author: Judge Grimke

text:
    *Garry Lewis v. Calvin G. Sutliff and Milton Sutliff.
    Where an injunction to a judgment at law, for the payment of money, is dissolved, the bill continued, and sundry payments made before its final dismissal, the decree is to be for the balance due at the time of dismissal,, with the legal penalty of damages upon that balance.
    This cause was reserved in the county of Trumbull, and came-before the court upon the following facts :
    At the November term, a. d. 1835, in Trumbull county, CalvinG. Sutliff obtained a judgment against complainant and one Matthew Acheson, for the sum of eleven hundred and twenty dollars debt, and one cent damages, with costs amounting to the sum of seven dollars forty-six and one-half cents, together on a judgment bond; and on April 23, a. d. 1836, Lewis filed the present bill in chancery against the defendants in the court of common pleas, and obtained an injunction on the judgment at law, for the reasons set forth in said bill.
    On April 28, 1836, the defendants filed their answer, and at the-April term, 1836, the court dissolved the injunction on the judgment at law, and continued the canse until the next Jane term. At the June term the cause was continued until the November-term, 1836. That on June 29, a. d. 1836, Lewis and Acheson paid to Calvin G. Sutliff, on the judgment at law, the sum of nine hundred dollars, and on October 20, 1836, Lewis paid the further sum of one hundred and thirty-three dollars; all which appears on the-execution docket of the court. At the November term of the court this bill was dismissed, and the court decreed that Calvin G. Sutliff should recover of the complainant the debt, damages, and costs recovered in the suit at law, with interest thereon up to the time of the dissolution of the injunction, in all amounting to the sum-of eleven hundred and fifty-seven dollars fifty-three cents, with-interest on the same until date of the decree, and five per cent, penalty on the amount aforesaid, amounting to ninety-six dollars seventy-five cents, and the cost of this suit; and that execution issue thereon as on a judgment at law. To avoid which decree the complainant appealed to the Supreme Court; and at the August term of the Supreme Court, in Trumbull county, the cause came on, and the complainant, by his counsel, consented that this bilL of complaint might be dismissed, but objected to the rendition of any decree in the case except for the taxable costs in this suit. Whereupon the court reserved the cause for determination in the-court in bank, upon the following points, viz :
    1. Whether the respondent, Calvin G. Sutliff, is entitled to a decree in this suit for the judgment and costs in the suit at law, under the present state of facts, or not?
    2. Whether Calvin G. Sutliff, under the existing state of facts *and law, is entitled to any penalty, by a decree in this case, on the judgment at law, or not?
    W. L. Knight, for complainant.
    M. Suture, for respondents.
   Judge Grimke

delivered the opinion of the court:

Both of the questions presented in this case may be very shortly disposed of.

1. Is a party holding a judgment at law stayed by injunction»who, pending the bill, receives the largest portion of his debt, entitled to a decree for the whole amount? Where the injunction is dissolved, the statute makes it the duty of the court to render a-decree for the respondent, for the amount of the judgment recovered at law. But this is in contemplation of a dissolution of the-injunction and dismissal of the bill at the same time. It would then be proper, and would be the only correct course to render a. decree of that kind. It would perhaps have been the better practice under this law, if a decree had always been considered as superseding the judgment, instead of permitting the decree and the-judgment both to remain in force. As the whole jurisdiction is-drawn to a court of chancery, the final decree in that court, settling the rights of the parties, and ascertaining the amount then due, might well be considered as vacating the judgment to the extent to which the decree reaches. But a different practice has prevailed, and we do not feel authorized to disturb it, inasmuch as no-injustice can arise from it. When the injunction is dissolved during-the pendency of the suit, full effect is necessarily given to the judgment at law. When a final decree is passed dismissing the bill,, if the judgment is then also continued in operation, the decree becomes simply accumulative security for the payment of the debt,, which can be but once collected. Here a large portion of the debt has been paid, pending the bill in chancery, and since the dissolution of the injunction. If the amount now due were ascertained, ■the decree would be for that amount only.

The second question is, whether the judgment creditor is entitled to a penalty, where the injunction is dissolved at one term, and the bill dismissed at another? And we are of opinion that he is so entitled. Chancery can not decree the penalty upon an interlocutory order dissolving the injunction. It can only be decreed on the final disposition of the case, and we hold that it is *then to be calculated only upon the sum found to be at that time due. This reconciles in the most just manner the pretensions of all the parties. By receiving payments on his judgment pending the bill, the creditor is held to have waived the penalty on the amount received. The case is sent back to the county to ascertain the amount -of payments. The decree will be for the balance due on the judgment, with the costs and accumulating interest; and also for the -costs in chancery, and a penalty on the balance found to be due.


source: Caselaw Access Project

author: Judge Wood

license: Public Domain

text:
    Executors of Gilmore v. The Bank of Cincinnati et al.
    .Lapse of time precludes creditors-of broken banks from coming into equity to enforce rights, which, if freshly pursued, would be available. Under circumstances, twelve years may constitute this lapse of time.
    This cause was adjourned from the county of Hamilton.
    The original and amended bill sets forth that J. & G. R. Gilmore have-recovered a judgment against the Bank of Cincinnati, foreight ■thousand seven hundred and eighty-four dollars and fifty-one cents .and costs; that execution has issued thereon, and that no property •can be found. It charges that part of the defendants are indebted to the bank for moneys loaned; that others are indebted to the institution as original subscribers for stock; that others have become the owners of shares of stock not paid up. It is charged that the bank has become dissolved by non user, that no officers have been ■chosen, nor has any business been done by the institution for several years past; and the prayer of the bill is, that those of the defendants who may be indebted -to the bank, either for stock or otherwise, be decreed to pay their debts to the complainants, so far as ¿nay be necessary to pay and discharge their debts.

      The facts established are, that the plaintiffs, and also the Bank of the United States, are judgment creditors of the Cincinnati Bank; that no officers have been chosen to manage the institution forseveral years; and that it has long since ceased to transact any banking or other business; and that many and nearly all of the-original subscribers are indebted to the institution for portions of their subscriptions. Many of these original subscribers have long' since transferred their stock. The subscriptions, however, have not been paid up.
    *Fox, for complainants:
    From the facts of the case, the following questions arise:
    1. Are the original subscribers to the stock of this bank, and now holding the same, now liable to pay up the balance due on their subscriptions?
    2. Are those original stockholders or subscribers who have-transferred their shares, still liable to make good their original, promise to pay for the stock ?
    3. Are any of the assignees of this stock liable to these creditors, or were they liable to the bank for the amount of subscriptions ■ made by the first purchaser or subscriber?
    4. If any or all of these classes of defendants are liable, in what ■ way or manner shall they contribute, should all of the subscriptions not be required to pay the debts of the bank?
    I suppose that there can be no question of the liability of the-original stockholders to the corporation (was that in existence) to pay the amount originally subscribed for. They contracted to-pay, for the several shares by them subscribed, a certain amount. The subscription by the subscriber and the acceptance of it by the bank, or those authorized to receive subscriptions, constituted a binding contract; and the subscribers must comply with-this, as with any other contract. On what pretense can it be seriously contended that these original subscribers are not liable?' They have made a contract — they have pledged their property to • the amount of their subscriptions to the creditors of the institution for the fulfillment of its contracts. It was on the faith of their promises and undertakings being complied with, that the-bank obtained its credit; and after giving a credit to the paper of the bank by the weight of their names, they ought to redeem their pledges. It is useless to argue this question. It appears to me-' so plain that argument is useless. The principle has been fully recognized and acted upon in the following eases: 1 Bin. 74; 16 Berg. & Rawle, 140; 9 Johns. 217; 14 Ib. 244; 15 Mass. 522; 16 Ib. 15, 100.
    In equity, it is well settled that the stock is considered as *a pledge for the payment of the debts of the corporation. 3 Mason, 311; 19 Johns. 474; 15 Mass. 522; 16 Ib. 15; Hopk. Ch. 304; 8 Cow. 396.
    The second question is decided by the decision of the first. If the original subscriber was at any time liable, it is by virtue of the contract he made at the time of subscribing; and he could *not release himself from the obligation of that contract by transferring his stock to a third person. The original subscriber in this respect is precisely in the situation of an original lessee of an estate. He is always liable to pay the stipulated rent,-because •of his contract to do so, while his assignee is only liable so long as ‘•he enjoys the estate; but even the assignee’s liability, while he is in the possession, does not prevent the lessor suing his lessee on -his original contract. The subscriber who transferred his stock has recourse against his assignee for the amount he may have to pay, provided the assignee agreed to pay the balance due on the •subscription; and, at all events, that is a matter between the subscriber and his assignee.
    As to the third question propounded, I am not aware that the -complainant is much interested in the result of the decision on that point. It would seem to me that inasmuch as the court have all the parties before them, both original subscribers and their assignees, if the latter would be ultimately liable to the assignee there would be no impropriety in making him directly liable. I am aware, however, that at law it has been held that an assignee of stock is not liable to a suit for the sum due on the subscription. 1 Bin. 70; 10 S. & R. 273; 14 lb. 422.
    But I understand it will be contended that the subscribers are not liable until the directors of the company have called for installments ; so that if the directors refuse or neglect to make the stockholders comply with their contracts, the creditors are with-out remedy? Can such be the law? This question, however, has been frequently decided. In the case of Briggs v. Penniman, Uowen, 395, the court say. “ The stock subscribed and agreed to -be paid in to the company became corporate property, and when paid in might be reached by ordinary proceedings; and if not paid

      in, a court of equity would compel the trustees to collect and apply it io the payment of debts." 3 Mason, 311.
    The stock subscribed is the fund which the creditors depend upon for the payment of their debts. It is a fund substituted for the individual responsibility of the parties who are interested in the profits of the business. Take away this responsibility of the subscribers to the amount of stock subscribed, and what is there left on which the community can rely for the fulfillment of corporation promises? There is already an unfavorable opinion with regard to corporate institutions. They are looked upon suspiciously by many; and if the doctrine now contended for by these ^subscribers shall be tolerated, such institutions will not be endured. For the credit of these institutions, the subscribers ought to be held strictly to their engagements. They have promised to create a fund for the payment of their debts, and have neglected to comply with their promises. They have appointed directors to see that the contract was complied with; these directors, who are trustees for the benefit of stockholders and the creditors of the institution, have violated their trust. They have failed to discharge their duty by calling in the necessary installments, and we now ask the court to appoint other trustees, or to do that which the trustees ought to have done— compel the stockholders to pay up the amount due on their stock.
    I contend, further, that the rights of the creditors are not only not affected by the palpable omission or neglect of their directors to do their duty, but that the directors and stockholders could not, by any act of theirs, deprive the creditors of their right to compel the subscribers to pay up their subscriptions. This question is directly decided in the case of Slee v. Bloom, 19 Johns. 456. In that case the stockholders and directors passed a resolution allowing subscribers to forfeit their stock on paying thirty per cent, on the amount of their subscriptions. It was held that this resolution could not destroy the rights of the creditors of the institution without their consent. The resolution was declared by Chief Justice Spencer, page 478, “to be against the fundamental principles of law and equity, legally fraudulent, and therefore void and inoperative.”
    But from the fact of the defendants having procured the original articles of association, I presume they rely upon those as affording evidence of their exemption from the calls of the complainant. I have read these articles, and have discovered a clear and manifest intention on the part of the person who penned them, to repeal the law of the land by association. By the first clause of these articles, which may be deemed a sort of proclamation, it is made known and “ proclaimed,” that “ the subscribers have formed a company or limited partnership,” and have agreed to conduct their business under the name and style of “The President and Directors of the Bank of Cincinnati.” By section 16, it is provided and “ expressly, and explicitly declared to be the object and intention of the persons who associate under the name or firm of the president and directors of the Bank of Cincinnati, that the joint stock or property of the said company, exclusive of dividends to bo made, shall alone be responsible for the-debts and engagements *of the company; and that no person dealing with the company shall, on any pretense whatever, have recourse against the separate property,” etc. And by the second section it is provided, that, the capital stock shall consist of six hundred thousand dollars, and be divided into shares of fifty dollars each, to be paid two dollars on each share at the time of subscribing, or in ten days thereafter; eight dollars within ninety days, and all further installments to be paid at the discretion of the president and directors. And by section 17, after providing for the payment of dividends, it is declared, “ that the capital stock of the company shall never' be impaired by dividends;” and if more than the actual profits shall bo divided, the-directors present at the declaring of any such dividends are, by section 18, made personally liable for the amount of capital stock so divided. These are all the material provisions contained in the articles of association which appear to me to have any bearing upon the question now before the court. And I must confess that I do not see how these articles of association can be made to favor the defense set up. They show distinctly that each subscriber agreed to pay fifty dollars for each share subscribed; that the whole amount subscribed was distinctly pledged to pay the debts and engagements of the company; and they contain a direct prohibition of appropriating any portion of their stock for any other-purpose. As to the provision of the forty dollars per share being only payable at the discretion of the president and directors, it. must be understood to be a legal honest discretion — not an arbitrary unjust discretion. The directors, as just trustees, were legally bound to regulate their calls as claims against the institution required. It was their duty to have a fund to meet the demands against the institution, and it is because they failed to discharge that duty7 that we are compelled to ask the aid of this court.
    With regard to the mode in which the subscribers should contribute, I do n’t know that the complainants have any interest in discussing the question. It is more interesting to the subscribers themselves than to the complainants. I suppose that, as the subscribers are all debtors to the bank, and as we have aright to pursue all such debtors, we ought to have a decreo against each for the amount of subscription unpaid. I know of no distinction that can be made. To the extent of the stock subscribed the subscribers are all debtors, and we claim, therefore, a decree against each for that sum. If one subscriber should have to pay more than a co-subscriber, the question of contribution may then %rise between them; the complainant is not interested in that question.
    N. Wright,, for respondents:
    The points taken by the counsel for complainants may be included in two inquiries, viz :
    1. Whether any stockholders, after assigning their stock, can be made liable for installments on the stock. ,
    2. Whether the present holders of the stock can now be compelled, in chancery, to pay installments on stock not called by the directors.
    The Bank of Cincinnati was incorporated by the general law, passed February 23, 1815. 14 Ohio L. 87, see. 11. At this time it was an existing association, and is incorporated as such; and we suppose that the articles of association, so far as not varied or superseded by the charter, may, to some extent, form the present rules of the corporation. We have, therefore, made proof of these articles.
    As to the first question above stated, it does not seem to require much argument. Both the charter and the articles of association provide for a transfer of the stock; when such transfer is made, the assignee becomes the party recognized by the bank, and is the only one with whom she has any concern. New certificates are ordinarily issued to him, and the remedy for default of payment of the installments is a forfeiture of the stock, or sale of it in market. Banks usually require transfers to be made on their ■own books, thereby securing to themselves the benefit of any lien or claim they may have against the original holder. But when they have once admitted the transfer to be made, they have waived all further claim on account of the stock.
    The original subscribers stand in the same situation as any intermediate holders of the stock. They are mere stockholders, and that the bank should have a right to call on them for installments, after admitting their assignees as stockholders, is most unheard of and most preposterous.
    If the bank itself could not maintain such a claim, surely the present complainants can not. The bill seeks to subject debts due to the bank, and can go no further. It can not compel any one to pay anything which the bank itself could not compel. It can reach nothing but liabilities to the bank; and, of course, if the *bank had no claim on such stockholders, the complainants can establish none.
    • The next inquiry is, whether the present holders of stock can now be compelled to pay installments not called by the directors.
    To settle this question we must first examine the charter. Section 8 of the above law provides that one-tenth of the stock shall be paid at the time of subscribing, and the balance in such installments as the directors shall direct, with sundry restrictions as to the amount, time, and manner of calling installments. Public notice must be given ; only ten per cent, can be called at a time, and three months must intervene between calls. If there be any doubt whether this section applies to the Cincinnati Bank, the articles of the association, article 2, contain the same provisions in substance. But we suppose that the concluding clause of section 11 makes section 8 a substitute for this article.
    Section 29 provides that the whole amount of debts 'which the bank shall, at any time, owe, exclusive of deposits, shall not exceed three times the stock subscribed and actually paid into the bank ; and in case of excess, the directors to be personally liable.
    By the last provision it is obvious that the capital of the bank, on.which she is authorized to do business, is not the nominal amount of stock, but the amount actually paid in thereon. The directors, therefore, may, if they see proper, call only one-fifth of the stock, and then can contract debts only to three times that amount. In other words, they may limit their capital to one-fifth ■of the nominal amount of the stock; or, at their discretion, may increase it by calling installments to the full amount of the shares. The community, or the creditors of the bank, have no interest in the matter, and no right to complain, for their security is not diminished by refusing to call in the whole amount; because if the whole amount is called, the bank may incur debts to three times that amount; whereas, if only one-fifth is called, •debts can be incurred to only three times that fifth. It operates precisely as an increase or diminution of the capital on which the bank can trade; and the directors are, by the charter, vested with the discretion to fix the amount of that capital.
    Now, under such a charter can it be said that thereys any constructive contract or obligation by the stockholders to pay any installments beyond what the directors see fit to call? The circumstances of the times may render it expedient for the bank to confine itself to a small business ; the issues of the bank must be •^restricted accordingly, and, of course, its profits will be ratably small. The directors alone are vested with the discretion to decide on this matter. It is an important discretion, and no others can exercise it for them. Surely it can not be said that there is any implied obligation upon the stockholders to increase this capital unless the directors should so decide. It is not a debt of the stockholder until the directors make it so by deciding to make a call. Did the charter make the whole stock payable at all events, or authorize business to be done on the whole capital stock, the case would be different.
    Neither can it be claimed that the directors are in fault for not ■calling further installments, and therefore ought now to be com-polled to call them, or this court will treat them as called. The protection of creditors of the bank, and of the community, is, that the bank liabilities are restricted to three times the amount actually paid in on the stock. Suppose additional installments had been called; those installments would stand in security for the additional liabilities of the bank, accruing on her increased means. Creditors are in no way wronged or misled. They might as well claim an equity to have the original capital stock increased, for ■ he payment of their claims, because the original means are exhausted. "We may concede that the effects of a corporation, and the installments actually due on its stock, are a trust fund for the benefit of its creditors; and the concession would not affect- the-present case. Here the business is limited to the installment», paid, and the dividends were made, not on the original amount of the stock, but on the installments actually paid thereon.
    The lapse of time is .another reason why installments can not-now be called on the stock, even if they were ever collectable. The bank ceased all business about 1820 or 1821. Only twenty dollars on a share was ever called by the directors; this bill was filed, so far as relates to the present questions, March 26, 1832,. ten- or twelve years after the bank was broken up ; indeed, near-fourteen years after she stopped specie payments. In the mean time, as the record shows, many of the stockholders are dead» doubtlesR a.large portion of them are insolvent, many left the state; of course, a call of installments now would operate most, unjustly. Probably not one in twenty could be compelled to pay The charter contemplates equal assessments on the stock ; and no assessment could be equitable which was not equal. Circumstances are so changed by the lapse of time (they must be in the ordinary course of human events), that no assessment now can ^operate equally. The modes provided by the charter for enforcing payments of installments have become entirely nugatory ■ those who should be compelled to pay have lost all means of being remunerated from others, or of deriving any of the benefits secured to them under the charter. The State of Ohio itself is a-large stockholder; whether she would be called on for her installments is, perhaps, doubtful. The charter makes them payable in the first instance out of the dividends; and if they are-payable only in that way, the insolvency of the bank has entirely destroyed the equality between her and other stockholders, in ease-of a new assessment on the stock.
    On this point, it is not necessary to cite the law on the effect of delay and lapse of time. Equity aids only the diligent, and especially it gives extraordinary remedies only to clear equity and prompt claim. It is now at least nineteen years since the complainants’ claim must have originated.
    Another point made in some of the answers, though not touched in argument by complainants’ counsel, is the statute of limitations. Whether it is now to be considered by the court, I do not know. We insist that it is a bar of any claim for installments on stock If any such can be called, it is by virtue of an implied contract by the stockholders, and of course is barred by the statute. Perhaps
      s, decision of this point, as applicable to the case, may involve too much of fact to be now decided. It may turn on the special circumstances of each defendant who may set it up.
    Another question will arise, though perhaps not as a subject of much controversy, whether stockholders can be reached, if at all, until after the debts due to the bank are exhausted. A large amount of debts appear to be due to tne bank, but whether solvent or insolvent does not appear.
    S. P. Chase submitted a separate argument for respondent, ■Stone.
   Judge Wood

delivered the opinion of the court:

Upon the facts as stated, in this case, the counsel for the complainants present four distinct points for consideration and decision.

1. Are the original subscribers to the stock of this bank, who ■still continue stockholders, now liable to be made pay up their stock to create a fund for the payment of its debts?

In equity, it is an established rule that the stock of a trading *corp‘oration is a pledge for the payment of its debts. Upon 'this stock it originally obtains credit, It is the duty of its managers to see that the stock is contributed, and it is not less the duty of the subscribers punctually to contribute it when required to do so. If not thus contributed, equity may compel it to be done, in a proper case, and where good faith requires it. While in full life, the court would operate upon its corporate faculty. The abandonment of its duties, by that faculty, can not defeat the rights of third persons. Under our statute, we believe that equity, in behalf of a judgment creditor, may invest him with all the rights to act, in settling the concerns of the bank, and one of these might be to compel a contribution-of unpaid stock. But this must depend upon all the particular circumstances of the case.

2. The second point raises the question : In a bill like this, can •original stockholders, who have bona fide transferred their stock, when they had paid up all the calls made, be called upon to contribute the unpaid proportion, for the satisfaction of creditors? We have come to the conclusion that such contribution can not be -exacted. The right of bona fide transfer is secured by the terms of the charter. It relates to the honest conditions of the parties at the time of the transfer. When this transfer is fairly made} new certificates generally issue, and the stock assumes a new character as to the ownership. The new owners incur the responsibilities of their position, and those who honestly make the. transfers are discharged. But the transferees succeed to all the. legal responsibilities of the original parties from whom they purchased, and nothing more. The extent of these responsibilities is-usually settled at the time of transfer. If not then adjusted, the-liabilities of those implicated may depend upon circumstances.

In the view we take of the case before us, it was not absolutely necessary that we should have gone as far as we have, in deciding-the two points disposed of; but, in doing so, we think we may make our final decision more clear and comprehensible.

3. The third point involves the liabilities of assignees of stock... This, we have said, depends upon facts connected with the transfer.

4. The fourth point covers not only the case of stockholders, but that of debtors also. The respondents insist that the lapse of time and change of circumstanoes forbid that any of these should be subjected in this case. And in this position we concur. In relation to the stock of this bank, to the debts due it and due from it, all values have changed, while the complainants have* been sleeping over, or creeping on in the pursuit of their rights. Changes-*of this kind have rendered it impracticable to do anything like equity among all who may possibly be affected. The case-has become stale and is not to be favored. Clark v. Bond, S. C. 282; 1 Mad. Ch. 15, etc.; 1 Ohio, 22, 532; Story’s Equity, Com. 785. In fact, all the cases concur that time may become decisive-of a party’s rights in a case like the present.

Bill dismissed, as to certain defendants; retained as to others-


author: Grimke, J.,

text:
    Mary Glenn v. Bank of the United States.
    A feme covert’s execution of a deed, in conjunction with the attorney in fact of her husband, is valid and obligatory upon her.
    This cause was adjourned from the county of Hamilton.
    The case made by the bill, answer, and exhibits is this : Hugh. Glenn, in his lifetime, by power, of attorney, duly executed, and dated September 15, 1820, authorized, his brother, James Glenn, for him and in his name, to make sales of his estate, real, personal, or mixed, and to execute good and sufficient writings and deeds therefor. Under this power, and in pursuance of the authority conferred by it, James Glenn conveyed the premises, of which the petitioner now seeks to be endowed, to the Bank of Cincinnati, and the petitioner joined in the conveyance, and relinquished dower in the usual form. There is no defect in the execution or acknowledgment of the deed. The premises were subsequently conveyed, by an unquestioned deed, by the Bank of Cincinnati,'to the present defendants.
    Y. "Worthington, for complainant:
    By the laws in force when this deed was executed, there were but two ways by which the estates of femes covert could be conveyed or incumbered. The one was by deed in writing, signed and sealed by the husband and wife, acknowledged by them in the presence of two subscribing witnesses, and also before a judge of the common pleas or. a justice of the peace. 16 Ohio Stat. 253, sec. 2; 2 Chase’s Stat. 1041. The other was by a power of attorney executed by the wife, in conjunction with her husband, in which she relinquished--her estate or right of dower, and the title made under such power must include her name, and shall be valid in law to divest her of her estate or right of dower in 'the lands ^conveyed by virtue thereof. 16 Ohio Stat. 155, sec. 6; 2 Chase’s Stat. 1042.
    This conveyance does not come within the first mode, because the husband does not sign and seal the deed with the complainant, unless it be that the action of the husband, by his agent, meets the requisitions of the law; which leads us to an examination of the powers of that agent, their extent and object, as well as the scope and design of the laws then in force upon this subject.
    It is not denied but that the husband could constitute an agent to convey his estate under the laws then in force; but it is denied that he could constitute such an agent, whose conjunction with his wife would authorize the conveyance of her estate, because the law did not contemplate or provide for such a mode of conveyance. It can not be pretended that the husband, much less the wife, could pass the legal title of landed estates otherwise than according to the statute. By whatever modes legal estates may be transmitted elsewhere, it is certain they can not be transmitted here, except under the forms and solemnities pointed out by statute. The legal title must pass according to law, or not at all.
    The power conferred upon James Glenn, by the warrant of attorney, authorized him to convey the lands of Hugh Glenn, and not those of his wife, the complainant. The extent of the power is to control his own lands, his own estate therein, and not that of his wife. If this be the power, is it not manifest that Hugh Glenn did not authorize, by that warrant of attorney, the conveyance of his wife’s estate ? The power might extend to his own estate in lands belonging to his wife, but it did not extend to her rights, either in his own lands or those belonging to her in her own right. When, therefore, the agent, by the conjunction of the wife, attempted to convey her estate, he transcended his authority. If it be possible for the wife to pass her estate by a deed» executed in conjunction with an agent of her husband authorized to convey his (not her) estate, it would seem to follow that the wife might execute a separate deed and attain the same end, when her husband had previously, or subsequently should execute a deed to the same grantee ; because the consent, concurrence, or conjunction of action required by the statute, upon the part of the husband and wife, exists as fully in the one case as in the other. In neither is there any privity between the husband and wife, as to the rights of the wife, but their action is separate and distinct. The warrant of attorney sanctioned the grant of the husband’s rights ; it did not authorize the agent to act in behalf of the husband upon *the rights of the wife, even if such a thing would have been sanctioned by the law. If I be right in this construction of the power conferred by the warrant of attorney to James Glenn, it follows that the complainant is not precluded by the deed of September 9, 1820; because, as to her estate, the agent had no power to act for the husband, and his concurrence in her act, according to the law, does not take place.
    The object of the law, if I comprehend it correctly, was in every conveyance of the wife’s estate to obtain the united and concurrent action of the husband and wife, as well as the free will and consent of the latter. It, therefore, requires the joint personal action of the husband and wife, as well as the separate action of the wife, on a private examination, to prevent coercion. The statute requires, in express terms, the husband and wife to sign and seal •the deed intended to pass the estate of the wife. This is a personal action in which they must join. If it be a matter in which they can not join, section 6 of the act (2 Chase’s Stat. 1042), comes in and points out a mode for an agency through which they may act. This provision conduces to carry to my mind full conviction that the lawgiver intended that the deed to pass the estate under • section 2 (2 Chase’s Stat. 1041), should be executed in person by the husband and wife. If this view of the subject be correct, it follows that this deed was not executed in conformity with the statute •then in force; because the husband did not join in the deed with the wife. He did not join personally either in the deed or warrant of attorney, nor by his agent, even if the law tolerated that ■mode of passing the estate of the wife.
    Nor did this conveyance come within the other mode pointed • out by the statute, because the wife did not join in the warrant of .attorney to James Glenn ; and if she had joined, it would have been of no avail, as it did not authorize the passing of her estate.
    These were then the only modes known to our law, whereby the estate of a feme covert could be conveyed ; and this deed not being executed in conformity with either mode, does not preclude the complainant from advancing her claim to dower.
    It is, probably, unnecessary to refer to cases to guide us in the •construction of this statute; but, if it be necessary, it is believed the following cases are somewhat analogous to the one now under •consideration: 6 Wend. 1; 3 Paige, 483; 3 Mason, 347; 8 Conn. 544 ; 3 Dana, 319. In the case of Gillespie’s Lessee v. Wiggins and Johnson, *Wright, 231, the construction of this statute came up before this court, though not in the precise aspect it now does, where it was held that a feme covert could only convey her estate in conjunction with her husband; they must both sign and. seal the same deed. That case was this : One Poster conveyed to Hargraves a lot, in Cincinnati, belonging to his wife. Hargraves ascertaining the title was in Mrs. Poster, obtained from her a deed executed by her alone, reciting the deed executed by her husband ; and it was held the wife was not barred, because the husband did not join with her in the deed. In the case of McFarland v. Pebiger,,7 Ohio, part 1, 194, I understand the court to decide the law as I claim it to be settled.

      N. 'Wright, for defendant:
    The right of dower depends on the legal effect of the power of attorney from. Hugh Glenn, husband of the petitioner, to James Glenn, dated April 15, 1820, and the deed made by the attorney for Hugh Glenn, and the complainant, Mary Glenn, in person,, dated Sejytember 9, 1820.
    The complainant contends that she has not barred herself of dower by joining in person, in a deed which her husband executed by attorney.

    For the defendant, we contend that such an execution bars dower.
    The power of attorney was executed under the statute of January 30, 1818, 2 Chase’s Stat. 1041; and the deed under the statute-of February 24, 1820. 2 Chase’s Stat. 1139. -
    On common law principles a man may make a deed by attorney, as well as in person ; it is an act which of course may be done by attorney, and in legislation, as well as in pleading, his deed made-by attorney is spoken of as his deed, no distinction being made-between the two modes of execution. Of course, when.our statute provides that a man may convey lands by deed so and so executed, it includes execution by attorney, as well as in person.. No special statute is necessary to authorize the execution by attorney. This principle, therefore, may be taken as settled, that the statute-providing how deeds shall be executed, includes, in the same general language, executions in person and by attorney.

    This principle probably does not apply to an execution by a married woman, because her power to convey is purely statutory, *and when the statute empowers her to convey by joining in a deed with a particular acknowledgment, there is no power given to make such acknowledgment to a warrant of attorney.
    Again, there are some other familiar principles, which must be-kept in mind. Our statute first authorized a married woman to-convey by joining her husband in a deed. Afterward a provision was introduced, authorizing her to convey by joining her husband in a power of attorney. Now it is evident that this last provision was intended merely as an additional facility, not intended to restrict or limit the power of conveying in any other form; but. adding to the facilities of conveying already provided. Before, she could, convey by joining in a deed; now, she can also do it by joining in the power of attorney.
    Putting together the two principles above stated, what will bo the result? Before the provision for the power of attorney, the general language of the statute, authorizing a deed by husband and wife, would include deed by attorney as well as in person; and of course authorized a deed like the present, where the husband joins by attorney and the wife in person. The subsequent provision for a power of attorney for the wife, does not limit, but extends, this remedy; of course, the same construction must now be given to the same language, and the deed in question is a valid bar of dower.
    It has been argued that the statute intended to secure to the wife* the protection of the presence and personal advice of the husband in the act of executing the deed, or power of attorney, and therefore must be construed as not authorizing any other execution than where they are both personally present.
    The statute does perhaps intend to protect the wife from impo'sition or persuasion, by requiring the husband to join, thereby giving his sanction to the deed. But that is all it requires. When a deed is. drawn for the husband and wife, and is signed by the-husband, that signature is the best proof that the wife can have of the approbation of the husband. Will any court sanction the principle, that the husband, after he had signed such a deed, thereby in the most solemn manner sanctioning it, should be encouraged to turn round and secretly dissuade his wife from signing it?' Surely not. Tet such must be the result of this principle, as contended for on the other side. The statute requires the signature-of the husband, thereby insuring his sanction of the conveyance, but could not insure any other kind of sanction without opening the door for private tampering against his own ^solemn pledge to Others. It could not, therefore, have intended any more than what it says; that is, that the husband shall join in the deed, but after that, leaving the wife to herself, whether she should sign or not.
    The language of the statutes corresponds with our views of the-case.
    The statute of February 14, 1805 (1 Chase’s Stat. 484, sec. 2), provides that husband and wife may execute deeds, and if she acknowledge, etc., on a separate examination, the deed is as valid as if she had been sole. The statute has no reference to power of attorney. It says nothing about a joint personal acknowledgment- or the actual presence of both; on the contrary, requires a separate examination of the wife.

      It seems to me no one could doubt, that under this statute the husband might join by attorney, and the wife in person, to bar ■her right.
    The next statute is that of January 20, 1818. 2 Chase’s Stat. 1041. Section 2 contains substantially the same provisions as the ■former.
    The language of section 1, providing for deed's by others than married women, is the same as section 2 ; and, if under section 1 a deed made by attorney would be included, it must follow that a ■deed of the husband, by attorney, would be embraced in the language of section 2.
    This statute (section 6) first provides for a power of attorney by the wife. This provision is clearly intended to extend the powers of the wife, not to take away any already given. The language is, “it shall be competent for the wife,” etc. It clearly intends to point out a mode by which the wife may make an attorney, and the form of the deed by her attorney. It has no reference to anything but the joint power of attorney; and the effect of such deed is to divest her estate “as effectually as if she had .signed and acknowledged the deed;” plainly indicating that her signature, without reference to the mode in which the husband executes, is a perfect execution.
    The power of attorney was made while this statute was in force. By section 5 of the act of February 24,1820, all instruments, etc., for the conveyance of real estate shall remain as valid as if the act of 1818 had not been repealed. By this act all the original ■effect of the power of attorney is preserved.
    The same general remarks apply to the statute of 1820 as are made above of the statute of 1818.
    *The evil intended to be remedied by these statutes is to enable tho wife, by a simple deed, to convey her estate or bar her dower. The English mode of doing this was by proceeding in court; and the chief object of this proceeding was to ascertain that the wife acted without the coercion of the husband — this was the sole object of the examination in court. So in our statutes, it is obvious that the sole object of the restrictions as to execution by the wife, is to guard her against coercion of the husband. The statutes are not designed to guard her against influence from .any other quarter; for, as to such, a married woman is no more liable to imposition than a single one. In construing these statutes, therefore, this chief object of them must be kept in view.
    It has been common for the husband to execute a deed in one place and the wife in another, making separate acknowledgments-to the same deed. These have always been considered valid, for the statute requires a separate examination of the wife, but does not require a joint acknowledgment. If it does, very few of our-acknowledgments are legal. Suppose the husband signs and acknowledges the deed at my office; the magistrate then calls at my bouse, where the wife signs and acknowledges, the husband not being present. This state of facts is consistent with the ordinary form of a magistrate’s certificate.
    It is held that this certificate must show all that is essential to the legality of the wife’s acknowledgment; still perhaps no certificate will be found that is not consistent with the above state of facts; and such certificates have often been, recognized in court. If it is not necessary to show that they came together in person and acknowledged, I see no reason why the acknowledgment by attorney is not strictly within the statute.
    Again, the statute contemplates a separate and independent act. of the wife. The object of it is to enable her to act for herself; to express her own free will, as a separate and independent person, in relation to her own individual rights; to give her an individual capacity to act, in disposing of her own rights, which she-had not before. In doing this, there was no special occasion to guard her against the frauds of third persons; the guards of the common law are sufficient in this case as well as in the case of an unmarried woman.
   Grimke, J.,

delivered the opinion of the court:

The question arising in this case is a new one; but as there are-no new principles of law it may not be difficult of solution. At-3=the time the deed was executed, the statute of January, 1818, was in force. That act prescribes two modes by which a married woman might release her right of dower; one by joining'in the-conveyance made by her husband; the other by joining in a power of attorney to convey. 'The conveyance to the bank appears to be illegal, because it does not pursue either of these provisions-singly; but if it is a combination of both, it will not, on- that account, be less firm and obligatory; on the contrary, the statute will. be as faithfully complied with as it would have been in the former case, as every statute, at the same time that it professes to ordain .a new rule, contains also a recognition of a great variety of old ones, by the assistance of which we are alone able to understand and interpret it; it becomes necessary to look both in and out of the statute whenever any controversy arises demanding a construction ■of it. A conveyance by a man, by attorney, is itself the creature of the common law ; it has not its origin in any statutory provision. Thus any one who had power to convey directly by deed had ■also power to convey indirectly by attorney. The two modes of conveyance are virtually the same; in both instances, the deed executed is the deed of one and the same person, and the instrumentality of the agent is no further regarded than as he identifies himself with his principal. The statute of 1818, not noticing, but necessarily recognizing these principles, has authorized a married woman to unite in ■.a conveyance made by her husband. Mrs. Glenn has actually made herself a party to a deed, which, in no view you can take of it, can be deemed to be the deed of any other person than her husband; and I do not see but what she is completely and fairly estopped from demanding an assignment of dower. The antiquated mode of barring dower is unknown in Ohio. We have adopted a more simple and enlightened form of proceeding, and it is greatly to the credit of English jurisprudence, that in its numerous efforts of late years to imitate our laws, it has not forgotten this feature of them ; a bill having been introduced into parliament authorizing the American mode of conveyance by husband and wife. If it should be ^aid that there is less solemnity attending it than the ceremony of fine, it may at any rate be asserted that it is better adapted to the advanced condition of women at the present day. Our laws are in reality, to a great extent, a transcript of our manners. If women, as well as men, have been lifted to a higher standard than when fines were invented, it is natural that the law, in every arrangement which it makes for the protection of their interests, ^should be accommodated to that altered condition ; and this affords a very good reason why we should not voluntarily apply any very nice and technical rules in the construction of a statute which is made in furtherance of, rather than in derogation of .the rights of married women.

There is no direct authority to be found on either side of the (question ; but there is a dictum of Parsons, in Fowler v. Shearer, 7 Mass. 21, which is entitled to notice. It says the consent of the husband to the conveyance of tho interest of the wife in lands) “ must be manifested by his joining in the deed, either in person or by attorney.” The case did not demand the determination of this point; however, the dictum of so profound a lawyer, who was not .accustomed to hazard any random opinion, is entitled to the greatest attention. It is evident that our law has two ends, apparently diverse and contradictory, in view. One is to protect the wife from the influence and persuasion of her husband; the other, regarding them strictly as but one person, renders it necessary that his consent should be manifested to the conveyance. The first is •accomplished by a separate examination of the wife, and the other by making him a necessary party to the deed. The mode of conveyance in this instance does not interfere with the first intention, but rather contributes to further it; nor does it interfere with the second, as it is impossible to imagine a more plain and unequivocal declaration of consent on the part of the husband, when the deed executed by him purports to be a conveyance of the entire interest in the land. If I could suppose a case in which a husband might execute a deed of this nature, and yet at the same time, fairly and without any design to commit a fraud, intend not to convey an absolute interest, I might hesitate ; but I can not suppose such a 'ease. I conclude, therefore, that Mrs. Glenn has precluded herself from demanding dower, and that the motion must be granted.


author: Judge Hitchcock

text:
    *Lessee of Moses A. Blackburn v. Benjamin Blackburn.
    In ejectment, a party may make title under a lost deed that never was recorded. In such case, the facts of existence and loss are preliminary and addressed to the court; the case is then committed to the jury upon the contents, execution, acknowledgment, and delivery.
    Motion for a new trial, reserved in the county of Columbiana.
    This was an action of ejectment, submitted to a jury in the county of Columbiana. Moses Blackburn, sen., the grandfather of the lessor of the plaintiff, and father of the defendant, was in possession of the premises under a patent from the government, and continued in possession until the time of his death, when the defendant entered into possession, under the devise of his father,. Moses Blackburn, sen. This specific property was not mentioned in the will, but the plaintiff claimed under a residuary clause. On the trial of the cause, parol testimony was offered- on the part-of the plaintiff to show the execution, acknowledgment, contents, delivery, and loss of a deed alleged to have been made by Moses Blackburn, sen., to Moses Blackburn, jr., the father of the lessor of the plaintiff, in 1821 or 1822, and the parol declarations of Moses Blackburn, sen., respecting such alleged conveyance; which testimony was objected to by the defendant’s counsel,, but admitted by the court, and a verdict returned for the plaintiff.
    The defendant then moved for a new trial, for the following-reasons, to wit:
    1. Because the court permitted parol testimony to be given to the jury to prove that a deed of the premises in dispute, from Moses Blackburn, sen., to the father of the lessor of the plaintiff,, .was .duly made, executed, and acknowledged, according to the forms of law, without requiring the production of the deed itself, or a certified copy thereof from any record or public office whatever, thereupon to lay the foundation for the admission of its loss, that parol evidence might bo given of its contents.
    2. Because the court admitted parol proof of the declarations and acknowledgments of Moses Blackburn, sen., under whom the plaintiff claims, going to shQW, and for the purpose of proving that he had made, executed, and acknowledged a deed of conveyance of the premises in dispute to Moses Blackburn, his son, and. the father of the lessor of the plaintiff.
    3. Because the case, as presented to the jury, disclosed a body of circumstances only cognizable by a court of equity, and such as ought not to have been submitted to a jury.
    4. Because the court instructed the jury that the same evidence-that would satisfy the law as to the loss of a bond or other-ordinary instrument of writing, that secondary evidence might be given *of its contents, would be sufficient to prove the loss-of a deed of conveyance of real estate.
    5. Because the verdict was against the law and the evidence.
    The cause was argued at length by Russell and Merrick, for the defendant, and by Loomis and Metcalf, for the plaintiff.

      For the defendant the following authorities were cited:
    16 Johns. 305; 2 Conn. 80; 3 Amer. Dig. 340.
    For the plaintiff;
    3 Ohio, 108; 10 Johns. 374; 11 Ib. 506; 5 Mass. 101; Phil. Ev. 347.
   Judge Hitchcock

delivered the opinion of the court:

On the trial of this case, the lessor of the plaintiff claimed title to the premises in controversy as the heir at law of Moses Blackburn, jr., deceased, and that his ancestor derived his title by deed from Moses Blackburn, sen. The defendant claimed title under the will of Moses Blackburn, deceased, as residuary devisee or legatee. The deed of Moses Blackburn, sen., to Moses jr., was not produced in evidence, nor a copy from any public office. But the existence and execution of such deed, and its loss, *were attempted to be proved, for the purpose of laying the foundation for going into secondary evidence of its contents. With this preliminary proof the court were satisfied, and admitted parol evidence to go to the jury to prove the contents of'the deed. In this it is supposed by the counsel of the defendant that the court erred, and this error furnishes the ground for the first reason assigned for a new trial.

We are well aware of the necessity which exists, that there-should be certainty with respect to land titles; and that the state of these titles may be known, and evidence of them preserved, our law requires that deeds and other instruments of writing, conveying, and incumbering lands should bo recorded. The same law prescribes that copies from the records of deeds, mortgages, etc., should be prima facie evidence of the existence of such deeds, so that where a deed has been recorded, the party claiming under it is relieved from the necessity of proving its execution, provided he introduce in evidence a copy. 29 Ohio L. 349. The wisdom of this particular provision of law may be questioned; but still, while it continues a part of our system, it must be enforced; Tho recording of a deed, however, is not necessary to give it validity as between the parties. The title passes, not by the recording, *but by the delivery of a deed. True, if it be not recorded within a limited time, a subsequent grantee without notice, will have the land. This is not, however, because there was anything remaining in the grantor which he could convey, but because the-first grantee has been guilty of a culpable neglect, which, upon. any other principle, would operate an injury upon an innocent individual. The title having passed by the delivery of a deed, is not divested by the destruction or loss of that instrument. It still remains in the grantee. How shall he manifest it? Counsel for the defendant answer, by a copy from the recorder’s office. It may not have been recorded, or if recorded, the record itself may have been lost or destroyed. As a matter of fact we know that public records are not unfrequently consumed- by fire, or otherwise destroyed. When other instruments of writing are lost or destroyed, the law is well established that secondary evidence of their contents shall be received. This is not denied; but it seems to be supposed that there is some peculiar sanctity about conveyances of real estate, which requires a different rule to be established. In the opinion of the court, however, the rule is the same in either case. The court must be first satisfied of the existence, execution, and loss of the instrument. No particular kind <or description of testimony need be introduced to produce this .-effect, but it must be such as produces conviction in the mind of .the triers. The case of Lessee of Allen v. Parish, 3 Ohio, 107, is -.an authority upon this point.

It is urged further by counsel for defendants, that by receiving '•parol evidence, to prove the contents of a deed, the statute of 'frauds is violated, or at least evaded. But in this, it seems to the ■court, counsel are mistaken. Section 4 of this statute, 29 Ohio L. 218, provides that no interest in land shall be assigned or granted, -unless it be by deed, or note in writing, etc. If the proposition ,in this case had been to prove a parol grant of the premises in •controversy, it would have been within the statute. But it was •not so. The proposition was to prove that a grant had been ■made in writing, and in conformity with the law regulating the conveyance of real estate. True, the instrument of writing .evincing this grant was not produced; nor could it be, because it was lost, and from necessity parol evidence was .admitted to prove, not a parol conveyance, but a conveyance in writing.

It has been further objected in argument, that by adhering to .-the principle decided upon the circuit there is danger of opening a wide door to perjury. The force of this objection is felt by *the court; we always regret to be under the necessity of ■receiving parol evidence of any written instrument, and not un,frequently, in such cases, entertain suspicions that the party claiming under such proof, establishes a more favorable case than he would were the instrument itselfproduced. Butitis notwithin our province to disregard a rule of law, because, by possibility, it may be abused. All we can do is to guard as far as possible against such abuses.

The second reason assigned for a new trial is that “the court admitted parol evidence of the declaration and acknowledgments of Moses Blackburn, sen., under whom the plaintiff claims,” etc.

The declarations of Moses Blackburn, sen., which were objected to, but received in evidence, were such generally as were made in connection with the execution of the deed. Declarations were made while going to the magistrate to perfect the acknowledgment, and at the time of the delivery. They were in fact a part of the res gestee, and as such properly received. True, there were some declarations testified to, which were made after the deed was delivered, but they were principally such as were drawn out on the cross-examination of witnesses, and were received by way of explanation, rather than as sustaining any particular fact in the case. There might, by possibility, have been some things which were not strictly proper, and we all know how difficult it is, in the course Of the examination of a witness, to restrain him within strict technical limits. But were we to grant new trials because a witness might have uttered an improper word or sentence, there would be no end to litigation. In every case, it is true, where improper evidence has been admitted, and of that character which might, by possibility, have influenced the jury, a new trial should be granted. But in this case there was nothing of this kind, and it is believed that had the declaration of Moses Blackburn, sen., been entirely excluded, the verdict of the jury could not have been changed.

The third cause assigned fora new trial is, that “ the case presented to the jury, disclosed a body of circumstances, only cognizable by a court of equity, and such as ought not to have been submitted to a jury.”

There can be no doubt, I apprehend, that the facts disclosed ia this case were such as would be cognizable by a court of chancery. But it does not follow that they are alone cognizable in an equitable tribunal. This must depend ujion the rules of evidence. I understand these rules to be the same in chancery as at law, so *far as the facts of this case are concerned. In neither court can the contents of a writing be proved by secondary evidence, until the fact of its loss is established. Nor is any less evidence necessary to establish the fact of loss in the one court than the other. In either, it must bo such as to produce conviction. In this case the lessor of the plaintiff was claiming under a purely legal title. He was pursuing the appropriate legal remedy, and in pursuing this remedy he introduced strictly legal testimony. It is argued by counsel, however, that by accepting this mode of proceeding, the legality of a written instrument is in effect submitted to a jury, whereas to adjudicate upon such a subject is peculiarly within the power of the court. We recognize the doctrine that questions of law arc for the sole consideration of a court, and where an instrument of writing is introduced in evidence, its proper construction is a question of law. If it be such an instrument as is required by the law to be executed with particular formalities, whether it has been so executed, must bo adjudged by the court upon inspection. The same rule applies where the instrument is lost. The jury find the contents, and the court determine from the facts thus found, whether the instrument was in conformity with the law. In the case under consideration, the jury were informed what was necessary to constitute a good and valid deed of conveyance, and by their verdict they found that such an instrument had been executed.

If the instruction complained of in the fourth reason assigned for a new trial-was given, we discover in it nothing erroneous. As has been already observed, no specific evidence is necessary to prove the loss of a written instrument. It must be such as to satisfy the conscience of the tribunal to which it is directed; and it is impossible to conceive, that evidence which would satisfy the mind that a bond conditioned for the payment of money was losti would not, if applicable to a deed for the conveyance of land, satisfy the same mind of its loss.

The last reason assigned for a new trial is, that the verdict was against the law and the evidence. If the court are correct in what has been already said, the verdict was not against law. Was it against the evidence ?

The facts proven were these: At the time of the execution, or pretended execution of the deed for the premises in controversy, Moses Blackburn, sen., being advanced in life, and somewhat, although not greatly in debt, proposed to his sons to convey to *them a part of his property, they assisting to pay his debts, or one particular debt. For the purpose of designating boundaries» the land was surveyed into several parcels, and one of the sons employed to write the deeds of conveyance. They were written and left in the possession of Moses, sen. The deed to Moses, jr., who was one of the sons, covered the lands in controversy. After a considerable lapse of time, the old gentleman went to a magistrate and executed and acknowledged these deeds, but did not immediately deliver them. At length, however, his sons came together at his house, paid him the money stipulated, and he delivered to them their respective deeds. After the delivery, and after considerable conversation between the respective parties, Moses, jr., handed back his deed to his father, to be by him kept as surety that Moses would support him,, from the place, during his (the father’s) life. The deed was handed by the father to one of his daughters for safe keeping, and she held i t until finally it was lost. Not many months after this, Moses, jr., died, and the old gentleman continued to occupy the place until his decease, deriving in a great measure his support therefrom. Two of these deeds were before the jury, and the grantees testified that the deed to Moses, jr., was in the same words, and executed and acknowledged in the same manner, except that it covered a different piece of land. The subscribing witnesses were also examined, and the testimony of one of them was such as to lead the mind to the conclusion that a deed had been executed, as claimed by the lessor of the plaintiff. In addition to this a paper was introduced, sworn to be an exact copy of the deed to Moses, jr., with the exception of the signature, attestation, and acknowledgment. This was the original draft of the deed, but was not executed on account of some interlineations.

With this proof before the jury, there can be no pretense for saying that the verdict was against the evidence.

The motion for a new trial is overruled, and judgment will be entered on the verdict.