author: Mr. Chief Justice TANEY

text:
    Francis O. J. Smith, Appellant, v. Joseph W. Clark, et al.
    Where a motion is made to docket and- dismiss a case under the 43d rule of this court, the certificate of the clerk of the court below, upon which the motion is founded, must state the names of the parties to the suit. It is not enough to say, Joseph W. Clark and others. The names of the “ others ” ought to be set forth.
    A motion was made by Mr. Woodbury to docket and dismiss this case under the 43d rule of this court. The .case purported to be an appeal from the Circuit Court of the United States for the District of Massachusetts. The certificate of the clerk of the Circuit Court is set.forth in the order passed by this court, and to be found at the end of this report. It is, therefore, unnecessary to repeat it.
   Mr. Chief Justice TANEY

delivered the opinion of the court.

A motion has been made to docket and dismiss this case, under the 43d rule of this court.

The certificate of the clerk states, that, in the Circuit Court of Massachusetts, in a cause depending in that court, in which Francis O. J. Smith was complainant in equity, and Joseph W. Clark and others were respondents, a final decree in that court was made on the 17th of October, 1850, in favor of the said Joseph W. Clark and others, respondents, from which the said Francis O. J. Smith appealed on the same day; and'1 on the 30th of October filed his appeal-bond with sureties, whereby execution on the decree was suspended.

The certificate conforms to the rule in all respects but one, and that is in the statement of the parties., The respondents are stated to be Joseph W. Clark and others, from which, as well as from the statement in the motion, it appears that there were other respondents parties to the suit, who are not named in the certificate.

The 43d rule provides, that where the party against whom a judgment or decree is rendered, fails to file the record and docket the .case within the time limited by the rule, the other party may docket the case and file a copy of the record with the cíerk, in which case it. shall stand for argument at the term; or he may, at his election, have the case docketed and dismissed upon producing a certificate from the clerk stating the cause, and certifying that such a writ of error or appeal had been duly sued out and allowed.

Now, where the unsuccessful party brings a writ of error, all the parties to it must be .named in the writ; and the name of one or more of them “ and others ” is not a sufficient description • to bring those not named before the court. It was so decided in Beneale •& others v. Stump’s Executors, 8 Pet. 526. And the .same principle was applied to a writ of error docketed under the 43d rule, in the case of Holyday ec al. v. Batson et al., 4 How. 645. And the ■ reason for requiring all the parties, whose interests are to be affected by the judgment, to be named in the writ of error, applies with equal force to the case of án appeal from a decree.

■ Where the party, in proceeding under the 43d rule, elects to file the record and toy the cause, the record must certainly be as full and complete as the one which would be required from the opposing party. It must' name all the persons which the writ of error or appeal is intended to bring before the court; otherwise there could be no judgment or decree for or against them.

. And upon , the same ground, the same thing must be done when the case is docketed in order to obtain a judgment of dismissal. The proceeding is in the nature of a writ of error or áppeal, in which the party, in whose favor the judgment or decree was rendered, is allowed to bring the case before this court, in order to prevent unnecessary delay. And all the parties to the judgment or decree, whose interests are to be affected by docketing and dismissing the suit, are regarded as in court, for the purpose of being parties to the judgment of dismissal. Nor could the Circuit vourt regularly issue, an execution for or against a person not named; as it would not appear that he had been a party to the proceeding here, or that there had been a judgment of dismissal for or against him.

The rulé of which we are speaking, was framed upon mis principle: It requires that the certificate of the clerk should “ state the cause, ” and this is not done unless the parties to it are named.

A departme from the rule might 'lead to very loose practice, and perhaps to abuses. We think it more safe to adhere to the established practice in this respect; and have used this occasion to state it the more fully, in order that the members of the bar and the clerks of the courts may in future avoid mistake.

The motion to docket and dismiss in this case is overruled.

Order.

Francis O. J. Smith, Appellant, v. Joseph W Clark et al.

Mr. Woodbury, having filed and read the following certificate, viz.:—

" United States of America, Massachusetts District, } ss
“ I, Isaac O. Barnes, Clerk of the Circuit Court of the United States for the Fust Circuit and District of Massachusetts, do hereby certify, that in a certain cause pending in said court, wherein Francis O. J. Smith Was complainant, in equity, and Joseph W. Clark et al., were respondents, a final decree in said cause was made by the court on the seventeenth day of October, A. D. 1850, in favor of. the said Joseph W. Clark et al., respondents, as aforesaid,- — whereupon an appeal was prayed by the said Francis O. J. Smith, complainant, as aforesaid, on the said seventeenth day of October, A. D. 1850, and, on the thirtieth day of said October, A. D. 1850, the said Francis O. J. Smith, complainant, as aforesaid, filed a bond with sureties in the sum of one thousand dollars. And thereupon the execution of the said final decree was suspended, and the said appeal has operated as a supersedeas in said cause.
Seal.]
“ In testimony whereof, I have hereunto set my hand and affixed the seal of the said Circuit Court, at Boston, this thirtieth day of December, A. D. 1851, and the Independence of the United States of America the seventy-sixth.
“ Isaac O. Barnes, Clerk?

now here moved the court to docket and dismiss this appeal under the 43d rule of. this court. On consideration whereof, it is the opinion of this court that the titling of the case in the certificate is too vague and uncertain: Whereupon it is now here ordered by the court that the said motion be, and the same is hereby overruled.


source: Caselaw Access Project

author: Mr. Justice McLEAN

license: Public Domain

text:
    Joseph P. Thredgill, Administrator of Archibald Goodloe, deceased, Appellant, v. John M. Pintard.
    Where a settler upon -the public lands had a pre-emption right to them and sold them to a person who again sold them to a third party, the original vendor has a lien . upon the land for the balance of the purchase-money still due, and can enforce it by a bill in chancery, notwithstanding the vendee has taken out a patent in his own name under a subsequent pre-emption law.
    This was an appeal from the Circuit Court of the United States for the District of Arkansas, sitting as a court-of equity.
    On the 12th of April, 1814,. Congress passed an act, (3 Stat. at Large, p. 122, § 5,) giving a right of preemption to settlers upon certain portions óf the, public lands, under certain conditions, one of which was, that the Indian title should have been extinguished.
    A person, by the name of Jane Matthers, claimed a right of preemption, under this act, to the southeast quarter of section one, township eighteen south, range one west, containing 168x|g acres, lying south of the Arkansas River.
    On the 24th. of August, 1818, the Indian title to this country became - extinguished by the ratification of a treaty concluded with the Quapaw Indians.
    Jane Matthers assigned her preemption right to Thomas T. Tunstall, but at'what time the record did not show.
    In 1833, an agreement was made for the sale of this land, between Tunstall and J. M. Pintard, which was not formally concluded until the ensuing year; but Pintard, with his family, moved upon the land in the autumn of 1833, and had several slaves engaged in clearing the land, making fences, &c.
    On the 1st of April, 1834, Tunstall executed á deed for the land to Pintard, for the consideration of one thousand five hundred dollars, cash, and covenanted to convey the legal title as soon as a patent should issue for it.
    On the 19th of June, Í834, Congress passed an act (4 Stat at Large, 678,) declaring, “ That -every se.ttler or occupant of the public lands, prior to the passage of this act, who is now in possession and cultivated any part thereof, in the year 1833,” wasjentitled to a preemption.
    On the 24th of July, 1834, a preemption right, and certificate of purchase was granted and issued to Tunstall, for the quarter section which he claimed under Jane Matthers, under the preemption act of 1814, by the land-officers at Little Rock.
    Oh the 23d of March, 1835, Pintard sold the quarter section which he had purchased from Tunstall, together with part of an adjacent quarter section, which he had acquired in another way making two hundred acres in all, to William Rhodes, for the price of forty dollars per acre; binding himself to cohvey the same by a general warranty deed as soon as the patents could be procured. Rhodes executed two promissory notes for $4000 each, the first due and payable on the 1st of March, 1836, and the second due on 1st of March, 1837. Pintard then delivered possession of the land and improvements, to Rhodes.
    On the 13th of March, 1837, Rhodes sold the land which he had obtained from Pintard, together with -some other, land to Archibald Goodloe, the appellant in the present case,„for sixty-five dollars per acre, being estimated to contain four hundred and fifty acres, when accurately surveyed. Five thousand seven hundred dollars was to be paid in hand, and the balance Avas to be paid in sixty days, except the amount yet remaining unpaid by Rhodes for the purchase of said land, which was to be paid as soon as the title with general warranty should be regularly made; to said Goodloe.
    On the 24th of February, 1838, the Commissioner of the Land-Office annulled the entry by TunstaH, as assignee of Jane Matthers, “ inasmuch as the tract entered was not the property of the United States at the passage of the act under which the claim was made,” viz., the act' of 12th of April, 1814. He therefore cancelled the certificate, and directed the Register and Receiver at Little Rock, to refund the money to whoever might be entitled to receive the same.
    On the 28th of March, 1838, Goodloe paid to Pintard, the sum of $600, which was credited on the back of the note, which had become due on the 1st of March, 1836, given by Rhodes to Pintard.
    On the 22d of June, 1838, Congress passed another preemption law, (5 Stat. at Large, 251,) by which every settler of the public lands, being the head of a family, or over twenty-five-years of age, should be entitled to a preemption.
    On the 15th of February, Í839, Goodloe proved his preemption right, under the above law entirely for his own benefit
    On the 31st of May, 1839, Goodloe paid to Pintard the sum of $1,363.82, which was credited upon the same note given by Rhodes, upon which the preceding payment was credited.
    On. the 9th of April, 1840, Goodloe obtained his preemption right, and on the 3d of March, 1841, a patent was issued to him by the United States.
    . On. the 3d of March, 1843, Congress passed an act, (5 Stat. at Large,- 603,) .extending to the settlers on the lands south of the Arkansas, the same privileges which were granted by the act’ of 1814.
    In March 1842 Pintard a resident of the State of Mississbvri filed Ms bill in the Circuit Court of the Urnted States,, for the District of Arkansas, against Goodloe and Tunstall, praying for a decree against Goodloe for the remainder of the purchase-money due to him upon the purchase of the tracts of land, and claiming a lien thereon, to have them subjected to sale for the payment of said money. It is not necessary to notice any other of the proceedings in the case than Goodloe’s answer, which was filed in December, 1842. In it he resisted the claim against-him principally on the ground, that Pintard never had any good and valuable claim or title to the land, either in law or equity; and, therefore, Pintard was hot entitled to demand and receive the consideration agreed to be paid. Goodloe claimed that he himself held the legal title derived directly from the United States.
    In April, 1845, the cause came on for hearing upon bill, exhibits, answers, issues, and evidence, and was argued; and in April, 1847, a decree was passed, that Goodloe should pay to Pintard the sum of ten thousand five hundred and fifty-two dollars, together with ten per cent, interest from the rendition of the decree till paid; that the two pieces of land mentioned in the proceedings should be charged with the payment; and that in default of payment by the 1st of November, ensuing, the land should be sold, &c. &e.
    From this decree Goodloe appealed to this court.
    It was argued by Mr. Lawrence, and there was also a brief filed by Mr. Morehead, for the appellant, and by Mr. Crittenden, for the appellee, on whose side a brief was also filed by Mr. H. S. Foote and Mr. Sebastian.

    The counsel for the appellant
    contended that the decree is erroneous, and ought to be reversed. It is admitted, in the opinion rendered, that the title of Pintard was invalid, and that Goodloe might have obtained a rescission of his contract on this ground; but as he perfected his title by obtaining a pre-emption in his own name, his act, while he continued in possession, enured to the benefit of Pintard, who should only be compelled to account for.the amount paid for the better title. Ordinarily a vendor and a vendee^ and those claiming under a vendee, stand in the relation of landlord and tenant, and all acts of the vendee in perfecting his title enure to the benefit of the vendor. But this, from the nature of the case, must be confined to such acts as the vendor might himself have performed. Tunstall was a trespasser upon the public lands, going on. Indian territory in express violation of law, and had no right which could be transmitted by him. Equity cannot enforce a contract founded on a violation of law. It. is true he had an improvement, but it was one made in the teeth of a law of Congress; and if it was unlawful for him to make the improvement, it was but a continued violation of law to place another man upon it. Congress after-wards, it is true, granted pre-emptions, which, if he had continued on the land, would have embraced his case. But can this give' him any equity? It is well settled, by the practice of .the department, under the sanction of the opinion of the Attorney-General, that if a man trespasses by settling oil the public land, and afterwards ■ places a tenant on the land, that the tenant is entitled to a pre-emption in his own name, and not the landlord. That is where there is, an express and nót a mere quasi tenancy, as in +his case.
    Neither Tunstall, or Pintard, pr Rhodes, could have obtained a pre-emption. Goodloe alone was entitled, in his own right, by virtue of his own cultivation and settlement, and Pintard can derive no benefit from a contract illegal in its inception, and which could have been perfected by no act of his.
    But if this view of the subject is wrong, the decree is radi cally erroneous in several particulars. Góodloe’s obligation to Rhodes was not to pay to Pintard, as seems to have been assumed. He did not agree to stand'in the shoes of Rhodes. Rhodes promised to pay in one and two years, with ten per cent, interest. Goodloe bound himself to pay to Rhodes the amount due to Pintard, when the legal title should be obtained. The giving a gross smn of $10,552, including the ten per cent, up to the rendition of the decree, with an accruing interest of ten per cent, upon the whole amount, makes the accruing interest about' twenty per cent., upon the principal due. This can hardly be fairly construed as the true meaning of the contract betweenGoodloe and Rhodes, and is such a compounding of interest as cannot be tolerated by a court of equity.
    The amount, however, decreed upon the principles established by the Circuit Court, is-for too much by at least one thousand dollars. The number of acres for which Goodloe obtained a pre-emption was 168, and the court settled the quantity in fractional section six, at 11 acres, making 179, instead of 200, which they were estimated to contain. This, at $40 per acre, would ■make $7,160 ; adding ten per cent, interest upon the two instalments into which this sum was to be divided, and the aggregate sum, at the rendition of the decree, would be $14,736.
    The credits allowed by the court'are as follows :
    March, 1838,........$600.00
    Interest at 10 per cent, to date of decree, . . 543.50
    1,143.50
    May, 1839, . . ... . . . . . 1,163.00
    Interest at 10 per cent. to decree, .... 943.00
    2.306.00

      January, 1840, ... . . • . . . 200.00
    . Interest at 10 per cent, . . ... . . 145.00
    345.00
    April, 1840 — expenses of procuring pre-emption, . . 900.00
    Interest at 10 per cent to date of decree, . . . 630.00
    1,530.00
    Making the aggregate amount of credits, including interest at 10 per cent., $5,324. This sum, deducted from $14,736, would leaveK'$9,412, instead of $10,552 decreed by the court; ao that, admitting that it was correct to aggregate principal and interest, and to give accruing interest upon the whole sum, the decree is for too much by more than $1,000.
    It is also respectfully contended, that it was erroneous to decree a sale of the fractional quarter, in section six, without obtaining the legal title, or having the holder of it before the court, so that the purchaser could obtain it by decretal order. Pintard alleges, in his bill, p. 9, “ That Ben. Taylor, of Chicot county, Arkansas, holds the legal title to said part of section six, and has held the same for some years.” It is hardly necessary to urge, that it was erroneous to,decree a sale of this land, without first obtaining the legal title from Taylor.
    The form of the decree is also erroneous, and in violation of the established principles of equity jurisprudence. The- defendant, Goodloe, was ordered to pay a gross sum of money, by a named day; and if not paid, the commissioner named in the decree was directed to sell the land, make a conveyance, deliver possession, &c.; leaving it to the commissioner to ascertain whether the money was paid or tendered, and to decide accordingly. Whether the tender was or was not a good one( or whether the payment was or was not made, was left to the adjudication of the commissioner, when it was the province of the court to decide such matters. The proper chancery practice on this subject is given with great clearness and precision in the case of Downing v. Palmateer, 1 Mon. 66.
    The counsel for the appellee contended that the agreement on the part of Goodloe, to pay the purchase-money to Pintard, was founded upon a valuable consideration, and necessarily enured to the benefit of the latter, and upon which he might seek a remedy ^although the contract was between Rhodes and Goodloe alone. Piggott v. Thompson, 3 Bos. & P.149; Chitty on Contracts (5 ed,), 53; Marchington v. Vernon, 1 Bos. & P. 101 in notes; Martyn v. Hinde, Cowp. 437; Dutton v. Poole, 2 Levinz 210; 1 Ventris 318.

      A pre-emption right is property, so regarded by the government and the community at large. In Arkansas, “ all improvements on the public lands of' the United States are subject to execution;” Rev. Stat. p. 377.
    To call a settler upon the public lands a “trespasser,” is an outrage upon a policy of the government which has been steadily pursued for more than twenty-five years.
    The great point, to which the Others are subordinate is, that Goodloe obtained the possession of both paireéis of land through Pintard, and by a recognition of his title.' By means of that possession, Goodloe was enabled to obtain a pre-emption to .the principal tract, and which he could not have obtained if Pintare! had not sold to Rhodes, and Rhodes to' Goodloe. The fact is admitted in his answer ; and indeed it is perfectly manifest that, if Pintard had remained in possession, he could and would have obviated any defect in his title, by availing himself of some confirmatory act of Congress, or of the later pre-emption acts, that is, of 1834 or 1838.
    It was not competent, therefore, for Goodloe to disavow; tiie title of Pintard, because they stood in the relation of landlord and tenant. The purchase of Goodloe from Rhodes was made on the 13th of March, 1837. The pre-emption of 1814 was ordered to be cancelled on the 28th February, 1838, while Goodloe- was in possession; and it is worth while to observé that one of -the reasons for allowing him to enter the tract he did, under the act of 1838, was, that he alleged “ himself to be the purchaser from the individual noho made the first-mentioned entry”

    It is not pretended that Pintard was guilty of any fraud, or that Rhodes was guilty of any; and; if there was fraudulent conduct, this court will be obliged to attribute it to Goodloe. Of that I say nothing, because the case, as I view it, does not demand it.
    The principle stated by this court, in Galloway v. Finley, (12 Peters, 295,) most strongly and pointedly applies: “ That if the vendee buy's up a better title than that of the vendor, and the vendor was guilty of no fraud, he can only be compelled to refund to the vendee the, amount .of money paid for the better title.” Searcy v. Kirkpatrick, Cooke’s Tenn. Rep. 211; Mitchell v. Barry, 4 Haywood’s Tenn. Rep. 136. Vide Morgan’s Heirs v. Boone’s Heirs, 4 Monroe, 297. Both the cases of Galloway and Searcy, above cited, must, I think, be regarded as conclusive upon the present. There is, indeed, a strong*- analogy between the three — a similarity not often found to ejdst, with this difference, as it appears to me, — that in the one at bar there are more equitable circumstances in favor of the vendor, and demanding the interposition of a court of equity, than in the others.
    In the case in 12 Peters, this court further declare, that, “ in reforming the contract, equity treats the purchaser as a trustee for the vendor, because he holds under the latter; and acts done to perfect the title by the former, when in possession of the land, enure to the benefit of him under whom the possession was obtained, and through whom the knowledge that a defect in the title existed, was derived. The vendor and vendee stand in the relation of landlord and tenant; the vendee cannot, disavow the vendor’s title.” Willison v. Watkins, 3 Peters, 45; Connelly’s Heirs v. Chiles, 2 A. K. Marshall’s Rep. 242; Wilson v. Smith, 5 Yerger’s Rep. 398; Blight’s Lessee v. Rochester, 7 Wheaton, 547. The vendor will be obliged to make an abatement in the purchase-money equal to what it cost to clear the title. Officer v. Murphy, 8 Yerger, 502; Meadows v. Hopkins, 1 Meigs, Tenn. Rep. 181; Marshall v. Craig, 1 Bibb, 396. No court will allow a vendee to pry into and discover defects in his own title, with a view to purchase an outstanding claim, to the prejudice ¡ of the vendor. He may perfect his title, it is true, but then it must enure to the benefit of the vendor; and all the vendee can conscientiously demand is the cost and expense of procuring the. better title. In this case it is allowed to Goodloe — nine hundred dollars, all he asks; and which is certainly a very liberal allowance, but of which Pintard does not complain.
    This very case furnishes a striking and forcible illustration of the soundness and justice of the doctrine thus laid down lay this court. Goodloe, through Pintard, obtained a title to a tract of land by an expenditure of nine hundred, dollars, which was worth sixty-five dollars per acre, or more than ten thousand dollars; and if he can escape the payment of the purchase-money due from Rhodes to Pintard, and which was assumed by Goodloe, he will pocket the last-mentioned sum, and obtain the rich fruits of Pintard’s two years’ labor on the land for nothing! Can this be tolerated? Can it be thought of? In Winlock v. Hardy, 4 Littell’s Rep. 274, it was said, “ that a tenant cannot deny the title- of his landlord;' nor can a person who enters upon land, in virtue of an executory contract of purchase, deny the right of him under whom he enters; for he is quasi a tenant, holding only in virtue of Ms vendor’s title, and by his permission.
    Vide Turly v. Rodgers, 1 Marsh. 245; Logan v. Steele’s Heirs, 7 Monroe, 104; Tevis’s Rep’s, v. Richardson’s Heirs, Id. 659; Fowler v. Cravens, 3 J. J. Marsh. 430.
    Goodloe never placed himself in a situation to contest the title of Pintard. If, upon the discovery of the defect in the title of the latter; if, upon the cancellation of the pre-emption certificate under the act of 1814, Goodloe had surrendered the land to Pintard, bona fide, he might, perhaps, have purchased a better title, and arrayed it in hostility to that of Pintard, and resisted the relief prayed for in the bill. This he did not do. He continued in possession; bought up a better title while in possession; nor is there any proof that he ever disavowed the title of Pintard, until the filing of his answer. -3 Marshall’s Rep. 287.
    The case of Wilson v. Wetherby, 1 Nott & McCord’s. Rep. 373, fully sustains this doctrine, and with regard to which this court, in Willison v. Watkins, 7 Wheat. 53, said: “ In the case of Nott & McCord, 374, the court decide, that where a. defendant enters under a plaintiff he shall not dispute his title while he remains in possession, and that he must first give up his possession, and bring his suit to try titles. To the correctness of this principle we yield our assent, not as one professing to be peculiar to South Carolina, but as a rule of common law applicable to the cases of fiduciary possession before notice.” Ib. 54, 55, 56.
    Goodloe, by holding the possession, and proving up a preemption in his own name, prevented Pintard from complying with his covenant as to making title; and, such being the fact, the familiar and well-settled principle applies, that if the obligee shall do any act to obstruct or prevent the obligor from performing his part of the contract, the obligor is thereby discharged from its performance; or, to speak more properly, the contract, as far as he is concerned, is in legal contemplation actually performed, and authorizes him to demand performance at the hands • of the other party. Bac. Abr., tit. “ Conditions,” Q,, (3.) ; 3 Com. Dig., tit. “ Condition,” L. 6; Co. Lit. 207; Powell on Contracts, 417, 418, 419; Pothier on Obligations, 127. In the case of Marshall v. Craig, 1 Bibb’s Rep. 395, which in many of its features was analogous to the present, it was laid down as a correct principle, abundantly established by authority, “ that wherever a man by doing- a previous act would acquire a right, if, owing to' the conduct of the otlm■ party, he is prevented from doing it, he acquires the right as completely as if it had been actually done” See the case, from page 379 to 396, and authorities cited.'
    In the cases of Majors v. Hickman, 2 Bibb, 217, and Carrell, v. Collins, Id. 429, it is decided that he who prevents the performance of a condition cannot avail himself, of the non-performance. 3 Com. Dig. Condition, L. 7; Borden v. Borden, 5 Mass. 67; Clendennen v. Paulsel, 3 Missouri Rep. 230; Crump v. Mead, Id. 233.

      “ If a purchaser,” says Sugden, . “ takes possession under a contract, and he afterwards rejects the title, he must relinquish the possession.” . 2 Sugden on Vendors, 23.
    The same principle as to obstructing or preventing the performance of a covenant is applicable to the portion of the southwest fractional quarter of section 6, T. 18 south, range 1 east, because Goodloe, by obtaining the bond of Ben. Taylor from Tunstall, prevented Pintard from getting title to the part embraced in the bond, and which Goodloe says has been found to contain only eleven acres. For this, however, he acknowledges himself liable, and expresses his willingness to pay, and says he “ never did refuse to pay.” As to title to said eleven acres of this section, as to his liability to Pintard therefor, Goodloe makes no contest; does not resist performance; but, on the contrary, recognizes Pintard’s right to relief to that extent.
    Indeed, from the proof, we are warranted in believing and assuming it as true, when taken in connection with his answer, that Goodloe has obtained the legal title. In his letter to Peter O’Flynn, employed by him as an agent to procure from Tunstall the bond of Ben. Taylor, dated June ¿st, 1840, he says: “ I have purchased a tract of land of John M. Pintard, the same he purchased of Thomas T. Tunstall; the title is all perfect except about 20 acres of the southwest fractional quarter of section 6, township 18, range 1 east. Tunstall holds Ben. Taylor’s obligation to convey to a particular line known to the seller. Taylor is willing to convey, if Tunstall will send me the obligation. ... I have the original contract between Pintard and Tunstall, handed to me by Pintard, as an order for the obligation on Taylor. Col. Taylor’s wife resides in Kentucky. If you will see Tunstall and forward me the obligation, directed to Richmond, Ky., I can have a deed acknowledged to bring down with me in September.” Vide copy of letter attached to the deposition of O’Flynn.
    Now, O’Flynn testifies, that the obligation was procured by him from Tunstall, and sent to Goodloe, and that Goodloe acknowledged the receipt thereof, and paid him for his services. (See O’Flynn’s deposition.) The same fact is acknowledged in a letter from Goodloe to Pintard, dated Nov. 10, 1840. (See exhibit G, letter No. 4.) As Taylor, who held the legal title, was willing to convey to Goodloe, provided Goodloe could obtain this bond from Tunstall; as Goodloe did obtain the bond in 1840; and as at the time of filing his amended answer, near five years afterwards, he acknowleged his liability to this extent, and did not even hint at any inability to obtain title, nor declare that he had not obtained it, I think we are bound to conclude that the deed, which he said he could procure from Taylor, had been procured, or that’ he had derived a title to this part satisfactory to. himself, and thus entitling Pintard to compensation and relief. If he could not, or had not, obtained title, with the means in his hands to do so, he would most undoubtedly have insisted on it by way of defence in his answer. Under all the circumstances, silence is conclusive against him; but we have something more than that, namely, a distinct admission of liability, contained in his answer.
    It may perhaps be said, that Taylor ought to have been made a party to the bill. In the first place, I beg leave to remark, that he was not materially interested in the suit; if he had any interest at all it was only nominal, and no beneficial purpose could have been effected by making him a party. He was ready and willing, as Goodloe informs us, to- convey; and in fact no decree could have been taken against him; he would have been at best but a passive party; and as he could do nothing necessary to the perfection of the decree, the court was fully warranted in proceeding without him. Joy v. Wirtz et al. 1 Wash. C. C. Rep. 417; Van Reimsdyk v. Kane, 1 Gallison, C. C. Rep. 371; Mallow v. Hinde, 12 Wheat. 193; Hoxie v. Carr, 1 Sumner, C. C. Rep. 173; Wormley v. Wormley, 8 Wheat. 451.
    But, in the second place, it is too late to make the objection, in this court,- on appeal. It was an objection not taken in the Circuit Court, either by demurrer, plea, or answer; and surely the, appellant cannot be allowed to surprise the appellee with it now. Want of proper parties must be objected to by demurrer, or plea, or answer, and cannot be urged at the hearing. Mitford’s Eq. PL 146; Milligan v. Milledge, 3 Cranch, 320.
    The next inquiry is as to the lien of Pintard for the unpaid purchase-money. The lien of a vendor of land against it is peculiar to a court of equity, and can be enforced only in that court. It exists as a charge or incumbrance on the land against the vendee and his heirs, and other privies in estate, and also against all subsequent purchasers with notice of the non-payment of the purchase-money. It is wholly independent of possession on the part of the vendor, and attaches to the estate as a trust equally, whether it be actually conveyed or only contracted to be conveyed. 2 Story’s Equity, 462 - 467.
    “ Where a vendor,” says Sugden, (Vendors, vol. 3, c. 18, p. 182, 183,) “ delivers possession of an estate to a purchaser without receiving the purchase-money, equity, whether the estate be or be not conveyed, and although there was not any special agreement for that purpose, and whether the estate be freehold or copyhold, gives the vendor a lien on the land for the money.” And he cites, as sustaining these positions; Chapman v. Tanner, 1 Vern. 267; Pollixfen v. Moore, 3 Atk. 272; 1 Bro. Ch. Cases, 302, 424; 6 Ves. Jr. 483; Mackreth v. Symmons, 15 Ves. Jr. 329; Smith v. Hibbard, 2 Dick, 730; Charles v. Andrews, 9 Mod. 152; Topham v. Constantine, Toml. 135; Evans v. Tweedy, 1 Beav. 55; Winter v. Lord Anson, 3 Russ. 488.
    _ “ So, on the other hand,” says he, “ if the vendor cannot make a title, and the purchaser has paid any part of the purchase-money, it seems that he has a lien for it on the estate.” 3 Atk. 1; 2 You. & Jerv. 493; 3 You. & Jerv. 262. Thus proving that the lien does not arise nor depend upon perfect title. The term “ estate ” is used, which “ imports,” says Coke, “ the interest which a man has in lands.” Co. Lit. 345, a; 4 Com. Dig. Estates, A 1.
    According to the late judge Story, “ the principle upon which courts of equity have proceeded in establishing the lien in the nature of a trust is, that a person having gotten the estate of another, ought not in cohscience, as between them, to be allowed to keep it, and not to pay the consideratión-money. A third person, having full knowledge that the estate has been so obtained, ought not to' be permitted to keep it without -making such payment, for it attaches to him also, as matter of con-, science and duty.” 2 Story’s Equity, 465.
    Did not C oodloe get the land through Pintard, and with frill notice that the purchase-money was unpaid? Nay, did he not engage to pay that purchase-money himself ? As long as he held the possession of the land thus acquired, could he resist this lien ? It must certainly be manifest that he could not. The proposition is clear, that Pintard has a lien upon the land derived by Goodloe, through him, which the Circuit Court properly recognized and enforced.
    These are the principal points in this ease, and upon a careful investigation of them, I think it is obvious that the decree must be affirmed : first, on the' law of the case ; and, second, upon the principles of common honesty, which exist among men, and 'which courts of equity will always enforce. I beg the Indulgence of the court to allude to a few matters of minor importance.
    1. It is insisted in the answer, that the dwelling-house of Pintard was upon section six, and that he was not entitled to a pre-emption under the act of 1834. To this I reply, that whether he was or was not entitled to a pre-emption under that act, is not material to the support of his right to relief. But in fact, he was so entitled. The dwelling-house which was there when Pintard purchased of Tunstall, in the spring of 1833, was probably situated on or near the meridian line which divides section six and section one; but the proof is clear, that all the other buildings, improvements, and-cultivation, were upon the southeast quarter of section one, or the large tract, and to winch Goodloe subsequently proved up a pre-emption and obtained the legal title in his own name. Pintard was a settler, or occupant of that tract'within the meaning of the act of 1834, (vide Instructions and Opinions, 2d vol. p. 589, No. 535-; p. 597, No. 543,) and as such most unquestionably entitled to a preemption.
    2. Goodloe insists that of section six, sold to Rhodes -by Pintard, and by Rhodes to himself, there was not enough embraced in the bond of Benjamin Taylor to make, with the other tract, two hundred acres ; and that, upon ascertaining the boundaries and lines specified in said bond, it was found that it did not contain more than eleven acres. How it was ascertained he does not state; and we only have his own assertion, without proof, that there was but eleven acres. . From the proof, (see deposition of Booth,) it appears that the portion of land, thus described by boundaries in said bond, must have amounted to more than eleven acres. The court, however, in the decree,, assume that to be -the quantity; and of this Pintard does not complain, and surely Goodloe cannot be permitted to do so. That there were not two hundred acres in the whole, could be no ground for a rescission of the contract, if Goodloe were complainant, nor can it furnish any defence to a specific performance when h¿ is. defendant. He obtained what he principally desired — obtained the dwelling-house and all the other buildings, all the cleared lands, and all .the improvements; he obtained the principal object of his purchase; and, as there was no fraudulent misrepresentation or concealment on the part of Pintard, the case is a' proper one for abatement in the amount of the purchase-money to the extent of the small deficiency. This is well settled by authority. Newland on Contracts, ch. 12, p. 251, 252; 2 Atk. 371.; 4 Bro. C. C. 494; Drewe v. Crop, 9 Ves. 368; 7 Ves. 270; 6 Ves. 678; Calcraft v. Roebuck, 1 Ves. jr. 221; Dyer v. Hargrave, 10 Ves. 505; 2 Story’s Equity, 88 ; 1 Sugden on Vendors, 506, 507, 508, 525, 526.
    If an estate be sold at so much per acre, and there is a deficiency in the number conveyed, the purchaser will be entitled to a compensation, although the estate was estimated at that number in an old survey. 1 Sugden on Vendors, chap.. 7, § 3, p. 525 to 535„and notes and cases therein cited, 6th Am.' edit.
    Where the contract rests in fieri, the general opinion has been, that the purchaser, if the quantity be - considerably less than it Was stated, will be entitled to an abatement, although the agreement contains the words more or less, or by estimation. Ib. 526; Hill v. Buckley, 17 Ves. 394; 1 Call. 313; 4 Mason, 419.
    The utmost that Goodloe could claim, would be an abatement for the deficiency. This the court allowed him; or what amounts to the same thing, charged him with the 168£§§ acres, and the eleven acres at the contract price.. Surely he. will be obliged to resort to some other ground upon which to assail the present decree.
    3. Goodloe has waived his right, if any he ever had, to object to Pintard’s title. His letters, after having proved up a preemption in his own name, and especially the payment made by him to Pintard on the 31st May, 1839, of $l,363i§, amount to a waiver. The preemption having been proved up on the 15th February, 1839, this payment was made more than three months afterwards. The letters alluded to, beginning in January, 1840, and ending in October, 1841, embrace a period of near two years; and when that payment and these provisions to pay are taken into consideration, there could hardly be more conclusive evidence of such waiver. 2 Sugden on Vendors, 10-14; Margravine of Anspach v. Noel, 1 Madd. 310 ; 2 Swanst. 172; 3 You. & Coll. 291.
    I beg leave to invite attention to the very able opinion of the Circuit Court, delivered by the district judge, the Hon. Benjamin Johnson. Viewing the whole record, it appears to me that Goodloe has no reasonable ground on which to assail this decree. All the payments made by him have been credited; the expense of procuring the better title, nine hundred dollars, has been abated from the purchase-money; and an abatement, at the rate of forty dollars per acre, has also been made for deficiency in quantity in section six. Surely he cannot conscientiously deny that justice has been done him; and, when his conduct in this transaction is scrutinized by a just and enlightened court, he can hardly expect to succeed in his appeal — hardly expect to escape that responsibility which the enlarged principles of a court of equity fix upon him.
    The case of Bush v. Marshall, 6 How. 291, is referred to as being precisely in point.
   Mr. Justice McLEAN

delivered the opinion of the court.

This is an appeal from the decree of the Circuit Court, for the District of Arkansas.

Under the act of the 12th of April, 1814, Jane Mathers claimed a right of preemption, by virtue of occupancy and cultivation, to the southeast quarter of section one, township eighteen south, range one west, containing one hundred and sixty-eight acres and ninety-six hundredths, lying south of the Arkansas River. She assigned her right to Thomas T. Tunstall, who entered and paid for the land at the Land-Office at Little Rock, the 24th of July, 1834, and obtained a patent certificate. On the 24th of February, 1838, this purchase was annulled by the Commissioner of the Land-Office, on the ground that the Indian title to the land had not been extinguished when the settlement was made. The Indian title was relinquished to the United States by the Qua-paw treaty, the 24th of August, 1818.

This tract was purchased of Tunstall by Pintard, in the spring of 1833, who took immediate possession, and made improve^ ments on it. In the autumn of the same year he removed his family to the land, constructed cabins* stables, and other fixtures, and in the spring of 1834 he cultivated seventy-five or eighty acres in com and cotton.

On the 23d of March, 1835, Pintard sold the above quarter section, and a part of the southwest quarter of section six, so as to make a tract of two hundred acres, at forty dollars per acre, to William Rhodes, who gave two notes of four thousand dollars each, payable in’ one and two years, with interest at ten per cent, per annum. The two hundred acres were sold by Rhodes to Goodloe on the 3d of March, 1837, for sixty-five dollars per acre. As a part of the consideration for this purchase, Goodloe agreed to pay Pintard the amount of. his claim so soon as a regular title for the premises should be obtained.

Goodloe, on the 15th of February,1839, proved a preemption in his own name, under the act of June 22d, 1838, to the quarter section, and paying the purchase-money into the Land-Office, he obtained a patent in his own name. Prior to this, on his contract with Rhodes, he paid to Pintard nineteen hundred sixty-three dollars and eighty-two cents. But having obtained the title to the land in his own name, he refused to make any further payments to Pintard on the ground that his claim was void.' To enforce the payment of the sum due him on the sale to Rhodes, Pintard filed the bill now before us, with a prayer that the land-might be sold, or so much of it as should be necessary to discharge the balance due to him.

It must be conceded that the first settler upon this land, the Indian title to it not having been' extinguished, could claim under the act of 1814, no preemptive right. No laws giving to settlers a right of preemption, can be so construed as to embrace Indian lands. Such lands have always been protected from settlement and survey by penal enactments. But, it appears that the Indian claim to this land was relinquished to the United States by treaty, in 1818 ; after which it was embraced by all general acts giving to settlers a right of preemption.

By the act of the 26th of May, 1824, preemption fights were given north of the Arkansas River, to all jvho- were entitled to such rights, under the act of 1814, and by the third section of the act of the 1st of March, 1843, every 'settler on the public lands south of the Arkansas River was entitled to the same benefits under the provisions of the act of 1814} as though he had resided north of said river. By these acts a right of preemption was given in virtue of the first settlement upon the land.

But there was another and prior act which gave to the occupant of this tract a right of preemption. By the act of the 19th of June, 1834, every settler upon the public lands prior to the passage of that act, who was in possession of a quarter section and cultivated a part of it in 1833, was entitled to a preemption. In 1833, Pintard was in possession of the quarter section and cultivated a part of it, and he continued to occupy and improve it until the spring of 1835, when he sold his right to Rhodes.

By his purchase Goodloe entered into the possession of a valuable property, and if he desired to rescind the contract it was incumbent on him to relinquish the possession of the quarter section, arid claim the cancelment of the contract. He cannot avail himself of the benefit of the contract and resist a performance of it on his part.

But Pintard, when he sold to Rhodes, was entitled to the preemption of the quarter section. His claim was not only a valid one, but it was sold on reasonable terms, as Rhodes in two years sold the same to Goodloe at an advance of twenty-five dollars per acre. The attempt, under such circumstances, of Goodloe to avoid the payment of the consideration, by procuring the title in his own name, is fraudulent. A title thus procured would have enured to the benefit of the vendor, even if the preemptive right had not been vested in him.

A doubt is suggested in the argument whether^Goodloe, having purchased from. Rhodes, can be made responsible to Pintard. In his contract of purchase, as a part of the consideration, Goodloe bound himself to pay the amount due to Pintard from Rhodes on the previous purchase. It has been held that, under such circumstances, an action at law may be maintained in the name of the person to whom payment is to be made. But this is-a case in chancery, and no one has doubted, that in equity, such a contract may be enforced.

Has Pintard a lien upon the land for the balance of the purchase-money ? We think he has. Goodloe not only had notice of this claim, but he bound himself to pay it.

It is alleged that there is a mistake in the computation of the amount due, as decreed in the Circuit Court. If there be an error in the calculation, it is in favor of Goodloe, and of which he has no right to complain.

In their decree the Circuit Court gave the defendant a credit for the money paid to Pintard, and also a loan to, him of two hundred dollars, and a liberal allowance for the expense of procuring the title. A proper deduction was also made for the deficiency in the number of aeres sold-

There , appears to be no error in the decree; it is therefore affirmed, with .costs.

Order.

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 Arkansas, and was argued by counsel. On consideration wh ereof, 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.


text:
    George W. Parks, Plaintiff in Error, v. Sumpter Turner and Henry Renshaw, trading under the commercial firm of Turner & Renshaw.
    la Louisiana, the Supreme Court of the State reviews the questions of fact as well as of law which are brought up from the courts below; and when it reverses a judgment upon either ground, it «rives the judgment which .the inferior court ought to have given.
    But when a case is brought before this court by a writ of error, it can only review questions of law; and, therefore, where the validity, of a verdict of a jury is brought into question, the practice which prevails in the State courts of Louisiana is inapplicable in the courts of the United States.
    Hence, where the jury found a verdict in general terms for the plaintiff in a suit'upon a promissory note, without finding the amount due, which the laws and practice of. Louisiana require them to do, and, the court then gave judgment for the amount of the note, this would have been adjudged to be a cause of reversal of the judgment by the Supreme Court of the State, but cannot be so held by this court.
    The sufficiency of the verdict must be judged by the rules of the common law and the Statutes of the United States, and not by the laws and practice of Louisiana. The act of 1824 (4 Stat. at Large, 62) does not include siich a case.
    By the common law, although a judgment in such a case might not have been strictly proper, yet under a power of amending the verdict, the judgment can stand, because the plea- having been that no consideration was given for the note and the verdict being for the plaintiff, it necessarily found that the whole amount was due.
    The 32d section of the Judiciary Act provides for this case by enjoining upon this court to disregard niceties of form, and so it was .decided in 16 Peters, 321. ■
    The Constitution of Louisiana requires the State judges to give reasons for their decisions ; but this is not operative upon the judges of the Circuit Court of the United States. . On the contrary, their reasons form no part of the record when the case is brought up to this couu.
    This case was brought up, by writ of error, from the Circuit Court of the United Staieá for the Eastern District of Louisiana.
    The plaintiffs, Turner & Renshaw, sued the defendant, Parks, in the Circuit Court of the-United States for the Eastern District, at New Orleans, to recover $5969.22, due by promissory note executed by Parks to the plaintiffs. After exceptions overruled, the ease was submitted to a jury, who returned the following verdict:
    “ We, the jury, find for the plaintiff.
    “ New Orleans, May 14th, 1849.
    “ H. R. Wood, Foreman;”

    which, on motion, was set aside, and the case submitted to another jury, who returned the following verdict:
    “• We, the jury, find for the plaintiff
    “ New Orleans, 15th May, 1849.

      “ Geo. M. Pinckard, Foreman; ”
    On which verdict the following judgment was entered:
    “ In conformity with the prayer of the petition and the verdict of the jury, it is ordered, adjudged, and decreed, that the plaintiffs,- Turner & Renshaw, recover from the defendant, George W. Parks, the sum of five thousand nine hundred and sixty-nine dollars and twenty-two cents, with interest thereon, at the rate of six per cent, per annum, from the first, day of January, A. D. 1848, until final payment, and costs of every nature.”
    “ Judgment signed 19th May, 1848.
    (Signed,) Theo. H. Me Caleb,

      U S. Judge”

    Parks sued out a writ of error and brought the case up to this cour>.
    It was argued by Mr. Henderson, for the plaintiff in error, and Mr. Mayer, with whom was Mr. Strawbridge, for the defendants in error.

      Mr- Henderson, for plaintiff in error.
    There are two most manifest errors in this case. 'First, in the verdict of the jury, which is found thus : “ We, the jury, find for the plaintiff.”
    But the verdict specifies nothing which the jury find for the plaintiff, and is in direct opposition to Art. 522, Code of Practice ; and is adjudged error by the Supreme Court of Louisiana. 13 La. Rep. 109 ; 14 La. Rep. 344.
    The second error is, that the court gave no reason for its judgment. This is fatal. It was the requirement of the Constitution of Louisiana of 1811, and is readopted in the new Constitution of 1845, wherein article 70 provides: .“ The judges of all the courts, within this State shall, as often as it may be possible so to do, in every definite judgment, refer to the particular law in virtue of which such judgment may be rendered ; and, in all cases, adduce the reasons on which their judgment is founded.” ‘ ' -

      The cases in 4th Martin, 463, 4, 5, and in 12 La. 143, pronounce the judgment unconstitutional which furnishes no reasons for its decree. And the cases are numerous where this omission is adjudged error. 4 Mart. 463; 12 La. 143; 2d Annual, 59; 10 Mart. 56; 5 Mart. 687 - 689; 11 La. 162; 13 La. 13 and 108.
    This court will of course take no notice that the rules of practice in the State courts furnish the rules of practice on the law side of the Circuit Court of the United States for the District of Louisiana. And we admit, that were these exceptions before the Supreme Court of Louisiana, that the court, after reversing the judgment, would substitute themselves for the jury, -and give a new and correct judgment, without a verdict.

    But this court has repeatedly decided that it cannot, in a law case, re-try the facts, as the Supreme Court in Louisiana may' do. Therefore, on reversal for the errors above shown, this court will award a venire de novo.

    The counsel for the defendants in error
    contended that there certainly was a verdict — and a legal and valid one — rendered by the jury, fully authorizing the judgment pronounced. If it be meant that the verdict is for no particular sum, we answer, simply, that this does not vitiate either verdict or judgment; although, in strictness of form, the sum should perhaps be specified. But “ the finding of a jury must be construed with reference to the pleadings.” Trepagnier v. Durnford, 5 Mart. R. 452; Harrison v. Faulk, 3 La. Rep. 70. Thus, where a defendant, assuming the attitude of plaintiff in reconvention, had pleaded that the plaintiff owed him a larger specific sum than he owed plaintiff, and the jury found for defendant generally, without stating any amount, the court gave judgment in his favor .for the difference or surplus. Orleans Nav. Co. v. Bingey, 6 Martin, N. S. 689; Irwin v. Ware, 1 Martin, 645. So, in case of a judgment by the court for no specific amount, it must be construed with reference to the pleadings. Melancon’s Heirs v. Duhamel, 3 Martin, N. S. 7; Rochelle’s Heirs v. Cox, 5 Louisiana Rep. 287.
    In the present case, the prayer of the petition distinctly claims a specific amount, with interest and costs; and the verdict and judgment must of course be construed with reference thereto.
    As to the last cause of error assigned — “ That the judgment contains no reasons,” it is enough to'reply, that the court could not decide otherwise than the jury found; and all reasons for judgment were therefore superfluous. Parks, although under section 23 of the State Act of 1839, p. 172, not realty entitled to a trial bv jury, had made them his judges, and they decided against hipa. The power of the court became thus limited to sanctioning their verdict. “ A judgment, which gives as the only reason why it was rendered — that the jury has found a verdict for plaintiff — will be held valid and sufficient.” McDonough v. Thompson, 11 Louisiana Rep. 565.
   Mr. Chief Justice TANEY

delivered the opinion of the court.

The material facts in this case may be stated in a few words. Turner and Renshaw, the defendants in error, filed their petition in the Circuit Court of the United States for the Eastern District of Louisiana, alleging that Parks, the plaintiff in error, was indebted to them in the sum of fifty-nine hundred and sixty-nine dóllars and twenty cents, upon a promissory note for that sum, drawn by Parks, payable to his own order, and by him indorsed to the plaintiffs. A copy of the note is exhibited with the petition.

Parks in his answer states, that he denies all and singular the allegations in the petition except as therein afterwards admitted: — and says that the said note was given without any consideration whatever, and is therefore a nudum pactum, and void.

Upon this- issue the case was tried by a jury, who returned a verdict in the following words: “ We the jury find for the Plaintiff.”

And upon this verdict the court gave judgment in favor of Turner and Renshaw for the sum due upon the note; and the present writ of error is brought by Parks to reverse that judgment.

Two objections are taken by the plaintiffs in error.

1st. That the verdict merely finds for the plaintiffs, in the Circuit Court, but does not find how much was due to them ; and that no judgment therefore could be lawfully entered on that verdict.

2d. That the Circuit Court gave no reason for its judgment.

• These objections have been argued altogether upon the laws of Louisiana regulating the proceedings in its courts of justice; and which, under the act of Congress of 1824, are supposed to be obligatory upon the Circuit Court of the United States;

Article 522 of the Code of Practice declares, “ that the form of a general verdict consists in the foreman indorsing on the back of the petition those words: ‘ verdict for the plaintiff for so much, with interest,’if it has been prayed for; or verdict for defendant, according as the verdict is for plaintiff or defendant.”

And the 70th article in the new Constitution of Louisiana, adopted in 1845, provides that “ the judges of all the. courts within the State, shall, as often as it may be possible'so to do, to every definitive judgment, refer to the particular law in virtue of which such' judgment may be rendered; and in all cases adduce the reasons on which their judgment is founded.”

It is evident, therefore, that if this case depended upon the laws and practice of Louisiana, the judgment of the Circuit Court could not be maintained. Either of the objections would be fatal. And the case of Hosea’s widow and heirs v. Miles, 13 Louisiana Reports, 107, is directly in point upon both grounds.

But it is difficult to apply the rules of Louisiana practice in d case where the validity of a verdict is in question. The appellate court of that State has jurisdiction of the fact as well as of the law; and in deciding upon the fact, the court is not bound by the finding of the jury in the inferior court, but may decide in opposition to the verdict, if'they think it was not warranted by the testimony in the record.' And when they reverse the judgment of the court below, for error in fact or in law, they ai>the same time give the judgment which the inferior court ought to have given.

Upon an appeal, therefore, to the Supreme Court of the State, for errors like those now adeged to have been committed by the Circuit Court of the United States, although the judgment would have been reversed, yet the State court would at thé same time have given judgment in favor of the defendants in error for the full amount of their debt. They would not have been delayed in the recovery of their money by mere technical objections to the proceedings in the inferior court, nor subjected to the expense of another trial, and perhaps another appeal. The case of Hosea’s Widow and Heir v. Miles, shows the course of proceeding in the State courts. For precisely the same errors now alleged in the case before us, were committed in that case by the court below; and although the Supreme Court reversed the judgment, on both grounds, they at the same time gave judgment in favor of the appellee for the amount due upon the note.

Now as to the first objection, we certainly cannot adopt in this court the practice and mode of proceeding in the appellate court of Louisiana. ■ For a writ of error can bring up to this court nothing but questions of law. And as the whole practice of Louisiana capnot be adopted in a case of this description, is the Circuit Court bound to follow it ? and must the validity of this verdict depend upon the rules of the common law, and the acts of Congress, or upon the formula prescribed by the Louisiana code of practice 1 Unquestionably the force and operation of the verdict when the case is brought here, depends upon the rules of the common law. It is conclusive upon this court as to the fact found, while in Louisiana it is open to revision and reversal in the appellate court. And if the conclusive force and effect of a-verdict depends upon the rules of the common law, it would seem to follow, that what is a sufficient finding by the jury to constitute a legal verdict upon the issúes joined, and to make it operate as such, must also depend upon the rules of the common law, except in so far as they may be modified by acts of Congress. And while this court is bound to give effect to the verdict according to the rules of the common law, it can hardly be required to look elsewhere, in order to ascertain what finding of the jury is a verdict, and entitled to the conclusive effect which the common law gives ifi And if in this case it had appeared that the verdict had been delivered orally by the foreman and recorded by the court, and not indorsed on the back of the petition, this court could not on that account have treated the finding as a nullity, and refused to it the authority and force of a verdict.

Besides, the enforcement of the Louisiana practice in the Circuit Court of the United States, would place the suitors m that court in a worse condition than the suitors in the State courts, and an accidental departure from the'-'prescribed form would be much more injurious in its consequences. We think the sufficiency of tiie verdict, in its form, as well as the question of its force and effect must, depend upon the rules of the common law ánd the statutes of the United States. And that the qualified adoption of the practice of Louisiana by the act of 1824 was not intended to carry it to the extent now contended for by the plaintiff in error.

We proceed, therefore, to consider the case upon the principles of the common law and statutes of the United States.

The answer of the plaintiff in error, by necessary implication, admits that he executed and indorsed the note. For the only defence he takes in his answer is that it was given without consideration, and was nudum pactum. The issue was joined upon this point only. The answer contains no other objection to the validity of the note, nor does it allege that any part of the note had been paid, nor that he had any set-off against it, and'upon these pleadings and issue the jury say they find for the plaintiff. Now this verdict undoubtedly finds that the note was given upon a good consideration, although the jury do not say so in so many words; and it is equally clear, that in finding that it was given upon a valid consideration, they must necessarily have found also that the full amount specified in the note was due to the defendants in error. For there'was no' allegation and no evidence that any part had been paid. No one, we think, can read the pleadings and the verdict without being satisfied that this is the true meaning of the jury. There is no ambiguity or uncertainty in it. And the judgment in the Circuit Court is evidently according to this finding, and is therefore correct, unless there is some rule of law which renders the verdict inoperative and void.

It is certainly the province of the jitry, in a case of this kind, not only to determine whether the plaintiff is entitled to recover, but to find also and at the sáme time the amount due. And, in a court acting strictly upon common law forms and modes of proceeding, no judgment could have been legally entered, because the verdict omits to specify, in express terms and in the established form, the amount which the'defendants in error were entitled to recover. How far the verdict might even yet be amended in the Circuit Court, is another question. For although the rule was anciently very strict in not permitting amendments ‘to verdicts, yet, in later cases, this strictness has been relaxed in order to prevent a failure of justice; and while the English courts adhered to the established forms they often prevented them from working injustice to the parties by a liberal use of the power of amendment.

Thus in the case of Richardson v. Mellish, 3 Bing. 334, 346, a general verdict had been rendered and damages assessed upon a declaration in which one count was good and the others bad. A judgment upon this verdict was rendered in the Court of Common Pleas without adverting to the insufficiency of some of the courts, and the case was afterwards removed to the King’s Bench by writ of error. As the record stood, the judgment of the Court of Common Pleas must undoubtedly have been reversed. But while the case was pending in the King’s Bench, and had been argued there, and this error insisted upon as a ground for reversal, the Court of Common Pleas amended the verdict by entering it for the plaintiff's on the good count, and for the defendant in those counts which did not show a cause of action. The court was convinced, by the notes of the judge who tried the case, that the evidence offered at the trial applied to the good count, and that there would be a failure of justice if the judgment was reversed upon this technical objection, which could and would have been readily removed if made at the trial.

We refer to this case to show that the English courts when acting altogether upon the principles of the common law, will amend a verdict actually rendered by. the jury and recorded, if the court is satisfied, from the evidence and the pleadings, that in the form in which it was given by the jury it does not accomplish what they intended, and would, on that account, fail to do justice to the party in whose favor they found.

But it is not necessary to examine further into the practice of courts acting upon the rules of the common law; nor to inquire whether the verdict in this case, if defective in form, might not yet be amended in the. Circuit Court, For we are satisfied that the thirty-second section'of the act of Congress of 1789, chap. 20, removes all difficulty in the case, and makes it the duty of this court to affirm the judgment rendered on this verdict.

The section of the law referred to directs the courts of the United States to proceed and give judgment according as the right of the cause and matter in law shall appear to them, without regarding any imperfections or defects, or want of form in the writ, declaration, or other'pleading, return, process, judgment, or course of proceeding whatever, except those only in cases of demurrer, which the party demurring shall specially sit down and express together with his demurrer as the cause thereof. This is a remedial statute, and must be construed liberally to accomplish its object. It not only enables the courts of the United States, but it enjoins it upon them as a duty, to disregard the niceties of form, which often stand in the way of justice, and to give judgment according as the right of the cause and matter in, law shall appear to them. And although verdicts are not specially mentioned in this provision, yet the words “ or course of proceeding whatever,” are evidently broad enough to'include them; and, as they are within- the evil, they cannot, upon a fair interpretation of the statute, be excluded from the remedy.

The question, however, has been already decided in this court in the case of Roach v. Hulings, 16 Pet. 321, 322. In that case, as in' the one now before the court, the verdict was defective according to strict technical rules, and no judgment could legally be entered upon it. , But this court held that the act of Congress above mentioned was intended to remove objections of that description where they impeded the administration of justice, and that it extended to imperfections and want of form in the findings of juries, as well as to the other proceedings in the suit. And although, according to the strictness required by common law rules, the judgment must have been reversed, the court sustained it upon the ground that the substantial meaning of the verdict was manifest, and the defects objected to cured by this act of Congress. The intention of the jury in the case before us is equally clear upon the record; and, upon the principles decided in the case of Roach v. Hulings, equally within the protection of the act of Congress. The right of the cause, and the legal obligation of the plaintiff in error to pay this money, is suificiently apparent upon this record.

The second objection, taken’ by the plaintiff in error, is obviously untenable. The provision in the Constitution of Louisiana requiring the judges in the different courts to adduce the reasons upon which their judgment is founded can, of course, have no authority in the courts of the United States unless adopted by an act of Congress. And the act of 1824, adopting, to a certain extent, the practice of the State courts, has no reference to a provision of this description. Indeed, such a provision is inconsistent with the practice and modes of proceeding in the courts of the United States. For the reasons upon which the opinion of the inferior court is founded form no part of a record when a case is brought here by writ of error. They cannot properly be inserted in a bill of exceptions. The point or principle of law, as applied to the case before the court, is all that is certified, and not the reasons upon which the court decided.

The judgment of the Circuit Court is therefore affirmed.

Order.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the Eastern District erf 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 and damages, at the rate of six per centum per annum.


text:
    Auguste de Montault, Augustine Rene Therese Montault by her next friend Louis Montault and William Roger de la Chouquais, husband of the said Augustine, Louis Montault, Bernard Dautierre, Valerie Dautierre, Eleanor Dautierre by her next friend Louis Montault and her husband Augustin Richard, Adeline Dautierre, Virginie Dautierre, by her next friend Louis Montault and her husband Louis Bouligny, Fanny Dautierre, Theodore Dautierre, Pauline Dautierre by her next friend Louis Montault and her husband Samuel Logan, Appellants, v. The United States.
    This court again decides, as in 9 Howard, 127, 280, and 10 Howard, 609, that, with respect to the tract of country between the Mississippi and Perdido rivers, south of the thirty-first degree of north latitude, the authorities of Louisiana had no right to make grants of land after the time of signing the treaty, by which it was ceded to Great Britain.
    That treaty having been signed on the 10th of February, 1763, a grant of land in the above tract of country, issued by the French Governor of Louisiana, on the 11th March, 1763, was void.
    This was an appeal from the District Court of the United States for. the Southern District of Alabama. It was a petition presented under the act of 1824, relating to land titles in' Misscrari, as revived and made applicable by the act of 1844, to that part of the State of Alabama, below the thirty-first degree of north latitude.
    The petition sets forth: “ That your petitioners are the only heirs of the Chevalier Montault de Monterault, who, many years since, departed this life intestate, in the then province, now State, of Louisiana. Your petitioners further allege; that heretofore, to wit, on the third day of January, in the year seventeen hundred and sixty-three, the said Chevalier Montault de Monterault petitioned the then governor of the Colony of Louisiana for the grant of a tract of land lying south of the thirty-first degree of north latitude, and between the rivers Mississippi and Perdido, and within the State of Alabama, bounded by the rivers La Batture, now known as bayou Batee, the Gulf of Mexico, and Fowl River, extending into the interior to the sources of those rivers, and especially that branch of Fowl River, known as the Elwer or Leslay, which, approaching each other, form a tract of land or cul-de-sac.
    “Your petitioners further allege that, heretofore, to wit, on the eleventh day of March, in the year seventeen hundred and sixty-three, Louis de Kerlerac, then governor of the Colony of Louisiana, and Dennis Nicholas Faucault, performing the functions .of commissary ordonnateur of said province, holding their appointments under the King of France, executed and delivered to the said Chevalier Montault de Monterault, a grant to said tract of land, by virtue of which he possessed it for many years, and used it for the purpose of cultivation, raising horses and cattle, and making tar; and the said Montault de Monterault was, at the time of making said grant, a resident of Louisiana; and said grant is protected by the treaty between the United States and France for the cession of Louisiana. Your petitioners allege that he never aliened the said land, that it belonged to him at the time of his death, and-that it has descended to your petitioners as his legal heirs, and that it contains about forty-five thousand superficial acres.
    “ Your petitioners allege, that their claim aforesaid has not been submitted to the examination of any of the tribunals which .have been constituted by Jaw for the adjustment of land-titles, nor reported on by such tribunal. Wherefore, your petitioners pray that the validity of their claim aforesaid may be inquired into and decided by the said court; and reserving the right of amending their petition, and of making other persons parties to this proceeding if necessary, they pray that a copy- of this their petition be served on the District Attorney of tne United States for the Southern District of Alabama/ And they further pray, that, after proper proceedings, it may be decreed by this court that the title held by your petitioners to the above-described tract of land is good as against the United States and all persons claiming under them, and that they may be permitted to locate, elsewhere a quantity of land equal to-what the government, of the United States may have sold or granted within the limits of the grant aforesaid to the Chevalier Montault de Monterault; and your petitioners pray for other and further relief, such as the nature of their case may require.”
    To this petition the District Attorney filed a general demurrer.
    The District Judge sustained the demurrer, and the petitioners ' brought the case up to this court.
    It was argued by Mr. Lawrence and Mr. Badger, for the appellants, and by ■ Mr. Crittenden, Attorney-General, for the United States.
    The counsel for the appellant
    rested the case upon the following point:
    The grant in this case was complete, and the grantee was in possession of the land and cultivated it.
    It is true, the grant bears date about one month after the treaty of Paris, of the 10th of February, 1763.
    • But by the treaty of San Ildefonso, of October 1, 1800, the province of Louisiana was retroceded to France,
    The permission of undisturbed possession under the grant by France, after her re-acquisition of the province, amounts to a confirmation.

      Mr. Crittenden, made three points:
    1. That on the 11th day of March, 1763, the date of the alleged grant, as stated in the petition, the French authorities, by whom it is alleged to have been made, had no power to make such a grant, the country Avithin Avhich the land is situated having been previously ceded by France to Great .Britain, to wit, on the 10th February preceding. The tract of land embraced within the grant, lies on the shore of the Gulf of Mexico, a short distance to the west of the entrance of Mobile Bay.
    The preliminary articles of peace between Great Britain, France, and Spain, were signed at' Fontainebleau, the 3d November, 17*62, and the definitive treaty at Paris, on the 10th February, 1763. Marten’s Treaties, 17, 33. By the sixth article of the preliminary articles, and the seventh article of the definitive treaty, it was agreed between France and Great Britain,

      “ that, for the future, the confines between the dominions of his Britannic Majesty and those of his Most Christian Majesty, in that part of the world, shall be fixed irrevocably, by a line drawn along the middle of the Mississippi, from its source to the River Iberville, and from thence, by a line drawn along the middle of this river and the Lakes Maurepas and Pontchartrain, to the sea; and for this purpose the Most Christian King cedes in full right, and guarantees to his Britannic Majesty, the river and port of Mobile, and every thing which he possesses, or ought to possess, on the left side of the River Mississippi, with the exception of the town of New Orleans, and of the island in which it is situated, which shall remain to France, Translation in 2 White’s Recop. 291.
    By the twentieth article of the definitive treaty, Spain ceded Florida to Great Britain, “ as well as all that Spain possesses, on the Continent of North America, to the east or the southeast of the River Mississippi.” The authorities to sustain the proposition are, United States v. Reynes, 9 How. 127; Police Jury of Concordia v. Davis, Id. 280.
    2. That the description of the lands, alleged in the petition to have been granted, is so. vague, indefinite, and uncertain, that they could not be identified, and the alleged grant is therefore void. United States v. Miranda, 16 Pet. 156; 15 Pet. 184, 215, 275, 319 ; 19 Pet. 331; 3 How. 787; 5 How. 26; and the case of United States v. Villalobos, decided the present term.
    3. That the petitioners should have made other persons, claiming the lands, or any portion of them, under a different title, or holding possession otherwise than under thenq parties to this suit.
    The court is respectfully referred to the argumént, on this point, on behalf of the United States, in the case against Boisdore’s heirs, at the present term. The district judge in Louisiana, held that it was necessary to make such parties, ánd the district judge of Mississippi, that it was not necessary.
   Mr. Chief Justice TANEY

delivered the opinion of the court.

The appeal in this case was taken from the decision of the District Court for the Southern District of Alabama.

The appellants filed a petition in that court to establish their title to a tract of land situated south of the 31st degree of north latitude, and between the Rivers Mississippi and Perdido, in the State of Alabama, the boundaries of which are set out in the petition. They state that the land in question was granted to' the Chevalier Montault de Monterault on the 11th of March, 1763, by Louis Kerlerac, then Governor of the Colony of Louisiana, and Louis Nicholas Faucáult, performing the functions of commissary ordonnateur, both of them holding their appointments under the King of France,.and the petitioners claim title as the descendants and legal heirs of the grantor.

The only question which arises on this record is upon the validity of this grant. It is objected to on account of the vagueness and uncertainty of the boundaries as set forth in the petition. But it is not necessary to express our opinion upon this point, because the other objection taken on behalf of the'United States is conclusive, and it is very clear that the trench authorities had no right to make this grant, and that it conveyed no title to the ancestor of the petitioners. For the definitive treaty of peace between Great Britain, France, and Spain, by which the territory in which this land is situated was ceded to Great Britain, was signed on the 10th of February, 1763, and consequently the French authorities could not, after that day, grant a title to lands lying in the ceded territory. This point, was decided in the cases of the United States v. Reynes, 9 How. 127 ; The Police Jury of Concordia v. Davis, 9 How. 280; and the United States v. Dauterive, 10 How. 609. And as the grant in questión was not made until the 11th of March next following the date of the treaty, it was at that time the exercise of a power by the French authorities which they no longer possessed, and could convey no title to the grantee.

The decree of the District Court dismissing the petition was therefore correct, and must be affirmed.

Order.

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