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Hopkins v. Lee. 6 W. is, therefore, not confined, in England or in this country, to judgments of the same court, or to the decisions of courts of concurrent jurisdiction, but extends to matters litigated before competent tribunals in foreign countries. It applies to sentences of courts of admiralty, to ecclesiastical tribunals, and, in short, to every court which has proper cognizance of the subject-matter, so far as they profess to decide the particular matter in dispute. Under this rule, the decree in this case was proper evidence, if it decided, or professed to decide, the same question which was made on the trial at law. For to points which came only collaterally under consideration, or were only incidentally under cognizance, or could only be inferred by arguing from the decree, it is admitted that the rule does not apply. On a reference to the proceedings at law and in chancery, in the case now before us, the court is satisfied that the question which arose on the trial of the action of covenant, was precisely the same, if not exclusively so, (although that was not necessary,) as the one which had already been directly decided by the court of chancery. The bill, which

was filed by the present plaintiff in error, states that on the 1* 115 | 23d of January, *1807, which is the date of the agreement on

which the action at law is brought, Hopkins purchased of Lee the estate of Hill and Dale, for which he was to pay $18,000; that is, $10,000 in military lands, at settled prices, and the remainder in bonds, payable in April, 1809. That Lee, in pursuance of this agreement, selected certain military lands in the bill mentioned. That at the time of the purchase of Hill and Dale, it was mortgaged to Rawleigh Colston for a large sum, which Lee had promised to discharge, but that he had failed so to do, in consequence of which Hopkins had paid the mortgage himself. The complainant then claims a large sum from Lee, for having removed this incumbrance, and prays that the defendant may be decreed to pay it, or in default thereof that the complainant may be authorized, by a decree of the court, to sell the military lands, which he considered as a pledge in his hands, and out of the proceeds to pay himself. Not a single demand is stated in the bill, except the one arising out of the complainant's extinguishment of the incumbrance, which Lee had taken upon himself to remove.

On Lee's answer coming in, denying several of the allegations of the bill, the cause is referred to a master commissioner, who, after a long investigation, in the presence of both parties, and the examination of many witnesses, makes a report by which Hopkins is made a debtor of Lee in the sum of $427.77. On inspection of this report, it will be seen that the chief if not the only controversy between the parties was, whether Hill and Dale had been relieved Hopkins v. Lee. 6 W. * from its incumbrance to Colston, by funds furnished by (* 116 1 Lee to Hopkins for that purpose, and that, unless that fact had been found affirmatively, a report could not have been made in Lee's favor. The court, after referring to this report, and stating that it had not been excepted to, proceeds to decree the payment of this balance by the complainant to the defendant. From this summary review of the proceedings in chancery, the conclusion seems inevitable that the chief if not sole matter in litigation in that suit, was whether Hill and Dale had been freed of the incumbrance to Colston, by Lee or by Hopkins, and that the report and subsequent decree proceeded on the ground and established the fact that Lee had discharged it, which was also the only point put in issue by the first plea of the defendant, in the action of covenant. No rule of evidence, therefore, is violated in saying that this decree was properly admitted by the circuit court. But if the decree were admissible, it is supposed that the report of the master ought not to have been submitted to the jury. The court entertains a different opinion. No reason has been assigned why a decision by a proper and sworn officer of a court of chancery, in the presence and hearing of both parties, according to the acknowledged practice and usage of the court on the very matters in controversy, not excepted to by either party and confirmed by the court, should not be as satisfactory evidence of any fact found by it, as the verdict of a jury on which a judgment is afterwards rendered. The advantage which a verdict may be supposed to possess over a report, from its * being [ * 117 ] the decision of twelve instead of the opinion of a single man, is perhaps more than counterbalanced by the time which is allowed to a master for deliberation and a more thorough investigation of the matters in controversy. But a better and more satisfactory answer is, that it is the usual, known, and approved practice of the court to whose jurisdiction the parties had submitted themselves. But if this document be withheld from a jury, how are they or the court to arrive at the grounds of the decree or a knowledge of the points or matters which have been decided in the cause? Without it, the decree may be intelligible ; but the grounds on which it proceeds, or the facts which it means to decide, may be liable to much uncertainty and conjecture. The report, therefore, as well as the decree was proper evidence, not only of the fact that such report and decree had been made, but of the matter which they professed directly to decide. We are not now called upon to say whether, in those respects, they were conclusive, as they do not appear to have been offered with that view; but without meaning to deny to them such effect, we only say, which is all that the present case requires,

that they werblish the face fate of Hil

Thatcher v. Powell. 6 W. that they were competent and proper, in the absence of other testimony, to establish the fact of the removal of the incumbrance by the defendant Lee, from the estate of Hill and Dale.

In the assessment of damages, the counsel for the plaintiff in error prayed the court to instruct the jury that they should take the price of the land, as agreed upon by the parties in the articles of agree

ment upon which the suit was brought, for their govern[*118 ) ment. * But the court refused to give this instruction, and

directed the jury to take the price of the lands, at the time they ought to have been conveyed, as the measure of damages. To this instruction the plaintiff in error excepted. The rule is settled in this court, that in an action by the vendee for a breach of contract, on the part of the vendor, for not delivering the article, the measure of damages is its price at the time of the breach. The price being settled by the contract, which is generally the case, makes no difference, nor ought it to make any; otherwise the vendor, if the article have risen in value, would always have it in his power to discharge himself from his contract, and put the enhanced value in his own pocket. Nor can it make any difference in principle whether the contract be for the sale of real or personal property, if the lands, as is the case here, have not been improved or built on. In both cases the vendee is entitled to have the thing agreed for at the contract price, and to sell it himself at its increased value. If it be withheld, the vendor ought to make good to him the difference. This is not an action for eviction, nor is the court now prescribing the proper rule of damages in such a case.

Judgment affirmed. 9 P. 483 ; 12 P. 488; 1 H. 134; 3 H. 413; 7 H. 198 ; 16 H. 65.

Thatcher et al. v. Powell et al., Lessee.

6 W. 119. The execution by a public officer of a power to sell lands for the non-payment of taxes,

must be in strict pursuance of the law under which it is made, or no title is conveyed. It is essential to the validity of the sale of lands for taxes, under the laws of Tennessee, that it should appear on the record of the court, by which the order of sale is made, that the sheriff had returned that there were no goods and chattels of the delinquent proprietor

out of which the taxes could be made. The publications which are required by law to be made, subsequent to the sheriff's return,

and previous to the order of sale, are indispensable preliminaries to a valid order of sale. In summary proceedings, where a court exercises an extraordinary power under a special

statute, which prescribes its course, that course ought to be strictly pursued, and the facts which give jurisdiction, ought to appear on the face of the record. Otherwise, the pro

ceedings are not merely voidable, but absolutely void, as being coram non judice. In construing local statutes respecting real property, this court is governed by the decisions

of the state tribunals.

Thatcher v. Powell. 6 W. Error to the circuit court of the United States for West Tennessee.

This cause was argued at the last term, and at the present term the opinion of the court was delivered by MARSHALL, C. J.

This was an action of ejectment instituted by the defendants in error against the plaintiffs, to recover 640 acres of land in Montgomery county. Upon the trial in the court below, the lessors of the plaintiffs, in support of their title, read in evidence a grant * from the State of North Carolina to Stokeley Don- [ * 120 ] aldson, dated the 12th of January, 1797; also a deed for the same land from the said Donaldson to John Love, dated the 13th of January, 1797, and registered in Montgomery county, on the 25th of July, 1815, upon a probate made in the county court of Grange county, at May term of the said court, 1814.

The defendants in that court, to support their title, read in evidence a transcript of a record from the county court of Montgomery county, at their July session of 1801, as follows, namely:

“ Haydon Wells, who was appointed by the court of January term, 1801, to receive the list of taxable property in Captain Boyd's company, reports to court a list of taxable property in the county of Montgomery, not listed for the year 1799, nor taxes paid thereon, to wit: among others, Stokeley Donaldson, 2,560 acres on Yellow Creek waters.

HAYDON WELLS, T. P.”

“ Ordered, that the clerk make out a certificate of lands and tenements reported by Haydon Wells, Esq., for the year 1799, that are liable to the payment of taxes, agreeably to the 14th section of an act to ascertain what property in this State shall be deemed taxable, and the mode of collecting, accounting for, and paying public taxes.' And now, to wit, at January term, 1802, the following proceedings were had thereon, to wit, on motion, it is ordered, adjudged, and decreed, that the tracts of land entered in the names of the following persons, be subject * to the payment of taxes due [*121 ] thereon, agreeably to report of Haydon Wells, Esq., receiver of taxable property, as delinquent for the year 1799, agreeably to law, and that execution issue accordingly;" (among others,) Stokeley Donaldson, $11.90. Upon which order or judgment, an execution, bearing date the fourth Monday in March, 1802, was issued to the sheriff of Montgomery county, commanding him that of the lands of Stokely Donaldson, reported to be in arrears for taxes for the year 1799, he cause to be made the sum of $11.90, as also the sum of

Thatcher v. Powell. 6 W. $1.40, and charges, &c. Upon this execution the sheriff made the following return :

Levied on 2133, and advertised agreeably to the old; not sold, because the new act which requires it to be advertised in the Gazette did not come forward till the day of sale.

6 John SAUNDERS, Sheriff, M. C.”

On the 1st of May, 1802, an alias execution issued, bearing date the fourth Monday in April, 1802, in the words of the former, on which the sheriff made the following return: “ The within land sold agreeably to law, on the 23d of July, 1802, at seven mills per acre.” They also read in evidence a deed from John Cocke, sheriff of Montgomery county, to Samuel Vance, one of the defendants, dated the 14th of April, 1808, reciting, that whereas John Saunders, late sheriff of Montgomery county, did, on the 23d of July, 1802, by virtue of an

execution or order of sale, to him directed, from the court [*122] of * Montgomery county, expose to sale 2,560 acres of land

granted to Stokeley Donaldson, or so much thereof as would be sufficient to satisfy the taxes due thereon for the year 1799, agreeably to an act of assembly in such cases made and provided. And whereas Morgan Brown became the purchaser of 2,229% acres of the said land, at seven mills per acre, he being the highest and best bidder, the taxes and costs due thereon being $17.10; and the said Morgan Brown having authorized a deed to be made therefor to Samuel Vance. Now, the said John Cocke, in consideration of the said sum being paid to the said John Saunders, sheriff, &c., doth sell and convey the said 2,229, acres of land, &c. The said deed then described one tract of 640 acres, the tract in question ; also, two other tracts of 640 acres each; also, one other part of a survey of land of 309 acres granted to Stokeley Donaldson.

The lessors of the plaintiffs then introduced grants from the State of North Carolina to Stokeley Donaldson, all dated about the same time, for two different tracts of land of 640 acres each, a part of which are those described in the said sheriff's deed, all lying upon the waters of Yellow Creek, and proved that the same lay in one connection of surveys adjoining each other, but those described in the sheriff's deed were of much the greatest value.

Upon this evidence the court instructed the jury, that it was for them to determine whether the said lands in the said sheriff's deed

mentioned, were the same lands which the former sheriff, [*123 ] Saunders, had * sold or not. If not the same land, then the

said sheriff's deed was not good in law. And the court

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