author: Hitchcock, C. J.

text:
    Amor M’Louth v. Rhoda Rathbone and others.
    A purchaser at sheriff’s sale, acquires no greater interest than the judgment debtor had at the time of levy and sale, and takes the property subject to outstanding equities, especially if the purchaser has notice of these equities.
    This is a bill of review, reserved in Sandusky county, and was submitted without argument.
    The facts are stated in the opinion of the court.

      E. Lane, for complainant.

      L. B. Otis, for defendants.
   Hitchcock, C. J.

The original ease, which the complainant now seeks to have reviewed,-was commenced by the com plainant against the present defendants, in the court of common pleas of Sandusky county, in which court a decree was entered in favor of the complainant. From this decree an appeal was taken by the defendant, Rhoda Rathbone, to the supreme court, and in the supreme court the bill was dismissed, at complainant’s cost.

The facts in the original case, as disclosed by the bill, answers, exhibits, and testimony, are substantially as follows: On the 24th of April, 1840, Lucius Rathbone, one of the defendants, was the owner of the west half of the north-west quarter of section 23, township 4, range 16, north, situate in the county of Sandusky, and being such owner, on the said 24th day of April, by deed of that date executed by himself and his wife, Rhoda Rathbone, who is also a defendant, conveyed the said premises to one Chaplin Rathbone. This deed, however, although signed, sealed, and acknowledged by the grantors, was attested by but one witness. It was duly recorded.

On the 27th day of July, 1841, Chaplin Rathbone and Lucinda, his wife, undertook to reconvey to Lucius Rathbone the west half of the premises, so as aforesaid conveyed by Lucius to himself, and also to convey to Rhoda Rathbone, wife of said Lucius, the east half of the same premises. In the deed of conveyance to Lucius, however, the premises were described as being part of the north-east quarter of section 23, instead of the north-west quarter.

On the 6th day of April, 1842, the complainant purchased for a valuable consideration, of Lucius Rathbone, the west half of the east half of said quarter section, and received from said Lucius a deed intended as a conveyance of the same. But in this latter deed the land is described as part of the north-east quarter of the section, whereas the land intended to be conveyed was a part of the north-west quarter.

There is no pretense in the case but that there was a mistake in the description of, the land in the two deeds last referred to. The fact is admitted by the defendants who answered, and as to Lucius Rathbone the bill was taken as confessed, he having failed to answer.

On the second day of May, 1842, the defendant Rhoda Rathbone, filed in the supreme court of Sandusky county, against her husband, Lucius Rathbone, a petition for divorce, and at the July term of the court in the same year, obtained a decree, and also a decree for alimony to the amount of two thousand five hundred dollars.

The original bill in this case was filed in December, 1842, and during its pendency the defendant, Rhoda Rathbone, procured an execution to be issued upon her decree for alimony, had the same levied upon the land intended to have been conveyed by Lucius Rathbone to the complainant, and purchased the same at sheriff’s sale. This fact was brought before the court by a supplemental and amended bill.

In her answer, the defendant Rhoda charged that the conveyance to McLouth, the complainant, was made without consideration, and for the purpose of defrauding her, in her contemplated application for divorce and alimony. To sustain this charge, however, there was no evidence; but there was evidence tending to prove an arrangement between herself and husband, by which a division of property was made, she agreeing to take as her portion, the part of the quarter section conveyed to her by Chaplin Rathbone; and there was evidence tending to prove that she was willing that her husband should sell the land. Upon this point, however, the testimony was somewhat conflicting.

Such are the material facts as collected from the record, and upon this state of ease the complainant prayed for a correction of the mistakes in the deeds of conveyance, for an injunction against the defendant, Rhoda Rathbone, restraining her from attempting to obtain possession of the premises, under her purchase at sheriff’s sale, and also for general reliefi

Upon hearing the case, the supreme court dismissed the bill at the complainant’s cost, and it is now claimed that this decree of dismissal was not warranted by the facts in the case.

Before proceeding farther, it is proper to say, that this decree is not based upon any facts found by the court, but is general in its terms. Under these circumstances we must of necessity look into all the evidence, as well as into the pleadings, exhibits, and decree — and from such examination the facts already stated have been collected.

The real controversy is between the complainant as purchaser of the premises from Lucius Rathbone, and Rhoda Rathbone, as purchaser of the same premises at sheriff’s sale, under a decree in her own favor against the said Lucius Rathbone. As between the two which has the better equity ? Upon the determination of this point, depends the question, whether the supreme court erred in rendering the decree complained of.

The case shows that in April, 1840, Lucius Rathbone was the rightful owner of the premises, and on the 24th day of that month, he, together with his wife, undertook to convey them to Chaplin Rathbone. The deed, however, was defective, having but one attesting witness, and did not vest in the grantee a legal title. But there can be no doubt that this conveyance, unless impeached, would vest in the grantee a perfect title in equity, leaving nothing in Lucius Rathbone but the naked legal title, which he must have been considered as holding in trust for the equitable owner. There is nothing disclosed in the case to impeach this transaction.

Subsequently, Chaplain Rathbone undertook to re-convey the premises to Lucius. A mistake, however, was made in the deed in substituting the north-east quarter of section 28, for the north-west quarter. Had there been no mistake in this deed, it would have re-invested Lucius with an equitable interest in the land. The legal title had never departed from him. Now it is the peculiar duty of courts of equity to relieve against and correct mistakes in deeds aud other instruments of writing, and to give them the same effect they would have had, had there been no mistake. In the case before us there is no controversy as to this mistake; it is admitted. We are bound then to hold that by the conveyance from Chaplin to Lucius Rathbone, all the equity of Chaplin in the land became vested in Lucius, and from that time the latter must be held, in this court, to have been both the legal and equitable owner.

Being such owner, Lucius sold the same land to the complainant, McLouth, and received a valuable consideration therefor. And on the 4th of April, 1842, he undertook to convey the same to the purchaser. But in this deed the same mistake was made as in the previous deed from Chaplin to Lucius Rathbone. The quarter was described as being the north-east whereas in fact it was the north-west. In a court of law, this deed' would not operate to give any title' to the complainant. Not so in equity. The mistake being clearly shown, the deed will be reformed, so as to carry out the intention of the parties. This is done upon the principle that in-a case like the present there is an equity in the purchaser, and which the court will protect and enforce. In the opinion of the court, the complainant, by his purchase of the 4th. of April, acquired a perfect equity in the lands in controversy, as between himself and Lucius Rathbone,'and if anything remained in Lucius it was nothing but a naked legal title.

Now in this state of' case, had Lucius sold and conveyed the same land to a bona fide purchaser, for a valuable consideration, the purchaser being entirely ignorant of these transactions between his vendor and the complainant, such purchaser would have been protected in his purchase. His equity would have been equal to that of the complainant, and he would have had the legal title. But there is a difference between purchasers at a private and at judicial sales. The interest acquired by the latter is only the interest of the judgment debtor in the land. If that be a mere naked legal title, held in trust, the purchaser acquires no more. ;

In the ease before the court the defendant derived title under a sheriff’s sale. The decree under which' the sale' was made, was rendered months after the purchase of com-' plainant, and after the defendant in that decree had parted with all interest'in the land, unless it be the naked legal title. By her purchase, then, she acquired, if anything, nothing more than the naked legal title.

But had she purchased at private sale, and she might have done so after the divorce, she would have been in no better situation. She had full notice of the transaction between the complainant and Lucius. Had it been otherwise, had there been no other actual notice, the original bill in this case was pending at the time of the purchase, and to the bill she was a party defendant. Her assumed ground of defense was fraud in the.sale from her husband to the complainant, but to sustain this defense there was no evidence.

We are clearly of opinion that the complainant was entitled to relief in the case made, and that the court erred in dismissing the bill.

The decree is therefore reversed.


source: Caselaw Access Project

author: Spalding, J.

license: Public Domain

text:
    Christopher Brady v. Christopher and David Holderman.
    Upon the affirmance of a judgment, by the supreme court, on error, it is the duty of the court to render judgment against the plaintiff in error who was defendant below, for five per cent, damages upon the amount actually due to the defendant in error, at the time of the affirmance, unless the court be satisfied there was reasonable ground to prosecute the writ of error.
    Part payment of the judgment below will relieve the plaintiff in error from the damages pro lanío, only.
    This is a writ of error to the Supreme Court for Wyandot county.
    The plaintiff in error recovered judgment against the defendants in error in the court of common pleas of Wyandot county, July 5th, 1849, for $940.18 damages, and $4.57 costa of suit.
    The defendants sued out a writ of error, which came on for hearing before the supreme court in the county, at the July term, 1850, when, there being no assignment of errors, the judgment of the common pleas was affirmed. But inasmuch as it was made to appear to the satisfaction of the court, that the plaintiff below had actually received part payment of his judgment-, to wit, the sum of three hundred and seventeen dollars, at the hands of the defendants, during the pendency of said writ of error, the court refused to enter judgment against the plaintiffs in error, for five per centum damages on any amount whatever. To correct the judgment of the supreme court in this respect, the present writ is prosecuted.

      J. & S. H. Bartram, for plaintiff in error.

      J. D. Sears, for defendants.
   Spalding, J.

The act “ to regulate the judicial courts, and the practice thereof,” passed March 12,1845, provides, in sec. 6, that final judgments in the courts of common pleas, may be examined and reversed or affirmed in the supreme court, on writ of erro.r, which shall be issued, as a matter of course, by the clerk of the supreme court of the proper county, upon praecipe, filed by the party desiring such writ.

This law operated as a general license to judgment debtors, to bring their cases into this court, with or without cause, and to remedy, in some measure, the great inconvenience likely to result therefrom, the general assembly, at its next session, January 21,1846, enacted, “ that upon the affirmance of a judgment by the supreme court, on writ of error, brought by the defendant below, the said court shall also render judgment against the plaintiff in error, for five per centum damages upon the amount due from the plaintiff in error to the defendant in error, unless the court shall be satisfied, and so enter upon the minutes, that there was reasonable ground for the prosecution of the said writ of error.”

This court, on the circuit, very properly affirmed the judgment of the court of common pleas, but, instead of causing an entry to be made on their journal, that there was reasonable ground for the prosecution of the writ of error, directed an entry in the following words :

“ And because it appears that there has been paid upon the judgment aforesaid, since the commencement of this suit, the sum of three hundred and seventeen dollars, no penalty is taxed herein

This is manifestly erroneous. After deducting the sum paid from the amount of the judgment, in the common pleas, there was still due from the plaintiff in error to the defendants in error, upwards of six hundred dollars.

Upon the affirmance of the judgment below, without finding that there was reasonable ground for prosecuting the writ' of error, the statute required the court to render judgment against the plaintiff in error for five per centum damages upon this balance, which was the amount then due to the defendant in error. Part payment, we consider a relief from 'the damages or penalty, only pro tanto.

The proceedings of the court on the circuit will be reversed to. this extent, and judgment will be rendered for the five per cent, damages on the actual amount due.


author: Avery, J.

text:
    Oliver Coverlee and others v. Griswold E. Warner and others.
    The statute relating to estray animals, and to the taking up of boats, rafts, etc., going adrift, does not authorize the party taking up a raft to seize ¡': under a writ of replevin, when in the hands of the owner, even though th„ owner had regained possession of it by force.
    This is a writ of error to the Court of Common Pleas of Gallia county.
    The plaintiffs brought an action of replevin in the court for a quantity of pine planks and shingles lying on the bank of the Ohio river, near Willey’s landing, in Clay -township, in said county.
    The defendants plead first, that they did not wrongfully detain the goods, and secondly, that the property in the goods was in themselves.
    To the second plea the plaintiffs replied, that they found the goods going adrift in the Ohio river, and that they took up and secured the same on the 20th of May, 1849, pursuant to the act relating to estray animals, and boats, rafts, etc., going adrift, and 'kept them till the 29th of the same month, when the defendants forcibly took the goods out of their possession, without proving a right to the goods, or paying to the plaintiffs a reasonable compensation, and- their expenses, for taking them up.-
    The defendants demurred to this declaration, and. the court sustained the demurrer.
    The plaintiffs then put in a replication, denying the property in the defendants.
    The cause was tried upon the two issues, which were both found by the jury in favor of the defendants. The jury alsc found that the right of property in- the goods at the commeneement of the suit was in the defendants, and assessed the damages of the defendants at $250.60. .
    The bill of exceptions which was taken upon the trial, shows that the plaintiffs proved that they found the raft and shingles, the property described in the writ, adrift on the Ohio river having no person on or having charge of the same; that they boarded and took possession of the same as an estray, and landed the same on the bank of the -river on the 20th of May, 1849, and that they remained in possession until the 29th of the same month, when the defendants, by their agent, took said property out of the' possession of the plaintiffs without their consent and against their orders, without having offered to prove their right thereto, and pay to plaintiffs their reasonable charges for taking up and securing the raft and shingles. The defendants then proved that they had started a raft of boards and shingles from Pittsburgh, bound for the mouth of the Ohio river; that the same went ashore about 12 miles above Gallipolis, about the middle of April, 1849, and that a portion of the raft was left there, and grounded. They then offered testimony tending to show that the raft and shingles described in the writ, were a portion of the raft of defendants so grounded, and that the same was their property.
    The plaintiffs then offered to prove that no person having claimed and proved a right to said goods and chattels within 30 days from the taking up of the same, they, on the expiration of said 30 days, caused the goods to be viewed by two freeholders of the township where they were taken up ; that the freeholders viewed the same as the law requires, and made return thereof in writing to a justice, with a description and valuation thereof; that the goods were sold as the statute in such case directs, and that the proceeds, after paying expenses, were duly deposited by the constable with the treasurer of the township. To the admission of this testimony, on the part of the plaintiffs objection was made by the defendants. The objec tion was sustained by the court, and the evidence not allowed to go to the jury, to which ruling the plaintiffs excepted.

      After the evidence was closed, the plaintiffs asked the court to instruct the jury that if they should find that the plaintiffs found the goods going adrift in the Ohio river, and took them up under the law concerning estrays and boats, watercraft, etc., going adrift, and had the same in their possession for the space of nine days, and that then the defendants, by their agent, took said goods out of the plaintiffs’ possession, without and against their consent, and without offering to prove their right to the same, and to pay the plaintiffs a reasonable compensation for securing the same, the plaintiffs would be entitled to recover, which instruction the court refused; but the court did instruct the jury that the plaintiffs, to entitle themselves to recover, must show in themselves a right to the possession of the goods replevied at the time of suing out the writ, and a right of present possession; that such right of present possession would authorize them to maintain this action against all persons but the general owner, if taken out of their possession against their will and consent.
    The court further instructed the jury, that if they were satisfied that the defendants, at the time of the service of the writ, had the general possession and ownership of the goods, and the only right of the plaintiffs was that of takers up of the property going adrift, and which had been taken out of their possession by the defendants within thirty days next after the taking up, that then the jury could not render a verdict for the plaintiffs, even though the defendants repossessed themselves of said goods against the will and protest of the plaintiffs, and without having paid or tendered any compensation whatever to the plaintiffs. To all these rulings and instructions the plaintiffs excepted.

      Simeon Nash, for plaintiffs in error, cited the following authorities :

      Pratt v. Parkman, 24 Pick. Rep. 44; 2 Blackf. Rep. 172; 3 Ib. 348; 1 Inst. 145, b.; 18 Vin. Abr. 577, 8, 9; 10 Mod. 25 ; Selw. N. P. 4th Am. ed. 364; 2 Stark. Ev. 5th Am. ed. 714; 3 Pick. Rep. 255; 3 Greenl. Rep. 183; 5 Mass. Rep. 303; Walpole v. Smith, 4 Blackf. Rep. 306; 3 Shep. Rep. 373; 9 Mass. Rep. 112; 15 Mass. Rep. 359 ; 16 Ib. 147 ; 17 Ib. 606 ; 1 Salkeld 94 ; 6 Mod. 102; 15 Pick. Rep. 65 ; 15 Mass. Rep. 310 ; 4 Scam. Rep. 440; 23 Maine Rep. 199; Schoales and Lefroy 337; 7 Johns. Rep. 140; 3 Blackf. Rep. 419.

      A. & F. Cushing, for defendants, cited the following:
    Story on Bailment 85, 87, 121, 303, 440, 621; 3 Atk. Rep. 12; 4 Co. Rep. 83; 5 Mass. Rep. 303; 14 Ib. 217 ; 2 H. Black. Rep. 254; 5 Mass. Rep. 265.
   Avery, J.

Every defense in the action of replevin, which is admissible under both the pleas here presented by the defendants, is admissible under the plea of non detinet. 10 Ohio Rep. 343, and 12 Ohio Rep. 112.

A doubt is expressed in the case in the volume last referred to, whether the plea of property in the defendants is a good plea, under our statute; and it is there decided, that to leave the plea without any replication, furnishes no ground to reverse the judgment.

As the jury, upon the first issue, have returned a verdict for the defendants, if that is properly found, a judgment must be rendered in their favor; and it will be unnecessary to examine very particularly to see whether there are defects or not in the plaintiffs’ replication. The merits of the case are before the court upon the pleadings.

These plaintiffs took up the raft in controversy while adrift upon the Ohio .river, on the 20th day of May, 1849. On the 29th, it was forcibly taken out of their possession by the agent of the defendants, and on the 30th of the same month of May, it was seized and taken again into possession by the plaintiffs, by means of the present, writ of replevin. Having regained the possession of the raft, the plaintiffs proceeded, under the statute, in the same manner with reference to it as they would have done had their possession never been disturbed, causing it to be viewed and valued by two freeholders, and sold by the constable, who after satisfying what were considered the legal claims upon the fund, paid over the balance to the treasurer of the township.

Now, the question in the case here presented, is, whether the plaintiffs had, by law, a right to take out the writ of replevin and recover the raft, though it had been without their consent, and forcibly, taken into possession by the defendants.

The claim of the plaintiffs must be supported, if it can be maintained at all, by rights acquired by force of the statute, under whose provisions they have professed to act. They cannot seek'protection, as we think, under any law which may apply to the finder of lost property, nor to rights secured under any law relating to salvage. The case must turn, therefore, upon the statute, and we have examined it to see whether it actually confers on these plaintiffs the right which they have asserted over the property in question.

The 12th section of the act (Swan’s Statutes 874) is in these words: “ That it shall be lawful for any person or persons, finding any boat, watercraft, raft, or piece of a raft, or other valuable property, gone or going adrift, within this state, or any of the waters adjoining thereto, to take up and secure such boat, watercraft, raft, or piece of a raft, or other valuable property; and if no person shall claim and prove his right to such boat, watercraft, raft, or piece of a raft, or other valuable property, within thirty days thereafter, the taker up shall cause such boat, watercraft, raft, or piece of a raft, or other valuable property, to be viewed by two freeholders or householders of the township, who shall, after viewing the same, give a description thereof in writing, together with the value of such boat, watercraft, raft, or piece of a raft, or other valuable property, and certify the same under their hands; which certificate the taker up shall deliver, within five days, to some justice of the peace within the township.” After taking the steps prescribed by the foregoing section, the taker up, by direction of the 14th section, is to pay to the justice twenty-five cents for himself, and twenty-five cents for the clerk of the common pleas, in payment for the services of each of these officers in making a record in the books which each of them is directed to keep.

By the next section, which is the 15th, the owner of the property, on proving his right thereto within the time after-wards in the act limited, and paying to the taker up such compensation as shall be deemed reasonable, at the discretion of the justice of the peace, together with the fees allowed by the act, shall be entitled to demand and receive his property so taken up.

According to the provisions of the 16th section, if the value exceed five dollars, and the owner does not appear and prove his right thereto within two months, then the taker up shall deliver the property to any constable of the township, who shall advertise and sell it; and, after deducting the expenses and fees in the case, pay over the money to the township treasurer, which money the owner, if he appears and claims it within a specified time, is entitled to draw from the hands of such treasurer.

Thus it will be seen, that the act secures to the owner, at any time within thirty days from the time of taking up the property, the privilege of claiming and proving his right to it. And further, that it points out no specific mode by which the person who has taken up the property adrift can enforce any claims he may set up against the owner. Eor this period he is left to the assertion of such rights as a.re properly to be inferred from his having lawfully, and it may be meritoriously, taken up and secured the property of. another. There seems to be no good reason for offering to a person who takes up a raft that he sees floating on the river, and fastens it to the bank, any greater privilege than he may claim,- who, finding property that had been lost, takes care of it and secures it for the owner. No right is conferred by our law upon the latter to retain the possession, till he is compensated by the owner ; nor does the statute we are considering give in terms any such right. On the contrary, it secures to the owner, at least by very clear implication, for the thirty days, the .privilege of regaining his property by asserting and establishing his right. The mode of doing this, is left to be indicated by the general law, and not pointed out any where in this statute. If it be said there is apparent hardship in turning the party over for his trouble in taking up the boat or raft, to his remedy against the person of the owner, after he has been authorized to gain a lawful possession of the property, it may also be said, that there seems to be a greater hardship in compelling the owner, before he can obtain his property, to tender at his peril a sum which _ shall be pronounced upon the trial an adequate compensation. He would be under a strong inducemeht to tender more than could be equitably claimed:

Now, if he has waited a longer period, before making his claim, though the other party has in the meantime incurred some actual expense, and had some further trouble, yet the owner is not subjected to any such hazard, as in the former case ; for the -act itself provides in such case a mode of ascertaining the amount he is first to pay, by submitting the matter to the determination and discretion of a justice of the peace.

As we look upon the statute, therefore, which has been under ,.consideration, we discern no propriety, nor any necessity of inferring from its provisions such rights as are claimed in behalf of these plaintiffs. After the property had gone again into the possession of its owners, even though taken by them forcibly, the persons who took it up had not the right to recover it by the writ of replevin.

The judgment of the Common Pleas is affirmed.


text:
    Joseph Curren and others v. Andrew Taylor and others.
    The lands of an intestate inherited from Ms father, if the intestate left no children or their legal representatives, and no brothers or sisters, or their legal representatives, pass under the statute of descent to the brothers and sisters of such father, and not to the grandfather of the intestate; though the same lands were originally conveyed by deed of gift from the grandfather to the father.
    This is a writ of certiorari to the Court of Common Pleas of Richland county, brought to reverse an order of partition.
    The facts in the case will be found stated in the opinion of the court

      Jacob Brinkerhoff, for plaintiffs in certiorari.

      Isaac J. Allen, for defendants.
   Avery, J.

The facts as stated in the petition in the case below, are briefly these: About the 23d day of April, 1835, George Arter, and Elizabeth his wife, conveyed by deed to their son, George Arter, two tracts of land situated in Richland county, one of them being in quantity 186 acres, 1 rood, and 27 perches; the other 13 acres, 2 roods, and 13 perches. The deed was given “ as well for and in consideration of- the natural" love and affection which they, the said George Arter, the elder, and Elizabeth his wife, had unto the said George Arter, junior, the son, as also for the better maintenance, support, livelihood, and advancement of the said George, junior, then at the age of his manhood and majority.” .

Under this deed, George the younger, took possession of- the lands, and after making lasting and valuable improvements thereon, died still seized of the lands, leaving a widow, Maria, and an infant son surviving him — this being the only child of the marriage. This infant son died, leaving his mother and said George Arter, senior, his grandfather, still surviving.

The petitioners, Mary Taylor, Sarah ■ Pitts, and Nancy Reidler, are daughters of George Arter, senior, and Elizabeth, his wife, and sisters of George Arter, junior.

Before filing this petition, dower in the premises had been assigned according to law to the said Maria, the widow, and George Arter,' the infant’s grandfather, had departed this life.

The defendants, Michael and Henry, are brothers, and the other defendant, Susan Curren, is a sister of the petitioners, Mary, Sarah, and Nancy, all of them being children of said George Arter, senior, and Elizabeth his wife.

The prayer is, that partition be made of the premises among the said children of George Arter, senior, giving to each in fee simple a sixth part thereof.

In behalf of one of these children, who is a defendant in the ease, to wit, Susan Curren, and her husband, Joseph Curren, a plea is filed denying the right of the petitioners to have partition of the premises, in which it is averred that George Arter, senior, after the death of his son George, and of the infant grandson aforesaid, made a last will and testament thereby disposing of all his estate; that this will, which since his death has been admitted to probate, directs his executor to sell immediately all his property, both real and personal, with the proceeds to pay his debts and funeral expenses — furnish to his wife a good support during life — and to pay over all the balance to his daughter, the said Susan Curren.

Thus it will be seen that by the petition, the claim is set up that the premises passed, on the death of the infant, to the children of George Arter, senior ; and by the plea, that they passed to George ■ Arter, senior, himself.

To decide upon the conflicting claims of these parties, and, so far as applicable to them, to determine what is the law of descents in Ohio, this case is brought here.

The act regulating descents (Swan’s Statutes 286) com menees as follows:

“ Sec. 1. That when any person shall die intestate, having title or right to any real estate of inheritance in this state, which title shall have come to such intestate by descent, devise, or deed of gift from any ancestor, such estate shall descend and pass in parcenary to his or her kindred in the following course:
“ First — To the children of such intestate or their legal representatives.
“ Second — If there be no children or their legal representatives, the estate shall pass to the brothers and sisters of the intestate, who may be of the blood of the ancestor from whom the estate came, or their legal representatives, whether such brothers and sisters be of the whole or the half blood of the intestate.”

This section, it will be perceived, treats of real estates which shall have come from a deceased anees tot, and of estates by deed of gift from an ancestor still living, and directs, in the two first clauses, the same course of descent, whether the title was derived from a living or a deceased ancestor. If therefore the present intestate had left children at his death, the premises would have passed to them.

So if George Arter, junior, had left other children by the mother of the intestate, or surviving her, had left children by a second marriage, the premises would have passed to the child ren in either ease, and not to George Arter, senior, who had executed the deed of gift.

The third clause of this section is in these words: “ If there be no brothers or sisters of the intestate, of the blood of the ancestor from whom the estate came, or their legal representatives, and if the estate came by deed of gift from an ancestor who may be living, the estate shall ascend to such ancestor.”

This clause, it is contended, may be properly so construed as to restore these premises to G;eorge Arter, senior, for they came from him by deed of gift; he was an ancestor in the language of the clause, and was living at the death of the intestate.

But looking back to the part of the section already given, which treats of the estates whose descent is to be regulated, we •discover that it applies only to those which shall have come to such intestate by descent or devise, or by deed of gift from an ancestor. To this infant intestate the premises came by one of the first named modes, that is, by descent; they did not, therefore, come to him by deed of gift, and in the opinion of the court, they could not pass, under the third clause of the section, to George Arter, senior.

The statutes, then, in providing for the descent of estates of inheritance, gives a preference over an ancestor who has made a deed of gift, first to the children of the grantee and their legal representatives, and next to the brothers and sisters of the grantee, whether of the whole or the half blood. And, further, by the interpretation which we give to the statute, it was never intended to restore the estate to such ancestor, merely for the reason that he had first given it, if in any case it had once passed by descent from the grantee.

But it is argued that this ancestor, if he cannot take the estate under the claim that he once conveyed it by deed of gift, is entitled to it under the fifth clause of the above mentioned section. That fifth clause is as follows: “ If there be no brothers or sisters of the intestate or their legal representatives, the estate shall pass to the next of kin to the intestate of the blood of the ancestor from whom the estate came.” The argument is pressed with earnestness, that the civil law should govern, and not the common law, in determining who is the next of kin intended in this clause, and that in accordance with the better feelings of our nature, the grandfather is regarded as a nearer relative than uncles or aunts.

It has been the settled policy of the state, in its laws of descent, to direct the property of a deceased brother to pass to the brothers and sisters who survive him, to hold them in this respect, as nearer than the father, or at all events to prefer them to the father, even in a case where all the property had come by gift directly from him.

If George Arter, the son, had died without a child, the estate now in controversy would, under the statute we are now considering, have passed to his brothers and sisters, and not to his father. Now it is difficult to understand why this law should be suffered to remain in force here, where statutes are so easily, and in poin.t of fact, so frequently subjected to alteration and repeal, if there be in reality any general sentiment or feeling opposed to this principle of descent. In putting a construction upon the statute, or upon parts of it, we, as a court, at least, would feel ourselves called upon to give some attention to the principle so recognized in the law of descents. If, then, this estate would have been properly settled upon the brothers and sisters of George Arter, senior, had he died without children, we cannot see a sufficient reason for diverting it from that course, because it has chanced to rest for a time in his infant son. We think that by a proper interpretation of the statute in question, the brothers and sisters of the intestate’s father, and not the grandfather, should take the inheritance.

This case comes here under a certiorari to the court of common pleas of Richland county, in which court a partition was ordered amongst the six surviving brothers and sisters of George Arter, senior, and this being, in the opinion of the court, in accordance with the law,' the proceedings of the oommon pleas are affirmed.


text:
    David Messenger, and James Maholm v. Joseph Armstrong and William B. Harding.
    In a case in equity to enforce a vendor’s lien, where the premises after the purchase had been mortgaged by the vendee to a third person, and sold under a decree upon the mortgage to such third person, the vendee is incompetent on the ground of interest, to give testimony in behalf of the complainant.
    This is a bill of review, reserved in Licking county.
    Joseph Armstrong, one of the present defendants, filed a bill in chancery on the 20th August, 1841, in the common pleas of Licking county, against Harding, the other defendant, and Messenger and Maholm, the present complainants.
    In the original bill, Armstrong set forth, that in July, 1832, he had sold a certain tract of land named therein, to the aforesaid Harding, for one thousand dollars, and executed to him a warrantee deed for the same; that a large amount of the purchase money remained due and unpaid at the time of filing the bill. He had issued an execution against Harding, upon a judgment previously recovered for a part of the same purchase money, but Harding was wholly insolvent and had neither personal nor real estate subject to the levy of an execution; that in the year 1833, Harding mortgaged the premises to the aforesaid David Messenger, who knew at the time, that they were purchased by Harding of complainant, and that a large amount of the purchase money was unpaid. He afterwards executed another mortgage, and the first was canceled. Messenger foreclosed his last mortgage, caused the premises to be offered for sale, under his decree upon it, and at the sale became the purchaser at two thirds the value thereof, knowing at the time of the purchase, that Harding was still indebted to the complainant for a large sum of money due for the same, and that Harding was insolvent and unable to pay the sum so due. Some time after* wards, Messenger sold and conveyed the premises to said James Maholm, who knew the before mentioned facts, that Harding had bought of complainant, had not paid the money due for the premises, and was insolvent and unable to pay, and that Messenger had purchased in manner above stated. The bill prayed for a decree subjecting the land to the payment of the balance due of the purchase money.
    The defendants in the original bill, Messenger a,nd Maholm, put in answers to it, under oath, denying all knowledge of the claim set up in the bill until after purchasing the premises. Harding, the other defendant, did not answer.
    The cause was taken by appeal from the common pleas, and the supreme court, at their September term, 1848, in Licking county, rendered a decree against the defendants, finding the amount of the unpaid purchase money and interest to be $950.54; and holding that Armstrong, the complainant, had a vendor’s lien upon the premises for the payment of the same, with the accruing interest and costs.
    To reverse this decree of the supreme court, the present bill of review is prosecuted.
    One of the errors assigned, under the bill of review, and the only one considered by the court, is the admission, by the court below, of the deposition of William B. Harding.

      Smythe and Sprague, for complainants in review.

      H. H. Hunter, for defendants.
   Avery, J.

Without the aid of the deposition of Harding in the original case, the testimony would not have been sufficient to prove in the other defendants, against their denial under oath, a knowledge of the complainant’s claim for the purchase money; and of course, had the deposition been excluded by the court at the hearing, no decree in the case could have been given for the complainant.

The two defendants, Messenger and Maholm, 'objected to the deposition when it was taken, on the ground of interest in the witness ; and insisted, for the same cause, upon the trial, that it should be excluded from the consideration of the court.

If Harding had an interest to testify in favor of the complainant, then it was error in the court to receive his deposition, and use it as evidence at .the hearing. The object of the bill was to enforce a vendor’s lien upon the land. It had been sold by the complainant, and conveyed by deed to Harding, one of the defendants. Harding had mortgaged it to Messenger, another defendant, who instituted proceedings upon his mortgage, bought in the land at a public sale, under the decree, and thereby satisfied the mortgage debt. Afterwards, Messenger sold the land to Maholm, the other defendant. All this time there remained due from Harding, to the complainant, a considerable part of the purchase money, amounting, as found by the court at the time of rendering the decree in the present case, to $950.54. Now it is very obvious from this statement of the case, that Harding had an interest that would dis- ■ qualify him, unless it was balanced or overcome by some other interest. But here the proof does not show a contract on the part of Harding, by which he could be made liable to the defendants for neglecting to remove the incumbrance; nor from the state of case does it appear that a legal liability could rest upon Harding to answer to the defendants, upon their paying Harding’s debt to the complainant, or upon their suffering the premises to be sold for the payment of it, nor is it shown that in any other manner the interest is removed.

Harding’s interest, then, as against his co-defendants, for aught that appears, existed at the time when he gave his deposition, and at the time of Ihe trial; it ought, therefore, to have excluded his deposition — and because it was not so excluded, the decree of the court is reversed.


text:
    James and Samuel H. Goodin v. James S. Armstrong.
    If there be a special partnership between A and B, and the principal clerk and book-keeper of A state an account between the parties showing the transaction closed, and a balance of profits in favor of B, it will be held as prima facie evidence of the adjustment of the partnership accounts; and B may sue at law for-the amount due him.
    This is a writ of error to the Supreme Court for Hamilton county.
    The original action was assumpsit, brought by Armstrong against the Goodins, in the commercial court of Cincinnati, where it was tried before the court without the intervention of a jury.
    Judgment was rendered for the plaintiff.
    A motion for a new trial was made by the defendants, which was overruled by the court, and bill of exceptions sealed.
    The judgment of the commercial court was affirmed in the supreme court' for Hamilton county, at the May term, A. D. 1849, and to review and reverse that proceeding, this writ is prosecuted.
    The bill of exceptions shows that the action below was brought to recover of the defendants, who were partners in trade under the name of James and S. H. Goodin, the sum of six hundred and thirty-two dollars and seventy-five cents, with interest, for profits that had accrued to plaintiff in a certain pork speculation entered into in the year 1838, by the said Armstrong and the said James and S. H. Goodin, under the following agreement:
    “ Whereas, J. S. Armstrong, of the city of Cincinnati, has this day drawn a bill of exchange, payable at ninety days date, to his own order, at the Hamilton Bank, Ohio, for five thousand dollars, and accepted by J. and S. H. Goodin, of said city, the same having been discounted by the Ohio Life Insurance and Trust Co., and the-proceeds paid to J. and S. H. Goodin. Now, it is agreed between the parties hereto, that the proceeds of said bill shall be invested in the purchase of mess pork and Mississippi bank notes, for the joint account, and at the joint risk of the said Armstrong, and J. and S. H. Goodin, and the profits thereon, when the same shall have been sold, be divided, that said Armstrong receiving one half, and said Goodins, the other half, and the losses, should there be any loss, be borne in like manner. It is also agreed, that no charge shall be made, by either party, for any services rendered by himself, except for money actually disbursed and paid out on account of said speculation. It is further agreed, that as the assets to meet the above bill are in the hands of said Goodin, to pay the same when due, that no division of profits shall be made, until said bill shall have been paid.
    “Witness our hands, this 27 th day of February, 1848.
    (Signed.) J. S. Armstrong.
    James & S. H. Goodin.”
    To show that the accounts of this special partnership had been settled, and a balance struck, the plaintiff offered in evidence a debit and credit account- kept with the “ Armstrong Investment,” (so called,) by J. & S. H. Goodin, or rather a transcript of the same, made out and delivered to plaintiff by W. D. Peters, now deceased, who was the clerk and book-keeper of J. & S. H. Goodin, which account bears date Oct. 1, 1839, and shows a net profit in the transaction of $1,265.50, one half of which is placed to the credit of J. & S. H. Goodin, and the other half, ($632.75,) to the credit of the plaintiff below, J. S. Armstrong. This account, made out with minuteness, and showing each item of expenditure, and receipt is signed, “ J. &. S. H. Goodin,
    per W. D. Peters.”
    No other evidence was offered, except proof that the account was in the proper handwriting of Wm. D. Peters, that said Peters was at the time in the employ of the defendants, as their book-keeper and clerk, and that he had deceased since the date of said paper.
    The defendants objected to the introduction of this-paper in evidence, but the objection was overruled, and judgment rendered for plaintiff, and this is assigned for error.

      Morris, Tilden, and Rairden, for plaintiffs in error.
    The evidence offered by the plaintiff below, proved that his claim consisted of a balance due to him, growing out of the operations of a partnership between himself and the defendants below. Unless the accounts between the partners had been settled by them, and a balance struck and assented to, it is clear the title was not at law. The remedy was in chancery. Denning v. Luckie, 13 East R. 7 ; Beach v. Hotchkts, 2 Conn. 425 ; Clark v. Dibble, 16 Wend. 601; Williams v. Henshaw, 12 Pick. 378; Cary v. Bush, 2 Caine 293 ; Westerloo v. Evertson, 1 Wend. 532, and see 7 Blackf. 258; McArthur v. Ladd, 5 O. R. 514; Emerie v. Gilbert, Wright 764.
    To meet this objection, the plaintiff below offered in evidence the statement of account made and signed by Peters. This statement, even if it had been competent evidence, did not obviate the objection. It did not purport to be a settled account to which the partners had assented, and it did not purport to bind any of the parties. It was merely a copy of the partnership books, showing how the actual balance was. This was no more than could always be proved in actions between partners; and if it was enough to authorize a. recovery at law, then the rule which requires such cases to be tried in chancery, instead of being one of jurisdiction, becomes one of practice merely. Partners, under that view of the question, may in all eases sue at law, and there compel the production of the partnership books, and'obtain judgment for the balance appearing by them. The general rule is, that partners must have their accounts settled in chancery. The exception is, that the creditor partner may sue at law, if a balance has been agreed to, upon a settlement of the accounts by the partners themselves. Such a case was not proved. The statement was offered and admitted as a copy, or substitute for the books of account, and to prove that, according to the books, one partner was a creditor of the others. There was no evidence that this was the result-of any settlement, or that it was assented to, or that it had been admitted to be correct by any member of the firm. If, therefore, the statement was properly admitted in evidence for any purpose, it was not alone enough to authorize a recovery, and on this ground the court should have allowed the motion for a new trial.
    But the plaintiffs in error will claim, that the statement itself was improperly admitted in evidence. The defendant in error introduced in evidence, the written memorandum of the agreement which gave rise to the account. This writing proves the transaction to have been one of partnership; and to do away the objection, that the remedy should be sought in chancery, the defendant undertook to prove that the partnership accounts had been settled, and a balance struck; and this he did by offering the statement of Peters, which is believed to have been objectionable for two reasons: first, such a paper is itself incompetent as a means.of proof; and second, if competent at all, it ranks as secondary evidence, and it was admitted without the preliminary proof, without which, secondary evidence is, under no circumstances, admissible.
    1. Peters was a clerk and book-keeper for the plaintiffs in error, and the question here made is, whether he had authority to make statements, written or verbal, which would be binding on his principals.
    If he had been living at the time of the trial, it is clear that no state of circumstances would have authorized the substitu-. tion of his declaration for his evidence under oath. They would have been res inter alios acta, and rejected; and the plaintiffs in error would have been considered entitled to avail themselves of the benefit of a cross-examination.

      His statement was admitted on the ground of his agency, and as being that of his principals. But the rule which authorizes the reception of the declarations of agents, does not go so far; it is confined to admissions and statements which are parts of the res gestee. The agent is not considered as having any power to make admissions, and it is not on this ground that his admissions are evidence against his principals. He is empowered to perform an act, or make an agreement; and, then, what he does or says, whilst engaged in the performance of the act, or in making the agreement, is evidence to describe the act, or as part of the terms of the agreement. Kahl v. Jansen, 4 Taunt. 565; Langhorn v. Allnut, 4 Taunt. 511. In the first of these cases, the chief justice observed, “ When it is proved that A is the agent of B, whatever A does or says, or Writes, in the making of a contract, as agent of B, is admissible in evidence, because it is part of the contract which he makes for B, and which therefore binds him ; but it is not admissible, as the agent’s account of what passes.” “ In Masten v. Abraham, 1 Esp. c. 875, the question was, whether the defendant, the purchaser of the goods, had agreed to find bags for the carriage of them: the plaintiff offered in evidence the letter of the broker who sold the goods, (being the agent of both parties,) written to the plaintiff, saying that the bags would be ready by a certain day. The broker was then in the box, and Lord Kenyon said, that he would admit evidence of what he had done on account of the defendant; but that it should be learned from himself, and not from his letter.” And see Gow’s Nisi Prius cases, 45 ; Webb v. Alexander, 7 Wend. R. 281; Tallheimer v. Brinkerhoof, 4 Wend. R. 394; Sweeting v. Turner, 10 J. R. 225; Hurd v. West, 7 Cow. R. 752 ; Vinall v. Burnell, 16 Pick. 401; Hallowell Bank v. Hamlin, 14 Mass. R. 178 ; Garth v. Howard, 1 Eng. Com. Law. R. 431.
    The bill of exceptions shows that “ Peters, at the time of the date of the paper, was in the employ of the defendants, (the plaintiffs in error,) as their book-keeper and clerk; and this was the only fact in evidence to describe his agency. As to the nature of bis duties we are left to inference and construction ; and before it can be concluded that he was authorized to issue certificates from the books committed to his “ keeping,” it would seem that there should be some evidence that such an act was part of the business of a “ book-keeper and clerk.” As a matter of fact, it is well known that such is not the case. A man’s books of account are evidence against him, exactly as his own declarations are. The contents of his books may be proved by any witness who can describe them under oath, as his declarations may be proved by any witness who heard them. If his books may be proved by the admission of his clerk, to be consistent, it ought also to be held that his declaration may be proved by the same means; for they are both admitted as declarations, affording evidence as to disputed facts, and differing only in the circumstance that one is written and the other verbal. ' From what is known out of the record, it could be shown that the admissions of a “ book-keeper and clerk,” can never be evidence for any purpose, against his employer, unless specially authorized to be made. For they are not incident to the act which he is employed to perform, and do not accompany that act. But looking- to the record alone, it would seem clear that enough was not proved to admit the statement. It should have been shown that the making of such statements was part of the ordinary business of a “ bookkeeper and clerk,” or according to the course of business of the plaintiffs in error, or that it had been specially directed to be made. To infer such an authority, would be to-make a rule of evidence for this particular case.
    2. The statement was in the nature of secondary evidence. It was not evidence to prove the truth of the facts therein contained; — to prove that the defendants below were indebted to the plaintiff below, but to show the contents of the books of account. If Peters had made verbal declarations of the same facts contained in the written statement, it is manifest that those declarations would not have been viewed as admissions binding on the defendants below. It was not as an admission that the statement was made, but as a copy of the books; and then, when it was admitted in evidence, it proved, not that the defendants below were indebted to the plaintiff, but it proved the state of accounts as shown by the books. It was offered then as a copy and as a substitute for the original. The original, the books, would have been evidence — they were the best evidence, and they should have been called for; and then, if not produced, their contents might have been proven in the usual manner.

      Utica Ins. Co. v. Caldwell, 3 Wend. 296; Kennedy v. Jouke, 5 Har. & John. 63; Life and Fire Ins. Co. v. Mer. Fire Ins. Co. 7 Wend. 31; Halleck v. State, 11 O. R. 403; Taylor v. Colvin, Wright 499 ; Taylor v. Carpenter, 2 Woodbury & Minot 1.
    On all the grounds, it would seem there was an error in the proceedings of the court below, and the judgment of affirmance on the circuit must have been an act of inadvertence.

      Y. Worthington, for defendant.
    The case was submitted by the defendant without argument.
   Spalding, J.

It is claimed by the counsel for plaintiffs that the settlement or account in the handwriting of William D. Peters, dated October, 1839, was incompetent evidence, and improperly admitted on the trial. We think otherwise.

The plaintiff below first offered the agreement between the parties, of the date of February 27th, 1838, showing their special partnership in the transaction from which he claimed his profits had sprung.

This agreement showed the whole fund to be in the hands of J. & S. H. Goodin, who were to receive the avails of the in vestment, pay off the draft and other expenses, and then divide the net profits equally between the parties.

At the close of the business, Armstrong may be presumed to have called upon the Messrs. Goodin for a balance sheet showing the result of their adventure. In the usual and 'ordinary course of business, it is made out for him by the. principal book-keeper of the firm, and he is thereby apprised of a balance in his favor, of a given sum. He has a right to hold this balance sheet, thus signed by the “ book-keeper,” as prima facie evidence of the settlement of the partnership accounts and of the acknowledged balance in his favor. It will be presumed in favor of a paper thus made out and signed, that it had the sanction of the firm. Sound policy requires this presumption to be made, otherwise there can be but little safety in dealing with clerks behind a counter.

It was a paper emanating from a confidential agent, when acting in the line of his duty and within the scope of his agency, as we conceive, and should be entitled to as much weight in the law as an accountable receipt signed by the party or his agent, which is held good until explained and controverted by other evidence.

We are satisfied with the decision of the commercial court upon the whole case.

The judgment of the court on the circuit will be affirmed.


text:
    Austin D. Howe v. Solomon Fuller and others.
    A devise to the wife of one-half of all the testator’s real estate, is a devise in fee. But such devise is controlled and the interest reduced to an estate determining when the youngest child arrives at full age, by the following clause: “ In the third place it is my wish and desire that the property may be kept together uutil my youngest child shall become of full age, and to make use of it to the best advantage for supporting and educating my children, and 'at the time that the youngest shall become of age, the property shall then be disposed of and divided equally amongst my children.”
    This is a bill in chancery for partition, reserved in Washington county.

      The bill states that George Howe died seized of certain lands therein described. He devised one-half of them to Mary Howe his widow, and directed the other half to be equally di vided amongst his children, but subject to a life estate of Rachel Howe, the testator’s mother. Rachel Howe died many years before the filing of the bill. The testator desired that the property should be kept together till his youngest child should become of age, and be used to the best advantage for supporting and educating his children; and when the youngest should be of age, it should be disposed of and equally divided amongst his children.
    The youngest child has long since arrived at full age. The testator left eight children, viz: Harriet, Rachel, Lucy, Mary Ann, Aaron, Hiram, George, and Austin D., the complainant. The shares of some of the above named children were conveyed to the defendant, David O. Skinner; the share of Aaron was conveyed to Solomon Fuller, a defendant, and who is husband of the said Lucy. The complainant, on the 14th of August, 1845, conveyed to said Skinner, one-eighth of said premises, subject to the life estate of the widow.
    In the summer of 1847, the complainant purchased the interest of said Mary, the widow, and took from her a deed of conveyance in fee simple for the undivided half of the - lands in the will described, and this he prays the court to set off to him in severalty.
    The defendants who have answered, resist the partition, and assert—
    1st. That the widow could take, according to the terms of the will, no such estate as is claimed for her.
    And 2d. If she could, the parties interested have from the first, put a different construction upon this devise, and have acted upon and acquiesced in such construction for a great number of years.
    The bill, which bears date July, 1823, was admitted to probate in November of the same year.
    The lands lie in Washington county, and the estate was valued at a sum less than one thousand dollars.

      The widow, Mary Howe, was near fifty years old, and the youngest child between six and seven, when the testatoi died.
    Rachel Howe, the mother, died a few weeks after the death of the testator.

      John Welch and John E. Hanna, for complainant.

      C. B. Goddard, for defendants.
   Avery, J.

The will which has given rise to this controversy is quite short, every devise and bequest being found in the the following words:

“ I do make and ordain this my last will and testament re- • specting the disposition of my worldly substance.
“ In the first place, I give and bequeath unto my beloved wife, Mary Howe, one half of all my real estate, and also one half of all my personal property.
In the second place, it is my wish and desire, that my mother, Rachel Howe, should have a comfortable support during her natural life, out of the remaining half of my personal property.
In the third place, it is my wish and desire, that the property may be kept together until my youngest child shall become of age, and to make use of it to the best advantage for the supporting and educating my children, and at the time the youngest shall become of age, the property shall then be disposed of and divided equally amongst my children.”

The testator of this will has disposed of all his estate.

According to the interpretation put upon it by the complainant’s counsel, he has given to his widow, besides the one half of the personal property, the one half in fee simple of all his real estate. If this be so, then the complainant is entitled to the partition of the lands, according to the- prayer of his bill, by which he v/ill become the owner in- fee and in severalty, of one half the premises, or rather, as under a mistaken apprehension of the extent of his mother’s interest, he had, before purchasing from her, conveyed away with covenants of warranty, an eighth of what he now supposes she took under the will, he will only be entitled to seven-sixteenths of the whole.

The testator named in this will no other objects of his bounty but his wife, his mother, and his children. For all these he evidently designed to make some substantial provision. If we agree with the complainant’s counsel, holding that one half of the estate is given to the widow, he has doubtless made substantial, nay, large provision for her, large it is meant, in reference to the share she takes.

Then, in the second place, he has made secure and ample provision for his mother, having charged her support, a comfortable support, during her natural life, upon the other half, which is all the remainder of his property, real and personal. It is a charge that, if necessary, may take it all. Now, if it be true that he has excluded his children from all inheritance and interest in the first half, it may happen that they will receive nothing, for it is certain that he has so incumbered the remaining half as to render it not altogether improbable that they take nothing from that.

He had a family .of eight children, needing, as he was conscious, support and education, the youngest not seven, years old. Would he be likely to fix so securely a provision for the two first named objects of his care, and at the same time neglect to provide for the rest ?

This will is drawn unskillfully; by a person unused to the precision of thought and language required in penning such an instrument, when it is designed to fix specific charges upon land, or to contain provisions at all complicated.

The two first clauses standing by themselves are intelligible ; but the question must necessarily arise, are they affected or controlled by the sueceding clause ; particularly, the complainant is interested to inquire, is the first so controlled ? By Ms reading, the property to be kept together, in the above clause, is the remaining half of the real and personal property named in the second clause.

To what purpose, and in what sense, it maybe asked, keep together the portions, real and personal, of this remaining half?. If the testator had then in his mind his whole property, it would be reasonable and natural enough that he should think of keeping together the two halves that he had just treated as, to a certain extent, separated. But what was the intention of the testator in this third clause, whether the expressions employed there be taken in connection with other parts of the will, or considered by themselves ? . He commences with a purpose of disposing by will of his worldly substance — that is, clearly, of all his property. He gives one half of it to his wife, and charges upon the other half the support of his mother for life. Then comes the clause in controversy :• “ In the third place, it is my wish and desire that the property may be kept together.” What property ? Not the half, or the remaining half, but the property. The phrase, without an additional word, may apply to and -embrace his property as a whole, but it needs the help of some other word to qualify it and point it to the half. This view of what the testator meant here, when speaking of property, would seem to be strengthened by the direction which he -gives, “ to make use of it to the best advantage for supporting and educating his children.” It cannot but appear to be limiting his language, in a manner which he never intended, to suppose that he contemplated, when making this interesting provision, only what might remain of the half, after furnishing his mother’s support.

The testator further declares in this clause, that when the youngest child shall become of age, the property shall be disposed of and divided equally among his children. Here the testator intended, without doubt, to control one or both of the other clauses. If he meant by property, what has been above supposed, then his words apply to both; if not, they still limit the provision, which was for life to the mother, and make it terminate when the youngest child comes of age. If he intended to limit either of the former clear provisions, he may have intended to limit' both. If it be said that, from the age of his mother, he could have no reason to suppose she would ever be deprived of her comfortable support; it will be conceded that this consideration would probably occur to his mind. How old his mother was at the death of the testator, does not appear. It may be presumed, though it will be but a presumption, that she was considerably older than his wife. The age of the wife is stated : she was nearly fifty. It is argued, in behalf of the defendants, that as she was so far advanced in life, the testator, at the time of making his will, might have thought she would not be living when his youngest child should be of age. The omission to provide for his wife, upon the supposition that she might be living, after the youngest child had reached the age of twenty-one years, is felt to be a consideration of great weight. But the explanation suggested is not without plausibility; and it is rendered probable that he thought his wife secure in a provision for life from the fact, that immediately after his death it was understood in the family, by the widow and others interested, that she took an estate for life.

From these considerations we think it is evident that the testator did not intend to give to his wife an estate in fee simple in the half of his lands.

It is very clear, indeed, that the language of the first clause would carry a fee. The words all my real estate, and many similar expressions, are doubtless sufficient to pass the inheritance. But if the intention of the testator is to govern, in the construction of a will, then a devise, though plain and obvious in its terms, may be altered and controlled by other expressions found in the will. Still it may be admitted to be true, that the apparent intention, under circumstances, is liable to be controlled by technical rules and technical expressions. There is no technical expression however in this devise to his wife, to hinder the application of the rule, that the intention governs. Having arrived at the conclusion that such was the intention of the testator, we construe this will to limit the wife’s estate in this land to the period when the youngest child arrived at age. Of course her interest was at an end before she made the conveyance, and complainant took nothing by his purchase. This disposes of the case without considering the other question made by the defendants, that the interest of the widow was limited to an estate for life, by the construction of the párties interested.

The complainant in his bill sets up a title in fee to an undivided part of the premises; we find that he has no interest.

The bill must be dismissed.


author: Caldwell, J.

text:
    John Glick and others v. Israel Gregg and others.
    The act for the relief of occupying claimants extends to all cases where a party purchases in good faith, and receives a deed, properly authenticated, which has been recorded, and under which he has held quiet possession of the premises, and made valuable improvements, supposing himself to be the actual owner.
    This is a bill in. chancery for partition, reserved in Fairfield county.
    The complainants demand partition of fifty-four acres of land, claiming to be the owners of two-thirds. The facts are as follows:
    Jacob Brobst died, seized of a quarter section of land, which he devised to his wife during her life, and after her death, to his three children, John, David, and Catharine. In 1888, the widow released to her children, before mentioned, her life estate in the tract of land.
    The children, at the same time, agreed to a partition of the property. The fifty-four acres in controversy, by that agreement, was set apart to Catharine. It being considered more valuable than the shares apportioned to her two brothers, it was agreed that she should pay them $290, to equalize the partition ; and for this sum she gave her notes.
    Catharine subsequently married Nathaniel Glick. The complainants are the issue of that marriage. In 1842, John and David Brobst conveyed their interest, by deed, in the fifty-four acres of land to Catharine and her husband, Nathaniel Glick. The cause of the conveyance being made to the said Nathaniel, jointly with his wife, is said to have been on account of his having paid out of his own funds the $290, with the interest that had accrued thereon. Not long after this, Catharine died. Nathaniel remained in possession of the property until 1846, when he conveyed it to the defendants, Israel and John B Gregg, who purchased of him, in good faith, supposing him to be the owner of the whole premises, and have made valuable improvements thereon.
    Their deed contains the usual covenants of warranty, etc., and is for the whole fifty-four acres.
    Upon this state of facts the defendants claim a compensation for their improvements, under the provisions of the act for the relief of occupying claimants of land.

      Brazee & Tallmadge, for complainant.
    1. The will of Jacob Brobst, his seizin of the land, the agreement to release by the defendant Catharine, the partition between the three devisees of the reversion, the death of Nathaniel Glick, and' the heirship of complainants, all being admitted by the answer of the Greggs, as claimed by the bill, the title of complainants to two undivided third parts of the fifty-four acres stands admitted, and they shown to be entitled to partition as prayed for in the bill.
    2. The defendants, the Greggs, claim compensation for improvements made upon the premises. This claim, it is insisted for complainants, ought not to be sustained.
    1. Because no such state of facts existed at the time of making the improvements, as brings the claim within any of the provisions of the statute for the relief of occupying claimants.

      The Legislature, (Swan’s Stat. 605,) in describing the cases provided for by the statute, proceed by enumeration, and consequently upon the well settled rule of construing such statutes, excludes every case not embraced in the enumeration. (Lessee of Waldron v. Woodcock, 15 O. Rep. 15.)
    Chief Justice Collett, in pronouncing the opinion of this court, in the case of Longworth et al. v. Wolfington et al., (6 Ohio Rep. 10,) analyzes the statute and classifies the cases therein included or provided for, as follows:
    “ First — Where the party in possession, and to be evicted, can show a plain and connected title from the records of some public office. Second — A party in possession under such claimant by deed, devise, descent, contract, bond, or agreement. Third — All this latter class in possession under a party claiming by deed duly authenticated and recorded. Fourth — Where the party in possession claims under a sale on execution against any of the previously enumerated classes. Fifth — Where the party is in possession under a sale for taxes. Sixth — Where the possession is under a sale by executors, administrators, or guardians, or under a decree in chancery.”
    The case of the defendants is not embraced within the first class, above specified, for the reason that they have no connected title, in the language of the statute. The statute' here evidently means that the deed under which the claimant holds, shall be connected with other similar title papers, thereby forming a chain of title.
    Their case is not embraced in the third class, for although they hold under a deed duly authenticated and recorded, yet they were not in possession under a party claiming under such deed. Had the descent been cast under such a deed, say the court, in the last cited case, (6 Ohio 11,) the heir would be let in to the benefit of the statute, though the ancestor could not have been.
    It will not, we presume, be claimed that the case of defendants is embraced in any of the other classes specified. The defendants were in possession, having a deed from Nathaniel Glick, (who had no title to our reversion in the two-thirds,) which purported to convey them the whole land. This is all the color of title they had, and we conclude, from an examination of the terms of the statute, as well as from its authoritative exposition in the above case, that the Legislature have made no provision embracing their case, and that they are consequently not entitled to the benefit of the occupying claimant law.
    2. Because the title of the Greggs, so far as it is apparently in conflict with that of complainants, is fraudulent in law.
    In the case of Lessee of Vincent v. Goddard, 7 Ohio R. 188, 2d part, the court hold a title acquired from a judgment debtor after levy, fraudulent, as against the subsequent purchaser, under the judgment, and consequently the claimant excluded from the benefit of the occupying claimant law.
    No one, say the court, who received a conveyance from the judgment debtor after the judgment and levy, could be considered a purchaser in good faith.
    The principle of this decision is strongly applicable to this case. The Greggs receive a deed from Nathaniel Glick for the reversion belonging to complainants. Glick has no title to that reversion, nor any pretense of title. Complainant’s title to it stands as fair and as unclouded, upon the records of the ' county, as any other title in the state. The record of the will of their grandfather is their source of title as to one-third, and the deed from John and David Brobst, to Nathaniel Glick and wife, their source of title as to their other third of the property-
    The very deed under which Nathaniel Glick acquired title to his one-third part of the land, is also the source of our title to. the same extent, and the will of Jacob Brobst, deceased, through which his title is devised, is also the source of the residue of our title.
    No one who receives a title from Nathaniel Glick under these circumstances for our inheritance, can, as we submit, be considered a purchaser “ in good faith.” The Greggs stand chargeable in law with notice of our title as it appeared upon the records, as obviously as the purchaser from the above mentioned judgment debtor, was chargeable with notice of the existence of the judgment and levy, at the time of his purchase, which was held in the. case cited to exclude him from the benefit of the occupying claimant law.
    3. The claim of the Greggs cannot be sustained, for the reason, that at the time they made their improvements, they held an estate for the life of Nathaniel Glick, in the two undivided third parts of the land now belonging-to complainants. In other words, they made their improvements upon their own land during the continuance of their own estate, and while they were rightfully possessed of it, and accountable to none for the use and occupation of it.
    We submit, that the equitable principles of the occupying claimant law have never been supposed capable of such expansion as to compensate a party for improvements made on his own property, or to charge the reversioner for improvements made by the tenant for life, during the continuance of the temporary estate. It ought not to be so extended and applied, because it would be inequitable so to do.
    The most that can be said in favor of the claim of the Greggs, is, that they were mistaken as to the duration of their title; they supposed they were seized, in fee, of the whole fifty-four and a half acres, when they were, in fact, only seized, in fee, of one undivided third part of it, and of an estate for the life of Nathaniel Glick, (who was tenant by the courtesy,) in the remaining two thirds. Nothing had ever been done by complainants leading to or confirming this mistake. The means of correcting it were upon the public records of the country. The Greggs had but to turn to them, and open their eyes, and the mistake would have vanished.
    In the case of lessee of Waldron v. Woodcock, 15 Ohio R. 14, where the claimant had made improvements, without the boundary of his land, the court say: “ This improvement, though made under a mistake, and perhaps innocently, was made in his own wrong, and is not embraced in any of the provisions of the “ act for the relief of occupying claimants of land.” * * * The case then shows that the recovery has been had against him, not from any defect of his paper title, but for want of proper care in ascertaining the identity of his own land, he neglected to seek out the true line called for by his title papers, and from this neglect, trespassed upon his neighbor.” The applicant in that case was left without compensation ; the consequence of his mistake and of his negligence, were left to fall upon himself, and not visited upon another.
    The principle of this case is strikingly analogous to the one at bar, and we doubt not that the Greggs will be left to sustain the consequences of their mistake and of their negligence, and that the court will refuse to burden the estate of these infant children, by sustaining the claim asserted against it.

      U. H. Hunter, for defendants.
    1. We insist that the defendants are entitled to the benefit of the occupying claimant law, to be paid for their improvements.
    2. That independent of the act for the relief of occupying claimants, this court, as a condition to the granting of relief, under the circumstances of the case, to complainants, will direct an account and compensation for the improvements made by the defendants.
    The case is a bill in chancery for partition. The defendants assert that, believing themselves to be legally entitled to the whole estate, they have erected valuable buildings and improvements on the lands whereof partition is prayed. And the fact that they have, made such improvements is admitted by the complainants in a written agreement signed by their counsel on file in the case.
    In this state of the ease the law is well settled, upon the principle, that “ those who ask equity must do equity,” that a court of equity will not grant a partition “ without directing an account, and compelling the party applying for partition to make due compensation.” Swan v. Swan, 8 Price R. 518.
    “ So where one tenant in common, supposing himself to be legally entitled to the whole premises, has erected valuable buildings thereon, he will be entitled to an equitable partition of the premises, so as to give Mm the benefit of his improvements ; or, if that cannot be done, he will be entitled to a compensation for those improvements.” Town v. Needham, 3 Paige R. 546, 555; Teal v. Woodworth, 3 Paige R. 470; Story’s Equity Jurisprudence, fifth edition, section 655.
    These authorities are so immediately in point in the case under consideration, that all further comment is deemed unnecessary, except to show that there is no ground for the imputation of fraud, found in the argument for the complainants against the defendants. They bought from the father of the complainants, who it will not be presumed, would have colluded with the defendants to defraud his own children. He sold the entirety of the estate to the defendants, believing, no doubt, that he had a right to do so. There is not the least reason to suppose that the defendants understood the history or legal effect of the title of Glick. They bought it, as he sold it, in ignorance of the plaintiffs’ rights. Indeed, there is not a particle of evidence that the defendants knew that such children as the plaintiffs existed, or that Glick ever had had any other wife than the one he was living with when he sold the land, and who joined him in the deed ; and if the defendants had gone to the records to see what sort of title Glick had, they could not there have learned anything about who his present wife and children were, or whether he had any children.
    To attempt to draw out of these facts a presumption of fraud is utterly absurd.
    Under the circumstances of the case, therefore, and upon the authorities cited above, there is no question but that the defendants are entitled to be compensated for their improvements, and this too, should not the facts of the case bring them within the letter of the occupying claimant law.

      This being the case, it may be asked, why do we-insist upon the benefit of the provisions of that act ? My answer is that if we are entitled to the benefit of the act, it gives us some advantages that are not given by the equitable rule — amongst others the right to elect to take the land at its valuation, excluding the improvements.
    I deem it unnecessary to argue the question upon the statute, further than to say that, if I understand Mr. Brazee’s argument, it rests upon the assumed or implied fraud, chargeable on the defendants from the implied notice of the particulars of Glick’s title, as it might have been found on record. If this would be a good ground on which to presume fraud, it is evident that the statute could never be effective in any case, because a paramount title must always be deducible from records, and would therefore, in all cases, furnish the'same sort of implied notice that is found in this case.
    As to the case of Vincent v. Goddard, 7 O. R. (pt. 2) 188, I must presume that there were in evidence some other circumstances of fraud not referred to in the report. If not, then it seems to me it is a case of very questionable authority.
    I ask the court to refer to the facts of this case as presented in the pleadings, and to rule that it is within the statute — and then to give to the defendants relief according to the statute, as nearly as may be practicable.
   Caldwell, J.

There is no controversy in this case, as to the title to the land. Catharine Glick was entitled, in her own. right, without any conveyance, to the one-third of 54 acres, as well as of the whole tract, and the conveyance by her brothers vested in her and her husband in equal portions the remaining two-thirds. The deed from Nathaniel Glick to the defendants, then, although purporting to convey the entire property, only conveys the one-third, and the complainants inherit from their mother the remaining two-thirds. The defendants claim that they purchased the property in good faith, that Glick had been living on it for some time, claiming it as his own, that they supposed him to be the owner of the entire property, and had a perfect right to convey it, that they took a deed from him and his then wife, and that when they made the improvements on it, they considered themselves bona fide the sole owners, and that, being thus situated, they are entitled to the benefit of the occupying claimant’s law, for the value of the improvements which they have put on the property. The complainants deny that the defendants can avail themselves of the provisions of that law, and on this question the principal controversy has arisen.

On account of the ambiguous phraseology of the statute, it is difficult to arrive at any satisfactory conclusion on the subject.

A part of the first section of that act reads as follows: “ That in all cases where any occupying claimant, being in quiet possession of any lands or tenements, for which such person can show a plain and connected title, in law or equity, derived from the records of some public office ; or being in quiet possession of, and holding the same by deed, devise, descent, contract, bond, or agreement, from and under any person claiming title, as aforesaid, derived from the records of some public office, or by deed duly authenticated and recorded; or being in .quiet possession of, and holding the same under sale on execution, against any person claiming title as aforesaid, derived from the records of some public office, or by deed duly authenticated and recorded,” etc.

Now whether the meaning of the statute is, that a person, to be entitled to the benefit of the act for the relief of occupying claimants, should derive his title from some person who has derived it in some of the various ways enumerated, and whether the phrase by deed duly authenticated and recorded,” refers to a deed to a claimant himself, or his grantor, is very difficult to determine. It will read either way. . Difficulties present themselves to either reading. The punctuation would favor the application to the grantor. Still we do not think such construction consistent with the general intention and object of the statute. The defect in the grantor’s deed may be the cause of the claimant losing his land, and yet the hardship to him be as great, his equity may be as good, as if the property had passed through several formal conveyances. The statute would certainly fall far short of granting the relief required, if it did not extend to a party who had purchased in good faith, resided on the property any length of time short of the period named in the statute of limitations, and made valuable improvements, supposing himself the real owner of the property, merely because his grantor’s deed was not formally executed. The general intention of the statute is to afford relief to those who have purchased in good faith, gone into quiet possession, and whilst in possession, believing themselves the rightful owners of the property, have made improvements which have enhanced the value of the land.

Nothing is more equitable, and necessary to the proper administration of justice, than that when the party thus situated has given up the possession on account of some defect in his title, he should receive the value of the improvements that he has honestly made, and is compelled to leave on the property. Where there is doubt in the construction of a statute such as this, it is certainly the duty of the court to give it such construction as will best carfy out the general objects intended by its passage. In this case the claimants purchased the land, so far as we can ascertain, in good faith ; they gave a fair price for it; they purchased from one in possession.

It is set up in the answer, that a portion of the purchase money is still unpaid, for which the administrator of Glick holds the notes of defendants, and it is asked, that the defendants be released from the payment of these notes, or so much thereof as may correspond with the price of the land, the title to which has failed. This would certainly be equitable, but as the pleadings stand, we suppose that we cannot inquire into that matter. The defendants have merely referred to it in their answer, without presenting it in the form of a cross bill.

A decree may be taken for a partition of the premises, allowing to the defendants the benefit of the occupying claimant law.