Coons v. Gallagher. 15 P. that State. Upon this application, this court again declared that it is the duty of the court to proceed in the suit according to the rules prescribed by the supreme court for proceedings in equity causes, at the February term, 1822. That the proceedings of the district judge, and the orders made by him in this cause, (the very order now in question,) were not in conformity with those rules, and with chancery practice; but that it was not a case in which a mandamus ought to issue, because the district judge was proceeding in the cause; and however irregular that proceeding might be, the appropriate redress, if any, is to be obtained by an appeal, after a final decree shall be made in the cause. That a writ of mandamus was not the appropriate remedy for any orders which may be made in a cause by a judge, in the exercise of his authority, although they may seem to bear harshly or oppressively upon the party. [ * 17 ] * Such are the views which have beer heretofore taken by this court upon the questions raised by the points which have been certified in the record before us; and which leave no doubt that they must all be answered in the affirmative. These questions having been so repeatedly decided by this court, and the grounds upon which they rest so fully stated and published in the reports, that it is unnecessary, if not unfit, now to treat this as an open question. It is matter of extreme regret, that it appears to be the settled determination of the district judge, not to suffer chancery practice to prevail in the circuit court in Louisiana, in equity causes; in total disregard of the repeated decisions of this court, and the rules of practice established by the supreme court to be observed in chancery cases. This court, as has been heretofore decided, has not the power to compel that court to proceed according to those established rules; all that we can do is to prevent proceedings otherwise, by reversing them when brought here on appeal. All the questions presented by the record are accordingly answered in the affirmative. 5 H. 441. LESSEE OF EFFIE COONS, and others, Plaintiffs in Error, v. CHARLES P. GALLAGHER, Defendant in Error. 15 P. 18. Under the 25th section of the Judiciary Act, (1 Stats. at Large 85,) it is not sufficient that one of the questions therein mentioned was involved in the cause, and might have been decided; it must appear either in terms, or by necessary intendment, that it was decided, and against the right claimed. Coons v. Gallagher. 15 P. THE case is stated in the opinion of the court. Leonard, for the plaintiffs. Buck, contrà. TANEY, C. J., delivered the opinion of the court. This case arises upon an action of ejectment, which was decided in the supreme court of the State of Ohio, for the county of Clinton; and being brought here from a state court, we have no authority to revise the judgment, unless jurisdiction is given by the 25th section of the act of 1789. The land is situated in what is usually called the Virginia military district, and, at the trial, both parties derived title under the act of congress of March 2, 1807, which was passed for the purpose of extending the time for locating Virginia military land warrants, between the Little Miami and Sciota rivers. The plaintiffs made title as heirs at law of Thomas J. M'Arthur, * who obtained a patent for the lands in question, [* 19 ] in 1823, upon an entry and survey made for him in that year, as assignee of part of a military land warrant granted to John Trezuant. The defendant, who was in possession of the land, claiming it as his own, in order to show title out of the plaintiffs, offered in evidence an entry in the name of John Tench, assignee of part of the aforesaid warrant to Trezuant, made on the 8th of August, 1787; and a survey pursuant to the said entry, on the 7th of March, 1794, which was recorded June 24, 1796. The plaintiffs having produced a complete legal title, as above stated, the prior survey of Tench was no bar to their recovery, unless it was made so by the act of 1807, before referred to. The first section of that act contains the following proviso: "That no locations as aforesaid within the above-mentioned tract, shall, after the passing of this act, be made on tracts of land, for which patents had been previously issued, or which had been previously surveyed; and any patent which may nevertheless be obtained for land located contrary to the provisions of this section, shall be considered as null and void." It seems to have been admitted in the state court, that this act of congress intended to protect those surveys only that were made by lawful authority; and that the survey of Tench was no defence, unless it appeared that he was, in truth, the assignee of a portion of Trezuant's warrant. No assignment was produced at the trial, 11 Stats. at Large, 424. Coons v. Gallagher. 15 P. but evidence was offered by the defendant, from which the court may have presumed an assignment; and testimony was also introduced on the part of the plaintiffs to rebut that presumption. The controversy in the state court turned, it would seem, mainly on this point, which was decided in favor of the defendant. And the decision of that question certainly did not involve the construction of the act of 1807; and furnishes no ground for a writ of error to this court. Another point has been raised in the argument here, on the part of the plaintiffs in error. It is contended that the proviso in the act of 1807, applies only to conflicting patents and surveys, made under different warrants from the State of Virginia; and that it does not extend to a case like the present, where the controversy arises upon assignments made by the same individual, upon the same war [ * 20 ] rant. * Undoubtedly, such a point might have been raised and decided, in the state court, upon the case presented by the record; and if it had appeared that such a question, upon the construction of the act of congress, had been raised, and had been decided against the plaintiff, it is very clear that the judgment could have been revised in this court. But the record does not show that this point was raised by the plaintiff, or decided by the court. It is not sufficient that the point was involved in the case, and might have been raised, and might have been decided. It must appear, either in direct terms or by necessary intendment, that it was in fact brought to the notice of the court, and decided by it. This is the rule settled in the case of Crowell v. Randall, 10 Pet. 398; in which all of the former cases upon the subject were reviewed and considered. In the aspect in which the case comes before us, there was no controversy in the Ohio court, in relation to the construction of the act of 1807; and it would seem, from the record, to have been conceded on all hands that Tench's survey was a good defence, if the assignment from Trezuant could be established. Indeed, if there was any point raised and decided upon the construction of the act of congress, the decision appears to have been in favor of the right claimed, and not against it. The plaintiffs in error, at the trial in the state court, produced a complete legal title; and the survey of Tench, as we have already said, would have been no defence to the action, unless it was made so by the act of 1807. It was the defendant, therefore, and not the plaintiff, who invoked the aid of the statute, and claimed the right under it. The decision was in his favor, and by that means a mere equitable title, which, upon general principles Mayburry v. Brien. 15 P. of law, would have been no defence against the legal title produced by the plaintiffs, was adjudged to be a good and valid defence, under and by virtue of this act of congress. The decision, therefore, was in favor of the right claimed, and not against it; and if the construction of the statute is, upon this account, to be regarded as drawn in question, the judgment given would afford no ground for the jurisdiction of this court. In either view of the subject, therefore, the writ of error must be dismissed, for want of jurisdiction. 5 H. 343; 7 H. 738; 9 H. 421. SUSAN MAYBURRY, Appellant, v. JOHN M'PHERSON BRIEN, and others, Appellees. 15 P. 21. Under the law of Maryland, before the act of 1822, joint-tenancies existed, and the wife of a joint-tenant was not dowable of land so held. Nor did the right of dower attach upon a momentary seisin, where the husband mortgaged back the land, at the same time when it was conveyed to him. THE case is stated in the opinion of the court. Mayer, for the appellant. Meredith and Nelson, contrà. [ * 35 ] .* M'LEAN, J., delivered the opinion of the court. This is a suit in chancery, which is brought before this court, by an appeal from the decree of the circuit court of Maryland. The complainant is the widow of Willoughby Mayburry, and claims dower from John Brien, who purchased an estate, designated the Catoctin Furnace, and all the lands annexed or appropriated to it. She also claims rents and profits from the death of her husband This estate was conveyed by Catharine Johnson, Baker Johnson, and William Ross, as executors of Baker Johnson, to Willoughby, and Thomas Mayburry, by deed, dated the 5th March, 1812; and they executed a mortgage on the same, to receive the principal part of the purchase-money. The 9th March, 1813, Thomas Mayburry conveyed to Willoughby his undivided moiety in the estate; and at the same time, the grantee executed a mortgage on [ * 36 ] the estate, to secure the payment of the purchase-money. The answer admits the marriage of the complainant, prior to the execution of the conveyance and mortgage, in 1812; and the death of the husband, which occurred subsequently Mayburry v. Brien. 15 P. Brien having deceased, his heirs were made parties to the suit. The circuit court dismissed the bill, and the counsel for the defendants ask the affirmance of that decree on two grounds. 1. Because the estate vested in Willoughby and Thomas Mayburry was a joint-tenancy, and not subject to dower. 2. That the mortgage was executed by Willoughby Mayburry to Thomas, simultaneously with the delivery of the deed from Thomas to Willoughby, and that dower does not attach to a momentary seisin. The counsel for the complainant insists that the deed of the executors of Johnson to the Mayburry's, created a tenancy in common, and not a joint-tenancy. It is admitted that the terms of this deed import a joint-tenancy; but it is insisted that the nature of the property, and the circumstances of the parties, show a tenancy in common. That real estate conveyed for partnership purposes constitutes an estate in common; and that the conveyance of this furnace, and the land incident to it, was for manufacturing purposes, and comes within this definition. No evidence being given on the subject, the counsel relies upon the above considerations, as fixing the character of the estate. In the case of Lake v. Craddock, 3 P. Wms. 159, the court held that survivorship did not take place, where several individuals had purchased an estate, which was necessary to the accomplishment of an enterprise in which they were engaged. That the payment of the money created a trust for the parties advancing it, and that as the undertaking was upon the hazard of profit or loss, it was in the nature of merchandising when the jus accrescendi is never allowed. And in the case of Coles's Administratrix v. Coles, 15 Johns. Rep. 159, it was decided, that when real estate is held by partners, for the purposes of the partnership, they hold it as tenants in common; and that on a sale of the land, one of the partners receiving the [ 37] consideration *money, was liable to the action of the other for his moiety. Thornton v. Dixon, 3 Brown's Ch. Rep. 199; Balmain v. Shore, 9 Ves. Jun. 500. By a statute of Maryland, in 1822, c. 262, joint-tenancy is abolished; and it is contended that, this being the settled policy of the State, the courts should give a liberal construction to conveyances prior to that time, to guard against the inconvenience and hardship, if not injustice of that tenancy. Whether this estate was purchased by the Mayburry's, for the purpose of manufacturing iron, for speculation, or for some other object, is not shown by the evidence; and it would be dangerous for the court, without evidence, to give a construction to this deed |