Foist v. Coppin and Another.

that the case would be tried on the 24th day of January. On the day set for trial the parties appeared, and defendants moved to set aside the granting of a new trial on account of the insufficiency of the notice. The motion was overruled. The case was, by the agreement of the parties, continued until the 3d day of February, 1857. On that day, the plaintiff appeared, but the defendants did not appear. The cause was tried by the justice, who rendered a judgment for plaintiff of fourteen dollars and eighty cents.

The judgment having been assigned to Bain, he, on the 28th day of October, 1867, filed an affidavit before the justice having the docket containing said judgment, to obtain an execution. The justice issued an execution on the 4th day of November, 1867. John Foist, on the 11th day of November, 1867, filed with the said justice his motion to have the said judgment vacated and declared null and void, and the execution recalled. His motion was heard on the 16th day of November, and was by the justice dismissed on account of the insufficiency of the matters alleged in the motion. The appellant then appealed to the circuit court, where the case was, by the agreement of the parties, tried by the court, and resulted in favor of the appellees; and this case is brought to this court to obtain a reversal of the judgment of the circuit court refusing to vacate the said judgment, and to order a return of the execution.

The motion of the appellant to have the judgment rendered on the 3d day of February, 1857, declared null and void, and the execution returned, was based on two grounds. The first was, that the notice of the intended application for a new trial was insufficient. The second was, that the new trial was granted on the 5th day after the judgment was rendered, and that, by reason thereof, the justice had no power or authority to grant a new trial, and that the granting of such new trial and all subsequent proceedings were null and void. There is nothing in the first objection. It is shown by the record and the evidence that notice was served on the day before the new trial was granted. But it makes no

Foist v. Coppin and Another.

difference whether there was any notice, as the appellant was present when the new trial was granted, and made no objection to the sufficiency of the notice. An appearance without objection waived any defect or insufficiency in the notice.

The statute provides that justices may grant new trials within four days after the rendition of the judgment. The record of the justice shows that the application for a new trial was made on the 13th of January, 1857, and that it was granted. The record on the 3d of February recites that the notice was served on the 14th of January. This recital constituted no part of the record on the 3d of February, and could not control the previous record, which showed when the new trial was granted. But there is an objection that is fatal to the whole proceeding. Section 115 of the justice's act, 2 G. & H. 609, gives to a justice the power to enter satisfaction of a judgment on his docket. This proceeding is based on the theory that the judgment was valid, but had been paid subsequent to its rendition. The proceeding in the case under consideration is not to enter satisfaction of the judgment, but to have it vacated and declared null and void from the beginning. It is claimed that the judgment was void for the want of power and authority in the justice to render the judgment. The court of a justice of the peace is one of inferior and limited jurisdiction, and can exercise no power nor do any act that is not expressly granted or authorized. No authority has been conferred upon justices to declare void and vacate judgments. They may grant new trials within four days; and they may grant a new trial within ten days, when the judgment was rendered by default. See sec. 56, 2 G. & H. 592, and sec. 62, 2 G. & H. 593. And they may enter satisfaction, in whole or in part, where payments have been made. With these exceptions, they have no power to change, vacate, or in any manner interfere with judgments by them rendered. The proper remedy, if any existed, in the case under consideration, was

Nelson and Others v. Davis.

by an application to the chancellor to enjoin the collection of the judgment.

The judgment is affirmed, with costs.

W. K. Marshall, for appellant.

R. M. Kelly, for appellees.

NELSON and Others v. Davis.

CONVEYANCE.-Construction.-On the 8th of November, 1842, A., for a pecu-
niary consideration, made to B. and C., as trustees of D., daughter of A., a
conveyance of real estate, the habendum whereof was as follows: "unto
them, the said B. and C., as trustees for the said D., and for her sole and
proper benefit and behoof, and for no other purpose whatever, during the
natural life of the said D., and at her death to descend to the children of the
said D., if any she have, and if not, to her assigns forever."
Held, that the instrument was a deed of bargain and sale.

Held, also, that by the statute of uses, 27 Henry VIII., the legal title was vested
in the trustees, and not in the cestui que use. What would be the effect of
such an instrument if executed under the statue of 1843 or 1852 is not de-
cided.

Held, also, that the conveyance vested in D. an equitable title for her life only, which she could effectually convey.

SAME.-Conveyance to Trustee.—A conveyance to a trustee is commensurate with the estate conveyed to the cestui que trust, and is limited and qualified by the words of limitation applied to the estate of the cestui que trust. SAME.—“ Heirs."-Conveyances by deed, at common law, or to uses under the statute of uses, or creating powers of appointment, in order to transmit the fee, must contain the word heir or heirs.

TENANTS IN COMMON.-Adverse Possession.-When one tenant in common is in possesion of the whole estate, claiming under a deed purporting to convey the entire estate, he will be deemed to have ousted his co-tenants.

APPEAL from the Posey Circuit Court.

WORDEN, J.-Complaint by the appellants against the appellee to recover certain real estate. Demurrer sustained to the complaint, and final judgment for the defendant. Exception.

Nelson and Others v. Davis.

The complaint alleges, in substance, the following facts: That on the 8th of November, 1842, William Rogers, and Jane, his wife, were seized in fee of the land in controversy; that on the same day, in consideration of eight hundred dollars, they conveyed the same to Preston C. Rogers and John Cox, as trustees of Elizabeth Rogers, daughter of said William and Jane.

Habendum: "Unto them, the said Preston C. Rogers and John Cox, as trustees for the said Elizabeth, and for her sole and proper benefit and behoof, and for no other purpose whatever, during the natural life of the said Elizabeth, and at her death to descend to the children of the said Elizabeth, if any she have, and if not, to her assigns forever."

That in 1845, the said William and Jane, the grantors, departed this life, and that the plaintiffs are their only heirs now living; that on the 20th of November, 1864, the said Elizabeth and her husband, she having intermarried with one Harrison Newsome, conveyed the property in fee, with general covenants of warranty, to the defendant, for the consideration of sixteen hundred dollars; that the defendant thereupon took possession of the property and still retains the same; that in February, 1869, the said Elizabeth died, never having had any children; that in March, 1869, the plaintiffs demanded of the defendant possession of the premises; and that the defendant refused and still refuses to deliver up the same to the plaintiffs; wherefore the plaintiffs say that they are the owners of the property in fee, and that the defendant holds the same without right, &c.

The main question in the case is, whether anything more than a life estate, either legal or equitable, for the life of said Elizabeth, passed by the conveyance from William and Jane to the grantees therein named. The word "heirs," generally essential in common law conveyances in order to the transmission of the fee, is lacking in the deed in question.

It is claimed by the counsel for the appellants, and conceded by counsel for the appellee, that inasmuch as the con

Nelson and Others v. Davis.

veyance was for the sole use and benefit of Elizabeth, without any power of sale or otherwise coupled with the trust, the statute of uses, 27 Henry VIII., executed the use and vested the legal title at once in Elizabeth. We do not concur in this view, although we are inclined to the opinion that the legal rights of the parties must be the same as if the case were to be put upon that ground. The deed in question is a deed of bargain and sale.

This species of conveyance, says Blackstone, was introduced by the statute of uses. Before the passage of the statute, the title to real estate could not be transmitted simply by a deed of bargain and sale. Livery of seizin could not thus be dispensed with. It was the practice before the statute for a person seized of lands to bargain and sell them. to another, in which case, if the consideration was sufficient to raise a use, the bargainor became immediately seized to the use of the bargainee. And since the passage of the statute, the use vested in the bargainee by a deed of bargain and sale is at once executed by the statute, and the legal title vested in the bargainee. But the statute executes but one use; and, therefore, if a use be limited upon a use, the statute executes the one, but not both uses. 2. Bl. Com. 336, 338; 2 Greenl. Cr. 138; 2 Washb. Real Prop. 392.

In our opinion, the title to the property in question was, by virtue of the statute of uses, vested in the trustees, but not in the cestui que use, Elizabeth Rogers. We speak, of course, of the law as it stood at the date of the execution of the deed in question, and do not undertake to determine what might have been its legal effect had it been executed under the statute of 1843 or 1852. See Rev. Stat. 1843, p. 447; I G. & H. 652.

Now, although Elizabeth had not any legal title to the premises, as we think, by virtue of the deed in question, yet she had an equitable title which she could convey as effectually as if she had been vested with the legal estate; and hence it becomes necessary to inquire as to the quantity,