been brought for the vessel instead of the cargo, the case would have been essentially different. The detention would have been by virtue of an act of Congress, and the jurisdiction of a state court could not have been sustained. But the action having been brought for the cargo, to detain which the law gave no authority, it was triable in the state court. The same course of reasoning which sustains the jurisdiction of the court of Rhode Island sustains also its judgment on the plea in bar. The two pleas contain the same matter; the one concluding to the jurisdiction of the court, and the other in bar of the action. In examining the plea to the jurisdiction, it has been shown that the officer had no legal right to detain the 13*] property; consequently, his plea was no sufficient defense, and the court misconstrued no act of Congress, nor committed any error in sustaining the demurrer. Judgment affirmed with costs. ER RROR to the Circuit Court of the United NOTE. Rawle on Covenants for Title, says: "In Greenleaf v. Cook, supra, the defense of a failure of title, to a note given for the purchase money of land, seems to have been excluded with entire propriety, as nothing in the report of the case shows that the deed contained any covenants whatever; and, from what was said in the decision as to the alleged defectiveness of the deed, it is possible that the absence of covenants was referred to. There was a prior mortgage on the premises, under which a decree of foreclosure had been pronounced, but the possession had never been disturbed. James Greenleaf instituted a suit in that court on a promissory note executed by the defendant, who pleaded the general issue. On the trial the defendant gave in evidence a deed executed by Pratt, Francis and others, by James Greenleaf, their attorney, *convey- [*14 ing to him a lot of ground in the city of Washington, for the purchase of which the promissory note in the declaration mentioned was given. He also gave in evidence a deed from Morris, Nicholson and others, to Thomas Law, purporting to be a mortgage of a great number of squares and lots in the city of Washington, and among others, of the square comprehending the lot purchased by the defendant, together with the proceedings in a suit in chancery, instituted by the said Thomas Law against Pratt, Francis and others, in which a decree of foreclosure was pronounced. He then produced a witness who proved that at the time of the sale the lot was not, in his opinion, exclusive of improvements, worth more than the sum mentioned in the note. Upon this testimony, the counsel for the defendant moved the court to instruct the jury, that if they believed the testimony, the law was for the defendant; which instruction the court refused to give, the judges being divided in opinion thereon. The counsel for the plaintiff then moved the court to instruct the jury that the law was for the plaintiff; which opinion the court also refused to give, being still divided. The counsel for the plaintiff then produced testimony to prove that the lot of ground, in payment for which the promissory note mentioned in the declaration was given, had been sold to a certain John Bickly, who took possession thereof, and resided thereon during his life; that after his death, his widow continued to reside thereon until she intermarried *with [*15 the defendant, and that the defendant still resides thereon. That previous to the execution of the promissory note, on which this suit is instituted, he received full and complete information of the deed of mortgage in the foregoing bill of exceptions mentioned, and of the probable effect of that deed. That with this knowledge, after consultation and mature consideration, he received the deed for the lot, and gave ment, could the result have been different, for, as there had been no eviction, the purchaser would not have been entitled at that time to damages." Rawle on Covenants for title, 495, 496, 497. "Ten years after the decision in Greenleaf v. Cook, it was held by the same tribunal, in Thornton v. Wynn, 12 Wheat. 183, that a breach of warranty of a chattel was no defense to an action on a note given for its price, if the sale were absolute. and there was no subsequent agreement on the part of the vendor to take back the article; but very recently, in the cases of Withers v. Green, 9 How. 213, and Van Buren v. Diggs, 11 Id. 461, this doctrine has been much modified, if not overruled." Rawle on Cov. for title, 496, note. "It may be observed of this case, which, upon the facts presented, was most correctly decided, that at that time the law was far from being set tled as to the right of the purchaser thus to defend himself, and the true basis of the decision seems to rest not so much upon any distinction between a total and partial failure of consideration as on the ground that there being no covenants in the deed, the purchaser had already obtained what, from the absence of these covenants, a court of law must presume he bargained for, viz., the mere transfer of the vendor's title, such as it was, without any recourse to him in the event of its turning out defective; and hence the question of consideration was not touched-nor, if the deed had con- In Frisbie v. Hoffnagle, 11 John. (N. Y.) 50, detained a covenant of warranty, or for quiet enjoy-cided in 1814, where in an action on two notes In Scudder v. Andrews, 2 McLean, 464, the facts were very similar to those presented in Greenleaf v. Cook, but the decision was the other way. There the action was on a note given for the price of a tract of land, and the defense set up, was failure of consideration, in that the land sold was part of the public domain, and had never been sold or offered for sale by the United States, and it was held that the defense amounted to a total failure of consideration and was good. See Rawle on Cov. for title. 497, note 1. his promissory note for the purchase money. He then moved the court to instruct the jury that, if they believed the facts thus stated on testimony, the plaintiff was entitled to recover in this action. But the court, being again divided, refused to give the opinion required. The counsel for the plaintiff took exceptions to the proceedings of the court in each point, in not giving their opinions as asked. The jury . found a verdict for the defendant, upon which judgment was rendered, and the cause came before this court on a writ of error. a total failure of consideration, the court is of opinion that to make it a good defense, in any case, the failure must be total. The prior mortgage of the premises, and the decree of foreclosure, do not produce a total failure of consideration. The equity of redemption may be worth something: this court cannot say how much; nor is the inquiry a proper *one [*17 in a court of law in an action on the note. If the defendant be entitled to any relief it is not in this action. But if any doubt could exist on the first exJones, for the plaintiff in error, argued, that ception, there is none on the second. The note where a party purchases real property, without was given with full knowledge of the case. fraud on the part of the vendor, the vendee Acquainted with the extent of the incumbrance; takes it at his own risk, unless he has a war- and its probable consequences, the defendant ranty against the acts of all the world. That consents to receive the title which the plaintiff there is no distinction between a direct action was able to make, and on receiving it, executes to recover back the purchase money, and a de- his note for the purchase money. To the payfense for want of consideration. In this casement of a note given under such circumstances, there is no eviction, but a mere contingent in- the existence of the incumbrance can certainly cumbrance only, proper for the exclusive cog- furnish no legal objection. nizance of a court of equity, which court may 16*] *decree a specific performance, or compensation, as its justice may require.1 Law, contra, contended, that if this were a case of an express agreement to take any or no title, the doctrine cited from Sugden would apply; but that here the vendor promised to give the vendee a clear and unincumbered title. A court of chancery will never decree a specific performance without a perfect title at law and in equity; and the defense on account of defect of title is as available in the one forum as the other." Marshall, Ch. J., delivered the opinion of the court, and after stating the facts, proceeded as follows: On the first exception it has been argued that there is a failure of consideration, which constitutes a good defense in this action. Without deciding whether, after receiving a deed, the defendant could avail himself of even 1. Sugden's Law of Vendors, 312 to 318, and the authorities there cited. 2.-2 Comyn on Cont. 52. given for the purchase money of land sold with a Covenant of warranty, the defendant proved that the land had subsequently been sold under a judgment against the plaintiff, and a sheriff's deed made to the purchaser, and although it was also in evidence that the defendant had not been evicted or disturbed in his possession, the court ordered a nonsuit. On a motion for a new trial, the case was submitted without argument, and in refusing a new trial the court held, "The consideration of the note has entirely failed, for the defendant has no title, it having been extinguished by the sale under the judgment. Here is a total, not a partial, failure of consideration, for although the defendant has not been evicted by the purchaser under the sheriff's sale, he is liable to be so, and will be responsible for the mesne profits. To allow a recovery in this case would lead to a circuity of action, for the defendant, on this failure of title, would be entitled to immediately recover back the money. The motion to set aside the nonsuit must therefore be denied." Cases of Frisbie v. Hoffnagle, decided after Lattin v. Vail, 17 Wend. 188, in New York, substan tially overruled by it. The defendant, on being sued for the purchase money of real estate, which had been conveyed with a covenant against incumbrances. pleaded the existence of a prior mortgage It has also been said that the deed is defective. If it be, the defendant may require a proper deed, and it is not impossible but there may be circumstances which would induce a court of equity to enjoin this judgment until a proper deed be made. But the objections to the deed cannot be examined in this action. Judgment reversed.3 *Judgment. This cause came on to be [*18 heard on the transcript of the record of the Circuit Court of the United States for the County of Washington, and was argued by counsel. All 3. By the French law, the price of the sale of real property cannot be recovered by the vendor, if the vendee has been disturbed (troublé) in his ground for apprehension on that account, until the possession, by prior incumbrances, or has just litigation concerning them is terminated; unless, indeed, the vendor gives sufficient security_to indemnify the vendee in case of eviction. Pothier de Vente, n. 280. Code Napoleon, Liv. 3, tit. 6, chap. 5, n. 1653. For the various distinctions in our law as to where the vendee may detain the purchase money, if incumbrances are discovered previously to the payment of it, and to what relief he is entitled if evicted after the money is actuelly paid, see Sugden's Law of Vendors, as above cited, which contains a complete digest of the cases in equity on this subject. The court held which was a lien on the property. See also Whitney v. Lewis, 21 Wendell, 131. Kent says: "In Frisbie v. Hoffnagle, the purchaser, in a suit at law upon his note given to the vendor for the purchase money, was allowed to show in his defense, in avoidance of the note, a total failure of title, notwithstanding he had taken a deed with full covenants, and had not been evicted. But the authority of that case and the doctrine of it, were much impaired by the Supreme Court in Maine, in a subsequent case, founded on like circumstances (Lloyd v. Jewell, 1 Greenl. R. 352); and they were afterwards in a degree restored, by the doubts thrown over the last decision by the Supreme Court of Massachusetts in Knapp v. Lee, 3 Pick. 452. the same defense was made to a promissory note in the case of Greenleaf v. Cook, 2 Wheat. 13, and it was overruled on the ground that the title to the land, for the consideration of which the note was given, had only par ་ which being seen and considered, it is the opinion of this court that there is error in the proceedings of the said Circuit Court, in this, that the said court refused to instruct the jury on the application of the counsel for the plaintiff, that on the facts given in evidence to them, if believed, the plaintiff was entitled to recover in that action; wherefore it is considered by this court that the said judgment of the said Circuit Court be reversed and annulled, and that the cause be remanded to the said court to be proceeded in according to law. [Common Law.] OTIS v. WALTER. . In seizures under the embargo laws, the law itself is a sufficient justification to the seizing officer where the discharge of duty is the real motive, and not the pretext for detention, and it is not neces sary to show probable cause. But the embargo act of the 25th of April, 1808, related only to vessels ostensibly bound to some port in the United States, and a seizure after the termination of the voyage is unjustifiable; and no further detention of the cargo is lawful than what is necessarily dependent on the detention of the vessel. It is not indispensable to the termination of a voyage that the vessel should arrive at the terminus of her original destination; but it may be produced by stranding, stress of weather, or any other 19*] cause inducing her to enter another port with a view to terminate her voyage bona fide. But if a vessel, not actually arriving at her port of original destination, excites an honest suspicion in the mind of the collector that her demand of a permit to land the cargo was merely colorable, this is not a termination of the voyage so as to preclude the right of detention. ERROR to the Supreme Judicial Court of the State of Massachusetts. This was an action of trover brought in the state court, in which Walter, the plaintiff in that court, recovered of Otis, the defendant in that court, damages for the conversion of sundry articles constituting the cargo of a vessel called the Ten Sisters. The defendant in the tially failed; and it was said, that to make it a good defense in any case, the failure of title must be total. "This case at Washington is contrary to the defense set up and allowed, and to the principle established in the case of Gray v. Handkinson, 1 Bay's Rep. 278, but it seems to be supported by the case of Day v. Nix, 9 Moore's R. 159. where it was decided, by the English court of C. B., that a partial failure of the consideration of a note was no defense, provided the quantum of damages arising upon the failure was not susceptible of definite computation. court below, collector of the port of Barnstable, in Massachusetts, had detained the vessel under suspicion of an intention to violate the embargo laws, particularly the act of the 25th of April, 1808, sec. 6 and 11. The vessel sailed from Ipswich with a cargo of flour, tar, and rice, in order to carry the same to Barnstable, or to a place called Bass River, in Yarmouth; and proceeded to Hyannis, in the collection district of Barnstable. On her arrival there, the master applied to the collector for a permit to land the cargo, which was refused by the latter, who shortly afterwards seized and detained the vessel under the above-mentioned acts. This detention was given in evidence as a defense to the action under the general issue, and the Chief Justice of the Supreme Court of Massachusetts instructed the jury "that the said several matters and things, so allowed and proved, *were not sufficient to bar the plaintiff of [*20 his said action, nor did they constitute or amount to any defense whatever in the action," etc. Whereupon the jury found a verdict, and the court rendered a judgment for the plaintiff. The Attorney-General, for the plaintiff in error, argued, that this case fell under the principle of that of Crowell v. M'Fadon,' and it would appear that the vessel was in itinere; but that even if this were not the state of the case, the jury ought to have been left to make their own inference from the facts, and not to have been charged by the judge that no defense whatever was made out. Read, for the defendant in error, contended, that the case of Otis v. Bacon' was perfectly in point, and showed that the vessel, having arrived at her port of discharge, was no longer within the operation of the embargo laws; and that if the collector's defense was not completely made out-if it was, in any respect, materially defective, it was not made out at all. Johnson, J., delivered the opinion of the court: This was an action of trover, brought in the State Court of Massachusetts, in which 1.-3 Cranch, 94. 2.-8 Cranch, 589. Johnson v. Johnson, 3 Bos. & Pul. 170; Sugden_on Vendors, 346, 347; 4 Cruise's Dig. 90; Coop. Eq. R. 311. In sales of chattels the purchaser cannot resist payment in cases free from fraud, while the contract continues open, and he has possession. But in this country the rule has received very considerable relaxation. In respect to lands, the same rule has been considered to be the law in New York (Frost v. Raymond, 2 Caines' R. 188); while on the other hand, in South Carolina, their courts of equity will allow a party suffering by the failure of title, in a case without warranty, to recover back the purchase money, in the sale of real as well as of personal estates." Tucker v. Gordon, 4 Eq. Rep. So. Car. 53, 58; 2 Kent's Com. 472, 473. It is now settled in the New York decisions, that on a partial failure of a consideration on a sale of goods the defendant may recoup his damages, on a breach of the plaintiff's contract of warranty. Reab v. McAllister, 8 Wendell, 109; Still v. Hall, 2 Wendell, 51; Batterman v. Pierce, 3 Hill, 171. "The cases are in opposition to each other, and they leave the question how far and to what extent a failure of title will be a good defense, as between the original parties to an action for the consideration money on a contract of sale, in a state of painful uncertainty. I apprehend that in sales of land the technical rule remits the party back to his covenants in his deed; and if there be no ingredient of fraud in the case, and the party has not had the precaution to secure himself by covenants, he has no remedy for his money even on a failure of title. This is the strict English rule, both in law and in equity; and applies equally to chattels, when the vendor sells without any By the Code of N. Y., sec. 501, any cause of acaverment of title and without possession. Roswell tion arising out of the contract or transaction alv. Vaughn, Cro. Jac. 196; Medina v. Stoughton, 1 leged, which tends to diminish or defeat a recovSalk. Rep. 211; Bree v. Holbreck, Doug. R. 654;ery, may be set up as a counterclaim. The case of Frisbie v. Hoffnagle has been virtually overruled in Vibbard v. Johnson, 19 Johnson, 77. and it is now not regarded as authority. Whitney v. Lewis, 21 Wendell, 132, 134. See 21*] *Otis, the collector of Barnstable, had Walter, the plaintiff in that court, recovered of | mitted by an admission in the case of [*23 Otis damages for the conversion of sundry Otis v. Bacon;' that a destination to Barnstable articles constituting the cargo of a vessel called is satisfied by an arrival in Hyannis Bay. the Ten Sisters. We have looked into the record in that case, and find that it will support no such inference. It is true that Mud-hole, the place at which the vessel had arrived in that case, is in Hyannis Bay. But the question of fact did not arise, It has already been decided, in such cases, for the collector had acquiesced in the terminathat it is not necessary to show probable cause; tion of the voyage there, by actually granting that the law confides in the discretion of the a permit to land. And the grant of the permit collector, and is, in itself, a sufficient justifica- was expressly made a ground, in the state court, tion, when the discharge of duty is the real of the instruction to the jury. Now, it is not inmotive, and not the pretext for detention. But dispensable to the termination of the voyage it has also been decided that the law relates that the vessel should arrive at the terminus ad only to vessels ostensibly bound to some port quem she was destined. It may as well be proin the United States; that a seizure is unjustifi-duced by stranding, by stress of weather, or by able after the termination of a voyage; and any other cause inducing her to enter another that no further detention of the cargo is lawful port, honestly, with a view to terminate her than what is necessarily dependent upon the voyage. But if a vessel, not actually arriving detention of the vessel. at her port of destination, excites an honest suspicion in the mind of the collector that her demand of a permit was merely colorable, we are of opinion that this can neither be held to be an actual or admitted termination of the voy. age, so as to preclude the right of detention. Had the destination in this case been generally to Barnstable, or the town of Barnstable, there may have been some color of ground for arguing that her arrival at Hyannis was the termination of her voyage; but as the destination was expressly to Barnstable or Bass River, within the county of *Barnstable, her [*24 arrival at one or the other of those places was indispensable to the termination of her voyage, supposing her really, in fact, to have had no ulterior destination. In this case there was no ground for charging the collector with oppression or malversation; and the only point insisted on in the argument was, that she had actually terminated her voyage. As the clearance is not in evidence in the cause, we are obliged to take the termini of the voyage from the testimony of the captain, who swears that he sailed from Ipswich "with a cargo of tar, flour, and rice, to carry the same to Barnstable, in the county of Barnstable, or to a place called Bass River, in Yarmouth, in said county;" that he "proceeded to Hyannis, in the district of Barnstable; that on his arrival there he applied for a permit to land, which was refused by the collector, who, in a day or two afterwards, seized the vessel, and detained her under the embargo acts." Ipswich lies to the But a destination may be colorable, and in22] north of the peninsula *which terminates tended only to mask an ulterior and illegal desin Cape Cod; the port or bay of Barnstable on tination; and hence, we are of opinion that, the north side of that peninsula; Bass River | unless the fact be conceded by some such uneand Hyannis Bay on the south; all of them quivocal act as was done by the collector in the known as distinct places, but all lying within the case of Otis v. Bacon, it is a question which county and collection district of Barnstable. And ought to be left in the instruction of the court although Hyannis Bay lies within the district open to the jury. And that if any positive inof Barnstable, yet to reach it in sailing from struction on the subject had been given to the Ipswich you must pass both the town of Barn-jury in this cause, it ought to have been in stable and the mouth of Bass River. The defense of the collector in the state court was founded on the authority to detain vested in him by the act of Congress. The instruction of the Chief Justice of that state was in these words: "that the said several matters and things, so allowed and proved, were not sufficient to bar the plaintiff of his said action, nor did they constitute or amount to any defense whatever in the action." Instructions couched in such general terms may serve to embarrass a court exercising appellate jurisdiction; but it is a mistake to suppose that it precludes such a court from a view of the errors which may have been committed on the trial. It has before been decided that it only obliges this court to look through the whole cause, and examine if there be nothing in it which ought to have called forth a different instruction or judgment. In this case we are of opinion that, conformably to our former decisions, the instruction given could only have been sanctioned on the supposition that the vessel had actually terminated her voyage. But here it is contended that this court stand com favor of the defendant, as the arrival in Hyannis Bay would not have been deemed a legal termination of the voyage, either on a policy of insurance, a charter-party, bottomry bond, or any other maritime contract. A majority of the court are therefore of opinion that the court of Massachusetts erred in this case, and that the judgment ought to be reversed. Story, J., did not sit in this cause. to the action, if the possession be under color of title. To repel this defense, the plaintiffs proved that no corner or course of the grant, under which they claimed, was marked, except the beginning corner; that the beginning and nearly the whole land, and all the corners, except one, were within the Cherokee Indian boundary, not having been ceded to the United States, until the year 1806, within seven years from which time the suit was brought; but the land in the defendant's possession, and for which the suit was brought, did not lie within the Indian boundary. It was held that, notwithstanding the laws of the United States prohibited all persons from surveying or marking any lands within the Indian territory, and the plaintiffs could not, therefore, survey the land granted to them, the defendants were entitled to hold the part possessed by them for the period of seven years under color of title. cause was brought before this court by writ of error. Swann and Campbell, for the plaintiffs in error and in ejectment. 1. Statutes of limitations, all over the world, except certain cases of a peculiar nature from their operation; and the impediment in this case is analogous to the The case of exceptions expressly provided. civil war interrupting all the proceedings in courts of justice is not stronger than the present; the omission in the statute ought, therefore, to be supplied by judicial equity. 2. The act of the 30th of March, 1802, ch. 13, sec. 5, prohibits the surveying, or attempting to survey, or designating any of the boundaries, etc., of lands within the Indian territory, under severe penalties; and the party could not have obtained a passport from the officers authorized The plaintiffs in error brought an ejectment to grant it by the third section of the act, in orin that court for 5,000 acres of land, in posses- der to survey lands, but merely to go into the sion of the defendant, Ragan, and on the trial Indian country for any lawful purpose. 3. The gave in evidence a grant from the state of record does not regularly deduce the defendNorth Carolina, of 40,000 acres, comprehend- ant's title. There is no presumption raised ing the lands for which the suit was instituted. that Ragan continued his possession under MaThe defendants claimed, under a junior pat-bane, and without it, that possession would not ent to Mabane, and a possession of seven years be under color of title, according to the statutes held by Ragan, which, by the statutes of North of limitations of North Carolina and Tennessee, 26*] Carolina and Tennessee, constitutes a and the decision *of this court in the case [*28 bar to the action, if the possession be under of Patton's Lessee v. Easton.1 color of title. RROR to the Circuit Court for the District Jones and Thomas, contra. The exceptions To repel this defense, the plaintiffs proved in the statute of limitations (which statute gives that no corner or course of the grant, under the right of property as well as of possession) which they claimed, was marked, except the are expressed by the legislature, and cannot beginning corner. That the beginning, and be multiplied by implication. But supposing nearly the whole land, and all the corners, except one, were within the Indian boundary, being part of the lands reserved by treaty for the Cherokee Indians. These lands were not ceded to the United States until the year 1806, within seven years from which time this suit was instituted. But the land, in possession of the defendant, Ragan, and for which this ejectment was brought, did not lie within the Indian boundary. The laws of the United States prohibited all persons from surveying or marking any lands within the country reserved by treaty for the Indians. the statute not to apply to lands within the Indian boundary; the lands held by the defendant were not within the Indian boundary, and therefore the limitation applies to it. If the plaintiffs had instituted a suit, they might have entered the Indian country, under an order of court, and surveyed the lands. character of the defendants' possession, and not that of the plaintiffs, is to determine the right of property. The Marshall, Ch. J., delivered the opinion of the court, and after stating the facts, proceeded as follows: It is contended, by the plaintiffs in error, that the judge misconstrued the law in his instructions to the jury. The case is admitted to be within the act of Upon this testimony the counsel for the plaintiff's requested the court to instruct the jury that "the act of limitations would not "run against the plaintiff's for any part of the "said tract, although such part should be out! "of the Indian boundary, until the Indian title limitations of the state of Tennessee, and not "was extinguished to that part of the tract within the letter of the exceptions. But it is "which includes the beginning corner, and the contended that, as the plaintiff's were disabled, "lines running from it, so as to enable them to by statute, from surveying their land, and, con"survey their land, and prove the defendant to sequently, from prosecuting this suit with ef"be within their grant." But the judge in-fect, they must be excused from *bring- [*29 structed the jury that, "although the Indian ing it; and are within the equity, though not "boundary included the beginning corner, and within the letter of the exceptions. "part of the lines of the said tract, yet, if the "defendants had actual possession of part of the "said tract, not so included within the said Indi"an boundary, and retained possession thereof 27*] "for seven years, without any suit being "commenced, the plaintiff would thereby be "barred from a recovery." To this opinion the plaintiffs, by their counsel, excepted. The jury found a verdict for the defendants on which a judgment was rendered, and the The statute of limitations is intended, not for the punishment of those who neglect to assert their rights by suit, but for the protection of those who have remained in possession under color of a title believed to be good. The possession of the defendants being of lands not within the Indian territory, and being in itself legal, no reason exists, as connected with that possession, why it should not avail them and perfect their title as intended by the act. 1.-1 Wheat. 476. |