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LEWIS CURTIS and George Griswold, Trustees of the Appalachicola Land Company, Appellants,

adventure in the Superior, decline sending | The decree of the Circuit Court is reversed, 145*] another ship, as *requested by him, and and the cause is remanded to that court, with advise him to return home in the Superior, instructions to enter a decree in pursuance of making the best disposition he can of their this opinion. property, etc. At the date of this letter the Superior was probably on her return voyage, as she arrived at Valparaiso on the 5th of October following. There was no dissent from the terms proposed by Mathewson in his three letters, above referred to, and of course the law implies an acquiescence. Indeed, from the directions given by the company in regard to their property, a sanction, though a reluctant one, and somewhat indirect, was given to the proceedings of their agent, as connected with the Superior. The refusal to advance money to Mr. Mathewson, under the circumstances, does not seem to have any direct bearing on this point.

It is claimed for Mathewson, that the company purposely avoided sanctioning his acts in regard to the Superior, until the result of the adventure should be known, when they could act as their interests might dictate.

The use of the capital of the company, which subjected it to the hazards of trade, under the circumstances, would, on equitable principles, entitle the company to the profits of the enterprise. But looking at the declarations of Mathewson about the time the ship Superior was chartered, and the nature of the enterprise undertaken, we feel authorized to say, that the relation of the parties to each other was not changed by this adventure. The rule applied to the Mercury, in regard to the rights of the complainant and the responsibilities of the defendant, must be applied to the Superior.

After the appeal was taken to this court, errors being discovered in the report of the masters, by consent their report was returned to them for correction. And in their report to this court, dated the 1st of January, 1846, they say that they erred in their former report, in not making to Mathewson allowance for his commissions, and for his one tenth of the profits and earnings.

This last report finds a balance due to the complainant of two thousand nine hundred fifty-eight dollars and three cents; to which they add interest from the 1st of July, 1827, to January 2d, 1846, making three thousand two hundred eighty-three dollars and forty-one cents; which sum being added to the above balance makes the sum of six thousand two hundred forty-one dollars and forty-one cents.

From this sum must be deducted any amount charged for or against the defendant, by the

V.

JOHN and JAMES INNERARITY.

Florida wild lands-excuses for not paying interest on purchase price-civil law rule, vendee not liable for interest where he receives no profit from purchase, when applicableafter refusal to ratify agent's compromise and notice, money paid to agent at debtor's risk.

occupied by Indians, and the purchasers gave a

Where there was a sale of wild lands in Florida, mortgage to secure the payment of some outstanding installments of the purchase money, the fact that the purchasers had not complete possession of the lands is not a sufficient objection to their being charged with interest from the time the money was due.

They had paid a large part of the purchase money before the execution on the mortgage, without raising this objection, and the parties to the contract of sale knew that the Indians had possession of the lands as hunting-grounds.

The purchasers in a former suit averred that they had peaceable possession, and the vendors cannot be held responsible for a subsequent disturb

ance.

The doctrine of the civil law, viz., that the vendee is not liable for interest where he received no profits from the thing purchased." applies only to executory contracts where the price is contracted to be paid at some future day, and the contract is silent as to interest.

Nor is it an objection to the allowance of interand expense to obtain a recognition of his title. est, that the purchaser was put to much trouble

The claim to be released from interest, upon the ground that there was no person legally authorized to receive it, is not supported by the facts in this

case.

Where the vendor gave a power of attorney to an agent to receive a payment from the purchasers on account, and the agent gave a receipt in full for certain balances by way of adjustment and compromise, and the vendor disapproved of the acts of the agent, the payment is not good, even on account against the vendor.

The purchasers by making a payment in this way, upon certain terms which were not within the power of attorney, constituted the agent their agent. For two years afterwards they insisted upon the binding force of the acts of the agent to the extent to which he had given releases, and only claimed the payment to be on account when the agent became insolvent. It was then too late.

THI

masters in their reports, as the profits of tradeHIS was an appeal from the Court of Ap

or otherwise on his private account during the first voyage of the Mercury. And under the views expressed in this opinion, the complain146*] ant being interested in the *Mercury and her cargo in her voyage from Gibraltar, in December, 1822, the exceptions to any items charged against the defendant and allowed to the complainant, arising out of any private trading by the defendant on board the Mercury, and afterwards on board of the Superior, are overruled. The exceptions which apply to allowances made to the complainant against the defendant, growing out of the first voyage of the Mercury, ending at Gibraltar, are tained.

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peals for the Territory of Florida. All the material facts in the case are set forth in the opinion of the court.

The case was argued at the preceding term by Mr. Webster and Mr. Berrien for the appellants, and by Mr. Westcott and Mr. Jones for the appellees.

*Mr. Webster opened the case, on the [*147 part of the appellants, by stating all the circumstances of it. He then contended that the appellants were not properly chargeable with interest during the interval between the death of John Forbes in 1822, in Cuba, and their be

NOTE. As to how far failure of title is a defense to purchase price of lands, see note to 4 L. ed. U. S. 172.

ing a personal representative of his estate in the United States. There was nobody to whom a payment could rightfully have been made. Moreover, the purchasers did not come into possession until 1835, when a decree of this court confirmed their title. Previously to 'that both the commissioners and courts in Florida had rejected it. By the rules of the civil and Spanish law, the land when sold was warranted, and when this is the case, and the purchaser cannot get possession, no interest is payable. 1 Domat, 399, secs. 3, 4, 5, 75, 76, 79; 2 Wash. C. C. 204.

Under such circumstances, if notes are given for the purchase, chancery will restrain the vendor from collecting the notes until the incumbrances are cleared away. Of course interest would not run during this time. 2 Johns. Ch. R. 546; Colin Mitchell's case, 9 Peters, 711. We are entitled to a credit for the money paid to Blount under his power of attorney. The power was ample to receive money. If he went beyond it, it is an affair between his principal and himself. But the power extended to the receipt of the money which we paid. If what he did beyond his power can be separated from what he did within it, then the latter is good pro tanto. If it cannot be separated, perhaps the whole act is void. It is for the court to say whether the payment on our part of a specific sum of money cannot be distinguished from the releases which he gave. Story on agency, 204, sec. 170.

If he had power to receive money on behalf of the morgagee, he had power also to state an account and to give a receipt. So far his acts must be good, because a line can be drawn between them and his other acts.

Mr. Westcott, for the appellees, said that some of the facts stated by the opposite counsel did not appear upon the record. He therefore recapitulated the circumstances of the case as they were exhibited by the record. The installments were all payable in London according to the contract, and in deciding that they were not, the court below erred, for the acts of the parties and the terms of the contract showed the contrary. The mortgage was made in consequence of a settlement between Forbes and Mitchell for money then due. All prior payments were presumed to be adjusted and taken into the account. It was given for the last two 148*] installments, and the *time extended. The interest upon this extension would amount to a large sum, and the parties must be presumed to have had it in their minds. But it is said that we are not entitled to interest, because the contract was executed in Florida, and by the civil law no interest accrues until the vendee is placed in possession. Also, because there was no person legally authorized to receive the interest. With regard to the first point, where is the evidence, in this record, of any difficulty in obtaining possession? The record of a former case tried in this court shows that these parties then said they had been in undisturbed possession. The petitioners in that case were the assignees of Colin Mitchell.

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It is said, also, that by the civil law a sale implies a warranty, and Domat is cited. But |1 Domat does not give the laws of Spain which prevailed in Florida. It might be admitted that the civil law implies a warranty where

there is a sale of personal property. But it is not the rule as to sales of property where deeds are required. The French law is not the same with the Spanish. For example, Domat says it is not necessary that the vendee must be ousted, to entitle him to bring an action against the vendor. This may, perhaps, have been Roman law, but it is not Spanish. Johnson's laws of Spain 216, 217; in brackets, 195.

The Spaniards seem to have derived their law from the same source from which the common law of England came. In both, there must be an actual eviction. But in this case, the appellants say that they were disturbed in their possession by the United States, when the decision of this court shows that the United States had no title.

The contract is said to have been for the purchase and sale of wild lands which yielded no fruits. 1 Domat, book 3, sec. 14, p. 422, enumerates four classes of cases where interest is chargeable. One is when it depends on the agreement. It is true that in our case nothing is expressly said about interest, either in the contract or mortgage. But the intention of the parties must be the guide, and that can be gathered from the contract. The civil and common law agree in this. If the time of payment was fixed by the mortgage, new security taken and the time extended, these circumstances take the case out of the rule respecting wild lands, because they supervene upon the original contract. It was executed after the treaty with Spain was concluded. The change of flags took place in July, 1821. But in February, 1820, it was known that a treaty was concluded. Mitchell's purchase was in anticipation of the treaty. It is a case, then, to be governed by the civil law, contrary to the intention of the parties and to the equity of the *case? The court below allowed five per [*149 cent interest. But in August, 1822, the laws of Florida, p. 48, gave six per cent. cited from Wash. C. C. Rep. 250, is not in point. I refer to the same book, p. 253. On the general subject of interest, all the cases are cited in 2 Fonblanque, 423; in brackets, 425.

The case

But another reason given for not being charged with interest is, that there was no person authorized to receive the money. It is true that Forbes had no administrator in Florida until 1837; but he had an executor in Havana, and the contract was made there. The law is, that the party must show that he was willing and ready to pay before he can be excused. 3 Leigh, 619; Powell on Mort. 367, 368; 2 Tomlins' Law Dict. 247; 1 Ves. 222; Burge's Com. 754.

In the record, the appellants admit their liability to pay interest, and in the settlement with Forbes they actually pay five per cent. interest. If they put it upon the ground of a tender we reply that a tender must be strictly made, so that the tender of a less sum is no bar to interest. Powell on Mort. above; 3 Kent's Com. 450; Randolph, 465.

Payments must first be applied to interest. Halsted, 408; 1 Dall. 124.

As to Blount's power of attorney, he had only authority to receive money on account. He is prohibited in six different places from

giving a release in full. Such power must be strictly construed. Story on Agency, 63.

The appellants knew that we claimed $57,000, and yet took a release in full for $13,000. What did good faith require of them? Certain ly, to notify Innerarity; and yet, although the money was paid in October, 1839, he did not know it until May, 1840. As soon as he knew it, he disavowed it. The appellants purposely concealed it. [Mr. Westcott here examined many parts of the record to show this.]

With respect to the number of installments of £375 each which ought to be deducted, the appellants never claimed more than one in their answer, and yet the court allowed them two.

Mr. Jones, on the same side, said that most of the original parties were dead. The affirmative of the questions raised had to be proved by the appellants. They were sued below on a plain question of mortgage, and ought to have presented their defense long ago. Persons and documents were then existing, to clear up things which are now dark. The contract was made in 1817 between Forbes and Mitchell, both residing in the same jurisdiction. The first installment was provided for, leaving a balance of $50,000. Two years afterwards, a mortgage 150*] *was made, and now the appellants wish to go behind the contract and mortgage, too. Their claim is against strong presumption, and requires strict proof.

Mr. Berrien, in reply and conclusion, said that the evidence in the cause is very defective; but it is not the fault of the appellants. It is owing to the prosecution of a stale demand by the other side, after the evidence to resist it has in a great degree perished. The pleadings, also, are very irregular, and the record is strangely arranged; but the questions at issue can be discovered and fairly represented. The bill of Innerarity to foreclose, the answer of Curtis, the amended bill of John Innerarity, and the answer to it, are sufficient, without the proceedings upon the cross bill, to make the questions intelligible. These proceedings show that it is a bill to foreclose a mortgage by John Innerarity, as the administrator of Forbes, claiming $76,000; this claim is then reduced to $67,000, and subsequently to $28,000. In this last, we say there is error in the following points, and that the decree ought to be reversed:

1st. Because interest is calculated on each installment from the respective days of payment, when it ought only to have been allowed from the time of the demand made by filing the bill of foreclosure, or, at most, from the grant of letters of administration on the estate of John Forbes to John Innerarity, one of the complainants.

2d. Because the balance alleged to be due on an unpaid bill of exchange, given by Colin Mitchell, which was not secured by the mortgage, together with damages and interest, are allowed in the decree.

3d. Because the court refused to allow a deduction of £375 to be made from the amount due on the mortgage, notwithstanding the written acknowledgment of John Forbes that such deduction should be made.

4th. Because the court refused to allow, as a payment on the mortgage; the sum of thirteen thousand three hundred and fifty-seven

| dollars and seventy-three cents, received from the appellants by Thomas M. Blount, the agent and attorney of John Innerarity.

5th. Because costs are decreed against the appellants.

The date of the letters of administration is not in the record, but it must have been be-' tween 1835 and 1837.

1. Interest upon the two installments. The condition of the property was and is notorious. It was wild land, inhabited by Indians, and the record shows it. In the former case, which has been referred to, it is true that there was an averment, that the parties had been in undisputed possession, *but it [*151 was inserted merely to give the court jurisdic tion, and is contradicted by the evidence. The Indians were quiet whilst the Spanish government lasted, but became turbulent as soon as the change took place. The purchasers could not get possession of the property. By the civil law, interest is not payable, although a term be fixed for payment, which term has expired, unless the purchaser is put into possession, or the thing purchased is capable of producing fruits. 1 Domat, p. 397, 2d ed. tit. 5, sec. 1, art. 3.

But

The Spanish law must govern the case. the same doctrine is maintained in our country. 2 Wash. C. C. Rep. 253.

In Domat, p. 398, art. 5, it is said that if the cause produces no revenue, interest is due only where there is a demand. This court will officially take notice of acts of Congress and treaties, and these prohibit any exercise of ownership by claimant, until the title is settled. It has been said that there was no warranty in the deed. But by the civil law a warranty is implied. 1 Domat, p. 75, tit. 2, sec. 10; Ibid. p. 76.

By our own law, any disturbance would be a ground for an injunction to stay the collection of the purchase money. 2 Johns. Ch. R. 546.

Interest is given for money which is due and payable, but if it is not payable, according to the above case in Johnson, then no interest can be charged.

In the next place interest cannot be claimed because from 1822 to the grant of letters of administration (say in 1837) there was no person legally entitled to receive a payment or to release the mortgage. Forbe's executor in Cuba must be excepted from this remark; but an offer of payment was made to that executor and refused. The refusal is alleged in the bill, and admitted in the answer. How can the debtor be charged with interest, when, if he sought to pay his debt, there was no one to whom he could pay it who could give him a legal receipt? It is said that the debtor must give notice to the creditors that he had the money ready. But in the cases referred to there was some person authorized to receive such a notice; but here there was not. It is also said that we did pay interest, and therefore acknowledged our liability to pay. It is true that interest was paid, but by whom, and when? It was only when letters were taken out, and were not paid by the mortgager, but by the drawer of a bill of exchange-by Colin Mitchell; the mortgagor never paid any, and Colin Mitchell held no legal title. If interest

is due, therefore, it can only be due from | Company, for the foreclosure of a mortgage 1837.

2d point. As to the bill of exchange. The bill was not produced in the court be152*] low, but the court *say that the payment was made by the parties. But the payment was made by Colin Mitchell, and not the parties in the case. The judge therefore erred in a matter of fact. Payment of the bill could not have been enforced in a suit to foreclose the mortgage. It was given for the first installment due upon the mortgage, and must have been received either as payment or as collateral security. If as payment, then a lesser security than the mortgage has been accepted, and it is just as if we had paid in cash. If it was taken as collateral security, the bill should have been returned when not paid. Under a bill to foreclose the mortgage, it is impossible to collect damages on a protested bill of exchange. They should have sued the drawer, Colin Mitchell, at law upon the bill.

3d point. As to the £375.

The court below say that we claim two allowances of £375, whereas we formerly claimed only one.

given under the following circumstances:

was

On the 4th of December, 1818, John Forbes, acting as the executor of William Panton and Thomas Forbes, and as agent of their respective heirs, covenanted to sell to Colin Mitchell "two undivided thirds of a certain tract of land ceded by the Creek Indians unto the house of trade of which said Forbes the principal partner, lying upon and between the rivers Appalachicola and Appalachee, and containing about one million two hundred thousand acres, for the consideration of $66,666.66, to be paid in the following manner: One fourth, or $16.666, on the 1st of May next, in the city of London, valuing the same at four shillings and sixpence sterling eachı dollar; the remainder, or $50,000, in four equal yearly installments, reckoning from the date,” etc.

This agreement was made and executed in the island of Cuba, where John Forbes then resided. Colin Mitchell purchased for himself, Carnochan, and others, and subsequently took the title in his own name, and continued to hold it till 1820, when he transferred it to

[Mr. Berrien here entered into many calcula- | Octavius Mitchell, who held it as trustee for tions upon this matter.]

4th point. As to Blount's authority. The true rule upon this subject has been quoted by Mr. Webster from Story on Agency, secs. 166, 170. Where the acts of the agent within his authority are distinguishable from those beyond it, the former are good, and the latter only are void.

We say 1st. That the order was substantially executed.

2d. That the acts within the power are distinguishable from those beyond it.

The power which Blount had necessarily included a power to state an account and show what balance was due; and the receipt of $13,000 was clearly within the scope of his authority. The court below say that the payment was clogged with a condition which Innerarity could not accept, and therefore he was not bound to bear the loss. But there is nothing in the record to sustain this. Blount was president of a bank, was Innerarity's solicitor in the case, and his bosom friend. Innerarity says he did not know of this transaction until 1840, and the counsel on the other side complain that we were guilty of a fraud in not giving notice. But why should we give notice? The presumption was that the agent would report to his principal. We paid the money, and took a receipt. It was not our duty to give notice of it to the principal

Mr. Justice Grier delivered the opinion of the court:

It would contribute nothing to a clear apprehension of the merits of this case, to enumerate the various bills, answers, cross bills, etc., constituting the very voluminious and confused 153*] *mass of pleadings and documents spread upon our paper books. The pleadings have been consolidated, by agreement of the parties. We may, therefore, consider the case before us a bill by John Innerarity, administrator of the estate of John Forbes, deceased, against the trustees of the Appalachicola Land

the company then and afterwards known as the Appalachicola Land Company. On the 9th of October, 1820, Octavius Mitchell executed a mortgage to John Forbes for the last two installments of $12,500 each, due by the agreement, on the 8th of December, 1820, and the 8th of December, 1821; but further time appears to have been given in the mortgage for these two payments, as they are made payable on the 9th of March, 1821, and the 9th of March, 1822. This mortgage is on the undivided half of the land conveyed to Mitchell, and is the subject of the present suit.

John Forbes, the mortgagee, died in Cuba, in May, 1822, having made a will and appointed executors, who qualified and acted as such in that place, but never proved the will nor obtained letters testamentary in Florida.

John Innerarity first obtained letters of administration in Florida on the estate of John Forbes, on the 5th of July, 1836.

*

That there is a balance due and unpaid on this mortgage, seems to be admitted; but the parties differ widely in their estimates of its amount. The Superior Court for the County of Escambia, where this case originated, adjudged the balance due on the mort- [*154 gage to be $50,159.60. On appeal to the Court of Errors of the territory, that court decreed the balance due to be $28.500. From that decree both parties have appealed. At present, we can notice only the exceptions taken by the mortgagors, whose appeal is now under consideration.

They have insisted on three several exceptions to the decree of the Court of Appeals, which will be noticed in their order.

1. Because interest was allowed from the time the money secured by the mortgage became payable, when it should have been allowed only from the time of filing the bill of foreclosure.

2. Because the court refused to allow a credit of £375, which John Forbes admitted should be deducted from the amount claimed. 3. Because a payment of $13,357.73, made

to Thomas M. Blount, was not allowed as a credit.

We shall consider these exceptions in their order, stating the facts of the case bearing on each of them so far as may be necessary to their elucidation.

I. As to the interest.

As the contract for the purchase of these lands, and the mortgage given to secure the balance of the purchase money, were executed in the island of Cuba, the court below allowed the current and legal rate of interest of that place (five per cent.) from the time the respective payments became due.

expectation of profit was from the increase in value of the lands from efflux of time and the progress of improvement. These profits they have realized, doubtless to the amount of more than a thousand per cent. on their original investment. Moreover, the record of the Forbes case, decided in this court (and read in evidence in this case, by consent), shows that, in 1828, eleven years after the purchase, the appellants, or those under whom they claim, declared under oath that they had had "peaceable possession" of the land ever since their purchase. If, since that time, or before it, an actual pedis possessio of these lands may have It is a dictate of natural justice, and the law proved difficult or dangerous, owing to Indian of every civilized country, that a man is bound wars, it surely cannot be seriously argued, in equity, not only to perform his engagements, that any warranty, expressed or implied, either but also to repair all the damages that accrue by the civil or the common law, makes the naturally from their breach. Hence, every vendor liable for the acts of a public enemy, or nation, whether governed by the civil or com- for a detention or disturbance of the possession mon law, has established a certain common by the act of the sovereign power. The purmeasure of reparation for the detention of chasers have received full seisin and possession money not paid according to contract, which of these lands in the year 1819, under a title is usually calculated at a certain and legal rate proved to be good and indefeasible; the execuof interest. Everyone who contracts to pay tion of this mortgage is an assertion of the fact; inoney on a certain day knows, that, if he fails they have neglected to comply with their conto fulfil his contract, he must pay the estab- tract to pay the money secured by the mortlished rate of interest as damages for his non-gage for ten years, at least, without any apolperformance. Hence it may correctly be said, ogy; and it would be a strange doctrine indeed, that such is the implied contract of the parties. and one *equally unknown to the civil [*156 See 2 Fonblanque, Eq. 423; 1 Domat, book as to the common law, that an accidental dis3, tit. 5. The appellants themselves seem to turbance of the possession by the public enemy, have been fully aware of the justice of this happening so many years after such default of rule, as in all their communications with the payment, could retroact to justify its previous mortgagees they have admitted their liability detention, or operate as a defense to the payto pay interest, and in their bill, filed in 1837, ment either of principal or interest. to have satisfaction entered on the mortgage (which makes a part of the record of this case), they offer "to pay interest at five per cent. from the 8th of December, 1821." This may 155*] not of itself be a sufficient reason *for disallowing their present exception if founded in justice, but it affords a strong presumption that it has no such foundation.

The reasons alleged in support of this exception are, first, that the mortgagors had not possession of the land, or at least received no profits from it, and that, in either case, by the civil law, the purchaser is not bound to pay interest. But we are of opinion that this objection is founded on a mistake both of the law and the fact. The mortgage was given more than two years after the sale to the mortgagors and title executed to them. A large portion of the purchase money had been paid, and no objection made, that the purchasers had not all the possession of which the land was capable. Both parties knew that, although the Indians had ceded their title, they still continued a transient occupancy of the lands for hunting grounds. They may have infested the lands, and rendered it dangerous for the owner to occupy them in time of war; but their possession was not what the law would term adverse, not being with claim of title. There was no covenant by the vendor to expel or exterminate the Indians; the purchasers received such possession of the land as could be given them, cum onere. It was not expected that the Indians should attorn to them or pay them rent. The purchasers of over a million of acres of wild lands did not expect to make profits by actual cultivation or reception of rents. Their

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Besides, if it were true that, during all this time, the vendee was unable to have such a possession of his land as to receive profits from it, the doctrine of the civil law, as quoted by the learned counsel for the appellant—“that the vendee is not liable for interest where he received no profits from the thing purchased" -has no application to the present case. It applies only to executory contracts, where the price is contracted to be paid at some future day, and the contract is silent as to interest. In such a case, the civil law will allow interest from the date of the contract of sale, if the vendee has had possession and received profits from the thing purchased. In this it differs from the common law, which would not allow interest before the day fixed for payment, unless specially contracted for. But where the purchaser has contracted to pay on a given day, and neglects or refuses so to do, both law and equity subject him to interest as the measure of damages for the breach of his contract.

A second objection made to the payment of interest is, that the purchasers incurred much trouble and expense in obtaining any acknowledgment of their title from the United States, and, although it was finally decided by the Supreme Court of the United States that their title was valid; yet that the courts of Florida had declared it invalid, and thus caused a cloud to hang over it for two or three years, which hindered the settlement, improvement, and sale of the lands.

It is hard to conceive on what grounds these facts should constitute a defense to the payment of interest. of interest. The vendor did not, and no sane vendor, would, covenant that his vendee should

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