force it, it is only a lien on the land, in which third persons have no concern. A mortgagor cannot be permitted to disown his legal rights, to the prejudice of his creditors, or to protect himself in the possession and enjoyment of his estate, by admitting the existence of rights in third persons, who do not appear to set them up, which rights cannot be affected directly, or indirectly, by the success, or failure of his defence. The property in the possession of the plaintiff will be as liable, and as sufficient to satisfy the debt, as it will be if it remains with the defendant. If the mortgaged premises be of greater value than the debt for which they are pledged, the plaintiff, by his purchase from the sheriff, is enti. tled to the difference. The equity of redemption, as well as the legal estate was vested in Butler, at the time of the levy and sale, and it was decided in Waters v. Stewart, (1 Caine's Cases Error 47,) that an equity of redemption may be sold on execution.

The rights of Hinchley are not involved in this question. Were he in possession, and an ejectment brought against him, he might protect himself by his mortgage, but neither the mortgagor, nor any other person not claiming under the mortgage, can set up the rights of the mortgagee to defeat the Sheriff's sale.

In Klein's Lessee, v. Graham, (3 Caine's Rep. 188.) it was decided, that in an action of ejectment, by the purchaser at Sheriff's sale, against the debtor, the defendant cannot shew title in another, because the plantiff goes into his shoes, and acquires the same right, whether possessory or otherwise, which he held, and nothing more. Much less shall he be permitted, as in the present case, to set up a mortgage executed by himself, which not only admits his pos sessory right, but also his legal title.

The plaintiff purchased all the right of Butler, be it more or less, and if that right consisted merely of a naked possession, Butler cannot be permitted to dispute it.

In Jackson v. Willard, (4 John. 41) it was said to be an affront to common In that sense, to say that a mortgagor in possession, was not the real owner. case it was decided, that the mortgagee held only a chattel interest, which could not be sold on execution, after the debt became due, but before foreclosure, and while the mortagor remained in possession. This being the law, in relation to the rights of the mortgagee, if mortgaged premises cannot be sold as the pro perty of the mortgagor, subject to the mortgage, they are placed beyond the reach of creditors, and are completely protected against the debts, both of mort. gagor and mortgagee. But we do not consider it necessary to pursue this sub. ject further. We are satisfied with the decisions heretofore made, that the legal title to mortgaged premises remains in the mortgagor, while he continues his possession, whether the debt for the security of which the mortgage was given, has become due, or not. On this ground the Sheriff's sale was regular, the purchaser acquired the legal title, subject to the mortgage, and he stands in the shoes of the mortgagor, who cannot be allowed to set up the mortgage as evidence against his own title.

Judgment for plaintiff.

BYINGTON v. GEDDINGS

JUDGES PEASE AND BURNET.

1826.

The holder of a note payable to A. B. or bearer in cattle may maintain an action upon it in his own name, but he must aver and prove that the note was delivered to him for a good consideration. The case was this: Byington gave a note in April, 1822, for $17, payable in cattle, to R. Knap, or bearer.

Geddings brought an action in his own name, in which he declared on the note, without showing how he became possessed of it, whether by assignment, deliv ery, or otherwise. The defendant demurred. The court sustained the declaration, and gave judgment for the plaintiff, to reverse which, the writ of error was taken.

By the COURT.

This note is not negotiable. The statute of 1820, does not, like that of 1810, embrace notes payable in property. The right of the plaintiff, therefore, to recover in his own name, depends on the form of the note, and the operation of the promise. We consider the promise in the note, as made, not only to Knap, but to the person to whom he should deliver it.

The objection taken in the argument, that the note was not indorsed, is not entitled to any weight. An indorsement is not necessary to pass the interest of the first holder-a delivery is sufficient for that purpose. It is well settled, that the holder of a note, payable to bearer, may recover the contents in his own name, provided he has obtained it for a valuable consideration, in the fair course of trade. To entitle a holder to recover on such a note, in his own name, it must be stated as a part of his title, and proved at the trial, that the note was deliver. ed to him for a valuable consideration, or that he acquired it in the usual course of trade, or business. It was decided in Grant v. Vaughan, (3 Bur. 1516) that a negotiable note, payable to bearer, may be recovered in an action for money had and received. But in this case, the action is founded on the note, which is declared on, as though it were made payable to the plaintiff, he being the bearer. Under these circumstances, he was bound to make the averments before stated, and also to prove them. Without these averments and this proof, he cannot maintain his right to a recovery. He cannot rely on the presumption, that he obtained the note fairly. That fact is a substantial part of his title, which must be averred and proved. Without the averment, he sets out a defective title, and without the proof, he does not sustain his title. For any thing that appears in the record, the note might have come into the hands of the plaintiff by fraud, or accident, without delivery, or consideration. In the first instance, the right was vested in Knap, and the record does not show, that that right has been transferred. We consider it to be as necessary to aver a delivery, in this case, as it is to set out an assignment on a note payable to order. The declaration is,

therefore, defective, and the court erred in overruling the demurrer. Judgment reversed.

COLWELL v. THE BANK OF STEUBENVILLE.

JUDGES BURNET AND SHERMAN.

1826.

In foreign attachment under the act of 1810, it is error to render judgment unless three months notice be given.

It was a writ of foreign attachment on which final judgment had been rendered in the court of Common Pleas.

From the record it appeared that notice of the issuing of the writ had been published only six weeks, which was the principal error relied on.

The cause was submitted without argument.

By the COURT.

It appears that the writ of attachment issued under the statute passed in eighteen hundred and ten, and that the plaintiff has pursued the fourth section of that act which relates to domestic attachments, instead of the fifteenth section which directs the mode of proceeding on foreign attachments. This section requires a notice of three months before the rendition of judgment, and expressly provides that no judgment shall be entered in cases to which it relates, until the notice required shall have been given.

As this is a statutory proceeding unknown to the common law, it is necessary to pursue it strictly.

Judgment reversed.

LAMB v. STEWART.

JUDGES PEASE AND BURNET.

1826.

Declarations made by a witness previous to his examination, contrary to his statement when examined, are admissible to discredit his testimony.

It appeared from the record, that the plaintiff in the trial before the Common Pleas, called a witness, who testified to certain items in his account against the defendant. The defendant then offered to prove that the same witness, on a former occasion, when conversing on the same subject, not being under oath, had made different statements. The testimony offered, was objected to, and overruled, and a bill of exceptions taken.

The case was submitted without argument.

By the COURT.

The testimony offered by the defendant was strictly legal. He had a right to

discredit the witness, who had been examined against him, and one method of effecting that object was, by proving that he had told different stories at different times, when conversing on the same subject. Such evidence is always admitted when offered, and the effect of it is left to the jury. Judgment reversed, and cause remanded.

LESSEE OF HUGHEY v. HORRELL ET AL.

JUDGES BURNET AND SHERMAN.

1826.

Lands in the Virginia military district divided by County lines, where the owner resides on par can only be listed for taxation in the county where the owner resides.

If otherwise listed and sold for taxes the sale is void.

Advertisements of sales of lands for taxes must be made in two newspapers, one at the seat of Government, one in the county, or if none there, then one in most general circulation therein.

As the case turned on the sufficiency of the defendant's testimony, who claimed under a tax title, it is not necessary to state more of the case, than will be sufficient to present the points on which it was decided.

It appeared from the testimony, that the county line divided the land, part of it being in Madison, and part in Pickaway. The land was entered for taxation in the county of Madison, in the name of E. Prichard, who lived on that part of the tract, which was within the county of Pickaway. The land was charged with the taxes of 1820, and 1821. The notice was published in a newspaper printed at Columbus, and in no other. The newspapers of Chillicothe and of Springfield have a partial circulation in Madison, but the Columbus papers have the most general circulation. There was no newspaper printed in the county of Madison.

The principal objections to the validity of the tax title, were, that the land had not been listed according to law, and that the notice had been published in one paper only, when the law required it to be published in two. Other objec tions were taken which it was not thought necessary to decide.

By the COURT.

The 9th section of the act of 1820, under which the land in question was listed and sold, makes it the duty of the County auditor, to call on each resident proprietor of lands within his county, and take a list of all his lands subject to taxation within the county, with a proviso, that "all lands lying within the Vir ginia Military district, which shall be divided by county lines, so as to leave parts of said tracts in two, or more counties, shall be listed by the proprietor, in the county in which he lives." By the 13th section, it is made the duty of the Auditor, on failure of the proprietor to furnish a list, to enter the land from the best information in his power. As the land in question was within the Virginia Military district, and divided by a county line, and as Prichard, the proprietor in whose name it was listed, resided in the county of Pickaway, the auditor of Madison was not authorized to enter it on his list. It was made the duty

of the proprietor to enter it in the county in which he lived, and on his failure t do so it ought to have been entered by the auditor of Pickaway.

It is evident therefore, that this land has not been entered in conformity with the statute, and that it has been sold by an officer who was not authorized by law, to make the sale.

The 38th section provides, that the County Auditor, on receiving the delinquent list, shall forthwith cause the same to be advertised six weeks successively, in some newspaper printed at the seat of government in this state, and also in a newspaper printed in his proper county, if any such there be, and if not, in some newspaper in most general circulation in said county.

It is contended by the defendant, that as there was no paper printed in the county of Madison, and as the Columbus paper was in general circulation in that county, it was not necessary to publish the notice in any other. The law does not admit of such construction. The publication must be made in two papers, one printed at Columbus, and the other in the county where the auditor resides, if there be such a paper, and if not, then in some paper, (other than the one printed at the seat of government) in most general circulation in his county.

The object of the Legislature in both of these provisions, is obvious.

The first was intended for the convenience of the resident proprietor, and for the safety of all others concerned.

Instead of dividing the tract, and requiring double entries and payments, they have required it to be entered and paid in one county, and to prevent confusion they have designated which that should be.

For any thing that appears, the land may have been entered, and the taxes paid in Pickaway. The other provision, was designed to extend the notice, as generally as possible, for the information of owners, and for the purpose of increasing competition at the sale.

The requisitions of the law are substantial and useful, and cannot be dispensed with. Tax sales are attended with greater sacrifice to the owners of land, than any others. Purchasers at those sales, seem to have but little conscience.— They calculate on obtaining acres for cents, and it stands them in hand, to see that the proceedings have been strictly regular.

The jury rendered a verdict in conformity with this opinion, on which judgment was entered.

MATTOX v. MATTOX.

JUDGES HITCHCOCK AND BURNET.

1826.

A Divorce will not be granted where the applicant is living in adultery.

The principal charge relied on in the bill, was the adultery of the husband, which was very satisfactorily, proved; but, on cross examinating the witnesses, it appeared that the complainant was living and cohabiting with another man, who had deserted his wife, and that she had had a child by him.