nal vendor; and if, at the public sale, the original vendor became the purchaser, the title enured to the benefit of his vendee. exists. It does not appear to have been adopt | the purchaser, he became a trustee for his origied in Louisiana. 284*] *It is insisted that "the action is brought wrong; and that, if the judgment be reversed, the plaintiffs cannot recover, because of the nonjoinder of Ker as a defendant." The action against the sureties, omitting the principal, is sustained by the Louisiana Practice. In Maria Griffing, Adm'x, v. Caldwell, 1 Robinson, 15, it was held that a creditor has the right, but he is under no obligation, to include the principal and surety in the same suit. And in Smith, Adm'r., v. Scott, 3 Robinson, 258, it is said a surety, who binds himself with his principal, in solido, is not entitled to the benefit of discussion, and may be sued alone for the whole debt. So in Curtis v. Martin, 5 Martin, 674, it is laid down, that the surety may be sued without the principal. In Barrow v. Norwood (3 Louisiana Rep., 437, the court held, where the obligation is joint, all the obligors must be made parties to the suit. But that was not a case of suretyship. The action was brought against one of three indorsers. Mortgagor estopped from denying his seisin in suit to foreclose-true title subsequently acquired by grantor enures to benefit of grantee -in action by vendor for purchase money, vendee who has purchased better outstanding title, can only recoup amount fairly paid. Where the holder to a pre-emption right to lots in the town of Dubuque sold them to another person, the facts that the vendor had received certificates of his right, although the land officers were not satisfied with their sufficiency, and that the vendor acted as the undisputed owner, were sufficient to negative the charge of fraud in his representing his title to be good. The relinquishment, by the vendor, of his title to the United States, with a view to a public sale and completion of his title, was not fraudulent towards the vendee, if it was the purpose of the vendor to enable himself to convey a perfect title to his vendee. If, at the public sale, the vendee himself became NOTE. As to estoppel by deeds and by recitals In deed, see note to 7 L. ed. U. S. 761. As to when a vendee is estopped from denying the title of his vendor, see note to 10 L. ed. S. 873. *THESE THE following statement of the [*285 case was the brief of Mr. Howard, who argued it: This was an appeal from the Supreme Court of Iowa Territory, sitting as a court of equity, under the following circumstances: On the 2d of July, 1836, Congress passed an act (chap. 262, 5 Statutes at Large, 70) for laying off the town of Dubuque, amongst other towns, under the direction of the SurveyorGeneral. The 1st section directed lots to be laid out in a certain manner, and a plat returned to the Secretary of the Treasury, and within six months thereafter the lots should be sold to the highest bidder. The second section directed the lots to be classed according to their value into three classes, viz., at $40, $20, and $10 per acre, respectively; and gave a right of pre-emption to those persons who had obtained a permit to settle, or who had actually occupied and improved the lots, paying for the lot according to its class. On the 3d of March, 1837, Congress passed another act (chap. 36, 5 Statutes at Large, 178), amendatory of the former, substituting a atory board of commissioners for the surveyor. They were empowered, to "hear evidence, and determine all claims to lots;" to reduce the evidence to writing, which they were directed to file with the register and receiver, together with a certificate in favor of each person having the right of pre-emption. Upon payment for the lot being made to the receiver, the receiver was directed to give a receipt for the same, and the register to issue a certificate of purchase, to be transmitted to the commissioner of the general land office, as in other cases of the sale of public lands. The 3d section directed the register and receiver to expose the residue of the lots to public sale, after advertising, etc. On the Sth of February, 1839, Marshall and Whitesides sold to Bush a pre-emption right to two lots in the twon of Dubuque, viz., No. 7 and No. 194. The deed is not upon the record, but the consideration is stated in the bill, and admitted in the answer (Rec. 3, 6) to have been three thousand dollars, one half of which, viz., $1,500, was paid in cash by Bush. To secure the payment of the other half, Bush executed a mortgage to Whitesides, and also gave his promissory note to Marshall for $1,790, payable on or before the 1st of October, 1839. Of this $1,790, $1,500 was for the purchase of the lots, and the remaining 200 was for rent in arrear, which was transferred to Bush. It appears from the evidence of B. R. Petrikin, the register in the land office in the town of Dubuque, that "Bush came frequently to the land office to enter the lots No. 7 and No. *194, under the pre-emption law, but [*286 was not allowed to do so by the land officers, because the proof filed by William B. Whitesides with the commissioners, under the law laying off the town of Dubuque, did not satisfy the land officers as being sufficient to maintain a right under the law in favor of Whiteside's pre-emption." It appears, also, from the same evidence, that the land officers "had received instructions from the general land office, to expose all lots to public sale where the claimants should relinquish their right to pre-emption (under the law laying off the town) to the United States." In September, 1840, the lots in the town of Dubuque were offered at public sale. Bush went to the land office, and protested against the lots No. 7 and No. 194 being offered at public sale. Previous to the sale, however, it appears, from the testimony of Dougherty, that a "committee of arrangements had been appointed for the purchase of lots in the town of Dubuque;" that there was a "public bidder," who was a person selected by the claimants to lots in the town of Dubuque, to purchase the lots they claimed, as they were offered at the public sale. It appears from the evidence of Dougherty, that the committee of arrangements called on Bush, and informed him that the committee desired him to make his relinquishment to lot No. 7, which he positively refused to do. The committee then erased the name of Bush, and inserted the name of Whitesides, and informed Whitesides immediately of the same; when he, the said Whitesides, came before the committee, and made his relinquishment to said lot. It appears, also, from the testimony of Petrikin, the register, that Whitesides came to the land-office, and produced the deeds in relation to the property before the officers of the land office, and the said officers considered that the said Whitesides had a right to relinquish his pre-emption right, and thereupon the said Whitesides did relinquish; in consequence of which the lots No. 7 and No. 194 were put up at public sale. The following statement of facts was agreed upon in the court below: It is agreed the following statement of facts may be used, in the same manner as if the same were proved by witnesses on the hearing of the above causes: 1st. That the lots mentioned in the foregoing pleadings were sold at a public sale of lots in the town of Dubuque, by the United States, in - last, at which sale John D. Bush, above named, became the purchaser of lot No. 7, and the above named William B. Whitesides of lot No. 194. 287*] *2d. That said lots would not have been put up and sold at said sale, unless the said William B. Whitesides had relinquished all claim to the same to the United States previous to said sale; and that said Whitesides did thus relinquish, previous to the same being put up to sale, and for the express purpose of having them sold at said sale. 3d. That said Bush objected and protested to said Whitesides against the said Whitesides thus relinquishing. 4th. That previous to said sale, and at the time of said relinquishment, and subsequent thereto (but previous to the sale), said Bush was informed by E. C. Dougherty and Whitesides, and by said Whitesides's agent, that his object in having the said lots put up to sale was expressly with a view that the title to them might be perfected in said Whitesides, so that he could make a good title to said Bush, upon said Bush paying the purchase money for said lots. And also that said Whitesides, by himself, or agent duly authorized for said purpose, did propose and offer to said Bush, that if said Bush would bid for said lots, and agree that his purchase should be under the contract for them set out in the pleading in the above causes, said Whitesides would make no opposition to his so doing, but was perfectly willing said Bush should become the purchaser with this understanding; but that said Bush utterly refused so to do; when said Bush was informed by said Whitesides, or by his agent, that said Whitesides would bid for said lots at said sale, in order to enable him to comply with his contract with said Bush. That said Whitesides and Bush were the only bidders for said lots at said sale, and that Philip S. Dade was the bidder for said Whitesides, of which the said Bush, previous to and at the time of said sale, was advised and informed. That the memorandum at the foot of the deed or mortgage, that said Bush was to furnish the money to pay for said lots, was there inserted by the express agreement and understanding of said Bush, at the time of executing said deed and mortgage. The public sale took place in September, 1840, after Bush had refused to purchase under his contract. At the sale, the public bidder and Bush were the only bidders for the two lots No. 7 and No. 194, the public bidder bidding for Whitesides, of which Bush was informed previous to and at the time of said sale. The lot No. 7 was bid off to Bush, and No. 194 to Whitesides. In April, 1841, Whitesides and Marshall filed a bill in the District Court of Dubuque County, praying a foreclosure of the mortgage and sale of both lots. After an answer and a general replication, the court decreed for the complainants, and ordered both lots to be sold. An appeal was taken to the Supreme Court [*288 of Iowa, where the decree of the court below was affirmed, and the cause was brought by appeal to this court. It was argued by Mr. Berry (in a printed argument) and Mr. Howard for the appellant, and Mr. May for the appellees. Mr. Justice Grier delivered the opinion of the court: This suit originated in the District Court for Dubuque County, in the territory of Iowa. It was a bill in chancery to foreclose a mortgage given by the appellant, Bush, to Whitesides. The property mortgaged consisted of two lots (number 7 and 194) in the town of Dubuque, which Whitesides had sold and conveyed on the same day to the mortgagor, for the sum of $3,000; and the mortgage (dated Sth February, 1839) was given to secure the sum of $1,500, the balance of the purchase money. At the time of this transaction, the United States had not yet offered the lands on which the town of Dubuque was situated for sale. But notwithstanding the occupants of lots were mere tenants at sufferance only, they proceeded to make valuable improvements, under the expectation of the grant of a right of pre-emption from the government, or, at least, that they could complete their title by purchase from it, when the lots should be offered for sale. These possessions and improvements were treated as valid and subsisting titles by the settlers, and were the subjects of contract and sale by conveyances in the forms usual for passing a title in fee. On one of the lots which was the subject of the mortgage in question, a tavern house and other improvements were erected, for which the tenant paid a rent of seventy dollars per month at the time of this purchase. The deed from Whitesides to Bush was not put in evidence, but, from the recitals of the mortgage and admissions of the answer, it appears to have been a deed in fee simple, with a covenant of general warranty. The mortgagor is estopped by his deed from denying seisin, and cannot make out a sufficient defense unless by proving payment of the money, want of consideration, or fraud which will avoid the contract. Accordingly, the appellant, in his answer, has set up two grounds of defense by way of avoidance of his deed. First, fraudulent misrepresentation by the vendor to induce him to make the purchase; and, second, want of con sideration from failure of title. 1st. The fraudulent misrepresentation charged consists of three particulars. First, that the 289*] vendor represented "that he held a valid pre-emption right to the lots, by virtue of the laws of the United States in relation to town lots in the town of Dubuque;" second, that he represented that the fixtures in the tavern, to wit, the bar shelves and counter, formed a part of the property sold, whereas they were claimed and taken away by Hale, the tenant, and the house much injured by the moving and tearing away of said fixtures; and, third, that by falsely representing Hale, the tenant, to be punctual in his payments, Bush or opinions were well founded or not does not appear from any testimony in the case. The facts, also, that Whitesides was permitted to relinquish the pre-emption right to the United States, and that no other person laid any claim to the possession and pre-emption of these lots except Whitesides, and Bush, claiming under him, are conclusive, when taken in connection with evidence of a certificate in his favor by the commissioners, to show that the representation of Whitesides was not false or fraudulent, and that defendant has wholly failed to support this allegation, as set forth in his answer. But it has been contended, that this relinquishment, made by Whitesides to the United States against the consent of Bush, *was fraudulent, and injurious to the [*290 interests of Bush. To this argument two answers may be given, either of which is conclusive. First, that there is no allegation in the pleadings on the subject; and, second, the evidence clearly shows, that, although Whitesides did relinquish his pre-emption to the United States, and that, too, without the consent of Bush, yet the act was not fraudulent, as it was not intended, and did not tend, to do any injury to Bush. Whitesides, by his warranty, was bound, under penalty of $3,000, to obtain a good title for Bush, cost what it may, while Bush was bound to pay only the minimum or pre-emption price. The relinquishment of his pre-emption right by Whitesides was not intended as an abandonment of his claim, but was a plan adopted by himself, in common with the other claimants of lots in Dubuque, as the most convenient method of obtaining a title. By thus suffering them to be exposed to auction, they ran the risk of be was prevailed on to give his note to the coming compelled to pay more than the minimum plainants for the sum of $290, for the rent of the unexpired term; whereas Hale was not punctual, and defendant was unable to collect the rent from him. The latter two of these charges may be summarily disposed of by the remark that there is no evidence in the case of any representations by the complainants on the subject; and as the matter alleged in the answer is not responsive to the bill, but set up by way of avoidance, the defendant was bound to prove it. But the first is the one chiefly relied on in the argument, and deserves more particular notice. or pre-emption price for a title, but could not get it for less. The record admits that Bush knew "that Whitesides's object in having the lots put up to sale was expressly with a view that the title to them might be perfected in said Whitesides, in order that he could make a good title to Bush." It is not easy to apprehend how fraud can be predicated of the conduct of Whitesides, who, it is admitted, was using every endeavor to fulfill his contract, and obtain a good title for his vendee. As to the alleged fraud on the government by the conduct of the people in Dubuque on this occasion, it is sufficient to say that the question is not raised in the pleadings, nor the fact proved in the evidence. We are of opinion, therefore, that the appellant has wholly failed to show any fraud or misrepresentation on the part of his vendors, which would justify a court of chancery in annulling an executed contract. Indeed, the facts of the case tend rather to show that the fraud, if any, in this transaction, may be more justly charged to the party who is so liberal in imputing it to others. It is proved by Davis, the scrivener who drew the deed and mortgage, that Whitesides told Bush "that he, Whitesides, had a pre-emption to the property." Was this representation false? The only evidence on the subject is in the testimony of Petrikin, the register of the land office, who swears, "that the commissioners, appointed under the act of Congress laying off the towns of Dubuque, etc., filed in the land office certificates in favor of Whitesides's pre-emption to these lots, No. 7, and No. 194." He states, also, "that the land officers had instructions from the general land office to expose all lots to public sale, where the claimants should relinquish their right of pre-emption to the United States." He states, more over, "that the land officers were not satisfied with the regularity or sufficiency of Whitesides's certificate;" but whether these doubts | effected what is commonly called a speculation; If Bush could have thwarted Whitesides in his endeavors to procure the legal title for him, if he could hold the lot on which the tavern house and improvements were situated (and valued at $2,200) for his bid of less than twenty dollars, and then recover the $2,200 from Whitesides, on his warranty, he will have but one in the perpetration of which he ought not to expect the aid of a court of equity. The anxious disavowal of an intention "to de fraud or wrong the complainants," contained in the defendant's answer, was not called out by 291*] charge *in complainant's bill, but seems rather to have resulted from a conscious ness that his conduct was justly liable to such an imputation. II. The other ground of avoidance is failure of consideration. Order. This cause came on to be heard on the tran script of the record from the Supreme Court of the Territory of Iowa, and was argued by counsel. On consideration whereof, it is now here ordered, adjudged and decreed by this court, that the decree of the said Supreme Court in this cause be, and the same is hereby affirmed, with costs and damages at the rate of six per centum per annum, with leave to the appellees to sell the mortgaged property in the mode prescribed by law, unless the appellant shall pay the amount of said decree, with interest The answer alleges, that, at the public sale by the United States, lot No. 7 was purchased by defendant himself, and therefore the vendor is unable to comply with his contract by mak- thereon, and the costs, within sixty days from ing him a title, and, moreover, that White the filing of the mandate in this case in the sides has become the purchaser of lot No. 194, proper court of the State of Iowa. and therefore he, Bush, was without title to it. This defense seems founded on an entire mistake or ignorance of the law; as the facts alleged lead to a directly contrary conclusion, and show that the defendant has a complete legal title. If Whitesides sold to him with covenant of warranty, and afterwards purchased the legal title, as the answer asserts, with regard to lot No. 194, then is the title vested in Bush, the vendee, by estoppel, and no further conveyance is necessary. As to lot No. 7, Bush, having obtained possession under Whitesides, cannot, by the purchase of an outstanding title, defeat the claim of his vendor. It is a well established rule of equity, "that if a vendee buys up a better title than that of the vendor, and the vendor was guilty of no fraud, he can only be compelled to refund to the vendee the amount of money paid for the better title." "Equity treats the purchaser as a trustee for his vendor, because he holds under him; and acts done to perfect the title by the former, when in possession of the land, inure to the benefit of him under whom the possession was obtained, and through whom a knowledge of a defect of title was obtained. The vendor and vendee stand in the relation of landlord and tenant; the vendee cannot disavow the vendor's title. See Galloway v. Findlay, 12 Peters, 295, and cases there cited. In the present case, the vendee has bought in, for twenty dollars, the legal title to a property worth more than two thousand, the possession of which he received from his vendor; and not only so, but, contrary to good faith and fair dealing, he has interfered to overbid his vendor, who was using every endeavor to purchase the title for the use of his vendee, in fulfillment of his own covenants. The appellant has paid no more (or, if more, so little as to be unworthy of notice) than he agreed to pay for the purpose of getting a legal title. He has got a good title to the property, and ought in justice and equity to pay for it the full consideration which he has covenanted to pay. The decree of the Supreme Court of Iowa 292*] must therefore *be affirmed, with costs, with leave to the appellees to sell the mortgaged property in the mode prescribed by law, unless the appellant shall pay the amount of said decree, with interest thereon and the costs, within sixty days from the filing of the record in this case in the proper court of the State of CHARLES MCMICKEN, Plaintiff in Error, V. AMOS WEBB, Mary Ann Smith, in her own right and as Tutrix, etc., and Ira Smith, in his own capacity and as Tutor to the Minors, Catharine and Sarah Smith. Action on note-plaintiff not allowed to prove mistake varying contract of sureties. Where a promissory note, payable to a firm, was signed by one of the partners in the firm together with two other persons, and suit was brought upon it against these two other persons in the name of the payee partner, upon the ground, that the note was intended for his individual benefit, and that the insertion of the name of the firm as payees was an error, it was clearly his duty to prove such error upon the trial. If these two other persons were merely sureties (a fact for the jury), proof of such error would not make them liable beyond the terms of their contract, unless they were privy to and agreed to the same. Neither a court of law nor equity will lend The payee partner having brought into the evidence the terms upon which the partnership was dissolved, by which it appeared to be his duty to collect the assets, pay the debts, and settle the concerns of the partnership, it was competent for the jury to judge whether the note was given provisionally and designed to abide the settlement of the affairs of the firm, and if so, then it became necessary for the payee partner to prove the fulfilment of these duties before any right of action upon the note accrued to him. The note being drawn by one of the partners payable to his own firm, this drawer partner was entitled to one half of it, and the obligation of the sureties was diminished pro tanto. Where the plaintiff excepted to the opinion of the court, which opinion was more adverse to the defendants than to the plaintiff, this court will not, at the instance of the plaintiff, reverse the judgment, although there may have been error in the instructions, provided that error consisted in giving the plaintiff too much. *T HIS case was brought up by writ [*293 United States for the District of Louisiana. The facts of the case are sufficiently set forth in the opinion of the court. Iowa. NOTE. That a party to bill or note cannot vary his contract by parol, see note to 8 L. ed. S. 316. As to oral evidence as applicable to written con It was argued by Mr. Coxe for the plaintiff | addition thereon, and for the payment of one in error, and Mr. Jones, for the defendant. Mr. Justice Daniel delivered the opinion of the court: The record in this cause being encumbered with matter deemed wholly irrelevant to the true points in controversy between the parties, much of this matter the court will pass over, embracing within its view such portions of the record only as regularly present those points, and the rulings of the Circuit Court with respect to them. In this view, little else need be presented except the pleadings in the cause, the note on which this action is founded, the fact of a copartnership between the plaintiff in error and James H. Ficklin, and the agree ment comprising the terms on which the copartnership was dissolved, these three last mentioned documents being referred to in the pleadings and appealed to by the parties on both sides of this cause to sustain the positions on which they respectively rely; and, lastly, the instructions prayed by the parties and given by the Circuit Court. This is, according to the peculiar proceedings in the State of Louisiana, an action at law, although, from the mode of proceeding by petition, from the introduction into that petition of various matters dehors the instrument set out as the immediate cause of action, and from the converting in one proceeding parties standing sui juris with those who sustain a representative character, it bears a striking resemblance to a suit in equity. The petition states, that, sometime in the year 1815, the plaintiff and one James H. Fick lin formed a copartnership and transacted business under the name of McMicken & Ficklin; that about the 8th of September, 1817, the said copartnership was dissolved by mutual consent; that at the time of said dissolution there was a stock of goods on hand, which said Ficklin took and purchased at cost, with five per cent. half of said stock of goods he gave to the petitioner a promissory note, dated September 20th, 1817, due and payable on the 1st day of March, 1819, to the order of McMicken & Ficklin, for the sum of $4,866.934, executed by said Ficklin, by Jedediah *Smith, and Amos [*294 Webb, the defendant, whereby the drawers became bound to pay the whole of the said note, which note is annexed as a part of the petition. The petition then proceeds as follows: "Your petitioner further shows that said obligation was erroneously made payable to McMicken & Ficklin, though in truth and in fact said note was dated and executed subsequent to the said dissolution of said firm, and was made towards and in behalf and for the sole and individual benefit of your petitioner, the joint name, or the name of the late firm, being used and intended for your petitioner's sole benefit, said Ficklin being in no wise a party or interested therein except as one of the obligors. "Your petitioner further shows, that since the execution of the said note or obligation, the above mentioned Jedediah Smith, one of the co-oblgators thereof, died, leaving his wife, the said Mary Ann Smith, and two minor children, Catharine and Sarah, all of whom now own and possess all the property and estate by the said Jedediah Smith left at his decease. "The mother in right of her community, and said minors as heirs, and the said Mary Ann Smith, the widow of said deceased, has since married one Ira Smith, the said defendant herein, by reason of which said several premises, the said Mary Ann, Catharine, and Sarah have become obligated and bound, in solido, to pay your petitioner the whole amount of said note or obligation, together with interest, according to the tenor and effect thereof, which they refuse, though often and amicably demanded to pay." tracts, see note to Bradley v. Wash. etc., Steam | ten "B. R. C." instead of "B. C." as intended. Packet Co. 13 Pet. 89. Immaterial and authorized alterations of a bill or note. If the legal effect is not changed the instrument is not altered. The following changes are immate rial: Writing out the name of the bank, after the signature "Cashier," which was intended to bind the bank. Bank of Genesee v. Patchin, 3 Kern. N. Y. 309; Folger v. Chase, 18 Pick. 63. The insertion of the dollar mark before the numerals expressing the amount in dollars. Houghton v. Francis, 29 111. 244. Changing the marginal figures so as to conform them to the written amount. Smith v. Smith, 1 R. I. 398; Bank of Commonwealth v. Curry, 2 Dana, 142; Bank of Limestone v. Pennick, 5 Mon. 25; Norwich Bank v. Hyde, 13 Conn. 279. The addition in full of the Christian names of the drawers whose surnames had been affixed before acceptance. Blair v. Bank of Tennessee, 11 Humph. 84. The interlineation of the surname of the payee after delivery. Manchet v. Casson, 1 Brev. 307. The running of a pen through the words "Prov idence Steam Pipe Co.," which was one name under which a firm did business, and writing over it their style in the copartners' names. Arnold v. Jones, 2 R. I. 345. Changing the address in a bill from "A. B. & Co.," to "A. & B.," on its being accepted by the firm by the name "A. & B.." there being no question as to the identity of the firm intended, and the accept ors being liable either way. Farguhar v. Southey, Moo. & Μ. 14. Erasing "R" where the payee's name was writ Cole v. Hills, 44 N. Η. 227. Correcting "Franklin E." so as to read "Francis." Desby v. Thrall, 44 Vt. 414. In no case is a change in the phraseology of the instrument material, when it does not change essentially its legal effect. Holland v. Hatch, 15 Ohio St. 464. Immaterial memoranda on the margin or other portions of the bill or note, are also of no effect to avoid the instrument. Batchellor v. Priest, 12 Pick. 399; Thomson on Bills, 113; Commonwealth v. Industrial Savings Bank, 98 Mass. 12; Berdsell v. Russell, 29 N. Y. 220. As, where a party's residence is noted, after his name. Struthers v. Kendall, 5 Wright. 214. So, of other memoranda noted thereon. Walter v. Cubley, 2 Cr. & M. 151: City of Elizabeth v. Force, 29 N. J. Eq. 591; overruling 28 N. J. Eq. 587. Tearing off the words "Trustees of the First Universalist Society," appended to the signatures of the makers where the note was the personal undertaking of the signers, and so remained unchanged in its effect. Burlingame v. Brewster, 79 111. 515. The following are immaterial changes: Retracing a faded name in clear ink. Dunn v. Clements, 7 Jones Law, 58; writing over in ink a word written in pencil, Reed v. Roark, 14 Texas, 329; correcting a misspelling, Leonard v. Wilson, 2 Cromp. & M. 589; changing the number of a negotiable pond, Commonwealth v. Emigrants Bank, 98. Mass. 12; inserting "paid in gold, gold having been the consideration," when the consideration was gold, and the parties knew the consideration was gold, when they severally signed. Hausen v. Crawley, 41 Ga. 303. |