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1822. from it will be admitted ; for it will certainly be sufficient, if the matter to be proved be substantially alleged in the proceedings. How, then, is the fact?
In his answer to Crocket's bill, he says that he does not " admit that the survey has been made agreeable to location or to law."
This allegation certainly questions the survey. If it vary from the entry, if it be chargeable with any fatal irregularity, if it be in any respect contrary to law, such defects may be shown, and the party may avail himself of it to the extent justified by his testimony, and by the law. But this allegation is confined to the survey. It does not mount up to the location, nor does it draw that into question. It gives no notice to Crocket, that his entry was to be controverted.
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 to that point, their 1822. 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 qot 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
1822. survey varies from it, unless the survey be made on land entirely different from tbe 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' 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 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 he 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 parties to amend their pleadings.
Andrew Crocket, Appellant,
Decree. This cause came on to be heard on the i»ill,&c. and was argued by counsel; on consideration whereof, this Court is of opinion that the decree dismissing the plaintiff's bill was erroneous, in this, that the plaintiff is shown to possess the prior and better equitable title, unless his location, which is the foundation to that title be void for want of certainty, 1822. a point not properly examinable under the pleadings in the cause, as they now stand, because it is not put in issue. This Court doth therefore reverse the said decree, and doth remaud the cause to the Circuit Court, that the parties may be permitted to amend their pleadings, and that farther proceedings may be had therein, according to law.
Decree. This cause came on to be heard on the bill, &c. and was argued by counsel; on consideration whereof, this Court is of opinion that the decree directing the defendant to convey to the plaintiff the land therein mentioned, is erroneous in this, that the defendant is shown to possess the prior and better equitable title, unless his location, which is the foundation of that title, be void for want of certainty, a point not properly examinable under the pleadings in the cause, as they now stand, because it is not put in issue. This Court doth therefore reverse(the said decree, and doth remand the cause to the Circuit Court, that the parties may be permitted to amend their pleadings, and that farther proceedings may be had therein, according to law.
Vol. VII. 67
Macker's Heirs v. Thomas.
In real actions, the death of the ancestor, without having appeared to the suit, abates the suit, and it cannot be revived and prosecuted against the heirs of the original defendant.
If the heirs be made parties by order of the Court in which the suit is brought, and judgment is entered against them by default for want of a plea, upon a summons and count against the original defendant, they may sue out a writ of error, and reverse the judgment.
Xarchisth. Mr. Justice Washington 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 oause 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 the heirs of Macker, and ren