text:
    James Taylor v. John Alexander, David Peterson, and James Boland.
    When, the officers of justice stand justified in law for their acts, it is incompetent to inquire into the motive which induced them to act.
    In trespass against a constable and one of his posse, irregular process from a court having jurisdiction of the person and the subject is a justification, notwithstanding the preliminary steps to the process are irregular.
    Leave to enter a nonsuit will not be received after verdict.
    Trespass, from Wayne county. The declaration contains three counts. The first two for an assault, battery, and false imprisonment of the plaintiff, and the third for an assault, battery, and false imprisonment of the plaintiff’s wife. The delendants pleaded,
      severally: 1. Not guilty; and, 2. Gave notice of justification, as to the first two counts, under a state’s warrant issued against the plaintiff on October 27, 1832, by the defendant, Alexander, a justice of the peace, on the complaint, upon oath, of the defendant, Peterson, for feloniously taking a parcel of buckwheat, delivered to the defendant, Boland, for execution; by virtue of which, he arrested and brought the plaintiff before said justice. 3. To third count, a like notice of justification, under a search-warrant against the plaintiff, issued by justice Alexander1, and given to constable Boland for execution; and while he and the defendant, Peterson, as his ^servant, and by his command, were in the [145 execution thereof, because the plaintiff’s wife attempted to obstruct them, and to prevent her from doing them injury, they gently laid hold of her, but did her no unnecessary injury.
    At the trial, the plaintiff having proved his arrest and imprisonment by Boland, that the arrest was advised by him and Peterson, and that Boland seized and held Mrs. Taylor on account of indications on her part to scald him, offered to prove that the defendants knew he was innocent, and procured the arrest to bring him within reach of civil process, which, being objected to, was rejected by the court. He then rested his case, and the counsel for defendants moved for the discharge of Alexander, because there was no-evidence against him. This motion was objected to by the plaintiff, and overruled by the court; but the court permitted the jury to retire upon the case as to Alexander, when they returned a verdict of not guilty.
    In the further progress of the cause as to the other defendants, the following papers were offered in evidence by the defendants:
    1. The affidavit of Peterson, made October 26, 1832, before Alexander, “ that on or about the 16th of this instant, in the county of Wayne and state aforesaid, David Peterson doth on oath declare, that he verily believes that said goods and chattels, or some part thereof, is in the house of James Taylor; or does verily believe ne is guilty of the fact charged.”
    2. The warrant of the justice against Taylor, reciting a complaint of Peterson, on oath, “ that Taylor, on or about the 16th inst., it is believed, did take a certain quantity of buckwheat from the barn of Thomas Scott, the property of Peterson,” which was returned' with the body.
    3. The search-warrant from justice Alexander, reciting that it had been made to appear to him. “ that the following goods and •chattels, that is to say, about twenty-five bushels of buckwheat, more or less, within twenty days last past, by James Taylor or wife, feloniously taken, stolen, and carried away, etc., and that the said D. Peterson doth on oath declare, that he verily believes the said goods and chattels, or some part thereof, according to the belief of the deponent, are concealed in the house of the said James Taylor;” therefore commanding him, with the necessary and proper assistance, to enter into the house of Taylor in the daytime and search for said goods, and if any were found, to bring them 146] and the said Taylor forthwith ^before the justice; which was returned with part of “ the stolen property,” but the body not found. This evidence was objected to by the plaintiff’s counsel, but admitted by the court.
    In submitting the cause to the jury, the court instructed them that these proceedings under the criminal laws, though irregular, were not void ; and being, for the pui’poses of the action, valid, they afforded a justification to the defendants acting under them, proceeding in a reasonable manner, and using no more violence than was necessary to execute them ; and also, that in this form of action, if the .process was legal, the motive of the party in procuring it, or in setting the machinery of the law in motion, need not be regarded. The jury found for the defendant; and a new trial is moved for, because the court erred in rejecting evidence offered by the plaintiff; in admitting that offered by the ^defendant, and in misdirecting the jury as to the law.
    L. Cox, for plaintiff,
    cited Wheat. Selw. 115, 118; 4 Blk. Com. 291; 1 Chit. Pl. 169 ; 3 Stark. Ev. 1450, note z, and 1453; 5 Taunt. 442.
    Dean, contra,
    cited 3 Stark. Ev. 1446,1448, note c; 2 Stark. Ev. sis:
   Judge Wright

delivered the opinion of the court:

The first question to be decided is, whether it is competent for •the plaintiff in trespass to prove, in order to enhance the damages, that a legal prosecution was commenced with a malicious motive ? If the prosecution complained of be malicious, and the forms of law have been used for malignant purposes, the party injured has his remedy by an action on the case for a malicious prosecution, in which the concurrence of a malicious motive with the want of probable cause, will subject the aggressor to damages commensurate with the iujury sustained, and oftentimes to those exemplary or vindictive. In trespass, the rule is different. If the defendant in that action has acted under valid legal proceedings, they will justify him, and protect those acting under him. The true question in such a case is, were the acts complained of legal ? If they were, they are none the less so, because the party instituting the legal proceeding was actuated by motives oí revenge or malignity. The evidence offered by the plaintiff, and ruled out at the trial of this case, was offered upon the *avowed ground that pro- [147 ceedings had been commenced under the criminal laws. The proceedings themselves had not been shown, and could not be considered by the court either as legal, or as illegal and void; and it was therefore properly rejected. It is no answer to this to say, that subsequently these proceedings were given in evidence, because after so given in evidence the proof was not offered.

2. Were the warrants of the justice of the peace a justification to the officer and his posse ? The principle is well established that executive officers, being obliged to execute process, are protected in the rightful discharge of their duty, provided the process issued from a court or magistrate having jurisdiction of the subject matter. And if the magistrate proceed unlawfully in issuing the process, he, and not the executive officer, will be liable for the injury. 13 Mass. 286, 272; 14 Mass. 459. The executive officer is justified, even when the process under which he acts is voidable for irregularity or mistake in issuing it. 4 Mass. 232 ; 2 Stark. Ev. 818; 3 Stark. Ev. 1448, n. e. The cases relied upon by the plaintiff’s counsel are those of attempted justification where there appears an excess of jurisdiction. In such cases, the process being void, it, of course, could afford no protection. As if a justice of the peace were to issue a writ in slander that process would not protect the officer, because the justice has no jurisdiction of the subject. It does not comport with law or correct policy to permit an executive officer, or those he commands as his posse, to examine into the regularity of the proceedings of the court whose process they execute, or to confer upon them authority to proceed or to forbear, as they may judge best. The rule that holds them to know the extent of jurisdiction requires for its justification some legal subtlety,' but rests on far different ground from that urged by the plaintiff. The papers in this case are irregular, but do they not show a proceeding under the laws of the state? "We think they do. The affidavit might not stand a critical examination. The magistrate in drawing it has endeavored to pursue the statute form, and has omitted a sentence. If the affidavit was the authority under which Peterson and Boland justified, we should doubt; and we might also doubt, if the justice sought under that to protect himself. But it must be remembered that the justice was acquitted before this evidence was introduced. We think the other defendants need not look back of the warrants for their 148] justification. The larceny is bunglingly enough ^charged in the warrant, yet it shows that there was a complaint under the laws for the punishment of crimes, for taking the property of another and commanded the arrest, and the officer was legally bound to execute it. The search-warrant describes the offense sufficiently clear. The objection that it sets forth the belief that the offense had been committed by Taylor or Ms wife, while it commands the search of the house of Taylor, the husband, and if the goods were found, to bring forth only his body, does not seem to us of much weight. The goods were found in Ms possession; Ms arrest is complained of; and, in our opinion, the law does not invoke the aid of courts to punish the officers of justice for trifling errors in drawing up legal process. If they are substantially good, they are sufficient. We do not inquix’e what rights these parties have in any other form of action, and only decide that, in this case, the error of the court is not apparent; certainly not such as to require Of us to grant a new trial.

The court is asked, in case the motion for a new trial is overruled, to permit the plaintiff to enter a nonsuit on paying the costs. This we decline to do. It would innovate upon the usual practice to allow a nonsuit after verdict; and we have decided, at this term, in the case of Gazzam v. Cincinnati Insurance Co., ante, 75, that our office here is to decide questions reserved in the county. This motion was not made in the county and reserved; as an original one, it can not be received.

Judgment on the verdict.


source: Caselaw Access Project

author: Judge Lane

license: Public Domain

text:
    In the Matter of the last Will and Testament of Anthony Chapman, deceased.
    Appeal does not lie to the Supreme Court from a decision of the court of common pleas, adjudging that the proof adduced to prove the execution of a will is insufficient for that purpose.
    This case came before the court by reservation in the county of Knox. The devisee, under a writing claimed to be the last will and testament of Anthony Chapman, deceased, presented it. in the court of common pleas for probate. The proofs were heard, and being adjudged insufficient, an order *was made re- [149 fusing probate of the will. From this decision, the devisee appealed to the Supreme Court, and executed a bond to the heirs at law, the contestors of the establishment of the will. The question-presented for decision was, does an appeal lie in such a case ?
    H. Curtis, H. B. Curtis, Delano and Brown, for the devisee.
    Goddard and Converse, for the heirs.
   Judge Lane

delivered the opinion of the court:

The practice of removing causes by appeal, for a second trial, is created by statutory provision. Where an opportunity for a full, trial has been had, an appeal for a second one ought not to be allowed, unless it is required by the plain tenor and terms of the law, giving such appeal. 3 Ohio, 277. Section 22 of the statute relating to wills gives an appeal “from the decision, of the court of common pleas, when any will, or other matter relating thereto, shall have leen contested.” In this same statute, provision is made for contesting, by bill in chancery, the validity of a will when once admitted to probate. In admitting a will to-probate, the court pronounce a final decision. But this is to be avoided by a process different from an appeal. An application to-prove a will, though rejected, may be made again, upon fuller proof. The rejection extinguishes no right, and binds nobody, for there are no proper parties before the court to be concluded. But-when a will is declared established, and ordered'to be recorded, it binds everybody until set aside. It must then be contested in th& form of a litigated suit, if contested at all. The parties interested must be brought before the court, and consequently must be bound by its judgment. In that case, the appeal is as proper and necessary as in any other. Not so when the probate is refused. The court, therefore, are of opinion that this appeal can not be sustained; it does not come within the provisions of the statute.

Such has been the uniform practice throughout the state, as far as can be now ascertained, by recollection and inquiry. We have no instance in which such an appeal has been taken and acted upon. The practice on a point like this is regarded as full evidence of the law.


author: Judge Wright

text:
    *The State of Ohio, for the use of the Executors of Wm. Spencer, v. Amos H. Caffee.
    In suits on official bonds by party injured, it is sufficient to name the person for whose use the suit is brought, in the process and declaration.
    In suits upon official bonds, under the statute of Ohio, the plaintiff must set forth the condition of the bond, and assign breaches in the declaration.
    In assigning a breach on the bond of a clerk of the court, it is requisite to be particular enough to apprise the defendant of the breach of duties complained of.
    A clerk of the court is not bound to issue process without a written precipe is filed according to the statute.
    Debt from Licking. The suit is brought upon the official bond of the defendant, as clerk of the court of common pleas. The declaration contains three counts:
    1. Upon the penalty of the bond alone.
    2. The second sets out the condition of the bond (which is, in substance, that the clerk shall well, faithfully, and truly enter and record the orders, decrees, judgments, and proceedings of the court, and faithfully and impartially perform all the duties of his office), and assigned the following breaches :
    1. A general non-performance, negativing the condition of the ■bond.
    2. That the testator, on December 3,1823, recovered a judgment, án the court of common pleas, against one McDougal, from which McDougal gave notice, upon record, of his intention to appeal to the Supreme Court, and afterward, on January 5,1824, with one Taylor, executed and delivered to the defendant, as clerk, a certain paper writing, containing only the names, date, and seals of the ■obligors, which the defendant, as clerk, afterward filled up as an appeal bond, without the consent or direction of the obligees, and accepted and approved of the same, as a valid appeal bond, in that ■case, certified that the appeal had been perfected, and thereupon refused, upon request, to issue execution upon said judgment; that the intestate prosecuted his cause in the Supreme Court, to judgment, which still remains unsatisfied, by means whereof the testator lost the benefit of his judgment, the payment whereof might have been coerced, at the time he applied for execution, but that McDougal has since become wholly insolvent; and by means ■whereof, also, the testator lost the benefit of security for the judgment to be recovered in the Supreme Court, which he would have had, if the bond had been legally executed, and regularly taken by the clerk.
    *3. The third count sets out the condition of the bond, and [151 assigns for breach that on January 5, 1824, after the recovery of the judgment, the testator, at the office of the defendant, directed .and requested him, as clerk, to make out and issue upon said judgment process of execution for the collection of the judgment, which, in violation of his duty as clerk, he neglected and refused to issue, by means of which neglect and refusal the said judgment is wholly lost.
    To the first count in the declaration the defendant craved oyer of the bond and condition, and having set them out, demurred specially: 1. Because the interest of Spencer, for whose use the suit is brought, is not disclosed; and 2. Because no breaches are assigned. To the other counts there are several pleas and cross-demurrers, which it is unnecessary to specify, as they result in presenting to the consideration of the court the sufficiency of the declaration.
    Goddard and Converse, for the defendant,
    cited 1 Saund. Pl. & Ev. 133; Com. Dig., Pleader, 14; 29 Ohio L. 78, 58, 214; 1 Chit. Pl. 427; 1 Term, 246; 2 Mass. 521, 522; 5 Mass. 270.
    H. Stanbery, contra,
    cited 29 Ohio L. 187, 214, 241, 267; 3 Ohio, 487; 2 Ohio, 25; 11 Johns. 6; 6 Cranch, 127; 5 Johns. 168; 8 Johns. 111; 7 Johns. 376; 2 Hen. & Munf. 446; 4 Ohio, 175; 10 East, 359; 1 Chit. Pl. 270, 288, 423, 424, 461, 462.
   Judge Wright

delivered the opinion of the court:

The first question for us to examine arises upon the sufficiency of the first count of the plaintiff’s declaration. It is objected to the count that the interest of Spencer, for whose use the suit is brought, is not disclosed. The act pointing out the manner in which suits may be prosecuted, on the bonds of executors, administrators, and officers (29 Ohio L. 267), makes any person injured by the misconduct of an officer competent to obtain a certified copy of the bond, and to institute and carry on in the name of the obligee, for the use of the person suing, an action of debt, and to recover judgment for the amount of the bond, and to have execution for what may be sufficient to indemnify him. The act does not prescribe any method of setting forth the nature of the interest of the person so suing, except in the progress of the cause 152] but, on the contrary, it authorizes any ^person injured to sue in the name of the state for his use. The general practice, we-, believe, has been so to sue obligations not assignable, and in cases where the right to sue arises by special provision or operation of law. In Numlin et al. v. Westlake, 2 Ohio, 25, this subject is considered, and the court say: “ It is the common practice in the courts of this state to designate in this way the person for whose benefit a suit is brought, when it is necessary to commence it in the name of the original obligee or payee, and it has been considered a sufficient authority from the nominal plaintiff to justify the officer in paying the proceeds of the judgment to the person designated.” We are satisfied with the practice, though the Other objection to this count of the declaration may render it unnecessary to decide this point.

It is further objected to this count that there are no breaches assigned. The argument in favor of this objection concedes it to be the usual practice on private bonds to declare upon the penalty without setting out the condition and assigning breaches. We think the practice in England, and in most of the states, upon bonds of this character, is the same. It is generally admitted in both countries that it would be a more convenient practice, in all cases, to set out the condition, and assign breaches in the declaration. Counsel claim that the act pointing out the manner of prosecuting suits of official bonds, 29 Ohio L. 267, requires the breaches to be assigned in the declaration. Section 2 of that act makes it lawful, after judgment, for any person injured to proceed by sci. fa. on the judgment until the whole amount is exhausted, and provides, “that the plaintiff shall always set forth the breach ■or breaches on which he may intend to rely, to support his suit.” It is urged for the defendant, and we think with force, that to sanction the mode of pleading adopted in this case, would give to .the plaintiff an unfair advantage, inasmuch as it would operate to .prevent the defendant from availing himself of the provisions of the law allowing the defendants to plead “ as many several matters as he shall think necessary for his defense.” 29 Ohio L. 67. Under the constructions which have obtained to this statute, if the breaches are not assigned in the declaration, the defendant would, in general, be limited to one matter of defense, because the -courts hold that the authority to plead several matters is not an -authority to rejoin several matters. This statute is beneficial to defendants, and there exists strong reason why public officers -should not be ^deprived of its benefits.’ The plaintiff’s [153 ■counsel insist, however, that the provision of the act subjecting ■the cestui que use to costs, in the event of a judgment for the defendant, secures him against the evils resulting from this deprivation. We do not concur in this. The evil is the cutting him off from the opportunity-of making his defense to the action. It would, in our opinion, afford him little consolation to tell him, after judgment against him, that if his defense had been let in, •and he had recovered judgment, he might have recovered costs .against the person who had caused the suit to be brought against ;him, instead of the obligee of the bond. It is further urged -that this mode of declaring on bonds of this description received the sanction of this court in the case of Ohio, for Fulton, v. Colerick et al., on a sheriff’s bond. 3 Ohio, 487. .A reference to the authority shows, indeed, that the declaration in that case was upon the “ obligatory part of the bond,” but no objection was raised upon that account, nor is the point alluded to in the argument of the counsel, or the opinion of the ■court. The point, therefore, in this state, is an open one. The statute fairly admits of the construction which requires of the plaintiff to set out the condition of the bond, and assign his breaches in the declaration. That construction is of admitted convenience in practice, and conducive to the ends of justice. We-know of no rule of practice, or principle of law, that will be violated in its adoption. If the meaning of the legislature were more doubtful than we consider it, the clause of the act referred to, allowing costs against the cestui que use, shows the term plaintiff to be used in the act in its ordinary legal sense. This count,, therefore, is bad, and the demurrer to it-must be sustained.

The first breach assigned in the second count, is demurred! to, because it is too general, merely negativing the words of the-condition of the bond. The rule is, that the breach must be-assigned with such certainty, as to show the subject matter of complaint, and it would be bad to assign for breach, that the defendant had not performed his agreement, unless the contract were such that such assignment must apprise him of the complaint. Com. Dig., Pleader, 48; 7 Price, 550. Apply this rule to the breach under consideration. The undertaking is, that the defendant, a public officer, shall perform all the duties of his office — ■ the breach, that he has not performed all the duties of his office-What cause of complaint does this apprise the defendant of, 154] that he may be prepared to meet it? *Is he required to-procure evidence, and stand ready to defend all his official acts for-years ? If it be said he is only to look to those official acts con- ' nected with the cestui que use, the answer is, the clerk’s acts are numerous, his duties various; the plaintiff himself may have had many transactions in the office; and though he must know what-he complains of, the clerk can not know without the particular-matter is pointed out. We think it very clear that this general assignment, though negativing the words of the condition, in this-class of cases, is not sufficient, because it does not reach the end of all pleading, the giving notice of the action relied upon. The second point made on the demurrer to this bond has been already considered in the demurrer to the first count.

The second breach, in substance, is, that Spencer recovered a judgment in the- common pleas, and the defendant, as clerk, took an insufficient bond for an appeal of the cause, certified the appeal, and afterward refused to issue an execution, according to-the plaintiff’s direction and request, whereby he lost the judgment, by the insolvency of the defendant, between the appeal and the judgment recovered in the Supreme Court. The gravamen of this breach is the alleged refusal of the clérk to issue execution when directed and requested. It is a well settled rule, that pleadings are to be construed most strongly against the party pleading. Section 10 of the practice act of 1824, 22 Ohio L. 54, provides, “ that any person requiring a writ shall file a precipe with the clerk, who shall make out and deliver such writ or process as is directed.” No clerk is bound to issue process, without a precipe in writing filed as his authority and indemnity. If it be supposed, then, though we do not decide that point, that the clerk took an illegal bond, the breach shows that Spencer, in whose favor it was taken, knew it, and required an execution on that ground. But was this requisition a legal one? One that the clerk was bound to obey? We think not. The breach shows, that Spencer so thought himself, for instead of moving to quash the appeal, because of the illegality of the bond, he prosecuted the suit, as if properly appealed, and thus ratified the act of the clerk, in taking the bond and refusing the execution; for if the cause was appealed no execution could be issued. So that, if the execution had been legally required by precipe, it does not seem clear to us that the clerk could be made liable for taking an inoperative appeal bond. *But we intend to leave that question unde- [155 cided for the present, as we are of opinion the other objection is fatal to this breach.

The third count, like the second, sets out the condition of the bond, the recovery of the judgment, and that Spencer, at the office of the defendant,.directed and requested him, as clerk, to make out an execution upon the judgment, which, in violation of his duty, he neglected to do, whereby the debt was lost.

This count is obnoxious to the objection we have examined, as to the second breach of the second count. It does not show that the direction or request for execution was such as the law requires, or such as imposed upon the clerk an obligation to act; no precipe was filed for the writ. And although it alleged that the refusal was contrary to the defendant’s duty as clerk, yet, where the act claimed to be in violation of duty is set forth, the court will look at it, to see if it appears to be such in law, the plaintiff being supposed to disclose his true case in its strongest aspect; and if, on examination, the act does not appear to be in violation of the duties of the officer, the legal presumption is in his favor, and will avail him. If a party would subject an officer, he must take care that his own steps are conformable to law. This count is also insufficient.

The six several demurrers of the plaintiff to the pleas of the defendant, therefore, are overruled. This is done without examining the sufficiency of the pleas, upon the familiar maxim that a bad plea is good enough for a bad declaration.

Leave was given to the plaintiff to amend, on paying the costs.


text:
    *William H. Douglass v. Andrew Huston and others.
    Liens upon land are given by statute, and can not be extended in equity. Judgment creditor acquires no lien, in equity, upon the choses in action of his debtor, until a bill is filed to charge them. The elder equity is always preferred.
    It is not sufficient evidence of fraud to vitiate a contract, that a great bargain was obtained in the purchase of a litigated property from an embarrassed debtor.
    This cause was adjourned, for decision here, from the county of Pickaway. It was a bill in chancery, filed under the statute of Ohio, by the complainant, as a creditor, seeking to subject certain alleged equitable interests of his debtor to the payment of the debt. The material facts were these :
    The complainant, owned by assignment, two judgments, rendered in favor of the Farmers and Mechanics’ Bank of Chillicothe, against John Carlisle and others, in 1821. In 1824, he caused these judgments to be levied upon two hundred acres of land in Pickaway county, as the property of J. Carlisle, and became himself the purchaser, at sheriff’s sale, for eight hundred dollars, which amount was returned as money made on the execution.
    Carlisle’s title to the land, thus levied upon and sold, was also derived from a sheriff’s sale. It had been levied upon and sold, in May, 1815, as the property of Ulrick Coonrod, at the suit of J. J. Wills, for the use of J. Carlisle, against U. Coonrod, and J. Carlisle became the purchaser ,for seven hundred and forty-nine dollars and sixty-five cents, which was returned upon the.execution as money made. After the levy of this execution, but before the sale, TJ. Coonrod, the defendant, died, and devised the land to H. Coonrod. TJ. Coonrod only held the land by title bond, the fee being in a third person. But Carlisle obtained the possession, and to that the complainant, Douglass, succeeded upon his purchase. The estate of TJ. Coonrod has been wholly squandered by his devisee, who is insolvent.
    In this state of the case, the defendant, Huston, with a full knowledge of all the facts, purchased of H. Coonrod, the devisee, his interest in the lands for the consideration of fifty dollars. After this purchase, he filed a bill against the person who held the fee, and obtained the legal title by a decree. He also purchased and obtained assignment of Carlisle’s judgment against TJ. Coonrod. He then brought an ejectment against the complainant, Douglass, in possession under his purchase on the execution against Carlisle, .and recovered the possession.
    *The bill waj) brought by the complainant, to charge the [157 land, as in equity, the property of Carlisle at the time of the levy and purchase, under which complainant claimed. The answers .admitted the facts substantially as stated. Carlisle denied all fraud of act or intention, and Huston insisted upon the fairness .and legality of his purchase, under the circumstances in which it was made.
    Doan and G. Swan, for complainant
    We believe, from the whole circumstances of this case, the •plaintiff is entitled to relief. It is admitted than no interest passed by the sale and sheriff’s deed to John Carlisle, who purchased on an execution. Wills, for Carlisle, v. Ulrick Coonrod. At the time of the judgment and sale the legal estate was in Joseph Hoffman; the equity alone was in the judgment debtor. This equity, which was not affected by the sale, was devised by the elder Coonrod to his son, Henry. The devisee, with* a full knowledge of the judgment against his father, and the purchase by Carlisle, executed a conveyance to the defendant, Huston, for the consideration of fifty dollars. Carlisle, in insolvent circumstances, assigned, for the nominal consideration specified in the deposition of R. Douglass, Esq., the judgment in Wills’ name. Douglass had notice of all the circumstances, for he was the counsel of Carlisle. Huston, for the sum of two hundred dollars, became the assignee of Douglass, with that kind of notice which rendered his conduct, if not more reprehensible, vastly less entitled to a favorable consideration from this court. The defendant, Huston, then stands precisely in the situation, with regard to the complainant, that Carlisle and U. Coonrod did before any assignment by the former or the death of the latter. The inquiry is, then, what decree would this court have pronounced had the complainant filed a bill against Carlisle before he assigned his judgment, and li.ving Ulrick Coonrod? The levy of the execution and the sale under it, as well as the indorsement, “ money made,” would have been set aside as proceedings founded in mistake and misapprehension. It would have been iniquitous, indeed, for U. Coonrod to have held the land and insisted upon the discharge of the judgment against him. It would have been unjust, on the part of Carlisle not to have surrendered his interest in this judgment to his bona fide creditor. It can not be doubted but the court would have rectified the mistakes and placed the parties in statu 158] quo. It would be strange, indeed, to *afford protection to one, in the situation of Coonrod, who saw the levy of the sheriff upon that which was no more effectual than a levy upon the winds, and saw his equitable creditor purchase under an evident mistake perfectly known to his debtor, and who would ask the court to give validity to the sheriff’s return in his favor! Coonrod, in this-way, would have discharged the debt without any consideration whatever. Carlisle was a judgment debtor; and as such, in the absence of property tangible by an execution at law, was liable to-have his dioses in acoion and his equitable interests subjected to the discharge of his debts. Coonrod, as the debtor of Carlisle, was bound in equity to pay over the amount to the complainant. Before the statute, choses in action and things not subject to execution could be reached in chancery by creditors. Bayard v. Hoffman, 4 Johns. Oh. 450. Since the statute, no doubt can possibly exist. 29 Ohio L. 84, see. 16.
    The price paid, by Huston to Henry Coonrod, for the conveyance, was so entirely inadequate, that it bears the unquestionable impress of fraud upon its face. Fifty dollars paid for a tract of land which sold at sheriff’s sale, in 1824, for nearly eight hundred dollars ! Upon this point it would be trifling to cite authorities. The situation of Carlisle, known and well known to Huston, made it fraudulent to. purchase from his assignee, who was not in a much more favorable situation than himself, for a consideration totally inadequate, being nearly six times less than the judgment and interest. Thus, Mr. Huston has obtained a judgment which, in equity, is entirely unsatisfied, for something like twelve hundred dollars, and valuable real estate, worth probably two thousand dollars when he recovered the conveyance, for the very inconsiderable sum of two hundred and fifty dollars, in part upon deferred payments; and this speculation, so far as it is such, at the expense and loss of the creditors of Carlisle and TJ. Coonrod. It would be most unconscionable to suffer Huston to enjoy the fruits of such a transaction. Let it be remembered, too, that his official station led him to the knowledge of the fact of which he took advantage-The policy of the law requires that he should not be treated with tenderness or compassion. 1 Johns. Ch. 406.
    The complainant relies upon relief as against Huston, who claims as assignee of Douglass, upon the following authorities: 2 Johns. 441, 479 ; 2 Wash. 233, 255. The assignee of a chose in action takes it subject to the equity of the original holder. 2 Munf. 533,
    *H. Stanbery, for Huston:
    The complainant’s counsel admit that the judgment against TJ. Coonrod was not a lien on his equitable interest in this tract of land, and that no title, legal or equitable, passed to Carlisle, as purchaser, and that his relation' to TJ. Coonrod was merely that of a judgment creditor, without any lien or priority. It follows necessarily, from these admissions, that the complainant, by his purchase of the same tract of land, under his judgment against Carlisle,, acquired no title; that his relation to Carlisle is that of a judgment creditor, without lien, so far as this land is concerned; and his relation to TJ. Coonrod is that of a judgment creditor of Coonrod’» judgment creditor.
    Without, for the present, bringing forward the title of Huston, we claim that here is no case for relief. The aspect which is given to the case, in the argument for complainant, is that of a judgment creditor seeking to reach, by the aid of equity, property of the judgment debtor, not tangible at law. The kind of property to be reached is an equitable interest in land, once owned by the judgment debtor of the complainant’s judgment debtor, which equity passed from the original judgment debtor at his death, either to his devisee or to his heirs at law; and the means of reaching it is by' a sale under that original judgment, now dormant by the want of execution within five years, and abated by the death of the defendant.
    It is unnecessary to inquire what favor such a case would meet with under any known head of equity jurisdiction, for the reason that we have an express statutory provision upon this subject matter. It will suffice to remark, that it is at this day questio vexata in the English chancery, whether equity will in any case assist a creditor to reach a fund intangible at law, upon which he has no lien. Chancellor Kent, in Bayard v. Hoffman, 4 Johns. Ch. 459, does give the relief in behalf of assignees of all the debtor’s estate, real and personal, for the benefit of all the creditors, which he carefully distinguishes from the case of a single creditor.

    ffe are relieved from this uncertainty by the provisions of section 16 of the chancery act, vol. xxix, 84, which specially designates the cases for such relief, and the mode by which it is to be administered. The complainant attempts to bring his case within that clause of the section which enables a judgment creditor to reach a judgment in favor of his debtor. As he admits this judg160] ment had no lion, and that no *titlo, legal or equitable, passed to Carlisle by the sale, the consequence is, that the only “ interest” to be reached is the judgment. The statute provides for a sale or transfer of the particular interest which is in the creditor’s d.ebtor. Supposing, however, that by the equity of this section, where the- interest of the debtor is a judgment without lien, that the creditor may not only roach the judgment itself, so as to have a sale, and transfer of that, but may, by this statutory proceeding, subject to its operation an equitable interest not bound by the judgment, and have a sale of such interest, we object that such relief can not be had in this case because :
    1. By the death of U. Coonrod, this equitable interest either passed to his devisee, or descended to his heirs, subject to the payment of his debts generally, and not to appropriation by any individual creditor, and can only be reached in a course of administration. Bustard v. Dabney, 4 Ohio, 68; Miami Exporting Company v. Turpin, 3 Ohio, 514.
    2. The right of the complainant to proceed against this equitable interest depends, among other things, upon the fact that the judgment against Ulrick Coonrod is yet unsatisfied. That judgment is dormant and abated, and being primarily a charge inper

      sonam, it can only be set up and revived in a litigation to which the personal representatives of Ulriek Coonrod shall be parties.
    3. The judgments in favor of the complainant against Carlisle and others are also essential to the complainant’s case. The bill shows no execution or proceeding upon those judgments since the year 1824. More than five years having elapsed, they are dormant. A court of chancery is not the proper jurisdiction for the revival of judgments, and will not entertain a case in which nO' reason is seen why this preliminary step was not taken at law.
    But if the court should hold that these objections are not well taken, we then claim that the complainant makes no case for relief, as against the defendant, Huston.
    It is admitted by the complainant, that Huston acquired the equitable title to the two hundred acres by purchase of Henry Coonrod, the devisee; that he got in the legal title by decree against Hoffman, and that he has an assignment of the judgment of Car-lisle against Coonrod.
    The case made by the complainant’s bill is to reach and sell this equitable title by a sale under this j udgment. If, then, ^either [161 the judgment or the equity is beyond his reach, the case fails: 1. As to the judgment. This was first assigned by Carlisle to E. Douglass, and by E. Douglass to Huston. Both these assignments must be invalidated before the complainant can reach the judgment. The ground on which they are attacked is that of actual fraud.
    As to the assignment from Carlisle to Douglass, the answer of Carlisle and the testimony of Douglass concur in a denial of fraud, or of any intent to injure the complainant, or to postpone his rights. The only circumstance relied upon to show the fraud is the inadequacy of {he consideration. This was not of money,, which has a known value, but of professional services, which were not particularly estimated by the parties, further than to satisfy themselves that they constituted a fair equivalent for the assignment.
    Before a court will declare a transaction fraudulent on account, of inadequacy, there must be a definite knowledge of the value of that consideration in reference to the value of the thing for which it was given, that, by contrast, the inequality may be so evident as at once to shock the moral sense. Knobb v. Lindsay, 5 Ohio, 472.

      Here no foundation is laid for such estimate. We can form, at best, but an imperfect idea of the value of the judgment or the professional services, and when put in contrast, they present no such glaring and evident inequality.
    Then as to the assignment from Douglass to Huston. This is •claimed to be set aside on the ground that Huston, with a knowledge of the complainant’s rights, purchased the judgment •of Douglass, with the intent to defraud the complainant, at an inadequate consideration.
    The intent to defraud is denied, and not proved.
    The consideration is stated by both parties to have been fair and satisfactory; and as they were dealing in reference to their •own rights, without even involving the rights of their creditors, it is difficult to apprehend how the inadequacy of price can be ■regarded as a fraud on the complainant, who has never stood in the relation of a creditor to either.
    Then there being no fraud, actual or constructive, in this assignment, is it invalid because of any notice which Huston may have had of the complainant’s rights? 162] What were these rights ? Simply those of a creditor *without title and without lien. There was nothing to which notice ■could attach, so as to affect the conscience of the purchaser; for the knowledge of the indebtedness of the vendor is of no avail if it is unaccompanied with the intent to defraud.

      2. As to the equitable interest. The purchase of this is also .attempted to be set aside on account of fraud. Here, too, there is .a denial by both parties of any fraudulent intent, and a reliance upon the inadequacy of the consideration as evidence of fraud per se. The answers show that the bargain was made by parties with opposite interests, and that the value of the equity was carefully weighed against the price paid for it.
    But again, this equitable interest no longer exists. The decree against Hoffman invested Huston with the legal title, and this equity of which he was then possessed, eo instanti, merging in the larger estate. Admitting that under peculiar circumstances, a ■court of chancery after such merger will open the title to set up the equity, yet this is not such a ease as to authorize it.
    Indeed, the case made by the bill would not allow such decree. It goes for a sale of the equitable interest, by decree against Huston, and of a transfer of the legal title, by decree against Hoffman.
    The title of Huston, then, has a four-fold defense: the assignment •of Carlisle, the assignment of R. Douglass, the conveyance of the •equitable title, and the decree, operating a conveyance of the legal estate; all which must be broken down before the complainant can effect his purpose.
    Olds, on the same side.
   Judge Lane

delivered the opinion of the court:

If the complainant come into equity to set up a specific lien to the two hundred acres of land, in virtue of his purchase, under the judgment against Carlisle and others, such claim is evidently groundless. The existence, validity, and extent of a judgment lien, are matters purely legal, dependent upon statutory provisions. If it fail at law, it can not be aided in equity. 3 Ohio, 517.

In 1824, at the time of his purchase, the complainant occupied the position of a judgment creditor of Carlisle. The levy, sale, and return of money made, on the execution, produced ^nothing [163 because Carlisle had no interest in the property sold, consequently the purchaser could obtain no interest. But this could not affect the case.

If complainant’s judgment against Carlisle still subsisted unsatisfied in fact, and open upon the record for the whole amount, the case shows only that Carlisle held a judgment in the same condition against IT. Coonrod. The amount of this judgment would be a debt due Carlise from Coonrod, which might, in a proper case, be applied in equity to the satisfaction of the complainant’s judgment. It would be the ordinary case of a creditor pursuing the choses in action of his debtor, in equity, where no means of satisfaction could be found at law. ' This would be according to the common practice in equity, 4 Johns. Ch. 687, and to our own statutory provisions. The application of this principle disposes of the rights of all the parties to this case except those of Huston. Hoffman holds the legal title, as trustee for him who may establish his right to it. H. Coonrod holds what interest he has in the land liable to satisfy any just claim against U. Coonrod’s estate. Carlisle would be compelled to give up his interest to satisfy the complainant’s judgments against him. Consequently, as between the parties, the complainant should be aided to enforce Carlisle’s rights against the estate of Coonrod.

But Huston claims by purchase. He procured from H. Coonrod a transfer of his interest, March 22, 1827. He has obtained the legal title by a decree against Hoffman, and he holds the interest of Carlisle in the judgment against U. Coonrod, under an assignment by Carlisle to Biehard Douglass, June 1, 1827, and by E. Douglass to him, December 30, 1828. If these assignments are valid, they must prevail against the complainant. They are elder than the attaching of his equity, which commenced with filing his bill in 1831. It is well settled that, in such cases as this, the earliest equity must be preferred.

It is insisted that the purchases, by Huston, of his interest in the land from H. Coonrod, and of the judgments from E. Douglass, are both fraudulent. Admit it were so, the complainant’s case would not be aided, unless it is also made out that the purchase of the judgment from Carlisle, by E. Douglass, in 1827, was fraudulent. If that purchase was bona fide, it presents an insurmountable bar to the complainant’s recovery. It transferred all Carlisle’s 164] interest to E. Douglass, so that nothing remained *in Car-lisle to be secured when the bill was filed. The assignment to Douglass must be shown to have been fraudulent and void before the rights of his assignee can be affected.

There is no evidence, among the proofs of the case, conducing to the conclusion that the purchase of E. Douglass from Carlisle, in 1827, is tinctured with fraud. The right of Carlisle to use the judgment for any beneficial purpose was very obscure, at the best) and certainly involved in litigation. His pecuniary affairs were hopelessly decayed, so that it could be of little moment to him which of his creditors possessed himself of this remnant of doubtful property. It is reasonable to suppose that E. Douglass, in such circumstances, made the purchase with an eye to his ,own profit, and without reference to Carlisle’s creditors, or design of defrauding them. We can not justly ascribe to him any other motive than that of making a good bargain out of an harassed debtor. We can impute no other design without proof, and against the express denial of all fraud in Carlisle’s answer. In this view of the case, Carlisle had no interest in the subject when the bill was filed; it must, therefore, be dismissed.


author: Wright, J.,

text:
    J. Abram’s Lessee v. G. Will.
    To recover in ejection upon prior possession alone,'that possession must have been actual and notorious.
    The court may, in a proper case, in giving it to the jury, comment upon the evidence admitted.
    Ejectment from Ross. On the trial in the county, the plaintiff, in support of his title, offered a final certificate of purchase, issued for the land claimed by the United States land office, to his lessor’s ancestor, upon which no patent had in fact been issued. He offered no other direct evidence of title, but proved that the ancestor had laid out a town upon the quarter section and recorded the plat of it under our law, and that he had paid the taxes of the tract. The defendant disclosed no title. The court instructed the jury that the certificate of purchase only furnished evidence of an equity in the lessor of the ^plaintiff, but not of a legal right [165 to possession avoidable in ejectment. The judge commented upon and explained to the jury the evidence as to the laying out and recording the town plat, as bearing upon the question of possession in the ancestor of the plaintiff’s lessor, and concluded by instructing them, “that to enable the plaintiff to recover upon the prior possession of his ancestor alone, that possession must have been actual, notorious, and open.” The jury found for the defendant.
    T. Scott, for the plaintiff,
    now moves for a new trial, because the court erred:
    1. In instructing the jury that the final certificate of purchase-from the United States land office, did not confer upon the holder-a legal estate upon which he could recover in ejectment.
    2. In not instructing the jury that the laying out a town upon-the land, and paying the taxes, was sufficient evidence of the possession of the ancestor upon which to recover.
    3. Because the court commented upon the facts to the jury.
    Creighton and Bond, and G. Swan, contra,
    cited 3 Wheat. 412; 2 Wash. C. C. 33; 1 Marsh. 440; 2 Bibb, 417; 4 Bibb, 554; 2; Ohio, 263; Til. Ad. on Ej. 32, note 1, 247, 489; Littell’s Sel. Cases,
      513; 1 Ohio, 313; 1 Caine, note, 190 ; 3 Johns. 388; 2 Stark. Ev. 515 ; 2 Har. & Johns. 380; 3 Ohio, 263.
   Wright, J.,

announced that as to the second and third points relied on for a new trial, the court were unanimously of opinion, that no error in the court was shown. Whether the laying out the town, paying the taxes, etc., satisfied the jury of an actual possession in the ancestor, was a question for the jury; and that, in a proper case, it was the duty of the court to explain the evidence given to the jury.

That, as to the other point, two of the judges were of opinion that the holder of a final certificate of purchase and payment from the United States land office, has a right of entry, upon which he may recover, against one showing no title, and relying upon a mere naked possession ; while the other two judges thought differently.

This division of opinion operates to overrule the motion for a new trial.


author: By the Court :

text:
    *James Ross v. Samuel Page.
    ¿Keeper of a ferry from the Virginia to the Ohio shore, across the Ohio river, landing persons upon the lands of the keeper of a ferry on the Ohio shore, is a mere trespasser, whom chancery can not restrain by injunction.
    'This cause was adjourned from Jefferson county for decision there. It was a bill in chancery seeking the aid of equity to enjoin the owner of a ferry from the Virginia shore of the Ohio river to the Ohio shore, from landing passengers on the complainant’s land, who also owned and kept a ferry from the Ohio to the Virginia shore. The ease made by the allegations and proofs is briefly this:
    The complainant claimed to own the lands on the Ohio shore; had been in possession and kept a ferry under a regular license, for about-thirty years. The ferry on the opposite side of the river had also been long established and regularly kept. Eor a time, .the landing .of both ferries were at the same places on both sides, On the Ohio shore, the landing was at the junction of certain streets, from which, in 1816, a road was regularly laid out and used to low water of the river. The complainant had previously removed his ferry to another point. The road became disused, and went out of repair. The respondent, to fit it for use, enteied on complainant’s lands adjacent, and dug and carried away earth for that purpose. He also landed passengers at that place, and there received them on board his boat for conveyance to the Virginia shore; but for this last he charged no ferriage.
    B. T. Weight and Tapp an,
    for complainant, contended that the only question raised was, has a licensed ferry-keeper from the Virginia shore of the Ohio river a consequent right to land his passengers on the lands of a licensed ferry-keeper in Ohio, and gratuitous^ take passengers from the Ohio shore, which otherwise would be compelled to use defendant’s ferry and compensate him?
    Stokely and Marsh, contra.
    This court will not interfere to restrain a mere trespass, even when the right is clear, save only to prevent irreparable and irremediable mischief to the inheritance, and leaves all other cases to the ordinary remedy of the courts of law. Jerome et al. v. Ross, 7 Johns. Ch. 315, is a very strong case, and the cases there cited. Hart v. Mayor *of Albany, 3 Paige, 213; Stevens v. Beekman et al., 1 Johns. Ch. 318.
   By the Court :

The court are satisfied that the complainant has no exclusive right to the ferry; if the respondent can find a place to land his boat, without touching the complainant’s land, he does no wrong to the complainant by keeping up the ferry. It follows that the injury, the gravamen of the complaint, is not the invasion of the feny franchise, but trespass upon the land across which the passengers find their way to and from the shore and the boat.

Is this a case for restraining a mere trespass by injunction? Where the trespass amounts to waste, going to the destruction of the estato, and producing an injury for which pecuniary compensation can not be made, chancery may be called upon for its aid to stay the mischief by injunction. Chancellor Kent, 7 Johns. Ch. 315, reviewing the cases on this head of chancery jurisdiction, says he “knows no case in which an injunction was granted to restrain a mere trespass, merely because he is a trespasser, without showing the property itself was of peculiar value, and could not well admit of a recompense, and would be destroyed by repeated acts of trespass. In ordinary cases, the damages to be assessed by the jury will be adequate for a check and for a recompense. It would require very strong evidence of the inefficacy of legal remedies for compensation as well as for correction, before this court will assume a jurisdiction heretofore unknown.” We consider the case cited as conclusive of the one before us.

It is not a suit asking the interference of chancery, because the trespassers are without property, and unable to respond in damages. This is not to be presumed, but must be shown before chancery will pass by the ordinary remedies and interpose its extraordinary aid.

It would be a further objection to granting the complainant the relief prayed for, that he has not established his right at law. .So far from showing the better right, the case as it now stands rather invests the respondent with it. The proofs show that a road runs to the river which has become disused and ruinous. This road seems to have been regularly laid out, and if it had not, it is shown to have been used for eighteen years. A much shorter time of use has been held evidence of a highway. It was the right of the re-168] spondent to repair this road, and if he *dug the soil of the complainant to be applied to this purpose, even if he went upon the adjoining land to construct a road because the ordinary path was out of repair, it could in no legal view be regarded but a mere trespass.

Bill dismissed.


author: The Court

text:
    Chauncey Bush v. D. R. Ellsworth.

      Quaere: Is the plaintiff in assumpsit by him, as indorsee against the maker of a note, upon the plea of non assumpsit, without affidavit, under the law of Ohio, bound to prove the indorsement of the note?
    Error from Huron. The plaintiff declared in the court below, as indorsee of a promissory note against the defendant as maker. Non assumpsit was pleaded without affidavit, and issue taken. At the trial in the common picas, the plaintiff offered no evidence of the indorsement of the note, and the court held such evidence necessary to enable him to recover. A verdict and judgment was rendered in favor of the defendant, to reverse which, for the error of the court in requiring such proof, this writ is brought.
    The act of assembly of January 21, 1817, dispensing with proof in certain cases, 18 Ohio L. 13, provides, so far as relates to the matter before the court, “that upon plea of non assumpsit or nihil debet, offered by the person charged as the maker of any promissory note, it shall not be necessary for the plaintiff to prove the execution of the note upon which suit is brought, unless the party offering such plea shall make affidavit of the truth thereof.”
    On December 18, 1823, 29 Ohio L. 123, this act was revised and extended to embrace other subjects, and. as to the matter under consideration, was made to read, “that upon plea of non assumpsit or nihil debet, offered by the person charged as the maker or indorser of any promissory note or bill of exchange, it shall not be necessary for the plaintiff to prove the making or indorsing of tha note or bill of exchange upon which suit is brought, unless the party offering such plea shall make affidavit of the truth thereof.”
    *The single question in the case was, whether, under the [169 last law, the plaintiff was required, under the plea of non assumpsit, without affidavit, to prove the indorsement of the note.
   The Court

was divided in opinion, Judges Collett and Wood being of opinion that the plaintiff was bound to prove the indorsement of the note;

Judges Lane and Wright being of a contrary opinion.

Judgment affirmed.


author: By the Court:

text:
    Eben. Williams v. H. Champion and E. Goodrich.
    A party having rights under a contract; disclaiming those rights under a mistake as to their character, is not concluded by such disclaimer; nor is he aB'ected if another purchased in consequence, if that other has abandoned the purchase, and does not claim the protection of being an innocent purchaser, without notice.
    Where a purchaser of land has performed in part the terms of the contract, and the failure to perform the residue is occasioned by circumstances which neither party could control, equity will arrange a just compensation, and charge it upon the land sold.
    This cause was adjourned for decision here, from the county of Geauga. It was a bill in chancery, seeking the specific performance of a contract, or compensation in money. The material facts of the case were as follows: In January, 1818, the complainant purchased of the respondent, Champion, six hundred and sixty-six acres of land, at the aggregate price of three thousand five hundred and sixty-two dollars. Payments thus : on demand, one thousand three hundred and eighty-four dollars and seventy-seven cents; on October 1, 1818, seven hundred and twenty-five dollars and seventy-seven cents; on October 1, 1819, seven hundred and twenty-five dollars and seventy-seven cents, and on October 1, 1820, seven hundred and twenty-five dollars and seventy-seven cents, with interest. Within these periods, complainant paid five hundred dollars, and effected sales of part of the land to others, to the amount of three thousand one hundred and ninety-eight dollars and fifty cents, and there remained two hundred and fifty-seven acres of the land unsold. On August 5, 1820, a new contract was made between the parties. In consideration ot the five hundred dollars paid by Williams, Champion agreed to convey to Williams’ son eighty-two acres; he agreed to accept the contracts 170] for the lands sold by Williams, to constitute ^Williams his agent to sell, of the remaining one hundred and seventy-five acres, one hundred at not less than ten dollars per acre, and when the sale was effected, to convey to Williams the remaining seventy-five acres, as compensation for his agency in the whole contract. Williams made continued efforts to effect the sale of the one hundred acres, at the price stipulated, bub could not succeed. In May, 1825, Champion conveyed all the lands and contracts in question to the respondent, Goodrich, who had married Champion’s daughter, as part of her marriage portion, expressly making the transfer subject to the right of Williams. Subsequently, in conversation with Goodrich, Williams admitted he had no right to the land, but claimed compensation in money from Champion. Goodrich sold the land to Tuttle, but no purchase money has been paid, or deed delivered. Tuttle makes no defense, mm
    Hitchcock, E. Whittlesey and Newton, for complainant.

      No argument for the respondents.
   By the Court:

The defense that has been relied upon by the respondents, in arguments on the circuit, may be thus stated:

1. Williams abandoned his claim in 1825, by declaring his expectation of compensation, in damages, from Champion.

2. The claim is extinguished by lapse of time.

3. Williams knew of the sale to Tuttle, and neither asserted his claim, nor made other objection.

The contract of 1820 gave Williams a right to demand the conveyance of seventy-five acres, upon completing sales of the residue of the original tracts sold to him in January, 1818. Much the larger portion of these tracts had been then sold, so that Williams had paid the greater portion of the consideration for the seventy-five acres. He continued, up to 1825, assiduous to effect a sale of the residue, upon the terms agreed on ; but he was unsuccessful. At that time, Champion, by conveying to Goodrich, put an end to the contract, and disabled Williams from performing that portion of it that remained unperformed. Williams’ subsequent assertion that he did not look to the land, but to Champion, for damages, we are satisfied was made under a mistake as to what were his rights. Nothing in the case sustains the idea of abandonment. Whilst the contract existed, *he sought to perform it. When [171 the other party put an end to it, Williams still asserted his right under it, though not in the form he now asserts them. There is no pretense to sustain the position of a voluntary abandonment.

Lapse of time never extinguishes the rights of the parties, merely as lapse of time. It does so when a time for doing an act is fixed, and the party to whom it is to be performed forthwith evinces his intention to put an end to the agreement, so soon as the failure to perform at the time fixed has occurred.- In this ease, no time of performance is fixed. Champion himself first put an end to the contract by the conveyance to Goodrich. Williams, at all times previous, was assiduous in his efforts to perform. His conduct evidenced no intention to abandon. Under the contract, Champion had no right to preclude Williams from completing the performance, after having received the benefits of his part performance.

Neither Champion nor Goodrich can place themselves in Tuttle’s shoes. No case of innocent or deceived purchase can be made but by Tuttle, or those claiming under him. Neither make any claim. We find nothing in the whole ease to preclude the complainant from suitable relief.

The mode of administering that relief presents some difficulty; but, in our opinion, it is not insurmountable. The contract between Williams and Champion, as readjusted in 1820, rested) partly, upon a previous part performance by Williams, and partly upon a performance thereafter to be made. That it was not performed is chargeable upon neither. As he has not performed all that he was to perform, the complainant can not equitably demand, a whole performance from the other contracting party. But he may justly claim an apportioned remuneration. To ascertain this, the cause is referred to a master to ascertain what is the fair and ordinary commission for the sale of lands, in like circumstances, in the vicinity of those lands. The sum ascertained to be due to be a charge upon the seventy-five acres of land until paid; in default of which the court will direct a sale.


text:
    *Executors of J. Wilson, deceased, and John Abraham v. Benjamin Tappan.
    Where continuous litigation has existed'between parties to a contract, in a legal view affirming its existence, it can not be considered as abandoned, that one party may have made declarations to that effect.
    Where time is not of the essence of the contract, specific performance maybe decreed against a purchaser, if a good title can be made at the time of the decree.
    A will made in ‘a sister state must be recorded in Ohio, before title to land vests in the devisee.
    Vendor of land must pay taxes until conveyance is made, if not otherwise stipulated. Permitting sale for taxes so stains the title that he can not ask specific performance.
    This cause was adjourned here for decision, from the county of Jefferson. It is a bill in chancery, in the nature of a bill asking the specific performance of a contract for the sale of lands, by tho vendor against the vendee. Many allegations and some testimony were introduced, extrinsic of the grounds upon which the cause was decided. It is only necessary to state so much of the case as is necessary to a full understanding of the points determined.
    On June 23, 1825, Wilson and Abraham entered into a contract with Tappan for the sale of four hundred acres of land in Tuscarawas county. The price to be paid was two thousand dollars, in two equal annual payments. Tappan executed his notes, one for one thousand dollars, payable June 23, 1826, and one for one thousand dollars, payable June 23, 1827. Wilson and Abraham executed to Tappan their- bond to convey him the land when the notes should be paid, if paid and contented as they became due. The first note was paid about the time it became duo. The second note was not paid when it fell due, nor until after suit brought. It was discharged in September, 1829.
    Wilson and Abraham purchased the land of the devisee of one Bruff, oí the Slate of Maryland, whose will, duly proven in that state, was not put upon record in Tuscarawas county, Ohio, until the year 1831.
    The contract of sale contained no stipulation which party should pay the taxes. Wilson and Abraham paid them for the years 1825 and 1826. For the taxes of 1827, the land was sold, and no redemption effected by either party within two years from the time of sale.
    On July 26, 1830, the whole purchase money having been paid previously, and a suit brought on the title bond by Tappan, that suit was dismissed. It was Saturday; and in the ^afternoon [173 of that day, a deed was demanded. Early on Monday, July 28, Tappan commenced an action of assumpsit, to recover back the purchase money. In the after-part of the same day, a deed was tendered but refused. In the action thus commenced, Tappan obtained a verdict and judgment for his purchase money, with interest. This bill was brought to coerce him to accept the title, and to enjoin him from collecting the amount of the judgment.
    Leavitt and Sutherland, for complainants, contended :
    That, abstracted from any considerations connected with the trial at law, they are entitled to the relief prayed for in the bill:
    1. The vendors, Wilson and Abraham, were guilty of no failure on their part, amounting, in equity, to a forfeiture or rescission of the contract.
    2. The incumbrance growing out of the tax sale was one for which the vendors were not responsible, having been created by the default of the defendant, whose duty it was to pay the taxes upon the land, from the time of the contract, especially as he was in actual possession.
    3. The alleged defect of title in the vendors, predicated upon the fact that Bruff’s will was not placed on record in Tuscarawas county, before the suit at law was brought, will not be deemed, in a court of equity, as vital or material, as it was susceptible of a remedy, and has been remedied by the record of the will in due form; so that there now exists no objection to vendor’s title. 7 Ves. 202; Jeremy Eq. 456, 463.
    Defendant, contra.
   Judge Lane

delivered the opinion of the court:

The deed which the complainants covenanted to deliver to the respondent could not be claimed by him until he had made full payment, which was in September, 1829. It was tendered, after demand made, in July, 1830. But between July, 1829, and September, 1830, a suit was pending, brought by Tappan against Wilson and Abraham, on the contract of sale, thus affirming it as in force, notwithstanding expressions used by him, declaring his unwillingness to accept a deed. Under these circumstances, it is not 174] perceived by the court, that either the lapse of *time, or any other obstacle of that nature, precludes the complainants from asserting their right to a specific performance.

The complainants stipulated to give such a deed as should transfer a good legal estate to the defendant. It is not indispensable, in these cases where time is not of essence, that the capacity to make a good title should exist, at the time of its stipulated performance, nor even at the time of filing the bill. It is sufficient if the title can be made good when the case is heard, or even at the master’s report. 7 Ves. 202. But the purchaser will not be compelled to take a doubtful title. 3 Bligh’s P. C. 162; 6 Madd. 159. We are therefore led to consider if a good title can be now made under the direction of this court.

The land was patented to Bruff and bequeathed to his daughter, who conveyed to the complainants. This will, though proved and recorded in Maryland in 1816, was not admitted for record in this state until 1831. It has been often decided, and this course of decision was followed in the trial between these parties, at the term of October, 1831, that the title of the devisee was not complete until the record was made of this will. While it continued unrecorded, the complainants were unable to convey “a good legal” estate. Tappan could not be compelled to accept a title ; but this difficulty was removed after the trial at law, and now will not prevent the execution.

The taxes upon the land were paid by complainants during the years 1825-26; but the lands becoming afterward delinquent, were sold for the taxes of 1827-28. This tax sale is a stain upon the title, rendering it at least doubtful, and no performance will be ordered unless it is removed, or unless some fact be shown exonerating the complainants from the consequences of this imputation.

' The complainants insist the case furnishes this excuse in the position, that after a contract for a sale, equity imposes upon the purchaser the duty of paying the taxes himself, and that the incumbrance is produced by his negligence.

The parties to this contract might frame their own terms, but when they reduce it to writing, the' writing shows them. By this title bond the complainants stipulated to convey a good legal estate on June 23, 1827, on the payment of principal and interest. They now seek to multiply the conditions of the contract, and to make the conveyance of a good legal estate to depend on the payment of principal, interest, and *taxes. There is [175 nothing in the terms of the writing which creates the obligation, and we do not think the mere relation of purchaser necessarily produces this effect. Possibly, if Tappan were asking a specific performance, he might be compelled, in the account, to reimburse taxes paid by the vendor, on the principle that all the profits and all the burdens of the estate passed to him, in equity, by the contract. We give no opinion on this; but that the complainants were, in the first instance, chargeable with the payment of the tax seems plain, as they were the legal owners; and if the contract had been fully executed, the warranty in their deed would have indemnified Tappan against any such lien. The complainants themselves adopted this construction by keeping down the taxes for two years.

It is for the next two years that the delinquency occurred, and the complainants insist they have become chargeable to the defendant because the time had elapsed in which the money ought to have been paid by Tappan. We can not so interpret the duties of the parties. Perhaps complainants might rescind; but if they chose to keep the contract open, they must keep themselves always ready to perform their stipulation, and on enforcing the payment of the money, they must still be able to convey the same good legal title. To maintain this ability, they must keep down the taxes and preserve the title, for the same reasons as before the time of payment, whatever may be the respective rights of the parties in taking the account.

There is another consideration which weighs much in the present case. The title has never been in a situation where a court of equity could compel Tappan to accept it. The complainants had not acquired the title fromBruff until 1831, until which time they could not enforce its specific execution, and Tappan was justified in withholding payment until this difficulty was removed. While matters remained in this situation, equity would not hold Tappan bound to advance the'taxes upon land, whose title he was at liberty to reject.

Another view may be taken of the present case, which satisfactorily shows the impropriety of extending the present relief. The complainants, in 1830, tendered a deed, containing the covenants of warranty, which is now on our files, ready to be delivered, if we require this contract to be executed. The contract of warranty contained in the deed is general in its terms, assuring the 176] title of the land to the grantee against all claims existing *at the time it takes effect, and the law will not permit its operation to be limited by any explanatory evidence. The tax claim arose in 1828, and now hangs over the title. It is, therefore, one against which the deed assumes to defend. If, then, we give complainants the relief they ask, and compel the defendant to execute this contract, and enjoin the judgment he recovered, we compel the complainants to deliver him the deed, by which he acquires a new right of action, to recover the same money contained in the judgment we enjoin.

Bill dismissed.

Judge Wood dissented; Judge Wright, having been of counsel, did not sit.