Larkin vs. The Bank of Montgomery. 9p 434 100 216 LARKIN US. THE BANK OF MONTGOMERY. 1. Vendee in possession, when sued for the purchase money, cannot resist a recovery, by shewing title in a third person. Error to the Circuit court of Macon. Assumpsit on a note, given for the purchase of land, tried before Pickens, J. Defendant below was in possession of the property, but resisted a recovery, on the ground, that the title was in another person, who had obtained the same by preemption, from the United States. The court charged, that there was no such failure of consideration, as would avail the defendant in this action. Verdict and judgment for plaintiff below. The charge of the court was assigned for error. Porter, for plaintiff in error. ORMOND, J.-The defence in this case, is, in substance, the assertion of a right to set up an outstanding title in a third person. This, the plaintiff in error, who is a purchaser from the trustees of the sixth section, cannot be allowed to do. By the purchase, he was let into the possession of the lot, and cannot, while he remains in possession, be permitted, when sued for the purchase money, to defend himself, on the ground that the vendor had not title to the premises. To enable him to do this, in a proper case, he must put the vendor in statu quo, by Reid vs. Owen, Martin et al. returning, or offering to return, the property. He cannot, by retaining possession obtained under, and by virtue of the sale, consider the contract as subsisting, and defend himself by showing a want of title. We have, therefore, considered it unnecessary to enquire into the effect of the patent offered in evidence, There was no error in the judgment of the court below, and it is affirmed. REID VS. OWEN, MARTIN et al. 1. Where the proceedings below are so informal and irregular, that the jurisdiction of the court cannot attach, the writ of error will be dismissed. Error to the County court of Dallas, Proceedings in admiralty. This is the same case which was before this court at its last term, when the writ of error was dismissed, because the plaintiff in error did not appear to have been a party to the judgment in the County court. After the dismissal of that writ, the plaintiff in error filed his petition in the County court, accompanied by an affidavit of his claim, praying to be admitted as a party to this suit. The judge of the County court, at a special term, held on the nineteenth of February, eighteen hundred and thirty-nine, on this petition, ordered that the plaintiff in error should be made a party to the proceedings of Reid vs. Owen, Martin et al. record, and should be considered as legally intervening for his interest in the steam-boat. No other proceedings were had on this petition, and Reid again sued out his writ of error. Stewart, for plaintiff in error, GOLDTHWAITE, J.-These proceedings are not in conformity with the opinion expressed, when this suit was formerly before this court. If it was necessary, to protect any supposed right of the plaintiff in error, for him to become a party to this suit, he should have filed his petition to the County court in term time, setting forth the nature of his claim, and shewing satisfactory reasons why it was not interposed previous to the decree. Notice should have been given to the adverse parties, or their proctors in court, in order that the claim might be contested. If the reasons for the delay were satisfactory, then the claim should have been admitted, on the payment of all costs incurred, and giving security for those which might subsequently arise, if the claim should not be sustained. The suit would then have assumed the character of a litis contestatio, and the facts of the libel could have been avoided or denied, or their legal sufficiency to warrant a decree examined into. In effect, the suit would then have stood precisely as if the claim had been interposed in the first instance, and no decree for default had been rendered, and after a final decree, either of the contesting parties could have examined it on writ of error or appeal. This course was sufficiently indicated in our former Reid vs. Owen, Martin et al, opinion, and was shewn to be the established course of proceeding, in admiralty cases. The fact of there being several distinct and independent decrees, in the present case, was also adverted to, and the writ of error seeking to remove them, would have been dismissed for that cause, as by the decree, the interests of the libellants became severed, and should have been appealed from, as several decrees. The proceedings are so informal and irregular, that the jurisdiction of this court cannot attach, for the want of a proper party, and the writ of error must be dismissed, REED VS. BRASHER. 1. The County court has jurisdiction of the estate of a deceased Indian of the Creek tribe, and a grant of administration on such an estate is valid. Error to the Circuit court of Shelby. Case for the conversion of a slave, tried before Chapman, J. Plaintiff brought his action against defendant to recover a slave, which defendant claimed as administrator of the estate of Samuel Hawkins, deceased. The letters of administration were received in evidence, but objected to by plaintiff, as Hawkins was an Indian of the Creek tribe, Verdict and judgment for defendant. The error assigned, was the admission of the letters testamentary in evidence. Clark, for plaintiff in error. COLLIER, C. J.-The bill of exceptions presents several questions which were not noticed in the argument, and as they do not, in our opinion, show the judgment of the Circuit court to be erroneous, we do not feel called on to examine them more particularly. The only point made by the plaintiff in error, is, that the grant of administration to the defendant, Thomas H. Brasher, by the judge of the County court of Shelby, was void, because Samuel Hawkins, the intestate, was an In |