Buchannon v. Upshaw. 1 H. such an instrument. During this time, Upshaw had no valid title to the land, although there can be no doubt he thought the Virginia patent valid; still, he could not have coerced payment from Buckner until 1826, when the patent from the United States was obtained, had the latter resisted payment on this ground. Under all the circumstances, we think Upshaw did not forfeit his right to demand the purchase-money from the complainants. Shackleford sold to Buckner two tracts of land, one of a thousand acres, and this in controversy of seven hundred acres, for the gross sum of £1020, and obtained £600 on Anderson's bond, in part payment. It is insisted that this sum must be applied in discharge of the complainants, as seven hundred is to one thousand; and that they are only bound for the residue. The complainants are compelled to rely on Upshaw's contracts of 1801 and 1803, to maintain their claim to relief, and to affirm them in all their parts. By these contracts, it appears the seven hundred acre tract was estimated at £420, and that no part of the purchasemoney for this tract had then been paid by Buckner; he was concluded from asserting the contrary, and so are the complainants. * • The next question is, from what time are the complain- [ 87 ] ants bound to pay interest on the unpaid purchase-money. They insist from the time Upshaw obtained his patent from the United States, in 1826. Respondent insists he is entitled to interest from the time the debt fell due against Buckner, or the 1st of January, 1799. Until the complainants were notified that, as purchasers of Upshaw's title, they were responsible to him for the purchasemoney, and recognized as his debtors, they had no opportunity to make payment, as to them, the debt was payable on demand, express or implied. Respondent admits in the answer that he neither pursued the land, or the purchasers under Buckner, until he failed to obtain payment from the latter. His first assertion of claim, was by the suit in ejectment in 1818; after which the purchasers cannot be heard to say they remained ignorant of the defects in their own title, or of Upshaw's rights; it was imposed upon them to trace up the outstanding equities, favorable and unfavorable. Had they done so, the contracts of 1801 and 1803, would have been discovered, and the state of the title explained; this complainants did in 1831; and it could have been done quite as conveniently in 1818. We therefore deem the suit equivalent to a demand. That Upshaw had no legal title in 1818, is no excuse. The complainants entered upon, occupied, and enjoyed the fruits of the land, under his title; and could no more be allowed to disavow it while Buchannon v. Upshaw. 1 H. they remained in possession, than could a tenant for years be per mitted to disavow his landlord's title. So in effect this court held in Galloway v. Finley, 12 Pet. 264. But being remote purchasers of Upshaw's title; not from him, but another, and only bound to pay the purchase-money by the rules adopted by courts of chancery; by the same rules, the complainants are entitled to an abatement of interest in part, accruing on Buckner's contract; and as the right to receive interest depends on the time when Upshaw notified them that they were held responsible for Buckner's failure to pay, and the action of ejectment, of October, 1818, being equivalent to a demand of payment, legal interest accrued from that date. This we deem a well-founded principle, where a personal demand existed upon real security, and is brought forward at a late [88] day. Interest may be allowed at the discretion of the court, only from the time of filing the bill, in such cases. The rule is established in the court of chancery in England, and can be properly applied in this case. Pickering v. Lord Stamford, 2 Ves. Jr. 272, 582. And under similar circumstances, it equally applies where mesne profits are claimed. Acherly v. Roe, 5 Ves. 565. We order that the $200 paid to O'Bannon be deducted from the £420; leaving $1,200 due; on this sum interest will be allowed from the 15th of October, 1818, until paid. As the record does not show when the action of ejectment was brought, we assume the middle of the month as the true time, the interest to be after the rate of six per cent. per annum. The purchase-money will be apportioned among the complainants, according to the original value of the several tracts when purchased from Buckner, and the price paid to him taken as the measure of value. Those claiming under Buckner's vendees, will be governed by the same rule, of their vendor's. If the money is not paid in a limited time, sales will be ordered, of all or any of the tracts, at the discretion of the circuit court, to raise the money. The injunction at law, in so far as to restrain the writ of possession, will be made perpetual, but will be dissolved as to the judgment for costs, so that an execution may issue to collect them. The costs of this suit in the circuit court, will be equally divided between the complainants and the respondent, Upshaw; they paying half, and he the other half; and the complainants will contribute among each other, in the same proportion that they are bound to do in discharging the decree for the purchase-money. The appellee, Upshaw, will pay the costs of this court. On the complainants discharging the purchase-money, the contract between Buckner and Shackleford will be assigned to them by City of Mobile v. Emanuel. 1 H. Upshaw, if he is required to do so, and he will also be decreed to execute deeds to the complainants for the tracts they respectively claim, in such form, and with such covenants, as the circuit court shall direct. The decree of the circuit court for the mesne profits, falls of course by the reversal of the principal decree. 1 H. 189. JONATHAN STROUT and others, Libellants, &c., Appellants, v. JAMES FOSTER and others, Claimants, and owners of the ship Louisville. 1 H. 89. THIS was an appeal from the circuit court of the United States for the district of Louisiana, in a cause of collision. This court was equally divided upon the question of reversal of the decree of the circuit court, and therefore no opinion was pronounced. MAYOR AND ALDERMEN OF THE CITY OF MOBILE, Plaintiffs, v. J. EMANUEL and G. S. GAINES, Defendants. 1 H. 95. The City of Mobile v. Hallett, 16 Pet. 261, affirmed and applied to this case. THE case is stated in the opinion of the court. Test, for the plaintiffs. Sergeanst, contrà. M'LEAN, J., delivered the opinion of the court. This cause is brought to this court by a writ of error to the supreme court of Alabama. An action of trespass to try the title to a certain lot or piece of ground in the city of Mobile, was commenced by the plaintiffs against the defendants, in the circuit court of the State. Issue being joined, a jury were empanelled, who rendered a verdict of not guilty. As the right of the plaintiffs was asserted; exclusively, under an act of congress, and the decision being against that right, the plaintiffs, having excepted to certain rulings of the court on the trial, prosecuted this writ of error, under the 25th section of the Judiciary Act of 1789.1 City of Mobile v. Emanuel. 1 H. The bill of exceptions states that it was proved the defendants were in possession of the premises described in the declaration, at the time the suit was brought. An act of congress, entitled "An act, granting certain lots of ground to the corporation of the city of Mobile, and to cer[99] tain individuals of said city," passed 26th May, 1824,' was read; also "a resolution of the mayor and aldermen of the city of Mobile, passed the 23d day of April, 1834, in the following words: Resolved, that the map of the city as now shown to the board, be accepted and approved; and it is further resolved that the names of the streets be the same as heretofore established.'' It was also proved by the plaintiffs that the map referred to was one published by Goodwin and Haise, a copperplate copy of which was offered in evidence; a copy of such parts of said map as is necessary to refer to is annexed. It was also proved that there never had been a street in Mobile known as North Boundary street. And also, that the premises in question were situate, in May, 1824, between Church street, south of Adams street, and below high water as well as low water mark and the channel of the river. It was also proved that the premises were north of St. Louis street, as laid out in said map, and that in 1824, Water street did not extend to St. Louis street, and that at that time buildings were few and scattered above St. Louis street. The defendant offered in evidence a grant from the Spanish gov ernment, and proved that they claimed title to the premises under that grant. The court charged the jury, "that, if the place in controversy was, subsequent to the admission of this State into the Union, below both high and low water mark, then congress had no right to grant it; and if defendants were in possession, the plaintiffs could not oust them, by virtue of the act of congress. That the grant to Forbes extended to high-water mark, and that if the place claimed was between high-water mark and the channel, in front of the grant, and had been reclaimed by the defendants, then the plaintiffs could not recover in virtue of the act of congress, and this, notwithstanding the reservation of the right of way specified in the confirmation of the grant to Forbes." It appeared that on the 9th January, 1767, the English government, being then in possession of the country, had granted the land in controversy to William Richardson; and that a grant of the same land was made to John Forbes and Co., the assignees of Richardson, by 14 Stats. at Large, 66. City of Mobile v. Emanuel. 1 H. In the River [* 100 ] the Spanish authority, the 26th September, 1807. The case was removed by writ of error from the circuit court to the supreme court of the State, in which judgment was affirmed. The first section of the act of 1824, referred to in the bill of exceptions, vests in the mayor and aldermen of the city of Mobile, for the time being, and their successors in office, for the sole use and benefit of the city, forever, all the right and claim of the United States to all the lots not sold or confirmed to individuals, either by that or any former act, and to which no equitable title exists in favor of an individual under that or any other act, between high-water mark and the channel of the river, and between Church street and North Boundary street, in front of the city." And the second section of the act "excepts from the operation of the law, cases where the Spanish government had made a new grant or order of survey for the same, during the time at which they had the power to grant the same; in which case, the right and claim of the United States shall be and is hereby vested in the person to whom such alienation, grant, or order of survey, was made, or in his legal representative." In principle, this case is similar to that of the City of Mobile v. Hallett, 16 Pet. 261. In that cause the court say: "From the bill of exceptions, it appears, that the defendant was in possession of the land in controversy, under a Spanish grant, which was confirmed by the United States; and that the land extended to the Mobile River. It was then within the exception in the act of 1824, and no right vested in the plaintiffs. We think, therefore, that the instruction of the circuit court to this effect, was right." The same language is equally applicable to the case under consideration. And it appears that the judgment of the circuit court was affirmed by the supreme court of Alabama, on the ground that "there was no vacant space between high and low water mark; all having been sold and confirmed to Forbes," under his Spanish grant. The Spanish grant being an exception in the act, under which the plaintiffs claim, the instruction of the circuit court in favor of the defendant was correct. The judgment of the supreme court of Alabama is affirmed. CATRON, J., dissented. [101] The premises in controversy lie in front of the city of Mobile, and are claimed by the corporation, by virtue of the act of |