6 How. 279-284

Notes on U. S. Reports.

642

v. Powers, 86 Me. 294, 29 Atl. 1080, in general discussion, dismissing bill of exceptions where objection was to all the rulings.

Distinguished in Davis v. Patrick, 122 U. S. 143, 30 L. 1092, 7 S. Ct. 1103, where exceptions were taken and allowed at trial before verdict and reasonably submitted to the judge, they will not be stricken out because of his delay in signing.

Trial.- Where motion for a new trial was overruled and judgment entered while court was not legally in session, it is competent at a subsequent and regular term to treat entry as a nullity, and to decide motions and enter judgment according to verdict, pp. 276, 277.

Cited in Filley v. Cody, 4 Colo. 111, holding a judgment rendered in vacation, absolutely void.

Courts have full power to amend their records, and are the sole judges of the correctness of the entries made therein, p. 277.

Cited and rule followed in Gilman v. Libbey, 4 Cliff. 454, F. C. 5,445, where omission of clerk to enter the fact that judgment had been ordered by another judge of the State court, was remedied; Jones v. Van Patten, 3 Ind. 111, clerical errors in record may be corrected after transcript has been filed in the Supreme Court; Territory v. Clayton, 8 Mont. 16, 19 Pac. 300, where entry of plea of not guilty" was omitted, an order correcting the error, made at a subsequent term, was proper; Cook v. Moore, 100 N. C. 296, 6 Am. St. Rep. 588, 6 S. E. 796, an order of affirmance inadvertently entered in place of judgment of reversal, will be corrected at a subsequent term.

A continuance, relating back, may be entered by the court at any time to effect the purpose of justice, p. 278.

Cited and practice followed in Pierce v. Kneeland, 14 Wis. 344, holding the court has power to direct orders continuing motion for a rehearing from term to term to be entered nunc pro tunc. Miscellaneous. Cited generally in Yellow Poplar Lumber Co. v. Chapman, 74 Fed. 451.

6 How. 279-284, 12 L. 437, UNITED STATES v. HODGE.

United States. The principal case treats a mortgage given to the United States, as security for a postmaster's indebtedness, as a valid instrument, pp. 281–284.

Cited in Neilson v. Lagow, 12 How. 108, 13 L. 913, holding conveyance of land to trustees for the purpose of paying a debt due to the United States, not in violation of act of Congress, forbidding the purchase of land on account of the United States, except under an authorizing law.

Bill of exceptions, regular upon its face, cannot be presumed not to have been signed, p. 282.

Evidence. It is for the court to construe all written instruments given in evidence, as a question of law, p. 282.

Official bonds.- A mortgage given as collateral security, merely for defalcation, does not discharge the bond or suspend the remedy against the sureties, p. 282.

Cited and principle followed in The Maggie Jones, 1 Flipp. 638, F. C. 8,947, holding taking of collateral security in suit in rem in admiralty, does not discharge stipulators; Mobile Life Ins. Co. v. Randall, 71 Ala. 223, and Mobile & M. Ry. Co. v. Brewer, 76 Ala. 142, which holds the taking of debtor's note for debt past due, payable one day after date, together with mortgage to secure note, does not discharge the surety; Pendergrass v. Hellman, 50 Ark. 265, 7 S. W. 134, in action on account, an answer that debt was not due because of delivery to plaintiff of defendant's note and mortgage for a sum exceeding amount of account, was insufficient, as it did not allege that note was in payment of account or that the latter was extended thereby; Jones v. Sarchett, 61 Iowa, 522, 16 N. W. 590, the taking of the note of principal debtor on bond, payable at a certain future date, does not discharge surety, if right of immediate action on bond is reserved; Dunn v. Collins, 70 Me. 231, stipulation of judgment creditor, to extend time of payment of judgment, without consideration, does not release sureties; Hall v. First Nat. Bank, 5 Kan. App. 494, 47 Pac. 567, mere indulgence given to principal maker of note does not discharge sureties; Brengle v. Bushey, 40 Md. 149, 150, 17 Am. Rep. 589, 590, acceptance of mortgage as collateral security did not extinguish or suspend remedy on note, and surety thereon was not discharged; Fireman's Ins. Co. v. Wilkinson, 35 N. J. Eq. 179, the surety of a mortgagor is not released by the mere giving of a collateral bond; Cary v. White, 52 N. Y. 144, the mere taking of collateral security on time is not, per se, an extension of time for the payment of original debt; Shaw v. Presbyterian Church, 39 Pa. St. 236, where a creditor takes a note payable at a future day, the law raises no implication that he agrees to give time until maturity of note; Miller v. Knight, 6 Baxt. 504, S. C., 7 Baxt. 129, the taking of a deed of trust by holder of a note, is prima facie a collateral security and does not prevent holder from suing both principal and surety; Austin v. Curtis, 31 Vt. 70, the mere receipt of collateral security will not discharge indorser in promissory note; Sayre v. King, 17 W. Va. 574, the taking of a chose in action as collateral security will not discharge sureties from liability; Paine v. Voorhees, 26 Wis. 532, the taking of debtor's note does not suspend right of action on bond or discharge sureties therein. Cited in note, 30 Am. Dec. 258, arguendo, in Sweeney v. Bixler, 69 Ala. 542, where a mortgage is given to secure a pre-existing debt, and no new consideration passes, the mortgagee does not become a purchaser; United States v. Hodge, 13 How. 479, 14 L. 232, where the same case was again before the Supreme Court.

6 How. 284-292

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644

Distinguished in Gardner v. Gardner, 23 S. C. 591, holding receipt by creditor of interest in advance on past-due note, implies an extension of time and releases surety.

Official bonds. If sureties pay so much of the defalcation of their principal as shall amount to the penalty of the bond, they are subrogated to a due proportion of the rights of the obligee in collateral security given by the obligor, pp. 282, 283.

Cited and principle applied in Gest v. Packwood, 14 Sawy. 142, 39 Fed. 533, holding written agreement for security on certain property for payment of certain notes, a mortgage which follows the notes in the hands of third persons.

Official bonds.- The principle upon which sureties are released is founded upon a restriction of the rights of the sureties, by which they are supposed to be injured, p. 283.

Cited in United States v. Campbell, 10 Fed. 820, holding surety on warehouse bond not liable for deficiency discovered seven years after liquidation and payment of duties; Harper v. Nat. Life Ins. Co., 56 Fed. 284, 17 U. S. App. 48, omission of company to require agent to pay over excess of his commissions did not exonerate sureties; arguendo, in Tiernan's Ex. v. Woodruff, 5 McLean, 352, F. C. 14,028, holding indorser on notes of a bankrupt, not discharged by extension of time by creditor.

Motion for a new trial is not ordinarily a waiver of a writ of error, p. 283.

Cited in Brown v. Evans, 8 Sawy. 505, 18 Fed. 58, allowing motion to recall an execution prematurely issued; Preeble v. Bates, 37 Fed. 774, if a party tender a bill of exceptions pending a motion for a new trial, he will be required to elect whether he will waive his motion so far as it is based on questions of law that might be embodied in bill of exceptions; Dupuis v. Thompson, 16 Fla. 72, reviewing the rulings of the lower court as embodied in exceptions taken at trial; Lee v. Tinges, 7 Md. 226, where party was not required to waive exceptions on motion for new trial, the appellate court will entertain appeal; Waters v. Waters, 26 Md. 57, overruling motion that caveatees be required to elect between their motion for a new trial and their exceptions.

Official bonds.- Under the practice in Louisiana sureties may be sued without joining the principal, p. 284.

Miscellaneous.- Cited erroneously in The Theodore Perry, 23 Fed. Cas. 912.

6 How. 284-292, 12 L. 440, BUSH v. MARSHALL.

Public lands.- Pre-emption claims and the improvements thereon, are the subject of contract and sale by conveyances in the forms

usual for passing a title in fee, notwithstanding the occupants of such lands were mere tenants at sufferance only, p. 288.

Cited and approved, Wright v. Shumway, 1 Biss. 26, F. C. 18,093, holding private sales of pre-emption claims valid; Lamb v. Davenport, 1 Sawy. 621, F. C. 8,015, a covenant between joint occupantsof a land claim, to partition the same between them and to make good deeds for lots already sold, is a covenant for the benefit of Įsuch vendees; Kingman v. Holthaus, 59 Fed. 311, an incipient location under a New Madrid certificate gave the location and equitable interest, which he could sell to another by a title bond; Pierson v. David, 1 Iowa, 31, the possessor of a pre-emption claim, and improvements thereon has a transferable interest; arguendo, in People v. Shearer, 30 Cal. 657, holding improvements on public lands liable to be assessed for taxation; Richardson v. Keerly, 22 Ga. 67, discussing rule for measure of damages for breach of bond to make title to land conveyed..

Distinguished in Kellom v. Easley, 2 Abb. (U. S.) 566, 1 Dill. 288, F. C. 7,668, holding under section 12 of act of September 4, 1841, conveyances made by a pre-emptor before patent issued, are void.

Deeds.- Mortgagor of a pre-emption right, conveyed to him by deed in fee-simple, with covenant of general warranty, is estopped upon suit for foreclosure, from denying seisin, and cannot make out a sufficient defense unless by proving payment, want of consideration or fraud which will avoid the contract, p. 288.

Cited, and this principle applied in Kirkaldie v. Larrabee, 31 Cal. 457, 89 Am. Dec. 206, where the possessor of public lands, who mortgaged the same in fee, and afterwards acquired title under the homestead act, was estopped from denying mortgage; Comstock v. Smith, 26 Mich. 319, grantee who has paid part of purchase price and executed mortgage with covenants of warranty for part of balance, is estopped from denying delivery and acceptance of deed; Robertson v. Wilson, 38 N. H. 53, a remainderman who conveys his contingent interest by deed of cevenant, during the continuance of the particular estate, is estopped by his covenant.

Matter alleged in the answer not responsive to the bill, but matter in avoidance must be proved by defendant, p. 289.

Public lands.-The facts, that the vendor of a pre-emption right had received certificates of such right, and acted as undisputed owner of the land, were sufficient to negative the charge of fraud, in his representing his title to be good, although the land officers were not satisfied with the sufficiency of his certificates, p. 290.

Cited, arguendo, in Arnold v. Grimes, 2 Iowa, 13, a patent issued under a pre-emption cannot thereafter be set aside by land officers. Public lands.-The relinquishment by vendor of pre-emption right, of his title to the United States, with a view to a public sale

6 How. 292-301

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646

and completion of his title so that he might convey a perfect title to his vendee, was not fraudulent, p. 290.

Estoppel by deed. If, at a public sale, the vendee of a pre-emption right purchases the land, he becomes a trustee for his original vendor, if, instead, the vendor purchases the same, the title inures to the benefit of his vendee, p. 291.

Cited and principle followed in Brisco v. Minah Consol. Min. Co., 82 Fed. 957, holding, where vendee of a possessory title to a mining claim obtained a patent in his own name, vendor's llen for purchase money was not thereby affected; Morris v. Ham, 47 Ark. 297, 1 S. W. 521, where grantee of a tract of land subsequently purchased the title to a portion thereof from the State, all that she could claim was to have amount paid therefor deducted from the unpaid purchase money; Wells v. Francis, 7 Colo. 421, 4 Pac. 54, title acquired to land by a person standing in trust relationship, against the in terest, and without the consent of his beneficiary, holds such title in trust for the latter; Pierson v. David, 1 Iowa, 28, 29, the vendor of a pre-emption right can enforce his lien for purchase money, although vendee has perfected title in his own name; Sanders v. Wagner, 32 N. J. Eq. 510, a vendor is entitled to the benefit of a tax title, upon reimbursing vendee for amount expended; Frink v. Thomas, 20 Or. 273, 25 Pac. 720, 12 L. R. A. 246, and n., a vendee, entering into possession of land under contract of purchase, is not permitted to obtain an outstanding title and assert it against the vendor; Fink v. Hoke, 56 Pac. 1096 (Or.), to the same effect; Ackerman v. Smiley, 37 Tex. 215, the purchaser of an estate, with covenants of warranty, takes whatever title the vendor may afterwards acquire; Roller v. Effinger's Exr., 88 Va. 646, 14 S. E. 339, where vendee bought up claims in order to perfect his title, he was entitled to deduct, from the purchase price of the land, only the amount which he actually paid for claims.

Distinguished in Bowers v. Keesecker, 14 Iowa, 305, holding a conveyance not an estoppel upon grantee in favor of grantor; grantor insisting that it was void and conferred no rights upon grantees.

6 How. 292-301, 12 L. 443, McMICKEN v. WEBB.

Sureties. Neither law nor equity will lend its aid to affect the contract of a surety by parol beyond the plain and necessary import of his undertaking, p. 298.

Cited and principle applied in Smith v. United States, 2 Wall. 235, 17 L. 792, an erasure of the name of a surety to a bond, releases a co-surety who was not informed of the alteration; Ogden v. Davis, 116 Cal. 37, 47 Pac. 773, in action against sureties upon bond, for waste, where complaint, mortgage and bond contained an erroneous description, sureties entitled to non-suit; Manufacturers' Bank v.