267] STRAWBRIDGE et al.

v.

CURTISS et al.

If there be two or more joint plaintiffs, and two or more joint defendants, each of the plaintiffs must be capable of suing- each of the defendants, in the courts of the United States, in order to sup¬ port the jurisdiction.

THIS was an appeal from a decree of the circuit court, for the district of Massachu¬

Note. — A controversy is not “ between citizens of different states,” unless all the persons on one side of it are citizens of different states from all the persons on the other side. If any of the plaintiffs

Cranch 3.

setts, which dismissed the complainants’ bill in chancery, for want of jurisdiction.

Some of the complainants were alleged to be citizens of the state of Massachusetts. " The de¬ fendants were also stated to be citizens of the same state, excepting Curtiss, who was averred to be a citizen ''of the State of Vermont, and upon whom the subpoena was served in that state. '

The question of jurisdiction was submitted to the court without argument, by P. B. Key, for the appellants, and Harper, for the appel¬ lees.

On a subsequent day,

Marshall, C h. J. , delivered the opinion of the Court.

The court has considered this case, and is of opinion that the jurisdiction cannot be sup¬ ported.

The words of the act of Congress are, “where an alien is a party; or the suit is between a citizen of a state where the suit is brought, and a citizen of another state.”

The court understands these expressions to mean, that each distinct interest should be rep¬ resented by persons, all of whom are entitled to sue, or may be sued, in the federal courts. That is, that where the interest is joint, each of the persons concerned in that interest must be competent to sue, or liable to be sued, in those courts.

But the court does not mean to give an opin¬ ion in the case where several parties represent several distinct interests, *ancl some of

those parties are, and others are not, competent to sue, or liable to be sued, in the courts of the United States.

Decree affirmed.

Distinguished — 12 Blatchf. 290 ; Brock. 262. Modified— 2 Wood. & M. 231, 232.

Cited— Followed 1 Wheat. 95; 8 Wheat. 452 (n.;) 14 Pet. 64; 2 How. 554; 15 How. 248 ; 16 How. 340 ; 18 How. 469 ; 11 Wall. 174 ; 18 Id. 574 ; 3 Blatchf. 88 ; 6 Id. 113; 12 Id. 241 ; 1 Dili. 293, 297, 300 ; 1 Paine 412 ; 2 Paine 105 ; 2 Mason 197 ; 4 McLean 225 ; 2 Sum. 345, 347 ; Id. 473 ; Id. 596 ; 4 Wash. 346, 598 ; 1 W ood. & M. 38 ; 1 Abb. U. S. 371, 376 ; 3 Otto 205.

and defendants are citizens of the same state, the controversy does not come within the operation of the judicial power of the United States.

Teal v. Walker, 5 Reporter, 202.

Lockhart v. Horn, 1 Woods, 628.

Wickliff v. Eve, 17 How. 468.

But where infant is complainant against citizen of another state, defendant, the next friend of the infant, in the action, may be citizen of same state as defendant.

Williams v. Ritchie, 3 Dill. 406.

To give the court jurisdiction, one of the parties must be a citizen of the state where the suit is brought ; and that fact must be positively averred on the record.

Kelly v. Harding, 5 Blatchf. 502.

Burnham v. Rangely, 1 Wood. & M. 7.

Kitchen v. Strawberry, 4 Wash. C. C. 84.

A citizen of the District of Columbia, or of a territory not yet admitted as a state, is not a citi¬ zen of a “ state ” within the meaning of the statute defining the jurisdiction of the circuit court.

Hepburn v. Elzey, 2 Cranch. 445

Wescott v. Fairfield, Pet. C. C. 45.

New Orleans v. Winter, 1 Wheat. 91.

435

26S

Supreme Court of tiie United States.

1806

GORDON v. CALDCLEUGH et al.

This court has not jurisdiction upon a writ of error to a state court, under the 25th section of the judiciary act of 1789,' if the decision of the state court be in favor of the privilege claimed under an act of Congress.

THIS was a writ of error to the judges of the court of equity of the state of South Caro¬ lina, holden in and for the eastern district of the said state.

James Gordon, “of the city of Charleston, in the state aforesaid,” filed a hill in equity against Caldcleugh and Boyd, ‘ ‘ of London, in the kingdom of Great Britain,” William Muir, “of Hamburgh,” and John Gillespie, George M’Kay, and Joseph Reid, whose residence is not mentioned in the hill. At the return of the subpoena, Caldcleugh, Boyd and Reid, appeared and filed a petition, stating themselves to be aliens, and subjects of the King of Great Brit¬ ain, and that the complainant was a citizen of the state of South Carolina, and praying that the cause might be removed to the circuit court of the United States, according to the 12th section of the judiciary act of 1789. To which petition Gordon, the complainant, an¬ swered, that the prayer thereof ought not to be granted, because Gillespie and M’Kay, two of the defendants, were citizens of the state of South Carolina. But the court, “ after observ¬ ing that the parties, defendants to the suit, re¬ siding in this state, were stakeholders, and not materially concerned in the determination of the cause, ordered that it be transferred to the federal court, agreeable to the prayer of the petition.

The complainant immediately, in the same court, assigned errors, in the following form: “Whereupon the said James Gordon comes 269] and says, that in the giving of the final judgment, in the cause aforesaid, upon the construction of the 12th clause or section of the statute of the United States, entitled an act to establish the judicial courts of the United States, passed the 24th day of September, 1789, and 2d section of the Bd article of the constitu¬ tion of the United States, and the 12th article of the amendment of the constitution, there is manifest error in this, to wit, that the judg¬ ment aforesaid was given in form aforesaid, for the said Caldcleugh, Boyd and Reid, upon their petition, for the removal of the said cause for trial, into the circuit court of the United States, to be held for the district of South Carolina, whereas judgment should have been given for the said James Gordon, against the removal aforesaid ; and this he is ready to verify.

Caldcleugh, Boyd and Reid joined in error; and thus the case came up.

The writ of error did not state that the court of equity of the state of South Carolina, to the judges of which it was directed, was “the highest court of equity of the state in which a decision in the suit could be had,” so as to bring the case within the provisions of the 25th sec¬ tion of the judiciary act of 1789, nor did that fact in any other manner appear.

E. J. Lee, for the plaintiffs in error.

February 13. Marshall, C'h. J after stat¬ ing the case, delivered the opinion of the Court. This court has no jurisdiction under the 25th

section of the judiciary act of 1789, but in a case} where a final judgment or decree has been rendered in the highest court of law or equity of a state, in which a decision in the suit could be had, where is drawn in question the validity of a treaty or statute of, or an authority exer¬ cised under, the United States, and the decision is against their validity, &c. , or where is drawn in question the construction of any clause of the constitution, or of a treaty, or statute of, or commission *held under, the United

States, and the decision is against the title, right, privilege or exemption, specially set up or claimed by either party under such clause of the said constitution, treaty, statute or commis¬ sion.

In the present case, such of the defendants as were aliens, filed a petition to remove the cause to the federal circuit court, under the 12th section of the same act. The state court granted the prayer of the petition, and ordered the cause to be removed; the decision, there¬ fore, was not against the privilege claimed under the statute; and, therefore, this court has no jurisdiction in the case.

The writ of error must be dismissed.

Cited— 1 Wall. 517 ; 5 How. 375.

M’FERRAN v. TAYLOR and MASSIE.

He who sells property on a description given by himself, is bound in equity to make good that de¬ scription ; and if it be untrue in a material point, although the variance be occasioned by mistake, he must still remain liable for that variance.

Quaere, if the mistake be of a matter deemed per¬ fectly immaterial by both parties at the time of the contract, and of a matter which would not have varied the bargain, if it had been known, and of which both parties were equally ignorant, whether a court of equity ought to interfere?

A finding by the jury, which contradicts a fact admitted by the pleadings, is to be disregarded.;

ERROR to a decree of the district court of the district of Kentucky, in chancery. M’Ferran in his bill alleged that on the 19th of March, 1784, the defendant, Taylor, for a valuable consideration, executed his bond to the complainant, for the conveyance of 200 acres of land out of 1,000 acres located by him on Hing- ston, or out of 5,000 acres which Taylor then had fter location. The condition of the bond was as follows: “ That if the said Richard Tay¬ lor, his heirs, &c. , shall well and truly make, or cause to be made, to the said Martin M’Ferran, his heirs or assigns, a good sufficient title in fee- simple to two hundred acres of land in the county of Kentucky, out of 1,000 acre tract, lo-

Note.— An admission by the pleadings cannot be contradicted by the evidence, and is conclusive.

Vau Dyke v. Maguire, 57 N. Y. 431.

“ That what the parties have agreed to in their pleadings shall be admitted though the jury find otherwise.”

7 Bacon’s Abridgement, 459.

A finding by a referee, even if sustained by the evidence, cannot be sustained, if it contradicts the admissions of the pleadings.

Ballou v. Parsons, 11 Hun, 602.

Equity will as a general rule relieve from an act done, or avoid a contract made under mistake as to or ignorance of a material fact, (1 Storys’ Eq. Jur. § 140) and that not only where there has been sup-

Crancli 3.

1806

M’Ferkan v. Taylor and Massib.

cated by the said Richard Taylor on Kingston’s fork of Licking; or 200 acres out of 5,000 which the said Taylor has now for location, provided he obtain the same, at such part or place there¬ of as the said M’Ferran shall choose, not to ex¬ ceed more than twice the breadth in length thereof, so soon as the lands can, in any degree 271] of safety, be surveyed; then this obli¬ gation to be void, otherwise to remain' in full force and virtue. ”

The bill further alleged, that on the 25th of September, in the same year, the defendant, Taylor, executed another bond to the complain¬ ant for 300 acres of land adjoining the former tract of 200 acres.

That the said 5,000 acres of land alluded to by the bonds, was granted to Taylor, for his military services, by a warrant numbered 1,734, which issued for 6,000 acres; but that Taylor did not inform the complainant that it con¬ tained more than 5,000 acres. That 1,000 acres of the 6,000 had been located on Paint creek, and 2,000 on Brush creek, in the northwestern territory, and 3,000 on the Green river, in the district of Kentucky. That Taylor had not any lands on Hingston, so that the complainant cannot make his choice there, where he avers the general quality of the land is equal to any in Kentucky, and is worth from 8 to 10 dollars an acre. That Taylor has sold the 1,000 acres on Paint creek to the defendant, Massie, who, before he paid for the land, and obtained a title from Taylor, had notice of the complainant’s claim to 500 acres from Taylor, as before stated.

That before the sale to Massie, Taylor had sold the 2,000 acres on Brush creek to Abraham Buford, or to some one else, and in consequence thereof, assigned the certificate of survey to John Brown. That in 1796, the complainant applied to Taylor to show him his lands, that he might make his choice, but Taylor neglected and refused to show them. That the complain¬ ant chooses to have the 500 acres laid off, and conveyed to him from the land on Paint creek, and has given notice of his choice to Taylor, who refuses to convey the same from out of that tract, and refuses to accompany the corn-

270

plainant to have the same laid off; and that Massie also refuses to convey.

The bill concludes with a prayer, that the complainant may be permitted to make choice of 500 acres of land out of the 1,000 acres on Paint creek ; that the defendants may be com¬ pelled to convey the same ; and that the court would grant general relief, &e.

*The answer of the defendant, Tay- [-*2 7 2 lor, admitted the bonds, and that the 500 acres were to be laid off in one tract. It alleged that the consideration of the first bond was two horses, sold to him by the complainant, at the price of 40 l. Virginia currency for both; and that the consideration of the other bond was another horse, valued at 48 l. It refers to the entry for the 1,000 acres upon the waters of Licking, dated June 15tli, 1780, which is in these words: ‘ ‘ Colonel Richard Taylor enters one thousand acres on treasury warrants, adjoining an entry of Major Thompson’s, on a buffalo road leading from Kingston’s fork to the Sweet Licks, begin¬ ning at his southeast corner, thence north along said Thompson’s line 600 poles, thence east for quantity.” The answer then avers, that the mentioning of Kingston’s fork of Licking in the bond, was not a description of locality, but of tract ; and that the mentioning Hingston was no greater recommendation of the land than if another fork of Licking had been named ; be¬ cause both parties were unacquainted with it, and Taylor had understood that his said entry was on Hingston. That a provision in the bond for a choice out of 5,000 acres was an al¬ ternative; and it was not intended that the complainant should have his choice out of the 6,000 acre warrant; and it was intended and understood by both parties, that Taylor should hold 1,000 acres thereof, unencumbered, and not liable to the complainant’s choice. It avers further, that these 1,000 acres were located on the shares on Paint creek; that Taylor held part, and Kenton and Helm another part, as lo¬ cators; that he sold his part to Massie, but he does not recollect the quantity. Of the re¬ maining 5,000 acres he exchanged 2,000 with Colonol Abraham Buford, for two entres of 1 , 000 acres each, because there was a greater proba-

pression or concealment which would amount to fraud, but also in many cases of innocent ignor¬ ance and mistake on both sides. Id.

Mistake as to quantity of land Will not be cor¬ rected if mistake did not influence price. Davis v. Parker, 14 Allen (Mass.) 94.

Grounds upon which equity will interfere in cases of written contract fully discussed. Marvin v. Bennet, 26 Wend. 169, 182.

Aff’g— S. C. 8. Paige Ch. 312.

Citing— Eai-1 of Chesterfield v. Jansen, 1 Atk. 301 ; Pox v. Maccreath, 2 Brown C. C. 400 ; Green v. Win¬ ter, 1 Johns Ch. 27 ; Gibson v. Jeyes, 6 Ves. Jr. 270; Huguenin v. Baseley, 14 Ves. 273; Joynes v. Stat- ham, 3 Atk. 388, Case 129; Bingham v. Bingham, 1 Ves. 126; Roosevelt v. Pulton’s Ex’rs, 2 Cow. 129; Hinghen v. Loud. Ass. 1 Ves. 807.

The mistake which entitles to action is thus stated from the civil law : “ An error of fact takes place, either when some fact which really exists is un¬ known, or some fact is supposed to exist which really does not exist.” Mowatt v. Wright, 1 Wend. 360; 1 Dom. 248, B. 1, tit. 18, § 1, pi. 1.

In judgment of its legal effect we must look “ to the regard which the contractors have had to the fact which appeared to them to be true.” 1 Dom. 250, B. 1, tit. 18, § 1, pi. 11.

Where che effect would have been different had the truth been known, relief will be granted. Wheadon v. Olds, 20 Wend. 174.

Mistake or ignorance of facts in parties is a

Crancli 3.

proper subject of relief only when it constitutes a material ingredient in the contract of the parties, and disappoints their intention by a mutual error, or where it is inconsistent with good faith and pro¬ ceeds from a violation of the obligations, which are imposed by law upon the conscience of either party.

But where each party is equally innocent, and there is no concealment of facts which the other party has a right to know, and no surprise or im¬ position exists, the mistake or ignorance, whether mutual or unilateral is treated as laying no foun¬ dation for equitable interference. It is strictly damnum, absque injuria. 1 Story Eq. Jur. § 151; Wil¬ lards Eq. Jur. p. 69, ch. 1, § 2.

On the general subject of mistake see — Thomas v. Barton, 48 N. Y. 193 ; Pitcher v. Hennessey, 48 id. 415 ; Hardigree v. Mitchum, 51 Ala. 151 ; Robertson v. Walker, 51 Ala. 484 ; Boyce v. Watson, 20 Ga. 517 ; Thurman v. Clark, 47 Ga. 500 ; Miner v. Hess, 47 Ill. 170 ; Burgin v. Giberson, 26 N. J. Eq. 72 ; Heaven- ridge v. Mondy, 49 Ind. 434; Monroe v. Skelton, 36 Ind. 302; Mo. v. Frank, 51 Mo. 98; Stock I. Co. v. Hudson I. Co., 107 Mass. 290; Oliver v. Mut. Com. Ins. Co., 2 Curtis, 277 ; Gr.vmes v. Sanders, 3 Otto, 55; Hunt v. Rousmaniere’s Adms. 1 Pet. 13; Hop- pough v. Strubble, 60 N. Y. 430 ; Matter of Price 67 N. Y. 231, and cases cited on p. 233; Garnar v. Bird, 57 Barb. 277 ; Boyd v. De La Montaigne, 47 How. Pr. N. Y. 433.

437

272

Supreme Court of the United States.

1806

bility of getting good land upon small entries than upon large. That these 2,000 acres were located on the south side of Green river. That the other lot of 2,000 acres, part of the 5,000, was located on the north fork of Paint creek; but understanding the land was not good, lie had 1,500 acres withdrawn, and finally located on some of the waters of Paint creek, a's he is informed ; but he is so much unacquainted with that country, that he cannot point it out partic¬ ularly. The remaining 1,000 acres are located and patented south of Green river. That he has offered the complainant a choice of any of those lands, except the 1,000 acres held 2 7 3] by Massie, Kenton and Helm, which he has refused. That the 500 acres on the north fork of Paint creek are inferior to the other lands, as he has been informed and believes; and the complainant having positively refused them, Taylor has sold them. But the 1,500 acres on the waters of Paint creek, which were originally part of the 2,000 acre lot, and the three tracts of 1,000 acres each, south of Green river, are yet held by him ready for the choice of the complainant. That Taylor informed the complainant, before the commencement of this suit, fully of the exchange with Buford, and has been always ready and willing to let him have his 500 acres as aforesaid. That Tay¬ lor informed the complainant of his said military warrant; and that it was for 6,000 acres; and that he reserved 1,000 acres thereof, which it was then possible he might want to live on, and that the complainant’s right of choice was only to extend to the remaining 5,000 acres. That since Taylor discovered that the first-mentioned 1,000 acres laid on Slate creek, a branch of Licking, and not on Kingston, a branch of Licking, he informed the complainant thereof, and also that he had no lands on Kingston.

The answer of Massie denied, that previous to his paying the consideration of the land to Taylor, and the issuing of the patent, he had any notice that the complainant had any claim to that land, and averred that he was a bona fide purchaser, for a valuable consideration, without notice.

The jury (who, by the practice of Kentucky, are called to ascertain facts in chancery suits) found the following facts :

1 . That the defendant executed the bonds.

Kingston’s fork of Licking.

signed to John Brown, the plot and certificate of survey, &c. (the 2,000 acres before men¬ tioned,) which survey was made by virtue of a military warrant, No. 1,734.

274] 4. That on the 31st of July, 1797,

he assigned to Massie, &c., the 1,000 acres be¬ fore mentioned, being a survey of part of the same warrant.

500 acres, in virtue of the said bonds, before the commencement of this suit ; but it does not appear that any lands have been conveyed in compliance with that demand ; neither does it appear that any particular piece of land was pointed out by the complainant, when the said demand was made, except that he had made his election to have 500 acres out of the survey assigned to Massie, and gave notice thereof to Taylor, who refused to convey it.

438

survey worth five dollars an acre, in the form called for in the bonds.

bonds were part of the warrant No. 1,734, for 6,000 acres, granted to Taylor for his own ser¬ vices.

of June 15th, 1780.

lor had a military warrant for 6,000 acres, 1,000 whereof were entered on Paint creek, in part¬ nership with the locators, and since assigned to Massie; 2,000 were exchanged with Abraham Buford, for other 2,000 acres of military war¬ rants, in separate entries of 1,000 each, because Taylor deemed it more probable that lie should get good land on small entries than on large ones.

entered on the south side of Green river.

located on Paint creek, or its waters.

ant should make his choice out of any of the three tracts of 1,000 acres each, south of Green river, or out of the 1,000 acres on the waters of Licking, or out of the 500 acres, or the 1,500 acres, on "the waters of Paint creek.

*13. That the average price of lands

on Hingston is three and a half dollars per acre, and on Slate two dollars per acre.

worth two dollars per acre.

ford is wTorth one dollar and fifty cents per acre.

lor is worth two dollars per acre.

The decree of the district court, upon the bill, answers, ' and facts found, was, in sub¬ stance,

That the complainant should, on or before the 1st of September then next, make choice of his 500 acres out of the following tracts of land, to wit, 1,000 acres adjoining Major Thompson’s entry, on a buffalo road leading from King¬ ston’s fork to the Sweet Licks; the 2,000 acres transferred by Buford to Taylor; the 1,000 acres entered in the name of Taylor on Lost creek, a branch of the Ohio; the 500, or the 1,500 on Paint creek; and give notice to Tay¬ lor of such choice within one month after it should; be made.

Commissioners were appointed to lay off and survey the said 500 acres for the complainant ; and it was further decreed, that Taylor should, before the 1st of November then next, convey the said 500 acres to the complainant; but if the complainant should not make his choice, and give notice as aforesaid, then Taylor should, on or before the 25th of the then next Novem¬ ber, convey to the complainant 500 acres out of one of the said tracts, in a reasonable form, ac¬ cording to the condition of the bonds ; and that Taylor should pay the costs of the suit.

Upon this decree the complainant sued out his writ of error.

Breckenridge, Attorney General, for plaintiff in error. The records show that Taylor had no land on Hingston, *and that, at the [*270 time of the decree, the plaintiff had not the liberty to choose out of the 5,000 acres.

C ranch 3.

1806

M’ Ferran v. Taylor and Massie.

. 276

When a specific execution of a contract is decreed, it must be decreed to be executed en¬ tirely, or not at all.

Contracts receive the same construction in a court of equity as in a court of law. Neither cantnake an agreement for the parties.

A court of law, in the construction of the present bond, on an action of debt, upon a breach of the condition in not conveying land on Kingston, could not consider the bond as discharged by the conveyance of land on Slate creek.

The defendant knew, or ought to have known, his property, so as not to deceive the plaintiff.

The difference in value between the lands on those two watercourses, is found by the jury to be a dollar and a half per acre. Suppose the land on Slate creek had been worth ten times as much as that on Kingston, the defendant could not, by this bond, have been compelled to convey land on Slate creek, when he had contracted to convey land on Hingston.

As the defendant, therefore, had no lands on Hingston, a specific performance of the con¬ tract. was impracticable, and, therefore, the plaintiff was, at least, entitled to damages to the value of those lands.

The decree is erroneous in another point. It directs the plaintiff to make choice out of 5,000 acres of the defendant’s land, when it is con¬ fessed by the answer that the defendant had but 4,500 acres; the 500 on the waters of Paint creek having been sold by him. It is true, that the 12tli fact found is, that the defendant is willing to let the plaintiff have his choice out of all his military lands, including these 500 acres, but a jury can find nothing contrary to that which is confessed or not denied in the pleadings.

277] The court below has decreed that the defendant may specifically execute his con¬ tract, although it appears,

1. That he has no land on Hingston.

and, consequently,

plaintiff had a right to choose, is reduced to 4,500.

By the contract, the plaintiff had a right to choose out of 6,000 acres, and as the defendant had no land on Hingston, is it not fair and equitable that the plaintiff should have liberty to choose out of the defendant’s 6,000 acres? And as the defendant has reduced the plaint¬ iff’s choice to 4,500 acres of land, inferior to the other 1,500 acres, the plaintiff seems to be entitled to damages for the difference in quality.

The plaintiff is certainly entitled either to a choice out of the whole of the defendant’s mili¬ tary lands, or damages equal to the whole value of the lands on Hingston.

Hughes, for the defendant in error. Two questions arise in this case :

not mentioned in the bond?

the plaintiff’s right of choice, under the con¬ tract?

The bill charges no fraud.

Massie’s 1,000 acres were not within the plaintiff’s choice. Taylor meant to reserve these 1,000 acres unencumbered. The plaintiff was to choose only out of 5,000 acres; and,

Crancli 3.

although Taylor had a right to locate 6,000 acres, yet that was no reason for the plaintiff’s claim to choose out of the whole 6,000. The answer of Taylor positively denies that the plaintiff’s choice was intended, or understood by either party, to extend to the whole 6,000 acres of military land ; and this answer being responsive *to an allegation in the bill,

and not contradicted by evidence, is conclusive upon that point.

the plaintiff’s right of choice?

He relies on the mistake in the description of the land, but does not allege fraud.

If it was a mistake, both parties were equally ignorant, as both lived in Botetourt county, in Virginia.

It was not known to either that the lands on one of the creeks was more valuable than those on the other, or that they would become so in the course of the twenty years which have now elapsed since the date of the contract.

The words of the bond are, “out of one thousand acre tract located by the said Richard Taylor, on Hingston’s fork of Licking.” The real location was “ on a buffalo road leading from Hingston’s fork to the Sweet Licks.” The de¬ scription was intended to be of the tract located by the defendant several years before, and vras not intended to fix its locality. Both the parties meant the same thing: they meant the 1,000 acre tract located by the defendant in 1780, wherever it might lie. The fact turned out to be, that the tract did not lie exactly as it was supposed to lie, but still it was the same tract which was contemplated by both parties. The description “on Hingston’s fork of Licking,” could not, at that time, influence the plaintiff; he has not even averred in his bill that it did.

The defendant has always been ready and willing to give the plaintiff his choice in the land actually intended by both parties, at the time of the contract.

The jury have found the present comparative value of the lands not what it was twenty-two years ago. Its present value may depend on a variety of circumstances, which could not have been foreseen and contemplated at the time of the contract.

*The defendant is ready specifically [*2 7 9 to execute the contract as it was understood by the parties at the time ; but, as the plaintiff now construes it, it cannot be executed specifically, and, therefore, there is no ground for an equit¬ able jurisdiction. The party must be left to his remedy at law.

There is no contradiction between the admis¬ sion in the defendant’s answer, that he had sold the 500 acres which the plaintiff had refused, and the 12th fact found by the jury, that the defendant was willing that the complainant should make his choice out of those 500 ; for, although the defendant may have sold them, yet, it does not appear that he has conveyed them away, and he may be willing to forfeit his contract for the sale of them, if the plaintiff should choose them ; or if conveyed, he may be willing to take the chance of repurchasing them.

The Attorney General, in reply. Under no rational or legal construction of the bonds can they be supposed to refer to lands located on | Slate creek, when they mention lands located

439

279

Supreme Court op the United States.

1806-

on Hingston. This would be to make, and not to construe, the contract. The acquirement of land on Hingston was the plaintiff’s object. It was unimportant to him by whom, or when, the lands were located.

If the defendant had contracted to transfer, on a certain day, 6 per cent, stock, he could not discharge that contract by the transfer of 3 per cent, stock, although he should make up in quantity the difference of value arising from the different quality of the stock. But here the defendant offers only the same quantity of in¬ ferior land.

It is no, excuse for the defendant, to say that no frand was intended by him in describing the land as lying on Hingston, when it laid on Slate ; and that it was a mere mistake of a name. Whether it happened by mistake, or fraud, is totally immaterial to the plaintiff. The defend¬ ant sold, and the plaintiff bought, the land on the defendant’s own description. He was bound to describe it truly. But the jury have found his description to be false in a very important particular. The injury to the plaintiff is the 280 ] same, whatever may have been the motives of the defendant, and he is equally bound to repair the injury.

The plaintiff, therefore, if not entitled to the land on Paint creek, which he has elected, or to the value thereof, is entitled to the value of the lands on Hingston.

Marshall, Gh. -/., delivered the opinion of the court.

The bill states the original contracts, and claims a specific performance, by permitting the plaintiff to elect the 500 acres to which he is entitled, out of the tract of 1,000 acres, which had been located on Paint creek ; and also con¬ tains a prayer for general relief.

On the specific object of the bill, the right to make an election out of the lands on Paint creek, there can be no difficulty. One thousand acres, part of the original warrant, having been clearly withdrawn at the time of the contract, from the quantity out of which the 500 acres, sold by the defendant, were to be chosen, there can be no pretext for the claim set up in the bill.

As little foundation is there for the claim to damages, instead of the land itself, on account of the 500 acres stated in the answer to have been sold ; which sale, the counsel for the complain¬ ant considers as a wrong which has put out of his client’s reach a tract he had a right to elect, and has, consequently, disabled the defendant from complying with his contract.

To this claim two answers may be given, either of which would completely defeat it.

1st. The fact found by the jury shows, that the defendant is still ready to convey this land. The Attorney General would exclude this find¬ ing from the case, because it contradicts the admission of the answer; and it is a rule of law, that a finding which contradicts a fact admitted in the pleadings, is to be disregarded.

The principle of law is unquestionably laid down correctly ; but the court can perceive no incompatibility between the admission of the answer, and the fact, as found by the jury. They may both be true ; and, of consequence, 281] the court must consider both as true. After the answer was filed, the land may have been repurchased by Mr. Taylor, and such a 440

repurchase would have been proper evidence to justify the fact found by the jury, and would put him in a situation to perform his contract, so far, as respected this particular tract. But were it even otherwise,

The 2d answer is, that the concession ima.de by the defendant must be taken altogether. He states the qomplainant to have refused this par¬ ticular tract of 500 acres before it was sold. The complainant had, consequently, elected not to take it, and, of course, the defendant was at liberty to dispose of it.

The other point in the case is attended with more difficulty. It is, that the representation made by Taylor, at the time of the sale, was untrue in a material point. He represented the tract of 1,000 acres which had been located, and out of which the plaintiff would have a right to take the lands he purchased, to lie on Hing- ston’s fork of Licking, when, in truth, it lay on Slate, another branch of the same river, where the lands prove to be less valuable than on Hingston. That this misrepresentation is ma¬ terial, cannot be denied ; but it is contended by the defendant, that it originated in mistake, not in fraud ; and as the country was at that time unknown to both the contracting parties, and the material object was to give the purchaser a right to take the land he had purchased out of the tract already located for the seller, an acci¬ dental error in the description of the place where the tract in contemplation of the parties lay ; an error which could have had, at the time, no. influence on the contract, ought not now to affect the person who has innocently committed it.

From the situation of the parties and of the country, and from the form of the entry, it is reasonable to presume that this apology is true in point of fact ; but the court does not conceive that the fact will amount to a legal justification of the person who has made the misrepresenta¬ tion. He who sells property on a description given by himself is bound to make good that description ; and if it be untrue in a" material point, although the variance be occasioned by a mistake, he must still remain *liable for

that variance. In this case, the defendant lias, sold land on Hingston, and offers land on Slate. He has sold that which he cannot convey, and as he cannot execute his contract, he must an¬ swer in damages.

It is, therefore, the opinion of the court, that the plaintiff is entitled to an issue to ascertain the damages he lias sustained by the inability of the defendant to perform his contract, and to the damages which shall be found.

Although, in the general principles laid down, the court was unanimous, I did not, in conse¬ quence of the particular circumstances of this case, concur in the opinion which has been de¬ livered. I will briefly state those circumstances.

In his bill, the plaintiff does not allege that he was, in any degree, induced to make the contract, by supposing the land already located to lie on Kingston's fork. This representation, then, was an accidental circumstance which has not, in the slightest degree, influenced his con¬ duct. Nor does he now, in liis bill, urge this variance in the description of the property as a reason for claiming damages, instead of the spe¬ cific thing contracted to be sold. Nor does it appear that this claim was set up in the district

Cranch 3.

1806

Wilson v. Speed.

282-

court. On the contrary he alleges, that the land on Paint creek is also in his power, and insists on making his election out of that tract. Under such a bill, in a case where the contract is a very advantageous one to the purchaser, I am not convinced that a court of equity ought to award him damages, on account of an error in the description of the property which was in¬ nocent in itself, which at the time appeared to be unimportant, and which most obviously did not conduce to, or in any manner affect, the contract. The person claiming damages in such a case should, I think, be left to his remedy at law. I should, therefore, have been disposed to affirm the decree of the district court. I am, however, perfectly content with that which I have been directed to deliver. 1

Cited— 13 Pet. 38.

283] WILSON e. SPEED.

An assignee of a pre-emption warrant is held to be a competent witness, if the facts intended to be proved by his testimony do not tend to support the title of the party producing him.

A general dismissal of the plaintiff’s caveat in Kentucky, does not purport to be a judgment upon the merits.

ERROR to the district court of Kentucky, on a judgment which dismissed the caveat of Wilson against Speed.

The caveat whs in these words: “Let no grant issue to James Speed, a citizen of the state of Kentucky, for 139 acres of land, said to be surveyed upon an entry of 200 acres, by virtue of a treasury warrant, number 13,800, the 24th of November, 1782, and the survey dated the, 10th day of November, 1797, because John Wilson, a citizen of the state of Virginia, claims the same; part by virtue of a survey made on his settlement right, the 20th day of January, 1786, and part by virtue of a survey made on the entry of his pre-emption warrant, on the 20th day of January, 1786, for Andrew Cowan, and assigned by him to William Dry- den, for his use; which claims are of a superior nature to the said Speed’s. April 22d, 1799. (Signed) “ John Wilson.”

The facts appearing upon the record, so far as they are pertinent to the questions before this court, were as follows:

In the year 1776, Wilson made an improve¬ ment, by raising a crop on the land, and built part of a cabin.

In consequence of this improvement, he ob¬ tained, on the 16th of February, 1780, a certifi¬ cate for a settlement right to 400 acres, and a right of pre-emption to 1,000 acres.

On the same day Andrew Cowan obtained a certificate for the pre-emption of 1,000 acres, on account of marking and improving the same, in the year 1776, adjoining the lands of John Wil¬ son on the north side, to include his improve¬ ment.

284] On the 23d October, 1780, Andrew Cowan entered a pre-emption warrant for 1,000 acres, on the head waters of Boon’s Mill creek, to include his cabin, and the head waters of sev¬ eral small branches running into Kentucky and Dick’s rivers. “Also, as assignee of John Wil-

erson, Washington, and Johnson, Justices.

Cranch 3.

son’s one thousand acres, adjoining the above, including said Wilson’s cabin.”

On the 29th of April, 1783, John Wilson en¬ tered “400 acres of land, by virtue of a certifi¬ cate for settlement, lying on a dividing ridge between the waters of Kentucky and Dick’s riv¬ ers, to include pprt of both waters, and his im¬ provement. ”

These 400 acres were surveyed for Wilson on the 20th of January, 1786; and were never as¬ signed by him.

On the same day, the 1,000 acres, upon the pre-emption warrant, were surveyed for Andrew Cowan as assignee of Wilson.

On the back of this original certificate of sur¬ vey was written an assignment, purporting to- be from Andrew Cowan to William Dryden, and attested by ‘ ‘ Y oung Ewing. ” And also an assignment, (made by order of" Garrard county court, during the pendency of the present ca¬ veat,) by certain commissioners, in behalf of the heirs of Dryden, to William Buford.

On the 24tli of November, 1782, James Speed,, the defendant, entered 200 acres upon a treas¬ ury warrant, the survey upon which was the cause of the present caveat.

This survey was for 139 acres, part of the 200, dated the 10th of November, 1797, and in¬ terfered with Wilson’s survey of 400 acres, up¬ on his settlement right, and with that for 1,000 acres, pre-emption, which were surveyed in the name of Andrew Cowan, as assignee of Wilson. Upon the inquiry into the facts before the jury, the plaintiff, Wilson, took two bills of excep¬ tions. The first stated, that he offered to pro¬ duce the said Andrew Cowan (who had released to the plaintiff, and *all claiming under

him, all his, the said Cowan’s, right to the land, &c.) to prove, that although the pre-emption warrant for the 1,000 acres was taken out in his- name, it was not taken out by him, or with his privity ; and that, although the entry was in his. name, it was not made by him, or with his privity. And also, to prove that he never did, and does not now, set up any claim or title to the said pre-emption, or any part thereof. Also to prove, that the assignment on the original survey of the said pre-emption, now brought into court by the register of the land office, pur¬ porting to be an assignment made by the said Cowan to William Dryden, was not executed by him; the execution of the same not being proved by “Yroung Ewing,” the attesting wit¬ ness to the same.

But the court was of opinion that the said Cowan was not a competent witness, and ex¬ cluded him from giving testimony.

The 2d bill of exceptions stated that, after the testimony of Cowan was excluded, the plaintiff offered to produce Charles Campbell,, to prove that the said assignment, and the sig¬ nature thereunto, as. well as the name of the attesting witness, were in the hand-writing of William Dryden; to the admission of which testimony the defendant objected, alleging, that “ Young Ewing, ’’the subscribing witness, ought to have been produced, and the court being of that opinion, the testimony of Charles Campbell was also excluded; and the caveat was dis¬ missed. with costs.

Hughes, for the plaintiff in error, contended that the judgment of the court below was erro¬ neous, for two reasons :

441

285

Supreme Court op the United States.

1806

1st. Because the witnesses who were rejected, were competent; and,

2d. Because the caveat ought not to have been dismissed, as to that part of the defendant’s sur¬ vey which interfered with Wilson’s survey of 400 acres, upon his settlement right.

286] 1. As to the rejection of the wit¬

nesses.

If Cowan had any interest, it was removed by the release. And if it he alleged that he ought not to be permitted, upon the ground of impolicy, to discredit his own paper, the answer is, that that principle has been applied only to negotiable paper; but here the witness is called merely to disprove what is alleged to be his hand-writing. It is to show that he never put his hand to the paper, and not to invalidate a paper to which he had given a credit, by sub¬ scribing his name. The counsel for the defend¬ ant below relied upon the case of Walton v. Shelly, 1 T. li. £96, but besides the inapplica¬ bility of the case, it has been overruled by that of Jordaine v. Lashhrooke, 7 T. R. 601.

But Campbell’s testimony ought not to have been rejected. The court rejected it on the ground that “Young Ewing/’ the subscribing witness, ought to have been produced. It is true, that if we had wanted to establish the as¬ signment from Cowan as genuine, it would have been incumbent upon us to have produced Young Ewing, or accounted for his absence. But if the assignment was fictitious, how was Young Ewing to prove that Cowan did not ex¬ ecute it? He could only say that his own name was not written by himself, and that he did not subscribe his name as a witness to that instru¬ ment; but it does not necessarily follow, that C’owan did not execute the assignment. The testimony of Young Ewing was not the best evidence of the fact that the plaintiff wished to prove. Whereas Campbell could have proved expressly that the whole assignment and signa¬ tures were written by Dryden, and not by Cowan and Ewing.

dismissed the caveat, and did not decide which •of the parties “ hath the better right.” It does not appear to have been decided upon its merits : particularly, as far as the plaintiff claimed a settlement right.

Breckenridge, Attorney General, for the de¬ fendant. The testimony of Cowan was proper¬ ly rejected on three grounds.

287] 1. Because it went to prove a title

different from that set up by the plaintiff.

The act of assembly requires that the caveat should express “the nature of the right on which the plaintiff therein claims the land.”

The caveat states, that he claims “ by virtue of a survey, made on the entry of his pre-emp¬ tion warrant,” “for Andrew Cowan, and as¬ signed by him to William Dryden, for his” {the plaintiff’s) “use.”

The proof offered was, that the survey and warrant never was assigned by Cowan. The plaintiff, therefore, wished to bring proof to contradict his own allegations.

The jury.are, by the land law, to find “such facts as are material to the cause, and not agreed by the parties.” But the facts offered to' be proved, were foreign to the cause.

and falsify a record.

442

According to the uniform decisions of the courts in Kentucky, warrants, entries and sur¬ veys are matters of record, as much as the. pat¬ ent. The records produced by the plaintiff show, that the warrant, entry and survey, are in the name of Cowan, and (hat Cowan assigned to Dryden, and that Dryden’s heirs, by a de¬ cree of Garrard county court, assigned to Buford.

The facts would have been contradicted by the testimony offered.

But if the' plaintiff could be permitted to in¬ validate or falsify the record, it could not be . done on the trial of a caveat, which is intended as the means of trying legal rights to incipient titles; titles which are on their passage to ma¬ turity. Ante, ml. 1, p. 66. It is a proceeding in derogation of the common law, and ought to be strictly pursued. If Cowan has no title, or is only a'trustee, this inquiry cannot be made in the trial *of a caveat, but must be made

in equity. Dryden’s heirs cannot be bound by such an ' ex parte inquiry ; and they are inter¬ ested as assignees of Cowan. In order to over¬ turn the claim of Speed, Wilson must have had a prior existing legal right.

benefited by the event of the suit.

. The release is of no avail ; it came from the wrong quarter. Cowan ought to have been re¬ leased by Dryden’s heirs and Buford.

Cowan is interested in one of two ways, or in both ; 1st. In the ultimate goodness of the title by his assignment; or, 2d. For having assigned that to which he had no claim. If Wilson pre¬ vails, Cowan is benefited, because the title which he transferred is sanctioned and settled by the decision. If the determination of a cause may, perhaps, prevent a suit against the witness, he is inadmissible. Exp. W. P. 705.

As to the correctness of excluding Campbell’s testimony, there can be no doubt. To have received it, would have violated that known rule, that the subscribing witness to an instru¬ ment must be produced. This rule, it is true, has some exceptions, but none that will include this case. Esp. W. P. 780.

But if all the testimony offered had been ad¬ mitted, it wrnuld have been irrelevant; and would haye been bad upon demurrer. At the time of entering the caveat, the plaintiff had no right in law, because it was registered in the name of Dryden. At the time of the decree, it was in Buford, under the decision of the court of Garraj'd county.

With respect to the 2d point made by the plaint- tiff’s counsel, viz. , that the caveat was not dis¬ missed upon the merits, so far as relates to the plaintiff’s settlemen tright, he is probably mis¬ taken in point of fact.

*Tlie judgment of the court, although

not altogether full and formal on this point, justifies the inference that the court did examine into the merits of that claim. Of this, however, the court here will judge for themselves, upon an inspection of the judgment itself, as stated on the record. It says ‘ ‘ the court being now sufficiently advised of and concerning the prem¬ ises, is of opinion, that the caveat herein be dismissed;” and this is the only judgment which could have been given against the plaint¬ iff. If the judgment had been for the defend¬ ant, it would have said that he had the better right.

Cranch 3.

1806

Wilson y

Hughes, in reply. It has always been the practice of the courts in Kentucky, to decide the right to be in the plaintiff or defendant, when the decision is on the merits.

The testimony offered, did not go to prove a different title from that set up by the plaintiff ; it went to prove his allegation 'to be substan¬ tially true.

The process by caveat is a summary remedy, and the law, by directing the court to decide according to the very right of the case, gives a chancery jurisdiction. In case of a caveat, there can be no legal title. It is a process given expressly to prevent a legal title.

The entry, &c. , are not matter of record. It is true, there appears to be an assignment on a paper in the register’s office, but that does not make the assignment a record.

Cowan was not interested. He was not liable to Dryden if the assignment was a forgery.

Campbell’s testimony was the best evidence to prove the fact for which it was offered. That of the subscribing witness might be the best evidence that the assignment was genuine, but not that it was a forgery.

290"] ‘"The judgment was not upon the merits, and there is nothing in the record from which a contrary inference can be drawn.

February 14. Marshall, Gli. J. , delivered the opinion of the Court.

In this case, the errors assigned are,

jected by the judge of the district court.

land which was claimed in virtue of the survey on Wilson’s settlement right, was improperly dismissed.

The caveat, so far as respects the claim of Wilson, in virtue of the survey on his pre-emp¬ tion warrant, thus stated his title: “John Wilson claims, by virtue of the survey, made on the entry of his pre-emption warrant, for Andrew Cowan, and assigned by him to Wil¬ liam Dryden, for his use. ”

The pre-emption warrant issued on Wilson’s certificate to Andrew Cowan, as assignee there¬ of ; the survey was made in Cowan’s name, and is assigned to William Dryden, but the assign¬ ment does not purport to be for the use of John Wilson.

At the trial the plaintiff offered to prove that the assignment to Cowan was made in trust for himself, and that the assignment to Dryden was never made by Cowan. The witness, by whom these facts were to be substantiated, was Cowan himself. He was objected to by the counsel for the defendant, as incompetent, and the ob¬ jection was sustained by the court. To this opinion of the district judge, an exception was taken, and the question proposed, is the compe¬ tency of Cowan to prove the fact, that he never was entitled to the land in controversy, and did not make the assignment of the survey.

291] We put the release out of the case, because it cannot affect the interest of Cowan, if he had any, that interest being a liability to the person appearing to be his assignee.

Upon a consideration of this fact, and its connection with a caveat brought by Wilson, the witness appears to the court to stand free from any possible objection on the part of the defendant. It -would not appear that he could derive a benefit’ from proving, in this cause,

Cranch 3.

r. Speed. 289

that he never was entitled to the land in dis¬ pute, and never assigned the survey.

But, from the facts proposed by the plaintiff, which were before the court, it appears that Dryden had sold to Buford, for whose benefit this caveat was really brought; and it is alleged by the counsel /or the defendant, that if the testimony of the witness would establish the right o;f those who might ultimately resort to him, under his supposed assignment, and such a suit would be prevented by"a decision of this caveat in favor of Wilson, he is, therefore, an incompetent witness; but the court does not perceive that this consequence would flow from the testimony; and if it is imagined that Cowan might suspect it, this would constitute an ob¬ jection, rather to his credit than his competen¬ cy. Cowan, therefore, was competent to prove the facts to establish which his testimony was offered. But if he had been received, and had established those facts, what would Jiave been their amount? They are,

‘ ‘ That Cowan never did purchase the said pre-emption, did not make the entry on the pre¬ emption warrant, or survey it, or procure it to be surveyed, and does not now, nor ever did, claim title to the same.

“ That the plaintiff, claiming to own the land, did sell it to William Dryden,- who sold the same to William Buford, for whose benefit the caveat was brought.”

These are the facts which the plaintiff pro¬ posed to prove, and which are stated on the record. Had they *been proved, it ap-

pears to the court that the caveat ought to have been dismissed. These facts do not support the title set up in the caveat.

It is conceived by this court, that the state¬ ments made in the caveat coirld only be sup¬ ported by an assignment, which, on the face of it, purported to be for the use of Wilson. That an assignment made to Dryden, whereby the legal ownership of the survey was conveyed to him, although, in fact,, intended for the benefit of Wilson, would not enable Wilson to maintain a caveat in his own name. It would authorize him to use the name of Cowan, but not to pros¬ ecute the suit in his own name. If, however, a contrary practice has been firmly established in Kentucky, the court would be very unwilling to shake that practice. But in this case, the as¬ signment to Dryden was not, in fact, for the use of Wilson, but of Dryden himself. The testimony, therefore, if received, could only have defeated the plaintiff’s action. It cannot be said, therefore, that the judge has erred in dismissing the caveat, as to the part claimed under the pre-emption warrant.

But, with respect to so much of the caveat as was supported by the survey on the settle¬ ment right, no. exception of form, or to the testimony, has been taken, and it ought not, therefore, to have been dismissed, but on the merits. On this point, therefore, there is error in the judgment of the district court, for\vhich it must be reversed.

This cause came on to be heard, on the tran¬ script of the record of the proceedings of the court for the district of Kentucky, and was ar¬ gued by counsel; on consideration whereof, it seems to the court, that there is error in the judgment of the district court in this, that the caveat entered by the plaintiff was entirely dis-

443

292

Supreme Court of

missed, whereas it ought to have been decided on its merits, so far as respected that part of the land which was claimed by the plaintiff under his survey of four hundred acres. It is, there¬ fore, considered by the court, that the said judg-

ment he reversed and annulled; *and that the defendant pay to the plaintiff, his costs. And the cause is remanded for further proceed¬ ings.

Cited— 3 Crabbe, 191 ; 5 Otto, 449.