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JULY 1929.

V Lucas Crpeland.

Can it be true, that a party against whom a judgment is fraudulently obtained, is remediless; or am I to be told that chancery extends her protecting arms to his relief? This cannot be, for that tribunal only lends her aid where the forums which administer law according to strict justice, are incompetent to give relief because of their constrained application of the general cannons of right to each particular case. Does this case form such an exception? I apprehend not. The general principles of law control the adjudication of both Courts. The powers of the two Courts, on questions of fraud, when the fraud can be discovered, are co-ordinate. If the defence be not authorized by law, equity cannot, therefore, interpose. To affirm its right to do so, supposes that chancery can administer relief where the law is deficient, by making rules for the decision of each particular case. This idea prevailed at the first institution of Courts of Equity, but has been exploded by more correct notions of jurisprudence. The idea advanced in argument, that the plea of fraud is tantamount to that of nul tiel record, and therefore demurrable, is not well founded. It might, with equal propriety be said, that the plea of fraud to debt on bond, is in effect non est factum, and therefore bad.

But on the sufficiency of the plea in this case, I concur in the opinion of the Court, and am therefore, for affirming the judgment :

By JUDGE PERRY. I concur in the views taken in the opinion delivered by Judge Collier. JUDGE CRENSHAW, not sitting.

Judgment affirmed,

INNERARITY v. KENNEDY AND KITCHENS.

1. In an action of trespass to try titles, a deed made to the plaintiff, as ai.

ministrator, is admissible evidence. 2. The words, “as administrator," are to be considered as descriptio per.

sone, merely,

JAMES INNERARITY, in 1827, brought an action of trespass to try titles, against Joshua Kennedy, in Mobile Circuit Court; to recover the possession of a piece of ground in the city of Mobile. Samuel Kitchens was, by consent, substituted as defendant to the action, and pleaded the JULY 1829. general issue; and at the special February term, in 1828, of said Court, a verdict was found for the defendant. By Innerarity a bill of exceptions taken by the plaintiff at the trial, it is Kennedy and shewn, that to support the issue on his part, the plaintiff Kitchens. offered in evidence, a deed made by William E. Kennedy, dated the 2d of March, 1820, which recites, that whereas he claimed a certain lot of seven acres, under a sale made to him by one Baudin, who held it under a title from the Spanish Governor, Gayoso, dated in 1798; and whereas, by articles of agreement made in 1806, between the said Kennedy and the late Joseph E. Collins, deputy surveyor of West Florida, who had also a permit or order of survey for the same land, it was stipulated that they should divide the tract between them, so that the northern part should belong to Kennedy, and the southern part to said Collins; with a further stipulation, that Kennedy should fence, ditch and improve the land, to prevent its forfeiture; and reciting that he had given evidence to the land commissioners, that he had done so, under his particular claim, no such evidence having been given by the person who claimed for Collins; and whereas, Innerarity, the plaintiff, had been appointed in Mobile, administrator of Collins' estate; that from regard to the memory of Collins, and for the further consideration of one dollar, paid by James Innerarity, administrator of said estate, he the said William E. Kennedy did bargain, sell, remise and quit claim to 6 James Innerarity, administrator of said estate, and to all, and every, and each person, who should purchase the said described premises, or any part thereof, at an administrators' sale of real estate, made in pursuance of the laws thereto applicable, and the legal order of the Court having the power to make such order, and all, and every, and each of their heirs," all the right he then had, or thereafter might have to the southern half of said premises, according to said articles of agreement, which he thereby ratified and confirmed, together with all the reversions, &c. and all his estate, both at law and in equity, &c.” To which was added a covenant, that if a further title of confirmation or patent was obtained from the General Government, for the said land, that he and his heirs were bound to execute such further conveyances to " said J. Innerarity, administrator, or to his legal assigns, or the heirs of said Collins, as the case of right should be, as they or any of them should demand for the premises."

V.

JULY 1829. To this deed, Joshua Kennedy was a witness, and it was

n acknowledged before the clerk of the inferior Court of Innerarity Mobile county. The article of agreement referred to was Kennedy and appended to the deed; it purported to be a grant of the one Kitchens. half of the premises above described, to be held by Ken

nedy, on condition of his fencing and ditching the lot immediately, to prevent its forfeiture. The detendant's counsel objected to the said deed as evidence, and the Court, on the ground that the deed conveyed no legal title to the plaintiff, rejected it. This was the error assigned by Innerarity, the plaintiff in this Court.

ACRE, for the appellant.

Elliott, for the appellees. The deeed was properly excluded; the probata should legally correspond with the allegata contained in the declaration. The plaintiff declares for the lands in his own right, and produces a deed executed to him in his fiduciary character, and as administrator of the estate of Collins; and this deed is made in conformity with the articles of agreement made with Collins in his lifetime, and which constituted the sole consideration for making it.

The fact that the articles of agreement were the only evidence of consideration, and in fact, constituted a part of the deed itself, proves that the words bas administra. tor of, &c.” were not intended as the plaintiffs' counsel insist, as descriptio personæ; but that they were used ignorantia juris, to pass the estate to the heirs of Collins. This was the intention; but this the plaintiff has entirely disregarded, and has sued in his own right. At law, if the deed could have any validity, it could only be as evidence in an action brought by the plaintiff in his representative capacity. 4 The plaintiff is bound to elect the right under which he will claim, he cannot in the same action, claim the fee, and also claim as trustee for the heirs at law. But we contend, that at law, the deed is a nullity; though in cquity, it might be otherwise. The deed does not pass the estate to the plaintiff in his own right, and it cannot support his action; he must recover on the strength of his own title, and not on the weakness of his adversary's, 1 and his title must be a legal title, and not only a legal title, but he must establish a right in himself, to enter, to posses, and to enjoy; this the deed certainly does not shew, e

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By JUDGE COLLIER. The material question for the JULY 1829. Court to determine, is, whether the deed of William E. Kennedy to the plaintiff should not have been permitted Innerarity to go in evidence to the jury in the Court below. The Kennedy and deed contains several recitals, descriptive of the lot con- Kitchens. veyed, and declaratory of the cause of the conveyance, none of which it is conceived impair its validity; and then conveys the lot to the plaintiff, as administrator of J. E. Collins, deceased, and covenants that if the grantor's title to the lot shall be confirmed, or a certificate of confirmation issue therefor from the United States Government, that then he will, if necessary, make further assurance of title. The lot conveyed is south of the thirty first degree of north latitude, east of the Pearl, and west of the Perdido river. The grantor in the deed refers to his title as emanating from the Spanish Governor, Gayoso, in seventeen hundred and ninety-eight. This deed, in the opinion of the Court, conycys to the plaintiff, all title which was vested in the grantor, and there is nothing, on the face of it, which discovers that the legal title was not vested in him. The covenant for further assurance, if further assurance were unnecessary to pass the legal title, would be rejected; whether it was, the Court is unprepared from the facts to say.

The deed, it has been remarked, makes a conveyance to the plaintiff as administrator of J. E. Collins, deceaed, and hence the defendant has argued, is not admissible for the plaintiff in this action in his individual capacity. This argument, it is believed is not sustainable; describing the plaintiff as administrator, can be viewed only as a designatio personæ. a The legal interest is vested in him indi- al Peters 693. vidually, and it is competent for him to use the deed -as evidence in an action where his representative character is not noticed on the record. The plaintiff will be answerable over, should he recover, to the heirs of his intestate; but that circumstance cannot form matter of legal defence to the plaintiff's action. So strict is the regard paid in Courts of law to the legal title, that a trustee is permitted there, to maintain an action to try title against his cestui que trust. 6 If the deed had been made to the plaintiff in

Ejectment 22 his individual character, and he had described himself on 33. the record as administrator, we apprehend the proof would have been variant from the allegation, and he must have failed in his action; but such a case is not analogous to the one we are considering. We are of opinion that the Court

Adams

JULY 1829. erred in not permitting the deed to go to the jury; its suf

ficiency to prove the issue is not presented to us, but only Innerarity its admissibility; and on that point is our opinion expressKennedy and ed. The judgment is reversed and the cause remanded. Kitchens.

TAYLOR y. RuskING.

t. The lessee of a ferry is the person liable to the penalty of $10, imposed

by the statute of 1820, for neglect. 2. But where a person is employed on shares, and for an indefinite time,

though he has the exclusive control and management during his employment, yet he is to be cousidered as a servant, and not a lessee; and the

owner is liable. 3. When a penalty has accrued to an individual, under a statute, it is a vest

ed ri nd the repeal of the statute pending a writ of error does not divest it, but the Court may go on to render a judgment.

This was an appeal tried in the Circuit Court of Autauga county. George Taylor had obtained a judgment against B. Rushing, as the owner of a public ferry, for ten dollars, as a penalty incurred by reason of his being detained at the public ferry of said Rushing. On the trial of the appeal, the proof was, that the ferry belonged to Rushing, and had been regularly established by the County Court; that in May, 1926, the plaintiff had been detained two hours on account of the absence of the ferryman. It was proved that before and after this time, Rushing kept the ferry himself, but that at this time one Allen was keeping it; that he had been engaged by Rushing to do so, and that they were to share the proceeds, as also the profits of a hatter's shop, which Allen carried on at the same time; that Allen was to have the entire control of the ferry, but he did not give to Rushing any bond or obligation to keep it according to law. No specific time was fixed by the agreement, during which Allen should keep the ferry, but it was understood he would keep it a year; he did not, however, keep it a year; but soon after the above named time, he declined keeping it any longer. On this proof, the Circuit Court cave jui'gment for the defendant, on the ground, that as Allen had the whole control of the ferry, it was tantamount to a lease of it to him, and that the

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