Ballance v. Forsyth. 13 H.

lected by the public surveyor for many years. The patent was not issued until in 1845, two years after the tax was assessed. And it is not perceived how the specific lot could be taxed when its boundaries were not known. It seems to have been included in the southeast fractional quarter section, but it was not taxable as a part of that tract. Both the entry and the patent of Bogardus for the fractional quarter section contained an exception of the rights of all persons claiming under the act of congress of the 3d of March, 1823. So that the whole or any part of the lots claimed by the plaintiffs, which may have been included in either of the fractional quarter sections, both having the same exception, the claim to such lots was not affected by the patent. And, consequently, neither of the lots were liable to be sold for the taxes on the tracts which included them.

The court will not, unless fraud be shown, look behind the patents for the lots in controversy. That the patents cover the lots, as surveyed, seems not to be disputed. We cannot, therefore, in an action at law, inquire whether the lots, as originally claimed, are accurately described in the patents. The survey having been made by a public officer and sanctioned by the government, the legal title must be held to be in the patentee.

If the patent to Bogardus be of prior date, the reservation in the patent, and also in his entry, was sufficient notice that the title to those lots did not pass. And this exception is sufficiently shown by the acts of the government.

These lots were surveyed before the taxes were assessed for 1843; but the assessments were made on the fractional quarter section, without regard to the lots reserved. Such lots were neither assessed nor sold for the taxes due on them, and they were not liable for the taxes due on the quarter section.

That Ballance, being liable for the tax, should permit his own land to be sold, and purchase one of the lots, or a part of it, to pay the taxes on the larger tract, would seem to require explanation. Had a stranger purchased at this sale a part of the quarter sections, from the irregularity of the procedure, it is not perceived how the tax title could have been sustained. But, however this may be, we are clear that the sale of lot 65, or a part of it, under the circumstances, is void, and, consequently, that the sheriff's deed on such sale was properly rejected. As the whole law of the case seemed to have been submitted to the court, the deed, if admitted as prima facie evidence, could not have changed the result.

[ *25 ]

The statute did not protect the possession of the defendant below. His patent excepted these lots; of course, he had no title under it, for the lots excepted.

The judgment of the circuit court is affirmed, with costs.

19 H. 834: 24 H. 183.

Doe v. Beebe. 13 H.

JOHN DOE, Ex Dem. HALLETT AND WALKER, Executors of JOSHUA KENNEDY, deceased, Plaintiffs in Error, v. ALFRED R. BEebe, George W. HILLIARD, Alexander M. Carr, CHARLES T. KETCHUM AND JOHN HORSFELDT.

13 H. 25.

Pollard v. Hagan, 23 How. 212, and Goodtitle v. Kibbe, 9 How. 477, affirmed and applied to this case.

THE case is stated in the opinion of the court.

J. A. Campbell, for the plaintiffs.

No counsel contrà.

TANEY, C. J., delivered the opinion of the court.

This is an action of ejectment; and the plaintiffs in error claim title to the premises under a contract of sale made by Morales, the Spanish intendant at Pensacola, with a certain William McVoy, for twenty arpens of land on the west side of the River Mobile, bounding on the river; which contract was afterwards confirmed by an act of congress.1

The contract with McVoy was made in 1806. He subsequently assigned his interest to William J. Kennedy and Joshua Kennedy, and the latter became the sole owner by an [ 26 ] assignment from the former. An act of congress was passed in 1832, confirming the title of Joshua Kennedy upon two conditions: 1. That the confirmation should amount to nothing more than the relinquishment of the right of the United States at that time in the land; and 2. That the lands before that time sold by the United States, should not be comprehended within the act of confirmation. And in 1837, a patent was issued to Joshua Kennedy, reciting in full this act of congress under which it was granted.

It is admitted in the record, that the land in question was below high-water mark when the United States sold the land on which Fort Charlotte stood, in the town of Mobile. These lands were divided into lots and sold in 1820 and 1821, and patents were issued to the purchasers in the year last mentioned. The defendants made title to three of these lots, which bounded on the river, and it was admitted that at the time of the sale, high water extended over their eastern limits; and that the land now in controversy was reclaimed from the water and filled up by those under whom the defendants claimed.

The question, therefore, to be decided in this case is, whether the

16 Stats. at Large, 485.

McCormick v. Gray. 13 H.

title obtained under McVoy's contract, confirmed by the act of congress in 1832; or the title obtained under the sale of the lots in 1820 and 1821, is the superior and better title.

The principles of law on which this question depends, have already been decided in this court in Pollard v. Hagan, 3 How. 212, and in Goodtitle v. Kibbe, 9 How. 477, 478. And according to the decisions in these two cases, the title under the sale of the lots is the superior one.

The judgment of the supreme court of the State of Alabama must therefore, be affirmed.

CYRUS H. MCCORMICK, Appellant, CHARLES M. GRAY, and WILLIAM B. OGDEN.

13 H. 26.

On an arbitration between partners, held that they had appropriated a part of the assets of the firm, and that the arbitrator had not power to disturb that arrangement.

Partners have the right, as between themselves, to control the possession of their assets, and appropriate them to the payment of claims by one partner on the firm.

Though one part of an award may sometimes be good and another part bad, the part allowed to stand must appear to be in no way affected by the departure of the referee from the submission.

THE case is stated in the opinion of the court.

Johnson, for the plaintiff.

Butterfield, contrà.

[* 35 ]

CURTIS, J., delivered the opinion of the court.

This is a bill for an account of certain partnership trans actions between McCormick and Gray, and to set aside an award by which that account has been stated. The bill was demurred to, and by a decree of the circuit court of the United States for the district of Illinois, it was dismissed, and the complainant appealed.

The demurrer raises the question, whether the award is valid? The objection to the award is, that it is not pursuant to the submission. To decide this question, it is necessary to examine the terms of the submission and the award. The submission is contained in arbitration bonds, mutually executed by the parties, bearing date on the 20th day of December, 1848, submitting, generally, all their partnership and other differences with this limitation: "Provided, that the award so to be made by said arbitrator shall not in any way alter or affect the demands of property and assets in the hands of William B. Ogden, as the trustee of said parties, or the agreements between said parties, relative to the collection and disposition of said demands,

McCormick v. Gray. 13 H.

assets, and property; but the same shall remain under the provisions of said contract."

This clause in the submission refers to an assignment of the principal part of the choses in action of the partnership, in trust

*to collect them, made by the partners before the execution [ 36 ] of the submission bonds, which assignment recites the fact

of the submission, and contains agreements as to marshalling this part of the partnership assets. Amongst other trusts declared in this assignment are the following:

"1. Said Ogden shall proceed to collect said assets as speedily as may be; and, after first paying all expenses, costs, and commissions attending the collection and disbursement of the same, he shall pay over to said McCormick the sum of $14,610, on account of patent fees due him for the manufacture of said Virginia Reapers, as aforesaid. "2. To pay all legal liabilities and debts of said McCormick and Gray as they shall become due.

"3. The balance of said assets, as fast as collected, shall be paid in pro rata sums as follows: to said McCormick, one half of all moneys collected; to Ogden and Jones, one fourth part of said moneys, being the amount heretofore sold and assigned by said Gray to them; and the remaining one fourth part to said Charles M. Gray. Provided, however, and it is hereby expressly understood and agreed between the said McCormick and Gray, that the respective sums herein provided by this clause, to be paid to said McCormick and Gray, respectively, shall be retained by the said Ogden, to await the award of Judge Dickey, in the submission above referred to, and shall in no case be paid over by him to either of said parties until said award shall be made; and when said award shall be made, in case it shall be made against either party, the amount of such award shall be taken out of the moneys going to the party against whom said award shall be made, and paid over to the amount thereof, to the party in whose favor said award shall be made; and when said award shall have been paid, the balance of said moneys going to said McCormick and Gray, if any there shall be, shall be paid over to them, respectively, in the proportion hereinbefore provided for. Provided, further, that, if said Gray shall not pay to said McCormick, within thirty days from the date hereof, the sum of $2,500, on account of the indebtedness of Gray and Warner to said McCormick, then the said Ogden shall retain and pay over to said McCormick, out of the rest of the moneys to be paid to said Gray, as aforesaid, after first paying any award which said judge may make in the submission above mentioned, against said Gray, the aforesaid sum of $2,500, on account of the said indebtedness of said Gray and

McCormick v. Gray. 13 H.

Warner, aforesaid, together with ten per cent. damage thereon, as a penalty for any delinquency on the part of said Gray, to pay said sum of $2,500 within the time above limited, every thing herein

before contained to the contrary notwithstanding; and the [37] said Gray agrees to furnish the said McCormick, within the thirty days aforesaid, a full, true, and correct account or statement of the indebtedness of said Gray and Warner to said McCormick; and any excess over and above the said sum of $2,500, which said account or statement shall show to be due to said McCormick, shall also be paid to him by said Gray, within the thirty days above limited, or, in default thereof, the said Ogden shall pay the same out of the same funds, in the same manner and with the like penalty that the said sum of $2,500 is hereinbefore provided to be paid."

These stipulations, by which this part of the partnership assets is disposed of, are, in legal effect, incorporated into the submission, and limit the authority of the arbitrator. He could do nothing to alter or affect them. But, instead of observing this limitation, his award treats the entire property of the partnership, and the respective rights of the partners, as if no such agreements had been made.

He postpones the payment of the $14,610 to McCormick, for his patent fees to the payment of the debts of the firm, though the agreement of the parties was, that it should be first paid out of the choses in action assigned. It is argued, that this was justified by the prior right of creditors. But, as between the partners, they had a perfect right to control the possession of the partnership funds, and determine that the whole, or any part, should go into the possession of either partner. Both are ultimately liable for the debts, and whether one or other member of the firm shall have possession of the funds, either under a claim as a creditor of the firm, or otherwise, while they act in good faith, is a matter wholly subject to their control. Indeed, it is only through them, and by means of their equity to have the partnership property applied to the payment of the partnership debts, that creditors have any lien on, or specific rights to, the property of the firm, as distinguished from the property of its members. Ex parte Ruffin, 6 Ves. 119; Ex parte Fell, 10 Ves. 347; Ex parte Williams, 11 Ves. 5.

This partnership was solvent, and the object of the submission was to adjust the relative rights of the partners. The payment of the debts, and a provision for them out of the partnership funds, was probably necessary, in order to make a final settlement, without recourse over, in consequence of payments compulsorily made by one partner, which might disturb the balance between himself and his