author: Wood, Judge. *Lane, C. J.,

text:
    Truman Wyman v. H. J. Hurlburt and Others.
    Where it is found, by a special verdict, that property, the subject of the suit, was abandoned and derelict at the time when cenverted by the defendants, they are not liable in trover to the original owners.
    This is an action of Troyer, reserved upon a special verdict, from the county of Ashtabula.
    The plaintiff declared, upon the usual count in trover, for bank bills and specie.
    The defendants plead the general issue, with notice that they would, prove, on the trial, that the money mentioned in *the plaintiff’s [82 declaration, was found, by the defendants, in the cabin of the schooner, known by the name of “ Gf. S. Willis,” during the summer of 1836, which schooner was a wreck, in the waters of Lake Erie; that the •defendants, at a great expense, raised said schooner, and brought her into the port of Ashtabula, Ohio, in the fall of 1836; and that the defendants, as salvors, are entitled to the whole of said vessel, and the property found on board of the same.
    At the trial of this cause, at the last term of the Supreme Court, in Ashtabula county, the jury-found the following special verdict:
    First; That the plaintiff was the owner of the money mentioned in the declaration, on the 27th day of September, 1836, amounting to the sum of $865, and that the same, with the interest thereon, from the day and year last aforesaid, amounts to the sum of $1,172 07.
    Second ; That the said defendants converted the said money to their own use, before the commencement of this suit.
    Third : That the said money was found in the said schooner, G. S. Willis, and that the said plaintiff, on the said 27th September, Anno Domini, 1836, was the owner of the said schooner ; and that the same was lost, by stress of weather, on the waters of Lake Erie, in the month of November, 1835, and was found, by the defendants, in August, of the year 1836, wrecked, in sixty feet of water, in said lake, in the county of Ashtabula, six miles from the south shore oí Lake Erie ; and that the same was seized by the defendants, on the day and year first aforesaid, and the said money found in the schooner, by the said defendants ; and that, at the time the said schooner was seized by the defendants, the same was abandoned by the plaintiff; and that said schooner, on the day and year first aforesaid, was derelict property, and, when found in the bottom of the lake, was worth nothing.
    Fourth ; That a reasonable compensation to the said defendants, for raising the schooner and her cargo, amounts to the sum of $2,400 42. 83] *Fifth ; That the value of the said schooner, and its cargo, at the time said defendants raised her, and brought the same into port, was $1,865 ; and if, upon the facts aforesaid, the court should be of opinion that the plaintiff ought to recover, then the jurors, aforesaid, find the defendants guilty of a trover and conversion, as they stand charged in the plaintiff’s declaration, and assess his damages at $1,172 07. But, if the court shall be of the opinion that the plaintiff is not entitled to recover, then the jurors aforesaid find that the defendants are not guilty in manner and form, as they stand charged, in plaintiff’s declaration.
    And, thereupon, this cause was reserved for decision in the court in Bank.
    Giddings and Chaffee, for plaintiff.
    It appears, clearly, from the verdict, that the plaintiff was the owner of the money, and that the defendants converted it to their use. These facts are supposed to make out a perfect case for the plaintiff, unless-their effect is changed or done away by the subsequent facts set forth in the special verdict.
    The claim of the defendants to the money, as salvors, can not be sustained No such claim exists under our laws. All wrecks, waifs, and derelict property, are regulated by statute, within the State of Ohio. 3 Chase’s statutes, 1888, sections 12, 13, and 14. Walker’s Lectures, page 439.
    The actual conversion of the money by the defendants, made them wrongdoers, and rendered them liable. Mason and others v. the ship Blaireau, 2 Cranch, 177, 240. 6 Wheaton, 152. Foster and Suffolk Insurance Company, v. Gardner and others, American Jurist, No. 21, page 32, etc. Lewis and others v. the Elizabeth and Jane, American Jurist. No. 14, p. 32.
    Wade and Hurlbut on the same side, discussed the following, points :
    First: That the schooner, and the money in question, were net properly derelict at sea, and, therefore, the defendants are * not [84 entitled to the rights and privileges of maritime salvors. The Brig Harmony, 1 Peters Ad. 34. The Fair American, Ib. 94; 2 Cranch, 240; 1 U. S Condensed. 377 ; 1 Mason, 371 ; 2 Browne Civ. and Ad. Law. 122. Martin v. Hunter’s Lien, 1 Wheat. 335; 1 Sumner, 207 ; 4 Craneh. 347 ; 3 Story’s Com. on Constitution, 531. The Adaline, 9 Cranch, 244 ; 7 Peters, 324; 9 Wheaton, 374 ; 10 Wheaton, 428 ; 6 Peter’s Cond. 173; 3 Kent’s Com. 364, 367; 2 Gallison, 398 ; 5 Mason, 290 ; Swan’s Stat. 1007 ; 2 Chase’s Stat. 2096 ; Abbot on Shipping, 398 ; 1 L. Raymond, 393 ; 8 East, 57 ; 2 Kent’s Com. 635 ; Story on Bailments, 390, 622 : 2 Hen. Black. 254 ; 4 Watts, 63.
    Second : That the defendants, having converted the money in dispute to their own use, have forfeited all right to salvage for the same, although they might originally have been entitled thereto. The Schooner Burton, and cargo, 1 Sumner, 328. Allen v. Ogden, 1 Wash. 174. Jarvis v. Rogers, 15 Mass. 394 ; 2 Marshall, 345.
    Third: That, if the defendants are considered as salvors, and entitled to their salvage lien, they are not entitled to the whole, and can not retain more than one half as salvage ; and, as they have all the money, the plaintiff has a right to recover for that amount. 1 Mason, 371, 375, 377. The Ship Henry Ewbank, 1 Sumner, 400 ; 12 American Jurist, 67, 75, 76 ; 1 Story, 314; 26 American Jurist, 224.
    Wade and Ranney argued for defendants, and cited the following authorities: 1 L. Raymond, 393 ; 2 Gallison’s Circuit court, 395 ; Abbot on Shipping, 432, 433 ; 7 Peter, 342.
    Peter Hitchcock, for plaintiff replied.
   Wood, Judge.

This ease was submitted to the jury at August term of the Supreme court, 1842, in Ashtabula county.

* The action was trover, brought to recover of the defendants [85 eight hundred and sixty-five dollars in money, lost on board the schooner Willis, which foundered in Lake Erie, in the fall of 1835, and was found in the summer of 1836, by the defendants, within the limits of Ashtabula county, who raised the schooner, and converted the money to their own use. The jury returned a special verdict, and judgment must now be entered, either for the plaintiff or defendant, according to the law of the case, as it shall be found to arise in favor of one or the «other of the parties. '

The finding of the jury is in these words :

“ First: That the plaintiff was the owner of the money mentioned in the plaintiff’s declaration, on the 27th day of September, 1836r amounting to the sum of $865, and that the same,,and the interest thereon from tbe day and year last aforesaid, amounts to the sum of $1,172 07.
“ Second : That the said defendants converted the money to their own use, before the commencement of this suit.
“ Third: That the said money was found on board the schooner Gr. S. Willis, and that the said plaintiff, on the said twenty-seventh day of September, 1836, was the owner of said schooner, and that the same was lost by stress of weather, on the waters of Lake Erie, in the month of November, 1835, and was found, by the defendants, in August, of the year 1836, wrecked in sixty feet of water, etc., six miles from the south shore of the lake, and that the same was seized by the-defendants, on the day and year first aforesaid, and the said money found in the schooner, by the said defendants, and that, at the time the said schooner was seized by the defendants, the same was abandoned by the plaintiff, and that said schooner was, on the day and year aforesaid, derelict property, and when found in the bottom of the Lake was worth nothing.
“ Fourth : That a reasonable compensation to the said defendants, for raising the said schooner, and her cargo, amounts to the sum of $2400 42.
* “ Fifth : That the value of the said schooner, and her cargo, including said money, at the time said defendants raised her, and after the same was brought into port, was $1865 ; and if, on the facts aforesaid, the court should be of opinion that the plaintiff ought to recover, then the jury, aforesaid, find the defendants guilty of trover and conversion, as they are charged in the declaration, and assess the damages at the sum of one thousand one hundred and seventy-two dollars and seven cents ; but if the court shall be of opinion that the plaintiff is not entitled to recover, then the jury, aforesaid, find for the defendants,” etc.

On this special verdict the counsel for the plaintiff present three distinct points for the consideration of the court.

First: That the schooner, and the money in question, were not properly derelict at sea, and, therefore, the defendants are not entitled to the rights and privileges of maritime salvors.

Second ; That the defendants converted the money in dispute to their own use. and have, therefore, forfeited all right to salvage for the same, though they might, originally, have been entitled thereto.

Third : That, if the defendants are considered as salvors, and entitled to salvage, they are not entitled to the whole, but can, at most., retain only a moiety ; and, as the defendants have both the money and the schooner, the plaintiff has the right to recover the money.

The counsel for the plaintiff also contend, that, to entitle themselves to compensation, the defendants were bound to proceed under the statute of Ohio, “ securing to the owners boats, and other watercraft, found going adrift.” These positions are all argued with ability, and evince no small industry and research ; and, under other aspects-than those presented by the special verdict, would call upon us to decide, whether our great inland seas, which are above the ebb and flow of the tide, are subject to the jurisdiction of courts of Admiralty ? Whether a conversion of the thing would defeat the maritime lien, and if not, the rule of compensation by way of salvage ; or, perhaps, whether the statute in question had any application ?

*It appears to us, however, that neither of these questions neoes- [87 sarily arise on this special verdict.

It is found, by the jury, that when the vessel was raised, and the money in question converted by the defendants, the vessel and money were derelict property, and abandoned by the owner.

Perhaps, if the term derelict only were used by the jury, there would be more difficulty in the case; for, if used in its strict maritime sense, it would not imply that the owner was divested of all right in the property. 7 Amer: Jurist, 30,'32. But when the jury find the vessel and money were, also, abandoned by the owner, we suppose they intend to be understood that all hope, expectation, and intention to recover the property were utterly and entirely relinquished; and such the judges, who tried the cause, believe was the evidence given on the trial; and, in ease of property, thus derelict and, abandoned, either on the high seas or anywhere else, it belongs to the first finder who reduces it to possession. The verdict, therefore, satisfies us, that when this conversion occurred, the plaintiff was divested of all ownership in the money, and has no right to recover.

On the face of this special verdict, however, there is a most gross inconsistency, which requires to be mentioned. It is not noticed by counsel, as it is known to be an error,- and doubtless had its origin in mistake. It finds, that when the property was taken by the defendants, on the 27th September, 1836, it was the property and money of the plaintiff; and then finds it was, at the same time, when converted by the defendants, derelict and abandoned; in other words, that the plaintiff had then no property in the money. Prom the recollection of those who tried the cause, and from the fact that this circumstance is not noticed by counsel, it is evidently an error. The intention was to find, that when the property was lost, it was the property of the plaintiff, and not after it was derelict and abandoned; and the verdict has, therefore, been considered as so finding the fact.

Judgment for defendants.

*Lane, C. J.,

dissenting. I fully concur with my brethren in the law of this case, but am not entirely certain that they adopt the true sense of the word abandoned,” in the special verdict.

I incline to think the jury meant nothing more than a want of the plaintiff’s pursuing active measures to reclaim his property, and not a positive relinquishment of his right. If this be the true meaning, it would change the judgment.


source: Caselaw Access Project

author: Lane, C. J.

license: Public Domain

text:
    Daniel Cassilly v. Samuel Rhodes.
    Where lands subject to a mortgage, are sold under a decree of foreclosure, the emblements of a lessee are protected, and do not pass to a purchaser under the decree.
    This was a Writ of Error, from the county of Stark, to reverse "the decision of the Supreme court, for misdirection of the jury at the trial.
    Rhodes brought a suit of trespass against Qassilly, for cutting and •carrying away his wheat; and the question made to the jury was, whose right to the crop was best.
    Pease mortgaged the premises to the State of Ohio, in 1837; in November, 1840, the sheriff sold them to Oassilly, under a decree of foreclosure and sale; and Oassilly took possession immediately, claiming the wheat in the ground, and giving notice of his claim at the administrator’s sale, in January, 1841. He afterwards harvested the wheat.
    After the mortgage, and before sale, Pease conveyed the premises to Folger, who leased to Myers. Prom April, 1840, Myers held the premises under a verbal lease until his death, in November, 1840, His interest in the wheat was, in January, 1841, sold, by the adminis'trator of his estate, to Rhodes ; *and Rhodes should recover in [89 this suit, unless the purchaser acquired a title to the growing crop, as well as the land, by the sale under the decree.
    The court, at the trial, instructed the jury that the plaintiff should recover ; and this writ of error is brought to review that opinion.
    S. Meyer, for plaintiff in error.
    There are important questions to be settled in this cause. What are the rights of a lessee for years, who comes in after an existing mortgage ? Is he entitled to the emblements as against the mortgaged or purchaser on foreclosure and sale of the mortgaged premises ? How is he affected as an incumbrancer, pendente lite ¶

    Let us consider these questions in their order. At common law, a lease, made after the date of the mortgage, is ineffective as against the mortgagee, and subject to all the circumstances of the mortgage ; and the mortgagee may evict the lessee by ejectment, without notice to quit. Keech v. Hall, Doughlass, 21 ; Thunder v. Belcher, 3 East. 449 ; 1 Hillard’s Abridgt. 279 ; 1 Powell on Mortgages, 159, 160, 161. That the lessee of mortgaged premises takes an interest subject to be defeated by the mortgagee, by ejectment or foreclosure, is a proposition well established by English as well as American authorities. This principle is, indeed, inseparable from the nature of the mortgage security. If a subsequent lease were not subject to the mortgage, it would put an end to the mortgage lien. Did not the interest of the lessee determine and cease on foreclosure or ejectment by the mortgagee, the mortgagor might effectually destroy the mortgage by a lease for a large number of years. For it is evident, if the mortgagor can make a lease to extend beyond that period, there is nothing to prevent him from granting a term for ninety nine years, or for centuries.
    This court has always held, that when the mortgage deed becomes absolute at law, by the nonperformance of the condition, the mortgagee may recover possession of the premises *against the mortgagor, [90 Why should not this hold equally good against the lessee of the mortgagor ? Will it be said that the mortgagor can convey to his lessee a greater estate or more rights than he himself possesses ?
    It will not be denied that the mortgagor’s interest in the premises was determined by the sale on foreclosure, and possession taken by the purchaser, in the case at bar. With what right can it then be claimed, that the estate or interest of his lessee was not also determined by the same acts ?
    But it has been said, (and so the court laid down the law to the jury, in the case at bar, as appears from the bill of exceptions ) that though the lessee’s estate was determined by the sale on foreclosure, yet he is entitled to the growing crops. '
    By what process of reasoning this conclusion is arrived at is not easily perceived. It is admitted, that the lessee’s estate, or possessory interest in the premises, is determined by the purchaser on foreclosure, recovering possession, and also, that the latter is entitled to the possession; yet it is claimed, in order to sustain this case, that the lessee is not only entitled to the emblements, but that he may also maintain trespass guare clausum fregit against him — the lawful possessor of the close.
    First, as to the lessee’s right to the emblements.
    It will scarcely be contended, that the mortgagor would be entitled to emblements, as against the mortgagee or purchaser on foreclosure. It has invariably been held by the courts in this country, and in England, that he is not; and perhaps no adjudicated ease can be found to the contrary. And one of the reasons given by the books, why the mortgagor is not entitled to the emblements, is, that the crop, as well as the land, is a surety for the debt. 1 Powell on Mortgages, 156, and 162; 9 Johns. 108; 10 Ibid. 360; 4 Ibid. 424; 1 Hayw. 17. 1 Glyn. and Jam. 218; and Hodgson v. Gascoigne, 5 Barn, and Ald. 88. In which latter case it was held that after judgment in ejectment at the suit of the landlord, the value of the growing crops, though sold or seized in execution, might be recovered in an action for mesne profits, 91] if the sale or ^execution were subsequent to the day of demise laid in the declaration.
    The reason given in the English cases is a sound one, though its force may be weakened here by the operation of our appraisement laws. But there is a reason more obvious and forcible, alike applicable here and in other countries.
    It is in the nature of the mortgage security that, on forfeiture, the mortgagee is entitled to the possession of the mortgaged premises, which he may recover by ejectment or foreclosure. But if in such ease the mortgagor were entitled to the growing crops, the mortgagee’s right to possession would, in effect, be rendered nugatory for a long period. In the ease at bar, for instance, the crop was in part put out, according to the testimony, the very week of the sale, and but two weeks before the purchaser’s entry. The purchaser’s right of possession would, therefore, be rendered ineffective until after the succeeding harvest; a period of almost an entire year.

      It is in vain to say that the mortgagee or purchaser, in such ease is entitled to the possession of the premises, if he has no beneficial interest therein, and may be treated as a trespasser by the mortgagor for entering on the premises.
    And are not these reasons equally obvious and striking in the case of the lessee of the mortgagor ? Is the mortgagee or purchaser on foreclosure any the less entitled to the beneficial possession of the premises, because the mortgagor may have substituted a lessee in his stead ? Or, is he any the more a trespasser on entering the premises, because the mortgagor’s lessee has put out the crop, instead ot the mortgagor ?
    It is difficult to perceive why these reasons should not be equally operative against the mortgagor’s lessee as they are against himself, or why the lessee should be entitled to the emblements when the mortgagor is not. In England, it is held that the lessee is no more-entitled to the emblements in such eases than the mortgagor. 1 Powell on Mortgages, 162, 163; Com. Dig., Title Biens, G. 2; Co. Litt. 55, c.; Mo. 24 ; Bro. Emb. 10, 12, 17, 20 ; Dyer, 31, c. ; Dallas, 30. In the case of Lane v. King, 8 Wend. 586, the Supreme Court of the state of New York decided the same way.
    *And the court, upon reviewing the authorities already cited, [92 Keech v. Hall, Doug. 21; Moss v. Gillimore, Ib. 269; Powell on Mortgages, 205, chapter 7 ; 11 Coke, 51 ; Dyer, 31, 173 ; and also the following American cases : Jackson v. Longhead, 2 Johns. 75 ; Jackson v. Fuller, 4 Johns. 215 ; McKercher v Hawley, 16 Johns. 289 ; 20 Ib. 61; 18 Ib 487 ; Jackson v. Dickerson, 6 Cowen, 147 ; Woodfall, 237 ; Jacob’s Law Dict. Embl. 4, 21, decide that the plaintiff below is entitled to recover, and give judgment. This seems, therefore, to be the established doctrine in the United States. I Hilliard’s Abridgt. 282, sec. 41; Ibid. 279, 280.
    The authorities, then, as far as the point has been adjudicated, are-clearly and strongly in favor of the plaintiff in error ; and I am at a loss to perceive any reason why the courts of this state should depart from this well established rule. Surely, in the ease at bar, the equities are strong with the defendant below.
    The lessee came in possession of the premises, not only after the making of the mortgage, but after bill of foreclosure filed, and but a few days before decree of sale. He put out the crop, with a full knowledge that the sheriff had advertised the premises, and, in fact, but a few days before the sale. Is it just and equitable that he should thus be permitted to incumber the premises for a period of almost an entire year ? In the ease of Bennett’s Lessee v. Miah Williams, 5 Ohio, 461, this court has truly said, “ that no rule is better established than that, during litigation, no change shall be made in ihe title affecting the rights of the parties.” See, also, 3 Ohio, 441. The mortgagor, defendant to the foreclosure case, could not surely thus incumber the premises. And does not his lessee, the plaintiff below, stand precisely in the same situation in this respect ? What interest could he acquire in the premises during the pendency of the foreclosure case ? Was not his proceeding in fraud of the rights of the mortgagee, or purchaser on foreclosure ? In putting out the crop he acted with full knowledge of all the facts of the case, and, consequently, at his own peril. There is, however, no hardship in his case. 93] *Aceording to the well established rule of courts of equity, he would be regarded as an impertinent intruder, and, by a. peremptory order, driven from the premises. 4 Johns. Ch. 609.
    It seems to me both the law and equity of the case are with the plaintiff in error; and I can not see upon what ground the defendant can possibly be entitled to recover. The judgment ought, therefore, to be reversed.
    Harris and Brown, for defendants in error.
    This case presents the important question, (highly important question to the agricultural interest of the State), “ Does the purchaser, under all judicial sales made in the month of November, (or at any time), take the growing crops in the ground, by virtue of that purchase ? ” It seems to us that the mere statement of the question will elicit the answer, “ No.”
    That a lessee of a mortgagor, after the mortgage, must hold subject to the mortgage, no one will doubt; but that is entirely indecisive of the question. The lessee must stand in the same relation to the mortgagee as the lessor does ; but if the lessor was in possession on foreclosure or ejectment, would the mortgagee take the crops ? In ejectment, when the mortgagee takes possession of the mortgaged premises, he must account for all the profits he obtains by that possession. That wheat and corn may be taken and sold, as chattels, on execution, there is no doubt. 2 Johns. 418 ; 3 Johns. 216. If they are chattels, clearly a purchaser at a judicial sale can take no interest in the growing crop ; and notwithstanding the purchaser may be entitled to possession of the premises, for general purposes, yet the tenant entitled to the crop has the possession, so far as may be necessary for cutting and carrying away the crop that he has sown. Wilber v. Payne, 1 Ohio, 252.
    The purchaser at a judicial sale can have no better title than if he had bought of the owner, whose right is thus sold. And if the owner in fee had sold in November would it have affected *the right of [94 the tenant who had sown his crop before the sale by the landlord ?
    Most of the eases cited by the counsel for the plaintiff in error arose in ejectment, and related to whether notice to quit was requisite or not, and does not bear on the question made in this case. The ease cited from 10 Johns. 360, is of this character; but in that very ease the court recognize the doctrine that where the tenant holds by an uncertain tenure that he shall be entitled to the growing crop. Surely under our whole system of judicial sales, where appraisementmust be had and sales are prohibited, unless at two thirds of the appraised value, the expiration of the tenant’s right of possession is totally uncertain. And we ask, most emphatically, in what situation would the agriculture of the country be placed in this State, shingled over with mortgages, as it is, if the tenant in possession, who sows before a judicial sale is made, is not permitted to reap what he has sown.
    The law requiring the real estate of a debtor, whether by mortgage or judgment, to be appraised, directs that the appraisers shall appraise the land. Clearly, they are not to appraise the crops growing on the land. And if it should appear that the appraisers had taken into their estimate the value of the growing crops, would not any court set aside the appraisement ? We think they, would.
    In some cases, the crop growing on the land is equal in value to the land itself; and yet eases might arise where there was not even a possibility of selling after the appraisement, before the crop might be cut and carried away.
    Then, if appraisers are not justifiable in appraising anything but the land, the purchaser takes nothing but what is appraised, and can not be considered as buying any thing but the land.
    Whatever may have been the decision of the courts in England or New York, in analogous eases, as the counsel has been forced to notice, their “ force may be weakened here -by the operation of our appraisement laws.” Their force is not only “ weakened,” but, we think, entirely destroyed, so that “ the reason of the law ceasing, the law ceases with it.” And the *court are undoubtedly left in this ease, un- [95 trammeled by adjudicated cases in any way analogous, and are left free to put such construction on our laws relative to the growing crops where judicial sales are had as will be conducive to the general interests of the State. And such a decision, the counsel for the defendant in •error have no doubt, must result in a confirmation of the judgment sought to be reversed.
   Lane, C. J.

If the question were between the grantor and grantee, whether growing crops, annual or other, pass by a deed of sale, it would be of easy solution. They are not, technically, “ emblements,” but “ issues,” or “ profits,” and part of the land, while in the owner’s hands : and, unless excepted, pass by the deed, because it is construed most strongly against him who makes it. 9 Cow. 39; 15 Mass. 159.

This reasoning does not apply to judicial sales when conducted under our system of appraisements. The principle, which now extends to personalty, as well as to lands, is, that the subject of sale should be appraised, and not sold, except at a price bearing some proportion to its value. But where lands are valued for judicial sale, the value of the annual crops is not included in the estimate. Yet, if the -croos passed, the purchaser would acquire property, which had not been subjected to appraisal; and thus defeat the system of policy intended for the debtor’s protection. The debtor’s rights, therefore, can be.saved only by regarding the annual crops as personalty, requiring a separate levy. The ease of Beggs v Thompson, 2 Ohio, 105, although ■decided on other grounds, adopts these premises, and barely abstains from expressing this result.

It is not necessary, howevar, to rest the case upon this ground, since other parties intervene. The lands mortgaged,were under lease. Between mortgagor and mortgagee, a mortgagor in possession is a tenant at will; and, if the emblements are not protected in his hands, it is because he may obtain their value in account, on bill to redeem. But he may lawfully lease, subject to the mortgage ; and when the mortgagee defeats the estate, either by entry or judicial sale, the annual 96] *crops are saved for the tenant, under the common rule relating to emblements, because the termination of the lease is uncertain. The elder jurists find abundant reason for the doctrine, in the protection the law owes to agriculture. Co. Lit. 55 ; 4 Kent Com. 73. And we ■may enlarge the basis by referring to our system of appraisals.

Judgment affirmed.


author: Birchard, Judge.

text:
    Amos Crippen and others v. the President and Trustees of the Ohio University.
    The Board of Trustees of the Ohio University have power to lay out into lots the portion of land marked as “commons,” on the town plat of the town, of Athens, and dispose thereof for the benefit of the University.
    This is a Bill in Chancery from the county of Athens,
    The bill was filed on the third of May, 1842, setting forth—
    That the complainants are owners of lots in the town of Athens, and, as such, entitled to use and enjoy, for the purposes of pasture, firewood, etc., that portion of land, amounting to about two hundred acres, designated on the original plat of said town as “ commons.” That the law authorizing the town of Athens to be laid out required a portion of land to be designated as commons, and to be recorded as such.
    That the tract so designated has been, ever since the first sales, used and enjoyed for pasture, firewood, etc., by the inhabitants and owners of lots, who were given to understand, at the time of sale, that it should always be so used and occupied ; and, under that impression and belief, they were induced to purchase and lease, at much higher rates than they would otherwise have done.
    *That, in April, 1840, the president and trustees of the Univer- [97 ,sity set up a claim of right to sell and dispose of said commons, and did sell fifty acres thereof; and have since advertised the remaining portion for sale.
    The bill prays that the complainants may be quieted in the use and enjoyment of said commons, for pasture, etc., and that defendants may be restrained from selling and disposing thereof, or otherwise interrupting or disturbing the owners of lots in the enjoyment of said commons.
    The defendants, in their answer, deny that any such use or enjoyment of said commons, by the owners and inhabitants of the town of Athens, existed, as is claimed in the bill. They admit, that about two hundred acres of land were designated, on the plat of the town, as commons, and so recorded. That these commons have occasionally been used by the owners and inhabitants, not as a matter of right, but merely by the sufferance of the defendants. They deny that any representations were ever made, by them or their agents, to purchasers, that they should be entitled to use and enjoy said commons. And', they claim, that, upon the original plat of said town, the right was expressly reserved, of laying out lots to be leased and disposed of; and that they were expressly authorized, by law, to make this reservation.
    Numerous acts of the legislature, in regard to the Ohio University, and proceedings on the part of tho corporators, are made parts of, and accompany, the bill and answer These, and the material parts of the testimony, being noticed and referred to in the opinion of the court, are here omitted.
    John Welch, for complainants, contended—
    First: There was a grant, or dedication, of these lands as commons. This will hardly be disputed. The bare designation of them on the plat as “ commons,” is sufficient. Brown v. Manering et al. 6 Ohio, Cond., 129, 354. But here is an addition; an express enactment of the legislature, who had power to manage this fund, given to them by 98] the donor, that ^commons — spacious commons, should be laid off, granted, or dedicated. The uses of the commons might have been particularly defined by the law ; and, indeed, it seems to have been the intention of the act of 1800, that they should be further defined than by simply calling them commons ; but then the act of 1804 does not require it any more than it requires a designation of the uses of the other parts of said town ; the lots, outlots, streets, alleys, gardens, etc. At all events, no further description was made, and the designation of their use must be found in the word “commons,” in connection with the context, and subject matter. Here are acts of the legislature, directing a town to be laid off, including, or consisting, in part, of college lots and college gardens, all together forming one town; and all together, to be surrounded by commons. The use arises at once, ex vi termini, without further designation; the commons are to be appurtenant to the town, including the college lots and gardens, etc. The parties, and the court, are bound to put some construction upon,, or attach some definite use to, the word “ commons ;” and it is impossible to attach any other.
    Commons arise by grant or dedication. 11 East. 376 ; 2 Johns, 424 ; 2 Bac. Abr. 35, note 28, and cases cited ; or, by prescription, which implies a grant. 1 Bac. Abr. 617, 618 ; and the analogy of the statute of limitation will be observed. 2 Vermont, 266 ; 11 East. 376 ; 2 Johns. 424. And they are incident to, and pass by, a grant of the land. 1 Bac. Abr. 618 ; 3 Bac. Abr. 385. These are commons so called in the statute, and so called upon the plat. As such they are incident to something ; and what can that be, if not the town of Athens ?
    The claim set up by defendants, is understood to be, that, admitting that these lands were once commons, they are only to remain such during the pleasure of the University. That she reserved to herself the right to destroy or sell them, and to change their designation from commons to streets, lots, alleys, etc., and to transfer their uses from the town to the University.
    *Second: But there was no power to make the reservation, [99 and it is, therefore, void. All their power is derived from the legislature. It was to lay off the town according to Putnam’s plan; to alter his plan, by extending the house lots (not the outlots, streets, etc.,) into the commons and outlots, where, on actual survey, found necessary, provided it was done before sale of any lots ; to make such alterations as were found expedient, recording the plat and alterations before sale, and to designate the uses of the several parts of the town on the map or plat. Under which of these powers did the trustees act when they made the reservation of a right to dispose of the commons — the entire commons? Under whichever it may be claimed, it is a full answer to say that the time for its exercise has gone by. By both acts, of 1800 and 1804, it is expressly limited by the first sale of the lots. That sale took place in November, 1804. As soon as the first lot was sold, these powers all expired. They had then been exercised, and the trustees, quoad hoc. became fundi officio ; and a further act, emanating from the same source of power, the legislature, would be necessary to enable them to alter, in the smallest degree, the streets, alleys, lots, gardens, or commons of the town. No such act has passed, and no such power, therefore, ever has existed since the first sale. The object of requiring a plat, designation, and record, before sale, was certainty; whereas, uncertainty must have been the object, if such a reservation was intended.
    To alter the plan upon actual survey, is a very different thing from destroying or disregarding the plan. The plan was to have 250 acres of commons, and some 200 acres of lots. The trustees undertake to obliterate the commons, or, what was worse, to reserve the power to obliterate them after the sale of the lots, at pleasure. They might as well destroy or sell the streets, alleys, etc. They had just as much power. If they can, or could, dispense with one, commons, lots, gardens, streets or alleys, they can, or could, dispense with all or any, and say that the town shall be all commons, all streets, all alleys, or all gardens.
    *A corporation has limited powers, the grant of which must be strictly construed. 6 Ohio, Cond., 129, 354; 8 Ibid. 286. The power to extend the house lots into the commons is only that of enlarging some of the lots — altering the lines — not a power of selling the commons — not of extending outlots or streets and alleys into the commons —not of converting them into streets, alleys, and out or inlots. But if such is the true meaning, to lay out new lots, streets, etc., in the commons, the very expression, “extending into,” implies that some, if not the principal part, of the commons shall be left. One was to be enlarged, and the other diminished, but neither was to be destroyed.
    There is no power to lease or sell any part of the land in the two townships, except what is contained in the twelfth and thirteenth sections of the act of 1804. The twelfth authorizes the trustees to lease all except the town of Athens. The thirteenth authorizes them to sell and lease the lots, viz: those laid out, designated, and platted and recorded before sale. Where, then, is the power to sell the commons ? It still remains in the legislature, except where, as in the case of the graveyard, and other instances, they have delegated it by subsequent acts.
    It would be idle to pretend, or argue, that under the power, or, rather, direction, to designate the uses of the commons, or the several parts of the town, the trustees might lay off into lots, or sell the commons, or reserve the right to do so for their own benefit. The utmost that could be done, by way of designating the use of the commons, would still leave them commons.
    It can not be presumed that such a reservation was on the plan returned by Putnam to the legislature :
    First: Because there was no trustees to make it.
    Second : Because a proviso, in the act accepting the plan, that the house lots might be extended into the commons, would then have been useless, and would not have been made.
    What right have the trustees to reserve a power or right to themselves. They never had any power or right in the ^matter, and how could they reserve such ? It belonged to the legislature, and was to be reserved, if at all, by and to the legislature. They might as well have reserved it to John Doe; and Richard Roe had as much right to make the reservation. “ A reservation must be of such a thing as he that doth except may have, and that doth properly belong to him,” Shep. Touch. 78, 79, otherwise it is void.
    Third : The reservation is inconsistent with the grant, and, therefore, is void. Such a reservation, even if made by authority — even if made by the legislature, who granted the commons, is void, because it is a reservation of the entire thing granted. That there once was a grant of commons — of all that is fairly included in the term commons —to some extent — of some quantity of land, can not be denied. This grant was accompanied with, or, rather, followed by, a reservation of a right to take them all back again. Such a reservation is void; void if made at the very time of the grant; void certainly, if made after, on the principle that the “ first clause in a deed, and the last in a will,” shall take effect in ease of repugnancy. But admitting that this reservation and grant were simultaneous ; that there was no grant of commons till the reservation was written on the plat, (along side the word “ commons,”) and the plat recorded, and the first lot sold; the question is, was there no repugnancy ? Can the grant and the exception, or reservation, both take effect ? They clearly can not, and, therefore, the reservation is void, in toto. Sheppard’s Touch. 78, 79 ; 3 Bac. Abr. 393 ; Ibid. 89, 79, titles “ Repugnancy,” “ Habendum,” “ Saving.”
    This is not a reservation, but an exception, notwithstanding the word used. “ A reservation is of something new,” to arise out of the thing granted, as rent; and is made by the word “ rendering,” etc. Sheppard’s Touch. 80. An exception may be by the word saving, and is that whereby the grantor doth except something comprised within the generality of the terms of the deed. Shep. Touch. 78. It must be of a part of the thing only, and not of all, or the whole effect of the thing granted. Ibid. 78. You can not grant twenty houses, excepting *one; for this negatives the grant. Ibid. So a grant [102 of land, reserving or excepting the profits ; or, of a house, excepting one room. These exceptions are void, both for repugnancy and uncertainty. So, if one make a lease for ten years, at the will of the lessor, this is a good lease for ten years certain; and the last words are void, for repugnancy. 3 Bac. Abr. 394. The same rule applies to the construction of statutes. A saving repugnant to the purview is void. 6 Ibid. 381.
    Suppose the grant had been by deed, instead of these • statutes, and this plat and designation, and that the deed was executed at the time the plat was made, and this reservation incorporated into the deed, how would it read ? and how would its parts take effect ? This will simplify the case, and present this question of repugnancy or inconsistency more distinctly, without varying the principle of the case in the least. The deed would be to this effect: “ We grant you commons, but we reserve the right to take them all back again at our pleasure.” That is, “ we grant you as much commons as we please to let you have.” Or, thus : “ We grant you just as much commons as we were bound to let you have before we made any grant.” That is, “ we grant you nothing ; we grant, but we don’t grant.” Such a grant and reservation can not stand together. They are wholly and irreconcilably repugnant. One or the other must give way, in toto. And the books, as well as common sense, tell us which that must be. A reservation shall never defeat a grant, because it would thus defeat itself. The reservation stands upon the grant, as a house upon its foundation. Take away the latter, and the whole edifice will fall.
    An exception (in ease of uncertainty,) shall be taken most favorably to the grantee; and if not set down with certainty, the grantee shall have the benefit arising from the defect. 3 Johns: 375 ; 8 Johns. 394.
    He also made the following points ;
    Fourth : The reservation, by its own terms, only extends to part of the commons.
    Fifth : The public had no notice of the reservation, the plat not being recorded.
    *Sixth: The complainants have title by the statute of limitations.
    A. G. Brown, (T. Ewing, was with him,) for defendants.
    The two principal, and, as it is conceived, only material questions to be settled in this case, are these : Had the board authority to make the reservation inscribed on the original recorded plat ? And, if so, had they, and have they still, authority to continue to lay out and sell parts of the commons, so. long as any remain ? If the affirmative of the first of these propositions be established, the others would seem, almost, to follow of course.
    The counsel for the defendants do not consider it necessary, and will not attempt to follow very minutely, and reply to every particular of the labored and ingenious argument of the counsel for the complainants. Much that he has said may be safely admitted, while much more, it is conceived, has little or no bearing upon the points at issue, and the real merits of the case. His references, for authorities on the subject of commons, are, principally, to the ancient English books and decisions, very few of which, it is apprehended, have any direct or analogous application to the species of commons involved in the present ease. 3 Kent Com. 403, (4th edition) as to commons in the U. S. Mr. Welch does not seem very precisely to define the kind of commons which, according to the books, he apprehends the commons in the present case to be.
    It is admitted, of course, that there are commons in England where no right of approvement exists, and ih this country, where no reservation has been made in the grant or dedication, by an individual or body holding the absolute fee ; but in the present instance, the grant or dedication was by trustees, having, at most, but limited powers, and, besides, having used the precaution of making an express reservation.
    By the conditions of the original compact, the lands in the two college townships, so called, were given forever, for the purposes of a university, to be applied by the state legislature. *In the word [104 “ applied” is contained the whole power of the legislature, and that limited to the purpose named, and no other. The first movement to carry into effect the object of the donation after the survey and selection of the two townships, by the agents of the Ohio Company, was the resolution, adopted December 19, 1799, by the territorial legislature, appointing commissioners to lay off a town plat, etc., for the site of the contemplated University, within said townships. In this resolution, is sufficiently denoted the light in which the power of the legislature was then viewed. The plat was to contain, as of first importance, “ a square for the colleges; also, lots suitable for house lots and gardens, for a president, professors, tutors,” etc., and these bordering on, or encircled by, spacious commons ; and, further, such a number of town lots adjoining the said commons and outlots, as said commissioners should think would be for the advantage of the University. Do the commons seem to have been intended to be made appendant or appurtenant to the town lots, or, are not rather both commons and town lots appurtenant to the college square, etc., the advantage of the University being the primary object. The legislature seem to have been aware of the sacred nature of the trust, and to have guarded their language accordingly. The resolution of December 6, 1800, confirms the town thus laid out, by the name of Athens,' with a proviso, that the trustees of the University, therein to be established, should have power to alter said plan in certain particulars, and, provided, also, that such alterations should be made, and a plat, etc., with a designation oi the uses of the commons, should be recorded, etc. A second section provides that two certain lots should be designated and set apart, and reserved for the use of the town, etc. The thirteenth section of the act of 1804, contains, in substance, the same provisions for a designation of the uses of the several parts of said town. Now, if it had been intended that the commons should be designated and set apart, and reserved, for the use of the town, as in the case of said two lots, why was not similar language used ? What could have been intended 105] by the requirement that the uses of the commons *should be designated ? Had the word “ commons” been used in said resolutions, and in the act of 1804, in the unlimited sense contended for by the complainants, there would neither have been any necessity, nor propriety, in requiring, or authorizing, a designation of uses. The word “ commons” inscribed on the plat, would have constituted a dedication, carrying with it all the incidents of unrestricted commons. Had mere commons been intended, the inscription of the bare word on the plat would have vested the part designated for the use of the town ; and the board of trustees could never again have exercised any jurisdiction or control over the part so dedicated and vested. It is clear, from circumstances, that the legislature had a particular purpose in directing a designation of the uses of the commons to be made. The original plat returned by Gen. Putnam, and others, to the territorial legislature, is, unfortunately., not to be found in the archives of the state. It is probable this plat contained some note or suggestion on the subject of these commons. This supposition is strengthened and confirmed, by the expressions used in the original draft of the report to the legislature accompanying said plat, which was found among the papers of Gen. Putnam, in the hands of his son, a copy of which is inserted in the answer of the defendants. The original plat, made and recorded in 1804, was executed under the superintendence of General Putnam ; and the certificate thereon, containing said reservation, and the designation of the uses of the several parts, is signed by him; and who, with the other members of the board then acting, may be supposed to have been familiarly and well acquainted with the views and intentions of the legislature, and the original parties to the compact by which said two townships of land was given. But had not the board power to make this reservation, independent of the special direction of the legislature ? The power conferred upon the legislature was to apply the donation to the purpose intended. In the execution of this power, the legislature created a board of trustees, and, by the act of 1804, vested said two townships of *land in said board, with ample [1©6 powers for executing the trust reposed therein. By this act, the power of the legislature over the subject was exhausted, and its office ceased, so far as concerned the direct control and management of the donation. Not only, then, was the right and power invested in the board, but it became their duty, as faithful trustees, to make the reservation they did. If these views be correct, the first proposition above stated is established, viz : that the board had the power to make the reservation of a right of laying out such parts of the commons as they, from time to time, might think proper, into house lots, outlots, etc., as expressed on said plat. And, this established, it is hardly necessary to state an argument to prove that the right has not since been lost, to continue to lay out and dispose of parts of said commons, in the manner prescribed, so long as any part shall remain, and the interest of the University require it.
    There is nothing, it is believed, applicable to the ease, in the arguments of the complainant’s counsel, drawn from the legal axiom, “that the first clause in a deed, and last clause in a will, shall Stand,” and that “ a reservation, inconsistent with the grant, is void,” etc. The distinction between a reservation and an exception is perfectly clear. The grant, in this case, is of certain grounds, as commons, during the will of the grantors ; a grant of commons for the present, with the future right of approvement. In this there is nothing inconsistent or improper. It is not like the grant of a certain number of acres, except the whole or a greater number of acres, or of a whole, except all its parts, etc.
    The inference is attempted to be raised, by the complainants, that the owners and holders of lots have acquired rights in the commons by prescription, or occupation adverse to the claims of the board.
    The policy of the old law, in favor of common of pasture, and estovers, as being conducive to improvements in agriculture, has entirely changed, or become obsolete, and this incorporal right is now found to be an incumbrance, rather than an advantage. The right of common is little known or used in *this country, and probably does not [107 exist in any of the northern or western parts of the United States, which have been settled since the revolution. 3 Kent’s Com. 403, last edition, where reference is also made to the opinion of the Chief Justice of Pennsylvania, 12 Serg. and Rawle, 33, who declared that he knew very few instances of rights of commons, etc. It is denied, on the part of the board, that any possession or occupation, which has been had by the inhabitants, has been adverse to the claims of the board, being only of a qualified and limited kind, and that, too, by the express or implied license and permission of the board ; and with notice and knowledge of the rights claimed by the board. This the complainants are estopped from denying, since they have set up, in their bill, that the plat was shown to the public, and to purchasers, at the sales, and assurances given that it had been recorded. The board have, also, at different times, laid out and sold lots from tho commons, the inhabitants not only standing by and not objecting, but actually petitioning and requesting to have such sales made. How, then, could any limitation run against the right of the board to lay off lots, etc ? And have not the inhabitants rather lost the right, did they ever possess it, of objecting to the proceedings of the board in making further sales of such lots.
    It may be added, that neither the legislature, nor the board of trustees by them created, could apply any portion of the land in said two townships to any purpose or object but the support of the University, nor in any manner which might not be most beneficial to the same. The laying out of a town, with proper streets and alleys, and suitable lots for public buildings, etc., was, doubtless, within the powers conferred upon the legislature and trustees ; but the permanent alienation of so large a body of land as was comprised in the plat of said town under the designation of commons, could never have been within the contemplation of those powers, unless it could be clearly shown that such would be for the interest and advantage of the University. This the complainants have not even attempted to show. 108] The language of deeds, etc., is to be *construed most strongly against the grantors ; but there is no occasion for the application of this rule in this case. The grantors here are mere trustees, and are not permitted to go beyond their powers ; and, besides, have very prudently left nothing for construction. The language of the reservation is as clear and explicit as that of the grant or dedication.
    On these grounds, it is believed, the defence of the respondents must be sustained.
   Birchard, Judge.

The papers in this case are voluminous, and contain much matter that may be passed over in stating the principle upon which the decision of the case must turn. The main facts are these : Townships 8 and 9, in the 14th range, were appropriated by Congress and set apart for the purpose of endowing an University. In 1799, the territorial Legislature, by a resolution, requested Rufus Putnam and others to lay off in one of the townships a town plat, to contain a square for the colleges, lots suitable for house lots, and gardens for a President, Professors, Tutors, etc., bordering on, or encircled by, spacious commons, and such a number of town lots adjoining said commons and outlots, as they should think will be for the advantage of the University.

In 1803, an act confirming and establishing the town of Athens, in the county of Washington, provides that the return and report of sgid Putnam, etc., be accepted and approved, and that the said town be confirmed and established ; “ provided, that the trustees of the University therein to be established,, shall have power to alter the plan of said town, by extending the house lots into the commons or outlots which adjoin the town, or by altering the streets,” etc..; “ provided, also, that such alterations be made, and a plat of the town, outlots and commons, with a designation of the uses of the commons, be recorded,” prior to a lease, etc.

The second section designates lots 55 and 56 to be set apart for the use of the town and county, to be noted on the plat, and the title to vest in the county for the uses designated thereby.

*An act bearing date February 21, 1805, established the Uni- [109 versity, and appointed certain persons trustees. The 13th section made it the duty of the “ trustees to lay off the town of Athens, conformably to the plan of Rufus Putnam and others, in pursuance of resolutions of 1799, with such variations, however, as they may find it expedient to make; and the same being thus laid off, and a plat of the same, with a designation of the uses of the several parts of being recorded,” etc.; and upon certain terms to sell.

A plat of the town was made, on which is a certificate of the recorder, that it was recorded on the 4th October, 1804. This plat contains certain streets, squares, etc., pertinently designated, and also certain vacant or unsurveyed land, without the limits of the town proper, bearing this designation : “ All the lands within the aforesaid boundary lines, not included in the public squares, house lots, outlots, streets and roads, are designated for commons; provided, always, that the hoard of trustees reserve the right of laying out such parts thereof as they from time to time may think proper, into house lots, outlots,” etc.

The important questions to be settled are — Had the board of trustees authority to make this reservation upon the plat ? — and have they now the power to lay off lots, etc., and sell the same, as in their judgment the interests of the University and public convenience may require ?

First: As to the power to make this reservation.

In coming to a correct conclusion upon this question, it is of some importance to look well to the subject matter. The Legislature were intrusted with a fund for the purpose of advancing the cause of science. The main intent was to make a disposition of it in the best manner to advance the design of the donor. All of their acts should be favorably construed to effect this design. The Ohio University was the great object in view throughout. The town-of Athens was merely incident and subsidiary to that object. We are forced to this conclusion to avoid an inference of unfaithfulness in the discharge of the trust con-11©] tided to the state by the bounty of the United ^States. The resolution of 1799 speaks only of such spacious commons, lots, squares, etc., as would be of advantage to the University ; and all of the subsequent legislation must be construed with this, as a part of the whole. Hence, the intent of the power to alter the plan of Putnam and others, contained in the act of 1803, may be gathered. That, also, was for the advantage of the University. The act mentions the tract in question, as commons, or outlots, and the power is expressly given to the trustees (not then appointed) to extend the house lots into it, without restriction, as to them might seem proper. But it is thought the proviso is a limitation of this power. The object of the proviso must be looked to in determining this point. The plat was to be completed as far as necessary to advance the main object, and the designation of the uses of the commons was to be made, and the plat recorded, before sales, in order to prevent surprise upon purchasers, and to become evidence of the extent of their rights. The country was then new — a small area was then sufficient to accommodate a sparse population ; time, and an increase of inhabitants, might render a greater number of house lots matter of public convenience, as well as beneficial to the University. Its interests being regarded as the primary object, ea.n it be supposed that the Legislature, anxious faithfully to discharge the trust confided to the state, intended to force into market at once, and under the circumstances, all the lots that a great increase of population might ultimately render necessary. The supposition is not admissible. It better comports with honesty to suppose that they designed to vest a discretion, to be exercised by a board of trustworthy men, for the advancement of the main object, but so restricted that good faith must be observed as to others.

This land, whether to he called commons or outlots, remained unsurveyed because it was not then needed. Its uses were so designated as to prevent deception. The uses were consistent with the primary object of the law; and we, therefore, say the reservation was legally made.

*As there is testimony in the case, taken for the purpose of [111 proving that the purchasers of lots adjacent to this land bid higher on account of its proximity to this common than they otherwise would, it is perhaps proper to notice it. All we have to say upon the subject is, that if they were misled and deceived, it was the consequence of their own folly or neglect. The law had been published — the plat was made and recorded. It was the business of purchasers to look to them for information. These would not have misled them. If they chose to trust to the idle declarations of men unauthorized to speak upon the subject, and who gave incorrect information, chancery will not aid them.

This seems to be nearly sufficient to dispose of this case ; for it is not readily perceived how the complainant’s bill can be sustained with this one point against them. However, as other points have been argued, and the counsel of respondents wish them determined, we pass to the question, whether the trustees have now the power to lay off and sell additional lots. If they have not, I put the question, when did they lose it? The eleventh section of the act of February 21, 1805, vests the townships 8 and 9 “ in the corporation, in trust, for the sole use, benefit and support of the University, forever.” And the thirteenth section clothes the trustees with power to “ proceed and sell, from time to time, at public auction, such of the house and outlots as they may think proper.” The fact that the cattle and sheep of people living in Athens have depastured the grass growing on this land no more defeats this right than it defeats the title of the owners of other adjacent land that has been treated in like manner.

But if at law it would defeat the title, we then say to the complainants, try the question at law ; for chancery will not take jurisdiction where the law affords a plain and adequate remedy.

Injunction dissolved, and bill dismissed.

Judge Read, being one of the Trustees of the Ohio University, did not sit in this ease.


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    *Willis Ferrell v. Joseph Humphrey, and another, Administrators of Nelson Phelps.
    Where an issue has not been made up by the parties to a suit, the court can not proceed to judgment.
    As a general rule, where a plea, constituting a bar to the action, and requiring a replication, is left unanswered, it is error to dispose of the case while that plea remains on record, without replication.
    But in an action of replevin under the Ohio Statute, where the defendant pleads non deiinet, and also a plea of property in himself, the want of a replication to the latter plea is not a sufficient ground to reverse the judgment.
    This is a Writ of Error, from Lorain County.
    An action of replevin was brought by the Administrators of Nelson Phelps against Willis Ferrell. The defendant plead—
    First: Non detinet.

    Second : Property in himself.
    The parties went to trial, without any replication to the latter plea. The verdict and judgment were for the plaintiffs. This writ of error is now brought to reverse the judgment.
    H. D. Clark, for plaintiff in error.
    The only point made in this case, is, whether it is error to try, and dispose of a cause, where there is a special plea without any replication.
    The case, it is believed, does not admit of a question.
    It is the province and business of the court to try the matters in dispute between parties litigant, by trying such issues as they present by their pleadings. Consequently, when an issue is tendered by one party it should be answered by the other, before the controversy is reduced to a proper shape and condition for the final action of the court.
    This question, it is believed, has been fully settled by the previous decisions of this court. 2 Ohio, 253 ; Mason v. Embree, 5 Ohio, 277 ; Headly v. Ruby, 6 Ohio, 521.
    *The Reporter was not furnished with any argument for defendants in error.
   Lane, C. J.

As a general rule, it is well settled, that where an issue has not been made up by the parties to a suit, the court can not proceed to judgment; Mason v. Embree, 5 Ohio, 276 ; and that where a plea, constituting a bar to the action, and requiring a replication, is left unanswered, it is error to dispose of the case, while that plea remains on record, without replication. Headly v. Ruby, 6 Ohio, 524. But it is equally well settled, that a judgment will not be reversed for mere irregularity of proceeding, or error in form, where it appears from the record that the party was not prejudiced by such irregularity.

In the action of replevin, under our statute, the jury are bound to inquire into the right of property, and right of possession, of the defendant, in the goods and chattels in controversy, and if they shall find him entitled to either, they shall assess such damages as are right and proper. Swan’s Stat. 786.

Both these questions are put in issue by the plea of non detinet, as was decided by this court on application for a writ of error, in the ease of Oaks v. Wyatt, 10 Ohio, 344. Now in the ease at bar, issue was joined upon that plea. Without deciding, whether the plea of property in the defendant would be good under our statute, it is apparent that it could afford the defendant no advantage that he had not under the other issue. The precise point was presented to the jury under the plea of non detinet; and if they had found it for the defendant, the verdict must have been in his favor. It is not easy, therefore, to discover how the defendant could have been benefited by a replication to his second plea, or prejudiced by its absence. The judgment must be affirmed.

Judgment affirmed.


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    *The Portsmouth and Columbus Turnpike Company v. Legrand Byington and others.
    Where an injunction restrains proceedings of a judgment creditor against certain specific property, claimed by a third person, without interfering with the remedy against other property, or the person of the debtor, who is not made party to the bill, the court will not, on dissolution of the injunction, and dismissal of the bill, decree against complainant the amount of the judgment and penalty.
    Where, from the papers and certificate of reservation, there appears to be no question remaining for decision, the case will be stricken from the docket, or remanded.

      This is a Bill in Chancery from Pike county.
    The defendant, Byington, had recovered judgment at law against one McFarland, and caused execution to be levied upon some bridge timbers that had been prepared, by the judgment debtor, to.erect a bridge for the complainants. The complainants, thereupon, filed their bill in chancery, setting forth, that they would sustain great loss and injury by the sale of said timber, and the delay in erecting their bridge, and prayed an injunction, to restrain Byington “ from all further proceedings upon said execution, and levy against said timber,” and on a final hearing, “ that the said execution and levy be perpetually enjoined, so far as it respects the levy on said timber, or any other materials for said bridge,” and for general relief. McFarland, the judgment debtor, was not made party to the bill ; an injunction was allowed, as prayed for, and bond given.
    The bill was demurred to, and, at the November term, 1843, upon the circuit, the injunction was dissolved, and the bill ordered to be dismissed. Before the entry of this order, a motion was made, in behalf of the defendant, Byington, for a decree against the complainants for the amount of his judgment, with the penalty under the statute. The question upon this motion, was reserved to bank. But, in making Í15] up the ^journal, the motion was overlooked, and no mention made of it in the entry, which was as follows :
    “ This cause came on to be heard, upon the demurrer of the defendant, Legrand Byington, to the complainant’s bill, and joinder of the complainants, and was argued by counsel; on consideration whereof, the court held the said demurrer to be well taken. It is, thereupon, ordered and decreed, that the injunction herein before granted, stand dissolved ; that said bill stand dismissed, with costs ; and, thereupon, the court order that this cause, and all questions pending in it, be reserved for decision in bank, at the next term.”
    A motion was made in bank, by complainants, to dismiss the case.
    J. L. Green, in support of the motion to dismiss.
    The whole case is, by this decree, disposed of. There was, in truth, no cause or question pending, which might be reserved for decision here. The counsel for the defendant, has argued, at length, a question which he assumes is before this court for adjudication. But, we suppose the court will look to their own record, first, to see whether, in truth, there is any case pending. There is no intimation, or allusion, in the decretal part of this order, that any question remains to be disposed of. The decree is final, full, and complete. The parties were out of Court. There was no ease remaining. What questions could be pending ?
    Again : The certificate does not show that any question, “ important or difficult,” has arisen in any of the proceedings of, or in relation to, the cause. Nor does it there appear that there was any difference of opinion between the judges who heard the cause, in relation to any question connected with it. - .
    There is no case, properly, here; and the cause should be dismissed, or stricken from the docket.
    If the court shall differ with me in opinion, I shall then ask to be heard on the question discussed by Mr. Byington, if that is the question reserved by the court.
    *Legrand Byington, in support of his motion for a decree.
    The respondents insist that a decree must go against the complainants, for the full amount of the judgment at law, with the penalty fixed in such cases.
    First: Because the case presented, is within the very letter of the statute. Swan’s Stat. 711, sections 41 and 42. The statute is general and peremptory. It enacts that, “ in all cases, where an injunction is allowed, to stay proceedings at'law, in an action for the recovery of money, only,” upon a dismissal, etc., “ the court shall render a decree in favor of the respondent (plaintiff at law,) for the damages,” etc., recovered at law, and penalty.
    Second : Because this case is within the obvious and necessary meaning and spirit of the statute, as well as the letter. The objects of the statute are manifest. It was enacted for the purpose of giving a judgment creditor an indemnity for the contingent losses and injuries that he might sustain, by reason of being compelled to litigate those rights in a court of equity, which had been once determined in a court of law ; and, for the additional purpose of securing, by the injunction bond, the payment of liquidated debts, existing in judgment, the payment of which is not only delayed, but endangered, by the operatiou of the injunction.
    Third ; Because, by the oblique process to which the complainants resorted, they would be enabled, unless a decree is pronounced against them, to destroy the securities of a judgment creditor, by abusing the process of a court of equity. By the dismissal of the bill, and the dissolution of the injunction, the court have already found that the injunction ought hot to have been allowed, and that no reason existed for filing the bill. And yet, by these means, alone, the complainants appropriated to tlieir own use, the very property which had been levied upon, to pay the respondent’s judgment.
    Fourth : Because, unless a decree is pronounced against the complainants, the respondents have no adequate remedy whatever; not 117] even the poor one of prosecuting them, in a court *of law, with a prospect of success. The judgment debtor, McFarland, can not be pursued with any hope of success, because he has, since the injunction ■was allowed, become utterly insolvent, and a fugitive from his creditors.
    Fifth : Because, if a decree be not pronounced against the complainants, for the amount of the judgment and penalty, the respondent has no remedy upon the injunction bond, and the giving of the bond was a farce. Upon the allowance of an injunction, in this class of cases, bond is required, in double the amount of the debt and costs. It was so given in this case. It is conditioned, as usual, that the complainants shall pay the amount of the decree, and was designed as the indemnity of the respondent, for his judgment. Now, the complainants say no decree can go against them, except for costs. If this be correct, what indemnity does the bond afford to the judgment creditor ? How is his debt secured by it, and what has he to indemnify him for the loss of his levy, of which he has been deprived, by means of a bad bill, and a bad injunction ? If he looks for the property, it is gone. .If he looks for the judgment debtor, he is gone. If he then turns to the bond, which was to be his indemnity for the occurrence of these things, the complainants come forward, and pay the costs, merely, of the illegal proceeding, under color of which they have accrued, and claim that is a full compliance with its condition. Where is the creditor’s debt; where his judgment; where his levy; where his indemnity ? All, all sacrificed to the wickedness or stupidity of the complainants, in bringing a vexatious suit, which a court of chancery have already decided was improperly and wrongfully brought.
    Sixth : Because the complainants did not make McFarland, the judgment debtor, a party complainant in the bill, as they ought to have done. Had the judgment debtor been made a party, the usual condition of the injunction bond would have operated as an indemnity for the debt, and there is no pretence but that the decree would then have been pronounced. By omitting to do, then, what it is clear they ought to have done, they have prejudiced the respondents’ rights, and 118] facilitated ^the means of defrauding him, unless the statutory decree shall be pronounced against them.

      Seventh : Because, in a ease like the present, when the complainants, by their interference, if not improperly, at least in an improper way,, have not only “ stayed proceedings at law, for the collection of money, merely,” but-have rendered the collection of an honest judgment hopeless, unless they are compelled.to pay it, the court will not contract the operation of a wholesome statute, if, by any means, they can bring it within the terms or meaning of the act.
    If the court are against me upon the foregoing points, then I claim that the court can, and ought to pronounce a decree against the complainants, for the amount of the judgment, without penalty, and upon equity principles, independent of the statute. That it is competent for the court, as a chancery court, to do so, can not, I apprehend, be doubted; and that such a decree would be equitable between the parties, may be gathered from the proceedings in this cause, and their influence upon the rights of the parties. I have been unsuccessful in my endeavors to find, in the reported decisions of this court, any case analogous.to the one at bar. As it is, therefore, presumed to be a new question, I apprehend the court will hesitate long before they give to the statute such a construction as is claimed by the complainants in this cause. Should the court determine, in the authoritative form of a reported decision, that they can render no decree for the amount of' a judgment improperly enjoined by any person other than the judgment debtor, it would be construed into the broadest and most licentious invitation to all judgment debtors, to procure the filing of bills, by collusion, whenever and wherever the payment of costs, merely, would be considered only an equivalent for the opportunities thus to be afforded, of placing their effects beyond the reach of execution.
    N. K. Clough, contra.
    We contend that, if the court can render up a decree for costs, they can go no further, the turnpike company not *being party to any [119 judgment at law, obtained against them by the respondent, Byington, and, there being no judgment whatever enjoined, but the prayer of the bill is simply to enjoin the respondent, from proceeding, by an execution, issued on a judgment rendered in his favor, against one John McFarland, to sell bridge timber, claimed by the turnpike company. We, therefore, contend that, as the court having dissolved the injunction, preventing the sale of the bridge timber, which is all that is enjoined by the bill, there the action of the court must stop. If the court, upon the dissolution of the injunction, and dismissal of the bill, can render up a decree for costs, yet we contend that there can be-no decree rendered in favor of the respondent for debt, or damages at law, there being no judgment, or money-claim of the respondents, enjoined.
    The dissolution of the injunction, and dismissal of the bill, permits the respondents to proceed with their execution, and sell the timber, or, if the timber has been used, or the company' refuse to give it up, on demand, they may bring an action of trespass, or trover. But, as there has been no injunction against the collection of a judgment, or money, in any shape, in favor of the respondents, there can be no decree in their favor for the recovery of money.
   Birchard, Judge.

After the injunction had been dissolved, and decree ordered, in this case, the question was made, by motion, as to whether, under our statute, the defendants were not entitled to a decree against the complainants, for the amount of the judgment at law, against McFarland, and the penalty thereon. This question was intended to be reserved to bank. But it has been omitted upon the journal, and a final decree, disposing of the rights of the parties, was eutered, without reference to the motion.

There would seem, therefore, to be nothing remaining for this court to decide, and the usual practice would require the ease to be stricken from the docket, or sent back to the county, so that the entry might be there corrected.

*As the question, however, has been argued, and the point intended to be made, is fully within our recollection, we have thought it ■not improper to express an opinion that this is not a ease in which the respondent, Byington, is entitled to a decree, for the amount of his judgment against McFarland. The proceedings at law against him were not stayed. The prayer of the bill was, only to restrain the proceedings so far as the levy upon the property claimed by complainant was concerned. It did not prevent his proceedings against other property of the judgment debtor, or against the judgment debtor in person. McFarland is not a party to this suit. The validity of the judgment against him is not called in question.

Cause remanded.