author: Hitchcock, J. Birchard, J.,

text:
    In Bank.
    Dec. Term 1846.
    John Cresinger vs. Lessee of Rezin Welch.
    The sale and conveyance.dfQ laud by’one out of possession, the land at the time being • Jin thb a'dydrse ¿oss'e?sipn of Another claiming title, is no’t void. • . , ■ ;,
    'Where 'áú‘ infant eonyéys landjand' after!’’his arrival at.fuir'agdj-C.onveyhthe- samo land •_. toJ a third person, ffübh"suhse‘qdent conveyance is á disaffirmance 'of the formér. con- ' -'veyancp'.' ■’ ■/'..•’.‘v *•, /. , ... . •• . . ••• J-
    "Where.'iin.uifaht.conveysiland/inere lapse of. tíihejafter hé..árríves at‘full age* will not . J'a’mpuht to a'confirma,tjom. unless after t}venty-one-ye.aTs. ' But.lapse,pf'time for a ' less period, iucconnection'with other facts and, circumstances, inay amount to con- • Urination. ’
    In such case,-the grantor-is not bound to refund or offer to refund the purchase money* • ftefor# he disaffirms'the.coiitfract. • ' ; . • . J. r ■.
    The Supreme Court will not' review on error the ruling of the Court of'.'Common J I?leas7(m charging^or refusing to charge upon an abstract legal proposition not appearing by-the rebofd.to-be' hecc'ssarily .'involved ih the. case. .
    :;-\Ti?4s'-case'cofee¿-'b^ofé-'th.é--C6íúrt.t>jf Writ of Error to .thé;Court of Common Plea's'of Columbiana County.
    ; .' The original action wás ejéctmeht-for the north half of section §3/ in township 17,,'range':5/ ih 'Columbiana county.'
    ■//.On trial'of-the case, tom jury, a.'yerdict wás returned.in.favor of the. .plaintiff,/no-W" defendant'in •'¿jtror} and a judgment en,tergd'.accordingly.
    • 'To', reverse this’.jpdgin'entr’this writ ..of error is prosecuted,' .and,the, errors. coffiplained.-Qpappear; froth'.a'bill of exceptions .tendered .-by.-thé plaintiff, in' erf or, and. allowed by, the Court; bn thfe/t.riaL, ' ■ ; .' . ■ • • ' . ■ ■
    ."The bill of. .exfcéptions is as 'follows
    ■. Be it remembered, that bn the trial of- this', cause, the' plaintiff, to support' thie 'i’sáué on his-part; gave'evidence that the north .half'of- section '33, township 17', range 3, was..paténted' by William: B. - Lupton, and that he "died in -1815.'.leaving three sons,, Elisha’..!’. Lupton/ Cyrus C, Lupton and William H.'.Lupton. •
    'He. further gave in evidence; the deed filed; marked A, from Cyrus'C.-Lupton and' William. H. Lupton, for their undivided interest in .theland, to Rezin Welch; the plaintiff’¿.lessor, dated April 1-5j 1843. - ' .
    '"•He also gave evidence tending 'to shów that Cyrus C. Lupton.■■ was born on the "6th day of-May,'-181.2, and .tha't-William H. ■ Lupton was born on" the 14tff day of Janu.ary, 1815, and, also, .. the’’evidence of Martha Lupton, - that''the' consideration from Kline -was horses, but whether there was money besides, .'the - witness did not know. Elisha had the horses.in 'His own hands’,- and she does not know"of his having given any of the proceeds ', of the horses to, Cyrus and Williarh, and does not believe, he. did, arid she believes she would have known it if. •they had re- .- ceived any'. - '
    The defendant, on his part,, gave in.evidence,-.a',deed filed, marked' B, frorii -Martha Lupton,''(the widow of William B: Lupton,)'Elisha F.-Eupton, Cyrus C..Lupton and-William H, Lupton for' the.- said north- half, of section -33; -township -1.7, range 5, to Peter Kline,', which d'eed':-was-regularly executed; acknowledged-and recorded, and dated on the 2Ót'h‘feéptembóf, 1-83-2." ; '■ '. , ... ’ ... '(.-L
    They also gave in evidence, subsequent deeds-from Kline to Heslep, and from' -Heslep to Jennings, for 'the 'same- premises, which are filed, and-, marked C and.D. • h
    They also gave in evidence; a.dee'd for-the. premises' in--dis-' pute from-' Jennings to Coy, filed, .marked E;'and subsequent, conveyances from Coy to Smith, and Smith- :to- Cresiriger, • the defendant,--filed, marked F, G.' •. . .'■• ■" -,'
    The defendant also gave in evidence, that.$1,000, thé- con- : sideration expressed.in the.deed; B, to Kline,-was,-(at-thb time, •" a full, fair consideration for the land, which wa;s-,.atdhe'execu7\ ■tion. of'said d.eed, wild arid uncultivated; 'thát-it'hé -subsequent -purchasers went on to the land, cleared, Icultivated; improved'-- and occupied the saíne under-'their respective deeds., ;y •
    .. That the defendant, Grésínger, went and- ..farmed, and .iipproved' the land,.-and. was.in-ÁctúM.pqssessiqiH-.Úñd-peóupht-ion of .the-land From "the daté of his' deed; Until-;-at (.'and': after .the , execution of Cyrus and W'ilham'Lhpton- of ;the deed;to. Welch»:*-

      They further gave in evidence, the deposition of William H. Lupton, filed, marked G.
    There was no evidence offered on the part of the plaintiff of any act or expression by Cyrus and William, or either of them, disaffirming their deed to Kline before the execution of the deed to Welch, nor of any claim or demand of possession, nor. of any entry on the land, or notice to the tenants, prior to the beginning of this suit and service of declaration in this cause. Nor was there any evidence of any return or offer to return the consideration money received from Kline.
    But evidence was offered on the part of the plaintiff tending to show that, at the execution of the deed to Kline, Cyrus and William Lupton resided in the city of Baltimore, and continued to reside there until after the date of the deed to Welch, nor was there any evidence of their having been within the State of Ohio at any time after the date of the deed to Kline.
    And the defendant asked the Court to charge the jury —
    First: That if a person under the age of twenty-one years, but above the age of discretion, and apparently twenty-one years of age, represents himself to be of that age, and thereby induces another person to purchase land from him, take a conveyance and pay the purchase money, or part of it, the party making such representation is estopped from claiming back such land and. proving tlrat he was not of age, if the purchaser believing such statement acted upon it, paid the purchase money accordingly, and has in his conduct been perfectly fair and honest in the transaction; which instruction the Court refused to give, but charged that such was not the law.
    The defendant further asked the Court to charge —-
    Second: That the purchase by Welch, .and receiving a deed from persons out of possession of lands which are in actual adverse possession of persons claiming title, is an act of champerty and maintenance, illegal and void; which instruction the Court refused to give, and charged that such was not the law.
    They further asked the Court to .charge —.

      Third: That the deed to Welch is not such an instrument as that its mere execution, without further act, would amount to a disaffirmance of the prior deed by Cyrus and William; which instruction the Court refused to give, but charged that such was not the law.
    They also asked the Court to charge as to disaffirmance —
    Fourth: Where lands are cultivated and held in actual adverse possession under a deed made during minority, that deed cannot be avoided by the mere execution of a subsequent deed to a third person, after the minor comes of age, without some prior expression or act done to disaffirm the conveyance, as entry, claim or demand of possession, notice of disaffirmance to the tenant, or suit brought to recover possession: but such subsequent deed is of itself void, conveying no title; which instructions the Court refused to give, and charged that such was not the law.
    They also asked the Court to charge —■
    Fifth: If the Court should deem such prior act unnecessary, and that a minor’s deed may be disaffirmed by the mere execution of a subsequent deed, yet they are asked to charge: That, lapse of time, less than twenty-one years after the minor comes of age, may furnish evidence of acquiescence and confirm the title; to which request, the Court answered and charged, that lapse of time, less than twenty-one years, was not of itself evidence of acquiescence, but might be evidence of such acquiescence in connection with other facts and circumstances.
    They also asked the Court to charge —
    Sixth: That the right to disaffirm a deed made during minority, may be extinguished:
    1. By any act done under a knowledge of his right, which demonstrates a willingness to be bound by the contract; or,
    2. By continuing, after acquiring such knowledge, to enjoy any'benefit, profit or privilege, under the contract, after they, attained full age.
    To which instructions the Court answered and charged —

      That such was the law, but that retention of .the purcháse money in -this case was not of 'itself an apt demonstrating' a willingness to be bound by the contract, ’and that a minor -was not bound to ■ return or offer to return; the purchase money, before disaffirming’his deed: made during minority, . '•
    They further asked the Court to charge —
    Seventh: That tlie silence of the party after-coming of age, might be evidence of' acquiescence arid confirmation,. although for a less period than .21 years after coming of age.
    To .which, the Court answered and charged —
    •That silence for a less period-than -twenty-one years, was not, of itself, unless connected with'other facts and circumsta'n- ■ ces, evidence of assent to', .or confirmation of a deed made during, minority. ■ ' ' < ■ _• ;
    . . To'all which rulings'and charges, thé defendant,--by his counsel, excepts and’prays the Court to sign this,' his bill of excep-. 'tions,' which is' accordingly done, and made part of’ the record 'in this case. ■ , '• '
    Tjpon','this record, including the bill of exceptions, the-following errors' áre assigned •
    . 1. That the Court erred in refusing to charge .the jury a? prayed for by said plaintiff in error , • . .
    2. That-the charge given by the Court-was not. the law of the c’a,se..
    3. ■ That the.'judgment'was given in favor of the defendants' 'in error,-when by -the law of the-land it should have been given in favor of the-plaintiff in error.- '

      Umbstartir fy Stanton, for Plaintiff in error.
    First: It appears by the bill of exceptions, that on the 20th' of September,-1832,>the lands in dispute, then -wild and uncultivated, were sold and conveyed for valuable consideration by the Luptons to Kline. That between that time and the 15th of April, 1843, á period exceeding'ten years, they .passed by five intermediate', conveyances, to persons by whom they were held in possession, improved and .cultivated.' That,-with'a knowledge of-these facts, from a view.'to speculate by litigat'ion With’ the tenants; Welch';' for a- small consideration,'procured a deed to himself'from the Luptons, Who had'never set Up' any claim to the premises after their deed to Kline, nor- sought by any means to avoid their former conveyance. The de'ed, thus procured, .forrns Welch’s whole, claim ;of title;, and the main question presented by. the record, is, Whether,, under the existing state of facts,.his title is better than' the' holder .'of the .land in possession, and-claiming'under the prior.deed -of the 'Luptons. ' '
    The.'title 'of' the Luptons, at the' date of the .first deéd, is-unquestioned. ■' Supposing them to'have been .Under age at the date of its éxecution,- still that, deed passed' their title, and vested the fee in the grantee and his assigns, where it would remain-■ until that deed 'should be' legally avoided.. “-The deed.'-of a ¡ minor is' not void, but only voidable. -It trans.mits'thé-.title..to. c the grantee,-and after vesting, it-continues in the grantee until “divested by. some-act'pf th:e maker pf -the deed.” Lessee of Drake and wife' v. Ramsey and others; .5 Óhio Rep. -25-1. •
    • Bool v. Mix, 17-Wend. 130, where the. effect of .such con-, v.eyánce is.-fully considered, and.many authorities cited. No' act .is claimed tó have been done by ; the Luptoné in-disaffirmanee of .the former deed-,-other than the mere.execution of the subsequent-'déed 'to Welch. And unless the mere execution of; the second deed could perform the twofold Office — ; first, of re'investing the.Luptons with title; and secondly, passing it from them to, Welch, he has.no title. : ' '-
    '■ The-principal cases relied ón to sustain.Welch’s title; are, ■Johnson - v. Carpenter, IT Johns.-539; Jackson v. Burchin, 14' Johns; 124; Tucker v. Mpreldnd, TO- Pet. 58; ’ Lessee ' of. Draké and wife.v., Ramsey and others, 5 Ohio -Rep. 251'.;
    These eases Were-all-cited and examined, in the latter cáse, of Bool v. Mix, .17,Wend. 133 ; and the rule established--by thpm -. is thus stated by; Chief-.Justice Btonson, délivéring-the'opinion-.'of: ■ the Court:,: “’A deed of bargain and sale executed by an infant,’ < may, under certain circumstances, be avoided by another deed ‘ bargain and sale to a third person, after he becomes of age, £ jjgjjjg an act 0f the same description and of equal notoc riety with the original conveyance.”
    Thus, it is seen, the rule is not universal in its application. It may operate “ under certain circumstances,” What these circumstances are, is to be learned from the cases. They are thus stated in Bool v. Mix, by Chief Justice Bronson, reviewing each case:
    “ It was said, in Jackson v. Carpenter, that the conveyance £ of the infant was not attended with all the solemnities of a £ feoffment and livery; and, that it might be defeated by an act £ of the same description and of equal notoriety. In holding £ that an entry was not necessary to avoid the deed, stress was £ laid on the fact that the land was vacant and uncultivated, and £ an entry would have been useless. In Jackson v. Burchin, £ the land was also vacant at the time the second deed was exec cuted; and the Court say, the law does not require idle and £ nonessential ceremonies; and it would be idle to require an £ entry on the premises in 1795, when, not only this lot, but the £ whole country in which it was situated, was a wilderness. In £ Tucker v. Moreland, 10 Pet. 58, the infant had never been £ out of possession.”
    He then remarks: ££ If, in these cases, the land had been £ held adversely to the infant, the second deed would, I think, £ have been void, and could not have amounted to a revocation ‘ of the first conveyance. This was admitted in Jackson v. £ Burchin. See, also, 13 Mass. Hep. 375.”
    Thus, then, the Supreme Court of New York, with the light of the former case before them, state the rule by which a subsequent deed amounts to a revocation of an infant’s former conveyance, as existing, not universally, but under certain circumstances, viz: first, where the land is vacant, and actual entry impracticable; or, an idle ceremony, as in Jackson v. Carpenter, 11 Johns. 539, and Jackson v. Burchin, 14 Johns. 124; or, secondly, where the infant has never been out of possession, as in Tucker v. Moreland, 10 Pet. 58.

      Now it will be observed, that at ,the execution of the deed to Welch, the land was cultivated, improved, and was “ held adversely to the infant.” It is stated, moreover, by William Lupton, “ Rezin Welch knew, at the time Cyrus and I sold him ‘ the land in Ohio, that we had before deeded and sold the c same land to Mr. Kline. Rezin Welch mentioned to Cyrus £ and myself, at the time he bought the 'land of us, that he, ‘ Welch, was buying a lawsuit, and told us that there was five ‘ or six persons living on said land, and that he, Welch, expect- £ ed to have a great dedl of £ la wing ’ to do before he would £ get possession-of said lands.” (Wm. B. Lupton’s deposition in bill of exceptions.) These facts bring the case directly within the opinion expressed by Bronson, J.: “ If, in these ‘ cases, the land had been held adversely to the infant, the ‘ second deed would have been void, and could not have £ amounted to a revocation;” Bool v. Mix, 17 Wend. 133. The ground of the distinction, as explained by the whole case, seems just and reasonable. To constitute an estate in fee, there must be legal and actual seizin of the land. Where there'is no actual adverse possession, as in the case of vacant and uncultivated lands, the actual seizin will be presumed to follow the legal seizin, and thus actual entry becomes useless ceremony. Where there is actual adverse possession, this presumption cannot be made, for presumptions can never be made ’ against the established fact..
    The same doctrine is established by other cases. In Worcester v. Eaton, 13 Mass. Rep. 375, it is said, by Chief Justice Parker, that the deed of- an infant is not void, but voidable, so that the title will remain good to the grantee until the grantor shall lawfully disaffirm it. ££ He can only do it by entry ; but £ having entered, his subsequent deed, accompanied by proof of £ facts tending to avoid the first, will convey a title. And the £ reason why, unless the first deed be thus avoided, no subse- ‘ quent conveyance by the grantor can' be good, is, £ because £ he would not be seized of the land” Worcester v. Eaton, 13 Mass. Rep. .375. So in Roberts v. Wiggins, 1 N. H. Rep. 7.3', if was said that, ‘.‘in general, an infant, to avoid his- deed; must.reenter oh.the land and oust the Occupant;' or,' if alre.ú-. ‘ dy in possession, must.’'perforin some apt expressly evincing, ‘ his intention tp defeat-the conveyance.” 'In the latter instance, the mere execution of another deed, would amount to a disaffirmance,, because.-the infant-has'actual seizin: ■ " ■
    It is claimed, however,--that by the case of .Drake and Wife’s Lessee v. Ramsey 'and others,. 5 Ohio Rep.-251, the validity of Welch’s -deed is established. - That was ejectment by the.' infant and her husband: It was not a suit by -a third person, claiming disaffirmance .by the mere execution of a deed, while ' the lands, were in adverse -possession; the questions were, .within • what, time the infant’s deed might, be-disaffirmed,, and whether .,' it might be done by action. An ejectment was held to be ' sufficient 'disaffirmance,'and the-Judge-.delivering the opinion ' remarked:. -“'We believe that ari -entry, suit; or action, a.süb- ‘ sequent conveyance, an effort to restore parties to their original ‘ condition; or. any act unequivocally manifesting the.intention, ’• ‘ would render- the avoidance .effectual; and that the institution ■ ‘ of their suit is an act. fully possessing that, character.”'. It is - ' apparent, therefore, that the.case of Drake and 'Wife’s Lessee v. Ramsey ', cannot be considered an authority directly supporting Welch’s deed;'-because the facts are hot the.' sapne, the modé of disaffirmance being-totally different.' The-most that can be claimed is an- intimation of opinion, an- obiter dictum. But evén -that- is not warranted; for the judge .does 'not say that ■.' the inodes of disaffirmance enumerated .by him. are of .universal .' validity. Nor does he.undertake to distinguish, except'iir the ■case.theii before, the Court, under, what' óircúmstances any -.' specific mode may. operate as a disaffirmance.'. He 'by no'.means , intimates-even an-opinion that'a-subsequent conveyance would': .opérate to 'disaffirm the-'.'prior'contract,-and'-.also' vest .thé estate iri á:third..perso'n, where.-there .is'ad.vefselp'osse'ssiqn'under.'t.he ' former deed'.. .-.■ ' ]' y.b. C l;:'

    The 'question'.is, therefore,--open-to. this' tribunal.^ Since' -' Drake and Wife. v. Ramsey-'f as'decided, the Questions here.. involved have been examined and elaborately discussed/.ip Bool v. Mix, 17 Wend.; and the opinion sanctioned by the Supreme Courts of New York, Massachusetts, and-New Hampshire, that where, the land is held adversely, at the execution of a. subsequent deed; the-mere execution-of such'.deed'is not .sufficient'to disaffirm a former deed; by an- infant, under which ' the tenant ■ is in possession, and. vest the estate-in á-third .'per--soh;; but such'subsequent deed is itself void. ' This opinion .is I founded, 'moreover dtt -the general principles and'theory of' the law, and not contradicted by any authority.. .- ■' \
    • Second : .The deed -to, Welch is void on the ground, of -maintenance.,. --, i ■'
    ■-. - .In -some'.-S-fa-tes, deeds .made by parties, out'.of possession of. lands held adversely, are prohibited by- statutes/.declaring- the ’ instruments'void,-and-jmpósing penalties upon the parties.' .In ■Ohio, no such statute exists, but'the rule of tlie common law prevails'; 13 Ohio llep.-.l'75'. In Tndiana, there/is no such statute-; and there it has been repeatedly, held,, thata deed for real property, if there be a.n adverse possession at the time, is void .; File v. 'Doe, 1 Blackf. 127 ; Martin v. -Face, 6 Blackf. ‘99,; Bowman v. Wath'en, 2 McLean,'380, In' File v.' Doe, the Court remarks: “ We have no particular statute-, probibit- ; - £ ing the buying and selling of .pretended .titles, and, therefore, ‘ reference must be.had for the doctrine to the common law-of ‘.England/which .is adopted into our''code. The"law- un- "£ doubtedly is, tfiat if-.a. person, out of possession,' convey to a --.£ 'strán’ger land .held at the-time adversely by-another, the con^ • £ veyance is .void as .an act of maintenance.” . '
    ’ in Martin v. Pace, 6 Blackf. 99, it was' held, that if a per’-sop, out of possession, convey land -held adversely by a third ' person,- the conveyance is void on the ground of maintenance, and ■ the title remains- in the grantor. It' is remarked by the Court: •££ The persons who claimed the land could, have nothing -£ mofe tiran a- right of entry, the.-land being.held at the time £ adversely.by another; and it is a- principle.of the common £ law, that such á 'right is. not assignable”.- C°- Lift. 266^
      Jackson v. Demont, 9 John. 55. In New York, it is held, {hat if a person, out of possession, convey land held adversely by another, the conveyance is void for maintenance, and the title of the land remains in the grantor; Williams v. Jackson, 5 John. 489. We entirely approve- the Néw York decision, that the conveyance which is void on the ground of maintenance, creates no forfeiture of the grantor’s title; but if it did, that circumstance would not weaken the defence under consideration. The authorities all concur, that the grantee, in a case like the present, takes nothing by the deed. Martin v. Pace, 6 Blackf. 99.
    So in Bowman’s Devisee v. Wathen and others, 2 McLean’s Rep. 380, the same doctrine is held. “ If the possession was £ held adverse, the deed conveyed no title, In Indiana, there £ is no statute which prohibits the sale of pretended titles. But £ the statute of 27 Hen. vni, was in affirmance of the common £ law. And in Co. Litt. 369, it is laid down, if a person out £ of possession convey land which is held adversely, the con- £ veyance is void. 9 John. Rep. 55; Partridge v. Strange, £ Plowd. 77; Fite v. Doe, 1 Blackf. 127.”
    The principle has moreover been recognized in a late case by this Court. In Weakly v. Hall, 13 Ohio Rep. 175, Judge Wood remarks: “The English and American Courts have £ considered agreements founded on such considerations as £ champerty and maintenance, as against sound policy, and £ void; Key v. Vattier, 1 Ohio Rep. The common law dis- £ courages officious intermeddling in the litigation of Others, as £ it clearly ought. In some of the States, they have statutes £ passed to prevent it, in others not; but where no statutory ‘ regulation exists, the common law is universally holden to ‘ prevail, as imported by our ancestors, and - applicable to our £ local circumstances.”
    In Maryland, where this deed appears to have been executed, it would have been held void; 4 Kent’s Com. 448. For in that State the doctrine prevails, that a conveyance by a party out of possession, and with an adverse possession against him, is void. 4 Kent’s Com. 448,

      It is said, however, that the Supreme Court of this State has decided, in Hall’s Lessee v. Ashley and Craven, 9 Ohio Rep. 96, that a deed for land, notwithstanding adverse possession at the time of its execution, is valid. But that case will, on examination, be found clearly distinguishable from the present; and even if it were not, a consideration of the reasoning and authorities might lead to a different conclusion.
    It that case, it appears that adverse possession was proved on the trial. But, from the abstract of the defendant’s argument, it does not appear that the point was made on the motion for a new trial. Not one authority is cited to that point. But the Judge, in delivering the opinion of the Court, alludes to the question as having been made, and expresses his views upon it. In that opinion the Judge seems to have thought, that the doctrine of deeds being void in cases of adverse possession, was derived solely from the English statutes against champerty, and that those statutes not being in force in this State, the law did not prevail. He moreover attributes the passage of these statutes to “ peculiar exigenciés; such as signal revolutions, ‘ when the property of the kingdom, to a great extent, changed ‘ hands, and to the introduction of uses.”
    Now, it has been decided, as we have seen by numerous respectable tribunals — the Supreme Courts of New York, Massachusetts, Indiana, and the Circuit Court of the United States, that this doctrine has no dependence whatever upon any English statutes; that it has ever been a principle of the common law, depending upon no “ peculiar exigency,” occasioned by no “ signal revolution,” and having not the remotest connection with “ the introduction of uses.” History, moreover, informs us, that since the Norman conquest, no revolution, however “signal,” has effected any great change in the possession of lands in England. And, says Chancellor Kent, “ this principle c is not peculiar to the English law; it was a fundamental doc-c trine of the law on the continent of Europe — in Holland and ‘ in Germany. It seems to be the general sense and usage of * mankind, that the transfer of real property should not be valid, ‘ unless -tbe .grantor hath capacity) as well as the intention, to deliver possession.” Sir’.Wm. Blackstone says,’ that it prevails in the code of “ all well governed nations4 Kentfs Com. 448.,, And, again, he.says-:' “’The doctrine that-a conveyance-J by a party out of possession, an'd-with ah adverse possession ‘ against him’, is! not-valid,. preváirs .'equally'in-Cdnnectié'utpMas- <■ sachu.setts,-Vermont, Maryland* New Fork, Virginia, .-.North. c Carolina, • Kentucky, Indiana, and probably inf most -df. the tether-States!” . 4 .Kent’s ¡Com. 449.- ..'. ”'. .". . f - ■ .
    In- three States, -only does the ’different ddctrihe. prevail,'.-viz:' New Hampshire, Pennsylvania and' Tennessee. '4-Kent’s’Com. 449, . ." ; v /; - W; ’:V’
    ■ •; .Whatever/'may.have been' its f origin, this-, doctrine does hoi ' depend for its existence upon. English .-statutes,1 or,any other' statutes','but''obtains, as a. settled.' principle, of "the cpffímon íávy, - •whether'the States have, or ’have not,. statutes’, against''cham';'pertyv-'/Nor.does.’it’’, depend '-upon what Judge- Grimke. terms .“.peculiár exigencies, which are .almost entirely foreign to-Our habits and. condition,” büt'.is sanctioned .-in nearly every tribunal. in, this country, having' the. same co'nditióií'ánd habits as' -our-". selves1; -and.it.is 'because'- such 'sales are, in the language of ,th.é" later, opinion of Weakly, v. jlull, 13 Ohio Rep. 175, “against sound policy, and void..” ’’ < • • .. ' • ' '/ ' , .
    It is'true; as is .said- by. Chancellor .'Kent, that the principle was founded, that is* had its commencement “ in a s,t'ate, of. society which'does not exist in this country:” And so did almost every principle .and rule of law relative to- real estate, ■which is still cherished. But although the state of society is . changed, the principle and its application, resting upon reason and policy, has undergone no change; for it has been found .adapted'.-to every age' and . state, of society — ■ foreign ' to no “ habits of condition.” That portion only’of the ancient policy,
    • declaring'a forfeiture, of the grantor’s estate, and1 imposing a penalty upon, the purchaser,, has, in. the absence of express f statutes, been abandoned;, 4- Kent’s Com. 446,. 447; 6 Blacfcf. , Moreover, the' doctrine expressed by the Judge, in 9 Ohio Rep., is pverruled, partially; and so far as the general principle he asserts, by the late case of Weakly v. Hall, 13 Ohio Rep. 175, wherein it is asserted, “ that the common law principle in reía- ‘ tion to champerty and maintenance does exist, notwithstand- { ing the absence of ^express statute,” and is universally holden to prevail, as imported by our ancestors, and applicable to our circumstances. The opinion, therefore, ■ in Hall’s Lessee v. Craven, 9 Ohio Rep., is to be limited to the precise'case then before the Court; and, beyond that, is neither correct history nor solid law.
    But should. this Court hold, upon the authority of Hall’s Lessee v. Craven, that a deed might, under some circumstances, be valid, notwithstanding adverse possession, still the present is distinguishable from that case.
    In Hall’s Lessee v. Craven, neither grantor nor grantee had any knowledge, at the execution of the deed, of an adverse possession. The tenants claiming under the heir at law had a merely naked possession. There was nothing to impeach the fairness or motives of the parties to the deed; no “ buying a lawsuit,” as Welch termed it, nor any reason whatever to question the title, or suspect that it would be contested. What constitutes the turpitude of such acts, in the eyes of the law — vexatious litigation, harassing and overreaching innocent persons in possession — seems to have been wholly absent from the case.
    Whereas, at the time this conveyance was made, “ when he bought the land of us,” says' William H. Lupton, “ Rezin ‘ Welch knew that we had before deeded and sold the same ‘ land to Mr. Kline. Rezin Welch mentioned to Cyrus and ‘ myself that he was buying a lawsuit, and told us there was ‘ five or six persons living on said land, and that he expected { to have a great deal of ‘ lawing ’ before he would get pos1 session of said land.” (Wm. H. Lupton’s deposition.)
    Whilst, therefore, in the case of Hall’s Lessee v. Ashley, there seems to be nothing calling specially for the interference of the law — nothing demanding its stern rebuke — it is difficult to conceive a case which would, (if Welch’s deed be upheld,) more than the present, encourage, promote and extend “ that indicates a more officious intermeddling in the litigation of others,” and therefore, in the language of the opinion, in 13 Ohio Rep. 175, “to be discouraged by the common ‘ law, as against sound policy and void, and which the law of * Ohio will not tolerate.”
    This difference in the circumstances of the cases, as regards the state of title at the date of the deed; the knowledge, conduct and design of the parties, in respect to the tenants in adverse possession, warranted a difference in the principle of law to govern them. In one case, it was a purchase of a valid right, without knowledge of adverse claim or possession. But, in the present case, it was “ buying a lawsuit” with open eyes, full knowledge, and declared intention to speculate, by “ Iawing ” the tenants out of their possession.
    Now, in Massachusetts, Somes v. Skinner 3 Pick. 61, a distinction has been made, where the purchase has been knowingly made, with intent to disturb possession, from the case where the adverse possession was unknown at the time. It is there said, where the grantor is disseized, and this fact is known to the grantee at the time, by the policy of the law, and in virtue of ancient statutes, perhaps the deed would be wholly inoperative, both parties being transgressors in relation to such conveyance; but where the disseizin of the grantor is not known, which may be where the land granted is remote from the domicile of the parties, as no offence will have been committed, there seems to be no good reason why the contract between the parties should be defeated; Somes v. Skinner, 3 Pick. 61. And, in New York also, a distinction has been suggested between the sale of a pretended title, on speculation, and that of a valid right. 3 Johns. Cases, 105.
    Whatever, then, may be thought of the law expressed in Hall’s Lessee v. Craven, and even if this Court should reassert it as a general rule; still, the circumstances of this case withdraw it from the operation of that rule, and render Welch’s deed inoperative, and void at common law; void by .the concurring views of. Courts in almost every State in the Union, without reference to any statutes — and void by the principles of good morals and sound policy, declared and acted on by this Court..
    Third : The instrument under which Welch claims, is either a mere release of an undefined interest, or an executory contract to convey; and, in either case, it is inoperative to disaffirm the prior deed, or to pass title.
    The preceding remarks have been made upon the hypothesis, that the instrument under which Welch claims was in due form, with apt and proper terms in the law to pass title; but upon examining it, as set forth in the Appendix, (B,) it will not be found to have that effect.
    In considering the deed, its different parts, the premises, recitals, habendum clause and covenant of assurance, must be taken together, and subject to these well established rules:
    1. That the construction be made upon the entire deed, and not merely on disjointed parts.
    2. That the general words in the premises of a deed or grant, may be corrected, restrained and explained by the context, or recitals of the deed. 5 Com. Dig. 264; Parols, A. 7.
    Now, it will be observed, that the premises alone do not contain any words of present grant. And they are inoperative,, because, in that portion of the deed, there is no description of the subject -matter to which they may apply, and, also, because they are repugnant to the context. The premises would imply an intention to convey some entire tract of land ; whereas, it subsequently appears that the grantors claim only an undivided interest, as “ part of William B. Lupton’s legal heirs and representatives,” having a “ distributory share,” and that they had agreed to £‘ sell, transfer and set over their estate, right, title and interest.” The recitals therefore narrow, or, in the language of Cornyn, restrain the general words of the premises, and import an executory agreement ££ to sell, assign, transfer £ and set over their estate, right, title and interest, claim and ‘ estáte, at law and in equity.” ■ The deed contains nothing further, except the habendum clause and the covenant of' further assurance; which covenant' comports with, and strengthens the construction here given, as does also the habendum clause. This clause is for, “ the said described interest ” in said lands and premises. The habendum clause may abridge or alter the generálity of the premises; Hob. 171; 4 Com. Dig. 107, Fait. And the covenant for further assurance, is of “the right, title, ‘ estate and interest, at law and- equity, which said parties hath, ‘ or can lawfully claim in and. to said' premises.” The sealing and acknowledgment of -the instrument, though essential to constitute a deed, yet do- not aid its construction., nor change the effect of its terms; And hence whát is usually termed the granting clause of the deed, being itself insufficient-to pass title, for want of description of the subject matter, to which the terms therein used may apply; and the reinainder of the instrument containing no words of grant, but merely a recital of an agreement to sell, assign, transfer and.set over an undefined interest, with a covenant to the same effect, it would seem to be a merely executory contract, and not a deed operating, upon its delivery, tó vest title eo instanti. At all events, it cannot' be construed as any thing more than a release or quit claim of an undefined interest in thé land, and could operate only upon such -interest as the Luptons had at the date-of its-execution. Now, we have seen they had not then any interest in’the land. They had a mere right of entry, or a personal right to avoid a prior deed, by which the estate had passed, and Was that moment vested in the tenants holding under Kline’s deed. Until this avoidance were made, the Luptons had no interest, and the right to avoid being personal, could not be purchased by, or released to Welch. But yet it-is manifest from the whole instrument, that the intention was., on the one hand, for Welch to purchase, and, on the other, for the Luptons to sell, assign, transfer and set. over, this very right or interest, and nothing more.

      For it is curious to observe how carefully the instrument avoids the assertion of any positive or certain interest of Cyrus and William in the land, or any reference to their former deed. There is neither seizin nor warranty mentioned. It would seem from the face of the deed and William Lupton’s deposition, that never having before asserted any claim to the land since the deed to Kline, they were still resolved to do no act, except receive the money Welch offered for his speculation, and let him into their rights, and to pursue them at his own hazard. He informs them of the situation of the land — he “ buys the lawsuit ” — he is “ to do the lawing ” necessary to get possession. In preparing the instrument, the .Luptons seem expressly to avoid anything like a disaffirmance of their former deed, at the very time they tell Welch of its existence, without expressing any dissatisfaction — and do nothing more than suffer Welch to step into their shoes. Now whatever right they may have had to disaffirm their prior deed, that right was personal, and could not be purchased or “ assigned, transferred and set over.” Their release of it is therefore void, because at the time they had no assignable interest. Welch doubtless supposed that an infant’s deed was void; that, therefore, they were still seized of the land, and' that any instrument operating as a release or quit claim of their right and interest, would vest in him the title. If in this he has been mistaken, he has met a common fate of speculators in “ lawsuits.”
    This view is strengthened by a comparison of the two deeds, from which it will appear that the deed to Welch could not have been intended as a disaffirmance of the prior deed to Kline, but as a mere assignment, or release of some fancied, undefined and uncertain interest.
    Should the preceding views be correct in reference to the disaffirmance of the prior deed, or in respect to the validity of the subsequent deed as a conveyance of title, in either case the Court of Common Pleas erred in charging upon the second, third and fourth points mentioned in the bill of exceptions.
    Fourth: It is also claimed that there is error in the charge upon the remaining points herein specified, except the first, which is abandoned.
    Upon the fifth point, the Court charged that lapse of time, less than twenty-one years, was not, of itself, evidence of acquiescence, but might be evidence in connection with other facts and circumstances. Now, the law is thus declared, in Drake and wife v. Ramsey, 5 Ohio Rep; 152: “In our opin- ‘ ion, lapse of time may frequently furnish evidence of acqui- £ escence, and thus confirm the title; but of itself, does not take ‘ away the right to avoid until the statute of limitation takes ‘ effect.” The right to disaffirm is taken away by any affirmance or assent after coming of age. It may exist, provided there has been no affirmance, until the period limited by the statute. Lapse of time less than that period, is no bar, but is evidence of acquiescence or assent. Whether it will be plenary proof of such assent, must depend upon the circumstances of each case. In asserting that lapse of time was not, of itself, evidence of assent, the Court of Common Pleas erred.
    Fifth: The Court also erred on the sixth point, assuming to say, “that retention of the purchase money, in this case, ‘ was not, of itself, an act demonstrating a willingness to be £ bound by the contract.” It was for the jury alone to say whether a retention of the purchase money was or was not, in this case, evidence of affirmance. The question of affirmance was one of fact. The retention of the consideration was evidence of that fact, to be weighed by the jury in this case, and decided by their own judgment, as much as in any other case. And in undertaking to decide for the jury that, in this case, it was not evidence of assent, the Court assumed a province not belonging to them, and therein erred.
    Sixth : Upon the seventh, and last point, the same error as in the fifth was committed. Silence, after coming of age, is evidence of acquiescence, whether for a day, a year, or series of years. Like lapse of time, it forms no absolute bar within less period than twenty-one years, as a general rule, although it may in some case even have that effect within less period, operating by way of estoppel. But under all circumstances, it is evidence, itself, of assent. How far it may operate to establish the fact of affirmance, is for the jury to determine. The Court charged that, ££ silence for less than twenty-one years, £ was not, unless connected with other facts and circumstances, £ evidence of assent.”
    The evidence from lapse of time and silence, was, by this mode of charging, substantially excluded from the consideration of the jury, who were thereby misled, and a verdict secured to the plaintiff in eje.ctment. For these errors the Supreme Court is asked to reverse the judgment.

      James Mason and A. L. Brewer, for Defendant in Error.
    First: The first point made by the bill of exceptions being abandoned, we are relieved from its discussion.
    Second: The deed to Welch is not void on the ground of maintenance.

    If the question, how far the English statutes. against champerty and maintenance, or the common law doctrine in relation to such acts, are applicable to our laws, customs and institutions, was unsettled in this State, we should feel called upon to enter more fully into the discussion of this question.
    In some of the States, statutes have been passed prohibiting such acts. In some other States, no prohibiting statutes have been passed, but the common law doctrine has been, expressly recognized and adopted by their tribunals. In other States, the common law doctrine is not recognized, and no statutes upon the subject have been passed.
    In the State of New York, the statute of 32 Henry vnx was reenacted, almost in its very words. ' By this statute, the parties were made liable to forfeiture, and the conveyance was rendered null and Void. By the revised statutes of New York, ^ forfeiture is abolished, but the act is made a misdemeanor. 5 4 Kent, 448-9.
    ' In Massachusetts, the penalty of the statute of Henry viii, has never been adopted, but the common law doctrine is there assumed, that such conveyance is void, and “ champerty is an offence ” in that State,. 4 Kent, 448.
    In Indiana, the Court say, in 1 Blackford: “ We have no £ particular statute prohibiting the buying and selling of prec tended titles, and therefore reference must be had for the doc-c trine to the common law of England, which is adopted in our £ code.” The statute of Henry viii, on the subject, is said to have been enacted in affirmance of the common law, and to have made no alteration in it except that of adding a new penalty. That statute, therefore, and the construction put upon it a few years after its enactment, in the case of Partridge v. Strange, Plowd. 77, furnish the necessary information.
    The existence of the statutory provisions in New York, the adoption of the common law doctrine, as affirmed by the statute of Henry viii, in Indiana, and .the fact that££ champerty is an offence” in Massachusetts, abundantly explain the cases cited by the plaintiff’s counsel, from the reports of those States respectively. In those States, they have seen proper to apply to their peculiar laws and systems this doctrine of the common law.
    In other States, it appears that a contrary doctrine prevails; for example, in New Hampshire, Pennsylvania and Tennessee. In these States, ££ a conveyance by a disseizee would seem to £ be good, and pass to the third person all his right of possession £ and of property, whatever it might be.” See 4 Kent, 449.
    In-v. Lessee of Whitman, 6 Binney, 416, is a case precisely similar to the one now before the Court. The conveyance had been made by one out of possession to the lessor of the plaintiff, of lands held adversely by a third person. The Court say, upon this point.: “ Without entering into the con-c sideration of the law of England, it may be affirmed with ‘ certainty, that the law, as held there, was never adopted here. ‘ From the equality of condition of persons in this country, ‘ there was no danger of maintenance from the interférence of ‘ powerful individuals. In our courts, it has never been made ‘ a question, whether the grantor or devisor was in or out of ‘ possession; and, to make it now, would disturb what has been ‘ looked upon as settled.”
    In Ohio, this question has arisen, been discussed, fully considered and decided; and the doctrine which is applicable to our peculiar system, has been settled.
    In Lessee of Hall v. Ashley <y Craven, 9 Ohio Hep. 96, this identical question arose: F. L. Henop was out of possession of the land — Ashley & Craven were in possession, holding adverse to Henop, under a deed of conveyance; there had been a judicial sale of the land, and, as in the case before the Court, there were sundry intermediate conveyances of the land before Ashley & Craven acquired title. Under these circumstances, Henop conveys to Hall by a release deed. It is not to be supposed that Hall bought the land without looking at it, or without knowing of the possession and claim of the defendants ; nor is it to be doubted but that Hall, in the favorite language of the plaintiff’s counsel, knew that he was “ buying a lawsuit.” Although the imperfect report of the argument of the counsel of Ashley & Craven does not set forth their argument on this point, yet the question was discussed by the counsel on the other side, in answer to their argument, and is fully considered by the Court in noticing the defendant’s argument. .
    The counsel for the plaintiff have elaborately criticised the reasoning of the Court in this case, as well as their historical information as to the origin of the doctrine upon champerty. We think the learned counsel are unfortunate, both in their criticism and “ history.” We believe that it is a matter of history, that the statute of 32 Henry viix did grow out of “ peculiar exigencies,” and that it was “ adapted to a state of society very different from what prevails here.” It is said, that this statute was but in affirmance of the common law; but, if the “ exigencies ” do n,ot here exist which required the passage of that act, neither do those circumstances, or that state of society here exist, which require the application of that doctrine which this act merely affirmed.
    . The Court say: “ Both of these classes of laws were adapted to a state of society very different from what prevails here. c So far from opposing obstacles to the transmission of land, we ‘ have endeavored to render it as free as, possible. The simple ‘ prohibition of selling land where the vendor has no title to it, ‘ (29 Ohio Laws, 142,) has set bounds to the only real incon- ‘ venience and mischief which has sprung from the practice of ‘ champerty.”
    We believe that this was the first case in which the Supreme Court of Ohio were called upon to determine how far this doctrine of the common law was applicable to our institutions and state of society. As each of the other States have established a policy for themselves, either by statute, or recognizing or disclaiming the doctrine of the common law, so. our State has adopted its own policy.
    The counsel refer to the case of Key v. Vattier, 1 Ohio Rep. •132, and 13 Ibid. 175, and even claim that the latter case partially overrules the case in 9 Ibid.
    The counsel have ingeniously confused distinctions, which are palpable.
    In the case in 1 Ohio Rep. the very essence of the contract was maintenance and champerty. The plaintiffs (lawyers,) asked the Court to enforce a contract, where the conditions precedent to the defendant’s covenants, which the plaintiff averred and must prove, were palpable acts of maintenance. The Court yery properly held that the contract was against public policy, and that they had a right to treat it, and would treat it, as they would every other contract which was against public policy. B,ut how wide is the difference between the application of that salutary principle, and the doctrine which is here sought to be maintained ? If there was a subsisting contract between Welch and the Luptons, by which the Luptons agree to convey to Welch one half of the land, if recovered — Welch to carry on the lawsuit, pay expenses, &c. — and Welch now came into Court, and sought to enforce this contract against the Luptons, the Court might very properly say, the contract is against public policy, and we are not bound to enforce it. But Welch seeks to enforce no contract which is against public policy. He stands upon a legal right and legal title. He has the legal title to the land, or he has no right to recover. Unless the law makes void the conveyance by which he claims title, we apprehend that, if he had acquired the title even by crime, the tenants in possession could not avail themselves of the objection. It was in the power of the Luptons to convey to Welch a title.to this land, and that power was exercised by the deed; if not,.he has no title. It is a question of title, and the Court are called upon to determine whether it is in Welch. If a law was in existence in this State prohibiting such a purchase as the one made by Welch, his deed might be void, because of the want of power thus to convey or acquire title.
    It is further said, that “ it seems to be the general sense and ‘ usage of mankind, that the transfer of real property should ‘ not be valid, unless the grantor hath capacity as well as the ‘ intention to deliver possession.” This doctrine proceeds from the old feudal rule, that “ no feud could be created, or transferred, without investiture.” It is not applicable to modern titles or conveyances.
    As for the case in 13 Ohio Rep., the Court recognize the case in 1 Ohio Rep. Judge Wood says, that “where no stat- ‘ utory regulation exists, the common law is universally holden ‘ to prevail, as imported by our ancestors and applicable to our ‘ local circumstances.” How this decision overrules, in any respect, the case in 9 Ohio Rep., we do not understand.
    Judge Grimke thinks that the doctrine which makes void conveyances of land where the grantor is out of possession, is not applicable to the state of society which prevails here. Judge Wood does not say that it is.

      We have discussed this case as though it really was, as the plaintiff’s counsel claim, infected with champerty and maintenance.
    In 13 Ohio Rep., Judge Wood defines champerty thus: ££ An agreement to prosecute, at one’s own, risk and expense, and to take a part of the thing received, in compensation.”
    Blackstone says, that “ maintenance is an officious intermed- £ dling with a suit that in no way belongs to one, by maintavn- £ ing or assisting either party with money, or otherwise, to pros- £ ecute or defend it.”
    In the case before the Court, according to the testimony of Mrs. Lupton, the land which these boys inherited from their father was sold to Kline for horses, when two of the boys were infants. They joined in the deed, but the elder brother received all the horses, and the minors received, as she believes, no part of the proceeds. This deed was a void or voidable one. Notwithstanding the deed to Kline, the boys really owned the land. They, at the same time, avoid their deed to Kline, and sell their land (not a ££ lawsuit,”) to Welch. He pays them, not a trifling consideration, but $1,250. As there were other persons in possession of the land which belonged to these minors, Welch may have supposed that possession would not voluntarily be given up to him. He neither prosecuted, maintained nor intermeddled with the suit of any one. He bought land of those who he supposed had the title. It was just such a ££ speculation ” as the. one in 9 Ohio Rep. If there was nothing demanding the ££ stern rebuke ” of the Court in that case, there is nothing in this. The choice epithets applied by the counsel to Welch and his conduct, are not called for by the circumstances of the case.
    Third: It is claimed that the deed to Welch is not such a deed as to entitle him to sustain an action of ejectment; that it is a mere release of an interest, without any conveyance of title.
    The objection is certainly futile. The language of the deed is: “ hath bargained and sold, and by these presents doth give, £grant, bargain and sell,' alien, enfeoff, release, convey and confirm unto the said' Rezin Welch, his heirs and assigns, ‘the following described tract of land,” &.c. The deed contains a recital, in which the land .is specifically described. All this recital is of no account, except to ascertain the tract of land referred to in the grant. It had no other object than to describe the land and to show the nature of the title which the Luptons held, to wit, a title by inheritance — and the interest which each held, to wit, one undivided third part. From the face of the deed, what did the grantors intend ? Unquestionably, to convey their shares of this land, as heirs of William B. Lupton, deceased.
    But, even if this deed had been simply a quit claim, it would have been sufficient, in Ohio, to have passed the title. See Lessee of ‘Hall and others v. Ashley Sf Craven, 9 Ohio Rep. 96, where this question is decided.
    Fourth : The fourth assignment is an objection arising from principles, feudal in their origin, and principles which are applicable only to feudal tenure. So rigid was the feudal rule that a feoffment made by a minor could only be avoided by entry. It could not be avoided by suit, by notice, or by any other means. See 3 Com. Dig. 622.
    “ The feoffment being a conveyance made with much greater £ solemnity than any other, the infant cannot, as in the case of £ a lease, surrender, grant, &c., have an assize, or bring tres- - c pass until he has avoided the feoffment by entry.— for it is to ‘ be presumed in favor of such a solemnity, that the assembly £ of the pais then present would have prevented it if they had 1 perceived his nonage, and, therefore, the feoffment shall con- £ tinue until defeated by entry, which is an act of equal noto- £ riety.”
    See Bingham on Infancy, 60, 61. In the case of a feoffment, this doctrine is reasonable and right, for it is placed upon the ground that the act of avoidance should be of equal notoriety and solemnity with the act that created the estate, and a feoffment must always be accompanied with livery of seizin. 4 Cruise Dig. title Deed, ch. 4, sec. 26.

      In the case of Lessee of Drake and Wife v. Ramsey et. al. 5 Ohio Rep. cited by the plaintiff in error, the Court recognize this doctrirle as peculiar to feudal tenure, thus: “ Some of the ‘ books apparently suppose that the act of avoidance must be ‘ of equal solemnity with the act of grant, but I cannot find it ‘ to be expressly decided, except in cases of feoffments, where c a peculiar feudal principle renders it necessary.”
    We have no feoffments in Ohio. The instrument sought to be avoided is not a feoffment, but a simple deed of conveyance. Can it be possible, that the old feudal doctrine; applicable to feoffments only, can be applied to modern conveyances ? Surely, nothing but a superstitious veneration for the idle ceremonies of the common law, when the causes of their existence have all passed away, could suggest the application. But, even if we recognize the rule which “some of the books apparently suppose,” the deed to Welch is an “act of equal solemnity ” with the deed to Kline, and, consequently, the act of avoidance is equal in notoriety and solemnity with the act of grant.
    The plaintiff in error relies upon the cases of, TUe Inhabitants of Worcester v. Eaton, 13 Mass. Rep. 374, and Bool v. Mix, 17 Wend. 119.
    The case in 13 Mass. Rep., is not in any respect in point. In this case an entry had in fact been made — the question decided by the Court, was, Should duress be pleaded ? The acts of a person under duress, were' under consideration, not the acts of minors. The Court evidently incautiously go out of the case to say that an infant’s deed can be avoided “ only by entry;” whereas the doctrine universally recognized, is, that it may be avoided in different modes other than by entry; and such is the doctrine expressly recognized in all of the other cases cited by the plaintiff in error.
    The case of Bool v. Mix is not directly in point; but, as it is a case at variance with the case of Drake and wife v. Ramsey, 5 Ohio Rep., it will claim some consideration at our hands.
    The relics of the ancient common law have more or less existed in the eastern States, and the decisions of their courts are frequently tinged with them. It is but late that the old writ of right, with all its subtleties, was in full force in the State of Massachusetts ; and, at the present time, the people of York are complaining of the old feudal tenures that have tied up their landed property. But, in this State, it is otherwise. Since the organization of our State Government, it has been the constant aim of our Legislature, as well as of our Courts of Judicature, to avoid the idle ceremonies of the common law, and to make our laws plain and comprehensible, and consistent with the principles of common sense, applicable to the customs of our people, and to the spirit of our liberal institutions. It would not, therefore, be strange, if the courts of New York would go farther towards recognizing some of these ancient feudal principles, than would the tribunals of Ohio. But an examination of the reasoning of the Court, together with the point in the case Which was decided, will do away with the force of the authority. In this case there had been no act of avoidance whatever, before bringing the action. The defendant was in possession, by virtue of a deed, good on its face. No notice was given him of the claim of the plaintiff, but, when quietly in possession, he was treated as a trespasser and Wrongdoer-.
    The Court say, that, the defendant’s possession was not tortious ; that it would be imposing no unreasonable burden upon one wishing to avoid his deed, to require that it shall be done by an entry on the land, or by some other act of equal notoriety — ’ and the avoidance, whatever its form, must precede the bringing an action to recover possession — that, although the title of the tenant may be defeated, yet so long as the deed remains unrevoked, he has the legal seizin, and cannot be treated as a trespasser. In this case, there was no act of avoidance whatever, before the bringing of the suit.
    In the case before the Court, there was an act of avoidance before bringing the suit, to wit, an avoidance by deed of conveyance— an act of “equal notoriety and'solemnity” with the instrument thereby avoided. The Court do not say what shall be the necessary act to avoid — : they only say, that it must, in some manner, be avoided.
    In the case of Lessee of Drake and wife v. Ramsey and others, the Court held the bringing of the suit to be a sufficient avoidance of the minor’s deed; and therein the case conflicts with the case of Bool v. Mix. It may, however, be remarked, that the service of the notice in ejectment under our statute, is a notice to the tenant, and that it is only by his entry into the consent rule, that he can, under our practice, be subjected to costs. It is true, that the Judge in the case of Bool v. Mix, goes beyond the question involved in the case, and says that, (in relation to the cases of 14 Johns. 124, 11 Johns. 539, and 10 Pet. 59,) “if in these cases the land had been held ‘ adversely to the infant, the second deed would, I think, have £ been void, and could not have amounted to a revocation of £ the first conveyance.” But the Court further say, that “ it is £ unnecessary, on the present occasion, to- say, that an entry in £ the land was the only mode in which the deed could be £ avoided^ for the plaintiff, previous to bringing the action, had ‘ done no act whatever to disaffirm the conveyance.” The Court do'not decide that a subsequent conveyance would not have been an “ act of equal notoriety,” and sufficient to have avoided the deed.
    The case of Tucker and others v. Moreland, 10 Pet. 59, is also cited by the plaintiff in error. In this case the deed was avoided by a subsequent conveyance. No entry was made. True, the infant had never given up the possession of the land, but it does appear to us that the language of Mr. Justice Story fully sustains our views of this case. He says: “ But if the act of £ the infant is a matter in pais, it may be avoided by an act in £ pais of equal solemnity or notoriety.” .
    In referring to the case in 14 Johns., he says: “ The Court £ proceed upon principles which are in perfect coincidence with £ the common law, and are entirely satisfactory; that it would £ seem not only from principle, but authority, that the infant ‘ can manifest his dissent in the same way and manner by which £ he first assented to convey. If he has given livery of seizin, £ he must do an act of equal notoriety to disaffirm the act — J ‘ he must enter on the land and make known his dissent. ‘ he has conveyed by bargain and sale, then a second deed of £ bargain and sale will be equally solemn and notorious in dis- ‘ affirmance of the first. We know of no authority or princi- ‘ pie which contradicts this doctrine. It seems founded in ‘ good sense, and follows out the principle of notoriety of dis- £ affirmance in the case of a feoffment by an entry — that is, £ by an act of equal notoriety and solemnity with the original £ act.”
    In the case of Jackson v. Burchin, 14 Johns. 126, although it is true that the lands were uncultivated, yet the decision of the Court upon the question whether entry was necessary, is not placed upon that ground. The Court say, that if the infant ££ has given livery of seizin, he must do an act of equal £ notoriety to disaffirm the first act; he must enter on the land £ and make known his dissent. , If he has conveyed by bargain £ and sale, then a second deed of bargain and sale will be £ equally solemn and notorious in disaffirmance of the first.”
    In the case of Jackson v. Carpenter, 11 Johns. 541, the Court say, expressly, that “the doctrine requiring an actual £ entry to avoid a feoffment and livery made by an infant, does ‘ not apply to a bargain and sale.”

    The plaintiff in error undertakes to make a distinction between wild and cultivated lands, as to the necessity of making entry. Is there any real distinction ? Does the entry operate upon the possession, or as a notice to the tenant in possession ? . If on the possession, it would be as important in the one case as the other. Suppose the law of feoffment to be in force, and a minor should, by livery of seizin, convey away wild land, would not an entry become necessary, for him to avoid that conveyance ? Most certainly it would, because the act of avoidance must be an act of equal notoriety with the grant. Will it be pretended that the bare entry, by the Luptons, upon the land, before making the deed to Welch, would have been of any benefit to' any one, or could, have been any thing but a most idle and ludicrous ceremony ? The defendant claims that the deed to Welch was a sufficient act of avoidance, and suflN cient to pass the title of the’.shares pf Cyrus-and William in the land to Welch. ■■
    . The case of Drake and wife.v. Ramsey et al., is claimed to be directly in point. •
    The 'Court,.' in this'case; lays down with great clearness what acts, will constitute an avoidance of a deed, made by an infant during minority, when he comes 'of age.’.' The Court says; that an entry, suit or action, a,subsequent conveyance, an effort to restore.the parties to their.'original condition, Or any.act unequivocally manifesting the intention,. would render the avoidance effectual. , ,
    It -apjpears to have 'been the intention of, the Court to settle the question,, and lay down such landmarks as could easily be understood. There had been great uncertainty as to what acts would .constitute an avoidance; and, to putthe'matter at rest in this Statej the, Court, in deciding whether an entry-was necessary before suit, laid down what acts would constitute a disaffirmance of a former deed, made by an infant. This is not a hasty decision,- but is one of great consideration, and every principle that it contains is fraught with the plainest principles of .common, sense. What more than a ■ subsequent con-véyance, • to avpid á minor’s deed, can - be required;.? It is an unequivocal'manifestation of'an-intention to.avoid .the former deed'. ' It is. an act. of equál- notoriety and 'solemnity with ■ the first deed. It, is-an act.of greater notoriety than.■ entry.'; for entry may be-,made,; -.unknown to the tenant .in,,possession, whereas a subsequent conveyance is a matter of record. ' The law of feoffment, requires only an act of equal notoriety. Surely our law will not require more.
    ■. In the 2d of Dey. &, Battle, 320, the samé question was fully examined,, and the decisión,, in the,cáse pf Drake and wife v. Ramsey, fully sustained. See, alio,' 2 Kent’s Com. 237, notes a, b and c.' ’’

      It is farther claimed by the plaintiff in error, that, even if- a subsequent conveyance is a sufficient act of' avoidance, yet it cannot be sufficient to avoid the former deed, and at the time pass the title. But, in the cases in 11 and!'l4 Johns. Rep., it is held that the subsequent deed is sufficient for both purposes.
    Fifth: It is claimed by the plaintiff in error, that the Court erred in charging the jury, that lapse of time, less than twenty-one years, was not of itself evidence of-acquiescence, but might be evidence in connection with other facts and circumstances..
    To sustain this objection, reference is made to Drake and wife v. Ramsey et al., 5 Ohio Rep. 152. It is difficult for us to perceive any substantial difference between the charge of the Court upon this point; and the opinion of -Judge Lane. Both agree that lapse of time, less -than, twenty-one years, does ■ not amount to acquiescence; but that lapse of time, less than twenty-one years, in connection with other facts and circumstances, might be evidence of acquiescence. The jury were virtually told, that’ the simple fact that ten or eleven years had elapsed after the minor came of age, before his deed was avoided, was not, of itself, an .affirmance of the deed; that it was a fact which .might‘aid in establishing an affirmance, when taken in connection with other facts and circumstances, That lapse of time, less than twenty-one years, did not constitute acquiescence,’ is a principle decided and established, and was not a question for the jury to decide. Whether there were other facts and circumstances, which, taken in connection with the lapse of. time, amounted to acquiescence, was a question which they had a right to determine, and was properly submitted to them.
    In holding that lapse of time, connected with other circumstances, might be evidence of acquiescence, and thus confirm the title, the Court went farther than any of :the leading cases in other States" upon the subject. In Jackson v. Carpenter, 11 Johns. Rep. 542, the Court held, that an acquiescence by the grantor for eleven years, after he came of age, “ did not 4 amount to a confirmation of that conveyance; that some ‘ positive act was necessary, evincing his assent to the con-4 veyance.”
    in 10 Peters, 76, Mr. Justice Story refers to 11 Sergeant and Rawle, 311, where the Court held, 44 that to constitute a 4 confirmation of a conveyance or contract by an infant, after 4 he arrives of age, there must be some distinct act, by which 4 he either receives a benefit from the contract after he arrives 4 at age, or does some act of express ratificationand of that decision, and the one in 11 Johns. Rep. 542, says, 44 there is 4 much good sense in these decisions, and they are indispensa4 ble to a just support of the rights of infants, according to the 4 common law.”
    In the sixth place, it is claimed by the plaintiff in error that the Court erred in charging the jury, 44 that the retention of the 4 purchase money in the case was not, of itself, an act demon-4 strating a willingness to be bound by the contract.”
    It was not a question for the jury to determine, whether the retention of the purchase money was, or was not, evidence of affirmance. The law is perfectly well settled, that a minor is not bound ,to return the purchase money before disaffirming his deed, made during minority. 10 Peters’ Rep. 74.
    The counsel do not even claim that such is not the law, but only that the question should have been left to the jury, to determine whether it was evidence of affirmance. If the law is, that retention of the purchase money is not an affirrpance, surely it was right for the Court so to charge the jury.
    In this case, by reference, to the testimony of Mrs. Lupton, it will appear that there was, probably, no part of the purchase money retained by the minors. The same remarks may be applied to the seventh objection as to the fifth, as they are one and the same.
    The evidence from lapse of time and silence was not, in any manner, excluded from the jury. It was all before them; and they were, as we think, properly instructed as to the effect which they had a right to give" to it. We think the judgment of the Court of Common Pleas should be affirmed.
   Hitchcock, J.

The several facts of this case, as exhibited in the bill of exceptions, are, that William B. Lupton, in the year 1815, died seized of the premises in controversy.. On the 20th of September, in the year 1832, Elisha F. Lupton, Cyrus C. Lupton, and William H. Lupton, all of Baltimore, in the State of Maryland, and heirs<of said William B. Lupton, conveyed the same land to Peter Kline, of Trumbull county, by deed duly executed. The plaintiff in error claimed title under conveyances from Kline. At the time of the conveyance to Kline by the Luptons, Cyrus C. and William H. were infants, within the age of twenty-one years.

The defendant in error claimed title under a deed executed to his lessee, by Cyrus C. and William H. Lupton, on the 15th of April, 1843, conveying to him théir interest in the premises. He also gave evidence as to the consideration paid by Kline, and conducing to prove that payment was made to the brother, who was of full age; and further, that his grantors were citizens and residents of the State of Maryland.

In order to ascertain whether the Court of Common Pleas committéd any error in the charge complained of, it will be necessary to examine particularly what that Court was requested to charge, and what they did actually charge.

First: The Court was requested to chargé, that if a per-c son under the age of twenty-one years, but above the age of discretion, and apparently twenty-one years of age, represent? himself to be of that age, and thereby induces another per- £ son to purchase land from him, take a conveyance, and pay £ the purchase money, or part of it, the party making such 1 representations is estopped from claiming back such land and 1 proving that he was not of age, if the purchaser, believing 1 such statement, acted upon it, paid the purchase money ac- £ cordingly, and has in his conduct been perfectly fair in the transaction; which instruction the Court refused to give, but £ charged that such was not the law.”

It will be seen from an examination of the bill of exceptions, that no evidence had been given to the jury conducing to prove that the two younger. Luptons, or either of them, had, at the time °f ^ conveyance to Kline,-represented themselves as being of’ full ■ age, thereby inducing- him to purchase the land, nor that he acted upon , any such belief. This, then, was. a mere abstract .proposition, entirely out of the case.; and if the Court were mistaken upon the point of law, it would make no difference in the result. Under such circumstances, we never interfere with the judgment of'an inferior court'. We would not be understood as .saying 'that fjere was any mistake; .but if there was, it was in a matter upon which the plaintiff had no right to<ask the instruction of the Court.

Second: The Court were next asked to charge -the jury, “ that the purchase by Welch, and receiving á deéd from per-c sons out of possession, of lands in the actual adverse posses- £ sion of persons claiming title, ■ is an act of champerty and £ maintenance, illegal and void.” . ■ .

This'instruction the Court refused, and charged that such was not the law. ' ' . '

The question here presented; is not one 'which now comes before the Court for- the first time'. . It is well-known that, in' England, a sale and convéyance of land -by a person' out of possession of land, the same lands at the time being in the possession of another, claiming title, would be void, as being against the policy of the law. Whether this is a principle of the common law, or whether it is based upon some statute, is a question which has been much controverted. But this is a matter of little consequence,'so long as such is the.law. In many, probably in most of the States of this Union, the same principle prevails; but in ]this State the decisions have, from the earliest period of our judicial history, been different, and , such sales and conveyances have been held to be-valid. This identical question was before this Court in the case of Hall et al. v. Ashley et al., 9 Ohio Rep. 96; -and the title acquired under such circumstances was held to be good. The case referred to is the first brought before the Court in Bank, in which this question was. agitated, and the decision was merely in affirmaneé of what, was understood to be-the rulé of Jaw, as.estqblished by frequent determinations on’the circuit.’. Now, I have no hesitation in saying, that, in my opinion, the rulé contended for'by plaintiff’s counsel vvould be beneficial; and highly conducive to the public interest. It would prevent‘the practice of ■ purchasing doubtful .titles. It might interfere with the interest of .ke’eyr-sighted speculators-,.who make ■ it. a business to .hunt úp and-purchase' in ¡such titles,, but it- could'do no injury to the honest man. -But although such'is my opinidn, still, acting in' . a judicial capacity, I cannot consent to change the rulé. S.uóh'. 'change would interfere with ja multitude of land.titles.hereto* ■ fore acquired* and .acquired 'toó with' a knowledge of the law, ■'as: expounded, by the. CoUrt. . But there- is. a -body which-crin ' apply-.'a'remedy which shall operate hereafterjthát'-body.is the - .General'Assembly.-'. And',- to. me'; it is Vmatter of surprise,: that •we -have .not an -act upon -¿pr státute. books -'declaring- void -gales • madeiunder the -circumstáncés-referred to', by .-bourisél .in.', their ••secondtre.quest to the Cdurt;.'.-'But-'until’some,'statute ,of the ■ kind;.'i^. enacted,'-we] féel 'ó.ú.rselvesibó,ünd--by .the law' as heretofore 'settled. ■, . •,'-.N . ■. . ■, .

■ .Third.-and’fourth ■fp.lB'he.. third add. fourth' ¡instrúctionéj requested'of: the'Court.V.ef$-.in substance, that the éxeC.útxón.by .-■ Cyrus;C, Luptón arid';Will-iaffi’1 H. Lúptonpof Ithe.idee.d'to'.tlredeféndant -.in .error;-did. nót;-ont,heif. párt,.áni'duiit to d.’dijsaf.firmance of the former-deed to. Kline, by them éxecuted while infants.' This. the Court.' refused Jto do; and held ■ that such' was not the laW. 'J

■ 1 Much, has been said .in the books with respect tó thé deeds-of infants'conveying land,-whether they were-void-or-merely voidable. . The better opinion, as'we believe, is, that-théy are merely voidable; - and it was so held in the cáse of Drake and wife v. Ramsey et al., 5 Ohio ifep. .251. . Such being the -Jaw, .the deed of an infant will hold good until sóme' act ,h,as been done'by him -to-, avoid 'it, although there has-been no express act off affirmance, after his arrival at full age.' But-what the. act of disaffirmance shall befis a matter of more, doubt. If it be one of equal solemnity with the original act of conveyanee, it would seem tó be sufficient. Thus, in England, if a feoffment be made by an infant, he can only avoid it by entry. He must be in possession in order to make the feoffment, for that is not done without livery of seizin. He must then again enter to avoid the feoffment; and perhaps this alone would not be sufficient. But in this country, and especially in this State, this mode of conveyance is not adopted.' Lands here are conveyed by deed of bargain and sale, and deeds of other descriptions. Livery of seizin is not known in practice, and is entirely unnecessary.

In the case of Drake and wife v. Ramsey et al., before referred to, the Judge, in delivering the opinion of the Court, says: “ Some of the books apparently suppose that the act of avoidance must be of equal solemnity with the act of grant ; but I cannot find it to be expressly decided, except in cases of feoffments, where a peculiar feudal principle renders it * necessary. We believe that an entry, suit, or action, a sub- ‘ sequent conveyance, an effort to restore the parties to their original condition, or any act unequivocally manifesting the ‘ intention, would render the evidence effectual,” &c. It is said, however, that this question did not properly .arise in that case, and, therefore, that this dictum of the Court cannot be relied upon as authority. It was the deliberate opinion of the Court, in a case where one of the principle quéstions was, what act would amount to the avoidance or disaffirmance of a deed executed by an infant. True, the act relied upon in that case, and which was held to be sufficient, was the commencement of an action of ejectment. That a subsequent conveyance would amount to a disaffirmance, has ■ been decided in the Supreme Court of New York and of the United States; 11 John. Rep. 541; 14 John. Rep. 128; 10 Peter’s Rep. 59. In fact, I cannot well conceive what would be a more decisive act of disaffirmance than the conveyance of the same land to another person. It would be conclusive evidence, that the person making such conveyance did not intend to be bound by his deed made in infancy.

Fifth: The Court was next requested to charge the jury, “ that lapse of time less than twenty-one years, after the minor comes of age, may furnish evidence of acquiescence, and con- £ firm the title.” In response to which request, the Court charged, that the lapse of time less than twenty-one years was not of itself evidence of acquiescence, but might be evidence of such acquiescence in connection with other facts and circumstances.

In this particular, I understand the Court to háve stated, in substance, that lapse of time alone would not amount to .an affirmance, on the part of the grantor of the deed executed in infancy, unless that lapse of time amounted to twenty-one years. Such was the opinion of this Court, as expressed in the case of Drake and wife v. Ramsey. But in that case, as in this, the Court held, that the lapse of a less period of time, taken in connection with other circumstances, might amount to a confirmation. The idea might have been conveyed in different language, but I do not see wherein the Court violated any principle of law in this particular.

Sixth: The next request made to the Court, was, to charge, “ that the right to disaffirm a deed made during minority, may be £ extinguished by any act done under a knowledge of his right, £ which demonstrates a willingness to be bound by the con-c tract] or, by continuing after acquiring such knowledge, to £ enjoy any benefit, profit, or privilege, under ' the contract, £ after they attained full age.” The Court admitted such to be the law, but added, “that retention of the'purchase money in £ this case, was not, of itself, an act demonstrating a willingness £ to be bound by the contract] and that a minor was not bound £ to return the purchase money before disaffirming his deed £ made during minority.”

It can hardly be supposed that any one will seriously contend, that an infant who has conveyed land during infancy, cannot disaffirm his contract before returning the money which he has received upon that contract; nor that the retention of the money is demonstrative evidence of a willingness to be bound by the contract. If I am correct in this, then it follows that there was nothing erroneous in the opinion expressed, in itself considered. It was not a violation of law. Whether it was proper, under the circumstances, to make the statement, is another question; and in order to solve this, it is necessary to look to the bill of exceptions. From that, it appears that the infants had not “received any benefit, profit, or privilege,” from the contract, neither before or after they arrived at full age, except the purchase money, and it is left doubtful whether they have even received that much. The Court were pressed to say, that the grantor of a deed made during infancy, by continuing after acquiring a knowledge of his rights, “ to enjoy any benefit, profit, or privilege, under tho contract,” after arriving at full age, would confirm the deed ; and this, too, in a case where the facts showed that the only “ benefit, profit, or privilege,” was the retention of the purchase money. The Court admitted the correctness of the general proposition, qualifying it, however, by saying, in -substance, that the retention of the purchase money was not such a “ benefit, profit, or privilege,” as would be equivalent to a confirmation of the contract; or, in other words, that it is not necessary that a person who has conveyed his land by deed during infancy, should, as a condition precedent, refund the purchase money before he disaffirms his contract of conveyance. I do not perceive that there is any thing wrong in this.

Seventh: ’ Counsel for plaintiff in error next requested the Court to charge the jury, “ that the silence of the party after £ coming of ‘age, might be evidence of acquiescence and con-c firmation, although for a less period than twenty-one years £ after coming of age.”

This is but a reiteration, in substance, of the request which had been before made, and which is noted on the bill of exceptions as being the fifth. The. words are not identical, but there is no difference in substance.

The Court also responded as before, stating, “ that silence for c a less period than twenty-one years, Was not, in itself, unless c connected with other facts and circumstances,- evidence of assent to, or confirmation of, a deed made during minority.”

As to these three last points, I do not see that there was any thing substantially wrong. The ideas might have been veyed in different language, and, possibly, in language more appropriate. The whole substance and effect of it is this, that where an infant conveys land by deed, although the contract is voidable, and must be disaffirmed after he arrives at full age, yet, that he has • the length of time allowed by' the statute of limitations, within which to disaffirm. But if, in the meantime he has done other acts which show a manifest intention to confirm the deed so executed, those' jacts, taken in.connection with the lapse of time, although that, be less than twenty-one years, will amount to a confirmation. It was so held by this Court in the case of Drake and wife v. Ramsey, and so held in the cases cited from Johnson’s Reports.

The only other matter ruled by the Court upon one of these three last points, was, that an individual who would disaffirm a conveyance made by him during infancy, need not, as a condition precedent to the disaffirmance, refund, or offer to refund, the purchase money. ■ These are not the words, , but it is the substance and effect of the ruling.

Upon the whole, we see nothing erroneous in the charge of the Court complained of, and the judgment is affirmed.

Judgment Affirmed.

Birchard, J.,

dissenting. The deed of a minor is universally held voidable, not absolutely void. Infancy is a personal privilege, and can be taken advantage of only by the infant after arriving at years of maturity. He must do some act in avoidance of his deed, before the person occupying lands as the, rightful owner, having entered under the deed, can be put in the wrong, and proceeded against as a trespasser. This position is not denied.. It is admitted. Cresinger, and those under whom he claimed, had-held and improved the land in their own right, as lawful owners, under the deed of the -Luptons, executed during minority; and no act or movement had been made by them to disaffirm the deed, for near ten .years. Welch,. seeking to speculate, then applied to them for the purchase of a lawsuit; and they executed to him a quit claim, deed. By the decision now made, that act of putting their hands and seals to, and acknowledging the instrument before a magistrate in Baltimore, works the wondrous effect of changing the rightful possession of him who was the legal owner one moment before, into a tortious act, for which this Court will maintain the action of trespass and ejectment. I cannot believe that such is the law. Bool v. Mix, 17 Wend. 132, is expressly against it; and in my judgment is a decision that will bear the strictest scrutiny, and be found sustained both by principle and authority. I refer to that case as a full exposition of my views upon the point wherein I differ from the other members of the Court. It seems to me that their opinion makes the minor’s deed, in substance, an absolute nullity — contrary to the admitted rule which I have firstly above stated. That it is at war with the second rule which I have stated, inasmuch as it permits other persons than the minor to take advantage of his minority; and that it is against good policy, inasmuch as it must tend to encourage a species of speculation that should be invariably discouraged, and which disturbs the peace of community.


source: Caselaw Access Project

author: Wood, C. J.

license: Public Domain

text:
    Hopestill Potter vs. Marshall Burton.
    The words of a grant, 11 give him the privilege of excavating and drawing down said cre,ek as low as he pleases at all timesf convey to the grantee the right to divert the whole water from the bed, or natural channel of the stream.
    This case comes into this Court by a Writ op Error to the Court of Common Pleas of the County of Erie.
    The action below was a case for diverting the water from a certain stream, called Cold creek, by the defendant, to the damage of the plaintiff in error, as averred in the declaration.
    The defendant plead not guilty. For the trial of this issué, the case was submitted to a jury, at the March term of the Court of Common Pleas, 1846, for Erie county, and a verdict rendered, and a judgment given for the defendant. This judgment is sought to be reversed by the prosecution of this writ.
    In Bank.
    Dec. Term, 1846
    The record shows that, on the trial in the Common Pleas, the plaintiff gave evidence-, to maintain the issue on her part, that the stream, called Cold creek, had ever run and flowed as set forth in her declaration, and that the defendant, in the month of August, 1845, constructed a dam across the stream, at his mill, above the plaintiff’s land, and thereby diverted and changed said stream of water from its natural channel, and conveyed it, through a race, to another mill of the defendant, situated on another stream, called Little Cold creek, and from thence turned the water back again into the natural bed of Cold creek, below the plaintiffs land, thereby entirely depriving the plaintiff of the use thereof.
    The defendant then offered in evidence the deed of Smith and wife, to Burr Higgins, and a release from the plaintiff to Higgins, The defendant offered to prove he derived title to the premises and privileges contained in Higgins’ deed, by other deeds of conveyance. To this the co'unsel for' the plaintiff objected, but the Court overruled the objection, and the testimony was admitted, and went to the jury; but to this ruling of the Court no exception is taken.
    The Court then charged the jury, on the construction of the deed to Higgins, that the rights and privileges therein contained having been transferred to the defendant, he had the right, by virtue thereof, to divert Cold creek away from its natural bed, where it flowed through the plaintiff’s land, permanently and perpetually, if it became necessary for the purpose of using the water power at the mill on Little Cold creek. To this charge of the Court of Common Pleas the plaintiff excepted.
    J. Wheeler, for Plaintiff in error.

      Beecher fy Lane, for Defendant.
    No arguments were furnished to the Reporter.
   Wood, C. J.

. The ruling of the Court of Common Pleas, upon the question of evidence raised upon the trial, as stated in the record, was not excepted to,'and is not before us. The 'exception goes only to the charge of the Court. If, however, the point was made upon the record, it would not aid the plaintiff. The evidence given was a direct link1 in the defendant’s title, and conduced to prove his right and authority to do the acts for which the áction was brought, and was, for. that reason, admissible. But this is not the important inquiry in this case. The real matter in dispute arises on the'instructions which were given to the juiy as to the. extent of the grant, in the conveyance from Smith and wife to Higgins, under whom the defendant holds. The .description of the property conveyed, and the extent of the grant, are, in substance, as follows:

f‘ Three acres of land within the bounds of lot No. 30, in ‘ said section, through which Big Cold creek passes, and better ‘ known as the Pettingale mill and lot, bounded as follows, &c., * containing three acres of land, with all the privileges and ap- * purtenances, and all the mill-gearing and apparatus, tools and ‘ the. like, attached and detached, in ‘and-about said mill and ‘premises: also',- all the right and privilege which we hold in. ‘ a certain deed from Samuel Pettingale, and by us recorded, ‘ upon the records of Huron county, to place the water, &c., ‘ (refer to the record for particulars,) and all the. right and ‘ privileges of water power, &c., upon our land, upon Big Cold ‘ creek, between our mill and said Higgins’ mills, and better ‘ known as being the south half of lot No. 30, in section 3, of ‘ said town, and on a seven acre fraction, which lays adjoining ‘ the aforesaid lot, on the south; and the right of access to any ‘ part of said Cold creek, on my premises, and all times to re- * move obstructions in said creek, or to excavate said creek, so ‘ as to draw down the water at his mill, and to keep the same c down, so as not to obstruct his wheel or wheels with back- ‘ water; and give him the privilege of excavating and drawing ‘ down said creek, as low as he pleases, at all times; and give ‘ him the privilege of excavating said creek, to a width sufñ- £ cient to draw down said creek as low as shall be necessary for £ his use at any future time. And we furthermore bind our- £ selves, heirs and executors., not to obstruct said creek in any £ way, or by any thing upon our premises, so as to prevent a £ free passage for the water, at all times, in said creek or £ channel.” .

It is not denied that this grant authorizes the full and complete use of the water power, in the natural channel of the stream, for the purposes mentioned; nor that the channel of the stream may be widened, and, by excavation, deepened at pleasure. But it is said the water must not be diverted from. its natural channel. We think even this right is conferred by these words in the grant: ££ and give him the privilege of ex- ‘ cavating and drawing down said creek, as low as he pleases, £ at all times.” If it was intended by the parties to this deed, that the water was to be used only in the bed of the stream, they have been unfortunate in the language employed to convey their meaning. To draw down a lake or pond, is to let off the water, and thereby diminish the quantity that remains; and to draw doion a creek, is to let off the water so as to lessen the volume below, in the bed of the stream, and is only to be effected by its diversion from its natural channel. The channel may be deepened, but that would not draw down, lessen or draw off the water. The same volume of .water would still continue to flow there, after, as before the channel was deepened.

But suppose the right from the whole grant, taken together, is doubtful, then the rule applies, that every grant shall be construed, in case of doubt, most strongly against the grantor.

We see no error in the charge of the Court, and the judgment below must be affirmed.

Judgment Affirmed.