ROSE v. LEWIS.

maker, it may be as valuable to him, by way of set off, as if the maker were wealthy and in sound credit. The value of commercial paper must always depend very much upon the integrity and business habits of those who issue it. And we cannot perceive the justice or good sense of any rule which should disregard the results of common experience. We think the Court below was entirely authorized from the evidence to conclude that the note in question would have been available to plaintiff at its face. The judgment must be affirmed, with costs.

The other Justices concurred.

Charles T. Gorham v. Nelson H. Wing and others.

Trust estates are not liable to levy and sale on execution.

Under the Revised Statutes of 1838 a sale of lands on execution did not divest the title of the judgment debtor until consummated by a deed.

Where a complainant in Chancery has stated his case defectively, and no demurrer has been interposed, but defendant has only claimed the benefit of a demurrer by his answer, and the case is brought to a hearing on pleadings and proofs, it may be proper to allow the defect in the bill to be corrected at the hearing if the proofs show complainant entitled to relief.

The time for redemption on sales under said Revised Statutes was to be computed exclusive of the day on which the sale was made.

A deed to consummate an execution sale, executed before the time of redemption has expired, is void.

The act of Congress of May 19th, 1828, adopting for the final process of the United States Courts the laws of the several States on the subject, having by the act of August 1, 1842, been made applicable to the States afterwards admitted, is to have the same effect in the new States as if originally adopted at the last mentioned date. It is therefore to be construed as adopting such laws of Michigan on the subject as were in force August 1, 1842.

On sales made by the United States Marshal in Michigan on demands accruing in 1842, for moneys collected by a publie officer, or for misconduct or neglect in office, two years redemption was allowed.

Where suit was brought against a public officer, for balances reported against him at three several times, it was held that the action must be deemed to have accrued against him at the date of the last ba.ance.

Heard May 27th, 28th and 29th. Decided October 21st.

GORHAM v. WING.

Appeal in Chancery from Washtenaw Circuit.

A. Felch for complainant.

G. V. N. Lothrop for defendant.

CHRISTIANCY J.:

The first question is, whether the bill makes a case which entitles the complainant to relief?

Complainant claims to derive title to the lands in ques. tion through a sale on an execution issued by the Circuit Court of the United States for the District of Michigan, on a judgment recovered in favor of the United States on the 4th of January 1847, in an action of assumpsit for moneys received by Lee as Receiver of the United States Land Office at Green Bay, between October 1837 and the first day of April 1842. The sale was made by the Marshal, December 22d 1847, to the United States. The bill merely sets forth the sale made by the Marshal, the receipt on the execution by the U. S. District Attorney of the $1,500 purchase money bid by the United States for the property, and the giving of a certificate of sale by the Marshal (which on reference appears to be dated December 22 1847, and states that the sale will become absolute at the expiration of one year, unless previously redeemed "in the manner prescribed by the statutes of Michigan and the rules of this Court"). The bill does not allege the execution of any deed by the Marshal in pursuance of the sale, nor in any manner refer to the existence of such deed: but, in the derivation of complainant's title, after stating the certificate of sale, proceeds to state a sale and conveyance of the property by the United States to one Timothy Stillman, and then deduces the title through several intermediate conveyances, down to complainant. It also, in a subsequent portion of the bill, avers that the land had not been redeemed from the sale.

By way of showing the pretended title under which defendant Arnold claims, the bill states the execution of three several official bonds by said Lee as Receiver, and by certain sureties therein mentioned, the first dated July 29th, 1837, the second December 9th, 1837, and the third November 15th, 1838. None of the parties to this suit executed the first bond, but defendant Wing was one of the sureties in the second, and defendants Wing and McCauley, and one Joseph Arnold (father of defendant. Arnold) were, among others, sureties in the third. The bill avers three several settlements or statements of account between the United States and Lee, as Receiver. That on the one of December 9th, 1837 there was found due to the United States from said Receiver $1,311.92, on that of November 15th 1838, $5,028.14, and on that of April 1st 1842 $1,500.31. That on the eleventh day of June 1842 the defendants, Wing and McCauley, pretending to said Lee that they were liable to the United States for large sums of money on account of said bonds, and in consequence of the supposed defalcation of said Lee, &c,, and pretending that they were anxious that the property of said Lee (being the land in question) should be held in trust by them for the sole and only purpose that the same could be turned out by them to satisfy any deficiency there might be in the accounts of said Lee with the United States, induced Lee to execute and deliver to said Wing and McCauley a deed of conveyance of the said land, with warranty, which deed was absolute in form, and was duly acknowledged and recorded, as a deed of conveyance; but that at the time of the execution and delivery of this deed, Wing and McCauley executed under their hands and seals, and delivered to said Lee, their bond or writing obligatory, which is set out in haec verba, and which, after reciting the fact of the conveyance to Wing and McCauley, is conditioned as follows:

GORHAM v. WING.

"If Thomas Lee bears Nelson H. Wing and William McCauley harmless for certain bond or bonds said Wing and McCauley have signed as surety for said Lee, to the United States, as Receiver of Public Moneys of the Land Office at Green Bay, then said Wing and McCauley agree to re-deed to said Lee the above described land. It is understood that if the United States can hold legally said Wing and McCauley, as said Lee's surety, that said Wing and McCauley have a right to turn this property out to satisfy the demand at any time they see fit, and they the said Wing and McCauley, are to have the above land until they are discharged by the United States from any liability in consequence of having signed as surety for said Lee. It is thought said Wing and McCauley are now clear, but said Wing and McCauley take this deed of said land to bear them harmless, lest they might have to bear the expense, one or both of them, of a law-suit with the United States."

This bond, declaration of trust, or defeasance, does not appear to have been acknowledged or recorded.

The bill then states that, on the 29th day of December 1844, a suit was brought by the United States, against defendant Wing, as surety on the second bond, and that on the first day of July 1844, on a trial in the Circuit Court of the United States for the District of Michigan, it was made to appear that said Thomas Lee was not indebted to the United States, but that the sum claimed in that suit had been paid and satisfied; and that thereupon said Wing had judgment. That on the 26th September 1843 another suit was brought by the United States in said Court against said Wing, upon the third bond; that on the 22d July 1844 a judgment was recovered by stipulation against said Wing for $50,000, to be discharged on payment of $1,500.31 and interest at six per cent from April 13th 1842. That on the 30th September 1843 suit was commenced by the United States

10 MICH.-F2

GORHAM v. WING.

against McCauley on said third bond, and that on the 17th June 1844 judgment was recovered against him by default for $50,000, to be discharged on payment of $1,696.41. That complainant is informed and believes that judgments were also recovered against many or all the other persons named as sureties in said bonds. That on the 10th of April 1852 Lee caused said judgments against Wing and McCauley, as well as those against all the other sureties to be discharged of record.

The bill then states that said Wing & McCauley, on the 28th day of June 1850, severally pretending to have "some right title and interest in fee simple" in said land, executed and delivered their several deeds of conveyance of the same to defendant Arnold, which were duly acknowledged and recorded-charges, upon information and belief, that said Arnold at the time was informed and well knew, that Wing & McCauley had not then, and never had, any right, title or interest in said premises, or any right to sell or convey the same; that he well knew that they had only the right to turn out said premises to satisfy any claim the United States might have against Lee and his sureties, by reason of his defalcation as Receiver, &c.; that he had notice of the levy and sale to the United States, and that the United States and their grantees were the legal and equitable owners thereof: and that the said Wing & McCauley held the said lands in trust only for the United States, subject to any indebtedness the United States might at any time have against said Lee and his sureties, on account of any deficiency in the accounts of said Lee, as Receiver: and that "said Arnold well knew that all the right, title and interest of said Wing and McCauley in and to said premises premises were extinguished by the levy and sale of said premises on said judgment and execution" (against Lee). That Wing & McCauley sometimes pretend that they have been compelled to pay sundry sums of money in the employment