Action on an agreement in writing by which Guttschlick had
purchased a lot of ground in the City of Washington from the Bank
of the Metropolis for which he had paid a part of the purchase
money and given a note for the residue. By the contract, the Bank
of the Metropolis, through its president and cashier, was pledged
to convey the lot in fee simple to Guttschlick when the whole
purchase money was paid. The declaration in each count averred the
payment of the note and the failure of the bank to convey. To the
three special counts in the declaration there was no conclusion; to
the fourth count, for money had and received, there was a general
conclusion. It was held by the court that whatever might have been
the effect of the want of a conclusion to the three counts upon a
special demurrer, the thirty-second section of the Judiciary Act of
1989 would cure the defect, if it be admitted to be one.
A corporation may be bound by contracts not executed under its
common seal, and by the acts of its officers in the course of their
official duties -- when in a declaration it is averred that a bank
by its officers agreed to a certain contract, this averment imports
everything to make the contract binding.
An allegation that a party made, accepted, endorsed, or
delivered a bill of exchange is sufficient although the defendant
did not do either of those acts himself, provided he authorized the
doing of them.
The averment in a declaration set forth that the plaintiff had
been turned out of possession of a lot of ground, but did not state
that the eviction was by due course of law. The breach alleged in
the count was that the defendant had refused, on demand, to convey
the lot. The court held the averment of eviction to be mere
surplusage.
The Bank of the Metropolis contracted to deliver a title in fee
simple to Guttschlick of a lot of ground, and at the term of the
contract they held the lot, by virtue of a sale made under a deed
of trust, at which sale they became the purchasers of the property.
The same lot had, by a deed of trust executed by the same person,
been previously conveyed to another person to indemnify an endorser
of his notes, and it was by the trustee, afterwards and after the
contract with Guttschlick, sold and purchased by another.
Held that at the time of the contract of the bank, they
had not a fee simple in the lot which could be conveyed to
Guttschlick.
In case of a deed of trust executed to secure a debt, unless in
case of some extrinsic matter of equity, a court of equity never
interferes to delay or prevent a sale according to the terms of the
trust, and the only right of the grantor in the deed is the right
to any surplus which may remain of the money for which the property
sold.
The action in this case was assumpsit against the bank on a
contract under the seals of the president and cashier.
Held that the action was well brought, and it makes no
difference in an action of assumpsit against a corporation whether
the agent was appointed under the seal or not or whether he puts
his own seal to a contract which he makes in behalf of the
corporation.
It is admissible for the party who sues on a contract to make a
title to a lot of ground in fee simple which he had purchased to
give in evidence an examination of the records of the office for
the recording of deeds by a witness who was searching into the
title of the lot, and also a letter giving to the party who made
the contract a notice that the lot was about to be sold under a
title superior to that under which he held. A deed from the vendor,
informally executed and which did not convey the title the vendor
agreed to give, was also admissible in evidence in an action
against the vendor on the contract.
A paper executed by the president and cashier of a bank,
purporting to convey a lot of ground held by the bank, is not the
deed of the corporation.
The proceedings in an action against the endorser of a note, by
the holder, which gave to a trustee, by the terms of the deed of
trust, a right to sell property held for the indemnity of the
endorser, were proper evidence in an action on a contract for the
sale of the lot, from which the party who had purchased under
another title had been evicted by a title
Page 39 U. S. 20
obtained under the deed of trust. No exceptions to the
regularity of the proceedings offered in evidence can be taken
which should have been properly made in the original action by the
party sued on the same.
Whether evidence is admissible or not is a question for the
court to decide, but whether it is sufficient or not to support the
issue is a question for the jury. The only case in which the court
can make inferences from evidence and pass upon its sufficiency is
on a demurrer to evidence.
When a trust is created for the benefit of a third party, though
without his knowledge at the time, he may affirm the trust and
enforce its execution.
Where a deed of trust was executed to secure the payment of
certain notes, and a judgment obtained on the notes, the judgment
did not operate as an extinguishment of the right of the holders of
the note to call for the execution of the trust, although the act
of limitations might apply to the judgment.
This action was instituted by the defendant in error against the
plaintiff in error on 31 March, 1836. The declaration contained
four counts.
1. That on 9 November, 1827, the plaintiff bought of defendant a
certain lot of ground in the City of Washington, being lot 5,
Square 489, for the sum of eleven hundred and ninety-one dollars
and twenty-five cents, and paid the sum of five hundred and
ninety-one dollars and twenty-five cents, and gave his promissory
note for the balance of the purchase money; that the defendant, in
consideration thereof, agreed through the president and cashier
that it was pledged, when the note should be paid, to convey said
lot to plaintiff, his heirs and assigns; that said note was paid at
maturity, with the interest, yet the defendant has not conveyed
said lot, but to do so has hitherto wholly refused, &c.
2. That whereas the defendant, by John P. Van Ness, the
president of said bank, and Alexander Kerr, the cashier, agents for
that purpose, duly authorized by and acting for defendant, did, on
9 November, 1827, bargain and sell to the plaintiff the said lot of
ground on the terms mentioned in the first count, and did thereupon
put plaintiff in possession of said lot, and the plaintiff avers
the authority of Van Ness and Kerr to make said agreement; that
plaintiff paid the note and received and continued in possession of
the lot, and was obliged to pay, and did pay taxes thereon, from 9
November, 1827, to 30 December, 1835, when he was turned out of
possession by the Patriotic Bank, yet defendant, although often
requested, has not conveyed the said lot in fee simple to the
plaintiff, but hath hitherto wholly neglected and refused.
3. That whereas defendant, on 9 November, 1827, by an agreement
of that date, acknowledged to have received from the plaintiff the
sum of five hundred and ninety-one dollars and twenty-five cents,
and the promissory note of the plaintiff, payable six months after
date, with interest, and in consideration thereof put the plaintiff
in possession of said lot, and undertook and faithfully
Page 39 U. S. 21
promised the plaintiff, upon the payment of said note, with
interest, to convey to plaintiff said lot in fee simple; that the
plaintiff did pay said note, with interest, whereby defendant
became liable and bound to convey said lot in fee simple, by a good
and indefeasible title, free from encumbrances; and being so
liable, undertook and promised, &c.; yet plaintiff says that
the defendant was not at the time when, &c., or at any other
time after seized or possessed of said lot in fee simple, nor did
then or at any other time, although often requested to convey,
&c. And the plaintiff further avers that being in possession of
said lot as aforesaid, he was compelled to pay and did pay the
taxes and public dues, amounting to three hundred dollars, whereby,
&c.
4. The fourth count was for money had and received, and
concluded as follows,
"Yet the said defendants the said sums of money have not paid to
the said plaintiff, nor have they paid any part thereof, but the
same or any part thereof to pay to the said plaintiff, have
hitherto wholly neglected and refused, to the damage of the said
plaintiff three thousand dollars, and thereof,"
&c.
There was no conclusion to the three preceding counts in the
declaration.
The jury, under the charge of the court, found a general verdict
for the plaintiff for eleven hundred and ninety-one dollars and
twenty-five cents, with interest from November 9, 1827.
The counsel for the defendant took four exceptions to the charge
of the court.
The plaintiff in the circuit court having given in evidence an
account made out by the Bank of the Metropolis against him, stating
that he had bought a certain lot of ground described in the same,
from the bank, for the sum of eleven hundred and ninety-one dollars
and twenty-five cents, gives a credit for the sum of five hundred
and ninety-one dollars and twenty-five cents as "cash received,"
and the balance, six hundred dollars, to be due on the bond of the
plaintiff, in the following terms,
"Be it known, that on this 9 November, 1827, Ernest Guttschlick,
has purchased of the Bank of the Metropolis, lot No. 5, in Square
No. 489, as above described, and as laid down on the plat of the
City of Washington, for the sum of eleven hundred and ninety-one
dollars and twenty-five cents, and that he hath paid on account of
the same, the sum of five hundred and ninety-one dollars and
twenty-five cents, leaving due the sum of six hundred dollars, for
which he hath given his note to the said bank, payable in six
months after date with interest from date, which sum of six hundred
dollars, when paid, will be in full for the purchase money of said
lot."
"The Bank of the Metropolis, through the president and cashier,
is hereby pledged, when the above sum shall be paid, to convey the
said lot,
viz., lot 5, in Square 489, in fee simple, to
the said Ernest Guttschlick, his heirs or assigns, forever."
"In testimony whereof, the said president and cashier, by order
of
Page 39 U. S. 22
the board of directors, have hereto set their hands and seals
this ninth day of November, eighteen hundred and twenty-seven."
"JOHN P. VAN NESS [SEAL]"
"
President of the Bank of Metropolis"
"ALEXANDER KERR,
Cashier [SEAL]"
"In presence of GEO. THOMAS"
With evidence that he, the plaintiff, had paid the sum of six
hundred dollars to the bank, the defendants excepted to the
admissibility and competency of the same until some evidence should
be given showing the authority of the parties who executed the same
to sign said paper.
The court overruled the objection.
The defendant's second bill of exceptions stated that the
plaintiff proved that in December, 1835, witness, at the instance
of the plaintiff, examined the records of deeds in Washington
County for the purpose of tracing the plaintiff's title to the lot
in question, and after such examination, wrote for the plaintiff
his letter to the bank, dated 17 December, 1835; that when he wrote
that letter, a deed, purporting to be executed by John P. Van Ness,
president, &c., to the plaintiff, was before him, and is the
deed referred to in said letter, having been handed to him by
plaintiff. The said deed was duly recorded on 13 May, 1828, and
appears to have been delivered in August, 1828. Statements were
made by counsel, and the plaintiff offered to read in evidence said
deed, which being objected to, the court overruled the objection
and defendant excepted.
The third bill of exceptions stated that the plaintiff, in order
to maintain the issue on his part, offered in evidence the
proceedings of the Circuit Court of the District of Columbia for
the County of Washington in a certain suit brought by the Patriotic
Bank against Samuel Lane for the purpose of showing that Samuel
Lane had been in fact sued upon the note for three thousand
dollars, one of the notes mentioned in the deed from B. G. Orr, to
Joseph Elgar, dated 21 August, 1818; to the competency and
admissibility of the same to prove the said fact the defendant
objected, but the court overruled the objection and permitted the
same to go to the jury. To the admission of which testimony the
defendant, by his counsel excepted. The deed from B. G. Orr,
referred to in the exception, was a deed of trust executed on 21
August, 1818, and duly recorded, to Joseph Elgar, by which Orr
conveyed to Elgar certain lots of ground in the City of Washington,
in trust that if Samuel Lane should be sued or put to any cost,
trouble, damage, or expense by reason of his having endorsed
certain notes drawn by B. G. Orr, negotiable at the Patriotic Bank,
the trustee should sell and dispose of the property conveyed by the
same, and out of the proceeds discharge the notes or such as may
have been substituted for them, and to indemnify the said Samuel
Lane, &c.
The fourth bill of exceptions stated that the plaintiff, to
sustain the issue on his part, gave in evidence the articles of
agreement
Page 39 U. S. 23
signed by John P. Van Ness, President of the Bank of the
Metropolis, and Alexander Kerr, Cashier of the Bank, with the
plaintiff, for the sale of the lot, and then, having proved that B.
G. Orr was seized in fee of the premises mentioned in the
agreement, gave in evidence the deed from Orr to Elgar referred to
in the third exception, and then gave in evidence a deed from B. G.
Orr to Kerr authorizing the sale of the lot for the purpose of
discharging certain notes drawn by Orr and discounted at the Bank
of the Metropolis and a deed made by Kerr to the Bank of the
Metropolis in pursuance of the trust dated July 1, 1825, under
which deed the bank entered into possession of the lot, and then
gave in evidence the proceedings in the circuit court, in the case
of the Patriotic Bank against Samuel Lane, as stated in the third
bill of exceptions, and proved by competent testimony that B. G.
Orr had died in 1823 and Samuel Lane in the year 1822, both
insolvent, and that in the year 1835, said Elgar, at the instance
and request of said Patriotic Bank, advertised the property
mentioned in said deed to him for sale in manner following, and
that pursuant to said advertisement, he did, on 21 December, 1835,
enter on the premises and expose to sale and did sell said lot No.
5, in Square No. 489, and the said Patriotic Bank, by its cashier,
became the purchaser, and said Elgar executed to said bank a deed
for the same, and that the net proceeds of said sale of said lot
was carried on the books of the said Patriotic Bank to the credit
of said B. G. Orr's note for three thousand dollars, mentioned in
said deed from said Orr to Elgar, still leaving, as appears by the
said books, a balance due on the said note, and then gave in
evidence a letter addressed by said plaintiff to said defendant,
and then proved by competent testimony, that the said lot was
vacant and unenclosed and unimproved, and that after said sale and
conveyance to said Patriotic Bank, the cashier of said bank went on
to said premises, in company with the attorney of said bank, and
then and there declared that he took possession of the same, and
that in the year 1824 the said lot was assessed on the books of the
corporation of Washington as the property of said Orr, and that
from the year 1825 to the year 1828, both inclusive, the same was
assessed to said defendant, who paid the taxes thereon, and that
from the year 1829 to the year 1835, the same was assessed to said
plaintiff, who paid the taxes thereon, and continued in possession
till the year 1835, and from that time, the same has been assessed
to said Patriotic Bank, and further proved that said plaintiff was
duly notified by the cashier of said Patriotic Bank of his
intention to take possession of said lot in the manner and at the
time of his said entry as aforesaid, that that said lot still
remains and has constantly remained open, vacant, unimproved, and
unenclosed, and further proved that said plaintiff had paid to said
defendant the whole consideration money for which said lot was sold
to him, and taken up at maturity as part of said purchase money,
the note mentioned in the agreement aforesaid, signed by said Van
Ness and Kerr, and that the said Orr and Kerr, during their lives,
and
Page 39 U. S. 24
the said Elgar, the Bank of the Metropolis, and Patriotic Bank,
were all in the City of Washington from 1818 till after 1835.
The defendant moved the court to instruct the jury that upon
this evidence the plaintiff was not entitled to recover upon the
first, or second, or third, or fourth counts in the declaration,
which instructions the court refused to give, to which refusal the
defendants excepted.
The defendants presented this writ of error.
Page 39 U. S. 26
MR. JUSTICE BARBOUR delivered the opinion of the Court.
The declaration contains three special counts and a count for
money had and received. The three special counts are all founded
upon an agreement in writing, which, after reciting that the
plaintiff in the court below had bought of the defendant in the
court below, lot No. 5, in Square No. 489, in the City of
Washington, for which he had paid a part of the purchase money, and
executed his note for the residue, contains the following
stipulation:
"The Bank of the Metropolis, through the president and cashier,
is hereby pledged, when the above sum [that is, the amount of the
note] is paid, to convey the said lot, viz. lot No. 5, in Square
489, in fee simple, to the said Ernest Guttschlick, his heirs, or
assigns forever."
Each of these counts avers the payment, at the time agreed, of
the amount of the note and the failure of the bank, on demand, to
convey the lot. At the trial, several bills of exception were taken
and a verdict was found and judgment rendered in favor of the
plaintiff. To reverse that judgment this writ of error is
brought.
In the argument at the bar, various objection have been urged to
the sufficiency of the declaration which we will briefly notice in
the order in which they were made.
The first objection is that the special counts have no
conclusion.
Page 39 U. S. 27
There is certainly no formal conclusion to either of these
counts. Each of them, after alleging the breach, terminating with
the words, "Whereby, &c." Whether counts thus concluding would
have been sufficient upon a special demurrer in the court below it
is not necessary to decide, because we are clearly of opinion that
the thirty-second section of the Judiciary Act would cure the
defect, if it were admitted to have been one.
The second objection which was taken applies to the first count,
viz., that the agreement sued on is averred to have been
made by the bank "through the president and cashier," without
averring their authorization by the bank to make it. We consider
this objection as wholly untenable. The averment in this count is
that the bank, through these officers, agreed to convey the lot.
Now even assuming, for the sake of giving the objection its full
force, that the making of this agreement was not within the
competency of these officers, as such, yet it was unquestionably in
the power of the bank to give authority to its own officers to do
so. When, then, it is averred that the bank, by them, agreed, this
averment in effect imports the very thing the supposed want of
which constitutes the objection, because, upon the assumption
stated, the bank could have made no agreement but by agents having
lawful authority. Nay, it would have been sufficient, in our
opinion, that the bank agreed, without the words, "through the
president and cashier," for it is a rule in pleading that facts may
be stated according to their legal effect. Now the legal effect of
an agreement made by an agent for his principal whilst the agent is
acting within the scope of his authority is that it is the
agreement of the principal. Accordingly, it is settled that the
allegation that a party made, accepted, endorsed, or delivered a
bill of exchange is sufficient although the defendant did not in
fact do either of these acts himself, provided he authorized the
doing of them. Chitty on Bills 356, and the authorities there
cited. This principle has been applied too, in actions
ex
delicto as well as
ex contractu. In 6 Term 659, it
was held that an allegation that the defendant had negligently
driven his cart against plaintiff's horse was supported by evidence
that defendant's servant drove the cart. In this aspect of the
question, it was one not of pleading, but of evidence. If, on the
contrary, the act were one in their regular line of duty, then, of
course, the averment was unnecessary. In the case of
Fleckner v. United States
Bank, 8 Wheat. 358, the Court declare the point to
be settled
"that a corporation may be bound by contracts not authorized or
executed under its corporate seal and by contracts made in the
ordinary discharge of the official duty of its agents and
officers."
The next objection which was raised to the declaration applied
to the second count,
viz., that the averment that the
plaintiff was turned out of possession was insufficient in this,
that it is not averred to have been by process of law or by the
entry of one having lawful title. If entry and eviction were the
ground of the action or constituted the gravamen of the count, as
in covenant on a warranty
Page 39 U. S. 28
or for quiet enjoyment, then indeed a declaration or count would
be defective which omitted to aver that the plaintiff was evicted
by due process of law or by the entry and eviction of one who, at
the time of the covenant, had lawful title to the land, and having
such title, entered and evicted the plaintiff, or which did not
contain some averment of equivalent import. But upon examining the
count in question, it will be found that although this averment is
contained in that count, it is mere surplusage because the breach
alleged is that the defendant refused, on demand, to convey the
land. There is nothing, therefore, in the objection as applied to
this count, because it would be good without averring any eviction
whatsoever.
The next objection to the declaration applies to the third
count, and it is this -- that the plaintiff in that count treats
the agreement as importing an undertaking on the part of the bank
to convey the lot in fee simple by a good and indefeasible title,
free from encumbrances. In the view which we have taken of this
subject it is unnecessary for us to decide whether the agreement
does or does not import such an undertaking on the part of the bank
as is ascribed to it in this count of the declaration. This count
contains an averment that the bank was not at the time of the
agreement, or at any time after, seized or possessed of the lot in
fee simple. We have seen that the language of the agreement is that
the bank was to convey the lot in fee simple to the defendant in
error, his heirs or assigns forever. Now it appears from the record
that the bank claimed under a deed from Alexander Kerr, who sold
the lot as trustee under a deed of trust from Orr, the former
owner, made to secure certain debts therein stated, which deed of
trust was executed on 8 September, 1819. But Orr had previously,
to-wit, on 6 August, 1818, conveyed the same lot in fee simple to
Joseph Elgar, as trustee for the purpose of securing certain debts
therein stated, and with power to sell, in certain events therein
mentioned, one of which was that Samuel Lane, who was endorser of a
note of three thousand dollars, secured by this last deed, should
be sued, which event occurred as early as the year 1820.
Now from this state of facts it is apparent that at the date of
the agreement, the bank was not seized of the fee simple which it
contracted to convey. If the deed of trust to Elgar be considered
as a mortgage, then the moment it was executed, the legal estate in
fee simple was in Elgar, subject to be defeated upon the
performance of the condition, and so continued in him from that
time down to the year 1835, when, under the trust deed he sold and
conveyed the lot to the Patriotic Bank, which purchased at the
sale. The interest of the mortgagor, according to the common law,
is not liable to execution as real estate. 8 East 467. 5 Bos. &
Pull. 461. It is treated as equitable assets, 1 Vesey 436; 4 Kent
154. In conformity with this doctrine, this Court decided,
37 U. S. 12 Pet.
201, that the wife of a mortgagor was not dowable, and in
38 U. S. 13 Pet.
294, that the equity of redemption could not be taken in execution
under
Page 39 U. S. 29
a
fieri facias. If this be so in the case of a
mortgage, the principle applies more strongly in case of a deed of
trust, because the interest of the mortgagor, such as it is, is so
far protected by a court of equity that the mortgagee cannot
foreclose without a decree in equity, and even in that decree, a
short time is allowed to the mortgagor within which to redeem by
paying the debt, whereas in the case of the trust, unless in case
of some extrinsic matter of equity, a court of equity never
interferes, and the only right of the grantor in the deed is the
right to whatever surplus may remain after sale of the money for
which the property sold. There was then a good cause of action on
the ground that the bank had not the fee simple which it contracted
to convey.
We think, then, that the declaration is not liable to any of the
objections which have been urged against it.
Nor have we any doubt but that the action well lies against the
bank. For although the agreement is under seal, it is not the seal
of the corporation, but that of the president and cashier. It was
decided in the case of
Randall v. Vanvechten, 19 Johns.
60, that covenant would not lie against a corporation on a contract
not under their corporate seal, but that an action of assumpsit
would lie, and that it makes no difference in regard to a
corporation whether the agent is appointed under seal or not, or
whether he puts his own seal to a contract which he makes in their
behalf, the doctrine of merger not applying to such a case. This
doctrine we approve, and it is decisive of the objection.
We come now in order to the exceptions taken at the trial.
The first was to the court's admitting the agreement declared
upon to be given in evidence until some evidence was previously
given showing the authority of the parties who executed it, to sign
it.
Assuming,
argumenti gratia, as we have before done as
to this point, that the transaction was such that an authority was
necessary to be proven, the objection resolves itself simply in a
question of the order in which evidence was to be given.
We think that there is nothing in it. It was as competent for
the party to prove the authority after as it was before giving the
agreement in evidence.
The second exception was taken to the court's admitting in
evidence a letter from defendant in error to plaintiff in error,
and the testimony of a witness that he had examined the records for
the purpose of tracing the title of the defendant in error to the
lot in question, and also a deed purporting to be executed by John
P. Van Ness, President of the Bank of the Metropolis, to the
defendant in error. The letter was merely to inform the plaintiff
in error of the sale then advertised to be made of the lot in
question, under the deed of trust from Orr to Elgar. The
examination of the records made by the witness was made for the
purpose of enabling the defendant in error to decide what course to
pursue in relation to the property. We see nothing objectionable in
the admission either of
Page 39 U. S. 30
the letter or the testimony of the witness. The plaintiff in
error certainly was not injured by its admission. The property
which the defendant in error had bought being about to be sold, he
causes an examination to be made, that he might know what ground he
stood on; then, out of abundant caution, he wrote the letter giving
notice of the sale, so that the other party might pursue whatever
course they thought best for their safety. The most that can be
said of it is that he thereby proved that he had done more than he
was bound to do. For if he had chosen, he might have rested upon
his contract, without troubling himself either in examining records
or giving the other party notice. Nor have we any doubt as to the
admissibility of the deed; some of the counts in the declaration
charged as a breach of the agreement, the failure of the other
party to make a deed, a paper having been executed having the form
of a deed, it was altogether proper then to give it in evidence, to
show that being sealed, not with the corporate seal, but with that
of the president of the bank, it was no deed, and thus sustain the
allegation that no deed had been made. It is clear beyond doubt
that a paper such as this, not under the corporate seal, is not the
deed of the bank in contemplation of law.
The third exception was taken to the court's receiving in
evidence the record of a suit by the Patriotic Bank against Lane
for the purpose of showing that Lane had been sued upon a note for
three thousand dollars, mentioned in the deed from B. G. Orr to
Elgar, dated August 20, 1818. We think that this record was
properly admitted. For one important question in the cause was
whether the occasion had occurred which justified Elgar, the
trustee in the deed of trust from Orr, to sell the lot in question.
Now one of the provisions of that deed authorized him to sell
whensoever Lane should be sued on the note for three thousand
dollars given by Orr to the Patriotic Bank and endorsed by Lane,
and to pay off that note to the bank. Now this record proved that
Lane had been sued, that therefore the
casus fedoris had
occurred; that the land was rightfully sold, and therefore we think
was admissible for the purpose for which it was offered. But it was
argued that the note stated in the deed of trust as the one
endorsed by Lane, purported to be negotiable at the Patriotic Bank,
and that the note declared upon in the record did not purport to be
negotiable at that bank, and that there was therefore a variance.
If the question had been raised in the suit brought upon the note,
it might have been considered a misdescription; but in this case it
was offered in evidence to the jury to prove the fact that Lane had
been sued; it was a question for the jury to consider whether this
evidence was sufficient to satisfy them that it was the same debt
as the one described in the deed from Orr to Elgar, and therefore
the principle of law that the allegations in the parties' pleadings
and their proofs shall correspond has no application.
The last exception, after setting out certain evidence given by
the plaintiff without even stating that it was all the evidence,
states
Page 39 U. S. 31
that the defendant prayed an instruction that upon that
evidence, the plaintiff was not entitled to recover either upon the
first, or second, or third, or fourth counts in the declaration,
which instruction the court refused to give, and we think very
properly. Whether evidence is admissible or not is a question for
the court to decide; but whether it is sufficient or not to support
the issue is a question for the jury. This Court said, in
United States v.
Laub, 12 Pet. 5,
"It is a point too well settled to be now drawn in question that
the effect and sufficiency of the evidence are for the
consideration and determination of the jury."
And this proceeds upon this obvious principle. It is the
province of the jury to decide what facts are proven. It is
competent to them to draw from the evidence before them all such
inferences and conclusions as that evidence conduces to prove. If
the court were to tell them that upon a given state of evidence,
the plaintiff could or could not recover, then they must, in the
assumption of what facts were proven, either discard from their
consideration such inferences as the jury might draw or they must
themselves deduce them. The first course would injure the party
offering the evidence; the second would be an usurpation of the
office of the jury. The only case in which the court can make such
inferences and pass upon the sufficiency of the evidence is by a
demurrer to evidence. This would be the case even if the bill of
exception professed to state all the evidence; but the one which we
are now considering does not profess to do this, and we cannot
assume that it was all. For aught that appears on this record,
there was other evidence; it is enough, however, that it does not
appear that the evidence stated upon which the instruction was
asked was all.
Having now finished our examination of the several exceptions,
we will very briefly notice some points which were pressed upon the
consideration of the court. It was said that the deed of trust from
Orr to Elgar under which the lot in question was sold was made to
indemnify Lane as endorser of Orr's note; that the Patriotic Bank
had no right to call upon the trustee to sell it; that its only
right was in a court of equity to ask to be substituted to the
rights of Lane. But upon examining the deed of trust, we find in it
a provision that upon Lane's being sued, the trustee shall sell the
lot, and after paying the expenses of the sale, apply the proceeds
to the discharge of the notes of Orr, endorsed by Lane, of which
the note on which the suit was brought against Lane was one, so
that this agreement fails in its foundation. We entirely concur
with the doctrine laid down in 1 Johns.Ch. 205, 3 Johns.Ch. 261,
that where a trust is created for the benefit of a third party,
though without his knowledge at the time, he may affirm the trust
and enforce its execution. The truth is that although the object of
the deed of trust was to secure Lane, its provision, that, in the
event which happened of his being sued, the property should be
sold, and the notes which he had endorsed, should be paid, was the
most effectual means of attaining that
Page 39 U. S. 32
object; these notes were due to the bank, were held by it, and
in paying them, therefore, the money must be paid to the bank.
Hence the trustee was authorized to sell at its instance, and to
pay it the amount.
It was also argued that the judgment against Lane was barred by
the act of limitations, and that therefore the trustee was not
authorized to sell for the purpose of paying a debt which could not
be enforced; the provision of the deed which we have already
referred to furnishes an answer also to this objection, for even if
it were barred, the claim was in full force under the trust in the
deed. For although the judgment extinguished the right of action
upon the note, yet upon well established principle it did not
operate at all by way of extinguishment of the collateral remedy
under the deed of trust, though it had relation to and was intended
to secure the payment of the same note. The result, then, of this
state of things is that the property bought by the defendant in
error of the plaintiff in error, was legally sold under an elder
subsisting lien, and thus he was utterly divested of all title, so
as to show an entire failure of the consideration for which he paid
his money and to enable him to maintain an action for money had and
received to recover it back. We think that there is no error in the
judgment; it is therefore
Affirmed with costs.
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
Columbia holden in and for the County of Washington, and was argued
by counsel, on consideration whereof it is ordered and adjudged by
this Court, that the judgment of the said circuit court in this
cause be and the same is hereby affirmed with costs and damages at
the rate of six percent per annum.
