text:
    James Stephenson, Appellant, v. James Thompson, Appellee.
    APPEAL EROM CASS.
    A verbal agreement to purchase land for the benefit of another is void under the Statute of Erauds, and cannot be enforced against a purchaser who, in the absence of fraud, has paid for the land with his own money and taken a conveyance in his own name. '
    A resulting trust is not founded on a contract. The whole or a part of the consideration-money must be paid to raise such a trust in favor of a party.
    Where an agreement existed in parol between A and B that A should pay for certain lands, and on being reimbursed by B therefor A should convey them to B, and the same lands were sold at sheriff’s sale and bought by A with his own money, and were conveyed to him by the sheriff: —■

      Hdd, that the sheriff had no authority to tabe a mortgage either from the purchaser at the sale or his assignee; and that the contract between A and B was simply a contract for a purchase of the premises, and did not possess any attribute of a mortgage.
    Where a sheriff’s deed recites the fact that the certificate of purchase was assigned, it will be held to be prima facie evidence of that fact.
    An acknowledgment is.not any part of a sheriff’s deed. Bike all other deeds, except those executed by married women, a sheriff’s deed, when its execution is proved, is valid without any acknowledgment.
    The decree in this case was entered by Minshall, Judge, at the May term, 1851, of the Cass Circuit Court. The complainant in the court below took this appeal and assigned errors. The facts of the case are set out in the opinion of the court.
    M. McConnel, for appellant.
    R. S. Blackwell, for appellee.
   Trumbull, J.

Stephenson filed his bill in chancery to the October term, 1849, of the Circuit Court of Cass county, alleging, in substance, that one Lindsay, in 1841, was the owner of a lot of land in Beardstown, in said county; that Ormsby, Hite, & Co. during the same year purchased said lot at a sheriff’s sale on an execution issued upon a judgment in their favor and against Lindsay; that no deed was ever made to Ormsby, Hite, & Co., but they took a certificate of purchase, and were willing that Lindsay should redeem the premises after the term prescribed by law had expired, on the payment of their bid for the same and interest; that Lindsay, in 1846, the property still being in his possession, procured the defendant, Thompson, to purchase the lot for him, and become responsible to Ormsby, Hite, & Co. for the purchase-money; and thereupon Ormsby, Hite, & Co. assigned to Thompson the certificate of purchase of the lot, and the sheriff of Cass county, at the request of Lindsay, made a deed to Thompson; that no money was paid at the time of the transfer of the certificate, but Ormsby, Hite, & Co. sold the property on a credit and took the notes of Thompson, payable at a future day; that it was agreed, between Lindsay and Thompson, that the conveyance to the latter should be for the use of the former, and that the money advanced or to be advanced by Thompson should be a loan to Lindsay on the security of the lot; that Thompson should take possession of the premises and receive the rents until reimbursed his advances, or until Lindsay should otherwise pay him said sum; and that a written contract was made and signed by the parties to the foregoing effect: That Lindsay immediately advanced to Thompson part of the money to pay Ormsby, Hite, & Co., and. Thompson immediately took possession of the premises, on which were valuable buildings, yielding a large rent, which was received by Thompson from that time forth; that shortly after making the aforesaid contract, Lindsay departed this life, and the written contract was lost, or had been taken from the papers of Lindsay ; that Lindsay, during his life, made various payments to Thompson, including rents, and that after Lindsay’s death, Thompson, still having possession, continued to receive the rents until the sums paid by Lindsay and the rents have more than reimbursed him for all his advances; that Stephenson, the complainant, in 1846, and before the decease of Lindsay, recovered a judgment against him, and that on an execution issued upon said judgment the premises in question were sold, and purchased by Stephenson, who received a sheriff’s deed for the same in 1848. The prayer of the bill is, that Thompson be decreed to account for the rents and moneys received; and, in case they are not equal to his advances, that the complainant be permitted to redeem the lot, as Lindsay would have had a right to do under the contract; or if the receipts by Thompson exceed his advances, that he should account for the excess. By an amended bill it is alleged that Thompson never obtained a legal, bona fide title to the lot, but that it was put into his possession with the intent to defraud the creditors of Lindsay, of whom complainant was one, and with an understanding that Thompson should hold the property publicly as his own, but secretly fot Lindsay, and that he still fraudulently retains the possession against the complainant; that whatever rights Thompson acquired to the property he took in trust and for the use of Lindsay, and that it was verbally agreed between them that Thompson should hold the property as trustee for Lindsay; that a written contract, showing said secret trust, was drawn up between the parties, but which, owing to the sudden death of Lindsay and the fraud of Thompson, was never signed; and that said agreement is legally and equitably binding upon Thompson, notwithstanding it is not evidenced by any writing signed by the parties. The amended bill prays to have the title to the lot determined and quieted in the complainant, as against the claims of Thompson, and for general relief.

Thompson, in his answer, admits that Lindsay owned the property in 1841, and that it was sold, and purchased by Ormsby, Hite, & Co., as alleged in the bill; that he subsequently purchased the premises and took an assignment of the certificate of purchase from Ormsby, Hite, & Co., and on the 14th of April, 1846, obtained a deed for the property from the sheriff of Cass county; denies that Lindsay at any time, either before or' after or at the time of the execution of the deed, paid any money or other valuable thing for or on account of the premises, or that he advanced any part of the consideration-money to Ormsby, Hite, & Co., or that there was any contract by which Lindsay was to have the property upon the receipt of a certain amount of rents or money, and all other charges of a similar character; admits that Lindsay applied to him in 1845, stating that Ormsby, Hite, & Co. were then in possession of the premises, were willing that he, Lindsay, or any one he could find, should have the property upon paying them the amount due on their claim ; and proposed, as he, Lindsay, could do nothing himself, that Thompson should take the property on the terms proposed, but denies that any conditions were proposed by Lindsay that the property should enure to his benefit in any contingency, or that he holds the same in trust, or in any manner for the use of Lindsay ; denies all charges of fraud and collusion made in the bill, but admits that he made frequent declarations of intended benefits and favors to Lindsay, which, without explanation, might give color to the claims set up by complainant; but so far from intending that such expressions should be understood as an agreement, he declined executing a written contract which was once presented to him by Lindsay when intoxicated, and which he did not read, but understood to be some stipulation in reference to the property in question; denies the existence of any written agreement between himself and Lindsay at any time, or any verbal contract in reference to the premises, and sets up the provisions of the Statute of Frauds and Perjuries in reference to any parol contract or declarations which he may have admitted or which may be proved against him.

The evidence shows that Ormsby, Hite, & Co. took possession of the property in controversy in 1843, after the expiration of the time within which a redemption was allowed by law, and retained possession of the same till the sale to Thompson, in 1845; that Thompson purchased the property, at the instance of Lindsay, for the sum of $554.63, of which two hundred dollars were paid down, and for the balance Thompson gave his note, payable in five months, with ten per cent, interest, which he subsequently paid ; that, at the time he bought, he took an assignment from Ormsby, Hite, & Co. of their certificate of purchase, and subsequently obtained a deed from the sheriff; that no contract in writing ever existed between Thompson and Lindsay in reference to the land, but there was a parol understanding between them, that Thompson should convey the premises to Lindsay, on being reimbursed his advances by Lindsay ; that Lindsay paid no part of the purchase-money for the lot, but that the whole amount was paid to Ormsby, Hite, & Co., by Thompson; and that the complainant obtained judgment against Lindsay, as alleged in his bill, purchased the premises at a sheriff’s sale, on an ' execution issued upon said judgment for the sum of ten dollars, and subsequently obtained a sheriff’s deed therefor.

Upon this state of facts, it is very clear that. Lindsay had no such interest in the premises as could be asserted in a court of equity, and the complainant can claim no greater rights than Lindsay possessed, unless the property was held by Thompson fraudulently, as respects the rights of creditors, of which there is not a shadow of evidence in the record.

The property was purchased by Thompson in his own name, and paid for with his own money. He was not guilty of any bad faith in taking the title to himself, but he received it with the knowledge and consent óf Lindsay. The most that can be said is, that he agreed by parol to let Lindsay have the property, oh being reimbursed his advances; but how does this differ from any other case, where one person agrees by parol to convey real estate to another, on the payment of a stipulated price, which would clearly be a case directly within the statute, which declares that no action shall be brought upon any contract for the sale of lands, unless the same be in writing, and signed by the party to be charged therewith ? A verbal agreement to purchase land for the benefit of another is void, under the statute of frauds, and cannot be enforced. against a purchaser who, in the absence of fraud, has paid for the land with his own money, and taken a conveyance in his own name. Fox v. Heffner, 1 Watts & Sergeant, 372; Robertson v. Robertson, 9 Watts, 32; Bartlett v. Pickersgill, 1 Eden, 515. The same principle has also been twice decided at the present, term of this court. Penny v. McHenry, and Tams v. Alexander.

These cases also settle the principle, that no trust can arise in favor of Lindsay upon the facts of this case. A resulting trust is not founded on a contract; and clearly Lindsay could have had no pretence of claim to the property, except by virtue of his parol agreement with Thompson. Lindsay never paid any part of the consideration-money to Ormsby, Hite, & Co., which could alone raise a resulting trust in his favor. He must have been in a position to take the contract made by Thompson off of his hands, or else he could not claim to be substituted to his place. He cannot prove by parol a new contract between himself and Thompson, different from the one on which the latter got the property, which would be the effect of allowing him to take the property when Thompson had received his advances out of the rents.

The idea that Thompson, after fairly purchasing the lot in his own name, and paying for the same with his own money, should reimburse himself for his advances out of the rents of the property, and then be compelled to convey it to a person who paid no part of the purchase-money, is preposterous.

It has, however, been insisted, that Thompson took the deed to himself as a security for the advances he made for Lindsay, and that the conveyance is to be treated as a mortgage. The money paid Ormsby, Hite, & Co. for the land, did not come from Lindsay, but from Thompson; so, also, the deed was not from Lindsay, but from the sheriff, whose duty it was to make an absolute conveyance of all the debtor’s interest in the premises. The sheriff had no authority to take a mortgage, either from the purchaser at the sale or his assignee. The transaction between Lindsay and Thompson was simply a contract for a purchase, of the premises by the former from the latter, and did not possess one attribute of a mortgage. Fox v. Heffner, 1 Watts & Sergeant, 372; Wright v. McNeely, 11 Illinois, 241.

Two objections have been taken to Thompson’s title. First, that there is no evidence of an assignment of the certificate of purchase from Ormsby, Hite, & Co. to him; and, secondly, that the sheriff’s deed is insufficient to pass the title, for the reason that it is not properly acknowledged, the acknowledgment having been taken by a probate justice of the peace, instead of a clerk of some court of record, as required by § 29, chap. 24, Rev. Stat.

It is a sufficient answer to the first objection, that the statement of Dummer, which was made evidence by consent of parties, shows that the certificate of purchase was assigned; but if this were not so, the deed from the sheriff recites the fact, which, of itself, is primd facie evidence of the assignment, See Wiley v. Bean, 1 Gilman, 302.

To the second objection, it may be answered that, admitting the sheriff’s deed to be insufficient to vest Thompson with the legal title to the premises, the facts of the case clearly show that he is equitably entitled to them; and it would be strange, indeed, if, in a court of equity, he could be divested of real estate, of which he was the equitable owner, merely because he was not vested with a title clothed in all the forms of law. An acknowledgment is not, however, any part of a sheriff’s deed. Like all other deeds, except those executed by married women, the deed of a sheriff when its execution is proved, is valid without any acknowledgment. Unless duly acknowledged, it would not be admissible in evidence without proof of its execution, and, as the statute formerly was, it could not have been recorded without an acknowledgment; but, when its execution was proved, as we are bound to presume was done upon the hearing in this dase, it was wholly immaterial whether it had ever been acknowledged or not.

Decree affirmed, with costs. Decree 'affirmed.


source: Caselaw Access Project

author: Treat, C. J.

license: Public Domain

text:
    William Davis, Plaintiff in Error, v. Charles Easley et al., Defendants in Error.
    ERROR TO SCHUYLER.
    A party may maintain replevin for boards, made from trees wrongfully cut on his land. -The owner of property wrongfully taken may pursue it, so long as it can be identified, whatever alteration in form it may assume; unless it is annexed to, or made a part of, some other thing, which is the principal, as timber converted into a house.
    In an action of replevin, to recover a quantity of boards, made from trees growing in the open and uninclosed woods of the plaintiff, a part of the same tract of land being inclosed and occupied by him, to sustain his action, the plaintiff introduced a deed to himself of the land, and several receipts, showing that he had paid taxes on the land, which were excluded from the jury: — ■

      Held, that the evidence was prinx&.faeie sufficient to authorize the plaintiff to maintain the action. .
    This cause was heard before Minshall, Judge, at the August term, 1850, of the Schuyler Circuit Court.

      The opinion of the court contains a full statement of the case.
    R. S. Blackwell, for the plaintiff in error.
    Browning and Bushnell, for defendants in error.
    The law presumes every person to be in the legal seizin and possession of land to which he has a complete and perfect title.
    And this seizin and possession is coextensive with his right, and continues until he is ousted by an actual entry into and possession of the land by another, under a claim of right. Angell on Lim. 400, sect. 5.
    Every presumption, therefore, is to be made in favor of the true owner, and a bare possession is evidence of no more than the fact of a present occupation by right; for the law will never presume a wrong. Angell on Lim. 404, sect. 6.
    These presumptions give rise to the doctrine of adverse possession. A disseisin of" the true owner is necessary to uphold it. Actual violence is not requisite; but the adverse possessor must make his entry and take possession under such circumstances, as to repel the presumption of an entry and holding bv consent of the true owner, and in subordination to his title. In other words, an adverse possession is an “ actual, visible, and exclusive appropriation of land, commenced and continued under a claim of right, either an openly avowed claim, or under a constructive claim, arising from the acts and circumstances attending the appropriation, to hold the land against him who was seized.” Angell on Lim. 410, sect. 11.
    It is the occupation, with an intent to claim against the true owner, which renders the possession adverse. It is not possession alone, but the fact that it is accompanied with the claim of a fee-simple title, which, by construction of law, is deemed prima facie evidence of such an estate. Angell on Lim. 413, sect. 11.
    It is a question of intention, and the jury are to determine the quo animo. Angell on Lim. 413, sect. 11; Id. 415, sect. 12.
    The possession must be taken under a claim of right; but it need not be a valid title; an entry under color of title is sufficient. Angell on. Lim. 435; 5 Grattan’s Rep. 110; Northop v. Wright, 7 Hill, 488; Bank v. Smyers, 2 Strobhart, 28, 29; Gourdin v. Davis, 2 Richardson’s Rep. 488; Tillinghast’s Adams, 471.
    An entry under a deed, from one having no title, is evidence of a seizin in fee, by disseisin. Bradstreet v. Huntington, 5 Pet. 433; Boothby v. Hathaway, 20 Maine Rep. 251; French v. Rollins, 21 Maine Rep. 372; Higbee v. Rice, 5 Mass. Rep. 344.
    One who enters into the possession of a part of a tract of land, under a deed or other written evidence of title, is adjudged to be in possession of the whole tract described in his deed. Angell on Lim. 428, sect. 21 and 22; Proprietors &c. v. Laboree, 2 Greenl. 275; Noyes v. Dyer, 25 Maine Rep. 468; Crowell v. Beebe, 10 Verm. 33; Bailey v. Carlton, 12 N. H. Rep. 9; Thomas v. Harrow, 4 Bibb. 563; Clark v. Courtney, 5 Pet. 353; Ellicott v. Pearl, 10 Id. 442; Jackson v. Wheat, 18 Johns. 40; Same v. Newton, 18 Id. 360, 361; Kennebeck v. Springer, 4 Mass. 416; Grafton v. Grafton, 8 S. & M. 90.
    The fact that the premises in question was woodland, and adjoined the farm of the plaintiff, gives him a legal possession of the land; particularly as he used it for firewood. Angell on Lim. 433.
    Again, where a person purchases land adjoining his residence, he is, in contemplation of law, in possession of both tracts. Hinton v. Fox, 3 Litt. Rep. 383; Ewing v. Burnett, 1 McLean, 268; S. C. 11 Pet. 41.
    The tax receipts were admissible to show the extent of Davis’s claim. Angell on Lim. 425; 25 Maine Rep. 473.
    The true owner being disseized of the freehold, can maintain no action for any injury to his inheritance. Bigelow v. Jones, 10 Peck’s Rep. 161.
    In all cases, possession under a claim of the fee is primd facie evidence of title. Jackson v. Porter, 1 Paine, 466, 467; Mason v. Parke, 4 Id. 532; Ricard v. Williams, 7 Wheat. 59; Steele v. Logan, 3 A. K. Marsh. 394.
    The deed from Louderback to Davis is color of title. It purports to convey the fee-simple; expresses a consideration; covenants against all adverse titles; is valid upon its face, and duly recorded, and his entry under it was hostile, and in his own right. He took possession under a claim of title; he has continued that possession for thirteen years; he has made valuable improvements; it is a part of his plantation; he cuts his firewood off the land; he has paid all the taxes during his occupancy, and always claimed title in fee. At all events, his title is sufficient against a mere trespasser. Jackson v. Harder, 4 Johns. 202.

      Second. Again the plaintiff has “ claim and color of title made in good faith ” within the meaning of the act of March 2, 1839. Laws 1839, p. 266, sect. 1 and 2. The case of Irving v. Brownell, 11 Ill. 402, has not given satisfaction to the bar.
    Under the law of the possession of the defendant must be under claim of title ; but it is not necessary for the possessor to have any written evidence of title. Taylor v. Buckner, 2 A. K. Marsh. 18; McCall v. Nealy, 3 Watts’s R. 72.
    The law of January 17th, 1835, required “ possession by actual residence ” under a “ connected title.” Laws 1835, p. 42, sect. 1.
    The act of March 2,1839, requires — First, Actual possession, seven years; Second, Under claim and color of a paper title, made in good faith ; Third, And payment of taxes, seven years.
    The apparent intention of the legislature, seems to have been to make the law of 1839 more effectual in protecting the bond fide settler, than the previous laws. And the court, in Irving v. Brownell, have frustrated this intention. In fact, the law of 1839, according to that decision, is a dead letter upon the statute-book. “ A title which, tested by itself, would appear to be good,” would, when accompanied with seven years’ possession, be a protection to the settler under the law of 1835. For what object, then, was the law of 1839 enacted ? It was senseless and unmeaning, if the court have given it the true construction. As we have seen, the law of 1827, required a possession under a claim of title, written evidence of the claim, and actual residence are unnecessary. The law of 1835, requires “ actual residence ” under a 11 connected title ” and by the true rule of construction; this chain of title must beprimd facie good, that is, when tested by itself, and not with the paramount title. If the latter test was required, the law would be useless. Now the law of 1839, was really intended to protect a still weaker class of titles, than those contemplated by the act of 1835. Instead of a “ title ” it required merely “ claim and color of title.” In the place of “ actual residence ” upon the land, it requires “ actual possession,” which may be by in closure, cultivation, residence, or any of the various acts, which, according to the principles of the common law, are necessary to constitute a possession of land. And besides “ claim and color of title,” and “ actual possession,” the law of 1839 requires this additional fact to concur; the payment of “ all taxes legally assessed ” on the land for seven successive years. The legislature seem to have acted upon the presumption, that if one entered upon land under claim and color of title, and disseized the true owner, continued his possession for seven years, and paid all of the taxes assessed upon the land during that period, this afforded conclusive evidence of an abandonment by the owner of the paramount title.
    In their construction of this statute, the court seem to have been misled by the words “ good faith.” This means nothing more than that the occupant should not act maid fide by purchasing of one who he knew had no title, or with actual notice of a paramount title in another, or with notice that his own title was defective. In other words he must be honest. He must believe his deed to be valid, and that it conveys to him a good title to the land, although it may turn out that another has a better title. McCall v. Nealy, 3 Watts, 72; Moody v. Fleming, 4 Geo. R. 119; Den v. Hunt, 1 Spencer, 493; Jackson v. Thomas, 16 Johns. 301; Bank v. Smyers, 2 Strobh. 28 and 29; Angell on Lim. 435; Tillinghast’s Adams, 471.
    He must enter under a claim of right. His claim must be colorable, that is, give him an apparent right, and he must not act maid fide. This is all that the law requires.
    This statute ought to be construed liberally, it is emphatically a statute of repose. Conyers v. Kenans, 4 Geo. 317 and 318; Fain v. Garthright, 5 Geo. 12.
   Treat, C. J.

This was an action of replevin brought by Davis against Charles and Thomas Easley, for the recovery of a quantity of boards. The boards were found by the sheriff in the possession of the defendants, and delivered to the plaintiff. The defendants pleaded two pleas: First. Non cepit. Second. That the boards were the property of the defendants, and not the property of the plaintiff.

It appeared in evidence, on the trial, that, in February, 1849, two cherry-trees were standing and growing in the open and uninclosed woods, on a tract of land in Schuyler county, known and designated as one hundred acres off the east side of section twenty-one, in township two north, of range one west of the fourth principal meridian ; that several days afterwards the trees were felled and cut up into saw-stocks, by some person unknown; that "the defendants hauled the stocks to a saw-mill, and had them sawed into boards; that they removed the boards to their residence, from whence they were taken by the sheriff. The plaintiff then proved, by a witness, that there was a cabin and from one to four acres in cultivation on the tract of land in 1836 ; that the witness entered upon the tract in the spring of 1837, as the tenant of the plaintiff, and remained in possession one year, during which time he cleared and fenced eight acres of the land ; that, in 1838, the plaintiff built a cooper’s shop on the tract, which he has used ever since ; that, during the same year, the plaintiff set out an orchard on the tract of from three to five acres, which is about two hundred yards from his house, situate on an adjoining tract belonging to him ; that at the time of the cutting down of the trees, and the hauling away of the logs, there were eighteen or twenty acres of the tract inclosed and under cultivation, besides the orchard; that the plaintiff, on all occasions, claimed to be the owner of the whole tract, and the improvements thereon had been in his possession, or that of his tenants, ever since 1837; and he had cut his firewood on the tract during all of that time. The plaintiff read in evidence a deed from Louderback and wife to himself, for the one hundred acres of land, bearing date the 19th of April, 1836, and acknowy ledged and recorded during the same month. The deed recited a consideration of $750, and contained covenants of seizin and general warranty. He also read in evidence several receipts of the collector, showing that he had paid all taxes on the land from the year 1840 to 1848, both inclusive. This was all of the evidence in the case. At the instance of the defendants, the court afterwards excluded the deed and tax receipts from the consideration of the jury. A verdict was returned in favor of the defendants; and they had judgment for costs, and the return of the property replevied.

If the plaintiff was the owner of the trees, there can be no doubt of his right to maintain replevin for the boards. The property in the trees was not changed by manufacturing them into lumber. The title still continued in the former owner. The property was still capable of being identified. The owner of property, wrongfully taken, may pursue it, so long as it can be identified. Whatever alteration in form it may assume, the owner may reclaim it, in its new shape, if he can establish the identity of the original materials; as where cloth is made into a garment, trees into rails or boards, or iron into bars. The wrongful.-taker cannot by any act of his own acquire title against the owner, unless he destroys the identity of the thing, or annexes it to, and makes it a part of some other thing, which is the principal ; as the conversion of grain into malt, coin into a cup, or timber into a house. 2 Blackstone’s Comm. 404; 2 Kent’s Comm. 363; Snyder v. Vaux, 2 Rawle, 423; Betts v. Lee, 5 Johnson, 348; Brown v. Sax, 7 Cowen, 95.

Did the court err in excluding the evidence introduced by the plaintiff? A party in the actual possession of land, may maintain trespass against a stranger, for any disturbance of his possession. The law presumes that he is rightfully in possession, until the contrary appears. And in actions of ejectment, and for injuries to the inheritance, the possession of a tract of land by a party, claiming to be the owner in fee, is primd facie evidence of his ownership and seizin of the inheritance, and throws upon his adversary the burden of rebutting the presumption thus raised. Rickard v. Williams, 7 Wheaton, 59; Steele’s Heirs v. Logan, 3 A. K. Marshall, 394; Jackson v. Porter, Paine’s Rep. 457; Day v. Alverson, 9 Wendell, 223; Mason v. Park, 3 Scammon, 532. In Sawyer v. Newland, 9 Vermont, 383, it was decided that an entry by a party upon land, under a conveyance, and cutting and selling timber from time to time, and exercising acts of ownership over the land, although no part of it was inclosed, was a sufficient possession to maintain an action of trespass against a stranger. The court said: “ To constitute possession, no doubt, there must be an exercise of acts of ownership on the land itself. It is not necessary that the land should be inclosed by a fence, as is sometimes understood.” Again: Cutting wood and timber from year to year, disclaiming any ownership, or perhaps without any claim of title, might be considered as nothing more than trespass; whereas, the same acts on a lot of land marked out, or the boundaries of which were designated by a survey or deed recorded, or by known or acknowledged metes and bounds, and under a claim of title, would be treated as unequivocal acts of possession.” In Penn v. Preston, 2 Rawle, I^it was held that the possession of a farm drew to it Jflie the woodland belonging thereto, though not md0secl; and ts?a|the party in possession of the farm could matóainvtr^pass^linst a wrongdoer, for destroying timber in ti^woodmha. It was said by the court: “ In this case, beyondra <|U|ígi jjno dsession was such as to comprehend the timbeiydhough not jngfrosed. I hold, that there is no usage of the country, noTTeSl^CS' the common law, nor any reason requiring a man to inclose his timber land; and, that for any possible purpose that can be named, the woods belonging to a farm are as well protected by the law without a fence as with one.” In Macldn v. Geortner, 14 Wendell, 239, proof that the premises were used by the plaintiff as a wood-lot, for the purposes of" fuel and fencing, was held to be sufficient evidence of actual possession, to sustain an action of trespass for cutting timber thereon. The court remarked: “ The plaintiff had all the possession which can be had of a wood-lot, reserved and used exclusively for fuel, fencing, &e. A constant and uninterrupted use for those purposes, is undoubtedly sufficient to constitute actual possession, and to enable the plaintiff" to maintain trespass for any encroachment upon it.” A party who enters into land under a conveyance, though from a person having no title, is presumed to enter according to the description in the deed ; and his occupation of a part, claiming the whole, is construed as a possession of the entire tract; and such occupation will enure as an adverse possession of the whole, and, if continued for the length of time prescribed by the statute of limitations, will bar the entry of him who has the legal title. The possession is considered as coextensive with the claim of title ; and the entry as a disseisin of the true owner to the same extent. Lessee of Clarke v. Courtner, 5 Peters, 318; Noyes v. Dyer, 25 Maine, 468; Crowell v. Bebee, 10 Vermont, 33; Bailey v. Carleton, 12 New Hampshire, 9; Hinton v. Fox, 3 Littell, 380; Ellicott v. Pearl, 10 Peters, 412; Bank v. Smeyers, 2 Strobh. 24. The acts and declarations of a person, while in the occupation of a tract of land, may be given in evidence to explain the character and extent of his claim and possession. Jackson v. McCall, 10 Johnson, 377; Moore v. Moore, 21 Maine, 350; Shumway v. Holbrook, 1 Pickering, 114; Rickard v. Williams, 7 Wheaton, 59.

In this case, the evidence was primd facie sufficient to authorize the plaintiff to maintain the action. He entered on the land under a conveyance in fee, more than twelve years before the injury complained of was committed. During all of that time, he had the uninterrupted and conclusive possession of a portion of the tract, and claimed.title to and exercised acts of dominion over the whole. He continue'd to extend his improvements, and constantly cut firewood on the part uninclosed. There was no conflicting claim to any part of the tract. He paid the taxes assessed on the entire tract, and exercised all the acts of ownership over it, that are ordinarily exercised by proprietors of timber land. The woodland adjoined his improvements, and formed a part of his plantation. His occupation and acts were all consistent with the title under which he entered. He had all the possession of the part on which the trees were cut, that can well be had of woodland, set apart and used for purposes of fuel and timber. It has been shown, that an inclosure was not necessary to give him the actual possession. And, in the absence of a fence, what other possession can be had of timber land, than the constant and uninterrupted use of it, under a claim of title, as in this case. Under these circumstances, there can be no reasonable doubt of the right of the plaintiff to maintain his action against a stranger. It is a fair presumption, from the evidence, that the defendants were mere trespassers on the land. Failing to show any interest in themselves, or any license from a person having title, they are to be regarded as mere intruders, entering without right or authority, and acquiring no rights on the land, as against the party in possession. The deed was clearly admissible, to show the nature and extent of the plaintiff’s possession. It defined the boundaries of the land, and showed the kind of estate claimed. The tax receipts were also admissible. The payment of taxes indicated that the plaintiff claimed title to the whole tract. It likewise tended to explain the character and extent of his possession.

The judgment is reversed, and the cause remanded.

Judgment reversed.


author:
      Caton, J.
      Treat, C. J.

text:
    The Alton Marine and Fire Insurance Company, Appellants, v. Nathaniel Buckmaster et al., Appellees.
    APPEAL EROM MADISON.
    On a "bill to quiet title, where the complainant relies upon the answer of the defendant to justify a decree, the answer should be so explicit as to show a case within the allegations of the bill.
    A court of law is the proper tribunal for the adjudication of legal titles, and it is only in extraordinary cases, that a court of chancery will assume the trial of such titles. Bills filed for the purpose of quieting one legal title by the suppression of another, are received with great caution.
    A bill to quiet title is only entertained by a court of equity, because the party is not in a position to force the holder of, or one claiming to defend under, the adverse title, into a court of law to contest its validity.
    This was a bill filed by the Insurance Company against Buckmaster, Godfrey, Keating, and Krum, to quiet the title to the lots of land described in the opinion of the court. The opinion gives a full statement of the case.
    At March term, 1850, of the Madison Circuit Court, Underwood, Judge, presiding, the bill was dismissed at the cost of the complainants, who prayed for and obtained this appeal.
    Davis & Edwards, for appellants.
    W. Martin, for appellees.
   Caton, J.

This bill shows, that the complainants, on the 24th of March, 1838, took a mortgage from Holderman, on lots five and six, and two thirds of lot seven, in block twenty-five, in Alton, which was duly acknowledged and recorded. That at the February term, 1838, of the Madison Circuit Court, Krum, as executor of Emerson, deceased, recovered a judgment against Holderman for $533.48 and costs; that Krum, at the time the mortgage was executed, was the attorney and legal adviser of the complainants and as such examined the title to these lots for them, which he found to be unincumbered except by his judgment; that he assured the complainants, that he had sufficient collateral security for the payment of his judgment, and that it should never be enforced against • these lots; and that, relying upon these representations, the complainants took the mortgage; that at the April term, 1846, the complainants filed a bill to foreclose the mortgage, to which Krum was made a party, and in which it was charged, that any lien or incumbrance which Krum might have upon the lots in question, by virtue of his judgment, was subsequent and subject to the prior title of the complainants ; and prayed, among other things, that Krum, as executor, might be foreclosed, and barred of and from all equity of redemption, and other right which he might have in the mortgaged premises; that Krum was served with process, and was present at the hearing of that suit, and that such proceedings were had therein; that Krum was, by the decree of the court, foreclosed, and barred of all equity of redemption, and right and interest in the premises; that under that decree of foreclosure, the premises were sold; the complainants became the purchaser and received a deed, which was dated on the 7th of May, 1844.

The bill further shows, that at the August term of the Madi- ■ son Circuit Court, 1840, a judgment was rendered against said lot seven, for the taxes of 1839, upon which that lot was sold to one Marsh, who assigned the tax certificate to the complainants, who took tax-deed for the lot in 1845 ; that at the same time a similar judgment was rendered against the said lot five, which was sold to one Prickett, "who took a deed therefor, in 1843, who on the 9th of May, 1844, conveyed the same lot to the complainants, the deed for which was duly recorded.

The bill further shows, that subsequent to the decree of foreclosure, Krum removed from the State, and that Keating was duly appointed administrator de bonis non of the estate of Emerson, and that the defendants, Godfrey and Buckmaster, pretend that they have become the owners of the said judgment by some purchase or transfer from Keating; that they caused an execution to be issued upon the said judgment, upon which the lots in question were sold to Buckmaster, under which sale he claims title as against the complainants.

The bill further shows, that the complainants have contracted to sell to one Beall the west half of lot five, and has agreed to give a good title thereto, and that a portion of the purchase-money is still unpaid, and that Beall refuses to complete the purchase, alleging that the property belongs to Buckmaster; and that the said claim of title by Buckmaster is injurious to the complainant by preventing the sale of the lots for their full value.

The prayer of the bill is, that Buckmaster may be decreed to convey all his title to the complainants and for general relief.

Keating answers, and admits his appointment as administrator, as charged in the bill and states, that as such he assigned the judgment to Godfrey for a consideration ; denies all knowledge of the mortgage till after said assignment, and denies knowledge of the other matters charged in the bill.

Buckmaster, by his answer and amended answer, admits the judgment, which, he says, was assigned to Godfrey by Keating, and by Godfrey to himself; that he caused an execution to be issued on the judgment, which was levied on the property in question, and under which it was sold, and purchased by himself for a full consideration, for which a deed was executed to him by the sheriff. He admits the mortgage and foreclosure, but denies, that by the decree, his .judgment lost its priority ; he denies the allegations, of the bill as to the representations of Krum, or that he held collateral security for the payment of the judgment; he denies that the property, or any part thereof was legally sold for taxes.

Godfrey made no answer. A replication was filed to the answers of Keating and Buckmaster, and proofs were taken.

The proofs and exhibit show a judgment for the taxes for the year 1839 against lots five and seven, in block twenty-five, and a precept to the sheriff for the sale of the same; also a tax-deed from the sheriff to Prickett, for lot five in block twenty-five, and a deed from him to the complainant, also a tax-deed from the sheriff to complainant, for lot seven in block twenty-five.

On the hearing, the Circuit Court dismissed the bill, and the complainants bring the suit here by appeal.

Neither the record nor decree in the suit of foreclosure, appears in this record; and all we know of what they contained, we glean from the imperfect pleadings of this suit. This bill states that it was averred in the bill of foreclosure, in substance, “that, any claim, lien, or incumbrance, that the said Krum might have upon the said lots of land, under and by virtue of the said judgment, as executor of the last will and testament of the said William S. Emerson, deceased, was subsequent to, and subject to the prior title of your orators.” As to, the decree in that case, this bill avers that “ at the April term thereof, (of the Circuit Court,) 1841, the said John M. Krum, executor as above mentioned, was, by a decree of this court, foreclosed, and debarred of all equity of redemption, and right and interest in and to the lots of land above mentioned.”

Buckmaster, in his answer, admits “that the complainants foreclosed their mortgage against John A. Holderman, as alleged, and that John M. Krum, as executor of William S. Emerson, was made a defendant in said suit, and that a decree was entered against Holderman, as averred; but this respondent denies that the said decree extinguished the said judgment in favor of the said John M. Krum, or that the said judgment lost its priority over the said mortgage of the complainants, by reason of the said decree.” This is the most that can be made of the answer, in support of the allegations of the bill, as averring the contents and effect of the record, in the suit of foreclosure ; and I am of opinion that it does not show a case, in which the court Jiad a right to decree, or in which it did decree, that the prior judgment of Krum should be postponed to the mortgage. Even the bill in this case, shows that the former bill described a subsequent judgment, and not one prior to the mortgage ; and it was Krum’s rights, under such subsequent judgment, which were barred and foreclosed by that decree. Any one, on inspecting that record as it is described in this bill, might well conclude, that it was some subsequent judgment, and not the prior judgment, which was designed to be concluded by that decree. But admitting that the averments of this bill show, that the prior judgment was described in the former bill, and was, by that decree, postponed to the mortgage, still that is not admitted by the answer of Buckmaster, and no proof was taken to sustain that averment. The answer only admits that the mortgage was foreclosed against Holderman, as alleged, and it expressly denies that Krum’s rights under that judgment were cut off.

I am of opinion, therefore, that this record does not show such a decree in the former suit, as bars the rights of Buck-master, acquired under the judgment which he purchased of Keating.

The remaining question is in relation to the tax-title, relied*' upon by the complainant. In order to understand that properly, we must refer to the character and objects of this bill. The ostensible end of this suit is to quiet the complainant’s title, and remove the cloud which the title of Buckmaster cast upon it. Buckmaster’s title appears prima facie to be good; and, as we think, it is unimpeached by the title acquired by the complainant under the mortgage. Shall we inquire into the tax-titles set up by the' complainant in opposition to that of Buckmaster ? A court of law is the proper tribunal for the adjudication of legal titles, and it is only in extraordinary cases, that a court of chancery will assume the trial of such titles. Even where a legal title is necessarily involved in a suit in chancery, if it presents any difficulty, it is very frequently sent to a court of law for trial. And bills filed for the purpose of quieting one legal title by the suppression of another, have ever been received by courts of equity with great caution. Trustees v. Gray, 1 Littell, 147. “ The holder of a legal title, not in actual possession, cannot, as a general rule, maintain a bill to quiet his title, and to compel a relinquishment of adverse claims.” Harris v. Smith, 2 Dana, 10; Nevin v. Belknap, 2 Johns. 537.

Thé reason why the party out of possession cannot maintain such a bill is, that he may bring an action at law, to test his title, which ordinarily a party in possession cannot do. Such a bill is only entertained by a court of equity, because the party is not in a position to force the holder of, or one claiming to defend under, the adverse title, into a court of law to contest its validity; and this, as a general rule, is the test to which a court of equity will look to determine whether the necessity of the case requires its interference. By the application of this rule to the case before us, we see that we are not called upon to determine which of these legal titles is'the best.

The complainant has the power of bringing that question before a court of law; and, when that is the case, as that court is better qualified than a court of equity to try those legal titles, they should be turned over to that jurisdiction. The bill shows that the complainant has sold a part of the premises in controversy, and that the purchaser refuses to pay the purchase-money, in consequence of the adverse title held by Buckmaster. Upon a suit brought for a recovery of the purchase-money agreed to be paid, the purchaser would be compelled to defend himself, by setting up the outstanding title of Buckmaster; and in this way, the validity of that legal title may properly be presented for the consideration of a court of law. For this reason, therefore, without expressing any opinion upon the validity of the tax-titles, we think, that no decree-should be entered in the Court of Chancery, which shall determine the relative merits of the titles of the parties.

Upon these principles, this bill contains within itself the most conclusive reason why no decree should be entered in this suit, founded upon the decree in the suit foreclosing the mortgage.

It is insisted, by the complainant, that the decree in the foreclosure suit secures to the title obtained under it a priority over the judgment. If that be so, then the complainant is already secured in all that he seeks by the present bill. If the Insurance Company is not satisfied with one decree securing that right, how is its condition improved by two decrees to the same effect ? It may have the same pretext for filing another bill, for the purpose of obtaining, a third decree of a similar character; and so on, without limit. If the company has such a decree as it represents, that decree needs no other support, and furnishes ,a most satisfactory reason, why the relief now sought should be denied.

The decree of the Circuit Court is affirmed.

Treat, C. J.

In my opinion, the decree of foreclosure should, in a collateral proceeding, be held to have extinguished the lien of the judgment on the mortgaged premises. In other respects I agree with the majority of the court.

Decree affirmed.


text:
    The County of Sangamon, Plaintiff in Error, v. James M. Brown and Mahala Preston, Defendants in Error.
    ERROR TO SANGAMON.
    So much of the 92d chapter of the Revised Statutes, entitled “ Right of Way,” as relates to State and county roads, is superseded by the 38th section of the 93d chapter of the Revised Statutes, entitled “ Roads; ” the latter being a repeal of the former statute, so far as relates to the matter of public roads.
    The right of appeal in such case is limited to the owner of the land through which the road runs.
    An appeal may be taken to the Circuit from the decision of the County Court, and the appellant may inquire into the regularity and validity of the proceedings relating to the establishment of the road; and if the County Court, in directing the road to be opened, has acted without authority of law, the Circuit Court should reverse the order, and leave the County Court to commence proceedings anew.
    If the County Court has acquired jurisdiction of the matter, and has proceeded regularly, then the only question to be reviewed in the Circuit Court is as to the amount of damages the appellant will sustain by the construction of the road across his land; whether the public interests demand the road, and whether the fiscal condition of the county will justify the payment of the damages awarded, is for the County Court to decide.
    After the damages have been assessed in the Circuit Court, the County Court may vacate the order directing the road to be made, if the latter court shall consider the damages allowed are greater than the interests of the county will authorize to be paid.
    No appeal is given to the owner of land, until after the County Court directs the road to bo opened, nor can land be appropriated for the purposes of a road, until such an order has been made.
    An appeal docs not lie from a decision of the County Court, refusing to open and construct a road.
    Tenants in common may join in an appeal, but parties having different interests cannot do so ; they must prosecute separate appeals.
    A county is liable for costs, where an appeal is taken from the order of the County Court in relation to damages for opening roads, if the appeal is successfully prosecuted ; and a material increase in the assessment of damages, is to be deemed a successful prosecution of the appeal.

      In an appeal, the owner of the land takes the affirmative, on the trial of the appeal, He has to prove title to the land, and show that he will sustain damage by the construction of the road. The county is the defendant in these proceedings.
    The owner of land through which a road is to be made, must object to its location across his land in the first instance, or he will be concluded from insisting upon damages. Such party must claim damages at the proper time, so that, if the county considers the damages too great, the project may be abandoned, or the road located elsewhere.
    The damages assessed must be paid by the county before the road can be constructed. The only way to avoid the payment of the damages assessed, is to vacate the order directing the road to be opened.
    The statute expressly makes a county liable for costs, where a judgment is recovered against her.
    This cause was tried before Davis, Judge, at the November term, 1851, of the Sangamon Circuit Court.
    The facts are stated in the opinion of the court.
    S. T. Logan, for the county.
    W. J. Ferguson, for defendants in error.
   Treat, C. J.

It appears, from the record in' this case, that Brown, Conner, and Preston, severally claimed damages on account of the location of a road over their lands. The damages of Brown were assessed at $3 ; and those of Conner and Preston at 62 1-2 cents each. Upon the report of the appraisers, the County Court made an order that the road should be opened, as soon as the damages should be paid by the applicants for the road. From that order, and the assessment of damages, Brown and Preston joined in an appeal to the Circuit Court. In that court, the matter was submitted to a jury as one cause, who found that Brown would sustain twenty dollars damages by the opening of the road, and that Preston would not sustain any damages. The court rendered a judgment against the county, and in favor of Brown, for twenty dollars, and the costs of the proceeding. The county sued out a writ of error.

It is insisted, that the appeal should have been taken directly from the decision of the appraisers, under the provisions of the 92d chapter of the Revised Statutes. That chapter is a transcript of an act, passed on the 28th of February, 1833. It provides that, in the location of a public road, canal, or other public work, over the land of a person who objects thereto, the superintendent of the work may apply to a justice of the peace, who shall appoint three householders to assess the damages that such owner will sustain ; and the householders are required to make two written reports of the assessment, and deliver one of them to the superintendent, and the other to the justice ; and either party may appeal from the assessment to the Circuit Court, as from the judgments of justices in ordinary cases.

The 38th section of the 93d chapter of the Revised Statutes, which is a transcript of the 30th section of an “ act concerning public roads,” approved the 20th of February, 1841, provides that, in the location of a State or county road over the land of a person who objects thereto, the commissioner, superintendent, or supervisor of the road, may apply to a justice of the peace, who shall appoint three householders to assess the damages that such owner may sustain ; and the householders are required to make two written reports of their assessment, and deliver one to the officer having charge of the road, and the other to the owner of the land; “ which award or assessment of damages shall be laid before the County Commissioners’ Court for consideration, who shall examine the matter; and should they decide the amount of damages is not unreasonable, or more than should be given, and that the opening and improving the road is called for by the public interests, and the finances of the county will justify, they, in that case, will approve and accept the award, and order the money to be paid; and the same being paid, the commissioner, superintendent, or supervisor, shall proceed to open and construct said road; which proceedings being recorded in the Commissioners’ Court, the right of way shall bex thereby secured; provided, that the corporation, company, owner, or owners of the land, shall have the right to appeal from the decision of the County Court to the Circuit Court, and the case shall be acted upon in such manner as the court may determine, with a view to justice, and the establishment of the road, who shall make such order therein as may seem right and just, which decision shall be final.”

In our opinion, this latter provision was designed to supersede so much of the former provision as has any relation to State and county roads. The latter statute legislates exclusively upon the subject-matter of public roads, and being repugnant to and inconsistent with the former statute, must, to that extent, be understood as a repeal of the former, by necessary implication. The former statute required one copy of the assessment to be delivered to the justice ; and it became the record from which an appeal was to be prosecuted. The latter statute contains no such requirement; and, consequently, there is no record before the justice, from which an appeal may be taken. The justice has no official knowledge of the appraisement, and, therefore, cannot himself allow an appeal, nor make any return to the certiorari which issues out of the Circuit Court, in the case of an appeal taken before the clerk of that court. The former statute allowed either party to appeal; whereas the latter statute confers the right on the owner alone.

In this case, the appeal was properly taken from the decision of the County Court. It was so expressly ruled in Hutchins v. The County Commissioners, 1 Gilm. 345. What is the effect of such an appeal ? Undoubtedly, the appellant may inquire into the regularity and validity of the proceedings relative to the establishment of the road. If it appears that the County Court, in directing the road to be opened, has acted without authority of law, it is the duty of the Circuit Court to reverse the order, and leave the County Court to commence proceedings de novo. But, if the County Court acquired jurisdiction of the subject-matter, and proceeded regularly in its exercise, the only other question to be reviewed in the Circuit Court is as to the amount of damages that the appellant will sustain by the construction of the road across his land. The questions, whether the public interests demand the construction of the road, and whether the fiscal condition of the county will justify the payment of the damages awarded, are matters resting in the sound discretion of the County Court, with the exercise of which the Circuit Court has nothing to do. .Even after the damages of an appellant are assessed in the Circuit Court, the County Court may vacate the order directing the road to be constructed, if it shall be of the opinion that the damages are greater than the interests of the county will authorize to be paid. No appeal is given to the owner, until the County Court directs the road to be opened. His land cannot be appropriated for the purposes of a road, until such an order has been made. And this may be the reason why the legislature took away the right to appeal directly from the assessment. The right of appeal is made to depend upon the affirmative action of the County Court. If no such action is had, an appeal is wholly unnecessary. It may be, that under the comprehensive language of the 42d section of the 27th chapter of the Revised Statutes, any person, interested in the location of a road, may appeal from the order of the County Court directing it to be opened, for the purpose of inquiring into the regularity and validity of the proceedings. But no appeal lies from a decision of the County Court, refusing to open and construct a road.

Parties having different interests cannot join in an appeal. Tenants in common may do so, for their interests are joint. But, in all other cases, the parties complaining of the decision must prosecute separate appeals. The evils of a contrary practice are manifest. If all the parties, affected by the construction of a road over their lands, were permitted to unite in an appeal, there might be twenty different cases to be submitted to the same jury, and as many different judgments to be entered by the court. Such a practice would introduce great confusion and embarrassment into the proceedings of the Circuit Courts. The present case will serve to illustrate the impropriety of such a practice. Brown and Preston, having separate interests, unite in one appeal; the former prosecutes it successfully, while the latter fails to show any cause of action, and yet avoids the payment of cost's altogether. If each had taken an appeal, the case would have been free from difficulty. Brown would have recovered his costs against the county; "and the county would have obtained a judgment for costs against Preston.

A county is liable for costs, where an appeal of this character is successfully prosecuted. And a material increase in the assessment of damages is to be deemed a successful prosecution of the appeal. The owner of the land is to be regarded as the plaintiff. He takes the affirmative on the trial of the appeal. He has to prove title to the land, and show that he will .sustain damages by the construction of the road. He must object, in the first instance, to the location of the road across his land, or he will be concluded from afterwards insisting upon damages. He must claim damages at the proper time ; so that if the county considers the payment of the damages too great a sacrifice for the benefits to be derived from the road, it may abandon the project altogether, or locate the road elsewhere. Fenis v. Ward, 4 Gilm. 499; Laws of 1847, p. 112, § 4. The county is the defendant in proceedings of this character. She is bound to pay the damages assessed, before the road can be constructed. She cannot avoid the payment of the damages assessed against her on the appeal, except by vacating the order directing the road to be opened. The statute expressly makes a county liable for costs, where a judgment is recovered against her. Rev. Stat. ch. 27, § 20.

In this case Brown and Preston improperly joined in the appeal; and, if the objection had been interposed in proper time, it should, for that reason, have been dismissed. But, in the absence of such objection, the Circuit Court should have tried the appeal as two different causes, and entered judgment accordingly. The judgment will be reversed, and the cause remanded, with directions to the Circuit Court to docket the appeal as two distinct cases, and proceed to dispose of the same accordingly.

Judgment reversed.


author: Caton, J.

text:
    Christopher E. Yates, Plaintiff in Error, v. Thomas Monroe et al., Defendants in Error.
    ERROR TO SCHUYLER.
    In a bill for discovery, it is erroneous to make one a party who may be called as a witness on the trial of the cause for which the discovery is sought.
    Upon the coming in of the answers to a bill for discovery, the injunction, which had been granted upon the filing of the bill, having been dissolved, it is practically an end of the suit upon such a bill. It is erroneous to continue the bill for discovery, or to allow a supplemental and amendatory bill to the original bill for discovery.

      A court of chancery will reject an application for a new trial on the ground of newly-discovered evidence, for the same reasons which would control a court of law.
    The negligence of counsel employed by a party is the same as his own negligence, and he must suffer the consequences of it.
    The sole object of a bill of discovery in aid of a suit at law, is to obtain a sufficient answer, and to stay the proceedings at law in the mean time. When such an answer is obtained, and the party has secured all the relief asked, or which the court could give, the bare dissolution of the injunction is equivalent to an order dismissing the bill, making a final disposition of the suit.
    On the 15th day of August, 1850, C. E. Yates filed his bill in chancery against Thomas Monroe, Annis Monroe his wife, and William A. Hinman, in substance: That about January 1st, 1840, said Yates purchased of said Hinman a horse, for which he executed his note to Annis Hinman, (said Annis Monroe,) dated 4th January, 1840, payable to said Annis or bearer, one year from date, with twelve per cent, interest, conditioned 11 that said note might be discharged, within six months from the date thereof, by the sum of eighty-five dollars.” That it was then understood and agreed that said note might be discharged by §>75 prairie-breaking on the farm of one Benjamin Hinman, in the county of Schuyler, at $4 per acre. That Yates did, in the months of May, June, and July, 1840, break said prairie 35| or 37| acres, in pursuance of said agreement. That afterwards, and in October, 1840, said prairie-breaking was measured and accepted by said William A. Hinman, which more than discharged said note. That said Monroes and Hinman have refused to deliver said note to Yates, and Monroe and wife, at the instigation of said Hinman, have instituted suit against Yates, in Schuyler Circuit Court, upon said note, contrary to equity and good conscience. Yates fears judgment may be rendered against him in said cause unless the said Monroes and Hinman are required to set forth and discover said matters. That some of your orator’s witnesses reside in Utah and California; that until their evidence shall be obtained it will be unsafe for your orator to proceed to a trial of the said action, and injunction ought to issue and the defendant be restrained from any further proceeding in the said action at law commenced as aforesaid. Prayer of injunction, also summons, and defendants required to answer on oath the matters in said bill, signed, sworn to, and filed.
    Injunction ordered and issued.
    William A. Hinman demurred to said bill.
    Answer of Thomas and Annis Monroe admits the purchase of the horse, as stated by Yates, but denies that said horse was the property of said Hinman, and says that said horse at said sale was the property of said Annis; that said Hinman, in said sale and taking said note, acted as the agent of said Annis, and not otherwise; that said Hinman had no power other than to sell said horse for cash or on credit; admits the making of note, as stated in bill, but denies that at the sale of said horse and taking said note, it was understood and agreed between said Yates, Hinman, and said Annis, that said note might be discharged by Yates for $75, or any other sum in breaking prairie at any price; and says that if any such agreement was made, it is void at law and in equity, because not contained in said note, and is inconsistent with it, and is not admissible in evidence, at law or in equity, to contradict said note; that said note was to be paid in money; denies all knowledge or belief of such agreement as stated in said bill, and says they have been informed and believe no such agreement was ever made between said Yates and Hinman, and that if any such agreement was made it was without authority of said Annis, and without her knowledge or subsequent ratification, and disclaims said agreement, and insists upon their legal rights; admits that Yates did break prairie on farm of B. Hinman, but when, how many acres, at what price, or how much it was worth, they have no knowledge and cannot answer, but denies that said prairie-breaking was done in pursuance of said agreement set out in said bill, or any other between said Yates and said Hinman as the agent of said Annis; denies that said breaking was done in discharge of said note, or that Yates is entitled to credit on said note by reason thereof, or on any other score; knows nothing of the measurement of said prairie-breaking mentioned in said bill; denies that they have combined and confederated with said Hinman or any other person to defraud said Yates in the premises; denies that they have refused to deliver said note, or that said Yates ever requested or demanded the delivery of said note to him, and says Yates never pretended, alleged, or hinted to them or either of them that he claimed a credit on said note on account of said prairie-breaking, or that he was entitled to any credit on said note until about the time they commenced suit upon said note, as alleged in said bill of complaint, but always said lie would pay said note, and made promises as to the time when he would pay said note, and some of those promises were made to said Thomas since the commencement of said suit at law; denies they were instigated by said Hinman to commence said suit, but admits they have instituted and were and are prosecuting suit on said note, to collect the sum as stated in said bill; denies that it is contrary to equity, but is thoroughly in accordance with equity; that the note is of almost ten years’ standing, and remains wholly unpaid, and denies that Yates has any legal or equitable defence to said note, and says that the allegations in said bill contained are wholly untrue; denies that the court have power to stay the proceedings in said suit at law, to obtain the testimony of witnesses from Utah and California; that Yates has ample remedy at law; denies that they have refused to discover the truth touching the matters in said bill; that, they never were called upon for such discovery; denies all unlawful combinations and confederations wherewith they are charged.
    Replication of Yates filed to said answer.
    Decree dissolving injunction shows that the parties, by their solicitors, appeared; that said Thomas and Annis Monroe moved the court to dissolve said injunction. Said motion coming on to be heard on bill and answer, it is ordered and decreed that said injunction be dissolved, and said Annis and Thomas Monroe have liberty to proceed with said suit at law. It is further ordered that this cause be continued to the next term of this court.
    Yates, by his counsel, moved the court for leave to file his amended and supplemental bill in this cause, which was exhibited, sworn to by said Yates, and was entitled “ Christopher E. Yates v. Thomas Monroe, Annis Monroe, W. A. Hinman, and William A. Patterson.”

      Whereupon it was ordered by the court: “ And now on this day the motion made herein on this day for leave to file a supplemental bill herein came on to be heard, and, after argument, said motion was overruled and said leave refused. Thereupon the said Yates tendered his bill of exceptions, which was signed and sealed by the court. Thereupon a pro formé decree was made dismissing the original bill, with a view to the prosecution of an appeal or writ of error herein.”
    This cause was heard before Minshall, Judge, in the Schuyler Circuit Court.
    Warren & Edmunds, for plaintiff in error.
    R. S. Blackwell, for defendants in error.
   Caton, J.

The decree in this case must be affirmed. The first bill filed was purely a bill of discovery to aid in the defence of an action at law, seeking no other relief. It was filed against the plaintiffs in the action at law, and against Hinman, who was not a party to that record. The other defendants answered satisfactorily. Hinman demurred, and for good cause. Had he answered the bill of discovery, his answer could not have been used as evidence on the trial at law. He was a competent witness on that trial, and the plaintiffs in that action had a right to insist that he should be called to the stand, that they might cross-examine him.

Upon the coming in of the answers, the injunction, which had been granted upon filing the bill of discovery, staying proceedings in the action at law, was dissolved, and there was practically an end of that suit. The complainant had then obtained all the relief which he had asked and all that the court had power to grant. Instead of entering an order formally disposing of the suit, the Circuit Court ordered it to be continued. After the dissolution of the injunction, the plaintiffs in the action at law proceeded with it and obtained a judgment. At the next term of the court the defendant in that action presented a supplemental and amendatory bill to the original suit for discovery. This bill sets up precisely the same defence to the action at law which had been set up in the original bill of discovery, not varying that defence by the introduction of a single new fact. And even the evidence relied upon in support of those facts is the same as that set up in the bill of discovery, with the exception that in this bill it is averred that the party once had some papers and receipts in relation to the breaking of the prairie and the note, which would establish the payment as contended for, and which Hinman had surreptitiously got into his possession and refused to return. What those papers were, or what their contents, is not shown. This bill, however, shows that this transaction occurred many months before the original bill was filed,.and of course within the knowledge of the party, and there can be no good reason why it was not introduced into that bill except that the party had the means of compelling the production of those papers, upon the trial at law, by means of the process of the court of law. Hinman was a competent witness, and had possession of the papers, and, by means of a subpoena duces tecum, the party could there have obtained more appropriate and complete relief than a court of chancery could properly grant him.

The reasons set forth in this bill for asking the court to open the judgment and allow a reinvestigation of the controversy are entirely insufficient. They consist in averments of the negligence of counsel employed in not attending court, the inexperience of other counsel employed and ignorance of the practice of the court, on which account the original bill was inartificially drawn, and that the defendant in the action at law was advised by his counsel that the cause would not be tried at the same term at which the injunction was dissolved, and for that reason he was not present when the cause was tried and the judgment rendered, and that no proper defence was made. It is due in justice to the solicitor who drew the original bill of discovery to say, that so far as we are capable of judging, from all that we have learned of this ease, that bill seems to have been drawn with skill and judgment.

If the grounds of relief here relied upon were held sufficient to authorize a court of chancery to set aside a judgment at law regularly obtained, and to open anew the controversy, there might never. be an end of litigation; society could no longer repose upon the security of judicial decisions, and judgments and decrees of courts would cease to be looked upon as the end of disputes. All of the defence which the party ever claimed to have was cognizable in the court of law, and the complainant shows by his own bill that all his evidence to prove that defence was at all times within the reach of the process of that court. He shows clearly that his whole defence could have been established by the testimony of Hinman, who, so far as appears, was always within the reach of the process of the court. If it be true that Hinman’s interests were hostile to him, that would not give him a right to seek his remedy in a court of equity. That is a misfortune to which suitors are often subject; and certainly he had as reasonable a prospect of getting a fair statement from Hinman on the witness stand, as in an answer to a bill in chancery; and it is nowhere pretended, that Hinman would have testified falsely had he been called upon the stand.

Another ground for the relief sought is, that since the judgment at law was obtained, the party has discovered several witnesses by whom he can prove his defence. But their testimony, as he shows it, would only be cumulative to the evidence already within his knowledge and reach; and the only excuse which he offers for not having produced them upon the trial is, that he had forgotten that those witnesses knew any thing about the matter, owing to the length of time which had intervened since the note was given. This is not sufficient to justify the interference sought. The same reason exists for rejecting an application for a new trial, made to a court of chancery, on the ground of newly discovered evidence, which would determine a court of law upon a motion for a new trial. In the case of The People v. Superior Court, 10 Wend. 294, Savage, C. J., said, “ It is certain, however, that the testimony of Russell was, at one time before the trial, known to the cashier; it was his duty to have remembered it. If he had forgotten it, I think it is no reason for granting a new trial. To open the case on such a ground, is liable to the objection, that it would enable parties to prepare testimony for a second trial, when they had seen the strength of their adversaries’ case, and the weakness of their own, and thus open a door to perjury.” The same rule was held, in the case of Bond v. Cutter, 7 Mass. R. 207. The pretended revival in the memory of long-forgotten testimony, under the quickening influence of a judgment against the party, is too suspicious to justify a court to disturb a judgment which has been regularly obtained.

The negligence of the counsel, whom he had employed to attend to the cause, is the same as his own negligence, and he must suffer the consequences of it. Field v. Matson, 8 Mis. 686.

Throughout this bill are reiterated charges against the plaintiffs in the action at law, and Hinman, of fraud, combination, and conspiracy, which, when carefully examined, may all be summed up in the single charge, that they were seeking to collect a note, which the complainant avers had been paid, and which, according to his own showing, might have been proved upon the trial at law, but for his own carelessness or forgetfulness, or for the carelessness or improper advice of those for whose acts he is responsible. If he had a legal defence, he had an opportunity of showing it in the proper forum, and at the the proper time. Having failed to do so, he must suffer the consequences. Perhaps but few judgments are rendered, where parties suppose they had a defence, and which they had neglected to make, in which as strong a case for relief might not be presented, as the one which is now before us. We cannot set the precedent for overturning judgments at law upon such grounds. Should this judgment be set aside, it would be offering a premium to men to neglect then: own business.

I have examined this bill upon its merits, without regard to any technical rules as applicable to the mode in which it was •presented; and we have, seen, that had it been an original bill, for the purpose of obtaining a new trial in the action at law, it does not show such a case as would justify the interference of the court. The complainant shows his own case to be destitute of merits, or if he had any, that they have been forfeited by his own laches. Had the bill shown sufficient merits to justify the interposition of the equitable powers of the court, the new fact which is averred, that is, the rendition of the judgment against him, is sufficient to give it the proper character of a supplemental bill, and the court would have erred in refusing to allow it to be filed in a suit in which such a bill could be admitted. As it was, the court exercised a sound discretion in refusing leave to file this as a supplemental bill.

As an amendment to the original bill, it was rejected with equal propriety. After the coming in of the answer to the bill of discovery, the complainant may, undoubtedly, where the answer suggests the propriety of such a course, so amend his bill, as to entitle him to relief also ; but it does not follow, that this may be done, after the court has finally acted upon the case as presented by the bill and answer, by dissolving the injunction. At least, I am not aware of any precedent for such a course. The sole object of a bill of discovery in aid of a suit at law, is to obtain a sufficient answer, and to stay the proceedings,at law in the mean time. ■ When such an answer is obtained, the end of the suit is answered, and the party has secured all the relief asked, or which the court of chancery could give; and the bare dissolution of the injunction has been held to be equivalent to an order dismissing the bill, and a final disposition of the suit.

Such, however, seems not to have been the view taken in the court below, for the complainant filed a replication to the answer, thus forming an issue in a case which was already virtually disposed of, and which the court had not the power to try. The answer was not for the usé bf the Court of Chancery, but was to be used on the trial at law. If it was untrue in any respect, there was the place to show it. The court, however, instead of treating the suit as disposed of, continued it, when no legitimate purpose could be answered by its remaining upon the docket. The complainant, if he had merits properly cognizable in a court of equity, should have presented them in the shape of an original bill, without attempting to impart vitality to the old suit.

But, admitting that all which was done was regular, and that it was not now too late so to amend the bill as to convert it into a bill for relief, the complainant ceased to have an absolute right to amend, after the replication was filed ; and could only do so by leave of the court. In determining whether leave should be granted, it was the duty of the court to look into the proposed amendment, and see whether it presented such a case as entitled the party to relief. We have already seen that such was not the character of this bill or amendment; and that being the case, the court may very properly refuse to lend its countenance to the continuance of a litigation, which could result in no good, but only serve to involve the parties in renewed vexation and further expense. The decree is affirmed.

Decree affirmed.


author: Trumbull, J.

text:
    Joshua C. Alexander et al. Appellants, v. James Tams et al. Appellees.
    Appeal prom cass.
    If an execution has been returned “unsatisfied in whole or in part,” it is a sufficient r return to authorize the filing of a bill in chancery, to discover and subject property to the payment of a judgment.
    Creditors cannot subject land to the payment of debts which the debtor held under a contract of purchase, where he had failed to comply with his contract, and had rescinded it, even though he had paid part of the purchase-money under the contract ; in such a case a resulting trust does not arise in favor of the debtor.
    A trust can only arise in favor of a party who pays the whole or some definite part of the purchase-money, at the time the purchase is made. After the title has once passed without fraud, it is impossible to raise a resulting trust, so as to divest the legal estate, by the subsequent application of the funds of a third person, in satisfaction of the unpaid purchase-money.
    Under the prayer for general relief, creditors may be entitled to the money paid by their debtor as part consideration for land, upon a contract which has been rescinded, unless the effects (in case the debtor is deceased,) shotild be distributed for the benefit of all creditors under the statute of wills.
    This cause was heard at September, 1851, of the Cass Circuit Court, by Minshall, Judge.
    The complainants, by their bill, charge that they had obtained various judgments against Thomas Wilbourn, in the Cass Circuit Court, and that they had been returned unsatisfied; charge that Wilbourn died on the- day of April, 1846, intestate and insolvent, and that J. W. Overhall was appointed his administrator, and that the assets of said estate will not pay more than twenty-five per cent, on the claims, and that said Wilbourn died leaving a son named John, an only child, and a widow, Clarissa H. Wilbourn, since intermarried with Sylvester H. Bulkley. The bill charges further, that said Wilbourn, at the time of his death, was the equitable owner of the west half of the south-west, quarter of section twenty-one, fifty acres off the east side of the south-east quarter of section twenty, twenty acres off the north end of the west half of the north-east quarter of section twenty-one, all in township eighteen north, range 11 west of the 3d principal meridian. That on and previous ta the 12th of September, 1844, said Wilbourn was pecuniarily em- , barrassed, and very desirous to purchase the above land, and fearing, if done in his own name, it would be subject to the above judgments, procured one Joshua C. Alexander to purchase in his own name but really for the benefit of said Wilbourn, the above-described land on the 12th day of September, 1844, who executed his notes for the purchase-money, which notes were paid with the money of said Wilbourn, and that a title-bond for said land was given to said Alexander, and that said bond existed at the time of his death, and that after his death, said Alexander, combining with his widow, now Clarissa H. Bulkley, to defraud your orators and others, the creditors of said Wilbourn, destroyed the paper showing the true state of the case in relation to said bond, and the said Alexander, in furtherance of said design, claimed said land and still claims. The bill charges that Wilbourn, from the time of the purchase, 12th September, 1844, to the time of his death, exercised acts of ownership over said land by improving and renting and otherwise. The oath of Joshua C.. Alexander and S. H. Bulkley and C. H. Bulkley to each of their answers is waived by complainants. The bill prays, that on final hearing, said premises as above conveyed by Samuel G. Bailey, as administrator of Samuel Pitcomb to J. C. Alexander, be decreed -to be sold and the proceeds applied to the liquidation of the aforesaid judgments, and the debts of such other creditors as may become parties to this bill, and the residue, if any, paid over to said administrator, to be distributed in due course of administration, and concludes with prayer for general relief.

      Answer of Alexander admits judgments as alleged in the bill against said Wilbourn ; admits death of Wilbourn ; leaving widow and son as charged, and widow intermarried with Sylvester H. Bulkley; but denies that Wilbourn was the equitable owner of the land as described in said bill; admits Wilbourn.’s pecuniary embarrassments, and admits the purchase of said premises on 12th of September, 1844, at public sale, and executed his own notes with security for the purchase-money, and took the deed to himself; and on the 29th day of March, 1845, executed to said Wilbourn a bond for a deed to the said land; bond contains a fair expression of the agreement in relation to the premises, without fraud, and is made part of the answer; and by virtue of said bond, Wilbourn took possession of said land, and continued to use it as his own till November, 1845, when, on account of his inability to pay the purchase-money or any part of it, said bond by mutual consent was cancelled, and given back to said Alexander, but said Wilbourn continued to act as the agent of said Alexander, and actually rented said farm for the year 1846. Answer denies that Wilbourn ever paid one cent of his own money towards the purchase of said land, but sent some money to Jacksonville to make the first payment, by H. T. Foster; but said money was borrowed of respondent, and the last note was sued on, and judgment obtained and money paid on said execution to the sheriff of Cass county. Answer admits, that whoever paid for said land would be the true owner, but that it would be manifestly unjust to take this land from respondent who has paid for it, and give it to Wilbourn’s creditors, merely because this defendant and said Wilbourn had made a fair contract about it, which was can-celled, because he could not meet the payment. Denies all fraud or combination to embarrass creditors in the collection of the just claims against Wilbourn.
    The Circuit Court entered a decree, directing that the land should be sold to satisfy said judgment creditors. The heirs of Alexander brought the cause to this court, and assigned errors.
    S. T. Logan and S. W.'Robbins, for appellants.

      R. S. Blackwell, for appellees.
   Trumbull, J.

This was a bill filed by certain judgment creditors of Thomas Wilbourn, deceased, to subject real estate, the legal title to which was in Alexander, to the payment of their judgments, upon the ground that Wilbourn was the equitable owner of said real estate. Executions had been returned unsatisfied against Wilbourn in his lifetime, and his estate is insolvent. The Circuit Court decreed the property subject to the judgments, and to reverse that decree this writ of error is prosecuted by the heirs of Alexander, who has deceased since the proceedings in the Circuit Court.

An objection has been made to the right to file the bill, upon the ground that there had been no return of nulla bona upon the executions issued by the complainants. The bill alleges that the executions were returned “ wholly unsatisfied.” If this return was not to be regarded as equivalent to the more technical one of nulla bona; still the statute, in express terms, authorizes the plaintiff in execution, when his execution against the property of the defendant has been returned “ unsatisfied in whole or in part,” to file a bill in chancery to discover and subject any property of the defendant to the payment of such judgment. Rev. Stat. ch. 21, § 36, 37.

After a careful examination of the evidence, we think it establishes the following facts: That, under a parol agreement between Alexander and Wilbourn, previously entered into, Alexander purchased the premises in question in his own name, but for the benefit of Wilbourn, at an administrator’s sale, for the sum of $847.50, for which amount he executed his notes with security payable in six and twelve months, and took a deed to himself; that some six months afterwards, Alexander executed to Wilbourn a bond for a deed, conditioned to convey the premises to Wilbourn, upon his paying and delivering to Alexander the notes which the latter had given for the purchase of the land; that Wilbourn did subsequently pay $700 upon said notes, but failed to pay the balance, and Alexander was forced to pay the same; and that shortly before the death of Wilbourn, say about the middle of March, 1846, the contract of sale between Alexander and Wilbourn was cancelled by mutual consent, and the bond for a deed surrendered up by Wilbourn.

Upon this state of facts, it is obvious that the complainants cannot subject the lands to the payment of their debts. They cannot reach any greater interest than Wilbourn had in the premises, though their position as judgment creditors may entitle them to subject property to the payment of their debts, which he or his administrator would be estopped from claiming.

The complainants cannot claim to subject the land to the payment of their debts, under the contract of purchase made by Wilbourn, for the twofold reason, that he never complied with the contract, by paying and delivering to Alexander the notes the latter had given for the land, and that the contract was rescinded by mutual consent.

There is no pretence for setting up a resulting trust in favor of Wilbourn, on account of his having paid part of the contract price for the land, for two reasons : First, the fact of a subsequent sale, as evidenced by the bond, rebuts such an idea; and secondly, a trust can only arise in favor of a party who pays the whole or some definite part of the purchase-money at the time the purchase is made. After the legal title has once passed without fraud to the grantee by the deed, it is impossible to raise a resulting trust, so as to divest that legal estate, by the subsequent application of the funds of a third person in. satisfaction of the unpaid purchase-money. The resulting trust must arise, if at all, at the time of the execution of the conveyance. Rogers v. Murray, 3 Paige, 398; Penny v. McHenry, ante.

In the present case, Wilbourn was not a party to the original transaction, but Alexander made the purchase in his own name, and gave his notes, with security, for the purchase-money. In such a case, a declaration by parol, at the time that the purchase is made for another, does not constitute such a trust as can be enforced by the party for whom the purchase is alleged to have been made. Kisler v. Kisler, 2 Watts, 323.

Although the complainants cannot obtain the specific relief they seek, yet, under the prayer for general relief, they are entitled to the money paid by Wilbourn as part of the consideration. for the land, with interest from the time the contract was rescinded, and Alexander became entitled to the possession; unless the exclusive appropriation of this money upon the claims of the complainants, interferes with the just distribution of the effects of Wilbourn among all his creditors, according to the provisions of the statute of wills. Pinnock v. Clough, 16 Verm. 500; Graves v. Dugan, 6 Dana, 331.

If the administrator of Wilbourn can recover the money paid by Wilbourn towards the land, in an action at law, then the complainants cannot appropriate the same exclusively to the payment of their debts. This court decided1, in the case of Choteau v. Jones, 11 Illinois, 301, that an administrator cannot, even, for the benefit of creditors, impeach a fraudulent conveyance made by his intestate; also that the administrator is bound by the intestate’s acts, and is clothed with no greater power than the intestate possessed.

The record shows that Wilbourn repeatedly declared that he had paid nothing on the land, but that all was paid by- Alexander. These declarations would have prevented him from recovering back the money he advanced, and they are equally binding on his administrator. Consequently, unless the creditors of Wilbourn can reach this fund, the heirs of Alexander must be suffered to retain it in fraud of their rights. This they cannot be permitted to do.

The decree of the Circuit Court will therefore be reversed, and the case remanded, to afford the complainants an opportunity to amend their bill by making the administrator of Alexander a party; and when he is brought in, the Circuit Court will enter a decree in favor of the complainants, for seven hundred dollars, the amount advanced by Wilbourn towards the land, with interest thereon from the 15th of March, 1846, to be paid by the administrator of Alexander, in the due course of administration, and to be applied pro raid in satisfaction of the claims of complainants.

Decree reversed, and cause remanded, at • the costs of the defendants in error.

Decree reversed.