the proposition. See, Jewell v. Parr, 13 C. B., 916; Toomey v. L. & B. R. Co., 3 C. B. (N.S.), 146; Ryder v. Wombwell, 4 L. R., Exch.,33, and the decisions of this court have generally been to the same effect.

In the case of Parks v. Ross, 11 How., 362, this court held that the practice of granting an instruction like the present had superseded the ancient practice of demurrer to evidence, and that it answered the same purpose and should be tested by the same rules; and in that case it said the question for the consideration of the court was whether the evidence submitted was sufficient to authorize the jury in finding the contract set up by plaintiff. And in Schuchardt v. Allens, 1 Wall., 359 [68 U. S., XVII., 642], this case is referred to as establishing the doctrine that if the evidence be not sufficient to war rant a recovery, it is the duty of the court to instruct the jury accordingly.

In the case of Pawling v. U. S., 4 Cranch, 219, the court, by Marshal, Ch. J., said: "The general doctrine on a demurrer to evidence has been correctly stated at the bar. The party demurring admits the truth of the testimony to which he demurs, and also those conclusions of fact which a jury may fairly draw from that testimony. Forced and violent inferences he does not admit, but the testimony is to be taken most strongly against him; and such conclusions as a jury might justifiably draw, the court ought to draw." See, also, Bk. U. S. v. Smith, 11 Wheat., 171.

It is the duty of a court, in its relation to the jury, to protect parties from unjust verdicts arising from ignorance of the rules of law and of evidence, from impulse of passion or prejudice, or from any other violation of his lawful rights in the conduct of a trial. This is done by making plain to them the issues they are to try, by admitting only such evidence as is proper in these issues, and rejecting all else; by instructing them in the rules of law by which that evidence is to be examined and applied, and finally, when necessary, by setting aside a verdict which is unsupported by evidence or contrary to law. In the discharge of this duty it is the province of the court, either before or after the verdict, to decide whether the plaintiff has given evidence sufficient to support or justify a verdict in his favor. Not whether on all the evidence the preponderating weight is in his favor; that is the business of the jury; but conceding to all the evidence offered the greatest probative force which according to the law of evidence it is fairly entitled to, is it sufficient to justify a verdict? If it does not, then it is the duty of the court after a verdict to set it aside and grant a new trial. Must the court go through the idle ceremony in such a case of submitting to the jury the testimony on which plaintiff relies, when it is clear to the judicial mind that if the jury should find a verdict in favor of plaintiff that verdict would be set aside and a new trial had? Such a proposition is absurd, and accordingly we hold the true principle to be, that if the court is satisfied that, conceding all the inferences which the jury could justifiably draw from the testimony, the evidence is insufficient to warrant a verdict for the plaintiff, the court should say so to the jury. In such case the party can submit to a nonsuit and try his case again if he can strengthen it, except where the local law

| forbids a nonsuit at that stage of the trial, or if he has done his best he must abide the judgment of the court, subject to a right of review, whether he has made such a case as ought to be submitted to the jury; such a case as a jury might justifiably find for him a verdict.

Tested by these principles, we are of opinion the circuit court ruled well. If plaintiffs had secured a verdict on the testimony before us, we think that court ought to have set it aside as not being warranted by the evidence. It is not possible, with any just regard to the principles of law as to partnership and the rules of evidence, as applied to this testimony, to come fairly and reasonably to the conclusion that Fant was Keene's partner in this transaction.

The judgment of the Circuit Court is affirmed.

U. S., 27; 101 U. S., 18: 103 U. S., 265, 678; 104 U. S., 512; 109 U. S., 482; 2 McCrary, 421; 52 Wis., 151.

Cited-94 U. S., 284; 95 U. S., 443; 97 U. S., 320; 100

GEORGE GAVINZEL, Appt.,

v.

ROBERT H. CRUMP ET AL.

(See S. C., 22 Wall., 308-322.)

Parol evidence to vary contract-contracts based on Confederate currency—when valid.

1. The court cannot, without evidence authorizing it to be done, import words into a contract which would make it materially different, in a vital particular, from what it is.

2. Parol evidence is inadmissible to alter the terms of a contract by showing that there was an antecedent parol agreement or understanding between the parties, different in a material particular, from that which the contract contained. 3. Contracts based on confederate currency, will be enforced when made in the usual course of business between persons resident in the insurgent States, and not made in furtherance of the rebell

ion.

4. If parties make contracts where there is no fraud, upon contingencies uncertain to both, with equal means of information, the courts cannot un[No. 190.]

dertake to set them aside.

Argued Feb. 11, 1875.

Decided Feb. 22, 1875.

APPEAL from the Circuit Court of the Unit

ginia.

ed States for the Eastern District of Vir

This was an action brought in the court below by the appellant, a citizen of Switzerland, against the appellees, to enforce a deed of trust, executed by the Crumps to Cannon, to secure the payment of the following bond:

"Know all men by these presents, that I, Robert H. Crump, of the County of Henrico, and State of Virginia, am held and firmly bound unto Dr. George Gavinzel, of the City of Richmond, and State of Virginia, in the sum of three thousand two hundred and sixty dollars for the payment of which sum, well and truly to be made to the said George Gavinzel, his heirs, assigns, executors and administrators firmly by these presents, as witness my hand and seal, this 20th day of November, 1863.

The foregoing obligation is made subject to the following terms and conditions, to wit: that the said sum of three thousand two hundred and sixty dollars is to be retained by me, and is not to become due and payable until the close of the present war between the Confederate and

And it is contended by him, as the tender was prevented by the omission of Gavinzel to appoint an attorney in fact to represent him in his absence, the bond is discharged as completely as if the tender had been actually made and accepted.

This would be so if Gavinzel was in default for not appointing an attorney. But the bond does not require him to make the appointment, nor to remain in Richmond. It gives Crump the right to make the tender, if the war continued after the first of April, 1864, but the tender could only be made in Richmond, and only to Gavinzel or to an attorney in fact in person who was authorized to receive payment. In other words, the money was payable if Gavinzel was in Richmond, or had an agent there to receive it, but was not payable if he was not there, or had no agent in the city. Crump may have under stood that his right to discharge the bond by the tender was to become absolute if the war lasted (and so long as it lasted) after April 1, 1864, but the contract does not admit of a construction consistent with that understanding. And the court cannot, without evidence au thorizing it to be done, import words into the contract which would make it materially differ ent in a vital particular from what it now is. There is no occasion to introduce parol evidence to explain anything in the contract, because there is no ambiguity about it, and it is not competent by this sort of evidence to alter the terms of a contract, by showing that there was an antecedent parol agreement or understand ing between the parties different in a material particular from that which the contract con tained. But if it were competent, the evidence fails to establish any such antecedent agreement. Gavinzel and Crump are the only wit nesses, and their statements are inconsistent one with the other. Both agree that Gavinzel was getting ready to go to Europe, if possible; but according to Crump's evidence Gavinzel said he would certainly be back in April, 1864, and if not, he would have some one in Richmond to act for him. On the contrary, Gavinzel says he told Crump he should not return as long as the war lasted, but if unable to leave the city or the south, he would have an agent in Richmond or be there himself, to receive the money in April, 1864. In view of this difference in the recollection of the parties, to use no harsher term, how can the court say that Gavinzel agreed either to be in Richmond or to have an agent there to represent him? Both parties were present when the bond prepared by Cannon on the direction of Gavinzel was read to them, and there does not seem to have been any objection to it, or any alteration proposed in the draft of it. Nor is there anything in the record to show that the parties did not, in this transaction,stand on equal ground, with equal intelligence and equal opportunities of judging of the hazard incurred. If so, hard as the bargain is, there is no good reason in the state of the pleadings why it should not be enforced. The answer sets up only two defenses, the illegality of a contract based on confederate notes, and the inability of Crump to discharge the debt, according to the last condition of the bond, by the neglect of Gavinzel on his departure to Europe, to appoint an attorney in fact to receive the money. But the last defense, as we have seen, is not sus

tained, and in regard to the first, this court has held substantially that contracts, based on confederate currency, will be enforced when made in the usual course of business between persons resident in the insurgent States, and not made in furtherance of the rebellion.

Whether or not this was a wagering contract, and therefore void, is not a question in the case, as no objection to it on that ground was taken in the answer or on the argument.

The contract was plainly a contract of hazard— mutual hazard. Each party took risks, and each received a consideration for the risk thus taken. Manifestly, the leading object Gavinzel had in the transaction was to loan his money, so that it would not be repaid until the war closed, whether this event occurred before or after the first of April, 1864; and this object, on the contingency of his being able to go to Europe, the terms of his contract enabled him to accomplish. If the war ended by April, 1864, as he swears he thought it would, his purpose was attained, whether he went to Europe or not. But if the war continued longer, and he was able to get out of the Confederacy, he was in as good condition as if the war had terminated when he expected it would. There were, however, difficulties to be encountered in getting through the lines, represented by Gavinzel in his testimony as the greatest he ever met with in his life." If unable to overcome these difficulties he would be obliged to stay in Richmond, and Crump would have the opportunity, if he chose to avail himself of it, of paying back the loan in the currency in which he received it.

The inducements to Crump to enter into the contract were the present use of the money and exemption from interest, with favorable terms of repayment. Besides this, there was the chance. that he might be able to repay the loan in Confederate money. Both parties not only ran the risk of the war closing before or after the first of April, 1864, but also of the value of money whenever the war did close, be that sooner or later, and of the ability of Gavinzel to leave the Confederacy. Certainly the wisdom of Crump in entering into a contract which contemplated such hazards cannot be commended, but if parties make contracts where there is no fraud, upon contingencies uncertain to both, with equal means of information, the courts cannot undertake to set them aside.

Confederate currency was a commodity in trade, and the parties risk their judgment upon the future value of it, as they might have done upon any other commodity for sale in the community. But if it be treated in this case as a loan of money, Crump agreed to repay it by a certain time after the termination of the war, in the currency which that termination should bring with it, and onerous as the condition is, he must abide by it.

The views we have taken of this case are sustained by the decision in Brachan v. Griffin, 3 Call, 375. In that case Griffin agreed, in consideration of £25,000 paper money, to be paid him by Willis in the years 1780 and 1781, to pay the latter £25,000 in specie in 1790. Griffin brought his bill in chancery for relief against Brachan, the assignee. Fleming, Judge, denying the relief, said: "That the contract in this case was founded upon speculation on both sides. Griffin thought the present use of the money would

be advantageous to him; and Willis, that it would be more beneficial to him to receive the specie at a distant day. The contract seems to have been fully understood by the parties, and to have been fairly entered into upon both sides. The language used by this judge is applicable to this contract, which, after all, was a mere speculation upon the paper currency of the Confederacy. Besides this case from Virginia, decided in 1803, there are recent decisions in that State and Maryland which uphold contracts of hazard similar in many respects to the one in this case. Boulware v. Newton, 18 Gratt., 708; Taylor v. Turley, 33 Md., 500.

The decree of the Circuit Court is reversed, and this cause is remanded to that court, with instructions to enter a decree for the complainant, in conformity with this opinion.

Cited-105 U. S., 142.

NICHOLAS C. STEPHEN, Appt.,

V.

WILLIAM D. BEALL ET AL.

(See S. C., 22 Wall., 329-341.)

Deed of one joint owner of land-parties-wife may incumber her property for husband's debt -purchase by trustee.

1. Where grantees of land are tenants in common, one of them can convey his portion or interest without affecting the rights of his co-tenants. 2. The attempted conveyance by one joint tenant of the entire premises held by several, has no effect upon the interest of his co-tenants.

3. Such co-tenants who do not convey, need not be made parties defendant to a bill to enforce the 4. A wife may incumber her individual property to secure her husband's debts, by an instrument in writing by which she expressly charges her separate property for the payment of such debts. 5. Where there is no understanding or agreement between the purchaser at a public sale and the trustee making the sale, and no collusion between them, and no fraud in fact, and the duties of the trustee are ended, and the sale confirmed by the court, the circumstance that years afterwards the trustee bought the property from the purchaser, in good faith and for a fair price paid to him. does not vitiate and annul the public sale to the purchaser.

conveyance made by another co-tenant.

all respects competent to act as if she were sole, has been applied to all her dealings on the subject of that property. She may give or pledge or sell it, or make any other bargain with respect to it, with any person, in the same manner as if she were an unmarried woman.

Peacock v. Monk, 2 Ves., Sr., 190; Hulme v. Tenant, 1 Bro. C. C., 16; 1 White & T. Lead. Cas. in Eq, 3d Am., from 2d Lond. ed., p. 501. Wms. Real Prop. (marg.), 206, n. 2, 3d Am. ed.; Huntington v. Huntington, 3 White & T. Lead. Cas. in Eq., 577, 2 Bro. P. C., 1.

The power of a feme covert to charge or dispose of her separate property is recognized in New York.

Jacques v. Methodist Church, 17 Johns., 548; Mallory v. Vanderheden, 3 Barb. Ch., 10; Yale v. Dederer, 21 Barb., 287.

It is also recognized in Connecticut, Maryland, Alabama, Kentucky, North Carolina, Georgia, Missouri and Florida, though denied in Pennsylvania and South Carolina.

1 White & T. Lead. Cas. in Eq., 532, et seq. In Maryland, held that a feme covert may cre ate a lien upon her sole and separate estate on lands without a private examination.

Berrett v. Oliver, 7 Gill & J.. 191; Helms v. Franciscus, 2 Bland, 544; Price v. Bigham, 7 Har. & Johns., 296; Cooke v. Husbands, 11 Md., 492.

Mr. R. T. Merrick, for defendants in

error.

The debt sought to be secured is the individual debt of the husband, William D. Beall, and it was not competent for the wife, under the policy of the law made for her protection, and under the provisions of the deed or deeds by which she held the property in connection with her children, to incumber that property for the security of her husband's debts.

Bibb v. Pope, 8 Am. Law Reg. (N. S.), 490; Cent. Bank of Frederick v. Copeland, 18 Md.. 305; Steffey v. Steffey, 19 Md., 5; 1 Washb. Real Prop., 280.

[No. 187.]

Argued Feb. 11, 1875.

of Columbia.

The case is stated by the court.

Mr. T. T. Crittenden, for appellant: Under the laws in force in the District of Columbia prior to the Act of Congress approved Apr. 10, 1869, the wife could, by deed made by her husband and herself, convey all her right, title and interest in and to any real es tate separately vested in her in fee simple. This was the law of Maryland at the time of the severance of the District of Columbia from that State, and includes the power to mortgage or

incumber her estate.

In England the rule that, a feme covert, acting with respect to her separate property, is in

NOTE.-Deed; when void for fraud, insanity, drunkenness, duress, undue influence, imbecility, infancy, or fraud on marriage, from ward to guardian, from cestui que trust to trustee, from heir to execu tor. See note to Harding v. Handy, 24 U. S. (11

Wheat.), 103.

could not, at the date of the deed in question from Mrs. Beall, incumber her estate for the benefit of her husband. The oral discussion

took a wider range, but the two points suggest

ed will be first considered.

1. In August, 1857, Mrs. Beall united with her husband in a deed of trust to secure the payment to the complainant of three single bills of $3,000 each. The land described in this deed of trust was conveyed in 1849 to Mary Bell, John W. Bell, Mary V. Bell and Sarah L. Bell, their heirs and assigns forever, to have and to hold to the said Mary, John W., Mary V. and Sarah, their heirs and assigns forever. The party first named, Mary Bell, is the same person who, as Mary Beall, executed the deed of trust just referred to, and the three others are her children. The complainant is now attempting to enforce this deed of trust, and it is objected that the other grantees named in the deed to Mrs. Beall, to wit: her children, are neces

sary parties to the suit. The argument is, that in her deed of trust Mrs. Beall professed to convey, not one fourth of the estate, but the entire property described in the deed; that as the chil dren were owners of three fourths of the property, they should be brought in to protect their right.

Mrs. Beall was the owner of one fourth of the property referred to, and no more. This one fourth she could convey, and no more. Whether the terms of her deed purported to convey this portion only, or the whole, is not important. She could not convey the remaining three fourths, nor could the general language of her deed create a cloud upon the title of her children. The record showed exactly what title she had, and exactly what title the children had. No relief was asked against the children, and no claim made by the trustees that their rights were affected by the deed of their mother. The bill was filed against Mrs. Beall and her husband only, and judgment only asked against them. No judgment could be taken against the children or that would effect their estate, nor would a sale of their interest have any legal effect. Ward v. Dewey, 16 N. Y., 519; Heywood v. Buffalo, 14 N. Y., 534; Cox v. Clift, 2 N. Y., 118; Story, Eq., sec. 700.

If the grantees were tenants in common, it is not denied that Mrs. Beall could convey her portion or interest without affecting the rights of her co-tenants, and that her deed in this case would effect that purpose. It is said, however, that as the law of Maryland stood in 1801, and was thence carried into the District of Columbia, the conveyance to Mrs. Beall and her children created a joint tenancy, and that being a joint tenant, her conveyance in 1857 did not bind her interest only, but affected, also, that of her co-tenants.

We cannot recognize this conclusion. We find the law on this point thus laid down:

"If there be three joint tenants and one aliens his part, the other two are joint tenants of their parts that remain, and hold them in common with the alienee." Co. Litt., 189; Bac. Abr., "Joint Tenants," E.

"If one joint tenant bargains and sells his moiety, and dies before the deed is enrolled, yet the deed, being afterwards enrolled, shall work a severance ab initio, and support, by relation, the interest of the bargainee. But if one joint tenant bargains and sells all the lands, and before enrollment the other dies, his part shall survive, for the freehold not being out of him the jointure remains, and though afterwards the deed is enrolled, yet only a moiety shall pass, for the enrollment by relation cannot make the grant of any better effect than it would have been if it had taken effect immediately." Co. Litt., 186, 186 a; Bac. Abr., "Joint Tenant,"I, 3. It is laid down in the same authorities that if one joint tenant agree to aliene, but do not, and die, this will not sever the joint tenancy, nor bind the survivor. But it is held in Hinton v. Hinton, 2 Ves., 634, that in equity it may be en forced if the articles amount to an equitable severance of the jointure. See Bacon, supra.

We think it clear upon these authorities that the attempted conveyance, by Mrs. Beall, of the entire premises had no effect upon the interest of her co-tenants, conceding them to have been joint tenants. The law is well settled that no

cloud is cast upon a title by a proceeding or claim, where the record through which title is to be made shows a defense to the claim. Ward v. Dewey [supra]; Heywood v. Buffalo [supra]; Cox v. Clift [supra]; Story, Eq., sec. 700. It would not be proper under such circumstances that the children should be parties defendants. See Reid v. Vanderheyden, 5 Cow., 719; Bailey v. Inglee, 2 Paige, 278.

We dismiss, then, as unfounded, the argument of a want of parties defendant.

2. The dismissal of the bill is defended upon the further ground that the debt sought to be secured is the debt of the husband, and that it was not competent for the wife to incumber her individual property to secure her husband's debts.

Steffey v. Steffey, 19 Md., 5, is cited in support of this argument; but it does not bear upon the question. That was not the case of an attempt to incumber the separate property of the wife for the debt of the husband. It was a case in which both husband and wife had joined in an agreement to sell the lands of the wife. Upon a bill for specific performance the interest of the husband was adjudged to be bound, but the execution of a contract simply was held to be inoperative to convey the estate of or to bind the married woman under the statutes of Maryland.

Nor is Bk. v. Copeland, 18 Md., 305, also cited, an authority to the point insisted upon. It was there held that a mortgage by a wife for her hus band's debts, obtained from her by threats, and the exercise by the husband of an authority so excessive as to subjugate her will, was not binding upon her.

There is nothing in these authorities to indicate that the law of Maryland or of the District of Columbia on this subject is in any respect peculiar. The case rests upon and must be governed by the general principles applicable to the subject.

As to a wife's individual property generally, it is well settled that she may, by joining in a deed with her husband, convey any interest she has in real estate. Such a deed conveys the interest of both. 1 Washb. R. Prop., 280.

The doctrine that a married woman has the power to charge her separate estate with the payment of her husband's debts, or any other debt contracted by her as principal or as surety, has been uniformly sustained for a long period of time.

Hulme v. Tenant, 1 Bro. Ch. Cas., 16; Standford v. Marshall, 2 Atk.. 69; Bullpin v. Clarke, 17 Ves., 365; Jaques v. M. E. Ch., 17 Johns., 548; Yale v. Dederer, 22 N. Y., 450; S. C., 18 N. Y., 276; Ins. Co. v. Babcock, 42 N. Y., 615; Story, Eq., secs. 1396, 1401, a.

The question has been in respect to the manner in which the conceded power should be exercised, and in respect to the requisite evidence of its due execution. Whether the simple execution of an obligation by a married woman operates to charge her estate, or whether she must declare such to be her intention; whether an oral statement of such intention is sufficient, or whether it must be in writing; whether such intention must be manifested in the contract itself or may be separately manifested; whether a declaration of an intention to bind her separate property is sufficient, or whether the property intended to be charged must be specifically