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HOPKINS et al. v. ORR et al.1
1. ASSUMPSIT-COMMON AND SPECIAL COUNTS-PLEADING AND PROOF.
In assumpsit, under a declaration containing a special count on a promissory note, and also the common counts, a note varying from the one specially pleaded is admissible, under the common counts, as evidence of money had and received, in connection with evidence that defendant admitted his indebtedness upon the note. 2. TRIAL-VERDICT-FORM-OMISSION OF "DOLLARS."
The omission of the word "dollars," in a verdict for plaintiff in assumpsit, is not such a defect as to prevent entry of judgment upon it.
3. APPEAL-REVIEW-FINAL DECISION.
Under Prince's Laws N. M. c. 16, §7; Comp. St. N. M. § 2190, providing that the supreme court shall reverse or affirm the judgment of the district court on the facts in the record alone, the court is authorized to affirm a judgment rendered upon a general verdict for plaintiffs, if the facts support any count in the declaration. 4. SAME-DECISION-LIABILITY OF SURETIES ON APPEAL-BOND.
Under Prince's Laws N. M. c. 45, § 5; Comp. St. N. M. § 2206, providing that the judgment of the appellate court, if against appellant, shall be rendered against him and his sureties on his appeal-bond, a judgment of the supreme court affirming the judgment of the district court as to the principal sum due, and also as to part of the interest, plaintiffs remitting the excess, may be rendered against appellant's sureties as well as himself.
In Error to the Supreme Court of the Territory of New Mexico.
This was an action of assumpsit, brought April 3, 1882, by Orr & Lindsley against Hopkins, in a district court of the territory of New Mexico. The declaration contained a special count on a promissory note for $1,314.65 made by the defendant on October 1, 1881, and the common counts for the like sum due on that day for goods sold, for money lent, for money paid, and for money had and received. The plaintiffs filed with their declaration the following
ST. LOUIS, October 1, 1881.
"Four months after date I, the subscriber, of Ft. Wingate, county of State of New Mexico, promise to pay to the order of Orr and Lindsley (a firm composed of William C. Orr and De Courcey B. Lindsley,) thirteen hundred and fourteen 65-100 dollars, with exchange, for value received, with interest at the rate of ten per cent. per annum after maturity until paid, without defalcation or discount, negotiable and payable at 1st National Bank, Santa Fé, N. M. "L. N. HOPKINS, JR."
The description of the note in the special count corresponded with the note filed, except that it did not state that the note was payable with exchange, and at a particular place. The defendant pleaded non-assumpsit, and payment. At the trial, the plaintiffs put in evidence the note filed, and. were permitted to read it to the jury, notwithstanding the defendant objected that there was a variance between the note and the declaration. The only other evidence introduced was testimony of the plaintiffs' attorney that, on March 7, 1882, he presented this note to the defendant, and the defendant admitted the indebtedness, and asked him not to bring suit upon it before April 1st, and on that day he would pay it; but he failed to do so. The defendant objected to the evidence as incompetent and immaterial. But the court overruled the objection, and instructed the jury to find for the plaintiffs for $1,399.48, being the amount of the note, with interest computed at the rate of 10 per cent. The jury returned a verdict saying that "they find for the plaintiff in sum of thirteen hundred and ninety-nine and 48-100." The court overruled motions for a new trial and in arrest of judgment, and gave judgment "that the said plaintiffs do have and recover from the said defendant Lambert N. Hopkins the said sum of thirteen hundred and ninety-nine and 48-100 ($1,399.48,) and also his costs in their behalf laid out and expended, to be taxed, but that execution shall
1 Affirming 1 Pac. Rep. 181, 3 Pac. Rep. 61.
not issue therefor until further order of the court." The defendant appealed to the supreme court of the territory, and executed to the plaintiffs a bond, with sureties, the condition of which was that "the said Lambert N. Hopkins shall prosecute his said appeal with due diligence to a decision in the supreme court, and that if the judgment appealed from be affirmed, or the appeal be dismissed, he will perform the judgment of the district court, and that he will also pay the cost and damage that may be adjudged against him upon his said appeal." Thereupon the district court allowed the appeal, ordered execution to be stayed while it was pending, and allowed a bill of exceptions tendered by the defendant to the rulings aforesaid. The supreme court of the territory held that there was a variance between the special count and the note offered in evidence, but that the note was admissible in evidence, under the common counts, and that, under those counts and the statutes of the territory, the plaintiffs were entitled to recover the sum of $1,314.65, with interest thereon, computed at the rate of 6 instead of 10 per cent.; and ordered that, if the plaintiffs should file a remittitur of the excess of 4 per cent. interest, the judgment of the district court be affirmed; but, if they should fail to do so, the judgment be reversed, and the case remanded for a new trial. Thereupon the plaintiffs filed such a remittitur; and the supreme court of the territory affirmed the judgment of the district court against the defendant and the sureties on his appeal-bond, and adjudged that the plaintiffs recover against them the sum of $1,314.65, and interest at the rate of 6 per cent. The defendant and the sureties sued out this writ of error.
John H. Knaebel and O D. Barrett, for plaintiffs in error. H. W. Garnett and W. B. Childers, for defendants in error.
Mr. Justice GRAY, after stating the facts as above, delivered the opinion of the court.
It was not contended in either of the courts of the territory that any question of fact should have been submitted to the jury; but the contest was upon the sufficiency of the evidence and the verdict, in matter of law, to support a judgment for the plaintiffs. Upon the testimony that the defendant admitted his indebtedness on the note given in evidence, that note, though varying from the description in the special count, was admissible under the common counts as evidence of money had and received by the defendant to the plaintiffs' use. Grant v. Vaughan, 3 Burrows, 1516; Page v. Bank, 7 Wheat. 35; Goodwin v. Morse, 9 Metc. 278. And by the statutes of the territory the sum so admitted to be due bore interest at the rate of 6 per cent. Prince, Laws, c. 79, § 4; Comp. St. § 1734.
The omission of the word "dollars" in the verdict was not such a defect as to prevent the rendering of judgment according to the manifest intent of the jury, although it might have been more regular to amend the verdict before judgment. Parks v. Turner, 12 How. 39; Beall v. Territory, 1 N. M. 507, 519.
It was argued for the defendant that, under the rule recognized in Maryland v. Baldwin, 112 U. S. 490, 5 Sup. Ct. Rep. 278, the verdict being general on all the counts, and the evidence not supporting the special count, no judgment could be rendered on the verdict without first amending it so as to limit it to the common counts. But the technical rule of the common law in this matter has been changed by statute in many parts of the United States. Bond v. Dustin, 112 U. S. 604, 5 Sup. Ct. Rep. 296. In New Mexico that rule has been abrogated by the statute of the territory, by which "the supreme court, in appeals or writs of error, shall examine the record, and on the facts therein contained alone shall award a new trial, reverse, or affirm the judgment of the district court, or give such other judgment as to them shall seem agreeable to law." Prince, Laws, c. 16, § 7; Comp. St. § 2190. The manifest object of the statute is, not merely to restrain the appellate court from going
outside of the record, but to enable it to render such a judgment as, upon a consideration of the whole record, justice may appear to require. The supreme court of the territory was therefore authorized to affirm the judgment rendered by the district court upon the general verdict for the plaintiffs, if the facts contained in the record supported any count in the declaration, as we have seen that they did. And there can be no doubt of its authority to make its affirmance of the judgment conditional upon the plaintiffs, remitting part of the interest awarded below. Bank v. Ashley, 2 Pet. 327.
The statutes of the territory further enact that, on an appeal from the judgment of a district court, execution shall be stayed upon the appellant's giving bond, with sureties, such as was given in this case, "conditioned that the appellant shall prosecute his appeal with due diligence to a decision in the supreme court, and that if the judgment or decision appealed from be affirmed, or the appeal be dismissed, he will perform the judgment of the district court, and that he will also pay the costs and damages that may be adjudged against him upon his appeal." Prince, Laws, c. 16, § 4; Comp. St. § 2194. They also contain a general provision that, "in case of appeal in civil suits, if the judgment of the appellate court be against the appellant, it shall be rendered against him and his securities in the appeal-bond;" and this court has adjudged that provision to be valid. Prince, Laws, c. 45, § 5; Comp. St. § 2206; Beall v. New Mexico, 16 Wall. 535; Moore v. Huntington, 17 Wall. 417.
By the judgment of the supreme court of the territory, affirming the judgment of the district court as to the principal sum due, and also as to interest to the extent of 6 per cent. upon the plaintiffs, remitting the excess of 4 per cent. interest, the judgment of the district court was affirmed, within the meaning of the territorial statutes and of the appeal-bond. Butt v. Stinger, 4 Cranch, C. C. 252; Page v. Johnson, 1 D. Chip. 338.
The result is, that the judgment of the supreme court of the territory was rightly rendered for the plaintiffs against the sureties in the bond, as well as against the principal defendant, and must be affirmed.
KNIGHT v. PAXTON.1
1. ESTATES-LIFE-ESTATE-CONDITIONAL FEE-TITLE TO SUPPORT CONVEYANCE. By antenuptial settlement, a party conveyed land to his brother in trust for his intended wife, for life, with remainder to the child or children of the intended marriage, if any, and, in case she died childless, remainder to another person for life, with reversion over to the grantor. After the marriage, and before the birth of any children, the trustee and the other cestui que trust conveyed the land to the wife, for the purpose, as stated in the deed, of determining the trust, the husband witnessing the deed. Held, that the title so vested in the wife that she was bound by a trust deed of the property afterwards made by her..
2. HUSBAND AND WIFE-CONVEYANCE BY WIFE-ACKNOWLEDGMENT-ILLINOIS ACT OF 1869.
Under Act Ill. March 27, 1869,-providing that any feme covert above the age of 18 joining with her husband in the execution of any deed, mortgage, or other writing relating to land, shall be bound by the same as if she were sole and of full age, and that the acknowledgment of such instrument may be the same as if she were sole, a conveyance of the wife's land, executed by husband and wife, but not acknowledged by her, passes her title, subject only to homestead rights, which are governed by a different statute.
Appeal from the Circuit Court of the United States for the Northern District of Illinois.
This is a suit brought by James W. Paxton against James M. Marshall and Susan C. Marshall, his wife. James M. Marshall died pending suit, and his widow became Susan C. Knight. The complainant obtained a decree in the circuit court, and Mrs. Knight appeals.
1 Affirming 18 Fed. Rep. 361.
Geo. L. Paddock, for appellant. L. H. Boutell, for appellee.
FIELD, J. This suit was brought by James W. Paxton, the complainant below, in the circuit court of the United States for the Northern district of Illinois, to obtain a decree that so much of certain described real property, situated in Chicago, as was of the value of $1,000, be set off to the defendants for their homestead, and that the possession of the residue be delivered to him; or, if the premises could not be divided, that the possession of the whole be delivered to him on his paying into court, for the use of the defendants, the sum of $1,000. The facts, as set forth in the bill, are in substance as follows: On the thirteenth of February, 1872, James M. Marshall, of Chicago, being indebted to the complainant in the sum of $10,000, executed and delivered to one Francis Bradley his bond of that date, in the penal sum of $20,000, conditioned to pay the amount of that indebtedness on the thirteenth of February, 1877, with semi-annual interest; and also 10 coupon notes, each for $450, payable to the order of the said Francis Bradley. The bond and coupon notes were on the same day assigned to the complainant, and Marshall and his wife at once executed a deed of the real property mentioned to one Lyman Baird, in trust for the security of the principal and interest of the bond and the coupon notes, and subject to a condition of defeasance on their payment according to their terms, and the performance of the covenants mentioned therein. This deed purported to be acknowledged by Marshall and his wife, and was, on the following day, recorded in the recorder's office of the county. Default having been made in the payment of the principal sum, the trustee, Baird, at the request of the complainant, and by virtue of the power contained in the trust deed, on the eighth of March, 1879, sold the premises, and the title and equity of redemption of the grantors therein, for the sum of $10,000, to the complainant, he being the highest bidder therefor. A deed thereof was executed to him by the trustee. Immediately afterwards he demanded possession of the premises from Marshall and his wife, who were, when the trust deed was executed, in the occupation of the premises as a residence. But they refused to surrender them, and about a year afterwards set up that Susan Marshall, the wife, had never acknowledged the deed of trust, and by reason of this fact her homestead right in the premises had never been released. The bill alleged that this was the first knowledge the complainant ever had of any such claim, and that he always believed the trust deed was properly acknowledged by both Marshall and his wife, and that thereby they had released all their right in the premises under the homestead laws of Illinois.
The bill also alleged that the value of the premises was greatly in excess of the value of the homestead rights therein, and that the complainant was entitled to the possession of so much thereof as might not be set off to the defendants for a homestead, or, in case the premises were incapable of division, he was entitled to the whole of them on payment into court of the sum of $1,000 for the use of the defendants, which payment he offered to make. The bill concluded with a prayer for a decree in accordance with these averments, as stated above, and for such other and further relief as the nature of the case might require.
Soon after the bill was filed, James M. Marshall died, and his widow filed a separate answer, setting up four defenses: First, that the premises in question were conveyed on the twenty-first of November, 1860, by James M. Marshall, prior to her marriage with him, and in consideration thereof, to his brother, Thomas E. Marshall, in trust, as an antenuptial settlement, and therefore she was incapable of executing the trust deed of February 13, 1872; second, that at the time this latter deed was signed she was confined to her bed by sickness, and by reason thereof, and the effect of narcotics prescribed by her physician to relieve her pain, she had not sufficient mental capacity to read and v.8s.c.-38
understand it; third, that when she signed it her husband falsely stated to her that it related to other property, which was situated in a different part of the city of Chicago; and, fourth, that after the bond secured by that deed became due, the time for payment was extended by the complainant in consideration of a rate of interest greater than that originally stipulated.
Of these objections, the first is the only one which requires consideration by this court. The other three are not sustained by the evidence in the case. That which bears upon them is vague and conflicting, seldom engendering a doubt, and never producing conviction. The deed of trust constituting the antenuptial settlement was executed by James M. Marshall to his brother, Thomas E. Marshall, in trust for the appellant, Susan C. Larmon, whom he was about to marry, for her life, and in case of her death, leaving any child or children of the intended marriage, for such child or children, and in case she died without child or children, then for Susan C. Marshall and Ophelia K. Larmon, for life, with remainder to James M. Marshall and his heirs. On the eighteenth of May, 1867, Thomas E. Marshall, the trustee named in the deed of marriage settlement, and the said Susan C. Marshall and Ophelia K. Larmon, conveyed the premises to the wife, for the purpose, as stated in the deed, of determining the trust, and vesting in her absolutely all rights, legal or equitable, which they might have under the deed of marriage settlement. James M. Marshall, the husband, witnessed this deed, and at the time there were no children born to her. This deed was properly acknowledged by all the grantors, and recorded soon afterwards in the recorder's office of the county. In it all parties then living, interested in the property, or who could by any possibility become interested, united, except James M. Marshall, the husband, who was a witness to its execution. Whether there could afterwards be any restraint upon her alienation of the fee of the property by reason of the subsequent birth of a child or children of the marriage, it is unnecessary to decide. There was none upon the alienation of the life-estate when the trust deed, in the nature of a mortgage, was executed to the complainant in February, 1872. Was she bound by that deed, assuming, as found by the court, that she never acknowledged its execution before the officer whose certificate of acknowledgment it bore? This question, we think, is answered by the statutes of Illinois. Previous to March 27, 1869, an acknowledgement by a married woman before a qualified officer was essential to the valid execution of her conveyance of real property. But on that date and act was passed, the first section of which is as follows: "Any feme covert being above the age of eighteen years, joining with her husband in the execution of any deed, mortgage, conveyance, power of attorney, or other writing of or relating to the sale, conveyance, or other disposition of lands or real estate as aforesaid, shall be bound and concluded by the same, in respect to her right, title, claim, interest, or dower in such estate, as if she were sole and of full age, as aforesaid; and the acknowledgment or proof of such deed, mortgage, conveyance, power of attorney, or other writing may be the same as if she were sole." After the passage of this act the execution of a conveyance of real property by a married woman joining with her husband was sufficiently authenticated by her signature. It would seem that her acknowledgment of its execution before an officer authorized to take acknowledgments was only required to render it admissible as evidence without further proof, or to release her homestead right in the property. For its validity as a transfer of the grantor's interest, except as to the homestead rights therein, the acknowledgment was unnecessary.
In Hogan v. Hogan, 89 Ill. 428, the supreme court of Illinois had occasion to speak both of the statute contained in the revision of 1845, and of that of 1869. Of the statute in the revision of 1845 it said: "Under said statute it was only in the precise mode prescribed thereby,-by the husband joining in the execution of the deed, and by a certificate showing an acknowledgment in substantial compliance with the statutory requirements,-that the wife