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Betton vs. Williams, et al. Opinion of Court.

contracted to make, and which the vendee or his assignee has a right to require, before he parts with his money. They should properly join as complainants with their assignee; but if their authority cannot be obtained for this purpose, they may be made defendants-it is not of much importance how they appear, so they are before the court, and may be subject to the decree to be rendered.

So, also, we think Nuttall, Braden and Craig have rights connected with their liabilities-they are indebted to the heirs of LaFayette for the original purchase money, or some portion thereof, as alleged in the bill, and are, therefore, interested in its payment, to be relieved from liability. It is true that the bill alleges that Nuttall and Braden are both dead, and that their estates, as well as the survivor, Craig, are insolvent, but the latter may not always remain so. At any rate, insolvency does not always render it unnecessary to make the individual a party. In the case of Brooks v. Stuart, 1 Beavan's Reports, 514, the insolvency and discharge of a principal debtor, in a joint and several contract, was held by Lord Langdale, Master of the Rolls, not a sufficient excuse for omitting to make him a party defendant in a suit against the surety, and a demurrer was allowed for that objection; and we think there is much stronger reason why the vendors of Hunter, though insolvent, should be parties to this controversy. So, also, it may be true, as alleged, that the Union Bank has, for a full and valuable consideration, undertaken to pay the debt due to LaFayette; but it is distinctly averred in the bill, that the latter has not accepted the bank as his debtor, or in any wise released his claim upon Nuttall, Braden and Craig; and, besides, the Union Bank is alleged to be insolvent. There can be no doubt but that Nuttall, Braden and Craig are materially interested in the object of the suit, which is to recover a fund, which is to go in liquidation of their debt. The court below should have allowed the demurrer, for want of these parties.

Betton vs. Williams, et al.-Opinion of Court.

We are relieved from the consideration of the question of the notice, which it was alleged in argument, Hunter and his assignee had of the fact that Nuttall, Braden and Craig had only an equitable title, and that the legal title was in LaFayette, because we find no such allegation in the bill. The only allegation of any knowledge on the part of Betton, is contained in the following averment at the conclusion of what is termed the charging part of the bill: "And they," the said complainants, "further well hoped that the said Turbutt R. Betton, who now holds possession of the same, well knowing the premises, would have paid, or tendered to your orators the said amount of the purchase money," &c. This allegation cannot be extended, so as to amount to an averment of notice by Hunter, or Betton-that, at the time the first named entered into the contract, or the latter acquired title thereto by assignment, they were informed of the state of the title, and how the vendors, Nuttall, Braden and Craig, expected to acquire the legal title.

3. As to Hunter, there is more doubt whether he is an indispensable party to the suit. It would seem from the application of the principle, that, as he is liable on his bond to Nuttall, Braden and Craig, so he is interested in taking the account of what is due thereon, and should, therefore, be considered a necessary party." But in Hall v. Sever, 3 Younge and Collyer, Equity Ex. C., 191, it was held, that the original vendee of an estate is not a necessary party to a bill against his assignee for a specific performance of an agreement to purchase. Upon this authority, we are inclined to consider that Hunter is not a necessary party, but as the case will, necessarily, be remitted to the Circuit Court to make other parties, it might be better that the complainants should bring him before the court. He would be a proper, although not a necessary party.

3. As to the Union Bank of Florida, we cannot perceive the necessity for bringing this corporation before the court

Betton vs. Williams, et. al.-Opinion of Court.

in this controversy. Whatever interest it may have in the subject matter, or object of this suit, it is sufficiently represented herein by the complainant, Williams.

The decretal order of December 29th, 1848, overruling the demurrer of the appellant, Betton, is reversed and set aside, and as a consequence of said reversal, all the subsequent proceedings in said cause, up to and including the final decree of June 20th, 1850, are hereby vacated and annulled. Let the cause be remanded to the Circuit Court of the Middle Circuit, sitting in and for the county of Leon, with instructions to allow the said demurrer of the said appellant, for the reason stated herein, giving leave, however, to the respondents to amend their bill, by making William P. Craig, the heirs at law of William B. Nuttall, and the heirs at law of Hector W. Braden parties thereto, either as complainants or defendants, and in such other manner, and upon such terms, as the Judge of said court, upon application to him, and on notice to the adverse party, may think proper to direct, and for such other proceedings, according to the usual course of chancery practice, as may be requisite and necessary in the premises.

Let each party pay his own costs in this court; and that the respondents may proceed without delay in this cause, let the mandate of this court to the Judge of the Circuit Court of the Middle Circuit issue at any time, on the application of the respondents, or their solicitor.

Decree reversed.

Ponder, Executor, vs. Graham.-Points decided.

WILLIAM G. PONDER, EXECUTOR OF ARCHIBALD GRAHAM, APPELLANT, V. MARY GRAHAM, APPELLEE.

As respects third persons, a man who lives with a woman, and holds her out as

his wife, is estopped from denying it, when charged with liabilities as her husband, but such recognition cannot affect the rights of property even as between themselves.

The executor of a person who has recognized a woman as his wife, is not estopped from setting up and asserting the illegality of the marriage, where it was absolutely void, as where there existed a civil disability to contract marriage. The marriage being void, no civil rights can be acquired under it, and it is competent for the executor, representing the interests of distributees and creditors, to impeach its validity.

The act of Congress, approved March 30, 1822, by which the Territorial Government of Florida was organized, and the several acts amendatory thereof, are to be regarded as the Constitution of the Territory, differing, however, from the Constitution of the State Government in this-that the former contains grants of power, while the latter are restrictions of power primarily possessed.

By the organic law, the judicial power of the Territory was vested in two Superior Courts, &c., and the legislative power in a Governor and Council, and this power was to extend to "all rightful subjects of legislation." An act of the Legislature which undertakes to determine questions of fact and law, affecting the rights of persons, or of property, is judicial in its character, and is not, therefore, a rightful subject of legislation. And though the facts and reasons alleged in an act of divorce are such as, by law, would warrant the sentence or decree, yet the inquiry into those facts and reasons is judicial in its nature, and the determination upon them is a judicial act. The act of the Legislative Council, passed in 1828, gives to the courts jurisdiction in cases of divorce.

The Legislative council had no power or authority, after the act of 1828,to take jurisdiction of, and decide questions of divorce, and to pass an act dissolving the marriage contract between two persons, lawfully made and entered into-nor was the power or authority possessed by the Legislative body either before or after said act.

Ponder, Executor, vs. Graham.-Statement of Case.

Marriage is a contract, in the strict, legal definition of the term, and a law dissolving the marriage relation, impairs the obligation of the contract, and is in conflict with the Constitution of the United States, and is, therefore void.

Appeal from judgment of the Circuit Court of the county of Leon, rendered at the Spring term, 1850, the Honorable THOMAS BALTZELL, Judge, presiding.

Mary Graham filed her petition in the Circuit Court of the county of Leon, representing that her husband, Archibald Graham, died on or about the 2d January, 1848, after having in his life time made and executed his last will and testament-that said will and testament bears date 16th November, 1847, and that one John R. Cannon, and the defendant, William G. Ponder, were therein named and appointed executors that defendant alone qualified and took out letters testamentary-that the provision made in the said will is not satisfactory to petitioner, and that she, in due form, and in proper manner, signified her dissent thereto, within the time limited by law. The petitioner further states, that her deceased husband died seized and possessed of a large estate, real, personal, and mixed-out of which, petitioner prays that dower may be allotted to her, under the law in such case made and provided.

The defendant for answer, or plea to said petition, alleged that the said Mary Graham ought not to have her dower, as in her petition she claimed and prayed, because the said Mary never was accoupled to the said Archibald Graham, deceased, in lawful matrimony. To this plea, there was a replication, affirming that petitioner was accoupled in lawful matrimony with the said Archibald Graham, and issue thereon. The jury found for the petitioner; and thereupon it was adjudged and ordered, that said petitioner is entitled to an assignment of dower, and a writ of dower issued as prayed for, commanding the sheriff to summon five discreet free holders as commissioners, to allot and set off, by

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