Hughes v. Moore

• Decision Date: 04 March 1812
• Parties: HUGHES v. MOORE
• Court: U.S. Supreme Court

11 U.S. 176

7 Cranch 176

3 L.Ed. 307

HUGHES v. MOORE.

March 4, 1812

Present. All the judges.

ERROR to the Circuit Court for the District of Columbia, sitting in Alexandria.

This was a special action of assumpsit, brought by Moore against Hughes. The declaration, after several amendments, contained four counts.

1. The first count stated, that whereas on the 16th of June, 1797, it was agreed between the Plaintiff, and one John Darby, by a writing under their hands and seals, now here shown to the Court, in substance as follows: 'whereas Cleon Moore, had located in his own name, 9922 acres of land in Kentucky, by a treasury warrant No. 19,100,' 'and the said Cleon Moore, hath sold all his right, title and interest of, and in the same, to John Darby, for the consideration of 300l. and warrants that no person or persons claiming under John Tebbs, now deceased, or under him the said Cleon Moore, shall interrupt him, the said John Darby, in his said claim to the said lands, but as to all other claims he is to run the risk, and on their account, will never require, that the said Cleon Moore, or any other person or persons, shall refund the said 300l. or any part thereof, but if there should be as much land secured by the said location, as will bring two thousand pounds or upwards, the said John Darby, is to pay the said Cleon Moore 700l. in money, over and above the said three hundred pounds, so that he may receive altogether, one thousand pounds; otherwise the said Cleon Moore is only to have the said consideration of three hundred pounds.' At the bottom of which writing, was a receipt in these words, 'Received of John Darby, the sum of three hundred pounds, the full consideration for the first mentioned location, in the foregoing agreement, or of his right, title, and interest of, and in the same—Cleon Moore, and a seal. And whereas on the same day, a memorandum in writing, and under the seals of the Plaintiff and the said Darby, was added and indorsed on the said agreement as part thereof as follows: 'Memorandum—If a patent or patents have already issued for the first within mentioned location, the said Moore, doth agree to assign the same, to the within named John Darby, his heirs and assigns; or if not issued, that they issue in the name of the said Cleon Moore, and he is to assign them to the said John Darby, his heirs and assigns; and if in the opinion of any two respectable men in the neighborhood of the said lands, to be mutually chosen, shall say the said lands will sell for two thousand pounds, or upwards, the said John Darby doth bind himself, his heirs and assigns, to pay unto the said Cleon Moore, his executors administrators and assigns, the sum of seven hundred pounds, as herein mentioned.'

'And whereas the said Defendant, afterwards, on the 5th of October, 1799, well knowing the contract and covenants aforesaid, between the said Cleon Moore and John Darby, and more especially well knowing that a patent or grant had not then been issued for the tract of 9922 acres, located in the name of the said Cleon Moore, and well knowing that the patent for that land ought, and could only be issued unto the said Cleon Moore, and well knowing that the said Cleon Moore was entitled to the sum of 700l. lawful money of Virginia, of the value of 2,333 dollars, and 33 cents, provided, in the opinion of any two respectable men in the neighborhood of the said lands, to be mutually chosen, they should say the said lands would sell for 2,000l. or upwards, lawful money of Virginia; and whereas the Defendant, well knowing that the said lands were really and truly worth, on the day and year last mentioned, a much greater sum than 2,000l. and well knowing that it would materially injure the Plaintiff in his contract aforesaid, and would materially benefit the said John Darby and himself, the said Defendant, he the said Defendant, on the said 5th day of October, &c. assigned the plat and certificate of survey, made of the said 9922 acres, and a warrant numbered 19605, in the name of the Plaintiff, unto himself, the said Defendant, and the said John Darby, without any lawful authority, so to do from the said Cleon Moore, by making and subscribing the said assignment of the said survey, in the name of him, the said Cleon Moore, by him the said James Hughes, as attorney in fact, for the said Cleon Moore, which assignment, imported a desire of him the said Cleon, that patents mights issue in the names of the said Darby and Hughes, intending thereby to defraud and injure the said Cleon Moore, and to benefit himself and the said John Darby, in respect to the premises aforesaid. And whereas the said James Hughes, by means of the herein before mentioned assignment, had caused and done to the Plaintiff, an injury to the value of a great sum of money, to wit, the value of $4,000 dollars, which he was disposed to compensate; the said James Hughes in consideration thereof, afterwards, viz: on the 17th of March, 1806, came to an agreement with the said Cleon Moore, whereby the said Cleon Moore, promised, that he would quit all claim to the said tract of land, and discharge the said James Hughes of, and concerning all damages for, and by reason of his actings and doings aforesaid, in assigning the survey in manner aforesaid; and he the said James Hughes, promised to the said Cleon Moore, that he would pay to him the sum of 700l. when he should be thereafter required; and the Plaintiff avers, that he has been always ready to keep, and has always kept his promise aforesaid, in consideration of which premises, the Defendant became liable to pay to him, the said sum of 700l. &c. and being so liable, the Defendant in consideration thereof, undertook,' &c.

2. The second count, stated, that whereas on the 5th of October, 1799, the Plaintiff was owner and proprietor of a certain plat, and certificate of survey, of 9922 acres of land in Mason county, in the state of Kentucky, dated the 28th of November, 1796, of the value of 20,000 dollars, and whereas the Defendant well knowing the premises afterwards, viz.—on the 5th of October, 1799, without any lawful authority from the Plaintiff, and with a view to benefit himself, and a certain John Darby, and to injury the Plaintiff, in this particular, assigned the last mentioned plat and certificate of survey unto him the said Defendant, and the said John Darby, by subscribing the name of the said Cleon Moore by the said James Hughes, as Attorney in fact, for the said Cleon Moore, and in consequence of the said unauthorized assignment, a grant of the said tract of land was afterwards made to the Defendant, and the said Darby, by the Commonwealth of Kentucky, styling them assignees of the Plaintiff. And whereas the Defendant, by the assignment aforesaid, had caused and done to the Plaintiff an injury and loss to the value of a great sum of money, viz. to the value of 4,000 dollars, which he was willing to repair and compensate; in consideration thereof, the said Defendant afterwards, viz. on the 7th of March, 1806, at the county of Alexandria, &c. promised to pay to the Plaintiff, the sum of 700l. lawful money of Virginia, as compensation for the said injury and loss of the said land assigned as aforesaid.

The said Plaintiff at the same time agreed to the said terms, and to accept of the said compensation in full of all claims and demands for the said land, and for the injury aforesaid. And the Plaintiff avers, that he has always kept his promise aforesaid, and has been at all times ready and willing to do every thing on his part to be done; and afterwards, viz. on, &c. at, &c. offered to perform the agreement on his part, and the Defendant then and there refused to perform, &c. whereby the Defendant became liable, &c. and being so liable, promised to pay, &c.

3. The 3d count stated, that whereas the Plaintiff, by virtue of a certain land warrant issued, &c. on the 26th of September, 1783, duly located by entry on the 7th of December, 1783, and duly executed by actually survey, duly made on the 28th of November, 1796, a plat and certificate whereof, had been duly made and delivered according to law, was entitled to have a grant from the commonwealth of Kentucky, by patent to be founded on the said survey, and to be completed and issued to him of 9922 acres of land in the county of Mason. &c. bounded, &c.—And whereas the Defendant had on the 5th of October, 1799, (the Plaintiff, being so entitled to have the land patented to him aforesaid, and the Defendant well knowing the premises,) for his own gain and advantage, and to the great wrong and damage of the Plaintiff, without any lawful authority to that effect from the Plaintiff, and without his knowledge or consent, but under color and pretence of being Attorney in fact for the Plaintiff, wrongfully, injuriously and wilfully made and executed in the name of the Plaintiff, a certain indorsement in writing, upon the back of the said plat and certificate of survey, purporting to be an assignment by the Plaintiff, of the said plat and certificate, to one John Darby and the said James Hughes, for value received, and purporting to express a desire of the Plaintiff, that patents might issue in their names, and purporting to be subscribed with the name of the Plaintiff, by the said James Hughes, his Attorney in fact. And whereas the said James, afterwards, viz. on the 5th of April, 1800, (the Plaintiff being entitled to have the said land patented to him as aforesaid,) with, out any authority to that effect from the Plaintiff, and without his knowledge or consent, by means of the said pretended assignment, and under color of the same, for his own gain and advantage, and to the great wrong and damage of the Plaintiff, wrongfully, injurously and wilfully caused and procured the land so located and surveyed for the Plaintiff as aforesaid, and bounded as aforesaid, to be granted by the commonwealth of Kentucky, to them the said John Darby and James Hughes...