[The Bank of the Metropolis vs. Guttschlick.]

the said Elgar, the Bank of the Metropolis, and Patriotic Bank, were all in the city of Washington from 1818 till after 1835.

The defendant moved the Court to instruct the jury, that upon this evidence the plaintiff was not entitled to recover upon the first, or second, or third, or fourth counts in the declaration; which instructions the Court refused to give; to which refusal the defendants excepted.

The defendants presented this writ of error.

The case was argued by Mr. Coxe, for the plaintiffs in error, and by Messrs. Semmes and Bradley, for the defendant.

Mr. Coxe contended that the Circuit Court had erred in each and all the instructions given to the jury.

He argued that the proceedings under the deed from Orr to Elgar, under which the Patriotic Bank claimed title to the lot sold to the defendant in error, were irregular and void. Eighteen years had elapsed between the execution of the deed of trust by Orr to Elgar; and if the Patriotic Bank could come forward in 1835, to claim under a note given in 1819, they should have gone into a Court of Equity before they could call on the trustee to sell. The deed of trust gave only a naked power; and after the elapse of so many years, no sale could be made under it. He had exceeded his authority. Deeds of trust have the same effect as common law mortgages. In 1835, when Elgar undertook to execute the trust, there was no debt due to the Patriotic Bank. A Court of Equity, as well as a Court of Common Law, would have presumed its payment.

There is no evidence that Samuel Lane had been sued upon the notes, or had ever suffered damage, or been put to expense. The judgment of the Patriotic Bank on the notes was obtained in 1823, against the administrator of Lane.

By the law of Maryland, a judgment becomes inoperative after twelve years; and this judgment was therefore invalid in 1835. The statute of limitations had created a complete bar to all claims on the notes of Orr, or on the judgment. The Patriotic Bank had no rights under either the judgment or the notes.

The Bank of the Metropolis had therefore become entitled, completely and exclusively, under the deed to Alexander Kerr, to the lot; for if no proceedings could be had against Lane, how could the deed of trust from Orr to Elgar be put in force? No evidence could be introduced to show the right of Elgar. It was at an end from time.

The defendant in error did not show on the trial a right to recover against the Bank of the Metropolis. He has no right of action. He should have shown that he had tendered a proper deed to the bank to be executed: but this is not shown, or averred. He should have proved that a power to sell the lot had been given by the bank to the president and cashier: but the Circuit Court did not require this. The defendant in error was barred from sueing, by his holding the

[The Bank of the Metropolis vs. Guttschlick.]

deed for the lot, although it may have been defective; and by his holding possession under the deed, until he had demanded a better one from the Bank of the Metropolis.

All the counts in the declaration are defective but the fourth and last, as they have no conclusion; and the conclusion to the last count is inapplicable to the preceding three.

Messrs. Semmes and Bradley for the defendant in error.

It is extraordinary, that after the pleadings were made up in this case, a trial had, and the plaintiffs in error had taken four bills of exceptions, objections to the declaration should be first made in this Court. The party thus objecting is too late: he has waved all right to take such exceptions. All defects in the declaration are cured by the verdict and by the statute of jeofails.

So if the defendant in the Circuit Court had an objection to the form of the action, he should have taken it by a plea. The contract is set out in the declaration. It is a contract for the sale of the lot by the officers of the bank; and it has been held that the accredited agents of the bank have a right to bind it by their contracts. Hatch 28. Barr, 1 Ohio Reports, 390.

It is certain that the Bank of the Metropolis made the contract set out in the record, and did not keep it with the defendant in error. At the time they assumed the right to sell the lot, the bank could not legally convey it; nor has a legal title to it been made at any time by the bank. There was an existing encumbrance on the lot which the bank did not remove, and which has, subsequently to the sale to the defendant in error, been enforced; and he is entirely divested of the property. He has paid the full consideration stated in the contract, and he now seeks to recover the same back from the bank. This is resisted, and this is the question in the case. On the part of the defendant in error every principle of equity and justice is in full force. The bank would exempt itself from its obligations upon legal and technical grounds. But no objections on such grounds to the recovery of the defendant in error will be found to exist. 20 Johns. Rep. 15. 20. Sugden on Vendors, 6. Encumbrances on property are objections to a valid title. 11 Johns. Rep. 525. 2 Johns. Rep. 613. 12 Johns. Rep. 190. 8 Wheat. 338. 12 Wheat. 64.

The authority of the agents of the bank to sell may be inferred from the acts of the parties. The money of the defendant and his note were given to the bank for the property, and this property was acquired by the bank from one of its debtors for the payment of a debt. This is authorized by the charter.

This was a contract on the part of the bank to sell the lot, free from all encumbrances. Cited on this point, 1 H. Black. 270. 280. 3 Bos. and Pull. 162. 4 Espinasse's Rep. 221. 2 Esp. Nisi Prius,

639, 640.

Was there an outstanding legal encumbrance on the lot, superior VOL. XIV.-C

4

[The Bank of the Metropolis vs. Guttschlick.]

to the title of the Bank of the Metropolis, at the time they made the sale to the defendant in error?

It must be admitted that any one interested in the trust given to Elgar, might call on him to execute it; and if he was willing to do his duty, there was no necessity to call in the aid of a Court of Chancery. The Patriotic Bank was the holder of the notes endorsed by Lane; it was the cestui que trust. The bank was not barred by time. Their judgment was interlocutory, and was not affected by the statute of limitations of Maryland. The object of the deed of trust was to pay the notes, and thus to indemnify the endorser. The bank had a right to avail itself of the trust whenever it became known to them. 3 Johns. Ch. Cases, 261.

The purchase of the lot by the Bank of the Metropolis was made subject to the deed of trust to Elgar. That deed was on record, and was notice, from its date, to all the world. Nothing but actual fraud can divest a mortgage properly on record, and that fraud must be proved. Cited, the Recording Act of Maryland, 1815. 1 Johns. Ch. Cases, 298. 394.

Another objection has been made. It is said, that although the length of time which had elapsed before the sale by Elgar, would not bar a mortgage, but it would bar a judgment. But to make a judgment a bar, the statute of limitations must be pleaded. It is not void, but may be made so by pleading the statute. There was no plea of the statute in this case.

Mr. Justice BARBOUR delivered the opinion of the Court. This was an action of assumpsit brought by the defendant in error against the plaintiff in error, in the Circuit Court of the United States, in the county of Washington, and District of Columbia.

The declaration contains three special counts, and a count for money had and received. The three special counts are all founded upon an agreement in writing, which, after reciting that the plaintiff in the Court below had bought of the defendant in the Court below, lot No. 5, in square No. 489, in the city of Washington, for which he had paid a part of the purchase money, and executed his note for the residue, contains the following stipulation: "The Bank of the Metropolis, through the president and cashier, is hereby pledged, when the above sum, (that is, the amount of the note,) is paid, to convey the said lot, viz. lot No. 5, in square 489, in fee simple, to the said Ernest Guttschlick, his heirs, or assigns forever." Each of these counts avers the payment, at the time agreed, of the amount of the note, and the failure of the bank, on demand, to convey the lot. At the trial several bills of exception were taken, and a verdict was found, and judgment rendered in favour of the plaintiff. To reverse that judgment, this writ of error is brought.

In the argument at the bar, various objections have been urged to the sufficiency of the declaration, which we will briefly notice, in the order in which they were made.

The first objection is, that the special counts have no conclusion

[The Bank of the Metropolis vs. Guttschlick.]

There is certainly no formal conclusion to either of these counts. Each of them, after alleging the breach, terminating with the words, "Whereby, &c." Whether counts thus concluding, would have been sufficient upon a special demurrer in the Court below, it is not necessary to decide; because we are clearly of opinion, that the thirty-second section of the Judiciary act, would cure the defect, if t were admitted to have been one.

The second objection which was taken, applies to the first count, viz., that the agreement sued on, is averred to have been made by the bank, "through the president and cashier," without averring their authorization by the bank to make it. We consider this objection as wholly untenable. The averment in this count is, that the bank, through these officers, agreed to convey the lot. Now even assuming, for the sake of giving the objection its full force, that the making of this agreement was not within the competency of these officers, as such, yet it was unquestionably in the power of the bank to give authority to its own officers to do so. When, then, it is averred that the bank, by them, agreed, this averment, in effect, imports the very thing, the supposed want of which constitutes the objection because, upon the assumption stated, the bank could have made no agreement but by agents having lawful authority. Nay, it would have been sufficient, in our opinion, that the bank agreed, without the words, "through the president and cashier:" for it is a rule in pleading, that facts may be stated according to their legal effect. Now the legal effect of an agreement made by an agent for his principal, whilst the agent is acting within the scope of his authority, is, that it is the agreement of the principal. Accordingly, it is settled that the allegation that a party made, accepted, endorsed, or delivered a bill of exchange, is sufficient, although the defendant did not, in fact, do either of these acts himself, provided he authorized the doing of them. Chitty on Bills, 356, and the authorities there cited. This principle has been applied too, in actions ex delicto, as well as ex contractu. In 6 Term Rep. 659, it was held, that an allegation that the defendant had negligently driven his cart against plaintiff's horse, was supported by evidence, that defendant's servant drove the cart. In this aspect of the question, it was one, not of pleading, but of evidence. If, on the contrary, the act were one in their regular line of duty, then, of course, the averment was unnecessary. In the case of Fleckner vs. U. States Bank, 8 Wheat. 358, the Court declare the point to be settled, "that a corporation may be bound by contracts not authorized or executed under its corporate seal, and by contracts made in the ordinary discharge of the official duty of its agents and officers."

The next objection which was raised to the declaration applied to the second count, viz., that the averment that the plaintiff was turned out of possession, was insufficient in this, that it is not averred to have been by process of law, or by the entry of one having lawful title. If entry and eviction were the ground of the action, or constituted the gravamen of the count, as in covenant on a warranty,

[The Bank of the Metropolis vs. Guttschlick.]

or for quiet enjoyment, then, indeed, a declaration or count would be defective, which omitted to aver, that the plaintiff was evicted by due process of law, or by the entry and eviction of one who, at the time of the covenant, had lawful title to the land; and having such title, entered and evicted the plaintiff; or which did not contain some averment of equivalent import. But upon examining the count in question, it will be found, that although this averment is contained in that count, it is mere surplusage; because the breach alleged is, that the defendant refused, on demand, to convey the land. There is nothing, therefore, in the objection, as applied to this count; because it would be good without averring any eviction whatsoever.

The next objection to the declaration applies to the third count, and it is this; that the plaintiff, in that count, treats the agreement as importing an undertaking on the part of the bank to convey the lot in fee simple, by a good and indefeisible title, free from encumbrances. In the view which we have taken of this subject, it is unnecessary for us to decide whether the agreement does, or does not, import such an undertaking, on the part of the bank, as is ascribed to it in this count of the declaration. This count contains an averment that the bank was not at the time of the agreement, or at any time after, seized or possessed of the lot in fee simple. We have seen that the language of the agreement is, that the bank was to convey the lot in fee simple, to the defendant in error, his heirs, or assigns forever. Now it appears from the record, that the bank claimed under a deed from Alexander Kerr, who sold the lot as trustee, under a deed of trust from Orr, the former owner, made to secure certain debts therein stated, which deed of trust was executed on the 8th of September, 1819. But Orr had previously, to wit, on the 6th of August, 1818, conveyed the same lot, in fee simple, to Joseph Elgar, as trustee for the purpose of securing certain debts therein stated, and with power to sell, in certain events therein mentioned; one of which was, that Samuel Lane, who was endorser of a note of three thousand dollars, secured by this last deed, should be sued, which event occurred as early as the year 1820. Now from this state of facts, it is apparent that at the date of the agreement, the bank was not seized of the fee simple which it contracted to convey. If the deed of trust to Elgar be considered as a mortgage, then the moment it was executed, the legal estate in fee simple was in Elgar, subject to be defeated upon the performance of the condition, and so continued in him, from that time down to the year 1835, when, under the trust deed he sold and conveyed the lot to the Patriotic Bank, which purchased at the sale. The interest of the mortgagor, according to the common law, is not liable to execution as real estate. 8 East, 467. 5 Bos. and Pull. 461. It is treated as equitable assets, 1 Vesey, 436. 4 Kent, 154 In conformity with this doctrine, this Court decided, 12 Peters, 201, that the wife of a mortgagor was not dowable; and in 13 Peters, 294 that the equity of redemption could not be taken in execution unde