Jefferson County v. Ferguson et al.

the clerk of the court at the time, and says it is his impression that Nelson delivered the note at the time, but has no distinct recollection of it; that the notes given at the sale were put into the hands of the county treasurer. He cannot recollect of the delivery of the notes given for the purchase of lots at that sale in any particular case. If this evidence, when taken in connection with the notorious claim of the lot under the sale, and the long and open possession of, and improvements made upon, the lot by those claiming under Ferguson, together with the levy and collection of taxes for the lot by the county, would still leave us in doubt as to the execution and delivery of the note for the purchase-money by Ferguson, that doubt must be entirely dispelled by the testimony of Governor Casey, who states that he was one of the county commissioners at the time of the sale of the lots. He says he recollects distinctly that Ferguson purchased the lot. In answer to the fourth interrogatory put to him, which inquires whether Ferguson executed and delivered his note for the purchase-money, with approved security, he says, "he did so execute and deliver his notes." To controvert this there is no evidence; but it is supported by the other testimony, and all the circumstances of the case. We take it to be clearly established, that Ferguson did every thing on his part to comply with the terms of the sale, and it may not be very important whether a certificate of purchase was issued to him or not; yet we are of opinion that there is sufficient testimony in the case to show that such certificate was issued at the time. In answer to the fifth interrogatory, Governor Casey says, "My best recollection is, that we did execute such a certificate of purchase, and that it was left with the clerk for delivery to said Ferguson." The clerk does not recollect this transaction. The delivery of the certificate to the clerk for Ferguson ought to be held a good delivery, although the purchaser never took it from the hands of the clerk. However, it is most probable that he took it into his own possession. Assuming that a certificate of purchase was issued to Ferguson, its absence is sufficiently accounted for, although we do not think it necessary to go into a detail of the evidence showing its probable loss. If no certificate of purchase was actually delivered to Ferguson, then the

Jefferson County v. Ferguson et al.

evidence shows such a case as would take the sale out of the statute of frauds, if we shall find that the purchase-money has been paid. This, therefore, will be the next question considered. No witness swears positively to the payment of the note given for the purchase-money, but the proof of that payment depends wholly upon circumstantial evidence. We have already seen, that thirty years ago a note for the purchase-money was executed and delivered to the county commissioners, with Joel Johnson as security. The amount of this note was about $150, payable in four equal semi-annual instalments. The testimony shows that the note must have been placed in the hands of the county treasurer, who was instructed to collect the notes as they fell due; that the county was, for many years after the sale, very much embarrassed, and greatly in need of funds to pay her ordinary expenses and for the erection of public buildings; that Johnson, the security on the note, has ever since lived in the county and near the county seat, and is well known to the officers of the county; that he has during the whole time been perfectly responsible, and he says he has never been called upon to pay the note. The note is not now in the possession of the county, or at least it fails to produce it, nor does it in any way account for its absence. In view of all these circumstances there is but one inference, and that is, that Ferguson paid the note, and probably as it fell due. The bare non-production of the note by the county would be sufficient, unexplained, to raise the legal presumption, that the note had been collected or put in circulation. It would be most unreasonable indeed to require of the complainants to produce stronger proof of payment than they have spread upon this record. According to the ordinary course of business transactions, Ferguson, when he paid the note, took no receipt, but merely took up his paper; and it is a very rare occurrence where we find a man who preserves his notes which he has paid; and consequently no positive proof of the payment could be expected, unless the treasurer, to whom the payment was probably made, should fortunately recollect it, after a lapse of near thirty years, and when there was nothing in the nature of the transaction to impress it upon, or keep it alive in, his memory. Even if Ferguson were alive and prosecuting this

Jefferson County v. Ferguson et al.

suit, we could require no stronger proof of payment than we now have. And yet how much less strict should we be with the complainants, when we remember that their father died twenty-five years ago, leaving them very young, and residents of a distant State; that they have been under the charge of several guardians, appointed from time to time by foreign tribunals, into and through whose hands a portion of their father's papers passed; that their mother was twice married after their father's death, and that she has now been dead for several years. All these circumstances serve to explain how it is that no papers in relation to this transaction can now be found, and afford a good reason for saying that the complainants should not be held to as strict proof of payment as would be required were the original party to the transaction living and acting. This, too, shows an abundant reason why this claim has laid so long dormant. The simple question is, has the money been paid, or is it still due the county from the estate of Ferguson, or Johnson the security. Suppose this were a suit prosecuted by the county for the recovery of the amount due upon the note, could it be pretended for a moment that the county could recover, in the face of all these circumstances tending to show that it has been paid, and without producing the note or accounting for its absence? Such a thought would not be entertained for a moment by any one. There is also a satisfactory explanation given why nothing of this payment is found in the records of the county. All of the county officers who have been sworn testify that no record whatever of any of those sales was made by the County Commissioners' Court, or in the treasurer's office, of the payments of the notes given at the sales. If these records do not show other sales which were effected, and other payments which were made, it is not remarkable that they are silent on the subject of this transaction. That such record should properly have been kept, there can be no doubt; but the proof shows positively that they were not, and for the reason that it was not then supposed to be necessary. We must take things as they are, and have regard to the mode in which business was then done. We cannot certainly, after this long lapse of time, be called upon to say, that because of the informal manner in which the county business

Jefferson County v. Ferguson et al.

was transacted and the records kept, no rights were acquired and no obligations incurred. We cannot say, that those who parted with their money in good faith, and of which the county has enjoyed the benefit, acquired no rights, of which the judicial tribunals will take notice and enforce.

We have no hesitation in finding, that at a public sale of property belonging to the county held in 1819, in pursuance of an order of the County Commissioners' Court, the ancestor of the complainants purchased the premises in question; that he complied with the condition of such sale by giving his note for the purchase-money, with approved security, which was accepted by the proper county authorities, and which note was duly paid; that he, or those claiming under him, took possession of said property under the sale, made valuable improvements thereon, and have held and continued such possession until the commencement of this suit; and, the whole of the purchase-money having been paid, this entitles the complainants, who are the only heirs at law of the original purchaser, to a conveyance of the property, whether a certificate of purchase was ever delivered to Ferguson or not. In this we find that the Circuit Court decided correctly. The court, however, erred in awarding costs against the county commissioners personally. The county was the defendant in the suit; and if costs were to follow the decree, they should have been adjudged against the county. That portion of the decree which relates to costs must, therefore, be reversed, which imposes the duty upon this court of disposing of the question of costs, as we think the Circuit Court should have done in the exercise of a sound discretion. The county acts through its officers, and is not, like an individual, bound to remember ancient transactions, unless disclosed by its records. The present commissioners may well have been justified in resisting a claim of which they found no evidence on their records, and which should properly have appeared there. Indeed, they may not have been justified in making a conveyance, under the circumstances of this case, except in obedience to the decree of a competent tribunal. Nor can we say that the appeal was vexatiously prosecuted. Upon consideration of the whole case, we are of opinion that the parties respectively should pay the

Wise et al. v. Shepherd.

costs made by them in the Circuit Court; and that the costs of this court be equally divided between them. The decree to this extent will be modified here. In all else it must stand affirmed. Decree affirmed.

13 41

JOHN S. WISE, et al., Plaintiffs in Error, v. JOHN SHEPHERD, 129 481 Defendant in Error.

ERROR TO LAWRENCE.

Where there are two creditors of one debtor, the first having two funds to which he may resort for the payment of his debt, while the second creditor has but one, the first creditor shall resort to that fund which he alone can reach, and leave the other fund to the second creditor.

This principle does not extend to a case where one of two creditors has a lien for his debt upon two funds belonging to two separate debtors, and the other has a lien only upon a fund belonging to one of the debtors, so as to compel the first creditor to make his claim wholly out of that debtor which the other cannot reach, unless there should be some peculiar relations between the co-debtors, which would make it equitable that the debtor, having but one creditor, should pay the whole demand against the two debtors.

Equity will not sanction a principle which, though just to creditors, is inequitable to debtors.

The assignee of a judgment is subject to the same equities which, as to third parties, would be enforced against the judgment creditor. In equity, a judgment creditor is bound to make his debt from the principal, if he can find sufficient property to do so, before resorting to the property of the surety.

A junior judgment creditor cannot strengthen his rights by purchasing a senior judgment, so as to cut off an intervening mortgage, executed by one of the senior judgment debtors, who became such debtor by reason of being a surety; but the assignee of the senior judgment shall first apply the money made from the estate of the principal of that debt in satisfaction of the senior judgment instead of the junior, so that the premises mortgaged by the surety, may be relieved from the incumbrance of the senior judgment.

THE decree in this case was rendered by Harlan, Judge, at September Term, 1851, of the Lawrence Circuit Court.

Shepherd filed his bill to marshal assets, and have the proceeds of sales of certain lands entered in satisfaction of the judgment of Ross, against David Price, and a certain tract of land purchased of said Price by Shepherd, released from all lien of said judgment.