The Opinion of the Court was delivered by
Treat, C. J.
This was an action of debt, brought by Alexander Sargeant against Sherman and George W. Kellogg. The declaration was on a promissory note for $770, made by the defendants to John Sargeant on the 20th of October, 1837, payable in one year, credited with $220, paid on the 25th of October, 1837, and assigned by the payee to the plaintiff on the 7th of February, 1838.
The defendants pleaded nil debet, and gave notice of set-off ; first, that the note was assigned after it became due, and that the payee was indebted to them in the sum of one thousand dollars, for money had and received, and for money paid ; and second, that the note was assigned after it became due, and that the payee, at the date thereof, sold the defendants a claim on Government land for the sum of $1500, $730 of which was then paid, and the note given for the payment of the residue ; that to a part of the claim, the part unimproved, of the value of $1000, the payee at the time fraudulently represented that he had a good title and right of possession, except as against the United States; whereas, in fact, he had no title, claim, or right of possession whatever.
On the trial, the plaintiff read in evidence the note and indorsements without objection. The defendants introduced evidence tending to show that the note was assigned after it became due. They then offered in evidence an agreement under seal, between John Sargeant of the first part, and themselves of the second part, bearing date the 20th of October, 1837, and declaring, “that the said party of the first part has this day sold and quitclaimed and set over unto the said party of the second part, all right, title, interest, and claim, which I may have, either in law or equity, to the claim of land hereinafter described and bounded, for and in consideration of the sum of fifteen hundred dollars, payable as follows, to wit: six hundred and fifty dollars in money to me in hand paid, and one gray mare, for which I acknowledge the receipt of eighty dollars, which is received and paid for the unimproved ,part of the claim of land bounded as follows, to wit: On the southwest by Fox River, and by John Pierce’s claim on the south, running west one mile, thence running north about one hundred rods; thence running parallel with Gorton’s claim back to the river to the place of beginning supposed to contain about two hundred acres, be the same more or less : also a timber lot formerly owned by Wm. Wilson, and bounded as follows, to wit: situate on the east side of Fox River, nearly opposite Gorton’s flouring-mill, beginning at a small burr oak tree and running on Wm. Wilson’s old line, supposed to be an east course, to a forked hickory tree adjoining Daniel Pierce’s, thence a south course to a white oak tree marked, and thence running a west course to a white oak stump and a red oak stump on the bank of Fox River, opposite Gorton’s mills, except three acres of said timber running on the bank of said river, both of which claims are situate in"Kane county, and State aforesaid, and the further sum of seven hundred and seventy dollars, which the party of the second part have this day given their note, payable one year from date, for the improvements on the claim aforesaid.”
The plaintiff objected generally to the introduction of the agreement, but the Court overruled the objection, and permitted it to be read in evidence.
The defendants then offered evidence tending to show • that, at the date of the agreement, John Sargeant represented to them that he was the owner of a settler’s claim to the whole of the tract first mentioned in the agreement, and that the representations were falsely and'fraudulently made ; that one Pierce had at the time a settler’s claim to about one hundred acres thereof, worth six or seven hundred dollars ; and that he, at the time of the assignment, stated that he assigned the note, and ante-dated the assignment, for the purpose of avoiding any defence. This evidence was admitted against the objections of the plaintiff.
The plaintiff asked the Court to instruct the jury: “That in order to constitute a valid legal claim of Pierce to cover part of the claim of Sargeant, it must have been plainly marked by artificial marks on all sides thereof, so that it could be designated.” The Court refused the instruction, and in lieu thereof gave the following : “That a natural boundary, as a river, or other natural object, which, in the opinion of the jury, would sufficiently designate the said tract from the adjacent land, would be sufficient.” The jury found for the defendants.
The several decisions of the Court in admitting evidence, and in giving and refusing instructions, are assigned for error.
The bill of exceptions does not purport to contain all of the evidence introduced on the trial, but enough of the case is reported to show clearly that the jury was authorized to find that the note was assigned after it became due, and that the payee, at the time of the assignment, was indebted to the makers for money had and received, on a consideration that had failed in an amount equal to the balance then due on the note.
The possessory claims of settlers on the public lands have been recognized as valid, and the proper subject matter of sale and transfer, by various statutes of this State, and the repeated decisions of this Court. Acts of 1831, p. 82; Acts of 1836-7, p. 154; Acts of 1838-9, p. 124; Rev. Stat. ch. 61; Turney v. Saunders, 4 Scam. 527; French v. Carr, 2 Gilm. 664; Switzer v. Skiles, 3 do. 529. It is but fair to conclude from the evidence that the defendants, in parting with their money, relied on the representations of Sargeant, and believed they were acquiring a valid claim to the land, such a claim as the laws recognized, and the. Courts would enforce against all but the United States and its grantee. If the representations were untrue, and they in fact acquired no right by the purchase, an action accrued to them to recover back the amount advanced, as so much money paid on a consideration that had failed. The chief question is, whether this demand could be set-off in the action on the note. Where a note is assigned after maturity, the maker is permitted to interpose the same defence against the assignee, which he might make in an action brought in the name of the payee. Rev. Stat. ch. 73, § 8. Under our statute, unliquidated damages arising out of contracts, express or implied, may be set off in actions ex contractu. Edwards v. Todd, 1 Scam. 462; Nichols v. Ruckels, 3 do. 298; Kaskaskia Bridge Co. v. Shannon, 1 Gilm. 15. This, however, cannot be done, where the claim for unliquidated damages is totally disconnected with the plaintiff’s cause of action. Hawks v. Lands, 3 Gilm. 227. The demand here interposed by way of set-off, arose out of contract, a contract implied in law to refund the amount advanced by the defendants, in the event they did not obtain that for which they parted with the money. It is true, they might have sued the seller in case for deceit in thé sale ; but they had the right to waive the tort, and sue in debt, or assumpsit for so much money had and received by him to their use, which in equity and good conscience he ought not to retain. Nor is the demand, as in the case of Hawks v. Lands, of a matter wholly disconnected with the plaintiff’s cause of action. It had its origin in the same transaction.
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The Opinion of the Court was delivered by
Treat, C. J.
This was an action of debt, brought by Alexander Sargeant against Sherman and George W. Kellogg. The declaration was on a promissory note for $770, made by the defendants to John Sargeant on the 20th of October, 1837, payable in one year, credited with $220, paid on the 25th of October, 1837, and assigned by the payee to the plaintiff on the 7th of February, 1838.
The defendants pleaded nil debet, and gave notice of set-off ; first, that the note was assigned after it became due, and that the payee was indebted to them in the sum of one thousand dollars, for money had and received, and for money paid ; and second, that the note was assigned after it became due, and that the payee, at the date thereof, sold the defendants a claim on Government land for the sum of $1500, $730 of which was then paid, and the note given for the payment of the residue ; that to a part of the claim, the part unimproved, of the value of $1000, the payee at the time fraudulently represented that he had a good title and right of possession, except as against the United States; whereas, in fact, he had no title, claim, or right of possession whatever.
On the trial, the plaintiff read in evidence the note and indorsements without objection. The defendants introduced evidence tending to show that the note was assigned after it became due. They then offered in evidence an agreement under seal, between John Sargeant of the first part, and themselves of the second part, bearing date the 20th of October, 1837, and declaring, “that the said party of the first part has this day sold and quitclaimed and set over unto the said party of the second part, all right, title, interest, and claim, which I may have, either in law or equity, to the claim of land hereinafter described and bounded, for and in consideration of the sum of fifteen hundred dollars, payable as follows, to wit: six hundred and fifty dollars in money to me in hand paid, and one gray mare, for which I acknowledge the receipt of eighty dollars, which is received and paid for the unimproved ,part of the claim of land bounded as follows, to wit: On the southwest by Fox River, and by John Pierce’s claim on the south, running west one mile, thence running north about one hundred rods; thence running parallel with Gorton’s claim back to the river to the place of beginning supposed to contain about two hundred acres, be the same more or less : also a timber lot formerly owned by Wm. Wilson, and bounded as follows, to wit: situate on the east side of Fox River, nearly opposite Gorton’s flouring-mill, beginning at a small burr oak tree and running on Wm. Wilson’s old line, supposed to be an east course, to a forked hickory tree adjoining Daniel Pierce’s, thence a south course to a white oak tree marked, and thence running a west course to a white oak stump and a red oak stump on the bank of Fox River, opposite Gorton’s mills, except three acres of said timber running on the bank of said river, both of which claims are situate in"Kane county, and State aforesaid, and the further sum of seven hundred and seventy dollars, which the party of the second part have this day given their note, payable one year from date, for the improvements on the claim aforesaid.”
The plaintiff objected generally to the introduction of the agreement, but the Court overruled the objection, and permitted it to be read in evidence.
The defendants then offered evidence tending to show • that, at the date of the agreement, John Sargeant represented to them that he was the owner of a settler’s claim to the whole of the tract first mentioned in the agreement, and that the representations were falsely and'fraudulently made ; that one Pierce had at the time a settler’s claim to about one hundred acres thereof, worth six or seven hundred dollars ; and that he, at the time of the assignment, stated that he assigned the note, and ante-dated the assignment, for the purpose of avoiding any defence. This evidence was admitted against the objections of the plaintiff.
The plaintiff asked the Court to instruct the jury: “That in order to constitute a valid legal claim of Pierce to cover part of the claim of Sargeant, it must have been plainly marked by artificial marks on all sides thereof, so that it could be designated.” The Court refused the instruction, and in lieu thereof gave the following : “That a natural boundary, as a river, or other natural object, which, in the opinion of the jury, would sufficiently designate the said tract from the adjacent land, would be sufficient.” The jury found for the defendants.
The several decisions of the Court in admitting evidence, and in giving and refusing instructions, are assigned for error.
The bill of exceptions does not purport to contain all of the evidence introduced on the trial, but enough of the case is reported to show clearly that the jury was authorized to find that the note was assigned after it became due, and that the payee, at the time of the assignment, was indebted to the makers for money had and received, on a consideration that had failed in an amount equal to the balance then due on the note.
The possessory claims of settlers on the public lands have been recognized as valid, and the proper subject matter of sale and transfer, by various statutes of this State, and the repeated decisions of this Court. Acts of 1831, p. 82; Acts of 1836-7, p. 154; Acts of 1838-9, p. 124; Rev. Stat. ch. 61; Turney v. Saunders, 4 Scam. 527; French v. Carr, 2 Gilm. 664; Switzer v. Skiles, 3 do. 529. It is but fair to conclude from the evidence that the defendants, in parting with their money, relied on the representations of Sargeant, and believed they were acquiring a valid claim to the land, such a claim as the laws recognized, and the. Courts would enforce against all but the United States and its grantee. If the representations were untrue, and they in fact acquired no right by the purchase, an action accrued to them to recover back the amount advanced, as so much money paid on a consideration that had failed. The chief question is, whether this demand could be set-off in the action on the note. Where a note is assigned after maturity, the maker is permitted to interpose the same defence against the assignee, which he might make in an action brought in the name of the payee. Rev. Stat. ch. 73, § 8. Under our statute, unliquidated damages arising out of contracts, express or implied, may be set off in actions ex contractu. Edwards v. Todd, 1 Scam. 462; Nichols v. Ruckels, 3 do. 298; Kaskaskia Bridge Co. v. Shannon, 1 Gilm. 15. This, however, cannot be done, where the claim for unliquidated damages is totally disconnected with the plaintiff’s cause of action. Hawks v. Lands, 3 Gilm. 227. The demand here interposed by way of set-off, arose out of contract, a contract implied in law to refund the amount advanced by the defendants, in the event they did not obtain that for which they parted with the money. It is true, they might have sued the seller in case for deceit in thé sale ; but they had the right to waive the tort, and sue in debt, or assumpsit for so much money had and received by him to their use, which in equity and good conscience he ought not to retain. Nor is the demand, as in the case of Hawks v. Lands, of a matter wholly disconnected with the plaintiff’s cause of action. It had its origin in the same transaction. The payment of the money and the giving of the note were in part execution of the same contract, the whole relating to the land and the improvements thereon. In the opinion of the Court, this demand was the proper subject matter of set-off to the extent of the amount due on the note. Of course, the defendants could not in this action recover any balance due them from the payee. They could only prevent the assignee who received the note subject to all of the defences existing against it in the hands of the payee, from recovering a judgment, when, in point of fact, the payee was indebted to them.
The agreement was properly admitted in evidence. It was a part of the transaction out of which the note and set-off arose. The general objection to its introduction must be understood as only raising the question of the relevancy of the agreement as evidence. If objected to because the preliminary proof of its execution was not made, that special obj ection should have been taken. Where various objections may be made to evidence, some of which may be removed by other proof, the party making the objection ought to point out specifically those he insists on, and thereby put the adverse party on his guard, and afford him an opportunity to obviate them. He ought not to be permitted, after interposing a general objection, to insist on particular objections in this Court, which, if even suggested in the Court below, might have been instantly removed. A due regard to the character of the Courts and the rights of suitors will not for a moment tolerate such a practice.
To constitute a valid claim to nnsurveyed public lands, the claim must “be so plainly marked and designated, as to be distinguished from adjacent lands.” Rev. Stat. Ch. 61, § 4. The object of this requisition is to notify the public what lands are located, so that all conflicting claims among settlers may be avoided. The claim is to be so designated by the owner as that its precise locality and extent may be ascertained. When this can be readily done, the whole design of the provision is accomplished. Natural objects may be us'ed where they fully answer the purpose. A claim, so marked on three sides as to point the inquirer directly to a river or other natural object as the boundary on the other side, might be as easily ascertained and defined, as a claim in the open prairie entirely surrounded by a furrow, or a claim in the timber indicated by marked trees the entire extent of the line. The instruction thus asked for, goes the length of invalidating every claim not artificially marked on all sides, whether such marks are necessary to distinguish it from the adjacent lands or not. The instruction given by the Court in its stead, we think, asserts the more reasonable rule.
The judgment of the Circuit Court is affirmed with costs.
Judgment affirmed.