author:
Mr. Justice McLEAN
      Mr. Justice CATRON

text:
    Mayor and Aldermen of the City of Mobile, Plaintiffs, v. J. Emanuel and G. S. Gaines, Defendants.
    The case of the City of Mobile v. Hallett, 16 Peters, 261, examined and confirmed.
    Under the exception contained in the act of Congress of 1824, no title passed to the city of Mobile, where the land was in the possession of a party claiming to hold it under a Spanish grant which had been confirmed by the United States.
    This case was brought up by writ of error, from the- Supreme Court of the state of Alabama, under the twenty-fifth section of the judiciary act of 1789.
    The facts in the ease were these :
    • On the 26th of September, 1807, the. Spanish governor of Florida granted to John Forbes a tract of land immediately adjacent to what is now the city of Mobile, and indeed constituting a part of it. The grant was founded upon, and confirmatory oí) an older one issued to Richardson in 1767, by the British government, then in possession of the country. The land was upon the west side of the river Mobile. In the document issued by the surveyor-general, it is said to be “bounded on the east by said rivér;” and in that issued by the intendant, to be “terminated by the bank of said river on the east sidein both, there is a reservation of a “ free passage on the bank of the river.”
    On the 2d of March, 1819, Congress passed “An act to enable the people of the Alabama territory to form a constitution and state government, and for the admission of such state into the Union, on an equal footing with the original states,” by the sixth section of which it was enacted, “ That the following propositions be and the same are hereby offered to the convention of the said territory of Alabama, when formed, for their free acceptance or rejection, which, if accepted by the convention, shall be obligatory upon the United States.” After enumerating many articles, the section concludes with this: “ and that all navigable waters within the said state shall forever remain public highways, free to the citizens of said state and of the United States, without any tax, duty, impost, or toll, therefor, imposed by the said state.”
    By the original plan of the town a street was. laid off, called Water street, on the margin of the river, running nearly north and south, which was afterwards filled up, and by the improvement the water, at high tide, was confided to the eastern edge of the street.
    On the.26th of May, 1824, Congress passed “An act granting certain lots of ground to the corporation of the city of Mobile, and to certain individuals of said city,” which is as follows :
    1. “That all the right and claim of the United States to the lots known as the hospital and bakehouse, lots, containing about three-fourths of an acre of land, in the city of Mobile, in the state of Alabama, and also all the right and claim of the United States to all. the lots not sold or confirmed to individuals, either by this or any former act, and to which no equitable title exists in favour of any individual, under this or any former act, between high water-mark, and the channel of the river, .and be tween Church street and North Boundary street, in front of the said city, be and the same are hereby vested in the mayor and aldermen of the said city of Mobile, for the time being, and their successors in office, for the. sole use and benefit of the said city forever.
    2. “ That all the right and claim of the United States to so many of the lots of ground east' of Water street, and between Church street and North Boundary street, now known as water-lots, as are situated between the channel of the river and the front of the lots known under the Spanish government as water-lots, in the said city of Mobile, whereon improvements have been made, be and the same áre hereby vested in the several proprietors and occupants of each of the lots heretofore fronting on the river Mobile, except in cases where such proprietor or occupant has alienated his right to any such lot now designated as a water-lot, or the Spanish government has made a new grant or order of survey for the same during the time at which they had the power to grant the same; in which case the rights and claims of the United States shall. be and is hereby vested in the person to whom such. alienation, grant, or. order of survey was made, or in his legal representative.
    “ Provided, that nothing in this act contained shall be construed to affect the claim or claims, if any such there be, of any individual or individuals, or of any body politic or corporate.” 7 Vol. Laws of the United State's, 318; 1vol. Land Laws, ed. 1838, 398.
    On the 8th of July, 1835, the mayor and aldermen of the-city of Mobilé brought an action of trespass to try title against Emanuel and Gaines in the state Circuit Court of Alabama, claiming several lots bounded on the west by Water street, and running eastward to the channel of the river.
    On the trial of the cause, the jury, under the instructions of the court, foitnd the defendants “ not guilty” of the trespass. The court charged the jury “that if the place in controversy was, subsequent to the admission of this state into the Union, below both high and low water-mark, then Congress had no right to grant it; and if defendants were in possession, the plaintiffs could not oust them, by virtue of the act of Congress.
    “That the grant to Forbes extended to high water-mark, and that if the place claimed was between high water-mark and the channel, in front of the grant, and had been reclaimed by the defendants; then the plaintiffs coiild not recover in virtue of the act of Congress, and this, notwithstanding the reservation of the right of way specified in the confirmation of the grant to Forbes.”

      Upon this charge a bill of exceptions' was founded, and the case carried to the Supreme Court of the state of Alabama, where the judgment of the court below was affirmed.
    It is'necessary to refer to the opinion of the Supreme Court of the state of Alabama, in order to understand the ground, upon which the dissentient opinion of Mr. Justice Catron is placed.
    The Supreme Court of Alabama did not decide the first point raised in the bill of exceptions, viz., “ that Congress had no right to grant the land to the city of Mobile.” But being of opinion that the grant to Forbes conveyed to him the intervening space between high water-mark and the channel of the river, (covering the property in dispute,) and thus precluded the plaintiffs from ever recovering it; and being moreover of opinion, that a judgment ought not to be reversed for a misdirection of the judge to "the jury, if it appears that the party complaining could riot have been injured, that court waived all examination into the correctness of the first point, and contented itself with affirming the judgment of the court below.

      Test, for the plaintiffs in error.

      Sergeants, for the defendants.
   Mr. Justice McLEAN

delivered the opinion of the court.

This cause is brought to this court. by a writ of error, to the Supreme Court of Alabama.

An action of trespass to try the title to a certain lot or piece of ground in the city of Mobile, was comménced by the plaintiffs ■against the defendants, in the Circuit Court' of the state. Issue being joined, a jury'were empannelled, who rendered a verdict of not guilty. As the right of the plaintiffs was asserted, exclusively, under an act of Congress, and the decision being against that right, the plaintiffs, having excepted to certain rulings of the court on the trial, prosecuted this writ of error, under the twenty-fifth section of the judiciary act of 1789.

The bill of exceptions states that ft was proved the defendants Were in possession of the premises ‘described in the declaration, at the time the suit was brought.

. An act of Congress, entitled “ An act, granting certain lots of ground to the corporation of the city of Mobile, and to certain individuals of said city,” passed 20th May, 1824, was read: also “A resolution of the mayor and aldermen of the city of Mobile, passed the 23d day of April, 1834, in the following words : ‘ Resolved, that the map of .the city as now shown, to the board, be accepted and approved ; and it is further resolved that the names of the streets be the same as heretofore established.’ ”

It was also proved by the plaintiffs -that the map referred to was one published by Goodwin and Haise, a copperplate copy of which was offered in evidence; a copy of such parts of said map as is necessary to refer to is annexed.

It was also proved that there never had been a street in Mobile, known as North Boundary street. And also, that the premises in question were situate, in My, 1824, between Church street, south of Adams street, and below high water as well as low water-mark and the channel of the river. It was also proved that the premises were north of St. Louis street, as laid out in said map, and that in 1824, Water street did not extend to St. Louis street, and that at that time buildings were few and scattered above St. Louis street.

The defendant offered in evidence a grant from the Spanish government, and proved that they claimed title to the premises under that grant.

The court charged the jury that, if the place in-controversy was, subsequent to the admission of this state into the Union, below both high and low water-mark, then. Congress had no right to grant it; and if defendants were in possession, the' plaintiffs could not oust them, by virtue of the act of Congress. That the grant to Forbes extended to high water-mark, and that if the place claimed was between high water-mark and the channel, in front of the grant, and had been reclaimed by the. defendants, then the plaintiffs could not recover in virtue' of the act of Congress, and this, notwithstanding the reservation of the right of way specified in the confirmation of the grant to Forbes.”

It appeared that on the 5th January, 1767, the English government, being then in possession of the country, had granted the band in controversy to William Richardson'; arid that a grant of the same land was made to John Forbes and Co., the assignees of Richardson, by the Spanish authority, the- 26th September, 1807. In the British grant the land “ was bounded east, by the river Mobile,” and by the Spanish “by the bank of the river,” “ leaving a free passage on the bank,” &c.

The case was removed by writ of error from the Circuit Court to the Supreme Court of the state, in which judgment was affirmed.

The first section of the act of 1824, referred to in the bill of. exceptions, vests “in the mayor and aldermen of the city of Mobile, for the time being, and their successors in office, for the sole use $nd benefit of the city, 'forever, all the right and claim of the United States to all the lots not sold or confirmed to individuals, either by that or any former act, and to which no equitable title exists in favour of an individual under that or any other act, between high water-mark and the channel of the river, and between Church street and North Boundary street, in front of the city.”

And the second section of the act “ excepts from the operation 'of. the law, cases where the Spanish government had made a new grant or order of survey for the same, during the time at which they had the power to grant the same; in which case, the right and claim of the United States shall be and is hereby vested in the person to whom such alienation, grant, or order of survey, was made, or in his legal representative.”

In principle this case is similar to that of the City of Mobile v. Hallett, 16 Peters, 261. In that cause the court say, “ From the bill of exceptions, it appears, that the defendant was in possession of the land in controversy under a Spanish grant, which was confirmed by the United States; and that the land extended to the Mobile river. It was then within the exception in the act of 1824, and no right vested in the plaintiffs. We think, therefore, that the instruction of the Circuit Court to this effect, was right.” The same language is equally applicable to the.casé urider consideration. And it appears that the judgment of the Circuit Court was affirmed by the Supreme Court of Alabama, on the ground that “ there was no vacant space between high and low water-mark; all having been sold and confirmed to Forbes,” under his Spanish' grant.

The Spanish grant being an exception in the act, under which the plaintiffs claim, the instruction of the Circuit Gourt in favour of the defendant was correct. The judgment f the Supreme Court of Alabama is affirmed.

Mr. Justice CATRON

dissented.

The premises in controversy lie in front of the city of Mobile, and aré claimed by the corporation, by virtue of the act of Congress, of May 20, 1824.' They lie both below high and low water-mark.

The court charged the. jury that, if the place in controversy was subsequent to .the admission of this state into the Union, below both high and low water-mark, then Congress had no right to grant it, and. if defendants were in possession, the plaintiffs could not oust them, by virtue of the act of Congress.

That the grant to Forbes extended to high water-mark, and that if the place claimed was between high water-miark, and the channel, in front of the grant, and had been reclaimed by defend-. ánts; then the’ plaintiffs could not recover in virtue of the act of Congress, and this, notwithstanding the reservation of the rights of way specified in the confirmation of the grant to Forbes.

To all of which charge the counsel of the plaintiffs excepted.

The jury found a general verdict of not guilty. As Alabama was admitted into the Union, December 14,1819, the first instruction, was conclusive of the plaintiffs’ title. On the admitted fact, that tFe land lay under the water in 1824, the court pronounced the act of Congress void.

The second instruction depends on the fact, “ whether the defendant had reclaimed the land in front of the grant of Forbes.” There is no evidence in the record that he had done so; and all the evidence purports to have been set out.

A writ of error was prosecuted to the Supreme Court of Alabama. That court simply affirmed the judgment of the Circuit Court: and from that affirmance a writ of error was prosecuted to this court, by the corporation of the city-of Mobile, under the twenty-fifth section of the judiciary act.

One error assigned in the Supreme Court of Alabama, was, ■“That the charge’of the circuit judge denies, that the United •States had right and power to grant the premises in question.” '

On the general affirmance, can this court take jurisdiction and reverse, because the first instruction was erroneous. In the case of the same plaintiffs against Eslava, 16 Peters, 246, the majority of the court held, that the opinion of the Supreme Court of Alabama certified as part of the record, was no part of ■ it. Speaking of the opinion,,the court says: “Their opinion constitutes no part of the record, and is not properly a part of the case. We must look to the points raised by the exceptions in the Circuit Court, as the only questions for our consideration and decision.”

And .so this court held, in even a stronger case, (Gordon v. Longest, 16 Peters, 103,) where there had been a general affirmance of the judgment below, by the Supreme Court of Kentucky.

In Eslava’s case, I thought the opinion of the Supreme Court of Alabama formed part of the record: in that case, as in this, the opinion was found in the paper book; but a majority of the court ruled it out, as no part of the record; to which decision I submit, of course.

Looking only to the points raised by the exceptions in the Circuit Court, and we find it established with a plainness admitting of no doubt, that Alabama claims to'hold as her own ; and does actually hold, by force of her judicial decisions, all the lands within the state, flowed by tide waiter: and that this claim . is founded, on an implied cession of the lands under fide water, by the United States to Alabama, as a consequence of the sanction given by Congress to the state constitution. The disastrous results of this assumption on part of the state courts of Alabama, I endeavoured to point out, (so far as pressure of circumstances would permit,) in my opinions in the cases of these plaintiffs against Eslava and Hallet, 16 Peters, 247 and 263.

That the United States had the undoubted title before the adoptipn of the constitution of Alabama, has never been denied by any one; and that the state acquired title by that event has not been proved, nor can it be, as I. think: nor is it perceived how the question can be avoided in the cause before us, unless we look beyond the record. I therefore believe the judgment should be reversed because there was error in the first instruction. For my reasons I refer to the opinions in the cases of Eslava and Hallet. To these I vjkill add, that it is-, impossible for this court to follow the decisions of the Supreme Court of Alabama, without overruling the decision in Pollard’s heirs v. Kibbie, 14 Peters, 353. William Pollard claimed a square' of land below high water-mark fronting the city of Mobile: the claim .was founded originally on a Spanish concession, made in 1809. This was merely void, as was held in Foster and Elam v. Neilson, 2 Peters, 254, and in Garcia v. Lee, 12 Peters, 511. By the 2d sec. of the act of 1824, the land was excepted from its operation and did not pass to the city of Mobile. 14 Peters, 364, 365, 366. The title to the square claimed by Pollard therefore remained in th. United States until it was granted to his heirs, by a private act of Congress, of 1836, and a patent founded on. the act, dated in 1837. This court maintained the title, and a recovery was had on the act of 1S36, and the patent from the government.

If the act of 1824' is void, because Congress had no power to grant the lands below the flow of the tides; so is equally, and as certainly, the act of 1836, and the patent founded on it.

Forbes owned the land, in front of the land granted to Pollard’s heirs: Forbes’s grant extended to high water-mark; was dated in 1802; and was undisputed. This court held in effect that-it was bounded, and could not extend by implication beyond the high Water-mark. So is the undoubted construction of grants for lands fronting tide waters. A grant of lands on each side of an arm of the sea, and embracing it, does not pass the land under the water by general words; there must be spécial words of grant, showing plainly the land covered with water, was intended to be granted: without such explicit words of grant, the high lands only pass. Such is the settled doctrine of this court. Martin v. Waddel, 16 Peters, 367. Forbes therefore could not claim as riparian owner, the land granted on his front, to Pollard: to hold otherwise would overrule the decision of Martin v. Waddel.■In any aspect this controversy can be presented, it falls within the decision of Pollard v. Kibbie: that case must be overruled, if the doctrine of the courts of Alabama is maintained.

ORDER.

■This cause came on to be heard on the transcript of the record from the Supreme Court of the state of Alabama, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Supreme Court in this cause be and the same is hereby affirmed, with costs.


source: Caselaw Access Project

author: Mr. Justice THOMPSON Mr. Justice McLEAN

license: Public Domain

text:
    The United States, Plaintiffs in error, v. William Linn and others.
    A plaintiff may, in an action in form ex delicto against several defendants, enter a nolle prosequi against one of them. But in actions in form cx contractu, unless the defence be merely in the personal discharge of one of the defendants, a nolle prosequi cannot be entered as to one defendant without discharging the other.

      Qu. Whether a plea which sets up new matter and concludes “ to the country” is good.
    A plea alleging merely that seals were affixed to a bond without the consent of the defendant, without also alleging that it was done with the knowledge, or by the authority or direction of the plaintiffs, is not sufficient.
    A plea, which has on the face of it two intendments, ought to be construed most strongly against the party who pleads it.
    A party who claims under an instrument which appears on its face to have been altered, is bound to explain the alteration; but not so, when the alteration is averred by the opposite party, and it does not appear upon the face of the instrument.
    Where the plea is bad and the demurrer is to the plea, the court, having the whole record before them, will go back to the first error.
    Where the date of a surety bond is subsequent to the appointment of the principal to office, the declaration should allege that the money collected by the principal remained in his hands at the time when the surety bond was executed.
    This case came up- by writ of error from the Circuit Court of the United States for the district of Illinois, and is a sequel to the case between the same parties reported in 15 Peters, 291, et seq. The circumstances are sufficiently set forth in the opinion of the court.

      Legaré, the attorney-general, for the United States.

      Coxe, for the defendants.
   Mr. Justice THOMPSON

delivered the opinion of the court.

This case comes up on a writ of error from the Circuit Court of the United States' for -the -district of Illinois. The writ or summons issued in the cause purports to be in a plea of debt for one hundred thousand dollárs. And the declaration contains three counts upon the following instrument, which upon oyer craved by the defendants is set out upon the record.

Know all men by these presenté, that we,- William Linn, - David B. Waterman, Lemuel Lee,- James M. Duncan, John Hall, William Walters, Asahel Lee,- William L. D. Ewing, Alexander P. Field, and Joseph Duncan, are held and firmly bound unto the United States of America, in the full and just sum of one hundred thousand dollars, money of the United States, to which payment, well and truly to .be made, we bind ourselves jointly and severally, our joint and several heirs, executors, and administrators, firmly by these presents, sealed with our. seals, and dated this first day of August, in the year one thousand eight hundred and thirty-six.” They also crave oyer of the condition of the said supposed writing obligatory, and it is read to thefii in these words': “ The condition of the foregoing obligation is such, that whereas the President of the United States hath, pursuant to law, appointed the said William Linn receiver of public moneys for the district, of lands subject to sale at Vandalia, in the state of Illinois, for the term of four.years, from the 12th day of January, 1835, by commission bearing 12th February, 1835. Now, therefore, if the said William- Linn sha.ll faithfully executé and discharge the duties of his office, then the above obligation to be void and of none effect, otherwise it shall abide- and remain in full force and virtue.-

Sealed and delivered in the presence of Presley G. Pollock, as to Wm. Linn, D. B. Waterman, Lemuel Lee, J. M. Duncan,. John Hall, Wm. Walters, Asahel Lee, Wm. L. D. Ewing, and A. P. Field; A. Caldwell as to Joseph Duncan.

William Linn, [l. s.]

Lemuel Lee, [l. s.]

John Hall, ' [l. s.]

Asahel Lee, [l. s.J

A. P. Field, [l. s.]

D. .B. Waterman, [l. s.]

J. M. Duncan, ■ [l. s.]

Wm. -Walters, [l. s.]

Wm. L. D. Ewing, [l. s.]

Joseph Duncan, [l. s.]

General Land Office.

Approved, August 30, 1836.

ETHAN A. BROWN.”

To the first count/which purports to be debt on .the bond, the defendants plead jointly non.est factum and several other pleas not necessary here to be noticed.

To the second and third counts which are. upon the same instrument, not described however as a bond, but as a certain instrument in writing. To these counts the defendant, Joseph Duncan, put in the following plea;

“And the said Joseph Duncan impleaded as aforesaid, by Logan and Brown, his attorneys, comes and defends the wrong and injury, when, &c. And as to the said second and third counts in the said plaintiffs declaration contained, says that the said plaintiffs their said action on the said second and third counts ought not to have or maintain against him, this defendant; because, he says, that protesting that he executed the supposed written instrument declared upon in the said second and third counts of the plaintiffs amended declaration, he says that after he had signed said instrument,-and delivered it to his co-defendant, Linn, to be transmitted to the plaintiffs'; and after the securities to the said written instrument had been affixed (approved) by the Hon. Nathaniel Pope, Judge of the District Court of the United States for the stale of Illinois, it was,'without the consent, direction, or authority of said Joseph Duncan, materially altered in this — that scrawls, by way of seals, were affixed to the signature of said Joseph Duncan to said written instrument, and to the signatures of the other parties to -said written instrument, whereby the character and effect of- the said written instrument, declared in the second aiid third counts aforesaid, was materially changed, and said instrhment declared on, vitiated.

“ And so said Duncan says, that the said supposed written instrument declared on in the second and third counts of plaintiffs’ amended- declaration, -is not his act and instrument, — and of this he puts himself upon the country.”

To which plea there is interposed a special demurrer, and the court gave judgment for the defendant Joseph' Duncan upon the demurrer, thereby adjudging that the plea was sufficient in lav to bar the plaintiffs from maintaining their action against him And issues being joined upon the pleas to the first count, the cause came on to be tried by .a jury, and under the instructions of the court a- verdict was found for (the defendants upon the issues of fact. Exceptions were taken to the instructions of the court to the jury. And the • correctness of such instructions is. the first question presented on this, writ of error,

• Upon the trial, after reading the bond to-the jury, the defendants called a witness, who testified in substance, that he saw the bond after it had been signed by the obligors, in the hands of William Linn, the obligor first named therein, after it had been returned from the district judge; with his certificate endorsed of the sufficiency of the sureties. That the district judge, in a note in writing, accompanying the bond, had pointed out the omission of seals to the names of the signers of the instrument; and said Linn, saying he would obviate that difficulty, took a pen, and in the presence of the witness, added scrawls, by way of seals, to each name subscribed, as makers of the .instrument. Other testimony was given, under the issues of fact, which it is not material to notice.

Upon this evidence the court gave the following instruction to the jury: “ If they shall find from the evidence, that after the instrument upon which the action is brought, was signed by the defendants, it was altered by William Linn, one of the defendants, without the knowledge or assent of the other defendants, by adding to the names of the defendants the scrawl seals which now appear upon the face of the instrument, and such defendants have not at any time since the alteration sanctioned itj the instrument is not the deed of such defendants, and the jury will find a verdict in their, favour.” And the question is, whether this instruction was in point of law correct, under the pleadings and evidence in the cause. All the defendants united in a joint plea of non est factum, and the proof was that the scrawls were added by Linn to his own name and to the names of the other defendants. . The adding the scrawl by Linn to his own name did not vitiate the instrument as to him: he had a right to add the seal, or at least, he can have no right tó set up his own act in this respect to avoid his own deed. It was therefore his deed, and the plea of non est factum as to him is false. And the question is, whether it is not false as to all who joined him in the plea of non est factum. It is laid down by Chitty in his Treatise ón Pleading, that a plea which is bad in part is bad in toto. ■ If therefore two defendants join in a plea, which is sufficient for one but not for the other, the plea is bad as to both. For the court cannot sever it, and say that one is guilty,- and that the other is not-, when they put themselves on the same terms. Chitty, 599. A plaintiff may in an action in form ex delicto against several-defendants, enter a nolle prosequi as to one of them. But in actions in form ex contractu, unless the defence be merely in the personal discharge of one of the defendants, a nolle prosequi cannot be entered, as to one defendant, without discharging the other, for the cause of action is entire and indivisible. Chitty, 599. The rule laid down by Chitty is fully sustained by the English and American decisions. In Smith v. Bouchin et al., 2 Strange, 993, the action was trespass and false imprisonment; plea not guilty by all, and a justification as to eight days’ imprisonment. And the court held, that although the officer and jailer might have been excused, if they had pleaded severally, but having joined.in the plea with others who could not justify, they had forfeited their justification. In Moors v. Parker and others, 3 Massachusetts, 310, the action was trespass de bonis aspor-. tatis against several, and all join in the plea of not guilty, and also in a plea of justification. • The court held that the bar set up was no justification for one of the defendants, and if several defendants join in pleading ini bar,, if the plea is bad as to one defendant it is bad as to all.

So in the case of Schermerhorne and others v, Tripp, 2 Caines, 108, which was in error from a Court of Common Pleas. The action was trespass against a justice of the peace, the constable, and the plaintiff, and all joined in a plea of not guilty. The court said, the constable having joined with the others in' the plea of the general issue, they are all equally trespassers. If he had pleaded separately, he would probably have been excused; but he has now involved himself with others, and we cannot separate their fates.

It is unnecessary to multiply authorities on this point, the boóks are full of them, and it is a well settled and established rule in pleading. The reason is, because the plea, being entire, cannot be good in part and bad in part, an entire plea not being divisible, and consequently, if the matter jointly pleaded be insufficient as to one of the parties, it is so in toto.. 1 Saunders, 28, n. 2', and. cases there cited.

It has been .suggested that this .objection is waived by the following entry in the bill of exceptions: “A judgment having been c/btained against Linn for the full amount of his defalcation, a judgment on this bond' was not asked against him or any of the defendants, unless the jury sháll find against all ihe defendants.” ' It is not perceived how this can be considered a waiver of any error. No judgment .could have been given against Linn separately,- the plea of .non est factum being joint. But the plaintiffs, according to the express terms of this memorandum, did ask a verdict and judgment against all the defendants; and if from the pleadings and evidence they were entitled to judgment against all, as we think they were, there was no Waiver that will justify the instructions given to the jury.

The next question arises upon the special demurrer to the plea of Joseph Duncan tcrthe second and third counts of the declaration. This plea sets up new matter, to avoid the instrument upon which the action is founded, and concludes to the country. And it may well be questioned, whether upon the best and soundest rules of pleading it ought not to have concluded with a verification. Chitty, in his Treatise on Pleading, (1 Chitty, 590,) says it is an established rule in pleading, that whenever new matter is introduced on either side, the pleading must conclude with a verification, in ordér that the other party may have an opportunity of answering it. And this rule has thé sanction of many adjudged cases. la.the case of Service v. Heermance, I Johns. 93, the court say there is no rule in pleading, better or more universally established, than, that whenever new matter is introduced the pleading must conclude with an averment. And the reason, • say the court, is obvious, because the plaintiff might otherwise be precluded from setting forth matter which would maintain his action, although the matter pleaded by the defendant might be true. • And in Henderson v. Whitby.and others, 2 Durn. and East, 576, Buller, Justice, in giving the judgment of the court, said: By the rules of pleading, whenever new matter is introduced, the other party must have an. opportunity of answering it. So that the replication setting up new matter concluded properly with an averment. Numerous authorities, both in England and in the United States, might be cited in support of this rule. But there is certainly no little confusion' and diversity of opinion appearing in the books with respect to the question, when the pleadings ought to conclude to the country, and when with a-verification. Many of these discrepancies may grow, out- of rules, said, by Mr. Chitty, to have been recently- established in the English courts relating to pleadings, which have not fallen under our notice. We will, however, pass by the demurrer for that cause in the present case, and proceed to an examination of the special matter set up in the plea in bar of the action. If this mode of pleading be adopted, the special matter set up must, as in a special plea, be such, that if true in point of fact, it will bar the action and defeat the plaintiff’s right to recover. The matter set up in this plea, when stripped of some circumlocution, is, that after he, Joseph Duncan, and the other parties to the instruments, had signed the same, it was,, without his consent, direction, or authority, altered by affixing seals to their signatures. The plea does not indicate in any manner by whom the alteration was made. ■ It does not allege that it was done with the knowledge or by the authority or direction of the plaintiffs; nor does it even deny that it was done with the knowledge of the defendant, Joseph Duncan. The plea does not contain any allegation inconsistent with the conclusion, that it was altered by a stranger, without the knowledge or consent of the plaintiffs, and if so, it would not have áffected the validity of the instrument. It is ' said that the demurrer admits the truth of the matter set up in the plea. The demurrer admits whatever is well pleaded. But , it does not admit any more, and certainly does not admit what is not pleaded at all. The demurrer .then admits nothing more than that the seals were affixed after the instrument had been signed by the. parties and delivered to Linn to be transmitted to the plaintiffs, and that this was done, without the consent, direction, or authority of him, the said Joseph Duncan. Is this enough to avoid the instrument and bar the recovery? It certainly is not; for the seals might have been affixed by a .stranger without the knowledge or authority of the plaintiffs, and would not have affected the validity of the instrument. The plea not alleging by whom the seals were affixed, it is open to two intendments. Either that this was made by the plaintiffs, which would make- the instrument void, or that it was done by a stranger, which would not invalidate it. Apd' what is the’ rule of construction of such a plea ? It is, that it is to be construed most strongly against the defendant. This is the. rule laid down by Chitty,.l Chitty, 578', and in which he is supported by numerous authorities. And the reason assigned-for this rule of construction, is, that it is a natural presumption, that the party pleading will state his case as favourably as he can for himself. And if "he do not state it with all its legal circumstances, the case is not in fact favourable to him; and the rule of construction in such case is, that if a plea has on the face of it two intendments, it shall be taken most strongly against the defendant; that is, says he, the most unfavourable meaning shall be put upon the plea; a rule which obtains also in other pleadings; and a number of cases are put, illustrating this rule. The present plea'falls directly within it. The plea not alleging, by whom the seals were affixed, it is left open to intendment, that it was done either by the plaintiffs or by a stranger. In the first case, it would make the deed void; in the last, it would not vitiate it: And under the rule that has been stated, the most unfavourable meaning must be put upon the plea; that is, that which will operate most against the party pleading it. And the alteration must be presumed to have been made so as not to' vitiate the instrument, if the plea will admit of such construction. Suppose the plea had concluded with a verification,, and the plaintiffs had replied that the affixing the seal was done without their knowledge, consent, or authority, and this state of the case had been sustained by the proof, it would not have avoided the. instrument.

But, it is said, the law imposes upon, the party who claims under the instrument. the burden of explaining the alteralion. This is the rule Undoubtedly, where the alteration appears on the face of the instrument, as an erasure, interlineation, and the like. Iftsuch case, the party having the posséssion of the instrument and claiming under it, ought to be called upon to explain it. It is presumed to have been done while in his possession. But, where no such prima facie evidence exists, there can be no good reason why this should devolve upon a party, simply because he claims under the instrument. The plea avers the alteration,.and the defendant, therefore, holds the affirmative; and the general rule is, that he who holds the affirmative must prove it. And this, under the present plea, can impose no hardship on the defendant, for his affirming the fact of alteration affords a reasonable presumption that he knew by whom the alteration was made. And, in addition to this, it is a circumstance deserving considerable weighty that the .defendant in his plea does not deny his having such knowledge. He avers that the seal was affixed without his consent, direction, or authority; but he does not say it was done without.his knowledge. And it is not an unreasonable inference that if he had, in his plea, disclosed by whom it was done, it would- appear to have been done in a way that did not affect the validity of the instrument. There is not upon the face of this instrument any thing indicating an alteration, or casting a suspicion upon its validity, that should put the plaintiffs upon inquiry. The instrument upon its face admits it was sealed with the- seals of the defendants, and purports to have been sealed and delivered, in the common conclusion of a sealed bond. So that, when the instrument came into the possession of the plaintiffs, there was nothing on the face of it to raise a suspicion against its validity. The case of Henman v. Dickinson, 5 Bingham, 183, has been relied upon to show that the onus of accounting for the alteration is thrown upon the plaintiff's. All that this case decides is, that the party who sues on an instrument which on the face of it apT pears to have been altered, it is for him to show that the alteration -has not been improperly made. The circumstance of the alteration appearing on the face of the instrument is emphatically relied upon by the court to show that the party claiming under the instrument must account for the alteration. This was a question of evidence upon the trial, and did notarise upon the pleadings, and the report of the case does not furnish us with the pleadings. Many other cases might be cited to the same effect.

In the case- of Taylor v. Mosely, 6 Car. and Payne, 273, the bill upon which the suit was brought appeared on its face to have been altered, and there was no evidence on either side when or by whom the alteration was made; and the question was submitted to the jury by Lord Lyndhurst, with the remark, that it lay on the plaintiff to account for the suspicious form and obvious alteration of the note, and they must judge from the inspection of the instrument, and if they thought the alteration was made after the completion of the bill, the verdict.must be for the defendant. In the case now before the court, the inspection’of the instrument furnishes no ground of suspicion, and from the facts stated in the plea, there must have been considerable distance of time after the instrument was signed by Duncan before it came into the possession of the plaintiff's. The plea alleges that it was delivered to Linn, one of the defendants, to be transmitted- to the plaintiffs. But the plea does not allege that the alteration was made after the instrument came into the possession of the plain-, tiffs; and .under this state of facts alleged .in the- plea, the onus of proving when and by whom altered, is more properly cast upon the defendant. We are accordingly of opinion that the plea is* bad. But it is a settled rule that, when the demurrer is to the plea, the court having the whole record before them will go back to the first error: and when the demurrer' is by the pjxintiff, his own pleadings must be scrutinized, and 'the court will notice all exceptions to the declaration that might have been taken on general demurrer. * We are accordingly thro wn back on the record to examine the sufficiency of the declaration in the second and third counts.

The second count sets out the instrument as of the date of the 1st of April, 1836. That Linn’s commission bears date the 12th of February, 1835, and that he was appointed receiver for four years from the 12th of January, 1835. And the count then alleges that after the making and delivering the said instrument in writing, and after the appointment of the said Linn, he entered upon.the duties of his office 5 and that within four years from the said 12th'day of January, and while he was receiver of public moneys, there came into his hands, as receiver, the sum of four millions of dollars, which it was his duty to. pay over to the plaintiffs when requested, yet the said William Linn hath not, nor would he, although often requested so to do, to wit on the 2d ffay of April, in the year 1838, account for and pay over to the said plaintiffs .the said sums of money or any part thereof, but hath wholly neglected and refused so to do. It is said this count is bad, because from the time stated'in the count he might have received the money after the 12th day of January, 1835,'the commencement of his office, and before the 1st day of April, 1836, when the instrument signed by the sureties bears date, and that the sureties cannot be responsible for any moneys received -before they became sureties. The count alleges a demand of the money and a refusal to pay'it on the 2d day of April in the year 1838, long after , the defendant - became surety. In the case'of Farrar and Brown v. The United States, 5 Peters, 373, (which was an action upon a bond given for the faithful discharge of the duties of a surveyor of the public lands,) the breach assigned was, that at the time of the execution of the bond, there were in the hands of the surveyor large sums of money to be disbursed for the use of the United States, which he had neglected to do.” • And one of the questions which arose was, whether the sureties' could be made liable for any moneys paid to the surveyor prior to the execution of the bond; and the court said there is but one ground on which the sureties can be made answerable, and that was on the assumption that the money was still remaining in his hands when the bond was given. And in the case of The United States v. Boyd, 15 Peters, 20S, the court said it matters not at what time the moneys had been received, if after the appointment of the officer they were held by him in trust for the United' States, and so continued to be held at and after the date of .the bond. In these cases there was a direct allegation that the •money was in the hands of the officer at the date of the bond. In the case now before the- court, there is no such direct allegation, and this count is therefore bad on this ground. The third count is also bad for the same reason.

The judgment of the Circuit Court must'accordingly be reversed, and the cause sent back for further proceedings.

Mr. Justice McLEAN

dissented.

The joint plea of non est factum to the first count in the declaration being bad against Linn, is undoubtedly bad against the other defendants. But this point was not raised in the Circuit Court.. It was not intended to be raised. On the contrary, the counsel agreed to submit the question under the plea, whether the annexation of the seals by Linn vitiated the bond as against the sureties. And the reason for this was stated in the following entry on the record : “ A judgment having been obtained against Linn for the full amount of his defalcation, a judgment on this bond was not asked against him or any of the defendants, unless the jury shall find against all the defendants.”

This agreement was treated by the counsel on both sides, in the Circuit Court, as waiving any technical question arising on the pleading. No one could doubt that the bond was' good against Linn. And it is equally clear that, technically, the plea was bad for the other defendants, it being bad as to Linn. And it was’ to avoid any technicality of this kind that the agreement was entered into. It is less definite than it should have been, but still its object seems to be manifest. That a construction here would be given to the agreement different from that which was given to it by the United States attorney in the Circuit Court, was not expected. His construction is shown from the fact of his not having suggested any objection to the court below arising on the joint plea.

The plea of Joseph Duncan as to the alteration of the bond is held to be bad, because it is not averred that it was altered by the plaintiffs or by their authority. At the sainé time it is admitted that, on the general issue, the person claiming under the deed must explain any interlineation or alteration upon its face, so as to show the bond is not vitiated. The' reason of this is clear.. The party having possession of the bond is presumed to have a knowledge of any alteration of it, and is therefore required to explain it. Prima facie, any material alteration vitiates the bond.

Now the special plea in this case states a material alteration, by affixing the seals, after the instrument had been approved of by the district judge. The demurrer admits the facts stated in 'the plea. Does it not follow, then, that the plea is good, if the alteration alleged in it be a material one; such an one as vitiates the instrument unless explained ? No rule in pleading is better settled than that a fact which is presumed to be known to the plaintiff, and is not presumed to be within the knowledge of the defendant, the defendant need not aver it in his plea, if he can without the averment set up a prima facie defence. Mr. Chitty says, 1 vol. of Plead. 255, “It is also a general rule, that matter which should come more properly from the other side need not be stated. In other words, it is enough for each party to make out his own case or defence. He sufficiently substantiates the charge or answer for the purposes of pleading, if his pleading establish a prima facie charge or answer. He is not bound to anticipate, and therefore is not compelled to notice and remove in his declaration or plea every possible exception, answer, or objection which may exist, and with which the adversary may intend to oppose him.” Com. Dig. Pleader, c. 81; Plowd. 376; 2 Saund. 62 a, n. 4; 1 Term Rep. 638; 8 Term Rep. 167; Stephen’s Pl. 1st ed. 354.

No one can doubt that the alteration averred in the above plea, appearing on the face of the instrument, would vitiate it, unless explained by the holder. And it follows then that the plea stating the fact, which the demurrer admits, must be answered and explained.

The defendant must know whether an instrument which he has executed has been altered in a material part. But he is not presumed to know by whom it has been altered, while it is in the possession of the party who claims under it. If the defendant must aver this, he must prove it; and this would be impossible. But, on the other hand, the person claiming under the instrument, and who has always been in possession of it, may well be presumed to know by whom it has been altered, and, therefore, he, and he only, can explain it. Any other rule would be most unreasonable and contrary to any proper system, of pleading.

The rules lately adopted by the courts of England in regard to pleading seem “not to have fallen under the notice of this court.” This is to be regretted, as those rules have been published 'in the late editions of Mr. Chitty on Pleading, and are known to the profession throughout the country.

It is true, as the court say, that intendments are. taken against the plea; but intendments must not only be practicable, but reasonable. If a fact in the plea be omitted:, which the defendant cannot be presumed to know, and which must be known to the plaintiff, no intendment against the plea can be drawn.

Mr. Stephens, in his Treatise on Pleading, 350, under the head that, “ it is not necessary to state matter which would come more properly from the other side,” says, “this, which is the ordinary form of the -rule, does not fully express its meaning. The meaning is, that it is not necessary to anticipate the answer of the adversary; which, according to Hale, C. J., Us like leaping before one comes to the stile.’ It is sufficient that each pleading should in itself contain a good prima facie case, without reference to possible objections not yet urged,” “ Thus in pleading a devise of land by .force, of the statute, of wills, 32 Hen. 3, c. 1, it is sufficient to allege that such an one was seised of the land in fee, and devised it by his last will, in writing, without alleging that such devisor was of full age. For though the statute provides that wills made by femes covert, or persons within age, &c., shall not be taken to be effectual; yet if the devisor were within age, it is for the other party to show this iri his answer, and it need not be denied by anticipation.”

■ “ So where an action of debt was brought upon the statute 21 Hen. 6, against the bailiff of a town for not returning a burgess of that town for the last Parliament, (the words of the statute being that the sheriff shall send his precept to the mayor, and if there be no mayor, then- to the bailiff,) the plaintiff declared that the sheriff had made his precept unto the bailiff, without averring that there was no mayor. And after verdict for the plaintiff, this was moved in arrest of judgment. But the court was of opinion clearly, that the declaration was good; for we shall not intend that- there was a mayor, except it be showed; if there were one, it should come more properly on the other side.”

“Where the matter is such that its affirmation or denial is essential to the apparent or prima facie right of the party pleading, there it ought to be affirmed or denied.” Now the alteration of the instrument in a material part, after Duncan the , defendant had signed it, without his consent or knowledge, did make a prima facie case. It made such a case, as, upon the general issue, would have required the plaintiffs to show by whom it was altered. And this shows that the plea is good. It is the same principle whether it arise on the general issue or by special plea. The same order of proof is required. iThe plaintiffs, therefore, instead of demurring, should' have pleaded over, and alleged that the alteration was made by a stranger, and, consequently, that it did not vitiate the instrument.

The plea should have concluded with a verification, and not to the country. , But this could .only be taken advantage of by special demurrer. This defect is not one of the causes assigned in the demurrer, and, therefore, cannot be objected to.

The second and third counts of the declaration being bad, as ruled by the court, the judgment of the Circuit Court should, on those counts, have been affirmed, and not reversed. Mr. Stephens, in his Pleading, 144, says again, “ It is a rule, that on demurrer the court will consider the whole record, and give judgment for the party who, on the whole, appears to be entitled to it.” “Thus on demurrer to the replication, if the court think the replication bad, but perceive a substantial fault in the plea, they will give judgment, not for .the defendant, but for the plaintiff, provided the declaration be good; but if the declaration also be bad in substance, then, upon the same principle, judgment would be* given for the defendant.” Piggot’s case, 5 Rep. 29 a; Bates v. Cost, 2 Barn. & Cres. 474.

I believe this case' is the first exception to the above rule. ‘ Notwithstanding the above defective counts, judgment is given generally against the defendant. It is hoped that this ruling will not establish a precedent in other cases.

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 Illinois, 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 reversed, and that this cause be and the same is hereby remanded to the said Circuit Court, with- directions to proceed therein conformably to to the opinion of this court. •


author: Mr, Justice WAYNE

text:
    Thomas Marris, Complainant and Appellant, v. Maria Nixon, Henry J. Williams and Thomas Biddle, Henry J. Williams and Maria Nixon, executors of the last will and testament of Henry Nixon, deceased, And Maria Nixon, sole devisee of the said last will and testament of Henry Nixon and Mary Husband, Amelia M. Morris, Robert Morris, William P. Morris, Charlotte E. Morris, Henry Morris, Sarah Morris, children and heirs at law of Henry Morris, deceased, and Cornelius Stevenson and Samuel C. Clements, administrators of said Henry Morris, deceased.
    A deed, absolute on the face of-it, declared to be a security for money loaned.
    Where a bill substantially charges that there is a fraudulent attempt to hold property ufider a deed,-absolute on the face of it, but intended as a security for money loaned, evidence will be admitted to ascertain the truth of the transaction.
    Where there is proof of parties meeting upon the footing of borrowing and lending, with an offer to secure the lender by a mortgage upon particular property, if a deed of the property, absolute on the face of it, be given to the lender, and the lender also take a bond from the borrower, equity will interpret the deed to be a security for money loaned, unless the lender shall show, by proofs, that the borrower and himself subsequently bargained upon another footing than a loan.
    Where a loan is an inducement for the jxecution of a deed which is absolute on the face of it, though the loan is not recited as the consideration of the deed, or as any part of it, if the lender or grantee in the deed treats it substantially as the consideration, or a part of it, equity will declare the deed to be a security for money loaned.
    The answer of one defendant in equity is not evidence in behalf of another defendant
    If, in equity, it is admitted or proved that one of the documents in a transaction was riot intended to be what it purports, it subjects other documents in the same transaction to suspicion.
    This was an appeal from the equity side of the Circuit Court of the United States in and for the eastern district of Pennsylvania, and arose upon the following facts.
    On the 2d of January, 1812, Jonathan Williams and Thomas Morris .(the complainant) purchased from the Bank of North America a parcel of land upon the Schuylkill river, near the city of Philadelphia, for the sum of $80,000;. $20,000 of which was to be cash, and the remaining $60,000 was divided into three payments of $20,000 each, which were to become due on the 25th of March, 1814, 1815, and 1816, respectively. The parties gave their joint and . several bonds for these sums, with a-warrant of attorney to confess judgment, and a mortgage upon the property. It. afterwards appeared that Morris was not exclusively the wner of his moiety.
    On the 27th June, 1812, Morris gave a power of attorney to Thomas Biddle and Henry Nixon, to manage the property for him.
    In 1815, Williams died intestate, leaving Henry J. Williams and Christine, the wife of Thomas Biddle, his heirs at law.
    In April, 1816, Morris and'the representatives of Williams executed a power of attorney to Biddle and Nixon, authorizing them to enter into and take possession of the property, sell or lease it, receive the money, execute deeds, &c.
    Under this power, they accordingly took possession, and exer-* cised all manner of ownership over it.
    A great number of' letters between the parties were given in evidence, running from this time to the year 1822, relating tCLthe condition and prospects of the property. One of the bonds had been paid out of the proceeds of sales, and considerable payments made on account of another. The third was wholly unsatisfied.
    In 1822, Morris, residing in New York, applied to Nixon for a loan, under the circumstances stated so particularly in the opinion of the court that it is unnecessary to mention them here. Nixon declined making a loan, but took from Morris a deed, absolute upon the face of it, conveying the whole of Morris’s .interest to Nixon, and reciting that Nixon had always been interested in the purchase' to the extent of three-sixteenths of the whole, or three-eighths of Morris’s moiety. Nixon then loaned to Morris $5000, for which he .took his bond.
    The deed also recited that there had been allowed to Nixon tor his agency, the sum of $2000; one-half of which, or $1000, had been paid by the representatives of Williams, but paid’ to Morris; and five-eighths of the other $1000, (or $625,) were justly chargeable to Morris; thus bringing Morris in debt to him $1625, which was released in the deed. It also contained other recitals, which are mentioned in the opinion of the court.
    In 1836, Morris filed a bill on the equity side of the Circuit Court of the United States for the eastern district of Pennsylvania, against Nixon and other parties, alleging that the deed was only a security for the money loaned; that, at the time of its execution, there was not, between himself and Nixon, any contract, agreement, understanding, or negotiation for a sale; that Nixon had furnished no account of his agency; and praying for an account and general relief. The parties all answered; and in April, 1841, the Circuit Court, after a hearing, dismissed the bill with costs. The complainant appealed to this court.

      Wood, for the appellant.

      Sergeant and Williams, for the appellees.

      Wood made the following points:
    I. The deed of the 28th-May, 1822, explained by the letter of the defendant, Nixon, to the plaintiff, would constitute per se a mortgage of the- premises to secure the loan for $5000.
    ■ II. The said deed was designed by the parties thereto to secure fhe said loan, and was designed in substance to be a mortgage, assuming the shape of an absolute conveyance, only as a more effectual security for the loan.
    III. .If said Nixon designed otherwise, yet the complainant was led by his conduct, and by all the circumstances, to consider it a security for -the loan, and it ought to be treated as such.
    IV. A deed, though absolute on its face, may. be shown, by parol evidence, to be- designed as a security for a loan, or a mortgage, and more especially by written evidence furnished about the time the deed was given, and conducing to show the same.
    Y. If it should appear that said deed was designed by the parties to be an absolute conveyance in fee, it ought to be set aside, or modified and' converted into a'mere security for said loan. Because :
    1. ' The consideration therein-was grossly inadequate.
    2. There was no negotiation for a sale between the parties thereto, either personally or through authorized agents, and no estimate of value.
    3. The plaintiff, the grantor therein, was not in a condition to deal at arm’s length — being much embarrassed,-in want of money, and ignorant of the condition of- the property — the grantee being a capitalist, having the property under his management, and fully acquainted with its condition and value.
    . 4. The grantee'did not fulfil his duty as steward and agent in apprizing the grantor, at the time of said conveyance, of the condition and value of said property.
    5. Undue influence was exercised by the grantee upon the grantor, in pressing upon him a sale to himself in the condition in which said grantor was placed, and in the relative condition in which they stood at the time to- the property and to each other, as lender and borrower, steward and principal.
    VI. Lapse of time is no bar to the complainant’s equity under the last-mentioned point. Because:
    1. Such a bar is not set up and relied upon in pleading.
    2. The influence and control of the said grantee in said deed, over the grantor, and the grantor’s ignorance of the condition of the property, continued until a short time -before exhibiting the bill of complaint.
    3. The relationship, in which the parties stood -to each other,as steward-and principal, lender and borrower, will prevent the bar from applying in equity to the relief sought-for by .the bill.
    VII. Lapse of time is not a bar to the complainant’s equity, for a full account and relief in regard- to the' matters arising, as well before as subsequently to the said deed. All which he is fully entitled to. •
    VIII. - The agreement-, for a conveyance from, the complainant to Maria. Nixon, should be modified so as to embracé only oneéighth of the plaintiff’s moiety of the premises, and she should be decreed to be entitled only , to the net proceeds of said one-eighth part.
   Mr, Justice WAYNE

delivered the opinion of the court.

The . complainant, besides other relief prayed for, asks the aid of this court to decree a deed made by him to Henry Nixon, and which is absolute on the face of it, to be a security for money advanced upon loan, and that he may be at liberty to redeem the premises conveyed^ by paying to Nixon, or by allowing to him, on account of the transactions between -them, the moneys loaned to him by Nixon and such'as he may have advanced on account of the real estate purchased by the complainant and the late General Jonathan. Williams from the Bank of North America ; for the resale , and improvement of which, the defendants, Henry Nixon and Thomas Biddle, were the attorneys and agents of the purchasers.'

■ The surviving family, howéver, of General Williams, are in no way .interested in this suit. The controversy is between Thomas Morris and the representatives of Henry Nixon, whose death has occurred since the bill was filed.

The deed ffom complainant to Henry Nixon bears date 'the 28th May, 1822.

It recites., the purchase' made by Williams and Morris,* that certain portions of it had been sold and conveyed to other persons, and that parts had been let on ground-rents, so that the quantity remaining was about-seventy acres. That the sales and income of the property had nearly reimbursed the purchasers the first payment which they had made, of $20,000,* that there had been paid upon the purchase, out .of the income and proceeds of sale, from time to time, enough to-.reduce'the sum due by the purchasers, to about $29,000, which was a charge- upon the premises, to be borne- by the owners thereof, in proportion to théir respective interests. ■ It then recites, that at the time of the execution of the indenture to Williams and' Morris, Henry Nixon .. was, and had continued to be interested with Morris, to -the' extent of three-eighth parts of the moiety, so as to entitle him to thb benefits and subject, him'to the obligations of the purchase in that proportion. The consideration of the deed is then recited ' to be, one-half part, “ or .thereabouts,” of a debt due -by the complainant to Thomas Biddlé and John Wharton, which was . originally $4000, for the security of which, the complainant had, with the assent of Henry Nixon, mortgaged a part-of the moiety of the original purchase; then a debt, claimed by Nixon to be due to him by the complainant of $1625; $1000 of which it is said the complainant received on account of Nixon’s agency for the móiéty .of the purchase belonging to Williams, and $625 'being the proportion justly chargeable to complainant for Nixon’s agency for the other moiety; There was a further consideration amounting to $4600; being the. amount of two notes which had been discounted, at the Bank of North America, for the accom- . modation of the complainant,"with Nixon’s endorsement.

- The .circiimstanoes attending the execution of the deed are disclosed in the pleadings -and by other proofs in the cause.

The complainant resided in New York, and Nixon Ijved in Philadelphia. The former, being in great pecuniary distress, and fearing greater within a few. days, unless he cóuld make a loan, sent his brother, Henry Morris, to Philadelphia, to obtain from • their'brother-in-law, Henry Nixon, an advance of $5000, offering, as security, his intérest in the property bought by himself and General Williams. Nixon says, in his answer, that his feelings being, wrought upon by the representation, made by Henry Morris, of the urgent nature of his brother’s wants, and the destructive consequences to be apprehended if he could -not. meet a demand there was upon him, he concluded to provide the money; thát, however, béfore he finally agreed to do so, he told Henry Morris that he must consult his counsel upon the subject.

After consulting counsel, he informed Henry. Morris, that he had determined to deal" with the complainant upon no other terms .than an absolute sale and conveyance of all his interest, legal and'equitable, in the premises bought by him and Williams; and as there would be a full consideration without it, that the loan would create a new debt, for which he would take a separate,evidence or security; that .he, was advised by his. counsel to write out in-the deed at large the real consideration,, so that the truth of the'transaction might at all times appear.upon the 'papers, and to. take a bond .for the loan; so that if the' purchase should turn out well, he would not be-bound to enforce the bond, tíut, in case of misfortune to the complainant, ne would have evidence of his right as a creditor,'and, if he should think fit, might use it for the benefit o,f the complainant or his family. In connexion, however, with the foregoing statement, Nixon declares that in the course of) his conversation with his counsel, he was asked, whether the interest of the complainant in the property was worth the -encumbrances upon it, and what was already due by him to Nixon. To which he replied, as he truly believed^ that it would -not bring more; that nothing but the peculiarity of the circumstances would induce him to increase' his interest, or become a■ purchaser of it; and that he determined, as he had been ad vised.by his counsel, to. buy out the complainant’s.interest entirely and absolutely, without anv trust, direct or indirect, express or implied; nor any understanding whatever, that the com-, plainant of any other person was to have a claim or benefit therefrom, and thatshh' would deni with him on no other' terms.

■ Henry Morris arrived in Philadelphia on the 23d of May. His first conversation with Nixon concerning his errand was- on that day-; on the 24th, Nixon. consulted counsel, informed Henry Morris of the result, and on the same day, the same counsel made .a draft of the deed. On the same day, too, Nixon wrote to the Complainant the following letter: .

-.Dear Morris, — Henry arrived here, early yesterday morning. Having had a, conversation with him on the subject of a loan, I have only to say my best exertions will be to obtain this object, and . to enable mé to-do which, Henry will immediately call on you to advise the Only mode that he or I can suggest to achieve it.

' You, I am sure, will have confidence in me as to the mode proposed, which Henry will communicate; and be assured my sincere prayers will be, and;best exertions to promote this all-important poh.it. In haste, truly yours, H. Nixon.

• This letter was written after Nixon had consulted counsel; for he says in his' answer, after he had done so, he thereupon returned to Henry Morris, and informed.him of the determination he'had come to, of dealing upon no other terms than an absolute' conveyance, without any trust, ánd. taking a bond for the loan. And in the letter it is stated, that •“ Henry will immediately call on you to advise you of the only mode that hé or I can' suggest to achieve it.”-

The draft of the deed being made on the 24th May, it was afterwards engrossed by the witness Cash, and he was sent with it to New York. He arrived there on the 28th, the deed was signed by Morris .and his wife, Cash and Henry Morris being. witnessés. On the same day, Cash left New York'on his return to Philadelphia. On the following morning, the 29th May, as it appears by a. letter of that date from Nixon to the complainant, Henry Mofris arrived again in Philadelphia. He says in his answer, that he found Nixon resolved to do nothing in the business unless the convey anee, was absolute and bona fide, and he was therefore obliged to deliver the deed without any promises of trust. And Nixon declares that Henry Morris delivered to him the deed, and at the same time a bond, in the handwriting ' of the complainant, for $5000.

It is in proof, also, that when the deed was delivered, there were'unadjusted accounts- growing out of Nixon’s and Biddle’s-agency,for the propérty. That no..account, had been furnished to the complainant since 181-6, except an abstract of one Innes’s account of the excavation and sales of stone and gravel, sent-to him by the defendant, Henry J. Williams, in May, -1819.

The recital in the deed shows that the accounts were unascertained, for it. speaks of the $20,000 which was first paid' by Williams and Morris on their purchase as being nearly-reimbursed, and that there remained due on the purchase about $29,000.

Two years before the deed was executed, the complainant made an agreement with David Walker and Henry Morris, to convey to them iii. trust for his sister, Maria Nixon, a fourth part of hey moiety, upon the terms stated in the agreement; in pursuance, of his original intention when Williams and himself made the purchase..

It was urged in the argument, that the recitals in the deed re- • lating to the sum then due upon the purchase of Morris and Williams, that of Nixon’s interest in it, and the debt claimed by-Nixon to be due to him on account of his agency, Were incorrect. We shall not, however, consider these objections, dr those which were made against the validity of the deed on account of inadequacy of price, undue'influence, and surprise.

. Our object is to dispose of this case for the present, by assigning to the deed its true character in equity, under all the circumstances .attending its execution.

The charge against Nixon is, substantially, a fraudulent attempt to convert that into an absolute sale which was originally meant, by himself and the complainant, to be a security for a loan. It is in this, view of the case that the evidence is admitted to ascertain the truth of the transaction, thorgh the .deed be absolute on its face. The transaction was begun by Morris, with the request of a loan from Nixon, for which he offered a security upon the property, for the management of which, Nixon was his agent. It ended by Morris giving to Nixon a deed for the property, absolute on its face, and also a bond for a loan of $5000. Unless, then, some proof has been given to show that they truly bargained upon another footing, and that the loan did not form the chief inducement for the execution of the deed, and had not-been treated by both partios as a substantial part of the consideration, though not expressed in the recital, equity will in terpret it to be a security for money loaned.

. Is there any such proof in this case ? None that we can see, even if the defendants are allowed to use as evidence, as they contend they have a right to'do, the answer of their co-defendant, -Henry Morris. His account of the transaction is, that in an interview with Nixon.succeeding that when he made the application for a loan, and when Nixon declined lending, stating that his own embarrassments required all the funds he could command ; that Nixon said, it was very doubtful if the “ Hills property” would more .than pay. the claims upon it, and he could not consent to make, the loan, unless Morris .would convey the property to him; and he added, if the property should eventually turn out ivell, he would account to Thomas Morris for it, and share it. with him. And in the third interview Nixon told him that his counsel had . advised him upon no accpunt- to let the complainant have the money, unless an absolute and bona ftde conveyance of the: whole premises was made; that, upon receiving his answer, he returned to New York, and communicated the-determination of Nixon to his brother; and that, upon his return to Philadelphia, he was obliged to deliver the deed without any promises of trust, as he found Nixorr resolved to do nothing in the business,.unless the conveyance was absolute and bona fide. He says, however, he was satisfied in his own mind that, if the property turned out well, Nixon would give a handsome share of it to the complainant ; and that, in consequence of this .impression, heal ways wrote to him as if he was still interested in the successful result of the purchase. We are in no way, though, influenced by. the answer of Henry Morris in coming to our conclusion" as to the character, of the deed. .It has been introduced because it was strongly urged to be good evidence in behalf of the defendants, by their counsel; and with the view of showing, even though the facts stated had been proved, that they would not. take the case out of the principle, — that a deed absolute on the face of it, for property, offered to secute a loan in a case in which the parties originally met upon the footing of borrowing and lending, will be considered a deed in the nature of a mortgage, to secure a Iban, thotigh another consideration shall be in the recital of the deed than the loan, unless it. shall be proved that the parties afterwards bargained for the property independently of the loan; or if it shall appear that the chief inducement of the grantor in making the deed, was to procure the loan; or that the grantee, after the execution of the conveyance," treated the money which he had advanced as a substantial part of the consideration, and not as a loan. There is no proof in this ease thát the parties bargained without a reference to an advancé by Nixon of $5000, and it does appear that Morris was only induced to make the deed from the offer, of Nixon to make the advance of that sum, and that-Nixon treated it substantially as a part of the consideration to be given for the property, as he took a bond from Morris for the "amount, and says it was only to be contingently enforced, for the benefit of Morris ór his 'family, in the event of Morris falling into misfortune.

Courts of equity will not permit so uncertain a benefit as is here expressed, to weigh at all in'their consideration of cases like this; for, if they.did, it might become a contrivance to give-plausible colouring to an originally meditated-fraud, or to one induced by the temptation of subsequent, gain.

But besides the transaction itself, as it appears in the pleadings, there were relations of interest and of agency, between Thomas Morris and Henry Nixon, in respect, to the property; and such as grew out of the embarrassments of the former, and ■also .out of his particular condition to the recitals of consideration in the deed, which combine to raise a violent presumption, of a secret trust, and that the deed was meant to secure Nixon’s advances, loans, and endorsements for Morris.

Nixon claimed an interest in the property, besides the one-fourth of the moiety which Morris had agreed to convey to Walker and Henry Morris, in trust for Mrs. Nixon; For the former, • Nixon had not such satisfactory evidence as he could rely upon. This appears from his correspondence. Morris was much embarrassed ; no onb knew his pecuniary difficulties better than Nixon did. He remembered, too, that Morris, without consulting him, had offered to -mortgage the property to the United- States, He feared, from the.' disclosures made by Henry Morris of the pressing necessity of-his brother, that he might mortgage the property to raise the sum he then stood in need of, to some other person if Nixon did not advance it; so that, at some other time, urged by want of money or the demands of creditors, he might • be induced to convey to others an interest in the concern. That new parties might interfere with, the management of it, to the injury of all who were -originally interested ; that the bank, by any change in the ownership, and the course which' might be 'pursued in respect to the property, might not. continue to be so indulgent as it had been, in' postponing the payment of the purchase-money still due. Besides, sales of this property to individuals and purchases from the city were then anticipated! the latter a slow, bút sure- speculation; almost at the price of the owners, from the contiguity of public works, which could not be abandoned; nor could they be carried on without more of the property than the city had already bought. Add, the embarrassed condition of Morris; the connexion and close intimacy between the parties; their excited expectations, extended by exaggerated representations to the females of the- family, that all concerned would realize great pecuniary advantages from the property; the certain interest, also, of Mrs. Nixon in it, and the.certainty, that, by keeping it under their own control, it would be managed in their own way.; all these considerations were cogent inducements with Nixon to get a legal title from Morris, and the moment when Henry Morris presented himself to solicit a loan for his brother was the occasion upon which it could certainly be obtained.

But further, Morris’s, condition, in respect to the consideration recited in the deed, was not such as to induce him to wish to part with the property. Nor does Nixon’s assumption of the. particular debts of Morris, recited in it, bear the aspect of a genuine purchase. It was not a present payment of any thing; and, if genuine, was the purchase of Morris’s speculation, by an advance of @5000, which, according to the face of the transaction, was to be repaid. And may we not say, when‘in the same transaction we have it admitted that one of the documents was not meant by the parties to be what, it purports, that another of '.them by this fact is subjected to suspicion ?

But we have said, though Morris was embarrassed, that he wás not pressed by any of the particulars recited in the deed as a consideration,.

The purchase-money remaining due to the bank on the property, the .bank had permitted to remain unpaid, finding no doubt its advantage in the interest. Both principal and interest were ultimately .paid, not by Nixon', but by sales of the property.

The debt due to Biddle and Wharton was secured by a mortgage upon a part of the property,-given by Morris with Nixon’s consent. . The notes discounted at the bank for the aceommoda.tion" of Morris with Nixon’s endorsement, had been renewed, arid were running as an accommodation, to be renewed again and again, as they were.in fact, without any change of names to the paper, after the deed was.executed. Nixon could not press for the commissions claimed as agent of the property, of did not intend to do so; for we find him writing to Morris on the 21st May, two days before Henry Morris arrived in Philadelphia on his errand for-the loan, and seven before the deed was executed, to make himself easy as to commissions, as it had not been his' intention to ask for them; or acknowledging he had no right to do so, until the final closing of the accounts, agreeably to the' first agreement when the Hills were bought.”

Such was.the situation of Morris, in respect.to the debts named-in the deed as the consideration for which an absolute title was to pass. He was an embarrassed man, and' hard pressed at that moment for $5000, and though destructive consequences were to assail, him if-he could not get it, is it likely that Nixon then could have been insensible to the ties which had united them, and could have made his distress the means of coercing from him- an absolute conveyance, without a secret trust of all that he had left, upon which he could rest a hope to raise himself a little above his ruined fortune? We cannot think so. If we did, it would be our duty to give another aspect to this transaction, from which the defendants would derive no benefit.

If a doubt remained upon our minds in respect to the character which should be given to the deed, the letter from Nixon to Morris, of the 24th May, would remove.it.

It may be considered; either as having been intended by the writer to put Morris at ease in respect to the conveyance and bond which were required, or as a letter calculated to mislead Morris in- respect to the use which Nixon would make of the conveyance. The letter might be, either the artifice of the writer to accomplish an unjust intent, or the language of the letter and manner of using-it might innocently mislead. In either event, if the letter is such'as is. likely to mislead, and from which it can be fáirly implied, that it induced a confidence that the receiver of it would have any benefit from or interest in the property, he was required to convey contrary to the terms of the deed, it would be fatal to it as an absolute deed.

Nixon and Morris were brothers-in-law. There seems to have been between them fraternal intimacy and confidence. It appears to have been unlimited in all the relations of social life and of business-. The confidence of Morris was unwavering, and dependent, from the superior; business ability of Nixon. Nor can it be denied that it was met by him in Morris’s difficulties by acts of timely assistance and .kindness. Nixon had been his agent in the management of the property from 1812. He claimed an equitable interest in it, besides the proportion of Mrs. Ñixon.. There were unascertained accounts of Nixon’s agency when the deed was made. Morris had received no account since 1816, except an abstract of sales of some stone and gravel, furnished to him by one of the defendants in 1819. He did not know par-, ticularly what>had been the proceeds of the sales and income of the property, or how they had bden applied. No examination.or. estimate of the value of-the residue of the property, as it' then stood, was made. No communication had been given by the. agent of the effect of public and private improvements-upon it, in respeet. to its then, or .prospective value. Nothing was said between Morris and Nixon as to the price that the taker was t,o give. In this situation, being greatly embarrassed, Morris asked a loan from, his agent. The agent says, '■ I am\ aware of your embarrassment. There are certain claims upon ■ this property which you will have to pay, and other respons bilities of yours for which-I am also answerable. I will provide the money of which you stand in need, will take a bond from, you for it, which I am not to enforce against you, unless you should fall into misfortune, and then only, should I see fit to do so, for the benefit of yourself or your family, if you will give me an absolute conveyance of the property/ The conveyance is given, the bond is taken^ and now it is Said the • transaction was intended to be an absolüte sale^ghd not a. security for a loam We do not think that the connexion between the-bond, and the deed can.be dismembered. ' Nor can we- reconcile it with what we believe would have been the ordinary conduct of meii in like circumstances, to suppose, that an agent so situated to a principal and friend in distress, could have intended, by asking for an absolute conveyance, to Use it for any other purpose than to secure himself in the sum he was about- to advance and his other responsibilities for his principal. Morris was al ruined man. NixOn knew it, and treated with him in this instance as if the crisis had come when creditors would no longer be satisfied with postponed promises. It was natural for Nixon, nor was it wrong in;the then state of real property, and .as he was about to advance to his brother-in-law $5000, to take the most efficient way to secure: himself from loss, and to put it out of the power of Morris to interfere with his security, by subsequently giving to others an interest in the property. We find upon a preceding occasion when Morris was pressed,'and had offered to mortgage this property, that Nixon suggested that it should be put into his hands, with the trust .expressed of what was intended. His object then was, that the original intention of the purchase might be carried out for the benefit of all.concerned. Nixon’s inducement to do so was greater than it had been at that time. Mrs. Nixon’s interest of one-fourth in the moiety of the property had been in in the mean time secured to her by her brother.

We will now turn to the letter of the 24th May from .Nixon to Morris, to confirm the view we have of this transaction. It begins,

“ Dear Morris, — Henry arrived here early yesterday morning. Having had a conversation with him on the subject of.á loan, I have only to say, my best exertions will be to obtain this object, and to enable me. to do which, Henry will immediately call upon you to adyise you of the.only mode that he or I can suggest to -achieve it.”

It -must be remembered that the letter was written on the day that Nixon-consulted his counsel, after the consultation had been had. The answer of Nixon shows this. He says, that he had concluded to provide the money, but that'he must con.salt counsel before he finally agreed. And then that-he thereupon returned to Henry Morris, and informed him of the determination he had conde to of dealing upon no other terms than an absolute sale and conveyance, and taking a bond for the-loan. When, then, Nixon says in the letter, “Henry will immediately call upon you to advise you of the. only mode that he or I can suggest to achieve it,” it is manifest that the mode hád been a subject of conversation between them; and as he mentions in the letter, the loan in connexion with the mode, which Henry was to communicate to his brother, this contemporary letter must be called on to ascertain what Nixon intended by the mode; and more especially so, as it seems the contents of the letter had not been "told to Henry Morris;

The mode wás an absolute conveyance of the property and a bond. But there is, m connection with the mode, the declaration of an intention, coupled with an ability, in consequence of the mode, to achieve a loan. It would' then be a very strained inference, from the words of the letter, to say, that Nixon did not meafa that Morris, to whom he was writing, should understand that he meant a loan, to be secured by a conveyance of the property, as well as by a bond; or that he meant, that the loan which he could achieve by the mode was to depend upon Morris making to him an absolute sale of the property for the considerations expressed in the deed. If such had been his meaning, it could have been plainly said. But we think there* can be no doubt concerning what the writer of this letter meant, or the construction which, in a court of equity, should be put upon it, when we find him saying: You, I am surq, will have confidence in me as to the mode proposed, which Henry will communicate; and be assured my sincere prayers will be and best exertions to promote this all-important point.” This language indicates a sincere desire in Nixon at that time to relieve the distress of his brother-in-law. That'he intended to solicit his confidence as to the mode proposed, to secure himself from loss, without depriving Morris of a participation in the prospective advan-. tages which they had mutually indulged for ten years in respect, to the property, and which, it cannot be denied, had in a great degree been excited by the representations of Nixon. In Morris’s situation it was a great point gained for the benefit of all concerned in the property, that the legal control of it should be taken from-him and vested in Nixon.

This letter we think a part of the entire transaction, and stamps its character in a court of equity. It could only have been intended to put Morris at ease in respect to .the absolute conveyance which Nixon required ; or it was designed mislead and deceive Morris, by expressions of sympathy which were not felt, and a solicitation of confidence not deserved. If the latter, - we should feel bound to pronounce the transaction a meditated, fraud, successfully accomplished. We adopt the first as most probable, and in that view of the case decree the conveyance of the 24th May, 1822, to be a deed, with , a secret trust, for the securitymf moneys loaned-and.advanced by Nixon to the grantor. This conclusion makes it unnecessary for us to consider the effect of time upon the rights in controversy.

We order the decree of the Circuit' Court to be reversed, and ' that the cause be remanded, with instructions to the court to have an account taken, and that the complainant be állowed his-proportion at the rate of an interest of five-eighths in a moiety of the original purchase of Morris and Williams, &nd that the court shall take such other proceedings in the cause as equity may require.

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 of Pennsylvania, and was argued by counsel. On consideration whereof, it is now here considered, ordered, and decreed by this court, that the decree of the said Circuit Court in this cause be and the same is hereby reversed, with costs, and that this cause be and the same is hereby remanded to the said Circuit Court, with instructions to that court to have an account taken; and that the complainant be allowed his proportion at the rate of an interest of five-eighths in a moiety of the original purchase of' Morris-and Williams, and that the said court shall take such other proceedings in the cause as equity may require.