[Ex parte Story.]

or equitable ground of defence by the refusal of the court to suffer him to file the supplemental answer and plea which he offered. The motion for the rule to show cause, is therefore refused.

On motion for a mandamus to the judge of the circuit court of the United States for the eastern district of Louisiana. On consideration of the motion made in this case by Mr. Crittenden, on a prior day of the present term of this Court, to wit: on Saturday the 17th day of February, A D. 1838, for a writ of mandamus in the nature of a writ of procede lo, to compel the judge of the circuit court of the United States for the eastern district of Louisiana, to sign the bill of exceptions tendered to him by the counsel for the appellee in this cause, and to permit the record of the case "to speak the truth," and of the arguments of counsel thereupon had as well in support of, as against the motion; it is now here ordered and adjudged by this Court, that the said motion be, and the same is hereby overruled.

ANDREW D. HEPBURN, PLAINTIFF IN ERROR V. JACOB DUBOIS, LESSEE OF OLIVER S. WOLCOTT.

The deed of a feme covert, conveying her interest in lands which she owns in fee, does not pass her interest, by the force of its execution and delivery, as in the common case of a deed by a person under no legal incapacity. In such cases, an acknowledgment gives no additional effect between the parties to the deed. It operates only as to third persons, under the provisions of recording and kindred laws. The law presumes a feme covert to act under the coercion of her husband; unless before a court of record, a judge, or some commissioner in England, by a separate acknowledgment, out of the presence of her husband, or, in these states, before some court, or judicial officer authorized to take and certify such acknowledgment, the contrary appears.

Where the evidence in a cause conduces to prove a fact in issue before a jury, if it is competent in law, a jury may infer any fact from such evidence, which the law authorizes a court to infer on a demurrer to evidence. After a verdict in favour of either party on the evidence, he has a right to demand of a court of error that they look to the evidence only for one purpose, with the single eye to ascertain whether it was competent in law to authorize the jury to find the facts which made out the right of the party, on a part or the whole of his case. If, in its judg ment, the appellate court shall hold that the evidence was competent, then they must found their judgment on all such facts as were legally inferrible therefrom; in the same manner, and with the same legal results as if they had been definitely set out in a special verdict. So, on the other hand, the finding of a jury on the whole evidence in a cause, must be taken as negativing all the facts in which the party against whom their verdict is given, has attempted to infer from, or establish from the evidence.

The decision of the Court in the case of Dubois' Lessee v. Hepburn, 10 Peters, 1, affirmed.

ERROR from the district court of the United States, for the western district of Pennsylvania.

This was an action of ejectment instituted by the defendant in error, for a tract of land situated in Lycoming county, Pennsylvania surveyed under a warrant to Joseph Fearon, and patented to him on the 19th September, 1796. The case was before the Court on a writ of error, prosecuted by the plaintiff in the ejectment, at January term, 1836, and is reported in 10 Peters, 1.

Joseph Fearon died seised and possessed of this tract of land, at Philadelphia, in April, 1810. His heirs and legal representatives were the children of his two brothers, Abel Fearon, and William Fearon; both Abel and William having died in the lifetime of Joseph VOL. XII.-2 X

[Hepburn v. Dubois.]

Fearon. The children of Abel Fearon were, Robert Fearon, of the city of Philadelphia, since deceased; Joseph Fearon, of Northumberland county, Pennsylvania; Sarah Fearon, since intermarried with Christopher Scarrow, residing at the time of the death of Joseph Fearon, in England; Elizabeth Fox, afterwards intermarried with Joseph Fox, then residing in England, and afterwards in Philadelphia. The children of William Fearon were, John Fearon, formerly residing in Centre county, Pennsylvania, since deceased;,William Fearon, also residing in Centre county; James Fearon, residing in Philadelphia; Sarah Fearon, intermarried with Robert Quay, residing in Lycoming county, Pennsylvania; and Nancy Fearon, intermarried with Samuel Brown, residing in Centre county, Pennsylvania. By deed of partition, dated the 12th and 26th days of March, 1825, William Fearon's heirs, made, on their part, partition of the real estate of Joseph Fearon, between the two branches of the family of Joseph Fearon; and by that deed, the tract of land for which this ejectment was brought, No. 5615, was allotted, inter alia, to the heirs of Abel Fearon. The deed of partition from the heirs of Abel Fearon, to the heirs of William Fearon, was executed on the 12th March, 1825, by Joseph Fearon, in person, and by Elizabeth Fearon, and Christopher Scarrow, and Sarah, his wife, by power of attorney to John Curwen, and John Wilson. The power of attorney was dated on the 11th day of February, 1811. The privy examination of Mrs. Scarrow to the power of attorney, was not taken. On the 13th November, 1827, a partition was made by the heirs of Abel Fearon, by which partition of the part of the estate of Joseph Fearon, conveyed to them by the heirs of William Fearon was made. The deed of partition was executed by Joseph Fearon, Jacob Fox, and Elizabeth Fox, in person, and by Christopher Scarrow and Sarah Scarrow, by their attorney, Nathaniel Nunnelly. The power of attorney to Nathaniel Nunnelly, was dated on the 25th June, 1828, without the privy examination of Mrs. Scarrow. This power of attorney was ratified and confirmed, with the privy examination of Sarah Scarrow, on the 8th September, 1832, by Christopher and Sarah Scarrow. The premises for which the ejectment was instituted, were, by these conveyances and confirmations, vested in Joseph Fox and wife; who, by deed of 16th April, 1830, conveyed the same to Benjamin E. Valentine; from whom they afterwards came, by regular conveyances, to the lessor of the plaintiff in the eject

ment.

[Hepburn v. Dubois.]

The plaintiff in error, the defendant in the district court, claimed the tract of land for which the ejectment was brought, under a sale of the same for county and road taxes for the year 1825, made under the laws of Pennsylvania, amounting, together, to one dollar and ninety-five cents. The county tax was assessed prior to the 1st of February, 1825; the road tax was assessed on the 29th April, 1825. On the 12th June, 1826, the tract No. 5615, was sold to the defendant for the sum of five dollars and fifty-two cents, the amount of the taxes and the costs; and on the 15th July, 1826, the same was conveyed by deed to the defendant, by Mr. Brown, 'treasurer of the county.

The plaintiff below, to overthrow the tax title of the defendant, gave in evidence an offer to redeem the property sold for taxes; which offer was made by Robert Quay, jr., acting for and under the directions of his father, Robert Quay, Esq., within two years after the sale for taxes. The treasurer of the county refused to receive the amount of the taxes from Robert Quay, jun., so representing his. father, Robert Quay, Esq., alleging that Robert Quay was not the owner of the land, and that by the law of Pennsylvania, no one but the owner or his authorized agent, could receive land sold for taxes. The cause was tried in October, 1836, and a verdict was given for the plaintiff, under the charge of the court.. The defendant excepted to the charge of the court, and prosecuted this writ of error.

On the trial of the cause in the district court, the counsel for the plaintiff in the ejectment requested the court to charge the jury:

1st. That the law authorizing the redemption of land sold for taxes, (viz. the law of Pennsylvania, passed the 3d of April, 1804, and its several supplements,) ought to receive a liberal and benign construction, in favour of those whose estate will be otherwise divested.

. 2d. That under the said law any person has a right to redeem unseated lands sold for taxes, by a payment of the tax, costs, and per centage, within the time named in the said acts.

3d. That any person having, or believing himself to have, an interest in the lands so sold, has a right to redeem the same within the time named in the said acts.

4th. That any person having the charge of such lands from the owner during his life, after his decease, intestate, and without a countermand of such charge, has a right to redeem such lands so sold,

[Hepburn v. Dubois.]

5th. That any person being a tenant in common of the land so sold, has a right to redeem.

6th. That the deed of partition, dated the 26th March, 1825, in evidence in this cause, did not take effect as a divestiture of the estate of Robert Quay and wife, in the land claimed in this ejectment, tract No. 5615; until the same was consummated by its ratification by Christopher Scarrow and wife, by their deed, on the 8th September, 1832: the said Robert Quay, in right of his wife, was a tenant in common of the said tract, No. 5615, and had a right, in May, 1828, to redeem the same from the sale for taxes.

7th. That the refusal of the treasurer to receive the redemptionmoney for lands so sold for taxes, is equivalent to, and dispenses with a tender of the same.

The court instructed the jury as requested in the plaintiff's first proposition. The instruction asked in the second proposition was refused. On the third proposition, the court said: Any person haying an interest in land so sold, has a right to redeem the same within the period named in the act; but a mere opinion, without right or having an interest, confers no power to redeem.

The court refused the instruction asked in the fourth proposition; and in answer to the fifth proposition, said: A tenancy in common, or any other interest in the land, legal or equitable, confers a right to redeem. The court gave the instruction asked in the sixth and seventh propositions.

The counsel for the defendant requested the court to instruct the jury as follows:

1st. That by the legal construction of the several letters of attorney, and the ratifications and confirmations thereof, and of the various deeds given in evidence in the trial of this cause, Robert Quay, at the period of the sale of this tract of land to A. D. Hepburn, and at the time the alleged offer to redeem was made; had, neither in law nor in equity, a right to the possession, enjoyment, or ownership, or a right of entry to the land in controversy; and could not make a legal offer to redeem, which would avoid the title of the defendant, unless he was the authorized agent of the owner.

2d. That the partitions of 1825, being executed by the duly authorized attorneys, in fact, of Christopher Scarrow and wife, and Elizabeth Fearon and Joseph Fearon, representatives of Abel Fearon, in conjunction with the heirs of William Fearon, and possession having