text:
    Joab Green, Plaintiff in Error, v. Thomas Massie, Executor, &c., Defendant in Error.
    ERROR TO HANCOCK.
    Rent accruing out of land, upon a lease granted by the owner in fee, and which does not become due till after the death of the lessor, is a chattel real, which descends to the heir as a part of the inheritance, and does not go the executors.
    Thomas Massie, as executor of the last will of William Steel, deceased, sued Green before the Hancock County Court, on a demand for $31.25. The cause was submitted to the County Court, and judgment was rendered against Greene for $18.37 and costs of suit, at February term, 1850, of that court. Green took an appeal from the County Court to the Circuit Court of the same county. At the April term, 1850, of the Hancock Circuit Court, Minshall, Judge, presiding, the cause was submitted to a jury, and a verdict was found against Green for a like sum. Green moved for a new trial, which was overruled, and judgment was rendered against Green on the verdict. He brought the cause to this court by writ of error.
    The claim of Massie was for rent due for the use and occupation of land in Hancock County, for the year 1848, which was to be paid in one hundred and fifty bushels of corn. The land was owned by Steele.
    Warren & Edwards, for plaintiff in error.
    The rent was payable to the heirs or devisees, and not to the executor, and the executor could not sue for it. Williams on Executors, 583 to 586; 3 Bacon’s Abr., Executor & Adm., title H. 3, page 62; Toller on Executors, 176; 7 B. Monr. 21; Woodfall’s Land. & Ten. 299.
    Browning & Bushnell, for defendant in error.
    By our statute, growing crops are assets in the hands of the executor; a fortiori, the rent part of a growing crop; a fortiori,
      the money which becomes due in the place of rent-qorn, where the tenant fails to deliver the corn. It will hardly be insisted, that where the corn belongs to the executor, the money in lieu of it belongs to the heir. Rev. Stat. 554, §§ 81, 86, 89, 96 and 97; Id. 333, § 1.
   Catón, J.

This was an action brought by Massie, as executor of Steel, against Green, to recover rent due the estate of Steel. The evidence shows a yearly tenancy of a farm belonging to the estate of Steel, the lease of which was made during the lifetime of the testator. Steel died in October, 1848, and the rent did not become due and payable before the December following.

The defendant requested the court to instruct the jury, “ That if the jury believe, from the evidence, that William Steel, in his lifetime, rented this farm for 1848, and that the rent became due in 1848, and that before that time, the said Steel, the landlord, died, leaving children, to whom the land descended at his death; that then the executor, the plaintiff in this suit, cannot recover for such rent.” This instruction the court refused to give, but instructed that,11 If the jury believe, from the evidence, that Green occupied Steel’s place under an agreement by which he was to pay rent to Steel, and if they further believe, from the evidence, that said rent is not fully paid, the plaintiff is entitled to recover the balance due on said contract.” To these decisions the defendant excepted. We are satisfied that the judge of the Circuit Court was mistaken in this view of the law governing this case. Rent accruing out of land upon a lease granted by the owner in fee, and which does not become due till after the death of the lessor, is a chattel real, which descends to the heir as a part of the inheritance, and does not go to the executor. “ If A., seized in fee, grant an estate tail, or a lease for life or years, reserving rent, such rent as accrues after his death, being incident to the reversion, shall go to his heir and not to his executors, although they are expressly named in the covenant.” Toller’s Executors, 176. The same rule is laid down in Williams on Executors, 583; Woodfall, Land. & Ten. 299; Bullock v. Sneed, 13 S. & M. 295; McCoy v. Scott, 2 Raw. 222. Indeed, this seems to be the well-settled rule of the common law. Nor does our statute change the rule, as was supposed. The 81st, 86th, 96th, and 97th sections of our Statute of Wills were relied upon. The 81st section requires the executor or administrator to make out an inventory of the real and personal estate, “ whether the same shall consist in lands, tenements, hereditaments, annuities, or rents, or in goods and chattels, and rights and credits,” which he shall return to the office of the Probate Court. Admitting that this refers to rent not due, at the time of the death of the testator or intestate, it by no means follows, that the legislature intended to vest the title to the rent in the executor or administrator, by requiring him to include in it his inventory. The same argument would prove that the title to the real estate was vested in the executor, for that, too, had to be included in the inventory. The 86th section makes no reference to the subject of rent, and we do not see that it has any application here. The 89th section is of the same character as the 81st, and is answered in the same way. What has been said of the 86th section is applicable to the 96th. The 97th section authorizes the executor or administrator to sell the growing crops, or to cultivate and harvest them, and then dispose of them; and declares, that the proceeds shall be áSsets in their hands. Although, by the terms of the lease, this rent was authorized to be paid in corn, yet it was not a growing crop belonging to the testator. The rent was not, necessarily, even a portion of the crop grown upon the land. The tenant was not bound to cultivate any portion of the demised premises in corn; and that which was to be paid as rent, might as well be grown on other land. It was no more a growing crop, in the sense of that statute, than as if the rent was to have been paid in shingles or horses. Nor does the first section of our Landlord and Tenant Act, affect this question. That section provides, “ In all cases in which rent may be due and in airear, on a lease for life or lives, and where lands shall be held and occupied by any person, without any special agreement, for rent, it shall and may be lawful for the owner or owners of such lands, his, her, or their executors or administrators, to sue for and recover such rent, or a fair and reasonable satisfaction for such use and occupation by action of debt or assumpsit, in any court having jurisdiction thereof.” In this, it was not the design of the legislature to change the rights or liabilities of parties, but' only to specify the form of the remedy. Nor, in terms, does this law give the right of action to the executor, where the rent was not due at the time of the death of the testator, but only in cases where the rent is due and in arrear, and where the premises are held without any specific agreement for rent. Rent falling due, after the death of the testator or intestate, still descends to the heir as a chattel real, with the estate, and he alone can recover it.

The judgment of the Circuit Court must be reversed, and the cause remanded. Judgment reversed.


source: Caselaw Access Project

author: Treat, C. J.

license: Public Domain

text:
    Daniel Seagraves, Plaintiff in Error, v. The City of Alton, Defendant in Error.
    ERROR TO MADISON.
    By the act incorporating the city of Alton, it was enacted, that the common council should provide for and take charge of all paupers within the limits of said city, in. consideration for which, certain privileges afid equivalents were granted to the city: —

      Held, that the obligation to support paupers was a legal one, and might be enforced against the corporation; and that it became the duty of the city authorities to provide for the support of paupers within the city.
    Where the law imposes an obligation on a corporation, which it refuses to discharge, it may be held liable civilly at the suit of a party who sustains damage in consequence of its refusal.
    An action of assumpsit may be maintained against a corporation upon an implied contract.
    Except in extreme cases, a corporation cannot be made responsible to an individual for relief granted to a pauper, until an opportunity has been afforded the corporation to make the necessary provision.
    A corporation must first be put in default, before it wiE be held liable upon an implied contract.
    If a corporation does not provide, after notice, for a comfortable support of paupers, individuals may supply their necessities, and look to the corporation for remuneration.
    The case of Rouse v. The County of Peoria, 2 Gilman, 99, reviewed, and questioned in part.
    This is a suit which was brought by plaintiff in error, against the defendant in error, at the March term of the Madison Circuit Court, 1849, for the recovery of pay for the support of one Burrell Reeves, who was a pauper, living and residing in the city of Alton. Heard before Underwood, J.
    There are three counts in the declaration in assumpsit.
    The first count alleges that, on the 1st day of February, 1849, the city of Alton was indebted to the plaintiff in the sum of $350, for the board, lodging, washing, clothing, medicine, and tailing care of said Reeves, for the space of eighty-six weeks, at special instance and request of defendant; and thereupon defendant undertook, &c.
    The second count alleges that, on the 1st of July, 1847, and from that time to the bringing of the suit, one Burrell Reeves was a pauper in the city of Alton, and had been for a long time before then, to wit, for the space of ten years, and wholly unable to support or provide for himself; and being such pauper, was a proper charge upon said city of Alton, for support and subsistence ; and that said plaintiff had, from the said first day of July, 1847, to the 1st day of February, 1849, supported the said Reeves with board, lodging, washing, clothing, and nursing in sickness, for the space of eighty-six weeks, at the instance and request of defendant; and in consideration thereof, the defendant undertook and promised to pay what plaintiff deserved to have therefor, &c. ; and that he deserved to have $3.50 per week whilst he so kept said Reeves, of which defendant had notice, &c.
    The third count charges that, on the 1st day of February, 1849, in consideration that plaintiff had, at the special instance and request of defendant, before that time, furnished and provided meat, drink, lodging, clothing, and nursing, and other necessaries, for said Reeves, the said Reeves then and there being, and for a long time before, a pauper in the city of Alton aforesaid ; and being so indebted to the plaintiff, the defendant then and there, in consideration thereof, undertook and faithfully promised the plaintiff to pay so much as he deserved to have; and he averred he deserved to have the sum of $3.50, &c,, and usual breaches.
    To this defendant plead the general issue, and a trial was had before a jury.

      The proof was conclusive, showing that Reeves was a pauper, and that the matter had been several times brought before the attention of the common council of the city of Alton.
    The plaintiff below asked the court to instruct the jury as follows, to wit:
    1. That if the jury believe, from the evidence, that Burrell Reeves was a resident of the city of Alton on the-day of July, 1837, the day of the passage of the charter, and that he has resided therein from that day to the 1st of February, 1849, and that during that time, or any portion thereof, he has become a pauper, (that is, a poor person, unable to support himself, and that he had no father, mother, child or children, grandchild or grandchildren, brother or brothers, sister or sisters, unmarried, of sufficient ability, to support him); and that he was brought to the house of the pláintiff for support; and that he gave notice to the common council of the city of Alton, and requested them to support such pauper; and that the said common council neglected or refused to provide the necessary support for him, and that the plaintiff provided the same, and it was necessary for said pauper, they are bound to find for the plaintiff what he reasonably deserved to have, for such support.
    2. That if the jury believe, from the evidence, that said Reeves was a poor person, residing in the city of Alton, and that he had become unable to support himself from bodily affliction; and that he had none of those persons described in the statute who are required to maintain their poor kin, and that he, the said Reeves, was brought to the house of the plaintiff wholly destitute ; and that he notified the common council of the city of Alton of that fact, and requested the same to furnish him with the necessary support; and that the said city, by her agents, did supply the said Reeves for any length of time, as such pauper; and that afterwards the said common council of said city, knowing of the destitution and inability of the said Reeves to support himself, neglected and refused to provide for him; and that the plaintiff furnished such necessary support as his condition required, they are bound to find for the plaintiff, and assess his damages to such a sum as the support was reasonably worth, so furnished by him.

      3. That if the jury believe, from the evidence, that the plaintiff furnished meat, drink, and raiment for the said Burrell Reeves, such as his necessities required, and that he was a pauper, (that is, a person without property, or ability to support himself,) after having notified the common council of the city of Alton of his situation, and requested the same to provide for him a support; and their refusal or neglect to provide the same for him, they must find for the plaintiff such reasonable sum as his meat, drink, and clothing were reasonably worth.
    4. That if the jury believe, from the evidence, that the common council have neglected to provide, by ordinance or otherwise, for the support of the paupers in the city of Alton, and that the said Burrell Reeves is a pauper who is unable to support himself, from bodily infirmity, and that the common council for the city of Alton was notified of that fact, and neglected to provide for him such necessary support, and that the plaintiff furnished the same for him, they are bound to find for the plaintiff such reasonable sum as the support so furnished was reasonably worth.
    Which instructions were refused by the court, and a bill of exceptions taken thereto.
    And the defendant asked the following instructions, which were given:
    1. That unless the jury believe, from the evidence, that Burrell Reeves was a pauper, and that the defendant, or its authorized agents, made a special contract with the plaintiff, to support, or render service to him (the said Burrell Reeves,) they must find for the defendant.

      2. That if the jury believe, from the evidence, that any members of the Pauper Committee of the city of Alton gave money to the plaintiff, merely as a gift for taking care of Burrell Reeves, it is no evidence of a contract, and the fact of the city paying them back the money is not sufficient evidence of a special contract for his support.
    3. That unless the plaintiff has proved that the proper officers of the city of Alton requested the plaintiff to render the’ services for which he has sued, then the jury should find for the defendant.

      4. That if the jury believe, from the evidence, that the plaintiff rendered the services mentioned in the declaration, at the express request of the proper officers of the city of Alton, then they must find for the plaintiff; which said instructions were given as the law, and exceptions taken thereto by the plaintiff.
    And the jury returned a verdict for the defendant.
    Thereupon the plaintiff moved the court for a new trial, and assigned his reasons.
    Seagraves brings the cause to the Supreme Court, and assigns errors.
    Seth T. Sawyer, for plaintiff in error.
    Billings & Parsons, for defendant in error.
   Treat, C. J.

The 9th section of the “ Act to incorporate the city of Alton,” approved the 21st of February, 1837, contains this provision: “ The common council shall provide for, and take charge of, all paupers within the limits of said city; and to accomplish this object, they shall have the exclusive right, power, and authority to license and tax all ferries, taverns, merchants, auctioneers, pedlers, grocers, venders of spirituous liquors and wines, other public houses of entertainment, theatrical and other shows and performances, within the limits of said city.”

This provision imposes on the city the duty of supporting the paupers within its limits, and grants it in return an ample equivalent. The obligation is a legal one, and may be enforced against the corporation. It is enjoined by positive law, and its observance does not rest in the discretion of the corporate authorities. The general provisions of the statute declaring who shall be considered paupers, and requiring then relatives, when of sufficient ability, to maintain them, are applicable to the city of Alton; but the particular directions of the statute to overseers of the poor and justices of the peace in regard to paupers, have no force within its limits. Upon the passage of the charter, the county of Madison ceased to be liable for the support of paupers in the city; and the county authorities had no longer any superintendence or control over them. It became the duty of the common council to make competent provision for the support of paupers within the city. But a failure on their part to perform the duty will not absolve the corporation from responsibility. Where the law imposes an obligation on a corporation, which it refuses to discharge, it may be held liable civilly at the suit of a party who sustains damages in consequence of its refusal. In legal contemplation, a corporation assumes to perform what its charter enjoins upon it, and it is subject to answer in a proper action for its default. And the law is now well settled, however it may have been formerly, that an action of assumpsit may be maintained against a corporation upon an implied contract. The Bank of Columbia v. Patterson’s Administrator, 7 Cranch, 299; Danforth v. Schoharie Turnpike Co. 12 Johns. 227; Overseers v. Overseers, 3 Serg. & Rawle, 117; The Baptist Church v. Mulford, 3 Halstead, 182.

It is undoubtedly competent for the corporation to make such provision for the support of its paupers, as it may deem advisable. It may establish a poor-house for the purpose, and take charge of the paupers directly; or it may contract with individuals to support them, at a stated compensation. But she must, in some way, make adequate and reasonable provision for their maintenance. And, except in extreme cases, she cannot be made responsible to an individual for any relief granted to a pauper, until an opportunity has been afforded her to make the necessary provision. It is only upon her refusal or neglect so to provide, after a proper request has been made for the purpose, that she can be held liable in a civil action. An individual has not a right to render services, or provide food or raiment for a pauper, at the expense of the corporation, until her authorized agents have been notified, and have failed to furnish the necessary relief. It is only when the corporation is clearly in default, that she can be held liable upon an implied contract. It is possible that cases may occasionally arise, where services may be rendered to a pauper, without a previous application to the corporation, for which the party may be entitled to compensation, such as a severe accident, requiring prompt and immediate attention. Paupers are not to be turned over to the uncertain charities of individuals. The law makes them a charge on the corporation, and it is bound to provide them a comfortable support. If she will not do this in the first instance, individuals may provide for their necessities, and look to the corporation for remuneration. The case of the Trustees of Cincinnati v. Ogden, 5 Hammond, 23, asserts the correct doctrine on this subject. In that case, Ogden supplied a pauper with necessaries, after an unsuccessful application to the trustees, and then brought an action of assumpsit against the township to recover compensation. The court said, “ The next question to be examined is, ■ whether an individual, who has furnished necessaries to a pauper, can maintain an action against the township. The solution of this question must depend upon the nature of the obligation, which rests upon a township to support its poor. If it be merely in the nature of a moral obligation, then no action can be maintained, unless there has been a previous request, or an express promise on the part of the township. But if, on the other hand, it be an absolute legal obligation,- then the law implies a promise, and an action can be sustained. We are of the opinion that it is of this latter description. The supreme power of the State, by legislative enactment, has imposed the obligation. It is of as much binding force as the obligation of a parent to support his child, or a husband his wife. We do not say, that in every case, where an individual furnishes necessaries to a pauper, he can maintain an action against the township. Complaint must, in the 'first instance, be made to the overseers of the poor. If these neglect their duty, or if the trustees of the township refuse to make the necessary order, it is right and proper for an individual to furnish a distressed pauper with the necessary relief, and justice, sound policy, and law, require that the individual performing the benevolent act should be remunerated.” In Shreve v. Budd, 2 Halstead, 431, it was held, that an action might be maintained to recover the expenses of supporting a pauper, incurred after due notice to the overseer of the poor, and neglect by him to provide the necessary relief. In Tomlinson v. Bentall, 5 Barnewall & Cresswell, 738, the parish was held liable for a surgeon’s attendance upon a pauper, after neglect by the parish officers to procure medical relief. See also Wennall v. Adney, 3 Bosanquet & Puller, 247. The decisions in New York and Vermont, referred to on the argument, were made under statutes essentially different in them provisions, from the one imposing the duty on the city of Alton of supporting its paupers ; and they need not be further noticed. It was decided, in Rouse v. The County of Peoria, 2 Gilman, 99, that a contract for the support of a pauper is not obligatory on a county, unless it is made by a majority of the overseers of the poor of the district, and reported to the County Court for approval. That was the only question in the case, and with the decisión of it we are content. It was intimated, however, that where the overseers of the poor, or the County Court, refuse or neglect to discharge their duty concerning a pauper, the proper remedy is by writ of mandamus, and not by suit against the county. That expression was not called for by the facts of the case, and it cannot, therefore, be considered as a decision of the court. But it is not necessary for the determination of this case, to enter upon the discussion of the question, as the various regulations of the statute respecting the support of county paupers do not apply to the city of Alton.

In the present case, the evidence tended to the conclusion, that Reeves was a pauper, and properly chargeable to the corporation. It also clearly appeared that the plaintiff, with whom Reeves resided, made repeated applications to the city authorities for relief, which were refused. If Reeves was a pauper in fact, the plaintiff, by continuing to maintain him, pursued the course that humanity prompted, and the law approved, and he ought to be remunerated. The jury were instructed that he could not recover, unless the services were rendered in pursuance of an express contract with the corporation. This instruction was erroneous ; and as it may have controlled the finding of the jury, the judgment must be reversed, and the cause remanded for further proceedings.

Judgment reversed.


author: Trumbull, J.

text:
    William Weir, Appellant, v. David C. Stephenson, Appellee.
    APPEAL FROM MACOUPIN.
    In an action of trespass for shooting steers, the defendant on the trial admitted the trespass, and proposed to take the steers at their value, to be1 found by the jury, which, having been done, he took the steers and disposed of them; this did not estop him from taking an appeal.
    The original action of trespass under such an agreement, was, by consent, changed to an action of another character, and the indorsement on the summons no longer controlled the amount of the verdict and judgment.
    This cause was heard at the May term, 1851, of Macoupin Circuit Court, Woodson, Judge, presiding. The facts are stated in the opinion.
    W. J. Ferguson, for appellant.
    J. M. Palmee, for appellee.
   Trumbull, J.

Stephenson sued Weir before a justice of the peace in an action of trespass for shooting a yoke of steers. The amount of the demand indorsed on the back of the summons was fifty dollars. The transcript of the justice shows that the case was submitted to a jury of three men, who returned a verdict, “ that defendant pay fifty dollars and take the cattle, and five dollars damages and costs of suit.” In the Circuit Court a motion to dismiss the appeal was overruled, a trial had, and the judgment of the justice affirmed.

The bill of exceptions shows that on the trial before the justice, Weir admitted shooting the steers, and proposed to take them at iheir value; that the jury, acting upon this proposition, which was assented to by Stephenson, found their value from the evidence before them to be fifty dollars, and that after the trial Weir took possession of the steers and subsequently sold them. The Circuit Court instructed the jury as follows: “ That if they believe from the evidence, that the jury below, under an agreement between plaintiff and defendant, found a verdict for plaintiff, and that defendant afterwards took possession of the cattle in controversy, and converted them to his own use, he is estopped in law from, disputing the amount of such verdict in this court.” This instruction was, we think, erroneous. The agreement before the justice amounted to nothing more than this; that Weir should become the purchaser of the steers at a price to be fixed by the jury. The only question for the jury to decide under the agreement was as to the value of the steers, and in making their decision they did not act as arbitrators, but as jurors. The verdict which they returned was informal, and the parties, by consenting that the justice should enter a formal judgment thereon, did not waive their right to appeal. It did not thereby become a judgment by confession, and the Circuit Court decided correctly in refusing to dismiss the appeal. By the .agreement the character of the action was entirely changed, and it became a suit for the value of the cattle, to be decided upon the evidence, like any other case. Either party, if dissatisfied with the verdict, had the right to appeal to the Circuit Court, where the case should have been heard de novo.

The objection, that the judgment entered both by the justice and the Circuit Court is for more than the amount indorsed on the back of the summons, is wholly untenable.

The original action of trespass was changed by consent of parties into a suit of another character, and of course the indorsement on the original summons could no longer control the amount of the verdict and judgment, as but for the agreement would have been the case according to the decision in Dowling v. Stewart, 3 Scam. 195.

After the character of the suit was changed, the plaintiff became entitled to recover the value of the steers, provided such value did not exceed one hundred dollars, the extent of the jurisdiction of a justice of the peace.

Judgment reversed and cause remanded.

Judgment reversed.


text:
    James H. Taylor, Appellant, v. Samuel Beck, Appellee.
    APPEAL PROM SCHUYLER.
    A creditor is not bound to make use of active diligence against a principal debtor, on the mere request of a surety. The 97th chapter of the Revised Statutes has no application to contracts, other than bonds, bills, and notes, for the direct payment of money or property; it does not extend to contracts for the performance of other acts, or to agreements containing mutual covenants; it embraces only such obligations as are transferable by indorsement, so as to vest the legal interest in the assignee.
    A surety is not permitted to discharge himself, by requesting the creditor to proceed against the principal; the undertaking of a surety is different from that of an indorser.
    It is erroneous to ask of a witness his opinion, as to whether the delivery or nondelivery of a portion of articles contracted for, was of importance to a party.
    In an action upon a contract to deliver an “ entire lot of broom brush,” it is erroneous to instruct the jury, that if they believe, from the evidence, that the plaintiff has substantially performed the agreement, they will find for him; such a contract is to be performed in full, and not by fragments.
    Where a plaintiff declares on a contract, and alleges full performance on his part, without any count upon a quantum meruit, he is bound to prove that he has fully performed the contract.
    This was an action of debt, commenced by James Beck, against Thomas Freeman and James H. Taylor, in the Schuyler Circuit Court, upon a written agreement under seal in these words, vizi:
    J Articles of agreement made and entered into, between James '•.Beck of the county of McDonough and State of Illinois, and Thomas Freeman of the county of Schuyler and State aforesaid, witnesseth, that the said Beck has this sold, and binds himself to deliver to said Freeman, his entire lot of broom brush, raised by him this year, on or before the first day of March next, scraped and clean of seeds, and to be delivered at the town of Rushville, Illinois, at the shop of said Freeman; to be delivered in good merchantable order, unless after using due diligence he should be prevented by accidents of weather. The said Freeman, on his part, agrees and binds himself to pay to the said Beck therefor the sum of three hundred and fifty dollars in the following manner: Fifty dollars in merchandise at Rushville ; one hundred and thirty dollars on or before the (15th) fifteenth day of October next; sixty-five dollárs on or before the first day of December next; and the balance to be paid on or about the first day of March next. Witness our hands and seals, this 3d day of August, A. D. 1850.
    Thos. Freeman, [seal] Surety on the part of Freeman, Attest 1 & 3 J. H. Taylor, [seal] - his P. H. Walker. James + Beck, [seal] mark.
    Declaration contains eight counts.
    1. Sets out the agreement according to its legal effect; but in describing the broom brush to be delivered by himself to defendant Freeman, calls it a “ certain lot of broom corn brush.” The manner in which plaintiff avers performance is in these words, viz.: — “ Nevertheless the said plaintiff in fact says, that although he, the said plaintiff, after the executing the said agreement, pursuant to the said article of agreement, under seal as aforesaid, did, on or before the said first day of March, A. D. 1851, deliver to the said defendants all and every part of said broom corn brush by him, the said plaintiff, A. D. 1851, scraped and cleaned of seed, and m ^ranrerra^htX, able order, at the shop of said Freeman, at and in the town ow Rushville, in the county of Schuyler aforesaid,^yetf count then proceeds to assign as breaches, tile non-payment o|j; all the instalments in the contract, &c. v' *"
    2. Sets out the agreement and performance^df^^^pfemitiff precisely like the first count, but assigns as a breach the nonpayment of the instalment of $130, due October 15, 1850.
    3. Is like the counts 1 and 2 in every particular; assigns for breach the non-payment of the instalment of $65, due December 1,1851.
    4. Is in every respect like counts 1, 2, and 3, but assigns the breach in the non-payment of the balance, or last instalment of $105, due March 1,1851.
    5. Attempts to set out the contract in hcec verba, and is substantially correct, with this exception, the signature of “ Thomas Freeman ” is written at length; and prefixed to the signature of Taylor, are th ese words, “ security on the part of Freeman; ” on the left hand side of the signature, are these words, “Attest, 1 and 3, P. H. Walker,” and the residence of the plaintiff is stated to be “McDonough” county. The averment of performance by plaintiff is the same as in counts 1, 2, 3, and 4; breach, nonpayment of all the instalments.
    6. Sets out agreement as in count 5, according to its tenor and effect. The variances in the body of the instrument, do Hot occur as in count 5, but they do in the signatures and atiestation. The averment of performance is like all of the preceding counts. Breach, non-payment of the instalment of $130, due October 15,1850.
    7. Sets out agreement according to its tenor and effect; and in describing the broom brush tobe delivered, the agreement as set out, uses these words “ certain lot of broom brush,” and the same variances in signature of Freeman; the words prefixed to Taylor’s name, and in the attestation, occur as in counts 5 and 6. The averment of performance is like the preceding counts. Breach, non-payment of the $65, due December 1,1850.
    8. Sets out the agreement as in counts 5, 6, and 7. The variances are the same as in count 7. Averment of performance, same as in all of the other counts. Breach, non-payment of the $105, due March 1, 1851.
    Defendant Freeman filed 6 pleas, September 15, 1851.
    1. Non est factum, upon which an issue in fact was joined.

      2. Payment. Replication. Similiter.

    3. That plaintiff did not deliver all the brush, but negligently, &c., wasted a part, whereby consideration has failed to the amount of $300. To this plaintiff replied with a common traverse; upon which issue was joined.
    4. That 5 tons of the brush were not merchantable, but damaged, by which consideration has failed to extent of $300. Replication traversing plea, upon which an issue in fact was formed.
    5. That plaintiff fraudulently represented he had raised 30 acres of brush; that he only raised 10 acres, whereby consideration has failed to the extent of $300. Replication denies fraud, and issue is taken.

      6. Nil debet, issue joined thereon.
    September 15, 1851. Taylor demurred to the declaration; joinder; September 16, demurrer overruled.
    September 16, Taylor filed 8 pleas.
    1. Non est factum, and issue joined thereon.

      2. Craves oyer, and avers that after the time for delivery of the brush named in the contract, to wit, on, &c., he notified and requested the plaintiff to bring suit immediately against defendant, &c.; that the contract was made in Schuyler; that the defendants both resided there; that the Circuit Court of said county held its first term after said notice, on the 4th Monday in April, 1851; that said court had jurisdiction to render judgment on said contract, &c.; that plaintiff neglected to sue, &c.; that Freeman, from the time of said notice until May 15,1851, had lands and tenements, goods and chattels, of value sufficient to satisfy whatever judgments recorded at the term aforesaid against said defendant, &c.; that after May, said Freeman became, and has ever since remained insolvent, &e.
    3. Craves oyer, and avers that after the period of time fixed in said contract for the delivery of said broom brush, to wit, on, &c., defendant notified and requested plaintiff to institute, and prosecute forthwith a suit against said defendant, &c.; that one term of the Circuit Court of Schuyler hath intervened between the time of giving said notice, &c., and the present term of this court; that plaintiff neglected to sue at the first term, &c.
    4. Craves oyer, and avers that plaintiff did not deliver all of his brush on or before March 1,1851; that a large quantity, to wit, ten tons, remained upon the farm of the plaintiff, which he failed to deliver, &c.; that after the day fixed for the delivery, to wit, May 15,1851, the said plaintiff delivered, and the defendant Freeman received the said residue of broom brush, without the knowledge or consent of the said defendant Taylor, and without any consultation with him, &c.
    5. Craves oyer, and avers that after the making of the contract, and before the time for the delivery of the brush had arrived, to wit, on, &c., at, &c.; the said defendant Freeman, without the knowledge or consent of the defendant, waived the delivery of the brush on the day mentioned in said contract, and by an agreement with said plaintiff, extended the period for the delivery, &c. for a longer space of time, to wit, until May 15, 1851, which agreement was made, &c., without consulting with the defendant, &c.
    6. Payment. Replication and issue.
    7. Craves oyer, and avers that plaintiff did not deliver all of the brush, within the time stipulated, but a large quantity was delivered by plaintiff, and received by Freeman long after the said first day of March, to wit, on, &c., without the knowledge or consent of the defendant, &c.
    8. Craves oyer, and avers that, after the 1st, 2d, and 3d instalments became due, and before any part thereof had been paid by Freeman, to wit, on, &c., the said plaintiff, without informing the defendant of the default of Freeman, but fraudulently concealing said default, delivered to Freeman the whole of the brush, &c.
    Plaintiff demurred to Taylor’s pleas, 2, 3, 4, 5, 7, and 8, which demurrer was overruled as to said pleas, 4, 5, 7, and 8, and sustained as to pleas 2 and 3. Plaintiff then replied, traversing pleas 4, 5,7, and 8, and issues in fact were formed thereon. Cause tied, upon the issues of fact aforesaid, by a jury. Verdict rendered for plaintiffs, for $150 damages against both defendants.
    Taylor moved for a new trial; overruled, and judgment on the verdict, for $150 damages, and costs. Taylor prayed an appeal.
    Bill of exceptions filed, which shows that the- agreement hereinbefore set forth was offered in evidence by plantiff. Objected to for vacancies ; overruled, and exception.

      Testimony of plaintiff's witnesses.

    James Blazier: Resides near plaintiff; knew his brush crop of 1850; saw crop after it was cut; plaintiff used reasonable care, skill, and diligence, in cultivating, cutting, curing, and preparing the crop for market; that his crop was between five and six tons; details the negotiations between plaintiff and Freeman, in August, 1850; that, during winter following, plaintiff delivered all the brash to Freeman, except a small lot of about 300 pounds, which was not delivered until last of April, 1851; this last lot was damaged; that he had a conversation with Freeman, March 3, 1851, relative to a contract between witness and Freeman, when reference was made to plaintiff’s contract, and Freeman said, “ I have got the old man’s brush, and have not got yours,” and expressed himself satisfied with the brush he got from plaintiff; that, though some of it was damaged, it would work itself.— (These declarations objected to by Taylor ; overruled ; exception.) That, when this conversation took place, plaintiff had not been to Rushville for two weeks; that he never heard Taylor say any thing about the contract; that Freeman was a broom manufacturer, resided at Rushville, and was a good judge of broom brush. Plaintiff’s counsel then asked the witness this question: “ Whether the non-delivery of 300 pounds of broom brush, upon a contract to deliver an entire crop, would make any difference, or be of much importance to the manufacturer.” Witness replied: “ It would not.” (Question and answer objected to; overruled, and exception.) On cross-examination, witness said, he did not know when plaintiff commenced delivering the brush, nor when last load was delivered ; that he could not swear plaintiff delivered all of his crop, but he supposed so ; that he knew plaintiff and son were hauling brash to Freeman during the winter; that he was son-in-law of plaintiff’s ; and that he and Freeman had a difficulty about a brush contract.
    William Hastie,keeper of town-scales of Rushville: Weighed eight or nine loads of brush, delivered by plaintiff to Freeman; two loads, delivered January 21,1851, weighing one ton; two loads, January 27, weighing one ton; balance of the nine loads, delivered in February; total amount delivered by plaintiff to Freeman, and weighed by witness, 6,725 pounds; that Freeman told witness, that plaintiff had delivered some brush not weighed. Cross-examination: Freeman did not say how much was delivered without weighing; nor did witness remember when the conversation took place.

      Defendant's evidence.

    William L. Wilson: That he had worked in Freeman’s shop since November, 1850; that plaintiff commenced delivering his brush in January, 1851; that plaintiff’s son brought one load just before Freeman. went to New Orleans; that Freeman left for New Orleans March 15, 1851, and returned on 14th or 15th April; that Collins Ireland, one of Freeman’s hands, returned from the river March 5, 1851; that, on the morning of that day, plaintiff’s son left Rushville for his father’s farm; that, on the day before, he had brought down one load of brush ; that another load, of 300 pounds, was delivered after Freeman returned from New Orleans. Cross-examination: One reason why he knew plaintiff’s son had brought one load after March 1st was, because he knew the difference between spring and winter weather; and that plaintiff was to let Freeman have pork; witness was to have some of it; he was particularly interested in getting the pork; and the talk about the pork was just before Freeman went to New Orleans.
    Collins Ireland: Plaintiff commenced delivering his brash between January 1 and 27,1851; four loads delivered between those days; left for the river January 27, returned March 5; a small lot of brush delivered in April, 1851, in a damaged condition; that the brush delivered by plaintiff to Freeman was damaged; that it had been damaged in the field and mow; that it was not scraped clean, and the points were injured by the machine; that the brush, for these reasons, was not merchantable ; that the four loads first delivered were damaged, and Freeman told plaintiff so; plaintiff replied, that all of the bad brush had been delivered, that the balance would be better; that all of the rest of the brush was like the first lot delivered; he saw no improvement; that good brush was worth $60 per ton, the brush delivered by plaintiff was not worth more than $40 per ton. Cross-examination: He could tell the way in which brush was damaged on inspection; he was a broom-maker, and had been several years; that when brash was injured in the field, it became spotted, but would generally bleach out; when injured' in the mow, it was occasioned by being put up damp or wet; that it would sweat and soften the stalks, and in this way become materially injured; that this lot of brush was injured in both ways, and could not be worked without considerable loss.

      Plaintiff’s instructions.

    1. That, if they believe from the evidence that the plaintiff substantially performed the agreement on his- part, to be performed according to the terms and under the conditions and restrictions therein contained, he is entitled to recover the amount agreed upon in said contract, less the amount paid thereon, against the said defendant.
    3. That if the jury believe, from the evidence, that the plaintiff delivered to the defendant a quantity of broom brush within the time specified for the delivery thereof, and that the defendant, on inspection, received and accepted the same, the said plaintiff has a right to recover therefor in this action.
    These instructions, numbered 1 and 3, were given by the court, and defendant Taylor excepted to the same.

      Errors assigned. Declaration insufficient, and plaintiff’s demurrer to Taylor’s pleas ought to have been sustained to it. Sustaining plaintiff’s demurrer to Taylor’s pleas 2 and 3. Admitting the written agreement in evidence. Admitting declaration of Freeman. Permitting witness, James Blazier, to give his opinion, &c. Giving plaintiff instructions, Nos. 1 and 3. Overruling motion for new trial. Verdict insufficient. Rendering judgment for damages only.
    The cause was heard before Minshall, Judge, at September term, 1851, of the Schuyler Circuit Court.
    R. S. Blackwell, for appellant.
    Warren & Edmunds, for appellee.
   Treat, C. J.

First, Did the court err in sustaining the demurrer to the second and third pleas of Taylor l These pleas raise the question, whether the creditor is bound to make use of active diligence against the principal debtor, on the mere request of the surety. The 97th chapter of the Revised Statutes has no application to the contract in question. That statute only relates to bonds, bills, and notes, for the direct payment of money or property; and does not extend to contracts for the performance of other acts, or to agreements containing mutual covenants. It embraces only such obligations as are transferable by indorsement, so as to vest the legal interest in the assignee. Unless, therefore, the pleas are good at common law, they must be held insufficient. It is clear that the third plea presents no defence to the action. It does not show that the surety has been damnified, by the failure of the creditor to prosecute the principal. Indeed, it was conceded on the argument, that this plea was bad, unless the contract should be held to be within the statute. There is no rule of. the common law, nor principle of equity, that will enable a surety to relieve himself from liability, by a simple request to the creditor to proceed against the principal. The English cases uniformly agree, that mere passiveness on the part of the creditor will neither exonerate the surety at law nor in equity. And, independent of decisions based upon particular statutes, such is decidedly the weight of authority in this country. The notion, that the surety can compel the creditor to active diligence against the principal, at the hazard of releasing the surety, is expressly repudiated in the following cases: Bellows v. Lovell, 5 Pick. 307; Leavitt v. Savage, 16 Maine, 72; Bull v. Allen, 19 Conn. 101; Executors of Baker v. Marshall, 16 Vt. 522; Davis v. Huggins, 3 N. Hamp. 231; Croughton v. Duvall, 3 Call, 69; Manning v. Shotwell, 2 South. 585; Cass v. Howard, 8 Blackf. 190; Executors of Dennis v. Rider, 2 McLean, 451. It was decided in Pain v. Rickard, 13 Johns. 174, that, if the creditor is requested by the surety to collect the debt from the principal, who is then solvent, and the creditor neglects to proceed against the principal until he becomes insolvent, the surety is thereby discharged, and may avail himself of the discharge at law. The same doctrine was afterwards asserted, in the case of Cope v. Smith, 8 Serg. & R. 110. But the courts in New York and Pennsylvania, although they still adhere to the rule established in Pain v. Packard, are evidently not satisfied with the reasons upon which it was founded. In Kenrick v. Borst, 4 Hill, 650, Cowen, Justice, said: “ What principle such a defence should ever have been found to stand upon, in any court, it is difficult to see. It introduces a new term into the creditor’s contract. It came into this court without precedent; was after-wards repudiated even by the Court of Chancery, as it always has been both at law and equity, in England; but was restored on a tie in the Court of Errors, turned by the casting vote of a layman. I do not deny that the error has become inveterate; though it has never been treated with much favor.” See also Gardner v. Ferree, 15 Serg. & R. 28; and Erie Bank v. Gibson, 1 Watts, 143.

There is no sound reason for permitting a surety to discharge himself, by requesting the creditor to proceed against the principal. The undertaking of a surety is absolute in its terms; and not conditional, as is the engagement of an indorser. He is directly, and not contingently liable to the creditor. The latter has a direct remedy against both principal and surety. If the obligation is joint and several, he has an undoubted right to proceed against the surety alone. It is no part of his contract, that he will take active measures to collect the debt. The duty to act rests with the debtors. All that the surety has the right to require of the creditor is, that no affirmative act shall be done, that will operate to his prejudice; such as an extension of the time of payment by a binding arrangement with the principal, or the giving up of other securities for the payment of the same debt. The law affords the surety a sufficient protection. He can pay the debt the moment it falls due, which is doing no more than he agreed to do; and immediately resort to the principal for reimbursement. Upon payment of the debt, he may, in equity, be subrogated to all the rights of the creditor. He may also, in the first instance, go into equity to compel the specific performance of the contract by the principal. On this subject, it is said, in Story’s Equity Jurisprudence, in § 639 : “ If the debt is due, and the creditor does not choose to call upon the debtor for payment, the surety may come into equity by a bill against the creditor and the debtor, and compel the latter to make payment of the debt, so as to exonerate the surety from his responsibility. In cases of this sort, there is not, however, any duty of active diligence incumbent on the creditor. It is for the surety to move in the matter.” The pleas presented no valid defence to the action, and were properly adjudged insufficient by the Circuit Court.

Second. The opinion of the witness upon the question, whether the non-delivery of a portion of the brush, was a matter of any importance to Freeman, was improperly received. The true question was, had the plaintiff complied with his contract to deliver the whole of the brush, and not whether Freeman was injured by his failure to deliver a part. On the principle of the admission of this testimony, if it may be called such, a party may excuse himself from performing his engagement altogether, if he can show that the other party would not derive any actual benefit from its performance. Such is not the law. Contracts are not to be thus mutilated by the mere opinions of witnesses. Parties have the right to make their own agreements ; and it is the duty of the courts to enforce them, and not to encourage their violation.

Third. Did the court err in giving the first and third instructions asked by the plaintiff? The first instruction was erroneous, and well calculated to mislead the jury. It should have been more definite, in reference to the performance of the contract. It gave the jury too wide a discretion in this particular. The contract was made to be performed in full; and it is not to be enforced in fragments. A party has the right to insist upon a strict fulfilment of his contract. An agreement to deliver a thousand bushels of wheat, would not be legally performed by the delivery of nine hundred bushels only. The contract in this case, to deliver an “ entire lot of broom brush,” would not be properly complied with by the delivery of nine tenths of the crop. And yet, in either case, a jury very likely would, under the generality of this instruction, come to the conclusion that the contract had been sufficiently executed. The law, it is true, does not regard trifles ; and, it may be, that, on this principle, the failure of the plaintiff to deliver an inconsiderable quantity of the brush, would not affect his right to recover upon the contract. So in the case of the contract to deliver wheat, a trivial deficiency in quantity would not be regarded. But the case should have been put to the jury on this ground; and not upon the ground, whether there had been, in the opinion of the jury, a substantial performance of the contract.

The third instruction was clearly erroneous. The plaintiff declared on the contract, and alleged full performance thereof on his part. He rested his right to recover solely on the ground, that he was in no default. There was no count upon a quantum meruit. In order to recover, therefore, he was bound to prove that he had fully performed the contract. In an action against Freeman, he might, perhaps, under the common counts, be entitied to recover upon a part performance. Whether he could recover against Taylor, except upon a complete performance, would present a more serious question.

The judgment is reversed, and the cause remanded.

Judgment reversed.


author: Catón, J.

text:
    Josiah Nesbitt et al., Appellants, v. Theodore Digby et al., Appellees.
    APPEAL PROM PIKE.
    Where debtors, who are insolvent and pressed for payment, convey all then' real and personal estate to a brother of one of them, (after having recently before secured certain creditors by mortgage,) in consideration of five several promissory notes, payable in two, three, four, five, and six years from date, the consideration in the deed for the real estate being only one dollar, with an understanding, that the assignee, at his discretion, shall apply the proceeds of the whole estate towards liquidating the demands against the assignors; such a transaction will be condemned as a legal fraud.
    A debtor in failing circumstances is only allowed to place his property beyond the reach of his creditors, by making a general assignment of all his property for the benefit of his creditors, by devoting it fairly to the payment of his debts, and not with a view to his own advantage, by forcing his creditors to release their claims for less than the amount due.
    This was a bill in Chancery filed in the Pike Circuit Court, by Nesbitt and Charless, the appellants, for the purpose of reaching certain effects which had been fraudulently assigned by some of the appellees, with a design to defraud and defeat creditors.
    The bill states, that in the year 1847 Theodore Digby and Sunderland G. Sears were the owners of a large amount of real estate and personal property in the county of Pike and State of Illinois, and were carrying on the business of merchandizing under the style of Digby & Sears; that during said year and before that time they became indebted to sundry persons in the cities of New York and St. Louis in a large amount for goods, to the amount $4,000 or $5,000; that this indebtedness was maturing in the fall and winter of 1847; that Joseph Charless and William Nesbitt, two of the creditors of said firm of Digby & Sears, held demands against them to the amount of $500; that judgments were rendered on these demands in the Pike Circuit Court, and executions were issued thereon, which were returned “ no,property found,” prior to the filing of the bill in this cause; that sometime about the month of December, 1847, (prior to the rendition of said judgments,) said Digby & Sears, being indebted at the time to complainants and others, as before alleged, to the amount of $4,000 or $5,000, part of which was due and the balance maturing, and upon a portion of which said firm had already been pressed for payment, resorted to a fraudulent shift to postpone and evade the payment of their debts; that on the 10th day of December, 1847, said Theodore Digby, for the consideration of one dollar, as expressed in the deed, conveyed to Ms brother, James Digby, a large amount of real estate particularly described in the bill, alleged to be of the value of $4,000; that on the same day Digby & Sears conveyed to said James Digby, for the consideration of one dollar, as expressed in the deed, another portion of real estate (described in the bill); that about the same time said Digby & Sears gave out that they had sold their stock of goods to said James Digby; that shortly after said Theodore Digby executed a chattel-mortgage on all his household property to one Sarah Peabody; that said conveyances left said Digby & Sears without visible or tangible property subject to execution; that thexobject of these conveyances was to render said Digby & Sears law-proof, and to compel their creditors to settle with them on their own terms, which were fifty cents to the dollar; that portions of said real estate were, at the time of the execution of said deeds, under mortgage to one Richard Hays for the sum of $300; that another portion of said real estate was under mortgage to one James G. Goodrich for about $1,200. Bill charges that the conveyances to James Digby were fraudulent, and intended to hinder and delay creditors; makes the two Digbys, Sears, Hays, and Goodrich, parties; waives answers under oath; charges that the Goodrich mortgage has been paid, but is kept on foot unsatisfied for fraudulent purposes; prays an account of the sums due upon said mortgages; that the conveyances to James Digby be set aside and the property subjected to the judgments aforesaid.
    Answers were filed by James and Theodore Digby. Said answers admit indebtedness of Digby & Sears, as charged in the bill; admit indebtedness to complainant, as charged; return of execution, as alleged, and insolvency of Digby & Sears; admit that conveyances were made to James Digby, as charged; that the nominal consideration was one dollar, but that the real consideration was that the property so conveyed was mortgaged to a large amount, $2,700, which James Digby assumed to pay; that he also executed to said Digby & Sears his five promissory notes for $6,299 in consideration of said conveyances and of the stock of goods; supposed that the real estate was not worth more than the incumbrances upon it; but agreed that if when it was sold it should produce more, the balance should be applied to pay the debts of Digby & Sears, and that he was to hold a lien on the real estate if he overpaid his notes; that he has paid off his notes in liquidating the indebtedness of Digby & Sears, and $400, for which he claims a lien; submits to a sale of the real estate subject to his lien; admits that about the time of the execution of said deeds to James Digby they were pressed for payment of a debt to Bennett & Weld; that Theodore Digby has continued to reside in the house situated on the premises conveyed to James Digby, and to do business for him as a clerk; admits execution of chattel-mortgage to Peabody, and that Digby & Sears were without visible property subject to execution ; admits payment of $600 on the Goodrich mortgage; says the balance is unpaid. Answers make an exhibit of the liabilities and resources of the firm of Digby & Sears, showing total liabilities of the firm, $7,298, resources $4,800, besides real estate. The notes of James Digby constitute the larger portion of these resources. An account current is also exhibited between Digby & Sears and James Digby, showing five notes due from said James Digby to said firm, amounting to $6,295. No. 1, $599, due two years after date; No. 2, $1,000, due three years after date; No. 3, $1,200, due four years after date; No. 4, $1,500, due five years after date; No. 5, $2,000, due six years after date; also credits to James Digby in sundry ways for the amount of the four notes last described.
    Amended bill charges that five promissory notes, one, two, three, four, five, and six years’ time, were taken as the consideration of the conveyances to James Digby and of the stock of goods; charges that this transaction was colorable, intended to hinder and delay creditors.
    Answers of Digby admit that the notes were taken as alleged, but deny fraud.
    Replication was filed to these answers. The bill was taken .as confessed against Sears. Hays answered, setting up his mortgage. Goodrich answered, admitting payment of $600 on '.his mortgage, but says' the balance is unpaid.
    Replication was filed to these answers.

      Evidence.

    Goodrich swears that his mortgage was paid in the years 1848,1849, and 1850, by James Digby, and the mortgage transferred to him.
    N. Hart swears that he holds a note on James Digby for '$1,200, (with a credit of $200,) dated December 10th, 1847, ■due four years after date, as collateral security for a debt of $1,050 due him by Digby & Sears.
    O. Bennet proves that in the fall or winter of 1847 he held a ■demand on Digby & Sears, for about $200, in the hands of Grimshaw, for collection; that he afterwards took fifty cents on the dollar for it, paid by Theodore Digby in the spring of 1848 ; that he was induced to take this under the representations of Theodore Digby as to his circumstances. Said Theodore ■offered him James Digby’s notes, on three or four years’ time, for whole amount; said that others would settle with him on ■these terms.
    ■ S. R. Gray proves that James and Theodore Digby are brothers; that James was worth about $800 in real estate at the time of the conveyances to him, two or three horses, and some other personal property.
    Angle proves the same.
    O. M. Hatch had a conversation with Goodrich some time in the spring of 1849 about his mortgage on Digby & Sears. Goodrich informed him that this mortgage had been satisfied by some arrangement with Digby. This- conversation was at the instance of Grimshaw, who held claims against Digby & Sears for collection, and the object of the inquiry was explained to Goodrich.
    Cause heard at the March term of the court, 1851, and the bill dismissed, Minshall, Judge, presiding.
    Complainants appealed. Agreement that either of complainants might assign error. Nesbitt now assigns for error: 1st, That the court erred in dismissing the bill; 2d, That the court erred in not decreeing relief.
    J. Grimshaw and M. Hay, for appellants.
    R. S. Blackwell, for appellees.
   Catón, J.

This looks very much like a fraudulent transaction. Before and at the time of the sale of this property to James Digby, the validity of which is now questioned, Digby & Sears were indebted to various persons in the sum of about $10,000. Of this, about $2,700, due to several persons in various amounts, had been, a few days before the sale, secured by several mortgages upon the real estate sold to James Digby. In December, 1846, Theodore Digby and Digby & Sears convey to James Digby all of their real and personal estate, including the real estate mentioned in the bill, and two stocks of goods, with which the firm had been doing business. What was the value of the real estate the testimony does not inform us; but it appears that the stocks of goods were worth about $3,500. The deeds of conveyance for the real estate, express the consideration of one dollar. The answers show, that at the time of the transfer of the real and personal estate, and in consideration thereof, James Digby executed to Digby & Sears, his five several promissory notes, for the aggregate sum of $6,299, payable in two, three, four, five, and six' years from date. The answers further show, that it was agreed between the parties, at the time, and as a part of the original transaction, that James Digby should pay these notes by liquidating that amount of the indebtedness of Digby & Sears, and that he should sell the real estate, and with the proceeds pay off the incumbrances upon it; and if there should be any surplus, to apply that also in the payment of the debts of the firm. At the time of the transfer the creditors were pressing their demands against the firm.

These are the leading features of the transaction, about which there is no dispute, and it admits of but one construction. The purpose to be subserved by it, is hardly attempted to be disguised. That was to place all of the property of the debtors beyond the reach of their creditors. The debtors were insolvent; their creditors importuning for their pay. They transfer all their property, both real and personal, to a brother of one of the debtors, upon such terms as leaves it out of their power to pay one dollar of their debts, at least before the expiration of two years, and leaving nothing within the reach of the creditors with which they may seek satisfaction. The real estate is expressed to be conveyed for a nominal consideration, but, as the defendants say in their answer, with the secret trust to pay the debts of the grantors. It is not even pretended that this was an absolute" sale of the property. If this transaction had expressed upon its face, what the parties now say it really was, an assignment in trust to pay the debts of the assignors, it could not stand the test of legal scrutiny for a moment. As an assignment in trust to pay creditors, it is void, because it fails to fix the rights of the creditors, or to secure them. After the payment of the second debt, every thing is left to the discretion of the trustee. He may pay whom he pleases, and when he pleases. He is at liberty to coerce the other creditors into such a compromise as he may choose to dictate. He is not bound to distribute the fund pro raid among all the creditors, or to pay it to any specified creditors. With the funds in his hands beyond the reach of legal process, he might say to any creditor, unless you will take fifty cents on the dollar and release your claim, you shall get nothing, for enough will be found before the expiration of six years, who will be glad to do so, and thus absorb all the fund. No matter what may have been the real motives of the parties, this feature of the transaction is, of itself, sufficient to condemn it, as a legal fraud. Put the most favorable construction upon it possible, and the true features of the transaction are covered by a very flimsy veil. A debtor in failing circumstances is only allowed to place his property beyond the reach of his creditors, by making a general assignment of all his property, when he does so for the benefit of the creditors, by devoting it fairly to the payment of his debts, and not with a view to his own advantage, by forcing them to release their claims for less than the amount due.

When, in December, 1847, Digby & Sears found their debts pressing upon them, it was their duty so to arrange their affairs as to meet their liabilities, with the means at their disposal. How did they discharge this duty,? Instead of disposing of their property, so as to enable them to meet their accruing liabilities, they sold it all to a confidential friend, on a credit of from two to six years. Without any security, they took the notes of the purchaser for between $6,000 and $7,000, when he was entirely irresponsible for that amount; for the evidence shows that he was not worth more than $1,000 or $1,200 at that time. Now, would any sane man, acting in good faith, with a design to meet his pressing liabilities, adopt such a course ? How could he expect to meet liabilities now due, when he put all his means beyond his own control for at least two years, and most of them for a much longer time ? The bare statement of the proposition is sufficient to show the bad faith of the transaction. This assignment was not made by the assignors with the design to devote their property fully and fairly to the payment of then-debts, but with the design to force their creditors into a compromise, for then own advantage. This was not a sale in the ordinary course of business, on a credit. On the contrary, it was an entire disposal of all the debtors’ property, a breaking-up of then business, and virtually, a dissolution of their partnership. It was not a sale in continuation of their business, made in an honest straggle to retrieve their fortunes; but it was an abandonment of their business, and an evident relinquishment of all hope of future success, and evincing only a hope of a future compromise with their creditors. Here was no mistake of judgment in an honest endeavor to meet their liabilities, but a transaction clearly evincing a deliberate design to set their creditors at defiance.

Nor can James Digby claim the character of a bond fide purchaser, without notice of the intended fraud. The answers show, that he was cognizant of the nature and extent of the indebtedness of Digby & Sears, and indeed, of all the circumstances which show the transaction to be fraudulent. He was aware, and participated in the design of the debtors to place the property beyond the reach of the creditors. Indeed, he was the willing instrument, in the hands of the debtors, to force the creditors into satisfactory terms. As against the creditors, we must hold this transfer to him to be void.

The complainants, by their bill, only seek to subject the real estate, which was transferred to James Digby, to the payment of their judgments, after satisfying the amount justly due upon the mortgages. This record shows, that the Goodrich mortgage has been paid. Goodrich swears that James Digby .paid him the amount of his claim upon that mortgage, and took an assignment thereof to himself. James Digby says, in his answer, that pursuant to the agreement which he had made with Digby & Sears, at the time of the assignment, he had paid to Goodrich ¡§600 upon the mortgage, and that the balance remains unpaid; but says nothing about the assignment. If he made the payment to Goodrich under that agreement, he made it with the funds of Digby and Sears ; and there is no pretence that the payment was not made for them, and on their account. If the Goodrich mortgage has been paid, it has been paid by them through their agent; and, as Goodrich says it has been paid, we must treat it as satisfied. So long as James Digby was acting as the agent of the debtors in paying the mortgage, he could not continue it as a subsisting lien upon the premises, by taking an assignment of it to himself.

For aught that appears upon this record, the other mortgages appear to be valid and subsisting liens upon the premises described in them; but as it is probable that the premises left unincumbered by the satisfaction of the Goodrich mortgage, will be sufficient to satisfy the amount due the complainants, it may not be necessary to inquire how much is due upon the other mortgages.

The decree of the Circuit Court must be reversed, and the suit remanded, with instructions to that court to enter a decree declaring the conveyances from Digby & Sears to James Digby to be fraudulent and void, as to the creditors of Digby & Sears; also declaring that the mortgage to Goodrich has been paid and satisfied, and directing that so much of the real estate mentioned in the bill, as may be necessary to pay the amount due the complainants, be sold for that purpose, subject to bond fide incumbrances existing upon the premises, and that the defendants pay the costs. Decree reversed.


text:
    Adam Shafer, Plaintiff in Error, v. John Davis, Defendant in Error.
    ERROR TO BROWN.
    Courts of equity will relieve parties against mistakes of fact, but not against mere mistakes of law.
    Adam Shafer brought suit in the Brown Circuit Court against John Davis, for trespass in breaking his close and taking and carrying away rails, damaging grass, &c., at the September term, 1849.
    Said John Davis filed his bill on the chancery side of said court, for an injunction to stay proceeding on said suit at law, setting out, that on the 10th day of April, 1848, said Davis was the owner in fee of S. E., S. E. Sec. 16, 1 S. 4 W., the premises upon which the trespass, in said suit at law, is charged to have been committed ; that he, Davis, sold said premises to one Gillis, by contract in writing, and reserved the fences around a certain improvement thereon, with right to remove the same; that Gillis sold to Shafer, and he, Davis, at the request of Gillis and Shafer, to save the expense of making two deeds, conveyed the said premises by deed to Shafer, and did not reserve said rails ; that he did not reserve the rails in the deed, because he did not know the effect of said deed without reservation; that Shafer knew of the said reservation of the rails, and bought subject to it; that Shafer and Gillis combined to defraud said Davis, in procuring deed from him to said Shafer without reservation.
    Prays injunction, &c. Injunction granted. Defendant moved the court to dissolve said injunction. Motion was overruled.

      Answers. The said Adam Shafer filed answers and amended answers. Admits the fee in Davis, as stated in the bill; the sale to Gillis, as stated in the bill, by agreement in writing; and after he purchased said premises, he was informed that said rails were reserved by Davis, but denies that the said reservation was contained in the said agreement of sale, or in any other writing; admits said Gillis sold to said Shafer, and delivered to him the said written agreement, and by parol authorized him to obtain a deed of said premises from said Davis ; that said Davis, at the request of Shafer and Gillis, executed a deed of said premises to Shafer, without reservation. Denies all combinations (and fraud) to defraud Davis, or to procure said deed; but says they applied to said Davis in good faith, and asked a deed under and by virtue of said written agreement, and requested the deed to be made to Shafer instead of to Gillis, and not for the purpose of defrauding Davis. Denies that, at the time of the sale, he knew the rails had been reserved, and belonged to Davis, and he had right to enter and take them. Denies that he knew that said Gillis had no right to the said rails. But states, on the contrary, that he did know said Gillis had a claim and right to said rails, and charges the fact to be, that before the sale from Gillis to Shafer, he, Shafer, applied to Davis, to know if said land, rails, and fences thereon, belonged to said Gillis, and said Davis informed him, Shafer, that Gillis was the owner of the land, rails, and fences thereon; that he, Davis, had sold the said rails to Gillis, and Gillis was to pay him $27 therefor. Denies that he knew, at said sale of Gillis to him, that Davis was the lawful owner of said rails, but charges that he did not know, at that or any other time thereafter, that said Davis was the owner of said rails by virtue of said written agreement or otherwise, but believed always, after Davis informed him of Gillis’s interest in said premises, rails, and fences, that said rails had been sold by said Davis to said Gillis, and said Gillis had good right to sell the same ; and, at the time said deed was made to him, he did not know that said rails were reserved in the original sale; that before and up to time of the deed of Davis to Shafer, said Gillis was, both at law and in equity, the owner of said rails and fences ; and the legal and equitable title thereto passed to said Shafer, both by the contract and consent of said Davis and Gillis. Denies all fraud.
    Defendant moved to dissolve the injunction. Motion overruled.
    No replication is filed.
    Cause heard upon bill, answers, exhibits, and oral testimony, before Minshall, J.
    Decree making injunction perpetual, enjoining and restraining said Shafer, his agents, attorneys, and others, from proceeding in said action of trespass, or any other action or suit against said Davis, involving the title of said rails, and decreeing that said Shafer pay the costs, and awards execution therefor.
    Williams & Lawrence and Warren & Edmonds, for plaintiff in error.
    R. S. Blackwell, for defendant in error.
   Treat, C. J.

This decree cannot be sustained. The bill discloses no case for the interference of a court of equity. It does not call for a discovery of facts, to aid the complainant in his defence to the action at law. Nor does it seek to reform the conveyance. It does not allege that any mistake was made in the writing of the instrument. The complainant does not pretend that he executed the deed under the impression that it contained a reservation of the fence. On the contrary, he expressly states that he did not require the reservation to be inserted, because he considered it unnecessary. He sets up no mistake of fact, but simply a mistake of law. This ignorance of his legal rights will not avail him. He charges a fraudulent combination between the defendant and Gillis, to procure a conveyance of the land without any reservation of the fence. But he does not allege that he was induced by them representations or artifices to execute the deed in question. Such a general charge of fraud cannot be regarded. The only pretence for sustaining the bill, is, that the complainant was mistaken as to the legal effect of the conveyance. Courts of equity will, relieve parties against mistakes of fact, but not against mere mistakes of law.

The decree must be reversed, and the bill dismissed.

Decree reversed.