OF THE Supreme Court of the United States, AT OCTOBER TERM, 1874. 481*] *LOUIS GROSHOLZ, Christiana Grosholz, Charles F. Sauter, et al., Appts., บ. CAROLINE NEWMAN et al. (See S. C., 21 Wall., 481-488.) Homestead right in Texas-adverse possession -estoppel-pleadings in equity. Lots 7 and 8 are separated from lot 6 by an alley twenty feet wide. It appears from the evidence that lot six became the homestead of Gustavus and Catherine upon their purchase of and settlement on it in 1849 or 1850. Under the laws of Texas (Pasch. Dig. Sec. 1003, art. VII., Const. 1846), the homestead of a family, whether community or separable property of the wife or husband, can 1. In Texas, an objection to a deed, executed by not be alienated without the consent of the the husband alone without the wife, that it was void because the land therein described was a part of the grantor's homestead, cannot prevail unless it be made to appear that such lands were actually used, or manifestly intended to be used, as part of the home of the family. A secret intention of the seller, not made known, cannot affect a purchaser. 2. Adverse possession for ten years is not proved by showing possession from the summer of 1852 to the- day of 1862. 3. Defendants are not estopped from claiming under a deed to their grantor, because such grantor had accepted mortgages on the land to secure his debts, executed by his grantor. 4. A recovery in an equitable action must be had apon the case made by the pleadings or not at all. [No. 26.] Argued Oct. 16, 1874. Decided Nov. 2, 1874. PPEAL from the Circuit Court of the Unit Aed States for the Western District of Texas. The bill in this case was filed in the court below by the appellant as heir of Catherine Kirchburg, to cancel deeds of trust and for other relief. Gustavus and Catherine Kirchburg emigrated to Texas from Philadelphia in 1845 or 1846, and settled in Austin, on lot No. 6, in block 111 of said city, on which they erected a house, shop, etc., and used it as their homestead. On the 17th of December, 1850, Kirchburg bought lots 7 and 8, in the same block, from the State of Texas, but for some reason he neglected to cause a patent for the same to be is sued to him. On the 28th of November, 1851, Gustavus conveyed these two lots (7 and 8) to John Wahrenberger by a deed duly executed, and reciting a consideration of $150. The defendants claim under this deed by sundry mesne conveyances. NOTE.-Parol evidence admissible, to prove an adsolute deed a mortgage. Action to have deed declared a mortgage. Where deed is absolute, but is as between the parties a mortgage, a bona fide purchaser protected; but purchaser with notice stands in place of the equitable mortgagee see note to Conway v. Alexander, 3 L. ed. U. S. 321; and note to Hughes v. Edwards, 6 L. ed. U. S. 142. 21 WALL. w wife. Lots 7 and 8 remained unimproved by either Kirchburg or Wahrenberger until the summer of 1852, after the deed of Kirchburg to Wahrenberger. About that time Kirchburg built on lot No. 7 a building used by him for a kitchen, and about the same time another building was erected on lot No. 8, by one Siftgart for Kirchburg. On June 24, 1856, Gustavus and Catherine Krichburg executed a trust deed on all their interest in lots numbers 6, 7 and 8 to J. B. Costa, to secure a debt of $435 due Wahrenberger. On March 1, 1860, the above trust and debt being near barred by limitation, G. and C. Kirchburg executed a new deed of trust on lots 6, 7 and 8, to secure a note of $496.50 to Wah renberger, with which the former note was taken up. Gustavus died intestate in 1861, leaving no issue. Catherine also died intestate, without issue, in 1862. John Wahrenberger died in 1864, and Caroline, his widow, became his executrix. Upon the death of the Kirchburgs, Costa's power to sell under the trust deed expired, and the claim secured by said deed was duly established in the probate court and paid, thus releasing block 6 and such interest as Kirchburg's estate may have had in the building on lots 7 and 8, from any and all liens of Wahrenberger. On February 11, 1869, the patent from the State of Texas to lots 7 and 8 issued to the heirs of Gustavus Kirchburg. On May 16, 1870, the present bill was filed. On February 6, 1872, the cause was heard upon bill, answers, replication, proofs and exhibits, and decree entered in favor of the defendants. The complainants appealed to this court. Mr. Geo. W. Paschal, for appellants: The property was cast upon Catherine Kirchburg by the death of her husband. But the defendants say that because of the deed of the husband to Wahrenberger, nothing 471 OF THE Supreme Court of the United States, AT OCTOBER TERM, 1874. 481*] *LOUIS GROSHOLZ, Christiana Grosholz, Charles F. Sauter, et al., Appts., v. CAROLINE NEWMAN et al. (See S. C., 21 Wall., 481-488.) Homestead right in Texas-adverse possession -estoppel-pleadings in equity. 1. In Texas, an objection to a deed, executed by the husband alone without the wife, that it was void because the land therein described was a part of the grantor's homestead, cannot prevail unless it be made to appear that such lands were actually used, or manifestly intended to be used, as part of the home of the family. A secret intention of the seller, not made known, cannot affect a purchaser, 2. Adverse possession for ten years is not proved by showing possession from the summer of 1852 to the- day of, 1862. 3. Defendants are not estopped from claiming under a deed to their grantor, because such grantor had accepted mortgages on the land to secure his debts, executed by his grantor. 4. A recovery in an equitable action must be had apon the case made by the pleadings or not at all. [No. 26.] Lots 7 and 8 remained unimproved by either Kirchburg or Wahrenberger until the summer of 1852, after the deed of Kirchburg to Wahrenberger. About that time Kirchburg built on lot No. 7 a building used by him for a kitchen, and about the same time another building was erected on lot No. 8, by one Siftgart for Kirchburg. On June 24, 1856, Gustavus and Catherine Krichburg executed a trust deed on all their interest in lots numbers 6, 7 and 8 to J. B. Costa, to secure a debt of $435 due Wahrenberger. On March 1, 1860, the above trust and debt being near barred by limitation, G. and C. Kirchburg executed a new deed of trust on lots APPEAL from the Circuit Court of the unit 6, 7 and 8, to secure a note of $496.50 to Wah ed States for the Western District of Texas. The bill in this case was filed in the court below by the appellant as heir of Catherine Kirchburg, to cancel deeds of trust and for other relief. Gustavus and Catherine Kirchburg emigrated to Texas from Philadelphia in 1845 or 1846, and settled in Austin, on lot No. 6, in block 111 of said city, on which they erected a house, shop, etc., and used it as their homestead. On the 17th of December, 1850, Kirchburg bought lots 7 and 8, in the same block, from the State of Texas, but for some reason he neglected to cause a patent for the same to be is sued to him. On the 28th of November, 1851, Gustavus conveyed these two lots (7 and 8) to John and Wahrenberger by a deed duly execut. 1 reciting a considers**. ants claim und conveyanc " renberger, with which the former note was taken up. Gustavus died intestate in 1861, leaving no issue. Catherine also died intestate, without issue, in 1862. John Wahrenberger died in 1864, and Caroline, his widow, became his executrix. Upon the death of the Kirchburgs, Costa's power to sell under the trust deed expired, and the claim secured by said deed was duly established in the probate court and paid, thus releasing block 6 and such interest as Kirchburg's estate may have had in the building on lots 7 and 8, from any and all liens of Wahrenberger. On February 11, 1869, the patent from the State of Texas to lots 7 and 8 issued to the heirs of Gustavus Kirchburg. On May 16, 1870, the present bill was filed. On February 6, 1872, the cause was heard on bill, answers, replication, proofs and exts, and decree entered in favor of the delants. The complainants appealed to this rt. Geo. W. Paschal, for appellants: operty was cast upon Catherine Kirchdeath of her husband. fendants say that because of the usband to Wahrenberger, nothing descended; for that the property passed to Wahrenberger. If the property had not been in the homestead, as to the naked power of the husband to sell the community property, this may be admitted. But the property being the homestead of the family, this law is controlled by the Constitution and law governing the homestead. Chapter, Homestead, Vol. 2, Pasch. Dig. Decis., secs. 14537-14676. These sections give the statute, or organic law of Texas touching the homestead, and the Texas decisions thereon. Again; if the deed was valuable for any purpose, it gave the grantee the right of entry, and having neglected to make entry within ten years, he is forever barred. Pasch. Dig., art. 4621, n. 1030. Horton v. Crawford, 10 Tex., 388; Scott v. Rhea, 21 Tex., 711; Christy v. Alford; 17 How., 605, 15 L. ed., 258. Messrs. John Hancock, F. P. Cuppy and C. S. West, for appellees: The proof shows conclusively that lots 7 and 8 were no part of the homestead of Gustavus and Catherine Kirchburg when they were conveyed by the former to Wahrenberger, and that the property being community property and under the sole management of the husband, under the law of Texas. Pasch. Dig., art. 4641, 4642. The deed of Kirchburg to Wahrenberger is valid and binding, and conveyed a full and legal title to Wahrenberger. We do not suppose that it is necessary to dwell at any length upon the fact of the patent to lots 7 and 8 having issued in 1869 to the heirs of Kirchburg. By virtue of Kirchburg's deed to Wahrenberger, that patent inures to the benefit of his grantee and assignees. Gould v. West, 32 Tex., 338, and authorities there cited; Lamb v. Davenport, 18 Wall, 307, 21 L. ed., 759, opinion by Miller, J., U. S. Supreme Court, October Term, 1873, number 19. Mr. Chief Justice Waite delivered the opinion of the court: The first objection alleged against the deed which the complainants ask to have canceled is, that it was made for the purpose of conveying a part of the homestead of the Kirchburgs and, as such, was void because the wife did not join with the husband in its execution. It is admitted that the deed was good, if the lots described in it were not, in fact, a part of the homestead at the time of its execution. It rests upon the complainants, therefore, to prove that they were. To do this it must be made to appear that they were actually used, or manifestly intended to be used as part of the home of the family. This has not been done. The lots were purchased in 1850, but not occupied 487*] *until 1852. Then a small building was erected upon one of them, and it was thereafter occupied in connection with the family residence. This was after the deed was made and, of course, cannot control its operation. Mrs. Kirchburg, in a letter written to her sister in Pennsylvania, in June, 1850, says. "We have a lot on Main Street, in Austin, and will buy the adjoining one as a garden," but there is no proof that the intention of connecting this adjoining lot with the home was in any manner manifested in Austin until long after the deed in question was executed and delivered. A secret intention of the seller, not made known, cannot affect a purchaser. Unless the purchaser knew, or from the circumstances ought to have known, that the lots were a part of the homestead, he had the right to treat with and purchase from the husband without the concurrence of his wife. It is next alleged that the Kirchburgs occupied the premises adversely to the grantee for more than ten years after the execution of the deed, and that, therefore, the title under it has failed. The burden of proving this.allegation also rests upon the complainants. It is shown that the occupation of the Kirchburgs was continuous, and probably adverse, from the time of the building of the kitchen upon lot 7 until the death of Mrs. Kirchburg. The kitchen was built in the summer of 1852, and so far as appears from the testimony, the adverse occupation did not commence until then. To create the bar it must have continued until the summer of 1862. Mrs. Kirchburg died in that year, but there is nothing to show at what time in the year. It is several times stated in the bill that she died "on the day of 862," and the answer, as many times, admits the statement in the same language. No witness gives the exact date, but as several were examined by the complainants to show what relatives Mrs. Kirchburg had living in the spring of 1852, it is fair to presume that was the time of her death. But however this may be, as the complainants have failed to prove that she did not die before the summer [*488 of that year, this part of their case fails. It is next insisted in the bill, but not in the argument, that the defendants are estopped from setting up the deed in question by reason of the trust deeds to Costa, executed afterwards by the Kirchburgs at the request of Wahrenberger, to secure the debt due to him, and that, therefore, it should be canceled. This is in direct conflict with the uniform .current of decisions in this court, commencing with Blight v. Rochester, 7 Wheat, 535. and ending with Merryman v. Bourne, 9 Wall., 600, 19 L. ed., 686. It is next urged in the argument that the deed was given as a mortgage to secure a debt which has been paid. There is no allegation in the bill to support this claim. The recovery must be had upon the case made by the pleadings or not at all. It is unnecessary to consider the effect, under the laws of Texas, of the judgment in the aetion of trespass instituted by the complainants to try their title to the property. The decree of the Circuit Court is affirmed. UNITED STATES, Plff. in Err., v. HENRY BOECKER et al. (See S. C., 21 Wall., 652-659.) Bureties in distiller's bond-liability of. Where a distiller gave a bond with sureties, specifying the particular location in a town where he is error: tiori when there has been a substitution of one contract for another, the surety is not bound. Place is made an element in this contract by the law. Sixth, seventh and twelfth sections of Act of July 20, 1868, entitled "An Act Imposing Taxes on Distilled Spirits and Tobacco, and for Other Purposes." The condition of the bond shows that place is a necessary element in the contract. Surety discharged, where bill of exchange or note made payable at a particular place, and not presented as required. 3 Kent, Com., 97, 99; U. S. Bank v. Smith, 11 Wheat., 171. Distillery not allowed to be within six hundred feet of a rectifying establishment. Sec. 11, Act of July 20, 1868. Evident design to prevent fraud. Place is quite as material to the surety as it is to the Government. The laying of the place under a videlicit makes no difference. Here the distiller has never operated at the place mentioned in his bond. Nothing occurs to us to forbid the conclusion that the bond is as liable in such case as if Boecker had, for a short time, distilled at the corner of Hudson Street and East Avenue, and then had removed to the corner of Hudson and Third Streets. He might as well remove his location before actually operating as afterwards. Presumably the change was duly made after notice, etc.; but if not, that was a matter interesting to the Gov-C. L., 584. ernment alone. The claim of the United States upon the sureties is not to be measured by the laches of its officers in requiring notice or exacting penalties. We therefore conclude that the expression in the bond, to wit: "at the corner of Hudson Street and East Avenue, situated in the Town of Canton, County of Baltimore and State aforesaid," is to be read (under the light of the statute) with the addition, "or at any other place to which the same shall, in accordance with law, be transferred." Messrs. E. O. Hinkley, C. E. Phelps and John V. L. Findlay, for defendants in er ror: Proof showed that the distiller did not operate a distillery at that place but at some other. I. Variance fatal. Brickhead v. Saunders, 2 Har. & G., 83; Tucker v. State, 11 Md., 322; Covington v. Comstock, 14 Pet., 43; Sheehy v. Manderille, 7 Cranch, 208; Avery v. Lewis, 10 Vt., 332; Satchell v. Doram, 4 Ohio St., 542; Guest v. Caumont, 3 Camp., 235; Morgan v. Edward, 6 Taunt., 394; Hill v. Haskins, 8 Pick., 83; Harris v. Rayner, 8 Pick., 541. II. Contract of suretyship not to be extended by implication beyond the fair scope of its terms. No equity. No construction against sureties; they stand upon the letter of the bond. 2 Story, Cont., 870; Chit. Cont., 499; Miller v. Stewart, 9 Wheat., 681; Bell v. Bruen, 1 How.. 184; Myers v. U. S., 1 McLean, 495; Arlington v. Merricke, 2 Saund., 411; N. W. K. W. Co. v. Whinray, 10 Exch., 77; Barker v. Parker, 1 Tr., 287; State v. Medary, 17 Ohio, 554; Liverpool Water-works v. Harpley, 6 East, 507; Leadley v. Evans, 2 Bing., 32. So true is this, that it is immaterial whether the surety has been benefited or injured. The question is: has the contract been altered without his consent? His defense is, Non in hæc fœdera veni. Whitcher v. Hall, 5 Barn. & C., 275; Rees v. Berrington, 2 Ves., Jr., 542; Samuel v. Howarth, 3 Mer., 272; Campbell v. French, 6 Tr., 200. If this is the effect of an alteration, a for Grimwood v. Barrit, 6 T. R., 460; Nash v. Brown, 6 C. B., 584; Man., Gr. & S., 60; E. III. But from the alternative language of the bond, coupled with the proof, the transaction must be treated as a mere project on the part of the distiller to run a distillery, which he never carried out. Mr. Justice Swayne delivered the opinion of the court: This is a writ of error to the Circuit Court of the United States for the District of Maryland. The suit was upon a distiller's bond, wherein Boecker was principal and Schorr and Altevoght were his sureties. The bond was in the penal sum of $6,000, and conditioned that whereas, Boecker "Is now or intends on and after the 4th day of May, 1869, to be a distiller within the Second Collection District of the State of Maryland, to wit: at the corner of Hudson Street and East Avenue, situate in the Town of Canton, County of Baltimore and State aforesaid; now if the said Henry Boecker shall, in all respects, faithfully comply with all the provisions of law in relation to the duties of distiller," etc., "then this obligation to be void; otherwise it shall remain in full force." It was proved upon the trial that Boecker was largely indebted to the United States "for taxes assessed against him in respect to his business of distilling carried on by him at his distillery at the corner of Hudson and Third Streets in the Town of Canton for the months of May, June, July, August, *Septem- [*653 ber, October, November and December, in the year 1869, and that said taxes remained unpaid." It was further proved "That no distillery at any other place was carried on by said Boecker, nor was there any distillery at the corner of Hudson Street and East Avenue," and that the latter place was about four squares from the former. The defendants, Schorr and Altevoght, thereupon prayed the court to instruct the jury that if they "shall find from the evidence that no distillery was ever carried on by the said Boecker at the corner of Hudson Street and East Avenue," "They will find their verdict for the defendants, although they may find that said Boecker carried on a dis |