author: Judge Wood

text:
    *Stephen Higby v. Geo. F. Whittaker and Sardis Burchard.
    Examination of, and decisions upon the evidence.
    A purchaser of land, who has paid a very small part of the purchase money, and delays payment of the principal sum long after it is due, can not be aided in equity by a decree for a specific performance.
    In such case, where the purchaser has occupied the land sold, the fair rent of which is equal to the actual payment, the vendor may rescind without offering to refund the amount received.
    Reserved in Sandusky county.
    The bill of complaint states, that the defendant, Whittaker, on. September 10,1833, contracted to sell to the complainant a certain tract of land, in the county of Sandusky, lying on the Sandusky river, in the Whittaker Reserve, and called the “ Orchard Farm;” also, 90 acres in the same reserve, and lying northeast of the-aforesaid tract, the whole to contain 347 acres; for which the complainant was to pay $3,000 in equal annual installments; the first payment to be made on April 1, 1836, with interest on the whole sum.
    The complainant avers, that he has paid upward of $500 on the contract, and been in the possession of the land since the purchase-He charges Whittaker with fraudulent misrepresentation in the quantity of the land, and that it was ascertained by a survey, subsequently made, that it fell short of the quantity represented 117 or 118 acres. That at the time of the purchase, Whittaker had sold the last-named quantity, which he concealed from the complainant, but took him over the whole, and represented it as belonging to himself. That the 117 or 118 acres was a valuable part of the farm, and intended to supply it with wood and timber, and deducting it from the 347 acres has materally lessened the value of the whole.
    The complainant also states, that the defendant, Whittaker, refuses to receive payment, deducting a reasonable compensation for the deficiency,- or to purchase in, and convey the same land contracted for; but has commenced a suit in ejectment, to recover possession of the land occupied by the complainant, and that Burchard, the other defendant, has since purchased of Whittaker, with full knowledge of the complainant’s rights.

      The bill prays that the damages sustained by the complainant, may be ascertained, for the deficiency, and deducted from the amount of the consideration; that any balance due may be paid into court, in a reasonable time, and that, on the payment thereof,, that Burehard may be decreed to convey to the complainant, and that further proceedings in the action of ejectment may be enjoined.
    The defendants have both answered. Whittaker admits the ^contract with the complainant, and his possession; but denies, absolutely, that he represented himself as the owner of any land he had previously sold; or that he contracted any such-to the complainant. He avers he was the owner of more than sufficient land, in the Whittaker Reserve, to fill his contract with the complainant, and that he was, at all times, anxious to receive-his money, and fulfill, on his part, but that the complainant failed and refused to make the payments, as they became due; that he-commenced an action of ejectment, but finding the complainant disposed to be litigious, and having become embarrassed, in consequence of not receiving his money, he was compelled to sell, at-a. great sacrifice, to Mr. Burehard, and, on March 21, 1835, conveyed to him by deed, and assigned to him the complainant’s, bond, for the payment of the land. He admits the payment of $492.
    Burehard admits his purchase, with full knowledge of the complainant’s contract and possession. He states that on April 1,1836, and on the succeeding day, all the installments being due, he demanded payment of the complainant, and, on that condition, offered him his land, and a conveyance, in all things.in pursuance of his contract with Whittaker ; but that the complainant wholly refused to make payment, and he thereupon notified him that he should cancel the contract, and should not afterward convey. To these answers, there is a general replication.
    Boalt and Seaman, for the complainant,
    cited 9 Cranch, 173; Sug. on Vend. 262, note; 3 Cranch, 270; Cox’s Dig. 128, sec. 13; 12 Wheat. 574; Cox’s Dig. 141, sec. 162; Chit. Eq. Cas. 61, 49;. 17 Ves. 349; Chit. Eq. Cas. 46; 9 Johns. 470; Chit. Eq; Cas, 221, 222; Amer. Ch. Dig. 518, tit. Agreement, secs. 55, 359; 5 Cranch, 262.
    Coeeinbert, for the defendants,
    cited 7 Ohio, pt. 2, p. 97.
   Judge Wood

delivered the opinion of the court:

Two questions only arise, in this case, necessary for consideration. The first is,( whether Whittaker was guilty of fraud, as charged in the bill? The second, whether Burchard, under the facts disclosed, could rescind the contract, without refunding to the complainant the purchase money admitted by the answer to have been received ? The fraudulent misrepresentation complained *of, is unequivocally denied in the answer, and must therefore be proved by the testimony of more than one witness. The evidence of Isaac Harris and David Camp are alone relied upon to establish that fact. The former testifies that he witnessed the contract for the sale of the land. That on the day it was executed, Whittaker showed the complainant and the witness, the land contracted for, and called the “ Orchard farm,” and ’said the south line continued east, straight to the river, and that the north and west lines were straight. If this representation was made, it was certainly untrue, for exhibit “D” shows a conveyance, within the lines pointed out, on the north side, and west of the Port Clinton road, which divides the farm, of 100 acres, to Nicholas Mattia; and exhibit “E,” a conveyance of 50 acres, on the south side, to Brown. Both conveyances executed before the complainant purchased, and which left the lines of what remained unsold, on the north, south, and west, anything else but straight. If Whittaker was showing the lines of the reserve, however, within which the farm was located, and not the lines of the farm, what he said was strictly true. We are inclined to believe this was the fact, and that he was misunderstood by Harris. We arrive at this conclusion, from the evidence of Mattia, to which we shall hereafter refer.

Camp swears that he surveyed the land; that both the complainant and Whittaker were present. He says that the complainant objected to the crookedness of the lines of the “ Orchard farm,” and Whittaker replied, “ I thought you understood it." This is the testimony to prove the fraud! an act, which, if not legally, is morally criminal, and tends to the degradation of any individual, in the opinion of every upright and virtuous man. Does it establish if ? If Harris is to be believed, there is the testimony of him, only, against the oath of the defendant, and the complainant must throw .some other circumstances into the scales, to incline them in his iavor. Is the evidence of Camp sufficient? Wo think not. The reply of Whittaker, “ I thought you understood it,” can not be tortured into the admission of a fraud, by any legal rule. The testimony of Mattia, however, settles this point, beyond controversy-He swears, before the complainant purchased, he, the witness; showed him the lines of the “ Orchard farm,” and the lines of the other tracts, sold to himself and Brown, by Whittaker, and told him the price paid, to which the complainant replied, it was cheap enough. The fraud, *not being made to appear, the complainant is entitled to no abatement of price.

2. Could Burchard rescind the contract? $492 only had been’ paid, when the last installment fell due. Nearly $3,000, including-interest, remained. In Remington v. Kelley et al., 7 Ohio, 103, it is said, “where there has been a default, unless the same has been-occasioned by circumstances not within the control of the party, he can not well complain that the opposite party should not hold himself bound by a contract, of which he, himself, is utterly regardless. That such default is, at least, equivalent to an express-assent to a rescission of the contract, and may be so considered, unless acquiesced in by the opposite party.” In this case, the whole purchase money was due. Burchard had succeeded to the rights of Whittaker, and stood in his shoes. He demanded payment,, and, on that condition, offered to give up the complainant’s bond, and to convey, in all things, according to the contract of,his co-defendant. Payment being refused, he expressly notified the complainant he should thereafter consider the contract as rescinded. The complainant has showu no one circumstance to excuse him, and relieve him in equity. The law requires some positive act by the party who would rescind, which shall manifest such intention, and put the opposite party on his guard, and it then gives a reasonable time to comply; but it requires eagerness, promptitude, ability, and a disposition to perform, by him who-would resist a rescission of his contract. Burchard manifested his intention in express terms. The complainant satisfied himself with sleeping on his rights, and to the present time has never-offered to perform. It is very evident he had no such intention-.. Several witnesses swear that he often so expressed himself, and as - often admitted his entire inability. If prosecuted, he threatened a “ seven years’ litigation,” and to reimburse himself for the expense - by keeping possession of the property and receiving the profits-. This trifling indisposition of the complainant, his want of intog— rity and intention to pay for the property, and his utter inability to do it, unquestionably give Burchard the right to put an end to •the contract.

But it is said, before the contract can be rescinded, the money paid must be refunded. Such, as a general rule, is correct. But in this case, it is conclusively shown that the complainant is •equitably indebted to the defendants for the use, rents, and profits *of.tbe property, to a much larger amount than he has paid. Justice would, in such case, seem to require that the amount paid by the complainant should be considered as so much paid for the rent and profits, and, as the case and parties are all before us, there would be a propriety in decreeing against the complainant •for the balance which will still be due. The whole controversy would then be at an end. This is not sought by the defendants, however, and we will, therefore, leave the parties to settle such portion of the rents and profits as remains due, in another tribunal.

We are aware that a number of cases maybe found where lapse of time has not been considered a sufficient objection to a specific execution of the contract. Without a close examination, this has 'led to an opinion that where a contract for real property is once •obtained, the purchaser acquires rights which may be enforced in equity to an indefinite and unlimited period, however regardless such purchaser may be of the conditions of such contract. Nothing can be more erroneous, and nothing, certainly, more repugnant to sound morals, or destructive to punctuality. The case of Gibbs v. Champion, 3 Ohio, 325, has been supposed to sustain such position. If carefully examined, we think no such inference can be drawn from it; hut it will be found perfectly consistent with, the more modern cases of Scott v. Field and Remington v. Kelley 7 Ohio. In Gibbs v. Champion, a specific execution of the agreement was decreed, because Champion had held on to the contract, .and done no positive act manifesting an intention to take advantage of the non-performance of Gibbs, and the court, from that and other circumstances, thought he intended to waive such default, and the contract was considered as subsisting. There is not an intimation, in that case, which fell from the court, that denies the power of Champion to have put an end to his agreement with Gibbs, had he sought to do so.

On the whole, we áre clearly of the opinion, in this case, that the bill should be dismissed at the complainant’s costs. -

Judge Lane did not sit in this cause.


source: Caselaw Access Project

author: * Judge Lane

license: Public Domain

text:
    *Lessee of H. Stoddard v. Jacob Myers.
    •Judgment reversed pending a bill to subject land to satisfy it, and again re- _ covered, the bill being continued, and a supplemental bill filed to reach the case of the second judgment, an alienation after the reversal and before the second recovery, is affected by the lis pendens.
    This cause was adjourned from the county of Montgomery, .and came before the court upon facts agreed. The property in controversy was the north half of in-lot No. 80, in the town of Dayton. The plaintiff derived title under certain legal proceedings between Geo. Beitz and David Wolf; the defendant’s title was direct from Wolf, through intermediate conveyances.
    At September term of the common pleas, 1831, Beitz recovered •a judgment against Wolf for upward of $2,000. Finding no property whereupon to levy, Beitz, September 8, 1831, filed a bill in chancery against Wolf and his children, to subject the half-lot in ■question to the payment of his judgment. June, 1832, the judgment of Beitz v. Wolf was reserved, in tbe Supreme Court, and the cause remanded to the Montgomery common pleas to be proceeded in, where it was docketed, September, 1832. It came to be tried again in March, 1833, and Beitz again recovered a judgment. Before the filing of the original bill, or the obtaining of the first judgment, Wolf had conveyed the half-lot to his children. These, in September, 1832, conveyed to J. H. Lesher, who conveyed to the defendant, Myers. The bill in chancery was regularly continued to June term, 1833, when a supplemental bill was filed, alleging the recovery of the new judgment, and asking, ás asked in the original bill, that the court decree a sale of the half-lot for the satisfaction of the judgment. In 1835, the court decreed the sale prayed for, at which the plaintiff lessor became the purchaser.
    Lesher, the purchaser from the Wolfs, had no notice, in fact, of, ' the claim, to subject the half-lot to the satisfaction of a debt due toBeitz, and under this defense the defendant claimed protection. The plaintiff maintained that the Us pendens was conclusive noti ce.
    Stoddard, for the plaintiff:
    The rule is believed to be well settled that whatever is sufficient-to put a party upon inquiry, is sufficient notice of every fact, that, upon such inquiry, he might with reasonable diligence have learned.
    So it is settled, by repeated decisions, that a suit which draws property in question, incidentally or collaterally, is such lis *pendens as affects a purchaser of such property, with constructive notice. As in the case of Gouth v. Ward, 2 Atkins, 174, the chancellor held that a suit by devisees against the heir to-perpetuate testimony, and to establish the will, was such a lispendens as affected a purchaser of the property with notice.
    So in the ease of Culpepper v. Aston, 2 Chancery Cases, 115,. 221-223, where land had been conveyed to executors in trust to pay debts, etc. A bill was filed by the heir against the executors-for an account, alleging that the .land was not wanted to discharge the debts, and during the pendency of that suit the executor sold the land. It was held that the suit for an account was notice to the purchaser. Upon an account taken, it turned out that the land was not necessary for payment of the debts, and the purchaser (Aston) lost the land, notwithstanding he purchased with or t any actual notice of the trust, and paid the full^price of the land, See Barnes v. Canning, 1 Chancery Cases, 301, and 1 Johns. Ch. 57, 579.
    In a case of Wattington v. Howley and others, 1 Desaussure,, 168, which was a bill against an executor for an account of assets and pending the suit she sold a certificate of public debt which-belonged to the estate, the court held the sale void.
    That the suit of Beitz v. Wolf and his children was a suit pending from September 15, 1831, and that it was in a course of continued prosecution is clearly shown by the record of the cause, and can not be denied. The inquiry is then presented, whether the pendency of that suit was such notice to Lesher and Myers,, both of whom purchased the subject matter of that suit, while it-was pending, as affects them with notice; for if it is, the purchase is void, and Beitz and the plaintiff claiming under the decree, in his-cause, need not take notice of a title so acquired. Ludlow v. Kidd,

      3 Ohio, 542, 354; Bennett v. Williams, 5 Ohio, 462; Self v. Maddax, 1 Vern. 459; Murray v. Ballan, 1 Johns. Ch. 565. And the same authorities establish the position, that a lis pendens is notice per se. The chancery suit was pending from September 15, 1831, as before stated., and was in a course of continued and diligent prosecution, and from that time Lesher and Myers had constructive notice of every fact that is averred in the bill, and it does not absolve them from the legal consequences of that notice, that the judgment at law, one of the facts mentioned in the bill, was afterward reversed on error; for the existence of that judgment, is only one of many facts that are ^alleged, and notwithstanding the reversal of the judgment, the suit in chancery remained pending and in prosecution until the final decree in the Supreme Court at the June term, 1835, by which the lot in question is subjected to sale according to the prayer of the bill. It is not the facts alleged in the bill (except so far as they show the complainant’s claim upon the property, or subject of the suit by direct averment or necessary inference), that affects a purchaser with constructive notice, but it is the simple fact, that a suit is pending. That of itself is notice.
    The argument that no decree could be rendered upon the original bill in this cause, without the supplement, is not sound, for many cases may be supposed where no decree could be made in the cause without the aid of a supplement; as if, after a cause is at issue, it is discovered that it is necessary to bring new parties before the court, as in the cases before stated, and a supplemental bill is filed for that purpose. The filing of such supplemental bill will not do away the effect of the original bill as litis pendentia, and yet no decree could be rendered in the cause without such supplement. Nor has a suit any the less effect upon a purchase made pendente lite, that the decree to be made upon the hearing does not operate directly, but only incidentally, upon the property in controversy; as in the before-cited cases of G-auth v. Ward, and Culpepper v. Anton, no decree was or could be rendered operating directly upon the property, and yet those who claimed by purchase were not the less pendente lite purchasers and consequently affected with notice, upon the principle that their attention was necessarily drawn to the claim to the property, adverse to the title of those UDder whom they claimed.
    The defendant’s counsel has referred to cases to be found in the' Condensed English Chancery Reports, as sustaining positions taken in argument, one of which is, “ that a supplemental bill can not be filed to supply the title of an original bill,” and the case of King v. Judock, 2 Cond. Eng. Ch. 503, was cited.
    That was a suit in chancery by the assignees of a bankrupt, who by statute are prohibited from bringing any suit without the consent of the creditors or commissioners, “testified in writing under their hands.” This want of authority to institute the suit was set up in defense. The plaintiff then filed a supplemental bill, alleging that since filing the original bill they had obtained the authority of the commissioners to bring the suit. To the supplement there was a demurrer, which was sustained *on the ground that the statute requisition of such authority was necessarily precedent, and that the authority subsequently obtained could not be considered as ab initio authorizing the suit. It was a statutory requisite to the bringing of the suit. The application of the case to the one before the court is not perceived.
    Another position is, that “ lis pendens does not hold good if the -decree is founded on a supplemental bill, filed after sale of propertyand the case of Kinsman v. Kinsman, 4 Cond. Eng. Ch. 581, is cited. The lord chancellor, in that case, says the question was, “ whether there was or was not a lis pendens,” and that “to ..constitute a litis pendentia there must be a continuance of litis con.testatioand after examining the facts in the case, he says, “upward of a quarter of a century has elapsed ” since the decree was pronounced in the original suit, and he therefore held that the -original suit was not pending, and that the bill filed as a suppleplement was not of that character; and the purchase having been .made after the decree, etc., in the original suit, and before filing what was intended as a supplemental bill, there was no litis pendentia of the original bill, of which the purchaser was bound to take notice. ■
    The case of Beits v. Wolff, etc., is not of that character, for the record of that suit shows that there was not only litis pendentia, but also litis contestatio, in the strictest sense, from the time of filing the original bill.
    Another position is, that a “ supplemental bill can not be filed to change altogether the grounds of the original bill,” and authorities are referred to as sustaining the position. On examination, it is not perceived that the authorities sustain the position, nor is the application of such a rule to the case in question perceived.
    P. P. and R. P. Lowe, for defendant:
    Does the first bill operate as a Ns pendens to the purchaser, Leasure, who bought after the. reversal of the judgment at law, as described in the first bill, and before a new recovery was had, and of course before the supplemental bill was filed, and was it after the reversal of the first judgment reasonably sufficient to put the purchaser upon his guard?
    The reversal of the judgment set forth in the original bill operates as a direct and certain suspension of any further action in the chancery suit. The life of the bill was depending on that of the judgment it describes, and by destroying the judgment, *the fate of the bill is sealed. Its equities and ground work are stripped from it, so as to satisfy the law of its insufficiency to operate as notice. The sole object of this bill being that of getting satisfaction of the judgment (it describes, and no other claim, the purchaser then, on examination, finds no such judgment as the bill describes; he even finds no judgment that would operate as a lien itself (were the legal title in the lot in question in Daniel Wolf), or be the basis u]Don which a bill could be filed, were the legal title fraudulently out of Daniel Wolf. The court will not ask so unreasonable a thing, as to require-him who is looking out for that which may reasonably be sufficient to put him on his guard, that he should run into a new conjecture, as to what the future may bring forth, or enter upon a prophecy as to what may be the probable course of things. A second recovery for the same cause of action would not relate back as a lien to the date of the first judgment. The law will not assume greater strength for the bill than is given to the judgment itself. The reversal of the judgment at law, it is true, is not in fact a reversal of the chancery proceedings, yet it is so in effect. Suppose A. files a bill to satisfy a judgment he has recovered against B. by making lot number ten liable; after the bill is filed for this sole object, A. amends or files his supplemental bill, praying that lot number 11 may be held liable to satisfy the judgment described in the first bill. D., between the filing of the first bill, and that of the amended or supplemental bill, buys lot 11. The first bill in this instance would not operate as a lis pendens to D.
    But perhaps the more important question to be decided in this-case is, whether the amended or supplemental bill as it is called, relates back in such a manner as to place its contents and allegations into the first bill, or, in other words, to have the same effect as if they were placed there. And in viewing this branch of the subject, we will, first, deny that the amended or supplemental bill filed by Beits, as between the purchaser under the decree, and the grantee of an innocent bona fide purchaser, is, in truth, an amended or supplemental bill to the one originally filed, in the sense of the authorities. The defendant, in ejectment, contends there is no connection, as the court will perceive. It has no relation back, because the facts it contains are not new discoveries not new discoveries, because they had no existence at the time of the purchase. In making up the final decree, no allusion could be had to any fact contained in the original bill, no reference to it was necessary to do what the complainant ^desired. If, then, the last bill filed, be not an amended or supplemental bill, the suit in chancery is inadmissible in this case as evidence. See 2 Mad. 404-409. It is also inadmissible because it was filed without leave of the court. See same authority. But an amended, or supplemental,bill, can not be filed to supply the title of an original bill. See 2 Cond. Eng. Ch. 503; 2 Sim. & S. 265; 2 Young & Jarvis, 475; 2 Mad. 50. Nor can a supplemental bill be filed to change altogether the grounds of the original bill. See 6 Cond. Eng. Ch. 286. But even if the court should determine the supplemental bill well filed, yet, inasmuch as Leasure was an intermediate purchaser, after reversal of judgment, and the supplemental bill filed long after the sale to him, it could not operate as notice. See case of Kinsman v. Kinsman, 4 Cond. Eng. Ch. 581.
    The case referred to by Mr. Stoddard, in 3 Ohio, 352, furnishes rather a strong case for the defendant in one point of view. ‘‘ That the reversal of a decree in chancery, which confers a title, actually divests it, and reinvested it in the person where it rested before the decree was made.” True it is, there was strictly no reversal of the suit in chancery, but everything which made up the complainant’s claim to equity, was completely destroyed, and as effectually as if a reversal took place.
    A bill of reviva was filed in this case, upon the suggestion of Daniel Wolf’s death. Bills of reviva, as well as supplemental bills, do not necessarily refer back to the commencement of original suit. See 3 Ohio, 341, 541; 5 Ib. 461.
    The common practice is, for a purchaser first to examine the recorder’s office for conveyance by deed, or mortgage ; then he goes to the clerk’s office, and finds no judgment against Daniel Wolf that would operate as a lien, or upon which a bill could be filed, so as to make the property held by his children liable to pay it. If a purchaser does all this, and finds these results we might suppose he ought to be satisfied. The most astute and wary man in community would be satisfied with such a result., and purchase-, yet Leasure bought, precisely under these circumstances, fairly and innocently obtaining title, for the consideration of $1,400. The consideration might be proof positive of his ignorance of a lien, or notice of incumbrance, as he gave double what was paid for the pemises under the decree.
   * Judge Lane

delivered the opinion of the court:

The general rule that no alienation of property is permitted whilst a suit is pending in relation to it, either in law or equity, is familiar and well settled. 3 Ohio, 542 ; 5 Ohio, 462.

It is assumed ’that when the.right to recover, in the bill in equity, was taken away, by the reversal of the judgment, the suit ceased to be pending; so far as to bind the property. We are not satisfied that this position is a sound one. No such distinction is to be found in the books. But the doctrine seems plain that by the institution of a suit, the subject of litigation is placed beyond the power of the parties to it; that whilst the suit continues in court, it holds the property to respond to the final judgment or decree. This suit, instituted in 1831, was regularly continued until the final decree in 1835. The supplemental bill was engrafted into the original bill, and became identified with it. The whole was a lis pendens, effectually preventing an intermediate alienation. Judgment for plaintiff.


author: Judge Hitchcock

text:
    Richard Douglas, Administrator of William McDonald, deceased, v. Alexander Waddle et al., Administrators of John Waddle, deceased.
    A general judgment against a decedent in his lifetime, can not be revived against the heirs alone, without showing that there is no personal representative in esse, and that the heir has received assets by descent from the ancestor.
    This is a proceeding by scire facias to revive a judgment.
    It is stated in the declaration that at the September term of the Supreme Court, 1830, in the county of Ross, William McDonald recovered judgment against John Waddle for $2,351.34 debt, to be discharged by the payment of $1,879.74, the amount due in equity, together with his costs, amounting to $19.61. That five years have elapsed since the date of said judgment; that the same remains unreversed, unsatisfied, and wholly unpaid, and that the said John Waddle has, in the meantime, died intestate, leaving the defendants, his children, and heirs at law, and real representatives.
    It is further stated that the said William McDonald has died intestate, and that Richard Douglas, the plaintiff, has been appointed his administrator, and accepted the trust. The defendants are then called upon to appear before the court, etc., and “ show cause, if any they have, or can show, why they and each *of them should not be made a party to said judgment, and why the same should not be revived, and execution awarded against them as the’ heirs of the said John Waddle, deceased, in the name of the said administrator of the said William McDonald, deceased, in pursuance of the statute in such case made and provided,” etc.
    To this declaration there is a general demurrer.
    Douglas and Leonard, for plaintiff.
    Swan, for defendants.
   Judge Hitchcock

delivered the opinion of the court:

The object of this scire facias is to revive a dormant judgment, and to revive it against the heirs of the judgment debtor, in favor of the administrator of the judgment creditor. In the shape now presented, it is somewhat of a novel proceeding, and is intended to be in pursuance of a provision in the practice act of 1831, which, it is believed, has never received a construction, and which we have found it somewhat difficult to construe.

By section 37 of the act regulating judgments and executions,” passed February 1,1822 (2 Chase’s Stat. 1822), provision was made that where there were unsatisfied judgments against a testator or intestate, or against their executors or administrators, the judgment creditor might, at any time within five years after the rendition of those judgments, have a scire facias issued against the heirs of the judgment debtor, provided those heirs held land by descent. The object of this provision manifestly was to subject the lands of a deceased person to execution. This law was repealed by an act having the same title, passed February 4, 1824 (2 Chase’s Stat. 1297), but this latter act contained substantially, if not literally, the same provision. It was under this law that the case of McVickers v. Ludlow’s Heirs, 2 Ohio, 246, and the case of the Union Bank of Georgetown v. Adm’rx and Heirs of Meigs, 5 Ohio, 312, were decided. This act was repealed by the “ act regulating judgments and executions,” passed March 1, 1831 (29 Ohio L. 101), and this particular provision was not reenacted. But, at the same session of the legislature, the “ act regulating the practice of the judicial courts,” was revised (29 Ohio L. 58), and the provisions introduced, in pursuance of which this action is brought.

In section 85 of this act (29 Ohio L. 74), it is enacted that if execution is not taken out on any judgment within five years *after judgment rendered, such judgment shall become dormant, and shall cease to operate as a lien upon the estate of the judgment debtor. In section 86, “that if said judgment still remain unsatisfied, it shall be lawful for the plaintiff, his heirs, executors, or administrators, to bring and maintain an action of debt on such dormant judgment against the defendant therein, his heirs, executors, or administrators; or such plaintiff, his heirs, executors, or administrators, may, at his or their discretion, revive, by writ of scire facias, sued out of “ the court rendering such judgment, or from the court having the power to award execution thereon, any such judgment remaining unsatisfied, and have execution thereof, against the defendant, his heirs, executors, or administrators.” This section is but a continuation of the preceding laws for reviving dormant judgments. It contains no new provision. It seems to contemplate that a judgment may be revived against heirs, but the practice under it has been to revive in personal actions against personal representatives.

Section 89 is in continuation of the same subject, but nothing ^like it has before been enacted in the state. It is in these words, “that if either the plaintiff or defendant shall have died, after fetal judgment, and before satisfaction thereof, it shall, or may, be lawful, for the plaintiff, or if he shall have died, then his representatives, real or personal, as the case may require, to cause the defendant, or if he shall have died, then his representatives, real or personal, as the case may require, to be made a party to such judgment, by writ or writs of scire facias, to be issued, served, and returned in the same manner that a summons may be issued, served, and returned, by law; and such judgment may be rendered, and execution awarded in the premises, as might, or ought to be given, or awarded, against the representatives, real and personal, of a deceased party, in other cases.”

In this section, the words 11 heirs,” executors,” administrators,” are dropped, and the-words 11 representatives, real and personal,*' introduced ; but I am nott aware that there is any substantial difference between sections 86 and 89, except that one relates to dormant judgments, the other to judgments not dormant; and, in giving a construction, tho two may be well taken together. The judgment may be revived, in favor of or against the “ representatives, real or personal, as the case may require.” It would be an obvious construction, to hold that the revival is to be limited to personal representatives, where the judgment is in the personalty, and to real, where it is in the *realty. And we should undoubtedly take this to be the meaning, were it not that by section 86, the election is given to bring an action of debt, or to revive by scire facias. The action of debt can not be founded upon a judgment in the realty.

But has the plaintiff a right to proceed against the real or personal representative at his election? Taking section 86 by itself, and giving it a literal construction, I see nothing to prevent him. This, however, could never have been the intention of the legislature. By our law, the lands of a deceased person may, when the circumstances of the case require it, be made assets in the hands of personal representatives for the payment of debts. Even those which are incumbered by judgment, may be sold by an administrator under an order of court, without any other restriction than that the avails' shall bo first applied to the satisfaction of the judgment. If an estate is not sufficient to pay all its creditors, the debts are to be paid in a ratable proportion. It can not be supposed that the legislature intended to interfere - with these principles. But if a judgment creditor can at once proceed against the real representatives, they would be in a great measure defeated. By recurring to section 89, we find that the proceeding to revive shall be against “ the representative, real or personal, as the case may requireThe question then arises, under what circumstances does the “ case require” that the proceeding shall be instituted against one, under what circumstances against the other of these representatives? If the judgment is in the realty, it must unquestionably be against the real representatives. But if in the personalty, then against either, “ as the case m.ay require Confining my attention to this act alone, I am free to say that I do not see how a satisfactory answer can be given to the question last propounded. But by turning to another law, passed at the same session of the legislature, which must have been at the same time under consideration, and which, in part at least, is upon the same subject, the difficulty is solved. I refer to the “ act regulating the duties of executors, and administrators,” passed March 12, 1831. 29 Ohio L. 229.

This act is a revision or compilation of the former laws on the same subject, and contains also some new provisions. Section 42 provides that, “ at the expiration of five years from and after the decease of any person, if the executor or administrator of such decedent shall have made final settlement with the court, and if not then, so soon as such final settlement shall be made, all lien upon the real estate of such decedent for the ^payment of any claim against his or her estate, not presen ted to such executor or administrator before such final settlement, should cease and determine,” etc. Then follows the next section, in these words. “ That- nothing in the preceding section contained shall impair the personal liability of heirs and devisees for the payment of any claim against the estate of their ancestor or devisor; but such heirs and devisees shall remain liable to the full extent of the assets by them received from the estate of their ancestor or devisor, for the payment’of all claims against the estate of such ancestor or devisor; and any suit which could be brought or sustained against such ancestor or devisor, were he alive, may be brought and sustained against such heirs and devisees, after the executor or administrator of the ancestor or devisor shall have made final settlement with the court, until the assets so received by said heirs and devisees shall be exhausted.” Taking this section of the law regulating the duties of executors or administrators, in connection with the sections of the practice act before considered, and there seems to be a good and substantial reason for the provision contained in these latter sections, and there certainly can be no impropriety in thus considering them. They were simultaneously before the general assembly, and constitute parts of one and the same system. One law was signed on the 8th, and the other on the 12th of March; and taking all these provisions together, there is no difficulty of construction. If, after the death of a judgment debtor, the judgment creditor must revive his judgment, he must proceed against the personal representative, if there be one. But where there is no longer any personal representative, then he may proceed against the real representatives, and these latter will be liable to the extent of assets descended. Or, in the language of the statute, he may proceed against one or the other, “ as the case may be,” or, in other words, as the case may require.

If the proceedings are against the real representatives, what ought to be shown in the scire facias? Undoubtedly it ought to appear that there are no personal representatives, or that those appointed have made their final settlement with the court; and it ought further to appear, that assets have descended whereby the heirs can, with propriety, be charged with the payment of the judgment. None of these things appearing in the present scire facias, it is defective, and the demurrer must be sustained. If, however, the plaintiff thinks he can make a case, he may take leave to amend, upon the payment of costs.


author: Grimke, J.,

text:
    *Heirs of David French v. Jacob French and E. Hickox.
    A contract made in such a state of intoxication as to deprive the party of his discretion and ordinary judgment, will be set aside in equity, although the other party had no agency in producing the intoxication.

      The discontinuance generally of a bill, after answer, replication, and proofs, is to be regarded as a final decree for the defendant, unless specified to be dismissed, by leave of the court,without prejudice.
    This ease was adjourned from the county of Geauga.
    It was a bill in chancery, in which the complainants sought to have a contract for relinquishing an equitable interest in lands, made by their ancestor, rescinded upon the ground of fraud. The fraud was specifically alleged in the bill; one principal ingredient of which was, that Jacob French, taking advantage of David’s addiction to intemperance, procured him to be intoxicated, and in that condition induced him to transfer his interest in the lands in question to Hickox, who paid no consideration. The answers are directly responsive to the bill, and flatly deny all its allegations. Voluminous proofs were taken, and upon these elaborate arguments were submitted to the court. The principal question involved was the issue in fact upon the truth of the charges made in the bill. The report is confined to the legal points involved.
    John C. Paine, for complainant.
    T. Ford and R. Hitchcock, for the defendant.
   Grimke, J.,

delivered the opinion of the court:

That a court of equity will interpose in such a ease as that made by the bill, is too clear to be denied. It was once supposed to be the law, that a deed obtained from a drunken man could not, for that cause, be avoided. But a more rational rule now prevails; and the law now regarding the fact of intoxication, and not the cause or author of it, and regarding that fact as affording proof of a want of capacity to contract, which is one of the elements of every agreement, will interfere to relieve. Thus, if a deed is obtained by the exercise of an undue influence over a man whose mind is incapable of acting freely and voluntarily, such deed will be decreed to be canceled. The difficulty, generally, has been to settle what degree of intoxication is sufficient to show the want of a consenting understanding. And as to that, it is evident that no universal rule can be laid down, since it is the deprivation of mind which the law has regard to, which may be very different in different individuals under the same circumstances of intoxication. But the plaintiff has failed to substantiate the ease made in his bill. He has, to be sure, adduced testimony, which, if it were not countervailed by the ^testimony taken by the defendant, might be sufficient to induce very strong doubts whether there bad not been great unfairness in the transaction; but all his allegations are met by evidence direct and positive, and which take from the court the power to decree a rescission and cancellation of this deed. It must be an exceedingly strong case which would authorize the annulling an executed agreement; indeed, the distinction between a bill to perform, and to rescind even an executory contract, is too familiar to need to be repeated.

Before dismissing the bill, it is necessary to notice one fact of the case which has occasioned us some difficulty. It appears that there was a former suit between the same parties, and in regard to the same subject matter, and that after proof had been taken, and the cause was ready for hearing, that the complainant voluntarily discontinued his suit. The term “ discontinuance" is one which is exclusively known in proceedings at law, and the complainant should regularly, if he intended not to preclude himself from the privilege of instituting a new one, to have had the bill dismissed without prejudice. In Gichell v. Logan, 14 Ves. 232, Lord Eldon says: “If a party thinks proper to bring his cause to a hearing upon examination of witnesses, publication passed, and the cause capable of being opened, and then makes default, it is very difficult, and would be rather mischievous to treat such conduct merely as a nonsuit at law. But the defendant,” he says, “has waived the benefit that may have arisen from the former decree by not pleading it.” We have not considered the former decree as a bar; but a conformity to the established practice in chancery, as well as safety to all concerned, demands that, in future, the bill should be dismissed without prejudice, instead of being entered discontinued.


text:
    *Lessee of Rice v. Apollos White.
    The county auditor’s certificate of a sale of land for taxes, upon the death of the holder, passes to the heir at law.
    This case was adjourned from the county of Portage.
   Judge Wood stated the case, and delivered the opinion of the court:

The plaintiffs title, in this case, is derived from a deed made by the county auditor on a sale of land for taxes. The certificate of purchase was made to William Wetmore, who died before obtaining a deed. William Wetmore’s executor assigned the certificate to Edwin Wetmore, who assigned it to the lessor of the plaintiff, to whom the county auditor executed a deed.

The only question to be decided is, whether, upon the death of William Wetmore, this certificate passed to his heir, or to his personal representative. Although a court of equity regards a mortgage as personal property, and the money secured by it goes to the personal representative, yet there are special cases in which it is treated as real property that descends to the heir. Toller, 182; 2 Pow. M. 682, 698.

Charters and deeds, court rolls, and other evidences of title to land, as well as the chests in which they are kept, descend to the heir. Tol. 189 ; 3 Bac. Abr. 65 ; 4 Term, 229.

The certificate of purchase does not convey a legal title, but it is evidence of an equitable title to the land, and enables the purchaser to call in the legal title. And it savors so strongly of the realty that in our opinion it descends to the heir, and is not assets in the hands of the executor.

The act prescribing “ the duties of county auditors,” provides that such certificates shall be assignable' in law, and vest in the assignee, or his legal representative, all the right and title of the original purchaser.

The words “ legal representative,” used, as they are, in connection with the certificate of purchase, or evidence of realty, we construe to be the heir, to whom the realty descends.

It follows, then, that the heir only could legally transfer the certificate of purchase, and, consequently, no legal title is vested in the plaintiffs lessor, by the deed, which is predicated on a void assignment. Judgment for the defendant.


author: Judge Lane

text:
    *Frederick Stiver, Jr., surviving Administrator of Caspar Stiver, Sen., deceased, v. Heirs of Caspar Stiver, Jr., and Holdrye and John Stiver, Administrators of Caspar Stiver, Jr.
    A 101 in equity may be an appropriate remedy for settling accounts between executors and administrators of different estates.
    An executor or administrator is accountable for everything he receives in which the decedent had an interest, notwithstanding any contrivance by which an attempt may be made to become receiver, in a different character.
    A purchaser of the legal title to lands having notice that such legal title was a trust for a decedent, takes the land subject to the trust.
    This is a suit in chancery, reserved in the county of Montgomery.
    The facts appearing fronrthe bill,'and the answer of John Stiver, are as follows: In July, 1821, the execution of the will of Caspar Stiver, deceased, was duly committed to the plaintiff and Caspar Stiver, jr. Among the debts returned by the executors as due to the estate, is the amount of a note given by Caspar Stiver, jr., to C. Stiver, sen., for $943, which note, with certain other assets, were held by C. Stiver, jr., in his character as executor. In 1825, C. Stiver, jr., died, without-completing the settlement of O. Stiver, sen.’s, estate; John Stiver is his administrator, and both estates are yet unsettled.
    Before the death of Caspar Stiver, jr., he had conveyed certain lands to Susanna Swartzley, by a deed, absolute on its face, but, in fact, subject to redemption. After his death, in 1825, an agreement was made between John Stiver, his administrator, and his heirs, to whom the equity descended, that John Stiver might sell, the interest of the heirs. Accordingly, in 1825, he contracted to sell if to Holdrye for $1,300, and Mrs. Swartzley conveyed it to him under this arrangement, receiving from him her debt of $590, which was charged upon it, and the remainder was paid to John Stiver.
    The objects of the bill are, to take an account between the surviving and the deceased executors of Caspar Stiver, sen., to enforce the due, settlement and distribution of the estate of Caspar Stiver, jr., and to enforce the appropriation of the fruits of the sale to Hold-rye to the debts of the last decedent.

      The answer of Holdrye sets up a purchaser for a valuable consideration, without notice.
    Crane and Stoddard, for plaintiff.
    Odlin and Schenk, for Holdrye, present the following points:
    1. There is no sufficient proof of C. Stiver, jr.’s, indebtedness.
    2. Creditors s*hould recover judgment at law before going to chancery.
    *3. Personalty must be exhausted before a recurrence to the realty is permitted.
    4. It does not sufficiently appear but that lands remain in the hands of heirs, which should be first subjected to debts. Wright, 261; 6 Ohio, 227.
    5. But aside from all arguments having reference to the formality or informality of the pleadings, the defendant, Holdrye, defends his right and possession of the land upon a broad ground of equity. He purchased from the administrator, by and with the consent and advice of the heirs, who have since ratified and confirmed his title; and the purchase money, or so much of it as was not applied directly to the debts of the intestate, went into the hands of the administrator; that money was, and is, therefore, chargeable in the hands of the administrator as assets of the estate, and if he has squandered it or become insolvent, then the creditor must look to the securities upon his bond. It is not pretended that Holdrye paid for the land a full and adequate consideration. Who are affected by the informal sale ? Not the heirs — it was made with their approbation, and all of them have since confirmed it. Not the creditors, for if the property had been sold by order of court, on petition of the administrator, there is no proof that it would likely have brought more, nor, indeed, any probability that it would have produced so much, to the estate as it did when disposed of to Hold-rye at private sale. By the statute, the heirs are to be made parties defendant to an administrator’s petition, but not the creditors. This is to prevent a sacrifice of the real estate, it is true, as well as to divest them of their legal title, but the creditor is not entitled to a day in court; and it will be found that in those cases where sales have been held void, for want of sufficient order to sell, such decree of avoidance has been for the benefit, and on complaint of heirs. The case of Piatt v. St. Clair’s Heirs is no exception to this; for, in that case, the court held the legal title to be still in the heirs, the sale by the administrator to the trustee being fraudnlent and void, and the purchase of the land by the heir at the tax sale “not changing the estate as to creditors.” 6 Ohio, 227. It is not pretended that every sale made by an administrator, with consent of the heirs, must conclude the rights of creditors. But it is contended that every such sale is prima facie sufficient, even a,s to creditors, and that they have no right to look after the land, but must follow the money in the hands of the administrator. There might be collusion ^between the heirs, administrator, and purchaser, in consequence of which the land might have been sold for less than it was worth; but it would be necessary tó aver and show such collusion and inadequacy of price, in order that the creditor should still maintain his lien. Suppose the case of a small insolvent estate, where it shall become necessary to resort to the land for the payment of debts, and where the expense of filing a petition against the heirs, and procuring an order to soil, may bear a large proportion to the value of the land to be sold; shall not the heirs and administrator be permitted to save this expense to the' estate and to the creditors, by consenting mutually to an advantageous priyate sale ? It would be a hard rule that wouid drive them into court under such circumstances; and, at least, we think that it should be required of the creditor, who afterward objects, to make out a case of collusion or unfairness in i¿he sale, before he shall be allowed to'follow with his debt the land in the possession, of the purchaser.
    It can not be objected, that the money'received thus by the administrator is not assets in his hand, for the faithful application and disbursement of which his securities will not be held responsible. On the contrary, it is maintained, -that w.hen the heirs, being adults, have notice, and consent to the sale, and afterward, in fact, ratify it, everything haS been done that would have been effected by making them parties to a formal statutory proceeding by petition, and it would be making a very refined distinction indeed, to claim that the proceeds, actually received by the administrator, do not as much, in the one case as in the other, go into his hands as administrator, to be accounted for in that capacity. It might be contended, on the same principle, -that whenever an administrator compromises a claim of the estate which he represents, or in any matter exercises a discretion not expressly pointed out among his duties by the statute, he is acting in an individual, not in an official capacity, and the securities on his bond are discharged from liability. More latitude than this must be allowedt a more liberal and equitable construction of*the powers of a legal representative, or their ability to benefit the interests which they represented would be greatly and unnecessarily abridged.
    We find no cases precisely resembling this, but refer to two or three as to the exercise of power by an administrator.
    Where an administrator had released an equity of redemption, *and the heirs released, the court quieted the title of the purchaser. 5 Ohio. 510.

      If an administrator consent to the sale by heirs of the real estate of the intestate, he divests himself of any right which he might otherwise have had under the statute, to make such estate assets, in case of a deficiency of the personal property. 3 Blaekf. 331.
    6. The' purchase of Holdrye was of the legal title without notice.
   Judge Lane

delivered the opinion of the court:

That a bill for an account may be sustained between executors, or between a surviving executor and the representative of a deceased executor, is a plain consequence of their relation as joint tenants. The jurisdiction of a court of chancery, for the settlement of decedents’ estates, has.been sustained, at the instance of creditors, before judgment, because it is a trust. 6 Ohio, 112; 6 Johns. Ch. 631. Eor these objects, therefore, the plaintiff is entitled to a reference to the master.

Some of the other points argued, do not properly arise in this stage of the cause. Proof of indebtedness must be made to the master; all questions relating to the order of' marshaling assets will be presented by his report. As other matters have been argued, and must be determined in the progress of the case, it is convenient to settle them now.

The administrator of C. Stiver, jr., not contesting his liability to account with the creditors of his decedent tor all assets in his hands, insists, that the money arising from the sale of the land being produced from the realty, by the aid of those holding the legal title, without the license or authority from the court of probate, was not received by him in his representative character, but as the agent of the owners, and that, consequently, it can not be regarded as assets; but the law makes it his duty to convert the realty into the means of payment of debts, and no collusion will be permitted between him and the heirs, or between him and the trustee of the legal title, by which it can be withdrawn from the fund. It may justly be presumed, that the parties intended nothing more than to raise money for the payment of the debts by sale of the land, without the expense or delay of judicial proceedings. In the agreement filed, the parties making it are described to be the heirs of Caspar Stiver, jr., and John Stiver, his administrator. If creditors, for whose benefit such a *sale ought to have been made, choose to affirm it, it is too late for John Stiver to evade his responsibilities by disclaiming the character in which he acted.

Holdrye claims protection, as a purchaser, for a valuable consideration, without notice. The evidence does notsustain his claim. He knew of the existence of the bond for reconveyance from Swartzley before his purchase, and he dealt with John Stiver, and paid him his part of the money as administrator, entitled to the fruits of the sale.

Holdrye further claims, that the payments made by him to John Stiver, being in fulfillment of a contract, with which Stiver is chargeable as assets, should avail him as valid payments, and discharge the land ifom the lien of the decedent’s'debts.

The purchaser of lands of a decedent at a judicial sale of an administrator, holds it discharged of liens for debts, 6 Ohio, pt. 1, p. 70; because the administrator, to secure those for whom he acts, gives a bond, whose amount is fixed with reference to the amount of assets he is likely to receive ; and the court, which confers the power to sell, may require adequate security; the protection of such a purchaser is the steady policy of the law. But heirs, holding land of their ancestor, hold it subject to his debts; a purchaser from them takes the incumbrance with the title, 3 Mass. 540; 4 Ib. 354; 5 Ib. 242; 6 Ib. 151; 6 Ohio, 237; and no circuity of conveyance, no collusion or management among the holders of the interests, will free the-land from this burden, or clothe such a conveyance with the immunities attending a sale, made under the sanction of the court.

Since, then, the land was acquired by Holdrye with a knowledge of the interest of the decedent, he will hold it chargeable with his debts, if it be nepessary to pay them. It does not follow, that the land must be resold; it is one of the advantages of a recurrence to equity, that its decrees may be modified according to ciroumstances. If the land produced its full value, the holder may be holden to the application of the purchase money; but the court will lend a facile ear to suggestions of ill faith, collusion, and fraud, and may direct a resale in all cases, at the instance of creditors, for a higher price.

. The first recurrence, however, of creditors, of an estate, is against "the personal representative. If satisfaction can be had there, it is unnecessary to reach over beyond them. The case is referred to .a master, under the usual order, to take an account, and all further questions are reserved until the hearing.


text:
    *Lessee of Benjamin Hill v. Samuel West et al.
    Where a hushand has received property with nis wife and used it, it is a good consideration for a conveyance of land to her use.
    A release from a prior to a subsequent mortgagee operates only an extinguishment of the prior mortgage.
    Where a wife joins her husband in executing a deed of general warranty, she is estopped by her covenant from settingup a subsequently acquired title.
    Motion for a new trial.
    This is an action of ejectment for the recovery of 200 acres of land, in lots Nos. 26, 27, and 31, in the township of Twinsburgh, ia •the county of Portage. It was tried by a jury in the county of Portage, and a verdict returned for the plaintiff, subject to the ■opinion of the court on the following facts :
    Both parties claim title under Moses and Aaron Wilcox, who were legally seized of 4,000 acres of land, situate in said township, -of which the two hundred acres in controversy are a part. The. plaintiff introduced in evidence. *
    1. A deed from Moses and Aaron Wilcox, and their wives, DEuldah and Mabel Wilcox, to Robert and Polly Hurd, dated Janaary, 7-10, 1822, conveying the 200 acres in controversy.
    2. A deed from Robert and Polly Hurd, to Hannah and Mabel Wilcox, for the same lands, dated January 7-10, 1822.
    3. A deed of mortgage from Moses and Aaron Wilcox, and their wives, for the same lands, to the lessor of the plaintiff. This deed is dated November 10,1823, was acknowledged the same day, and contains the usual covenants of general warranty. It was recorded on November 27, 1827.
    4. A record of a suit in chancery, by which the equity of redemption was foreclosed at the October term of the court of common pleas of Portage county, 1832. This suit was in the name of Hill, the lessor of the plaintiff, against Huldah and Mabel Wilcox,, their husbands .having died before the filing of the bill.
    The defendants then introduced in evidence :
    1. A mortgage deed for the whole 4,000 acres of land, owned by Moses and Aaron Wilcox, which deed was executed by the' said Moses and Aaron and their wives, to John Mitchell, Levi Hull, Lewis Clark, Elisha Lane, and Dan. Parmalee. This deed was dated and acknowledged on April 3, 1823, and recorded on May 8th, of the same year, and contains covenants of special warranty. In connection with this deed, they offered proof that the condition of defeasance had not been complied with, whereby the-deed had become absolute at law.
    2. A deed from Elisha Lane, one of these mortgagees, conveying his interest in the mortgaged premises to the defendant. This deed bears date April 25, 1827.
    *3. Similar deeds from Dan. Parmalee and John Mitchell, two others of the mortgagees, dated April 10, 1827.
    4. A similar deed from Lewis Clark, another'mortgagee, dated June 9,1828.
    5. A deed from Huldah and Mabel Wilcox to the defendants, dated April 18, 1829, particularly to convey the land in controversy.
    -To rebut this evidence, the plaintiff then introduced a power of attorney from the mortgagees in the last-named mortgage to E. W. Bronson, and a deed of release executed under this power to Huldah and Mabel Wilcox, releasing to them the premises in controversy. This deed of release is dated July 17,. 1824, and recorded on August 6th of the same year.
    There was further testimony in the case, but it was not of that character to require a particular statement of it in order properly to understand the points decided.
    Webb, for plaintiff,
    cited the following authorities: 2 Kent’s Com. 170; 2 Saund. 177, 180; 7 Mass. 21, 291; 4 Bibb, 436; 3 Call, 394; 1 Tyler, 42; 3 Maryland, 409; 3 Greenl. 50; 3 Granch, 73; 1 Ib. 34; 5 Johns. Ch. 570, 572.

      Powers, for defendants, furnished no argument.
   Judge Hitchcock

delivered the opinion of the court:

On the trial of this case an objection was made to the deed ■from M. and A. Wilcox and their wives to Hurd and wife, on the ground' that no consideration passed at the time the deed was ■executed. From the circumstances attending the transaction, it is clear that the object was to transfer this land to the women, and that Hurd was made use of as the instrument through whom this might be done. But the testimony in the case shows that M. and A. Wilcox had received and made use of the separate property ■of their wives for their own purposes, and it was not. improper for them to make this settlement upon them, especially as there is no evidence of any design to defraud creditors. If there was anything of this kind, it might make a proper case for the interference of a court of equity.

The facts of the case show that the whole 4,000 acres of •land, including the land in controversy, was mortgaged to the ^grantees of the defendants in April, 1823. The '200 acres were mortgaged to the lessor of the plaintiff in the month of November of the same year. Both mortgage deeds were executed by Moses and Aaron and Huldah and Mabel Wilcox. The mortgagors in the first mortgage on July 17, 1824, released all their interest in the 200 acres in controversy to the “two women.

The first question presented for consideration, under this state of facts, is as to the effect of this release.

If a mortgagor is considered as having the legal interest in the lands mortgaged' until the condition broken, and that he is to be so considered as to all the world except the mortgagee, has been ■ repeatedly decided by this court, then upon the performance of “the condition his estate becomes indefeasible. If the condition of defeasance be the payment of money, such payment destroys the interest of the mortgagee in the lands, and such payment may be proven by parol. By the act of March 12, 1836, “ to amend the act entitled an act to provide for the proof and acknowledgment of deeds,” etc. (34 Ohio L. 19), it is provided that an entry of satisfaction by the mortgagee upon the mortgage, or upon the record •of the mortgage, shall operate as a release of the same to any person who may be entitled to a release. A deed of release, executed by the mortgagee, of all his interest in the mortgaged premises, must be at least equivalent to the performance of the condition. As the payment of the money secured by a mortgage docs not-vest a new estate in the mortgagor, but merely extinguishes the lien of the mortgagee, so a release of the premises by the mortgagee to the mortgagor vests no new estate. The release operates to extinguish the claim of the mortgagee, and the mortgagor is in under his original title — not under a title acquired by the release. A mortgagee has not, even after the condition of defeasance has been broken, such an interest in the mortgaged premises that he can convey by release, or other mode of conveyance, to a third person, until the equity of redemption is foreclosed, unless he, at the same time, transfers the debt secured by the mortgage. Neither can lands in the hands of the mortgagee be sold on .execution, until the equity of redemption is-foreclosed. 4 Johns. 41; 5 Johns. Ch. 570. If we are right in this, then it follows the release to Hannah and Mabel Wilcox operates as an extinguishment of the first mortgage, so far as the' same was operative upon the 200 acres of land released.

*They acquired no new title by this release, but held the lands in the same manner, and under the same title, as before the execution of this mortgage, and entirely divested of its lien ; still the subsequent mortgage to Hill was outstanding. At the time it was executed, the mortgagors had such an interest in the land as could be pledged. It operated as a lien as perfectly as the prior mortgage, except that it was junior in point of time. The former mortgage having been extinguished, this attached as a lien upon the land, as it would have done had that never been executed, and the equity of redemption having been foreclosed, the mortgagee is vested with the legal title.

But if we are wrong in this, and these women are to be considered as having acquired a new title or estate by the release, then the question arises,- whether they, or those claiming under them, are not estopped by the covenants in their deed from setting up this title against the lessor of the plaintiff. • At the time the deed to the lessor of the plaintiff was executed, they were femes covert, and as such could not be bound' by their contracts, except so far' as expressly authorized by statute. In this, as in most, if not all, the states of the Union, femes covert are allowed to convey their real estate by deed, their husbands uniting in the conveyance, What in England can be done only by fine, may, in this country,, be done by deed thus executed. By our law, however, in order to give the deed validity, the wife must be examined separate and apart from her husband, and, after such separate examination» must acknowledge the deed. This separate examination seems to be substituted for the fine; still, although in England a feme covert can, by fine, enter into covenants, which will subject her to actions for damages, yet we are not prepared to say, that under our system, she is bound to this extent by her covenants in a deed of conveyance. On the contrary, we incline to the opinion that she is not thus bound. It seems to be holden otherwise, however, in Yirginia. In the case of Nelson v. Harwood, 3 Call, 394, it was decided, that if a feme covert was privily examined, her covenant in a deed for further assurance is obligatory, and the specific performance of such covenant was decreed. Notwithstanding this case, however, we entertain the opinion that full effect is given' to the statute providing “ for th'e proof, acknowledgment, and recording of deeds,” etc., 29 Ohio L. 346, when we hold that a deed executed by a feme covert, in conformity with that act, operates to convey the estate contemplated.

*It is not necessary, however, definitely to settle this question, nor do we intend to do it; for it does not follow, because-a feme covert could not be, made liable in damages for the breach of her covenant of warranty, that therefore such covenants will not operate as an estoppel. We are aware, that in the ease of Jackson v. Vanderhayden, 17 Johns. 167, Judge Spencer, in delivering the opinion of the court, says, that a deed executed by a feme covert, in conjunction with her husband, containing covenants of general warranty, does not operate as an estoppel to her subsequently acquired interest in the same lands. This, however, is the only American case we have found sustaining the same doctrine. On the contrary, in the case of Collard and another v. Swan and wife, 7 Mass. 291, it is expressly decided, that where a wife joins with her husband in the conveyance of her lands with covenants of warranty, the land passes by the deed, and the wife is estopped by her covenants, although she is not answerable. for any breach of them. The same principle is'recognized in the case of Fowler v. Spencer, 7 Mass. 21. Such seems also to be the rule of decision-in Kentucky. 4 Bibb, 436.

These decisions may not seem to be founded upon the reasons ■ which are usually assigned, why the covenants in a deed should operate by way of estoppel, that is, to prevent circuity of actions, still they seem, to us to be reasonable, and such as tend to the furtherance of justice; and when a married woman undertakes, in conjunction with her husband, to convey her land with covenants of warranty, it is sufficient to protect her from the payment of damages for the breach of those covenants; for all other purposes they should be held operative. If, then, after the execution of the deed to the lessor of the plaintiff, Huldah and Mabel Wilcox acquired title to the premises in controversy, that title inured to tbe'benefit of the lessor of the plaintiff, and neither they, nor those claiming under them, shall be permitted to defeat the plaintiff by setting up this after-acquired title. Motion for new trial overruled.


text:
    *James Pedan v. Administrator of H. Robb.
    Guardian appointed in Pennsylvania, receives assets of the ward and removes with both to Ohio, and dies without settlement. The waid can sustain a bill in equity for an account against the guardian’s personal representative in the courts of Ohio.
    Eeserved in the county of Guernsey.
   Judge Grimke stated the case, and delivered the opinion of the court:

This is a bill in chancery. It charges that James Pedan, deceased, was the father and guardian, appointed in Pennsylvania, of the complainant; that it became necessary to sell real estate in that state, and for that purpose an act of the legislature was passed authorizing the sale of the ward’s lands, and directing the investment of the proceeds in stocks, and other safe funds. That in pursuance of this act a sale was made, the money received by the guardian, but that it was never invested; that the guardian removed to Ohio, bringing his ward with him; that they both became domiciled here ; that the guardian died here, and that Eobb, the defendant, is his administrator. The bill is filed to obtain an account, and to it there is a general demurrer.

Objections are made at the very commencement to this whole course of proceeding, as contrary to the policy of our laws and. as inconsistent with the mutual comity, which should subsist -among independent states; that, in fact, there is an entire want of jurisdiction in the courts of Ohio, the defendant’s intestate having been appointed guardian by the probate court in Pennsylvania, where alone he could be called to account, and rendered responsible for any misconduct in the discharge of his duty.

This view is not founded upon any express adjudication, but it is compared to the case of an original administration granted in another state, or in a foreign country; and, it is affirmed that in analogy to what has been declared to be the law in that case, no such suit can be instituted in Ohio. The general principle to which allusion is made is this, that “ no suit can be brought by or against a foreign executor or administrator in the courts of the country in virtue of his foreign letters testamentary or of administration.” This principle has been firmly settled in Great Britain, and has been acknowledged by many of the courts of the United States. 2 Ves. 35; 3 Cranch, 319; 4 Rand. 158; 2 Gill & Johns. 493; 5 Mass. 67; 4 Mason, 16; 20 Johns. 229; 3 Day, 74. But it must be recollected that the law of Ohio has, in some measure, departed from this general maxim. It authorizes an executor, or administrator, ^appointed in any other state, by virtue of that authority alone, to prosecute any suit here. This provision, however, does not, by any necessary implication, involve the liability to be sued in Ohio; that has been supposed to stand upon different ground. The distinction between a principal and an ancillary administration — between an administration •granted in the state where the testator or intestate was domiciled, and one obtained in a state where he had merely left property, •has been fortified by a number of recent decisions, and more par•tieularly by a train of them in Massachusetts; and yet it is doubtful whether the original meaning of that rule has not been impaired and frittered away by the conclusions to which some of these very decisions lead, for in Dawes v. Boylston, 9 Mass. 323, it is held that an administrator'appointed there is held to return an inventory of the intestate’s effects, although execution can not issue against him. In Richards v. Dutch, 8 Mass. 506, it is decided that an administrator, ancillary to the principal one in a foreign country, may be compelled to pay the testator’s debts to creditors in Massachusetts; and in Dawes v. Head, 3 Pick. 128, which is a. very elaborate and learned opinion, the same doctrine is repeated, and the administrator, in that state, is held bound in all cases, even where the estate is insolvent, to pay the debts due to citizens in Massachusetts; he is to pa y pro rata, but without regard to any fanciful preference which may be given to one species of debt over another, and it is only where there is any residuum left, that it is to be remitted to the country where the original administration was granted.

The question now is, what application have these principles to the case of a guardian ? We have seen that the distinction between á principal and an ancillary administration, after all, resolves itself merely into a duty, in the latter case, to -retain the-funds long enough to ascertain whether the whole estate, abroad and at home, will be solvent or insolvent, as regards all the creditors, foreign and domestic, and does not involve an exemption from being sued; so that the agreement, drawn from analogy, does not assist the respondent. 1

In Morrel v. Dickey, 1 Johns. Ch. Cas. 153, it was held, that letters of guardianship, granted in another state, could not be recognized in New York. The learned chancellor so decides upon the strength of the adjudications in the case of a foreign administrator, and does not seem to be aware of Morrison’s case, cited in Sill v. Worswick, 1 H. Black. 665. Mr. *Morrison, being a bond creditor of the respondent, was under a commission of lunacy in England, and the respondent removing into Scotland? his committee (or guardians) instituted a suit there. The court of session-decided that the suit could not bo sustained there, but, on appeal, the decision was reversed, and the final determination, does not appear to have been ever disturbed since. So that, even in Great Britain, an important distinction is taken between a foreign administrator or executor, and a foreign guardian. A guardian does not, like two or more administrators, represent conflicting classes of creditors, residing in different jurisdictions, and themselves residing in different countries. He is not subject to the samé disabilities as an administrator, etc. He may remove from the state where he was originally appointed to any other, and, although it was once a greatly controverted question, yet it is now settled that he has even a right to change the domicile of his ward. Pittinger v. Wightman, 3 Meriv. 67. The reason of the doubt was, that the exercise of the right would put it in the power of a guardian to change the succession to the personal property of his ward; a reason which, although it seems to have had great weight with some of the civil-law lawyers, has never entitled itself to much with English or American jurists.

Parish, for the complainant.

Tract, Bell, and Harree, for the defendant.

It is evident, that if the present suit can not be sustained, the-complainant is without any adequate remedy. If he can not institute a suit in Ohio because the letters of guardianship .were granted in Pennsylvania, he can not, for the same reason, sustain one in Pennsylvania, because the defendant was appointed administrator in Ohio, which leads to the last consideration, and one which is alone decisive of the case; that this bill is not filed against the guardian (for he is dead), but against his personal representative, who is completely accountable to the courts of Ohio. . There must be a decree, therefore, for the complainant, and a, reference to the master, and the same decree and order may be had in the case of Nelson and wife v. James Pedan’s Adm’r, the circumstance of the complainants living out of the state not distinguishing it in principle from the other.