Parks v. Ross. 11 H.

General Scott. Among these estimates was one for hire of fifty-one wagons and teams, amounting in the whole to $51,000. In this amount was included an item of $14,280, as necessary to pay the hire and expenses of the wagons on their return, at the rate of seven dollars per day. The plaintiff's intestate was owner of four [*374] of the fifty-one wagons and * teams employed. After the emigration was ended, the delegates or agents of the nation settled the accounts, and among others that of plaintiff's intestate, who received the amount of his account and gave a receipt in full. Nothing was allowed him for return wagon hire in the account settled, and none was claimed by him, as he was himself a Cherokee, and intended to reside in the nation. Since his death, this suit has been instituted by his administrator, on the mistaken notion, that, because in the money of the nation received by John Ross there was included a sum of $14,280 estimated as necessary to pay return wagon hire, therefore the plaintiff's intestate was entitled to his proportional share of it, without any regard to the fact, whether the Cherokees were willing to allow it to him, or whether it was due to him on his own contract with their agents. There was no evidence whatever tending to show a special contract by John Ross personally to pay for the teams and wagons, either for going or returning. The contract of plaintiff's intestate was with the Cherokee nation, through their known public agents or officers. John Ross was the superintendent, treasurer, and disbursing officer. The money in his possession was the money of the nation; the plaintiff's intestate, and all who were employed in assisting the nation to emigrate, were fully aware that John Ross was acting as a public officer, and dealt with him as such.

Now, it is an established rule of law, that an agent who contracts in the name of his principal is not liable to a suit on such contract; much less a public officer, acting for his government. As regards him the rule is, that he is not responsible on any contract he may make in that capacity; and wherever his contract or engagement is connected with a subject fairly within the scope of his authority, it shall be intended to have been made officially, and in his public character, unless the contrary appears by satisfactory evidence of an absolute and unqualified engagement to be personally liable.

The Cherokees are in many respects a foreign and independent nation. They are governed by their own laws and officers, chosen by themselves. And though in a state of pupilage, and under the guardianship of the United States, this government has delegated no power to the courts of this District to arrest the public representatives or agents of Indian nations, who may be casually within their local

Fowler v. Merrill. 11 H.

jurisdiction, and compel them to pay the debts of their nation, either to an individual of their own nation, or a citizen of the United States.

The judgment of the circuit court is therefore affirmed, with costs. 19 H. 263; 1 Wal. 359.

ABSALOM FOWLER and NOAH H. BADGETT, Appellants, v. AYRES P. MERRILL.

11 H. 375.

A judge of probate, in Mississippi, is "a judge of a county court," within the meaning of the 30th section of the judiciary act of 1789, (1 Stats. at Large, 88.)

If a law requires mortgages to be recorded, and a mortgage had already been recorded prior to the passage of the law, this is sufficient.

If the defendant does not give up mortgaged property to the mortgagee pursuant to a decree to that effect, its value at the time of the failure to obey the decree, is the measure of dam ages.

THE case is sufficiently stated in the opinion of the court.

Lawrence, for the appellants.

Addison, contrà.

* WOODBURY, J., delivered the opinion of the court.

This was an appeal from a decree of the circuit court of the United States for the district of Arkansas.

[392]

The decree was in favor of Merrill, on a bill in chancery to fore close a mortgage of certain negroes, described therein and executed to him, November 25, 1837, to secure him for indorsing two notes made in April and June, 1837, the first payable in one year and the other in two years, for $12,578.42 in the aggregate. These notes run to F. L. Dawson or order, and were by him indorsed to the plaintiff, Merrill, and by him to the Planters' Bank for Dawson, who obtained the money thereon for himself. This mortgage was recorded December 29, 1837.

• The notes not being taken up by Dawson, Merrill was [393] compelled to pay their amount and interest, on the 4th of March, 1842.

The bill then proceeded to aver, that the defendants below, viz. James L. Dawson, James Sinith, William Dawson, and others, had since got possession of these negroes, some of one portion of them and some of another. And that, although they were bought with full notice of Merrill's prior rights to them under the above mortgage, yet the respondents all refuse to deliver them to him, or pay their value and hire towards the discharge of the mortgage. Whereupon he prayed that each of them be required to deliver up the

Fowler v. Merrill. 11 H.

negroes in his possession, and account for their hire, or to pay their value.

The court below decided, that $18,934 be paid to Merrill by the respondents, excepting Mrs. Bayler, and, on failure to do it, that the redemption of them be barred, and other proceedings had, so as eventually to restore the slaves or their value to the mortgagee.

Several objections to this decree and other rulings below were made, which will be considered in the order in which they were presented.

Some of the depositions which were offered to prove important facts had been taken before "a judge of the probate court" in Mississippi, when the act of congress allows it in such cases before "a judge of a county court." 1 Stats. at Large, 88, 89.

But we think, for such a purpose, a judge of probate is usually very competent, and is a county judge within the description of the law.

In Mississippi, where these depositions were taken, a probate court is organized for each county, and is a court of record, having a seal. Hutch. Dig. 719, 721. Under these circumstances, were the competency of a probate judge more doubtful, the objection is waived by the depositions having been taken over again in substance before the mayor of Natchez.

The other objections to the depositions are in part overruled by the cases of Bell v. Morrison et al. 1 Pet. 356, and Patapsco Ins. Co. v. Southgate et al. 5 Pet. 617.

On the rest of them not so settled, we are satisfied with the views expressed below, without going into further details.

The next exception for our consideration is, that the time of the execution of the mortgage is not shown, and hence that it may have been after the rights of the respondents commenced.

But it must be presumed to have been executed at its [* 394 ] date *till the contrary is shown; and its date was long before. Besides this, it was acknowledged probably the same day, being certified as done the 24th of November, 1837. And though this was done out of the State, yet, if not good for some purposes, it tends to establish the true time of executing the mortgage. It must also have been executed before recorded, and that was December 29th of the same year, and long before the sale in October, 1841, under which the respondents claim.

The objection, that the handwriting of the record is Dawson's, does not impair this fact, or the legality of the record as a record, it having doubtless been allowed by the register, and being in the appropriate place in the book of records.

Fowler v. Merrill. 11 H.

It is next insisted, that, as the negroes were left in the possession of Dawson after the mortgage, and were seized and sold to the respondents in October, 1841, to pay a debt due from Dawson to the Commercial Bank of Vicksburg, and as the respondents were innocent purchasers, and without notice of the mortgage, the latter was consequently void. This is the substance of several of the answers. Now, whether a sale or mortgage, without changing the possession of the property, is in most cases only prima facie evidence of fraud, or is per se fraud, whether in England or in some of the States, or in Arkansas, where this mortgage and the sale took place, may not be fully settled in some of them, though it is clear enough in others. See cases cited in 2 Kent's Com. 406-412. So, whether a sound distinction may not exist at times between a mortgage and a sale, need not be examined, though it is more customary in all mortgages for the mortgagor honestly to retain the possession, than to pass it to the mortgagee. United States v. H, 3 Cranch, 88; Haven v. Low, 2 New Hamp. 15. See 1 Smith's Leading Cases, 48, note; Brooks v. Marbury, 11 Wheat. 82, 83; Bank of Georgia v. Higginbottom, 9 Pet. 60; Hankins v. Ingolls, 4 Blackf. 35. And in conditional sales, especially on a condition precedent bonâ fide, the vendor, it is usually considered, ought not to part with the possession till the condition is fulfilled. See in 9 Johns. 337, 340; 2 Wend. 599. See most of the cases collected in 2 Kent's Com. 406.

But it is unnecessary to decide any of these points here, as, in order to prevent any injury or fraud by the possession not being changed, a record of the mortgage is in most of the States required, and was made here within four or five weeks of the date of the mortgage, whereas the seizure and sale of the negroes to the respondents did not take place till nearly four years after.

Yet it is urged in answer to this, that the statute of Arkansas, * making a mortgage, acknowledged and recorded, [*395] good, without any change of possession of the articles, did not take effect till March 11, 1839, over a year after this record.

Such a registry, however, still tended to give publicity and notice of the mortgage, and to prevent as well as repel fraud, and it would, under the statute of frauds in Arkansas, make the sale valid if boná fide and for good consideration, unless against subsequent purchasers without notice. Rev. Stat. c. 65, § 7, p. 415.

There is no sufficient proof here of actual fraud, or mala fides, or want of a full and valuable consideration. And hence the objection is reduced to the mere question of the want of notice in the respondents. In relation to that fact, beside what has already been stated, evidence was offered to show, that the existence of the mortgage

Fowler v. Merrill. 11 H.

was known and talked of in the neighborhood, and proclaimed publicly at the sale.

Indeed, some of the evidence goes so far as to state, that, after the notice of the mortgage at the sale, the sheriff proceeded to sell only the equity of redemption, or to sell the negroes subject to any encumbrances. His own deed says expressly, "hereby conveying all of the right, title, estate, interest, claim, and demand of the said James L. Dawson, of, in, and to, the same, not making myself hereby responsible for the title of said slaves, but only conveying, as such sheriff, the title of said James L. Dawson, in and to the same."

The proof likewise brings this actual notice home to each of the respondents, before the purchase, independent of the public record of the mortgage and the public declaration forbidding the sale at the time, on the ground that the mortgage existed and was in full force. According to some cases, this conduct of theirs under such circumstances would seem more fraudulent than any by Merrill. Le Neve v. Le Neve, 3 Atk. 646; 1 Story, Eq. 395; 8 Wheat. 449. Beside this, the answer should have averred the want of notice, not only before the sale, but before the payment of the purchase-money. Till the actual payment the buyer is not injured, and it is voluntary to go on or not when informed that the title is in another. Wormley v. Wormley, 8 Wheat. 449; Hardingham v. Nicholls, 3 Atk. 304; Jewett v. Palmer et al. 7 Johns. Ch. 68. See Le Neve v. Le Neve, 3 Atk. 651.

There is another view of this transaction, which, if necessary to revert to, would probably sustain this present mortgage. The Arkansas law to make a mortgage valid if recorded, passed February 20, 1838, Revised Stats. p. 580. This mortgage was on record

then, and since, and had been from December, 1837, thus [* 396] covering both the time when the law took effect and when the respondents purchased. It was also acknowledged then, and though not before a magistrate in Arkansas, yet before one in Mississippi; and in most States, the acknowledgment may be before a magistrate out of the State as well as in, if he is authorized to take acknowledgments of such instruments.

Nothing appears in the record here against his power to do this. Some complaint is next made of the delay by Merrill to enforce his mortgage against Dawson.

But it will be seen, on examining the evidence, that he was not compelled to pay Dawson's notes to the bank till March 4, 1842, and that these negroes were sold to the respondents and removed some months before, viz: October 11, 1841, so that no delay whatever occurred on his part to mislead the respondents.