author: Thurman, C. J.

text:
    *Charles Trowbridge v. Oliver T. Holcomb et al.
    An agreement to pay $1,500 in wool, at twenty cents per pound, may be discharged by the payment of $1,500 in money. That sum, and not the market value of 7,500 pounds of wool, is the measure of damages, if the wool be not delivered.
    Bill in chancery to foreclose a mortgage; reserved in Geauga county. The factB sufficiently appear in the opinion of the court.

      W. L. Perkins, for complainant, made the following points:
    I. The right determination of the suit depends on the construction of the agreement in the mortgage and notes, which, being of the same date and same transaction, altogether constitute the agreement.
    When the terms of a contract admit of more senses than one, the court is to construe it “ so soon as the true meaning of the words in which they are couched, and the surrounding circumstances, if any, have been ascertained as facts by the jury,” Chitty on Contracts, 8 ed. 73; 1 Greenl. Ev., sec. 277.
    The language used by a party to a contract must be construed as he supposed the other party would understand it (vide Paley’s Moral Philosophy), or as the other party had a right to understand it. Gunnison v. Bancroft, 11 Vermont, 493.
    Taking the notes and mortgage together, the intention of ibhe parties was to buy and sell a farm for wool, and that it should 'be paid for in 7,500 pounds of wool; and if this suit had been an action at law on the notes, no defense' could have been attempted against that view of the subject.
    The objection, “that this proceeding being on the mortgage to subject the land, Holcomb being insolvent, and the mortgage speeifying an indebtedness of $1,500, that amount of money and ^Interest should pay it,” can not, with any propriety, be applied to Holcomb, for he executed the notes, too, and the whole are one contract.
    II. It is sufficiently apparent from the mortgage itself, that it was intended that the payment should be in wool.
    III. But, if it were otherwise, are not Dutton,- Cushman, and Richmond chargeable with notice of the existence and contents of the notes ?
    What puts a party on inquiry is sufficient notice. A deed which refers to another deed, or “which leads the purchaser to another fact,” gives him notice of such other deed or fact. 2 Leading Cases in Equity (pt. 1), 100, 103; Bolles v. Chauncey, 8 Conn. 390; Sigourney v. Munn et al., 7 Conn. 324. “A purchaser who has actual notice of one instrument affecting an estate, has constructive notice of all other instruments to which an examination of the first could have led him.” 2 L. C. in Equity (pt. 1), 103; Moore v. Bennett, 2 Ch. C. 246; Coppen v. Ferneyhough, 2 Bro. C. C. 291.
    The mortgage is referred to by recital in each of the deeds, to Dutton, Cushman, and Richmond, and the mortgage shows that notes were given for the wool.
    One purchased an estate with notice of a post-nuptial settlement, not recited in the deed; the court held he should have gone to the wife’s relations, who were parties to the deed, and made inquiry whether it was voluntary, or made in pursuance of an agreement before marriage. 2 Leading Cases in Equity (pt. 1), 104; Ferrors v. Cherry, 2 Bridg. Dig. 689; 2 Vern. 384.
    Whatever is sufficient to direct attention of the purchaser to prior rights and equities of third persons, and to enable him to ascertain their nature by inquiries, will operate as notice. 2 Leading Cases in Equity, 116, and numerous cases there cited. To the same purpose is Hurd v. Vattier, 1 McLean, 118.
    [40 Mr. Perkins also cited the following authorities:* Edgar v. Bois, 1 Serg. & R. 445; Price v. Introbe, Harper, 111; Wilson v. George, 10 N. H. 445, McDonald v. Hodge, 5 Haywood, 85; Lang-try v. Walker, 6 Humph. 336; Hixon v. Hixon, 9 Humph. 33; Sedgwick on Dam. 241; Henry Petoe’s case, 9 Coke, 77.
    IY. The plaintiff is entitled to a decree for the highest price on the quantity of wool in each note, between the time when it was due and the day of decree, with interest from the time of such highest price. Chipman on Con. 285; Clark v Pinney, 7 Cow. 212; West v. Pritchard, 19 Conn. 217.

      Riddle & Thrasher, for defendants:
    I. Richmond can be reached only through the mortgage. He is by it advised that there are notes only, and is permitted to presume that they are in ordinary form; or, at the most, that they conform to the mortgage.
    II. But even if Richmond is charged with notice of the terms of the “ wool notes,” he can not be affected by them. Whatever may be the rights of the plaintiff at law on those notes against the maker, he can enforce none against Richmond. His liability is measured by the mortgage, and that expressly provides, that it shall be void on the payment of the debt, not according to the tenor and effect of the notes, but according to the terms of the mortgage; and when those terms are complied with, the cloud vanishes: and if the plaintiff has not received full redress, he must seek it elsewhere, through other channels.
    HI. This is a contract for the payment of a debt of $1,500, in wool, at twenty cents per pound, and not to be treated as a mere contract for the delivery of property. We are not aware that any decision in Ohio has settled the amount recoverable for the nonpayment of such a contract, in the property specified. We think, however, that the case of Newman v. Robert, 5 Ohio, 349, recognizes the doctrine, that it would be the originally expressed sum in money.
    41] Under this head, counsel cited:* Pothier on Ob., No. 497; Chipman on Con. 35, 36; Perry v. Smith, 22 Vt. 301; Smith v. Smith, 2 Johns. 235; Brooks v. Hubbard, 3 Conn. 58; Baker v. Mair, 12 Mass. 120; 12 Sm. & M. 495.
   Thurman, C. J.

March 11, 1847, Oliver T. Holcomb, in consideration of the sale and conveyance by Philander Parr to him, of a farm in Geauga county, made his seven promissory notes, payable in wool to Parr or bearer on July 1st, in the years 1848 to and including 1854, respectively; the first two being for 1,000 pounds each, and the remaining five for 1,100 pounds each. These notes are alike in form, the only difference being in the amounts and times of payment, as above stated. The following is a copy of one of them:

For value received, I promise to pay Philander Parr or bearer, 1,000 of wool the 1st of that this note and the payments are to be on all the conditions and stipulations in a mortgage given by said Holcomb to said Earr, to secure the payment of this and other wool notes, dated the 11th day .of March, 1847; this wool to be delivered at my house.

(Signed,) Oliver T. Holcomb.

“ Chardon, March 11,1854.”

At the same time and upon the same consideration, Holcomb reconveyed the farm to Earr by the mortgage deed referred to in the notes, the condition of the mortgage being in these words :

“ Whereas, Oliver T. Holcomb is indebted to the said Earr in the sum of $1,500, to be paid in wool at the times and in the manner following, to wit: 1,000 pounds by the 1st day of July, 1848: 1,000 pounds by the 1st day of July, 1849; and 1,100 pounds payable each year for five years from said 1st day of July, 1849 — and said payments are not to draw interest — making in all 7,500 pounds of wool. It is always understood between the parties to this instrument that the said Earr is not to have the right to sue the said Holcomb upon any of the above ^payments, or to foreclose this mortgage, provided one-half of each note is paid when due, until the last payment becomes due (should said Holcomb fail to pay the same as they become due). And it is further agreed by the said parties, that if said Holcomb shall not have wool enough to pay the full amount of each payment as they become due, that the said Earr shall receive whatever wool he (said Holcomb) may have to turn out on each payment when it becomes due, at twenty cents per pound, and cancel so much of said indebtedness as said wool will come to at that price. Now, if said Oliver T. Holcomb, Ms heirs, assigns, etc., shall well and truly pay the aforesaid' amount of wool, according to the terms of this instrument, to said Philander Earr, or assigns, then the above deed to be void.”

April 6,1847, Earr sold and assigned the notes and mortgage to one Searls, who/ion September 27, 1847, sold and assigned the same to the complainant.

July 1, 1848, the first note fell due and was paid in wool.

July 31, 1848, Holcomb and wife, by quitclaim deed, released all their interest in the farm to Earr.

December 8, 1848, Earr and wife conveyed it to Rodney B. Dutton, subject to the mortgage.

November 22,1849, Dutton conveyed it to Levi Cushman, subject to the mortgage.

April 18, 1851, Cushman and wife conveyed all but twenty-five acres to Lansing Richmond.

When the notes payable July 1, 1849,1850, and 1851, matured, they were respectively presented for payment, and payment in wool demanded, which was refused,-and á right asserted to pay in money one-half of each note at the rate of twenty cents for each pound of wool, viz., $100 on each note. This claim the complainant denied, but he agreed to and did receive the money offered, with the understanding, however, that he should not be thereby prejudiced in his right, if such right he had, to recover the excess which might exist by estimating the wool at the then current market price of wool.

*This bill is filed to foreclose the mortgage, the complainant contending that one-half of the matured notes has not been paid, and that consequently he is entitled to foreclose for the full amount of these notes less the sums paid. This position rests upon the assumption, that the debt could be discharged only by the payment of wool, or the current market value of wool. If it could be discharged by the payment of money, at the rate of twenty cents for each pound of wool, then, as one-half of the notes, thus estimated, was duly paid, it is admitted that the bill can not be sustained; the terms of the condition of the mortgage forbidding it.

The notes and mortgage must be construed together. They refer to each other, and are but parts of one contract. This is more plainly the ease than is usual in such transactions, since very important provisions contained in the condition of the mortgage are made parts of the notes by their very terms. Thus construed, we are of the opinion that the legal effect of the contract is an undertaking to pay $1,500 in money, or in wool at twenty cents per pound, to wit, 7,500 pounds, at the option of the payer. Upon no other construction can certain terms of the moi'tgage-condition be accounted for. Thus it is therein recited that “ Holcomb is indebted to the said Earr in the sum of $1,500 to be paid in wool,” etc. Now, if the complainant is right, this recital is worse than useless; it is a falsehood. Upon the complainant’s construction, Holcomb did not owe Earr $1,500, but owed him 7,500 pounds of wool, the nondelivery of which might create a liability for more or less than according to what might be the market price of wool at the matiuity of the notes.

Again, “ It is further agreed by the said parties,” says the condition, “that if said Holcomb shall not have wool enough to pay the full amount of each payment as they become due, that the said Farr shall receive whatever wool he (said Holcomb) may have to turn out on each payment when it becomes due, at twenty cents per pound, and cancel so much of said indebtedness *as said wool will come to at that price.” "Why this mention of “ twenty cents per pound,” this reference to “ said indebtedness ” — to wit, the before-mentioned indebtedness of $1,500 — and these words, “ that price,” if it was not the understanding of the parties that the debt was $1,500, to be discharged either by the payment of money or of wool at the rate of twenty cents per pound ?

In any other view these expressions ought not to be in the instrument, and we would be forced to disregard their plain import, and to decide that they were inserted without any object. This we are not at liberty, upon any just principle of construction, to do.

That an agreement to pay $1,500 in wool, at twenty cents per pound, may be discharged by the payment of that sum in money, that that sum is the measure of damages if the wool be not delivered, is, we think, the law, both on reason and authority. We are aware that there are decisions that'the market value of the wool is the measure of damages, but we do not think they are sound. Upon this question, the rule of the civil law is thus stated in Pothier on Obligations, No. 497 : “All agreements to pay in specific articles are presumed to be made in favor of the debtor, and he may, in all cases, pay the amount of the debt in money in lieu of the articles which, by the terms of the contract, the creditor had agreed to receive, instead of money.”

With perhaps some qualification of the generality of this language, this is also the rule of the common law.

In Ohipman on Contracts, 35, it is said: “ If A give B a note for $100, payable at a future day, in wheat at 75 cents per bushel, and wheat on the day of payment be $1 per bushel, A may, at his election, pay in wheat at 75 cents per bushel, or $100 in money.”

To the same effect are Perry v. Smith, 22 Vt. 301; Smith v. Smith, 2 Johns. 235 ; Pinney v. Gleason, 5 Wend. 393; Brooks v. Hubbard, 3 Conn. 58; Baber v. Mair, 12 Mass. 121; Mettler v. Moore, 1 Black. 342.

*A collection of the authorities on both sides of this ques tion may be found in 2 Parsons on Contracts, 490.

In this state, we tbink that the rule to which we hold has always prevailed.

BUI dismissed.


source: Caselaw Access Project

author: Bartley, J.

license: Public Domain

text:
    The Matter of the Probate of the Last Will and Testament of Henry Hathaway, deceased.
    •On the proceeding authorized for admitting a will to probate, persons interested to resist the probate of the will, are not allowed to introduce evidence to contest its validity.
    Certiorari, to the court of common pleas of Hamilton county.
    In November, 1852, Jane Hathaway and others presented to the probate court of Hamilton county, a paper purporting to be the last will and testament of Henry Hathaway, deceased, accompanied by a petition that the same be in due form admitted to probate and record; whereupon Elisha Hathaway and others, claiming to be heirs at law of said Henry Hathaway, deceased, appeared ■ in said court, to resist the admission of said alleged will to probate, and filed a written statement of the grounds of such resistance. The probate court having examined the witnesses to the will, allowed those who resisted its probate to cause witnesses to be called and •examined, impeaching the validity of the instrument as the last will and testament of the decedent. And on consideration of the ■evidence, and having heard the arguments of counsel for the respective parties, the court found that the paper propounded for probate, as and for the last will and testament of Henry Hathaway, deceased, was not truly and *duly executed by him; and that, at the time of the signing of the same, the said Henry Hathaway was under restraint. Whereupon it was ordered, that the application to admit said will to probate was refused and overruled. From this decision an appeal was taken to the court of common pleas, where, on the hearing of the case, the evidence offered by those resisting the probate of the will, was rejected, and the will duly admitted to probate and record. And to reverse this proceeding in the common pleas,, the writ now under consideration is prosecuted. The ground of error assigned is that the common pleas refused to receive the evidence offered by those resisting the probate of the will, and interested against it.
    Walker, Gwynne & Gholson, for the applicants.

      Chase & Ball, for the resistants.
   Bartley, J.

The single question presented for determination in this case is, whether upon an application for the probate of a willr evidence be admissible on behalf of those who resist its admission to probate and contest its validity. And this depends on the construction to be given to section 12 of the statute relating to wills, passed May 3,1852, which is in the following words:

“The said court shall cause the witnesses to such will, and such other witnesses as any person interested in having the same admitted to-probate may desire, to come before such court; and said witnesses shall be examined in open court, and their testimony reduced to writing and filed.”

It is claimed on behalf of the plaintiff in error, that the admission of a will to probate is a judicial act; that where evidence is-received as the basis of judicial action, it must be received on both sides, and that the language of the above statutory provision, in-regard to the witnesses other than the witnesses to the will, when interpreted according to the reasonable intent of the law, *must be taken as meaning such other witnesses as any person interested in the subject-matter of the probate of the will may desire, etc.

It is a maxim of interpretation, that, in the absence of ambiguity, no exposition shall be made which is opposed to the express words of the instrument. The language of a statute must be taken-in its usual and ordinary signification, and a court is not allowed to make an interpretation contrary to the jDlain and express letter of the law. Where the sense of a statute is evident, and expressed, in clear and precise terms, not leading to conclusions which are absurd and at war with the manifest intention of the law, to go off upon conjecture, and travel in quest of extraneous matters, in order to restrict or enlarge its operation, would be a dangerous and gross, perversion of the law itself.

The language of the statutory provision above recited, is plain, and explicit. The witnesses whose examination is authorized on probate of a will, are the witnesses to the will, and “ such other wiP nesses as any person interested in having the same admitted to probate, may desire.” The meaning would not have been expressed with greater perspicuity, had the phraseology been, and such other witnesses as any person interested in favor of the admission of the will to probate, may desire.

An application to admit a will to probate is not an adversary proceeding. Those who may be interested adversely, are not required to be notified, or summoned to be present; and no issue is made for a contest between adverse parties. This is not the proceeding in which those who deny the validity of a will are authorized to contest it. After a will shall have been admitted to probate, those who-have adverse interests, have the right to contest its validity, by petition in the court of common pleas. In that proceeding, an issue-is required to be made, which is regularly tried before a jury. And this proceeding to contest a will can not be instituted until after1 the will has been admitted to probate. If those who deny the validity of a will had the, right *to send for witnesses, and contest it on the application to admit it to probate, the statute would run into the absurdity of allowing a party two distinct courts, and two distinct modes of contesting and having an adjudication of the same fact; and the adjudication of the first tribunal, although not appealed from, no bar to the second proceeding. Before probate, a will is without any legal effect, and can not even be made the subject of a proceeding to contest it. The form and solemnity of the proceeding to admit a will to probate, is required to show its due execution, and admit it to become a mutter of public record. The evidence required, must show a prima facie casein favor of its validity, and that evidence is required to be reduced to writing, and made a part of the record. It would be preposterous to place upon the record of the probate of a will, evidence introduced to impeach its validity.

It is true, that the statute enacted in 1840, relating to wills, permitted any person interested, whether for or against the will, to intro luce evidence on the proceeding to vadmit to probate. But in the enactment of 1852, care seems to have been taken, by the use-of words explicit and precise, to exclude the absurdity of permitting those who deny the validity of a will, to appear and contest it on the proceeding in the probate court, to admit the will to record. And the provisions of sections 47, 48, and 49, of the act, which relate to the lost, spoliated, and destroyed wills, where notice to those interested to resist the probate is required to be given, special care was taken in wording the statute, to preserve the harmony and ■consistency of the proceeding, by authorizing only those “ interested in having the will admitted to probate,” to introduce witnesses for examination.

The court of common pleas therefore ruled correctly in excluding the evidence offered by those who were interested in resisting the probate of the will.

The judgment of the common pleas affirmed.


author: Ranney, J.

text:
    Hiram Clyde v. Moore Simpson et al.
    A. S., by bis will, devised all his real and personal property, subject to the payment of his debts and the support of his widow, to M. S., and directed him to pay a specific amount of money to each of his other children. M. S., after accepting the devise and taking possession of the property, sold the real estate to one having notice that the legacies were not paid, and that the purchase money was not to be applied to their payment.

      Seld, that the legacies were a subsisting charge upon the property.
    Express words are not necessary to charge pecuniary legacies upon the real estate. An intention to do so may be derived by implication.
    But where a devisee is not directed to pay such legacies, and they are sought to be charged upon the property devised, on failure of the personal fund, or in exoneration of that fund, the language of the will must be so explicit as to enable the court to see clearly that the testator contemplated such charge, and intended to provide for it.

      ' If the devisee is required to pay them as a part consideration for the property, the law attaches an equitable lien for the security of the legatees, unless it clearly appears that the testator intended to exonerate the property from the charge.
    In the one case, the burden can not be established without a clear conviction that the testator intended it; in the other, the burden being express, the charge will exist, unless it appears with equal distinctness that the testator intended otherwise.
    *A devisee in trust, or subject to such a charge, has the power to sell the estate.

      But where the trust or charge is of a defined and limited nature, the purchaser must see to the application of the purchase money; otherwise, when it is general and unlimited.
    In cither case, when the purchaser has notice that the devisee is committing a breach of trust, or that the purchase money is not to be properly applied, he will b.e compelled to hold the property subject to the charge.
    In chancery; reserved in Ross county.
    The bill was filed July 27,1849, by the complainant, chiefly for the purpose of determining whether certain legacies given by the will of Andrew Simpson, deceased, to his children and grandchildren, were charges on the land devised by said Andrew Simpson to his son, Moore Simpson, and which the complainant claimed to have purchased from said Moore; and, in ease said legacies were charged on said land, whether the complainant, as such purchaser, was bound to see to the application of the purchase money.
    The case made by the bill is this: On May 31, 1837, Andrew Simpson, of Ross county, Ohio, made his last will. He died in October, 1841, and on November 1 of that year his will was,admitted to probate, and letters testamentary granted to Andrew Simpson, the executor named therein, who thereupon qualified as such executor.
    The devises contained in the will are as follows:
    “Item. — I give and devise unto my son, Moore Simpson, my plantation I now reside on, being a part of section No. 19, township 9, of range No. 20, northwest quarter of said section; and also 47J acres of the southwest quarter of section 18, township 9, range 20; and also all my personal property at my decease, except 2 cows, 5 sheep, and 5 hogs, on condition that I and my beloved wife Bethiah shall have and receive a reasonable support out of the effects, or produce of the above-named farm the whole term of our natural lives; and, finally, my will is that, after my and my beloved wife’s decease, *the whole of my personal property shall pass to my son, Moore Simpson, with the real estate as above stated; and that my son, Moore Simpson, shall pay to the five children of my son, John Simpson, deceased, to wit, Bethiah, Robert, Nancy, Elizabeth, and Jesse Simpson, being heirs at law, $250; and also Moore Simpson pay to my daughter, Elizabeth Hanson, wife of Hollis Hanson, late Elizabeth Simpson, $220; to my son, William Simpson, $20, he having received $200 at my hand already, which makes in all $220; and also that my son Moore pay to Matthew Simpson $220; and to -my daughter, Sarah Tan Gundy, wife of Peter Tan Gundy, $220; and also that my said son Moore shall pay to my son James $20, he having received $200 already, amounting in all to $220; and also that my son Moore shall pay to my son Andrew $220 — the one-half of the above legacies to be paid to the above-named heirs, by my son, Moore Simpson, in six months after my decease, and the other half in six months after my wife’s decease.”
    That the said Moore accepted said devises made to him as aforesaid : [and the proof shows that he took possession of the property described in the will, as early as the date of the will in 1837, and has continued in possession ever since; and that said Moore had, prior to the filing of the bill, paid off all of said legacies, except one moiety of that due Mrs. Hollis Hanson, and the whole of that due the heirs of John Simpson, deceased (see deposition of Andrew Simpson); and the complainant in his bill admits notice of these facts.]
    ' That under these circumstances, the complainant on October 6, 1848, purchased of said Moore, the real estate aforesaid, and took a conveyance for the same; the consideration being $1,600, $1,300 of which he paid at the time, and gave his note forthe residue of $300 at three months, purposely making said note payable to Moore Simpson alone, and not to his order, and naming the consideration thereof as land sold, in order that he might ascertain whether the unpaid legacies aforesaid, were charges on *the land, and to protect himself in case said Mopre failed to comply with a promise then made to relieve the land from said charges before January 1, 1849.
    The bill further states (among other things not now material to be noticed), that said Moore had utterly failed to comply with his promise to satisfy said unpaid legacies, and that thereby the complainant was in great danger of suffering a serious loss, not only to the extent of said note for $300, but for so much more as should be necessary to satisfy said unpaid legacies, in case the same were held to be charges on the land and he obliged to see to the application of the purchase money; for said Moore Simpson was insolvent, and unable to respond to a judgment against him, on the covenants in his deed. [This fact of insolvency of Moore Simpson, is admitted by the written agreement of the parties on file in this case.]
    That said note had been assigned to Thomas Miller, and Joseph W. McCague, partners under the name of Miller & Co., who had brought suit thereon in the name of said Moore for their use against the complainant.
    Bethiah Simpson, the widow of the testator, Andrew Simpson, deceased, and all the legatees named in the will, as well as Miller & Co., are made defendants to the bill, and all of them are required to set forth their claims, and an injunction is prayed to restrain Moore Simpson and Miller & Co. from prosecuting said suit at law, until the questions made by the bill were determined, and that on final hearing, in case said unpaid legacies were held to be charges on the land, and the complainant bound to see to the application of the purchase money, the said Moore- Simpson should be compelled to remove said charges by a limited time, or in default thereof, that said injunction be made perpetual, or in case said legacies were held not to be charged on the land, then that the legatees be enjoined from proceeding against the same, and that the complainant be quieted in his title, etc.
    To this bill Moore Simpson sets up in his answer (and establishes *by proof), that the conveyance made by him to Clyde, though absolute on its face, was, in fact, a mortgage (so stipulated by a written paper cotemporaneously executed), given to secure a loan of $1,600 made by-said Clyde to said Moore Simpson; the said note for $300 being part of the $1,600.
    Moore Simpson also admits in his answer, that one moiety of Mrs. Hanson’s legacy, and the whole of that due the heirs of John Simpson, deceased, are unpaid; but claims that the real estate devised to him by the will of his father was not charged with their payment.
    Mrs. Hanson and her husband, and the several heirs of John Simpson, deceased, answer the bill and set up the facts as to the non-payment of their legacies, insist that the same were by said will made charges on the real estate devised to Moore Simpson, and that said Moore, on accepting said devise, became a trustee for the payment of the same; that Clyde purchased said real estate with full notice of the trust, and that he is bound to see to the application of the said purchase money, and that they are entitled to come on said real estate in said Clyde’s hands and compel payment of their said legacies; and they ask the court for such decree as may be proper, etc.
    On the 8th day of May, 1851, Bethiah Simpson, widow of said Andrew Simpson, deceased, died, so that the second moiety of said legacies, made payable six months after her decease, would fall due November 8, 1851.
    At the October term, 1851, of the court of common pleas, the death of the said Bethiah, and the date thereof, was suggested upon the record; and at the same term it was made to appear that on August 1,1851 [the time stipulated for the repayment of the’ $1,600 loan made by Clyde to Moore Simpson, as set up in the answer of said Moore], the said Moore had settled with said Clyde, and that Clyde had thereupon reeonveyed said premises to said Moore; leaving no matter undetermined between them, except the question of costs. At the same time one ^William Miller, father of said Thomas Miller, and father-in-law of said Joseph McCague, announced to the court, that subsequently to the reconveyance of said estate by Clyde to Simpson, he had purchased the same of said Simpson and taken a conveyance therefor; but the court not regarding said announcement, proceeded to decree in substance that said Moore Simpson should pay said unpaid legacies by a given day, or in default thereof,' that execution should issue against him ; and if said execution were returned unsatisfied, then that said real estate should be sold for the satisfaction thereof. And that said Moore should pay the costs, etc.
    From this decree, Moore Simpson and Miller & Co. appealed, and uj>on the coming of the cause into the higher court, Hanson and wife and the heirs of John Simpson, deceased, obtained leave to file further answers by way of amendment and supplement, setting forth that on said 1st day of August, 1851, the said Clyde had re-conveyed the real estate described in his bill, to said Moore Simpson, who thereupon, on the same day, conveyed the same to one ‘William’ Miller, by deed, etc.; that said William Miller, at the time of said conveyance, was aware of the pendency of said suit, and of all the matters in controversy therein; that he also knew that the debts of said Andrew Simpson, deceased, had long since been paid, and respondent’s legacies wore unpaid, and that said real estate is charged in said Miller’s hands with the payment of said legacies.
    They also set forth the death of Andrew Simpson’s widow, on said May 8,1851, and pray that their answers may be taken as cross-bills, that William Miller be made a defendant, that said answers prayed to be taken as cross-bills may be answered, but not under oath, and that on final hearing, the proper decree may be made, etc.
    The cross-bills are answered, replications filed, and the cause is thus at issue.

      *Mr. Miller, for M. Simpson et al., cited authorities as follows, to the points below stated:
    Lands specifically devised are not to stand chargeable with pecuniary legacies. 3 Sugd. on Vend. 139, 140; Case v. Case, 1 Conn. 284. To charge the estate with such legacies the intention must be “ either expressly declared, or fairly and satisfactorily to be inferred from the language of the will.” 2 Jarman on Wills, 509, note 1; Wright v. Denn, 10 Wheat. 204; 2 Johns. Ch. g22. From the use of such words as “after payment of debts and legacies,” “my debts,” etc,, being first paid, the doctrine is that the debts in all such» cases constitute, by implication, a charge on the real estate. 2 Story’s Eq. J., sec. 1246; 2 Jarm. 510-520; see 2 Ves. jr. 320-322 (note); 3 Ib. 740; 5 Ib. 361. A general direction to pay legacies does not charge the real estate. 2 Johns. Ch. 624; 10 Wheat. 204; 2 Jarm. 509, and note. In this case, the lands, by law as well as by the will, were subject to the debts, funeral expenses of the testator, and also charged with widow’s support from the produce of the farm. If, then, the purchaser is bound to look to the application of the purchase money, he is at once involved in ascertaining the amount and payment of the debts, bound to see the money so applied that the widow shall receive her support, and bound to see that each minor grandchild, scattered through several states, duly receives his proper share.of the legacy left to his ancestor, although the same are not to be paid, as in this case, for fourteen years. In such case the rule is invariable that the purchaser is not bound to see the money applied. 2 Jarman, 511 (margin); Hill, 363; 3 Sugd. on Vend. 99-104, secs. 20-24.

      W. T. McClintock, for heirs of John Simpson, and Hollis Hanson and wife, cited authorities as follows :
    That express words are not necessary to charge the real estate with payment of debts or legacies, the question being one of intention, which may be inferred. 2 Jarm. 512; 1 Rop. Leg. *448; 2 Binney, 525 ; 6 Ib. 395; and the cases generally hereafter cited. That the words “ after my debts and funeral charges are paid, I devise and bequeath as follows ” (there being nothing of contrary import in the will), charge the estate with the debts. 2 Story’s Eq., sec. 1246 ; 2 Jarm. 512, et seq. That where both lands and personalty are devised to one son, who is directed to pay the portions of the others in money in lieu of the land, there is more than a charge on the personalty. Tower’s appropriation, 9 Watts & Serg. 103. That these unprovided children are placed on the footing of creditors. Webb v. Webb, Bernard, 86, cited in 1 Rop. Leg. 452; Lypet v. Carter, 1 Ves. 499; Hassanclever v. Tucker, 2 Binney, 525; and cases there cited in argument for plaintiff in error; in this connection, vide the case of Darnman v. Rust et al., 6 Rand. 586. “ That where the real estate is combined with the personal, i. e., where they are made to constitute one entire fund, •the former will be liable to all the burdens of the latter, and be charged with the debts and legacies.” 1 Rop. on Leg. 450, chap. 12 cases cited; 1 Ves. jr. 444; Bench v. Biles, 4 Mad. 187 ; Kidney v. Consmaker, 1 Ves. jr. 436 ; 2 Ves. jr. 267; Hassanclever v. Tucker, 2 Binney, 525 ; Wetman v. Norton, 6 Bin. 395 ; McLanahan v. McLanahan, 1 Penn. 96; Bank v. Donaldson, 7 Watts &. Serg. 407; Kelsey v. Deyo, 3 Cow. 133. That whenever the person directed to pay the debts or legacies is also the heir, or the devisee of the realty, then the realty is charged with the debts or legacies, unless there is some circumstance (as a particular fund, or the like, provided for the purpose) contained in the will repelling the idea of a charge on the realty. 2 Jarm., chap. 45, p. 509, and the cases therein cited, especially those on pp. 524-526, etc. That when the executor is directed to pay the legacies, the realty being devised to others, no charge is created; but when the executor is directed to pay, and he is also the heir or devisee of the realty, then the real estate is charged. 2 Jarm. 523. That the principle does not lie, as some *have supposed, in the fact of the devisee being the executor, except in so far as this necessarily includes the other fact, that the devisee is the same person who is directed to-pay the legacies. 2 Story’s Eq., sec. 1247a. That the principle that where the devisee is the only person who is directed to pay the legacies, the realty becomes charged with the payment, overrides the presumption of intention to pay out of the personalty, even though the direction is to the executor, eo nominee, and that upon this reasoning, the case of a devisee being directed to pay the legacies, though not named as executor, lies naked to the operation of the principle referred to. Morancy et al. v. Quarles et al., 1 McLean, 194; Mc-Lanahan v. McLanahan, 1 Penn. 96 ; Webb v. Webb, Barnard, 86; 1 Rop. on Leg. 453; and see Kelsey v. Deyo, 3 Cow. 133; Harris v. Fly, 7 Paige, 421; Alcock v. Sparhawk, 2 Verm. 228; Aubrey v. Middleton, 2 Eq. Cas. Abridg. 497; Cloudsley v. Pilham, 1 Verm. 411; Elliot v. Hancock, 2 Ib. 143; 2 Story’s Eq. 494, note 2; Hassel v. Hassel, 2 Dickens, 527; Henvel v. Whitaker, 3 Russ. 343; Dover v. Gregory, 10 Sim. 393; Lamphier v. Despard, 1 Conn. & Law, 204. That the intent is to be gathered from the whole will. Hawley v. Northampton, 8 Mass. 3; Cook v. Holmes, 11 Mass. 528. That “ in order to ascertain the intent, are to be considered, 1. The terms of the particulaiHbequest in their natural and legal signification ; 2. Other parts of the will; 3. The situation and circumstances of the testator, and the subject-matter of the particular bequest.” Jarvis v. Butrick, 1 Met. 480-483; Morten v. Perry, 1 Ib. 446. That it being conceded, that upon the acceptance of the devise, Moore Simpson became personally charged (Cook v. Grant, 1 Paige, 407, and cases cited by counsel), it does not follow that the real estate was thereby exempted; on the contrary, in all the cases the charge on the real estate is recognized in addition to the charge on the person. Henvel v. Whitaker, Cook v. Grant, Darnman v. Rust, Harris v. Fly, supra.

    *A conveyance by the devisee would pass the legal estate. He was a trustee. Hill on Trustees, 355. That purchaser was bound to see to the application of the purchase money. 2 Story’s Eq. J. sec. 1127; 2 Sug. on Vend. & Pur. 36, 37, 38, 51, 52 ; Hill on Trustees, 363, note; 2 Sug. on Vend. & Pur., chap. 17, 305 (p. 840, at bottom), sec. 27; Watkins v. Cheeck, 2 Sim. & Sta. 199; Gardner v. Gardner, 3 Mason, 178; Wormley v. Wormley, 8 Wheat. 421; Darnman v. Rust, 6 Band. 592, 593; Harris v. Fly, 7 Paige, 427.
   Ranney, J.

In the present position of this case, the whole controversy arises upon the supplemental answers and cross-bills filed by the unpaid legatees, and the answer of William Miller and Moore Simpson thereto; and the whole depends upon the solution of two questions:

1. Are these legacies, by the will of Andrew Simpson, charged upon the lands devised to Moore Simpson ?

2. If so, was Miller, the purchaser, bound to see that the purchase money paid by him, was properly applied in discharge of the lien ?

The legatees undertake to establish such a charge; and, as it stands admitted that Moore Simpson is wholly insolvent, it is evident that their only hope of obtaining payment, depends upon their success.

1. The will of Andrew Simpson was made in 1837, and was evidently executed under the mistaken belief that it took effect immediately and before his death. He lived until October, 1841, and his wife until May, 1851. Subject to the payment of his debts, funeral charges, and the support of himself and wife, he devised all his real and personal property to his son, Moore Simpson; and directed him to pay to each of his other surviving children, and the representatives of one deceased, about an equal sum of money; the one-half in six months after his own decease, and the other, in six months after the decease of his wife.

*Now, it is certainly clear that there is no express charge of these several legacies upon the property devised; and equally so that it was competent for the testator to make them a charge or not, as he saw proper. But an express charge was not necessary. While the intention of the testator, ascertained from the language he has employed, and construed with reference to the subjects of his dispositions and the objects of his bounty (Lessee of Worman v. Teagarden, 2 Ohio St. 382), must, in this as in other cases,' govern ; such intention may be deduced, as a matter of inference or implication, from all the provisions of the will taken and considered together. And in cases like this, I apprehend the intention to be established is rather that of placing the devisee in certain relations to the property, or under certain obligations in respect to it, than an actual contemplation of all the legal consequences resulting from such relations, or of the manner of enforcing such obligations. These, the law annexes as a part of its own system of rules; and judicial decisions furnishing the highest evidence of these rules, are, in such cases, much safer guides than in most cases arising upon the construction of wills.

But the adjudged eases must bo used with careful discrimination. The subject has been often considered from several different points of view, and with different objects ; and the most numerous class of cases in England have been decided upon grounds so peculiar to their system of law as to make them of little value elsewhere.

By the common law, the real estate of a deceased debtor could never be reached by his simple contract creditors. The courts very early felt the injustice of this rule, and to counteract its effect where there was a deficiency of personal assets, seized upon the slightest indication of intention in the will of the testator, to charge such debts upon the realty. In giving effect to this policy, it was at first thought to be necessary that the testator should, before devising the lands sought to be charged, have ^directed his debts to be first paid; or paid out of his estate; or some equivalent expression to evince an intention not to give any thing until his debts were paid. But even this restriction was very soon disregarded, and such introductory words held to be unnecessary; and in Graves v. Graves, 8 Linn. 55, Sir L. Shadwell lays down the doctrine broadly, that wherever the testator, in any part of the will, directs his'debts to be paid, it is, in effect, a direction that they shall be paid in the first instance; and, in case of a deficiency of personal property, charges them upon the realty. This decision has been followed in several later cases; and Mr. Jarman (2 Jarm. on Wills, 519) correctly states the established doctrine to be, that a general direction to pay debts in whatever part of the will contained, operates to throw them on the testator’s real estate.”. The better opinion is that it operates, not only against a devisee of the land, but also against the heir, and where the will is confined to a disposition of the personal estate. Sir R. P. Arden, in Shalcross v. Finden, 3 Ves. 739, said he was “very cleaidy of opinion, that whenever a testator says that his debts shall be paid, that will ride over every disposition, either against his heir at law or devisee.”

And, although the rule is subject to an established exception, where the testator has provided a specific fund for the payment of debts, yet this exception is confined within so narrow limits, that Lord Chancellor Lyndhurst, in Price v. North, 1 Turn. and Phill 85, where thetestator had expressly bequeathed the residue of his personal estate, subject to the payment of debts and legacies, held the real estate charged as an auxiliary fund; observing, that courts of equity had always been desirous of sustaining such charges for the benefit of creditors, and that the presumption in their favor was not to bo repelled by anything short of a clear and manifest intention to the contrary. Now, while this whole coui’se of decision is pi*ofessedly based upon the intention of the testator, as derived from the language of the will, it is ^impossible not to see that the anxiety of the courts “ to prevent men from sinning in their graves,” by leaving their debts unpaid, or, for a more substantial reason, to prevent injustice to living creditors, has largely contributed to produce it, and that in very many cases, they have compelled the testator to do an act of justice, which he had very little thought himself of doing. In this state, where all debts constitute a paramount lien upon all the property of the testator, the direct question could never arise; and, as none of the considerations which have influenced these decisions can have any application to the question, whether pecuniary legacies should be charged upon real property devised, it is evident that these decisions would furnish very unsafe guides. The distinction has been taken by the English courts; Lord Macclesfield (in Davis v. Gardner, 2 P. W. 187) observing, in relation to lands descended, that, “ as plain words are necessary to disinherit an heir, so words equally plain are requisite to charge the estate of an heir, which is a disinherison pro tanto;’' and in Shalcross v. Finden, supra, there is said to be “ no reason why a specific devise should not take effect as well as a pecuniary one.” The fact is, that, after a considerable struggle to escape the imputation of inconsistency, it is pretty well settled that a clearer manifestation of intention is requisite to charge the realty with pecuniary legacies than with debts; and the decided weight of authority there, as well as the undivided opinion in this country, is that where it is not expressly done, the implication must be plainly and clearly deducible, from the language of the will, to have that effect. As is said by Mr. Jar-man, “ this distinction appears to have been a natural consequence of the extreme length which the courts had gone, in holding debts to be charged by loose and equivocal expressions.” 2 Jarm. on Wills, 531. In principle, there is little room for doubt upon this subject.

There may be much force in ascribing to a testator the intention to pay his debts before he gives away any of his property — of being just before he is generous — but, as between the mere *objeets of his bounty, where he has given a pecuniary legacy, resting upon and payable from the personal fund, to one, and devised real estate to another, and the personal fund proves insufficient, there can be no reason for disappointing the devisee rather than the legatee, or for shifting the loss from him, upon whom the law has cast it, upon one that the law does not affect, until it is made unmistakably to appear that the testator so intended.' Without such clear manifestation of intention, there is great danger of interfering with his wishes; and to derive it by implication, the language of the will ought to be so explicit as to leave no doubt in the mind of the court that the testator actually contemplated such a contingency, and intended to provide against it.

In all such cases, the question is, whether the estate devised shall bear a burden that the testator has not imposed upon the devisee; and the controversy always relates to the existence or nonexistence of the obligation. To this class properly belongs the case of Lupton v. Lupton, 2 Johns. Ch. 614.

But none of these cases, either in form or substance, reach a case like the present, where the devisee is not only expressly charged with the payment of the legacies, but is also the recipient of all the testator’s real and personal property. Looking at the value of the property devised and the relationship of the legatees, there is much reason for supposing that the testator adopted the method provided in his will,'for the mere purpose of effecting an equal division af his estate. But we express no opinion upon the effect of this circumstance, or upon the fui’ther position taken, that the legatees, being unprovided children, are entitled to the same standing as creditors in the settlement of this question. In our opinion, the charge upon the property in this case, rests upon much more obvious considerations.

Numerous casos in England have settled the doctrine, that a bequest of legacies, followed by a gift of all the residue of the testator’s real and personal property, operates to charge the *entire property with the legacies. Hassell v. Hassell, 2 Lick. 526; Burch v. Biles, 4 Madd. 187; Cole v. Turner, 4 Russ. 376; Mirehouse v. Scaife, 2 Mil. and Craig, 695; 1 Ves. jr. 436; 2 Ib. 267.

The same doctrine has been often applied in the courts of our sister states. McLanihan v. Wyant, 1 Penn. 96 ; Bank v. Donaldson, 7 Watts & Serg. ; Kelsey v. Deyo, 3 Cow. 133; Adams v. Bracket, 5 Met. 280 ; Witman v. Norton, 6 Bin. 395; Downman v. Rust, 6 Rand. 587.

And it has been adopted, in its fullest extent, by the Supi’eme Court of the United States, in the recent case of Lewis v. Darling, 16 How. 1; and, indeed, carried so far as to .permit the legatee to subject the real estate in the first instance, without averring or proving a deficiency of personal assets. These cases certainly do not, in terms, apply to the present, but they fail in application, simply because cases like this do not need the aid of the principle they enforce. They presuppose a bequest of pecuniary legacies, •without any direction as to the person by whom, or the fund from which, they shall be paid, and a subsequent devise of the residue of real and personal properly; and they are founded upon the irresistible implication arising, that the testator intended to give to the devisee only what remained after satisfying previous gifts, and intended to charge both kinds of property, as he has blended both in the disposition. In this case, both kinds are blended, and the gift is expressed to be of the residue, after payment of debts, funeral expenses, and the support of the widow; but surely the inference, that the testator intended to give only what remained after the payment of legacies, is perfectly clear, when he has imposed the payment upon the devisee, and has placed in his hands the only fund from which they could be paid.

And this brings us to the class of cases which do, in terms and principle, apply to, and conclusively govern, this; and they are those in which it has been uniformly held, that where the real ^estate is devised to the person who is directed to pay the legacy, such legacy is an equitable charge upon the property so de-vised, unless there is something in the will itself to indicate a contrary intention on the part of the testator; and this, even, although the devisee is also the executor, or is the residuary legatee of the personal estate. Without entering upon a particular examination of the English cases, it is sufficient to say that the doctrine is sustained by Alcock v. Sparhawk, 2 Vern. 228; Aubrey v. Middleton, 2 Eq. Cas. Abr. 497; Clowdsley v. Pelham, 1 Vern. 411; Elliott v. Hancock, 2 Id. 143; Webb v. Webb, Barn. Ch. 86 ; Lypet v. Carter, 1 Ves. Sr. 499 ; Barker v. Duke of Devonshire, 3 Meriv. 310; — and is so fully settled, as to justify Mr. Jarman in affirming that this circumstance “ has always been held sufficient to charge the real estate.” 2 Jarm. on Wills, 533.

Among the cases in this country, that of Harris v. Fly, 7 Paige Ch. 421, is most expressive in point, and deserves special attention. The controversy arose between pecuniary legatees and a purchaser upon execution of the lands of the devisee. Nicholas Drum devised the lands to his son Aaron Drum, and also made him a residuary legatee. He then gave to each of his two daughters $1,000, to be his the in six annual

The chancellor held the legacies an equitable charge upon the real estate devised; and after a very satisfactory examination of the question, his conclusion is thus stated : “ Upon a very full exam ination of the authorities, I am satisfied, that where real estate is devised upon condition to pay the legacy, or with a direction to the devisee to pay the legacy, in respect to the estate so devised to him, and because that real estate has thus been devised, such real estate is in equity chargeable with the payment of the legacy, unless there is something in the will to rebut /the legal presumption; or from which it can be inferred that the testator intended to exempt the estate devised from that charge.” See *also, Tole v. Hardy, 6 Cow. 333; and 1 McLean, 194. I have said that the course of decision upon this subject, has been uniform. I ought perhaps to excej/t from the remark, the opinion expressed upon the constructions of the will of John Page, in the case of Wright v. Denn, 10 Wheat. 204. It was attempted in that case, to make the legacies a charge upon the land, for the purpose of enlarging a devise without words of limitation to an estate in fee simple. The settlement of the question had very little, if any influence upon the decision of the case ; and it seems to have been done without full consideration, and without any allusion to the marked distinction between legacies which are not, and those which are, required to be paid by the devisee. In no event, could that case be received, to weaken the force of the general current of authority by which the doctrine is supported, or the strong reasons upon which it is founded.

In this ease, Moore Simpson is directed to pay these legacies to the other children of the testator, in respect of the property devised to him, and because the testator has given him the propierty with which to pay them. No attempt is made to burden him with a doubtful liability. The liability is most positively and expressly imposed; and the only question is, how shall it he secured ? Must the legatees trust to his personal responsibility, or have they a lien upon the property devised ? The testator has not expressly said that they should have such lien, and it is difficult to find in the language of the will, any positive indication that he knew of, or intended to provide for it. But, in our opinion, this is not necessary. We are entirely satisfied that reason and justice, as well as the adjudged eases, mark a plain line of distinction, between cases where the property devised is sought to be reached by a legatee on failure of the personal fund, or in exoneration of that fund, and case» where the devisee is required to pay the legacy, as a part consideration for the property. In the one case, it must appear to have been the intention of the testator to créate the burden; and this intention *must be so clearly shown as to convince the court, that he actually foresaw and contemplated the charge, and intended to provide for it. To declare the charge established, without such clear conviction, would be to encounter the hazard of doing injustice to the devisee, and defeating the wishes of the testator.

In the other, it is enough that the devisee stands charged with the payment of the legacy on account of the devise; and the law then attaches a lien upon the estate devised, unless it appears, with equal distinctness, that the testator intended to deprive the legatee of this security. This can do no possible injustice to the devisee,, as he is required to pay no more than the testator has positively imposed, and he has voluntarily assumed; and it is very often necessary to prevent the grossest injustice to the legatees, and the greatest violence to the intention of the testator, by leaving them unpaid.

Indeed, it might not be difficult to place the lien upon much broader, although not more satisfactory, grounds. When Moore Simpson accepted the devise, and took possession of the estate, he became absolutely bound to pay these legacies, as a part of its purchase price. The testator intended he should have the property only upon paying so much of a consideration for it. If he had taken the title by deed, an undoubted equitable lien for these payments would have attached; and I am wholly unable to see how a doctrine resting upon the broad foundations of justice and conscience, and which will not permit one to keep the estate of another until the full consideration is paid (2 Story’s Eq., sec. 1219), can be made to depend upon the manner in which the title is derived. But whether .the lien in this case, might rest upon this doctrine or not, it derives a strong support from the analogy; and I think it very clear, that the actual knowledge and contemplation of such a lien by the testator, are no more important to its existence, than in the case of a vendor of real property.

2. The charge being established, there is very little difficulty *in disposing of the remaining question. It is certain, that Moore Simpson was invested with power to sell the property devised ; (8 Sim. 485; 4 Myl. & Cra. 264; 1 Kee. 559), and that no -distinction is to be taken between estates devised in trust, or those ■only charged with the payment of debts or legacies. 2 Sugd. on Vend. 38; 2 Story’s Eq., sec. 1127; 7 Ves. jr. 323. But, in either case, the general rule undoubtedly is, that wherever the trust or charge is of a defined and limited nature, the purhaser must him.self see, that the purchase money is applied to the proper discharge ■of the trust; but wherever the trust is of a general and unlimited nature, he need not see to it. 2 Story’s Eq., sec. 1129 ;• 2 Sugd. on Vend. 32; Murray v. Ballou, 1 Johns. Ch. 566.

In the application of this rule it has been generally held that where the trust is created, or the charge imposed for the payment of apportion, a mortgage, legacies, or scheduled debts, which are definitely ascertained, and to be paid over immediately to the person entitled; the purchaser, in the view of a court of equity, is bound to see that the money is actually applied to their discharge before the estate is relieved from the burden. But where the trust is created, or the charge exists, for the payment of debts generally, or for the payment of debts and legacies, when an account of the debts necessarily precedes the payment of the legacies; or where the money, is to be x’einvested or otherwise applied by the trustee to purposes which require time, deliberation, and discretion on his part; the purchaser is relieved from such responsibility, and the ■cestui que trusts must look alone to the trustee.

I am aware that several eminent judges have been of opinion that a purchaser is in no case bound to see to the application of the purchase money where the deed or will has designated the person to receive it; and that a power to sell necessarily includes the incidental power to give a valid discharge for the purchase money; and Mr. Powell has defended the same opinion, with %nuch ingenuity and force. 1 Pow. on Mort. 312. But the general course of decision has clearly been otherwise.

In this case the amount of the legacies, and the persons who re■ceive them, are distinctly defined in the will; and they were entitled to payment as soon as the time fixed in the will arrived. There is probably nothing to relieve it from the operation of the general principle; but it does not need the aid of that principle. There never has been any difference of opinion that, if the purchaser knew that the sale involved a breach of trust, or that the money was not to be applied in payment of the debts or legacies charged upon the he would be to hold the to the charge. 2 Sugd. on Vend. 39; Watkins v. Cheeck, 2 Sim. & Stu. 199; Wormley v. Wormley, 8 Wheat. 421; Gardner v. Gardner, 3 Mason, 178.

Now, at the time Miller made his purchase he was fully aware, not only in fact, but from the notice furnished by the Us pendens, that the legacies were not paid, and that no part of the money received from Clyde had been applied to that purpose. While he advanced his money to pay off Clyde, and denied the existence of any lien in favor of the legatees, he participated in the breach of trust, and after finding himself mistaken as to the'-lien, he stands upon no ground to insist that it has been discharged.

We are therefore of opinion that the property is still charged with the payment of these legacies, and shall decree accordingly.

Judge Thurman, having been of counsel, did not sit.


author: Ranney, J.,

text:
    Joseph Bloom and others v. Samuel Noggle and others.
    N. being largely indebted, and in an amount beyond the value of all Ms property, made an agreement in writing with four of his creditors, by wMch he bound himself to execute a mortgage to one of them, who agreed to sign notes as surety to the others, upon certain real estate for the security of all the claims; and, at the same time, delivered to the agent of the creditors certain title papers to the property agreed to be mortgaged. N., afterward refusing to perform the agreement, made a general assignment of his property for the benefit of all his creditors. Upon a bill filed to compel the execution of the mortgage, and to set aside the assignment, or give these creditors a parmount lien upon the property: Held—
    1. That the agreement created no lien upon the land in favor of the complainants, as against other creditors, deriving an interest under the assignment.
    2. Upon general equity principles, unaffected by statutory provisions, an agreement in writing, for a mortgage, is a valid contract, fixing a specific lien upon the property; and will be specifically enforced by a court of chancery against the party, and all subsequent purchasers from Mm with notice, as well as against any general assignment, either voluntary or by operation of law, for the benefit of his creditors.
    3. As between the parties to such a contract, the agreement is valid and effectual in tMs state, and a specific performance may be enforced.

      4. But no effect whatever can be given to it, consistently with section 7 of the act of June 1,1831, to provide for the proof, acknowledgment, and recording of deeds, etc., as against third persons who have subsequently acquired the' legal title to, or a lion at law upon, the property to which it relates.

      6. By the positive provisions of that section, as construed by the declaratory *act of March 16, 1838, and repeated decisions of this court, as against such third persons, mortgages have no effect, either at law or in equity, until delivered to the recorder of the proper county for record.
    6. The legal rights of such persons can not be displaced at the instance of the holder of a prior unrecorded mortgage, or contract for a mortgage, although acquired with notice of such mortgage, or of the existence of such contract; the object of the law being to avoid all the vexed questions of notice, actual or constructive, in determining priorities of lien.

      7. A creditor of an insolvent debtor, or one having assumed liabilities for him as surety, may lawfully take from him a mortgage to secure such debt, or save harmless from such liability; and, as the reward of such diligence, will be protected in the priority thus obtained.
    8. But if he attempts to extend the lien beyond the necessity of his own indemnity, and secure the debt of any other creditor, the mortgage is, in substance and legal effect, an assignment within the provisions of the act of 1838, relating to assignments by insolvent debtors; and the mortgagee, being a trustee for such other creditor, under that act, becomes a trustee for all the creditors of the mortgagor.
    9. This act can not be evaded by assuming a liability as surety forthe insolvent debtor, as a part of the transaction by which the mortgage is taken. If, in this case, therefore, the mortgage had been executed, or should be now decreed, the security would inure to the benefit of all the creditors of the mortgagor.
    In chancery, reserved in the district court in Darke county.
    The facts of this case, so far as it is necessary to state them, are as follows:
    Noggle was indebted to complainants, February 22, 1849, as follows:
    “To Stewart & Galligher.................................$1,690 00
    J. & J. Slevin.......................................... 648 14
    Joseph Bloom......................................... 278 28
    Hiram Bloom......................................... 390 42
    $3,006 94”
    C. C. Waldo was indebted to Noggle in $1,131 — of which $200 *were payable on demand, $465.50 in twelve months, and $465.50 in sixteen months, without interest. No notes were executed for this indebtedness. Noggle was at the time mentioned heavily embarrassed by indebtedness to other persons as well as the complainants. On the day first mentioned, a memorandum of agreement was made and signed as follows:
    “ This memorandum witnesseth, that, whereas, Samuel Noggle is indebted to Joseph Bloom, Stewart & Galligher, J. & J. Slevin, and Hiram Bloom, and said Samuel Noggle proposes to give said creditors security, if they give him time, or to such as may give time; it is therefore understood and agreed as follows: that said Samuel Noggle shall pay Stewart & Galligher one note due on C. C. Waldo for $200, one note on same in sixteen months for $465.50, subject to discount of interest due, and balance of their claim, not exceeding nine hundred and fifty dollars ($950), the precise amount not known now, but includes the claim due on the 1st of March by J. Bloom and G. Noggle’s note, in three installments, payable in nine, fifteen, and twenty-one months, with interest; and said Noggle shall pay said J. & J. Slevin a note on said C. C. Waldo, due in twelve months, calling for $465.50, subject to discount until due, and balance of their claim, not exceeding two hundred and seventy-five dollars, but precise amount not known, to be paid to said Bloom and G. Noggle’s note in fifteen months, with interest, $225. And said Noggle to pay said Joseph Bloom his claim, not exceeding three hundred dollars, within fifteen - months, with interest. And said Noggle to paid said Hiram Bloom his claim, not exceeding four hundred and fifty dollars ($450), by said Joseph Bloom and G. Noggle’s notes, in three installments, payable in nine, fifteen, and twenty-one months with interest; and the said Joseph Bloom agrees that if said creditors, all, or so many as do accept said proposition, to give his notes accordingly with said George Noggle, or on his refusal, then his own note; provided, that said Samuel Noggle shall execute a good and sufficient mortgage to said Bloom on said Noggle’s farm in Darke county, where he lives, with his wife’s release of dower, to cover and secure the full payment of all such sums as said Bloom becomes responsible for, and also Bloom’s own claims; and the same to be fixed and arranged as soon as said Stewart & Galligher have been written to and given their assent; and Hiram Bell, as agent for all the parties, to hold Noggle’s title-deeds until the same is fully arranged.
    “Samuel Noggle,
    “Joseph Bloom,
    “ T. W. Bristol,

      “For Stewart & Galligher, if they affirm.

      “ Daniel Law,

      “February 22,1849. For J. & J. Slevin, if by them approved.”

    *“ So far as I am concerned in the above agreement, I assent ana agree to the same. “ O. C. Waldo.”
    About the 14th of February, 1849, Noggle had made a deed of the same land to Young, his son-in-law, for a nominal consideration of $3,600, none of which was paid, and Young had executed a mortgage (but, the bill avers, no notes) to Noggle,-for annual installments of $200 each. The deed and mortgage last mentioned had been filed for record by Noggle, and by Noggle’s order wore lifted from the recorder by H. Bell, who continued to hold them when the bill was filed, for the benefit of the creditors, it being agreed that the Young mortgage should be held for the benefit of these creditors, until the above arrangement should be perfected, Noggle representing that Young was willing to reconvey to him or to complainants. The arrangement between Noggle and complainants was to be completed as soon as Stewart & Galligher and tie Slevins should assent to tie acts of their agents, but tie failure of either of these creditors to ratify was not to affect tie others.
    On tie 23d of February, tie agents of Stewart & Galligher and J. & J. Slevin informed Noggle that they were ready to complete tie arrangement. On tie 26th and 27th of February, Noggle was notified of tie readiness of complainants to perfect tie arrangement, and specific performance was tendered by them, but Noggle refused on his part. Early in tie morning of February 26th, Young was notified of tie transfer of tie mortgage and deed and of tie above arrangement; he assented, and was willing to reconvey.
    February 27th, Noggle assigned all his effects, real and personal, to Collins and Frizell for the benefit of all his creditors. Tie bill charges this assignment to be fraudulent.
    Tie prayer of tie bill is, that Waldo be decreed to pay his notes to complainants, according to tie agreement; that Noggle be decreed to execute a mortgage, or tie claims be made a lien on tie land; or, if specific performance be impossible, that Young be decreed to pay his mortgage to complainants.
    *It appears from tie answer, that tie Young deed and mortgage are treated by tie parties to them as canceled; that there were notes taken from Young by Noggle for the purchase money, and that these were afterward delivered up to Young, ‘‘ and tie deed and mortgage both canceled.” Noggle admits his refusal to execute the agreement for a mortgage; says that at tie time he signed the writing he was pressed by tie importunities of complainant’s agents to sign it; but that, upon reflection, he determined not to secure those particular creditors to the injury of other creditors who have claims on him equally just.
    There are charges of actual fraud on both sides; and some testimony is taken on that subject; but the decision of tie court is such as to render unnecessary a full statement of that part of tie case.

      Bell & Lyman, for complainants, made tie following points:
    1. Tie agreement for a mortgage between Noggle and complainants, creates as between tfhem, a mortgage or lien in equity, good against subsequent assignees for tie benefit of all tie creditors. Sir Simeon Stewart’s case, reported in Burn v. Burn, 3 Ves. Jr. 573 (also referred to in 2 Sch. & Lef. 381); in tie matter of Howe, 1 Paige, 125 (referring to Burg & Burg v. Francis, 1 Eq. Cas. Abr. 320) ; Delaire v. Keenan, 3 Dess. 74; Finch v. Earl of Winchelsea —; Foster v. Foust, 2 Serg. & Raw. 11; Hurst v. Hurst, 2 Wash. Ch. C. 69 ; Sugd. Vend. 336; 2 Cruise Dig. 64, tit. Estate by Stat. Mer.
    2. The deposit with H. Bell, of Noggle’s title deeds, would and did of itself, independent of any further agreement, create a lien on Noggle’s land to the extent for which they were deposited. 2 Story’s Eq. Juris., secs. 1020, 1021; Cross’ Law of Lien, 109, 112, 26, 113, 115, 117, 118; Coate on Mortgages, Law Lib., vol. 16, 84, 87; Walker’s Amer. Law, 315; Johnson v. Parkhurst, 4 Wend. 369.
    *3. The right of the creditor to take security for his debt from a debtor in failing circumstances, is too well established in Ohio to be controverted. Doremus et al. v. O’Harra et al., 1 Ohio St. 45; Atkinson v. Tomlinson, Ib. 237.
    4. The assignees of an insolvent debtor take his estate subject to all the equity chargeable on it in the hands of the debtor. (See citations under No. 1 of these points.) White v. Denman, 1 Ohio St. 110.

      W. Collins, for defendants.
    1. There is no absolute contract, but merely a proposition, suspended for the assent of complainants. When Noggle reflected on the unjust results, he declined, and so notified the other party.
    2. If the agreement, such as it is, had been executed, at least in relation to the farm, the complainants would, under our statute, be in equity trustees for the benefit of all the creditors.
    3. A decree for specific performance will not be granted, unless the contract be fair, just, and equitable in all its circumstances, and will work no injustice to any one. To decree specific performance in this case would work manifest injustice to many other creditors.
    To these points were cited: 5 Ohio, 179; 4 Johns. Ch. 528; 12 Ohio, 335; 13 lb. 40; 2 Story’s Eq. Juris., secs. 750, 769; Holcomb’s Eq. 124; 10 Ohio, 233; Livingston’s Monthly Law Mag., vol. 1, No. 2, p. 116.
    The other points of counsel refer to the questions of actual fraud.
   Ranney, J.,

delivered the opinion of the court.

This bill is prosecuted to enforce the specific execution of an agreement made by the defendant, Noggle, with the complainants, by which he undertook to execute and deliver to the complainant, Joseph Bloom, a mortgage upon certain real estate in *Darke county, to secure the payment of certain debts then due and owing by him to them. As a part of the same agreement, upon the execution and delivery of this mortgage, Bloom bound himself to sign as surety with Noggle, or if the latter refused, to execute his own notes to the other complainants for the amount of their claims respectively, and to hold the mortgaged property for his indemnity.

In the decision of the case we make no question that this' agreement was fully perfected and entered into without fraud or oppression ; and that the title afterward conveyed to the assignees for the benefit of all Noggle’s creditors, was received by them with full notice of its existence.

On the other hand, it can not be doubted that Noggle, at the time he made the agreement, was in a state of absolute insolvency, nor that it was made with a view of preferring the complainants to his other creditors. The questions arising are: can the legal title to the property be taken from the general assignees, by decreeing a specific execution of this agreement ? and if a court of equity has this power, can it secure to the complainants the paramount lien they claim ?

If the case could be decided upon general principles, the right of the complainants to the relief they seek would seem to us as clear as it now seems clear that it can not be given consistently with statutory provisions bearing upon the questions stated.

Upon general equity principles, unaffected by statutory provisions, an agreement in writing for a mortgage, is a valid contract, fixing a specific lien upon the property agreed to be mortgaged, and will be specifically enforced by a court of chancery, against the party and all subsequent purchasers from him with notice, as well as against any general assignment, either voluntary or by operation of law, for the benefit of his creditors. These principles may be regarded as well settled, and the jurisdiction of courts of equity in such cases has been exercised, without question, from a very early period, as is abundantly shown by *the cases cited in argument. It rests upon the same foundation and has all the reasons for its support, that exist in favor of a like interference upon contracts for.. the execution and delivery of absolute deeds.

As between the parties to such a contract, the agreement is valid and effectual’ in this, state, and we see no reason to doubt that a specific performance may be enforced by our courts of chancery, in the same manner and to the same extent, that such relief has been given in England, and other states of the Union.

But while these principles and remedies have their full application and effect, as between the parties to such a contract, we are clear in the opinion that no effect whatever can be given to it consistently with section 7 of the act of .June 1, 1831 (Swan’s Rev. Stat. 310), to provide for the proof, acknowledgment, and recording deeds, etc., as against third persons who have subsequently acquired the legal title to, or a lien at law upon, the property to which it relates.

By the positive provisions of that section, as construed by the declatory act ¡of March 16,1838 (Swan’s Rev. Stat. 311), and repeated decisions of this court, as against such third persons, mortgages have no effect either at law or in equity until delivered to the recorder of the proper county for record.

By the first-named section it is provided that mortgages “ shall take effect from the time- when the same are recordedand by the last, after reciting that doubts had arisen whether “ deeds of mortgage take effect from the time the same are delivered to the recorder of the proper county for record, or from the time the same are actually copied into the book of records,” it is declared “ that mortgage deeds do and shall take effect and have preference from the time the same are delivered to the recorder of the proper county, to be by him entered on record.”

In the numerous cases that have arisen since the passage of these statutes, almost every variety of unrecorded instrument, operating by way of mortgage upon real estate, has been passed *upon ; but in no single instance have the subsequently acquired legal rights of third persons been displaced by such instruments, whether such rights existed by deed, mortgage, judgment lien, or levy upon the property.

In Stansell v. Roberts, 13 Ohio, 148, the question arose between a prior unrecorded and subsequent recorded mortgage, the second mortgagee having notice of the first mortgage, and the lien of the latter was preferred. It is admitted that a different result would have ensued upon g-eneral chancery principles, by the application of the doctrine of earlier equities; but the court considered the case settled by the statute, and as the legislature had declared the effect of notice in the section relating to absolute deeds, and had omitted any such declaration in that relating to mortgages, they thought “the expression of the consequences of notice in one class of deeds, and the omission of it as to the other, a plain indication that the legislature did not mean to give the protection arising from it, except to the class of deeds to which it is expressly attached.”

In each of the cases of Mayhan v. Coombs, 14 Ohio, 428; Jackson v. Luce, Ib. 514; White v. Denman, 16 Ohio, 59; S. C., in review, 1 Ohio St. 110, and Holliday v. The Franklin Bank of Columbus, 16 Ohio, 533, the contest arose between an unrecorded mortgage, or one defectively executed, so as not to be entitled to record, and a subsequent judgment lien; and in each of them the lien of the judgment was preferred. While in the case of Fosdick v. Barr, 3 Ohio St. 471, the same preference .was given to a levy upon execution issued upon a judgment rendered in another county, and having no lien upon the property.

Mo one of these cases was decided in ignorance of the general principles to which we have alluded, and in every one of them a different conclusipn would have been arrived at, if these principles could have furnished the rules of adjudication. But it was perfectly competent for the legislature to change or modify these *rules, and when it had. done so, no discretion was loft to the judicial tribunals to depart from the express commands of the legislative body. Those commands the courts have regarded as explicit; the statute expressly declaring, that mortgages do and shall take effect and have preference, “ from the time the same ar.e delivered to the recorder of the proper county, to be by him entered on record.” To give them any effect before, as against the persons intended to be protected by this statute, would be to repeal it. It was not made for the mortgagor, and therefore, as to him, the record of the mortgage was wholly unnecessary; but it was designed to protect third persons who might acquire legal interests in, or liens upon, the property. As to them, the record was made conclusive; and they are only bound to regard such mortgage, liens as the record discloses at the time their rights accrue. The principle deducible from all the cases is, that the legal rights of such persons can not be displaced, at the instance of the holder of a prior unrecorded mortgage, or contract for a mortgage, although acquired with notice of such mortgage, or of the existence of such contract; the object of the law being to avoid all the vexed questions of notice, actual or constructive, in determining priorities of lien. So far as may be necessary to their protection, such a thing as an equitable mortgage is wholly unknown.

Until entered for record, they have no effect either at law or in equity against third persons; and until they take effect as legal instruments, they are entirely inoperative to prevent others from acquiring uncontrollable legal interests in the property. The lien they give is governed by the statute, and only attaches when the statute has been complied with. The record gives them vitality, and the record alone can be appealed to to determine when they have taken effect.

The doctrine of earlier equities only applies when the contesting interest is only an equity; but wh en that has been clothed with legal protection, it can not be displaced by anything short of a prior duly recorded instrument.

*1 am quite ready to admit, that the propriety of extending these doctrines, to the protection of subsequent judgment liens, might well have been doubted. Ordinarily such liens only attach to the interests of the debtor in the property; and hence it was urged with much force, that as these unrecorded mortgages and contracts were effectual against the party, they ought to be equally so against the judgment creditor, who took his place and succeeded to his rights. If this were an open question, the argument would be entitled to great weight; and I am not prepared to say that I should not consider it altogether sound. But the opposite course of decision has been too long and uniformly maintained, to be now disturbed, without involving consequences vastly more injurious than can arise from adhering to it.

A question of less doubt might also be made, whether a subsequent mortgagee or purchaser with notice, could take a conveyance of the legal title, without committing a fraud upon the holder of the prior equitable right. But this, too, has been long since settled, upon what was considered a fair construction of the statute. At first view, it seems inequitable to permit this to be done; but it is to be remembered that if notice is permitted to supply the place of the registry, the whole field of constructive notice immediately plies; or if it is made to depend upon actual notice, tbe inquiry is still attended with all the danger and uncertainty incident to parol evidence, when used for the purpose of affecting written instruments, and disturbing titles.

A very limited experience will serve to satisfy any one, that there is no more fruitful source of litigation, and none in which the results are more uncertain and unsatisfactory.

It may, therefore, well be doubted, whether a sound public policy does not require the establishment of a clear and certain standard of decision, incapable of vibration, and free from the evils of litigation, uncertainty, and fraud, by making it all depend upon a simple matter of fact, of easy solution, and allowing every thing to be settled by the priority of the registry. Some of the *most eminent and experienced chancellors have been of this opinion; and the courts of this state have always supposed, that this was the policy intended to be established by the legislature. If they have been mistaken in this, the mistake is now too deeply rooted, to be remedied by the judicial tribunals. Nothing short of a more explicit declaration of the legislative will, and applicable alone to future cases, can remedy the evil, if such it is.

Whether, therefore, we consider the general assignees in this case as purchasers for a valuable consideration, or as holding the legal title in trust for the benefit of all the creditors, it is equally clear that it can not be taken from them by the complainants. A contract for a mortgage can not have greater effect than one defectively executed, or one perfectly executed, but not recorded.

It is unnecessary to consider the effect of depositing the title papers, or whether consistently with our recording acts, such a deposit is sufficient to satisfy the statute of frauds. At most it could operate only as an agreement for a mortgage, and at best could be no bettor than a written contract. 2 Story’s Eq., sections 1020,1021; Johnson v. Parkhurst, 4 Wend. 369.

There is another conclusive view of this case. If the mortgage had been executed according to the agreement, or should be now decreed, we are clear in the opinion that it would inure to the benefit of all the creditors of the mortgagor, under the provisions of the act of March 14, 1838, relating to assignments by insolvent debtors, and that the proceeds of the mortgaged property would be carried precisely where they are now left by the general assignment.

It is very true that it has been fully settled by repeated decisions of this court, that a creditor of an insolvent debtor, or one having assumed liabilities for him as surety, may lawfully take from him a mortgage to secure such debt, or save harmless from such liability; and, as the reward of his diligence, will be protected in the priority thus obtained. Doremus v. O’Hara, 1 Ohio St. 45; Atkinson v. Tomlinson, lb. 237.

*But it is equally well Bettled, that if he attempts to extend the lien beyond the necessity of his own indemnity, and secure the debt of any other creditor, the mortgage is in substance and legal effect an assignment within the provisions of that act; and the mortgagee being a trustee for such other creditor, under the act becomes a trustee for all the creditors of the mortgagor. Our reasons for holding such a mortgage an assignment within the purview of the law, are stated in the case of Harkrader v. Crane, decided at the present term.

This would have been exactly the position of the mortgagee in this case. He not only attempted to secure himself, but several other creditors of the mortgagor; and while it is true that he agreed to become security for their debts, we have no difficulty in saying that this act can not be evaded by assuming a liability as surety for the insolvent debtor, as a part of the transaction by which the mortgage is taken, and a priority be thus secured.

In any view the bill must be dismissed, saving to the complainants such rights as they may have under the general assignment.


text:
    *The Cleveland, Columbus and Cincinnati Railroad Company v. Levi T. Elliott.
    In error to the district court of Lorain county.
    The object of the petition is to reverse a judgment recovered by Elliott against the company for killing his cattle. The facts and points in controversy, as they appear in the bill of exceptions, are as follows:
    It appeared that, in 1852, the plaintiff was the owner of two oxen and some cows, and that the railroad of the defendants passed -through the lands of the plaintiff in Lorain county; that part of .said lands were not fenced ; that there were other unfenced lands in that immediate vicinity; and that there was also a public highway in the immediate vicinity. It further appeared that the plaintiff was in the habit of allowing his oxen and cows to run on the highway and the unfenced lands adjoining and in the vicinity of said railroad. "While they were thus running at large, in 1852, the locomotive of the express train from Cincinnati killed two of plaintiff’s oxen which were upon the track, about four o’clock in the afternoon. It appeared that, before they wore killed, the oxen were feeding with the cows by the side of the unfenced lands .adjoining the railroad, near to the plaintiff’s land; that when the engine was 80 to 100 yards from them the steam-whistle was blown. The cows and oxen ran along the roadway some considerable distance, and the whistle was blown continuously to scare them off. The train finally ran over and killed the oxen. Witnesses swore that no signal for putting down the brakes was heard, and that they believed the speed of the train was not slackened ; .and the plaintiff gave evidence tending to prove negligence upon the part of the defendants. The defendants asked the court to ■charge the jury that if they were satisfied that the plaintiff permitted *his cattle to go at large on uninclosed grounds, other than the public highway, and adjacent to said railroad, and being permitted so to go at large on such uninclosed grounds, the cattle in question passed from such grounds onto the track of said railroad, and were then injured, such permission constituted such negligence on the part of the plaintiff in the premises as precludes Rim from a recovery in this case for the damage so sustained by Mm in consequence of the negligence in the premises of the defendants, which charge the court refused to give, but charged the-jury that the defendants were under no legal obligation to fence in their railroad, and their omission to do so did not constitute negligence on their part for which the plaintiff could recover in this action; that the plaintiff had a right to permit his cattle to run at large upon the public highway, and if he so permitted them to run at large, or permitted thorn to run at large on other uninclosed land adjoining the railroad of the defendants, and in consequence thereof they went upon the track of defendants’ railroad, and were on said track at the time of the injury complained, of, and plaintiff omitted to restrain them from going uj>on said track, the plaintiff was not thereby chargeable with negligence which would prevent -him from recovering damages in this case, although the jury should find that the injury was not intentionally done by the defendants; that if the injury was the immediate consequence, in whole or in part, of the plaintiff’s negligence, he could not recover of the defendants for any negligence on their part except gross negligence; that the question for the jury to-determine was whether, under all the circumstances of-the case, the defendants exercised reasonable and proper care in running their engine to avoid injury to the cattle of the plaintiff; that there was no rule of law that required the defendants to stop their engine or check its speed, to avoid injury to the cattle of the plaintiff, unless that was required to be done by the use of reasonable and proper care on their part; that in determining whether-the defendants did use reasonable and proper care in this case *they should take into consideration all the circumstances of the case, as well the conduct of the plaintiff in permitting, if he did so, his cattle to run at large and be upon the track of the defendants’ road, as the nature and importance of the defendants' business, and the inconvenience and loss to which they might be-subjected from having the progress of their trains obstructed by cattle upon the track of their road; and if, upon the whole ease, they should be satisfied that, at the time of the injury in question, the defendants did use reasonable and proper care to avoid committing the injury, they must return a verdict for the defendants;but if they should find that the defendants did not exercise such-reasonable and proper care, and thereby caused the injury complained of, they must give the plaintiff a verdict, with such dam.ages as they should think reasonable.
    The jury having found for the plaintiff, the defendants moved for a new trial, upon the ground, and for the refusal to charge as requested, of error in the charge of the court; which motion being overruled, the defendants excepted.
    The refusal to instruct the jury as requested, and the instructions given, are assigned for error.

      Bishop, Backus & Noble, and A. D. Clark, for plaintiff in error.

      S. Burke, for defendant in error.
   Thurman, C. J.

The common-law doctrine that requires the owner of domestic animals, not unruly or dangerous, to keep them upon his own premises, and makes him a trespasser if he suffer them to run at large, and they go upon the uninclosed lands of another, is not the law of Ohio, being inconsistent with our statute law, and contrary to the common usage that has always prevailed in this state.

The remote negligence of the plaintiff will not prevent his recovering for an injury to his property immediately caused by *the negligence of the defendant. The negligence of the plaintiff that defeats a recovery must be a proximate cause of the injury.

Suffering domestic animals to run at large, by means whereof they stray upon an uninclosed railway track, where they are killed by a train, is not, in general, a proximate cause of the loss; and hence, although there may have been some negligence in the owner’s permitting the animals to go at large, such negligence being only a remote cause of the loss, it will not prevent his recovering, from the railroad company, the value of the animals, if the immediate cause of their death was negligence of the company’s servants in conducting the train.

The bare fact that a railway is uninclosed, there being no statute requiring it to be fenced, does not, in general, render the railroad company liable to pay for animals straying upon the track and killed by a train — such want of fencing being, in general, only a remote cause of the loss.

The paramount duty of a conductor of a train, is to watch over the safety of the and in his to which., it is his duty to use reasonable care to avoid unnecessary injury to animals straying upon the road.

See Kerwhacker v. The C., C. & C. R. R. Co., 3 Ohio St. 172; The C., H. & D. R. R. Co. v. Waterson and Kirk, ante; Trow v. The Vermont Central R. R. Co., 24 Vt. 487.

Judgment affirmed.