Gratz v. Philips

The opinion of the court -was delivered by Huston, J. I shall attempt to give a statement of this case; the facts of which, in the order in which they were submitted in the Circuit Court, and here, it wms not easy to comprehend at first view. , On 16th May, 1760, a partnership as merchants, or Indian traders, was entered into by Joseph Simon, Levy Andrew Levy, David Franks and William Trent. About 1762-3, the Indians plundered their storehouses, and they became involved in debts and difficulties; and then, or soon after, the partners ceased to do business as a firm. On the 4th January, 1769, William Trent gave a bond to David Franks and Joseph Simon, for eight thousand one hundred and sixty-four pounds, conditioned to pay four thousand and eighty-two pounds, the sum due them on settling the accounts.. How Levy Andrew Levy got out of the firm, or settled, does not appear. On the 28th February, 1769, William Trent gave to Franks and — 347 — Simon, a mortgage on seven thousand five hundred acres of land in Cumberland county, (this is the only description,) and some other imaginary property, to secure the above bonds, and the debt due on them. William Trent, besides the above debt to the creditor partners of the company, owed a private account to Joseph Simon, to secure which, he, on the same 4th January, 1709, gave to Simon his bond for eight hundred and eighty-five pounds fourteen shillings, conditioned to pay four hundred and forty-two pounds seventeen shillings, on 4th January, 1770.. Before the date of this bond, viz: 12th January, 1764, Andrezo Foster had conveyed to Captain John Proctor, five hundred acres of land on Mahony creek, John Foster had conveyed to the same, three hundred acres, and William Foster, one thousand acres.- On the same day, Proctor conveyed to Trent and Joseph Spear,the same lands. On the 22d June, 1764, Spear conveyed his' moiety to Trent. On the same day on which Trent gave' the above mentioned mortgage to Franks and Simon, viz, 28th February, 1769, they conveyed their moiety of these lands got from Spear, to Joseph Simon. The conveyance is endorsed on the back of Spear’s deed. The lands are here called ten tracts, said to contain three thousand eight hundred and fifty acres; the consideration in the deed, five shillings. The other moiety belonged to Coxe and Peters. But another paper was given in evidence, dated 4th January, 1769, and signed by Joseph Simon, in which he recites a debt of eight hundred and eighty-five pounds fourteen shillings, conditioned to pay four hundred and forty-two , pounds and seventeen shillings, which would be due in two weeks.. That indenture witnessed, that on the said William Trent or George Croghan, for him, making over to said Joseph Simoji, as security. for his debt, the full quantity of five thousand acres of land, out of’ a tract of land which said Trent holds in company with George Croghan, on the head of the river Delaware, in the county Albany, and province of New York, and the said Croghan engaging to have it effectually transferred to said Simon, as security for the debt aforesaid, and the said William Trent, making over likewise, a quantity of land purchased of John Proctor, (the half of which belonged to William Coxe and Richard Peters,) then the said Joseph Simon doth agree, that the payment of the said- debt be deferred for one year, and a new bond taken for the same, payable in one year from that date. And further, there was offered and received in evidence, a defeasance to the deed of 28th February,, 1769, dated the same day, and signed Levy Andrew Levy for Joseph Simon; this made the deed of the same date a mortgage to secure the debt of four hundred forty-two pounds seventeen shillings., — 348 — This made it proper to introduce evidence as to payment of the bond, and that was as follows: On the back of the bond was endorsed a receipt, dated 28th December, 1781, for a bond for three hundred forty-five pounds nine shillings and six pence, on account of interest. A bond, dated 28th December, 1782, from Trent to Simon, for seven hundred ninety pounds and seventeen shillings, conditioned for the payment of three hundred forty-five pounds nine shillings and six pence; and another bond dated 20th March, 1784, same to same, for one hundred ninety pounds fifteen shillings and eleven pence, conditioned for the payment of ninety-five pounds seven shillings and eleven pence, in one year. Among the lands which came through Proctor, were three tracts on Middle creek, in the names of William Coase, William Trent and Christian Dunegan. This part of the case must be kept in mind; for the greatest part of the difficulty and dispute in this cause, arose from a real or supposed confusion of the tracts conveyed to Simon alone for his own debt, with other lands hereafter to be mentioned, which were conveyed to him by Trent, in payment of the debt to him and Franks, The validity of the defeasance, and the authority of Levy Andrew Leroy, to sign it for Joseph Simon, was also contested. The next fact, in order of time was, that on the 4th of January, 1779, William Trent, for the purpose of discharging the mortgage to Franks and Simon, conveyed to Simon one thousand nine hundred and twelve acres of land, at twenty shillings per acre, and a receipt for one thousand nine hundred and twelve pounds, was that day endorsed on the bond. And on the 26th April, 1779, he also conveyed three thousand five[hundred and sixteen acres, at the same price of twenty shillings per acre, to Joseph Simon, for the same purpose. Among the tracts, (and the respective quantity of each was specified,) were five tracts in George’s Valley. It may be noted here, that on the face of the deed, these whole’three thousand five hundred and sixteen acres were conveyed expressly on account of the partnership debt; and these payments deducted from the principal and interest of the bond, would leave about three thousand dollars still due. In-1786, David Franks being in London, and indebted to one Amos playton, executed a deed of trust to Tench Coxe and Isaac Hazelhurst, of certain specified lands, (none of those herein before mentioned,) and all the personal estate and effects of said David Franks, in North America, and also, all debts and sums of money due and; owing to said Franks, from any persons in America, in trust, to pay the debt to Amos Hayton, and the residue to Franks. ' On the 18th May, 1790, David Franks, recites the bond and mortgage from- Trent, to himself and Simon, and in consideration — 349 — of a debt due to Bernard and Michael Gratz, of one thousand nine hundred sixty-eight pounds two shillings and two pence, and a debt to Michael Gratz of six hundred and twenty-four pounds, he assigns to them all his interest in said bond and mortgage, reserving to Joseph Simon his expenses respecting the premises, over and above his {Simon’s,) one half of said bo?id and mortgage. And in case the proceeds of the said mortgage should exceed his debt to Gratz, the overplus for David Franks. Along with this assignment and of the same date, Franks drew an order on Joseph Simon, to pay to Bernard and Michael Grate, one half part of what should be received on the bond and mortgage. This was presented to Joseph Simon, and by him accepted on 22d May, 1790. Joseph Simon had at this time sued out a levari facias on the mortgage, and levied it on fifteen tracts of land in Northumberland county; of which three were purchased by strangers, ten by Joseph Simon, and two in the name of Levi Philips, but treated by Simon as his own ever after. On 2d August, 1790, there is a declaration of trust by Joseph Simon, in favour of Bernard and Michael Gratz, which recites the assignment of Franks to Grate, and adds, “ provided nevertheless, that if hereafter the said assignment should prove invalid, then this present acknowledgment shall be null and void.” This declares Michael Grate joint owner with Simon in the lands purchased, and in the money received from those who had purchased the three tracts: and promised, as the lands should be sold, to pay to Michael Grate one half of the proceeds. It mentions ten tracts. 20th May, 1802, Lem Philips, who was the son-in-law and clerk of Simon, informs Simon Grate, then acting for his father Michael Grate, that Thomas Billington was claiming under the assignment to Iiayton. 23d May, Simon Grate replies, he had long known of that claim, and that the assignment was not available, &c. On the 26th July, 1802, Simon Grata, as attorney for Michael Grate, gives to Joseph Simon a bond of indemnity against the pretended assignment of David Franks, so far as it may be used to affect the rights of Simon to the mortgaged lands. Same day Levi Philips, for Joseph Simon, and in his presence, gives a new declaration of trust to Michael Grate, for the lands purchased; and promises to pay over half of the money, as soon as it is received from the sale of the lands. On the 12th January, 1804, another deed of trust was executed by Joseph Simon, like the last. John F. Mifflin, claimed the lands bought in under the mortgage and brought an ejectment for them; and on 30th December, 1802, Mifflin, Simon and Grate made an agreement, by which Mifflin got three of the tracts bought by Simon, and one bought by Philips. Simon and Grate got the remaining eight tracts, and one half oi — 350 — seventeen tracts, which Mifflin claimed, and which they claimed under the mortgage for seven thousand five hundred acres. 24th January, 1804, Joseph Simon died, having first made his last will and testament, by which he appointed the defendants to be iiis executors I now go back to Franks’ assignment to Hayton. On the 16th May, 1793, Tench Coxe and Isaac Hazelhurst and David Franks jnacíe an assignment to George Davis. On the 24th July, 1806, George Davis, assigned to Simon Gratz. This suit was brought to recover one half of the money actually received since the death of Joseph Simon, from the sales of the eight tracts contained in the sheriff’s deed to Simon, and the declarations of trust, and not ceded to Mifflin, and one-fourth of the purchase money received by defendants from the sale of the seventeen tracts, of which Mifflin was half owner, and Simon and Gratz, were joint owners of the other half. Of the preceding, the defendants gave in evidence all that related to the private debt from Trent to Franks. All the deeds from the Fosters to Proctor, from Proctor to Spear and Trent, and Trent to Simon. A partition was made between Trent, Coxe and Peters, on the 8tb of April, 1769, by which the tracts in the names of William Trent, William Coxe, and Christian Dunegan, fell to Trent; and as defendants alleged, thus became the exclusive property of Joseph Simon. They showed, that in the adjustment with Miffli7i, the tract in the name of Willia?n Trent, was allotted to Mifflin, and the other two, Coxe’s and Dunegan’s, had been sold by defendants; and although these three tracts had been levied on as Trent’s by the sheriff of Northumberland, and sold as forming part of the seven thousand five hundred acres, and bought by SÍ7no?i, and a trust as to half of them ■declared for Gratz, yet they alleged all this was mistake. They proved that Joseph Simon could not read or write, except Ms name. T hey also gave evidence to show that Joseph Simon, through his whole life, (under a mistake to be sure,) considered the George’s Valley lands, as those called the Proctor lands. That the expenses, taxes, &c. of the other lands were charged in his books, one half to David Franks, while he was owner, and after the assignment bv Franks to Grato, were charged to Grato; while in his hooks, all charges arising on the George’s Valley lands, were made as arising ■from his own land, and that many of these entries were made by Simon Grato, who lived with Joseph Simon, his grand father. They showed that he leased them, mortgaged them as his own on the 28th June, 1790, and afterwards discharged the mortgage; that Simon Gralz, witnessed an agreement, for the sale of one of them, and knew the whole transaction, and the mistake, as appeared by his lei ter to one of the defendants, soon after the death of Joseph Si-Mon. — 351 — The defendants also gave in evidence the assignment of Franks to Coxe and Hazelhurst, in 1786; the subsequent assignment of Franks, Coxe and Hazelhurst to Davis in 1793, and that of Davis to Simon Gratz in 1806. The defendants then offered in evidence an action of account render, No. 6, of July term, 1807, Michael Gratz against the present defendants, as executors of Joseph Simon, deceased, which as amended stands, — Michael Gratz, surviving partner, and who had been jointly interested with Bernard Gh-atz, deceased, to show that if the mistakes were mutual, and both parties acted on the supposition, that the “George’s Valley lands” were the “ Proctor lands,” that the plaintiffs have not acted as partners under the deeds of trust of 1790-1802 and 1804, by Simon to Michael Gratz, but had recovered the eleven-twelfths of the price for which Simon sold them-; and, that so far, he had rendered Franks’ assignment to Gratz invalid, and therefore the deed of trust became null and void. And they further offered the deposition of Zalegman Philips, counsel in that cause, to prove what was then claimed by the plaintiffs, and other matters. The court rejected the record, and that part of the deposition which related to what was claimed and proved in that cause. To understand this, it is necessary to examine, for what the former suit was brought, and by whom, and against whom. When Joseph Simon, in January, 1779, took nineteen hundred and twelve acres of land, for nineteen hundred and twelve pounds; and in April, three thousand five hundred and sixteen acres, for three thousand five hundred and sixteen pounds, in payment of the mortgage, he held those lands by previous or subsequent agreement, in trust tor himself and David Franks, and after the assignment by Franks to Bernard and Michael Gratz, in trust for himself and the Messrs. Gratz’s, as is alleged, and shown by both parties. He sold certain of those lands, particularly the five tracts in George’s Valley and two others, in his lifetime, and received the purchase money. In the account render suit offered in evidence, Michael Gratz, in his own right, (for he had a separate bond of his own secured by the assignment,) andas surviving partner of Bernard Gratz, sued for an account of those specified lands, stating and describing them; and that they were held in partnership by Joseph Simon, and Bernard and Michael Gratz. The account made out by the auditors, states each tract, and the price at which it sold ; but strange as it may seem, they give to Joseph Simon one-twelfth part only, and the other eleven parts to the plaintiff. The exceptions to the report not being filed in time, it was confirmed. 3 Bin. 474. It appears by the admissions and proof in this cause, that there the plaintiffs declared on one contract and recovered on a different, and even an inconsistent one. Bernard Gratz never had any interest in the Hayloti — 352 — deed: it was purchased by Michael'Gratz, after Bernard’s death, which appears in that record to have been in 1804. Besides, under the evidence given in this cause, that Joseph Simon applied to Gratz respecting this claim, and was told it was worthless, it could not be that the partner who thus informed him, should afterwards purchase it for a mere trifle, and use it to its full amount against his partner, at least not as to partnership property. 5 Johns. Chan. 407. Add to this the bond of indemnity given by Gratz to Simon, that it should not affect the partnership claim under the mortgage; which I would consider a covenant that it should not. It presents a case to my mind, without the least shadow of doubt, but we cannot reverse or affect that judgment; nor can we, as is asked, give credit in this suit, although it is an equitable action, for wbat Michael Grat<& recovered, there beyond his share; because that would in effect be reversing that judgment; and because this suit is between different parties, and to settle the accounts of a different partnership. When in 1790, Joseph Simon and Michael Gh-atz purchased the lands at sheriff’s sale, the purchase money belonged to Joseph Simon, Bernard and Michael Gratz. -The lands purchased belonging to Joseph Simon and Michael Gratz, and they held them, not under the mortgage, and old partnership, which were ended by the sale, hut under the sheriff’s deed and the contract, of which the several deeds of trust of 1790, 1802 and 1804, are the evidence. This suit is not against the estate of Joseph Simon, hut against the defendants as trustees of moneys received by them in that capacity; and not for any thing received by Joseph Simon, in his lifetime. Whatever remedy then (if there is anjf) the estate of Joseph Simon may have against the plaintiffs, on account of the former agreements and proceedings on them, it must he in some other action; for this purpose, that record, was not evidence in this case. But it was offered in another view, to show that there was a former suit, and that in that suit, the plaintiffs in this cause alleged and showed, that Joseph Simon, during all the latter part of his life, was impressed with the belief, that the “ George’s Valley lands,” were the “Proctor lands,” and his individual property; that the plaintiff then proved this to he a mistake, and that the tracts in the names of William Coxe, William Trent, and Christian Dunegan, were really the “ Proctor lands,”' and that the plaintiff then recovered on this proof. And they contended that if the plaintiffs then recovered the price of the “ George’s Valley lands,” on proving the mistake, defendants here ought to be discharged from accounting for the price of the William Coxe and Christian Dunegan tracts. The plaintiffs reply, that by levying on, and selling those tracts, as included in the mortgage, and executing the several deeds of trust, the defendants are estoppe'd from setting up any other title. I do not think the last deeds of trust make the matter any stronger than if it had been — 353 — left on the first, under the circumstances of this case. And as the plaintiffs themselves proved the mistake, and recovered, I think the defendants ought to be permitted to show this, and to show also, the real state of facts: and unless some cause is shown why it should be so, I do not see why the same party shall correct the mistake when he gains by it, and hold the other party to it, when he would gain by holding him to it. I am not to be understood as giving an opinion of what ought to be the final decision on this point; that must depend on all the evidence: I only say the evidence ought to be admitted, as important in the decision.. But it is said next, that the deed from Trent to Simon for the “Proctor lands” was only a mortgage, and that the mortgage is to be presumed paid from lapse of time. Of this last I doubt, under the circumstances of the poverty of Trent, till his death, and other matters in this cause. Presumption met by presumption is for the jury. In deciding whether this was a mortgage, the deed or writing of defeasance, signed Leroy Andrew Levy for Joseph Simon, is of primary importance: although not under seal, yet it operates^ to destroy a deed under seal, and to take away the title to lands.. It affects not the property of the firm of which Levy Andrew Levy was a partner, but the private estate of Joseph Simon. I think it much stronger than the case of Shaub and Withers, decided this term. I did not agree to that caste, but am bound by it. But by the evidence he had no authority: he says, “I never executed any other deed of defeasance than the one in question. I frequently wrote letters, signed receipts, and other papers of consequence for him, by which he at all times considered himself bound. I kept all his books of accounts, for upwards of thirty years; never had a written power of attorney.” Now to me this presents the idea of a clerk in a store, or acting partner, and not an attorney in law or fact as to lands. lie does not say any of those important papers; related to lands, or that he had authority to execute this, or that Joseph Simon knew of it. And the testimony of A. Etting goes no farther. We think this paper ought not to have been received. But what difference can it make in this cause, if it is once found by a jury, that the whole proceeding as to the tracts Coxe and Dunegan, is a mistake and error, whether they belonged to Joseph Simon, exclusively, or to William Trent’s heirs, and Simon was only mortgagee? In either case the plaintiffs have no claim to them. And if the plaintiffs’ right to them fails, it would be improper in us to decide between Simon’s heirs and Trent’s heirs; the latter are not before us. I am of opinion then, that the record of the action of account render was admissable, not for the purpose of revising, correcting, or in any way affecting that judgment, but to show there was a former suit, and to let in proof, if such there be, that in that cause — 354 — the plaintiffs proved the Coxe and Dunegan tracts to be the “ Procter lands,” and that Joseph Simon was mistaken as to these and “ George’s Valley lands,” as being material evidence in deciding whether the plaintiffs are entitled to the proceeds of those two tracts. Ey the bye, it seems as if this record was never presented to the chief justice who tried the cause, in that point of view. And, I am also of opinion, that the defeasance signed by Levy Andrew Levy, for Joseph Simon, was not evidence. Mr. Gralz has been called an innocent purchaser, and this insisted on; it is true he was a joint purchaser of lands sold by the sheriff on a mortgage, the joint property of Simon and Gratz, though the name of Gratz was not in the mortgage. Who directed the levy does not appear; each had an equal right to do it. The purchase was a mere arrangement; being owners of the mortgage, neither paid any thing; it extinguished so much of a joint debt. Neither of them purchased from the other, or paid any thing to the other. There is nothing in the case to show that Grata would have agreed to receive half the price at which the lands sold, and let Simon keep the lands. The price bid for the whole ten tracts, was only one thousand and thirty-two pounds eight shillings. At all events, the mortgage, > (though I by no means say it was not an absolute deed,) was not extinguished by lapse of time, in 1790. Trent had been paying or renewing the securities in 1785; and Simon having purchased and taken possession'of these Coxe and Dimegan tracts, and no claim by Trent or his heirs, it will be for the court and jury to say, whether his claims can now be opposed to that of Joseph Simon; and if not, the right to the price of these_ two tracts, must depend on the fact of complete mistake in Joseph Simon, or not. I now come to the objections to the action. There had been a prior suit between the parties, but in which the defendants were sued as executors of Joseph Simon. Wearied with the contest, they agreed to discontinue that suit, and entered the present amicable suit. It contains the following clause, “ it is agreed that the arbitrators shall have no power in relation to any lands, unsold at the time of instituting this suit; and that no advantage be taken by either party as to the form of the suit, or the liability of the parties in it.” It is now contended, that the parties defendants, being trustees, each was alone liable for what each received; and that Leah Philips, being the wife of Levi Philips, could not be sued, nor could any judgment be rendered against her. These objections, or at least one of them, was before the court, and decided. 14 Serg. & Rawle, 144. There never couldjbe any doubt about it. There are often difficulties in proving which of two trustees actually receives the money; and the circumstances which will excuse or make liable all of them. They may waive all testimony — 355 — on this point, and agree to be liable: and it is greatly unreasonable, after thus putting the plaintiffs at ease on this point, to move for a new trial, because they did not prove what was expressly admitted. Defendants were all executors of Joseph Simon, and trustees of these lands; they knew their own situation, and how the money received, had been divided among them; they have put it out of their power to object on this account, in this suit. But another objection is made, that Leah Philips is the wife of Levi Philips, and a married woman, and cannot be sued, or cannot enter into an amicable action. A number of cases on this point were cited, and positions laid down, which were contrary to common impressions and constant practice. A wife may be sued together with a husband, for a debt of the wife before marriage, and judgment rendered against both. A wife executrix, whether so constituted before or after her marriage, may be sued with the other executors, nay must be; or if sole executrix, sued with her husband: and in either case, after judgment against her as executrix, may have a devastavit fixed on her and her estate, and her personal or real estate sold on it. Her husband and she may bring an ejectment for her lands, and two verdicts and judgments will bind and bar her right forever — so if she is defendant. Her husband and she may, nay her husband alone, may- have partition or valuation, under our intestate acts; and her husband and she may be plaintiffs or defendants, in a writ of partition at common law, which under our acts of assembly may eventuate in a sale of the lands, and division of the money. In ail these cases the husband can appoint an attorney at law for himself and wife, and she is bound, both during his life, and after; except perhaps, on proving actual fraud. A husband may submit to arbitration out of court, the rights of his wife, either as an individual, or as executrix or administratrix, and she is bound. And I take it now, in this State, wherever a husband and wife can sue or be sued, by adversary process, an amicable action can be entered, and she and her rights are as much bound as if the proceeding had been adversary. It is only in pais that her rights to land are not affected, except by a separate examination. In court no such thing is required. The affairs of this world require that disputes should be ended. The married women are interested. It is not true in fact that Husbands wish to destroy the property or rights of their wives; and we cannot acton that principle. In chancery, if a married woman is a trustee alone, or jointly with her husband, or with others, she must be brought in; and as the chancellor decrees against each, according to their several faults, the decree effects her and her estate, or not, according as the justice of the case requires. — 356 — Cases have been cited making a difference between the decisions at law and in chancery, as to a husband’s liability; and between his liability where he marries an executrix, and where she becomes so aftér marriage. A husband who marries a woman, is liable in all actions, and to all demands during coverture, which could have been brought against her if sole; whether they are against her as an individual, or executrix, or trustee. If she was executrix before marriage, and she is not sued in his life time, the common law gave no remedy against his representatives; for there must be first a suit against the executrix and judgment de bonis testatoris, before she would be fixed for a devastavit, and' his representatives could not be sued as representatives of the testator. In such case, on a bill in equity, they did not hold his representatives liable in every case. If the goods were wasted before he married the executrix, his estate was not liable. If the devastavit was after marriage, (as it must be if she was made executrix after, or might be if she had the goods when he married her,) his estate was liable. For the law in such case gave him the control and management of them. And this is the real and substantial distinction, and the dicta in 3 Brown’s Chan. 323, are mistakes of the reporter. The law was thus .perfectly settled before 1776, and so settled since the case in 3d Brown, and as Brown is cited by every modern writer who turns compiler, and so is read; I refer to 1 Shoals and Le Fray. 248, Adair v. Shaw, where all the old cases are collected, and the above conclusion drawn. If the goods were left in specie at the death of the husband, his representatives were not liable; if laid out in landsor goods and left to the wife, she must answer for them, and if she was executrix, and the goods were given away, or released, and no benefit to him or her, his estate was liable in the first instance, and then hers, if she had any. The fiction of law that a wife has no understanding, and can do no wrong, has but a limited existence in chancery, where the matter is considered, more according to the fact and the reality of the ease. In this country a married woman cannot be imprisoned: If she has no estate of hpr own, a judgment against her and her husband cannot affect her more than a judgment against him. If she has an estate, and has acted in such a way as to make that estate liable by adversary suit, in which her husband must and could employ counsel for her, the same result may be produced by an amicable suit. This is not an application by her, to be relieved from a suit fraudulently entered by her husband in her name: The same counsel who signed the agreement for an amicable suit, make the motion; Where one objection has been made as to form of action, it must — 357 — be a very uncommon case, in which I would listen to another, .on a ground which existed before the time of the former. Gibson, G J. I join in granting a new trial, but for a reason common only to my brother Smith and myself; so that the judgment on this point, although conclusive between the parties, will not be a precedent for future cases. The action is against the defendents in their own right; and being for what was not a debt of the decedent, it could be brought against them in no other way. But a feme covert who, as such, can do no act nor incur any responsibility, can make no contract whatever. In actions to which she was liable at her marriage, and for torts and tresspasses during the coverture, she must be impleaded jointly with her husband, but that she cannot be impleaded on a contract made during the coverture, is as well established as any other fundamentál principle of the common law. Palm. 313. 16 Johns. 281, Edwards v. Davis. Mr. Philips would be exclusively chargeable for the receipts of his wife, which are in point of law his receipts, even though the money were paid into her hands as a trustee. It is on this principle alone, that a husband is chargeable for goods which have been received through the hands of his wife to his use. But the very case occurred in Grasser v. Eckert, 1 Bin, 575, where the wife was not allowed to be charged with her husband for money jointly had and received. If that case is to go for any thing, it negatives the notion of a special usage in analogy to the practice of courts of chancery, and asserts the broad principle of the common law. What is there, then, to distinguish it from the case at bar? Without her assent, neither her husband nor her attorney could subject Mrs. Philips to an action for what is not her proper debt. But what capacity had she to assent, or to become a willing party to the action, if she had no capacity to assent and become a party, to the cause of action? A joint promissory ncite would not have bound her. But if she may become a party to the action, she may doubtless still set up her original irresponsibility. By no means. She is again to be met by her agreement to waive objections on that and every other ground. The matter then comes to this, that although she is disabled by the common law from binding herself by contract, she is nevertheless able to subject herself to all the consequences of a contract, by volunteering as a defendant, and estopping herself by an agreement from asserting the original disabilty which the law interposed for her protection; and this, notwithstanding that such an agreement whether made by herself or some one on her behalf, is as much a contract as any which constitutes an original cause of action. As regards other important parts of the case, I have the misfortune to stand alone. Our difference of opinion in respect to these, — 358 — is attributable, it seems to me, to that comparative disadvantage in obtaining a precise knowledge of the circumstances, which is, always felt in a greater or less degree by the judges who have not tried the cause, and particularly a cause .'like the present, the transactors. of which are spread over a period of more than half a century. The paper book is made up of condensed memoranda of the evidence, and without a laborious investigation of a mass of documents which have not been furnished, it is unintelligible. It will therefore be necessary for me to develope the particular points, by separating and putting aside the facts and circumstances that do not immediately belong to them. It seems to be agreed that the record of the action of account render, was incompetent evidence, in the aspect in which it was presented. But as it is intimated that it may be competent in some other aspect, it is necessary to consider the recovery in that action in all its bearings. It is conceded that it cannot be unravelled here; but an intimation is given that it may have been a breach of the covenant of indemnity, the fallacy of which is made apparent, simply by ah exposition of the facts. Before his assignment to the Messrs. Gratxes, Franks had assigned his whole estate to trustees for payment of a particular debt; and when Mr. Simon executed the first declaration of trust in favor of Michael Grot», it was on condition that the assignment under which the latter claimed, should not prove invalid. Most clearly the purpose of this' condition was to secure Mr. Simon from being compelled to pay the proceeds of the lands twice — to Grata after having paid them to the trustees. The aim of Mr. Simon, who was a stakeholder, was to be secure in paying to the person entitled, all the monies in his hands as the estate of Franks — not protection from payment of a farthing which was not his own. Such was the nature of this condition, which however, is no further important than as it serves to explain the covenant of indemnity which supercedes it. After a recital of the premises of that covenant, that Grata is entitled to the effects in the hands of Mr. Simon, but that these were claimed under the previous assignment to the trustees, and that Mr. Simon was unwilling to decide, follows a declaration that Mr. Simon “ is willing to pay all the monies and to assign and set over all the effects which are, or were in the hands of the said David Franks, in his lifetime, or at the present time, to the said Simon Grata on being indemnified or kept harmless by reason thereof.” Accordingly Grata covenants to indemnify him against the demand of the trustees “ for any part of any money or effects, or other property belonging to the estate of David Franks in his (Simon’s) hands, which shall be paid, ' secured to be paid, assigned or set over to the said Simon Grata,” “so that the said Joseph Simon shall not now, nor at any time hereafter, come — 359 — to, or suffer any loss, damage, expense, or trouble, in, or by reason of the premises, or touching the monies, effects, or property so paid, assigned, or set over, to the said Simon Grata.” Thus the covenant is not that the trustees, or any one in their stead, may not recover any part of the estate of Franks, hut only such part as shall have been paid, or secured to be paid to Simon Grata as the agent of his father under the subsequent assignment. If then Simon Grata has not recovered on the title of the trustees, any thing which had been previously paid, or secured to be paid to himself or his father as -the representative of Bernard and Michael Gratz, he has broken neither the letter nor the covenant, which forbids no assertion of the right of the trustees that might not involve Mr. Simon in the consequences of a mispayment, Now the proceeds of the George’s Valley lands, which had not been included in any of the deeds of trust, had neither been paid, nor secured to be paid, to Michael or Simon Grata; and if Mr.'Simon’s estate has been compelled to pay no where, any thing that was not due somewhere, (and we are to suppose the recovery on account render to have been just,) what is the difference whether the recovery was under the one assignment or the other? Or how can it be said that the recovery was not, in fact, on the assignment to Bernard and Michael Gratz? Either assignment would pass the whole interest of Franks; and though in the order which accompanied the assignment to the Messrs. Gratzes, (which by the bye, is not necessarily a part of the title,) his interest in the mortgage is estimated at a moiety, yet if the estimate were erroneous, it would not restrain the operation of the assignment, or bind the rights of the parties under it. The same estimate is in Mr. Simon’s declaration of trust of the ten tracts, and the same remark is applicable to it, that it was no part of the title in the action of account render, which was brought for the'proceeds, not of those ten tracts, but of the George’s Valley lands, which had been conveyed in part payment of the mortgage long previously. There is nothing, then, in the way of an intendment that the recovery was under the assignment to Bernard and Michael Grata; and it is certainly no breach of the covenant that they have recovered, on that or any other title, if such he the fact, more than the sum to which they were in justice entitled; especially as the excess is chargeable to the supineness of Mr. Simon’s executors in omitting to file exceptions to the report of the auditors in due season. Indeed, if we take for granted what is assumed in the opinion of the court, that the recovery was actually as surviving partner of Michael Gratz, it would follow demonstrably, that it must have been on the assignment to the Messrs. Gratzes; for the title of the trustees never vested in Bernard, who was dead when it was got in by Simon Grata. But the fact is, that Michael brought the action in his own name, and counted — 360 — simply in his own right. .But whether the recovery were on the one title or the other, it is sufficient that nothing is to be paid twice by the estate of Mr. Simon in consequence of it; the contingency, against which the covenant was intended to guard, not having happened nor being about to happen. On what ground, then, can the record possibly be evidence? It is said to be admissible to shew that there was a former suit; that the plaintiff in that cause proved the tracts in the names of Coxe and Dunegan to be part of the Proctor lands; and that Mr. Simón was mistaken as to these and the George’s Valley lands. I believe these are nearly the words. It is admitted, then, that the record is not evidence as any independent fact; but as inducement, and to what? To the fact that the plaintiff proved on the trial of the action of account render, what no one has disputed here. That these two tracts are part of the Proctor lands, was taken for granted by all parties throughout the course of the trial, the only question having been, whether they had passed to Mr. Simon by the transfer of Spear’s deed. The question, of their identity with the Proctor lands, was altogether foreign to the action of account-render, which had for its object the proceeds of the George’s Valley lands, which had, at a different time, been conveyed to Mr. Simon in part satisfaction of the partnership debt; and whether these two tracts were part of any body of lands owned by Mi'. Simon on his separate account, was no part of the inquiry. It was sufficient for Mr. Gratz not to claim the price of them, that they were not sold. Neither do I perceive how the record tended, either directly or as an inducement, to show that Mr. Simon had confounded the Proctor and the George’s Valley lands. The action was brought after his death, and neither depended on, nor.contributed to illustrate the state of his belief; and as inducement to evidence of mistake, it was superfluous, the defendants having been let into all their proofs of the fact without it. But the truth is, their aim was an indirect one — not to make way for evidence of mistake, but to make the alleged mistake tell if proved, by evidence, aliunde. It was to persuade the jury that Simon Gratz had suffered his grandfather to die in ignorance of a fact material to his interest, and taken advantage of his own superior knowledge the moment he was gone. But the record was not offered in the aspect in which it is declared to have been competent; and, I therefore presume the new trial is granted exclusively for the admission of the defeasance executed by Mr. Levy. I must here take occasion to repeat what I said more than once at the argument, that this paper was admitted on other grounds than a supposed valid execution of it under a parol authority. It bears even date with the conveyance to Mr. Simon, to which it has reference, and was probably executed at the same time and place. — 361 — Add to this, that Mr. Simon was not only unlettered and dependent-in these matters on the services of his friends, but it had appeared in the evidence, that this form of execution, had been used by him in another instance, in which Mr. Philips, one of the defendants, executed a deed for him, in his presence, and as his attorney. On these proofs, I thought the instrument might go to the jury, leaving them to judge, from the circumstances, whether it had been executed in Mr. Simon’s presence and with his assent; and if so found, it would according to Shaub v. Withers, (ante,) 285, be his immediate deed. But not to insist upon this, there is another, and it seems to me an impregnable ground of competency, which I suggested on the trial and at the argument, without having since heard it contested. It is this. In addition to the circumstances just noted, the conveyance to Mr. Simon, was for the nominal consideration of five shillings, being accompanied with the grantors bond for the payment of a debt; and this bond and conveyance had been preceded by another deed, in which an acknowledgment of the debt is coupled with a declaration that these very lands among others were to be conveyed to Mr. Simoti to secure it. Mr. Levy who executed the defeasance as Mr. Simon’s attorney, was his confidential agent in transacting his current business, signing in that capacity receipts and other important papers in Mr. Simon’s name, who never testified dissatisfaction at any of his acts, but always on the contrary ratified them. Mr. Leroy, had however, executed no other deed than the one in question. All this was proved by the testimony of Mr. Etting and Mr. Leroy, in a way to ensure belief. Now then, if a mortgage was intended, of which there cannot be a rational doubt; and if a valid execution of the instrument was prevented by ignorance or mistake,, what would a chancellor do ? Where an agreement for a mortgage was drawn by the mortgagee, who omitted to insert a covenant for redemption, the mortgagor who was only a markman, was permitted to give evidence of the mistake, Joynes v. Slatham, 3 Atk. 389. Is not that the case at bar ? So where the mortgage was in two deeds, and the mortgagee omitted to execute the defeasance, Maxwell v. Montacute, Prec. Chan. 526, S. C. 1 Eq. ca. Abr. 19, pl. 4. 5. The very case again. So also where an absolute deed was made, and the grantee, instead of taking the profits, took the interest of his m'oney, this was given in evidence as explicative of the transaction, (id.) If then a chancellor would not shut his eyes on any of the attendant circumstances, he most surely would not shut them on the defectively executed defeasance, of all others the most powerful to show not only ignorance and mistake, but the precise nature of the meditated terms of the forbearance. What has our own court done ? In Wharf v. Hawel, 5 Bin. 499, where the question of mortgage or not, depended partly on parol evidence, the whole was left to the jury as matter of fact, particularly the — 362 — testimony of the scriviner who had told the parties that the defeasance in connexion with the absolute deed constituted a mortgage. If then the jury should be of opinion that the parties proceeded on an impression that the defeasance executed by Mr. Levy, constituted a mortgage at law, it shall be taken for such in equity. But how shall the jury judge of their impression, or the terms they had in view, without seeing the paper which contains those terms. Of their actual intent as Reducible from the contemplated defeasance in connexion with the other circumstances, it is impossible to doubt. At a time when there wh.s, as I have been, told by the late Mr. Justice Yeates, who came to the bar in 1766, but seven country lawyers in the Province, and consequently when every man was his own lawyer, it is by no means strange that these parties should have thought that a deed might be executed under a parol authority. My brother Huston himself, has just said, he would even now have thought so too, had it not been for our recent decision in Shaub v. Withers. From another position in the opinion of the court, I am constrained to dissent in explicit terms. Among the lands supposed to be bound by the mortgage, and by consequence actually bought in by Mr. Simon, are the two tracts in the names of Coxe and Dunegan. To rebut the claim of the plaintiffs to the price of these, the defendants attempted to show that they were bought in and included in the deed of trust by mistake, being in fact Mr. Simon’s own property under Trent’s conveyance for Mr. Simon’s separate debt. In reference to this, it is said in the opinion of the court, that if it be once proved to ajw~y that the whole proceeding as to these tracts was by mistake, then whether they belonged to Simon exclusively, or to Trent’s hekrs, Simon being but a mortgagee, — in either case the plaintiffs have no claim to them. I admit here, and I so directed the jury at the trial, that if Mr.v Simon ignorantly declared a trust of his own land, it would not bind him, and this whether the cestui que trust had shown the truth of the case on another occasion or not. And by the bye, nothing of the kind is pretended to have been shown in the. action of account render. Take it, however, according to the other alternative, that Mr. Simo?i was but a rriortgagee; and the facts connected with the presumption of payment from lapse of time, will stand thus. On the bond which accompanied the conveyance in 1769, there is endorsed a receipt for interest paid by a fresh bond in 1781. Again, in 1784, (not 1785, as assumed in the opinion of the court;) Trent gave Mr. Simon another bond, but whether for principal, or for interest due on the preceding, or for any other consideration, as there is no other receipt endorsed on either of them, cannot be conjectured. Then from 1781 to the inception of this suit in 1822,-is a period of forty-one years; or even from 1784 to 1822, is a period of thirty-eight years, during which no act was — 363 — done or step taken by Mr. Simon, to obtain satisfaction of this debt-It is said he took possession of these lands, and treated them as his own. It must be within the recollection of every one who heard the trial,- that not a spark of evidence was given to that effect, and that nothing of the sort was pretended. He, nor any of his representatives, has ever to this day, asserted a claim to these lands under' the deed for his separate debt, either as a mortgage or as an uncon' ditionai conveyance.- On the contrary, the purchase of them under the partnership mortgage,- was in direct disaffirmance of- his supposed title to them on his separate account. What act has he done, then, in assertion of this particular claim, or what is there to-account for his having done nothing 1 It is idle to assign Trent's• poverty as a reason for the delay, when these very lands might have been got if the debt had not been paid. If, then, this conveyance was originally a mortgage, of which there is no room to doubt, the presumption of payment from lapse of time is overwhelming; and if, as is neither impossible nor improbable, these tracts were included in the partnership mortgage also, then there is nothing in the case to distinguish them from the others. Take, it however,that they were not so included, and we have the case of lands purchased on joint account, by one of two joint mortgagees, and sold by him, after having executed a deed of trust to his companion,, from whom he detains his share of the price on the pretext that as-the land was, in fact, not included in the mortgage, neither has a- title. This would be a strange defence. Having purchased af their joint risk, they are jointly entitled to the profit, and that too, independently of any declaration of trust. What if the sheriff had sold to a stranger! He could not have set up want of consideration as a defence; and either mortgagee could have ruled the money into-court, and taken his share of it. But the land itself, being taken in lieu of the price of it, is to be treated as money and subjected to the same rights. Had the defendants sold with general warranty, they would have been entitled to retain till they should be secured to the amount of their share of the risk from eviction, but no warranty is pretended: moreover, the title of Trent's heirs is barred by the statute of limitations. There are, beside these, some other shades of difference between my view of the cause and that taken by the court; but what I have said, sufficiently indicates my reasons for thinking the verdict right on the merits. Smith, J. concurred with the chief justice in regard to the liability of Mrs. Philips; and with Huston J. as to the merits. Ross, J. concurred with Huston, J. Rogers, J. did not sit in the cause, having been of counsel with the defendants. Judgment set aside and a new trial ordered.