THIS case was brought up, by writ of error, from the Circuit Court of the United States for the Southern District of New York.
The facts of the case were these:
On the 31st of August, 1836, Jacob Le Roy and Charlotte D. Le Roy, citizens of the state of New York, executed the following power of attorney:––
'Know all men by these presents, that we, Jacob Le Roy and Charlotte D. Le Roy, his wife, of the town of Le Roy, in the county of Genessee, and state of New York, have constituted and appointed, and by these presents do constitute and appoint, Elisha Starr, of the same place, our true and lawful attorney, for the purposes following, to wit: In the name of the said Jacob Le Roy, and for his use and benefit, to expend and invest certain moneys for that purpose herewith placed by him in the hands of the said Starr, in the purchase of lands and real estate in some of the Western states and territories of the United States, at the discretion of the said Starr, and to take the certificates, titles, deeds, or other evidences of such purchases, to and in the name of the said Jacob Le Roy; and also, for and in the name of the said Jacob Le Roy and Charlotte D. Le Roy, to contract for the sale of, and to sell, either in whole or in part, the lands and real estate so purchased by the said Starr with the money herewith furnished him, or any other lands or real estate heretofore purchased in the said states or territories, by the said Starr or Suffrencis Dewy, for the said Jacob Le Roy, and now owned by him, or any lands which may have been bought with the avails of the lands so purchased as aforesaid, or for which the same may have been exchanged, to such person or persons, for such consideration, and on such terms, in all respects, as the said Starr shall deem most advantageous; and for us, and in our names, to execute to the purchaser or purchasers thereof, the assignments, contracts, or deeds of conveyance necessary for the full and perfect transfer of all of our respective right, title, and interest, dower and right of dower, as sufficiently, in all respects, as we ourselves could do personally in the premises; and generally, as the agent and attorney of the said Jacob Le Roy, to purchase lands or real estate with the money now furnished him, and to sell, re-sell, and exchange the same, or any lands heretofore purchased by him for the said Jacob Le Roy, or any lands or real estate that he may acquire in consideration of the sale or exchange of the same, to such persons, and on such terms, in all respects, as he may deem most eligible; and to do all acts legally necessary for the perfect transfer to such persons of the title of the same; we hereby ratifying and confirming whatsoever our said attorney shall do in the premises, by virtue of these presents, until the 1st day of July next, 1837; from and after which day, these presents, and the powers conferred thereby, shall cease, and be null and void.
'Sealed with our seals, and dated this 31st day of August, 1836.
CHARLOTTE D. LE ROY. [L. S.]
This power was regularly acknowledged.
On the 7th of November, 1836, Starr executed the deed which was the subject of the present controversy, viz.:––
'This indenture, made this 7th day of November, in the year of our Lord 1836, between Jacob Le Roy and Charlotte D. Le Roy, wife of said Jacob, both of Le Roy, Genesee county, state of New York, by Elisha Starr, now of Milwaukee, in the territory of Wisconsin, their lawful attorney, parties of the first part; and William Beard, of Newtown, Fairfield county, and state of Connecticut, party of the second part, witnesseth: that the said party of the first part, for and in consideration of one thousand eight hundred dollars in hand paid by the said party of the second part, the receipt whereof is hereby acknowledged, have granted, bargained, sold, remised, released, aliened, and confirmed, and by these presents do grant, bargain, sell, remise, release, alien, and confirm, unto the said party of the second part, and to his heirs and assigns, for ever, one certain piece or parcel of land, situated in the town of Milwaukee, and territory of Wisconsin, viz.: One equal undivided acre of land, in fifty-seven and sixty hundredths acres, said fifty-seven and sixty hundredth acres being in township lot number three of the southeast fractional quarter of section number thirty-two in said township seven, north of range twenty-two east, it being part of the same tract of land conveyed to us by Levi C. Turner, of Cooperstown, Otsego county, state of New York, as per his deed, bearing date the 28th day of April, 1836; together with all and singular the hereditaments and appurtenances thereunto belonging, or in any wise appertaining, and the reversion and reversions, remainder and remainders, rents, issues, and profits thereof. And all the estate, right, title, interest, claim, or demand whatsoever, of the said party of the first part, either in law or equity, of, in, and to the above-bargained premises, with the hereditaments and appurtenances; to have and to hold the said premises as above described, with the appurtenances, unto the said party of the second part, and to his heirs and assigns, to their sole and only proper use, benefit, and behoof, for ever. And the said parties of the first part, by their attorney as aforesaid, for their heirs, executors, and administrators, do covenant, grant, bargain, and agree, to and with the said party of the second part, and his heirs and assigns, that, at the time of the ensealing and delivering these presents, we are well seized of the premises above conveyed, as of a good, sure, perfect, absolute, and indefeasible estate of inheritance in the law in fee simple, and have good right, full power, and lawful authority to grant, bargain, sell, and convey the same in manner and form as aforesaid. And that the same are free and clear of all encumbrances, of what kind and nature soever. And that the above-bargained premises, in the quiet and peaceable possession of the said party of the second part, his heirs and assigns, against all and every person or persons lawful claiming or to claim the whole or any part thereof, they will for ever warrant and defend.
'In witness whereof, the said parties of the first part have hereunto set their hands and seals, the day and year first above written.
By Elisha Starr, his Attorney.
'CHARLOTTE D. LE ROY, [L. S.]
By Elisha Starr, her Attorney.
'Sealed and delivered in presence of
DAVID V. B. BALDWIN.' This deed was regularly acknowledged and recorded in Wisconsin.
There were three persons, viz., Nichols, Baldwin, and Beard, engaged in making purchases from Starr, each upon his own account, and the following letters were read upon the trial. They are inserted because the opinion of the court lays some stress upon the actions of the parties.
'Newtown, August 28, 1838.
'Dear Sir,–I take the liberty of forwarding to you the following information, by advices lately received from my attorney at Milwaukie. I learn that the title of the property I purchased of you in Milwaukie, in November, 1836, has failed, in consequence of the Indian title not being extinguished when the property was floated. I further learn that the receiver or land-officer has been directed to refund the purchase-money to the original purchaser, and that the subject has been before the Solicitor of the Treasury, and he has directed that the property belongs to the government, and that an appeal was taken from his decision to the Secretary of the Treasury, who confirmed the decision.
'If so, you are doubtless aware that, upon your covenants of warranty, you are liable to refund to me the purchase-money, which I shall expect you to do, together with the interest on the same. If a deed of release or quitclaim will be of any service to you, you can have one when the money is refunded.
'I shall be happy to hear from you on the receipt of this, and any proposition you may have to make regarding the premises will be duly considered.
(Signed,) THEOPHILUS NICHOLS.'
'Le Roy, 2d September, 1838.
'Dear Sir,–I received last evening yours of the 28th, and the contents surprised me not a little, that I, who held large possessions in Milwaukie, and in constant communication with that place, should receive the first intelligence of so great a misfortune from you. I received a letter three days ago from that place, but not a word is said about any trouble, and I have therefore come to the conclusion your agent has been hoaxed; the whole statement carries on the face of it an absurdity. Admitting that any thing had occurred as you state, have not the United States received the same amount there from their land as they have elsewhere? Do you imagine that Congress would allow innocent persons to suffer in a case of that kind? I have written to Milwaukie by this day's mail to ascertain if there is any difficulty, and in the interim would beg you to keep easy in mind, for you may rest assured that your title will never be disturbed.
'Respectfully, yours, truly,
'New York, 12th June, 1839.
'THEOPHILUS NICHOLS, ESQ.:––
'Sir,–Your letter of the 1st instant was returned to me this day from Le Roy. In reply I state, that the title to the lands purchased from me is derived from the United States, and I know of no mode by which a sale can be rescinded by any officer of the government after it has been once consummated. If any error has been committed, of which I have no information upon which reliance ought to be placed in transactions of business, the government will no doubt correct it. Besides, as my grantor is liable to me if there is any defect of title. I can make no voluntary settlement without increasing the difficulties. There were many purchasers at the public sales of the lands of which those I sold are a part, who have sold out, and it cannot be possible, if there is any substantial legal defect in the sale, that the question will not soon receive the adjudication of some sufficient legal tribunal, when I shall always be willing to fulfil any legal claims which I may be under to you or your friends.
'With respect, yours, &c.,
'New York, 5th February, 1841.
'Dear Sir:–Yours, addressed to me at Le Roy, came to hand in due course, being returned to this place. In reply to your remarks I have only to say, that so soon as the highest tribunals of our country shall decide that my title to the land sold you is defective, I shall be ready to settle with you on just principles; but until then I must decline all negotiations. You say that the title is bad. Perhaps you are not aware that an act passed the Senate of the United States at its last session, unanimously confirming the sale, and was only lost in the House for want of time. I am in great hopes that relief will be obtained this session; but at any rate a long time cannot now elapse before justice will be done us; for a more righteous claim there cannot be. My situation is the same as yours. Until such decision is made, I cannot make claim from those from whom I purchased.
'With great respect, yours, truly,
'WILLIAM BEARD, ESQ., Newtown.'
On the 24th of June, 1841, Beard, a citizen of the state of Connecticut, brought his action in the Circuit Court of New York against Le Roy. It was an action of assumpsit, containing the ordinary money counts, and also two special counts stating the purchase and sale, the covenant of seizin, and an averment that the grantor was not so seized, whereby he became liable to repay the $1800.
The defendant pleaded the general issue to the money counts, and a special plea that he had a good title to the premises described in the declaration. To ...