Law.

We will now notice the case of Bagnell v. Broderick, 13 Peters, 436, to which we are referred by the defendant in error, and which, it is insisted, is in point for him. That was an action of ejectment, and the plaintiff relied upon a Patent to John Robertson, jr., issued upon the plat and certificate of location of the Surveyor General, which were in the name of the patentee, under a special Act of Congress, authorizing the relinquishment of certain lands which had been injured by an earthquake, and the location of other lands in lieu of them. There was “evidence in the record tending to show that the Morgan Byrne (under whom the defendants claimed) had made the relinquishment of the New Madrid claim;” but the same evidence showed that the location certificate was granted to John Robertson, jr.’ The defendant relied upon a statute of Missouri which provides that an action of ejectment may be maintained upon “a New Madrid location,” and the decision of the Courtis placed expressly upon the ground that the defendant had no such title as would, under the statute. maintain an action of ejectment, and hence could not defend their possession under the statute. After stating the case and referring to the statute, the Court says, “Our opinion is, first, that the location referred to in the Act is the plat and certificate of the Surveyor, returned to the Recorder of land titles:” and after stating the reasons for this construction of the statute, the Opinion proceeds: “The survey having been made and certified to the Recorder in the name of John Robertson, jr., Byrne had no title which would sustain an ejectment in any case, and of course those claiming under him cannot successfully defend themselves under the evidence they adduced.” What the Judge who prepared the Opinion of the Court seems to think the decision would have been, had a different case been presented, we do not feel called upon to examine, as it does not concern us. We find no authority, in the case referred to, conflicting in the least with the views which we entertain of the law applicable to the case before us.

Having shown in what way it was competent for Rogers to prove that he did not, in the language of the issue, “unlawfully withhold the possession,” it only remains to-be seen whether the evidence which he offered, and which was excluded by the Court, tended to prove such a case j for, according to Mr. Greenleaf, .the Court was authorized to “exclude all evidence of collateral facts, or those which are incapable of affording any reasonable presumption or inference as to the principal fact or matter in" dispute.” 1 Greenh Ev., § 52. Was the evidence offered incapable of affording such reasonable presumption or inference ? On the contrary it was the very foundation of the case which it was competent for him to prove. Without it, all other evidence would have been useless. Without it, it was impossible for him to make out his proposed defence. The question is, not whether it was sufficient of itself to make out the defence, but would it aid to make out the case ? Would it tend to prove the defence ? Most cases have to be proved by a succession of distinct facts, neither of which standing alone, would amount to anything, while all taken together form a connected chain, and establish the issue, and from necessity a party must be allowed to present his case in such detached parts as the nature of his evidence requires. It would be no less absurd than inconvenient, when proof is offered in its proper order, of'one necessary fact, to require the party to go on and offer to prove at the same time all the other necessary facts to make out the case. Such a practice would embarrass the administration of justice, and prove detrimental to the rights of parties. It may be that Eogers was bound to connect himself with Southwick’s title, before he could insist that the Patent was void, because obtained in fraud of such title, but he must first prove such title to exist, before he could connect himself with it, and this he was not ■ allowed to do. If he was bound to connect himself with Bowman’s creditors, to avail himself of the fraud practiced upon them, he must first show that there were such creditors, and the judgment which proved this was ruled out by the Court. It is the right of the party, when he offers evidence xn its proper order, which proves, or tends to prove any necessary fact in the case, to have it go to the jury ; for the reasonable presumption is, that it will be followed by such other proof as is necessary for its proper connection; and if it is not, it then becomes irrelex-ant, and as such, if desired, may be withdrawn from the jury. If thei-e is anything to induce the suspicion that the time of the Court is being trifled with, it may be proper to call upon counsel to state the connection, which they expect to give the proposed evidence, but this should ordinarily be avoided, as it is often embarrassing for counsel to anticipate their case in the presence of the opposite party. It may sometimes happen that evidence is offered so out of its proper place as to authorize the Court to exclude it for want of a proper foundation. As in this case : Had the sheriff’s deed been offered without the previous proceedings, it might have betn properly excluded, till the proper foundation for it was shown. No such objection, however, existed in this case. The party commenced at the foundation of his case, and offered to establish the first necessary fact, and when that was ruled out lie still persisted in offering to prove subsequent parts of his case dependent upon those previously offered and rejected, till his repeated offers had almost the appearance of wrestling with the opinion of the Court. ' He proceeded as far as duty or propriety required, for it was apparent then, as it is now, that the evidence was ruled out because it was the opinion of the Court that it was not competent to defeat the Patent, by the case which the evidence tended to show, and not because the party did not propose evidence enough. Nor has it been insisted here that the evidence was ruled out because Rogers did not offer to connect himself with Southwick’s title, but the whole effort has been to sustain the decision upon the other ground. •

We are of opinion that the Court erred in rejecting the evidence offered, and for that reason the judgment is reversed with costs, and the cause remanded.

Judgment reversed.


source: Caselaw Access Project

author: Trumbull, J.

license: Public Domain

text:
    Isaac B. Potter, appellant, v. Leonard Dennison, appellee.

      Appeal from Lake.

    Whenever a factor barters or otherwise disposes of the goods of his principal, in a manner not authorized by his principal, and not within the ordinary and accustomed modes of transacting the like business, the principal may follow and reclaim the property, wheiherthe person dealing with the factor knew him to be such or not, and although the factor was in possession of the goods, and sold them in his own name.
    If, however, the principal, by any act of his own, has induced such third person to believe he has given the factor authority so to dispose of the goods, the principal can not reclaim the goods.
    Although the owner of goods permit his agent to transact the ordinary business of a merchant, with such goods, in his own name, yet the owner is bound by the acts of his agent only so far as they are within the ordinary mode of transacting, that particular branch of business; provided there are no circumstances tending .to show that 'he permitted the agent to use his own name with a view of imposing upon others.
    When it is necessary for the plaintiff to execute a'deed to the defendant before he brings his suit, and he does all in his power towards such execution, but is prevented by the defendant from completing it, his rights in the suit will be the same as if the deed had been executed/
    An objection, whether well or ill taken, that the appellee, being plaintiff below, split his cause of action into two suits, cannot be assigned for error in the Supreme Court when no such objection was taken in the Circuit Court.
    Replevin and Trover, brought by the defendant in error against the plaintiff in error, and tried at the March term, 1848, of the Lake Circuit-.Court, by the Hon. Jesse B. Thomas, the parties dispensing with a jury. Both suits were between the same parties, depending on the same facts, and tried together on the same evidence. The defendant pleaded the general "issue, and property in himself, to the declaration- in replevin, and the general issue alone in the action of trover.
    The plaintiff below read in evidence at the trial the depositions of Elisha El Dennison and E. W. Hoyt, and on their testimony submitted his case.
    Said Dennison testified substantially as follows: that he is the son of the plaintiff below, who is a farmer residing in Sackett’s Harbor, Jefferson county, State of New York; that the said plaintiff, Leonard Dennison, bought part of the goods in question in his own name at Albany, Buffalo, and Oswego, in the State of New York, and a part of them at Chicago, Illinois, and that another part of them was bought by the said witness, in his own name, at Little Fort, Lake county, Illinois ; that the goods bought by Leonard Dennison, were bought at witness’ request, and for him to sell, and that his (witness’) interest in the trade was common with that of Leonard Dennison; that there was no agreement between Leonard Dennison, plaintiff, and the witness, upon what terms witness was to sell the goods, or what was to be his compensation; that the plaintiff accompanied a part of the goods to Little Fort; that there witness opened a store with the goods in question, advertising and selling them in his own name; that he continued to do business thus for the term of ten months in the years 1846 and 1847; that he never did become the purchaser of said goods or any part or portion of them from the plaintiff, or any other person, or any interest therein; that on the 4th of June, A. D. 1847, he sold the residue of the goods then on hand to the defendant below; that the consideration received from the said defendant was the conveyance of 240 acres of land in Lapeer county, Michigan, to Leonard Dennison; that he (witness) received the deed as the agent of Leonard Dennison; that the deed was by the witness given up to the grantor to be destroyed on the 19th June, 1847, (which was three days after the execution thereof) and that he (said Potter) acknowledged that he had destroyed it; that the reason why the deed was given up was because witness exchanged said land with Potter for twelve shares of copper stock in the Mineral Creek Mining Company; that the said Potter represented that the company was doing a good business, and had, the year before, made a dividend of thirty three per cent, and that such representations induced him to exchange the land for copper stock. The witness then narrates the ex parte statements of Isaac E. Berry and George Gibbs, that the certificates of stock were worthless, and says that Potter admitted he knew they were so; that witness was informed that the stock was forfeited to the company for a failure to pay up the assessment; that the land was exchanged for copper stock on the 19th June, 1847 ; that six hundred and twenty seven dollars and seventeen cents of the property, (a schedule of which is given in the deposition,) was replevied from and delivered over to Leonard Dennison, and that property of the value of two hundred and forty eight dollars and eighty three cents ( a schedule of which is also given) was not replevied because the same could not he found ; and that Potter admitted the sale of certain articles (specified by witness) contained ¡jin that schedule.
    To all the testimony relating to the exchange of land for copper .stock, the defendant below objected, because the testimony given showed that the goods in question had been conveyed to the defendant for the Lapeer land, and that any other trade had no relation to the issue.
    E. W. Hoyt, for the plaintiff below, testified, that on Saturday before the commencement of the suit, Potter, the defendant below, admitted in his presence to Leonard Dennison, the purchase of the goods from E. E. Dennison for the Lapeer land; the subsequent exchange of the land for copper stock; that Potter declined the delivery of the property purchased to Leonard Dennison, and said he could not find his deed for the Lapeer land, &c.; that he marked out on the ground where he thought it was. situated, and said he had never heard the name of Leonard Dennison mentioned until he'was requested to make the deed to him.
    The testimony of the defendant was in substance as follows : N. P. Davost testified that he published a newspaper at Little Fort, called the Lake County Herald, from the 28th of August to the 9th of September,-1846, in which E. E. Dennison advertised himself as a dealer in stoves, iron, nails, grind stones, stone and hard ware, and gave a copy of such advertisement.
    Henry W. Blodgett swears, that from the 2d day of April and for three months thereafter he was the publisher of a weekly newspaper at Little Fort, called the Lake County Visitor, and that during that time he published for E. E. Dennison a Card, (a copy of which he recites,) and that he mailed in each week of that time a copy of said paper, directed to Leonard Dennison, atSackett’s Harbor, in the State of New York. •
    Upon the foregoing testimony the Court found the issues in both cases for the plaintiff, and assessed his damages, in the action of trover, at two hundred and seven dollars and thirty nine cents.
    The defendant moved for a new trial, on the ground that the verdicts were against the evidence, against the law and the evidence, and because of newly discovered evidence, which last ground was supported by affidavits. The motion was overruled and judgment entered on the verdicts. The defendant excepted and brought the cases here by-appeal.

      J. II. Collins, for the appellant.
    I. The defendant in error, having allowed Elisha E. Dennison to hold himself out as the owner of the goods, cannot noW deny that he was the owner, and is bound by his acts.
    It was an admission, which, having been acted upon, is conclusive against defendant. 1 Greenl. Ev. § 207.
    “Admissions which have been acted upon by others are conclusive against the party making them, in all cases between him and the person whose conduct he has thus influenced. 2 Kent’s Com. 614.
    “It is of no importance whether they were made in express language to the person himself, or implied from the open and general conduct of the party.” Vide 1 Maul. & Sel. marginal page, 147.
    II. At least the defendant in error cannot deny that Elisha E. Dennison, if an agent at all, had full discretionary power to dispose of the goods in any way he pleased.
    The defendant has 66 clothed the agent with all the apparent muniments of an absolute title, and authorized him to dispose of the property as sole owner,” by giving, him the possession, and permitting him to hold himself out to the world as sole owner, and to buy,- sell, and exchange at-pleasure. Story’s Agency, § 227; Pal'ey’s Agency, 325.
    It is not shown what the nature and extent of the agency were, except by the acts and admissions of the principal and agent. E. E. Dennison, by whom, as is apparent from his manner of testifying, any necessary fact could have been proved, does not pretend that his agency had any limitation. By his acts, done with the knowledge of his principal, he appears to have been clothed with unlimited powers. He sold, purchased and bartered in his own name. The oats, lime, notes for lime, and other articles sued for, show that he did not transact an ordinary factorage or commission business.
    Why did not Elisha E. Dennison swear as to the limitation of his powers, if they had any limit ? The question whether the sale of the goods for the land was out of the usual course of trade, is one of fact and not of law, and the onus probandi is with the defendant in error.
    III. The deed from the plaintiff in error to the defendant in error vested the legal title to the lands given for the goods; and the title was not divested by a surrender of the deed, or its cancellation. And before Dennison could recover for the goods he should have made out and tendered a deed to Potter for the land.
    “When a deed has been duly executed and delivered, a subsequent surrender or destruction will not divest the estate conveyed by it.” 1 Johns. Ch. R. 344.
    IV. The defendant in error cannot maintain both actions. He cannot split or divide his claim, and bring replevin- for part of the goods and trover for the residue. Fanington Smith v. Payne, 15 Johns. 431; Smith v. John, ib. 227; Philips v. Berick, 16 do. 136; 1 U. S. Dig. 65, §§ 190, 191.
    The evidence is the same in all respects in both cases; and the deposition of E. E. Dennison shows that the goods replevied were all that could be found, and that for the remainder of the goods the trover suit was brought.

      It is proved then in both cases, by the defendant in error, that he has brought two actions for the same identical injury.
    In the trover suit the evidence that the defendant in error has brought two actions for the same cause wa's admissible under the general issue. But as the defendant in error has introduced the proof, he cannot object to it in either action on the ground that the plaintiff in error did not plead it, either in abatement or bar. If he will make the proof, the plaintiff in error may raise any question upon it which he might, if the facts so proved were properly pleaded.

      R. TV. Hoyt and L JY. Arnold for the appellee.
    I. The sale not being in any of the modes recognized by law as within the scope of a factor’s power, and not being shown to have been sanctioned or authorized by the custom and- usage of trade at the place, and no special authority which would sanction and support the sale in this extraordinary and unusual manner having been shown, it was void, and no title passed thereby to the purchaser. Story’s Agency, § § 126, 225-6; Dunlap’s Paley’s Agency, 212, 213,218; 2 Kent’s Com. 621, 623.

      “A factor is a bailee of goods or money to merchandize, (or buy and sell,) for the profit of his principal, and render him an account thereof.” 1 American Leading Cases, 478; 2 Kent’s Com. 622, b; Story’s Agency, § 33 and note 3.
    Ignorance of the fact that the vendor is an agent, will not take the case out of the rule, that such unauthorized sales are void. Story’s Agency, §§ 225, 227; 2 Kent’s Com. 625; Dunlap’s Paley’s Agency, 219; and see 218 to 220.
    There is only one exception to this principle, and that is where the purchaser has a set-off, and deals with the agent as principal in ignorance of his true character. This is manifestly an exception. 2 Kent’s Com. 632. Nor will the fact of the agent’s conducting the business in his own name take the case out of the general rule which makes the unauthorized sale void. This is a power or right incident to the relation, sanctioned and recognized by. law, and not dependent upon the express authority or sanction of the principal. Story’s Agency, § § 34, 110, 112, 401, a.
    There are only two exceptions to the general rule first stated. 1st'. Sales in market overt. 2nd. Where the agent is clothed by his principal with all the apparent “muniments of an absolute title.” Dunlap’s Paley’s Agency, 212; Story’s Agency, § 227.
    It is said that “in no other way than by clothing the agent with these muniments of title, can the principal bring himself into wrong.” Dunlap’s Paley’s Agency, 219.
    By muniments of title is meant “title deeds,” “invoices,” “bills of purchase.” See Dunlap’s Paley’s Agency, 215, note (g,) and 219. Or, possession off negotiable instruments, which is evidence of ownership. But even here there must be a bona fide consideration paid. Paley’s Agency, 233, and note a; Story’s do. §228; also see 227; 2 Kent’s Com. 626, (marginal.)
    II. The sale was void on the ground of want of authority, coupled with notice that plaintiff was in some way interested in the property, prior to completion of the purchase. The request to make the deed to plaintiff was sufficient to put the defendant on inquiry as to whether E. E. Dennison was the true owner.
    III. It was void on the ground of fraud. 1. There were fraudulent representations as to value of the copper stock. 2. The evidence tends to show: that defendant had no title to the land. 3. It was one entire transaction, connected by the evidence of intention from the beginning, to get the property without payment of value therefor and by fraud.
    The deed was never delivered to plaintiff. It was delivered to his general agent in the particular business, re-de-liveredto defendant, and by him destroyed, showing that the parties did not regard it as having been delivered so as to make it operative to vest title in plaintiff. As to when assent will be presumed, in case of delivery to a stranger or third person, see 15 Wend. 659; 12 do. 1056; Hulick v. Scovil, 4 Gilm, 159; and U. S. D. Supplement, vol. 1, 550, § 664.

      . IY. The motion for a new trial was properly denied. If the above positions are correct, the finding on the issues was authorized by the evidence. As to newly discovered evidence, it must be material. 2 Tidd’s Pr. 906. It must not be merely cummulative. 1 Scam. 491.
    Courts will not grant a new trial unless the rules of law and purposes of justice require it. Gilm. Dig. 538-9; Tidd’s Pr. 906
   The Opinion of the Court was delivered by

Trumbull, J.

The records in these cases show, that Leonard Dennison, the plaintiff in the Court below, resided in the State of New York; that he furnished a quantity of goods, chiefly hardware, to be sold by his son, Elisha E. Dennison, at Little Fort, Lake county, Illinois; that Elisha carried on the business in his own name, but in fact had no interest in the goods; that after having been engaged in the business some ten months, he exchanged the entire stock of goods with the appellant for lands in Michigan; that the deed for the lands was made to Leonard Dennison, the father, and delivered to Elisha; that a few days after this arrangement Elisha made another trade, by which he agreed to surrender up to appellant the lands in Michigan for twelve shares of copper stock in the Mineral Creek Copper Mining Company, which turned out to be worthless, and in pursuance of this last arrangement he delivered up to appellant the deed to his father, which was destroyed.

Not long after the above transactions took place, the appellee came to Little Fort, claimed the goods as his, and that Elisha had no authority to dispose of the same in the manner it had been done.

H called upon the appellant in company with his son, offered to re-convey the Michigan lands to appellant and to return to him the copper stock, and demanded the goods. Potter refused to give, up the goods, and appellee brought an action of replevin for such portions of them as he could find, and sued in trover for the balance.

The two cases were tried together, by consent of parties, and upon the same evidence.

The Court found the issues for the appellee, and gave judgment that he recover the goods replevied, and damages to the amount of $207-39 in the action of trover.

The appellant moved for new trials, which were denied, and now assigns for error the findings of the Court, and the refusal to grant new trials.

The first point made by appellant is, that the appellee, by suffering his son to hold himself out as the owner of the goods, cannot now deny that he was such owner, and is bound by his acts. . .

There is evidence in the record tending to show that the appellee must have known that his son was carrying on the business in his own name, though there is no positive proof of the fact; but admitting that there was such proof, is he thereby precluded from showing the facts in the case ? We think not. Factors may and often do sell goods in their own names. Story’s Agency, §§ 110 and 134. And yet the principal, whenever his factor has bartered or otherwise disposed of the goods in a manner not within the ordinary and accustomed modes of transacting the like business, may follow and reclaim the property; and in such a case, it is wholly immaterial whether the person dealing with the factor knew him to be such or not. Ib. §§ 224 and 225; Dunlap’s Paley’s Agency, 219.

If the appellee had, by any act of his, been the means of imposing upon the appellant, and inducing him to believe that his son was clothed with authority to barter off the store of goods for Michigan lands, the case would be different ; but there is no such evidence in the record, nor is it even shown, with certainty, that he knew in whose name his son was carrying on the business.

But suppose he did know and permit his son to transact the ordinary business of a merchant in his own name, he would even then be bound by his acts only so far as they were within the ordinary mode of transacting that particular branch of business, provided there were no circumstances tending to show that he permitted him to use his own name with a view of imposing upon others. A sale of goods by the son under- such circumstances for cash, or any other disposition of them in accordance with commercial transactions, would have bound the appellee, but when one deals with a merchant in so extraordinary a manner as to purchase his entire stock of goods for wild lands, he is bound to inquire strictly whether the person with whom he is dealing has authority to make an agreement so unusual, and if he will not do so, he runs the risk of having the goods taken from him by the real owner in case it should after-wards turn out that they did not belong to the person with whom he dealt.

“A factor cannot dispose of goods in the way of barter,” Dunlap’s Paley’s Agency, 213. If he do, the owner may sue the innocent purchaser in trover. 2 Kent’s Com. 625. In the case of Guerreire v. Peile, 3 Barn. & Ald. 616, the plaintiffs, who were merchants resident at Oporto, consigned the wines in question for sale to Bannester & Vidal, merchants in London. Bannester & Vidal employed one White, a broker, to sell the same, and he by their orders exchanged the wines with the defendants for a quantity of rum. White did not know that Bannester & Vidal were only factors in the transaction and there was no evidence that the defendants knew the fact. Bannester & Vidal having subsequently become bankrupts without having accounted to the plaintiffs for the proceeds of the wine, they brought an action of trover against the defendants. At the trial the jury were instructed, “that if they were of opinion that Peile & Co. knew Bannester & Vidal to be factors they should find for the plaintiffs; and supposing they did not know that fact, if the jury thought that this was a transaction^ the ordinary course of trade where parties are dealing with their own commodities they would find for the defendant.” The jury found a verdict for the defendant. Subsequently a rule nisi for a new trial was obtained, and Abbot, C. J. in making the rule absolute said: “my learned brothers think I ought to have told the jury upon these facts, that this was a transaction of barter, and that the plaintiff’s property was not divested, because a factor has no authority to barter; and I am also of that opinion.”

The cases before us are much stronger than that of Guerreire v. Peile. That was a small transaction, the exchange of merchandise for merchandise. This is an exchange of an entire stock of goods, all the man had, and not for goods, but for lands.

There is moreover some evidence in the record to show that Potter had notice before the exchange was consummated, that Elisha E. Dennison was not the owner of the goods. The deed to the Michigan lands was not made to him, but to his father, a circumstance sufficient to have put him upon inquiry when making so extraordinary a trade, and from this circumstance the Circuit Court may have been justified in coming to the conclusion that he knew, or might by the use of ordinary diligence have ascertained, that the goods did not belong to the person with whom he was dealing. Rodriguez v. Heffernan 5 Johns. Ch. R. 417. Notice at any time before the exchange was consummated by the delivery of the deed would have been' in time.

Another objection made to the recovery in these cases is, that the appellee, by the delivery of the deed from Potter became seized of the Michigan lands; that his title was not divested by the surrender up of the deed, and that it was necessary for appellee to re-convey before he could maintain these suits. If such was the law the appllee did all he could to comply with it before bringing suits. He had no means of ascertaining the description of the lands. He applied to the appellant for a description and proffered to re-deed the lands, but the appellant either could not or would not furnish such description, and-having by his own default put it out of the power of the appellee to make a deed, such act is equal to performance. Hastram v. East India Co. 1 T. R. 639.

It is also objected that the appellee had no right to split the cause of action and bring two suits for the same lot of goods. No objection of the kind was taken in the Court below, and without determining whether the objection would have been tenable- even there, as it was impossible to replevy the whole stock of goods, some of them having been disposed of, we are clearly of opinion that it is no ground of error.

Upon the question of the refusal to grant new trials, without attempting to review the evidence in detail, it will be sufficient to remark that we have examined it, and think it justified the findings of the Court.

The motions for new trials were therefore properly overruled and there being no error in the records the judgments by the Circuit Court are affirmed with costs.

Judgments affirmed.