author: Birchard, J.

text:
    In Bank.
    Dec. Term, 1846.
    Lessee of Charlotte Barton and others vs. The Heirs of Thomas Morris.
    A Defendantln possession over twenty-one years, under a contract of purchase which has been fully complied .with, cannot be ousted in ejectment by the holder of a naked legal title, having no right of possession.
    A Trustee who conveys a naked legal title, under a defective power, by order of the cestui que trust, with the usual personal covenants of warranty, and whose conveyance passes no title by reason of the defects in his power, is, by his covenants, estopped from setting up title against his covenantee, acquired by subsequent conveyances, vesting in him the naked legal title.
    The 2d section of the act passed January 29, 1833, amendatory of the act providing for the acknowledgment of deeds, &c., is constitutional and of binding force, notwithstanding its retrospective operation.
    A deed conveying “ all right, title, interest or claim, to any land descended to me from A or B/' is sufficiently descriptive to pass title to any legal or e.quitable estate which the grantor inherited from A or B.
    The intention being plain, parol evidence is admissible to identify the land, but not to prove airintention different from the terms of the deed.
    A Magistrate's certificate of the acknowledgment of a married woman is sufficient, if it show a substantial compliance with the statute.
    A party to a fraudulent conveyance cannot set up his fraud to avoid the conveyance, nor can his grantee or his heir be heard to aver the existence of such fraud to prevent the operation of the doctrine of estoppel.
    This is an Action of Ejectment, reserved in the County of Clermont.
    The declaration counts on the several demises of John Jolliffe and of Charlotte Barton, under whom he claims title, and on the joint' devise. of both, &c. The land in controversy is part of F; Ó: -Neil’s survey, No. 913, of which the plaintiffs’ lessors claim* nine undivided seventeenth parts of 99 acres.— The. defendants, .or heirs of Thomas Morris, claim title to the whole interest in the land. Or if they have not the title, they then claim that they are in. possession, with a legal right to maintain it, as against the plaintiffs’ lessors. Both parties claim title under Amos Haines.
    To sustain the action, the plaintiffs’ lessors prove, first, that on the 1st September, 1817, Amos Haines, then the legal owner of the land, by title bond sold the same to Edward Barton, Sen.; that Barton went into possession at that, time, and remained in possession until his death, in'the year 1836.'' the day of.purchase he paid $ 1Í00, by note of Mr. Wilson, and was' to pay the balance in fifteen months, from 1st May, ' 1818;. and it is shown that, on the 30th May, 1823, the balance of the purchase money was paid to James T. Johfiston, administrator of ;Amos Haines, deceased, and,, on proving the ñames of the -heirs of Barton, he claims he shows a righf'tb recover. ’ ' . ' ■
    To. defeat, this title by-descent, the defendant shows that,.when.the balance of the purchase money was paid, Johnston, •; who was then administrator, and who was authorized to close up .the estate and to sell the property, by defective powers of attorney as it appears, deeded the title, by direction of Edward Barton, sen.,- to Edward Barton, jr., by'deed 'dated the 30th May, 1823.' ,. This deed is signed by James T. Johnston, attorney in-fact, for the heirs of Amos Haines. The deed-.contains the names of J. T. and Mary Johnston, a's grantors, and who, • for the. "consideration of $670.50, grant, bargain and sell the 'land in controversy, by metes and bounds, and covenant that, they áre the .true owners of the land;' that they have authority ■ to convey in fee simple, and that they will warrant and forever defend the title against .all claims'whatsoever.
    This deed was duly executed and' acknowledged before a justice of the peace, in May, 1823, and recorded on the 19th of November, 1823. Defendants also proved, that Amos Haines died in 1819, leaving Lafayette Haines, his sole heir, and his widow, Mary, who intermarried with James T. Johnston. That Lafayette Haines died in-- without issue; and that Margaret Canby, wife of Joseph Canby, Noah Haines,' Nathan Haines, Robert Haines, and Mary McKay, were the heirs of Lafayette Haines, in whom the naked legal title vested at his death.. Deeds, with covenants of warranty against the grantors of those claiming under them, were executed to James T. Johnston, in 1825, by Robert, Nathan, and Noah Haines, and also by Margaret and Joseph Canby. That Edward Barton, junior, claimed all the equity in- the land after the deed was executed in 1823, and that in 1837 he executed a deed to Thomas Morris, the ancestor of the defendant, in due form, conveying to him' the title -which he .had- acquired. .
    The • plaintiffs’ -lessors, to rebut .this, offered, pr.oof that, since the conveyances by the heirs of Lafayette,-Haines'to'James T. Johnston, the plaintiffs’ lessors Have procured them to execute conveyances, by which any title that remained in the heirs of Edward Barton, senior, and of Amos and Lafayette Haines, is claimed to be vested in the plaintiffs’ lessors'.
    Sundry records are also in evidence, which, with the other facts, will.be found noticed in the'opinion.of the Court.

      John Jolliffe, for Plaintiffs,
    First: ■ We -trace,, by direct evidence, the possession of the heirs, of Edward Barton, senior, and of the widow, down to May, 1836. Unless there be proof to the contrary,,the law will presume, that the possession continued until the twenty-one years were fulfilled.' Bayard’s Lessee v. • Cole/ax et al., 4 Wash. C. -C. Rep. 41; Phil. Ev. by Cow. and Hill, 295, and cases there collated; 1 Stark. Ev. 36; Greenl. Ev. 46; Lewis v. Paine, 4 Wend. Rep. 423, 529; Miller’s Lessee v. Porter, 4 Wend. Rep. 672. y
    Second: “ Where á patent, having, a possessory title to land, í dies in possession, leaving.several children, his heirs at law, { who succeed to such possession, it is not competent for one or ‘ more of such heirs, who, have obtained the exclusiye posses- ‘ sion of the whole premises, to defeat a recovery by the co- ‘ h'eirs of their proportional parts or shares, by setting up ft title c acquired from the owners of the land. To avail themselves ‘ of such title; they must first surrender possession to the co- ‘ heirs and then bring ejectment.” Philan ét ux. v. Kelly, 24 Wendt Rep. 389; see, also, 7 Cowen 637 ; 3 Ádol. and Ellis. 188; 2 Ibid.; 5 Johns. Ch. Rep. 407. * ■

      Third: The lessors of the plaintiff hold the legal title to the several shares for which they sue.
    1. We then claim that we ought to recover upon an notorious and adverse possession, for upwards of twenty-one years before the commencement of this suit.
    2. As parceners, whose right to recover the defendant cannot dispute, until he shall have previously established his legal title to the whole land, by a verdict and judgment in ejectment in his favor upon that legal title.
    3. Because we hold the legal title under the deeds of such of Edward Barton, senior’s heirs, under whom we claim, who, before they conveyed to the lessors of the plaintiff, had got in the legal title of all of Haines’ heirs, except Madison McKay. But if these deeds passed nothing to us by reason of previous deeds to Johnston, then, under the deed from Johnston, united with the deeds from Barton’s heirs, we claim the legal title in the same manner as if Johnston had conveyed it to Barton’s heirs before they conveyed to the lessors of the plaintiff.
    4. Even the possession of Mrs. Barton and her children, after the death, of her husband, claiming, as they did claim, title to their respective shares, would be sufficient to enable the plaintiffs to recover, unless the defendants have shown a better title; 3 Ohio Rep. 240, 388. The possession of one or more coparceners is the possession of all.
    Either of these grounds is sufficient to enable the plaintiff to recover.
    Fourth: The defendant claims his title under the deed from James T. Johnston and wife, made to Edward Barton, Jr.
    1. This deed passed nothing more than the interest of Johnston and his wife. It did not pass any part of the interest of Haines’ heirs. See Combs’ case, 6 Co. 18; Strange, 705; Frontín v. Small, Paley on Agency, 152; Wilks v. Pack, 2 East 142; 4 Mass. Rep. 595; Fowler v. Shearer, 7 Mass. Rep. 14; Sumner v. Williams, 8 Mass. Rep. 162; 1 Ohio Rep. 349; 2 Wheat. 56.

      Johnston, at the -time he'made.this, deed,' had..a power of attorney from'1 pari only', of the; heirs of • Amos Haines. ■ It is signed, by Joseph-Canby and'.’wife, NOali Haines," Nathan Haines and Robert Haines, and is'dated-21'st May, 1823.
    The acknowledgment of Mrs. Gnnby is not sufficient; 2. Chase’s Stat-.. 1139, sec.' 2, 1140, sec.' 6;' 6 Ohio Rép. 358. There .is no acknowledgment by Robert. Haines;; 2 Chase’s '■ Stat;. 1Á40,' seel.6. -The- poWer.of attorney has never been recorded' in-. Clermont,, ,'cduñty, where ■ the. land is ' situated; 2 •Chase’s Stat. 1140,>ec.. 7; Taylor v. McDonald’s heirs, .2 Bibb, 423.- It.has.jnever been signed by Mrs. McKay, or any of her.heirs. -It has. but-one- 'subscribing' witness; Lessee of Patterson' y.. Pease arid others,- 4 Ohio. Rep. T90; Cóurcier v; [Gfrahim, !1- Ohio'Rép.. 330. 1. •
    . The deed from Johnston and wife -to E. Barton', Jr., was a mere nullity', except' so' .fa'r as it'conveyed the interest of Johnston and :his wife. - Allvthe title of Haines’ heirs.remained as it was before it vyas.made-.
    Fifth; '' The defendant'- contends that by the deedof.Noa,h Haines and' wife, Nathan -Haines and wife,'.and Margaret H, Canby and her husband, dated .April 5, 1825,, and the deed, of Robert Haines,-dated-9th Of. June, 1824, the parties conveyed to James T. Johnston, their interest, title, &c., to the land sold by Amos Flames to.Edward Barton, sen. ' ' " .
    ' These deeds convey 'no title to the ■ Barton farm, and were not intended by the parties' in. any manner to affect that farm.,
    1. The deed from Robert, Haines is of “ the estate, real or ‘ personal, of which Amos Haines was possessed at his de- ‘ cease — to have .and to hold the above estate or estates, with f all the privileges'and appurtenances, he and his heirs and ‘‘ assigns for ever.”
    Both, the grantor and grantee had actual personal and positive notice that'E. Barton, sen., was in actual pdsséssion of the farm in question ; that he had'bought and paid for it, and, therefore, held it by title adverse to Haines; and this deed applies only to land of which " Amos Haines had the possession at his death, either actual or constructive..'. ’ •
    2. The deed from, Canby and Wife, Nóah', Haines and Na- • than Haines, does not pass the legal title of Mrs.' Canby, because .the statute (2 Chase’s-'Stat. 1139, sec. 2,)--required, that upon the private examination^ the wife, should acknowledge the signing.ahd'sealing of the,deed. . • ■ ■■ ' .
    - Here the certificate dpes .not state -that she acknowledges the “sealing” of the 'deed, ' nor-is. there equivalent words.! In Connell v. Connell, 6 Ohio Rep. 358, it is held, “ that before ‘ the rights of the wife to lands áre affected, the second section ‘ requires an acknowledgment that she vpluntarily sealed and' ‘ delivered’! the deed., .As .this is not done, her title did not pass... .She had'but a naked legal title’, unaccompanied with the right of possession. Her ,husband had no intérest; his only right being to take the.-rents, issues and profits — none of ' which- could exist in this case. ‘ '
    ' 3. As,to.Nathan and Noah Haines,'the certificate to the ácknówledgmént has no seal. • It is dated June 6, 1825, and governed by- the act of February 24, 1820; 2'Chas.e’s Stat. 1139.' The first sectión of this act requires the justice to subscribe hih name and affix his seal to, the certificate of acknowledgment.' The act of. December 28, 1825, first .page- of the third" volume- of Chase’s Statute,' provides, that it “ shall not be ‘ necessary to the validity of any deed or. other instrument of ‘ writing hereafter to be executed,- that a seal shall be affixed 1 to the - certificate of office before whom the .'acknowledgment 6 shall be taken.;’* ’. '
    1 From. May, 1818, until the act just quoted, 'a seal was' required to the acknowledgments of all.'deeds in;Ohio; "see, Paine and others v..-Fr.ench, 4 Ohio Rep.,318; Swan’s-.Stat. 269, note a..: At the time this deé.d-was mádé, it ..did, not pássthe legal title of Noah and Nathan Haines in the land in' disputé. 'Johnston took nothing.-by it in. that land.-' . The case comes within ' the- rule ip Good v.;. Zercher,- Í2 .Qhip Rép. 366.
    Independently of. .the constitutional guaranty, ip is béypnd the compass of legislative powers to take the title of one and confer it upon another, without trial, process or compensation ; Fletcher v. Peck, 6 Cran. Rep. 78; Bowman v. Middleton, 1 Bay. 252; 1 Kent’s Com. 4th ed. 451; Vanhorne v. Bórreme, 2 Dali. Rep. 204; Colder et ux. v. Bull et ux., 3 Dali. Rep. 386; 1 Kent’s Com. 451.
    The deeds described no land — no location is given to it. They are, therefore, void for uncertainty; Boardman et al. v. Lessees of Beed and Ford et al., 6 Pet. Rep. 345; McChesney’s Lessee v. Wainwright, 5 Ohio Rep. 452; Blake v. Boherty, 5 Wheat. Rep. 359; 3 East Rep. 171; Brown v. Jackson, 3 Wheat. Rep. 449 ; Shobe’s Ex. v. Carr et ux., 3 Munf. 10; Adams v. Caddy, 13 Pick. Rep. 460; James’ Lessee v. Avis, 4 T. Rep. 321 ; Bor ex. dem, Spearing v. Buckner, 6 T. Rep. 610; Crosswright v. Hutchinson, 2 Bibb, 410; Sandford v. Baiker, 1 Meri. Rep. 644; Breckenridge et ux. v. Human et al., 2 Marsh. Ky. Rep. 51; Cooke v. Oakley, 1 Peere Williams, 302; Baniel’s Lessee v. Miles, 6 East Rep. 494; Runington on Eject. 309; 13 Johns. Rep. 313 ; Crawford v. Jarrit’s Admr., 2 Leigh’s Rep. 633; Barkley v. Barkley, 3 M’Cord’s Rep. 269; 3 Johns. Rep. 388; Livingston v. Ten Brouck, 16 Johns. Rep. 14.
    The estate conveyed was that of which Amos Haines was possessed at the time of his death, and the parties to the deed could not have intended to convey more than they supposed he possessed at that time. Subsequent development of facts, unknown to the parties at the time of the conveyance, cannot affect the construction of the deed. 8 Johns. Rep. 495; Van Wick v. Wright, 18 Wend. Rep. 157; Moore v. Jackson, 4 Wend. Rep. 52; Corbin v. Jackson, 14 Wend. Rep. 619; Jackson v. Hudson, 3 Johns. Rep. 375; Jackson v. Van Antwerp, 8 Cowen’s Rep. 273 ; Jackson v. Blodett, 16 Johns. Rep. 172; Austin v. Sawyer, 9 Cowen’s Rep. 39; Jackson v. Bodle, 20 Johns. Rep. 184; Hunt’s Lessee v. McNeál, 1 Wash. C. C. Rep. 70.

      Parol .evidence is admissible to prove whether a deed was delivered, and whether it was accepted by the grantee. 12 Wend. Rep. 105; 6 Cowen’sRep. 617; 12 Johns. Rep. 418; 5 Mason’s C. C. Rep. 60; 1 Johns. Cases, 114; 4 Ohio Rep. 157; 1 Wend. Rep. 478; 2 Wend. Rep. 308.
    Sixth: But if the title did not pass under these deeds to Dr. Johnston, then, under the deed from him to the lessors of the plaintiff, they hold the legal title.
    The doctrine of estoppel does not apply to this case. Green-leaf’s Evidence, 30 ; Jackson v. Mills, 13 Johns. Rep. 463 ; 2 N. H. Rep. 167.
    Where a person without title conveys by deed with warranty, and afterwards receives title as trustee from the rightful owner, for the purpose of transmitting it to a bona fide purchaser, the doctrine of estoppel does not defeat the trust estate. Burchard v. Hubbard et al., 11 Ohio Rep. 316; 1 Sug. on Vend. 211; Avery v. Dufrees, 9 Ohio Rep. 145 ; House v. Beatty, 7 Ohio Rep. 84, part II; Buckingham et al. v. Smith and Dille, 10 Ohio Rep. 288.
    It is the right to recover back the same land, in the event of eviction, that works the estoppel; where that right does not exist, there can be no estoppel. Allen’s Lessee v. Parrish, 3 Ohio Rep. 116; Patterson v. Pease et al., 5 Ohio Rep. 190; 2 Ohio Rep. 269; Thallhimer v. Brinkerhoof, 6 Cow. Rep, 90; Douglass v. Scott, 5 Ohio Rep. 194; 4 Kent’s Com. 4th ed. 261, note b; Co. Litt. sec. 446; 14 Johns. Rep. 193.
    It is wholly by operation of law, in cases of estoppel, that the after acquired title inures to the benefit of the grantee. It is not the act of the parties. Brown v. Swearingen, 1 Ohio Rep. 412; Cruise’s Dig., Tit. 5, chap. 1, sec. 27; 2 Hovenden on Frauds, 100; Nellis v. Clark, 20 Wend. Rep. 25.
    If there was fraud in procuring the deed to be made to young Barton, the law will not lend itself to aid either party, but will leave them as they are. Smith v. Hubbs, 1 Fair. Maine Rep. 71; Ferris v. Norris, 9 Dana’s Rep. 317; Raguet v. Roll,
      7 Ohio Rep. 76, part I-,' Allen et al. v. Little, 6 Ohio Rep. ’ • °7.
    Seventh: ' Where any interest whatsoever passes from the .party making a deed, there can be no estoppel against him. The' reason that a man is estopped, is, that he is not permitted to. assert that he had no interest in the land, where he made his deed with warranty.. Coke Litt-. 55; a ; 4‘Kent’s Com. 98.
    Estoppels must be certain in every intent, for no one shall be denied setting ,up the truth, unless it is in plain and clear contradiction of his former obligations and acts. Greenleaf’s Ev. 26; 4 Kent’s Com. 261'.
    Eighth: The defendant,- at the trial, contended that the statute of limitations operated in his favor. This cannot possibly be so; for the proof is, that Edward Barton, senior, occupied the farm until his death, in May, 1836, taking to his own use all the profits of it, paying all the taxes,, and three times demanded of Edward the deed from Johnston to him. At his death', Charlotte Barton, and five of the children, were on the farm, and remained upon it for some time thereafter, when the defendant obtained the possession. In Paine’s Lessee v. Skinner et al., 8 Ohio Rep. 166, the Court decided, that “the £ possession under which a person claims to be protected by the ‘ act of limitations, must be continued, exclusive and adverse.” Here Edward Barton, junior, had no -.possession of any kind, till after May, 1836.
    A trustee of the legal title cannot urge the lapse of time against his cestui que trust. Trustees of Lexington v. Heirs of. Lindsey, 2 Marsh. Ky. ■ Rep. 445; 'Redwood v. Riddick and Ex., 4 Munf. Va.-Rep. 222; Cholmondely v. Clinton etal., 2 Meriv. Rep. 350; West v. Randall, 2 Marsh. Rep. 213 ; Kane v. Blood good, -2 Johns. Ch. Rep. 122; Executors of Hunter v. Spotswood,- 1 Wash. 146; Thomas v. White et al., "3 Litt. 177, 181; Lessee of Bell v. Levers, 3 Yeats. Rep. 26.
    Ninth: The deed first registered must prevail at law. Roberts v. Stanton,.2 Munf. 129; Jackson v. Nwge£i,.10Johns. Rep. 457,' 462; Jackson v. Hubbard, 1 Caine’s Rep. 82;
      Jackson v. Gioen, 8 Johns. Rep. 105,2d ed.; Sugd. on Vend. -255,,9th edN..- ' -. '.
    . Tenth; If, however,' I am mistaken in the views I have already, presented, stijl the question 'left undecided in Les.see of. Avery, v. Rufréeset aL, 9. Ohio Rep. 145,-remains: • • '
    The defence is,; that the present defendant holds the title of part of Haines’ heirs, through Edward .Barton, jr.-' By the contract of. .sale .and the payment 'of ■ the .purchase money, Haines’ right'to the land itself was divested. He'held; after that, but a naked legal title. .1 ask the ¿tterition óf dlie Court to the remarks of Ch. J. Marshall in Blight’s Lessee v. RoChester, 7 Wheat. Rep. 535. Robert Haines,' the agent of the owner, knew that Barton' 'went 'into the possession about the time'of the purchase, and no opposition to his'taking possession appears to have been made by any person. He took pos-. session, at least, by the acquiescence, of the owner, (see 7'Ohio Rep. part II, 99); and, after full payment of the purchase money qnd acquiescence for upwards of twenty-one years, by the vendor,' his heirs, Widow and administrator, surely a person claiming under the vendor cannot be permitted to enter and avail himself of. that titlp against the purchaser and those claiming under him. The vendee, even, under a parol contract, may maintain trespass against the vendor, where he has .the possession ; 1 Ohio Rep. 252,- and ■ cases there referred fo by the Court. ■ The vendee has surely a right of immediate possession,. that is, of. entry. See 2 Wend. 109, 134; 6 Munf: Virginia Rep. 37.' . .'
    Edward Barton, jr. never had thé possession,.
    ' In every case of mixed possession, the-legal seizin.is according to the title. 10. Mass. Rep. 151; Ibid. 408; '2 Harr. &l Johns. Rep; 87, 94, 112, 115, 3 ; .Serg.' & R, Rep. 509'; 3 Harr.-& McKen..Rep., 621; -4 Serg. & R. Rep. 46.5; -1. Salk. 245.;' '6,-Johns'. Rep. 218; 3 Mass. Rep, 219:But, even if he-had, he voluntarily abandoned it'. ' 7 Cowen’s Rep;;637.' ’ ".

      Charles Fox, for Defendants.
    I claim, on the part of the defendants, that, as to any claim set up by plaintiffs, under the heirs of Lafayette Haines, no recovery can be had, for the following reasons —
    First: Because Edward Barton, the purchaser, went into possession with the assent of Amos Haines, the owner; that he complied with his contract by paying up the purchase money, and that, therefore, he had a right to retain that possession, and was not a wrongdoer; that no ejectment could be brought by Haines, the vendor, to terminate the purchaser’s right of possession, until the latter had made default in his contract, and possession had been demanded by the vendor; that the vendee had a license to enter, which is sufficient in an action of ejectment.' And such appears to be the opinion of Mr. Jolliffe, in his argument.
    Second: I claim, they cannot recover because barred by the statute of limitations. The elder Barton, under whom we claim, and under whom the lessors of the plaintiff also claim, took possession of this property, in 18 IT, as his own. That the statute had commenced running against Haines and his son, and, of course, did not afterwards gtop for any subsequent disabilities, and had run out before the 3d of August, 1843, when this suit was brought.' It is true, the administrator, Johnston, claimed there was a'balance of about $50 due in 1823, when he made the deed, but that was denied by Barton, although he paid the balance rather than not have the deed made. If I recollect aright, the land was sold by the acre, and Johnston contended that, at that rate, there was this balance due. I claim, therefore, that the possession was, in fact, adverse, before that deed was made, and that it ought to be held, and, if the Court think so, the statute is a bar.
    In the next place I claim, that whatever title was vested in the heirs of Haines was passed to James T. Johnston by their deed made in 1824 and 1825, and being so conveyed to Johnston, operated to the benefit of Edward Barton, the younger, and those claiming under him, by the doctrine of estoppel; and that the subsequent deed made by Johnston to Jolliffe and Charlotte Barton, in 1838, conveyed nothing, because the moment the heirs of Haines conveyed to Johnston the title vested in the persons to whom he had previously conveyed it.
    The deed from Johnston purports to convey a fee simple estate. Johnston covenants he has a title to the property and that he will warrant that title. He, therefore, could not recover against his own solemn deed, and if he could not, it is clear Jolliffe and Charlotte Barton, who claim under him; cannot recover.
    It is claimed by Mr. Jolliffe, that the deeds from the heirs of Haines and Johnston do not cover this land, and that they were not intended to convey it. He claims he has a right to show that the parties did not intend to convey this land.
    Although the deeds purport to convey all the right, title, interest, property and demand which the parties have in and to the real or personal estate, as legal heirs of M. de Lafayette Haines, minor, &c., or to the estate, real or personal, of which Amos Haines was possessed at his decease,' yet, Mr. Jolliffe says, the deeds do not cover this land. Again, the grantors warrant that they will not claim or demand any right or title to any of the estate of the said M. de Lafayette Haines, or of the estate of his father, Amos Haines. See' Robert Haines’ deed.
    Canby and wife, Noah Haines and Nathan Haines convey all their right, title, claim, interest, property and demand in and to all real estate which has fallen or may fall to us, or either of us, as heirs- and legal representatives of M. de Lafayette Haines, deceased, or of Amos Haines, to have and hold all such landst tenements and real estate, as we could or might claim title to as heirs, &c., and in this deed is a covenant to defend all persons claiming under them.
    But Mr. Jolliffe claims, that Johnston’s deed will not estop him, or those claiming under him, because, in the first place. Johnston made a mistake in inserting- a clause of warranty. TT . • Jde supposes it was an unnecessary warranty. Hut it appears to me, it was necessary to insert this warranty, and, I. presume,Barton thought so • at the time, for he had paid a good price, and Was entitled to a warranty deed.. If we look at the real transaction, we shall see the parties really intended to convey a good title. Johnston had a power of attorney which,-he thought, authorized hinn to- make-a deed. ■’ He made- one, and it appears his-title was not then perfect. But the heirs afterwards.vesteda good title in him. Now, this is .the very case to-which the ■ doctrine of estoppel -is intended to apply.' -The party intended ■ to convey the whole title, but-he did not carry his intention info effect. He afterwards acquired a perfect title, and the láw steps in and says, it shall accrue to the benefit of the grantee, and thus carry into effect the original intention Of the parties. 'The' doctrine of estoppel is a- part of the moral policy of the law., -intended to promote justice.. -It is not just that a man' who has-conveyed .a title should be permitted to say, he had no title to convey.. ' •
    Mr. Jo'Iliffe also.claims the.deed cannot operate' by estoppel, because a very small interest passed, viz: the interest of Johnston’s wife, as widow of Amos Haines, deceased.' He'seems to think, that if' a man sells the whole of an estate, as his own, and-covenants to defend the title, and he subsequently finds he only owned one-seventh part of what he conveyed, he can then ,go and buy' up the six-seventh parts and recover of his own gran tée against his own deed. This proposition'cannot-be met by argument." The cases cited by Mr. Jolliffe,-so far as I have examined them,.give no- countenance to his proposition'. In the case in 11 Ohio Rep. 332, the Court admit- the doctrine I -contend -for,' although they say, in that case,-a prior equity attached, Which, in equity, would overreach a legal title. .
    •I admit,, the. vendor or his. heirs were, implied trustees of the title for the benefit' pf the purchaser or'his assigns.' ' But in this case, -Johnston actually, conveyed to the person selected by the purchaser ;• hé had? .therefore, executed- the. trust according "to the directions of the .purchaser. There was no breach of trust., The question- of-’.notice of no notice, therefore, about which Mr. Jolliffe has sáid-'so 'much,’ has nothing to do with the case.
    - Upon the'whole, therefore, I claim the' plaintiff has made out nó title, under-.the heirs of Haines.' Can he recover on the title set up under the heirs of Barton ?. I think not. ■ ;
    .First, because Barton himself never had a legal title. He had a good equitable title, which might’have ripened into a ...legal, title; but. the elder Barton- died before the title . had so 'ripened. He had, not, therefore, a. legal title to vest in'his 'heirs., ' ' - . y ' ' .
    And, in the next place, Í claim that this, question has'been so settled,'' by the decrees rendered between the younger Barton and his brothers and sisters, . In those casés, ihe very point and-pith of the controversy -in the first case, .was, as to’ whether .tjie complainant had any equitable-right; for as to the legal title, they then admitted it was in Edward Barton, jr: In the ' last-, case;, however, i't-.was asserted' the legal title had been outstanding. ;in the .heirs, of Haines;' that the complainants had ' purchased that title,.-and, being-in possession, and having the legal title, 'they .sought , to be quieted! -.'The only question in. litigation was, whether-- .the complainants had the legal title. ■ That question -was,decided against those under whom- these . lessors claim,'and I maintain .it is a-final determination of-the question' as to the legal title, and cannot be again litigated between the same parties, or. those claiming under them, either at law or equity. The statute has authorized, a party in possession, claiming title; tq.havé the validity of that title determined . in a-particular way.' If he -is not willing to wait until his adversary.asserts a claim in Cpurt, he may, by becoming a plaintiff, compel a decision on his title merely. After having selected .the tribunal thus pointed out to determine, the question, I claim the decision of the Court on. that question is conclusive. It certainly would be, if the decree had been-for the complainant; it must be equally conclusive oh the part of the defendants. If I am right in this position, it shows that the plaintiff cannot recover under either title which he has set up.
    The plaintiff, however, insists that this deed was made by Johnston to the younger Barton, at the request of the elder Barton, in order to defraud the creditors of the latter, and that it is, therefore, void. There are two answers to this objection :
    First: We do not know that there were any creditors to defeat; none have complained of the transfer as affecting their interests, and I suppose the heirs cannot complain on that account. 1 Ohio Rep. 469.
    In the next place, the grantor, Johnston, did not make the deed to cheat his creditors. And, I take it, none but the creditors of the grantor could insist upon the deed being absolutely void. Suppose Barton had assigned his title-bond without consideration, this might have been avoided in equity by the creditors; but surely Barton and his heirs could not avoid it on that account, any more than they could set aside a will made by their ancestors. There is nothing, therefore, in this objection.
    Upon the whole, I claim the plaintiff has shown no title to recover in this action.
   Birchard, J.

Several questions of interest have been presented for our consideration in the argument at bar, and in the briefs of counsel. We shall notice them severally, especially those that seem to us conclusive of the rights of the parties.

One subject of great diversity of opinion among counsel, is presented by the deed of Canby and wife, executed in 1825. Plaintiffs’ counsel contend that it is defectively executed, inasmuch as the certificate of acknowledgment is insufficient. Were this so, it is difficult to see how it could affect this action. While Canby, the husband, lives, the right of possession to the lands of the wife is in him; and his deed, if valid, passed whatever right of possession the wife had. No proof of his decease has been adduced.

But we will notice the deed. The substantial portion of the certificate of acknowledgment, is in these words : “ Personally ‘ came Joseph Canby and Margaret H. Canby, the within gran- ‘ tors, and acknowledged, severally, the signing and sealing of ‘ the within deed of quit claim to be their voluntary act and c deed, for the uses and purposes therein contained. Arid the ‘ said Margaret being by me made known to the contents, and examined separate and apart from her said husband, declared that she signed the same without fear or coercion of her said husband, and of her own free will and accord.”

The statute required that on the separate examination, the wife should acknowledge the signing and sealing of the deedj and that this should be certified by the magistrate; 2 Chase’s Stat. 1139. Brown v. Farren, 3 Ohio Rep. 140, is an authority recognized iri Connell v. Connell, 6 Ohio Rep. 353, and is at this time the law of the State. The doctrine established there, is, that words used in the certificate of acknowledgment, which are equivalent to the words of the statute, are sufficient. Let us consider, then, whether this deed, and the certificate, do not show that every requisite of the statute has been complied with in substance and in fact.

The signing and sealing, and delivery, were all done at the same time. This appears from the testatum clause of the deed, and from the attestations of the subscribing witnesses. The signing and sealing are one act, done at the same time. The signature adopted the seal already prefixed, and made the same the seal of the grantor; so that, in point of fact, there could be no separation. If the signing was done voluntarily, it is impossible the sealing was not equally so. What does the certificate show ? That Mrs. Canby united with her husband and acknowledged both the signing and sealing. When separately examined, she said the act thus done was her voluntary act and deed.

It is easy to see how all this actually occurred and to understand what it all meant. No man unlearned in the law, if of sound sense, reasoning fairly, and untrammeled by technicalities, would ever1 come to the conclusion that Mrs. Canby * did not mean to acknowledge the execution of the deed, or that the magistrate had not so certified. Apart 'from legal subtleties, and guided by the '.lights of sound logic; every man would-:come to the same conclusion, and.would "assert, that by .no possibility coiild any evil arise from .holding such a certificate to be a full compliance with the statute ^ full' evidence' that the sealing, as - well as the signing, was acknowledged* We think the deed is well executed to "pass .the title of Mrs. Canby, and will next consider whether the descriptive words of the instrument embrace the land'in controversy.

The land.is thus'described: “All our right, title,"claim,.in? ‘ terest, property or demand, of,"'.in and to all real estate which"' ‘ had fallen^ or may- "fall" tp .us, hr either‘of us', as heirs of legal .‘representatives "of" Marquis- He Lafayette "Hajnes, deceased,’- ". ‘ pr of Amos ..Haines,- deceased.”' , -

' Numerous' authorities, have been" adduced,, in "the hope of. satisfying, us “ that this .deed is so" general,in its- terms, it, em- ‘ braces' nó land whatever," ".and .is, therefore void, for uncertain- - ‘ ty, and cannot be made to pass title to any lands, without ex- ‘ trinsic evidence-is. resorted to.” The-terms."of the deed are ample; They are such as may be readily comprehended, and speak an-intention pn the part of the grantor that admits of no doubt. Whatever title, legal of equitable, descended to the grantors, .or heirs of the two Haines, passed by the conveyance.' Plainer words, pr more apt to express that intention, could not be found. Extrinsic evidence in such a case can only be to-identify . the. land ■ embraced by- the description. It should show lands "to' which either of the decedents had an equity. The deed transferred’-it. So if the deceased had, as in this case, a naked legal title, that also passed. Right, title, claim, interest., or property, are words of -a most cqmprehensive meaning. Here they are disjunctively connected, and embrace every thirig that came by descent to the grantors.

One more objection to this deed remains to be disposed of. It is said the magistrate, in taking the acknowledgment of Noah and Nathan Haines, has not affixed his seal. If this were so, the deed would be well executed under the- existing state of the law. The second section of the statute (Swan’s Stat. 269) declares, that the deed shall be held sufficient to pass the legal title, notwithstanding the omission. The words are, “ shall be good and valid in law and equity.” The statute purports to act retrospectively — not to create title where none existed before, but to make that a good title which the parties themselves meant to make good, by dispensing with a part of the form required of the officer, and by him carelessly and negligently omitted. This statute has been repeatedly under the examination of this Court upon the circuit, and has received the sanction of all its members, as a law of binding force. It violates the obligation of no contract, divests no vested right; but on the contrary supports a contract fairly and honestly made, and such an one as a court of chancery would have enforced.

Again: does this question of law arise upon this deed? The magistrate commences the certificate of acknowledgment thus:

The State op Ohio, v £ Warren County, ss. > £ [seal.] ' Personally,” &c.

And at the conclusion signs his name. ' The law has not made it the duty of the officer to place his seal at the end of the certificate, immediately after his signature ; and, I take it, the seal placed as this is, is his seal, so that, in point of fact, no such question as the one last disposed of could have been forced upon us, or would have been decided, but for the desire of the parties to have settled every question which, by possibility, can be raised upon plausible grounds, touching this title. It has been much litigated already, and they have no reason to expect peace until they have a decided opinion upon every question agitated in the cause. The deed of Robert Haines is not objected to, except so far as the description is concerned. In this respect, it is like the deed of Noah and Nathan Haines, and of Can by and wife. Four-fifths of the legal title, then, by by these deeds, became vested in James T. Johnston. Before the title so vested, he had conveyed to Edward Barton, jr., with the usual covenants of warranty. Upon principles of established law it would be held, under ordinary circumstances, that this after acquired title would inure to the benefit of the prior grantee, and vest in Edward Barton, jr. a good title by the doctrine of estoppel. Johnston could not recover against him and defeat a title that he had covenanted to defend against all claims whatsoever; and, if he could not, neither can the plaintiffs’ lessors, claiming under subsequent deeds from him. We must, then, look to the arguments relied upon to exempt this case from the operation of the general rule. In the first place, it is said Johnston undertook to convey as the attorney of Haines’ heirs, and the warranty was made by mistake. The mistake consisted in this only: He supposed the. authority executed to him by the heirs of Haines, placed the title in him, and the dower estate of his wife being in him, that he had the power to vest in Barton, jr. a sufficient title in fee, and that his deed effected that object. He was mistaken in supposing that an invalid instrument was good for something — mistaken in the legal effect of his conveyance. He was under no mistake in supposing Barton- entitled to a good and sufficient warranty deed. This is shown by the title bond of .the elder Haines, .upon which full payment had then been made, and by-the direction of the elder Barton, to make the deed to his son. If the deed, thérefore, by operation of law, under the circumstances, passes the title and vests it in Barton the younger, it only 'carries into effect'the intention of the parties, including grantor, grantee and the owners of the legal as well as of the equitable title. The mistake, for- this reason, must be laid out ■ of view. Again, it is said that the doctrine of estoppel does not apply, because the after acquired title of.-James T. Johnston was received by him as trustee for the heirs of the elder Barton, and that the case is. within -the principle of the decision in Birchard v. Hubbard et al., 11 Ohio Rep. 316. Now, I admit, that after a contract of sale and the payment of the purchase money, the holder of the legal title holds it as trustee for him who is entitled to the deed in fee. That person was Edward Barton, jr. The case in 11 Ohio Rep. is, also, admitted to be good law. But their application to the state of facts now before us is not so very palpable as plaintiffs’ lessor, in his argument, professes to believe. Barton, the elder, was the original contractor for the land; he purchased and paid for it, and, when his right to a deed was perfect, directed the conveyance to be made to the son, Barton, jr., and it was so made, in execution of the trust, by order of the cestui que trust. Now, in all soberness, wherein was there a violation of the trust ? Had not the real owner of the land a right to order the deed to be made to the son, or to any one else ? When his order or his request has been complied with, does it lie in his power or in the power of his heirs to complain that the trustee has violated the trust ? The heirs, and those claiming under them, could take no greater or other equitable or legal right than their ancestor proposed. He possessed none, for he had, in 1823, given up his bond for the use of his son. The statement of the proposition is sufficiently plain to show what must be the law of the case. It needs no other illustration.

The next objection shall be stated in the words of plaintiffs’ lessor:

“ If E. Barton, jr., obtained any interest, however small, un- der this deed, there is no estoppel.
“For the present argument, then, I assume that nothing £ passed to E. Barton, jr., under the deed from Johnston and ‘ wife to him. That deed is dated 30th of May, 1823. Under ‘ that, Edward Barton, jr., obtained no interest whatever in the £ land. On the 19th of June, 1824, Robert Haines made the £ deed to James T. Johnston. Here, then, for upwards of a £ year after the making of the deed, Edward Barton, jr., held no interest whatever in the land. The deed, during all that £ time, was inoperative as a conveyance. The proof is — and £ on this subject there is no dispute, and never has been — that £ the deed was made to defraud the creditors of Edward Bar-* c ton, sen.
“ And the question now is, does the doctrine of estoppel apc ply so as that the law will give life and power to such a deed, £ by £perfecting ’ the title of the grantee, or 'will the law leave £ the parties where it found them ?”

To this point a vast number of authorities have been referred to and read. Without controverting the authority of any one of the cases, we will give a direct answer to the question here propounded; and one that is consistent with every case of sound law to be found in the books of reports, as well those cited, as others that might, have been. Wherever a conveyance has been made to defraud creditors, of either an equitable interest in lands or of a legal estate in lands, the law will leave the parties just where they have placed themselves. It will not permit either to be heard, to avoid the fraudulent act, by showing his own fraud; nor will it permit the heir to avoid the act of his ancestor, by proving the fraud of the ancestor, under whom he claims.

Let us apply the above principle to the facts of this case. The elder Barton fraudulently gave over his contract, by which he held an. equitable title, and caused Johnston to convey the land to his son, by warranty deed; whereas; if ho had been an honest man, and taken the conveyance to himself, he now would have had a good title, by operation of law. Johnston was not a party to the fraud. He did as he was directed; and what the father should have received, the son, by his fraudulent directions, took. The law leaves both where it found them, and operates upon their acts the same as if good faith and honesty had governed their conduct throughout the iniquitous transaction. By so doing we do not sanction the fraud; we merely prohibit the heirs from taking advantage of the sins of their ancestor. The fraud was directed against creditors; they are not before us. Were we to permit the fraud to defeat the estoppel, then we should be liable to the charge of having interfered in aid of one of the parties, but not otherwise. Another ground taken by plaintiffs’ lessor, is, that a fraudulent conveyanee is void, under our statute, as between the parties. It is admitted, in argument, that this point has repeatedly been ruled to the contrary. It may be due to the counsel to notice it, however. Suppose, as he contends, that the settled rule of construction encourages the fraudulent grantee to cheat his grantor; the answer is, that, as between the parties, the deed must be held valid, for a contrary rule would enable the fraud1ulent grantor to come into Court to establish his own crime, in avoidance of the deed. Against which practice, we have seldom seen a stronger array of authorities and argument, than has been furnished us in this very case by the plaintiffs’ lessor.

It only remains for us to consider the nature of the title, by possession. Edward Barton, sen., was placed on the land in 1817, in virtue of a contract, which was complied with by pay•ment. Since that time his possession, and the possession of those who have claimed under him, has never been tortious. In 1825 he caused the conveyance, before spoken of, to be made to his son, Edward, jr. While living he treated him as the owner, as having succeeded to all of his rights, and recognized him as the landlord, himself as the tenant. To all of his rights the heirs of Morris have succeeded. This makes for them a possessory title of upwards of twenty-one years, prior to 1843, upon the principles claimed on behalf of the plaintiffs’ lessor. For it is in proof that Edward, jr., was on the land, and that his father recognized him as the owner of whatever rights he once had under the Haines contract, from the day that J. T. Johnston executed, pursuant to his directions, the defective conveyance, in 1823. This was established on the trial at law, and by the decree dismissing the bill, which was filed to enjoin Morris’ judgment in the action of ejectment. Shall the naked legal title, now outstanding in the' heirs of Mary McKay, be allowed to defeat this long possession of the equitable owners, and of those under whom they claim, even if the statute, of limitations is not a bar ? We answer in the negative. The possession taken under the title-bond was lawful, not tortious. Nothing has occurred to take away this right, which is in the heirs of Morris, and out of the plaintiffs7 lessors. They cannot recover upon a naked legal title, without a legal possessory right. To sustain this point the authorities cited are ample.

The plaintiffs7 lessors, however, claim that this last principle, properly applied to the facts before us, would entitle them to recover an undivided portion of the land in controversy, under the deeds from McKay’s heirs. We do not expect to be able, to convince them of their error at present; but in order that our view may be fairly understood, I make a brief restatement, which may enable them to see how far we go with them, and! to comprehend the points where, and the ground upon which we separate.

To this end we will examine, with some minuteness, thé extent of the equitable title held by the heirs of the elder Barton. He, in his lifetime, with a view to defraud his creditors, delivered over his contract, and directed a conveyance of the entire title, both legal and equitable, to be made to his son. This act bound him during life; though fraudulent as to creditors, it was good and binding between the parties. It said efficiently for him, I have transferred my equity in this land to my son ; and had he lived, he would never have been permitted to gainsay it. His residence upon the land afterwards, were there no other fact in the case, would be regarded as the occupancy of the son. As between the father and son, he must have been held the tenant of the son, occupying by his permission and sufferance, because this would be the result of such cionduct on their part, assuming that both acted honestly, and because the Court would not listen to proof offered by either to show that the transaction was fraudulent. As between the two Bartons, the father had done an act in his lifetime which estops both him and those holding under him as heirs, from denying that, at his death, all the equitable interest in the land was vested in the son. His heirs hold just as their ancestor held, and can claim nothing which he could not have claimed. The deeds from the heirs of McKay,- passed to them nothing more than a naked legal title, subject to the equities arising under the contract, and the long continued possession of those entitled to that equity, or who in law.represented it. It is very evident that the plaintiffs’ lessor has been under a great mistake in the application of the facts to the law of his case. While he states the latter generally with much accuracy, there is a strange misapplication of the former. He even assumes that the plaintiffs’ lessor, claiming under the heirs of the elder Barton, held a title by adverse possession since 1823, the date of Johnston’s deed, up, to the time the heirs were ejected by Morris-under the deed from the younger Barton, in 1836; and throughout his argument upon this part of the case, overlooks entirely the fact that, in 1823, Edward Barton, senior, gave up his contract to Johnston, surrendered thereby the equity to his son, treated his son as the owner, and, supposing Johnston authorized to convey the legal title, directed him to convey to the son; that he did convey; and the son, to the time of the father’s death, refused to release or' reconvey; although he permitted the father to remain on the land while he lived. He also assumes that all the equitable title remained in Edward Barton, senior, after-his fraudulent surrender, and the conveyance made by his direction, while we hold that he cannot show a particle of equity without showing the fraud; and, as a mat-of law, counsel admit, that to permit him to do that would be grossly erroneous.

I have endeavored to make our views known. They are satisfactory to ourselves, and with that we must be content.

Judgment for Defendants.

N. B. — An application for new trial and reargument, was made by Mr. Jolliffe, which was overruled.


source: Caselaw Access Project

author: Read, J.

license: Public Domain

text:
    In Bank.
    Dec. Term, 1846.
    Andrew Arbuckle’s Executors vs. Benjamin F. Tracy’s Administrators.
    If notes be delivered to an executor to indemnify the estate against a liability where the testator was a surety, such notes and the money collected on them are not the property of the estate, and the estate is not liable for the misconduct of such executor, in respect to such notes and money.
    Under such circumstances, the executor is a trustee for the person delivering the notes, and he alone is responsible for a faithful application of the money collected.
    This is a Case in Chancery reserved in the County of Lake, and comes before this Court upon bill, answer, replication and testimony.
    The facts disclosed are these : June 30, 1829, B. F. Tracy, Charles M. Reed and Samuel Hayes became sureties for Andrew Arbuckle, on a note, in the sum of $559.11, and on the 25th April, 1833, they also became his sureties on another note in the sum of $689.29, on both of which notes there are now judgments against said Tracy’s estate. Arbuckle’s estate has paid about $700 on said notes, leaving from $1,000 to'$2,000 now due. Tracy died January 5, 1834, and by his last will and testament appointed V. J. Card his executor, expressing the wish that he “ should take the whole management of settling his affairs and estate,” and giving him “ full power to settle each and every demand in Jaw and equity.” Card accepted the trust, gave bonds, and acted as executor until April or July, 1840, when, his account having been filed and approved, he resigned, and respondents, Foote and Russell, were appointed administrators de. bonis non. After said notes became due, and before suit upon them, to wit, April 9, 1835, Arbuckle, whether at the instance of Card or of his own mere motion does not appear, placed in Card’s hands sundry notes amounting to the sum of $396.08, and took from him a receipt, as follows: “ Received of Andrew Arbuckle the notes, ‘ of which the foregoing is a list, as collateral security to indem- ‘ nify me as executor of the last will and testament of Benja- ‘ min F. Tracy, deceased, against the payment of two certain ‘ notes,” describing them, and adding: “ Now, if the said ‘ Arbuckle shall save harmless the estate of the said Tracy from ‘ the payment of the notes specified in the receipt, and so 1 signed by the said Tracy and others, as aforesaid, then I am ‘ to account to the said Arbuckle for the notes received of said ‘ Arbuckle, ás per the foregoing list. Dated April 9th, 1835.” Signed “ Vavnum J. Card, Exr. of Benj. F. Tracy.”
    Of these notes, Card collected part, using his name as executor, and, by reasonable diligence, might have collected most of the balance; but no part of said notes or of the money collected thereupon ever came to the use of Tracy’s estate, or was applied for its benefit, or in any way intermingled with its assets. Card’s account, filed, showed him largely indebted to Tracy’s estate, but embraced none of the collections from these notes. Card died intestate, September 1, 1840, and Backus is his administrator. Tracy’s estate is solvent, Arbuckle’s probably so, and Card’s utterly insolvent.
    The object of the bill is to subject the estate of Tracy to the payment of the money collected by Card on the notes placed in his hands by Arbuckle.

      Perkins &/■ Osborn, for Complainants.
    Card, the executor of Tracy, in procuring and- receiving the notes of Arbuckle to indemnify the estate, was acting within the scope of his authority, as executor, and in the faithful performance of his duty. It was his duty to protect the estate from loss, and, if possible, procure an indemnity; Off. of Ex. 171, note 1, It would have been his duty, if necessary, to have filed a bill, in chancery for that purpose, and he might as well receive the indemnity without suit as with. Stump v. Rogers, 1 Ohio Rep. 225; 1 Law Lib. Prin. & Sur. sec. 245.
    An executor has large discretionary duties. He may exchange securities; he may continue the business of the testatorj and . do'many other acts for the benefit of the . estate. Ex. .116; Toller’s -' Ex. 164;. Off. of Ex. 174,187; Williams on Éx. 1177. ' ... " '
    . An executor is regarded as the agent and trustee of the estate, and, when- acting within the limit of his- powers, the estate' is bound for whatever he does. Within this limit he received these notes, arid, consequently, and' especially, as the estate of Tracy has never paid any thing for Arbuckle, it is bound to refund the amount with interest.- . Tanksley v. Anderson, 4-Dessau. 44 ; 2 Bar. & Har.' Dig. 396. See, also, Tousant v. Martinant, 2 Tenn. Rep. 160, and Crawley's Assignee v. Dunlap et ah, 7 Tenn. Rep. 565. . ■

      H. Footer for Defendants.
    The notes were not placed in Card’s hands on any contract therefor, express or implied, ‘ between Tracy and Arbuckle. Had Tracy contracted with Arbuckle for the. notes afterwards delivered; as collateral security against his becoming' surety,- it would have placed the matter on entirety' different ground. But Card acted on his own responsibility. ■ His naming himself as executor, does not - change the character of the transaction, McCoy v.' Gilmore, 7 Ohio Rep. 268, part I.;' Waldsmith v. Waldsmith, 2 Ohio Rep.. 156.
    It is not competént for Card, as executor, of Tracy, to originate liabilities or make contracts to bind the estate, under pretence of taking security against a contingent liability: ' Forster v. Fuller, 6 Mass. Rep. 58; Thatcher v. Dinsmore, 5 Mass. Rep. 299. ' ,
    >It .was no part of his duty to receive the notes of Arbuckle. It was not settling up the estate. It was not getting rid of liability, but prolonging it. Swan’s Stat. 877.
    Under the. arrangement made between Card and Arbuckle, Card, became the agent and trustee of Arbuckle. He was trusted by Arbuckle in a matter beyond the sphere of his official duties, and is, therefore, only responsible to Arbuckle in his individual capacity.
   Read, J.

Tracy was security for Arbuclde. It was the duty of Arbuckle to discharge the original debt. Tracy was liable only collaterally. Arbuckle, on the decease of Tracy, delivered over to Card, his executor, the note in question, as indemnity or collateral security. When collected, the money did not belong to Tracy’s estate, but was to be applied to discharge the debt of Arbuckle’s estate. Neither the note nor the money collected belonged to Tracy’s estate, but was held in trust to be applied to the benefit of Arbuckle’s estate. Card was a trustee or agent for Arbuckle, and was to account to Arbuckle. Hence, if he violates.his trust or'duty as agent, the loss must fall upon Arbuckle. It would be a novel principle, indeed, to permit Arbuckle to constitute Card his agent, to do exactly what in law he was bound to do, and then hold Tracy’s estate bound for the faithful performance of the trust by Card. If Card had collected any money, and applied it to the benefit of Tracy’s estate, to that extent the estate would be liable; but this is not pretended.

Bill Dismissed.


author: ' Read, J.

text:
    Lessee of Benjamin Paine vs. Bazaleel Mooreland.
    A person executing a defective deed for the conveyance of land, which deed has not been recorded, has an interest in the land capable of being attached.
    If attached and sold as the property of the vendor, a purchaser, without notice of the equity, lakes a good title as an innocent purchaser without notice.
    The Court acquires jurisdiction in attachment, by the issuing of process, predicated upon the requisite affidavit, and the attaching of the property 3 and if, after thus obtaining jurisdiction, the Court proceed to render judgment, without the publication of notice, such judgment is not void, and cannot be impeached collaterally, but must be reversed upon writ of error.
    This is an Action of Ejectment, reserved in the County of Licking, and is submitted to the Court upon the following agreed statement of facts :
    Both parties claim title under David Letts, the grantor of one William Farmer, who held the legal title. The deed from Farmer to Letts is the last deed in the chain of title on record, Letts conveyed to Lewis Nichols. This deed is not on record; and neither Nichols nor any of his grantors were ever in possession of the land. On the 25th of October, A. D., 1831, Nichols, then residing in the State of New York, attempted to convey the land in controversy to Benjamin Paine, the lessor of the plaintiff, and at the same time delivered over to Paine the recorded deed from Farmer to Letts, and the recorded deed from Letts to Nichols. The conveyance from Nichols to Paine proved defective for the want of a seal. This mistake was corrected by the decree of the Court of Common Pleas, in Chancery, in 1839, perfecting the title of Paine as against Nichols. The defendant, Mooreland, was then in possession of the land, and was not made a party to the proceedings in Chancery. The execution of the unrecorded deeds is admitted.
    In Bank.
    Dec. Term, 1846.
    The defendant claims under proceedings in attachment agáinst Nichols. On the 20th of June, 1832, (over eight months after Nichols attempted to convey to Paine, and delivered to him the unrecorded title papers,) an attachment was sued out against Nichols by one JohnElder, and this writ was returned by the sheriff with the following return indorsed, to wit: “Attached the following described property, viz: All ‘ that tract or parcel of land, lying and being in the county of ‘ Licking, and State of Ohio, in rango twelve, township three, ‘ and section 1, the south half of lot number —, except twepty ‘ acres, to be taken out of the southwest corner of said half ‘ lot, commencing at the southwest corner and running north ‘forty rods; thence east, so far as to contain twenty acres; ‘ which said twenty acres of land was sold to Bazaleel Moore- ‘ land by the defendant Nichols.” At the March term of the Court of Common Pleas, 1833, a- judgment was rendered under this attachment, by default, for $72.21, debt, and $9.50, damages and costs.
    After the rendition of said judgment, and on the 6th day of July, A, D,, 1833, a writ of execution was issued, called a fieri facias et livari facias, against Nichols, and upon the return day of said writ, the sheriff returned the same, with the following return indorsed, to wit: “ Received this writ July 19, £ 1833. No goods. And in pursuance of the command thereof, £ I, on the 29th day of July thereafter, levied on the following £ described tract of land, to wit: Lying and being in the ‘ county of Licking, and State of Ohio, in range twelve, town- £ ship three, and section one, U. S. M. land, bounded on the £ north by land of Theodoric Warthan, on the west by lands £ Bazaleel Mooreland, on the south by lands of Joseph King, £ and on the east by lands of-, containing one hundred £ acres, more or less;” and after setting forth in said return, that he caused said land to be appraised and advertised for sale, according to the statute, &c.,'he further sets forth, “that on £ the third day of September thereafter, at the tíme and place, £ &c., I offered the same for sale at public outcry, when John £ Elder bid therefor the sum of sixteen dollars and sixty-seven £ cents; and that being two-thirds of the appraised value £ thereof, and no person appearing to bid any larger sum, the £ same was publicly struck off and sold to the said John. Elder, £ for the sum aforesaid.” And afterwards, at .the September term, A. D., 1833, the following entry, is made upon the journal, to wit:
    “ John Elder, 7 vs. > “ Lewis Nichols. J Order for deed same as above.”
    This entry is made on the journal, under similar order, in another case, written out in full. The sheriff afterwards conveyed to John Elder the tract, as it is described in the writ, through whom the defendant Mooreland derives title.
    John Elder, the purchaser and plaintiff in attachment, had no notice, prior to the attachment, of the attempted conveyance to Paine.
    It is admitted that the defendant is prepared to prove, by parol, that the land supposed to have been taken by the sheriff, under the writ of attachment, is part of the same tract that was afterwards levied on and ■ sold under the execution issued the judgment in attachment; -the land supposed to be attached is the same tract now in controversy. It is also admitted and understood, that the record and papers in the attachment suit, and the deeds and papers in the possession of the lessor of the plaintiff, and the record in the suit in.chancery in the Common Pleas Court, of Paine v. Nichols, are all admitted in evidence, and to be considered as part of this agreed case, reserving all questions touching the admissibility of the record in the chancery suit of Paine v. Nichols, as evidence in the cause. • •
    It is also agreed and understood to be admitted, that the deed made by the sheriff, under the order of the Court, in the attachment suit, to John Elder, the purchaser, was executed and delivered on the fourth day of November, A. D., 1834, and was received for record and recorded (Book W. p. 553,) on the 23d day of January, A. D., 1836.
    The proceedings in attachment, under which the defendant derives title, do not show that any notice of the pendency of the suit in attachment was given, as the statute requires.

      Geo. B. Smythe, for Plaintiff.
    First: At the time of the attachment, Nichols, in fact, held but the naked legal title, in trust for Paine. This trust estate was not subject to execution, against the trustee; 1 Ohio Rep. 258. It is not sought to disturb the principles decided in Scribner v. Lockwood, and Parker’s Lessee v. Miller, in 9 Ohio Reports; but they surely have carried the law far enough. Here the purchaser was not injured by the non-recording of the deed, because if he went to the record for information, there were other defects in the claim of title, as well as this.
    The act under which this land was sold, provides that it shall be sold “ under the same restrictions and regulations as if the same had been levied upon by execution.” A sale on execution “ shall vest in the purchaser as good and as perfect an £ estate in the premises-therein mentioned', as was vested in'the ‘ party at or after the time when the lands became liable,” &c. Nichols at the time of the. attachment, as before stated, was not vested of an estate. Swan’s Stat. 476: -
    Second: There was no notice of the pénden'cy of the proceedings in attachment,' as required b.y the statute, without which the Court had no1 jurisdiction. This was not a proceeding according to the course of the. common law. It. was a proceeding under the -statute, affecting, title to real estate.— Hence the provisions of the statute must- be fully complied with; Adams’ Lessee v. Jeffreys, 12 Ohio Rep. 271; 13 Mass. Rep. 73. But the precise point made here has been decided, as-contended for the-plaintiff, in Warren v. Webster et al., 13'Ohio Rep. 506. , . .' ' - .
    It may be said this is a proceeding in- rem, and therefore the land is bound, by the action of the Court. It is tfue the form of the proceedings is in rem, but they are not effectual to charge the land, till aftér there is a judgment in personam.
    Third: The returii upon the attachment is too vague to cover any particular land, and parol evidence is inadmissible to prove what land was actually attached. 4 Mass. Rep. 205; 7 Johns; Rep. 217; 4 Mass. Rep. 196; 5 Wheat. Rep. 359; 4 Peters’ Rep. 350; 13 Johns. Rep. 77; 3 Ohio Rep. 272; 'Wright’s Rep. 768; 1 N. Hampshire Rep. 93; and 5 Ohio Rep. 459. , ■ . ' • . ; '
    .Fourth.- The sale by the sheriff conveyed no title, for the reason that- no correct process was issued, upon which the salé was made. The statute required that an ordev should' issue ;. the process issued was a fi. fa. This' Was void for the want -of ' power to issue it,, and of course all proceedings' tinder it are void. 1 Ohio Rep, 466; 9,Ohio Rep. 112. '

      King, for Defendant.
    The plaintiff makes four objections to the defendant’s title —
    . First ':1 That-at .the'time .of issuing the ¿t-tachment, Nichols held but the naked legal title-in trust for Paine.

      Second: That the proceedings in the attachment were void for the want of the requisite notice.
    Third: That in consequence of imperfection in the description of the land attached, the levy was void for uncertainty.
    Fourth: That the process under which the sale was made, was void.
    First: It is believed that the decision of this Court, in the case of the Lessee of Parker v. Miller, 9 Ohio Rep. 108, is a complete answer to the first objection. It is claimed that there is a difference between this case and the one referred to in this particular, to wit: that the title of Nichols, the .defendant in the attachment, did not appear on record, and that therefore the attaching creditor was bound to look after his title papers, which, being in the hands of the plaintiff, would have led to a discovery of his rights. The force of this reasoning is not . perceived.
    Second: To the second objection, that the proceedings in the attachment were void for the want of the requisite notice, we reply, that the proceedings cannot be thus collaterally impeached, unless the omission to give notice goes to the jurisdiction of the Court. Now, it is clear that the jurisdiction of the Court was complete, provided the requisite affidavit was made, and the property of the defendant in the attachment was seized. It is a proceeding in rem, and unless some property of the defendant can be found the jurisdiction fails. The Court, on the filing of the proper affidavit, is required to issue its writ; and if any thing can be found for the writ to act upon, the jurisdiction is obtained. In the case of Mitchell v. Eyster, 7 Ohio Rep. 257, it was held “ that the fact of indebtedness of the ‘ defendant, • his non-residence, and the actual levy upon his c property, gave jurisdiction.” And, in the case of Voorhees v. Jackson, 10 Peters’ Rep. 449, it was decided, “ that the ‘ want of evidence of publication upon the record was, at most, ‘ but error, and did not vitiate the proceedings.”
    It must be manifest, that the jurisdiction of the Court is acquired before the notice is required to be given. Parker’s Lessee v. Miller, 9 Ohio Rep. 113.

      In the case of Lessee of Adams v. Jeffries, 12 Ohio Rep. 272, the Court use this language: “ After jurisdiction is once { acquired, however irregular and erroneous their proceedings ‘ may be, they cannot be collaterally impeached, and they con- ( elude all parties, unless annulled by certiorari or appeal.”
    Third : To the objection, that the levy of thé writ of attachment was void, for want of certainty in the description of the property, we answer: The question of identity is always a matter for parol proof, and it is admitted, in the argued case, that such proof can be made, and that it is, in fact, the same land.
    The case of The Lessee of Mathews v. Thompson et at, 3 Ohio Rep. 273, settles this point. The levy, as indorsed on the writ in that case, was, “ upon one hundred acres of land in section 4, township 7, range 4,” with no further description. The Court held, “ that the return ought to have been so specific 1 as to enable the purchaser to ascertain the land which he * purchased with certainty. This defect, however, may be 1 supplied by parol testimony .” In the same case, it was said by the Court, “ that a variance between the levy and the de- ‘ scription in the (sheriff’s) deed might also be explained by ‘ parol.” “ If the levy was actually made on the tract contained { within the boundaries set out by the deed, and the fact was ‘ known and understood at the time of the sale, no injustice * has been done.” “ An innocent purchaser, under such eirc cumstances, ought not to suffer by the careless manner in c which the officer has stated his proceedings, if, in point of ‘ fact, they have been substantially correct.” 3 Ohio Rep. 274. ■
    Fourth : The last objection is, that the process upon which the sale was made, was void. The statute requires the property attached “ to be sold by order of Court, under the same ‘ restrictions and regulations as if the same had been levied in ‘ executionCollated Stat. 92. This, we claim, has been substantially done. The fi. fa. issued by the clerk was the order of the Court on which the sale was made. The Court acts by its clerk, and the act of the clerk was the act of the Court. If such proceeding was not strictly formal, the thing, nevertheless, intended to be done was done, and no injustice was done to any one. After the confirmation of the sale by the Court, and deed ordered to the purchaser. it surely cannot be held that such irregularity would affect the title.
   ' Read, J.

Both parties derive title from Nichols — the plaintiff by direct purchase, and the defendant under a sale in attachment. The deed to Paine was defective, for want of seal. Its date was the 25th of October, 1831. This defect in the deed was barred by decree in chancery against Nichols, in the year 1839. This deed was not put upon record. Eight months after.its execution and delivery, to wit, on the 20th of June, 1832, a writ' of attachment was sued out against Nichols, at the instance of John Elder, and such proceedings were had in this suit, that the land conveyed to Paine was sold, bought by Elder, and, subsequently, by competent conveyance, transmitted to defendant. The judgment in attachment remains unreversed, and the defendant was not a party to the suit against Nichols, to correct the deed; and, at the time of the purchase under the attachment, Elder had no notice of Paine’s equity.

The determination of the following propositions must dispose of this cause :

1. ’ Had Nichols an interest in the land subject to attach- ■ ment ?

2. "Were the proceedings in attachment void ?

If Nichols had no interest in the land, or if the proceedings ; in attachments'were void, then the plaintiff must recover. But, i if he had‘an attachable interest, and the proceedings in attachment are not void, the defendant must recover.

As to the decree in chancery, perfecting the title from Nichols to Paine, it is of no binding effect as to the defendant, as he claimed title to the land and was in possession at the time suit was brought, and was not made a party. Yet, the proceedings in such suit were competent evidence; as in one aspect ■of the case, to wit, if the proceedings in the attachment should be held void, it would warrant a recovery, as the plaintiff must recover upon the strength of his own title, and show that he had acquired the legal title from Nichols. Beyond this, the chancery proceeding can have no effect. As to the question, whether the land was subject to attachment as the property of Nichols: Nichols was the admitted owner of the land, unless he had divested himself of title by the conveyance to Paine. It is not contended that the defective deed to Paine transferred to him more than an equity. Nichols was still clothed with the legal title, and had the power to transfer the whole interest in the land to any person purchasing for a valuable consideration, without notice. In fact, he' was the true owner, so far as third persons were concerned, without notice. It would not be contended, that, had lie made sale to an innocent purchaser, without notice, that it would not have transmitted the whole title. Purchasers at judicial, sales, without notice, are treated as innocent purchasers. They fall within the same principle of protection that is extended to private purchasers. Hence, the land was subject to attachment, as the property of Nichols. This doctrine is settled in numerous reported decisions. Lessee of Parker v. Miller, and Scribner v. Lockwood, 9 Ohio Rep.

Are the proceedings in attachment void ? It is contended they are void, because no notice of the pendency of the attach-' ment was given, as required by the statute. If the jurisdiction of the Court once attached, subsequent irregularities would render the judgment voidable only; and it would remain valid until reversed, and cannot be impeached collaterally.

What, then, gives the Court jurisdiction in a proceeding in attachment ? The filing the proper affidavit, issuing the writ, and attaching the property. The moment the writ goes into the hands of the officer, he is authorized and required to seize the property. When this is done, the property is taken out of the possession of the debtor into the custody of the law. The Court have authority, at any time after the return of the writ, to direct property of a perishable nature to be sold. It is not until after the return of the writ that the clerk is directed to make out the advertisement, which the plaintiff is required to have published, as the statute directs. If he neglects to have such notice published, for six weeks successively, the statute directs that the attachment shall be dismissed with costs. Here, then, for a period of six weeks, at least, if the publication of the notice only gives jurisdiction, the Court both have, and have not jurisdiction over the property seized in attachment. It is contended the Court has no jurisdiction, and yet the statute authorizes the Court to exercise a judicial act over property attached, namely, to determine whether it is perishable, and if so, to direct its sale.

Will it be contended, then, that the Court has jurisdiction over perishable property before notice consummated, but not over property' not perishable ? This is a distinction not authorized by the .statute. A court acquires jurisdiction by its own process. If the process of the Court be executed upon the person or thing, concerning which the Court are to pronounce judgment, jurisdiction is acquired. The writ draws the person or thing within the power of the Court; the Court once having by its process acquired the power to adjudicate upon a person or thing, it has what is called jurisdiction. This power or jurisdiction is only acquired by its process. To give jurisdiction is the object of process. The mode of executing or serving process, is sometimes directed or permitted to be by notice by publication. All process issues under the seal of the Court. Notice'by publication is not process, but, in certain cases in contemplation of law, is equivalent to service of process. The process in attachment is the writ authorizing and directing a seizure of the property. No process is issued against the person; because the proceeding is in rem. The statute, however, regards it but just that notice should be given to the debtor, not for the purpose of giving the Court jurisdiction over the subject matter, but to permit the debtor to have an opportunity to protect his rights, and directs that the writ shall be quashed if it be not given. The distinction is between a lack of power or want of jurisdiction in the Court, and a wrongful or defective execution of the power. In the first instance, all acts of the Court not having jurisdiction or power, are void — in the latter, voidable only. A court, then, may act, first, without power or jurisdiction, second, having power or jurisdiction, may exercise it wrongfully; or, third, irregularly. In the first instance, the act or judgment of the Court is wholly void, and is as though it had not been done. The second is wrong, and must be reversed upon error. The third is irregular, and must be corrected by motion. The latter is where the power is rightfully exercised, but in an irregular way. Hence there is a vast distinction between a defect of power, a wrongful exercise of power, and an irregular exercise of power.

Now, what happened in this instance ? The Court had the power, by the service of its process, to proceed and give judgment ; but a circumstance occurred after having acquired such power, which forbid them the exercise of it; but having it, they did exercise it, which was error. But it can only be corrected by a writ of error. Such appears to have been the decision of the Court in Parker v. Miller, 9 Ohio Rep. 108, and cases there cited. The case in 10 Peters’ Rep., Voorhees v. The Bank of the United States, recognizes these principles.

It is true that it has been decided, in Warner v. Webster, 13 Ohio Rep. 506, that a judgment in attachment, if notice had not been given, was void. That case was rightly decided, although a wrong reason was assigned. The truth is, in that case, an equity was attached, when the statute under which 'that proceeding was had, only authorized an attachment against a legal estate. The process, therefore, not having been executed upon a subject matter within its rightful action, brought nothing before the Court upon which they had power to act, and, therefore, the judgment was void for want of jurisdiction.

But it is contended that the purchaser under the sale bond in the attachment, took nothing, because the sale was upon a fi. fa., and not an order of the Court. The act allowing and regulating writs of attachment, of June 24th, 1824, directs that, after judgment, the property attached shall be sold by order of the Court. It is contended that, in this case, the land was not sold by order of the Court, and, therefore, that the officer making sale, had no power to sell, and that hence the sale did not divest Nichols of the legal title. Judgment had been rendered against the debtor in attachment, to be satisfied out of the property attached, if there was sufficient, and if not, execution could issue for the residue, as in other cases. A general execution issued in the first instance, which would have authorized the sale of any and all property of the judgment debtor, other than that attached. The officer making the sale, hence, was clothed with power to sell; the difficulty was, not defect of power, but too much power. In its exercise, however, he conformed strictly to the limitations of the statute, and sold only the land seized in attachment. The Court failed to restrict the power of sale, conferred upon the officer by the general writ; but, on the return of the writ, finding that the power of sale had been rightfully exercised, the act of the officer was recognized as right, and the sale confirmed. We regard this as a mere irregularity. And it is doubtful, even, whether the Court, had motion been made to correct it, and the confirmation of sale had been resisted on that ground, would have entertained the motion, for the reason, that no one had sustained any injury by the irregularity. All had been done which should have been. The general power of sale had been limited by the act of exercise, although not restricted by express order. To have set the sale aside for this ground, would have been to create the delay and expense of having the same thing done over again, precisely as it had already been done. This is not at all like the case of executors and administrators. The power to sell the land here results from the judgment. The order of the Court is merely to restrict and direct the execution of this power. The power to sell results to executors and administrators alone, from the order of the Court to sell. Hence, if there be in that case no order to sell, it is like a case of sale on execution without judgment. The order to sell lands under attachment, limiting the sale to the lands attached, is a limitation, not a grant of power. The order to administrators and executors to sell lands, confers the power to sell. The lack of the one is a. mere irregularity of the other -— a total defect of power. Hence the difference as to the results. .

There has been much ingenious and able argument- in this ■ case, to show what could be proved by parol, and what must be established by record — what will be presumed, and what must be established by positive proof.

We rest the case, nakedly, upon the ground, so far as the proceedings in attachment are concerned, that there was a judgment of a Court of competent jurisdiction, unreversed, conferring the power to sell the land in question, which cannot be impeached in this collateral way; that the defects and irregu-' larities complained of, should have been remedied by, writ of error, or motion.

In this view of the case, then, the defendant, by the proceed- . ings in attachment, is clothed with the legal title; and hence judgment must be rendered in his favor.

Judgment for Defendant.