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May vs. Specht.

ing of the act; and not a new title created in him by the patent. Any other construction of this language would involve the absurdity of vesting a man with an adverse title, based upon and in affirmance of the title under which he claims and holds the lands in question. But this is a mere voluntary release by the government - a recognition of the truth and justice of the claim of the occupant, and cannot, by any fair construction, be treated as an assertion of the paramount title of the government, in opposition to such claim.

It would seem to follow, as a necessary result, that the confirmation of the title in Peltier, which extinguished the title of the government, must forever prevent those who derived their title through him from setting up the government title in opposition to the one under which Peltier [192*] held at the time of the confirmation: in other words, that the confirmation by the patent to Peltier must be treated as taking effect, by relation, upon the title of May; and confirming it as an estate of inheritance in fee simple in him, entitling his widow to dower.

The case of Bancroft v. White, before referred to, was not as strong in favor of the demandant as this. Hawes, the former husband of Lois Bancroft, during the coverture, entered upon the demanded premises and held and used the same in his own right for several years, and on the 1st day of November, 1786, by deed of bargain and sale, conveyed the same to Jacob Brooker, in fee, with covenant of warranty. On the 8th of June, 1795, Brooker and wife conveyed the premises by a similar deed to Gardner, and on the 23d of September, 1799, Gardner and wife, by a similar deed, conveyed the same premises to White, the defendant. Each of the several grantees entered by virtue of his deed, and occupied in his own right.

By an act of the legislature of the state of New York, entitled "an act for the sale and disposition of lands belonging to the people of this state, and for other purposes therein mentioned," passed the 22d day of March, 1791, it was enacted as follows, to wit: "That all the estate, right, claim, interest and

May vs. Specht.

demand of the people of the state of New York of, in and to any lands, tenements or hereditaments in the town of Canaan, in the county of Columbia, now possessed by any person or persons, shall be and hereby is granted to the respective possessors of such lands, tenements and hereditaments, and to the heirs and assigns of such possessors, respectively, forever: provided, always, that such possessors shall be construed and taken to be the person or persons holding in his or her own right, and not occupying and improving in the right of another." Here the lands, etc., were granted to the person or persons in possession, and to the heirs and assigns of such person or persons, and no words of confirmation are used in the act, and no referencce is made, unless implied from the language of the proviso, to any title or claim of title, which might have existed in any prior occupant or other person. Yet the court in that case say, "in the present case the tenant claims in fee under the title derived from the husband," and judgment was rendered in favor of the demandant.

From the view we have thus taken of the case, it becomes unnecessary to consider the severe and rigid doctrine of [193*1 estoppel, as it has often been applied, to shut out facts, and override the principles of natural justice

and good conscience between men.

It is said on behalf of the defendants, that this claim of dower is against equity, conscience and justice, and ought not to be allowed but upon the ground of strict law only; and that the very claim of dower now set up was warranted against and paid for.

We are by no means disposed to strain the provisions of law, or make them expand to embrace this claim; on the contrary, we place it entirely upon strict legal ground. As to its justice, it may be remarked, that the warranty against it is the protection of the party against injustice, and shows that it was in the contemplation of the parties when the covenant was mad. The covenant of warranty of quiet possession runs with the land, and must be presumed to be an ample protec

Thurston vs. Prentiss.

tion against the assertion of the right of dower, being that which the purchaser has provided for himself.

The judgment of the circuit court must be reversed, with costs to the plaintiff in error, and a new trial granted. Judgment reversed.

THURSTON VS. PRENTISS et al.

A. and B. became surety for the payment of two judgments against C., by the 16th of July thereafter, and C. executed and delivered to them his promissory note and mortgage for $600, payable the 1st of August following, upon the understanding and agreement, that if C. paid the judgments and saved them harmless from all costs, trouble and expenses on account of their having become surety for him, the note and mortgage were to be canceled. C. failed to pay the judgments. Held,

1st. That A. and B., after the note and mortgage fell due, might foreclose the mortgage at law, by advertisement and sale under the statute, to raise the money to pay the judgments, and rid themselves of their responsibility.

2d. That A., who purchased the premises on the mortgage sale, held them subject to the right of C. to redeem, on paying the amount A. had paid as surety for the mortgagor, with the costs of foreclosure and interest, and that a third person who purchased the premises of

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NOTE. A cause of action against the principal, in favor of the surety, does not accrue until the surety has paid the debt, Shepard v. Ogden, 2 Scam. 257; Bonham v. Galloway, 13 Ill. 73; Darst v. Bates, 51 id. 439. In Fletcher v. Edson, 8 Vt. 294, and Cushing v. Gove and Grafton, 15 Mass. 69, a distinction is taken between the time when a surety becomes entitled to recover from his principal, when he is a surety to indemnify, and when he is a surety to secure. In the former case he is entitled to recover from his principal only upon having paid the original debt to his principal's creditor. In the latter case his obligation to pay the original debt will constitute a new and good consideration for any note or other security which his principal may give him, and the latter therefore may be enforced according to its face and terms when due, whether the surety has paid the principal debt or not. If the surety has provided in his agreement with his principal that the note or other security given him by the latter shall mature and be enforced in time to afford the means wherewith to pay the principal debt the surety is more than indemnified, he is secured.

Thurston vs. Prentiss.

A., with a knowledge of the facts, took the land subject to the mort

gagor's equity of redemption.

[194*] *A surety, who pays usurious interest to obtain time to pay the debt of his principal in, cannot collect the excessive interest se paid by him of his principal.

Where judgment is confessed by principal and surety on a note given for money loaned, including usury, and execution is taken out and levied on the goods of the surety who pays the judgment, the principal is liable over to the surety for the usury paid by him, as well as the sum actually loaned with interest.

A decree may be made between codefendants, grounded upon the plead ings and proofs hetween complainant and defendants.

Where a statute gives a new right and prescribes a particular remedy,

such remedy must be strictly pursued, and the party is confined to that remedy only; as to recover three-fold the amount of usurious in terest paid, under R. S. 1838, p. 161, sec. 7.

APPEAL from the Court of Chancery. Case reported in Walk. Ch. 529.

Backus, for appellant.

Terry, for appellees.

By the Court, WING, J. On the 15th of March, 1839, appellant applied to Azariah Prentiss, one of the defendants, for the loan of $300, and it was agreed between them that appellant should receive of Prentiss this sum, upon the terms that appellant should allow to Prentiss the sum of $100 for the use of the $300, or at the rate of sixty per cent., until the 16th day of July, when the sum loaned and interest was to be repaid; and appellant was to procure some one to sign with him two notes, each for $200, upon which they should confess judgments the same day, and that such judgments were to be stayed. Accordingly, appellant procured David Phelps to execute two notes with him to Prentiss, for $200 each, upon which they confessed judgments before a justice, and John Price became security for stay of execution in both judgments, until the 16th of the then next July. And then Prentiss delivered to appellant the $300; and appellant, at the request of Phelps and Price, executed and delivered to them his promissory note for $600,

Thurston vs. Prentiss.

made payable on the 1st day of August then next, secured by mortgage, which note and mortgage were executed to Phelps and Price upon the understanding and agreement between them and appellant, that if he should pay the amount of the judgments and save them harmless from all costs, trouble and expense, on account of their having *be- [195*] come surety for him on the judgments, then the note was to be given up and the mortgage canceled. After the expiration of the stay of execution, executions were sued out upon both of the judgments, and levied upon the personal property of Phelps, and he endeavored to induce appellant to pay the executions, but without success. Phelps, therefore, to save his property from sale on the executions, executed to Prentiss a mortgage on his own farm, for the amount of said judgments and ten per cent. interest, payable 1st of July, 1841. The executions were withdrawn. After the note to Phelps and Price fell due, they foreclosed their mortgage under the statute; and on the 4th day of November, 1839, Phelps bid in the mortgaged premises for the sum of $438, and, afterwards, on the 27th day of August, 1841, he assigned his certificate of purchase, and Price united with him in assigning the note and mortgage to Crissman for the sum of $500, of which sum they paid Prentiss, on the 27th of August, 1841, the amount supposed to be due to him; since which period Crissman has held the note, mortgage and certificate.

The defendants are charged in the bill with having combined to get appellant's farm for their common benefit, and that all of the defendants, except Dolby, were originally concerned together in the scheme of loaning the money, taking the note of $600 and the mortgage to secure it, and in its foreclosure, and that all were advised of the usury in the loan before they received or purchased the note and mortgage.

There is no proof of combination between the defendants. The defendants deny any knowledge of the usury except Prentiss; he says he is unable to say how it was, as two years had elapsed since he loaned the money. But it is abundantly

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