text:
    John Brown, appellant, v. Anthony Cannon, appellee.

      •Appeal from Warren.

    One party to a contract cannot complain of the other until he has put his adversary in default by a substantial performance on his part, and a failure or refusal to perform by the other.
    A purchaser who has bargained for a good title will not be compelled to take one which is subject to suspicion. It must be free from reasonable doubt,— such a title to which no reasonable man would object, — one which a prudent man would not hesitate to purchase at a full market price. It is not sufficient, that the title is probably good, but it must be one which the purchaser must feel a reasonable certainty that it is so.
    A decree directed certain personal property specified in a contract to be appraised by the sheriff: Held, that the value should have been found by the court, a Master in Chancery or special Commissioner through the medium of testimony, and not on inspection.
    Bill in Chancery for a specific performance, filed in the Warren Circuit Court by the appellee against the appellant, and heard before the Hon. Norman H. Purple.
    The bill stated, in substance, that on the 9th day of October, A. D. 1844, Cannon sold to Brown, by a written contract, a certain tract of land; that he agreed to make certain improvements on the premises in a good and workmanlike manner by the first day of the ensuing April, and, as soon as Brown should perform the conditions of the contract on his part, to execute to said Brown “a good, general warranty deed for the premises,” and to prevent waste in the mean time; that Brown agreed to pay $1100 on signing the agreement, and $400 on or before the said first day of April, in manner following, to wit: two horses at a fair market price, a two horse carriage with wooden springs and harness at a fair price, and the balance of $400 in cash; and further, that Brown would then execute three notes for $166-661 cents, payable in one, two and three years after date, making in all the sum of $2000.
    The bill further stated that the first payment was made according to the terms of the contract, but that Brown failed to make the other payments and to execute the notes; that Cannon performed his part of the contract, except making a small portion of the repairs, which he afterwards offered to make, but was prevented from making them by Brown; that Brown took possession of the farm about said first day of April and has since remained in possession; that Cannon tendered a deed and avowed his readiness to perform, but that Brown, on his part, refused to comply with the terms of the contract. The prayer of the bill was for a specific performance.
    Brown filed an answer under oath admitting the contract, but denying that Cannon had performed; averred performance on his part, and stated the following facts, to wit: that when the contract was made, he lived in Ohio; that in the spring he left that State to remove to Illinois, expecting to arrive here by the first of April, but, on account of unavoidable delays, did not arrive until the 3rd day of April; that on the tenth day of the month, he tendered the carriage and horses and the balance of the payment of $400 to Cannon, who refused to accept the same because the tender was not made at the time specified in the contract, although Cannon was in default in not making the repairs he had agreed to make.
    The answer denied that Cannon tendered a deed, but stated that he merely read a deed to Brown without offering to deliver it to him, er to exhibit his title or an abstract of it. It further stated that Cannon had not a clear title to the premises, but that certain individuals held an adverse outstanding title to the quarter section on which the farm is situated, and that such title was paramount to Cannon’s title. It further stated that Brown had always been ready to perform and was still so ready; that the property had been valued and was ready for delivery when Cannon should perform on his part; and that Cannon did not make the improvements stipulated in the contract.
    There was a replication to the answer.
    It was proved that Brown did not arrive at the county of Warren until about the 3rd of April; that he soon afterwards made a tender of the horses, carriage and harness to Cannon, and professed himself ready and willing to pay the balance of the payment of $400¿ that Cannon refused to receive the property, whereupon Brown caused the same to be appraised, and offered to deliver the same to Cannon at any time.
    It was further proved that Cannon, did not make all the repairs on the house and fencing which, by the contract he had agreed to make, and that such as were made were not made in the good and workmanlike manner contemplated by the contract. . It was also proved, that at the time of making the contract, Cannon assured Brown that his title was good, — as good as any in the State of Illinois. It was proved by Cannon’s son that he had heard his father say that there was an old tax title on the land, which one Porter, who was present at the time, said was -worthless. Porter, however, and other witnesses present swore that Cannon said nothing about a tax title on the land, and that nothing was said by any one present about such a title.
    There was some evidence in relation to a deed having been tendered, but that Cannon, on tendering the deed, required the performance of conditions on the part of Brown not contained in the contract. The record further showed that Cannon proved on the trial a title to the land derived from the Patentee, and that Brown, at the same time, proved an outstanding tax title for a quarter section of the land, the sale for taxes having been made in 1834, and the deed in 1836. It further appeared that Cannon bought his title in 1838, having previously in 1837 taken possession and continued the same until Brown entered.
    A decree, by consent of parties, was entered in November, 1847, after the adjournment of the regular term, requiring a specific performance, &c., the personal property to be appraised by the sheriff of Warren county.

      id. Williams C. B. Lawrence, for the appellant.
    An agreement to make a good and sufficient deed of warranty is to be construed as an agreement to make a deed that shall pass a good title. The agreement refers to the title to be conveyed, and not to the form of the deed. Chute v. Robinson, 2 Johns. 595; Judson v. Wass, 11 do. 526; Evertson v. Kirtland, 4 Paige, 688.
    Courts will not decree a specific performance in behalf of vendor, unless he can show a title free from doubt. Marlow v. Smith, 2 Peere Williams, 201; Stapylton v. Scott, 16 Vesey, 271; Jervaise v. Duke of Northumberland, Jacob & Walker, 547; Lowes v. Lusk, 14 Vesey, 549; Sheffield v. Lord Mulgrave, 2 do. 526; Roake v. Kidd, 5 do. 647; 2 Mad. Ch. 434; Seymour v. Delahay, 6 Johns, Ch. R. 222; Garnett v. Macon, 2 Brock. 207; 1 Sug. on Vendors, 425.
    Courts will not decree a specific performance in favor of a party who is himself in default, a specific performance being not (Cex débito justitisebut resting wholly in the discretion of the Court. The complainant in those cases must come into Court with clean hands. Seymour v. Delahay, 6 Johns. Ch. R. 222.
    The decree was erroneous in directing the sheriff to value the property.

      0. H. Browning 8,' N. Bushnell, and R. S. Blackwéll, for the appellee.
    1. The neglect of the complainants to make the repairs stipulated in his contract of sale, does not constitute such a substantial failure on his part as will justify a Court of Equity in decreeing a rescission of the contract, but is a proper case for compensation. 2 Story’s Eq. Jur. § 775.
    2. There is enough evidence to satisfy the Court that the complainant tendered a deed to the defendant.
    3. A specific performance will be decreed on the application of a vendor, notwithstanding a defect in his title, when the contract was made, if he is in a condition to make a good title by the time the decree is rendered. 2 Story’s Eq. Jur. § 777.
    The evidence shows that Cannon entered into the possession of the premises in 1837; that he acquired title in 1838, and continued in possession until Brown entered under the contract in 1845, and that Brown continued that possession down to the time the decree in this cause was rendered, which was in the fall of 1847. So that it appears Cannon and Brown hada continuous and uninterrupted possession of the premises in controversy7, under a connected chain of title deducible of record from the U. S. for the period of nine years. The outstanding title which is relied upon as casting a cloud upon our title, accrued in 1836. The right of entry of the adverse owner is, therefore, tolled by the Statute of Limitations, his remedy barred, and complainant’s title has ripened into a paramount one. Rev. Stat. 349, § 8.
    But it is insisted that that title may belong to an infant, feme covert, or some other person laboring under disability created by law, and whose rights are therefore saved by the Statute of Limitations. To this we answer, these disabilities are exceptions, and must be shown by those who rely upon them. There can be no presumption in such a case unfavorable to the title of the complainant. The burden of proof is upon the party setting up the outstanding title. We show a prima facie title; the defendant sets up an outstanding adverse title; to this we reply, seven years’ continuous possession; if, then, they insist that the adverse title belongs to some person laboring under the disability of infancy, coverture, &c., they must prove it, or they have not cast a cloud upon our title.
    There is also some evidence in this case, that defendant knew of. this adverse title when he purchased; if so, he cannot resist a specific execution upon this ground. 2 Story’s. Eq. Jur. § 778.
   The Opinion of the Court was delivered by

Caton, J.

In this case both parties were equally in fault, and neither should be allowed to complain, that the other had not technically, and punctually fulfilled. The complainant did not have the improvements completed as he had agreed, by the first of June. This default was not of such importance, that the Court might not disregard it, or make a compensation in damages. So also, was Brown in default, by not being ready by the same day, to make the four hundred dollar payment, which was to be paid partly with two horses, a carriage and harness, and the balance in cash. Some slight excuse is offered by the complainant for not completing the ceiling of the house, such as that the lumber was not yet sufficiently seasoned; and the defendant offers a very satisfactory reason' why he was not there by the first of April. It was known that he resided in Ohio, when the contract was made, whence he was to come, and take possession in the ensuing spring. Oh account of high water, he was delayed till the third of April, and very soon after he took possession of the farm, and offered to deliver the horses and carriage at a value to be ascertained by third persons, if the parties could not agree, and to pay the balance of the four hundred dollars in money. The complainant refused to receive the property, but insisted that the whole of that instalment should be paid in money; or at any rate, all except one horse, which he sometimes said he was willing to fake. For this he sometimes assigned as a reason, that the property was not delivered on the very day, and sometimes, that the mare was not of the precise description'represented when the contract was made, Upon two occasions. Cannon attempted, or pretended to tender a deed to Brown, but it is manifest that he did not intend to let Brown have the deed unless the four hundred dollars were paid in money. Although the testimony is somewhat contradictory, as to these transactions, we are satisfied from a careful examination of all the evidence, that Cannon was desirous of being able to say here, that he had tendered a deed, rather than that Brown should accept it, and make the payment according to the original contract. Throughout, Cannon has manifested a determination to take advantage of Brown’s accidental’ delay of a few days, forgetting that he was as much in default, by not having the repairs completed by the time agreed upon. In neither case was the delay hardly of sufficient importance, or injury, to require a Court to notice it. Besides, by transferring the possession of the farm on the fifteenth of June, and thus proceeding with the contract, after both parties had been guilty of failing to perform strictly, they mutually waived the right to complain of such non-performance. And independently of that waiving of these mutual failures, one is a fair set-off against the other. Neither party then could complain of the other till he had put his adversary in default by a substantial performance on his part, and a failure or refusal to perform by the other. The complainant should have presented the deed and offered to deliver it, subject only to the condition that Brown should deliver the property as agreed upon, and pay the balance of the four hundred dollars in money. Without this, there is no sufficient consideration to compel Brown to act. Doyle v. Teas, 4 Scam.

This the complainant has never done. The evidence shows that Brown advanced about as far towards performance as Cannon did. He frequently offered to deliver the property and pay the balance inmoney,buthe never formally tendered either, and it is manifest from the evidence that he was pretty strongly induced to have his own price for the property, which he had agreed to deliver. On the whole, we are well satisfied that neither party has as yet performed his part according to the spirit and substance of the agreement, but each has manifested a desire to get some technical advantage of the other, so that he might realize little better results than he was in good faith entitled to. When the Court sees such a disposition manifested, its suspicions are at once awakened, and it will look with no extraordinary degree of favor upon the claims of parties, based upon acts, which were never designed in good faith to carry out a contract, but rather to secure a technical advantage.

But there is another objection of much graver importance. Brown .insists that there is such a doubt hanging over the complainant’s title, that he ought not to be compelled to take it. It is admitted on both sides that the title shown by the record stands thus : The complainant shows a regular chain of title from the United States to himself. Against this stands a tax deed for the principal part of the premises, issued in 1836, the sufficiency of which was not questioned on the argument. In answer to this, the complainant shows that he has been in possession since 1838 claiming title under his deed, and adverse to the tax title. This would be sufficient to maintain ejectment against any one defending under the tax title, except as to persons against whom our seven years’ limitation law did not run, and would constitute an absolute title, but for the claims of infants, feme coverts, and others disabled to assert their claims, whose rights are excepted from the operation of that statute. It does not appear whether or not there are any such persons, holding the tax title, and the question now is, whether the chance of there being such persons, is sufficient to create such a doubt, of the sufficiency of the complainant’s title, which now rests entirely on his adverse possession as to justify the complainant in refusing to complete the purchase. A reference to a few of the many authorities on this subject will suffice to show what the law is.

In 1 Sug. on Vend, bottom page 339, it is said: “To enable Equity to enforce specific performance against a purchaser, the title to the estate,, ought, like Caesar’s wife, to be free even from suspicion; for it would be an extraordinary proceeding for a Court of Equity to compel a purchaser to take an estate which it cannot warrant to him.” And in Stapylton v. Scott, 16 Ves. 272, although Lord Eldon was of opinion that the title was good, yet inasmuch as some doubt was implied by a provision of the will of the ancestor, of the title to a part of the estate, he refused a specific performance, notwithstanding the Master reported a perfect title. In Lowes v. Lusk, 14 Vesey, 547, a specific performance was denied, because the vendor had committed an act of bankruptcy, although he swore on an examination before the Master, that there were no debts on which a commission could issue, and there was no evidence tending to show that there were such debts, by which alone the title could have been endangered. Drew v. Clark, 9 Vesey, 368. The complainant was entitled to a term of four thousand years, and a forfeited mortgage on the reversion in fee, yet the bare possibility of a redemption of such a dry remainder, induced the Court to refuse a performance. In Sheffield v. Mulgrave, 2 Vesey, 526, the chancellor refused to compel a party to receive a title, although it had been found to be good by a Court of Law, because he suspected that there might be some latent Equity existing against it. The Chancellor in the case of Roak v. Kidd, 5 Vesey, 647, refused to direct a trial at law to ascertain if the title was good, when the defendant objected and the Court entertained doubts of the sufficiency of the title, but dismissed the bill. On this subject also, Chief Justice Marshall, in the case of Garrett v. Macon, 2 Brock. 244, says : “Both on principle and authority, I think it very clear that a specific performance will not be decreed on the application of the vendor, unless his ability to make such a title as he has agreed to make be unquestionable.” These references might be extended, but we deem it unnecessary.

The rule of law, then, undoubtedly is, that a purchaser who bargained for a good title, shall not be compelled to take one which is subject to suspicion. This does not mean that the title shall be good beyond a possible peradventure, for then he might never be satisfied, but then it must free from reasonable doubt. It must be such a title to which no reasonable man would object; such an one as a prudent man would' not'hesitate to invest his own money upon, at a full market price; such an one as will bring, in the market as high a price with, as without the objection. When we force a title upon a party, we must feel an assurance that it cannot be taken from him. It is not sufficient that the title is probably good, but we must feel a.reasonable certainty that it is so.

Is the complainant’s title thus clear, is the important question. Of all, known titles to land beyond a mere naked possession, which are prima facie good, there is perhaps none, recognized by law, more doubtful and uncertain, than those depending for their validity upon an adverse possession ' under a Statute of Limitations; and especially are such titles unsatisfactory, when they depend upon a limitation law of recent date, prescribing a short time, and which does not run against those who may not immediately assert their rights.

The cases already referred to, show that it is not sufficient, in all cases, to show a title prima facie good, as was contended for by the counsel for the complainant. It is for him to make out a title free from reasonable suspicion or doubt, and not for the defendant to show that his suspicions are certainly well founded, and that the title offered him must fail. It is sufficient for him to point out a way in which it reasonably may fail. It is not for him to hunt up those persons who may come in and destroy the title, but the complainant should show with reasonable certainty, at least', that there are none such; that the tax title was in one against whom the statute under which his possession becomes available, did run. We will not say that lapse of time would in no case satisfy us, for although it is possible that the title might pass from infant to infant, for an indefinite length of time, so that the statute would never commence its operation, yet after a time, that would become so very improbable as not to excite the apprehension of a reasonable mind. . In the case of Seymore v. DeLancey, Hopkins’ R., Chancellor Sanford says: “But if the possession of William Seymore had been clearly adverse for twenty five, years, his title would not, I think, be sufficiently impeached, either by the slight proof that Henry E. Lutterloh may have been an alien, or, if he was a citizen, by the mere contingency, that his title may have resided since his death, in persons disabled to assert their rights.” Lutterloh had at that time been dead about thirty nine years. Such a length of time may have been sufficient to allay all reasonable apprehensions in the opinion of the Chancellor. While this case may show, so far as a mere dictum can do so, that a title depending upon adverse possession, under limitation laws, may become satisfactory, it by no means asserts that the Court will in all cases compel a party to receive such a title. The cloud which may hang over a title, may be of every imaginable shade of obscurity from that which admits of neither light nor hope, to that which is scarcely perceptible.

While we may not require the title to be free from every speculative doubt, it ought not to be subject to a reasonable one — such as would excite a just apprehension. If such doubt exist, the complainant must clear it away, till his title would bring as much in market as if no question were made in relation to it. Has this been done with the title before us? We think not. We cannot say that it certainly is a good title. In the language of one of the authorities, we cannot warrant it to the purchaser. What reasonable man, owning this title, would not prefer to have this doubt removed — this cloud dissipated ? Who would not give a valuable consideration to obtain a complete release of all such outstanding claims as might exist? Who would not pay his money more freely, and make his improvements with a greater feeling of security, if this uncertainty were not resting upon his title, for there surely is an uncertainty about it? No prudent individual would be willing to assure this title for nothing, and we ought not to compel the defendant to take it for a clear title, and pay a full price without such assurance. After being compelled to do so, he would still be glad to pay something more, to be made certain that'none could contest his rights.

Our revenue laws, under which tax titles are obtained, secure to persons not able to assert, their claims, a right to redemption for two years after their disabilities cease, and we all know that a tax title, otherwise unquestionable, will not bring any thing like a full price, when the condition of the person holding the former title is not known. When there may be such right of redemption, it is believed that a guaranty is always required, and never refused, against such a contingency, when a full price is paid. The man who would ask or give as high a price for a title thus obscured and doubtful, as for one about which no question could be raised, would be considered extravagant or reckless, if not worse. The cases are parallel. This title may • be good. We cannot say that it is not, nor can we say that it is, which we ought to be able to do, before we force it upon the party.

For two reasons, then, should the bill have been dismissed. When it was filed, the complainant was as much in default as was the defendant. Neither party had strictly performed, nor yet had either party abandoned the contract. The defendant still retained possession of the farm, with the consent of the complainant. Again, the complainant has not shown such a title as Brown should be compelled to accept and pay for. Whether the objections to this title can be cleared up, we do not know, as each party seems to hat'e proceeded on the assumption that the burthen of proof was on the other.

There is another objection to the decree which we feel called upon to notice. Assuming that the Court was right in decreeing a specific performance by both parties, it was improper for the decree to direct the sheriff to appraise and value the horses, carriage and harness. The value of these articles might have been found by the Court, if it were satisfied from the evidence before it, or it should have been referred to a Master or Special Commissioner — who, to be sure, might have been the sheriff — to have determined the same upon proof and made a report thereof. Whether the value of the property was found by the Court directly, or through the medium of a proper officer, it should in either case have been done through the medium of testimony, and not by the judgment of the Court or officer on inspection. In that way alone could the right of either party be secured to have the question or judgment reviewed. This is not one of those cases where the Court may appoint Commissioners to act on view. Here the decision of the sheriff was made final, concluding the parties, and to be acted upon immediately. Whether the officer to whom a reference is made hears testimony, or decides upon his own observation and judgment, in either case, his determination should be reported to, and approved by the Court, before it becomes final.

The decree of the Circuit Court must be reversed with costs, and the bill dismissed, but without prejudice.

Decree reversed.


source: Caselaw Access Project

author: Treat, C. J.

license: Public Domain

text:
    Charles Pittman, appellant, v. Samuel Gaty et al., appellees.

      Appeal from St. Clair.

    »n an action of ejectment, the plaintiff claimed under a sheriff’s deed formed on a judgment in attachment. The debtor, some days prior to the levy, conveyed the land to a third person, the defendant in ejectment, who held the deed unrecorded. At the time of the levy, another person was in possession : Held, that if the latter was the tenant of the defendant, the possession was constructive notice to the attaching creditor of the defendant’s unregistered deed.
    When evidence, which is irrelevant, gets into a case in the shape of depositions or otherwise, it is the duty of the Court, when required, at any stage of the trial, to exclude it, or direct the jury to disregard it.
    When it is stated in a bill of exceptions that an instruction was refused because inapplicable, the Supreme Court will not further inquire into the propriety of the decision, unless the evidence is reported to which the instruction is claimed to apply.
    Ejectment, in the St. Clair Circuit Court, brought by the appellees against the appellant, and heard before the Hon. Gustavus P. ICoerner and a jury, at the April term, 1848, when a verdict and judgment were rendered for the plaintiffs below.
    The facts so far as they are material to the determination of the case, are adverted to by the Court in the Opinion.

      J. L. D. Morrison, and R. S. Blackwell, for the appellant.
    The possession of Mallows was the possession of Pittman. A purchaser at the sheriff’s sale is chargeable with constructive notice of the title of a third person in the actual possession of the land, claiming under a prior unrecorded deed from the debtor, and he is bound to inquire into the extent of the occupant’s interest. Parks v. Jackson, 11 Wend. 442, 466; Tuttle v. Same, 6 do. 213; Hadduck v. Wilmarth, 5 New Hamp. 181; Priest v. Rice, 1 Pick. 164. The ease of Jackson v. Post, 9 Cowen, 120, goes further and decides, that where a judgment debtor had conveyed the land to a third person, who neglected to record his deed before the judgment lien attached, the vendee would hold as against the purchaser at the sheriff’s sale, though the latter had no notice, actual or constructive.
    Hearsay evidence is clearly inadmissible. 1 Greenl. Ev„ §§ 98, 99.

      D. J. Baker, for the appellees.
    The lien of the judgment attached and related to the date of the levy of the writ of attachment, or to the time of filing in the recorder’s office, the sheriff’s certificate of the levy. Martin v. Dryden, 1 Gilm. 188.
    If Meacham had, before the issuing of the attachment, conveyed by deed, though unrecorded or fraudulent, the lands levied on, to Pittman, he had no title in himself, after the execution of the deed ; but the deed, being unrecorded, was not operative as against Meacham’s creditors till they were notified of its existence. Rev. Stat. 108, § 23.
    Some kinds of hearsay may be, in regard to some matters, proper evidence. As to what is hearsay, see 1 Greenl. Ev. §§ 101, 108.
    The appellant’s counsel say: “The possession of Mallows was the possession of Pittman.” An unaccountable assumption, indeed — a begging of the question. This was one of the principal, if not the principal, questions to be decided in the case. This is shown clearly by the character of the majority of the instructions given at the instance of each party. It was a main issue before the Court which tried the case, and, by their verdict, they have said that Mallows was not the tenant of Pittman, at the time of the filing of the certificate of the levy of the attachment, but was the tenant of Meacham, and paid rent to him, the unrecorded deed to the contrary, notwithstanding. This assumption, then, being wholly unauthorized, the argument of the counsel, based on it, necessarily falls to the ground, having no application to the present case on the part of appellant.
    The counsel, arguing from this assumption, say : “A purchaser at a sheriff’s sale is chargeable with constructive notice of the title of a third person in the actual possession of the land, claiming under a prior unrecorded deed from the debtor, and he is bound to inquire into the extent of the occupant’s interest,” and refers to several authorities to prove this position. This doctrine is unquestionably true. The plaintiffs in this case have no occasion to question its correctness. But, it applies to the foregoing untrue assumption and is based on it, and has no bearing, at least, unfavorable, to the appellees’ case, on the questions involved therein; because Meacham’s, and not Pitman’s tenant was in actual possession of the land in controversy, long after this unrecorded deed was made to Pittman and, at the time of, and long after the levy of the writ of attachment.
    The Court will observe, the testimony adduced on the trial is not attempted to be given. Nothing is presented in this Court, only the rulings and decisions of the Court below, on the several questions of law arising during the progress and trial of the cause in that Court.
    The case by the appellant’s counsel referred to in 9 Cowen, of Jackson v. Post, was made by the N. Y. Court, under the recording Act of that State, which declares the unrecorded deed to be void only as against a bona fide purchaser or mortgagee, for a valuable consideration, who had recorded his conveyance. It has direct reference to the provisions of that Act, and does not hold good or apply to a case arising under the statute of this State, which is different from that in its provisions and more extensive in its application.- Our Act declares, “that conveyances shall take effect from and after the recording, or rather filing for record, and not before, as to all creditors and subsequent purchasers, without notice,” and are void as to all such creditors and purchasers without notice. Rev. Stat., 108, § 23.
    None of the evidence in this case, or very little, which was given on the trial is presented to this Court. Only questions of law arising in the case were intended to be presented.
   The Opinion "of the Court was delivered by

Treat, C. J.

This was an action of ejectment commenced by Gaty and others against Pittman. The plaintiffs claimed title to the premises by virtue of a plaintiff’s deed founded on a judgment in attachment against Meacham. The writ of attachment was levied on the 31st of December, 1841. The defendant claimed title by virtue of an unrecorded deed from Meacham, executed on the 22d of December, 1841. At the time of the levy of the attachment, one Mallows was in possession of the premises. The principal question on the trial was whether Mallows was the tenant of the defendant. If such tenant, his possession was constructive notice to the attaching creditors of the defendant’s unregistered deed. This state of case appears from the bill of exceptions, although it does not purport to contain all the evidence.

The Court refused an instruction asked by the defendant in these words : “That hearsay is not competent evidence upon which to found a verdict, and if the jury believe, that any portion of the deposition of-Johnson is mere hearsay of third persons disconnected with the suit, they will disregard such portions of said depositions.”

The deposition referred to in the instruction is not incorporated into the bill of exceptions, but enough of the case is reported to show clearly that no question arose on the trial, which would have justified the introduction of mere hearsay evidence. Ás a general rule, such evidence is wholly inadmissible. The exceptions to the rule are few and confined chiefly to questions of pedigree. When evidence which is irrelevant, or incompetent in any event to establish a fact, gets into a case in the shape of depositions or otherwise, it is the duty of the Court when required, at any stage of the trial, to exclude it, or direct the jury to disregard it. There is a clear distinction between this sort of proof and secondary evidence. The former is never admissible ; the latter always is, when the primary proof cannot be produced, and if admitted without objection, it becomes a part of the case, and cannot afterwards be excluded, because, though not the best evidence, it is still relevant, and tends to elucidate the question in issue. The party, by permitting it to be introduced, dispenses with the production of the superior evidence.

It is insisted that the instruction was inapplicable to the facts of the case, and therefore properly refused. If withheld on that ground, the bill of exceptions should so state; or the deposition should be sent up to enable this Court to determine whether the instruction was pertinent or not. Where the Judge states in the bill of exceptions that an instruction is refused because inapplicable, this Court will no.t further inquire into the propriety of the decision, unless the evidence is reported to which the instruction is claimed to apply. But where, as in this case, an instruction asserts a correct legal principle, and points directly to evidence in the case, unless it affirmatively appears from the bill of exceptions, that it was considered inapplicable, it is but fair to conclude that it was refused because the Court believed it to be erroneous.

It is further insisted, that the question whether the deposition contained improper evidence should have been referred directly to the Court for its decision. It is true, that might have been done; but we can see no objection to a direction to the jury to disregard the statements of the witness, if they found that he had testified from information derived from third persons, and not of facts within his own knowledge. In many cases, there is a manifest propriety in this practice. Whether the evidence is lawful or not, may often depend on the proper conclusion to be drawn from a complicated state of facts, which the jury are, at least, as competent to arrive at as the Court. In this case, the evidence in connection with the deposition may have left it doubtful whether the witness spoke of matters on his own knowledge, or on information received from others; and that question should have been referred to the jury, to be determined as every other question of fact, under the instructions of the Court.

The judgment of the Circuit Court is reversed with costs, and the cause is remanded for further proceedings.

Judgment reversed.


author: Caton, J.

text:
    Larnard Kidder, appellant, v. Trustees of Schools, &c. appellees.

      Appeal from Warren.

    A School Commissioner, who is authorized to sell school lands upon a credit under the provisions of the Act o‘f January 12, 1833, may contract with the purchaser for the payment of interest.
    A School Commissioner is a ministerial officer, and acts under a power delegated by the Legislature. The inhabitants of his township may determine whether the school lands shall be sold on a credit, but the terms of that credit are left to the discretion of the Commissioner.
    Tae term “creiitp must receive an extended or a limited construction, depending upon the character of the instrument in which it is used. In a contract, its meaning would be limited so as not to include interest unless it were expressed.
    This case was submitted to the Circuit Court of Warren county at the May term, 1848, the Hon. Norman II. Purple presiding, for a decision upon the following statement of facts:
    “On the 15th January, 1838, Larnard Kidder executed to the School Commissioner three notes under seal of the same tenor and date, and for like amounts, two hundred and seventy dollars and thirteen and a third cents each, payable one, two and three years after date — the first of said notes being in the words .and figures following, to wit: ee$270-13a
    For value received, one year after date, we or either of us promise to pay W. S. Berry, School Commissioner and agent for the inhabitants of Warren county, or his successor in office, for the use of the inhabitants of township No. eight north, of range 2 West, the sum of two hundred and seventy dollars and 134 cents, with 12 per’cent. int. thereon, from date until paid — said interest payable.semi-annually in advance. Witness our hands and seals this fifteenth day of January, A. D, 1838,
    Larnard Kidder. [seal.]
    James Tucker. [seal.]
    John M. Hoisington. [seal,]”

      These notes were given for school land bought by Kidder at a public sale of said land made by the School Commissioner. The land for which the notes were given was sold on a credit of one, two and three years, in accordance with the petition of the inhabitants of the township for its sale. The petition prayed that the land might be sold “on a credit of one, two and three years at twelve per. cent interest from the date of the sale, to be paid semi-annually.” When said land was advertised for sale, it was stated in the advertisement that the sale would be “on a credit of one, two and three years, the purchaser giving a mortgage on the lots purchased, and notes with approved security for the purchase money with 12 per. cent, interest, payable semiannually in advance.”
    On the 15th January, 1838, the land was sold in conformity with the petition and advertisement aforesaid, and said Kidder became the purchaser of eighty acres thereof, and, on the same day, gave the. notes.aforesaid with security for the purchase money. . On the day said notes were made, said Kidder paid thereon as advance interest, forty eight dollars and sixty cents, and subsequently made the following payments : (here followed a list of the same.)
    Upon the above facts, the Court is asked to pronounce judgment in favor of the Trustees ofSchools of township eight north, range two west, against said Kidder and his securities, for so much as remains due and.unpaid on said notes.

      O. H. Browning, for Trustees, &c.
    «X?. Williams, Att’y for Kidder. ”
    Upon this statement, after argument by the counsel, the Court rendered a judgment in favor of the Trustees, and against the defendants, for fi534‘97, and costs. From this judgment, Kidder appealed to this Court.

      C. B. Lawrence, for the appellant,
    cited and commented upon the Act of the Legislature on the subject of sales on a credit. R. L. 566. He contended that the sale in this case was in contravention of law, twelve per cent, interest being reserved., “ Credit, ” he insisted, meant a time for payment, without interest.
    If an agent exceed his authority, the contract is good so far as the authority goes, but not so as to the excess. Hatch v. Mann, 15 Wend. 44; Vose v. Dean, 7 Mass. 280; Stevenson v. Mortimer, 2 Cowper, 805; 7 Comyn’s Dig., 15.

      O. H. Broioning, for the appellees,
    argued that credit sales did not necessarily exclude the idea of interest. He cited and commented upon the following authorities : Session Laws of 1829, p. 152-3, §§ 5, 10; Session Laws of 1831, p. 75, § 2; R. L. 565, § 9; ib. 348, 566.
    If it become necessary to uphold a contract, the interest may be considered as a part of the purchase money. Beete v. Bidgood, 14 Eng. Com. Law R. 82; Marshall v. Poole, 13 East, 98.

      Jl. Williams concluded the argument in behalf of the appellant.
    Where a special authority is given to magistrates and others by statute, their acts are null and void, unless they proceed in the manner and under the restrictions which it imposes. 2 Starkie’s Ev. 660; 3 U. S.'Dig. 73, §§51, 108, 122; Dillingham v. Snow, 5 Mass. 557; Bangs v. Snow, 1 do. 190; Stetson v. Kempton, 13 do. 281.
    There is no position, which depends on clearer principles, than that every act of a delegated authority contrary to the commission under which it is exercised, is void. Merrill v. Sherburne, 1 New Hamp. 216.
   The Opinion of the Court was delivered by

Caton, J.

There is but a single question presented in this case, depending entirely upon the construction to be given to the Act of 12th of January, 1833, authorizing a credit on sales of school lands. That Act provides, “that whenever the inhabitants of a township, petitioning for the sale of the sixteenth section, shall be of opinion that their interests would be promoted by selling said section on a credit, they may represent the same in their petition ; whereupon it shall be the duty of the Commissioner to sell said lands on a credit of one, two, and three years, the purchaser giving a mortgage on the land, and good personal security, for the payment of the purchase money, to be approved by the County Commissioners’ Courts respectively.” Can the Commissioners sell upon the credits specified, and agree with the purchaser for the payment of interest? This is the only question. We are clearly of opinion that he may. The School Commissioner is a ministerial officer or agent appointed by the law to do certain things, and among others, to sell the school lands. In doing this, he exercises a power delegated to him by the Legislature. In that delegation of power he might have been invested with greater or less discretion according to the pleasure of the Legislature. The law has specified 'the extent of the credit, and the character of the security. This might have been left to the discretion of the Commissioner, had it been thought advisable. Upon the inhabitants of the township is conferred the discretion of determining whether the land shall be sold on a credit, the extent of which is fixed by the law, while the terms of the credit are left to the discretion of the Commissioner. The sale was not the less upon a credit because interest was agreed to be paid upon the purchase money. A credit may be given either with or without interest, as its terms may be various. The term “credit” must receive an extended or limited construction depending upon the character of the instrument in which itis used. In a contract, its meaning would be limited so as not to include interest unless it were expressed, as, if one sells a farm for so much money, on a credit of one, two and three years. There the instalments would not bear interest. But if one empowers another to sell his farm upon a credit of one, two and three years, without specifying whether the credit shall be with or without interest, he thereby gives a discretion to his attorney, to agree upon the terms of the credit as he shall think proper. If under such a power, the agent should stipulate for interest, it would hardly be contended by any, that for that reason the principa1 might repudiate the contract, upon the ground that the agent had exceeded his authority, or that the purchaser could resist the payment of interest, because the agent was not authorized to contract for it. If the sale would be binding upon either, it would be upon both. This latter case is precisely parallel with the one before us. Here the Legislature has conferred a power upon the Commissioner to sell land, and has necessarily vested him with the ordinary discretion of an agent as to the mode and terms of executing the power, within the Specified limits and restrictions contained in the Act. Suppose the Legislature were to authorize an agent to loan public money upon a given credit, saying nothing about interest, would it be consistent that the agent could not lawfully contract for interest? And yet it might with equal propriety be said, that he was vested with no such discretion. We do not perceive the applicability of the cases referred to, showing that a public officer, whose compensation is fixed by law for the performance of certain official acts, cannot be-, come entitled, by agreement, to a greater compensation- for] the performance of those acts. Here the officer or agent receives no greater compensation when he contracts for interest, than when he does not. It is not for his benefit that the interest is promised, but for the inhabitants of the township. Being of opinion that this sale was made in pursuance of the authority conferred by the statute and therefore valid and binding as well upon the purchaser as the State, the judgment must be affirmed with costs.

-Judgment affirmed.


text:
    Paris Mason, for the use of Sarah Mason, Guardian, &c. appellant, v. John R. Caldwell, appellee.

      Appeal from Jersey.

    A bond for the conveyance of real estate contained the following clause : “But should the said John R. Caldwell, or his assignee, fail to pay the said sum of money specified in said notes, within ten days after the same become due, he hereby forfeits all claim to said lots, and all moneys paid thereon, and this bond, in such event, shall be void, both in law and equity, and the title to said lots shall continue in the original proprietor as if no sale had been made:” Held, that it was the undoubted intention of both parties, when they inserted the clause, to provide a penalty to insure a prompt performance by the purchaser.
    If a person professing to act on behalf of another, but without authority, enters into a contract, which, for the want of such authority, would render the professed agent personally liable, such contract may he adopted by the principal while it is still in force as between the professed agent and the other party.
    flf an administrator or guardian, in his representative capacity, make a contract or covenant which he has no right to make, and which is not binding upon, the estate or ward, he is personally hound to make it good.
    A bond for the conveyance of real estate contained the following clause : “Tien the said Sarah Mason, guardian as aforesaid, by the said Paris, her attorney as aforesaid, covenants for herself and her successor, to make and execute a good and sufficient deed, with warranty,” &c. After the ward became of lawful age, and had married, she, with her husband and former guardian, executed a deed of warranty to the obligee, who refused to make his payments and to receive the deed: Held, that although the bond was void so far as the ward was concerned, it was binding on those who made it; by ^making and tendering the deed, the bond was adopted by the ward after becoming of lawful age and thereby discharged the guardian and her attorney; and that the obligee, by neglecting to repudiate and deliver up the bond, and demand his notes, prior to such adoption, lost his claim to indemnity against the agent: Held, further, that the terms of the bond were complied with by the making and tender of the deed.
    Assumpsit, in the Jersey Circuit Court, brought by the appellant against the appellee, and heard before the Hon. Samuel D. Lockwood, at the September term, 1844.
    In September, 1843, the defendant, by his attorneys, filed six pleas, of which the following is the substance :
    1. The defendant pleaded that the only consideration of the notes was a sale of certain town lots in Grafton, as specified in a certain title bond, and the delivery of said bond, to the defendant, by the said plaintiff, which bond is as follows :
    “Know all men by these presents, that I, Sarah Mason, guardian of Maria Mason, infant heir of James Mason, deceased, by Paris Mason, my attorney, by deed bearing date the 12th day of May, 1835, am held and firmly bound unto John R. Caldwell of the county of Greene, and State of Illinois, in the penal sum of eight hundred and fifty four dollars —the payment of which, well and truly to be made, I bind myself and my successor, as such guardian, firmly by these presents.
    The condition of the above bond is such, that whereas the said John R. Caldwell has this day purchased at public sale, lots No’s. 9 and 11, in block 37, (thirty seven) in the town of Grafton, county of Greene, and State of Illinois, for the sum of four hundred and twenty seven dollars — and the said John R. Caldwell having executed his notes for the sum of three hundred and eighty four 30-100 dollars, bearing even date herewith, and payable to Paris Mason, for the use of Sarah Mason, guardian of said infant heir, one and two years from the date thereof: Now, therefore, if the said John R. Caldwell shall pay, or cause to be paid, said sum of money specified in said notes according to the tenor and effect thereof — then the said Sarah Mason, guardian as aforesaid, by the said Paris, her attorney as aforesaid, covenants, for herself and her successor, to make and execute a good and sufficient deed, with warranty of the above described lots of land, to the said John R. Caldwell, in pursuance of and according to the provisions of an Act passed by the Legislature of the State of Illinois, entitled, ‘An Act for the benefit of the infant heir of James Mason, deceased,’ approved January 20,1835, and January 16,1836. But should the said John R. Caldwell or his assignee, fail to pay said sum of money specified in said notes, within ten days after the same become due, he hereby forfeits all claim .to said lots, and all moneys paid thereon; and this bond, in such event, shall be void, both in law and equity, and the title to said lots shall continue in the original proprietor as if no sale had been made. In testimony whereof,-1 have hereunto set my hand and seal, by Paris Mason, my attorney,, this 27 th day of May, 1836.
    Sarah Mason, [l. s.]
    by Paris Mason, her attorney'.
    The defendant then averred that said Acts of the Legislature had not been complied with, inasmuch as the said said guardian did not execute bonds and obtain the sanction of the Judge of Probate in regard to said sale — that she had no power to convey — that she had no title; and that the consideration of said notes had failed, &c.
    2. The defendant pleaded that the consideration of the notes was the same as before and none other; that defendant failed to pay the notes and interest, according to the stipulation in the bond, whereby he forfeited all claim to the said lots, and said bond became void, and title re-vested in the original proprietor, and that said Sarah Mason, or Paris Mason, had no title or authority in law to sell the same ; so that the consideration had wholly failed.
    3. The defendant pleaded that the consideration of the notes was the same as before and none other; that Paris Mason acted as pretended attorney for Sarah Mason, guardian of Martha Maria Mason, an infant under the age of twenty one years ; that said sale by the said Paris was without authority of law and void, and not binding upon the rights and responsibilities of the said Martha Maria; that Paris Mason had no title; so that the consideration of said notes had wholly failed.
    4. The defendant pleaded that the consideration of said notes was the same as before and none other; that said Acts of the Legislature had not been complied with, inasmuch as the Judge of Probate of Madison county had never made any order, divesting the said Martha Maria Mason of her title of, in, and to, the said lots of land; that said Sarah Mason and Paris Mason had no title; so that the consideration, &e. had wholly failed.
    5. The defendant pleaded that the consideration of said notes was the same as before ; that said sale was made by Paris Mason, agent, &e.; that, at the time of said sale, said Paris agreed with the said defendant that if defendant bought said lots, and would execute his note for the same, and pay ten per cent, of the purchase money down, that defendant should have the option of declining to pay for said lots, and the said sale become void by the failure of defendant to pay said notes and interest, &c.; that defendant, relying upon said agreement, agreed to purchase, &c. and did pay down the ten per cent, and did execute bis notes, &e.; that, being desirous of surrendering his interest, &c. he wholly failed to pay said notes, whereby he forfeited all claim to said lots and the title, and the same continued in the said Martha Maria ; that he never had possession of said lots; that the said Paris Mason and Sarah Mason had no title ; so that the consideration wholly failed.
    6. The defendant pleaded that the consideration of said notes was the same as before; that Paris Mason, making said sale, pretended to be attorney in factforthe said Sarah Mason, by deed for that purpose; that there was no such power of attorney, so that the sale was entirely void, and not binding upon said Sarah Mason or upon Martha Maria; that the said Paris Mason had no title ; so the consideration of said notes had wholly failed.
    1. To the first of said pleas, the plaintiff replied, that, soon after the execution of said notes and bond, the said Martha Maria Mason become of full and lawful age, and intermarried with one William H. Allen; and that, after the maturity of said notes, and after the said marriage, but before the commencement of this suit, and before any demand for a deed, or tender of the money expressed in the said notes, or offer to pay the same, or any part thereof, viz : on the 10th day of May, 1842, the said Wm. H. Allen, and Martha Maria, his wife, and the said Sarah Mason, executed a good and sufficient warranty deed to the said defendant for the said lots, and caused the same to be duly tendered to the said defendant, viz : on the said 10th May, at, &c.; that they always were and still are ready and willing to make and deliver such deed, upon payment being made, Src. But that the defendant then and there and at all times, refused to pay said notes and receive said deed, whereby there would have been. conveyed to him an indefeasible estate in said lots, in fee simple absolute. All which, &c. Wherefore, &c.
    2. To the second plea, plaintiff filed a general demurrer.
    3. To the third plea, the plaintiff replied that said sale was made by the said Paris Mason, as agent of the said Sarah Mason, under a power of attorney supposed to be ample and sufficient to authorize the plaintiff to act in that behalf; and that subsequent to said sale, and before the maturity of said notes, the said Sarah fully adopted and confirmed all the acts of her said agent; that she had been at all times ready, and still was ready and willing to fulfil all the stipulations of said bond, so far as the same depended on her, upon the defendant paying the said notes according to their terms, &c. Wherefore &c.
    4. To the fourth plea, the plaintiff filed a general demurrer.
    5. To the fifth plea, the plaintiff also filed a general demurrer.
    6. To the sixth plea, the plaintiff replied in the language of the replication to the third plea.
    The defendant joined in the demurrer to the second, fourth and fifth pleas, and demurred to the replications to the first, third and sixth pleas, and the plaintiff joined in the defendant’s demurrer.
    At a subsequent term, the defendant, on leave, filed a plea of non assumpsit to the common counts of the plaintiff’s declaration.
    The Court, pro forma, sustained all the demurrers ; and a general judgment was rendered for the defendant.

      H. W. Billings Sr L. B. Parsons, Jr. for the appellant.
    ' 1. The replication to the first plea is good. It avers that a good deed was tendered to Caldwell, and a demand made for the money, and that he refused to pay the notes or take the deed. Hunt v. Livermore, 5 Pick. 397; Duncan v. Charles, 4 Scam. 564; Manning v. Brown, 1 Fairf. 51; McCampbell v. Miller, 1 Bibb, 454; Saunders v. Beall, 4 do. 342; Couch v. Ingersoll, 2 Pick. 300; Kane v. Hood, 13 do. 283; Howland v. Leach, 11 do. 155; Mason v. Chambers, 4 Littell, 253; Canfield v. Wescott, 5 Cowen, 271.
    2. A bond conditioned to convey land by a good and and sufficient deed of warranty on payment of notes by the obligee to the obligor, is performed by a deed regularly executed in proper form by a grantor who is seized. Aiken v. Sanford, 5 Mass. 499; Finney v. Ashley, 15 Pick. 552; Hogins v. Arnold, ib. 262; Waggoner v. Monroe, 3 Monroe, 556; 1 U. S. Dig. 683, § 213; Howland v. Leach, 11 Pick. 155.
    3. A penalty is not to excuse a party, but to compel him to perform his contract. Brown v. Bellows, 4 Pick. 196; Ensign v. Kellogg, ib. 5; Manning v. Brown, 1 Fairf. 51; Barbour’s Ex’rs v. Brookie, 3 J. J. Marsh. 512; Sugden on Vendors, bottom page, 215.

      D. A. Smith, for the appellee.
    I. The consideration of Caldwell’s note, was the conveyance by Mrs. Mason of the title in fee, with warranty of the lots, pursuant to the Act of the Legislature; and not that she would, after a long lapse of time, (the Act of the Legislature not having been complied with,) and when the property might greatly have depreciated in value, procure her daughter (who could not warrant the fee because she was a married woman,) to convey, and to harass him with a void and ruinous bargain. This Court has decided the first plea to be good, and that the sale was void, because Mrs. M. did not strictly pursue the power with which she was invested by the statute, authorizing her to sell the property. Mason v. Wait, 4 Scam. 127. The objection to the replication to this plea is, that in effect it allows the affirmance and specific execution of a void contract after a long lapse of time, in behalf of one who is not a party to the record, and in no way bound by the contract. This would not be'allowed in a Court of Chancery, because of change in the circumstances of the parties, — depreciation in the value of property, &c.; but above all, because of utter want of mutuality in the obligations of the contract. “As a general rule, it is well settled, that to enable either party to compel a specific execution, the contract must be mutually binding on each.” See Newland on Contracts, 154, and the authorities "there cited; 2 A. K, Marsh. 346. “If an infant enter into a contract for the sale or purchase of an estate, he .cannot enforce it in Equity, for the remedy is not mutual.” Flight v. Balland, 4 Russ. 298.
    II. This Court, in the case of Mason v. Wait, did not decide upon the principle involved in the second and fifth pleas. It is contended by the appellant’s counsel, that the provision in the title bond relied upon in these pleas is in the nature of a mere penalty or forfeiture, designed to secure punctuality on the part of the vendee. It is insisted, that this is a clear case of the rescission of a contract, (it having been by this Court decided to be void,) by its very terms, if it be legally in the power of the parties to agree in their contract for such rescission. No case like this is to be found in the books. Could the vendor, under the terms of this Bond, be compelled to execute this contract specifically, if he resisted it? Surely not, if the parties were to make, and the Court to construe the contract according to its plain and obvious meaning, and the intention of the parties. If, however, this stipulation amounted only to an ordinary penalty or forfeiture, it could only be waived at the election of a vendor, having title at the time of his election, which cannot be pretended in this case in behalf of Mrs. Mason, or the plaintiff. The title was in Mrs. Mason for several years after the maturity of the notes for the purchase money, and ■ ifc may be well argued, that if the property had appreciated in value, we should never have been called upon to settle any perplexing points in this ease.
    III. The third, fourth and sixth pleas have been decided to be good in the case of Mason v. Wait. Stare decisis.

      R. S.' Edwards, for the appellant, in conclusion, relied-upon the following points and authorities :
    1. The covenants in this case are not dependent; but-mutual and independent. The payments to be made-by defendant, being to be made by instalments, one of which falling due before the plaintiff was under obligation to convey; and the defendant having failed to make that.payment, he cannot set up the failure on the part of the plaintiff to perform his part of the obligation as a defence. Manning v. Brown, 1 Fairf. 49; Champion v. White, 5 Cowen, 509; Duncan v. Charles, 4 Scam. 561; Craddock v. Aldridge, 2 Bibb, 15; Mason v. Chambers, 4 Littell, 253 et seq. The case of Gregory v. Scott, 4 Scam. 392, cited by defendant’s counsel, does not conflict with this position, and if it should be so deemed, it is reversed by the subsequent case of Duncan v. Charles.

    2. The contract cannot be so construed^ as to give the defendant the right to avoid the contract by his failure to pay his notes. So to construe the avoiding clause would destroy the mutuality of the contract, and such could not have been the understanding of the parties. Manning v. Brown, 1 Fairf. 49; Burnam’s Ex. v. Brookie, 3 J. J. Marsh. 511; Canfield v. Westcott, 5 Cowen, 270; and other cases there cited. The defendant has done nothing affirmatively to show his intention to avoid this contract.
    3. The replications in. this case are good. It was not necessary for the plaintiffs to. have tendered a deed, at the maturity of the last note. See authorities before cited,, and, also, Johns v. Smock, Coxe, 106, cited in 1 U. S. Dig., 679, § 120; 3 Stew. 361. The bond in this case was an obligatory contract on the part of Sarah Mason, or of Paris Mason, or both. Acting or pretending to act in the right of another, and failing to bind their principal, the agent would be personally responsible, and thus, whether guardian, administrator or any other agent. Sumner v. Williams, 8 Mass. 162; Whiting v. Dewey, 15 Pick. 428.
    4. The Court will look beyond the technical words of the contract to see the intent of the parties. Whose title did the defendant contract for? I answer, the title of Martha Maria Mason, and the replication tendering him her title, so as to rest in him an indefeasible fee simple estate, he has no reason to complain, and neither the law nor commonihonesty would admit his pretended defence. The authorities cited by Mr. Billings are conclusive upon this point.
   The Opinion of the Court was delivered by

Caton, J.

All of the questions presented in this record, have been already settled in this Court, except two, the first of which is presented by the demurrer to the second and fifth pleas, and the second by the demurrer to the first replication. The first question depends upon the proper construction to be given to the concluding clause of the bond set out in the pleas. That is as follows: “But should the said John R. Caldwell, or bis assignee, fail to pay the said sum of money, specified in said notes, within ten days after the same became due, he hereby forfeits all claims to said lots and all the moneys paid thereon, and this bond, in such ev ent, shall be void, both in Jlaw tand equity, and the title to said lots shall continue in the original proprietor, as if no sale had been made.” The defendant contends, that he can take advantage of this clause, and because he did not pay the money as he had agreed to do, he is exonerated from paying it at all. It is argued, that because the obligee, in the event of non-payment, may treat the bond as determined, mutuality requires that the obligor should have the same privilege. This argument refutes itself. It is as much a feto de se, as it would make the bond. To admit the defendant’s position, is to leave everything in his own hands. It allows him to defeat, or make the bond operative, as may best subserve his interest, without any discretion on the part of the obligee. It converts the bond into a naked proposition absolutely binding on the seller, but which the purchaser may accept of reject by the payment or non-payment of the money. By thus putting the entire control in the hands of the latter, all mutuality is destroyed. It was the undoubted intention of both parties, when they inserted this clause, to provide a penalty to insure a prompt performance by the purchaser. By performance he leaves no discretion in the hands of the obligee, but has a right to enforce the bond, while, if he does not, he agrees to leave it optional with the other party to avoid the contract or not. Here was a real mutuality; for the purchaser had the first discretion, and if he placed himself in the power of the party, it was by his own voluntary neglect to pay the money, as he had bound himself to do, and it was but a just penalty for violating his obligation. But this is not a case of first impression. This precise question has been fully settled by a number of decisions in other States. The first case to which we shall refer, is that of Canfield v. Westcott, 5 Cowen, 270; and two other cases are given in a note to that, where the same Court had held the same rule; in the last of which, ( Church v. Ayres,) almost the identical words are used which are found in the avoiding clause of this bond: “Otherwise, these presents to be void both at law and in equity.3’ In all of these cases the Court held that the avoiding clause was inserted for the benefit of the obligee, and that the obligor could not take advantage of his own neglect in the nonpayment of the consideration. The same construction was given to a similar clause in the case of Manning v. Brown, 1 Fairf. 49. The same principle was sustained in Kentucky, in Barbour’s Ex’rs v. Brookie, 3 J. J. Marsh. 511. But it hardly requires authority to support what is so easily demonstrated by reason.

The next question is perhaps of greater importance, and it is certainly of more difficult solution. This is presented by the demurrer to the replication. That replication admits that neither the plaintiff, nor Sarah Mason, by whose appointment he made the sale and received the notes, had any authority to sell the premises, the fee of which was in Mrs. dllen, who was, at uie time of the sale, a minor, and the ¡vard of Mrs. Sarah Mason, and that as to the ward, the sale was absolutely void, and conferred upon the purchasers no right to the land whatever; but then it avers that soon after he notes were given, the ward became of age, and internarried with Mr. Allen, and that afterwards, and soon after ‘.he maturity of the notes, and before the defendant demanded a deed, or tendered or offered to pay the money, Martha Maria, in whose behalf the sale was professedly made, and ■ier husband and Sarah Mason, executed and tendered a deed for the lots to the defendant, which would have vested in him a perfect title, but that he refused to accept the same or pay,the notes.T.iis pres3its the question, whether a contract, which was not binding upon her at the time it was • made, might -be adopted by her after she became of age, and before it had been repudiated by the purchaser. If a person, professing to act on behalf of another, but without authority, enters into a contract which, for the want of such authority, wrould render the professed agent personally liable, such contract may be adopted by the principal while it is still in force as between the professed agent and the other party. Doyle v. Teas, 4 Scam. A person may as well become an agent by adoption as by original appointment, and by such adoption the responsibilities are shifted from the agent to the principal. A contract, however, which was absolutely void as to all parties, which conferred no rights, and created no liabilities of any sort, could not, I imagine, be adopted by any one so as to make it valid and binding. It then becomes important to inquire whether the agent, by '-whom this contract was made, but without authority, was I personally responsible to the purchaser, and bound to make ] good whatever damages the purchaser might have sustain^¡¡ed, because he tv as unable to get the title for which he con-i; tracted. I know of no reason why this contract should be ! taken out of the general rule, wdiich compels an agent to ’ make good his contract personally, when he contracts without authority. It makes no difference that Mrs. Mason was professing to act as guardian under a legal appointment. If / an administrator or guardian, in his representative capacity, makes a contract or covenent which he has no right to make, and which is not binding upon the estate or ward, he is bound personally to make it good.

In Sumner v. Williams, 8 Mass. 162, as administrators, the parties executed a deed, which was signed and sealed by them in that capacity, and as administrators they covenanted to warrant and defend the premises. They were held liable in their individual capacity, for the reason that they had no authority to bind their intestate’s estate by such a covenant. And in Whiting v. Dewey, 15 Pick. 428, guardians conveyed lands in that capacity, and as guardians, they covenanted ce that Benedict Dewey, deceased, died seized of the premises, and that they, as guardians in right of the said minor, wore lawfully seized of the premises. ” And they were held individually liable on this covenant for the same reason as that given in the other case. The Court said, that where parties contract era auter droit, and fail to bind their principals, they are to be held personally responsible. ”

It may be considered as settled, then, that although the sale was void so far as the ward was concerned, it was still binding upon those who made the contract, to whom the purchaser had a right to look for any dÉnages which he might ji sustain on account of his inability to procure the title. This |! was the condition of the contract, and the rights and liabili- |:' ties of the parties, when the acts of the guardian and her ! attorney were adopted, and the deed tendered. Previous to that time, the purchaser had an undoubted right to repudi-i, ate, and deliver up the contract, and demand his notes, bub by doing so he would have lost his claim to indemnity,1 against the agent. This he did not do. If we-could look beyond this replication, and notice the avoiding clause, which is set out in the pleas, we see that both had the right to avoid the contract, the plaintiff on account of the non-payment of the money, and the defendant, for want of authority in the plaintiff to make the sale. But till this right was exercised by some affirmative act, the contract was stifil in force. It was defeasable, but not destroyed. Up to the time the deed was tendered, the defendant retained the right to call upon the plaintiff to make good the contract personally, and while he retained that right, he could not complain, if the sale was adopted by the principal after she became competent to affirm the act, and thus secure to the purchaser the full benefit of his contract.

It would hardly be denied that the tender of a deed would have been a good plea to an action by the purchaseragainst the agent, charging his liability upon the want of authority to bind the ward; and if such a tender would have been a good plea to an action based upon such want of authority, it ought to be a good replication, where the same want of authority is relied upon as a defence. It is a matter of no moment to the purchaser whether he gets his title from the guardian as he had expected, or directly from the ward after she became of age, so as the title was good. If there was any difference, the deed which was tendered him was better than he could have expected from the guardian, for it contains a covenant of warranty, binding upon the ward and her husband, whereas the guardian could not so have bound her. The substance of the purchase was for the title, and not that the title should come through a particular channel. In 1 U. S. Dig. 683, § 213, it is said: “A. covenanted to convey a tract of land to B. by a good warranty deed in fee simple. A. had only a life estate at the time, and he after-wards conveyed by deed with general warranty, all his interest in said tract to his son; and his son and other children, in whom the fee was vested, conveyed to B.: Held, that on tender to B. of such title, A. was entitled to the purchase money of B.” De Choumont v. Forsyth, 2 Penn. 507, is referred to. We have not access to the reported case, and therefore should be unwilling to rely upon it with much confidence as an authority, if the principle asserted were novel or in any way unreasonable. But it comports with what we understand to be familiar principles. Even Equity may enforce the specific performance of a contract, for a sale of land, although he has no title at the time of the sale or even at the time of filing the bill, so as he can make a good title at the time of the decree.

He ought not to complain if he gets that for which he contracted, and in as good a condition as he had a right to expect. We are of opinion that the replication was a good one, and that the proforma decision sustaining the demurrer to it will have to be reversed. We have already seen that the demurrer was properly sustained to the second and fifth pleas.

The judgment is reversed and the cause remanded.

Judgment reversed»


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    Jethro Petty, appellant, v. Lyman Scott, appellee.

      Appeal from Pike.
    The fact that a judgment, which had heen read as evidence, is copied into a transcript sent up from the Circuit to the Supreme Court, does not make it a part of the record. It should appear in the bill of exceptions.
    This case, brought by the appellee against' the appellant, was heard before the Hon. Norman H. Purple, at the September term, 1848, of the Pike Circuit Court. Judgment for the plaintiff below. Defendant appealed.
    The bill of exceptions taken at the trial did not purport to contain all the evidence before the Court, but it contain- 1 ed a recital that a judgment and execution was read in evidence without objection, neither of which was embodied in in the bill.

      C. A. Warren S' O. C. Skinner, for the appellant.

      W. Thomas, for the appellee.
    The clerk of the Pike Circuit Court has copied into the transcript of this case two records of judgments in that Court, preceded by a statement that they were offered in evidence on the trial. This, however, does not make them a part of the record in this case. See Corey v. Russell, 3 Gilm. 366; Saunders v. McCollins, 4 Scam. 419.
   The Opinion of the Court was delivered by

Treat, C. J.

The bill of exceptions discloses this state of case. The plaintiff claimed title as purchaser at a sheriff’s sale on an execution against the defendant. -He read in evidence the judgment and execution, without objection. He then offered in evidence the sheriff’s deed, which was objected to on the ground of a variance between the judgment read in evidence, and the judgment recited in the deed. The Court overruled the objection, and admitted the deed in evidence. That decision is assigned for error. The record of the judgment is not before us, and we cannot therefore determine whether there was a variance between it and the sheriff’s deed. The clerk has copied a judgment into the transcript, but that, as this Court has repeatedly decided, does not make- it a part of the record of the case. It should appear in the bill of exceptions. Saunders v. McCollins, 4 Scam. 419; Corey v. Russell, 3 Gilm. 366; Edwards v. Patterson, (ante, 126.) There was no error in the other decisions of the Court.

The judgment of the Circuit Court is affirmed with costs.

Judgment affirmed.


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    Ebenezer Bruff, appellant, v. Jacob Leder, appellee.

      Appeal from Madison.

    In order to do complete justice and avoid a multiplicity of suits, all persons trust be made parties who have any substantial interest in the subject matter of the controversy, and whose rights are to be materially affected by the decree.
    Bill in Chancery for a specific performance, &c. in the Madison Circuit Court, filed by the appellee against the appellant and one David Brown. The complainant, during the course of the proceedings, dismissed the bill as to Brown. At the March term, 1848, the Hon. Gustavus P. Koerner presiding, a special decree was rendered against Bruff only, who thereupon appealed to this Court.

      G. Trumbull, and <7. Gillespie, for the appellant.
    Brown should have been made a party to the decree in this case. 1 Story’s Eq. PI. §§ 72, 81, 169, 174j 4 Scam. . 426.

      W. Martin, for the appellee.
   The Opinion of the Court was delivered by

Treat, C. J.

Articles of agreement were entered into between Leder of the one part, and Bruff and Brown of the other part, by the terms of which, the former was to erect a house for the latter, and they were, on the completion of the building, to execute a bond with sufficient sureties, or a mortgage on the house and lot to secure the payment of a part of the price in three annual instalments.

Leder filed a bill in Chancery against Bruff and Brown for the specific execution of the agreement on their part. He afterwards dismissed the bill as to Brown. Bruff answered the bill, and various depositions were taken. On the hearing, the Court decreed that Bruff should execute notes with good security for the payment of the instalments according to the terms of the agreement, and in default thereof, ■that the house and lot be sold to pay the same.

The complainant committed a fatal error in dismissing the bill as to Brown. In Equity, in order to do complete justice and avoid a multiplicity of actions, all persons must be made parties who have any substantial interest in the subject matter of the controversy, and whose rights are to be materially affected by the decree. Spear v. Campbell, 4 Scam. 424. Brown was a necessary party. He is so connected with the subject matter of the suit, that the decision must necessarily affect his interests. He is a party to the agreement, and as such, equally interested with Bruff in requiring performance on the part of Leder; and jointly liable with Bruff for the payment of the stipulated compensation. He has an undoubted right to resist the application to enforce that liability, and a direct interest in stating an account under the contract. By the terms of the agreement, it is optional with Bruff and Brown to give real or personal security for the payment of the deferred instalments. Brown has the right to elect as to the character of the security to be given. The excuse for not retaining him as a defendant is, that he is insolvent, and the title to the property is in Bruff. He may be insolvent, and still in conjunction with Bruff be able to give the security; and although the legal estate may be in Bruff, he may have a beneficial interest in the property. At all events, he should be permitted to controvert the allegations of the complainant, and show that he is not entitled to the relief sought by the bill.

The decree of the Circuit Court is reversed with costs; and the cause is remanded for further proceedings, with leave to the complainant to amend his bill by making new parties.

Decree reversed.

      Trumbull, J. having been of counsel in this case, took no part in the deeision. ■


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    Felix E. D. Harris et al., appellants, v. William Reece et al., appellees.

      Appeal from Madison.

    in a bill in Chancery for an injunction and to correct certain alleged mistakes in deeds, the complainants claimed to be heirs at law of a person deceased, and the answer denied the allegation. There was no proof to sustain the allegation : field, that they were not entitled to relief.
    The fact that a hill in Chancery dispenses with the oath of the defendant to his answer, does not relieve the complainant from sustaining such allegations of his bill as are put in issue by the answer. The answer, in such case, only ceases to be evidence for the defendants.
    Bill in Chancery, for an injunction, &c. brought by the appellees against the appellants, and heard before the Hon. Gustavus P. Koerner, at the August term, 1848, of the Mad-" ison Circuit Court. A decree was rendered in favor of the complainants, granting a perpetual injunction, &c.
    The complainants claimed to be the heirs at law of Thomas Botkin, deceased, which was denied by the defendants in their answer, the oath to which was dispensed with. No evidence was introduced to sustain the allegation.
    The cause was submitted in this Court upon brief and written arguments.

      G. Trumbull, for the appellants,
    contended that it was erroneous to render the decree without proof of the heirship of the complainants, and cited De Wolf v. Long, 2 Gilm. 682, in support of the position.

      J. Gillespie, for the appellees,
    in reply, insisted that under the pleadings in the case strict proof of the heirship was not required on the part of the complainants.
   The .Opinion of the Court was delivered by

Treat, C. J.

We encounter a fatal objection to this decree at the very threshold of the case. The right of the complainants to invoke the interference of a Court of Equity depends on the truth of the allegations in the bill, that they are the heirs at law of Thomas Botkin deceased. This averment is denied by the answer. There is not a particle of proof to sustain it. Any further investigation of the case would be profitless. It will be in time to do that when the complainants show a right to demand it. The fact that the bill dispenses with the oaths of the defendants to their answers does not relieve the complainants. It was still incumbent on them to sustain by proof the allegations of the bill put in issue by the answer. The answer in such case only ceases to be evidence for the defendants. It still puts in issue the averments of the bill, and throws on the complainants the burthen of proving them to be true. The only dif'ference is as to the amount of proof necessary to do this. The same amount of evidence, which would sustain the material averments of a declaration when denied by a plea, would be sufficient.

The decree of the Circuit Court is reversed with costs, and the complaiinants-’ bill is- dismissed, but without prejudice.

Decree reversed.

      Trumbull, J. having been of counsel in the Court below, took no part in the decision.


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    James Holliday, plaintiff in error, v. The People of the State of Illinois, defendants in error.

      Error to St. Clair.

    A person was convicted of a criminal offence) and sentenced to imprisonment for a specified time, and to pay a fine of one hundred dollars. Subsequently, he was pardoned for the “crime of which he stands convicted.” After this, an execution was issued against him for the amount of the fine and the costs of the prosecution, and also a fee bill for the costs made by him: Held, that he was discharged from the fine, but not from the costs.
    Where general words are used in a grant, their natural meaning is not to he restrained by other words, unless the intention to do so is clear and manifest.
    A county is a public corporation, subject completely to the control of the Legislature, and the acts of the Executive pursuant to the provisions of the Constitution. The Legislature may, after verdict, release a penalty in a popular action brought for the benefit of a county.
    Motion to quash an execution and fee bill, made in the St. Clair Circuit Court, the Hon. Gustavus P. Koerner presiding. The motion was overruled, and the defendant sued out a writ of error.
    The main facts of the case will be found in the Opinion of this Court.

      W. Martin, for the plaintiff in error,
    cited Perkins v. Stevens, 24 Pick. 278; 3 Peters’ Dig. 137, § 1; ib. 471, § 3-

      P. B. Fouke, for the defendant in error.
    The plaintiff in error has neither paid the fee bill, or replevied it, as the statute requires. Rev. Stat. 249, § 27.
    The officers of the Court have a vested right in the fees. Reddick v. Cloud’s Adm’rs, 2 Gilm. 671.
    The Court were referred to the following authorities, as applicable to this case: Const, of Ills., Art. III. § 5; 1 Black. Com. 269; 4 do. 402; United States v. Lancaster, 4 Wash. C. C. R. 64; Same v. Wilson, 7 Peters, 150.
   The Opinion of the Court was delivered by

Treat, C. J.

Holliday was convicted of a criminal of-fence, and sentenced to be imprisoned thirty days in the penitentiary, and to pay a fine of one hundred dollars. The judgment was affirmed on a writ of error. 4 Gilm. 111. He was pardoned by the Executive on the 28th of March, 1848. The instrument of pardon was directed to the Warden of the penitentiary, and after reciting the conviction proceeded thus; “Now know ye, that I, Augustus C. French, Governor of the State aforesaid, by virtue of the authority in me vested by the Constitution of this State, do by these presents pardon the said James Holliday of said crime of which he stands convicted; and the said James Holliday is hereby acquitted and discharged of, and from all further imprisonment on account of said conviction.” Subsequently, an execution for the amount of the fine and the costs of the prosecution, and a fee bill for the costs made by Holliday, were issued against him. He moved the Circuit Court to quash the execution and the fee bill, on the ground that he was released from the payment of the fine and costs by the pardon. The Court denied the motion, and he sued out a writ of error from this Court.

The pardon was granted under the old Constitution. Under its provisions, the power of the Executive to grant it was unquestionable. He was vested with full power to pardon all offences after conviction but cases of impeachment. Having the power to pardon the whole offence, it followed that he might remit a part of the punishment. The lesser power of remission is necessarily included within the general authority to pardon. The fine is as much a part of the punishment as the imprisonment. It is contended by the counsel for the People, that the Executive only intended to remit the corporeal punishment, thus leaving the rest of the sentence in full force. The language of the pardon is broad and unqualified. The prisoner is pardoned of the “crime of which he stands convicted.” "Where general words are used in a grant, their natural meaning is not to be restrained by other words, unless the intention to do so is clear and manifest. If the object was only to exercise the lesser power of remission, the phraseology would have been special, releasing a part of the punishment, .and not general, forgiving the whole offence. The last clause in the pardon was not intended to qualify what preceded it, but was probably designed as a direction to the keeper of the penitentiary, to whom the instrument was addressed, to discharge the prisoner from custody. We have no doubt the Governor contemplated a full exercise of his prerogative in this case.

It is insisted that (¿he county in which the conviction took place had a vested right to the fine, which the Executive could not defeat. There is no force in this position. It might as well be insisted that the lessee tof the penitentiary had a vested right to the services of the convict, which neither the Legislature nor the Governor could take away. A county is a public corporation subject completely to the control of the Legislature, and the acts of the Executive pursuant to the provisions of the Constitution. The Legislature may, after verdict, release a penalty in a popular action brought for the benefit of a county. Coles v. The County of Madison, Bre. 115. It has the power after judgment to relieve from a forfeiture where the money goes to a county. Conner v. Bent, 1 Missouri, 235.

The pardon however did not release the prisoner, either from the payment of the costs of the prosecution, or of the costs incurred by him. On the conviction, the right to the costs was vested in those entitled to receive them. If the People paid costs in criminal cases, it might be that a general pardon would release the costs of prosecution. The People, in fact, receive no costs, the judgment is in effect in favor of those performing services in the case, for which fees are given as a compensation. The prisoner is liable to pay his own costs on the principle that the services were rendered at his instance. If the offence be pardoned after the costs are taxed, the costs are not avoided by the pardon. 5 Bac. Abr. 288. A pardon of the President after condemnation as to all the interests of the United States in a penalty incurred by a violation of the embargo laws, and directing all further proceedings in behalf of the Government to be discontinued, does not remit the interest of the Custom House officers in a moiety of the penalty. United States v. Lancaster, 4 Wash. C. C. R. 64. A pardon does not discharge the moiety of a fine, which goes to the informer. Rowe v. State, 2 Bay, 565. The power of the Governor to grant pardons does not extend to remitting the costs to which the prisoner may have been sentenced upon conviction. Ex parte, McDonald, 2 Wharton, 440.

The judgment of the Circuit Court will be reversed, and judgment entered in this Court that the execution be quashed. A second execution can issue for the collection of the costs of the prosecution, and the Sheriff may proceed with the execution of the fee bill.

Judgment reversed.