CALEDONIA, naturally arising from the distinction are equally well settled. March,

0.

Balch et al.

1842. An officer, de jure, is clothed with all the power and authorMcGregor ity appertaining to the office, and neither his doings nor his acts, within the limits of his authority, can be questioned any where. The acts of an officer, de facto, are, as it respects third persons, valid; as it respects himself, invalid. An officer, de facto, is one who comes in by the forms of an election, but, in consequence of some informality, or want of qualification, is incapable of holding the office. Until, therefore, the appointment is vacated, his acts must be considered as valid. This subject was fully considered in the cases of The People v. Collins, 7 Johns. 549, M'Instry v. Fanner, 9 Johns. 135, Fowler v. Beebe, 9 Mass. 231, Commonwealth v. Fowler, 10 Mass. 291, and Bucknam v. Ruggles, 15 Mass. 180. In the cases from the 9th and 10th of Massachusetts Reports, above cited, certain officers were appointed and commissioned for a county before the county had any legal existence; and it would seem, if any thing would render such appointment wholly void and conveying no authority, those were cases demanding a decision to that effect, yet the appointments were considered as making them officers, de facto, and their acts good as it respects third persons. The principle of these cases governed the case of Adams v. Jackson, 2 Aik. 145. Yet, in the case of Colburn v. Ellis et al. 5 Mass. 427, an officer who was not sworn, could not justify in an action brought against him, and, in the case of Commonwealth v. Fowler, the office of the defendant was vacated on a quo warranto. Postmasters, and persons holding other offices under the authority of congress, have been elected as members of the legislature, and have taken their seats and voted, as such, until their seats were vacated; yet, no one would presume to say that an appointment made by the votes of such members, or a law passed by them, even though it should appear that their votes made the majority in the appointments, or passing the law, should be inquired into, or declared void, on that account.

It is said that these defendants have presented the question as soon as their rights were invaded by the acts of this justice. This is true if they have the right which they contend for. But if Morrill was a justice, duly appointed, and acted as such, the plaintiff might well bring this suit before him,

McGregor

v.

not knowing of his holding an office incompatible with the CALEDONIA, March, office of justice, which he exercised, and there would be no 1842. more propriety in saying the suit should fail on that account, because the defendant in this suit brought his appointment. in question, than in saying the reverse. There was nothing particularly affecting the interest of this defendant in being sued before this justice, nor should he be permitted to inquire whether Morrill rightfully held the office, in any suit to which the justice was not a party.

If this suit should be abated or dismissed on account of the objections raised against the justice, it will follow, as a necessary result, and one which cannot be avoided, that every act of a judicial officer similarly situated is void. The taking confessions of debt, acknowledgments of deeds, or solemnizing matrimony, or any and every act of that nature, are invalid and void, unless they are recognized as the acts of an officer de facto.

The conclusion, therefore, to which we arrive is this; that Morrill was eligible to the appointment of a justice of the peace, notwithstanding he was a postmaster, but that he could not hold both offices at the same time, and if he had resigned his office of postmaster, when he qualified and assumed to act as justice, he would have been a justice of the peace de jure, that if he held the office of postmaster while he acted as justice, he could not have justified under the latter appointment in a suit brought against him directly, rhat, on a quo warranto, he would have been removed from the latter office.

But, in a suit to which he was not a party, between third persons, he is to be considered as an officer de facto, and his eligibility cannot be tried in such suit; and, as a result of the whole, we think the plea to the jurisdiction cannot be sustained.

The judgment of the county court is, therefore, reversed, and judgment entered that the defendant's plea is insufficient, and that he answer over.

Balch et al.

CALEDONIA, March, 1842.

Judevine

ALDEN E. JUDEVINE v. ISAAC PENNOCK.

In an action of covenant broken, upon a covenant against incumbrances, in which the defendant pleaded that he had kept and performed his covenant, and issue joined, evidence tending to prove that the defendant had paid, before the commencement of this suit, a mortgage outstanding at the time of the execution of his deed, is not pertinent to the issue, and for this cause not admissible to support it.

THIS was an action of covenant broken, brought on the defendant's covenant that certain lands, conveyed by the defendant to the plaintiff, were free and clear of all incumbrances.

Plea non est factum, and a plea that the defendant had performed his covenant. Issues to the country.

On the trial in the county court, the deed executed to the plaintiff by the defendant, containing the covenant declared upon, was read in evidence without objection, and the plaintiff also introduced a mortgage deed, executed by defendant and Phineas Dodge to William and Moses P. Hutchins prior to the execution of the deed from the defendant to the plaintiff, of the same premises described in the deed to the plaintiff, to secure the payment of certain promissory notes given by the mortgagors, amounting to about two thousand dollars, which mortgage was recorded in the town clerk's office prior to the execution of the deed from the defendant to the plaintiff, and had never been discharged upon the town clerk's record.

The defendant then called said Dodge as a witness, who was objected to by the plaintiff, but the objection was overruled, and the witness testified that the notes described in said mortgage were paid prior to the commencement of this suit. There was no evidence tending to show that the plaintiff knew that the notes were paid.

The plaintiff requested the court to charge the jury that he was entitled to recover nominal damages; but the court instructed the jury that if they found that the notes were paid before the commencement of this suit, the defendant was entitled to a verdict, although the mortgage was not discharged upon the town record, and the plaintiff was ignorant of the payment of the notes.

The jury returned a verdict for the defendant, and the CALEDONIA, plaintiff excepted to the charge of the county court.

J. R. Skinner and D. Hibbard, Jr., for plaintiff.

It is not pretended that the notes were paid when the defendant executed the deed and covenanted against incumbrances. The covenant against incumbrances was broken as soon as the deed was executed.

The plaintiff was entitled to nominal damages. son v. Dorr, 5 Vt. R. 19, 20.

Richard

Potter v. Taylor, 6 Vt. R. 676. 1 Swift, 370. Shep. Touch. 170. See also 1 Taunt. 428; 1 East, 630; 5 Term Rep. 596.

Swift says there are three kinds of covenants that are broken when made, if broken at all, to wit, 1. That the grantor is seized of the premises in fee simple. 2. That he has good right to convey the premises; and, 3. That they are clear from all incumbrances.

In the case of Garfield v. Williams the plaintiff and his assignee had possessed the land under the conveyance of the defendant until, by length of time (fifteen years before action brought,) an indefeasible title had been gained under the statute of limitations. On these facts the court decided that there was a breach of the covenant, and that a legal cause of action had accrued, and gave nominal damages.

B. N. Davis argued for the defendant.

The opinion of the court was delivered by

BENNETT, J.-This case comes before us upon exceptions taken on the jury trial. The defendant, after having pleaded non est factum, further pleaded that he had kept and performed his covenant, and, upon this plea, the parties are at issue. The evidence of Phineas Dodge, to show a payment of the mortgage upon the premises, which was outstanding when the deed was executed by the defendant, before the commencement of this suit, is not pertinent to the issue. If there was a mortgage upon the land, the covenant against incumbrances was broken when made, and though the incumbrance was afterwards raised, yet, this does not tend to prove that there has been no breach of the covenant.

Whether the payment of the mortgage to the Messrs.

March, 1842.

Judevine

v.

Pennock.

CALEDONIA, Hutchins, before suit brought, could, by an appropriate plea, March, be interposed in bar of the action, or whether it is only mat1842. ter in mitigation of damages, it does not become necessary to Smith decide; nor whether Dodge was incompetent as a witness, from the circumstances in which he was placed.

v.

Smith.

The judgment of the county court is reversed.

REUBEN SMITH V. ALBERT R. SMITH.

No recovery can be had in the action on book where the contract is executory, and unrescinded, though in part executed.

Though an entire contract for the sale of real and personal estate may be required to be in writing, so as to be operative as to the personal property; yet, where the possession of the real estate had been taken under the parol agreement, improvements made, and a part of the consideration paid, the vendor cannot insist upon the statute of frauds to avoid the whole contract, and recover for the personalty in the same manner as if it had gone into the hands of the defendant without a special agreement.

THIS was an action of book account. Judgment to .account having been rendered by the county court, auditors were appointed who afterwards reported, in substance, as follows:

In the beginning of the winter of 1827-8, the plaintiff, who is the defendant's father, entered into a verbal agreement with the defendant, who had then just arrived of full age, to live with, take care of, and support him and his wife during their lives, and their children until they were of a suitable age to be put out to learn trades, and that defendant should have all the plaintiff's property, real and personal, and should pay all of plaintiff's debts, and have the benefit of plaintiff's labor and that of his wife. The plaintiff's family consisted of himself, aged 50 years, his wife, his sons, Russell, aged 3 years, Proctor, about 9 years, and Justus, about 16 years, and a daughter about 12 or 13 years. The property of the plaintiff consisted, at the time defendant took possession of it, of a farm of 50 acres, mostly cleared, lying in Goshen Gore, with a house and barn thereon, and personal property valued at $448.28.