text:
    Hiram Perry, Appellant, v. Henry McHenry, Appellee.
    APPEAL FROM SANGAMON.
    A parol agreement, relating to a sale of lands, or an interest therein, for a longer period than one year, is within the statute of frauds, and is not valid.
    A resulting trust can only arise in favor of a person who claims to have furnished the consideration-money, when such consideration or some aliquot part thereof, was furnished as part of the original transaction, at the time the purchase was made.
    A party claiming the benefit of a resulting trust, must have occupied a position originally, which would have entitled him to he substituted in the place of the person to whom the conveyance was made.
    Ho arrangement subsequent to the purchase, nor any parol agreement existing before, nor any parol declaration at the time a purchase is made, for the benefit of some other; person, will raise a trust, in the absence of any other fraud than that which arises from a violation of a parol promise or agreement, if the purchaser pays his own money, and takes the title to himself.
    The pleadings and proofs of this case are stated in the opinion of the court.
    The cause was heard before Davis, Judge, at the March term, 1851, of the Sangamon Circuit Court.
    S. T. Logan, and Stuart & Edwards, for appellant.
    A. Lincoln and W. H. Herndon, for appellee.
   Trumbull, J.

The complainant filed his bill in chancery in 1849, alleging that, in 1843, he was the owner of various tracts of land situated in Sangamon county, and containing, in all, two hundred and forty acres; that, in 1844, said premises were sold under a mortgage containing a power of sale, executed by the complainant to one Blankenship, and purchased by the Irwins, who received a deed therefor; that, at the time of said sale, the complainant was indebted to the Irwins, and they subsequently agreed that he might redeem the lands from the sale, by paying the amount for which they had sold, the amount of his debt to them, and a small advance thereon, making, in all, the sum of eleven hundred and eighty-five dollars, which he agreed to pay; that, being unable to raise the money, he made an arrangement with the defendant, by which it was agreed between them, that the defendant should advance the wholex amount above stated to the Irwins to redeem said lands, and that, in consideration of said payment, the defendant should have all complainant’s right and title to the east half of said lands, and that complainant should have the west half of the same; that, in pursuance of said agreement, the defendant, on the first of March, 1846, executed his notes to the Irwins, payable in one, two, and three years, and received from them their title-bond to convey said premises to him upon the payment of said notes ; that after the execution of said notes and title-bond, the complainant and defendant divided said lands, in pursuance of said agreement; and that, since said agreement, said defendant has had possession of the east half of said lands; and that at the time, for many years previous, and since, up to a late period, the complainant has resided upon and had the peaceable and undisturbed possession of the west half of said premises; that within a few months last past the defendant fraudulently claims the whole of said lands, has taken forcible possession of part of the house occupied by the complainant, and refuses to convey to him the west half of said lands; that said lands are worth the sum of twelve dollars per acre; that at the time of their redemption the Irwins were advised of the agreement between the complainant and defendant, and that they have instituted suits upon the notes of the defendant, which remain unpaid, and have obtained judgments thereon.

The bill prays that the defendant may be compelled to convey to the complainant the west half of the premises in question.

The defendant admits in his answer, that complainant was at one time the owner of the land, but charges that the Irwins, in 1843, purchased the same for the taxes of 1842; that the premises were not redeemed from the tax sale, and that the Irwins subsequently received a tax-deed therefor; that in 1842 the Irwins obtained judgment against the complainant in the Sangamon Circuit Court for f¡260.51, upon which judgment execution was duly issued, and the premises sold thereon by the sheriff, and purchased by the Irwins for the balance due on said judgment, after deducting fifty dollars, which had been previously paid by the complainant; that the premiums were not redeemed from said sale, and. the Irwins, at the expiration of fifteen months, received a deed for the same; admits the mortgage with power of sale to Blankenship, the sale under the same, and the purchase by the Irwins substantially as stated in the bill; charges that the Irwins, by virtue of their various purchases, had acquired a complete title to the lands, and that the complainant, long previous to 1846, when the defendant purchased, had abandoned all claim of title to the land, and contracted with the Irwins to retain possession of the same as their tenant, and pay rent therefor; admits the purchase of the land of the Irwins in 1846 for $1,185, the paying of $200 down, and giving his three several promissory notes for the remainder, but denies making the contract set forth by complainant in his bill; alleges that complainant is his brother-in-law; that some time previous to his purchase from the Irwins complainant appealed to him as a relative to aid him in getting the land or some part of it back from the Irwins, stating that it could be had for $1,085; and, after much importunity on the part of complainant, it was agreed between them that defendant should divide the land into two parts, and that complainant should have choice; that defendant should purchase the land of the Irwins at $1,085, paying $200 down and giving his notes for the remainder in three equal instalments, which complainant said the Irwins would accept; that defendant should pay the first note that fell due, and the complainant the last two, and that thereupon the Irwins conveying the whole to defendant, he should reconvey complainant’s part to him; that defendant should have possession of his part immediately on making the purchase, and should have possession of the remainder in March, 1849, if complainant failed to pay as agreed; avers that this agreement would leave complainant in possession of part of the land, relieve him from the payment of rent, and give him time to raise the money to pay for it; that, in pursuance of this agreement, the parties went upon the land and divided it, and then went to Springfield to make the purchase of the Irwins, when it was ascertained that the purchase could not be made unless, in addition to the $1,085, the defendant would pay $100, which the Irwins claimed and complainant admitted was then due them for rent; complainant agreed to refund defendant the $100, or any part of it which defend ant ultimately might have to pay, and thereupon defendant made the purchase at $1,185, paying $200 down and giving his three notes for the remainder, and the Irwins executed to him a title-bond; admits taking possession of the part of the land "falling to him by the division, and that he still retains it; alleges that when the first of the three notes fell due he discharged it; admits that the second' and third are unpaid, and that the Irwins have obtained judgment upon them as alleged in the bill, but charges that it was complainant’s duty to have paid them, and protesting that he ever did agree with complainant to purchase said land, pay the whole consideration therefor,' and convey one half of the same to the complainant; the defendant insists that such an agreement, if made, would have been without consideration and utterly void, and insists upon the Statute of Frauds both in reference to the agreement alleged in the bill and the one set up in the answer. By an agreement filed in the cause, it is admitted that the defendant, since the filing of the bill, has' fully paid said Irwins for the land, and that the case shall proceed as if these facts were charged in a supplemental bill and admitted in the answer.

The cause was heard upon bill, answer, replication, and evidence, and a decree entered, dismissing the bill, and against the complainant for costs.

The entering of this decree is assigned for error. The evidence is voluminous, and uncertain in some respects ; but three facts are clearly established. That the Twins were the purchasers of the premises at three different-sales as alleged in the answer; that the complainant had acknowledged himself their tenant, rented the premises of them, and lost all right to the premises by redemption or otherwise, long before the purchase by the defendant; that the Irwins had, however, informed complainant, that if he would get any responsible man to take the land upon terms, such as those for which they afterwards sold it, he should have it; that the land, at the time of the purchase by the defendant, was worth about double what he gave for it, less the value of the right of dower of complainant’s wife in the premises; that both parties went together to the Irwins at the time the purchase was made, and that'the bond for a deed was given to the defendant upon his paying down §200, and executing his notes for the balance of the §1,185, with the knowledge and without objection from the complainant. The main point in dispute is as to the terms of the agreement between complainant and defendant. Upon this question the evidence is somewhat conflicting, and whatever the agreement was, it was not in writing; but assuming that the complainant has proved that the defendant purchased the land under a parol agreement to convey to him one half of the same when he should obtain the title from the Irwins, and still he is not entitled to recover, for the reason that such contract, if one existed, related to a sale of lands or an interest therein, for a longer period than one year, and to have been valid must have been in writing and signed by the party against whom it is sought to be enforced.

It is idle to call the transaction by which the defendant obtained the title, a redemption from the Irwins. The complainant had no valid right of redemption, which he could transfer. The most that can be said is, that, by the indulgence of the Irwins, he was permitted to procure a purchaser of the land, at a price something less than its value. The case is not different from that of any other purchase, where one man buys real estate and takes the title in his own name, under a parol promise subsequently to convey the same or some interest therein to a third person.

It is insisted, however, that the defendant acted as the agent of the complainant in making the purchase of the Irwins, and that he is to be' considered as holding the title in trust for the complainant to the extent of the interest which he had agreed to convey to him. Our act concerning frauds and perjuries, Rev. St. ch. 44, sec. 4, declares: “ All declarations or creations of trusts or confidences of any lands, tenements, or hereditaments, shall be manifested and proved by some writing, signed by the party, who is by law enabled to declare such trust, or by his last will, in writing; or else they shall be utterly void and of no effect: Provided, that resulting trust or trusts created by construction, implication, or operation by law, need not be in writing, and the same may be proved by parol.” The resulting trust, not within the statute, and which may be shown by parol, is where the purchase is made in the name of one person with the money belonging to another. Lord Hardwicke, in speaking of trusts created by operation of law, in the case of Lloyd v. Spillet, 2 Atkyns, 150, says, that such trusts are those, first, where an estate is purchased in the'name of one person but the money or consideration is given by another; or secondly, where a trust is declared only as to part, and nothing said as to the rest, what remains undisposed of results to the heirs at law, and they cannot be said to be trustees for the residue.” And he adds, “ I do not know in any other instance besides these two, where this court have declared resulting trusts by operation of law, unless in cases of fraud, and where transactions have been carried on maid fide”

This case does not fall under the first head, because all the consideration paid to the Irwins for the land came from the defendant ; so far, therefore, as a trust results from the payment of the money, it is in his favor, and not in favor of the complainant.

The second class of trusts mentioned by Lord Hardwicke has no application to a case like this; and it is not pretended that the defendant procured the title to himself through fraud, for the complainant was’present and consenting when the bond for a deed to the defendant was given. How, then, was the defendant the trustee of the complainant in the purchase from the Irwins ? If at all, it must have been by virtue of the agreement between the parties; but the statute declares that there shall be no trusts of land, unless manifested by some writing signed by the party, except such trusts as arise by operation of law. If the complainant could show that he paid any part of the consideration for the land, there the trust would arise from the payment of such consideration, and not from any agreement of the parties. Strike from the case all evidence of an agreement between the-parties, and what is there left from which a trust can result in favor of the complainant ? The case, then, is simply this: The defendant purchased a tract of land of the Irwins, and paid his own money for the same; the complainant was present at the time of the purchase, assisted the defendant to make it, and, if you please, was the means of his procuring it at a less price than he otherwise could have done, though of this latter fact there is no evidence; yet admitting its truth, and even then the complainant could not maintain this suit. It is admitted, that no part of the consideration-money paid to the Irwins was advanced by him. In Botsford v. Burr, 2 Johnson’s Chancery, 415, it is said that a resulting trust “ is founded on the actual payment of money, and on no other ground,” and that “ the trust results from the original transaction, at the time it takes place, and at no other time.” Sayre v. Townsend, 15 Wendell, 650, decides that “ a trust will not result to one who pays a part only of the consideration on the purchase of land conveyed to another, unless it be some definite part of the whole consideration, as one third, one half, or the like.” Crap v. Norton, 2 Atk. 74; White v. Carpenter, 2 Paige, 239; Smith v. Barnham, 3 Sumner, 462, and Freeman v. Kelly, 1 Hoffman, 90, are to the same point. If the money paid did not constitute, the whole consideration given for the land, then the money and the privilege of purchasing together made it up.

But how much and what part of the consideration did the complainant’s right to purchase constitute ? The evidence leaves it extremely doubtful whether, by the terms of the parol agreement, if proof of such agreement were admissible, he was to have one half the land in quantity, or one half according to quality, and where the interest is left thus uncertain, no trust results in a party’s favor. In the language of Justice Story in the case of Smith v. Barnham, “ How, under such circumstances, would it be possible to say what interest or trust in the property each was to take ? Surely it would be too much to say, it was to depend upon the future valuation of the property, or the future contributions made by the parties respectively towards the purchase, or the possible value of the interests in other property contributed by each.”

Several eases were referred to upon the argument, as establishing the principle that, where a person takes a conveyance, in his own name, of an estate which he undertakes to • obtain for another, he will, in equity, be considered as holding it in trust for bis principal; and this principle, it is insisted, applies to the present case, inasmuch as the defendant, at the time he made the purchase, promised to convey part of the premises to the complainant, when the Irwins should have made him the title. The cases chiefly relied upon, as establishing this principle, are Sweet v. Jacocks, 6 Paige, 355; Lees v. Nuttall, 1 Russell & Mylne, 53; and Sheriff v. Neal, 6 Watts, 534.

The consideration of the deed to Jacocks was the compromise of a controversy existing between minor children, for whom Ja-' cocks was acting, and other parties; and it was a manifest fraud upon the rights of those he represented for him to take a conveyance in his own name which was intended for their benefit, and where the entire consideration for the same, whatever it was, came from them. A trust resulted in favor of the minor children, in that case, upon two grounds. First, in consequence of the relation existing between Jacocks and the minor children whom he represented, and his bad faith in obtaining a conveyance to himself; not by violating any parol agreement between him and them, but by fraudulently using his position to practise a fraud upon their rights. Secondly, in consequence of the consideration passing from the minors, it being a compromise of a suit in their behalf, not his, which led to the making of the deed.

No such facts exist in this case.

The case of Lees v. Nuttall is distinguishable from the present in the fact, that the person purchasing in that case was the attorney of the plaintiff, and as such had been employed to make the purchase for his client, and he was held to be a trustee for the client, and to convey to him upon the payment of the purchase-money. In the present case, the purchase was made by the defendant, not as a mere agent, but as a principal in interest, and properly in his own name. Had the attorney in that case been authorized to procure the title in his own name, in trust for the principal, there would have been no fraud in the manner by which he procured the title, and the case would then have been more analogous to the present.

In the case of Sheriff v. Neal, the question as to what facts would constitute a person a trustee, or how far the statute of frauds and perjuries was applicable to parol contracts, was not properly before the court. The court below, in that case, had instructed the jury that, if James Sheriff, by representing to the commissioners that he was purchasing for the Neals, had obtained a conveyance of the land to himself from the commissioners, for a less sum of money than they would have given it to him for had he declared that he was buying it for himself, or not have said he was buying it for the Neals, he thereby became a trustee in the purchase for the Neals.

In commenting upon this instruction, the Supreme Court say, “ The principle of law contained in this instruction is not complained of by the counsel for the plaintiff in error; but it is contended by him, that there was no evidence ” to justify the giving such an instruction. The court further say, “ Seeing this principle is an important one, and to affirm it apparently as an abstract principle might possibly be carrying the doctrine of trust further than would comport with the provisions of. the act against frauds and perjuries, we do not wish to be understood as doing so by our judgment in this case.” It is apparent, from this extract from the opinion of the court, that the question under consideration was one of fact, rather than of law. The court do, however, discuss the questions of law which might have been raised in the case at considerable length, and in a subsequent part of their opinion say, “ The purchase was made by Sheriff of the commissioners, with his own money; consequently, so far as the law operated to raise a use from the circumstance, it was in favor of Sheriff alone. . Nor would the operation of law have been different, even had Sheriff made a previous verbal agreement with the Neals to purchase the land for them, unless they had advanced the money to him for that purpose ; a subsequent tender of it, after the purchase of it had been completed, would not have availed or have taken the case out of the statute of frauds. For, unless the trust, in such case, arise at the time of making the conveyance, it cannot be created subsequently, except by some new agreement or concurrent act of the parties. The strong ground, then, if not the only one, upon which it would seem a trust can be raised in favor of the Neals, is that of fraud and a breach of good faith on the part of Sheriff, in refusing to accept of the redemption-money, and attempting to take the land from them, contrary to his agreement, upon the faith of which they gave up to him their right to redeem it from commissioners.” To sanction the last branch of the above extract as law, would be to repeal the statute of frauds and perjuries. If the refusal to comply with a parol agreement constitutes such a fraud'as to take a case out of the statute, then no case is within it. For a party has only to allege that a person contracting by parol fraudulently refuses to comply with the terms of his parol agreement, which he must do in every case, or there would be no necessity for resorting to a court of equity to enforce it, and a case is made to which the statute does not apply. That such is not the law, even in Pennsylvania, is abundantly established by the authorities. It has been repeatedly decided, in that State, that, “ unless there be something in the transaction more than is implied from the violation of a parol agreement, equity will not decree the purchaser to be a trustee.” Robertson v. Robertson, 9 Watts, 32. This same case decides that, if a man employ another by parol, as his agent, to buy an estate for him, and the agent buys it, and pays for it with his own money, and takes a conveyance in his own name, it would be in the very teeth of the statute to decree this a resulting trust. Other Pennsylvania cases settle the same principle. Haines v. O’Connor, 10 Watts, 313; Fox v. Heffner, 1 Watts & Sergeant, 372; Jackman v. Ringland, 4 Watts & Sergeant, 149; Sample v. Coulson, 9 Id. 62.

In Sugden on Vendors, vol. 2,the rule is stated thus: II Where a man employs another by parol, as an agent to buy an estate, who buys it accordingly, but denies the trust, and no part of the purchase-money is paid by the principal, and there is no written agreement, he cannot compel the agent to convey the estate to him, as that would be directly in the teeth of the statute of frauds.”

There are numerous other authorities to the same effect, and among them are Bartlett v. Pickersgill, 1 Eden, 515; Smith v. Burnham, 3 Sumner, 462; Botsford v. Burr, 2 Johns. Chanc. Rep. 405; Steere v. Steere, 5 Id. 19; Schmidt v. Gatewood, 2 Richardson’s Eq. Rep. 178.

In the case of Schmidt v. Gatewood, the law upon this subject is more clearly and satisfactorily set forth than in any other I have seen. It is there held that, when a party enables himself to purchase at an under rate, by representing that he is purchasing for another, he is liable to have his purchase set aside for fraud; so, where competition is fraudulently reduced or destroyed. Such cases, it is said, steer entirely clear of the statute of frauds. The evidence of the purchaser’s representation is received, not for the purpose of substantiating the supposed agreement, but for the purpose of showing the means by which he effected his fraudulent design, and, when received, it is employed, not for the purpose of enforcing the agreement, but for the purpose of setting it aside. When the fraud alleged consists in the non-fulfilment of an alleged agreement, it depends, of course, upon the fact whether there was an agreement to be performed, and that preliminary fact the statute will not allow to be established by parol.

The case of Botsford v. Burr was analogous to the present. Botsford applied to Burr for a loan of $900, to enable him to pay off a mortgage upon the Bogardus Farm. Burr refused to loan the money, but agreed to buy in the farm when sold on the mortgage, and to reconvey the same to Botsford, if he paid him the money advanced, interest, cost, and charges, within a month. Burr accordingly bought in the farm at the sale, and subsequently sold the same at an advance. A bill was filed to make him account for and pay over the balance, after deducting his advances, &c. The court held that, as Burr purchased at public auction, took the deed in his own name, and paid his own money, and, as the sale was made with the knowledge and assent of Botsford, there was no pretence for setting up a resulting trust, and that all parol proof for that purpose was inadmissible. It was further held, that “the conveyance by Bogardus, the mortgagee, and the payment of the purchase-money completed the contract, and that no parol proof of parol declarations, inconsistent with the deed, could be admitted.”

Switzer v. Skiles, 3 Gilm. 534, was referred.to upon the argument; but, as that was a case of a demurrer to a bill which did not properly involve the consideration of the statute of frauds, it is unnecessary to examine it particularly; but, if it were necessary, it would be easy to point out manifest distinctions between that case and the present.

There is no point of view in which the complainant is entitled to the relief he seeks. He cannot claim to have a resulting trust in the land, because he paid no part of the purchase-money to the Irwins; he cannot claim to have the parol agreement enforced, because, admitting it to have existed, it is void by the statute of frauds and perjuries. The defendant cannot be treated as his trustee, because it does not appear that he used any artifice or misrepresentations in order to procure the title to himself.

There is another obstacle to a recovery by the complainant in this suit. According to the allegation of his bill, the defendant paid the $1,185 to the Irwins without any consideration whatever. That allegation is, that the defendant “ was to advance the whole amount above stated, and pay the same to the Irwins, to redeem the lands aforesaid; and that, in consideration of such payment and redemption, it was further agreed, that the said McHenry (the defendant) was to have all the right, title, and interest of the complainant in and to the east half of said landswhich was just nothing at all, for the complainant had no right, title, or interest in the premises. Such an agreement would be void for want of a consideration to support it.

The result of our examination of the doctrine of resulting trusts is this, — that such a trust can only arise in favor of a person who claims to have furnished the consideration-money, when such consideration, or some aliquot part thereof was furnished as part of the original transaction at the time the purchase was made. The party claiming the benefit of a resulting frust, must have occupied a position originally which would have entitled him to be substituted in the place of him to whom the conveyance has been made. No subsequent arrangement, made after the purchase, nor any parol agreement existing before, nor parol declaration, at the time that the purchase is made for the benefit of some other person, will raise a trust in such other person’s favor, in the absence of any other fraud than that which arises from the violation of the purchaser’s parol promise or agreement, where the purchaser takes the title in his own name, and pays the consideration out of his own funds.

Decree affirmed.


source: Caselaw Access Project

author: Treat, C. J.

license: Public Domain

text:
    Tilghman & West, Appellants, v. Josiah Little, Appellee.
    APPEAL PROM MADISON.
    As a general principle, a plaintiff in ejectment must establish a legal title to the premises in controversy; he must recover on the strength of his own title; hut there are exceptions to this rule, as where a party is in possession under the plaintiff as tenant or under a contract of purchase; in such cases the plaintiff is not required to make proof of his title.
    A tenant may show that the title of his landlord has terminated, and that his relation as tenant is changed; or if he becomes a purchaser under a judgment, he may set up his title in bar of an action brought against him by his landlord.
    Parol proof, in an action of ejectment, in reference to the transfer of possession, is proper.
    A defendant in ejectment cannot question the validity of the title under which he entered into possession; he must first restore the possession to the party from whom he received it, and then he may attack the title under which his possession was commenced.
    This cause was heard before Underwood, Judge, at the March term, 1851, of the Madison Circuit Court. The facts of the case are stated in the opinion of the court.
    L. Davis and J. Gillespie, for appellant.
    W. Martin and H. W. Billings, for appellee.
   Treat, C. J.

This was an an action of ejectment brought by West against Little to recover the possession of two lots in the town of Upper Alton, Madison county.

On the trial, the title to the lots was admitted to have been in Stanton, from whom both parties claimed title. The plaintiff read in evidence a deed from Stanton to the plaintiff for the lots, dated the 8th of February, 1837, acknowledged on the 14th of June, 1843, and recorded on the 16th of October of the same year. He also proved that the defendant was in the possession of the premises at the commencement of the suit.

The defendant read in evidence the record of a judgment recovered by the State Bank of Elinois against Stanton at the September term, 1841, of the Madison Circuit Court; also an alias execution issued thereon on the 14th of January, 1847, under which the premises in controversy were sold to the bank; also a deed from the sheriff to the bank, dated the 7th of September, 1849; and a deed from the trustees of* the bank to the defendant, dated the 30th of March, 1850.

The plaintiff then called John Hogan, and offered to prove by him that in 1835 he'purchased the premises from Stanton by parol; that he paid the purchase-money, and took possession of the lots and made valuable improvements thereon; that he continued in the actual possession under claim of title until 1843, when, by an arrangement between himself, West, and Stanton, the latter made the deed directly to the plaintiff; that in 1845 the defendant contracted with the plaintiff for the purchase of the lots, with full knowledge of the judgment against Stanton, and at a price with reference to the judgment; that defendant entered into possession under the contract of purchase, and has remained in possession ever since; that he after-wards refused to comply with the contract of purchase, but claimed title under the purchase from the bank. The court excluded the evidence, and the plaintiff excepted. The defendant had judgment, and the plaintiff sued out a writ of error.

As a general principle, a plaintiff in ejectment must establish a legal title to the premises in controversy. He must recover on the strength of his own title, and not on the weakness of that of his adversary. But there are exceptions to this rule. Such a relation may exist between the parties as will dispense with the production of title on the part of the plaintiff. A party in possession under the plaintiff cannot controvert the title under which he entered. If he was admitted into possession under a contract of purchase with the plaintiff, the latter, in an action to regain the possession, is not required to make proof of his title. And in an action against a tenant the landlord need not show title. The tenant is estopped from denying the title of his landlord. His possession is subservient to the title of the party under whom he entered. He is not permitted to betray the possession with which he was intrusted. He cannot set up a better title in himself or a third person. Public policy and common honesty alike forbid that he should do any act which may defeat or endanger the title of his landlord. He must surrender up the possession before he can assail or question the title. He must put the landloi'4 in the position he occupied when he parted with the possession. The same principle applies to those acquiring the possession from the tenant. The relation of landlord and tenant attaches to all who succeed to the possession through or from the tenant. They acquire no greater tight than the party from whom they received the possession. These conclusions are fully supported by authority. Jackson v. Davis, 5 Cowen, 123; Cooper v. Smith, 8 Watts, 536; Riley v. Million, 4 J. J. Marshall, 395; Binney v. Chapman, 5 Pick. 124; Jackson v. Spear, 7 Wend. 401; Camp v. Camp, 5 Conn. 291; Anderson v. Darby, 1 Nott & McCord, 369; Henley v. Bank, 16 Alab. 552; Wood v. Turner, 7 Humph. 517.

But the tenant may show that the title of the landlord has terminated, either by its original limitation, or by a conveyance to himself or a third person, or by the judgment and operation of law. If the landlord transfers the estate, the allegiance of the tenant is due to the grantee. If the estate is vested in a third person by operation of law, the tenant holds the possession subject to the title of such person. The tenant may purchase in the premises under a judgment against the landlord, and set up the title thus acquired in bar of an action brought against him by the landlord. In such cases the relation of landlord and tenant becomes dissolved, and the latter no longer holds the premises under the former. England v. Slade, 4 Durn. & East, 682; Jackson v. Davis, 5 Cowen, 123; Jackson v. Rowland, 6 Wend. 666; Gregory’s Heirs v. Crabb’s Heirs, 2 B. Monroe, 234; Nellis v. Lathrop, 22 Wend. 121.

In this case so much of the testimony of Hogan as related to the transfer of the possession to the defendant was proper, and should have been admitted. If he acquired the possession under a contract of purchase, which he afterwards refused to perform, but claimed title from another source, the plaintiff was at liberty to treat the contract as rescinded, and bring ejectment to regain the possession. If such is the case, the defendant cannot question the validity of the title under which he entered. He must first restore the possession to the party from whom he received it. It would be a great fraud to allow him to retain the possession acquired under a contract, and at the same time repudiate and avoid the contract. If a contract is to be rescinded, the parties should be restored to their original rights. The evidence did not show that the plaintiff’s title had expired. The judgment was against Stanton, and the premises wére sold as his property. It was not a purchase under a judgment against the plaintiff. It may be that the title acquired under the judgment was superior to that of the plaintiff; but that question cannot be determined in this suit if the relation subsisted between the parties which the excluded evidence indicated. The defendant cannot set up that title against the plaintiff until he has surrendered the possession. When that is done, the relation between them will become functus officio, and he may then attack the title under which he originally entered into possession.

The judgment is reversed, and the cause remanded.

Judgment reversed.


text:
    Smith McArtee, Plaintiff in Error, v. William D. Engart, Defendant in Error.
    ERROR TO SANGAMON.
    Inadequacy of consideration in the conveyance of land as between vendor and vendee, would not justify the interposition of a court of equity to set aside the sale, unless the inequality was so gross and palpable as to shock the conscience and convince the judgment; but where fraudulent practices are used, under such peculiar circumstances as make the vendor a prey of the vendee, the aid of the court may be obtained.
    Amendments will be allowed in proceedings in chancery, at the discretion of the court.

      In proceedings in chancery, costs are in the discretion of the court, except in a few specified cases, as directed hy statute law.
    The facts of this case are fully set out in the opinion of the Court. The decree was rendered by Davis, Judge, in the Sangamon Circuit Court.
    S. T. Logan, and Stuart & Edwards, for plaintiff in error.
    A. Lincoln, W. J. Ferguson, and W. H. Herndon, for defendant in error.
   Treat, C. J.

In August, 1849, Engart brought a suit in chancery against McArtee. The bill alleged that the complainant, being the owner of ninety acres of land, conveyed the same to the defendant, on the 22d of November, 1847, for the expressed consideration of $350, but really for $200 in money, and a horse, saddle, and bridle, not worth $100, and that the land was then in fact worth $1,000; that for a long time previous to the conveyance, the complainant had been in the habit of the immoderate use of spirituous liquors, and, when intoxicated, was wholly incapable of the rational management of his affairs; that the defendant was well acquainted with the complainant and his habits of intoxication, and the effect thereof upon his mind ; that when the deed was executed, the complainant was so much intoxicated as to be incapable of rational action; that the defendant made use of cunning and artifice to get the complainant intoxicated, and then, taking advantage of his condition, fraudulently induced him to execute the deed; that the complainant afterwards called on the defendant for the purpose of restoring the consideration, and demanding a re-conveyance of the land, but was informed by him that the contract would not be rescinded; the complainant offered in the bill to refund the consideration and interest, and prayed for a re-conveyance of the land, and waived the oath of the defendant to his answer.

The defendant by his answer admitted the conveyance of the land, and alleged that the horse, saddle, and bridle, were worth $150 ; denied that the land was worth $1,000, and insisted that $350 was the highest price that could have been obtained for it at the time ; denied that the complainant was intoxicated when the trade was made, and that he was incapable of rationally managing his business ; denied that he used any cunning, artifice, or fraud to procure the conveyance, but alleged that the complainant was induced to sell the land for the best price he could obtain, and quit the country, to avoid an indictment for larceny then pending against him; denied that the complainant ever demanded a re-conveyance of the land, and offered to refund the purchase-money, but insisted that all differences between the parties relative to the land had been submitted to arbitration, and decided wholly in favor of the defendant. The complainant filed a general replication.

At the September term, 1849, by agreement of the parties, the cause was set for hearing at the next term. At the March term, 185.0, the complainant obtained leave to withdraw his replication, and amend the bill. The bill was so amended as to set up the statute of frauds to the submission and award relied on in the answer. At the March term, 1851, the complainant introduced the following testimony. Bateman testified, that he was brother-in-law of complainant; at November term, 1849, complainant was indicted for stealing a pair of shoes, and the sheriff requested witness to become his bail; on his way to the court-house, on Saturday, witness met defendant, and asked him to go bail, but he refused; witness became security in a recognizance for fifty dollars, and complainant went into the country; on Sunday morning, the defendant, who resided twelve miles from town, came to the house of witness, in Springfield, and remarked that he had come to bail complainant out of jail, and had a trade laid up for him, and would give him for the land $200 in cash, a horse and rigging, release him from the bail-bond, and let him go; defendant came back early on Monday morning and inquired for complainant, who had not returned; he returned at noon, and defendant was at the shop of witness waiting for him; defendant then made the offer before mentioned for the land, which complainant refused to accept; defendant insisted that he should take it, and advised him it was the best thing he could do ; they tallied about the matter for some time, and witness concluded there would be no trade; defendant then proposed to go and treat the company, but no one went with him except the complainant; they returned in half an hour, the complainant much under the influence of liquor; they again talked about the trade, and complainant was still opposed to it; defendant insisted on the trade, and told complainant there would be two or three indictments against him, and he had better clear out; complainant finally agreed to accept the proposition, shed tears freely, and said he was ruined; they then went away together, and were absent all the afternoon; about dark, witness went with them to the court-house, where the deed was executed; they then went to Bunn’s store, and defendant paid complainant $200 in cash, and liquor was called for and drank; complainant was about twenty-two years of age, and very little liquor made a fool of him; he was raised where the defendant resided, and the latter had known him from a boy, and insisted, while urging the trade, that he was his friend; complainant did not seem to be alarmed until he was intoxicated, and then the longer they talked about the matter, the more he became frightened; when the trade was made, the complainant was not capable of acting for himself, but did not appear to be intoxicated at the time the deed was executed; he was sober the next morning, when he received the horse and rigging, and went away; the land was worth $900. Lasswell testified, that he had known complainant for many years, and had frequently seen him in liquor, and on such occasions he had very little sense; the land was worth $900, at the time of the trade; horse and rigging not worth more than $70. Allsbury testified, that complainant was very groggy when the trade was made; saw the parties drinking together twice during the afternoon. Dragoo testified, that the land was worth seven or eight'dollars per acre ; witness was at defendant’s house shortly after the trade, and complainant told defendant he wanted to get the land back or spend more upon it, and defendant answered that he did not make child’s bargains; complainant then said he would give him back his money and property, and $50, and defendant said he would arbitrate the matter with him there or in Springfield; complainant tallied about going to Springfield to have it settled, but defendant said if he did he must pay him for his trouble; they finally agreed to arbitrate the matter before the witness and two other persons; they both made statements, from which it appeared that the defendant was to give §200, horse and rigging, and release the bail-bond, for the land ; during the arbitration defendant told complainant that he had better take his property and clear himself, for it was rumored about town that he would be taken up for stealing horses; arbitrators decided against complainant; some -liquor was drank on the occasion, but complainant did not appear to be intoxicated. Sanders testified, that the land was worth between six and seven dollars per acre. Lovelock testified, that the land was worth six or seven hundred dollars. Sumpter testified, that it was worth from five to six dollars per acre. Love-lock testified, that he was at the defendant’s house a short time after the trade, and defendant said he was good for nothing but trading and drinking whiskey, and that the complainant had gone, and the devil knew where; at that moment complainant came to the house, and said that he would rather die than leave his people; defendant gave him some whiskey, and told him he would get to see the country by going away. Field testified, that the defendant came to his house a few days after the trade, and said the complainant had put him out; the sister of witness observed that he might come back for all me, and defendant replied, while he had him in the right fix he made it all in black and white.

It was admitted that complainant appeared at a subsequent term of the court, pleaded guilty to the indictment, and was fined $10. It was also admitted, that the defendant had been in possession of the land since the trade. The complainant deposited $300 in court.

The defendant introduced the following testimony. Bays testified, that the land was worth five dollars per acre. Kent testified, that he saw the complainant at ten o’clock of the morning of the day of trade, and he inquired for defendant; spoke about stealing shoes, and wanted to borrow money; Moffett testified, that he wrote the deed, and took the acknowledgment of the complainant; he did not appear to be intoxicated. Penn testified, that the land was worth five dollars per .acre, and he offered complainant that price a few months before the trade. Bunn testified, that he counted the $200 to the complainant, and saw no signs of intoxication. Hill testified, that he was one of the arbitrators, and understood the only question for them to decide was whether defendant should pay any thing more'for the land; the parties agreed that the price was $200 in cash, and the horse and rigging, and nothing was said about the value of the land; witness asked complainant if he made the trade in good faith, and if the price had been paid, and he answered both questions in the affirmative; neither the submission nor the award were in writing.

Afterwards, and during the same term, the complainant obtained leave to withdraw the replication and amend his bill. The bill was so amended as to charge, that, at the time of the execution of the deed, complainant was in great distress of mind because of the indictment pending against him; that defendant was well aware of that fact, and of his habits of intoxication, and of the effect upon his mind; that complainant was in such condition of mind caused by distress and intoxication, as to be wholly incapable of rational action; that defendant used cunning and artifice to excite his shame and fear to the highest pitch, and in connection therewith to procure him to become intoxicated, and then taking advantage of his situation, fraudulently induced him to execute the deed for an inadequate consideration. The defendant answered these allegations by a general denial, and the complainant refiled the replication. The parties then submitted the cause to the court upon the evidence already introduced.

At the August term, 1851, a decree was entered vacating and annulling the deed in question, and requiring the defendant to re-convey the land to the complainant; that the defendant pay the costs of the proceeding, except $30 ordered to be paid by the complainant in consequence of the last amendment of the bill; that the real consideration advanced by the defendant was $270, and that the rents and profits of the land were equal to the interest on that sum ; that the clerk take $30 of the amount deposited in court and pay complainant’s share of the costs; that out of the same fund he pay the defendant’s costs, and then pay the balance .to the defendant. From that decree, the defendant prosecuted a writ of error.

The difference between the value of the land and the price for which it was sold, would not, of itself, justify the interposition of a court of equity. Except as to creditors, a man may consult his own wishes in the disposition of his property. He may dispose of it on such terms, and for such prices, as he pleases. If he meets a purchaser on equal ground, and parts with his estate for less than it is worth, he has no claim to relief in equity. He must abide the consequences of an injudicious bargain, if voluntarily and fairly made. It is not the province of a court to inquire, whether the contract will operate to his advantage or prejudice. It will not interfere with the sale, unless there has been 'some fraud, mistake, or undue influence. As a general principle, inadequacy of price is not a sufficient ground for setting aside a conveyance of property. A court of equity, in the exercise of a sound discretion, may refuse to decree the specific performance of an agreement founded on an insufficient consideration; but it will not rescind an executed contract merely because the consideration was inadequate. Osgood v. Franklin, 2 Johns. C. R. 1; Low v. Barchard, 8 Ves. 133; Wood v. Abrey, 3 Mad. Rep. 417; Naylor v. Winch, 1 Simons & Stuart, 555. There may be cases where the court will interfere on the ground that the price is so inadequate as to afford decisive evidence of fraud or undue influence. But to produce such a result, the inequality must be so gross and palpable as to shock the conscience, and convince the judgment that there has been imposition or oppression. 1 Story’s Eq. s. 246; Underhill v. Horwood, 10 Ves. 209; Copis v. Middleton, 2 Mad. Rep. 556; Stillwell v. Williams, 1 Jac. 280. The inequality in the present case is not of such a character. It does not necessarily indicate the least fraud or unfairness. It might be entirely consistent with honest dealing. Although the land was sold for much less than its real value, we should not hesitate to deny the relief sought, if there were no other circumstances calculated to impeach the fairness of the transaction.

But there are circumstances in the case which tend strongly to the conclusion, that the conveyance was obtained through improper influences, and ought therefore to be set aside; and in this connection the inadequacy of price may properly be taken into consideration. It is manifest, from the evidence, that the complainant was an ignorant and weak-minded man at best, and incapable of the rational management of his affairs when under the influence of spirituous liquor. In a state of intoxication, he was easily imposed on, especially by those in whom he reposed confidence. The defendant was a shrewd and unscrupulous man; possessed of a thorough knowledge of the complainant’s character, and in a position to exercise considerable influence over him. In this state of things, the complainant was indicted for larceny, and gave bail for his appearance. He manifested no disposition to avoid an investigation of the charge, until his fears were excited by the representations of the defendant. The latter refused to become security in the recognizance, until he supposed the complainant was safely lodged in jail. He then assumed the guise of a friend, and expressed much anxiety to procure his release from custody. But his plan was, that the complainant should convey him the land for an inadequate consideration, forfeit the recognizance, and leave the country. To effect this last object, and relieve Bateman from - responsibility as surety, he offered to provide the complainant with the means of escape, and discharge any judgment that might be entered on the recognizance. The proposition was promptly rejected by' the complainant. The defendant repeated the offer again and again, and as often urged the complainant to accept it. Failing to accomplish his purpose in this way, he managed to get the complainant intoxicated, and again renewed the offer, and insisted upon its acceptance. The complainant still manifesting an unwillingness to sell the land and go away, the defendant then assured him that there would be other indictments presented against him, and advised him to accept the offer, and abandon the country. Finally, under the combined influence of intoxication and fear caused by the defendant, the complainant acceded to the proposition, and the arrangement was consummated. It is very evident, that but for these expedients, the purchase could not have been effected. Beyond all doubt, the representations and advice of the defendant had a controlling influence upon the action of the complainant. Barely competent at any time to transact business discreetly, and peculiarly disqualified on that occasion by intoxication and terror, he was completely in the power of the defendant. The parties did not deal with each other on equal terms. The one through fraudulent practices became the prey of the other. The inequality of condition was produced by the defendant, and' then taken advantage of by him to procure a conveyance of the land, which, under ordinary circumstances, there is every reason to believe he could not have obtained. The fact that the deed was not executed and the consideration paid until the complainant appeared to be sober, does not affect the real merits of the case. If he was not still under the influence of liquor, he was evidently laboring under the apprehensions excited by the defendant, and impressed with the belief that he had better part with the land, and depart from the country. There was nothing in the subsequent conduct of the parties, calculated to weaken this view of the case. The interviews between them disclosed the ignorance and imbecility of the complainant, and the superiority and fraud of the defendant. The complainant was on every occasion furnished with liquor, and then advised to absent himself from the country, or threatened with criminal prosecutions if he remained. The arbitration was little else than a farce. The submission and award resting entirely in parol, were of course obnoxious to the statute of frauds.

There is one feature of the case which demands especial notice. The defendant succeeded in obtaining the conveyance, by inducing the complainant to disregard his obligation to appear and answer to the indictment. It was a clear violation of duty on his part, to aid or encourage the complainant to avoid an investigation of the charge against him. There may be some color of excuse for such a cause, when prompted by feelings of affection or friendship for the accused. But a man who will, from sordid considerations, deliberately assist or advise another to evade the demands of public justice, deserves no favor at the hands of a court of equity. It should not lend its aid to enable him to retain any advantage acquired under such circumstances. It is the duty of every citizen to aid in the execution of the laws, and in no contingency is he at liberty to encourage their violation, or assist offenders to escape detection and punishment.

There was no error in allowing the amendments to the bill. On the coming in of the answer, the complainant had a clear right to amend the bill, by setting up the statute of frauds against the new matter introduced into the case by the answer. The application to amend was addressed to the sound discretion of the court, which it was at liberty to allow or refuse. We are not prepared to hold that the discretion was improperly exercised. See Jefferson County v. Ferguson, ante 33. In proceedings in chancery, under our statute, costs are in the discretion of the court, except in a few specified cases, of which the present was not one. Rev. St. ch. 26, sec. 15. Nor was there any error in directing the costs to be paid out of the fund in court. The fund was under the control of the court, and liable to be applied to the payment of the costs, adjudged against the defendant. It would be a useless ceremony to pay the money to the defendant, and then issue an execution against him for the amount of the costs. He has no reason to complain, for the money was applied to his use.

The decree is affirmed. Decree affirmed.


text:
    Stephen H. Pitkin, Plaintiff in Error, v. John S. Yaw, Defendant in Error.
    ERROR TO FULTON
    In an action of ejectment, to recover possession of land by virtue of a tax title, a variance between the judgment and precept may be taken advantage of ci trial.
    In such case, where the judgment is for ninety-nine cents, and the precept recites a judgment for one dollar and twenty-five cents, it is a fatal variance.
    It is improper that a motion to amend the precept to make it correspond with the judgment, should be entertained at the trial of an action upon such a title.
    A variance between the judgment recited in the tax-deed, and the judgment upon which such deed is' founded, is good cause for excluding such deed as evidence.
    Where the judgment offered in evidence is against eight lots, and the deed offered recites a judgment against two lots, it is a fatal variance.
    In an action of ejectment, the plaintiff must show title in himself at the time of the commencement of the suit.
    A tax-deed, bearing date after the commencement of the suit, conveying the premises in controversy to the plaintiff, cannot be admitted in evidence, although the tax-sale was made prior to the commencement of such suit.
    This cause was heard before Kellogg, Judge, at March term, 1851. The facts of the case are set out in the opinion of the court. Pitkin brought the case to this court, and assigned errors.

      H. M. Wead, for plaintiff in error.
    J. Manning, for defendant in error.
   Treat, C. J.

This was an action of ejectment brought by Pitkin against Yaw, to recover the possession of two lots in the town of Farmington. The declaration alleged title in the plaintiff, on the 1st of June, 1850.

On the trial, the plaintiff read in evidence the record of a judgment of the Fulton Circuit Court, rendered at the March term, 1847, against certain real estate for the taxes due thereon for the year 1844. Amongst this real estate were eight town lots, including the two in controversy, assessed together at $150. The judgment against the eight lots was ninety-nine cents, the amount of the taxes and costs.

He next offered in evidence the precept issued on the judgment, which recited a judgment against the eight lots for $1.25. It was rejected by the court. He then entered a motion to amend the precept, so as to correspond with the judgment, which was refused.

He next offered a sheriff’s deed for the lots in controversy, dated the 20th of February, 1850. The deed recited a judgment against the two lots for ninety-nine cents, a sale of the same to Davidson, and an assignment of the certificate of purchase to the plaintiff. This deed was excluded.

He then offered a sheriff’s deed for the two lots, dated the ,4th of January, 1851. The deed recited a judgment against the eight lots for ninety-nine cents, a sale of the same to Davidson, and an assignment of the certificate of purchase to the plaintiff. This deed was rejected, and the defendant had judgment.

First. The precept was properly excluded. A party claiming title by virtue of a sale for taxes, must show a valid judgment against the land, a precept authorizing the sale thereof, and a sheriff’s deed to the purchaser or his assignee. The precept is the authority under which the sheriff makes the sale. It performs the same office in this respect, as an execution on an ordinary judgment. It should substantially pursue the judgment. It ought correctly to describe the judgment that has been entered against the land. Trifling variances between an execution and the judgment on which it issues, as to.the amount of the latter, have in some instances been disregarded. But in this case the variance was material. The precept described a judgment more than a fourth larger in amount than the one actually rendered. The cases cited on the argument, to show that a variance between an execution and judgment may be overlooked, were very different cases from the present. The variances were trivial and unimportant, and were therefore disregarded by the courts.

Second. The court did not err in refusing the motion to amend the precept. If such an amendment is allowable, it should only be made upon a distinct application to the court for the purpose. The application should have no connection with any other case. A contrary practice would introduce much confusion and inconvenience into judicial proceedings. A court engaged in the trial of a case, ought not to be delayed and embarrassed, by a motion to amend the record of another proceeding, which is but collaterally in question before it. Such an application might involve the necessity of bringing other parties and different interests before the court.

Third. The first deed was clearly inadmissible. It described a different judgment than the one read in evidence. The judgment was against eight lots, while the deed recited a judgment against but two. This was a fatal variance. If the judgment can be considered as valid, it must be because the eight lots were so situated as properly to constitute a single tract of land. Spellman v. Cartenius, 12 Illinois, 409. If the judgment is to be regarded as against all of the lots as one tract, it should be so treated in the proceedings under it. The whole of the lots would have to be exposed to sale as one tract, and the party offering to pay the taxes and costs for the least portion, would have that portion assigned him from the east side of the tract, without reference to any subdivision into lots.

Fourth. The second deed was also properly rejected. That deed showed that the plaintiff acquired title, after the time laid in the declaration. A plaintiff in ejectment must prove, on the trial, that he had title to the premises in dispute, on the day named in the declaration. It was so expressly ruled in Wood v. Morton, 11 Illinois, 547. In that case, the plaintiff acquired title subsequent to the time alleged in the declaration, though prior to the commencement of the suit, and this Court held it to be a fatal objection to his recovery. The doctrine of relation does not exempt the case from the operation of this rule.

The judgment is affirmed.

Judgment affirmed.


author: Trumbull, J.

text:
    Morris Collins et al., Appellants, v. John Carlile et al., Appellees.
    APPEAL FROM MORGAN.
    A mortgage taken to secure future advances is valid, although it does not show upon its face the real character of the transaction. In such a case the mortgagee can only recover the amount actually due at the date of the sale of the equity of redemption.
    A bill of foreclosure, although it does not show the real consideration for, or the precise amount due upon the mortgage, will authorize a decree, although the proofs may show a less sum to be due than was claimed, or a state of facts not averred in it, if these facts are not incompatible with the allegations of the bill.
    Carlile, then of Bethel, Morgan county, at St. Louis, on the 2d November, 1847, made his note to complainants at three months’ date, for $500, to which was attached the following memorandum: “ This note of John Carlile is left as collateral security, it being mentioned in a mortgage on his effects, &c., Mr. C. will return the mortgage as soon as recorded at Jacksonville.” On the same day, and to secure the note, Carlile executed a mortgage conveying to the complainants a lot in Bethel valued at $250, and certain personal property, which was duly recorded 24th January, 1848.
    Carlile then made the following bills for merchandise with the complainants, which were closed by notes and paid at sundry times, to wit: — November 3d, 1847, $279.88. February 22d, 1848, $425.56. May 1st, 1848, $380.19. July 3d, 1848, for $503.55 closed by note at four months’ date, and paid at several dates in 1849, except the sum of $105.55 and interest. September 23d, 1848, for $313.07, closed by note at 4 months’ date. February 9th and 10th, 1849, for $110.04, closed by note at sixty days, 213.18, closed by note for $150 at sixty days, the three last notes and interest being wholly unpaid.
    The complainants filed bill to foreclose the mortgage, to the September term, 1849, of the Morgan Circuit Court, when Garble was indebted to them in the premises, upwards of $700.
    At the special November term, 1849, three of the appellees filed their answer, 'claiming title to the Bethel lot by virtue of a title-bond executed by Garble on the 17th November, 1848, (recorded 15th June, 1849,) conditioned for payment of purchase-money $275 in three promissory notes, amounts not specified, to mature, one 1st March, 1849, and two 1st March, 1850.
    Said appellees, on the final hearing of this cause, produced and proved said title-bond, as also a cancelled note for $100, for first instalment of purchase-money that matured 1st March, 1849.
    On the 29th November, 1849, complainants filed replication to aforesaid answer, and obtained decree pro confesso against Garble.
    On the same day said three appebees filed their cross-bib against complainants, calling on them to discover the consideration of the $500 note, state of accounts, payments, &c., by Garble.
    Complainants filed answer to cross-bill, to which said appellees excepted, and the exceptions were sustained.
    On the 6th April, 1850, complainants filed further answer to cross-bill, in which they say, “ that the true consideration of said note in the bill mentioned, is and was, goods to be sold to the said John Garble, and as collateral security of any balance that he might ultimately owe said complainants, which balance when they filed then bill in this cause, amounted, after the allowance of all just offsets and discounts, to the sum of $702. Complainants give a full account of all then deabngs with Garble.
    Said appellees filed exceptions and replication to this amended answer, and the cause coming on to be heard finally, 20th March, 1851, bbl of complainants was dismissed, and they were decreed to pay costs of the case. Woodson, Judge, presiding.

      D. A. Smith, for appellants.
    The only question in the case is, whether, on the 17th November, 1848, Carlile was so indebted to complainants, by virtue of the $500 note, mortgage, and dealings, as that they could' foreclose it for Carlile’s indebtment (which then, without interest, amounted to the sum of $418.62) against the said appellees, as incumbrancers of that date, by virtue of then contract of purchase and title-bond from Carlile, with constructive notice of the mortgage recorded on the 24th of January, 1848.
    To show that complainants had such right, I rely upon the following authorities: Kramer v. Bank of Steubenville, 15 Ohio, 253; 1 Am. Dig. 1847, p. 364, § 5 and 8; 6 Humph. 99; Skinner v. Cox, 4 Dev. 59; 2 U. S. Dig. Sup. p. 408, § 19 and 24; Leeds v. Cannon, 3 Sumner, 488; Bassett v. Bassett, 10 N. Hamp. 64; Id. U. S. Dig. p. 409, § 43; North v. Crowell, 11 N. Hamp. 251; McDaniels v. Colven, 16 Verm. 300; Garber v. Henry, 6 Watts, 57; 2 Barr’s R. 97; 24 Pick. 270; Frye v. Bank of Illinois and others, 11 Ill. R. 381. In this last case, a note and mortgage, purporting to have been given 3d May, 1836, for $3,400, with twelve per cent, interest, to mature 1st January, 1840, was allowed against subsequent incumbrances, to stand as security for further advances made in 1837,1838, and 1839, up to the time of recording subsequent incumbrance, although the original mortgage contained no stipulation as to its standing as a security for the further advances.
    At the time of the decree in this case, the said appellees, by their own showing, owed $175 balance on the lot, with one year’s interest, and complainants were not allowed to foreclose even for that.
    M. McConnel, for appellees.
   Trumbull, J.

Collins and Kellogg, who were merchants in St. Louis, filed their bill to foreclose a mortgage executed to them by John Carlile, Nov. 2, 1847, upon certain real estate situate in the county of Morgan. The mortgage was duly recorded, January 14, 1848, and purports to have been executed to secure the payment of a five hundred dollar note, bearing even date therewith, payable in three months, executed by Carlile to the complainants.

The bill to foreclose, as against Carlile, is in the usual form; but makes John Calloway, Levi Calloway, and J. H. Salmon, also, defendants, who are alleged to be in possession of the mortgaged premises, and to claim some interest therein, by some sort of a title-bond, subsequent to the mortgage.

The bill was taken for confessed against Carlile. The other defendants answered, alleging payment of the $500 note, and claiming title to the mortgaged premises by virtue of a title-bond executed to them by Carlile, November 17,1848, recorded June 15, 1849, conditioned for the payment of $275, the purchase-money, in three notes, one payable March 1,1849, and the two others, March 1, 1850. These defendants also filed a cross-bill, requiring complainants to discover the consideration of the $500 note; and if for goods, wares, and merchandise, to set forth an account, giving the dates, items, and amounts; also an account of all moneys paid them by Carlile since the date of the note.

To this cross-bill the complainants answered, that the true consideration for the note was goods to be sold to Carlile, and as collateral security for any balance he might ultimately owe them, which balance, at the time of filing the bill, amounted to more than $700; and with their answer they filed an account, setting forth in detail the goods sold Carlile at different times; the various notes he had given other than the collateral note of $500 ; the moneys paid, the time when, &c. from November 2,1847, to time of filing bill. This statement shows that Carlile purchased goods of the complainants at various times after the date of the mortgage, amounting, in the aggregate, to more than $2,000 ; and that he was owing, on notes given for goods prior to the date of the title-bond, and which are still unpaid, more than $400.

Replications were filed to the answers.

Upon the hearing, the complainants produced in evidence the mortgage, the $500 note, and the statement of their account, showing the amounts due from Carlile, when due, &c. Attached to the §500 note was this memorandum, which was also in evidence : “‘This note of John Carlile is left as collateral security, it being mentioned in a mortgage on his effects, &c.” The defendants gave in evidence the title-bond, and also a cancelled note of §100, being the first instalment of purchase-money for the property mentioned in the bond.

The question is, whether Carlile was so indebted to the complainants, by virtue of the dealings between them, that they could foreclose the mortgage for the amount due on account of goods sold to him prior to the time of the sale of the mortgaged premises to the other defendants, or of the complainants receiving notice of the sale, which was June 15th, 1849, the date of the record of the title-bond.

The mortgage to the complainants, it will be recollected, was filed for record January 24th, 1848. The defendants, who purchased from Carlile subsequent to that, time, can, therefore, claim nothing on the score of a want of notice that the premises were incumbered. They were bound to know of the mortgage after it was recorded, and whether they did so or not, in point of fact, is quite immaterial.

It is objected to this mortgage, that it was without consideration. Primé facie it was certainly a valid mortgage, the note of itself being primé facie evidence of an indebtedness. Did the disclosure of the facts, brought out in' answer to the cross-bill, show that there was no consideration for the note and mortgage ? Not unless an agreement to let another have credit on the faith of such a note and mortgage can be held to be of no value. Such an agreement is, however, often of vital importance to an individual, particularly to a merchant wishing to purchase goods on a credit. There is no pretence of any fraud in fact in this case, nor that the sums claimed by the complainants of Carlile are not justly due; but the objection is, that a mortgage to secure future debts is invalid. Such, however, is not the law. It is said by Chancellor Kent, in the 4th volume of his Commentaries, 175: “A mortgage or judgment may be taken, and held as a security for future advances and responsibilities to the extent of it, when this is a constituent part of the original agreement; and the future advances will be covered by the lien, in preference to the claim under a junior intervening incumbrance, with notice of the agreement.” In the case of Commercial Bank v. Cunningham, 24 Pick. 274, the court say, “ We think it clear, that a mortgage made bond fide, for the purpose of securing future debts, expected to be contracted in the course of dealings between the parties, is a good and valid security.” See, also, United States v. Hooe, 3 Cranch, 73; Brinkerhoof v. Marvin, 5 Johns. Ch. Rep. 326; Fry v. Bank of Illinois, 11 Illinois, 381.

It would have been proper for the mortgage, in this case, to have stated the true consideration for which it was given; but the omission to disclose the real transaction on the face of the mortgage will not make it invalid, unless some one has been prejudiced by the misrepresentation.

It was said, by Chief Justice Marshall, in the case of Shirras v. Caig, (7 Cranch, 34,) “ It is not to be denied, that a deed which misrepresents the transaction it recites, and the consideration on which it is executed, is liable to suspicion. It must sustain a vigorous examination. It is certainly always advisable, fairly and plainly, to state the truth; but if, upon investigation, the real transaction shall appear to be fair, though somewhat variant from that which is described, it would seem to be unjust and unprecedented to deprive the person claiming under the deed, of his real equitable rights, unless it be in favor of a person who has been in fact injured and deceived by the misrepresentation.”

The Vice-Chancellor, in the case of Craig v. Tappin, (2 Sandford’s Ch. Rep.) reviews all the authorities upon this point, and comes to the conclusion, that a mortgage, intended to secure future advances, need not express that object in the mortgage itself, though it would be better if it did. See, also, Lyle v. Ducomb, 5 Binney, 585; Storer v. Herrington, 7 Ala. 143.

In this case, the fact that the real transaction did not appear upon the face of the mortgage, cannot have operated to the prejudice of the defendants, who purchased from Carlile. They had constructive notice, by the record of their mortgage, previous to the time of their purchase, of a lien upon the premises to the extent of five hundred dollars ; and surely they cannot complain when, upon a full disclosure, it turns out that the amount of the lien is less than that sum. Had the mortgage disclosed the real transaction, and shown upon its face that it was taken as collateral security for goods afterwards to be sold, the defendants could not have ascertained the extent of the lien without an application to the complainants, who would have bqen bound to have given them the true amount; as it was, they might have ascertained how much was claimed to be due on the $500 note by an application to the complainants.

Another objection to a recovery in this case has been raised, which is, that the bill, being in the ordinary form of bills to foreclose, without setting forth the real consideration of the mortgage, the complainants must fail in this suit, for the reason that the allegations and proofs do not correspond.

The bill shows a case in which the complainants would clearly be entitled to a decree. It was not necessary to set forth the consideration of the $500 note, because, primd facie, it imported a good and sufficient consideration. This was all that was requisite, in the first instance, on the part of the complainants.

The defendants come in and inquire into the consideration of the note, which they had a right to do. The proof shows that the complainants are not entitled to a decree for the full amount claimed. It is surely no objection to then- having a decree for what is due, because they have claimed too much ; and it is immaterial what the consideration of the note was, so it was good and valuable. The recovery is at last upon the mortgage, as set forth in the bill, though the extent is limited by the facts disclosed by the testimony. The evidence does not show a different case from that stated in the bill; but it brings into the case facts not stated, and not necessary to be stated, in complainants’ bill, to entitle them to a decree.

There is not, in our opinion, such a variance between the allegations and proofs as to prevent a decree of foreclosure in this suit.

The decree of the Circuit Court is reversed, and the cause y remanded, with directions to that court to enter a decree of foreclosure in favor of the complainants, for the amount due them for goods sold to Carlile, previous to the filing for record of the title-bond to his co-defendants, provided it does not exceed the sum due upon the $500 note; and that said court take such other and further steps in the case as fo law and equity appertain, and are not inconsistent with this opinion.

Decree reve sed.


text:
    The People v. Solomon Leet et al.
    ORIGINAL SUIT.
    The law of 26th February, 1839, required that collectors of the revenue should be appointed annually. The act of 6th March, 1843, provided that sheriffs should be, ex officio, collectors, and should give bonds similar to those previously required of collectors, subjecting them to the same liabilities and penalties, and also requiring them to take an additional oath, combining in one office the duties of collector and sheriff. By the act of 3d of March, 1845, the prior laws concerning revenue were repealed, but all their material provisions, were reenacted and continued in force: —

      Held, that this change in the laws did not ipso facto exonerate the sureties on the bonds of the sheriffs, the duties of the office not being enlarged, and the additional duties required being within the scope of the office.
    This was an original suit, commenced against Leet, as principal, and six others, as his sureties, to recover the penalty of a bond given on the 2d day of September, 1844, the condition of which was, that Leet should perform all the duties required to be performed of him, as collector of the county of Henderson, in the time and manner prescribed by law; and when he shall be succeeded in office, shall surrender and deliver over to his successor in office all books, papers, and moneys belonging to said county, or to the State, and appertaining to his said office, then the bond to be void, &c. The declaration averred a breach of the bond, and was filed in this court at December term, 1847. The defendants entered their appearance, and the following state of facts was agreed upon.
    “ Solomon S. Leet was elected sheriff of Henderson county, Illinois, in the month of August, A. D., 1844, for the term of two years. On the second day of September, A. D., 1844, the said Leet and the other defendants, as his securities, executed a collector’s bond, which is herewith presented to the court. The said Leet collected all the revenue due the State of Illinois in the said county of Henderson, for the fiscal year 1844, and paid it into the treasury of said State, according to law. The said Leet, still continuing sheriff of said county, was a defaulter on th.e revenue due the State of Illinois from the said county of Henderson, for the fiscal year 1845, to the amount of $765.50, ($288.61 only of which was payable in specie, and $476.89 of which was payable in gold or silver or auditor’s warrants,) which is still unpaid.
    Now, if the court be of opinion that, according to law, the said Leet’s said securities are upon the said bond liable for the said default of the said Leet, for the said fiscal year 1845, then judgment is to be rendered against the said defendants for the said sum of $765.50, otherwise, judgment is to be rendered against said plaintiffs as in case of nonsuit.
    The court, at this term, gave judgment against the defendants for the penalty of the bond, and for $765.50 damages, together with costs.
    This case was first submitted to the court at December term, 1848. After having been held under advisement, a re-argument was ordered upon the following proposition : “ On the supposition, that the bond sued on covered the collection of the taxes for the year 1845, was the law, creating that liability, repealed, so .as to discharge the sureties before the duty of collecting such taxes devolved on the sheriff?” After the second argument, the case was held under advisement until the present term. -
    D. B. Campbell, for the people.
    Sheriff made ex officio collector. He was required to give bond similar to that before then given by collectors, conditioned that, when he shall be succeeded in office, he shall surrender and deliver over to his successor all books, papers, moneys, &c., which must mean after his term of office, as sheriff and collector, shall have expired, which was two years from the time of collection. The offices are inseparable and indivisible, settled on one person for two years. When he gives the prescribed bond he is qualified. No other bond is required by law during his term of office, and this bond must be given before he can enter upon the duties of his office as sheriff and collector. No law to intimate that, if the sheriff does not give second bond, his office shall be vacated, and no law directing him to give but the one bond alluded to.
    If the one bond does not operate as security for the collection and paying over of the revenue of the two years, then the law is very lame; only requiring security for the first year, and permitting collectors to remain in office without giving any pledge for the faithful performance of his duties for the second year.
    The bond being in double the amount of the revenue for the first year, is ample and sufficient; because, if the sheriff should not pay over the revenue of the first year, at the time specified by the law, the law tries him for his defalcation, and dismisses him from office; his successor then has to give a bond for collection, &c. of the revenue for the second year.
    By the law of 3d March, 1845, the legislature enacted the same revenue law in substance as was in force under the acts of 6th March, 1843, and February 26th, 1839. No material variation in the laws. The State tax is the same, 20 cents on the 0100 ; the kind of money received is the same ; the same property is exempted from taxation ; the process is in all respects the same.
    But it is contended, that the county tax has been increased by the act of 3d of March, 1845, (see appendix to Rev. Stats, p. 599.) Is this so ? The act of February 26th, 1839, reads as follows: “ The county commissioners’ courts, &c., are hereby authorized and empowered to levy a tax for county purposes, which tax shall not exceed one half per cent, on every one hundred dollars’ worth of real or personal property, unless authorized so to do by special act of the General Assembly.” The act of 1845 does not increase the county tax, but merely transfers one mill of the county tax from the counties to the State for that year.
    The day that the act of 3d of March, 1845, was passed, was the day, by the previous law, that the clerk was required to deliver the list of taxable lands to the assessor. By the law of 1845, the clerk was required, on the 2d of September thereafter, to furnish the list, &c., to collectors, when he was to proceed to collect the revenue of that year.
    But it is understood, that the sheriff and- collector entered upon the duties of collecting for both years, and was so bound, as soon as he entered into bond on the 2d of September preceding.
    The cases cited by defendants from 8 Mass. 374; 6 Harris & Johnson, 95; 6 & 7 Ohio, 520, and Breese, 36, are not applicable.
    No point can be presented in this case, but has been already settled by this court.
    By the act of March 6th, 1843, the sheriff is made ex officio collector.
    J. Manning, for defendants.
    The liabilities of Leet’s securities extended only to his acts as collector for one year—the fiscal year 1844.
    The sheriff is made ex officio collector of taxes. Acts 1842, 1843, § 11. By virtue of his office as sheriff, he shall be collector ; but how ? According to the laws then in force, creating the office and prescribing the duties of collector. A separate office in its length and breadth, as then defined, was attached to that of sheriff. The offices, though, devolved upon one person, are still distinct as before. He takes separate oaths in the different, offices. Acts 1839, 7, § 12, and Rev. Stats. 411, § 2. He gives separate bonds in both offices. Acts 1839, 8, § 12; Rev. Stats. 514, § 2. The penalties of the bonds are different; the conditions are different. The bond for the collector’s office is sent to the Secretary of State. Acts 1839, 8, § 12; Rev. Stats. 441, § 29.
    The bond for the sheriff’s office is filed in the office of the clerk of the Circuit Court. Rev. Stats. 514, § 3; Rev. Laws, 1833, 573, § 3. The offices were not only distinct at the time of the execution of the bond, but this distinction was continued in the revised code. Rev. Stats. 441, § 28; 514, § 2.
    Upon neglect or refusal to qualify as collector, his office of sheriff is to become vacant. Acts 1842,1843, 234, § 11. But he might have qualified as sheriff previously; so for some time he might hold one office without the other. Although he be sheriff, he becomes collector only by qualifying as such.
    The duties of the two offices are defined by different laws, and those duties are in no respect similar. The office of collector was annual at the time it was attached to that of sheriff. Acts 1839, 7, § 12, and necessarily continued so afterwards.
    The sheriff does not become absolutely collector by virtue of his office as sheriff; he acquires the right of becoming such, but only becomes absolutely such by qualifying, as in case of all offices where a qualification is required.
    A qualification for the collection of each year’s tax is required, and this makes the office annual as effectually as if there were an annual appointment. Should we construe this qualification to be required only biennially, we destroy the security which the State has fixed for the collection of its own revenue, that is, the annual security for the collection of the taxes of each year, or the vacation of the office of the sheriff, and the appointment of an officer who will give such security. So that from the policy of the law, as well as from its language, the office of collector must be construed to be annual.
    But where the office is for a certain term of time, the liability of the officer’s securities extends only to his acts during that term. Bigelow v. Bridge, 8 Mass. R. 274; Commonwealth v. Fairfax et al. 4 Hen. & M. 208, (cited with approval, 6 & 7 Ohio R. 520.) By the statute of Virginia the sheriff was appointed for one year, but might be continued in office. So here the collector qualifies for one year, but may continue in office for another year ; yet, in this, as in the last cited case, his securities for the first year would not be liable for his acts the second year. Hennett & Russell v. The State, &c., 6 Harris & Johns. 95. In the last cited case, the sheriff continued in office from 1814 to 1816, but should have given bond annually. So here the collector acted in 1844 and 1845, but should have executed bond annually. There the securities were held not to be liable beyond the year for which the bond was given; so should it be here.
    Independent of these authorities and reasonings, from a general view of the statutes in force at the time of the execution of the bond, the securities could not be liable for the default of the collector in 1845.
    The securities on the collector’s bond were only liable for the collection of one year’s taxes. Acts 1839, 8, § 13. The sheriff, as collector, is to give a similar bond. Acts 1842,1843, 234, § 11. This must be construed to mean, that it shall have a similar effect. The law, in regard to the extent of time for which the securities were to be liable, was in no wise changed, and a similar bond could only make them liable for a similar term of time. This bond is verbatim in form of the old collect- or’s bond.
    The collector was required to give bond in a penalty at least double the amount of tax to be collected. Acts 1839, p. 8, § 13; and the sheriff was required to give a similar bond; but this was impossible to do, unless a bond was to be given annually for the assessments vary annually.
    And this also was intended to give the securities notice of the amount to which they might be liable. In this case they gave bond in double the amount of the tax of 1844, and could have had reference to the sheriff’s acts in collecting the tax of that year only.'
    The sheriff is to be subject to the same “liabilities and penalties” as was the collector. Acts 1842, 234, § 11. Now, on this very bond the collector, before the act of 1842, would have been liable for the tax of one year only; it follows that the sheriff’s securities in his office of collector, are only liable to the same extent.
    The intention of the contracting parties, under the existing law, is to govern the construction of the contract, and the whole is to be construed favorably to the securities. They are not to be made liable by implication. 3 Scam. 126; 1 Gil. 583. By the law and the bond, the securities could not have intended that they were liable for the tax of 1845; there is no such express undertaking on their part, and if they are made liable it must be by implication.
    In deciding this case we are fixing a rule. Deciding adversely to the securities is in effect determining that it is unnecessary for the collector to give bond annually; but that giving bond once, in a penalty double the amount of one year’s tax, is all the security required for the collection of two years’ taxes.
    But admit, for the purpose of argument, that, at the time of the execution of the bond, the liability of Leet’s securities might be construed to extend to the collection of the tax of 1845, yet the securities have been released.
    The law existing at the time of making a contract enters into and becomes a part of it. Bronson v. Kinzie et al. 1 How. 311; Green v. Biddle, 8 Wheat. 1, &c. If this be so between private persons, á fortiori is it in statutory bonds between securities and the State. Therefore a repeal of the law under which the bond was given, and the substitution of another and different law, without the consent of the securities, terminates their liability. The law under which this bond was given was repealed March 3, 1845. Rev. St. 453, § 109 to 474.
    The securities are not liable for acts done under laws not in force at the time their bond was executed. Reynolds v. Hall, 1 Scam. 35. Here the default was under the law of 1845.
    But the State not only repealed the law under which the bond was executed, but increased the collector’s responsibility in the year 1845. The State tax for 1844 was twenty cents on the $100. Acts 1842, 231. By Rev. St. 599 it was increased to thirty cents on the $100, which discharged the securities for the second year. Miller v. Stewart, 9 Wheat. 680; 5 Pet. Cond. R. 727; United States v. Kirkpatrick, 5 Id. 736; 1 Scam. 39.
    Any agreement with the principal, changing the contract without the consent of the securities, discharges them. They have a right to say, this is not my contract. Davis v. The People, 1 Gil. 409; Whitcher v. Hall, 11 E. C. L. 224; Liverpool Waterworks v. Atkinson, 6 East, 507.
    To the proposition submitted by the court the following answer is offered:
    The revenue law which is embodied in the Revised Statutes, 433 et seq., took effect from the date of its approval. It was published as a chapter of the Revised Statutes by special enactment. Rev. St. 473, 474, § 42.
    The taxes then already levied were to be collected under the repealed law; and liabilities then existing, or which might arise under the repealed law, on the part of sheriffs, were to be enforced under the provisions of the repealed law. St. 453, § 110. But this could only relate to the collection of taxes then already levied; for all the revenue laws affecting the liability of collectors were repealed. St. 453, § 109.
    No tax for the year 1845 was levied on or before the 3d of March, 1845.
   Treat, C. J.

This is an original suit, brought in this court on the bond given by the late sheriff of Henderson county, for the collection of the revenue. It is submitted on an agreed state of facts, in substance as follows: Leet was elected sheriff in August, 1844, for the term of two years, and executed the bond in question, with the defendants as his sureties; he collected the taxes for the year 1844 and faithfully accounted for the same, but he failed to pay over a balance of $765.50, due the State for the taxes of 1845; it is agreed, if the sureties are liable for this default of the sheriff, that judgment shall be entered against them for that amount; otherwise, judgment shall be entered in their favor.

1st. It is contended that the sheriff was bound to give a bond annually for the collection of the revenue, and consequently that the defendants are not responsible for his failure to collect and pay over the taxes for the year 1845. The act of the 26th of February, 1839, directed the appointment of a collector annually, and required him to give a bond in the penalty of at least double the amount of the taxes to be collected by him. The act of the 6th of March, 1843, contained this provision: “ The sheriff of each county shall be ex officio collector of taxes for his county, and shall take and subscribe the oath, and perform all the duties required by law of such collector, and he shall give a bond similar to that required to be given by the collector, and shall be subject to the same liabilities and penalties; and upon refusal to qualify and act as collector, his office- as sheriff shall be considered vacant, to be filled as in other cases of vacancy.” This provision conferred on the sheriff all of the powers belonging to the office of collector. It imposed new and important duties on the sheriff. To secure their faithful performance, he was required to take an additional oath and give an additional bond. This statute virtually abolished the office of collector, and transferred all of its powers and duties to the sheriff. It charged him with the collection of the revenue. This duty was attached to the office of sheriff, and could not be performed by any other officer. The ordinary duties of the office and the duty of collecting the taxes were inseparable. They both pertained to the same office and were to be discharged by the same person. If the sheriff failed to give the additional bond, he forfeited not only his right to collect the taxes but his office of sheriff. He is styled collector, but this expression is used to designate a particular branch of his duties. He does not hold two separate and distinct offices. He performs the duties previously belonging to two offices. But the functions of both are combined and vested in one. It follows that the sheriff was not bound to give an annual bond for the collection of the revenue. The bond in question embraced his entire term of office. The collector was required to give a bond annually, because he was appointed for but one year. But the sheriff was chosen for two years, and his bond for the collection of.the taxes, like his bond for the performance of the ordinary duties of his office, covered his liability for the same period.

2d. It is insisted that the sureties were released from responsibility by the repeal of the law under which the bond was executed. • The act of the 3d of March, 1845, repealed the prior laws concerning the revenue; but all of their material provisions were incorporated into that act. The existing laws were in terms repealed, but they were in substance reenacted and continued in force. This mere change in the law did not, ipso facto, exonerate the sureties. It gave them no cause of complaint, for the duties of their principal were not thereby enlarged or extended. They cannot insist upon any exemption from liability unless the change operated to their prejudice. This court held, in the cases of The Governor v. Ridgeway, 12 111. 14, and Compher v. The People, Id. 290, that the sureties of an officer upon his official bond, conditioned for the faithful discharge of the duties of the office, are liable for the performance of all duties imposed upon him which are within the scope of his office, whether such duties are imposed by laws passed before or after the execution of the obligation. It was said, in the latter case, “ The power to control the revenue is one of the highest attributes of sovereignty. Without this power no government could exist, and it cannot be supposed that the general assembly intended to part with this important prerogative, or to contract that no change should be made in the manner of collecting the revenue, during the continuance in office of any of its collectors. Parties who go security on bonds of this character, do so with the full knowledge and expectation that the revenue laws will be changed and the duties of collectors altered as the public interest may require; and they have no right to complain of any alteration in the laws not materially changing the character of the duties of their, principal, especially when such alterations are in nowise prejudicial to their interest.” The principle of those decisions is perfectly conclusive of this case. The condition of the bond is, that the sheriff “ shall perform all the duties required to be performed of him as collector of the said county of Henderson, in the time and manner prescribed by law.” The laws in existence when the default occurred were substantially the same as those in force when the bond was executed. If any additional duties were imposed on the sheriff, they were clearly within the scope of his office.

The objection that the rate of taxation was increased by the act of the 1st of March, 1845, has no foundation in fact. That act increased the amount of the taxes for state purposes, but it reduced the rate of taxation for county purposes in precisely the same ratio. The aggregate amount of the taxes was not increased. This change could not prejudice the sureties.

The people are entitled to judgment.

Judgment for plaintiffs.