6 J.J.Marsh. 11
Court of Appeals of Kentucky.
Brown v. Woods' and Crump's Heirs,
Brown, &c. v. Wood's Heirs.
Oct. 25, 1831.

Absent Defendants. Unknown Heirs. Affidavit. Publication. Editor. Printer. Specific Performance.

JUDGE UNDERWOOD, delivered the opinion of the court.
On the 10th of February, 1788, Samuel Woods, sen., and Goodrich Crump, entered into a contract, from which it appears that Woods had, before that time, received of Crump land warrants for 10,000 acres, to be located. Crump was to have 6,000 acres, first choice, and Woods, for his services, was to have the residue. Woods stipulated to have the whole surveyed by the last day of the ensuing November, and Crump agreed to pay the expenses. On the back of this contract, is the following assignment: "I do hereby assign my right and title of the within article of agreement to Samuel Woods, junr., for value received of him, as witness my hand this the 9th of November, 1791.

Test, Saml. M'Kee,
James M'Dowell."

On the 9th of November, 1791, Saml. Woods, sr., conveyed to his son, Saml. Woods, jr., in consideration of natural affection and five shillings in hand paid, according to the recitals of the deed, his settlement and pre-emption of 1,400 acres on Shawaney Run, 3,764 acres on the waters of Benson, and "3,000 acres, part of 10,000 acres, in the three forks of Kentucky, in the name of Goodrich Crump," besides a negro woman and a considerable quantity of personal property.

In 1803, S. Woods, jr., died, so much in debt that it took all, or nearly all his property, real and personal, to pay his debts.

On the 9th of November, 1791, in consideration of the deed, executed by S. Woods, sr., to his son, the latter covenanted with the former, to support him and his wife during life, by furnishing 100 acres of land, tax free, a negro woman, &c., &c., for the use of the old people. After the death of S. Woods, jr., his father sued Jacob Froman, the son's administrator, for a breach of the covenant, the jury assessed <>142 damages, and the court directed the administrator to retain that sum out of the assets, and pay $40 annually to the complainant, S. Woods, sr. The decree was rendered in 1805. In 1823, S. Woods, sr., executed a receipt to Harvey Woods, and Geo. Bohon, son and son-in-law of S. Woods, jr., for the full amount of a judgment obtained against the administrator of Saml. Woods, deceased, in the Mercer circuit court, for his maintenance, and acknowledged full satisfaction for all demands against the heirs of his son Samuel, in consequence of his agreeing to support him.

On the 6th of March, 1812, S. Woods, sr., and Charles Brown, the plaintiff in error, entered into a written agreement, by which Woods stipulated to give to Brown one half of four thousand acres of land, that said Woods obtained for locating ten thousand acres of land for Goodrich Crump, and Brown agreed on his part, to survey all the land that the said Woods entered for said Crump, to- wit: all that had not been surveyed, if to be found, and to pay for surveying and all reasonable charges. Under this agreement Brown caused four surveys to be made, of 500 acres each, in virtue of entries made in 1782, three of them on the south fork of Rockcastle and the other in Knox county, on Big Raccoon creek, and procured patents therefor, in the name of the heirs of Goodrich Crump, bearing date in October, 1813. In April, 1819, S. Woods, sr., sold the residue of his interest in the land he was entitled to under the contract with Crump, and executed an instrument of writing evidencing the sale, and which also stipulated that Brown was to have no recourse in case he did not succeed in getting the title from Crump's heirs.

In 1820, Brown filed his bill against Saml. Woods, sr., and the unknown heirs of Goodrich Crump, alleging that Crump had obtained his 6,000 acres, and that he was entitled to the 2,000 acres for which he had caused patents to issue as aforesaid, and concluded with a prayer for a conveyance of the title.

Pending this suit, and after an interlocutory decree had been rendered, the heirs of Saml. Woods, jr., came forward and filed their bill against Saml. Woods' son, and said Brown and also against the unknown heirs of Goodrich Crump, praying that Brown may be restrained from perfecting the interlocutory decree in his behalf, and that the heirs of Crump may be compelled to convey to them, in consequence of the assignment of the agreement between S. Woods, sr., and Crump, made to their ancestor in 1791. Both suits were heard and decided at the same time. Upon the bill filed by the heirs of S. Woods, jr., the court decreed that Crump's heirs should convey them the land, and upon the bill filed by Brown, the interlocutory decree in his behalf was set aside and his bill dismissed. To reach these decrees writs of error have been prosecuted.

We shall consider, first, the proceedings and decree in behalf of the heirs of Saml. Woods, jr. It is assigned for error that the order of publication against Crump's heirs is defective, and did not justify taking the bill for confessed against them. According to numerous adjudications, the rule is fully established, that the acts of Assembly tolerating proceedings against absent defendants and unknown heirs, upon constructive notice by publication, must be strictly observed. The case of Lawlins, &c., v. Lackey, VI Monroe, 70, gives the reason of the rule. The act of Assembly of 1815, I Dig. 61, requires the complainant, "before the emanation of any process, or making any order against unknown heirs, to file in the clerk's office, with his or her bill, an affidavit, stating that he or she does not know the names of such heirs."

The statutes tolerating proceedings against absent defendants, and unknown heirs, upon constructive notice, by publication, must be strictly observed.

In this case there was no separate affidavit, distinct from the bill filed, but the bill charged that the names of Crump's heirs were unknown to the complainants, and there is an affidavit filed, showing that the bill was sworn to by two of the complainants. This we regard as a strict compliance with the intent and meaning of the act of Assembly, if swearing to the bill by a part of the complainants is sufficient. Whether an affidavit, made by part of the complainants, should be regarded as sufficient, we shall not stop to enquire, but leave the statute in that respect, for a proper interpretation when a case occurs where a decision on that point is indispensably necessary. The order of publication was made at the October term, 1823. The editors of the Olive Branch certify that it was inserted nine successive weeks in their paper. Their certificate bears date the 3d of April, 1824. Regarding the term in April as the term next ensuing that in October, we think the certificate of the editors shows that the law has been complied with. The nine insertions must have been after the order was made, and before the date of the certificate. Orders of publication against unknown heirs, need not be published more than eight weeks; A certificate of the publication by an editor instead of the printer, seems to have been regarded as sufficient by the court, in the case of Blight's heirs v. Banks, &c., VI Monroe, 224. There is a distinction betwen the editor and printer of a paper; but it often happens they are the same person, and it is more properly the duty of the editor to know what the paper contains, than of the printer who attends only to the mechanical part of the business. We shall, therefore, waiving the question relating to the sufficiency of the affidavit by a part of the complainants, consider the heirs of Crump properly before the court, and inquire into the merits of the claim relied on by the heirs of S. Woods, jr., The contract with Crump and the assignment thereon, were found in the hands of Brown. He denies that there ever was any delivery of the assignment, or of Crump's obligation, to S. Woods, jr. There is no proof of any delivery. The consideration for the assignment, was the agreement of S. Woods, jr. to support his father and mother, for life. In this agreement he failed, and by misfortune or imprudence, in squandering the estate received from his father, the old man was left without the means of coercing his representatives. To say, the least, here is a failure of consideration to a considerable extent. The assignee, S. Woods, jr., lived about twelve years after the assignment, and during that time it does not appear that he made the least effort to avail himself of the benefits resulting from it, by causing the unsurveyed entries in Crump's name, to be surveyed and carried into grant. His administrator and heirs, after his death, make no effort. More than twenty years after the assignment, Brown makes his contract for an interest in the land, and by his exertions, and at his expense, procures patents. About thirty years after the assignment and eighteen after the death of their father, the heirs of S. Woods, jr., file their bill, claiming to stand in the shoes of the assignor, and asking a specific execution of the contract, by a conveyance from Crump's heirs. If they are thus to be let in, it would seem to be just that they should, at least, pay the expenses which Brown incurred in procuring the patents; for we can not perceive that he was acting mala fide. It was attempted to be shewn that he had notice of this assignment, because of the general notoriety of the transfer and conveyance of all the property owned by S. Woods, sr., to his son. Notice of this particular assignment ought not to be presumed from such premises. The "three thousand acres, part of ten thousand acres, in the three forks of Kentucky, in the name of Goodrich Crump," mentioned in the deed from S. Woods, sr., to his son, can not be regarded as the same land now in contest, as these lie on Rockcastle and Big Raccoon creek. There is no ground for inferring that Brown knew anything of the assignment in 1812, or 1819, when his contracts with S. Woods, sr., were made. He swears he did not. Under these circumstances, if it was proper to decree the land to Woods' heirs, we think they ought not to have been permitted to profit by Brown's labour and money.

If the bill allege, that the names of the heirs are unknown to the complainant, and is sworn to that is a strict compliance with the statute which requires an affidavit that the heirs are unknown, to be filed along with the bill.

As they asked the aid of the chancellor, they should have been required to pay all reasonable charges, by which the land had been saved. But we do not concede that the heirs of Woods have shown themselves entitled to the relief they ask. The interposition of the chancellor should be regulated by a sound discretion. He is not obliged to enforce contracts specifically, or to furnish extraordinary aid for their execution. Looking at the uncertainty whether there ever was a delivery, viewing the nature of the consideration for the assignment, and its failure to a great extent, the lapse of time, and the negligence of S. Woods, jr., and his representatives, and contemplating the probable, if not certain loss of the two thousand acres of land in controversy, but for the exertions of Brown, under his contract with S. Woods, sr., we think this is a case where the chancellor ought not to interfere. Woods' heirs have obtained a receipt in full against the claim of their grandfather for support.

The interposition of the chancellor to enforce contracts specifically, should be regulated by a sound discretion.

In this transaction they seem to recognize the validity of the claim against them. They did this without paying a dollar, pending the suit, and long after their grand father had induced Brown to spend time and money endeavoring to secure the land in consequence of their contract. We mention this as an additional reason why the heirs of Woods should not be permitted, by occupying the place of their grand father, in respect to Crump, to get the land, and at the same time get clear of the charges incurred by Brown in securing the land, under the contract with the grand father. Upon the whole case, we are of opinion that the bill of the heirs of S. Woods, jr., should have been dismissed. The decree in their favor, is, therefore, reversed, and the cause remanded, so that the bill may be dismissed.

Bill against unknown heirs the omission to file an affidavit that the names of the heirs are unknown to complainant, is a fatal error. If the complainant, in a bill against unknown heirs omit to file an affidavit that the names of the heirs are unknown to him, his bill should be dismissed without prejudice.

In the case of Brown's bill against Crump's heirs, &c., the proper parties were not before the court. Brown omitted to file an affidavit that the names of the heirs of Crump were unknown to him. This is a fatal error. On that account his bill ought to have been dismissed without prejudice, and not absolutely. The decree in this case must, therefore, be reversed, and the cause remanded, with directions to dismiss the bill without prejudice. If Brown shall institute a new suit, the heirs of S. Woods, jr., now likewise the heirs of S. Woods, sr., will be proper parties, when, if it shall appear that there is any thing unreasonable in decreeing to him the title, it ought not to be done. But we can not anticipate the merits of this suit, if there should be one.

Brown must recover his costs in this court.

A re-hearing was granted in the above case, and the foregoing opinion suspended until the 26th of April, 1831, when the following additional opinion was delivered:

JUDGE UNDERWOOD, delivered the opinion of the court.
Additional opinion.
In this case a re-hearing was granted upon a single point; and that is, whether an order of publication certified by the Editors of a newspaper, as having been inserted two months, is valid. However this question may be decided, the original opinion must stand, because upon the merits of the claim of Woods' heirs, especially as against Brown, their bill ought to have been dismissed. As the above question is one of great practical consequence, we shall proceed to discuss it more at large than was done in the opinion under review.

Words, when printed and published, naturally suggest to the mind of the reader two ideas, relative to their production in the form exhibited: first, their author; second, the printer of them. The author is the person whose mind composed the words, sentences, and ideas, which have been impressed by printing upon paper, for the purpose of giving them publicity. The printer is the person whose mechanical skill has, (by means of the type, and printing press, &c.,) stamped upon the paper the words, sentences, and ideas of the author. There is an intermediate personage, often connected with the business of printing, who may not furnish, as the production of his mind, the words, sentences, and ideas, to be printed, and who may not set the type or work the press, but who superintends the correction of the proof sheet of the printer, and who in regard to the publication of a newspaper, selects the matter proper for publication. Such a person can not, with strict propriety, be denominated either author or printer; but as contradistinguished from these, he is properly called an editor. It is possible, that one man may perform the various duties of author, editor, and printer. But it is not generally done. The advantages resulting from the division of labor are such, that in the printing business, authors, editors, and printers, generally have their appropriate and separate departments to superintend. An editor may, and frequently does, furnish original matter for publication; but it is not indispensable to his character that he should do so. Now, our act of assembly regulating the manner of certifying orders of publication, against absent defendants, requires, "a certificate of the printer in whose paper the order shall have been published," &c. (I. Digest, 61). Such certificate from the printer, according to the letter of the act, is made evidence of the fact. Will the certificate of an editor prove the same fact? The language of the legislature requires something more than a certificate of the printer. If it did not, an apprentice, a journeyman, or even a slave, might, by his certificate, furnish the requisite proof, for all these might be printers, in the strict sense of the term.

The act only gives validity to the certificate of "the printer, in whose paper the order shall have been published;" and when the addition, by way of pointing out the particular printer intended, is considered, the law means most obviously, a printer having an interest, as owner of the paper in which the order is published. Printing is one of the most important trades conducted by men; and those who follow the business for a livelihood and set up printing establishments, and are responsible as owners, for the publications made, are those who, by the act of assembly, may give certificates entitled to credence. Being owners, if they employ authors to furnish original articles, editors to superintend, and journeymen to set the type and work the press, and thus, by means of the services of others, cause the business to be carried on, they may, with propriety, be denominated printer, although the manual and mental labor pertaining to the establishment may be performed by others. Such proprietor is a printer, in contemplation of the act of assembly, according to the maxim, qui facit per alium, facit per se.

The statute requires orders of publication against absent defendants, to be certified by "the printer in whose paper the order has been published."

And these proprietors of the newspapers authorized by law to insert chancery orders, are the proper persons to give the certificate required. The certificate should always show upon its face, that it was given by an authorized person. If this is not shown, the evidence of fact required by law is not furnished, and therefore, in all cases, it would be advisable for printers to commence their certificates, by styling themselves, pro forma, "printers and proprietors of the newspapers denominated the Kentuckian, &c."

Orders of publication must be certified by the printer and proprietor of the newspaper, in which they were published.

From the foregoing view of the subject, we are of opinion, that the certificate of an editor is no compliance with the act of assembly. He may have no interest whatever in the newspaper. He may be in the pay of the printer, and may not be responsible to the public, as the owner and proprietor would be. He is therefore not the person contemplated by the act of assembly. As the act designates another to furnish the evidence upon which the courts may rely for the truth; and as the rule is, that there must be a strict adherence to the letter of the law, in cases of constructive service of process, we have concluded to modify so much of the former opinion as tends to legitimate the certificates of editors. It belonged to the legislature to prescribe who should certify orders of publication; we disclaim the right to legalize any substitute. The case of Blight's heirs v. Banks, &c., referred to in the former opinion, induced us to regard the certificate of an editor as sufficient; but on re-consideration, as the point was not expressly decided in that case, we have become satisfied, that no latitude of construction should be indulged, and that we are bound to require, in all cases, the certificate of the printer in whose paper the order has been inserted.

Order of publication, certified by an editor, is insufficient.

Daveiss and Cunningham, for the plaintiffs.

NOTE. Chief Justice Robertson did not sit in this case.

Ky.App. 1831.

Brown v. Woods' and Crump's Heirs, Brown, &c. v. Wood's Heirs.

29 Ky. 11, 6 J.J.Marsh. 11, 1831 WL 2245 (Ky.)


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