text:
    James M. Howey et al., Appellants, v. Temperance Goings, Appellee.
    APPEAL FROM PIKE.
    The jurisdiction, of courts of equity in matters of partition is undoubted, and in many cases is indispensable.
    A bill in chancery lies for partition, notwithstanding an adverse possession, unless it has been continued long enough to bar a recovery under the statute of limitations.
    The husband cannot convey any greater interest in the real estate of his wife than he possesses. And where his right to such estate was during coverture, it is terminated by a divorce a vinailo matrimonii granted for his misconduct.
    It is not always necessary to dispose of a cross-bill, filed for improvements upon the land sought to be partitioned, at the time the decree for partition is made.
    Temperance Goings filed her bill in the Pike Circuit Court, in August, 1849, alleging, —
    That on the 8th of February, A. D. 1844, one William Howey departed this life, intestate, unmarried, and without issue, and without parents living; that the complainant and one James M. Howey were the only brother and sister of the deceased William Howey; that said William Howey died seized in fee-simple of the real estate following: The north half of section one, the north-east quarter of the north-east quarter of section two and the south-west quarter of the north-east quarter of section two, all in township seven south, range three west of the 4th parallel meridian; that as one of the two heirs of said William Howey, she is the owner in fee-simple, of the equal, undivided half of said lands ; that James M. Howey, her brother, became entitled, on the death of said William Howey, of the other half of said lands; alleges, that John P. Stark and Hezekiah .Applegate, are in possession of part of said lands, claiming some interest or title through James M. Howey ; that at the time of the death of William Howey, she was the wife of one Jonas Goings; that afterwards, at the May term of the Adams Circuit Court, Illinois, for the year 1849, she obtained a divorce from said Goings, for the cause of adultery; that said Goings thereby lost his right to be tenant by the curtesy ; bill makes James M. Howey, Jonas Goings, Hezekiah Applegate, and John P. Stark, defendants, and prays for partition of the lands aforesaid.
    Summons having been served on all the defendants, default of the defendant Goings was entered at the March term of the court, A. D. 1850, and bill taken as confessed against him; leave given at the same time, for the other defendants to answer.
    In November, 1849, the answers of the defendants, Howey, Stark, and Applegate, were severally filed.
    Defendants set forth in their several answers, the facts following : That after the decease of William Howey, there was a partition of the lands described in the' complainants’ bill, between the defendant Jonas Goings and the defendant James M. Howey, (the defendant, Howey supposing that said Goings had the right to make such a partition); that the north half of section one aforesaid, was divided equally by an east and west line; that the south half thereof, together with the north-east quarter of the north-east quarter of section two aforesaid, was assigned to the said James M. Howey, and the north half of said north half of section one aforesaid, together with the south-west quarter of section two aforesaid, was assigned to the defendant Goings ; that upon such partitions being made, said James M. Howey executed to said Goings, a deed in fee-simple, with covenants of warranty for the partition of said lands so assigned to him, and that he took from said Goings a like conveyance for the part of said lands so assigned to said defendant, Howey; that said deeds were executed May 5th, 1845, and September 1st, 1845 ; that after the execution of said deeds the defendant, James M. Howey, made sundry valuable and lasting improvements, alleged to be of the value of $400, on that portion of said premises so conveyed to him; that on the 27th day of February, A. D. 1847, said James M. Howey conveyed by deed in fee-simple, the part of said lands so deeded to him by said Goings to Hezekiah Applegate, co-defendant in the suit; that said Applegate went into the possession of said land, under said deed, and has continued in such possession, making some additional improvements thereon ; that on the 1st day of July, 1849, said Jonas Goings conveyed the north half of the north, half of said section (one portion of the premises deeded by defendant Howey to him as aforesaid,) by deed in fee-simple to Hezekiah Applegate and John P. Stark; that Applegate subsequently quitclaimed to said Stark, (defendant herein,) and that under said deeds, said Stark took possession of said premises, making some valuable improvements ; that on the 1st of July, 1849, said Jonas Goings conveyed by deed in fee-simple the south-west quarter of the north-east quarter of section two, to the defendant Howey, who has since been in possession thereof, under said deed.
    Defendants deny the right of complainant to have partition of said premises. Admit that they may have been mistaken in supposing that Goings had the right to convey said land, but insist upon their possessory rights. The allegations as to the descent of said lands from William Howey to complainant and James M. Howey, are admitted by defendant Howey. The marriage of complainant with James Goings is also admitted; as to the divorce, defendants knew nothing.
    Exceptions were filed and sustained to so much of the answers as set up a claim for improvements. Replication was then filed to the answers.
    A cross-bill was filed by Howey, Stark, and Applegate, setting forth the improvements made by them, and claiming the value thereof, in the event of partition.

      The answer of the complainant to the cross-bill, alleges, that the improvements (if any) were made without her consent, and adversely to her rights ; alleges her divorce from Jonas Goings, and denies the right of complainants in said cross-bill, to any relief.
    A reference of the cause to the master to report as to value of improvements, when ma^de, &c., also of rents and waste, was made, and the master reported thereon.
    At the March term, 1851, of said court, Minshall, Judge, presiding, the cause was heard upon bill, answers, replication, cross-bill, answer thereto, exhibits, and proof; and a decree of partition was rendered in favor of the complainant.
    Upon the hearing of said cause, the defendants, Howey, Stark, and Applegate, admitted that William Howey died seized in fee-simple of the lands described in complainant’s bill; that he died at the time alleged in said bill; that he died intestate, unmarried, and without issue; that he had no parents living; and, that the complainant and the defendant James M. Howey, were the only brother and sister of said William Howey; that at the time of the death of said William Howey, the complainant was the wife of the defendant Jonas Goings. The complainant then gave in evidence a record of a divorce suit between herself and said Jonas Goings, of the Adams Circuit Court, showing her divorce from said Jonas Goings, in June, 1849, for the cause of adultery.
    The defendants read in evidence the several deeds of conveyance to them, as set out in the pleadings ; and it was admitted that they had been in possession under said deeds, claiming the title they purported to convey, since their dates.
    The defendants Stark and Howey prayed this appeal.
    Errors assigned. The court erred in decreeing partition, and in not disposing of the cross-bill.
    R. S. Blackwell, for appellants.
    1. One disseized of his or her freehold cannot maintain a petition for partition.
    The statute allows a partition only “ where land is held in joint tenancy, tenancy in common, or coparcenary.” Rev. St. 399, § 1; 31 Hen. 8, cap. 1; 3 Bacon, 699.

      A disseisin is a destruction of the tenancy; and for this reason the petition would not lie.
    “ If one coparcener disseize another, during this disseisin a writ of partition doth not lie between them.” 1 Thomas’s Coke, 543; 5 Com. Dig. 237 (c. 6.)
    The disseized tenant must regain his possession by ejectment. Thomas v. Gawan, 4 Dev. 223 ; 2 Sup. U. S. Dig. 497, § 15.
    Or by forcible entry or detention. Mason v. French, 1 Scam. R. 495; Eads v. Rucker, 2 Dana, 111.
    In New York, under a statute similar to our own, it is held, that if the petitioner has been actually disseized, he is not entitled to a partition. Clapp v. Bromagham, 9 Cowen’s R. 567; 3 Paige’s C. R. 242; 2 Barbour’s Ch. Rep. 398.
    So in Vermont. Hawley v. Soper, 18 Verm. R. 322, 323.
    So in North Carolina. Thomas v. Gawan, 4 Dev. 223, cited 2 Sup. U. S. Dig. 497, § 14.
    So in Massachusetts. 7 Mass. 475.
    All privity is destroyed, and they no longer hold the estate together.
    If one parcener disseize the other, till reentry or recovery by the disseizee, the other does not hold in parcenary. 5 Com. Dig. tit. Parcener (C. 1.)
    “ If two joint tenants be disseized, and an assize is brought, and the one is summoned and severed and the other recover his moiety, and after another assize is brought and he that recovereth is summoned and severed and the other recover, albeit they severally recover, yet they are joint tenants again.” Thomas’s Coke, 589.
    Was Mrs. Goings disseized at the time of filing her petition 1

    The law presumes every person to be in the legal seizin and possession of land to which he has a complete and perfect title.
    And where a legal seizin is once shown, it will be presumed to continue until a disseisin is established. Thomas v. Hatch, 3 Sumn. 182.

      “ Seizin ” is a technical term to denote the completion of that feudal investiture by which the tenant is admitted into the tenure, and without which no freehold could be constituted or pass. 5 Cruise’s Dig. 325.

      In other words, possession of the feud was called seizin. 1 Cruise’s Dig. 58, § 19.
    Under our laws livery of seizin is abolished, and ownership of land gives a constructive seizin, where it is not in the adverse possession of another. Green v. Liter, 8 Cranch, 229.
    Disseisin must, therefore, mean some way or other of turning the tenant out of his tenure, and assuming his place and feudal relation. 5 Cruise’s Dig. 325.
    A disseisin is when one enters intending to usurp the possession and oust another of his freehold. 1 Cruise’s Dig. 60, 61, § 29; 5 Pet. R. 439; 4 Geo. 120; 8 N. H. 60.
    To make an entry a disseisin there must be an ouster of the freehold, either — 1st, by taking the profits or esplees; or 2d, by claiming the inheritance. 1 Cruise’s Dig. 61, § 29.
    The possession of the disseizor must be adverse to the title of the true owner. Little v. Libby, 2 Greenl. R. 247.
    To make it adverse, it. must be under a claim of title. Of course it need not be under a rightful title, or even & primd facie title.
    A disseisin is an estate gained by wrong. The disseizor is a trespasser.
    A disseisin is a continued trespass under claim of title. Towle v. Ayer, 8 N. H. 60.
    Actual violence is not necessary in making the entry. But the disseizor must take possession under such circumstances as to repel the presumption of an entry, and holding by consent of the true owner and in subordination to his title.
    The occupation with the intent to claim the fee is the test of a disseisin.
    A claim of title sufficient to repel all presumption that the disseizor is in possession under the rightful owner is all that the law requires. Sumner v. Stevens, 6 Met. 337; Jackson v. Todd, 2 Caines’s R. 183.
    It need not be a written claim of title. Taylor v. Buckner, 2 A. K. Marsh. 19; McCall v. Nealy, 3 Watts’s R. 72.
    If the disseizor has a deed, he need not produce it. Jackson v. Wheat, 18 Johns. 40.
    And, when produced, if it proves defective, this does affect the character of the possession. Angell on Lim. 435.

      The acts and declarations of the possessor are admissible to prove the adverse character of his holding. Allen v. Johnson, 2 McMullen, 497; Noyes v. Dyer, 25 Maine R. 468.
    A disclaimer by a tenant, which is brought home to the knowledge of the landlord and acquiesced in by him, will constitute a disseisin. Wilkins v. Walkins, 3 Pet. R. 53.
    The possession of a defendant in execution whose land has been sold on execution, may become adverse by assuming a hostile attitude. Chalfin v. Malone, 9 B. Mon. 596.
    An entry claiming title under a parol gift is a disseisin. Sumner v. Stevens, 6 Met. R. 337.
    Proof that the possessor had marked out the boundaries of his land by clear and defined lines, so as to indicate the extent of his claim, is a disseisin. Allen v. Johnson, 2 McMullen, 497 to 499.
    Where one tenant in common of land conveys the whole estate in fee, with covenants of warranty, and the grantee enters and holds exclusive possession thereof, such an entry and possession are a disseisin of his co-tenants. Kittredge v. Locks and Canals, &c. 17 Pick. 246.
    So one purchasing the whole estate at a sheriff’s sale, and entering and claiming title to the whole, disseizes his co-tenant, though the deed be void for want of a certain description. Jackson v. Bruilo, 5 Conn. R. 483.
    A tenant in common may oust his co-tenant, and hold adversely to him. It will not be presumed from a sole possession, unless accompanied with some notorious act or claim, which is sufficient to give character to the possession. 5 Conn. 483; 4 U. S. Cond. R. 608; Parker v. Proprietors, &c. 3 Met. R. 100 to 102; Badshed v. Huntingdon, 5 Pet. R. 439, 440; Prescott v. Nevens, 4 Mason’s R. 326; Cueler v. Molzen, 13 Serg. & Rawle, 356.
    Where an act is done which is equivocal, and may be either a trespass or a disseisin, the law will not permit the wrongdoer to qualify his own wrong, but leaves its character to be determined by the party injured. He may elect to consider himself disseized for the sake of the remedy. Fisher v. Dewerson, 3 Met. R. 547; 1 Greenleaf’s Cruise, 51, note.

      “ Every adverse possession is a, wrong amounting to an inchoate right.” Simpson v. Downing, 23 Wend. 321.
    The only difference .between a disseisin by a stranger and by a tenant in common, is this, that acts which, if done by a stranger, would per se be a disseisin, are, in the case of tenancies in common, susceptible of explanation consistently with the real title. 4 Mason, 330.
    M. Hay, for appellants.
    A party must be seized and in possession to entitle him to partition under the statute.
    It is the partition of lands in the possession of the part-owners that the act intends, and not the recovery of the possession of premises which are held adversely to the petitioner; and the act, therefore, limits the partition it authorizes to estates, and interests actually held or possessed in co-tenancy. Clapp v. Bramaghan, 9 Cowen, 567; 3 Paige, 242; 2 Bohun’s Chan. Rep. 398; Old Statutes of New York, tit. Partition.
    At common law, if one coparcener disseize another, during the disseisin a writ of partition does not he between them. The reason is, that they do not hold together and undivided. 5 Com. Dig. 237; 9 Cowen, 561.
    Our statute is a copy from the old Revised Statutes of New York, under which the case of Clapp v. Brunagham .was decided. The interpretation of the courts should be authority here.
    Whenever the proof is that one in possession holds for himself to the exclusion of all others, the possession so held must be adverse to all others; whatever relation in point of privity he may stand in to' others. Bradstreet v. Huntingdon, 5 Pet. 439.
    An entry into a tract of land under a deed describing the same by metes and bounds, gives the party a constructive possession of the whole tract, and is a disseisin of all persons claiming title to the same lands to the extent of the boundaries mentioned in the deed. 11 Mass. 222; 7 S. & R. 129; 3 Conn. 193; 3 Watts, 69; 10 Pick. 161.
    And this whether the title by the deed was valid, or defective and void. 5 Pet. 319; 4 Bibb, 563.

      The doctrine in regard to the ouster or disseisin of one co-tenant by another, is, that ouster or disseisin is not to be presumed from the mere fact of sole possession; but it may be proved by such possession accompanied by a claim of right.
    That one tenant in common may disseize another, is clear. 5 Cond. R. 250; 9 Cowen, 560; Angell on Lim. 461 to 464; 4 Paige, 200; 4 Sanfd. 633; 4 Mason, 326; 5 Cowen, 484; 17 Pick. 246; 5 Pet. 438 to 441, 444; 13 S. & R. 356; 13 Johns. 406; 3 Met. 91; 6 Met. 371; 3 Conn. 403.
    The same proof that puts the Statute of Limitations in operation creates an ouster. 17 Vt. 175; 21 Maine, 373.
    The fact is admitted upon the record, that the defendants Howey, Stark, and Applegate went into the possession of the several portions of said land claimed severally by them under deeds purporting to convey the title in fee to the whole of said parcels, and have continued in the possession, claiming the title so purporting to have been conveyed. These facts, in view of the authorities cited, show an ouster or disseisin of the petitioner.
    Adverse possession defined. Angell on Lim. 410 to 412, 435.
    Disseisin at election explained. 8 N. H. 57; 1 Cruise, 51, note; 18 Vt. 323.
    Where one enters upon land claiming the whole fee, the presumption is, that the grantee entered claiming in severalty and adversely to the whole world. Bogardus v. Trinity Church, 4 Sandford, 633.
    Will not decree partition when title doubtful. 4 Johns. Ch. 271; 1 Johns. Ch. 111.
    J. Grimshaw, for appellee.
    At the time the real estate descended to appellee, Jonas Goings, her then husband, took a freehold estate in said lands; he was tenant by the curtesy initiate thereof.
    Husband’s interest in wife’s land is defeasible. Rev. Code, 1845, p. 199, § 12.
    The same provision exists as to wife’s dower. Rev. Code, 1845, p. 200, § 13.

      The effect of a divorce a vinculo matrimonii is an entire dissolution of marriage relation. It restores woman to her interest entire in' all real estate which had not been legally conveyed by their joint act during coverture. Gould v. Webster, 1 Tyler’s Vt. R. 409.
    On divorce a vinculo, wife is restored to all rights which she lost by coverture. Starr v. Pease et al. 8 Conn. 541; Barber v. Barber, 10 Mass. 265.
    Same principle recognized in Mattocks v. Stearns et ux. 9 Vt. 335. Stearns v. Stearns, 10 Vt. 540.
    Choses in action not reduced into possession during coverture remain property of wife. Legg v. Legg, 8 Mass. 98.
    The effect of divorce under our statute upon rights of wife is' destructive of jointure, loss of dower, and all rights secured by marriage settlements. Clarke et al. v. Lott et al. 11 Ill. 105.
    It must be evident that the statute intended to place man and woman on same footing; in case of dissolution of marriage, to deprive the guilty party of any benefit derived from marriage.
    We are met by the objection, that, admitting right of appellee to undivided half of land, still she must resort to ejectment, and cannot maintain suit for partition.
    "We insist that appellants were proper parties to this suit, and that the rights of all these parties can be settled in this case.
    All persons interested, whether by title derived by purchase, devise, or descent, must be made parties. Rev. Code, 1845, p. 399, § 1.
    Purchase is the possession of lands and tenements which a man hath by his own act or agreement, and not by descent from any of his ancestors or kindred. 2 Chitty’s Black. 193.
    Descent is title by representation, as heir at law. 2 Chitty’s Black. 161.
    Devise is- an acquisition by purchase. 2 Chitty’s Black. 161, n. 2, 194.
    Howey and appellee claim by descent; the other parties are purchasers.
    Writ of partition lies against tenant by curtesy. 2 Crabb’s Real Property, 24 Law Lib. 78.
    Any person having right of entry may maintain petition for partition. Call v. Barker, 3 Fair. 320; Wells v. Prince, 9 Mass. 482.

      Pedis possessio is not required ; petitioner must have actual or constructive possession. Brownell v. Brownell, 19 Wend. 369.
    The possession of appellants is not adverse to the title of appellee, but is derived from same source, and until divorce, was consistent with appellee’s title.
    That possession which was not adverse in its inception, cannot become adverse except by disclaimer of owner’s title and some notorious act under new title. Kirk et al. v. Smith ex dem. Penn, 9 Wheat. 241, 281; Jackson v. Mancius, 2 Wend. 357.
    Possession of tenant for life is not adverse, but is consistent with title of reversioner in fee. Banks’s Adm. v. Marksberry, 3 Litt. 282; Kirk v. Nichols’s Hens, 2 J. J. Marsh. 469.
    Possession of husband of wife’s land, claiming it as his own, and improving it, held not adverse to the true owners or heirs of wife. Jackson ex dem. Corsin v. Cairn & Coles, 20 Johns. 300.
    So possession of husband’s vendee of wife’s land. Jackson ex dem. Harerly v. French, 3 Wend. 337.
    Acceptance of deed by his parents, by Henry Sensabaugh, father of plaintiff’s lessors, rebuts presumption of adverse possession. His mother not having acknowledged the deed, he took his father’s life estate. Jackson v. Sears, 10 Johns. 435; Jackson ex dem. Stevens v. Stevens, 16 Johns. 116.
    All these cases turn on the principle that one who went in under a particular title, cannot set up a title adverse to that title, although owner of land may elect to consider himself disseized for purpose of bringing suit. Fisher v. Dewerson, 3 Met. 544.
    At common law, husband, by common-law conveyance of wife’s estate, worked a discontinuance, (3 Hen. 8, cap. 28, § 6,) provided that rights of wife, or her heirs, should not be affected by acts of husband. Clancy’s Rights of Married Women, 162; Adams on Eject. (Tillinghast,) 37; 2 Bac. Ab. Discontinuance, 319, 323. This statute of Hen. 8 operates in this State, so far as our statute has not covered the same ground.
    No act of husband, without assent of wife, evinced by acknowledgment by wife, shall pass her estate. Rev. C. 1845, tit. Dower, § 14, p. 200.

      The husband’s deed of bargain and sale worked no discontinuance ; it affected no rights except his own, and has no disseisin of wife, except at her election. Varick v. Jackson, 2 Wend. 201.
    There can be no disseisin, in fact, except by actual ouster or expulsion of true owner, or some act tantamount; such as com-' mon law conveyance with livery, &c. Varick v. Jackson, 2 Wend. 203. There was, in this case, no disseisin, in fact. The appellee has not elected to consider herself disseized. 2 Bac. Ab. Disseisin, 329, 332.
    Appellee might have elected to treat possession of appellants, as an ouster or disseisin for purpose of bringing ejectment; but that was her option. Not having so elected, and having right of entry, she could maintain her proceeding by petition for partition.
    The possession of appellants was not adverse in its inception, it was under, and consistent with, appellee’s title ; it has termiated by operation of law.
    Appellee having then right of entry, could maintain this proceeding.
    There is certainly no legal obligation on appellee to pay for improvements ; this obligation could only arise from express or implied contract so to do.
    Feme covert can make no contract. 2 Comyns, Dig. Baron & Feme, 223.
    Married woman can charge her real estate only in form prescribed by law. Dunlap v. Mitchell, 10 Ohio, 121; Frank v. Frank, 14 Eng. Ch. R. 179, from 3 M. & C. 178.
    Feme covert is utterly incapable of making any contract to change either her real or personal property. Martin v. Duelly et al. 6 Wend. 9; 2 Kent, Comm. 149. If she could make no express contract with co-tenants, respecting improvements, the law will not imply any on her part.
    Lowvalle v. Menard, 1 Gilm. 39, was decided on the ground that the fund in court was increased by buildings. Here has been no sale, and certainly no contract to create a lien on the land. No claim for pay for improvements, only for necessary reparations, after demand and refusal. 4 Kent, Comm. 370.
   Trumbull, J.

This was a proceeding in chancery, for a partition of certain real estate, of which the complainant claimed an undivided half. The record clearly shows that she was entitled to the interest claimed; but her claim for partition is resisted, upon the ground that the lands sought to be divided, were, at the time of filing the bill, and for some time previous had been, in the adverse possession of the defendants.

They also filed a cross-bill, claiming the right, in case of a division, to reserve certain improvements put upon portions of the lands, or pay for the same in case of a sale.

The Circuit Court decreed that complainant have partition of the lands mentioned in her bill, and that one half of the same be set off to her, and appointed commissioners to make the division.

The defendants object to this decree, upon the ground that the complainant was disseized of the premises at the time of filing her bill, and for the further reason, that the matters alleged in the cross-bill are not disposed of by decree.

The case has been argued, as if it were a proceeding under the statute upon the common law side of the court, when, in fact, it is strictly a chancery proceeding, in all its features. The jurisdiction of courts of equity, in matters of partition, is undoubted. Indeed, in a great variety of cases, especially where the property is of a complicated nature, as to rights, easements, modes of enjoyment, and interfering claims, the interposition of a court of equity seems indispensable for the purposes of justice. The remedy, in equity, is often more complete than at law; as where one tenant in common has been in the exclusive reception of the rents and profits, on a bill for partition and account, the latter also will be decreed. So when one tenant in common, supposing himself to be legally entitled to the whole premises, has erected valuable buildings thereon, he will be entitled to an equitable partition of the premises, so as to give him the benefit of his improvements; or, if that cannot be done, he will be entitled to a compensation for the improvements.” 1 Story, Eq. Juris. § 655, 656.

It was said, in the case of Parker v. Gerard, Amb. 236, “ That such a bill is matter of right, and there is no instance of not succeeding in it, but where there is not proof of title in plaintiff.” See also Cooper, Eq. Pl. 135; 2 Dan. Ch. Pr. 770; 1 Story, Eq. Juris. § 646 to § 658.

It is unnecessary, in our view of the case, to inquire whether the possession of the defendants was adverse, or not; or, if adverse, whether a petition for partition under the statute would lie. The common-law mode of proceeding for partition, has been greatly extended by our statute, which is more comprehensive than that of any other State to which reference has- been made, and it may well be questioned, whether adverse possession, without regard to length of time, would bar a proceeding under it. There can be no doubt, however, that a bill in chancery lies for partition, notwithstanding an adverse possession, unless it has been continued sufficiently long to bar a recovery under the statute of limitations, which is not pretended in this case. Overton v. Woolfolk, 6 Dana, 374.

Where the title is denied, and is of a doubtful character, courts of equity have sometimes required the party seeking a partition, to establish his right at law, before proceeding with the partition suit; but when, as in this case, the title is clear, equity will at once decree a partition between the parties. Cartwright v. Pultney, 2 Atk. 380; Agar v. Fairfax, 17 Ves. 543; Allen v. Barkley, 1 Speer, Eq. Rep. 264; Oldhams v. Jones, 5 B. Monroe, 458.

The husband of the complainant could convey no greater interest in the real estate of his wife than he himself had. Plis right in the land of his wife, being an estate during coverture, is terminated by a divorce a vinculo matrimonii, granted for his misconduct. Rev. Stat. ch. 34, § 12; Clarke v. Lott, 11 Ill. 105; Starr v. Pease, 8 Conn. 541.

We perceive no error in the omission to dispose of the cross-bill at the same time the decree for partition was made. We will not now undertake to determine whether the defendants are entitled to pay for improvements, or not. The Circuit Court might, with propriety, if warranted by the facts before it, have directed, at the time of the appointment of commissioners, that in making partition, they should, if practicable, set off to defendants those portions of the premises, including their improvements ; but it was not absolutely necessary that such an order should have been made at that time. It may be that the premises will have to be sold, in consequence of not being susceptible of division ; and, in that event, it may be that the defend-, ants should be allowed the actual increase of the price received at the sale, in consequence of the improvements by them made. Louvalle v. Menard, 1 Gilm. 45.

These questions can, however, all be disposed of in the future proceedings to take place in the case; and it will be time enough for this court to act upon them, after the Circuit Court shall first have done so.

That the complainant is entitled to partition of the premises, there is no doubt.

The decree of the Circuit Court is affirmed, at the costs of the appellants, and the cause remanded for further proceedings.

Decree affirmed.


source: Caselaw Access Project

author: Treat, C. J.

license: Public Domain

text:
    John White, Appellant, v. Joseph B. V. Butler and James D. Morrison and Wife, Appellees.
    APPEAL EROM PIKE.
    If the assignee of an equity of redemption acquires a title obtained under a judgment, prior in time to the mortgage, and has refunded to him by the mortgagor the amount which he has paid for the judgment, the title acquired under the judgment will be held subject to the mortgage.
    A title thus acquired, will be treated in equity, as if obtained by and in the name of, the mortgagor.
    This case was before this Court at last December term, and was then remanded. See 11 Illinois, 361. The bill afterwards was amended in the Pike Circuit Court, and the proceedings were substantially as follows. The amended bill alleges,
    That at or about the time of the conveyance of said mortgaged premises to Butler by Morrison, they entered into an agreement on the 24th of June, 1843, by which Butler agreed to deliver to Morrison 93,750 bricks at four dollars per thousand, on condition that Morrison should pay off and discharge all the demands as an incumbrance on lots number thirty-six and thirty-seven, in Peter’s addition to the town of Pittsfield, being the same property that day deeded by Morrison and wife to Butler, the brick to be delivered by the first^of November, 1844, if said incumbrance should be removed from the lots by that day, and not otherwise, though Butler bound himself to turn out a part of the bricks, or all, if required, at any time when called on, after the same become due, in discharge of any of the demands which were an incumbrance on the lots ; that the stipulation contained in said agreement, formed the terms or mode of payments by Butler to Morrison, and was the consideration, or a part of it, to be paid by Butler to Morrison for said mortgaged premises; that the judgment in favor of Johnson against Morrison and the mortgage of White were liens, at the time the above agreement was entered into; that the sheriff of Pike sold the lots upon the judgment in favor of Johnson to one Grimshaw; that Grimshaw assigned his certificate of purchase to Butler, and Butler, as assignee, received a sheriff’s deed for the premises; that Morrison refunded to Butler the amounts paid by Butler to Grimshaw ; that thereby the purchase made of Grimshaw, enured to the benefit of Morrison ; and that Butler cannot set up title acquired through Grimshaw and the sheriff, to defeat the lien acquired by White by means of his mortgage; that the mortgage is a valid subsisting lien upon said premises.
    In his answer, Butler admits the execution of said agreement, and that the mortgage and judgment were liens at the time it was executed; states that when he bought the sheriff’s certificate of Grimshaw he had nearly paid Morrison in full of said agreement; admits the sheriff’s sale to Grimshaw, and assignment of certificate to him, and that sheriff executed a deed; insists that the purchase from Grimshaw was to protect his own interests and not those of White; admits that Morrison refunded the amount paid by him for the sheriff’s certificate and deed; states that after he acquired title through the judgment of Johnson, he settled with Morrison and paid him the full amount, deducting what he had paid for the deed under Johnson’s judgment. To this there was a replication. The bill was taken for confessed against Morrison and wife. At October term, 1851, Minshall, Judge, presiding, the bill was dismissed, and White appealed.
    The proof showed, that Butler was aware of the liens in favor of White and Johnson when he purchased of Morrison, and that Morrison had, on a settlement of accounts between himself and Butler, repaid Butler what he had advanced to secure the title under the sale by virtue of Johnson’s judgment.
    J.- Grimshaw, for appellant.
    There can be no doubt, that on 30th June, 1843, when Butler, in writing, acknowledged notice of the mortgage to White, that White was entitled to foreclose against him.
    To resist foreclosure now, Butler must show that since that time in good faith and for a valuable consideration, actually paid by Butler, he has acquired legal rights superior to those of White.
    If Morrison paid the only consideration that was paid for the title under Johnson’s judgment, such title enured to the benefit of White, both as against Morrison and Butler. Rev. St. 1845, p. 104, sec. 7; Frisby et al. v. Ballance, 2 Gilman, 145; White v. Morrison, 11 Illinois, 366.
    At time of purchase of the Johnson title, Butler owed Morrison more than was paid for the Johnson title. Butler used this fund of Morrison’s, then in his hands, to pay for the Johnson title; and Morrison testifies that he refunded to Butler, or allowed Butler on a settlement, the amount Butler paid for this Johnson title.
    How much, then, from the testimony, did Butler pay for this title ? We answer, nothing. All that has been paid was the money of Morrison.
    Courts of Equity will decide upon cases arising, as they actually are, and not as the parties intended that they should appear. This case resembles Powell et al. v. Jeffries, 4 Scam. 389; Lambert v. Nanny, 2 Munford, 196.
    The only attitude that, Butler can assume to resist foreclosure, is that he bond fide, for a valuable consideration actually paid, has acquired a title senior to White’s mortgage.

      If he holds this title as a mere volunteer, if it cost him nothing, he would not be hurt by the decree, he would stand where he did on 30th June, 1843.
    A plea of purchase for valuable consideration must be with the money actually paid, or else the party is not hurt. Jewett v. Palmer, 7 Johns. Ch. 67; Tourville v. Naish, 3 Peere Williams, 307; Murray v. Fimster, 2 Johns. Ch. 156; Mellwyn v. Lee, 9 Ves. Jr. 32; Beekman v. Frost, 18 Johns. 561; Howlett v. Thompson, 1 Ired. Ch. 375; Dickerson v. Tillinghast, 4 Paige, 221, 222.
    Butler certainly can occupy no better attitude than this class of defendants. He bought with actual notice. He is no purchaser bond fide for a valuable consideration. He holds a naked legal title; but the proof shows that he has paid nothing for it. He did not acquire this title in good faith; he had then the means of Morrison in his hands, which he used to get this title.
    This Court, in White v. Morrison, 11 Ills. 366, have decided the legal question in this case. There is no difference in the legal effect of the payment of the money for the Johnson title, whether Morrison paid the money directly, or whether Morrison paid it in the first instance and Morrison subsequently repaid him what he had advanced. In either event Butler has not actually parted with one dollar.
    The only purchase by Butler, was the original purchase from Morrison in 1843; he then bought with knowledge of these incumbrances, and with abundant indemnity in his own hands against these incumbrances. He parted with that indemnity with his eyes open. His subsequent acquisition of the Johnson title is no purchase for valúe; he parted with nothing to acquire the title.
    The only question to determine is one of fact. The testimony and answer of Butler show that Morrison refunded all that was paid to acquire the Johnson title.
    If the court is satisfied that the refunding Butler’s advance by Morrison was, in point of law and fact, the same as a payment directly by Morrison for the Johnson title, then complainant is entitled to a decree of foreclosure and sale.

      R. S. Blackwell, for appellees.
    Morrison was the owner of lots 36'and 37, in Pittsfield, Illinois. Johnson recovered a judgment against Morrison, which was a lien upon these lots. Afterwards Morrison mortgaged these lots to White, the complainant; and subsequently conveyed by absolute deed the premises to the defendant, Butler. " After these transactions took place, the land was sold under Johnson’s judgment; purchased by Jackson Grimshaw; the redemption was about expiring; White failed to redeem; Butler bought in the certificate of purchase, and afterwards procured a sheriff’s deed for the land. Butler had notice of the mortgage to White when he purchased. White files his bill against Morrison for a foreclosure, and makes Butler a party. Butler answers, and sets up his purchase under the Johnson judgment.
    The question is, “ whether White or Butler has the better equity.”
    Morrison was bound, by an agreement with Butler, to extinguish the lien of Johnson’s judgment. White, in order to protect his rights, was also bound to discharge that lien. Morrison and White both failed to do so; and Butler, to preserve his own rights in the premises, was compelled to purchase in the property under the Johnson judgment. If he had not done so, the rights of White were gone forever.
    It is true that Butler, when he purchased, had notice of White’s mortgage. But it is equally true that White had no-' tice of the Johnson judgment. Both, then, are purchasers, with notice of a-prior lien. And before either could avail themselves of their purchase or mortgage, they were,bound to discharge that incumbrance, or lose their rights in the land.
    It therefore became a race of diligence between White and Butler. White slept upon his rights, and failed to redeem. Butler was vigilant in the protection of his interests, and purchased the rights acquired by Grimshaw under the Johnson judgment.
    Here two equitable principles present themselves' in favor of the precedence acquired by the vigilance of Butler.

      Equity rewards the vigilant, and will not relieve those who are guilty of laches, or sleep upon their rights.
    White acted the part of the “ dog in the manger;” he would neither redeem himself, nor permit Butler to acquire any rights under his purchase. Butler has paid a full and fair consideration for this land, and is entitled to the favorable hearing of a court of equity. It is true he had notice of White’s mortgage. But he relied, in good faith, upon the promise of Morrison to discharge it.
    When Morrison failed to perform his promise, Butler had purchased the legal title under the Johnson judgment, and he is entitled to protection. For it is a maxim, that, where the equities are equal, the law must prevail.
    Again, White was bound to pay off and discharge the lien of the Johnson judgment. He took no steps to do so. It was his own folly. And equity will not permit a party to take advantage of his fault.
    There is no equitable estoppel upon Butler. There is no privity between him and -White. And equity never favors an estoppel, because it shuts out the truth.
    Again, he who is prior in point of time, has the superior equity. Johnson’s judgment was the elder lien, and Butler was entitled to be substituted in his place.
    Again, it is a maxim, that he who seeks equity must do equity. In equity, White was bound to discharge the lien of the Johnson judgment. He failed to do so. Butler, who had an equitable interest in the premises, was forced, in self-protection, to redeem or purchase under that judgment.
    Now in equity, before White is entitled to a foreclosure, he should have paid, or tendered the money paid by Butler, to extinguish the Johnson judgment. This he was forbid to aver and prove ; and, consequently, he is entitled to no relief.
    Morrison, it is true, deducted from -the purchase-money the amount paid by Butler to Grimshaw, but it was because Morrison had agreed to extinguish the prior lien. This did not make it the money of the mortgagor, Morrison. When paid, it was Butler’s money. He purchased to protect himself. And the money was not only never refunded to Butler, but he is out of pocket, in payments, $685. ‘
    Again, Butler purchased upon the faith of Morrison’s promise to pay off the incumbrances. Morrison failed to do so. Then Butler bought the title, and upon the faith of acquiring a valid title, settled with Morrison, and paid the purchase-money due upon the land, after deducting what he had paid to procure a title.
   Treat, C. J.

This case may be thus briefly stated. Morrison was the owner of two lots in the town of Pittsfield. In 1840, Johnson recovered a judgment against Morrison, which was a lien on the lots. In 1842, Morrison mortgaged the lots to White. In 1843, Morrison sold and conveyed the lots to Butler. At the same time, an agreement was entered into between Morrison and Butler, by which Butler agreed to pay Morrison $375, in part consideration for the lots, and Morrison agreed to discharge the existing incumbrances on the lots. In 1845, the lots were sold, under an execution issued on the judgment, to Grimshaw, for $58, the balance then due on the judgment. Grimshaw assigned the certificate of purchase to Butler, who obtained a sheriff’s deed for the lots. Afterwards, a final settlement took place between Morrison and Butler, in which the latter was credited with the amount paid Grimshaw for the certificate. Subsequently, White filed a bill against Morrison and Butler, to foreclose his mortgage. Butler, in his answer, claimed title to the lots under the sheriff’s deed, to the exclusion of the mortgage. The foregoing facts appear from the pleadings and proofs in the case. The Circuit Court dismissed the bill, and White brings the record into this court.

The complainant was clearly entitled to a decree. Butler was not in a position to rely upon the sheriff’s deed. He received from Morrison the amount advanced for the certificate of purchase. He thereby waived his rights under the judgment. He could not receive back the purchase-money, and at the same time assert title under the conveyance. He was not a purchaser for a valuable consideration, for, in point of fact, he paid nothing for the title. In equity, the whole transaction must be considered as bdt a payment of the judgment by Morrison. He was bound to discharge the incumbrance, and Butler was his debtor. Butler purchased the lots under the judgment, and then obtained credit for the amount of the purchase-money. In other words, he advanced the money on account of Morrison, and then received payment of the same. If he ever designed to assert title under the judgment, he abandoned that intention when he accepted payment from Morrison. If he made the purchase to protect himself against his mortgage, he surely would not have claimed or received payment from Morrison.

The decree of the Circuit Court will be reversed, and the cause remanded, with directions to that court, to enter a decree for the foreclosure of the complainant’s mortgage.

Decree reversed.


author: Caton, J.

text:
    Thomas Lewis, Administrator de bonis non of Samuel Lyons, deceased, Plaintiff in Error, v. Mary Lyons et al., Defendants in Error.
    ERROR TO SANGAMON.
    An administrator has the legal title to the personal estate of the decedent, as a trustee, and for a particular purpose; but when the debts are paid, the residue of such estate belongs to the heir.
    A court of equity is not bound at all times to enforce a strict legal right, but will protect the equitable title when good conscience requires.
    A court of chancery will not require an heir to pay over money to an administrator, when such administrator has no debts to pay, nor any use to make of it connected with the estate, merely that he may retain it for his own benefit, or be paid his costs and commissions.
    Lewis, as administrator de bonis non, filed his bill in the Sangamon Circuit Court, setting forth : — That on the 21st of March, 1839, one Linus Graves purchased of I. and P. Irwin and Samuel Lyons, certain lots in Iles’s Addition to Springfield, for ¡$1000, for which Graves executed his notes for the purchase-money, secured by a mortgage on the same lots. The purchase-money was not paid according to the conditions of the mortgage, and Lyons and the Irwins proceeded by bill to foreclose it. A sale of the lots was decreed for the payment of the purchase-money. This decree was not executed; and at the March term, 1837, of the same court, it was revived, and the lots were ordered to be sold, and Josiah Francis was appointed commissioner to execute the decree. • Francis was directed to pay one half of the proceeds of the sale of the lots to" Mary Lyons, the widow and heir at law of Samuel Lyons, deceased. That Samuel Lyons died intestate, and P. A. Saunders was appointed administrator to his estate, and administered, for a time, and then resigned; that afterwards the County Court of Sangamon county issued letters of administration de bonis non of the said estate, to the complainant Lewis ; that the estate of Lyons has never been settled, and is indebted to various individuals, and, as is believed, to an amount more than sufficient to consume the half of the proceeds derived from the sale of said lots, ordered to be paid to said Mary Lyons, and that it is known that the deceased had not any other property with which to pay said debts; that Mary Lyons received in possession a large amount of personal property belonging to her husband’s estate, which she has not accounted for; that the order of the court did not require her to give a refunding bond; and if she should be solvent there would be delay, and a necessary resort to' litigation, to force her to refund; that the order of' the court was made under a mistake, or proper knowledge of all the facts of the case. An injunction was prayed for, to restrain Francis and all others from paying over 'the proceeds of the sale of said lots to said Mary Lyons, until after another order of court on this bill; and that the proceeds of the sale of said lots be paid over to Lewis as such administrator de bonis non, &c. The injunction was allowed.
    The decree of the court, referred to in the bill of Lewis, which directed the lots to be sold to satisfy the mortgage given for the purchase-money, and which Lewis makes a part of his bill, sets forth, that Mary Lyons filed her answer to that bill, admitting its allegations, but setting up a tax-title to the lots, which she says was in "her possession. Irwin then filed his amended bill? setting forth that he and the said Mary Lyons were tenants in common, when she acquired that tax-title, which amended bill she traversed by a general denial. The cause was heard, a revival of foreclosure was decreed, and the commissioner ordered to sell said lots; by which decree'it is stated, “ And it appearing to the court, from the parol statement of the parties, that said Mary paid $50 for a tax title, and has, since the year 1843, paid the taxes amounting to $24.50, it is ordered, after the payment of costs, &c., that said Mary be paid $60.62, being one half of said $50, with interest from 1st November, 1843, and one half the taxes, on said lots since paid by her, and also the amount of debt and interest due upon decree in complainants’ bill mentioned, be divided equally between said Irwin and said Mary Lyons, and residue to be reported to the court.”
    Mary Lyons, in answer to the bill of Lewis, admits the execution and foreclosure of the mortgage; the revival of the decree; the appointment of the commissioner; the sale of one of the lots for $275, and that a deed was given therefor; the sale of the other for $300, for which no deed was given or money paid; admits the death of Lyons and appointment of Saunders as administrator, and that Saunders filed his resignation February 17th, 1848 ; but states that records of the probate court do not show that his resignation was accepted, nor that any final settlement was ever made with Saunders. Answer denies that he was ever legally discharged from his duties as administrator. Admits the appointment of Lewis administrator de bonis non; but charges, that it was wrongfully done, and that no money should be paid to him as administrator.
    Answer admits, that when Lewis was appointed there were a few debts against Lyons’s estate, which she has since discharged with her own money, amounting to more than $200, and files transcript from probate court,.showing estate not to be indebted in any way. The answer further alleges, that she has paid several hundred dollars of Lyons’s debts with her own funds ; admits that she received several articles of personal property from estate, and, that though she was perhaps entitled to most of it as her separate property, yet, she paid far more than the value of all the debts of said Lyons after his decease.
    Alleges, in answer, that she considers herself the legal owner of said lots, and that they should not be sold for the benefit of the estate of said Lyons; and files a deed from Philip C. Latham and wife, who had bought them for taxes ; that Latham, in due time, procured a tax-deed, and transferred, by deed, his interest to her the said Mary Lyons, and she prayed a dissolution of injunction.
    Afterwards Josiah Francis filed his separate answer, admitting all the facts as charged and set forth in complainant’s bill.
    On the 29th November, 1837, of the Sangamon Circuit Court, Davis, Judge, presiding, a motion to dissolve the injunction was entered by Mary Lyons, which was sustained, and injunction was dissolved. Lewis brings the cause to this court.
    Stuart & Edwards, for plaintiff in error.
    J. C. Conkling, for defendants in error.
    Resignation of former administrator must not only be tendered, but must also be accepted, before the County Court had power to appoint another. 1 Rev. Stat. of 1845, p. 543, § 34.
    Such resignation and acceptance should appear of record, and if the County Court had no authority to appoint another administrator, his letters of administration were ipso facto void, and any other court can so determine. 4 Denio, 90; 3 Dana, 129; 6 Ired. 31.
    The demand of administrator is- barred by lapse of time and negligence. 1 Gilman, 149.
    The record shows that the property in question did not belong to Lyons at the time of his death, and was5 not a part of his estate. 2 Gilman, 449.
    When the injunction was dissolved there were no demands against the estate, and no reason why the injunction should continue.
   Caton, J.

We shall not stop to inquire whether Lewis was properly appointed administrator or not, because we are of opinion, after the most careful examination of this record, that this bill ought not to be maintained. Nor will we stop to inquire how far, upon the final hearing, the blanks in the bill should prejudice the claim of the complainant to the relief sought, but will proceed at once to the merits of the case, as presented by this record.

In 1842, Lyons died. Previous to his death the mortgage had been foreclosed, upon a bill filed by Lyons and Irwin ; but no sale was made under that decree of foreclosure. In February, 1843, Saunders was appointed administrator, and tendered his resignation in February, 1848. What steps he took towards the settlement of the estate during the five years that he was administrator, this record does not inform us. In March, 1851, the decree of foreclosure was revived, upon a bill filed for that purpose by Irwin, to which Graves, the mortgagor, and Mrs. Lyons, the widow of the other mortgagor, were defendants. That decree of revivor finds and declares that Mrs. Lyons is the only heir to her late husband, and directs that one half of the money due upon the mortgage, and to be raised under the decree, be paid to her as such heir. After this, and nearly nine years after the death of Lyons, Lewis was appointed administrator, and files this bill, alleging that there are debts due from the estate, and asking that the money, which was ordered by the decree of revivor to be paid to Mrs. Lyons as heir, may be paid to him as administrator. Upon the hearing, it appeared that certain claims had been filed in the County Court, against the estate; but the records of that court showed that all of those qlaims had been paid by Mrs. Lyons, and, so far as appears, from her own private funds. The bare statement of this case is sufficient to show, that no court of conscience should ever interfere to divert this fund from the lawful heir, to the hands of the administrator. That she is the sole heir of her husband, was established by the decree of revivor, and the complainant does not intimate that such was not the fact. Had it not been true, he might have so alleged ; for as his predecessor was not a party to the bill of revivor, he may not have been precluded from controverting the facts found and established by that decree. As it is, we take it to be established, that she is the only heir, and as such she is entitled to the entire estate, both real and personal, after the payment of the debts. The administrator, it is true, may have the legal title to the personal estate; not, however, in his own right, but as trustee, and for a particular purpose. When the debts are paid, the heir is the cestui que trust, and as such, is entitled to the surplus of the assets after the debts are paid. There being no debts unpaid in this case, the heir has the entire equitable interest in all of the estate, both real and personal. This court is not bound at all times to enforce a strict legal right, but will always look to and protect the equitable title where good conscience requires it. Such is emphatically this case, in our apprehension. It would be a mockery of justice for a court of chancery to require the heir to pay over the money to the administrator, when he has no debts to pay and no legitimate use for it, merely for the purpose of allowing him to retain ánd use it for perhaps two years, and then to pay it back to the heir, retaining his costs and commissions,— costs uselessly made, and commissions earned by no beneficial services, but in a business which he seeks, through an expensive suit in chancery, and which can benefit himself alone. The naked question is-, Shall Mrs. Lyons be deprived of the use of this money, 'for it may be two years or more, and then be compelled to pay Lewis for keeping it from her; or, in other words, shall Lewis be permitted to use her money for that time, and then make her pay him for this worse than useless service ? This is what Lewis calls relief, and seeks it in a court of equity. On the other hand, it would better become a court of chancery to interfere, and prevent the administrator from asserting his legal right, for so unreasonable a purpose. I speak of this case as it stood at the time of the hearing, when the complainant was asking for a decree, and not as it was presented when the bill was filed.

Let the decree of the Circuit Court be affirmed.

Decree affirmed.


text:
    James M. Campbell, Appellant, v. Horace S. Head, Appellee.
    appeal prom McDonough.
    In replevin, the affidavit should state that the property had not been distrained for taxes assessed.
    It is not error to refuse leave to amend an affidavit in replevin after the judgment of the court has been given sustaining a motion to quash the writ. The Circuit Court, while the record was under its control, might, hut is not bound, to allow such amendment.
    The act concerning practice has no reference to the assessment of damages in the action of replevin; that act only applies to a case where a suit is brought on a replevin bond.
    The assessment of damages by a court under the 6th section of the replevin act is not a violation of the right of trial by jury.
    Campbell filed in the office of the Circuit Court of McDonough county a plaint and affidavit in replevin, stating that he was th.e owner, and then lawfully entitled to the possession of a bay horse commonly called Nephi. That said horse was then wrongfully detained from him by Head. That said horse had not been taken for any tax, assessment, or fine levied by virtue of any law of this State; nor seized under any execution or attachment against the goods and chattels of said Campbell liable to execution or attachment. The declaration states that Head illegally, wrongly, and unjustly detained from said Campbell said horse, of the value of §100, the property of said Campbell, to his damage, &c.
    Head moved that the writ should be quashed because it was defective, in not showing that the horse had not been taken for tax, assessment, or fine levied by virtue of any law of this State.
    The motion to quash was sustained by Minshall, Judge, at May term, 1850, of the McDonough Circuit Court. A judgment for return of property and a writ of retorno hábendo awarded. Judgment for costs and execution awarded. The cause was continued for an assessment of damages. After the motion to quash had been sustained, Campbell entered a motion for leave to amend his affidavit. The motion to amend was overruled. At April term, 1851, of the court, Campbell objected to proceeding to the assessment of damages. But the court heard the evidence, and assessed the damages of Head at thirty dollars, and awarded costs and an execution.
    Campbell, on the assessment of damages, offered to prove that the horse was his at the time of the replevin, and that he was entitled to the possession of him, &c., which the court, upon the objection of Head, refused to hear. Campbell took a bill of exceptions, and brings the cause to this court by appeal. Errors assigned, are the quashing of the writ of replevin, the refusal to allow an amended affidavit to be filed, the return of the property, the assessment of damages by the court instead of by a jury, and the refusal to hear the testimony offered by Campbell on the assessment of damages.
    Warren and Edmonds, for appellant.
    The original affidavit in this cause, upon which the writ of replevin issued, was clearly sufficient. Though not in the language of the 3d section of ch. 88, Rev. St. p. 434, yet it contains the substance of what that section requires.
    It states that the plaintiff is the owner and rightfully entitled to the immediate possession of the horse. That the defendant wrongfully detains Mm. That he has not been taken “in execution ” for any tax assessment or fine levied by virtue of any law of this State, or seized on any execution or attachment against the goods and chattels of the plaintiff liable to execution or attachment.
    The only objection pointed out on the argument in this affidavit is the use of the words “ in execution ” in the sentence, “ that he has not been taken 1 in execution ’ for any tax,” &c.
    This expression should be disregarded as being surplusage.
    The process under which property may be taken for any tax, assessment, or fine, in common parlance, is called execution, though not such in fact.
    The court erred in refusing to permit the plaintiff to file an amended affidavit. This is a question of practice, and should be settled. It matters but little how it may be settled, but when once settled the courts should abide it. As a matter of practice this court have settled this question. Frink v. Flanegan, 1 Gilm. 35, 37; Cutler v. Rathbone, 1 Hill, 204, 206; Hawley v. Bates, 19 Wend. 632; Whaling v. Shales, 20 Wend. 673.
    Though amendments are usually in the discretion of the court, yet they are not universally so. Drulard v. Baxter et al. 1 Scam. 191; 1 Gilm. 35, 37; 6 E. Ch. R. 288; 3 Gilm. 546; 2 Atk. 15.
    Browning & Bushnell and R. S. Blackwell, for appellee.
    1. The affidavit in this case was defective. The statute requires that such affidavit should state that the property about to be replevied “ has not been taken for any tax, assessment, or fine, levied by virtue of any law of this State; nor seized under any execution or attachment against the goods and chattels of such plaintiffs liable to execution or attachment.” Rev. St. 434, § 3.
    The affidavit states “ that said property has not been taken in execution for any tax, assessment, or fine levied by virtue of any law of this State, nor levied under any execution or attachment against the goods and chattels of said plaintiff liable to execution or attachment.”
    An execution is never issued to collect a tax or assessment under our laws; the remedy is by distress. The distress is not based upon a judgment; but on demand by the collector and refusal by delinquent, the officer is authorized to distrain personal property for the taxes due, and sell the same. Rev. St. 442, § 35.
    The horse replevied in this case may have been distrained by the collector for taxes due the State, county, or some incorporated city or town. This should have been negatived by the affidavit.
    Suppose the horse had in fact been seized by distress and the plaintiff in replevin was indicted for perjury, could the prosecution be maintained ? It is clear that it could not. The affidavit is therefore bad.
    2. The defect could not be cured by amendment.
    The affidavit of a party was not amendable at common law. 1 Bac. Abr. 145.
    The statute of amendment and jeofail does not embrace an affidavit. Rev. St. 48.
    Our legislature authorizing amendments of affidavits in attachment, is an implied recognition of the common-law rule disallowing amendments in such cases. Rev. St. 65, § 8.
    This court have decided that an affidavit for a continuance is not amendable. McBain v. Enloe, decided at Mount Vernon, November term, 1851, [Ante, 76.] The Court of Appeals in Kentucky have adopted the same rule. Smalley v. Anderson, 4 Monroe’s R. 369.
    After the opinion of the court has been pronounced declaring the affidavit defective, and the suit is about to be dismissed at the costs of the plaintiff in replevin, and a retorno habendo awarded, there is a powerful temptation to perjury if the party is permitted to retain the cause in court by filing a supplemental or an amended affidavit.
    3. If amendable, it is matter of discretion in the Circuit Court, and its decision cannot be assigned for error. McBain v. Enloe, before cited.
    Upon this point the case of Frink v. Flanegan, 1 Gilm. R. 35, is opposed to the whole current of the decisions of this court. That case was rightfully decided upon the ground that the issue had been joined and the irregularity waived.

      The ease of Cutler v. Rathbone, 1 Hill, 206, was a direct application to amend, and not upon error to reverse a judgment for the refusal of the inferior court to permit an amendment.
    The question of discretion was not raised in the argument of Frink v. Flanegan, nor was passed upon by the court.
   Caton, J.

The affidavit in this case, after setting forth the plaintiff’s right to the property, states, “ that the said property has not been taken in execution for any tax, assessment, or fine levied by virtue of any law of this State,” &c. This does not conform to the requirements of the statute. The plaintiff has here sworn that the property had not been taken by virtue of a particular process for any tax, &c., leaving us uninformed as to whether it may not have been distrained for taxes assessed against the defendant without an execution, which may be done under our laws. It might be true that the property had been distrained for taxes or assessments, and the plaintiff not liable to be prosecuted for perjury for swearing to this affidavit.

The defendant entered a motion to quash the writ for the insufficiency of the affidavit, which motion the court sustained, and quashed the writ, whereupon the said plaintiff moved to amend by filing the following affidavit,” &e.. This application the court denied, and it is this decision which is assigned for error. Had the plaintiff desired to amend his affidavit, he should have applied to the court for leave to do so before the decision was made, and the judgment of the court given upon the defendant’s motion to quash the writ. Strictly speaking, the suit was no longer pending in court, except for the purpose of assessing the damages and for final judgment. It may be, that while the record was still within the control of the court, it might within its discretion have allowed the amendment and set aside the order quashing the wilt, but certainly it was not bound to do so. In the decision of the court refusing leave to amend, there was not error. Upon the assessment of the damages, the plaintiff offered to prove, in mitigation of damages, that the horse was his; relying upon the Act of the first of March, 1847, entitled “ An Act concerning Practice.”

That act duly applies to a case where a suit is brought on the replevin bond, and has no reference whatever to the assessment of damages in the action of replevin. The language of the statute is explicit and unequivocal, and admits of no construction.

The damages had to be assessed under the 6th section of the 88th chapter of Revised Statutes, which gives to the defendant “ damages for the use of the property from the time it was taken until return thereof shall be made.”

It was also objected, that the damages should have been assessed by a jury, instead of the court. This objection is also disposed of by the same section last referred to, which provides, that “ if the plaintiff shall not prosecute his suit, or if judgment shall in any manner be given for the defendant without a trial, the damages in such case may be assessed by the court on hearing such testimony as may be offered on the subject.” This was one of those cases in which the court was authorized to assess the damages. Nor is this any violation of the right of trial by jury, which is secured by the Constitution. Here was no trial, for there was no issue between the parties to be tried.

The right of the defendant to recover his damages was already adjudged to him, and it was merely an inquiry as to the extent of those damages. It was competent for the legislature to provide that these should be ascertained without the intervention of a jury.

The judgment of the Circuit Court is affirmed.

Judgment affirmed,


text:
    William M. Dorman et ux., Appellants, v. L. C. Tost, Administrator of John Lane et al., Appellees.
    APPEAL FROM WHITE.
    An order to sell the real estate of a decedent will not be made, unless it is shown that there are existing debts against the estate.
    Lane, as administrator de bonis non of Christopher Robinson, deceased, filed his petition in the Gallatin Circuit Court, stating that in November, 1819, letters of administration upon the estate of Robinson, were granted to Mary Robinson, his widow, and John Brown, who proceeded to administer; but in consequence of a failure to collect debts due to the estate, they were unable to pay the debts due from the estate, and particularly a debt due the Bank of Illinois, which the bank consented to have renewed by the administrator. That in August, 1821, Lane intermarried with the widow of Robinson, and thereby became connected with the administration. That Mrs. Robinson, then Mrs. Lane, died in the Fall of 1822, leaving Brown as surviving administrator, who, after an absence of several years, returned in 1826, and proceeded to make a further settlement of the estate, by which a large indebtedness on account of the bank against the estate, was again renewed by the bank, but remained unpaid for want of assets. That Lane, in consequence of his marriage, had become a party to the note renewed by the bank, and was personally liable in the sum of $1,008.80.
    That Brown applied to the legislature in 1826, for a law to authorize a sale of land to pay a balance due himself and Lane for moneys advanced and claims liquidated by them. That the law was passed, appointing Lane as commissioner to sell the lands, and directing that the proceeds should be applied to the payment of such balance.
    That Lane in January, 1827, at public auction, sold the land for $1,057.00. That the moneys were applied in discharge of those liabilities. That the estate remained without a new administration until June, 1837, when Nancy Dorman, the daughter of Robinson, together with William M. Dorman, her husband, brought ejectment and recovered the land sold by Lane, under the act of the legislature. That the said sum of $1,057.00, being the proceeds of the sale, has not been refunded to the purchasers thereof.
    That in June, 1841, Lane became by appointment administrator de bonis non of the estate of Robinson remaining unadministered. That upon examination of said estate, he found it still indebted in the sum of $1,008.80, without any personal assets remaining unadministered, but having the said real estate.
    Petition prayed that Dorman and wife should be made parties to the application, and that a decree should be made, directing that the said lands, or so much thereof as may be necessary to pay the remaining debts, should be made.
    Dorman and wife appeared, and a change of venue was awarded to White county. A demurrer to the petition was filed in the White Circuit Court, which was overruled, and leave to answer the petition was given. At March term, 1849, 'of the White Circuit Court, an order was entered authorizing the sale of the land. Whereupon Dorman and wife appealed to this court.
    During the pendency of this suit in this court, at Mount Vernon, Lane deceased, and L. C. Tost, as his administrator, was substituted in his stead; and by agreement of parties the venue was changed from the first grand division, to this division.
    A. Lincoln, for appellants.
    D. L. Gregg- and R. S. Blackwell, for appellees.
   Treat, C. J.

The material facts set forth in this petition are these. Robinson died intestate in 1819, leaving considerable real and personal estate. In November, 1826, his administrators made a settlement with the Probate Court, which, after charging them with the assets, showed a balance against the estate of $1,008.87, consisting chiefly of a debt due to the Bank of Illinois. In January, 1827, the legislature passed a special act, authorizing John Lane to sell enough of the real estate to discharge this balance. During the same month, Lane sold several tracts of the land, for the sum of $1,057, and applied the proceeds to the payment of the debt to the bank. The heir of Robinson subsequently recovered these lands by ejectment. The recovery was sustained by this court, on the ground that the act of the legislature, and the proceedings under it, were unauthorized and void. See Lane v. Dorman, 3 Scam. 238. In 1841, Lane was appointed administrator de bonis non of Robinson; and he then applied to the Circuit Court, and obtained an order for the sale of so much of the real estate as would satisfy the sum of $1,008.87, and interest thereon from the settlement. That order was reversed in this court, and the cause was remanded for further proceedings. See Dorman v. Lane, 1 Gilm. 143. The petition was subsequently so amended as to present the foregoing state of facts.

There is an insuperable objection to this petition. It does not show that there are any existing debts against the estate, which the administrator will ever be called upon to discharge. It expressly states, that the debt to the Bank of Illinois was fully paid with the proceeds of the sale made in 1827. And it does not allege that any claims have since been established, or even exhibited, against the estate. There is, therefore, no basis for the application. Whether the purchaser of the lands may have a valid claim against the estate, for the amount of the purchase-money paid by them, is not material for the purposes of this case. If they can rightfully insist that the money shah be refunded, because advanced upon a consideration that has failed, still it does not appear from the petition, that they have ever asserted the right, against Lane, either in his individual or representative capacity. Until the purchasers establish their demands against the estate,-if; indeed, they are not already barred by the lapse of time from so doing, there can be no necessity for the sale of the real estate.

It was intimated, in the former decision of the case, that the settlement of 1826 found a balance of $1,008.87, to be due from the estate to Lane, individually; and that the sale, being without authority of law, did not operate as a payment or discharge of the allowance. But, upon a closer scrutiny, we are satisfied that no such effect can be given to the settlement. It only found that the debts proved against the estate exceeded the assets in that sum. It did not determine that the balance was due to the administrators, or to Lane personally; but, on the contrary, it clearly appears that the same was due to the Bank of Illinois. This petition distinctly alleges, that the debt to the bank was paid with the money raised by the sale of the lands. The debt was thereby extinguished. It was not revived by the subsequent recovery of the lands by the heir. As the case is now presented, the purchasers alone have any cause to complain; and it does not appear that they have taken any steps to recover back the purchase-money.

The petition does not disclose the least necessity for the application ; and the court consequently erred in overruling the demurrer, and in granting a license to sell the real estate.

The judgment is reversed.

Judgment reversed.


text:
    Simeon Stephens, Appellant, v. The People, Appellees.
    APPEAL PROM BROWN.
    On an appeal from a conviction for an assault and battery, a bond conditioned to pay whatever judgment may be rendered by the court, upon the dismissal or trial of the appeal, is defective, in not being as comprehensive as the statute requires.
    A clause in the condition, to prosecute the appeal with effect, though not required by the statute, will not vitiate the bond.
    A bond, conditioned to pay whatever judgment may be rendered upon dismissal or trial of an appeal, would not include a judgment that might be entered upon a plea of guilty. In such a case, there would be none of the elements of a trial.
    It is the duty of officers taking appeal-bonds to pursue the directions of the statute; the obligation should be broad enough to comprise every case of liability contemplated by the statute.
    An appellant from a conviction for an assault, assault and battery, and fray, has not a right, as a matter of course, to amend his bond.
    The facts of the case are stated in the opinion. Minshall, Judge, rendered the decision appealed from at the October term, 1851, of the Brown Circuit Court.
    Browning & Busiinell, for appellant.
    R. S. Blackwell, District Attorney, for appellees.
   Treat, C. J.

Stephens was convicted of an assault and battery, and fined twenty-five dollars. He appealed to the Circuit Court, where the appeal was dismissed, because the condition of the bond was not in compliance with the statute. The court also refused a motion to amend the bond. Those decisions present the only questions in the case. The condition of the bond was as follows : “ If the said Simeon Stephens shall prosecute his appeal with effect, and shall pay whatever judgment may be rendered by the court upon dismissal or trial of said, appeal, then the above obligation to be void.” The statute required the bond to be conditioned for the payment of the amount of whatever judgment the court may render against said defendant.” Rev. Stat. ch. 59, § 99.

The clause in the condition to prosecute the appeal with effect, though not required by the statute, did not vitiate the bond. It could be disregarded, without detriment to the obligation. But, in other respects, the bond was clearly defective. The condition was not as comprehensive as the statute prescribed. The law required the bond to be conditioned for the payment of whatever judgment should be rendered against the appellant. The obligation in question did not embrace every case, in which a judgment might be entered against him by the Circuit Court. It only provided for the payment of such judgment as should be rendered on a trial of the case, or on a dismissal of the appeal. It did not include a judgment, that might be entered upon a plea of guilty by the appellant. In no legitimate sense, could such a judgment be regarded as within the terms of the obligation. For, in such a case, there would be none of the elements of a trial. There would not be any issue to be heard and determined, — something affirmed on one side, and denied upon the other, upon which a contest could arise, requiring the production of testimony, and a decision by a court or a jury. It might as well be insisted, that a judgment in an original suit entered on an assessment of damages by the clerk, or on a confession of the cause of action by the defendant in person or by attorney, would be a judgment rendered upon a trial of the case. It is the duty of officers, in taking appeal-bonds, to pursue the directions of the statute. In any event, the obligation should be broad enough to comprise every case of liability contemplated by the statute. In this case, a judgment entered on the confession of the appellant, would not be within the terms of the bond. The instrument not being in accordance with the statute, the surety could not be made responsible beyond the fair import of his undertaking. See Sharp v. Bedell, 5 Gilm. 88.

The court committed no error in refusing the motion to amend. An appellant has not a right, as a matter of course, to amend his bond in such a case. The right is restricted to appeals in civil cases. Swafferd v. The People, 1 Scam. 289; Walsh v. The People, 12 Ill. 77.

The judgment is affirmed.

Judgment affirmed.


text:
    Stephen Abrams, Plaintiff in Error, v. George Pomeroy et al. Defendants in Error.
    ERROR TO SCOTT.
    A special plea which amounts only to the general issue is obnoxious to a special demurrer.
    Parol evidence is not admissible to contradict or vary the terms of a written agreement.
    A guaranty may have a retrospective operation so as to embrace debts already contracted, where it clearly appears, that such was the intention of the parties, and an instrument may be antedated so as to embrace a particular transaction, whore no fraud or mistake is shown.
    The law presumes that an instrument was executed the day it bears date; but parol testimony is admissible to show that it was in fact executed on a different day.
    The evidence of a witness introduced to explain the date of a written agreement, and thereby defeat a cause of action founded upon it, should be closely scrutinized by the court, and where he is contradicted by his own letter, previously written, no weight should be attached to his testimony.
    The pleadings and facts of this case are stated in the opinion of the Court. The cause was tried by the Court below, Wood-son, Judge, presiding, at September term, 1851, of the Scott Circuit Court, and a judgment was rendered for the plaintiff below, and Abrams sued out this writ of error.
    M. McConnel, for plaintiff in error.
    The date of an instrument is only primd facie evidence that it was made on that day; but it may be shown to have been made and delivered on a day different from its date, and the-day of its delivery is the time from which the contract will take effect, and the party who signed the paper is not estopped from showing, when the instrument was signed and delivered. Hale v. Cazenove, 4 East, 478; Story on Contracts, sec. 971, page 805 ; Chitty on Contracts, 564; Chitty’s Blackstone, part 2, page 245, note 12; Chitty on Bills, 147, 148.
    In an action of assumpsit, based on a written instrument, the defendant may show, under the general issue, that the contract was made on a day different from that on which it bears date. 2 Johnson’s Rep. 302; 5 Mass. 285; 6 Id. 289, 293.
    J. Grimshaw, for the defendants in error.
    Under the issues in this case, evidence of James Abrams was inadmissible; the execution of guaranty verbatim et literatim was not put in issue, plea of non assumpsit not being sworn to. Rev. Code, 1845, p. 415, see. 14; Mclntire v. Preston, 5 Gilman, 63.
    This parol evidence to vary guaranty, would violate letter and spirit of statute of frauds. Child v. Wells, 13 Pick. 124; Lock v. Whiting, 10 Pick. 279; Lincoln v. Avery, 1 Fairfield, 418.
    Would violate common-law rule, that writing is best evidence of contract, and cannot be varied by parol. Penny v. Graves, 12 Illinois, 287; Donaldson v. Benton, 4 Dev. & Batt. 435; Gooch v. Conner, 8 Mis. 394; Birge v. Dishman, 5 Black. 272; United States v. Thompson, 1 Gallison, 391.
    There is a sufficient consideration on the face of this guaranty. Newbury v. Armstrong, 19 Eng. C. Law, 55, 272; Stadt v. Lill, 9 East, 348; Smith v. Ide, 3 Vermont, 301; Bearden v. Wood, 1 A. K. Marshall, 450; Miller v. Drake, 1 Caines, 45; Forster v. Fuller, 6 Mass. 58; Lent v. Paddleford, 10 Mass. 242; Train v. Gold, 5 Pick. 383; Overstreet v. Phelps, 1 Litt. 123.
    The letter was properly admitted to contradict witness. 1 Greenleaf, Ev. sec. 462, 464.
    The question determined by finding of court, was one of fact. The Court will not set aside a verdict, merely because in their opinion they would have found facts differently. Wendell v. Safford, 12 N. H. 178; Way v. Callison, 6 Leigh, 234; Brugh
      v. Shanks, 5 Leigh, 599; Dickerson v. Parker, 2 How. Miss. 219; Lackey v. Lane & McCabe, 7 Mis. 221.
    Province of a jury to test credibility of witness. Stovall v. F. & M. Bank of Memphis, 8 Smedes & M. 313; England v. Burt, 4 Humph. 401.
   Treat, C. J.

This was an action of assumpsit brought by Pomeroy, Durkee, & Co., against Stephen Abrams, on the following instrument: “ I, Stephen Abrams, of the County of Scott, and State of Illinois, do hereby agree with Pomeroy, Durkee, & Co., that in order to establish a credit for my son, James Abrams, that I will, and do hereby guarantee, and become security for, the payment of any sum not exceeding twelve hundred dollars, which said James Abrams may owe said Pomeroy, Durkee, & Co. either by note or book account. This agreement to be binding on and include any purchase that the said James Abrams may make of Pomeroy, Durkee, & Co., until revoked by written notice from me. St. Louis, January 24th, 1850. Stephen Abrams.”

The declaration alleged in substance, that the plaintiffs, relying on the guaranty, did, on the 25th of January, 1850, sell goods to James Abrams to the amount of $537.32, which sum was due and unpaid.

The defendant pleaded five pleas. First. That the guaranty was made and executed, without any good and valuable consideration. Second. That James Abrams paid for all goods purchased of the plaintiffs, after the making and delivery of the guaranty. Third. That the plaintiffs did not sell any goods to James Abrams, after the making and delivery of the guaranty. Fourth. Non assumpsit. Fifth. Payment by the defendants of all goods purchased of the plaintiffs by James Abrams, after the making and delivery of the guaranty.

The court sustained a special demurrer to the third plea; and issues of fact were formed on the other pleas.

On the trial before the court, the plaintiffs read in evidence the guaranty; and also a promissory note, made by James Abrams to the plaintiffs, bearing date at St. Louis, on the 25th of January, 1850, for $537.32, and payable six months from date. They also proved that payment of the note was demanded of the defendant, prior to the commencement of the suit.

The defendant, against the objections of the plaintiffs, introduced James Abrams, who testified that he purchased the goods and made the note in question, on the day the note bears date; that after the purchase, the plaintiffs proposed that he should obtain security for future purchases, to which he assented; the guaranty was then drawn, and he agreed to take it to Illinois, and get it signed by the defendant; it was signed about ten days afterwards, and then sent to the plaintiffs at St. Louis; and it was expressly understood between the plantiffs and the witness that the guaranty was to cover subsequent purchases only.

On cross-examination, he stated that the guaranty was read to the defendant at the time it was signed; and the witness then inclosed it in a letter addressed to the plaintiffs, dated January 31st, 1850, containing these expressions : “ I inclose you your security on the goods I bought from your house. Please excuse the delay of this, for I have been busy since I came home; but I suppose it will not make any great difference with you. I hope this will give you good satisfaction. I think you are pretty well secure for the present.”

On this evidence, the court entered a judgment against the defendant, for the amount of the note and interest.

The court committed no error in sustaining the demurrer to the third plea. The plea amounted to the general issue only. And for that reason, it was obnoxious to a special demurrer.

Did the court err in finding the issues for the plaintiffs ? In order to determine this question, we must inquire as to the competency and credibility of the testimony introduced by the defendant. The plaintiffs made out a primé facie case, by the production of the note and guaranty. It clearly appeared, from the guaranty, that the defendant was liable for the goods in question. It showed that he assumed the liability, before the goods were purchased. The instrument was declared on according to its legal effect. The general principle is well settled, that parol testimony is not admissible to contradict or vary the terms of a written agreement. Where parties reduce then contract to writing, the law conclusively presumes, that the whole terms of their agreement are correctly expressed in the writing; and their conversations and declarations, made before and at the time of the execution of the written contract, are rejected as wholly inadmissible. So much of the testimony of the witness Abrams, as related to the arrangement between him and the plaintiffs, was received in clear violation of this principle. It materially changed the character and effect of the guaranty. It substituted another and different contract for the parties. The guaranty on its face clearly made the defendant responsible for the goods. As explained by this witness, it released him from all liability for them. The terms of the writing rendered him liable for the payment of goods purchased prior to its date. The testimony excluded such a construction of the contract. The writing embraced all sales made after its date. The evidence excluded all sales made before it was signed and delivered. The evidence disclosed an understanding between the parties, inconsistent with and variant from the contract as reduced to writing. To this extent, the testimony of the witness was incompetent, and ought to be disregarded.

It is very true, that the date of an instrument is but presumptive evidence, that it was executed on that day. The testimony of the witness as to the time when the guaranty was signed and delivered, was therefore admissible. But his testimony in this respect, did not exonerate the defendant from liability for the goods. Such an instrument may have a retrospective operation. It is very clear, that such was the intention of the parties in this case. For the guaranty in terms embraces as well purchases made before its execution, as those made afterwards. But if the instrument applied to subsequent purchases only, the case would not be altered. It did not appear, from the evidence, that it was antedated through fraud or mistake. Why was it dated on the 24th of January, unless for the purpose of including the goods sold on the following days ? A note payable in eight months, bearing date on the first of January, and signed by the maker on the first of May, with knowledge of its date, would fall due on the first of September following. If a party should execute a sheriff’s bond to-day, as of the commencement of his term of office, he would thereby become liable for all defaults arising after the date of the obligation. The moment this guaranty was executed, the assumption of the defendant related back to its date, and covered intermediate purchases.

This case forcibly illustrates the propriety of the rule, that written agreements are not to be explained or varied by parol. The guaranty is free from all ambiguity and uncertainty. It in terms embraces the transaction in question, whether occurring before or after the delivery of the instrument. The principal debtor, in transmitting it to his creditors, characterized it as a security for the goods already purchased. And yet he comes into court and swears, that such was not the understanding of himself and the plaintiffs, but, on the contrary, that it was designed to cover future purchases only. If evidence of this character was in any point of view admissible, the court was clearly justified in disregarding the testimony of this witness. The circumstances of the case tended strongly to discredit him. His statements are contradicted by the plain provisions of- the written agreement. In his business transactions with the plaintiffs he expressly treated the guaranty as meaning precisely what its language imports. Excluding his testimony as inadmissible, or disregarding it as discredited, the decision of the circuit judge was clearly correct. The guaranty was declared on according to its legal effect, and the legitimate evidence before the court supported the allegations of the declaration.

The judgment is affirmed.

Judgment affirmed,.


author: Per Curiam.

text:
    On the Petition of William W. Smith for a Habeas Corpus.
    It is the duty of the court, when called upon to decide as to who shall have the custody of infant orphans, to consult the best interests of the children.
    Smith filed his petition stating, that, by the Probate Court of Logan county, he had been appointed guardian of Mary Alexander, aged thirteen years, and her brother John, aged eight years. That said children were the heirs of one Augustus Alexander, deceased. That the mother of the children was also deceased. That he demanded the custody of Mary from Thomas Shoup, and that of John from John Handsby, who had the said children in their keeping.
    Shoup, in his return to the writ, stated, that the infant Mary was placed in his hands by her father about the time of his death, with the request that he should take charge of her, and find her a good place at which she might be raised and receive proper instruction. That he had found such a place, and was about to have the child removed to the family of one Dr. Fair, in pursuance of his promise to the father. That Smith was not a suitable person to have the custody of the child.
    Handsby answered, that the father of John, about the time of his death, gave the child to him, to be raised by him until the child should arrive at majority; and that Smith was not a suitable person, from his habits and demeanor, to have the care and custody of the child. Proofs were taken, which corroborated the facts set out in the answers to the writ of Shoup and Handsby.
    W. H. Herndon and W. J. Ferguson, for petitioner.
    Stuart & Edwards and L. P. Lacy, for respondents.
   Per Curiam.

Alexander died in December, 1851, leaving a daughter aged thirteen, and a son aged eight years. In his last sickness he requested Shoup to take charge of and educate the daughter; and he made a like request of Handsby respecting the son. In January, 1852, Smith was appointed guardian of the children, and claimed the right to control them, which was denied by Shoup" and Handsby. He then sued out a writ of habeas corpus from this court for the purpose of obtaining the custody of the children. The application is resisted by Shoup and Handsby. It appears, from the evidence, that the children prefer to remain with Shoup and Handsby, from whom they receive proper care and attention. The evidence also tends to show that Smith is not a suitable person to have the custody of the children. In this state of the case, the court will not interfere, but leave the children where their father placed them, and where they desire to remain. It is the duty of the court, on this application, to consult the best interests of the children; and that would not be done by putting them under the control of the petitioner. 2 Kent’s Comm. 194. See also Cowls v. Cowls, 3 Gilm. 435, and Miner v. Miner, 11 Ill. 43.

Under the circumstances of the case, the children are not improperly detained, "and the application of the guardian must be refused.

Application refused.