1. If for any reason appearing in the record it is clear that a
plaintiff in error who was also plaintiff below cannot recover in
the action, the court will not determine whether error was
committed in instructions given to the jury respecting other parts
of the case. To warrant the reversal of a judgment, there must not
only be error found in the record, but the error must be such as
may have worked injury to the party complaining.
2. A mortgagor of land, as between himself and his mortgagee,
has only an equitable title. He cannot, therefore, recover in
ejectment against the mortgagee in possession after breach of the
condition or against persons holding possession under the
mortgagee.
Quaere whether such a suit can be maintained until
redemption, even though the money secured by the mortgage has been
paid or tendered.
3. Twenty-five adjoining tracts of wild and uninhabited land,
surveyed in a block and separated by no marks on the ground, were
purchased from the commonwealth by one person at one time and
subsequently conveyed by him as an entirety by one deed. His
grantee also conveyed them as a whole by one deed, and the second
grantee mortgaged them as a whole in the same way. After the debt
secured by the mortgage fell due, the mortgagee placed a tenant
upon the lands, whose actual occupancy, or
pedis
possessio, did not extend beyond the limits of a single
tract
Held that the possession of the whole body of land, as
described in the deed, must be presumed to have been taken by the
mortgagee in right of the mortgage.
4. An irregular judicial sale made at the suit of a mortgagee,
even though no bar to the equity of redemption, passes to the
purchaser at such sale all the rights of the mortgagee as such.
5. No presumption of payment of a mortgage can arise from lapse
of time against a mortgagee or his assigns in possession when the
mortgagor became insolvent and died before the debt fell due and
when his vendee of the equity of redemption also became insolvent
before the maturity of the debt, removed from the state, and never
afterwards returned.
The tract for a fourth of which the ejectment was brought was
the easternmost of twenty-five adjoining tracts in Pennsylvania
which were surveyed in 1793, on warrants issued the same year, and
for which separate patents were issued
Page 77 U. S. 520
on the 9th and 10th of May, in 1816, to one George Grant, who in
the same year conveyed the whole, forming a tract of 10,000 acres,
to Thomas B. Smith. Smith conveyed the whole in undivided fourths,
on the 27th of September, to Michael Brobst and three other
persons, one-fourth to each. On the 6th March, 1817, Brobst
mortgaged his undivided fourth to Samuel Wood for $1,500, payable
on the 1st of April, 1821, the mortgage being properly recorded.
The deeds of both Grant and Smith, and the mortgage of Brobst
described the land collectively as one tract.
Michael and John Brobst were brothers, and were engaged in
partnership in making iron in Berks County, in the eastern part of
Pennsylvania. They failed in business, and confessed several
judgments, among them one, January 17, 1817, for $1,000, to Jacob
Kutz and Jacob Levan.
On the 15th May, 1817, Michael Brobst conveyed to his brother,
John Brobst, his undivided fourth of the twenty-five tracts and
went to Illinois, where he died in 1820, never having married, news
of his death being brought to Pennsylvania about 1823.
John Brobst left the eastern parts of Pennsylvania, where he
lived, about the year 1820, went to distant parts of the state for
a short time, and in 1824 out of it to Maryland. His place of
residence was unknown to his relatives in Pennsylvania. He was
supposed to be dead, and about the year 1847, letters of
administration on his estate were issued, though in point of fact
he did not die till 1861.
The mortgage already mentioned as given in 1817 by Michael
Brobst to Wood, having been assigned in the same year by Wood to a
certain Dunn, and by him to one Boyer. Boyer, on the 3d of
November, 1825, proceeded by the mode usual in Pennsylvania, where
mortgages are recorded and considered in some respects, as records,
to foreclose it -- that is to say he issued upon it a writ of
scire facias under an act of 1705.
By this old act, the mortgagee is authorized, a year and a day
after the mortgage is payable, to sue forth, if it remains unpaid,
a writ of
scire facias from the court of common
Page 77 U. S. 521
pleas of the county where the mortgaged premises lie, directed
to the proper officer, requiring him, by honest and lawful men of
the neighborhood,
"To make known to the mortgagor,
his, her, or their heirs,
executors or administrators, that he or they be and appear
before the magistrates, judges, or justices of the said court or
courts, to show if anything he or they have to say wherefore the
said mortgaged premises ought not to be seized or taken in
execution for payment of the said mortgage money, with interest
&c. . . . And if the defendant in such
scire facias
appears, he or she may plead satisfaction or payment of part or all
the mortgage money, or any other lawful plea; but if such
defendants in such
scire facias will not appear on the day
whereon the writ shall be made returnable, then, if the case be
such as damages only are to be recovered, an inquest shall
forthwith be charged to inquire thereof, and the definitive
judgment therein as well as all other judgments to be given upon
such
scire facias shall be entered, that the plaintiff in
the
scire facias shall have execution by
levari
facias, directed to the proper officer, by virtue whereof the
said mortgaged premises shall be taken in execution and sold,"
&c.
The writ issued as already mentioned was directed against
"Michael Brobst with notice to
terre tenant," and
confessedly was not served in the way the most proper. There was no
personal service upon the mortgagor, who in fact was dead, nor any
upon his heirs or representatives, nor any upon the true
terre
tenant -- that is to say, upon John Brobst, the holder of the
title being the only person regarded in Pennsylvania as falling
within that designation. Neither was this want of actual service
supplied by a return of two
nihils, which in Pennsylvania
are commonly regarded as the equivalent of service. The return was
thus:
"Served upon Jacob Rodeberger,
terre tenant, 21 miles.
Sci. fa. sur mortgage, debt $3,000. March 29, 1826,
judgment
lev. fac. July Term 1826, 46."
Upon this irregular service, judgment was entered on motion that
the mortgaged lands be sold to satisfy the debt. And
Page 77 U. S. 522
upon this judgment all the mortgaged property was sold on the
22d March, 1828, to one Charles Frailey, to whom a sheriff's deed
was made, Frailey purchasing at the request of Boyer, assignee of
the mortgage, and with his money. He subsequently conveyed to John
Smull, whose title became vested in Brock and others, defendants in
the case.
The body of lands patented to Grant were uninhabited until about
1824, when one Philip Rodeberger erected a small log tavern in what
was still a wilderness, upon a tract adjoining the tract whose
fourth part was here sued for, and cleared an acre or two of
ground.
In 1834 a partition of some sort, valid or invalid, was made of
the four undivided fourths of the whole twenty-five tracts, and the
parties who had been originally co-owners with the Brobsts took
what they considered their own purparts in severalty.
No further improvements than Rodeberger's were made on any of
the purparts until 1847, when the owners of some of the purparts
(not derived through the Brobsts) laid out towns, began building
railroads, opening coal mines, and making extensive and costly
improvements, which had been continued to the present time, when
not less than ten thousand people live in the various towns laid
out on the land -- with their churches, halls, manufactories,
stores, school houses, dwellings, cemeteries &c.
About the year 1848, possession was taken of the purpart
allotted to the Brobst alienees by the present defendants and those
from whom they derived title, who had paid taxes from that time to
the present, and on these purparts, also, similar improvements had
been made and hundreds of houses and other buildings erected and
inhabited by a large population, and more than half a million of
dollars expended in mining improvements.
In this state of things, the heirs and devisees of John Brobst
brought the present ejectment, A.D. 1865, against Brock and others
to recover, as already stated, an undivided fourth of one of the
tracts, one warranted in the name of Deborah Grant.
Page 77 U. S. 523
In addition to the title made, as already stated, under the
mortgage, the defendants asserted that they were possessed of a
title under the partition made in 1834; also by virtue of a
sheriff's sale of the property under the judgment of Kutz and
Levan, already mentioned as entered against the Brobsts, also under
a tax sale, as the property of John Brobst, of the particular lot
sued for.
Every one of the titles set up by defendants, including all the
last-mentioned titles, were disputed by the plaintiff as irregular,
null, and void.
The court below (Grier, J) charged that the title set up under
the partition was good enough, as also that set up under the
judgments of Kutz and Levan. In regard to the title set up under
the mortgage, he said that it was not necessary to decide whether
those proceedings were regular and sufficient to extinguish the
equity of redemption and vest a title in the purchaser, but that
admitting that they might have been set aside or could be, it was
first necessary to show that the mortgage debt was paid or offered
to be paid, which was not shown; that as to redemption now, more
than thirty years had elapsed, during which time John Brobst, the
owner of the equitable title, had taken no step to assert or
establish his right to redeem. That in such case the presumption of
law was that he had released his equitable right, and equity would
give him no remedy after his sleep of thirty years. "He must now,"
said the court, "as plaintiff in this case, show a legal title. He
has shown no valid title, either legal or equitable."
Judgment having gone for the defendant, the plaintiff brought
the case here.
Page 77 U. S. 528
MR. JUSTICE STRONG delivered the opinion of the Court.
Much of the very elaborate argument addressed to us on behalf of
the plaintiff in error was directed to the consideration of
questions not necessary to the decision of this case. Whether the
judgment in the
scire facias upon the mortgage was
absolutely void or only irregular we are not called upon now to
determine, for on the trial of the case in the court below, no
effect was allowed to it. The learned judge who presided at the
trial did not rule that the judgment was valid, or that the sale
made under it divested the equity of redemption of the mortgagor,
or of John Brobst, to whom the equity had been conveyed. It is true
the defendant set up that he had acquired title under that sale,
and had that been his only defense, it would be necessary to
consider whether it was sufficient to extinguish the equity of
redemption. But there were several other defenses, two of which the
court below ruled sufficient to protect the defendant in his
possession. If the ruling was correct, or if either of these
defenses was perfect, it matters not what may have been the
instruction given to the jury respecting other parts of the case.
It would be idle to reverse the judgment and send the case back for
a new trial if it be certain that the plaintiff cannot recover in
the action. In
Greenleaf's Lessee v. Birth, [
Footnote 1] it was stated to be
"a general rule that where there are various bills of exceptions
filed according to the local practice, if, in the progress of the
cause, the matters of any of those exceptions become wholly
immaterial to the merits as they are finally made out at the trial,
they are no longer assignable as error, however they may have been
ruled in the court below. There must be some injury to the party to
make the matter generally assignable as error."
So in
Campbell's Executors v. Pratt, [
Footnote 2] the Court refused
Page 77 U. S. 529
to reverse a decree of the circuit court, although an error had
been committed, as no benefit could result to the appellant from
the reversal.
Without noticing, therefore, for the present at least, the
particular exceptions taken in the court below, we proceed to
inquire whether the record exhibits any insuperable obstacle to the
plaintiff's recovery in this action. Both parties claim under
Michael Brobst, who, on the 27th day of September, 1816, became the
owner of one undivided fourth part of twenty-five adjoining tracts
of land, of which the tract now in controversy was a part. The
whole body was then, and during many years thereafter, wild,
uncultivated, and uninhabited. While thus, the owner, Michael
Brobst, on the 6th day of March, 1817, mortgaged his interest in
the entire body of lands to Samuel Wood to secure the payment of
fifteen hundred dollars, with interest, on the 1st day of April,
1821. This mortgage, by subsequent assignments made in the same
year, became the property of Boyer. On the 15th of May, 1817, after
the execution of the mortgage, Michael Brobst conveyed his
remaining interest in the lands to John Brobst in fee, who does not
appear ever to have made any entry upon them or to have claimed
possession prior to his death, which occurred in 1861. It is as an
heir and devisee of John Brobst that the lessor of the plaintiff
claims. The defendants claim under Wood, the mortgagee, through
Boyer, the assignee of the mortgage. They also set up several other
titles, which it is not necessary now to notice. It thus appears
that what John Brobst acquired by the deed of Michael Brobst to him
was only an equity of redemption. As between his grantor and Wood,
or Wood's assignees, the legal title was then in the latter, and so
it continued notwithstanding the conveyance of the equity of
redemption to John Brobst.
It is true that a mortgage is in substance but a security for a
debt, or an obligation to which it is collateral. As between the
mortgagor and all others than the mortgagee, it is a lien, a
security, and not an estate. But as between the parties to the
instrument or their privies it is a grant
Page 77 U. S. 530
which operates to transmit the legal title to the mortgagee and
leaves the mortgagor only a right to redeem. Formerly, if the
condition was not strictly performed, the estate of the mortgagee,
at first conditional, became absolute and the mortgagor's right to
redeem was lost. The estate or interest, though defeasible at its
inception, became unconditional on the failure of the mortgagor to
pay the money secured or fulfill the condition at the time
appointed for performance. [
Footnote 3]
Courts of equity have in modern times relieved against such
forfeitures, and, in favor of a mortgagor, have extended the time
for redemption. But such courts, as fully as courts of law, have
always regarded the legal title to be in the mortgagee until
redemption, and bills to redeem are entertained upon the principle
that the mortgagee holds for the mortgagor when the debt secured by
the mortgage has been paid or tendered. And such is the law of
Pennsylvania. There, as elsewhere, the mortgagee, after breach of
the condition, may enter or maintain ejectment for the land. And
having entered, he cannot be dispossessed by the mortgagor so long
as the mortgage continues in force. Applying these principles to
this case, it is plain that, John Brobst having acquired only an
equity by the deed from Michael Brobst, neither he nor his heirs
can recover in ejectment against those in possession under the
mortgagee while the mortgage remains in existence, or until there
has been a redemption.
It is true that in the state courts of Pennsylvania, ejectment
may be maintained upon an equitable title, but such has never been
the rule in the federal courts. It becomes, therefore, a material
inquiry whether the legal title which was in Wood has ever been
acquired by John Brobst or his heirs, and also whether the
defendants are in possession under Wood, and in virtue of the
mortgage. It has already been noticed that Boyer became the
assignee of the mortgage in 1817. It was assigned by Wood to Dunn
and by
Page 77 U. S. 531
Dunn to Boyer. The assignments were undoubtedly sufficient to
transmit the rights and estate of the mortgagee. When the debt
secured by the mortgage fell due in 1821, no effort was made to
redeem, and none has been made to the present day. There is no
evidence that anyone was in actual possession of the lands before
1821 or at any time before the condition of the mortgage was
broken. But after that time, Boyer had possession by his tenant,
Roderberger, who occupied a house upon the body of lands mortgaged,
certainly as early as 1825. In regard to this there is no dispute
and no contradictory evidence. It is true Roderberger was resident
upon one of the twenty-five tracts which adjoins the tract now in
dispute. But though for the purpose of acquiring title from the
commonwealth several patents were taken, they described
collectively but one tract. Several patents were required under the
law of the state when there were, as in this case, several
warrants. The warrants were each issued for four hundred acres, and
an allowance of six percent, and the law required the patents to
follow the surveys made on each warrant. The whole twenty-five
tracts belonged to one person. They were all patented to George
Grant on the 9th and 10th days of May, 1816, and they adjoined each
other, so as to constitute one tract or body. Grant sold them
together, as a whole, to Smith, who in turn sold an undivided
fourth part of the whole body to Michael Brobst by one deed. So
Michael Brobst mortgaged his entire estate in the whole to Wood,
and conveyed his equity of redemption by one deed to John Brobst.
From the beginning, the entire body of land was treated as one
subject of grant or mortgage, though held under several
conveyances. After Grant became the owner, nothing in the title
ever separated the tracts before Boyer took possession. Having been
paid for originally by one person, and one warrant calling for
another as an adjoiner, it is not probable the interior lines of
the block were ever run. We have not the surveys before us, but
when surveys in Pennsylvania are laid in a block (that is so as
together to constitute one tract), under warrants issued at the
same time
Page 77 U. S. 532
and calling for each other, it is not required, nor is it usual,
that the surveyors run more than the exterior lines.
It is then to be presumed there was nothing upon the ground to
distinguish one part of the entire body from any other part, and
the mortgage treated it all as one hypothecation. The entry of
Boyer, therefore, by his tenant, Rodeberger, upon any part of this
large tract must be held to have been an entry upon the whole, a
taking possession of the whole. There is nothing in
Ellicott v.
Pearl [
Footnote 4] in
conflict with this. On the contrary, it was there held, as had been
frequently held before, that one entering under color of title by
deed is deemed to have taken possession coextensive with the bounds
of the deed -- that is, of all the land conveyed by the deed -- if
it is not in any adverse possession. Here, Boyer entered under a
deed. Having a right to enter only in virtue of the mortgage of
which he was assignee, it is a legal presumption that his entry was
in right of it, under color of his title, and that he intended to
assert his claim to the entire subject of the grant. It follows
that the entry transferred the possession of the whole body of the
land from John Brobst to Boyer, and that no matter where his
"pedis possessio" was taken, he acquired possession to the
extent of the mortgage deed. There is no distinct evidence how long
he continued an actual occupation by his tenants. It is enough that
Brobst never afterwards sought to regain possession, and the
presumption of law therefore is that the possession remained in
Boyer so long as his rights under the mortgage continued. On the 3d
of November, 1825, he caused a
scire facias to be issued
under the statute law of the state against the mortgagor, with
notice to
terre tenants requiring them to show cause why
the lands should not be sold and the proceeds of sale applied to
the payment of the debt. This writ was not served upon the
mortgagor or upon John Brobst, the owner of the equity of
redemption. The sheriff's return was, "Served upon Jacob
Rodeberger,
terre tenant." Nevertheless a judgment was
entered on motion.
Page 77 U. S. 533
That judgment was that the lands mortgaged be sold to satisfy
the debt. Had the judgment been authorized, even though erroneously
entered, a sale under it would have passed to the purchaser both
the interest of the mortgagee in the lands and the equity of
redemption then in John Brobst.
But it is contended the judgment was void in law because no
service of the
scire facias was made upon the mortgagor or
the actual
terre tenant, John Brobst (no one but the
holder of the title being recognized as a
terre tenant),
and because there was no return of
"Nihil" in default of
such service. We shall not discuss that. Assuming that the
objection is well taken, and so it was assumed in the court below,
it is still true that the record exhibited a formal judgment. Upon
this a writ of
levari facias was issued, and all the lands
described in the mortgage were sold under it to Charles Frailey, on
the 22d of March, 1828, to whom a sheriff's deed was duly made.
Frailey purchased at Boyer's instance, with Boyer's money, and, of
course, for Boyer. Subsequently, at Boyer's request, he conveyed
the property to John Smull, whose title the defendant Brock has. In
regard to all this there is no controversy. The evidence submitted
by the plaintiff shows how Frailey purchased and conveyed. Now the
worst that can be said of the sheriff's sale under the judgment so
obtained is that it did not pass the title to the equity of
redemption; that it did not operate as a foreclosure of the
mortgage. But did it not, in connection with Frailey's deed to
Smull, made at Boyer's instance, and the subsequent conveyances by
which Brock became invested with the title, operate to transmit to
Brock the rights of the mortgagee? We think it did. It would be
"passing strange" if Boyer, after having requested Frailey to buy
at the sheriff's sale and after having furnished him with the money
to purchase and directed him to convey to Smull, could have
asserted his mortgage against Smull or Smull's grantee. Beyond
question the conveyance by Frailey under the circumstances was a
conveyance in effect by Boyer, and it passed all the right to the
land which
Page 77 U. S. 534
Boyer had. It is not necessary to this conclusion that we should
hold the sale under the judgment cut off the equity of redemption.
We express no opinion upon that subject. It is enough that an
irregular or a void judicial sale, made at the instance of a
mortgagee, passes to the purchaser all the rights the mortgagee, as
such, had. For this authority is hardly needed. We may, however,
refer to
Gilbert v. Cooley, [
Footnote 5] where it was held that though a statutory
foreclosure of a mortgage be irregular and no bar to the equity of
redemption, yet the purchaser at the sale succeeds to all the
interest of the mortgagee. In that case there was no evidence that
the purchaser bought at the instance of the holder of the mortgage.
A fortiori must one who has bought from the mortgagee, or
from a purchaser at such a sale for the mortgagee, as in this
instance, obtain all the rights which the mortgagee held. To the
same effect as
Gilbert v. Cooley is the case of
Jackson v. Bowen and Neff. [
Footnote 6] If, therefore, it could be held that Boyer's
possession, through his tenant, Roderberger, did not, of course,
extend over the Deborah Grant tract (which is the tract in contest
in this suit), it would still be established that the defendants
are assignees of the mortgage in possession. The principal
defendant, Brock, consequently is clothed with the rights of the
mortgagee. He is protected by the legal title even though it be
conceded that the equity of redemption is still in existence. From
1821 to 1861, the date of John Brobst's death, and, indeed, until
1865, when this suit was brought, no claim for redemption was ever
asserted. As a general rule, a mortgagor, after his mortgagee has
been in possession twenty years, cannot be heard in advancing a
claim to redeem. As was said in the court below, it is presumed he
has released his equity. A chancellor will not entertain stale
claims. It is true that in most cases where this doctrine has been
avowed, the mortgagee had been in continued actual occupancy,
having not merely a right but a
pedis possessionem. But
the cases are not rested upon that ground, nor is it easy
Page 77 U. S. 535
to see how that can make any difference in the rule when the
mortgagor is out of possession and knows or is bound to know that a
right is asserted against him. The refusal of a court of equity to
interfere is because of the laches of the holder of the equitable
right, and a sleep of forty years such as there was in this case
may well raise every presumption against a claim merely equitable.
All such rights are imperfect, and hence they must be asserted with
vigilance.
It was said in the argument on behalf of the plaintiff in error
that the lapse of more than twenty years raised a presumption that
the mortgage had been paid and that the mortgagee's rights had been
extinguished before this suit was brought. No such point appears to
have been presented in the court below, and hence it ought not to
be mooted here. But how any such presumption can arise against a
mortgagee or his alienee when he has been in possession under the
mortgage we have not been shown. Even if it could, it was
completely rebutted in this case by the evidence submitted by the
plaintiff in error. It was proved without contradiction that
Michael Brobst, the mortgagor, became insolvent, and died in 1820,
before the mortgage debt became due, never having been married, and
leaving no personal representatives, and none but collateral heirs.
John Brobst, his alienee, also became insolvent, removed to the
western part of the state and thence to Maryland in 1827, where he
resided until his death in 1861, never having returned to
Pennsylvania so far as it appears, and having been supposed to be
dead. These facts, shown by the plaintiff, were quite enough to
repel any presumption of payment arising from the lapse of time.
Had they been submitted to the jury, it would have been their duty
to find that the legal presumption, if any could arise under the
circumstances, was rebutted. To this the authorities are numerous.
[
Footnote 7]
Page 77 U. S. 536
The defendant Brock then, if all his other titles are shut out
of view, is, as has been said before, in the position of a
mortgagee in possession, and the lessor of the plaintiff has at
most only an equity of redemption -- an equity more than commonly
stale. From 1825, when Rodeberger was certainly in possession under
Boyer, until 1865, when this suit was brought, no attempt was made
to assert the equity or to redeem the land. Meanwhile, extensive
improvements have been made upon the property and it has been
converted from a wilderness to a populous settlement. It is hardly
probable that at this late day a bill to redeem would be
entertained by any chancellor. But this we need not now decide. It
is sufficient that there has been no redemption. It has been held
that ejectment will not lie at the suit of a mortgagor against his
mortgagee in possession after breach of the condition, even if the
money secured by the mortgage be paid or tendered. This was said by
the Supreme Court of Massachusetts in
Hill v. Payson,
[
Footnote 8] and solemnly
decided by the same court in
Parsons v. Wells, [
Footnote 9] where may be found a
thorough discussion of the subject. The doctrine of that case is
that the only remedy for a mortgagor or his assignee, after payment
of the debt, if the mortgagee, having entered for condition broken,
refuses to relinquish possession of the mortgaged premises, is by
bill in equity. This was shown to be in accordance with the rules
of the common law, as well as implied in the statutes of the state,
and this seems to rest upon correct principles. If it were not so,
a mortgagor might remain quiet until his mortgagee in possession
(the property being unimproved, as in this case) had made
improvements necessary for obtaining any income therefrom. He might
then tender the debt and interest, and recover the possession
without making any compensation for the improvements. The mortgagee
in such a case would have no remedy for his disbursements. But if
the mortgagor must file a bill to redeem, asking for equity, he may
be compelled to do equity.
Page 77 U. S. 537
Hence there is justice and fitness in holding that the legal
title remains in the mortgagee until redemption, though the debt
has been paid. It is observable that the statute of 7 Geo. II, ch.
20, enacted that a mortgagee shall not maintain ejectment, after
payment or tender by the mortgagor of principal, interest, and
costs. There could have been no necessity for such an enactment if
the legal title had not remained in the mortgagee. The point has
never been decided by this Court, but in
Gray v. Jenks,
[
Footnote 10] Judge Story
intimated at least that such was his opinion, though the case did
not call for such a decision. It is true a different rule is said
to prevail in New York from that held in Massachusetts, but it is
not the rule of the common law, nor can it be so promotive of
justice.
This is all that need be said of the case. Were it conceded that
the circuit court was in error in instructing the jury that the
sale under the Kutz and Levan judgment passed whatever title John
Brobst had (which we do not assert), or that the rulings respecting
the partition and the tax title were erroneous, it would not avail
the plaintiff in error, because, for the reasons mentioned, there
can be no recovery in this action.
Judgment affirmed.
[
Footnote 1]
30 U. S. 5 Pet.
135.
[
Footnote 2]
27 U. S. 2 Pet.
354.
[
Footnote 3]
Powell on Mortgages 9-10; 2 Blackstone's Commentaries 158;
Littleton 332.
[
Footnote 4]
35 U. S. 10 Pet.
412.
[
Footnote 5]
Walker's Chancery 494.
[
Footnote 6]
7 Cowen 13.
[
Footnote 7]
Filadong v. Winter, 19 Vesey 196;
Blacket v.
Wall, 3 Meeson & Roscoe 119, note;
Daggett v.
Tallman, 8 Conn. 176;
Newman v. Newman, 1 Starkie 81;
Shields v. Pringle, 2 Bibb 387;
Boardman v. De
Forrest, 5 Conn. 1;
Bailey v. Jackson, 16 Johnson
210;
Godhawk v. Duane, 2 Washington C.C. 323.
[
Footnote 8]
3 Mass. 559.
[
Footnote 9]
17
id. 419.
[
Footnote 10]
3 Mason 520.
