The principal question involved in this contention is, whether or not James L. McClurg at the date of the mortgage, was seized of an estate or interest in the land therein described. The solution of this question depends on the proper construction of the agree ment of September 28, 1867, between Adam McClurg and Jacob Stambaugh and his associates.

Confessedly, James L. McClurg, at the date of the mortgage to Darius, had no interest in the land therein described, unless it was an interest in the coal in place. If he had such interest, it was under the will of his father, Adam McClurg; and whether his father had any interest in the coal as land, which could pass to his devisee, depends upon the legal effect to be given to the instrument of September 28, 1867.

That coal in place may be granted and conveyed as land, separate and apart from that which over-lies or under-lies it, is not disputed. This brings us to the exact question in the case-what was the intention of the parties as gathered from the whole instrument of September 28, 1867. The granting clause is as follows:

That in consideration of one dollar paid by said second to said first party, and also of the covenants and agreements of the second party, to be performed as hereinafter stipufated, the said first party has agreed to sell, and does hereby give, grant, bargain, sell and convey unto the said second party their heirs and assigns the following described stone coal, mining rights and privileges, to wit: All the stone coal lying and being in, under and upon the following lands, to wit:"

That this language was sufficient to transfer a fee simple estate in the coal, is too plain to admit of discussion. The intention of the parties to transfer a fee simple estate in the coal, must be found from this language, unless we find in other parts of the instrument a contrary intention expressed in words equally plain and unequivocal.

We do not find in the instrument any other language which, by fair and reasonable interpretation, is not entirely consistent with the intention so clearly expressed by the terms above quoted, except in the last paragraph, which reads as follows: "It is mutually understood and agreed that said second party, their heirs and assigns shall have the right to abandon this contract and yield up said coal mine and privileges at any time they shall determine in their judgment that said coal is, in quantity, quality or condition, no longer minable with economy and profit, and when this contract shall be ended, for any reason, said second party, their heirs or assigns, shall have the right to remove their machinery

and other structures and property from said land."

The exact import or legal effect of this language is not clear. The defendant in error claims that, when construed in connection with other parts of the instrument, it shows the intention of the parties to have been to make a lease of the coal, or to grant a license to enter and mine, either of which would be inconsistent with the intent to convey a fee. To this it may be answered, that the subject matter of the contract was land-coal in place. It is very clear that the parties intended that the coal should be mined by the grantees and thus converted into personalty and disposed of by them. The coal was not to revert to the grantor. Nothing was to be returned to him except the consideration to be paid for the thing granted. Such is not the nature of a contract of lease. It was a sale of the coal for a consideration. True, a license was granted to enter on the lands of the grantor to mine and remove the coal conveyed-the coal of the grantees, not of the grantor.

On the other hand, we think, effect can be given to the terms of the grant, and also to the stipulations of the contract last quoted.

With regard to the stipulations, it may be said, with much show of reason, that the parties thereby intended to save and except from the grant such coal as could not, with economy, be mined with profit. If this be not the true interpretation, then we think, the right reserved to the grantees to abandon the contract, when they may determine, in their judgment, no more coal remains in the premises, which, with economy, may be mined with profit, must be construed as a condition upon the happening of which, the estate granted is determined, and the unminable coal revert to the grantor, his heirs, assigns or devisees.

This right to abandon the contract does not rest in the mere will and pleasure of the grantees, their heirs or assigns, but upon their judgment exercised in good faith. Cook v. Andrews, 36 Ohio St. 174. So that, upon either interpretation, all minable coal, or, at least all that was minable in the judgment of Stambaugh and his associates and their heirs and assigns, passed absolutely, as land, from Adam McClurg to the grantees named in the deed of September 28, 1867.

This being so, it follows that no estate or interest passed by the will of Adam McClurg to James L. McClurg in the coal as land, which had been previously conveyed by the deed from Adam McClurg to Stambaugh and his associates; and, of course, the mortgage from James to Darius did not create a lien on property not owned by the mortgagor, True, at the date of this mortgage, James had an interest in all the moneys due and to become

due from the Vienna Coal and Iron Company; but as the mortgage was upon real estate alone, it did not cover the interest of James in such moneys; and, were it true, that James intended to pledge his interest in these moneys to Darius, the trustees of Rayen School are not affected thereby, for the reason that they loaned money upon the faith of this security without actual knowledge of such intention, and the mortgage was not constructive notice thereof.

This is not a case for the application of the doctrine, that a mortgagee, after condition broken, may demand the rents from a lessee of the mortgaged premises. The Vienna Coal and Iron Company is not lessee of any part of the premises mortgaged by James L. to Darius M. McClurg. The moneys due and to become due from the company under the deed of September 28, 1867, are not rents, but purchase money.

The conclusion to which we have arrived is fully sustained by the case of Manning v. Frazier, 96 Ill. 279.

In Caldwell v. Fulton, 31 Pa. St. 475, the court went much further and held that by a deed in which there were no words importing a grant of the fee, but which gave absolute dominion over the stone coal in certain lands to the grantee, who agreed to pay a certain and fixed sum in solido a conveyance of the coal in place passed absolutely.

Without referring to other cases, I will merely add that I know of no case where, upon similar facts, a different conclusion was reached.

Judgment reversed.

an entire thing, and being an entirety it has been repeatedly held that it could not be affirmed as to one or more defendants and reversed as to others. It must either be affirmed as a whole or reversed as a whole. Culling v. Williams, 1 Salk. 24; Parker v. Harris, 1 Ld. Rayd. 835; Lloyd v. Pearse, Coke Jac. 25; 2 Saunds. 101; 2 Bac. Abr. 228, marg.

Thus, in an action of trespass against two or more defendants, if one of them died pending the suit and judgment was rendered against all, it was decided that the entire judgment must be reversed; and for that reason, that being an entirety, it could not be affirmed in part and reversed in part. 2 Bac. Abr., Letter E, 228.

But conceding this to be the case where a judgment is affirmed or reversed on appeal, or on a writ of error, the argument is that the rule does not apply to a suit brought upon a foreign judgment recovered against two or more defendants, only one of whom is summoned, and which judgment has been permitted to stand unreversed and unchallenged. In such a case the appellant contends that the judgment is valid, and may be enforced against the party summoned in the original action, though void as to the parties against whom no process was issued. Now in determining this question we must not lose sight of this distinction between void and voidable judgments. A judgment rendered by a court having jurisdiction over the subject-matter and the person, is unquestionably conclusive and binding on the parties, unless reversed or set aside in some mode or manner prescribed by law. But it is essential to the va

HANLEY v. DONOGHUE.

(Maryland Court of Appeals. October 1882.) JUDGMENT-Void as to Part of Defendants Void as to All. When a judgment of one state is void in another state and it is admitted to be void as to some of the defendants, no recovery can be had as to the rest. The judgment is an entirety and cannot be reversed. ROBINSON, J.

It appears from the pleadings in this case that suit was brought in Pennsylvania against Charles and John Donoghue on a joint contract; that Charles was regularly summoned, but no process of any kind was issued against John, nor did he appear in person or by attorney to the suit. Judgment, however, was subsequently recovered against both defendants, and on this judgment suit is brought in this state against Charles. In support of this action it is contended that the foreign judgment, although void as to John, is valid and binding on Charles, the party who was summoned.

At common law, judgment was regarded as

court should have jurisdiction over the parties, and, if rendered without such jurisdiction, it is a mere nullity. Such a judgment is not merely erroneous because of some irregularity in the mode or proceeding, or error on the part of the court in the application of the law to the particular case, and which the party aggrieved must seek a remedy by appeal or writ of error; but being a judgment rendered without jurisdiction it is absolutely void, and may be assailed at all times and in all proceedings by which it is sought to be enforced.

If, then, a judgment could not at common law be affirmed in part and reversed in part, because of its entirety, for the same reason if a suit is brought in this state on a foreign judgment, which is admitted to be void as to one of the defendants, such a judgment must be held to be void as to all. The reason of the law is that the judgment is an entire thing and can not be separated into parts. If execution is issued on such a judgment it must be issued against all the defendants.

The question now before us was fully con

sidered in Hall v. Williams, 6 Pick. 232, where a suit was brought in Massachusetts on a judgment recovered in Georgia against two defendants, and it appeared from the record that one of the defendants had never been summoned, and had never appeared in person or by attorney to the suit brought against him in Georgia, and it was held (Parker, C. Jr., delivering the opinion of the court), that the judgment being entire, if it was a nullity with respect to one, it was a nullity also as to the other defendant. In the still later case of Wright v. Andrews, decided in 1881, 130 Mass. 150, the question was again argued before the court, and the decision in 6Pick. was approved, Gray, C. J., saying, that if the "court had no jurisdiction of one defendant, its judgment being entire and unqualified, is, in the absence of any evidence of the law of Maine upon the subject, void against both." These decisions have been followed by the courts of Maine, New Hampshire and other states. 45 Maine, 183; 11 N. H. 290; 1 Abbot U. S. C. R. 302. In Motteux v. St. Aubin, 2 W. Black. 1133; Ashlin v. Laregton, 4 Moore & S. 719; Gerard v. Basse, 1 Dall. 119; Silvus v. Reynolds, 2 Harr. (N. J.) 275.

Courts have permitted judgments on motion, some of them in the exercise of a quasi-equitable jurisdiction, to be set aside as to one defendant and to stand as to others. And in some states it has been decided that a judgment may be valid as to one defendant and void as to others. Douglass v. Massie, 16 Ohio 271. The weight of authority is, we think, decidedly the other way, and in accord with the law as laid down in Hall v. Wiliams, 6 Pick. Looking at the question from an equitable stand-point purely, there is some force in the appellant's contention, that a judgment may and ought to be held valid as to parties summoned, and who had an opportunity to make their defenses, even though it may be void as to others against whom no process was issued. But if it be well settled, and such seems to be the law, that a judgment which is void as to one of the defendants is void also as to the other, the plaintiff, in taking such a judgment, has no one to blame but himself. In bringing suit against two parties on a joint contract, it was his duty to have directed process to be issued against both, and if he failed to do so, and subsequently took a judgment against one of the defendants who never had been summoned, he has no right to complain, because the law will not enforce the payment of such a judgment. For these reasons the demurrer to the second and third counts were properly sustained.

The first count sets forth a judgment regularly recovered against both defendants; the suit is brought, however, against one only, and

without any suggestion of the death of the other. Both were jointly and severally liable on the judgment, and both ought to have been sued, or some reason alleged why the other was not joined in the action. Merrick v. Bank Metropolis, 8 Gill, 14; Kent v. Holliday, 17 Md. 293; State v. Magraw, 12 G. & J. 265. This was decided in Prather v. Munroe, 11 G. & J. 261, where, upon a judgment against two defendants, scire facias was issued against the terre-tenants of one of the defendants only, without suggesting the death of the other, and upon demurrer this defect was held fatal.

Finding no error in the ruling below, the judgment will be affirmed.

MUSICK V. DODSON.

(Missouri Supreme Court. March, 5.1883.) HUSBAND AND WIFE-Husband's Liability for Wife's Ante-Nuptial Debts-Counsel Fees in Former Divorce Proceedings. A husband is not liable for the fee which his wife promised to pay her attorney for obtaining for her a divorce from her former husband, notwithstanding she renewed her promise to pay after her divorce was granted, and before her second marriage. Her first promise was made before her divorce was granted and while she was a married woman, and was in consequence void, and her second promise, though made while she was a feme sole, was based on a mere moral obligation, which cannot be enforced without some previous legal liability to support it.

Appeal from Adair Circuit Court..
SHERWOOD, C. J.,

Action before a justice of the peace, based on the following statement: Plaintiff states that he is an attorney at law, duly licensed according to law; that heretofore, to wit, on the day 1877, one Louisa Allen employed plaintiff to bring and prosecute an action for divorce from her then husband, James Allen; that the cause of said divorce was that she had been deserted by her husband for more than three years before the bringing of this suit for divorce, or contracting with plaintiff to bring said suit for divorce, and that plaintiff did bring said suit, and did successfully prosecute the same, and she was divorced from her said husband; that plaintiff's services therein were reasonably worth twenty-five dollars, which amount she agreed to pay plaintiff before and after the divorce was granted, but which is due and unpaid; that afterwards, on the day of

1878, defendant, Thomas Dodson, was duly and legally married with said Louisa Allen, and is now her husband; wherefore plaintiff prays judgment against said Thomas Dodson for said sum of twenty-five dollars and costs."

A married woman is wholly incapable of making any contract whatever which will bind her personally, or create_against_her a personal debt or obligation. Bauer v. Bauer

40 Mo. 61; Higgins v. Pettzer, 49 Mo. 252. And it has been expressly decided that a married woman's promise to pay her attorney his fee for obtaining a divorce for her would not be binding upon her. Whipple v. Giles, 55 N. H. 139, s. c., 2 Cent L. J. 484. This being the case, the engagement made with plaintiff by Mrs. Dodson, now wife of defendant, then wife of James Allen, to pay plaintiff as an attorney a certain sum for obtaining a divorce from her former husband, Allen, can not be regarded as the debt of the wife of Allen, and if not a personal debt of hers, then, according to plaintiff's own position, the defendant could not be held legally liable for any thing less than the debt of his wife contracted anterior to his marriage with her; and if Mrs. Allen could not, during the existence of the marital relations with her husband, bind herself personally, then, as a matter of course, there could not be any consideration for the promise made by Mrs. Allen after the divorce was obtained to pay for such services, so the subsequent promise would be a nudum pactum and of no binding obligation or debt creating force. The case of Wilson v. Burr, 25 Wend. 386, gives support to plaintiff's position, that a moral obligation on the part of a feme covert is sufficient to uphold her promise made after the removal of her disability. That case is based on Lee v. Muggeridge, 5 Taunt. 36, which, Mr. Parsons says, "is not law." 1 Parsons on Cont.455. It was subsequently abridged. and modified in Middlefield v. Shee, 2 B. & Ad. 811, and denied in Eastwood v. Kenyon, 11 Ad. &. El. 438. Denman, C, J.: " It it said by Mr. Story that when contracts are merely voidable and not void in their inception, they may be revived by a subsequent promise, provided they were originally founded upon an express or implied request by the party benefited. But where the contract is void ab initio, it is not capable of ratification. Thus, where a married woman gave a promissory note, and after her husband's death promised, in consideration of the forbearance of the payee to pay it, it was held that the note was absolutely void, and that forbearance where there was no other cause of action originally, it is not a sufficient consideration to raise a

promise, * * * so also when certain goods were supplied to a feme covert living apart from her husband, and for which, after his death, she promised to pay, it was held that the subsequent promise was void, because the goods. being supplied during the life of her husband, the price constituted a debt from him and not from her." 1 Story on Cont., sec 593, and cases cited.

Mr. Baron Parke said a mere moral consideration is nothing." Jennings v. Brown, 9 M. & W. 501. Chancellor Kent says that the

weight of authority is opposed to the view, that a "mere moral obligation is of itself a sufficient consideration for a promise, except in those cases in which a prior legal obligation or consideration had once existed." 2 Kent, 465. The doctrine of the case of Wilson v. Burr, 25 Weni. 386, was departed from in the subsequent cases of Watkins v. Halstead, 2 Sandf. 311. Smith v. Allen, 1 Lans. 101. Geer v. Archer, 2 Barb. 224, where that doctrine is repudiated; and before that case was adjudicated a different view of the law had been taken in Ehle v. Judson, 24 Wend. 97, and Smith v. Ware, 13 Johns. 257, which cases were not noticed in that on which plaintiff relies.

The view we have expressed touching the point on hand are also supported by Mills v. Waymen, 3. Pick. 207, where the subject of the sufficiency of a mere moral obligation as the basis for a subsequent promise is very clearly and elaborately discussed, and also by numerous other cases cited in the text-books from which we have quoted. In Greenbaum v. Elliott, 60 Mo. 25, Wagner, C. J., delivering the opinion of the court, said: "A moral obligation, of itself, is not a good consideration for a promise. To impart to it any binding

character there must be some antecedent legal liability to which it can be attached." Parsons says the rule may now be stated as follows: "A moral obligation to pay money or perform a duty is a good consideration for a promise to do so, where there was originally an obligation to pay the money or to do the duty, which was enforceable at law, but for the interference of some rule of law. Thus, a promise to pay a debt contracted during infancy, or barred by the statute of limitations, or bankruptcy, is good, without other consideration than the previous legal obligation, but the validity of the promise. however certain, or however urgent the duty, does not of itself suffice for a consideration. In fact the rule amounts at present to little more than a permission to a party to waive certain positive rules of law which would protect him from a plaintiff claiming a just and legal debt.' 1 Parsons on Cont.,

434.

And the same learned author also remarks : "Perhaps an illustration of the rule that a moral obligation does not form a valid consideration for a promise, unless the moral duty was once a legal one, may be found in the case of a widow who promises to pay for money expended at her request, or lent to her during her marriage. It may have been held in England, in a case examined in a former note, that this promise was binding, and there are many dicta to that effect in this country, but the current of recent decisions in England is

in favor of the view that the promise of a married woman has not, when given, any legal force, and, therefore, is not voidable but void, and cannot be ratified by a subsequent promise after the coverture has ceased, nor be regarded as a sufficient consideration for a new promise." Ib. 435.

And this court has announced a similar rule in Kennedy.v. Martin, 8 Mo. 678, where it was held that the subsequent promise by a widow to pay a physician for professional services rendered during her coverture was not founded upon a valuable consideration. The case at bar is not distinguishable in principle from the last case or others cited in support of our views. The case of Guinn v, Sims, 61 Mo. 335, is in accord with this one, for there the reception of the money on Sunday constituted a precedent, good consideration which might have been enforced at law through the medium of an implied promise had it not been suspended by some positive rule of law, and therefore the express promise, to wit, the mortgage, revived the precedent good consideration. 3 Bos. & Pul. 249, supra.

It has been ruled that a wife could, by such an agreement as that in which plaintiff has declared, bind her then husband for an attorney's fees for service rendered her in a proceeding for a divorce, instituted by the husband against her, (Porter v. Briggs, 38 Iowa, 160, and cases cited; s. c., 2 Cent. L. J. 681), but no case has gone to the extent of holding that any subsequent husband would be bonnd in consequence of such an agreement made by one who, at the time of making it, was the wife of another.

At the common law, if the husband had abjured the realm, or was an alien continuously abroad, these circumstances invested the wife with the protection and powers incident to a feme sole. Gallagher v. Delargy, 57 Mo., 29, and cases cited. And the same rule has been extended, and where the husband resided without the state of the wife's residence, he having deserted her (Abbott v. Baily, 6 Pick. 89: Gregory v. Pearce, 4. Met. 478), and the point has been ruled in the same way by this court where the wife resided separate and apart from her husband without the state. Rose v. Bates, 12 Mo. 30.

But these cases just cited were put upon the express ground of the continued intentional absence of the husband from the state, the line of jurisdiction being on a political point, an impassible barrier, and the husband being in consequence thereof as much beyond the process and jurisdiction of the courts of the wife's residence as if he had abjured the realm, or were an alien residing abroad.

This distinction is made plainly to appear in Baily a Abbott, supra, where the husband,

resident in New Hampshire, by cruelty drove his wife from home, who thereupon came to Massachusetts, resided there for many years, acting as a feme sole, and had received the note in question as the proceeds of her own labor.

These facts being set forth in plaintiff's reply to defendant's plea in abatement, that plaintiff was under coverture of Peter Abbott, who resided in New Hampshire, the defendant rejoined that the husband was a citizen of the United States, residing therein, and had not at any time renounced or abjured his allegiance thereto, etc. A demurrer was interposed to this rejoinder, and Parker, C. J., discussing this point, said: "The question is whether the replication is an answer to the plea in abatement of coverture of the plaintiff. If these parties to the marriage lived within this commonwealth, it is certain that the facts stated in the replication would not avoid the plea of coverture, for by the plaintiff's expulsion from the house of her husband, she would have carried with her a credit against him to the extent of her necessary support — furthermore, might have obtained a divorce, a mensa et thoro, and a reasonable alimony out of his estate," and the rejoinder was adjudged bad. No such case is presented in this record, nor does the case of Gallagher v. Delargy, supra, cited for plaintiff, resemble the one before us, for there the husband resided in this state, where the wife resided for many years, transacting business as a feme sole.

True, it is alleged, that Allen deserted his wife, but this he might have done and still have resided in this state. The disposition made by the circuit court of defendant's motion to dismiss the cause was therefore correct. Judgment affirmed.

Digest of Recent Cases.

CRIMINAL LAW-Evidence of Threats from Malice.— While general threats to kill somebody are evidence of malice, threats against a particular person with whom the accused had a quarrel ought not to have any weight with a jury as to the malice or intention to kill another person with whom, at the time, he had no quarrel, and whom he afterwards killed in a scuffle. Admissibility of evidence as to character of both the accused and his victim. Abernethy v. Commonwealth, Supreme Court of Penna., November 20, 1882.

CONTRACTS-Disability-Effect of Appointment of Conservator in one State upon Contract Made in Another.A conservator had been appointed for A. in Connecticut upon the ground of improvidence and prodi gality. He removed to Massachusetts, where he resided from 1872 to 1877. Suit was brought in the court of Connecticut for the rent of a house rented by A. in Massachusetts. Held, That the disability of A. was continual while he continued to reside in the state where the conservator was appointed, and that the knowledge of the appointment of a conservator by the plaintiff did not constitute a defense to an actioni n the court of Connecticut.