Wilkes v. Dinsman. 7 H.

And so may a court and jury decide wrongly, and then the party will also be without remedy." But there is no liability in such case without malice alleged and proved. Wheeler v. Patterson, 1 N. Hamp. 90.

Finally, in this court, like views were expressed, through Justice

Story, in Martin v. Mott, 12 Wheat. 31: "Whenever a [ * 132 ] statute gives a discretionary power to any person, to be *exercised by him upon his own opinion of certain facts, it is a sound rule of construction that the statutes constitute him the sole and exclusive judge of the existence of these facts." "Every public officer is presumed to act in obedience to his duty, until the contrary is shown."

Under these established principles and precedents, it will be seen that the rulings below must be held erroneous whenever the court departed from them, and required the defendant, as on several occasions, to go forward, and in the first instance to prove details rebutting any error or excess.

As, for illustration, to prove in the outset facts showing a necessity to detain the plaintiff, before the latter had offered any evidence it was done from malice or without cause; or to prove that the prison. on shore was safer and more suitable for the plaintiff's confinement than the vessels, under the peculiar circumstances then existing, until the plaintiff had first shown that no discretion existed in the defendant to place him there, or that he did it malâ fide, or for purposes of cruelty and oppression; or to prove that the punishment inflicted was not immoderate, and not unreasonable, when it is admitted to have been within the limits of his discretion, as confided to him by the articles for the government of the navy. On the contrary, as has been shown, all his acts within the limits of the discretion given to him are to be regarded as primâ facie right till the opposite party disprove this presumption.

The judgment below must therefore be reversed, and a venire de novo awarded, and the new trial be governed by the principles here decided.

12 H. 390.

Patton v. Taylor. 7 H.

HUGH M. PATTON, Administrator, and HUGH M. PATTON and others, Heirs of ROBERT PATTON, deceased, Appellants, v. JAMES TAYLOR, Administrator, and JAMES TAYLOR, JOHN W. TIBBATTS and ANN W., his Wife, GEORGE T. WILLIAMSON and JANE M., his Wife, and HORATIO T. HARRIS and KETURAH L., his Wife, Heirs of JAMES TAYLOR, deceased.

7 H. 133.

A purchaser, in possession of land, cannot be relieved by a court of equity from payment of the purchase-money, for defect of vendor's title, without fraud charged in the bill and proved.

A naked trustee, having no interest in the trust-fund, is a competent witness, in a suit concerning that fund.

THE case is stated in the opinion of the court.

A. H. Lawrence, and C. S. Morehead, (with whom was Badger,) for the appellants.

Loughborough, and Underwood, (with whom was Ewing,) contrà.

NELSON, J., delivered the opinion of the court. [ * 157 ] This is an appeal from the circuit court of the United States held in and for the district of Kentucky, by the district judge. Taylor, the complainant below, filed a bill against Robert Patton, the intestate and ancestor of the defendants, praying relief against two judgments recovered against him at law, upon securities given for the purchase-money of 2,000 acres of land situate in the State of Kentucky, and sold and conveyed by the latter to the former. The bill was filed at the November term, in the year 1820; and the suit has been pending ever since. The sale and conveyance of the land took place September 3, 1818, the consideration being $5,000, payable one half on the 30th of January, 1819, and the other in one year thereafter. The deed contained covenants for further assurance, and of warranty, and the grantee entered into possession of the premises, and has held it ever since.

for

The only allegations in the bill upon which the complainant relied staying the collection of the judgments, and setting aside the sale conveyance, are, that the said Patton had no title to the land at the time of the purchase, nor since; and that he had become insolvent, and possessed no personal responsibility.

and

The defendant admits, in his answer, that he had no legal title, and that it was at the time in the heirs of one Thomas Southcombe, but insists that he had purchased the land of Southcombe, had paid for it, and had been in the peaceable possession of the same, and

Patton v. Taylor. 7 H.

paid the taxes thereon, for more than twenty years, and until the time of the sale; and that the complainant well knew the nature and condition of the title at the time of the purchase, and the taking of the deed.

The answer also sets up an assignment of the securities taken for the purchase-money, from the defendant to Witherspoon and Muirhead, in payment of a decree in chancery which they held against

*

him; that it was made in the presence and with the knowl[158] edge and consent of the complainant, and that the suits were brought, and the judgments in question recovered, by

them and for their benefit.

On the death of Robert Patton, the complainant revived the suit against his heirs and personal representatives, on the 13th of November, 1829. The answer to this bill, which relies mainly upon the facts set forth in the previous answer of Patton, was put in and filed in July, 1844.

The cause was heard on the pleadings and proofs on the 13th of May, 1815, and thereupon it was adjudged and decreed by the court that the contract entered into between the complainant and Robert Patton, for the purchase and sale of the land, for the sum of $5,000, as set forth in the bill and admitted in the answer, be rescinded and annulled; that the judgments recovered at law for the purchasemoney be perpetually enjoined; and that the deed of the 3d of September, 1818, be cancelled and held for naught.

The decree then provides for the repayment, by the heirs of Patton, of such portions of the purchase-money as had been paid by Taylor, after deducting the rents and profits which he may have received from the premises, over and above expenditures for necessary repairs and improvements; and on such repayment, the possession is ordered to be delivered up to the heirs, and a reconveyance to be made by the complainant to them, with a covenant against his own acts affecting the title; and also providing that the heirs shall hold the lands in trust for the benefit of Witherspoon and Muirhead, the assignees and owners of the judgments at law.

The cause is then referred to the master, to take and state an account of the rents and profits, improvements, &c., upon the principles settled, and to report to the court.

There is some evidence in the case tending to prove that the defendant, Robert Patton, represented to the complainant during the negotiation between them for the sale and purchase of the lands in question, that he held at the time the legal title; and that the complainant had reason to believe that he would be invested with it by the conveyance of the 3d of September, 1818.

Patton v. Taylor. 7 H.

The circumstances, however, that Taylor was at the time, and for several years before had been, the general agent of Patton, in Kentucky, to take charge of his lands in that State, including the premises in question, to pay the taxes, and negotiate sales to purchasers, lead to the conclusion that he must himself have had some knowledge of the title, and that he was willing to risk it, on receiving a warranty deed from Patton, who was supposed to be a man of wealth. Where the truth of this matter lies, it is not mate

rial to inquire; for no such question is made on the plead- [* 159 ] ings, or was involved at the hearing. It is not surprising, therefore, that the proofs in respect to it, to be found on the record, are vague and unsatisfactory, as probably the attention of neither party was particularly drawn to it. Indeed, it could not consistently have been, as the charge of fraud or misrepresentation is not to be found in the bill as originally drawn, nor in the amended bill filed some two years and a half afterwards. Nor is it made in the bill of revivor, which was filed as late as November, 1829.

The relief prayed for is put, both in the original and amended bills, entirely upon the defect of legal title in Patton at the time of the conveyance, and in connection with this, his subsequent insolvency; and unless this ground alone is sufficient to sustain it, the decree of the court below cannot be upheld. And that it is not, we need only refer to the authorities on the subject. Bumpus v. Platner, 1 Johns. Ch. 213-218; Abbot v. Allen, 2 ibid. 519; Gouverneur v. Elmendorf, 5 ibid. 79; Simpson v. Hawkins, 1 Dana, 305, 308, 312; James v. McKernon, 6 Johns. 543.

These cases will show that a purchaser, in the undisturbed possession of the land, will not be relieved against the payment of the purchase money on the mere ground of defect of title, there being no fraud or misrepresentation, and that in such a case he must seek his remedy at law on the covenants in his deed. That, if there is no fraud, and no covenants to secure the title, he is without remedy; as

the

vendor, selling in good faith, is not responsible for the goodness of his title, beyond the extent of his covenants in the deed. And further, that relief will not be afforded, even on the ground of fraud, unless it be made a distinct allegation in the bill, so that it may be put in issue by the pleadings.

It follows that the court below erred, and that the decree should be reversed, and the bill dismissed.

There is another point in the case in respect to which we think the court also erred, and which we will for a moment notice, namely, the rejection of the deposition of Talbott offered in evidence by the defendants below. The deposition tended to prove that the notes.

Fourniquet v. Perkins. 7 H.

given for the purchase-money had been assigned and transferred by Patton to Witherspoon and Muirhead, his creditors, with the knowledge and assent of Taylor, in consideration of which the creditors agreed to postpone the payment of the demand against Patton. Talbott was rejected on the ground of interest, as it appeared upon the face of his own deposition: 1. As surety for Patton in the suit at law; and, 2. As assignee of the notes for the benefit of Witherspoon and Muirhead.

In answer to the first ground, it is sufficient to say that [ * 160 ] *judgments had been recovered by default in the suits at law in favor of Patton. And to the second, that, according to the deposition, Talbott had no interest whatever in the result of the suit. He held the notes as a naked trustee, the proceeds of which, when collected, were to be applied to the payment of the debt of Witherspoon and Muirhead, his clients. He had no charge upon the fund, by any agreement or understanding with Patton, or his clients, for costs or commissions, as attorney or otherwise, that would make him an interested witness. There was no foundation, therefore, for the exclusion of his evidence. But it is unnecessary to pursue this inquiry, as the ground already stated sufficiently disposes of the case.

Decree below reversed, and bill dismissed, with costs.

11 H. 297; 19 H. 126.

EDWARD P. FOURNIQUET and HARRIET JANE FOURNIQUET, his Wife, Appellants, v. JOHN PERKINS.

7 H. 160.

A petition having been presented to a probate court in Louisiana, and thence transferred by consent to a district court of the same State; Held, that, as the petition charged the defendant with maladministration of a succession, the district court had jurisdiction.

APPEAL from the circuit court of the United States for the district of Louisiana.

The case is stated in the opinion of the court.

Fendall and Henderson, for the appellants.

Coxe and Downs, (with whom was Mayer,) contrà.

[ * 167 ] DANIEL, J., delivered the opinion of the court.

Although the decree of the circuit court is accompanied by no opinion or argument setting out in extenso the grounds on which the bill of the appellants (the plaintiffs below) was dis