Adams v. Frampton. ton refused to do so, unless the conveyance was made to her; that Vasser then consented the deed might be so made, inasmuch as Hardy would not convey the title until he received his bond; that this was the only reason for the consent of Vasser; that when this deed was executed, the plaintiff was absent from the country, having absconded, and that he has not yet returned; that at that time he was the lawful husband of Eliza Frampton; that previous to the execution of the deed to Mrs. Frampton, the plaintiff had paid the purchase money to Hardy; that in the summer of 1832, the plaintiff was in possession of the lands under his purchase from Hardy; that subsequent to the execution of the deed by Hardy to Mrs. Frampton, she was by a decree of the Court of Chancery, divorced a vinculo, and this decree was confirmed by an act of the Legislature, in the year 1844; that she intermarried with one Paulding, and they by joint deed on the 14th November, 1840, sold and conveyed to the defendant, who went into possession under this purchase, and claims title under it; that the decree of divorce was rendered since the execution of the deed to the defendant, and since the commencement of this suit; that Paulding and wife, since the passage of the act referred to, have married again; that the lands are worth, by way of rent, six dollars per ann.; and that the defendant has been in possession five years. The court gave judgment for the plaintiff on this verdict, and that is now assigned as error. THOS. WILLIAMS, for the plaintiff in error, made the following points: 1. In real actions for the recovery of the wife's land, the husband and wife must join. [1 Chit. Plead. 66; 2 Kent's Comm. § 131.] 2. When the deed is to husband and wife, both are seized of the entire estate, and the survivor takes the whole, [2 Kent's Comm. 133;] therefore a deed to the wife alone, must give the whole to her. 3. But conceding the title once in the plaintiff, that must continue at the time of trial. [7 Ala. Rep. 480.] By the divorce a vinculo, the right of the husband in the wife's es Adams v. Frampton. tate ceases from the decree. [1 Fonbl. 311; Roper on Wills, 71.] 4. Frampton had no legal title-that which he had was equitable only. The legal title was in Mrs. Frampton, and the defendant claims under her. Legal title will prevail at law over one that is equitable. [8 Term, 2; 5 East, 132; 2 Sch. & Lef. 67.] G. W. GAYLE, contra, insisted that the merits of the case were within a nut-shell. none. 1. Because a possessory title is good against one who has Frampton had possession, and the deed of his wife, without regard to the question of her title, is void, being executed during coverture. [4 Cruise's Dig. 19.] 2. Even if Hardy's deed vested a title in Mrs. Frampton, the husband can recover in an action in his own name. [16 Pick. 161, 235; Griffith v. Houston, 7 J. J. Marsh. 385.] GOLDTHWAITE, J.-1. The special verdict states the possession of the plaintiff, in 1832, under an equitable title, and this possession seems to have been continued by the wife, until the period when she executed her deed to the defendant. This deed is entirely void, as the wife had no capacity to contract without her husband's consent. The defendant then, has exhibited no title whatever against that of the plaintiff, and the latter is entitled to recover, if the suit is correctly brought, and is not defeated by the divorce a vinculo. [Day v. Alverson, 9 Wend. 223; Whitney v. Wright, 15 Ib. 171; Jackson v. Hubble, 1 Cowan, 613; Jackson v. Miller, 6 Ib. 751; Badger v. Lyon, 7 Ala. Rep. 564; Smoot v. Lecatt, 1 Stewart, 598.] 2. The possession being in the husband previous to the acceptance by the wife of the deed from Hardy, no one coming into possession under the act of the wife, can dispute the right of the husband to regain the possession, unless he connects himself with a better title. The defendant has failed to do this, because of the entire invalidity of the deed by the wife, and therefore it is unnecessary to consider what the title of the wife is, under that deed, as it is clear the husband is not thrown on that to maintain his action. Wilson v. Collins, use, &c. For the same reason, it is unnecessary to consider what the effect is of the divorce a vinculo. Both these questions will be better considered when the husband shall regain his possession, and his former wife assert her title. Judgment affirmed. WILSON v. COLLINS, USE, &c. 1. Upon an appeal, or certiorari, from a justice's court, there can be no change of the parties; they must be the same as in the inferior court, 2. A confession of judgment before a justice of the peace, is a release of errors, after which it cannot be carried to an appellate court, either by appeal or certiorari. If the confession was by mistake, or procured by fraud, it seems a Court of Chancery would afford relief. Error to the County Court of Sumter. METCALFE, for the plaintiff in error. ORMOND, J.-This was a judgment confessed by the plaintiff in error, before a justice of the peace, for $50, in favor of the defendant in error, which was rendered against him individually, and as administrator of Joseph Wilson. The judgment of the justice was removed by certiorari, into the County Court, on the petition of the plaintiff in error, alledging that he confessed the judgment under the belief, that a garnishment which had been taken out against him, and served on him, from the Circuit Court of Marengo, had been discharged, by a satisfaction of the judgment, but that it is still pending and undetermined. The County Court permitted a declaration to be filed against him individually, upon which judgment was rendered against him. This is now assigned as error. Duncan, use, &c. v. Hall. It is very certain that there cannot be a change of the par-ties, upon an appeal from the judgment of a justice of the peace. It is to be tried de novo, according to the equity and justice of the case, but the integrity of the cause must be maintained. But although this action of the court was erroneous, we are of the opinion it cannot be taken advantage of here. A judgment by confession is a release of all errors, [Clay's Dig. 321, § 51,] and we know of no reason, why this should not apply as well to the judgments of justices of the peace, as to those of courts of record. Being a release of errors, the County Court could not take jurisdiction of the case, either by appeal or certiorari, and should have repudiated it. The action of the court, though erroneous, has not prejudiced the plaintiff in error. His condition is no worse now, than it would have been if the court had dismissed the supersedeas. If the judgment was confessed by mistake, or the confession was procured by fraud, it might be a sufficient reason, for the Court of Chancery to interpose by injunction; or if two persons are asserting a right to the same debt, to justify him in filing a bill to compel them to interplead. The existence of these facts, however, will not authorize a court of law to interpose; they are matters exclusively of equitable cognizance. It is our opinion therefore, that there is no error in the record, of which the plaintiff in error can complain, and the judgment of the court must be affirmed. DUNCAN, USE, &c. v. HALL. 1. A note given by a purchaser of a subdivision of the public lands, as a compensation to one who, previous to the purchase, had settled upon and improved the same, is not supported by a consideration which will authorize its recovery. Duncan, use, &c. v. Hall. Writ of Error to the Circuit Court of Cherokee. THIS cause was instituted by the plaintiff in error, before a justice of the peace, for the recovery of the amount of a note for the sum of forty dollars. A judgment was rendered in favor of the plaintiff, and the case was thereupon removed by appeal to the Circuit Court, where a trial was had by a jury upon issues joined on the pleas of non assumpsit, want of consideration, and failure of consideration. A bill of exceptions was sealed at the instance of the plaintiff. The rulings of the presiding judge, in charges refused and given, present the following questions: 1. If one purchases a legal subdivision of the public land of the United States, on which an other person had previously settled and made improvements, and as an inducement to such settler to yield up the land, with the improvements, makes his promissory note for an amount agreed, is that note supported by such a consideration as to authorize a recovery thereon? 2. Will it vary the case that the amount of the note was prescribed by the mutual friends of the parties, to whom the matters of difference had been referred? These questions were decided adversely to the plaintiff a verdict was returned for the defendant, and judgment was rendered accordingly. A. WHITE, for the plaintiff in error, insisted, the consideration of the note was sufficient-1. It was a benefit to be conferred, in giving possession of the land. [Shaw v. Boyd, 1 S. & P. Rep. 83; Comstock v. Smith, 7 Johns. Rep. 87; Parker v. Crane, 6 Wend. Rep. 643; Rhea, Conner & Co. v. Hughes, 1 Ala. Rep. 263.] 2. It was a submission to arbitration, and for the prevention of litigation, which of itself is a sufficient consideration to sustain the note. [Kennedy v. Davis, 2 Bibb's Rep. 343; 2 Id. 449; 6 Monr. Rep. 91; 1 Atk. Rep. 10; 2 Id. 592.] 3. A fair and amicable compromise is a sufficient consideration to sustain a bond. [Butler v. Triplett, 1 Dana's Rep. 152; Sheppard v. Watrous, 3 Caine's Rep. 166.] 4. Again, there was a moral obligation to pay for the improvements upon the land, and an express promise which will support an action. [Cameron v. Fowler, 5 Hill's Rep. 215.] |