author: Mr. Chief Justice Taney

text:
    Lessee of Effie Coons, and others, Plaintiffs in error, vs. Charles P. Gallaher, Defendant in error.
    It is not sufficient to give the Supreme Court jurisdiction in the case of a writ of error to the Supreme Court of a State, tjiat the question as to the construction of an act of Congress, might have been raised and might have been decided, and was involved in the case. It must appear either in direct terms, or by necessary intendment, that it was in fact'brought to the notice of the Court, and decided by it
    The case of Crowell v. Randall, 10 Peters, 398, cited.
    WRIT of error to the Supreme Court of the State of Ohio, to reverse the judgment- of that Court.
    The original action of ejectment was brought in the Court of Common Pleas of Clinton county, and taken thence by appeal to the Supreme Court; where it was tried, and a verdict and judgment given for the plaintiffs, at May term, 1833. After-wards, a new trial was ordered; and on a ease stated, a judgment was rendered by the Court in favour of the defendant. The plaintiff prosecuted this writ of error.
    The case was argued, on the «íerits, by Mr. Leonard, for the plaintiff^; and by Mr. Buck,.for the deféndant.
    The decision of the Court having been given on the question of jurisdiction, those arguments are omitted.
   Mr. Chief Justice Taney

delivered the opinion of the Court.

This case arises upon an action of ejectment, which was decided in the Supreme Court of the State of Ohio, for the county of Clinton; and being brought here from a State Court, we have no authority to revise the judgment,- unless jurisdiction is given by the 25th section of the act of 1789.

The land is situated in what is usually called the Virginia military district, and, at the trial, both parties derived title-under the act of Congress of March 2, 1807, which was passed for the purpose of extending the time for locating Virginia military land warrants, between the Little Miami and Sciota rivers.

The plaintiffs made title as heirs-at-law of Thomas J.M'Arthur. who obtained a patent for the lands in question, in 1823, upon an entry and survey made for him in that year, as assignee of part of a military land warrant granted to John Trezuant.

The defendant, who was in possession of the land, claiming it as his own, in order to show title out of the plaintiffs,-offered in evidence an entry in the name of John Tench, assignee of part of the aforesaid warrant to Trezuant,made on the 8th of August, 1787; and a survey pursuant to the said entry, on the 7th of March, 1794, which was recorded, June 24, 1796.

The plaintiffs having produced a complete legal title, as above stated, the prior survey of Tench, was no bar to their recovery, unless it was made so, by the act of 1807, before referred to. The first section of that act contains the following provisor “That no locations as aforesaid within the above mentioned tract, shall, after the passing of this act, be made on tracts of land, for which patents had been previously issued, or which had been previously surveyed; and any patent which may nevertheless be obtained for land located contrary to the provisions of this section, shall be considered as null and void.” •

It seems to have been admitted in the State Court, that this act of Congress intended to protect those surveys, only, that were made bylawful authority; and that the survey of Tench was no defence, unless it appeared that he was, in truth, the assignee of a portion of. Trezuant’s warrant. No assignment was produced at the trial, but evidence was offered by the defendant, from which the Court may have presumed an assignment; and testimony was also introduced on the part of the plaintiffs to rebut that presumption. The controversy in the State Court turned, it would seem, mainly on this point, which was decided in favour of the defendant. And the decision of that quéstion certainly did not involve the construction of the act of 1807; and furnishes no ground, for a writ of error to this Court.

Another point has been raised in the argument here, on the part of the plaintiffs in error. It is contended that the proviso in the act of 1807, applies only to conflicting patents and surveys,'made under different warrants from the state of Virginia; and that it does not extend to a case like the present, where the controversy arises upon assignments made by the same individual, upon the same warrant.

Undoubtedly such a point might have been raised and decided, in the State Court, upon the case presented by the record; and if it had appeared, that such a question, upon' the construction of the act of Congress, had been raised, and had been decided against the plaintiff, it is very clear that the judgment could have been revised in this Court.

But the record'does not show that this point was raised by the plaintiff, or decided by’the Court. It is not sufficient that the point was involved in the case,- and might have been raised, and might have been decided. It must appear either in dire.ct terms, or by necessary-intendment, that it was. in fact brought to the notice of the Court, and decided by it. ' This is the rule settled in the case of Crowell vs. Randall, 10 Peters, 398; in wh,ich all of the former cases upon the subject Were reviewed and considered.

In the aspect in which the case comes before us, there was no controversy in the Ohio Court, in relation to the construction of the act of 1807; arid it would seem, from the record, to have been conceded on all hands, that Tench’s’survey was a good defence, if the assignment from Trezuant could be established. Indeed, if there was. any point raised, and decided upon the construction of the act of Congress, the decision'appears to have been in favour of the right claimed, and not against it. The plaintiffs in error, at the trial in the State Court, produced a complete legal title; and the survey.of Tench, as.we have already said,.would have been no defence to the action,unless if was' made so by- the act of 1807. ' It was the defendant, therefore, and not the plaintiff, who invoked the aid of the statute, and claimed the right under it, The decision was in-his favour, and by that means a m,ere equitable title, which, upon general principles of law, would have beén no defence against the legal title produced by the plaintiffs, was adjudged to be a good and valid defence, under and by virtue of this act of Congress. ' The decision, therefore, was in favour of the right claimed, and not against it; and if the construction of the statute is, upon this account,'to be regarded as drawn in question, the judgment given would afford no ground for the jurisdiction of this Court.

In either view of the subject, therefore, the writ of error must be dismissed, for- want of jurisdiction.


source: Caselaw Access Project

author: Mr. Justice M'Lean

license: Public Domain

text:
    Susan Mayburry, Appellant, v. John M'Pherson Brien, and others, Appellees.
    Dower. — Dower is a legal right; and whether it be claimed by suit at law or in equity, the principle is the same. On a joint tenancy, at common law, dower does not attach.
    No title to dower attaches on a joint seisin of real estate. The mere possibility of the estate being defeated by survivorship, prevents dower.
    If the husband, being a joint tenant, convey his interest to another, and thus at once destroy the right of survivorship, and deprive himself of the property, his wife will not be entitled to dower.
    :The time of the delivery of a deed may be proved by parol.
    By the common law, dower does not attach to an equity of redemption. The fee is vested in the mortgagee, and the wife is not dowable of an equitable seisin.
    When the husband takes a conveyance in fee, and at the same time mortgages the land back to the grantor, or to a third person, to secure the purchase, money in whole or in part, dower cannot be claimed as against rights under the mortgage. The husband is not deemed sufficiently or beneficially seised by an instantaneous passage of the fee in and out of him, to entitle his wife to’dower as against the mortgage.
    It is the well established doctrine, that of a seisin, for an instant, a woman shall not be endowed.
    APPEAL from the Circuit Court of the United States for the district of Maryland.
    The case was presented' to the Court on a printed statement, and a printed argument by Mr. Mayer, for the appellant; and was argued by Mr. Meredith and Mr. Nelson, for the appellees.
    .A bill was filed in this cause by the appellant, as widow of Willoughby Mayburry, claiming dower from John Brien, purchaser of the estate, in real estate, in Frederick county, designated as “ The Catoctin Furnace, and all the lands,” (described by the names of tracts,)annexed or appropriated to it,” and also claiming rents and profits from the death of Willoughby Mayburry. The real estate in question was conveyed by Catharine Johnson, Baker Johnson, and William Ross, as executors of Baker Johnson, to Willoughby Mayburry find Thomas Mayburry, by deed, dated 5th March, 1812. By deed, dated 9th March, 1813, Thomas Mayburry conveyed to Willoughby his undivided moiety in the estate; and by deed of the same date, Willoughby mortgaged' to Thomas, all his (Willoughby’s) interest in the Catoctin Furnace, and the lands attached to it,- to secure payment of certain obligations from Willoughby to Thomas. The .answer admits the. marriage of the appellant, and the death of Willoughby; and that she was married to him when the deed to Willoughby and Thomas was executed; but it insists that, simultaneously with the delivery of the deed, a mortgage was executed by Willoughby and Thomas to the grantors in the deed, to secure a part of the purchase money, payable by them for the estate. The answer further states, that the mortgage was foreclosed; and that, under the decree, the respondent, John Brien, became purchaser of the estate; and the answer insists that the plaintiff was not entitled to dower in the property. The mortgage, which-the answer speaks of, is dated the 19th March, 1812, fourteen days after the date of the deed to Willoughby *and Thomas. The only testimony taken in the case was William Ross’s; which was taken subject to all exceptions to its admissibility and effect. His testimony is, in substance, that the estate’was sold by him and his co-executors, to the Mayburrys, for thirty-two thousand dollars; that part was paid in hand, and that, for the residue, a credit was stipulated, to be secured by mortgage; that the deed to the Mayburrys was prepared and executed, and acknowledged on the 5th March, 1812, by himself and the other executors ; and that he then retained it, to be delivered on receiving payment of the cash part of the purchase money, and receiving from the Mayburrys their mortgage; that the mortgage was executed by them on 19th March, 1812, and that whe.n executed, the deed was delivered to them, and the mortgage was received from them; and that, as witness says, “ the delivery of the deed and the mortgage were simultaneous acts.” The desposition also states, that the deed of Thomas to Willoughby, and the mortgage from Willoughby to Thomas, were simultaneous acts. The transcript of record of the foreclose of the mortgage was exhibited in evidence, subject to all exceptions.
    During the cause, the original defendant, John Brien, died,-and his heirs were made parties by bill of revivor. A decree (pro forma) was passed, dismissing the bill. The mortgage of the Mayburrys to the executors-of Baker Johnson, has a covenant on the part of the Mayburrys, that after default in payment of the mortgage debt, the property shall remain to the mortgagees, free and clear of all mortgages, judgments, charges, or encumbrances whatsoever; and also a covenant of the mortgágees, that until default in payment of the mortgage debt, the Mayburrys “are to continue in full possession- of the premises aforesaid, enjoying all the rents and profits thereof,-to their own particular vise and benefit.”
    The counsel for the appellant contended,
    1st. That the deed of the executors of Johnson to the Mayburrys, when the subject-matter of the conveyance is regarded, • must be construed to create a tenancy in common, and not a joint tenancy.
    3d. That the rule which denies dower in case of joint tenancy, applies only in behalf of the surviving joint tenant, and to prevent interference with-his enjoyment of the estate as survivor-: and that therefore if the dfeed created in the Mayburrys a joint tenancy, the plaintiff.here may call in aid the release to her husband of the other joint tenant’s interest in. the property.
    3d. That ho evidence was admissible to show that the deed to the Mayburrys was not delivered when Jt bears date, for the purpose of contradicting the terms of the deed which vests in the Mayburrys-the beneficial interest in the property.
    4th. That the principle which excludes dower in a case- of merely instantaneous seisin, applies only wbyré the grantor acts in carrying out a naked trust and a simply instrumental part, and not where any.interest, immediate or contingent, attaches to the grantee under the conveyance. That it cannot apply to a case of a purchaser who mortgages, and especially when part of thé purchase money,.as in this instance, is paid when the mortgage is given; the proper view in such case being, that .legal assurances being adopted, their strictly legal and intrinsic import is to prevail, without blending th.em together by any equitable construction.
    ' 5th. That there is no evidence of any contract whatsoever, making the delivery of the deed of the executors dependent on a mortgage being delivered at the same time; and .that, according to the true understanding of all that transpired, the deed >of the executors remained in Mr. Ross’s hands as a deed, ana not as an escrow, and was left by his co-executors with him as if a stranger, and had relation, when actually delivered, to the date when it was handed to Mr. Ross to be retained.
    6th. That in the absence, especially, of all contract for a simultaneous delivery, the conveyance to the Mayburrys must be regarded as vesting in them the beneficial use of the estate, although for an instant, and if so, there was a seisin which gave rise to dower ; and that this must be the result, even independently of the covenant with the Mayburrys for their use and enjoyment of the estate until default, as contained in the mortgage ; and that the covenant characterizes the seisin, not only as beneficial, but as virtually continuing.
    Mr. Mayer, in a printed argument, stated:
    The terms of the deed to the Mayburrys, from the executors of Johnson, import joint tenancy in the Mayburrys; but if the pecuniarily of the property conveyed is considered, it is believed that there will be no difficulty in concluding that only a tenancy in-common was created. The property conveyed was a furnace establishment, and the land is given as virtually incident to that manufactory; and subservient to the business. It is settled that real estate conveyed to. several parties for partnership purposes, or which is useful only for some business, is held by the parties as tenants in common, and not as joint tenants. The nature of the subject conveyed is enpugh to show why i1> was acquired, and it is'unnécessary to prove any actual use for a joint.enterprise; in the absence of such direct proof, the law inferring the intended appropriation from.the character and capacity of-the property. In none of the cases has proof of an agreement to purchase for partnership purposes been required. In the cases, in fact, now cited here, no such agreement did appear. Lake vs. Craddock, 3 P. Wms. 158. 15 John. R. 159. 9 Ves. Jr. 5Ó0. A manufactory was here conveyed to two. In the absence of contrary proof, it is to be understood to have been, acquired to be used— and if used by the two parties for its natural purposes, the use of it would make them partners in its business. It is the principle of the common law which in favour of trade excludes survivorship, where property owned by two is .used or useful only for trade or business; and.to no instance could it apply more forcibly than to the instance of a furnace. , Thus, too, where two persons hold a ship together, although not general partners, nor qven shown to have used it, the control of a surviving partner to sell is not permitted to the survivor of the owners — the propérty being deemed a tenancy in common. Even that ordinary,control of a surviving partner is only given as a matter of necessity in the instance of the merchandise of the partnership and the partnership claims: — and in süch cáse he is allowed to act in reference to the interest of the deceased as a' trustee. If the estate here was a tenancy in common, dower of course attached; uñless the seisin was not of a character to allow it. In this country every construction should oppose joint tenancy, and particularly in Maryland, which has abolished it by act of 1822, ch. 262.
    In this case the interest of the other party was released to the husband of the appellant. It might be contended that dower is denied in joint tenancy only in behalf of the surviving tenant; and that, subject, only to his supervening right, there is an incipient dower interest in the wife in cases Of. joint tenancy as in tenancies in common. íf that were so, the release here would establish the dower claim. There is no. cáse that has been found, which fixes,- in terms, the law that the exclusion of dower in joint tenancies is. general as to all, and not of limited reference only to the paramount right of the survivor. Park,' in his Treatise of Dower, page .40, adverts to the subject, in the same view now taken. The absolute position that where joint tenants convey, no dower accrues; is traceable to Fitzh. N. B. 150, which refers to 34 Ed. 1, — but the. treatises do not give the particulars of the latter case. They will, no doubt, appear to have presented only the. question of the survivor’s rights; and not to decide that the estate of joint tenancy is. incompatible with an incipient dower interest while ¿he joint tenancy lasts.
    • Where elementary writers, have attempted to give reasons for the rule* as an unqualified position, that an estate conveyed by joint tenants excludes dower, they do not comprehend any interest in their rationale, except that of the surviving joint tenant. Gilb. Uses, 404. Perk. sec. 500. But whatever might be the understanding of the rule in question, properly considered, was there, in this instance, by the .mortgage, so consummate a trans fer of the estate as to leave no interest upon which the subsequent release of Thomas to Willoughby Mayburry might operate to the effect of assuring the appellant dower in the land, paramount to the estate or claim of the mortgages ? In determining this point, it should be borne in mind, that dower is ea: provisione legis, and not an interest under the husband. 8 Co. 71. 6 Co. 41. What divestiture of estate did the mortgage effect ? It is now settled, even at common law, that the mortgagor is déemed the continuing owner of the estate and in seisin of it; and that as to all the world except in respect qf the remedy of the mortgagee who has the ' estate, (especially in Maryland, where foreclosure is not allowed, but only a sale,) only to. be enabled ty transfer it. Norton vs. Willard, 4 Johns. R. 41, and the English authorities there cited. Hitchcock vs. Harrington, 6 Johns. R. 290. Collins-as. Terry, 7 Johns. R. 278. Titus vs. Nelson, 5 Johns. C. R. 452. In -other words, the mortgagee’s estate is virtually only a power boupled with á conditional interest; the accrual of the interest being dependent oh the default in payment of the mortgage debt. Thdt is especially the true version in such a case as this, where the mortgagors have expressly reserved an estate in the land until default of payment. They are, Until the default “to continue in full possession;” — in other words, to retain the possession they had, which was of a fee simple seisin.
    The mortgage deed in this case is, in effect, — looking to the covenant, or limitation in form of covenant, for a continuing seisin, — only a covenant to stand seised to uses on part of the mortgagors: the first use limited being- to the mortgagors and their heirs, until default of payment: and according to our Maryland decisions, so thoroughly would the mortgagors be deemed to be in of their original estate, that, even at -law, the mere fact of payment, without any conveyance or release, would suffice to make their estate absolute -against the mortgagors. 3 Har. & M‘Henry, 399. Thus interpreting the mortgage in this case,what is there to prevent Thomas’s release to Willoughby, of his undivided' interest, operating so as to -attráct doweri to Willoughby’s enlarged estate, even admitting the rule, in its most absolute extent which excludes dower from estates in joint tenancy, It is only necessary to keep in view, that dower is the gift of the law, to see that such may be the consequence of the release. Suppose, in a covenant to stand seised to uses, first limiting a defeasible estate to the grantor in fee, that there was but a sole grantor, would dower attach to-the first estate so limited, although defeasible in the event of money not being paid, dr any other act not being performed? . Except where the determinable estate js strictly on condition, the decisions would sustain'the claim of dower, as an estate tacitly granted by law, an< an extension of the inheritable character of the determined estate — to use the explanation given in 8 Co. 71, of the grant of dower in such instances. Dower in such cases accrues, whether the first estate to which it is thus given determines by limitation generally, or by a conditional limitation. . If such be the law, where there is a sole grantor, what more is necessary in case of a limitation, as here, by two, than that one should release to the other, and so lay a foundation of dower; it being only the interest of survivorship which shuts out dower? 1 Leon. 167. 1 And. 184. 8 Co. 67. 3 Bos. and Pull. 652. Co. Litt. 216. Sugd. Pow. 331. 4 Taunt. 334. . 1 Roper, Hus. and Wife, 37 — 40.
    Our proposition is, that, regarding the continuing right of a mortgagor, as now recognised at law, as well; as in equity, and especially the reserved precedent estate of the mortgagors in this case, the release of his co-tenant to Willoughby availed for the benefit of the wife to give her dower; and such, we may maintain, must be the result, even if to estates ending by conditional limitation dower does not attach. There was no; entire divestiture of the joint estate, and as the. law gives the dower and supposes land, even in joint tenancy, to be susceptible of dower interest by a simple action between the joint tenants, the remaining, though qualified, fee in the mortgagors, here, was a basis upon whieh the law would make the co-tenant’s release effectual for a dower interest to the wife of the releasee. This case is not, then, like that where an absolute conveyance is made by joint tenants of their entire estate; and this construction should be favoured in Maryland, where our statute law allows dower in an equity of redemption. Act of 1818, ch. 193, see. 10. If, therefore, a joint tenancy was created, and not, as we insist, only a tenancy in common, still dower attached by force of the joint tenant’s release to Willoughby.

      Proceeding to the objection that here was only an instantaneous seisin which did not give rise to dower, we deny that, the deed being not only dated but acknowledged at. a considerable interval, it is competent fdr the'appellees to adduce testimony contradicting that purport of the instruments, and that the inquiry is open on which the objection is to be entertained; The acknowledgment, precludes the plea of non est factum, and shows, by estoppel, that, when acknowledged, the deed of the executors to the Mayburryswas the deed of the former, it being acknowledged as the deed. 1 Cranch, 239 — remark of Chase, J., p. 248. The acknowledgment seals all question as to the period of the instrument becoming the complete deed of the grantors. It was in intendment of law certainly so, at the date of the acknowledgment. That date being thus established, the difference of dates between the deed of the executors and the mortgage banishes all question as to simultaneous completion of the instruments as deeds of the parties; for no case attempt's to exclude dower where the deeds are not delivered literally at the same time. No testimony will be allowed to contradict the tenor of the acknowledgment. 3 Har. and M‘H. 321. Apart from the consideration of the acknowledgment, it is insisted that the effect of the testimony as to simultaneous delivery being contradictory to the varying dates, and tending to contravene the terms of the deed, (inasmuch as the deed of the executors would, by that testimony, operate only as a conditional conveyance, instead of being absolute, as its words declare,) the testimony is inadmissible. Dixon vs. Swigart, 1 Har. and Johns. 252. Schemer-horn vs. Vander Heyden, 1 Johns,-R. 139. Howes vs. Barker, 3 Johns. R. 506.
    But assuming even that the face of the two instruments would argue a simultaneous delivery; it is insisted that a beneficial interest, although enjoyed for an instant, vested in the vendees, and dower was accorded by law immediately. The cases that favour the pretension’of the appellees, all admit that a beneficial seisin, for an instant, even, creates dower: but the case of a.deed and a mortgage back, has been strangely, in the view of some judges,- confounded with the case where an instantaneous seisin is had by a party whose only connexion, immediate or ultimate, with the estate, is to transfer it to'another; and where the deed to him in fact is a mere ceremony; and his agency is that of a mere instrument for another ulterior object Thus the seisin of a trustee, who discharges his function by an immediate conveyance to another, is no foundation for dower. But had the mortgagors here no beneficial interest? The very mortgage implied an interest in them; especially, according to the import now assigned to a mortgage. It is difiicult to conceive how the vendee, in such a case, can have all his interest construed away, upon the fancied analogy of a defeasance being indicated by the mortgage. I Thomas’s Co. Litt. 576, 57.7, note. 2 Bac. Abr. 371, tit. Dower. 2 Bl. Com. 133. The opinion of Mr, Justice Thompson, in Stow vs. Tift, 15 Johns. R. 458, fully exhibits the true limits and principle of the rule of instantaneous seisin excluding dower. Our only Maryland decision is M‘Cauley et al. vs. Grimes and Wife, 3 Gill and Johns. 318. That decision very carefully excludes the idea that instantaneousness .of seisin is, per se, inconsistent with dower, and establishes that the slightest and most fleeting beneficial interest will fix the dower; denying it, however, in that case, because the grantee there was performing the part'of a mere trustee, and was the mere medium of an interest for others. He was not a mortgagor whose mortgage implied an abiding interest, and at least a resulting use. The case of Nash vs. Preston, referred to in Mr. Justice, Thompson’s decision, in 15 Johns. R. (Cro. Car. 190) clearly marks the principle by which every case of instantaneous seisin, in its bearing on dower claims, is to be tested. There land was conveyed under an agreement that it was to be redemised to the grantor; which was done. The Court determined that dower attached, because an estate vested in the husband; without which the redemise would have been unmeaning and inoperative. And so here- — how can the mortgage avail unless the estate has vested which it proposes to convey ? And to show the beneficial interest assured to the vendees, here, even by the mortgage, let one recur to the covenant for the mortgagees “ to continue in full possession” until default of payment.
    The parties here adopted legal conveyances. The first imports an interest vested, in the vendee. The second, assuming such an interest to continue in the vendee, transfers it in mortgage. Being legal assurances, why is not the law to atfaeh all its incidents, and affect the parties by all the implications which spring from the contents of the instruments, which, in their legal purport, profess to operate distinctly and as successive assurances? If, according to that distinctive import and operation, dower incidentally accrues, will that consequence be understood to be within the view and agreement of the parties ? Will not the law infer that result to be their wish, from their having chosen such forms of assurances ? The maxim of law is, that what arises by implication is as forcible and binding as what is expressed. Why, then, we ask, is not the intrinsic import of the instruments, respectively, to prevail ? How, as legal assurances, in due deference to their respective terms, can they be blended into one instrument ? The law will Understand that dower was meant to be conferred when that form of assurance is not adopted which would have excluded it. If to be excluded, a-mere bond of conveyance might have been chosen; or a deed of trust, appointing a trustee to convey on payment of the purchase money. A case like this .is not to be assimilated to a defeasance made at the same time with a conveyance, though by a distinct instrument; for a defeasance in terms qualifies the original estate conveyed, while the mortgage here assumes that the land* according to the estate expressed in the conveyance to the mortgagors, was passed to them'fully, and then appropriates that certain estate to the benefit, of the mortgagee in a certain event. If the mortgage provisions are supposed to be embraced in the actual original conveyance to the mortgagor, the compound instrument would, as a legal instrument,be utterly inoperative; because one portion would be repugnant to the other. It would in one part be a deed for ,ithe vendor,.and yet in another be a deed for the vendee, and yet is required to operate as but one conveyance, and for one aim ; and the deed-must, therefore, on this supposition of a single conveyance, by its very terms, import that there is no estate conveyed by the mortgagor: and the vendor, therefore, remains owner as he was before, and no effect is produced whatsoever.; and the nugatory instrument contradicts itself. Such is not the case with the operation of a defeasance, properly sq called.
    In all the inquiries on this head, where the effect of instantaneous seisin has, as we think, been misunderstood, there is one error committed ; and that is, that the wife is treated as a party to the supposed agreement for a supposed defeasance, and as coming in under ali equities, latent or otherwise, of the husband; while the truth is, that she is to be regarded as a stranger, so far as the law takes care of her interest, and endows her; and as utterly independent of the husband. 8 Co. 71. And, besides that, an equity is assumed for the parties, and it is taken for granted that they meant'what the legal import of the conveyances does not show. For, suppose an agreement even be proved for a mortgage to be simultaneously delivered, if, ex vi act'i, the dower attaches, dower would not, as part of the. equities, be deemed to be excluded ; and to establish the equity, ah agreement for the exclusion must explicitly appear. That certainly should be so, where, as in this instance, an important portion of the purchase money is paid, and a large equitable interest is thus secured to the purchaser. Of so independent and permanent a character is the wife’s claim for dower, that no provision in a deed to the husband for excluding it, where a heritable estate is conveyed, is valid; however conditional even the provision may be. 6 Co. 41. Dy. 343, b. Shep. T. 128. Co. Litt. 224.
    We should bear in mind that a part of the purchase money was paid at once, and that an interest in the estate' thus immediately accrued to the Mayburrys. When thus connected with the property, and so far owners of it, is-it not assuming too much to construe these parties into mere trustees, who have only lent their names to let an estate pass that medium without leaving a beneficial trace behind ? It is only the instantaneous seisin of such uninterested agents which excludes dower claim; and any contrary decisions have proceeded upon misapprehension of the true principle.
    Whenever, however, the decisions which have so confounded this principle have denied dower, there has been evidence of a contract for, simultaneous delivery of conveyance from vendor, and of mortgage; if we except only the case of Stow vs. Tift, 15 Johns. Rep. There is on this head a total absence of testimony in the present case. Without such contract appearing clearly; what ground ean there be for the constructive defeasance which the mortgage is supposed to operate ? At all events, however, there is no evidence that the deed was delivered as an escrow. If, in terras, a deed be not so delivered, it may have its operation suspended while retained to abide some event; but when it does operate, it has effect, by relation, from its date. This is the distinction between, the effect of the suspended' operation of an instrument reserved as a deed, and of one held as an escrow. 2 Mass. R. 447. .9 Mass. R. 307. 13 Johns. R. 285. 1 Johns. C. R. 288. 18 Johns. R. 544. .4 Day. R. 66. Here was the.acknowledged deed of all the parties, left, after being thus perfected, in the hands of oné, withtno stipulation to make it an escrow, but parted with by them as their deed, and Mr. Ross thus made only their agent to -deliver it. We may, therefore, justly insist that, though resérved for a while, yet, when literally delivered, the instrument operated from its-date, according to the decisions now referred to. ' If such be the legal import, of what transpired, the dower claim is to be regarded here as if there were an express provision in the deed of mortgage, that the operation of the deed to the Mayburrys was to be deemed to begin from its date. In that event there can be-no doubt of the validity of the present demand.
    . Mr. Meredith and Mr. Nelson, with whom was Mr. Schley, contended that the decree of the Circuit Court ought to be affirmed:
    1st. Because the complainant was not dowable of the lands described in the conveyances exhibited in the record, her husband, Willoughby Mayburry^ never having been sole, seised of the legal title therein.
    2d. And because the seisin of her said husband, if sole, under said conveyances, was instantaneous.
    For the appellees, it was argued:
    The deed of the 5th of March, 1812, from the exeeutor of Johnson to Thomas and Willoughby Mayburry, created either a joint tenancy, or a tenancy in common. Upon either construction, the" appellant is not entitled to dower.
    1st. The grantees under this deed took as .joint tenants.
    If the appellant had sought his remedy, in a Court of Law, there can be no question, that' such would have-been the construction. A grant to two or more, and their heirs, without any restrictive, exclusive, or explanatory words, constitutes the grantees joint tenants. 2 Bl. Comm. 179.191,192. Watk. on Convey. 86; 20 Law Lib. 30.
    The saíne" rule of construction prevailed in Maryland, until the year 1822; when a law was passed, declaring that no deed or will should be construed to create an estate in joint tenancy, unless by express words.
    If a Court of Equity would in ordinary cases give a different construction to this deed, it would still adhere to the legal construction, in a case of dower. Dower is a mere legal right; and Courts of Equity in assuming a concurrent jurisdiction, professedly act upon the legal right and proceed in analogy to the law. 1 Story’s Equity, 585.
    But, independently of this distinction, Courts of Equity invariably hold legacies, gifts, grants, &c., to be joint, unless from the nature of the contract, or from the words, some intention of severance appears. 3 Vesey, Jr. 630. There are ifo words of severance in this deed. Nor is there any thing in the character of the property, from which an intention may be deduced to create a tenancy in common. The object of the purchase is not explained. There is nothing in the deed, from which it may be intended, that the parties meant to carry on the furnace as partners. There is no proof out of the deed, that they were partners, either before or after the purchase; or that the furnace was put into operation at all; The Court cannot infer the fact, from the mere circumstance that the property sold consisted in part of a furnace. The authorities cited by the appellant’s counsel, have no application to this case.
    2d. If the deed created a joint tenancy, then no title to dower attached during its continuance. Park on Dower, 18; 11 Law. Lib. Watkins on Convey. 15; 20 Law. Lib. 4 Kent’s Comm. 37. 1 Roper, Hus. and Wife, 362. The seisin of the husband must be' sold. The mere possibility of survivorship absolutely excludes an incipient title in the wife. In case of survivorship the survivor claims paramount the widow’s title, viz.: by the original conveyance. And even where one joint tenant aliens his share, his wife is not dowable; although the possibility of the survivor-ship of the other joint tenant, is destroyed by the severance; the seisin of the husband being but for an instant.

      3d. The joint tenancy in this dase was not severed by the mortgage of the 14th March, 1812. The Mayburry’s then parted with their whole legal interest, and retained the equity of redemption merely. Of this they were joint tenants. If they had redeemed the mortgage, their joint legal seisin would have revived. They would have been in, as of their former estate. If either had died before redeeming, the survivor would have been entitled by the jus accrescendi, to the whole equity of redemption. And if he had afterwards redeemed, he would have become solely seised of the legal estate.
    4th. The deed of the 9th of March, 1818, from Thomas to Willoughby Mayburry, passed only the equity of redemption in one undivided half. The whole equity of redemption, therefore, was vested in Willoughby Mayburry^ And if hé had redeemed, he would have had the sole legal seisin, in which, undoubtedly, dower would have attached. But he did not redeém, The-mortgage was foreclosed in his lifetime, and his equitable ' estate was extinguished. Upon' this, equitable estate, no dower attached.For, though by the act of the Maryland legislature, passed in 1818, widows are dowable of equitable estates, their right does not operate to the prejudice of any claim, for the purchase money of the lands, or other lien on the same. In this case, besides the mortgage for the purchase money, there were other liens, which exhausted the whole proceeds of sale, and left a large deficiency.
    As between mortgagor and mortgagee, and those claiming under him, the former is to be regarded as the equitable, the latter as the legal owner Of the mortgaged property; and as to him, no title of dower can attach. , The proviso in the mortgage to the executors of Johnson, that, until default, the grantors should hold the land, and receive, the profits, gave them no continuing seisin in fee, but constituted them only tenants for years, to the mortgagees. Cook on Mortgages, 325-327; 18 Law Lib. 140, 141.
    5th. If the deed of the 5th of March, 1812, created a tenancy in comrhon, still the appellant is not entitled to dower, because thé seisin of the husband was an instantaneous transitory seisin, on which dower does not attach. Co. Litt. 31b. Park on Dower, 20, ál. 4 Kent’s Comm. 38. Cro. Car. 190. 1 Atk, Rep. 442.
    The same doctrine applies, when the husband takés a conveyanee in fee, and at the same time, mortgages the land back to the grantor to secure the purchase money in whole or in part. 4 Kent’s Qomm. 39.
    This appljcation of the doctrine of instantaneous seisin, is sustained by all the American cases. 4 Mass. Rep. 566. 14 Mass. Rep. 351. 15 Johns. Rep. 458. 1 Bay’s Rep. 312. 1 M'Cord’s Rep. 279. 4 Id. 346. 2 Gill and Johns. Rep. 318.
    In this case, although there is an interval between the dates of the two deeds, the proof is, they were both delivered at the same time. They were simultaneous acts. They both took legal effect from the 14th of March, 1812, and not before. The deed was executed and acknowledged on the 5th of March, and retained by Mr. Ross, ready to.be delivered when the mortgage was delivered. Leaving it in his hands, did not amount to a delivery. That is a question of intention, to be collected, from all the. circumstances. 2 Barn, and Cress. 82. 1 Johns. Cases, 114. The whole transaction shows that the executors looked to the mortgagees their only security for the unpaid part of the pur-, chase money. Besides, the inference from the evidence is, that by agreement of the parties, the delivery of the two deeds was to be simultaneous. This evidence is clearly admissible; because it does not contradict, but tends to confirm and establish the deed. Goddard’s Case, 2.Rep. 4b. .Stone v. Ball, 3 Lev, 34S. Hall v. Cazenove, 4 East, 47.7.
   Mr. Justice M'Lean

delivered the opinion of the Court.

This is a suit in chancery, which is brought before this Court, by an appeal from the decree of the Circuit- Court of Maryland.

The complainant is the widow of Willoughby Mayburry, and claims dower from John Brien5 who purchased an estate, desigT nated the Catoctin Furnace, and all the lands annexed or appro-, priated to it. She also claims rents and profits from the death of her husband. This estate was conveyed by Catharine Johnson, Baker Johnson, and William Ross, as executors of Baker Johnson; to Willoughby, and Thomas Mayburry, by deed, dated the 5'th March, 1812; and they executed a mortgage on the same, to receive the principal part of the purchase money The 9th March, 1813, Thomas Mayburry couveyed to Willoughby, his undivided moiety in the estate; and at the same time, the grantee executed a mortgage on the estate, to secure the payment of the purchase money.

The answer admits the marriage of the complainant, prior to the execution of the conveyance and mortgage, in 1812; and the death of the husband, which occurred subsequently.

Brien having deceased, his heirs were made parties to the suit.

The Circuit Court dismissed the bill, and the counsel for the defendants ask the affirmance of that decree on two grounds.

' 1. Because the estate vested in Willoughby and Thomas Mayburry- was a joint tenancy, and not subject to dower.

2. That the mortgage was executed by Willoughby Mayburry to Thomas, simultaneously with the delivery of the deed from Thomas to Willoughby, and that dower does not attach tó a momentary seisin..

The counsel for the complainant insists, that the deed of the executors of Johnson to the Máyburrys, created a tenancy in. common, and not a joint tenancy.

It is admitted that the terms of this deed import a joint tenancy; but it is insisted, that the nature of the property,,and the circumstances of the parties, show a tenancy in common. That real estate conveyed for partnership purposes constitutes an estate in common; and that the conveyance of this furnace, and the land incident to it, was for manufacturing purposes, and' comes within this definition. No evidence being given on the subject, the counsel relies upon the above considerations, as: fixing the character of the estate.

In the case of Lake v. Craddock, 3 P. Wms. 159, the Court held that survivorship did not take place, where several individuals had purchased an estate, which was necessary to the accomplishment of an enterprise in which they were engaged. That the payment of the money created a trust for the parties advancing it, and that as the undertaking was upon the hazard of profi. or loss; it was in the nature of merchandising when the jus accrescendi is never allowed. And in the case of Coles’ Administratrix v. Coles, 15 Johns. Rep. 159; it was decided, that when real estate is held by partners, for the purposes of the partnership, they hold it as tenants in common; and that on a sale, of the land, one of the partners receiving the consideration money, was liable to the action of, the other for his moiety. Thornton v. Dixon, 3 Brown’s Ch. Rep. 199. Balmain v. Shore, 9 Ves. Jun. 500.

By a statute of Maryland, in 1822, ch. 262, joint tenancy is abolished; and it is contended, that this being the settled policy of the state, the Courts should give a liberal construction to conveyances prior to that time, to guard against the inconvenience and hardship, if not injustice, of that tenancy.

Whether this estate was purchased by the Mayburrys, for the purpose of manufacturing iron, for speculation, or for some other object, is not shown by the evidence; and it would be dangerous for the Court, without evidence, to give a construction to this deed different from its legal import. We must consider the property as conveyed in joint tenancy; and the question arises, whether dower, may be claimed in such an estate.

Dower is a legal right, and whether it be claimed by suit at law, or in equity, the principle is the same.

On a joint tenancy, at common law, dower does not attach. Coke on Litt. lib. 1, ch. 5, sec. 45. “ It is to be understood, that the wife shall not be endowed of lands or tenements, which her husband holdeth jointly with another at the time of his death; and the reason of this diversity is, for that the joint tenant, which surviveth,, claimeth the land by the feoffment and by survivor-ship, which is above the title of dower, and may plead the feoffment made to himself, without naming of his companion that died.”

In 3 Kent’s Com. 37, it is laid down, that the-husband must have had seisin of the land in severalty at some time during the marriage, to. entitle the wife to dower. No title tp dower attaches on a joint seisin. The mere possibility of the estate being defeated by survivorship, prevents dower. The same principle is in 1 Roll. Abr. 676. Fitzh. N. B. 147. Park on Dower, 37. 3 Preston’s Abstracts, 367.

If the husband, being a joint tenant, convey his interest to another, and thus at once destroy the right of survivorship, and deprive himself of the property, his wife will not be entitled to dower. Burton on Real Property, 53. Co. Litt. 31b.

But it is insisted that the rule which denies dower in an estate of joint tenancy, applies only in behalf of the survivor; and that, if in this case the deed created a joint estate, the plaintiff may claim, after the deed of release to her husband.

At the time the deed to the Mayburrys, for this property, was executed bjr the executors, a mortgage' on the property was given' by the Mayburrys, to secure the payment of a large part of the purchase money.

The deed bears a date prior to that of the mortgage; but the proof is clear that both instruments were delivered, and consequently took effect at the samé instant of time. The time-of delivery may be proved by parol.

And, it also appears that the deed to Willoughby Mayburry, and the mortgage from Thomas to him, were- delivered at the same time.

And here, two questions arise;

1st. Whether dower attaches where there has been only a momentary seisin in the husband ?

2d. Whether, in Maryland, dower may be claimed in an equity of redemption ?

By the common law, dower does not attach to an equity of redemption. The fee is vested in the mortgagee, ánd the wife is not dowable -of an equitable seisin. Dixon v. Saville, Bro. Ch. Ca. 326. Co. Litt. 3b. Stelle v. Carroll, 12 Peters, 205.

This .rule has been changed, in Maryland, by the tenth section of .the act of 1818, ch; 193, which gives dower in an equitable title under certain restrictions; and in many of the states a different rule obtainq by statutory provision, or by a judicial modification of the- common law. As the right of the complainant depends on Conveyances prior to 1818, the above statute can have no effect upon it.

As before stated, the mortgage was delivered • by Willoughby Mayburry, at the same instant he received the deed from Thomas; .and the question .is, whether dower can -be claimed by the wife on such a seisin of the husband ?

. In his Commentaries, Chancellor Kent says, vol. iv. 38,39, that “ a transitory seisin for an instant, when the same act that gives the estate to. the husband conveys it out of him, as in the case of the eonusee of a ffne, is not sufficient to give the wife dower; the same doctrine applies when the husband takes a conveyance in fee, and at the same time mortgages the land back to the grantor. or to a third person, to secure the purchase money, in whole or in part, dower cannot be claimed as against rights under that mortgage; the husband is not deemed sufficiently or beneficially seised by an instantaneous passage of the fee, in and out of him', to entitle his wife to dower as against the mortgagee.”

Of a seisin for an instant, a woman shall not be endowed. 1 Co. Litt. ch. 5, sec. 36.

This is the well established doctrine on the subject. Halbrook v. Finney, 4 Mass. Rep. 566. Clark v. Munroe, 14 Mass. Rep. 352. Stow v. Tift, 15 Johns. Rep. 485.

The plaintiff insists that the principle which excludes dower, in a case of a momentary seisin, applies only where the grantor acts in carrying out a naked trust. This position is not sustained by the authorities.

In the case of M'Cauley et al. v. Grimes and wife, 2 Gill & Johns. Rep. 324, the Court say, Perhaps there is no general rule, in strictness, that in cases of instantaneous seisin, the widow shall or shall not be entitled to dower.” And they say, “ Where a man has' the seisin of an éstate beneficially for his own use, the widow shall be endowed.”

What may be a beneficial seisin in the i husband, so as to entitle his widow to dower, may be a matter of controversy, and must lead to some uncertainty. But, in the language of Chancellor Kent, where a mortgage is given by the grantee, at the same time the conveyance of the land is executed to him, there is no such beneficial seisin in him as to give a right to dower.

The encumbrances in this case exceed, it is believed, the value of the estate; and this being the- case, the grantees could in no sense be said to be beneficially seised, so as to sustain the claim of the complainant.

Upon the whole, the decree of the Circuit Court is affirmed.

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 Maryland, and was argued by counsel On consideration whereof, it is 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.


text:
    Jacob Houseman, Claimant, &c., Appellant, v. The Cargo of the Schooner North Carolina, Oliver O’Hara, Agent, &c., Libellant.
    The schooner North Carolina, bound from Appalachicola to Charleston,, with a cargo of cotton, part on account of the consignees, and part the property of the shipper, struck on a reef about ninety-five miles from Key West; and the next morning one hundred and ten bales of cotton were taken from her by the wrecking schooner Hyder Ally, when she floated ; and she sailed with the Hyder Ally to Indian Key, and arrived .there the same evening. The Hyder Ally was one of those wrecking schooners in the profits of which Houseman was a participator. He became the consignee of the North Carolina; and salvage being claimed by the master'of the Hyder Ally, a reference was made by the master of the North Carolina, and the master of the wrecker, and by an award thirty-five per cent, was allowed as salvage; and one hundred and two bales of cotton were put into the stores of Ho,useman, in part payment of the salvage; and one hundred dollars was paid in cash, and a draft for six hundred dollars, was' given by the captain of the North Carolina, in further satisfaction of the salvage, and the commissions of Houseman, with the vessel’s expenses. Afterwards, the consignees of the cotton sent an agent to Key West, who proceeded, by a libel in his name, as agent, in the Superior Court ■ of the United States ’of Monroe county in Florida, alleging the facts; and by process issued by the Court, seventy-two bales of the cotton of tire North Carolina were attached in the hands of Houseman. The Court decreed that the libellant should recover the seventy-two bales of cotton; and Houseman appealed to the Court of Appeals. In that Court, a supplemental libel was filed by the appellee, claiming damages for the taking and the detention of fifty other bales of cotton, making the whole number of one hundred and twenty-two bales, which ha' gone into the possession of Houseman. The Court of Appeals gave a decree in favour of the appellee, for the value of one hundred and twenty-two bales. The Supreme Court affirmed the decree as to the seventy-two bales, and set aside that part of the decree which allowed the value of the fifty bales: leaving the consignees or owners of the fifty bales to proceed- in the Superior Court of Bast Florida by a new libel for the recovery 'of - the same or the value thereof.
    There are many cases in which the contract of the captain, in relation to the amount of salvage to be paid to the salvors, or his agreement to refer the question to arbitrators, would bind, the owners; In times of disaster, it is always his duty to exercise his best judgment, and to use his best exertions for the benefit of both the vessel and cargo: and when, from his situation, he is unable to consult them or their agent, without an inconvenient and injurious delay, it is in his power to compromise a question of salvage; and he is not bound in all cases' to wait for the decision of a Court of Admiralty.
    So, too, when the salvage service has not been important, and .the compensation demanded is a small one, it may often be the. interest of the owners, that the amount should be settled at once by the captain; and the vessel proceed on her voyage, without waiting even a day for the purpose of consulting them. But in ali such cases, unless the acts of the captain are ratified by the owners, his conduct will be carefully watchéd and scrutinized by the Court; and his contracts will not be regarded as binding on the parties concerned, unless they appear to have been bona fide; and such as a discreet owner, placed in the same circumstances, would probably have made. If he settles the amount by agreement, those who claim under it must show that the salvage allowed was reasonable and just. • If he refers it to arbitrators, those who claim the benefit of the award, must show that the proceedings were fair, and the referees worthy of the trust.
    The case is within the jurisdiction of a Court of Admiralty. It is a question of salvage of a vessel which had been stranded on a reef in the ocean. The points in controversy are whether salvage is due; and if due, how much 1 The admiralty is the only Court in which such questions can be tried.
    It is well settled in admiralty proceedings, that the agent of absent owners may libel either in his own natne, as agent, or in the name of his principals, as he thinks best. That a power of attorney given subsequent to the libel is a sufficient ratification of what he had before done in their behalf; and that the consignees of a cargo have a sufficient interest in the cargo that they may proceed in the admiralty for the recovery not only of their own property, but for that part of it' which may be consigned to them.
    An amendment in a case in the admiralty, before the Court of Appeals, cannot introduce a new subject of controversy; although the most liberal principles prevail in such cases.
    ON appeal from the Court of Appeals of Florida.
    This case ,-\yas argued by Mr. Coxe for the. appellant; and by Mr. Downing for the owners of the schooner and cargo.
    The facts are fully stated in the opinion of the Court..
   Mr. Chief Justice Taney

delivered the opinion of the. Court.

This case arises upon a proceeding in admiralty, originally instituted iñ the Superior Court of-Monroe county, iii.the southern district of Florida, and afterwards carried to the Court of Appeals for that Territory; It is brought here by appeal from the decision of the last mentioned Court.

Several questions have been raised in the argument upon the form and manner of proceeding in the Territorial Courts, as well as upon the merits of the controversy; and it becomes necessary to state fully the facts in the record, in order to show the poiuts in dispute, and the principles on which they are decided.

The schooner North Carolina, George M‘Intyre, master, sailed from Appalachicola about the 9th of March, 1833, laden with cotton, and bound for Charleston, in South Carolina. The cargo was shipped by William G. Porter, of Appalachicola, and consigned to J. & C. Lawton, of Charleston, part of it being shipped on account of the consignees, and part on account of Porter, with directions from him to sell his portion, as soon as the consignees thought it for his interest; and to credit the proceeds in his account.

Upon the night of the 14th of March, being five days out, the vessel struck upon the Pickles reef, which is about ninety-five miles from Key West. She was discovered on the next morning by the wrecking schooner Hyder Ally, Joshua B. Smith, master, who took from her deck one hundred and ten bales of cotton, when she floated; and both vessels sailed for the Indis n Key, where they arrived the same evening. The North Carolina had grounded about twelve o’clock at night, and was got off at four o’clock in the afternoon of the following day. She sustained very little injury; not enough to have prevented her from proceeding immediately on her voyage. The weather was moderate while she was on the reef; and the Hyder Ally ran no risk, and encountered ho hardship in assisting her, beyond the mere labour of taking off the portion of her deck load above mentioned, and carrying it to the Indian Key. It is stated, however, that the Pickles reef is considered a dangerous one; that it came on to blow fresh about two hours after the North Carolina was relieved ; and that she would probably have been lost if she had remained bn the reef the ensuing night.

The Indian Key is a small island of a few acres of land; and is about ten or twelve hours sail from Key West, where there is a port of entry, and a court of the United States having admiralty jurisdiction. It appears, by the testimony, that Houseman, the appellant, was the only man at the Indian Key. who could have advanced money to MTntyre to pay the salvage. He had a warehouse there, and owned a schooner which was employed in the wrecking business; and this vessel of Houseman’s, in the language of the wreckers, consorted with the Hyder Ally, and with a sloop commanded by a man by the name of Packer; that is.to say,'these three vessels shared equally in the gains made by either of them.' Houseman was therefore entitled to a proportion of whatever could be obtained for salvage from the North Carolina; and had a direct interest in making it as large as he could. It does not appear that he was engaged in any other business except that of Wrecking on the Florida coast

Notwithstanding this intérest of Houseman, he was appointed by M'Intyre, consignee of his vessel and, cargo, as soon as he arrived at the Indian Key; and he charged and. received commission to the amount of one hundred and fifty-six dollars and forty-five cents for his services in arranging the question of salvagé, on behalf of the owners. The evidence does not show, whether M‘Intyre was apprised of Houseman’s.connection with the salvors; and in so far as this case is concerned it is hot necessary to inquire whether he was or was not aware of Houseman’s interest. McIntyre’s 'conduct leads strongly to the ■ conclusion that he was not déceived, and that he knowingly betrayed the interest of the owners. But he is no party to this dispute. / The question is between the owners and Houseman; and certainly his claim would not be- strengthened by showing that he concealed. his interest from M‘Intyre, and obtained his confidence by leading him to believe that he had no interest in the question of salvage.

However tins'may be, M‘Intyre was induced by some means or othér to refer the matter to the arbitrament of two men, by the name of Otis and Johnson, Who are described in the survey held on the North Carolina as shipmasters. , But we have no account of the characters or standing of these-men; nor of the nature of their business and pursuits at the Indian Key: nor have we and thing in the record to show how far their judgment and impartiality could be relied upon in thé matter referred. . ■

The referees thus chosen awarded thirty-five per cent. on. the vessel and cargo; and thereupon the cotton brought by>the Hyder Ally, together with so much in addition from’the North Carolina, as made up the number of orie hundred and twenty-tvhj bales, were immediately landed and put into the warehouse, of Houseman in payment of the salvage On the cargo, and MTntyre gave Smith one hundred dollars in cash, and a draft on his consignees for six hundred dollars in payment of the salvage on the vessel; and it is said in the testimony, that Houseman gave. Smith the money for the draft." As soon as the affair of the salvage Was settled, MTntyre proceeded with the North Carolina on the voyage to Charleston.

Upon his arrival there, however, it would seem that his consignees were not satisfied with what he had done; and on the 18th of May following, Oliver O’Hara, the present appellee, as agent for J. & C. Lawton, the consignees of the vessel, filed his libel on the admiralty side of the Superior Court for the southern judicial district of Florida, stating, generally, that a part of the cotton composing the cargo of the North Carolina had been taken from her while lying on the Florida reef by the wrecking schooner Hyder Ally, Joshua B. Smith, master; which together with the North Carolina was carried into the harbour of Indian Key, where a large portion of the said cotton was still kept, and illegally detained from the libellant; and he prayed process against the cotton in- order that it might be delivered to him. We do not profess to give the words of the libel, and state its substance in order to show that it was altogether a proceeding in rem; it did not allege that any particular person was in possession of the cotton or cldimed it, but mefely that it was unlawfully-detained.

Process was issued accordingly, and seventy-two bales of cotton attached under it. Houseman appeared as claimant, ana upon his application, it was delivered to him upon stipulation, being valued by agreement of parties at the sum of $2,376, and . the security entered for that sum.

It is not necessary to state at large .the further proceedings which took place in the Superior Court; nor the amendments and alterations which were afterwards made by both parties in the Territorial Court of Appeals. The pleadings and proceedings are imperfect and irregular in both courts. The particular defects, which have been supposed to be material will hereafter be noticed. The Superior Court of the Territory upon the final hearing decreed restitution of the seventy-two bales above mentioned ; and Houseman appealed from this decree to the Court of Appeals of the Territory, where new pleadings were filed on both sides, and where the libellant proceeded for the one hundred and twenty-two bales taken in salvage, and charged that it was forcibly and wrongfully taken, and claimed damages for the marine tort. The Court of Appeals sustained his claim for the whole amount of the cotton, with interest and costs; increasing in its decree the valuation of the seventy-two bales beyond the sum for which the stipulation was taken in the Superior Court; and from this decree-Houseman has-appealed to this Court.

Three questions have been raised here in the argument.

1. Was the transaction in relation to the salvage an honest and fair one; and are the acts of the captain of the North Carolina binding upon the owners of the vessel and cargo ?

2. Wa$ the matter in controversy within the jurisdiction of the Court of Admiralty?

3. Assuming those two points to be in favour of the libellants, is.there any thing -in the form of the proceedings and pleadings, which will bar him of his right to recover ?

Upon the first question, we have no doubt that there may be cases in which the contract of the captain in relation to the amount of salvage to be paid to the salvors; or his agreement to refer the question to arbitrators, would bind the owners: In times of disaster it is always his duty to exercise his best judg - ment, and to use his best exertions for the benefit, of the owners of both vessel and cargo; and when, from his situation, -he is imable to consult them or their agent, without an inconvenient and injurious delay, it is in his power to compromise a question of- salvage; and he is not bound in all cases to wait for the decisiorr-of a Court of Admiralty.

So, too, when the salvage service has not been important, and the compensation demanded is a small one, it may often be the interest of the owners, that the amount should be settled at once byAhe captain, and the vessel proceed on her voyage, without waiting even a day for the purpose of consulting them. But in all such cases, unless the acts of the captain are ratified by the owners, his conduct will be carefully watched and scrutinized by the Court, and .his contracts will not be regarded as binding upon the parties 'concerned, unless they appear to have been bona fide, and such as a discreet owner placed in the like circumstances, would probably have made. If he settles the amount by agreement, those who claim under it must show that the salvage allowed was reasonable and just. If he refers it to arbitrators, those who claim the benefit of the award must show that the proceedings-were fair, and the referees worthy of the trust.

But in this case the conduct of the captain is without excuse. The salvage demanded was exorbitant. The danger of the North Carolina was by no means imminent when shq' was discovered by the Hyder Ally; nor did the latter incur any hazard in going to her relief. The weather was moderate, and she floated in a few hours, as soon as one hundred and ten bales of cotton were taken from her. She had sustained but very little injury, and was found to be in a condition to proceed with safety on her voyage without any repairs. And if the one hundred and ten- bales, instead of being delivered to the wrecking schooner, had been thrown overboard, the North Carolina would have floated, and might have proceeded directly on her voyage. But if these agreements and this award are to .be carried into execution, the owners of the cargo lose one hundred and twenty-two bales, instead of one hundred and-ten. The vessel is also charged with seven hundred dollars; and the commissions and expenses paid to Houseman, amount to nearly two hundred more: so that according to this arrangement at Indian Key, the owners would actually lose between twelve and thirteen hundred dollars, by the interference of the Hyder Ally; and they would have saved that much money, if their vessel had been let alone, and had been compelled to relieve herself from the reef, by throwing the one hundred and ten bales, into the ocean.

' Where a demand so unreasonable was made upon the captain of the North Carolina, it was his duty to have proceeded to‘ a ’ port of entry, and to have brought the subject before the proper tribunal; at the same time, advising the owners or consignees of the vessel, of what had happened, in order that they might have an opportunity of attending to their own interests. He-could, in a very few days, have communicated from Key West, with either Charleston or Appalachicola; and no reason whatever is assigned for this hurried and extraordinary settlement at the Indian Key. The fact that the settlement was made at such a place, under such circumstances, without proceeding to Key West, or some other port of entry, and without communicating with the persons interested, would of itself have been a badge of fraud; and if the amount allowed to the salvors, had been far less, it would yet have required clear and satisfactory proof, that it .was reasonable and moderate, and for the interest of the owners, before it would be sanctioned in a Court of Admiralty.

But the transactions at the Indian Key were evidently in bad faith. In the first place, Houseman, the present claimant of the cotton, becomes the consignee of the vessel and cargo, and takes upon himself to represent, the interest of the owners, when he himself is a partner with the salvors, and Has' a direct interest in pushing the salvage to the highest possible amount. And then, as if to give the appearance of fairness to the transaction, on his part, and as if conscious that it would need all the support that would be given to it, he endeavours to account for making the settlement at Indian Key, by showing that he and Smith, the master of the Hyder Ally, both advised M‘Intyre to go to Key West, and that he positively refused; and so sensible are the parties concerned of the suspicions which such a settlement, made at such a place, would bring upon them, that a certificate is taken from M‘Intyre, declaring that he. had submitted to the arbitration of his own free will, and was satisfied with the award. Now if any good reason had been assigned to the salvors by M‘Intyre, for his refusal to go elsewhere-to settle the salvage, the Court might give - some weight to their advice, and his refusal. But how does, his refusal, without any sufficient reason, strengthen the cause of the claimant. M‘Intyre, .himself, is strongly implicated in this transaction; • and his acts and declarations cannot be received to prove the innocence of those with whom he was associated. This advice and this refusal to follow it, without any apparent reason, on the part of M‘Intyre, together with the certificate given to Smith, look very much like contrivances to give the colour of fairness and frank dealing to a transaction, which in truth was one of an opposite character. The mode of settlement also, is exceedingly suspicious. M‘Intyre exercises no judgment upon the value of the salvage service, but it is referred, Yet, he does not appear to have known any thing about the referrees, nor have we any account of their characters, or of their fitness for such a trust. They are called shipmastérs, in the survey held on the North Carolina; but we .do not learn from the testimony, what kind of vessels they commanded, nor what was their business at that time, at Indian Key.

If M‘Intyre meant to deal justly with his owners, how could he- refer so grave a matter to men of whom he knew nothing, and whose situation obviously placed all their feelings and partialities on the other side. If Houseman, his consignee, made the selection for him, then both of the arbitrators were, in fact, selected by the salvors, and in that case, we ought not to be surprised at the extravagance of the award.

Upon the whole, it is clear, 1st, That McIntyre had no authority to bind his owners by the settlement at Indian Key. 2d, That the settlement relied on by the claimant, was'fraudulently made; and, 3d, That the salvors, by their conduct, have forfeited all claim to compensation, even for .the service actually rendered; and the owners are entitled to recover the value of all the cotton "delivered for salvage, at Indian Key.

This brings us to the second inquiry, was the matter in controversy, within the jurisdiction of the Court of Admiralty ?

Now, the matter in dispute, is merely a question of salvage. A vessel stranded on a reef, extending into the ocean, and, in order .to relieve her, another vessel came alongside, and took off a part of her cargo, which has been detained, together with a further portion of the cargo, for salvage. The points in controversy aré, whether salvage is due, and if due, how much ? Upon such, questions, there can be no doubt of the jurisdiction of. a Court of Admiralty; nor of its authority to proceed in rem, and attach the property detained. The Admiralty is the only Court where such a question can be tried; for'what other Court, but a Court of Admiralty, has jurisdiction to try a question of salvage? The claimant in this case, was a partner with those actually engaged in the salvage service. The seventy-two bales of cotton attached, were still-in his hands; and the residue had been sold by him: and whether his purchase from his partners, mentioned in the testimony, was real or colourable, he must be regarded as one of the original wrongdoers, who detains on land property, taken at sea, upon a claim of salvage, to which he has no title. In the case of Peisch and others v. Ware and others, 4 Cranch, 347, which, in principle, is perfectly analogous to this, (so far- as the point of jurisdiction is concerned,) the power of the Court of Admiralty does not appear to have been questioned either by the Court, or at the bar.

The third and last point remains to be considered — whether there is any thing in the form of proceeding, or in the pleadings, sufficient to bar the recovery of the libellant.

An objection has been taken to the right of the appellee to sue in his own name, as agent for the consignees, or to sue at all; as his power of attorney from them bears date after the libel was filed; and it has also been objected, that J. and C. Lawton, the consignees, had no right to institute proceedings to recover' any thing more than their proportion of the cargo shipped on their own account.

No authority has been produced in support of these objections ; and we consider it as well settled in admiralty proceedings, that the agent of absent owners may libel either in his own name, as agent, or in the name of his principals, as he thinks best; that the power of attorney, subsequent to the libel, is a sufficient ratification of what he had before done in their behalf; and that the consignees had such an interest in the whole cargo, that they may lawfully proceed in this case, not only for'what belonged to them, and was shipped on their account, but for that portion also which was shipped by Porter, as his own, and consigned to them.

We have already said that the pleadings are exceedingly irregular. The goods were lawfully taken from the North Carolina, in order to relieve her from distress; and there is no room for supposing that either , force or fraud was used by the Hyder Ally in order to obtain them; salvage had undoubtedly been earned; and when these proceedings were instituted, the real dispute was whether the fraudulent conduct of the salvors had forfeited their claim to salvage; and. if it had not, how much was justly due. It is singular enough, that neither the libel nor the claim put in by Houseman, make the slightest mention of the real controversy; and it is not until the case is in the appellate Court, that the pleadings disclose the matter in dispute. And it is proper here, to say, that if the Court upon che testimony of the witnesses, had entertained any doubt as to the true character of the transactions at the Indian Key, that doubt would have been removed by the evasive answers of Houseman. They indicate, in a way too plain to be mistaken, his unwillingness to disclose the manner in which he obtained the cotton, which had been attached by the marshal; and his deshe to conceal his partnership concern with the Hyder Ally, and his interest in the salvage obtained from the North Carolina.

It is not necessary to remark upon the defects in the pleadings in the Superior Court of the territory where the proceedings were originally instituted; because the parties had a right to make any amendments in the appellate Court that were' required to bring forward the merits of the case: and the remaining question is, whether the amendments 'allowed exceeded these limits; and whether a new case was not presented there, different- from that which was carried up by appeal.

There were seventy-two bales of cotton condemned by the decree, of the Superior Court. The libel claimed an indefinite number, but only seventy-two were attached; and as the proceeding was altogether iñ rem,'and the 'libellant did not claim the value of the co.tton sold, nor allege that any had been sold; the only relief he was entitled to, was the condemnation of these seventy-two bales. The claimant appealed from this decree; the. libellant did not appeal. The case, therefore, carried up, was the controversy about the seventy-two bales; the libellant resting satisfied with the decree which condemned .them, and the claimant seeking to reverse it. This was the.res in controversy; and in so far as these seventy-two bales were concerned, either party was authorized to make amendments, or to introduce new evidence, in order to support his title in the appellate Court. But the libellant could not introduce a new subject of controversy; and the amendment which brought into the case the additional, fifty bales, was the introduction of a new res, which did not go up by the appeal; and could not be originally instituted in an appellate Court. We' think that this amendment is not justified by admiralty practice; although it is well known that the - most liberal principles prevail in Admiralty Courts, in relation to amendments. The same may be said of that part of the libel in the Court of Appeals, which is against the claimant in personam, m order to recover damages for a marine tort, in addition to the value of the property withheld. There was no such •charge made.by the libellant in the Superior Court, nor any decree made there in relation to such damages; and no such question could therefore be carried up by the appeal of the claimant. It was a new claim, and originated in the Court of Appeals.

■ Neither was the appellate Court authorized to fix a higher-value upon the seventy-two bales than that for which the stipulation was taken. It was a substitute for the cotton delivered to the complainant; and upon the appeal, stood in the place of it, and represented it in the appellate Court. It could not, therefore, be put aside, and a new valuation substituted in its place.

It follows, from these principles, that the decree of the appellate Court was erroneous. But there was certainly enough in the. pleadings to authorize the Court to affirm the decree of the •Superior Court, for the seventy-two bales; and the evidence would most abundantly justify such a decree. And as we have no doubt that the value of the remaining fifty bales are justly due from the claimant, the decree will be reversed, without prejudice to the rights of the parties interested in these fifty bales; and the right reserved to them to procéed, by a new libel in the proper Court, to assert their claims.

The decree of the Court of Appeals for the territory of Florida, must therefore be reversed, and the case remanded to the said Court, with directions to enter a decree for the value of the seventy-two bales of cotton, as fixed by the stipulation, with interest from the date of that instrument, and costs; reserving to the owners, or others interested in the cargo of the North Carolina, the right to institute proceedings, in the proper Co'urt of Admiralty, to recover the value of the remaining fifty bales, with interest and costs.