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Crocket v. Lee. 7 W.

The bill filed by Lee is equally defective in this respect. After setting out his own title, he states that of his adversary; and after reciting the certificate granted to Cameron, subjoins that Crocket claimed the land“ in dispute by virtue of the said improvement, and having caused the same to be surveyed contrary to location, and to law, and was to interfere with” his (Lee's) claims, had obtained a prior patent, &c.

This allegation, like that in the answer, draws into question only the survey. It does not controvert the location or entry.

The counsel for the appellant says it would be monstrous if, after the parties have gone to trial on the validity of the entry, and have directed all their * testimony in the circuit court [ * 527] to that point, their rights should be made to depend in the appellate court on a mere defect in the pleadings, which had entirely escaped their observation in the court where it might have been amended, and the non-existence of which would not have varied the case.

The hardships of a particular case would not justify this tribunal in prostrating the fundamental rules of a court of chancery; rules which have been established for ages, on the soundest and clearest principles of general utility. If the pleadings in the cause were to give no notice to the parties or to the court of the material facts on which the right asserted was to depend, no notice of the points to which the testimony was to be directed, and to which it was to be limited; if a new case might be made out in proof, differing from that stated in the pleadings, all will perceive the confusion and uncertainty which would attend legal proceedings, and the injustice which must frequently take place. The rule that the decree must conform to the allegations, as well as to the proofs of the parties, is not only one which justice requires, but one which necessity imposes on courts. We cannot dispense with it in this case. But although the entry is not put in issue, the survey is; and if that be made on ground not covered by any part of the entry, the decrees would, on that account, be affirmed.

It must at once occur that in a case where the entry is in reality attended with much uncertainty, there will be some difficulty in showing how much a * survey varies from it, ( * 528 ) unless the survey be made on land entirely different from the entry. That does not appear to be the fact in the present case. Cameron's entry calls for the head right-hand fork of Welles's Branch, for the head of a small run that empties into the north fork, and to lie about one and a half miles above the war path that crosses the north fork. The survey is upon the head-waters of these VOL. v.

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Macker's Heirs v. Thomas. 7 W.

streams, and lies a small distance above the war path that crosses the north fork. There is reason to believe that, were the location to be sustained, the survey would be found to conform to it in part, though not perhaps entirely. This court has no means of ascertaining how far they agree, and how far they disagree, and the decrees of the circuit court must be reversed.

But as this reversal is not on the merits of the case, and the court is rather inclined to the opinion that the decrees on the merits are right, no final decree will be directed in either cause, but each will be remanded to the circuit court, with directions to permit the par. ties to amend their pleadings.

3 P. 43 ; 19 H. 126.

Macker's HEIRS v. THOMAS.

7 W. 530. The 31st section of the Judiciary Act, (1 Stats. at Large, 90,) does not enable the demande ant in a real action to prosecute it against the heir of the tenant who dies before judgment, and the suit abates. If judgment is rendered against the heir, he may reverse it by a writ of error, though he did not assign for error in the court below, that the suit was abated. Washington, J., delivered the opinion of the court.

This is a writ of error to a judgment of the circuit court for the district of Kentucky. The defendant brought a writ of right in that court against John Macker, the ancestor of the plaintiff in error, for an undivided moiety in a certain tract of land. After a summons served upon Macker, he died, without having appeared to the suit, and a rule was obtained by the plaintiff below, upon the heirs of the defendant, to show cause why the suit should not be revived against them. This rule being served, and no cause shown to the contrary, the suit, by order of the court, was revived against the heirs, the plaintiffs in error, and at a subsequent term of the court, judgment by default was entered against them, from which judgment this writ of error is prosecuted. The main question for the decision of this court is, whether the

circuit court erred in directing the suit to be revived against 1 * 531the heirs of Macker, and rendering * judgment against

them? The court consider this point to have been decided in the case of Green v. Watkins, 6 W. 260. The question there was, whether in real actions, the death of either party, after a writ of error sued out, abates the suit; and it was decided that it did not. But in examining the general principles of law upon the subject of abatement by the death of parties, it was distinctly laid down that

Macker's Heirs v. Thomas. 7 W.

in real and personal actions, the death of either party, before judgment, did at common law abate the suit; and that the 31st section of the Judiciary Act of 1789, ch. 20, was necessary to enable the action to be prosecuted by or against the representatives of the deceased party, when the cause of action survived. But this section is clearly confined to personal actions, as the power to prosecute or defend is given to the executor or administrator of the deceased party, and not to the heir or devisee.

It is objected by the counsel for the defendant in error, that the defendants in the court below could not sue out and prosecute a writ of error, because they failed to appear and plead to the suit in that court. No case was referred to in support of this objection, and it is confidently believed that none can be found to countenance it. Although the plaintiffs in error did not plead to the suit, they were nevertheless made parties to it by the order of the court, and, as such, judgment was rendered against them, and that, too, upon a summons and count against the ancestor. Being, then, parties to the suit, and affected by the judgment against them, they were * clearly entitled to sue out a writ of error; and [ * 532 ] although the judgment was entered by default for want of a plea, they may be injured not less by such judgment, than if it had been entered upon a verdict. If judgment in an action of trespass be rendered against one defendant by default, and in favor of the other defendant upon a plea, the former may alone bring a writ of error. Lev. 220; Hob. 70. If it should be said that the appearance of the plaintiffs in error in the circuit court, by an attorney of that court, cured the error committed in reviving the suit against them, the answer is, that by the death of the ancestor, a new cause of action arose against the heirs, and the plea is not in the same condition as it was in the lifetime of the party. Green v. Watkins, 6 W. 262. The suit having once abated by the death of the defendant, it was out of court, and a new summons and count against the heir was necessary. Besides, the appearance was not voluntary, but was the consequence of an erroneous order of the court, enabling the plaintiff below to prosecute the suit against the heirs.

It is objected, in the last place, that if the plaintiffs have a right to prosecute this writ of error, they nevertheless cannot assign for error the order of the court reviving the suit, because they failed in that court to appear and except to the opinion of the court in relation to the order. But an exception to the opinion of the court is only necessary when the alleged error could not otherwise appear upon the record. The error in this case was in ordering the suit to be revived and prosecuted against the heirs [ * 533 ] Blight’s Lessee v. Rochester. 7 W. of the original defendant, and proceeding to render judgment against them upon a summons and count against the original defendant, all which sufficiently appears upon the face of this record.

The ColumbiaN INSURANCE COMPANY v. WHEELRIGHT et al

7 W. 534. A writ of error will lie from this court upon the judgments of the circuit courts, awarding a

peremptory mandamus, if the matter in controversy is of sufficient value. Error to the circuit court for the District of Columbia.

Jones, for the plaintiffs in error.
Swann, for the defendants in error.

In this case, the Court determined that a writ of error would lie under the act relating to the District of Columbia, which is similar in its provisions to the Judiciary Act, s. 22, (1 Stats. at Large, 84,) to reverse the judgment of the circuit court, awarding a peremptory mandamus, to admit the defendants in error to the offices of directors in the Columbian Insurance Company, and directed Mr. Jones to produce affidavits as to the value of the matter in controversy. But it not appearing that it amounted to one thousand dollars, the sum required to give this court appellate jurisdiction from the final judgments or decrees of the circuit court for the District of Columbia, the court afterwards directed the writ of error to be quashed. The court was of opinion that there was

nothing in controversy but the value of the office, and that [*535 ] its value must be ascertained by the salary. ' * Although,

therefore, a writ of error might issue to a judgment awarding a peremptory mandamus to restore to office where the matter in controversy was sufficient to give jurisdiction to the court, it could not regularly issue in this case.

Writ of error quashed. 12 P. 524; 14 P. 540, 599.

Blight's LESSEE et al. v. ROCHESTER.

7 W. 535. British subjects born before the Revolution are incapable of inheriting or transmitting lands

in this country, save by force of some treaty. Both the treaty of peace with Great Britain of 1783, (8 Stats. at Large, 80,) and the treaty

of 1794, (8 Stats. at Large, 116,) provided only for titles then existing. Alienage being proved, the fact that the alien acquired real estate many years since, but did

Blight's Lessee v. Rochester. 7 W.

not occupy it, is not sufficient ground for presuming that he became a citizen of Virginia

by taking an oath of fidelity in a court of record. If A sell land to B, but do not convey it, and B sells and conveys it to C, the latter is not

estopped to deny A's title in an action by A's heirs to recover the land.

Error to the circuit court of the United States for the district of Kentucky

This was an ejectment in the court below, brought to recover the possession of lot No. 18, in the town of * Dan- [ *536 ] ville, in the State of Kentucky. It appeared, from the evidence in the cause, that the plaintiffs are the heirs of John Dunlap, who was a citizen of Pennsylvania, and claimed as the heir of his brother, James Dunlap, who died seised of the premises in question, in the autumn of 1794. James Dunlap was an alien, and a subject of the king of Great Britain, who came to the United States subsequent to the treaty of peace of 1783, and died before the sig. nature of the treaty of 1794. After his death, one Hunter, professing to have purchased of John Dunlap, entered into possession, and conveyed to several persons, parcels of the lot; and to the defendant, Rochester, one parcel, in 1795, who entered into possession thereof, and has occupied the same ever since; having acknowledged the title of said Dunlap as that under which he held.

Upon this evidence, the counsel for the plaintiffs moved the court to instruct the jury,

1. That if the jury find the defendant obtained possession under James G. Hunter, who obtained possession as the attorney of John Dunlap, or who claimed under an executory agreement with John Dunlap, and that said defendant has held, and occupied under John Dunlap's title, claiming from said Hunter, as the attorney of said Dunlap, or under an executory agreement, or has, since he was in possession, acknowledged the title of said Dunlap as that under which he held; that then the defendant is not permitted to impeach or controvert the title of said John Dunlap, by parol evidence that James Dunlap was an alien.

2. * That if the defendant, Rochester, acquired the posses. [ * 537 ) sion, and has continued to hold as above, the possession of the defendant was not such an adverse possession as would toll the right of entry of said John Dunlap, and the statute of limitations does not apply.

3. That if James Dunlap occupied the lot from the date of his deed till his death, and said James G. Hunter and the defendant have continued to hold it under the claim of John Dunlap, his brother, as heir to James ; that from these facts, connected with the evidence in the cause, and in the absence of any proof of an inquisition or office

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