Landes v. Brant,
Annotate this Case
51 U.S. 348 (1850)
- Syllabus |
U.S. Supreme Court
Landes v. Brant, 51 U.S. 10 How. 348 348 (1850)
Landes v. Brant
51 U.S. (10 How.) 348
Where the commissioners who acted under the Act of Congress passed on 3 March, 1807, for the adjustment of land titles in Missouri decided in favor of a claim and issued a certificate accordingly, this decision settled two points -- namely, first, that the claimant was the proper person to receive the certificate, and second that the title so confirmed was better than any other Spanish title.
But between the presentation and confirmation of the claim, the claimant had a property which was subject to seizure and sale under execution according to the then laws of Missouri, and the subsequent confirmation by the commissioners will not destroy the title held under the sheriff's deed.
Neither will a patent subsequently taken out under the title of the original claimant avoid the sheriff's deed.
The claim was founded on a settlement for ten years prior to 20 December, 1803, and in such cases the decision of the commissioners was final against the United States, and entitled the party to a patent which gave a perfect legal title and went back, by relation, to the original presentation of the petition.
It consequently enured to the benefit of the alienee.
A patent was required in cases of final confirmations, founded on settlement rights; before its issuance, the title was still equitable.
The original claimant being dead, a patent was afterwards issued to his representatives. But an Act of Congress passed on 20 May, 1836, declared that in such cases, the title should enure to the benefit of the assignee. Upon this ground also, the sheriff's deed conveyed a valid title in preference to an heir or devisee. The patent, when issued, conveyed, by virtue of this law, the legal title to the person who held the equitable title.
The circumstance that the sheriff's deed was not recorded, was of no consequence as between a party claiming under that deed and the devisees of the original claimant; nor was it of any consequence as between the party claiming under that deed and an assignee of those devisees, provided such assignee had notice of the existence of the deed from the sheriff. And an open and notorious possession under that deed was a circumstance from which the jury might presume that the assignee had notice not only of the fact of possession, but of the title under which it was held.
So also, where the lands of the deceased debtor the original claimant were afterwards sold under a judgment against his executors conformably to the laws of Missouri and afterwards acquired by the same party who had purchased under the first sheriff's sale, a refusal of the court below to instruct the jury that this sale was void was correct.
Isaac Landes, a citizen of Kentucky, brought an action of ejectment in the court below at the October term of 1845 against Joshua B. Brant, a citizen of Missouri, to recover a lot of ground in the City of St. Louis. Plea, general issue.
At the trial of the cause, the plaintiff gave in evidence the following patent:
"Patent to Clamorgan"
"The United States of America, to all to whom these presents shall come, greeting: "
"Know ye, that there has been deposited in the General Land Office a certificate numbered one thousand one hundred and ninety-three of the Recorder of Land Titles at St. Louis,
Missouri, whereby it appears that in pursuance of the several acts of Congress for the adjustment of titles and claims to lands, Jacques Clamorgan, under Gabriel Dodier, was confirmed in his claim to a tract of land containing thirty-four acres and sixty-eight hundredths of an acre, bounded and described in a survey dated October 4, 1826, as follows, to-wit: beginning at a stone, the northeast corner of survey number one thousand four hundred and seventy-three, of forty arpents, for Francis Bissonet; thence north twenty-five degrees and forty-five minutes east, two chains and ninety-two links, to an old stone in a ravine on the east side of Third Street, which stone, lying flat in said ravine, was reinserted by the deputy surveyor, and from which stone the southwest corner of a three-story brick house in block number sixty-six bears north eighty-seven degrees east; the northwest corner of a brick house in block number sixty-five, Barbee's Tavern bears south; the northwest corner of a stone house in block number twenty-six, Eph. Town's Missouri hotel bears north sixty-nine degrees thirty minutes east; and a black locust, eight inches in diameter, bears north seventy-three degrees west, distant forty-one links; thence north seventy-five degrees twenty minutes west at eighty-three chains an old stone; at one hundred chains an old stone; one hundred and twenty chains to an old stone, the northwest corner of the present survey, from which a white oak, four inches in diameter, bears north twenty-four degrees west, distant sixteen links; a white oak, three inches in diameter, bears north seventy-five degrees east, distant eleven links; and a red oak, five inches in diameter, bears south forty-two degrees east, distant twenty-two links; thence south twenty-five degrees forty-five minutes west, two chains and ninety-seven links, to a stone, the northwest corner of survey number one thousand four hundred and seventy-three, of Francis Bissonet; thence south seventy-five degrees twenty minutes east, one hundred and twenty chains, to the place of beginning, being in township forty-five north of range seven east of the fifth principal meridian, and being designated as survey number one thousand two hundred and seventy-eight in the State of Missouri. There is therefore granted by the United States unto the said Jacques Clamorgan, under Gabriel Dodier, and to his heirs, the tract of land above described. to have and to hold the said tract, with the appurtenances, unto the said Jacques Clamorgan, under Gabriel Dodier, and to his heirs and assigns forever."
"In testimony whereof, I, James K. Polk, President of the United States, have caused these letters to be made patent and the seal of the General Land Office to be hereunto affixed. "
"Given under my hand at the City of Washington 18 June in the year of our Lord 1845 and of the independence of the United States the sixty-ninth."
"By the President,"
"JAMES K. POLK"
"By J. KNOX WALKER, Secretary"
"Recorded Vol. X., pages 36, 37, 38"
"S. H. LAUGHLIN"
"Recorder of the General Land Office"
Also an extract from the minutes of the commissioners to decide land claims &c., and a record of a confirmation to Jacques Clamorgan, as follows:
"Wednesday, November 13, 1811. Board met; present, John B. C. Lucas, Clement B. Penrose, and Frederic Bates, commissioners -- Cer. 1278."
"Jacques Clamorgan, assignee of Esther, mulattress, assignee of Joseph Brazeau, assignee of Gabriel Dodier, claiming one by 40 arpents of land, situate [on] Little Prairie, adjoining the Town of St. Louis, produces a concession from St. Ange and Piernas, L.G., dated 23 May, 1772; a transfer from Gabriel Dodier and Joseph Brazeau to Esther, dated 4 November, 1793; from Esther to claimant, dated 2 September, 1794."
"The Board grants to Jacques Clamorgan forty arpents of land under the provisions of the second section of the Act of Congress entitled 'An act respecting claims to land' and passed 3 March, 1807, and order that the same be surveyed conformably to the metes and bounds contained in the report of a survey made for said Dodier and found in Livre Terrien, No. 2, folio 15. Survey at expense of the United States."
"Board adjourned till tomorrow, nine o'clock, A. M. John B. C. Lucas, Clement B. Penrose, Frederic Bates."
"Recorder's Office, St. Louis, Missouri, December 1, 1846. I do certify the above to have been truly transcribed from book No. 5, of the Commissioners' minutes, pages 398, 406, and 407, as the same remains of record in this office."
"U.S. Recorder of Land Titles in the State of Missouri"
"Louisiana -- Commissioners' Certificate No. 1278"
"We, the undersigned, commissioners for adjusting the titles and claims to land in the Territory of Louisiana, have decided that Jacques Clamorgan, claiming under Gabriel Dodier, original claimant, is entitled to a patent under the provisions of the second section of the Act of Congress entitled 'An act respecting claims to land in the Territories of Orleans and Louisiana,'
passed 3 March, 1807, for forty arpents, situate in the District of St. Louis, Little Prairie, adjoining the Town of St. Louis, by virtue of ten consecutive years' possession, prior to 20 December, 1803, and order that the same be surveyed conformably to the metes and bounds established in the report of a survey made for said Gabriel Dodier and found in Livre Terrien, No. 2, folio 15. John B. C. Lucas, Clement B. Penrose, Frederic Bates."
"Recorder's Office, St. Louis, 24 February, 1847. The above is a correct copy of original certificate No. 1278, on file in this office, issued by the board of United States commissioners therein designated, for ascertaining and adjusting the titles and claims to land in the Territory of Louisiana."
"U.S. Recorder of Land Titles in the State of Missouri"
Also a certified extract from the registry of patent certificates, containing the date February 10, 1845 and the number 1193 of the certificate issued to Clamorgan, together with a copy of survey made in October, 1826.
The plaintiff also gave in evidence the last will and testament of Jacques Clamorgan, dated 31 October, 1814, and admitted to probate on 7 November, 1814, in which, after the payment of his debts and the distribution of 150 piastres to the poor, he devised all his estate to his natural children, St. Eutrope, Apoline, Cyprien Martial, and Maximin, to be divided into five equal parts, of which Maximin was to have two parts and each of the others one part.
Also the last will and testament of Cyprien Martial Clamorgan, dated 27 February, 1827, and admitted to probate on 27 May, 1827, in which he devises two lots of ground, situate in block No. 25 in the City of St. Louis, to Henry Clamorgan, second natural son of his natural sister, Apoline Clamorgan, and a lot in the same block to Louis and Louisa, infant children of said Apoline, jointly; also all the interest or estate which he might be entitled to in any lands in the State of Missouri to his sister Apoline and her children, Louis, Henry, and Louisa, and the survivor of them.
Also the last will and testament of Apoline Clamorgan, dated 11 day of April, 1830, and admitted to probate on 12 May, 1830, wherein she devises to Louis and Louisa, and such other children as might be born to her, all her interest and estate in a lot one hundred and twenty feet front by three hundred feet in depth conveyed to St. Eutrope, Cyprien Martial, and the testatrix, by Joseph Brazeau for Jacques Clamorgan, being in block No. 25 in the City of St. Louis; likewise
any interest or estate she might have in any other lands in the State of Missouri to her children.
The plaintiff also gave in evidence a deed bearing date 28 April, 1845, from Louis and Henry Clamorgan to the plaintiff and one Fidelio C. Sharp, conveying all the interest except an undivided fourth which they might have under any patent to be issued by the United States upon the certificate of confirmation dated November 13, 1811, to Jacques Clamorgan.
It was admitted on behalf of the defendant that at the time of the institution of this suit, he was in possession of a part of the premises described and embraced in the plaintiff's declaration, to-wit, a lot in the City of St. Louis fronting one hundred and eleven feet six inches on Washington Avenue and running back north one hundred and fifty-two feet in depth, bounded on the south by Washington Avenue and on the west by Fourth Street, and that the said lot is embraced in the confirmation, survey, and patent read in evidence by the plaintiff, being part of that forty arpent tract, which tract is bounded south by the center of Washington Avenue.
It was proven on the part of the plaintiff that it was reported and believed by the near relatives and friends of St. Eutrope and Maximin that they died many years ago, the former leaving a wife but no children, the latter having never been married, and both having died intestate.
That Cyprien Martial died in the year 1826 or 1827, and that Apoline died in 1829 or 1830; that Apoline left four children at her death, to-wit, Louis, Henry, Louisa, and Cyprien; that Louisa died in 1833 or 1834, being then only seven or eight years old; that Louis, Henry, and Cyprien, her remaining children, are yet living; that Apoline died a few days before [?] the birth of her son Cyprien; that Apoline was never married, and her children were illegitimate; that Cyprien, Martial, and Apoline were mulattoes.
It was admitted on the part of plaintiff and defendant that Jacques Clamorgan died between the date and probate of his will, as read in evidence by the plaintiff.
The defendant gave in evidence a transcript of a record of the General Court of the Territory of Louisiana in the case of Gregoire Sarpy, Executor of Antoine Reihl v. Jacques Clamorgan. In this transcript no return appeared upon the summons. The judgment was rendered 16 May, 1808, and commenced with the usual form, "And now at this day come the parties aforesaid, by their attorneys," &c. Execution was taken out and levied on the interest of Clamorgan in a certain lot of land one arpent front by forty arpents in depth being that now in
controversy, and the same was sold at public auction by Jeremiah Connor, the sheriff, to Alexander McNair, and a sheriff's deed given therefor bearing date 8 July, 1808.
Also a transcript of a record of the Circuit Court of St. Louis County in the case of Rufus Easton v. Jacques Clamorgan's Executors setting out a judgment against the defendants and an execution thereon and a sale and deed by John K. Walker, Sheriff, to John O'Fallon and Jesse G. Lindell after the following advertisement:
"Advertisement -- Sheriff's Sale"
"By virtue of a writ of execution issued from the Clerk's Office of the Circuit Court of St. Louis County and to me directed in favor of Rufus Easton against Jacques Clamorgan's executors, I have levied upon, and will sell for cash to the highest bidder at the court house door in St. Louis on Thursday, 27 July instant, between the hours of nine and five, all the right, title, claim, interest, estate, and property that was of said Clamorgan at the time of his death in and to a piece or parcel of land containing one arpent in front by forty arpents in depth and bounded on the eastern end by a fence formerly made to defend the crops of the inhabitants of St. Louis against the animals or beasts, on the north by land of Tayon Pere, on the western end by the King's domain or vacant land, and on the south by the highway which leads to the Village of St. Charles, it being the same lot of forty arpents acquired by said Clamorgan of Gabriel Dodier by deed bearing date November 4, 1793. The boundaries as above set forth are the same as given in said deed. Sold to satisfy said execution and costs. St. Louis, July 1, 1826."
"JOHN K. WALKER, Sheriff"
To the admission of both these records the plaintiff objected, and, upon the objection's being overruled, excepted.
Defendant then read in evidence the following documents, to-wit, 1st, a deed from Alexander McNair and wife to Jeremiah Connor; 2d, copy made by the Spanish lieutenant governor of a deed from Dodier to Esther, with a deed from Esther to William C. Carr endorsed thereon; and 3d, a deed from William C. Carr and wife to Jeremiah Connor, also endorsed on such Spanish copy; 4th, a deed from Jeremiah Connor to George F. Strother; 5th, a deed from George F. Strother to James D. Earl; 6th, a mortgage from James D. Earl to Sullivan Blood; 7th, a deed of release from James D. Earl to Sullivan Blood; 8th, a deed from George F. Strother and wife to Thomas H. Benton, and Thomas Biddle, in
trust &c.; 9th. a deed from Thomas H. Benton and Thomas Biddle, and Luke E. Lawless and wife, to Sullivan Blood; 10th, a deed from Sullivan Blood and wife to the defendant.
It was in evidence that Jeremiah Connor had enclosed the Dodier lot soon after the change of government. That Clamorgan went to Mexico in 1806 and returned in 1808 or 1809. There were also in evidence three deeds of emancipation from Jacques Clamorgan to his four children, St. Eutrope, Cyprien Martial, Apoline, and Maximin, all dated 16 September, 1809, in which it was recited that St. Eutrope was born in April, 1799, Apoline on 7 February, 1803, Cyprien Martial on 10 June, 1803, and Maximin in the beginning of the year 1807.
The following instructions were asked for by the plaintiff:
"1. That the legal effect of the patent and confirmation read in evidence by the plaintiff was to vest the legal title to the premises therein mentioned in Jacques Clamorgan, the patentee, if living at the date of the patent, and if not living, then in his heirs, devisees, or assignees, in the same manner as if the patent had issued in the lifetime of said Clamorgan. Given."
"2. That prior to the confirmation read in evidence by the plaintiff, the legal title to the premises embraced in said confirmation was in the government of the United States, and that the confirmation, survey, and patent read in evidence by the plaintiff were effectual to vest the legal title to said premises in Jacques Clamorgan, his heirs, devisees, or assignees. Given."
"3. That the judgment read in evidence by the defendant in favor of Gregoire Sarpy, executor of Antoine Reihle, to the use of Mildrum and Parks, against Jacques Clamorgan was null and void, and the sale made by the sheriff by virtue of the execution issued thereon, and the deed from said sheriff to Alexander McNair, are also null and void. Refused."
"4. That the deed from Sheriff Connor to Alexander McNair dated 8 July, 1808, and read in evidence by the defendant, is void for uncertainty and should be disregarded by the jury. Refused."
"5. That the deed from Sheriff Connor to Alexander McNair, read in evidence by the defendant, is void as to the plaintiff unless he had notice of said deed at the date of the deed from Louis and Henry Clamorgan to him, as read in evidence by said plaintiff. Refused, and No. 5 post, p. 51 U. S. 357, given."
"6. That the sale made by John K. Walker, Sheriff, to O'Fallon and Lindell, on 27 July, 1826, and the deed made in pursuance of said sale, dated 10 August, 1826, as read in evidence by defendant, are fraudulent and void. Rejected. "
"7. That if, at the date of the levy and sale by Sheriff Walker to O'Fallon and Lindell, the premises levied upon, or a considerable portion thereof, then constituted a part of the City of St. Louis, and had before then been laid off into blocks and squares, separated by streets and alleys and distinctly marked out by stones set up at the corners or other visible boundaries, and if some of said lots or blocks had before then been sold and conveyed by Jeremiah Connor, claiming to be the proprietor thereof, and if upon the said lots or blocks, so sold, buildings and other improvements had before then been erected, then the said levy and sale were null and void. Rejected."
"8. That if the premises levied upon by Sheriff Walker by virtue of the execution in favor of Rufus Easton and sold by said sheriff to O'Fallon and Lindell for thirty-three dollars were at the time of said levy and sale susceptible of division without injury to the property, and were at the date of said levy and sale worth five thousand dollars or more, then the said sale is fraudulent and void in law. Refused."
"9. That the sale made by Sheriff Walker to O'Fallon and Lindell is void unless the said sheriff in his levy or advertisement, or in the deed to said O'Fallon and Lindell, described the premises sold with reasonable certainty, so that the same could have been identified by the said description. Given."
"10. That if the premises in controversy are embraced by the confirmation and patent read in evidence by the plaintiff, the sale and conveyance from Sheriff Connor to Alexander McNair, read in evidence by defendant, were not operative to convey the legal title to said McNair, and the said sale and conveyance cannot prevail as against the patent and confirmation in this action."
"This instruction, as asked for, is refused for the reason that it involves confusion; we are of opinion that the legal title to the premises embraced by the sheriff's deed was in the United States until the patent issued, provided the deed covers the land in dispute, but that the imperfect title owned by Clamorgan did pass by the sheriff's deed made by Connor to McNair, 8 July, 1808, and that neither the act of confirmation by the Board of commissioners in 1811 nor the issuance of the patent in 1845 defeated the title made by Sheriff Connor in 1808, and so the jury are instructed."
"11. That the deed from Gabriel Dodier to Esther, and the deed from Esther to William C. Carr, and the deed from William C. Carr to Jeremiah Connor, read in evidence by defendant, did not at the date of the said last-mentioned deed vest in the said Connor any title to the premises in dispute which
can prevail in this action, provided the same premises had before then been confirmed to Jacques Clamorgan, and have since been patented to him by the government of the United States. Given."
"12. That the possession by the defendant, or those under whom he claims, of the premises in controversy, in order under any circumstances to constitute a valid bar to the plaintiff's recovery, must have been an actual, adverse, and uninterrupted possession for the space of twenty years next preceding the institution of this suit."
"This instruction is given, although not strictly as asked."
"13. That if, at the dates of the sale and conveyance from Sheriff Connor to Alexander McNair read in evidence by defendant, the premises conveyed in said deed were susceptible of a description by which the same might have been identified with reasonable certainty, and if the same were not so described either in the levy or sheriff's deed, then the said deed is void and vested no title in McNair."
"This instruction involves one matter of law, appertaining to the decision of the court on a motion heretofore made to reject the sheriff's deed, and overruled, and therefore the instruction is refused, but the jury is instructed that it is its duty to find whether the land described in the sheriff's deed is the land in dispute in this action and the same land that was confirmed to Jacques Clamorgan, and if the land in dispute is not the same land conveyed by the sheriff's deed and confirmed as aforesaid, then said deed cannot furnish a defense to this defendant."
"14. That if, at the date of the levy and sale by Sheriff Connor to Alexander McNair read in evidence by defendant, Jacques Clamorgan owned two tracts of land, each of them containing one arpent in front by forty in depth, both situated in the Little Prairie and adjoining the then Town of St. Louis, then the deed from Sheriff Connor to Alexander McNair read in evidence by defendant is void for uncertainty."
"This instruction is refused because there was no legal evidence given to the jury either proving or tending to prove that on 8 July, 1808, Jacques Clamorgan was the owner of two such tracts of land."
"15. That the execution in favor of Rufus Easton against the executors of Jacques Clamorgan dated 3 April, 1826, and read in evidence by the defendant, and all the proceedings of the sheriff under and by virtue of that execution, are null and void. Refused."
"16. If the jury find from the evidence that the boundaries described in the deed from John K. Walker, Sheriff, to John
O'Fallon and Jesse G. Lindell, given in evidence by the defendant, were not, at the time of the sale by the said sheriff, the true boundaries of the tract of one by forty arpents that had been confirmed to Jacques Clamorgan, as mentioned in the certificate and record of confirmation given in evidence by the plaintiff, and that the same has not been bounded in the manner stated in said deed for a period of more than twenty years, and that the deed referred to in the said description contained in said sheriff's deed, as the one from which it was taken, had no existence in fact, then the said description is insufficient, and said sheriff's deed from Walker is void unless the jury shall find from the evidence that the said tract of one by forty arpents was generally known in the community at the date of said sale by the description given in said deed."
"This instruction is refused, and the jury instructed instead thereof that they must find the land in dispute was covered by Sheriff Walker's deed to O'Fallon and Lindell before that deed can avail the defendant as an outstanding title."
"17. That the deed, given in evidence by the defendant, from Jeremiah Connor, Sheriff, to Alexander McNair conveyed no title to said McNair to the tract of one by forty arpents mentioned in the confirmation of the Board of commissioners of date November 13, 1811, given in evidence by the plaintiff. Refused."
"And thereupon the court gave the 1st, 2d, 9th, 11th, and 12th instructions, and refused to give the remainder, but in place of the 5th gave the following:"
"5. The unregistered deed made by Sheriff Connor to McNair on 8 July, 1808, was valid as between Clamorgan, the execution debtor, and McNair, the purchaser, and equally so as against the devisees of Clamorgan, without being recorded. But it was not valid as against a purchaser of the same premises from Clamorgan's devisees, who purchased for a valuable consideration and without notice of the existence of the deed of 1808."
"The deed on which the plaintiff relies was made in April, 1845, and if the plaintiff then had actual notice of the deed of 1808, it was valid also as to him, without having been recorded. And if the jury find that the defendant Brant was in the open and notorious possession and occupation of the premises when the deed of 1845 was made, and had been so for years before that time, continuously holding under the deed of 1808, then this is evidence from which, connected with other circumstances, the jury may find that the plaintiff had actual notice of the existence of the deed of 1808, when he took his deed in 1845. And so the jury are instructed."
"And in place of the 10th, gave the following: "
"10. This instruction, as asked for, is refused for the reason that it involves confusion; we are of opinion that the legal title to the premises embraced by the sheriff's deed was in the United States until the patent issued, provided the deed covers the land in dispute, but that the imperfect title owned by Clamorgan did pass by the sheriff's deed made by Connor to McNair, 8 July, 1808, and that neither the act of confirmation by the Board of commissioners in 1811 nor the issuance of the patent in 1845 defeated the title made by Sheriff Connor in 1808, and so the jury are instructed."
"And in place of the 13th, gave the following:"
"13. This instruction involves one matter of law appertaining to the decision of the court on a motion heretofore made to reject the sheriff's deed, and overruled, and therefore the instruction is refused, but the jury is instructed that it is its duty to find whether the land described in the sheriff's deed is the land in dispute in this action and the same land that was confirmed to Jacques Clamorgan, and if the land in dispute is not the same land conveyed by the sheriff's deed and confirmed as aforesaid, then said deed cannot furnish a defense to this defendant."
"And in place of the 16th, gave the following:"
"16. This instruction is refused and the jury instructed instead thereof that they must find the land in dispute was covered by Sheriff Walker's deed to O'Fallon and Lindell, and before that deed can avail the defendant as an outstanding title."
"To the refusal of which several instructions as asked for, the plaintiff at the time excepted."
The defendant then moved the court for the following instructions:
"1. If the jury find from the evidence that the tract of land sold and conveyed by Jeremiah Connor, Sheriff, to Alexander McNair, in 1808, as the property of Jacques Clamorgan, is the same tract of land which was claimed by said Clamorgan before the Board of commissioners and confirmed to him, then the confirmation to said Clamorgan enures to said Alexander McNair and those claiming under him. Given."
"2. If the jury finds from the evidence that the lot in dispute is embraced in the tract of land sold and conveyed by John K. Walker, Sheriff, to Jesse G. Lindell and John O'Fallon in 1836 by virtue of the judgment and execution in favor of Rufus Easton against the executors of Jacques Clamorgan, then the plaintiff is not entitled to recover. Given."
"3. If the jury find from the evidence that the defendant and
those under whom he claims have been in possession of the lot in controversy for twenty years consecutively prior to the commencement of this suit and since Apoline Clamorgan and Cyprien Martial Clamorgan, under whom the plaintiff claims, arrived at the age of twenty-one years, that such possession was under a claim of title adverse to the plaintiff and those under whom he claims, then the issue ought to be found for the defendant. Given."
To the giving of which the plaintiff objected, but the court overruled the objection, and gave each of said instructions, to which the plaintiff excepted at the time.
Verdict for plaintiff, and judgment thereon, upon which this writ of error was sued out.