author: Mr. Justice M'Lean

text:
    The Lessee of Ambrose Walden, Plaintiff in error, vs. John Craig’s Heirs and others, Defendants in error.
    In a scire facias to revive a judgment in ejectment, where it is stated that the term recovered is yet unexpired, this is sufficient. It is not required that the term as laid in the declaration, and that facts showing its continuance should be stated.
    When the Court have given leave, on motion, to extend the term in a demise, and the amendment is specific, it is not necessary to interline it in' the declaration. If leave 'to amend the declaration had been given generally, and the amendments had not been interlined, it would be different.
    In Kentucky there is no law which limits a revival of judgments; and at law, lapse of time can only operate by way of evidence. Prom lapse' of time, and favourable circumstances, the existence of a deed may be presumed, or that an obligation has been discharged; but this presumption always arises under pleadings which would render the facts presumed proper evidence. A demurrer to a scire facias raises only questions of law on the facts stated in the writ of scire facias; no evidence is beard by the Court on the demurrer; and consequently there is no presumption against the judgment dn which the writ issued, from lapse of time. '
    The marshal, on his return to a scire facias to revive a judgment in ejectment, stated that two of the defendants were dead. This return does not become matter of record, like the fact of service of the writ, stated in the return; and cannot be taken advantage of by demurrer. A plea in abatement was the proper method of taking advantage.of the decease of those of the defendants who were deceased. On this plea, the plaintiff could have taken issue, and have had the facts ascertained by a jury.
    To a scire facias to revive a judgment in ejectment, it is not necessary to make the executors or administrators of deceased defendants parties; the subject matter in dispute being land, over which they have no control. The law is well settled, that where a defendant in ejectment'dies, the judgment must be revived against both his heirs and the terre tenants.
    Service of process or notice, is necessary to enable a Court to exercise jurisdiction in a case; and if jurisdiction be taken in a case in which there has been no process or notice, the proceeding is a nullity. But this is only where original jurisdiction is exercised, arid not a decision of a collateral question, in a case where the paVties are before the Court.
    After judgment,'the parties are still in Court, for all the purpose of giving effect to it. And in the action of ejectment, the Court having power to extend the demise after judgment, the defendant may be considered in Court, on a motion to amend, as well as on any other motion or order which may be necessary to carry into effect the judgment. In no correct sense is this power of amendment similar to the exercise of an original jurisdiction between parties on whpm process has not been served.
    IN error to the Circuit Court of the United States- for the District of Kentucky.
    This case was argued by Mr. Underwood for the plaintiff in error; and by Mr. Crittenden.for the defendant.
    As stated in the brief and argument for the defendant, the case was :
    .“This is a scire facias to revive a judgment on ejectment of the District Court of the United States for the Kentucky District, which Walden’s lessee had recovered against Lewis Craig and Abraham Shockey, on the 19th day of June, 1800. The scire facias bears date the 27th of March, 1837 ;-and, Lewis Craig having previously died, it was sued against his heirs and Abraham Shockey, and also against Thomas Blair, as tenant in possession. The defendants demurred to the scire facias, and also pleaded nul tiel record, on both which issues were joined; and on both, the Court, (having heard the evidence on the latter issue,) being of opinion in favour of the defendants, gave judgment for them.
    “ The plaintiff excepted to the decision of the Court against him, on the issue of nul tiel record; and, by his bill of exceptions, has spread upon the record the evidence by which, on his part, he attempted to sustain that issue.
    “This evidence consisted, 1st, of the record of proceedings in'the original action of ejectment by Walden’s lessee vs. Craig, &c., and the judgment therein in favour of the plaintiff, rendered on the 19th of June, 1800, ‘for his term, &c., yet to come and unexpired, together with his costs,’ &c. The demise in the declaration on which this judgment is rendered was for á term of ten-years, from the- 15th of August, 1789.
    “ And, 2dly, the record of an entry made in the same case, on the 8th of May, 1824, in these words: to wií: ‘On motion.of the plaintiff in the above cause, by his attorney, leave is given to amend the declaration by extending the demise to fifty years; which is done accordingly. But executions not to go out before the Ist.day of March next.’
    “ This, it is presumed, is all the evidence that can be judicially regarded as belonging to this case, or made part of ft by the bill of exceptions, though it further appears, from what has been incorporated in the record, that, on the 2d June, 1812, an execution of haberi facias issued on the judgment in ejectment, and that after-wards, at the July, term, 1813, it was quashed because it had been issued ‘ after the expiration of the demise in the declaration.’ And it also appears that, in the year 1835, Thomas Blair, the tenant in possession, made application to the Court to annul and set aside the order of May, 1824, for extending the demise; and that this application was overruled by a division of the judge’s.”'
    Mr. Crittenden for the defendant in error.
    If the decision of the Court was correct, either upon the demurrer to the scire facias, or upon the plea of nul tiel record, the judgment for the defendants was right. And they contended that the Court decided correctly on both the points.
    First, as to the demurrer. — The law of Kentucky having dispensed with the necessity of a declaration upon a writ of scire facias, it has been adjudged, in many cases, that the scire facias must answer the end of a declaration, and must set out all such facts' as will warrant a judgment upon it. Dozier vs. Gore, 1 Littell’s Rep. 164. 5 Littell’s Rep. 59. Holland, vs. Boulden, 4 Monroe, 148. And, in the case of Wood vs. Coghill, 7 Monroe, 601, it was decided by the Court of Appeals of Kentucky, that a scire facias, to revive a judgment in ejectment, must state the term yet to come, as laid in the declaration; for that, if the term has expired, there can be no writ of possession on the judgment.
    We insist^ therefore, that the scire facias in .this case, not stating the term as laid in the- declaration in ejectment, .nor any facts; that showed its continuance, is fatallyAefeetivei -. And' if we. are pemiitted, upon the demurrer,-to look beyond , the scire facias,'artd to aid its‘want of averments byreferenee to .the record of the judgment that it seeks tú revive, and with which it is “intimately connected,” (as is-intimated in the cáse of Thompson, &c. vs, Dbugherty’s Heirs, 3 J. J. Marshall,) then ft will appear that,’ in .point of fact, the. term-for which that judgment was rendered had dong before expired. For this defect, therefore, equally apparent on the. face of the scire facias and of the judgment, the demurrer was correctly/sustained.
    We furthermore submit to the Cotírt,-whether'the lapse of time, being more than -thirty-six years from the date of the original judgment' to that of the scire facias, does .not.'warrant that decision. A less period of timé would, by the laws of Kentucky, have sufficed not only to cáncel Walden’s right of entry, buf all his right and title to the land in contest. And it would seem, therefore, by strong, analogy,' that, he ought not to be permitted, by the revival of a judgment so ancient, to escape-.those wholesome laws that secure lQng-contihued possessions; and to assert, in .this indirect mode, rights that could not be sustained,in any other form of action.
    Secondly, as to the plea of nul tiel record. — By .the issue' on that plea, the plaintiff was bound to produce the record of a-judgment for. a term then (inthé year 1837) unexpired, The judgment which he'offered in .evidencé w.as. rendered the T9th June, l8cf0, far a term of ten years, commencing the 15th- August,-1789. -It is heedless to say moré'than that.here there-was, in-.the. most material particular, a clear and obvious-failure ofproóf on his part, - And.the only evidence by which it was attempted to supply this defect was the order of Court made, on t,he motion of the plaintiff, upon the 8th of, May, 1^24, .giving, him leave to amend his 'declaration by “extending the demise to fifty years' and which, as the same entry proceeds to state, “ is done-accordingly.’?
    .This order cannot help the plaintiff, or have any effect, for two reasons: 1st. Because- the amendment it gave.leave to make was hot intact made, as the record'shows; and the entry made in 1824, that it “is-done accordingly,” cannot be-regarded, as it is apparent that amendment-or extension of the demise was never made. 1 Monroe,. 113. ’ 2d, The order -itself is a n ullity j made- ex parte on the plaintiff’s motion, without notice to the defendants, or to any one interested to defend; and that, after the' parties, to the judgment-in ejectment had'been out- of Court for more-than twenty years.
    By the settled law of Kentucky, and by the uniform adjudications of.her Courts it.is now established, that they have ho power To-perrmit or authorize any. such extension of the demise after judgment, - without the assent of the opposite.party. 0wings ««..Marshall, 3 Bibb, 27.
    This Court, however, in the case of Walden-et al. vs. Craig, 9 Wheat. 576, determined that the Federal Circuit Court'for Kentucky might grant leave, after judgment, to enlarge the term stated in the declaration; and that, under the circumstances of that case, the motion for such leave ought to have been sustained. It is evident, from this decision, that it is not a matter of course, or of right, on the part, of the plaintiff, to have such leave $ and that the exercise-of the power or discretion of the Court to grant it, depends on the circumstances of the case. Notice to the parties to be affected by such a proceeding, is just as necessary as it is in any other form of litigation ; and that no judgment or judicial proceeding can bind or affect any man who has had no warning, notice, or opportunity of defence, •is supposed to be a primary principle of justice and jurisprudence^ that requires no illustration Or authority for its support.
    The motion and leave, to amend, in this case, being without notice, and wholly ex parte, are null and without effect.
    If amendments of this' character .are allowed, the whole object of the statute of limitations is defeated. If a party can lay by for such a length of time, and then restore himself to the same condition he' was in -when the suit was originated, by such an extension of the term, no statute can operate.
    , In England some-leave must be obtained'by the.party from the Court, before a scire facias to revive a judgment can- be sued out. It is a judicial writ. But-this is not' the law in Kentucky. Without an application to the Court, the writ may be sued out; but no one in Kentucky would, in the Courts of that state, assert the validity and operation of the scire facias sued out in this case.
    Mr. Underwood, for the plaintiff in error.
    He contended, that the extension of the demise in this case was fully within the power of the Court. Although it is considered that ■ the defendants in the ejectment were constructively in-.Court when the order was made, yet their presence is not necessary. The Court exercise a discretion in the matter. They will not see the purposes, of-justice defeated, and they interfere always to prevent this.
    The plaintiff had been prevented .by the introduction of bills in Chancery, from obtaining any advantage from his judgment of recovery ; the controversy between him and the.other-parties began -in 1789, and by delays which he could, not control, but for the just indulgence of the Court in extending the demise, all- the benefits of his recovery in the ejectment would have been- lost. Upwards of fifty years have passed; ,and should this Court affirm the judgment of-the Circuit Court, the property to which the plaintiff has shown himself entitled to, at law and in equity, will be irretrievably lost to ■ him.
    The granting and the refusal of the extension of the demises in ejectment have been held by this Court to be within the discretion of the Court. The refusal of an extension has been decided by this Court, not to be the subject of a writ of error. It vyas not then competent for the Circuit Court, at a later period in this case, to interfere with the action of the Court in a matter exclusive in its jurisdiction and power.

      In Walden vs. Craig, 9 Wheaton, this Court .decided that the‘demises in a declaration might be extended ; and held, that no writ of error would lie on this having been done in the Circuit Court. In this case, if notice of the motion to the Court to extend the demise was necessary, it was -given. The presumption always.is, that the requisites to a proceeding' by a Court have been complied with. .
    A printed argument, by Mr. Wickliff, for the plaintiff in error, was handed to the Court.
   Mr. Justice M'Lean

delivered the opinion of the- Court.

These cases are brought before this Court, from the- Circuit Court of Kentucky, by writs of error.

The plaintiff in error, who was the plaintiff in the Circuit Court, issued two writs of scire facias, to revive the judgments rendered in the aboye cases the 19th of June, 1800, against Shockey and Rose,' the original defendants, and the heirs of Craig. Alias writs were-issued, and on the first and second writs the marshal returned served on several of the heirs named ;• and that Shockey and Rose were deceased,

In both cases, the defendants demurred to the writs of scire facias, and also pleaded nul tiel record. Issue being joined,.the Court gave judgments for the defendants on both issues; to revive which judgments.these writs of error were prosecuted.

A'bill .of exceptions spreads upon the record the evidence that was. before the Court on the issue of nul tiel record.

We will first consider the questions arising on the demurrer. -

It seenris. to be the practice, in Kentucky not to. file a declaration on-a writ of scire facias, but to consider the writ as the declaration.

-It is insisted that these writs are all defective in not stating the term as laid in the declarations, nor any facts which showed its continuance : and a decision in.7Monroe, 601, where it is stated that a scire facias to revive a judgment in ejectment, must state the term yet to come, as laid in the declaration is relied on.

In the .above writs it is stated that the term recovered is yet ..unexpired : and we think this allegation is sufficient. It would be an extremely technical rule to require greater strictness than this. In 1 J. J. Marshall’s Rep. 5; the Court of Appeals say, if a-scire facias contain such recitals as will point to the judgment intended to be revived, with such certainty that the defendant must kno.w what judgment was meant, it will be sufficient. And again, in 3 J. J. Marshall, 564, the Court held, that where the scire facias contained an extract from the judgment,'and referred to the record and proceedings in the suit, it was' good. That execution is awarded on the original judgment, and the proceedings on .that judgment being referred ttf in the writ, if the term had expired, the defendant might show it

The amendments made in 1824, which extended the demises fifty years,' hot being inserted in the declarations, it is insisted that they ' cannot be considered as a part of the records referred to in the writs of scire facias: if leave had been' generally given to- amend, and no amendments of the declarations had been .made, the objection would be insurmountable. But -the amendments, were specific, and they were entered on the records of the Court-; and they referred to the cases ; so that too complete'records of them could, be made, without including these amendments. It was therefore Unnecessary to interline them in the declarations.

The’ writs by statements of fact's and by references, we think, contain sufficient certainty.

But it is contended that the demurrers should be sustained oh the ground of lapse of time.

The judgments sought to be revived were entered in 1800;. but how is the lapse of time to operate ?

If is not pretended that 'there is any statute or rule in'Kentucky, which limits a revival of -'the judgments'; and it is very clear, that at law, lapse of time can only operate by way of evidence.

From lapse of time and favourable circumstances, the- existence of a deed may be presumed, or that an obligation has been discharged; but this presumption always-arises under pleadings which would render the'facts presumed proper evidence.' A demurrer 'raises only questions of law, on the facts stated in the writs of scire faeias themselves. No.-evidence.is heard ; and, consequently,, there is no ground for' presumption from lapse of time.

Can the demurrer be sustained on. the ground of the marshal’s return that Shóckey and Rose, .defendants in the judgments, are dead?- .

■The marshal’s return,-it is said, becomes a matter.of record, arid therefore, advantage may be taken of this defect by demurrer.

It is admitted that the marshal’s return of service, ot non-service, which he endorses on the process, and of which he has official, knowledge, becomes matter of record, and is binding on the parties. But the marshal can ohly know, in common with other-citizens, o.f the decease of a person named in the writ; - and. if he endorse the fact of such dec’ea'se, though it may be spread on the record, it is clearly not binding on the parties. Shall a rumour, which shall,, in the opinion of the marshal justify such endorsement, make the fact' a matter of record ? It may excuse the officer; but it does not bind the party whose' rights are involved.

The demurrers treat the fact of the death of these defendants as matter-of .record; and if it'be matter .of' record it cannot be controverted. In this view, then, if the rumour on which the-, marshal made' the. endorsement bé falsé, the rights of the plaintiff are- forever concluded. ¿He'cannot'revive his judgment against-'the heirs of living defendants; and yet he. cannot dispute the fact of-their decease, as entered on the record.

A plea in abatement was the proper mode of taking advantage' .of the decease of these defendants. Onthis plea the plaintiff could take issue on the fact of the decease, and have it ascertained by the verdict of a, jury. Bac. Ab. Abatement, L. Chitt. Plead. 442. If these defendants be dead, it would be error to revive the judgments without the service of process ori their representatives. But demurrers cannot be interposed, which shall treat the fact of their decease as "matter of record; and which may prevent the plaintiff from issuing other writs ,in the cases.

In every view which we can take of the questions properly arising on the demurrers, we think the Circuit Court erred in sustaining them.

As the subject matter of dispute is land over which the administrators or executors of the deceased defendants have ho control, we do not perceive the necessity or propriety, of making them parties in the writs.

The law is well settled, that where a defendant in eje,ctmént dies, the judgment must be revived by a scire facias against both his heirs and the- terre tenants. 2 Salk. 598. 600. 2 Saund. 7, n. 4. Cro. Jac. 506. And this is the rule of practice in Kentucky.

We come now to consider, the evidence offered and rejected by the Circuit Court, under the issue of nul tiel record.

The records offered were rejected on the ground that the amendments made in 1824, extending the demise in each case to fifty years,- having been made without notice to the defendants or the terre tenants, wore null and void.

In both cases the demise had expired before the judgments were-entered; but the fact seems not to have been noticed by the counsel on either side.

In 1800, and shortly after the rendition of thé judgments, the defendants filed a bill setting up an adverse, and as they alleged,,a paramount equitable title to that of Walden for the land in controversy-; and obtained an injunction to stay proceedings on the judgments. This injunction was continued until May term, 1809, when it was dismissed by the Court for want of jurisdiction.

In 1811, another-bill was filed and an injunction obtained, which at May.term, 1812, was dissolved; and in 1813, the''bill was dis-' missed by the complainants, at rulés, in the clerk’s office.

Writs of possession were issued the 2d June,' 1812, which, at July term, 1813, were quashed, on the ground that the demises had expired.

At July term, 1817, a rule ..was entered for the defendants, Craig and Rose., to show cause, at the next term, why the demise in the declaration should not be extended. And at November term, 182-1, the Court overruled the motion. To this decision a bill of exceptions was taken, which stated that the above-rule had been served on the defendants.

A writ of error was taken out and the decision of the Court in the case, is reported in 9 Wheat. 576. In their opinion, the Court say, that the power of amendment is extended, at least, as far in the thirty-second section of the Judiciary Act as in any of the British statutes; and that there is no species of action to which the discretion'of the Court, in this respect, ought to be more liberally applied than to the action of ejectment. The proceedings are all fictitious, fabricated'for the mere purposes of justice; and there is every reason for allowing amendments in matters of mere form. “ And,” they say, “ there is peculiar reason in this case, where the cause has been protracted, and the plaintiff kept out of possession beyond the term laid in the declaration, by the excessive delays practised by the opposite party. The cases cited by the plaintiff’s counsel in argument are, we think, full of authority for the amendment which .was asked in the Circuit Court; and we think the motion ought to have prevailed.”

But the Court decided that they could not take jurisdiction of the case, as a writ of error would not lie on the decision of a collateral motion in a cause.

After this decision of the Court, was certified ,to the Circuit Court, the • following entry was made on the record. “ And afterwards, to wit, at the May term of the Court aforesaid, in the year 1824, until which time the motion to extend the demise in the declaration was continued, &c. and leave is given on motion to amend the declaration by extending the demise to fifty years; which is done accordingly.” .

’In the other case against Craig and Shockey, there does not appear to have been a rule entered for the extension of the demise, or that notice was served of the motion. .But the same entry was made of the continuance of the motion and the extension of the demise, as in the other case.

In onu of the cases, then, there is evidence of notice having been given, but not in the other. And the question may be considered, whether there having been no notice, the amendment must be considered as void. If it be only erroneous and voidable, the Circuit Court erred in rejecting the record.

The demises in the declarations haying expired before the. judgments; they could not authorize writs of habere facias possessionem ; but they were not void. They wére judgments on which executions-might issue for the damages and costs. And the .amendments having relation back to the expiration of the demises, gave vitality to both the judgments, the same- as if the terms had originally been stated at fifty years.

It is admitted that the service of process, or notice, is necessary to enable a Court to exercise jurisdiction jn a case; and if jurisdiction be taken where there has been no service of process, or notice, the proceeding is a nullity.’ It is not only voidable.huffit is absolutely void. But. this is only where original jurisdiction is exercised; and not a decision of a collateral-question ,in a case where the parties are before the Court.

If it .were necessary, notices in the cases under consideration might well be presumed. For it does not follow that nd notices were given, because none appear upon the record.. The fact oi notice may be proved by parol. But however convenient in practice; and indeed, necessary, to some extent, to preserve from prejudice the fights of parties, notice in .such cases may be; still it is a question of practice. If does not go, except under a positive rule, to the. exercise of the power of amendment by the Court.'

After the judgment, the parties are still in Court for all the purposes of giving effect to it. And in the action pf ejectment, the Court having power to extend .the demise after judgment, the defendant may be considered in Court on this motion to amend as well as on any other motion or order which may be necessary to carry into effect the judgment. In no correct sense is the exercise of this power of amendment similar to the exercise of an original jurisdiction, between parties on whom process has not been served.

No new parljfes are made on the record, and no rights of the terre tenants are”barred by the extension of this legal fiction: a fiction formed by the' Courts, and modified by them for the great purposes of justice.

' The. plaintiff’s title was established by the judgment; and it would be most unreasonable and unjust to deny him the fruits of these judgments, on the ground that the fictitious lease had expired, and which.the Court hád power to amend.

The judgments are described with .sufficient accuracy; and there being no objection to the records except the one above considered,' we think the Circuit Court erred in excluding the judgments as evidence : and on this ground also are the judgments of that Court reversed.

This cause came on to be heard on the transcript of the record .from the Circuit Court mf the United States for the District of Kentucky, and was argued by counsel. On consideration whereof, it is. ordered and adjudged by this Court, that the judgment of the said Circuit Court, in this cause be, and the same is hereby, reversed with cost.s, and that this cause be, and ihe same is hereby, remanded to the said Circuit Court with directions to proceed therein, according to law and justice, and in conformity with the opinion of this Court.

        Note. — Two cases were before the Court; involv' the same questions. This opinion was deliveied in the two cases.


source: Caselaw Access Project

author: Mr. Justice M‘LEAN

license: Public Domain

text:
    Ambrose Walden and others, Appellants, vs. Henry I. Bodley and others, Appellees.
    There are cases in Chancery where amendments are permitted at any stage or progress- of the cause, as where an essential party has been omitted: but amendments which change the character of the bill or answer, so as-to make, substantially, a new case, should rarely.if ever be admitted, after the cause has been set for hearing; much less after it has been heard.
    A decree dismissing a bill in Chancery, generally, may be set' up in bar of a second bill: but .where the bill has been dismissed on the ground that the Court had no jurisdiction, which shows that the merits were not heard, the dismission is not a bar to a second bill.
    Where parties by agreement dispense with the usual formalities, and no injustice results from the mode‘adopted, the Court should not on slight ground set aside the proceeding.
    It is,a general rule that a tenant, shall not dispute his landlord’s title-; but this rule is subject to certain exceptions. If a tenant disclaims the-tenure, and claims the fee in his own right, of which 'the landlord has notice, the relation of landlord and tenant is put an end to, and the tenant becomes a trespasser; and he is liable to be "turned out of possession, though the period of his lease is not'expired.
    The same relation as that of landlord and tenant subsists between a trustee and a cestui que trust, as it regards the title.
    A Court of' Equity cannot act on a case which is not fairly made out by the bill and answer. But it is not necessary that these should point out, in detail, the means which . the Court shall, adopt in giving relief. Under the general prayer for relief, the Court will often extend relief beyond the specific prayer, .and not exactly in accordance with it. Where a case for relief is made out in the bill, it may be giveq by imposing conditions n the complainant, consistently with the rules of equity, in the discretion of the Court.
    ON dppeal from the Circuit Court of the United States for the District of Kentucky..
    This case was submitted to the Court by Mr. Underwood, for the' appellañts; and by Mr. Crittenden, for the appellees, on the argument in the preceding case of Walden vs. Craig’s heirs et al.
   Mr. Justice M‘LEAN

delivered the opinion of the Court.

This is an appeal from the decree of the Circuit Court of Kentucky.

Bodley and others filed their bill in the Circuit Court, representing, that on the 17th of October, 1783, an entry was made in the name of Henry Crutcher and John Tibbs for ten thousand acres of land, as follows: Henry Crutcher and John Tibbs enter ten thousand acres of land on a treasury warrant,- No. 18,747, as tenants in common, beginning at a.large black ash and' small buckeye, marked thus, J. T., on the side of a buffaloe road, leading from the lower Blue Lick, a N. E. course, and about seven miles N. E. and by E. from the said BÍue. Licks, to a .corner of an entry of twentv thousand acres, made in the name, of John Tibbs, John Clark, John Sharp, David Blanchard, .and Alexander M‘Lean, running thence with the said Tibbs & Co.’s line due eqst, one thousand six hundred, poles; thence south, one thousand poles; thence west, one thousand six hundred poles; thence north, one thousand poles, to the beginhing, for quantity.

That in 1790,. a legal survey having been executed, a patent Was obtained in the names of Robert. Rutherford, assignée of Henry Crutcher and Willoughby Tibbs, heir at, law of John Tibbs, deceased, in 1790. That by several mesne conveyances the above traqt was vested in the complainants.

The complainants represent that Ambrose Walden, the defendant, on the 22d May, 1780, entered one thousand -three hundred thirty-three and one-third acres of land on the east, side of Jacob'Johnson’s, settlement and pre-emption, on. the waters of Johnson’s Fork, a branch of Licking, to include two cabins on the -north side of said Fork, built by-Simon Butler-;, and to run eastwardly foi quantity. This entry was purveyed the ,29th November, 1785, after which a patent, was obtained.

The bill charges that this entry and survey .are void for want of certainty, &c. And that Lewis Craig purchased of Simon Kenton, who was-the locator; and claimed one-third of the land entered for his. services; which, being laid.off, Craig sold several small tracts by metes and bounds, to Jonathan Rose,. William Allen, and Charles Rpctor. That Rose, sold a part of his purchase- to Abraham Shockey; and Allen a part of his, to Amzey Chapin.

And that Walden, alleging he had- satisfied the claim of Kenton as locator, commenced two actions of ejectment in the District Court of the United States for Kentucky, and obtained judgments against the purchasers under Craig. That Shockey and Chapin, knowing the. title they held under Craig by purchase from Allen and Rose, was inferior to that of the complainants, became their tenants. That on the 30th- October, 1801,. the complainants entered into-an agreement with Lewis Craig, with the assent of Rose and Rector, for the land they had purchased, and deeds were made to them by the complainants. Shortly after this, Allen soldhis land to Abraham Drake, to whom the complainants made a deed.

That the complainants, Bodley arid Pogue, purchased Shockey’s claim to the land he had bought of Rose, and on which he had erected a valuable mill. ' And that they still held the legal title- -to that, and the land purchased by Chapin of Allen, and to a considerable part- of the interference of their claim with Walden’s.

That twelve years after Walden obtained his judgments he issued writs of habere facias, which were set aside on the ground- that the demises had expired. That in 1824, the -demises, were extended, without notice to the tenants, fifty years. That Rose, Rector, and Allen, and those claiming under them, had possession of their respective tracts of land by metes and bounds, as purchased from Cráig, and held under the title of Bodley and Company, for more than thirty years, adversely to Walden. That Shockey and Chapin, and those holding under them; have had possession for near the same length of time, &c.-

The complainants state that Walden never has had possession of any part of- his survey, except two hundred acres conveyed by him to Robert Pogue, by proper metes and bounds ; about one hundred and fifty acres of which .was held by Carter: and that the complainants have made valuable and lasting improvements on the land, for which they require pay,, if the title should be found in Walden.

And they pray an injunction, &c.; which, was. granted.

The complainants afterwards amended their Bill by stating that Thomas'Bodley and Robert Pogue, at the Fleming Circuit Court of Kentucky, in March, 1825, in a suit in Chancery against the unknown heirs of John. Walden, deceased, and others, obtained a decree for the whole of Ambrose Walden’s survey, except'.'the one hundred and fifty acres owned by Carter; and except so much of John Walden’s elder survey of one thousand-six hundred sixty-six and two-thirds acres, as was then in the possession of Ann Thrailhild, and the heirs of Jeremiah- Proctor, deceased.

And the complainants further state that the tract of one thousand three hundred and thirty-three and one-third acres of Walden, interfered -with an entry of twenty thousand acres, made the 31st July, 178.3, in the napes of John Tibbs, John Clark, John Sharpe, David Blanchard, and'Alexander M‘Lean, with-the proper surveyor ; sixteen thousand acres of which were surveyed and patented in the name of the complainant Bodley; and this entry is charged to be paramount to that under .which Walden claims.

Walden, in his answer, states, that he obtained-judgments against the complainants, who are tenants on the land, by virtue of his legal and better title; and that he has been a long time delayed by the complainants from obtaining the possession of the land recovered.

He .admits that- some improvements have been made on the land; but alleges that waste has been committed, and that rents and profits would more than compensate for the improvements. He states that he.brought his suits in'ejectment shortly after the adverse possession was taken; and he relies upon the dismissal pf certain injunction bills, filed by the complainants, as a bar to the present suit.

He knows nothing-of the entries, surveys, and patents, set. forth in the bill, or of the sales and conveyances stated; and he-requires proof of the same. He insists on the validity of his own entry; and denies that Kenton, as locator, was entitled to any part of it, as he was paid- in full for his services, in locating the land. He denies all fraud;' and prays the benefit of-his judgments at law.

By agreement of the parties-in the Circuit Court, “ the record and proceedings of the Fleming Circuit Court were filed, and that cause was entered upon-the docket, for further proceedings in this Court'. And that in the suits for trial, Thomas Bodley and others against Ambrose Walden, and Clark’s heirs against Ambrose Walden, and also, the one by Duncan’s heirs against Walden, should be entered on-the docket, and. stand for hearing at the ensuing term, and be decided at the same time; they all being connected'with the present controversy.”

Bódley arjd Pogue having died, at November term, 1833, by consent, the suit was revived in the names of their heirs and representatives ; and a guardian ad litem was appointed to certain infant heirs.

A motion is made by the defendants in the appeal, .to dismiss it, on the ground “ that it is an appeal, from several .distinct decrees, in several separate suits, which are attempted to be united in this appeal ; when there is no such record filed as is described in the appeal and citation thereon.”

In the decree of the Circuit Court, it is stated, that by consent of the parties, the suits above named, were to be .heard at the same time; and the'papers and pleadings filed in one case should be considered and- have full effect in all the cases, to enable the Court to decide the controversies in all the cases on. their respective merits.” And it was expressly agreed, “ that the bill, answers, and orders, the entries, surveys, and patents, in the case of, Bodley and Pogue, should be sufficient, without recording the whole suits. and papers in each of the cases; and-that in th¿.event of either party appealing, the clerk may copy all the papers in all the records; and that when they are so copied and cértified, the transcript shall have the same effect as if there were full and' separate records made out in each ..and all of the cases: and this agreement was declared to be entered into, with the leave of the Court, to avoid expenses in the cases, as they all involve the same questions.”

These agreements cover the apparent irregularities -in the record, as it regards the decrees and the proceedings in the different cases stated; and' obviate the objections on which the motion to dismiss is-founded.

And a further motion is made, to dismiss the appeal as to all the parties named in the citation, who are not parties to the decrees.

The names in the citation are found on the record, as parties to one or more of the several decrees entered. It is very clear, that the parties to -the decrees only can.be made responsible for the costs of this appeal.

Before the decrees were pronounced in the Circuit Court, by consent of the parties, it was entered upon the record, that every agreement or admission on filé, for the preparation of any one of the. cases for hearing, shall extend to all of them. And it was admitted", that the complainants were respectively invested with the titles under the entries of Peter Johnson and Tibbs, and Clark and Tibbs, and Crutcher, as alleged in their several bills. And it was agreed, “ that the Court should give a final decree, without further ascertainment of the boundaries or positions of the particular tracts or settlements óf each claimant or person interested; and that the principles thereof shall be carried into effect as fully as if each tenement and each proprietor were specially named and identified.”

The entries involved in this proceeding were brought before the Court in the case of Bodley et al. vs. Taylor, 5 Cranch, 191; and in their decision, in regard to Walden’s entry as. well as the' others, the Circuit Court followed the decision of this Court.

It is true, the validity of these entries is brought before the Court now by.different parties; and the former decision having been made between other parties, and on a state of facts, some what different from that now before us, does not settle, conclusively, the question in this case. But in looking into the evidence, it is found that the controlling call of Walden’s entry is proved by Kenton and others; and that, the effect of this evidence is not shaken by the testimony on the other side. The calls of the entries are.specific and notorious. Indeed, there seems to be little or no contest between the partiés'oñ this ground; nor as to the survey of Walden’s entry,- as directed by the Circuit Court.

This entry being older and paramount to the-other conflieting.entries; it was-held to be good; "but as the subsequent, entries were made before Walden’s entry was: surveyed, it was, very properly, directed to be surveyed strictly in conformity to its calls.

1 This mode of survey reduced the claim of Walden' several hundred acres below the calls of his original survey. And for the land lying outside of this last survey, and within the original one, the Circuit Court decreed that he should relinquish the possession, and release to-the complainants, respectively, by metes and bounds stated, the tracts covered by their titles.

Commissioners were appointed to ascertain the value of the improvements made by the tenants on the lands recovered by Walden; the value of the rents and profits; the value of the land without the improvements; and''whether waste had been committed, &c. ' A report was made by the. commissioners, which, on motion of the complainants, was set aside, and another .order to the commissioners was made. And afterwards, no steps having been taken by the: complainants to execute the order, the injunction was dissolved, without prejudice to the complainants, ,for any claims they might have for improvements; but the Court refuséd to decree releases from the tenants to Walden of their claim; and also to order a writ to the marshal, directing him to put Walden in possession of the land recovered.

The Circuit Court, it appears, after the final decree was entered, set it' aside at the same term, and entered decrees in each of the cases. After the original decree'was set aside, and before separate decrees were .éntered, the defendant 'moved the .Court for leave to file several answers, to the eases placed on the docket by agreement, and also, a cross bill; which the Court refused. And we think that this application to change the pleadings alter the hearing, and under the circumstances of this case, was very properly rejected.

There are cases .where amendments are permitted’at any stage of the progress of the case; as where an essential party has been omitted; but amendments which change the character of the bill or answer, so as to make substantially a new case, should rarely, if ever, be admitted after the cause has' been set for hearing, much less after it has been heard.

On the part of the appellant, it is contended, that the first and. Second Injunction bills which were filed in this case, before the present one, and which were dismissed, constitute a bar to the relief sought by the present bill

The controversy in, this case, by various causes, has b.een protracted more than, forty years. The judgments in the ejectment cases were obtained' in 1800. In the same year, and shortly, after the judgments were, rendered, Rodley, Hugheb and others, obtained an injunction. This bill .was dismissed, by the Court, in 1809, for want of jurisdiction..

i In I81J, another bill was filed, on- which an injunction was allowed; and which, at 'May term, 1812, was dissolved. The bill was'afterwards dismissed; by the complainants, at rules, in the clerk’s office. On the dissolution of this injunction, writs'of habere facias possessionem were issued for the first time; and these, after being stayed by order of’the judge, were quashed at July term, 1813, on the ground, that the demise’s had expired.

The .demises were.laid, commencing in 1789, fdr ten years;.so 'that they had expired before the judgments were obtained.

In 1817, a .motion was made to extend^ the demises, which was, overruled. But the question was brought before this Court, which' decided they had no jurisdiction of the case, but gave an .opinion favourable to the amendrpent; which induced the Circuit Court, in 1824,. to extend the demises to fifty'years.

In the year .1825, the present bill was filed, ou which an injunction was issued to stay-proceedings on the .judgments, which was continued until the final decree of the Circuit Court.

As the .first bill was dismissed for want of jurisdiction, and .the second by the complainants, at rules, in-the clerk’s office,-it is'clear that neither can operate as a bar to. the present bill. A decree dismissing a bill generally, may be'-, set up'-in bar ’of a second bill, haying the same object in view; but the Court dismissed .the first bill on-the ground that they had no'jurisdiction, which shows that the case was not heard on its. merits. And this also appears from the dismissal by the party of the second bill,dn.the clerk’s office.

I also insisted, that the.decrees of/the. Circuit. Court should he reversed, on the ground that there is an improper joinder of partils.

Were it not fdr the agreements on the. record, the decrees entered in the different cases would be .wholly irregular, and of course, unsustainable. Different interests and parties are .united, and -a decree is made in each case, which determines the matters of controversy in each. But . the agreement of the parties spread upon the -record, and that which is stated by the Court, and the fact of all the causes being brought 'to a hearing and submitted at the same time, afford the most satisfactory evidence of the assent of the parties, and the waiver of all objection to the irregularity of the proceeding. And we are inclined to this view, from the Consideration, that by this mode of procedure, the rights of the parties concerned could in no respect be prejudiced. They were as susceptible of as distinct an investigation' and ’ decision, as if the pleadings had been fully made up’ in each case, and it had been heard separately.

Where parties by agreement dispense with the usual formalities •in the progress of a cause; and no injustice results from.the mode adopted,.the Court should not, on slight ground, sot' aside the proceeding.

It is contended, that .as the complainants, or at least'some of them, entered under the-title'of Walden, as purchasers from Craig, the principle of landlord and tenant ápplies; at least, so far 'as-to prevent the setting up of a title' adverse to that under which they entered.

Craig claimed a certain part of the entry of Walden, Tas purchaser under Kenton, the locator; and he sold to some of the complainants: but as his-title.was not sustained,.the purchasers under him become- interested in the entries of Bodley and. others, and 'received conveyances from them.

'. It is a general rule, that a tenant > shall not dispute his landlord’s title; but this rule is. subject to certain exceptions. If a tenant disclaims the tenure, and claims the fee in his own right, of which the landlord has notice, the relation of landlord and tenant is put an. end to, and the tenant becomes a trespásser, and he is liable to be turned oüt of the possession, though the period of his lease has not expired. 3 Peters, 47. The same relation as .that of landlord and tenant subists betwéen a trustee and the cestui que trust, as it regards the title. In the case of Botts vs. Shields’ heirs, 3 Lit. 34, 35, the Court of Appeals decided that a purchaser of land, who enters into the possession of it under an executory, contract, shall not set up another title. But a purchaser who has obtained a conveyance, holds adversely- to the vendor, and may controvert his title. 4 Lit. 274.

■ It appears from Kenton’s deposition, that-he was paid in land warrants for' making Walden’s entry, and that-he had not, in fact, á shadow of right to any part of this land. He assigned the contract with Walden to locate the land to Fox and Wood;-and after-wards paid them in discharge of this contract, by a conveyance of 1‘and, located by the land warrants received from Walden; but -the contract was not surrendered nor cancelled. So that Craig, as purchaser, procured neither the equitable nor legal title to any part of the land in Walden’s entry.

The claim of Craig appears to have been purchased by Bodley and others,'who at the time claimed under Conflicting and adverse entries to that of Walden,- with the assent of the first purchasers from .Craig; and then deeds were executed to them.

The original purchasers from Craig, who afterwards received deeds from Bodley and others, are deceased; and the lapse of time, and change of circumstances, have been so great, that we do not think the complainants, or any part Of them, can be precluded on the ground of their purchase from Craig, from setting up a title adverse to that of Walden’s. The persons who entered under Craig were in fact, trespassers; for they had no title which could protect heir possession, or shelter them from the consequences, of wrong-doe. s. But on this point we go no further-than to say that such an entry, under the circumstances of this case, does not preclude he complainants from relying oh the adversary titles set up in their bill. Whether any other effect may, result from this entry, as it re-, gards any other right than' the title asserted in the bill, we do not decide.

■The counsellor the appellant contend, that the decree of the Circuit .Court should be reversed, on the ground that, although Walden uias decreed to release his title to such parts of the .land covered by his original survey, and not included in the survey of his entry under the order off the Court, yet the tenants on the land tb which Walden had the better title were not required to execute releases of their title to him.

.But we think there is no error in the decree in this respect.

Walden had the- elder legal- title for the land included in his first survey; it w;as therefore necessary to: decree a conveyance or release from him to the tenants who established a paramount equitable, title. ' But. as.to the land within the corrected - survey, heha'd the elder equitable as well as legal title; it was therefore unnecessary tb decree releases from the tenants, who, from facts before the Court, had neither, the equitable nor legal title.

. There are other considerations which show the correctness of the decree in this-respect.

The tenants- in possession were not parties to the suit; and the Court did .not know the nature or extent of their right. It was clear, that so far as their right was,made known to. the Co,urt by the bill and answer, they had no title to, release. Not .being parties -to the suit, it is véi, clear that'the Court,could not divest them of any interest which was not divested, as a legal cónséquence of -the -recovery of the ejectment suits.

Forty years have nearly elapsed since Walden recovered his judgments. Delays, perhaps without precedent in this country, have occurred in realizing the fruits of these judgments.- To some extent, these delays may be attributed to the expiration of the demises; but they are chiefly to be ascribed to the injunctions which have been granted.' And now the demises, though extended fifty years from 1789, have again expired.

And it'appears from the records in the ejectment cases, which are before us as evidence, that the decease of some of thé defendants retiders a revivor of the judgments'necessary before writs of possession can be issued.

When the final decree was entered in the Circuit Court, the demise had some'years to run; and that Court, w-e thinfc..very properly,refused to decree a surrender of the possession by-the tenants to Walden, but dissolved the injunction. This, under- ordinary circumstances, would have given to Walden all the relief he could ask; and, as was said by the counsel for the complainants, all the relief he prays for in his. answer. But new and unexpected delays have occurred, until-the demises have expired; and the judgments have become dead by the decease of a part of the defendants.

And a question here arises, whether,- on the affirmance of the decrees-of the Circuit Court, it- is not the duty of this Court, under the circumstances of this case, to direct the Circuit Court to-have the value of the improvements estimated, the rents and .profits ascertained, and also any damage which may have been done to the land ; arid then, under.airorder or decree that the tenants should relinquish the possession to Walden, to issue a writ of possession; in.pursuance of the practice of a Court of Chancery in Kentucky.

This in effect would be the samé as the decree ,of the Circuit Court; and it would seem that - it is the only effectual, mode by which this protracted controversy can be. terminated within; any reasonable time. The remedy at law is obstructed by the expiration of the, demises, and the death of defendants, in the judgments. And if this Court have tpe casé before them so as to . send it down-with-.the above directions, we. think they-are bound to do .so. It would be a reproach to the administration of justice,, if in this Casé the parties should be left by the decision of-this Court, apparently,-as remote' from a final determination of it as-they were-forty years ago. ,

- It is true, the answer prays merely for a dissolution of the injunction, and that the-bill'may be dismissed But. .the Court- have, .by the bill, answer; and-evidence, the equitiéS'of the.parties before them.; and having jurisdiction of the main points, they- may' Settle the ■whole matter. Á Court of Equity-'cannot act upon a case which is not «fairly made by the'bill and answer.' .But it. is not necessary .'that'these should point Out, in detail-, the means Which the Court.shall adopt in giving reliéf.- Under the general prayer for relief, the Court, Will -often 'exfond relief beyond the specific prayer, and not exactly in accordance'with it Where a cáse for relief is made in' the bill* it may be-.given by imposing conditions on the complainant consistently with the rules of; equity, in the discretion of’the Court.' _

:In their' decree, the'Circuit Court- required Walden to surrender the' possession’of the land he was...directed to release-, to the complainants; ánd the Court had, unquestionably, the.power to decree a surrender-of the possession to Walden,'by the tenants of .the land recovered by him.- This was not- doné; it is presumed, because it was thought the possession could be. obtained under the judgments, on the dissolution of the injunction. ■ But this, for the reasons ;stated, cannot mow. be done. The remedy under the judgments, as they now'stand, must be attended with additional'expense and delay; and háving the case before us, we think it is our duty to put -an. end to this controversy.

Forty years ago Walden recovered the land by virtue of his. legal right; and we now decide in favour of his equity. He should, therefore, have the aid of the Court in attaining the object he has, so long and -so perseveringly pursued; and that without unnecessary delay. " ■ '

Being satisfied with the'decrees-made in the cases stated by the Circuit Court,-they are affirmed-with the following modification.: The cause will be sent down' to the Circuit Court, with directions to take such steps in regard' to the improvements, and to the putting of Wald.n or his representative'in possession of the premises-recovered in the ejectment suits; as shall be conformable'to the decrees, affirmed, arid the principles of equity.

And as it regards any title or claim which the tenants or any part Of them may set up under the statute of liniitations; as the proper-parties are .not before us, nor thenecessary.facts, we do not .decide on such title or claim. •

This cause came on to- be heard on the transcript of the record from the Circuit- Court of the United States for the District; of Kentucky, and was argued by counsel. On consideration , whereof, it is now here .ordered,- adjudged, and decreed by this Court, that the decrees of the said Circuit Court in the cases stated by the said Circuit Court, be* and the sanie are hereby, affirmed; with the -modification, that this cause be, and the saíne is hereby, remanded to the said Circuit Court, with directions to that Court to take such further steps in regard to the improvements, and to the putting of.Walden or his representative in possession of the premises recovered in the ejectment suits, as shall be conformable to the decrees hereby affirmed,‘and to the principles of equity.


author: Mr, Justice M‘Lean

text:
    Jefferson L. Edmonds and others, Appellants, vs. Anderson Crenshaw, Appellee.
    Where there are two executors in a will, it is clear that each has a right to receive the debts due to the estate, and all other assets which shall come into his hands; and he is answerable for the assets he receives. This responsibility results from .the right to receive, and the nature of the trust. A payment of the sums received by him to his co-executor, will hot discharge him from his liability to the estate. He is bound to account for all assets which come into his hands, and to appropriate them according to the directions of the will.
    Executors are not liable to each other; but each is liable to' the cestuis que trust and devisees, to the full extent of the funds received by him.
    The removal of an executor from a state in which the will was proved, and in which letters testamentary were granted, does not discharge him from his liability as executor; much less does it release him from his liability' for assets received by him and paid over to his co-executor.
    ON appeal from the Circuit Court of the United States for the Southern District of Alabama.
    The appellee, with one James M'Morris, was, by the will of Aaron Cates of South Carolina, made on the 8th day of February, 1816, and proved on the 15th of the same month, appointed executor of the will. Letters testamentary were granted to both the executors.
    The will directs the estate of the testator to be sold; and after the' payment of the debts, directs the executors to invest the residue of the proceeds of the estate in stocks, for the benefit of certain persons named in the will; and who are.appellants in this case.
    The estate was sold, and the account? were settled by the executors with the ordinary. . The executors failed to invest the proceeds of the sales in stocks. This bill was filed to compel a performance of the directions of the will by the appellee.
    The defendant," in the Circuit Court, stated in his answer, that the monies of the estate were not invested in stocks in consequence of the opposition of one of the legatees, a complainant in the bill; and because the sums collected were not sufficiently large. That although at the time of the taking out the letters testamentary, he was a resident of. South Carolina, yet that in 1819 he removed to Alabama, having first delivered over to his co-executor, M'Morris, all the assets of the estate which had ever come to his hands, and took the receipt of the co-executor for- the same, which receipt he filed with the Court of Ordinary which .had granted the letters testamentary, and surrendered to the co-executor the exclusive management of the estate Of the testator. M'Morris had become insolvent.
    The case was heard on the bill, answer, and the receipt; and the Circuit Court ordered the bill to be dismissed. From this decree an appeal was prosecuted to this Court.

      The case was argued by Mr. Key, for the appellants. No counsel appeared for the appellee.
    For the appellants it was contended, that the defendant was bound to invest the proceeds- of the sales in the stocks, as directed by the will of Aaron Cates; and that for .any loss occasioned by his failure to do so, he was liable.
    The renunciation was of no effect. No discharge from liabilities, as executor can be obtained without - the action of the -Court. His liabilities continued, and they were not changed or diminished by his removal to Alabama, .
    The receipt given to him by his co-executor .had no operation pn his responsibilities under the will. While it will be admitted, that one executdr is not liable for payments made to a co-executor; it is •denied that' a payment of the money by one executor to another, instead of a compliance with the, will by.investing the money, has no effect on those liabilities. Cited, 1 Williams on Executors, 148, 149. Ambler,117. 2Williams, 1124. 1 Ventris’Rep.335. 2 Brown’s Ch. Cases, 117. 2 Penn. Rep. 498. Precedents in Chancery, 173. 2 Schoales and Lefroy, Rep. 245. 7 East, 246. 11 Johns. Rep. 16. 116. 16 Yes. Jr. 478. 1 Merivale, 711. 1 P. Williams, 241.
   Mr, Justice M‘Lean

delivered the opinion of the Court.

This is an appeal from the Circuit Court of Alabama.

The complainants, who represent themselves to be the devisees of Aaron Cates, deceased, who, on the 7th of February, 1816, made his will in which he required all his estate, both real and personal, - to be sold at public auction, by his .executors, on a credit of one, two, and three years; the purchaser to give two good freehold securities and a mortgage on the property, to secure the payments. Three bequests, of one hundred dollars each, were made to certain individuals, to one of whom he gave his wearing apparel. After the payment of these bequests, his funeral expenses, and ten per Cent, on monies collected by,his executors, be directed that his exeoutors should vest the entire balance, including the net proceeds of His estate then in their hands, in bank stock; or in shares or capital of such companies or corporations as in their judgments .should be most proper and productive, in trust for certain uses, and subject to certain restrictions: and he appointed “ His friends, Anderson .Crenshaw and James M‘Morris, executors; and on the death of either, the survivor was to be sole executor, with, power of appointing, either by deed or by will, a proper person to carry into effect the provisions of the will.”

On the death of the testator, the executors proved'the will in the ordinary’s office for Newberry district, in the state of South Carolina, and qualified as executors. They caused the property to be appraised and sold, and made returns thereof to -the above office: the sale bill, they allege, amounted to the sum of twenty-five, thousand orie hundred and forty-four dollars. And the complainants State that at .the time of his decease, the testator had a considerable sum of money on hand, and that many'debts on accounts, notes, bonds* and mortgages, were due to him^ and afterwards came into the hands of his executors.

The bill alleges that the -defendant, one bf the executors, so,me years since, removed from the state of South Carolina to the state of Alabama, without vesting or causing to be vested any part of the funds, belonging to the estate, in the hands of the executors. That the defendant left the state of South Carolina without settling'the •estate or accounting for the funds which came intp his hands; that M‘Morris continued to act as executor; and that there is in the hands of the .executors about the sum of sixteen thousand dollars, funds of the estate; and that they have .neglected, and. refused to account for and pay over thé same. That M'Morris is insolvent; and the complainants pray that the executors may account, &c.

The defendant, Crenshaw, in his answer, admits that Aaron Cates made the will, as stated in,the bill,.and that it was proved; that he was qualified with M'Morris as executor, made the returns to the ordinary as stated, but does not recollect the amount of the estate. He states that a .part of the.-.estate sold by the executors was recovered from-the purchasers, by others; and’ that debts to a considerable ' amount were paid by the executors. He ’ admits that in the year 1819 he removed to Alabama: and that the executors previous to this time made no investment of the funds, .because the amount on hand was small, and Mrs. Wadlington, one of the legatees, and only daughter of the testator; and who was the natural guardian- of her then infant children, who were the principal- legatees, opposed such investment by every means in her power.

And' the defendant states that before he left South Carolina, he surrendered up and delivered oyer to M'Morris, his co-executor, all the assets of the- estate which had come to his hands; including cash, evidences-pf debt, and other liabilities; and took from him a receipt, which is made a part of the answur. That until this time, he and his co-executor had -made correct returns to the ordinary of their proceedings;- and that since then, he has not intermeddled with the estate.

■ The parties',agréed to go to a hearing on.the bill and answer; and that the receipt referred to in,-the answer given by M'Morris to the defendant, should be considered as duly proved.

On the bill, answer, and-receipt, the question arises whether the defendant is discharged'from the trust under the will.

' Where there are two executors in a will, it is clear that each has a right to. recéive thé debts due to the éstate, and all other assets which shall come into his hands; and-he is responsible for the assets he .feceivesi This responsibility results from the right to receive, and the nature .of the trust: and how can he discharge himself from,this responsibility?

Jn this case the defendant has attempted to discharge himself from, responsibility, by paying over the, assets .receivéd bv him to his co-éXLMitor. But such payment cannot discharge him. ' Having received the assets in his capacity of executor, he is bound to account for the same: and.he must show that he has made the investment required by the will, or in some other mode, and in. conformity with the trust, has applied thé ftinds.

One executor having received funds cannot exonerate himself, and shift thé trust to his co-executor, by-paying over to him the sums received. Each "executor 'has a right to receive the debts due to thé estate, arid discharge the débtors; but this rule does not apply as between the executors. They' stand ujxon equal ground, having equal rights, and the Same responsibilities. . They are not liable to each other, but each is liable to the cestuis que trust, to'the frill extent of the funds he receives. Douglass vs. Satterlee, 11 Johns. 16. Fairfax’s Executors vs. Fairfax, 5 Cranch, 19.

The removal of the defendant from the state did not. render him incapable of-discharging his duties as executor; much less did it release him from the assets he received and paid over to his co-executor.

. In the case of Griffith vs. Frazier, 8 Cranch, 9, this Court' held; “ that an .executor who absents himself from the state after taking out letters testamentary, is still capable of performing, and is hound to perform, all the duties of executor.” This was a case where there was but orie executor.

The liability of the defendant arises under the laws of South Carolina, which regulated his duties as executor. He is responsible for all the assets of whatsoever kind which came into his hands as executor; and which he has riot accounted for and paid over, as directed by the will.

The Circuit Court held, that the facts set up in th.e answer, with the' receipt of his co-executor, released the defendant from his trust; and from all responsibility under it. In this the Court erred, and their decree on this ground is reversed and annulled,; and the cause is remanded to that Court, with directions to have an account taken of all the assets which came into.'the possession of the defqnd^nt as executor, and to enter'a decree in favour of the complainants against him, for the amount he. shall have received and not accounted for to the ordinary, and paid over, in conformity with this-opinion.


author: Mr. Chief Justice Taney

text:
    Richard Raynal Keene, Plaintiff in error, vs. Warren Whitaker, Laura Wade, George Dougherty, Francis Marks, and C. Cunningham, Defendants in error.
    The case of Foster and Elam vs. Neilsofi, 2 Peters, 254; and Garcia vs. Lee, 42 Peters, 511, which cases decide against the validity of the grants 'made by the Spanish government, in the territory lying west of the Perdido river, and east of the Mississippi river, after the Louisiana treaty of 1803, cited and affirmed.
    ON appeal from the Circuit Court of the United States for East Louisiana.
    On the 26th November, 1833, the appellant filed a petition in the .Circuit Court of the Eastern District of Louisiana, claiming under conveyances to him from Daniel Clarke, deceased, a tract of land, of nine hundred and forty-seven acres, part of thirty thousand arpents, which in 1804 had been, granted by the Spanish intendant, Don Juan Ventura Morales, in the name of the Spanish government, to Don Gilberty Andry, who was the vendor of part of the tract to Daniel Clarke. This tract was situated in that part of what-was alleged to be a part of Louisiana, by the United States, between the river Perdido, and the river Mississippi, fiiey claiming the same under the cession of France to the United States of Louisiana. The United States had asserted that this country had been trans ferred- to France by Spain, by the treaty of St. Ildefonso, of 1800, and under- the treaty with France belonged to the United States. Under this claim the United States had caused sales of the land to be made; and the defendants in error had become the purchasers under the United States, of the tract which the petitioner asserted to belong to him under the grant to Don Gilberty Andry.
    The petition prays proceedings against those who had purchased from the United States; and all just and legal aid in the premises.
    The defendants, in ■ their answer to the petition, allege, that subsequently to the treaty of St. Ildefonso, of 1800,. the Spamsh government never had any right or title to the property claimed. By that treaty, the whole of the territory lying between Mississippi and the Perdido, including' the land claimed by the plaintiff, belonged, under the treaty with France, to 'the United States. The ■property of the defendants -is held under titles from the United States.
    The Circuit Court made a decree against the plaintiff, who, thereupon, prosecuted this writ of error.
    . The case was submitted to the Court by Messrs. Key and Jones, the 'counsel for the plaintiff in error, without argument.
   Mr. Chief Justice Taney

delivered the opinion of the Court.

This case comes up by writ of error from the Circuit Court of the United States, for the District of East Louisiana. It hás been submitted by the counsel for the plaintiff in error, without argument; and upon looking at the case as agreed on and stated by the parties in the Court below, it is evident, that the principles laid down in the case of Foster and Elam vs. Neilson, 2 Peters, 254; and Garcia vs. Lee, 12 Peters, 511, must decide this case against the plaintiff. The judgment of the Circuit Court must, therefore, be affirmed.

This ca-use came on to be-heard on the transcript of the record ■from the Circuit Court of the United States for the Eastern District of -Louisiana, and was argued by .counsel. On consideration whereof, it is now here ordered and adjudged by this Court, that the .judgment of the said Circuit Court, in this cause be, and the same -is hereby, affirmed, with costs.


author: Mr. Justice Story

text:
    James Taylor, Appellant, vs. Nicholas Longworth and Thomas D. Carneal, Appellees.
    Specific performance of a contract by T., for the sale by. him of a lot of- ground in the city of Cincinnati, was asked, by a bill filed in the Circuit Court for the District of Ohio, by ,L. The complainant in the bill had purchased the lot, and had paid according to the contract, the proportion of the purchase'money payable to T. By the contract, a deed, with a general warranty, was to have been given by the vendor within three months, on which a mortgage, for the balance of the purchase money was to have been executed by the purchaser,.- This deed was never given or offered. The purchaser'went irito possession of the lot, improved it by. building valuable'stores upon it, and sold a part of it A subsequent agreement was made' with the vendor, as to the rate of interest to bfe paid " on the balance !of the, purchase money. The purchase was made in 1814, and the interest, as agreed Upon, was regularly paid until 1822, when'it was-withheld. In 1822, the Vendor instituted an action, of c'ectment for the recovery of the property,-and he obtained possession of the same in 1824. In 1819, the purchaser was informed that one Chambers and wife had a claim on tbp lot, which.was deemed valid by counsel; and in 1823, a suit for the recovery of the lot was instituted by Chambers andwiiv against T. L. and others, which was 'depending until after 1829. In-1825, this -bill was filed, claiming ftom-T. a conveyance of the property under the contract of 1814, on the payment of the balance of the purchase money and interest. The Circuit Court decreed a . conveyance; .and the decree was aifirmed by the Supreme Court.
    After the filing of the original bill, amended bill, and answers, tha Circuit Court considered .that C., whcrheld a part of the' lot purchased by L., should be made a party complainant; . and he came in and submitted to such decree as might be made between the original parties. ' Held, that'this was regular.
    There is no dpubt that time may be of the essence of a contract for the sale of property. It may be made so by the express stipulations of the 'parties, or it may arise by implica- ' ■ tion from the very nature of the property, or the avowed objects of the seller-or the purchaser. And even when time is not thus, either expressly or impliedly, of the essenoe of . the contract, if the party seeking a specific performance has- been guilty of gross laches, orhas been inexcusably negligent in performing the contract on his part, or if there has, in-the intermediata'periods, been a material change! in circumstances, affecting the rights, interests, or obligations of the parties, in all such cases, Courts of Equity Will refuse to decree any specific performance, upon the plain ground that it would be inequitable and unjust But, except under circumstances of this sort, or of an analogous nature, time is not treated by Courts of Equity as if the essence of the contract; and relief will-be given to the party who seeks it, if he has not been grossly negligent,'and' comes within a reasonable time, although he has not complied with the strict terms of the contract. But in all such cases, the Court expects the party to make out a case free from all doubt, and to show that the relief which he asks is, under all the circumstances, equitable; and to account in a reasonable manner for his delay and apparent omission of-duty.
    The rule that the purchaser of property shall prepare and tender a deed of conveyance of the property to the vendor, to be executed by him; although prevailing in England, does not seem to have been adopted in some of the states of -the United States. ■ In Ohio the rule doeB not prevail. The local practice ought certainly to prevail, and'to constitute the proper guide in the interpretation of the terms of a contract.
    ON appeal from the Circuit Court of the United States for the District of Ohio.
    The appellee, Nicholas Longworth, brought a suit, by-a bill in the Circuit Court of Ohio, for a specific performance of a contract itiade with James Taylor, for the sale, by Taylor to him, of a lot of ground in the city of Cincinnati. Afterwards, Thomas D. Carneai was made a party to the proceedings. The Circuit Court made a decree in favour of the complainants;'. and the defendant, James Taylor, prosecuted this appeal.
    • The.facts of the case are stated fully in the opinion of the Court. It was submitted to the Court on printed arguments, by Mr. Storer and Mr. Fox, for the-appellant; and by Mr. Chase, for the appellees.
   Mr. Justice Story

delivered the opinion of the Court.,

This is an appeal, from a decree of the Circuit Court of Ohio, in a suit in'equity, brought by Longworth, the appellee, against Taylor, the appellant, for a specific performance of a contract for the purchase of land.

The facts; so far as they are important, to be considered upon the present appeal, are as follow: On the 5th of April, 1814,by a sealed contract between the parties, Longworth purchased of Taylor-part of a: lot in Cincinnati, No. 81, for the price of- one hundred 'and twenty-five dollars per foot in front, whatever measurement it should hold out, one-third payable on signing the contract, one-third in six months, and .the remaining-third in twélve months. A deed of general warranty was to be given by Taylor, in the course, of three months; and a mortgage was to be given on the premises by Long-worth, to secure the remaining payments. On the same day, by a written endorsement on the contract, Taylor acknowledged the receipt of the'sum of two thousand four hundred and fifty-eight dollars and thirty-three .cents, “supposed to be about .the first payment.’-’ The whole purchase money upon the admeasurement of the lot, amounted to seven thousand four hundred and six dollars and twenty-five cents. No deed was executed by Taylor according to the contract, or at any timé subsequent: but Longworth was put in immediate possession of the lot: When the second instalment of the purchase money became due, it was not paid; but by.an arrangement between the parties, it was postponed upon Long worth’s agreeing to pay the same interest annually thereon, as was received for dividends upon stock in the Miami bank, which was nine or ten per cent. This interest was accordingly paid up to near the close of the year 1819; and in the intermediate time Longworth caused four houses, to be built, for stores, on -the lot, at the cost of about 'four thousand four hundred and sixty-four dollars. In the year 1819,' or the beginning of 1820, Longworth was informed that one Chambers' and his wife had a claim on, the lot, .which was deemed valid by the counsel employed to investigate it;, and that a suit would be com- - snenced on it. A suit was accordingly commenced in equity, against Taylor, Longworth, and others, in November, 1823, which was not determined until after 1829. In September, 1822, no interest on the purchase money,having-been paid by Longworth after 1819, Taylor commenced an action of ejectment against Longworth, for the lot; and recovered possession thereof in August, 1824.

In June, 1825, the pr^ant -bill, inequity was brought by Lop-worth; for a specific performance of the original contract for the purchase of the lot. In the progress of the cause, several supplementary and amended bills were filed; and after the answers were put in, and the evidence taken, the cause came on to be heard; and the Court being of opinion that one Carneal, a citizen of Ohio, who was assignee of one Canby, a subpurchaser of a part of the lot from Longworth, ought to be made a party to the suit, the cause was difected to stand over :.and he was accordingly made a party plaintiff, and came in and submitted to such decree as might be made by the Court on the case, as it then stood between the original parties. The cause was afterwards fully argued, and a decree, for a specific performance was pronounced; from which the present appeal'has been taken.

Some question has been suggested in respect to the propriety of making Carneal a party at so late a stage of the cause; and of the right of Taylor, in virtue thereof, to insist by way of plea upon his exemption from being sued, except in the District of Kentucky, where he resided. But we do not think that there is any valid objection to the proceedings on this account. By his general appearance to the suit in the prior proceedings, Taylor necessarily waived any objection to the suit founded on his residence in'another district; and he became, like every other party properly before a Court of Equity, subject to all the orders of the Court. Whether Carneal, as a sub-purchaser, was an indispensable party under all the circumstances of the case, may admit of doubt; but, as his being made a party in no respect changed the actual posture of the case as to the other parties, he merely submitting to be bound by the proceedings, we see no objection to his joinder in that stage of the cause, which in any degree touches either the propriety or the validity of the decree.

The only substantial question in the cause, is, whether, under all the circumstances, the plaintiff, Longworth, is entitled to a specific performance of the contract for the'purchase : and upon the fullest-consideration we are of opinion that he is, and that the decree is therefore right. We shall now proceed to state, in a brief manner, the grounds upon which we hold this opinion.

In the first place, there is no doubt that time may be o.f the essence of a contract for the sale of property.. It may be made so by the express stipulations of the parties, or it may arise by implication from the very nature of the property, or the avowed objects of the seller or the purchaser. And even when time is not'thus either expressly or impliedly of the essence of the contract, if the party seeking a specific performance has been guilty of gross laches, or has been inexcusably negligent in performing the contract on his part;' or if there has, in the intermediate period, been a material change of circumstances, affecting the rights, interests, or obligations of the parties; in all such cases, Courts of Equity will refuse to decree any specific performance, upon the plain ground that it would be inequitable and unjust.

But except under circumstances of this sort, or of an analogous nature, time is not treated by Courts of Equity as of the essence of the contract: and relief will be decreed to the party who seeks it, if he has not been grossly negligent, and comes within a reasonable time, although he has not complied with the strict terms of the contract. But in all such cases, the Court expects the party to make out.a case free from all doubt; and to show that the relief which he asks is, under all the circumstances, equitable.; and to account in a reasonable manner for his delay, and apparent omission of his .duty.

It does hot seem necessary to cite particular authorities in support of these doctrines, although they are very numerous. It .will be sufficient to refer to the eases of Pratt vs. Carroll, 8 Cranch, 471. Pratt vs. Law, 9 Cranch, 456. 493, 494, and Brashier vs Gratz, 6 Wheat. 528; in this Court; and to Seton vs. Slade, 7 Vesey, 265. Halsey vs. Grant, 13 Vesey, 73. Alley, vs. Deschamps, 13 Vesey, 225. Hearn vs. Tenant, 13 Vesey, 289, and Hepwill vs. Knight, 1 Younge and Coll. 415, in England, as affording illustrations in point.

In applying the doctrines above stated to the facts and circumstances of the present case, the first remark that occurs, is, that the first default was on the part of Taylor. By his contract he undertook' to make a deed of general warranty of the premises in the course of three months after the date of the contract; the second instalment not being payable until a long time afterwards. He never made any such deed, or offered to make it; and if he had, it is obvious, that instead of his being placed in the situation of a de-fendant in equity, as he now is, he would have been compelled to be a plaintiff either to enforce a specific performance, or to rescind the contract. Now, the plain import of the words of his contract is, that he will make the deed. The excuse for the omission is, that it was the duty of the other' side to prepare and tender a formal deed to him for execution. And authorities are relied on, principally from the English Courts, to show, that in all cases of this sort, the established rule is, that the vendee shall prepare and tender the conveyance. This is certainly the rule in England, founded, doubtless, upon the general understanding and practice' among conveyancers, as well as upon the peculiar circumstances attendant upon conveyances in that country. The same rule does not seem to have been adopted generally in America, although it may be adopted in some states. In Ohio, the rule is stated by the learned judge who decided the present case, nót to prevail; and the local practice, in a case of this sort, ought certainly to constitute the proper guide in the interpretation of the terms of the contract. But waiving this consideration, let us proceed to others presented by the case.

Up to the close of the year 1819,.there is no pretence to say that there had been any violation of the contract on the part of Long-worth; and no step whatever was taken by Taylor, until he brought the ejectment in 1822, to enforce the contract. That ejectment he asserts in his answer to have been brought in order to compel Longworth to complete the contract, or to., put. an end to it. In the mean' time, Longworth had been left in, the possession of the premises under the contract, had made improvements upon them, and had received the rents and profits with, the acquiescence of Taylor. Under’ such-circümstances, where there, had been a part performance, and large expenditures on one side, under the contract, and acquiescence on the other side; it would be incompatible with established doctrines, to hold that one party could, at his own- election, by a suit at law, put ah end to the contract. It .could be rescinded by Taylor only, by the decree of the Court of Equity.'; which decree would, of course, require full equity to be'done to the other party; under , all the circumstances. Pending the ejectment, Longworth made several propositions, for payment, varying from the. original conditions, all of which were .declined by-Taylor; although.it seems, that Longworth supposed that some of them would have been satisfactory. 'The recovery in the ejectment was, of course, successful, as the legal title was in- Taylor; and the equities of Longworth could not be matters of defence to that suit.

The present bill was brought in the .succeeding' year; and the question is, whether, under all the circumstances of the case, Long-worth is now entitled to a specific performance of the contract, upon his paying all the arrears of the purchase money; Undoubtedly, if there were no grounds of .excuse shown accounting for the delay-on his part to fulfil the contract, between September, 1822, when the ejectment was brought, and-June, 1.825, when the present.'bill was filed; there might be strong reason to cohtend that he was not entitled to a specific performance of the contract, even if some other ¿réljef on account'of his improvements might be deemed equitable. But in point of fact, the adverse claim of Chambers and wife to the property, was made known as early as the year 1820; and was asserted by counsel; who were consulted on that occasion, to be •valid. The claim was prosecuted (a's has.been already stated) by a suit in equity, brought in 1823, against Taylor, Longworth, and Others; and remained undecided until the close of the year, 1829. There is no pretence .to say, that this claim was not bona fide asserted,. or. that Longworth brought it forward to coyer his own default. While it was known and- pending, there is as little pretence to say, that Longworth could be compelled to complete the contract on his side; or that he had not a right to lie by, and await the decision of the title, which thus hung, as a cloud, upon that of Taylor. It is one thing to say, that he might waive the objection; and require a conveyance on the part of Taylor; and quite another thing to say, that he was compellable, at once, to'elect at his peril, either to proceed on the contract, or to surrender it. There is no ground to assert that from the commencement of the. present suit, Long-worth has not always been ready and willing to pay up the arrears of the purchase money, and to complete the contract. The proofs in the case are entirely satisfactory on this head. In our opinion, the lapse of time is fairly*accounted' for by the state of the title; and therefore, Longworth has not been guilty of any delay, which’ is unreasonable or inexcusable.

There is another view of this subject, which seems equally decisive of the' merits of this controversy. If the contract hachbeen strictly performed on the part of Taylor, by a conveyance,’he would now nave stood in the mere character of a mortgagee; for in that-event Longworth stipulated to give him a mortgage for the security of the unpaid purchase money. Now, in the view of a Court of Equity, that may well be deemed the true’ posture of t-his^case; upon the known principle, that equity will, for -the purposes of justice, treat that to have been done, which ought to have been done. As mortgagee, which would be his character according to the real intention of both parties, Taylor- could have no right to complain of the lapse of timé; and could have- no claim to the improvements made by -Longworth, except as security for his debt. In this’ view of the matter it is wholly unimportant for us to consider whether the amount of the rents' and profits received by Long-worth, was equal to, or a set off to his expenditures and improvements, as affirmed in the answer.

Upon the whole,” we are entirely satisfied with the decree of the Circuit Court, and it is affirmed, with, costs.

. This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Ohio, and was argued'by counsel. On consideration whereof, it is now here ordered and decreed by-this Court, that the decree of the said Circuit Court in this cause be, and the same, is hereby, affirmed, with costs.