Gilman v. Brown

10 F. Cas. 392 | U.S. Circuit Court for the District of Massachusetts | 1817

STORY, Circuit Justice.

The material questions in this case are: 1st. What is the nature and validity of the plaintiff's title to the shares, which she claims in the lands of the Mew England Mississippi Laud Company? 2dly. Supposing it to be originally valid, is it extinguished? Or is the plaintiff estop-ped from asserting it, by the award of the commissioners? 3dly. If not, is she in equity entitled to claim her proportion of the certificates of the public stock, which have been received by the company under the award of the commissioners? The estate acquired by the first grantees, Messrs. Jarvis, Newman, and Wetmore, under the conveyance to them by the Georgia Mississippi Company, was beyond all question a legal, and not merely an equitable estate in fee simple. By the subsequent conveyances, first to the respective purchasers, and next by them to the trastees, Messrs. Jarvis, Newman, and Hull, a legal estate in fee was also conveyed; so that the latter became seised of the whole tract of land in fee, subject to tbe terms, conditions, and trusts, stated in tbe trust-deed and tbe articles of association of tbe New England Mississippi Land Company. Tbe titles of all tbe original purchasers were acquired at tbe same time, under tbe same contract; and, at tbe instant they were complete, were conveyed to tbe trustees in tbe same state, that they were acquired, uno fia tu. There is no pretence of any intermediate incumbrance, unless tliere was a lien for tbe purchase-money; a point, which will hereafter be considered; and to tbe extent of that lien, if any, it must be admitted, that tbe holders of tbe scrip or shares under tbe articles of association cannot place themselves in a better situation, than the trustees, who must be taken to be conusant of tbe facts of tbe original purchase. For, whether tbe scrip or shares are to be deemed a shifting use or trust, or personal property, notice to tbe trustees, who bold tbe legal estate, affects and binds all, for whom they originally held, or have, upon tbe transfer of tbe shares, continued to hold.

But the material consideration is, whether, in virtue of the articles of association, and tbe conveyances made in pursuance thereof, tbe original purchasers, and those claiming by assignments under them, are to be considered as holding strictly and exclusively under the original titles of tbe original purchasers; or whether the whole lands are to be considered as thrown into a common stock, and the scrip-holders are entitled to an undivided portion of tbe whole stock under the company itself. And, upon tbe best consideration, which I can give the subject, it does seem to me, that the latter is the true interpretation of the acts of association. The ■original purchasers were conusant of each other’s titles; and mutually agreed to the articles of association, and to the manner, in which the conveyances should be made, before their titles were complete. They agreed to release to the trustees their respective rights and titles in the whole lands included in the purchase; and that the trustees should hold the aggregate amount, to be disposed of, not as a several trust of the respective purchasers, but as the joint stock of the company itself. To bo sure, the purchasers were to take certificates of shares according to their original proportions in the purchase; but, in this respect, the case is not distinguishable from that of subscribers to a bank, or insurance company, who contribute a certain amount of the capital stock, and become entitled to a similar amount of shares. Yet no person ever imagined, that they were holders of the specific money paid in; and, if their title to that money should be impugned, that the holder under them lost his right to the shares transferred to him. The only remedy; that would remain, would be personal airainst the original subscribers for a failure of their titles. In the present ease, upon the conveyance to the trustees, each purchaser (excepting Messrs. AVetmore, Jarvis, and Newman) covenanted personally with the trustees, for his own share of the land, against incumbrances. And in case of such incumbrance, (which, except from an implied lien for the purchase-money, could scarcely, from the circumstances of the case, by possibility arise), a personal remedy was provided under the covenant. After a very careful examination, I am unable to perceive throughout the whole articles the slightest allusion to any stipulation, by which the proprietors of scrip or shares were to hold, not under the company, but under the original purchasers; and were to be affected by all the circum: stances, that might affect the original grant of the land to them. On the contrary, the very certificates of shares, which on their face carry an assignable quality, and the provision, “that they shall be complete evidence to the legal holder of his right in the purchase,” or stock, as well as the manifest objects of the association, in my judgment require, that the whole stock should be deemed to belong to the company in its aggregate capacity; and that every scrip-holder should be held to take a specific proportion, not of the specific stock of an original purchaser, but of the common stock of the company itself. And if the association had been incorporated, instead of being voluntary, under similar articles and conveyances, I am at a loss to conceive, how it would be possible to sustain a different proposition. The fact of the association being voluntary, and not incorporated, cannot in a legal view change the construction, which the articles would otherwise require. On examining the articles, it will at once be seen, that the principal objects of the association were, to unite the several distinct interests of the purchasers into one common interest; to produce uniform and simultaneous efforts to enhance the value of the property; to prevent the injurious competitions and collisions arising from individual and separate negotiations; to provide a common fund for all expenses, and a uniform mode of selling the property for the general and common benefit of all the proprietors; and to give a negotiable quality to the stock or property, which, without impairing the great objects oí the association, might facilitate the transfer of shares in the property, and give it a marketable value. For these purposes, the entire management and control of the whole funds or property were given to a board of directors, with full authority to dispose of the same at their sole pleasure and discretion. Taxes were to be levied pro rata on all the proprietors; and their shares in the stock were held responsible for the payment. The moneys received upon every sale of any portion of the property were to be distributed among all the proprietors according to their shares; and the evidence of their title to any shares was to -be vouched, and solely vouched by certificates, to be issued from time to time by the trustees, in a form prescribed in the articles. The negotiability of the stock itself would have been materially impaired by the supposition, that each successive holder was bound to trace up his title, through his own vendor, to the first and original purchaser; and to ascertain, what were the rights and liabilities of such purchaser, and of all the intermediate holders from the origin of the title. Such an inquiry would at all times have been difficult; and. from its involving matters en pais, must have been in most cases very unsatisfactory in its result. If with these considerations we combine the form of the certificate itself which states the shares of the proprietor, and the manner in which he is to hold them, without any notice of, or reference to, the title of any original purchaser from whom they are derived; and the declaration of the articles, that it is to be complete evidence of title; it is difficult to resist the impression, that the company must have meant, that the certificate should be conclusive evidence of title in the holder of his shares, not in the stock of any individual original purchaser, but in the common stock of the company itself. In short, that the whole property was an aggregate fund belonging to the company in its collective capacity, and that each proprietor held his shares under the company’s grant, and in no other manner. My judgment accordingly on this point is, (though with the greatest deference for a different judgment pronounced by another tribunal) that the plaintiff held ■00,000 acres of the common capital stock of the company, and not of the specific acres originally purchased by Mr. Wetmore. The title to tlie whole tract of land belonging to the company has, under the act of congress, been lawfully released by the company or its agents to the United States, and the plaintiff’s portion included in that release. Of that act she does not, and, indeed, has no right to complain, because it is in strict conformity with the articles of association. What she claims is, to receive her proportion, according to her interest, of the certificates of public stock received by the company under the award of the commissioners, as an indemnification for that release.

The objections urged by the defendants against this claim are: 1st. That the award of the commissioners is conclusive upon the subject matter of the claim, and that the plaintiff is thereby estopped to assert it. 2dly. Supposing the award of the commissioners is no estoppel; still it is right upon principles of equity, and that therefore, under all the circumstances of the case, the plaintiff has no right to sustain the present ■suit. In respect to the accuracy of the grounds, upon which the commissioners have made their award, it certainly behoves this court to speak with the utmost diffidence. Although the written opinion, containing those grounds, is before this court; yet some facts are stated, which have no existence in this cause, and references are made to others in so indistinct and general a manner, that it is not easy to ascertain the precise nature or bearing of them. What I shall therefore say in respect to that award will refer rather to principles of law, than conclusions of fact, and always with this reserve, that I shall only discuss these principles with reference to the facts of this cause, and upon the supposition, that they are not inconsistent with what appeared before the commissioners. I own, that there are some things in the written opinion of the commissioners, which I do not perfectly comprehend. When it is stated, that “the board has expressed an opinion, that the vendors in this case conveyed only an equitable title,” (and by the vendors. I understand them to mean the Georgia Mississippi Company) I am somewhat at a loss to know, what meaning is to be attached to the language. If there is any point in the case, which is free of doubt, this seems to be that point. That the state of Georgia was seised in fee simple, and had a capacity to convey, notwithstanding the non-extinguishment of the Indian title, is completely established by the case of Fletcher v. Peck, 6 Cranch [10 U. S.] 87. And that a grant by a state of its own lands conveys a seisin to the grantees without further act or ceremony, is as distinctly established by the case of Green v. Liter, 8 Cranch [12 U. S.] 229. By the grant, therefore, from the state of Georgia, the Georgia Mississippi Company became seised in fee simple of the whole tract of land; and that company legally con--veyed that fee simple to Messrs. Jarvis, Newman, and Wetmore, and they again conveyed the same to the trustees. It seems to me, therefore, extremely difficult to sustain this opinion of the commissioners upon any principles of law, which have occurred to me in the course of this investigation.

The doctrine, that a lien exists on the land for the purchase-money, which lies at the foundation of the decision of the commissioners, as well as of the present defence, deserves a very deliberate consideration. It can hardly be doubted, that this doctrine was borrowed from the text of the civil law; ⁴ and though it may now be considered as settled, as between the vendor and the vendee, and all claiming under the latter with notice of the non-payment of the purchase-money; yet its complete establishment may be referred to a comparatively recent period. Lord Eldon has given us an historical review of all the cases (Mackreth v. Symmons, 15. Ves. 329), from which he deduces the following inferences: First, that, generally speaking, there is such a lien. Secondly, that in those general cases, in which there would be a lien, as between vendor and ven-dee, the vendor will have the lien against a third person, who had notice, that the money was not paid. These two points, he adds, seem to be clearly settled; and the same conclusion has been adopted by a very learned chancellor of our own country. Garson v. Green, 1 Johns. Ch. 308. The rule, however, is manifestly founded on a supposed conformity with the intentions of the parties, upon which the law raises an implied contract; and therefore, it is not inflexible, but ceases to act, whore the circumstances of the case do not .iustify such a conclusion. What circumstances shall have such an effect, seems indeed to be a matter of a good deal of delicacy and difficulty; and the difficulty is by no means lessened by the subtle doubts and distinctions of recent authorities. It seems, indeed, to be established, that prima facie the purchase-money is a lien on the land; and it lies on the purchaser to show, that the vendor agreed to waive it (Hughes v. Kearney, 1 Schoales & L. 132; Mackreth v. Symmons, 15 Ves. 329; Garson v. Green, 1 Johns. Ch. 308); and a receipt for the purchase-money, endorsed upon the conveyance, is not sufficient to repel this presumption of law. But how far the taking a distinct security for the purchase-money shall be held to be a waiver of the implied lien, has been a vexed question.

There is a pretty strong, if not decisive, current of authority, to lead us to the conclusion, that merely taking the bond, note, or covenant of the vendee himself for the purchase-money, will not repel the lien; for it may be taken to countervail the receipt of the payment usually endorsed on the conveyance. Hughes v. Kearney, 1 Schoales & L. 132; Nairn v. Browse, 6 Ves. 752; Mackreth v. Symmons, 15 Ves. 329; Blackburn v. Gregson, 1 Brown, Ch. 420; Garson v. Green, 1 Johns. Ch. 308; Gibbons v. Baddali, 2 Eq. Cas. Abr. 682; Coppin v. Coppiu, 2 B. Wms. 291; cases cited in Sugd. Vend. c. 12, p. 352, etc. But where a distinct and independent security is taken, either of property or of the responsibility of third persons, it certainly admits of a very different consideration. There, the rule may properly apply, that “expressum facit cessare taciturn”; and where the party has carved out his own security, the law will not create another in aid. This was manifestly the opinion of Sir William Grant in a recent case; where he asks, “If the security be totally distinct and independent, will it not then become a case of substitution for the lien, instead of a credit given because of the lien?” And he then puts the case of a mortgage on another estate for the purchase-money, which he holds a discharge of the lien, and asserts, that the same rule must hold with regard to any other pledge for the purchase-money. Nairn v. Prowse, G Vos. 732. And the same doctrine was assorted, in a very early case, where a mortgage was taken for a part only of the purchase-money, and a note for the residue. Bond v. Kent, 2 Vern. 281. Lord Eldon, with his characteristic inclination to doubt, has hesitated upon the extent of this doctrine. He seems to consider, that whether the taking of a distinct security will have the effect of waiving the implied lien, dejiends altogether upon the circumstances of each case, and that no rule .can be laid down universally; and that, therefore, it is impossible for any purchaser to know, without the judgment of a court, in what cases a lien would, and in. what cases it would not, exist. His language is, “If, on the other hand, a rule has prevailed (as it seems to me), that it is to depend, not upon the circumstance of taking a security, but upon the nature of the security, as amounting to evidence (as it is sometimes called), or to declaration plain, or manifest intention (the expression used on other occasions), of a purpose to rely not any longer upon the estate, but upon the personal credit of the individual; it is obvious, that a purchaser taking a security, unless by evidence, manifest intention, or declaration plain, he shows his purpose, cannot know the situation, in which he stands, without the judgment of a court, how far that security does contain the evidence, manifest intention, or declaration plain upon that point.” Mackreth v. Symmons, 15 Ves. 329, 342; Austen v. Halsey, 6 Ves. 475. If, indeed, this be the state of the law upon this subject, it is reduced to a most distressing uncertainty. But, on a careful examination of all the authorities, I do not find a single case, in which it has been held, if the vendor takes a personal collateral security, binding others as well as the vendee, as, for instance, a bond or note with a surety or an indorser, or a ’collateral security by way of pledge or mortgage, that under such circumstances a lien exists on the land itself. The only case, that looks that way, is Elliot v. Edwards, 3 Bos. & P. 181, where, as Lord Eldon says, the point was not decided; and it was certainly a case depending upon its own peculiar circumstances, where the surety himself might seem to have stipulated for the lien, by requiring a covenant against an assignment of the premises, without the joint consent of himself and the vendor. Lord Hedesdale, too, has thrown out an intimation (Hughes v. Kearney, 1 Schoales & L. 132) that it must appear, that the vendor relied on it as security; and he puts the case, “Suppose bills, given as part of the purchase-money, and suppose them drawn on an insolvent house, shall the acceptance of such bills discharge the vendor's lien? They are taken not as a security, but as a mode of payment.” In my humble judgment, this is begging the whole question. If, upon the contract of purchase, the money is to be paid in cash, and bills of exchange are afterwards taken in payment, which turn out unproductive, there the receipt of the bills may be considered as a mere mode of payment. But if the original contract is, that the purchase-money shall be paid at a future day, and acceptances of third persons are to be taken for it, payable at such future day, or a bond with surety payable at such future day, I do not perceive, how it is possible to assert, that the acceptances or bond are not relied on as security. It is sufficient, however, that the case was not then before his lordship; and that he admits, that taking a distinct security would be a waiver of the lien. On the other hand, there are several cases, in which it is laid down, that if other security be taken, the implied lien on the land is gone. To this effect certainly the case of Fawell v. Heelis, 2 Amb. 724, 2 Dick. 485, is an authority, however it may, on its own circumstances, have been shaken. And the doctrine was explicitly asserted and acted upon in Nairn v. Browse, 6 Ves. 752. See, also, Bond v. Kent, 2 Vern 281. In our own country, a very venerable judge of equity has recognised the same doctrine. He says, “The doctrine that the vendor of land, not taking a security nor making a conveyance, retains a lien upon the property, is so well settled as to be received as a maxim. 'Even if he hath made a conveyance, yet he may pursue the land in the possession of the vendee, or of a purchaser with notice. But if he hath taken a security, or the vendee hath sold to a third person without notice, the lien is lost.” Cole v. Scot, 2 Wash. [Va.] 141. Looking to the principle, upon which the original doctrine of lien is established, I have no hesitation to declare, that taking the security of a third person for the purchase-money ought to be held a complete waiver of any lien upon the land; and that in a case standing upon such a fact, it would be very difficult to bring my mind to a different conclusion. At all events, it is prima facie evidence of a waiver; and the onus is on the vendor to prove, by the most cogent and irresistible circumstances, that it ought not have that effect.

Such was the result of my judgment upon an examination of the authorities, when a very recent case before the master of the rolls first came to my knowledge. I have perused it with great attention, and it has not, in any degree, shaken my opinion. The case there was of acceptances of the vendee and of his partner in trade, taken for the payment of the purchase-money. It was admitted, that there was no case of a security given by a third person, in which the lien had been held to exist. But the master of the rolls, without deciding what, would be the effect of a security, properly so denominated, of a third person, held, in conformity to the opinion of Lord Redesdale, that bills of exchange were merely a mode of payment. and not a security. This conclusion he drew from the nature of such bills, considering them as mere orders on the acceptor to pay the money of the drawer to the payee; and that the acceptor was to be eon-sidered, not as a surety for the debt of another, but as paying the debt out of the debtor’s funds in his hands. Grant v. Mills, 2 Ves. & B. 306. With this conclusion of the master of the rolls, I confess myself not satisfied, and desire to reserve myself for the case, when it shall arise in judgment. It is founded on very artificial reasoning, and not always supported in point of fact. by the practice of the commercial world. The distinction, however, on which it proceeds, admits, by a very strong implication, that the security of a third person would repel the lien. If indeed the point were new, there would be much reason to contend, that a distinct security of the party himself would extinguish the lien on the land, as it certainly does the lien upon personal chattels. Cowell v. Simpson, 1C Ves. 275. In applying the doctrine to the facts of the present case, I confess, that I have no difficulty in pronouncing against the existence of a lien for the unpaid part of the purchase-money. The property was a large mass of unsettled and uncultivated lands, to which the Indian title was not as yet extinguished. It was, in the necessary contemplation of all parties, bought on speculation, to be sold out to sub-purchasers, and ultimately to settlers. The great objects of the speculation would be materially impaired and embarrassed by any latent incumbrance, the nature and extent of which it might not always be easy to ascertain, and which might, by a subdivision of the property, be apportioned upon an almost infinite number of purchasers. It is not sup-posable, that so obvious a consideration should not have been within the view of the parties; and viewing it, it is very difficult to suppose they could mean to create such an in-cumbrance. A distinct and independent security was taken by negotiable notes, payable at a future day. There is no pretence, that the notes were a mere mode of payment, for the endorsers were, by the theory of the law, and in fact, conditional sureties for the payment; and in this respect the case is distinguishable from that of receiving bills of exchange, where, by the theory of the law, the acceptor is not a surety, but merely pays the money of the drawer in pursuance of his order. Hughes v. Kearney, 1 Schoales & L. 132; Grant v. Mills, 2 Ves. & B. 306. The securities themselves were, from their negotiable nature, capable of being turned immediately, into cash; and in their transfer from hand to hand, they could never have been supposed to draw after them, in favor of the holder, a lien on the land for their payment. Hut I pass over these and some other peculiár circumstances of this case, and put it upon the broad and general doctrine, that here was the security of a third person, taken as such, and that extinguished any implied lien for the purchase-money.

There is another view of this case, which enforces the opinion, which has been already expressed. The contract for the purchase was originally made and executed in Massachusetts with citizens of that state, and having no tacit reference to the laws of any other state, further than that the title to the land should be conveyed, so as to be binding by the laws of that state. The first deed of the land was, in fact, executed by the vendors in Massachusetts, and the deed of confirmation in Georgia. Nothing can be clearer, than that, by the law of Massachusetts, no lien in any case whatsoever exists upon land for the purchase-money. We have no court of chancery to recognise and enforce such a lien; and the peculiar principles and doctrines of courts of equity have never been adopted into our jurisprudence. The general rule of law certainly is, that contracts are to be construed according to the law of the place, where they are made and to be executed. Even contracts respecting lands, lying in another state, form no necessary exception to the rule; for these, in many instances, both as to rights and remedies, are governed by the lex loci contractus. Stapleton v. Conway, 1 Yes. Sr. 428, 3 Atk. '727; Van Schaick v. Edwards, 2 Johns. Cas. •305. What is the law of Georgia on this .subject, I have no present means of knowing. But it does seem to me, that it will be very difficult to maintain the proposition, that a lien is to be implied upon a contract made and executed in Massachusetts, when the laws of that state repel any such right. I do not know, that it has ever been established, that a party, executing in one state a contract and conveyance of land lying in another, is to be held to reserve all the rights and remedies, which the law of the state,.where the land lies, might give, and the law of the place of the contract would deny. It seems more reasonable, that the general rule of law should in such case prevail, that the contract should be construed according to the law of the place, where it is executed. But certainly when a lien is to be created upon a supposed intention of the parties, there ought to be, in such a case, the clearest evidence of such intention. It is not sufficient, that the vendor supposed, that he was contracting according to the law of one state, and so had a lien, if the vendee supposed the reverse, and never dreamed of a lien. Now, there is not the slightest reason to imagine, that the vendees ever contemplated a lien in the present case. The very objects of their association in the purchase would have been defeated, or embarrassed by it. No notice is pretended to have been given of such a claim by the. vendors; but a distinct and independent security was taken. Under such circumstances, it seems to me irreconcilable with sound principles and justice, to establish a latent lien, which must so materially impair the rights of innocent and ignorant parties. For it is to be considered, that until the decision of the commissioners, no such lien was ever contem-plat.ed by the scrip-holders in Massachusetts.

Another subject necessarily connected with this cause, and of a good deal of delicacy, remains to be considered; and that is, whether the commissioners had authority to entertain any question in respect to a lien for the purchase-money; or, in other words, whether they had jurisdiction to make any award respecting the supposed equitable right of lien of the vendors of the laud. The act of congress — Act March 31, 1814, c. !)S, § 2 [3 Stat. 11G, c. 39] — authorizes the commissioners “to adjudge and finally determine upon all controversies, arising from such claims so released as aforesaid”; that is, from all claims released under the first section of the act, or of the acts supplementary thereto. Act January 23, 1S15, c. 70G [3 Stat. 192, c. 24], and Act March 3, 1S15, c. 778 [3 Stat. 235, c. 97], The word “claim” is certainly of very large signification in the law, and it undoubtedly extends to all equitable, as well as legal estates in the land released. But a person, having a lien on land, has not any estate in, or right to the land; and it has been very correctly observed of the lien of a judgment creditor, that “he has neither a jus in re, nor a jus ad rem, and therefore though he releases all his right to the land, he may extend it afterwards.” Brace v. Duchess of Marlborough, 2 P. Wins. 491. The lien of a vendor for the purchase-money is not of so high and stringent a nature, as that of a judgment creditor, for the latter binds the land according to the course of the common law, whereas the former is the mere creature of a court of equity, which it moulds and fashions according to its own purposes. It is, in short, a right, which has no existence, until it is established by the decree of a court in the particular case; and is then made subservient to all the other equities between the parties, and enforced in its own peculiar manner, and upon its own peculiar principles. It is not, therefore, an equitable estate in the land itself, although sometimes that appellation is loosely applied to it; and it is never enforced against a subsequent bona fide purchaser of the. legal estate without notice. It is to me, in this view, a matter of extreme doubt, whether it was within the jurisdiction of the commissioners; it not being technically a claim in the land, nor, of course, the proper subject of release within the act of congress. It is, too, so peculiarly and exclusively the creature of a court of equity, that its existence cannot be safely averred independent of the decree of such a court. And to suffer the commissioners (who are, in no correct sense, a court of equity) to award respecting such a lien, without the means or authority to settle all other equities between the parties, or enforce an equitable decree, could scarcely have been within the reasonable contemplation of congress. If such a lien were asserted, it was proper matter for a suit in equity, after the rights of the parties to the land itself had been adjusted under tlie commission. Thus much it has become my duty to state, in respect to the merits of the proceedings before the commissioners, so far as they involve important principles of law, applicable to the present suit. If these proceedings were conclusive upon the plaintiff, I might have been spared this discussion. But I am distinctly of opinion, that they are not so conclusive. The commissioners had no right or authority to adjust or settle any claims of the plaintiff, relative to the New England Mississippi Land Company. They had a right to examine into the title of the company to the land claimed by them, and to decide upon the sufficiency of that title. But as to the shares held under the company by the plaintiff, or the rights appertaining thereto, as against tlie company itself, the plaintiff never sub.mitted her claims to them; and their award would be res inter alios acta. .The commissioners were not justified in severing the plaintiff’s interest from that of the company. The trustees held the legal estate, and the directors had the sole right to dispose of it. It was the property of the company in its collective capacity, liable to its debts, and to be accounted for and settled according to the articles of association; and the individual share-holders, as such, had no authority to act in relation to it.

[NOTE. The respondents appealed the case to the supreme court, and the decree of the circuit court was affirmed in an opinion by Chief Justice Marshall. 4 Wheat. (17 U. S.) 255. In examining the case, the nature of the contract of-sale of the land, the motives of the New England Mississippi Company, and their acts were all ■exhaustively considered. The holder of every certificate was not bound to' trace his title through the particular original purchaser under whom he claimed, and in whose place he stood. It is not more apparent that the general object of the association was to promote the sale of their lands than it is that the particular object of this certificate and of the articles which relate to it was to enable every proprietor to avail himself of his individual interest and to bring it into circulation. On no other principle can we account for subdividing the stock of the company into such small shares; for issuing the certificate itself; for making it assignable. If any latent defect existed in the title of one of the original purchasers, such defect could not have been set up against an assignee. “We think,” remarked the learned justice, “this, on principles of English law. a clear case of exemption from lien.” Nor would it alter the liability of the New England Company to the complainant whether they were purchasers with or without notice.]

Upon the whole my judgment is, that the ■plaintiff as a holder of certain shares of the common stock of the company, and not of ■ Mr. Wetmore, is entitled to the relief, which ■she claims. Whatever has been lost by the company is a general loss, occasioned, not by her default, but, as I think, by the mistake of the commissioners; and is to be borne by the whole company in proportion to their interest. She has, by the general release of the company, lost- all title to the land; and is equitably and legally entitled to her share of all the stock received as an indemnification for release. Decree accordingly.

4 “Quod vendidi, non aliter accipiontis, ouam si aut pretimn nobis solutum sit. aut satis eo nomine factum, vel etinm iidpm habuerimus omptorl sine ulla satisi'actione.” Dig. lib. 18, tit. 1, 1. 19; Domat, lib. 1, tit. 2, § o, 1. 1.