author: Kennon, J.

text:
    Executors of Frederick Haymaker, Deceased, v. Andrew Haymaker.
    In the absence of any expresss statutory provision on the subject, section 6 of the statute of limitation of 1831, is to be construed so as to cover a case under the administration act; where the claimant commences suit within six months after the rejection of his claim by the executor, and after the expiration of the six months the judgment is reversed, or the plaintiff becomes non-suited.

      The fact that the nonsuit was occasioned by the failing of the plaintiff to give security for costs, does not withdraw the case from the operation of the statute, so construed.
    Where the declaration contains several counts, the first of which avers the original contract-liability of the defendant’s testator to the plaintiff, the bar by the statute of limitations, and a subsequent promise to pay within six years before the commencement of the action; the second of which avers that, in consideration of the work and labor of the plaintiff previously done and performed by the testator — without averment that it was done at the request of the testator — the testator promised to pay the plaintiff what the work was reasonably worth, it is no error for the court to charge the jury that the plaintiff may recover under the second count, not for the labor, but upon the promise made in consideration of "such labor.
    There is no bar to an action, unless pleaded, and it would be requiring too much to ask the plaintiff to foresee which defense will be made, and to anticipate the statute of limitations. The better practice in such case is to make the issue of the subsequent promise by replication.
    Under a count, framed on an executed consideration, and averring the original indebtedness and a subsequent promise in consideration thereof, but failing to aver that the claim had ever been barred by the statute of limitations, evidence will be admitted that the claim was barred, but taken out of the statute by a subsequent promise.
    ^Petition in Error, to reverse a judgment of tbe district court of Trumbull county.
    The case is stated in the opinion of the court.

      Sutliff & Tuttle, for plaintiffs in error, made the following points:
    I. So far as the claim made in the present case is concerned, the statute requiring non-resident plaintiffs to give bail for costs (Swan’s Stat. 651, old edition), is still in force. The statute of executors and administrators having been enacted subsequently to' this statute, the provisions of its 90th section as much require bail to be given within six months by a non-resident, as they require suit to be commenced within six months. The effect and substance of the 90th section are, “ shall commence a suit, in manner as required by law, or be barred forever,” etc.
    The object of the statute is to put the administrator in a position to have the claim determined without concession by him. Until bail for costs is given by non-residents, the administrator has not been in a position where that can be done. As to all the objects to be gained by tbe statute, it is the same as though no suit had been commenced.
    The statute certainly contemplates more than the mere commencement of a suit; it must be prosecuted as well as commenced; and the failure to prosecute — such as in this case — is as fatal as-the failure to commence. Spalding v. Butts et al., 6 Conn. 28.
    II. It is a well-established rule of pleading, that what any averment of declaration in regard to the nature of a consideration for a promise means in legal construction, that must be proved in support of the averment.
    The language of the second count of the plaintiff’s declaration is of an established and determinate legal meaning; it no more means, that a promise has in fact been made after the performance *of the labor, or' at any other time, than the formal request in the conclusion of an assumpsit count means a real request. To consider it as making a case for proof of such a promise made, after the statute has run against the original liability, is to go counter-to the doctrine of Hill v. Henry, 17 Ohio, 9-13.
    Upon all rules of construction the necessary effect of our statute, as to a suit after the statutory period, is either that no action at all can be maintained, or else that it can only be on the new promise. Ibid., Marcy, J., in 3 Wend. 141; Spalding, J., in 20 Ohio, 335. The case of Turner v. Moore’s administrator has been supposed to establish a contrary doctrine, 20 Ohio, 332; but the remarks of the court in that case go to show, that the point decided is against principle, even as there decided. The court expressly decide, that the case of Hill v. Henry, does not bear at all on the questions arising in the case under consideration. That case, says Judge Spalding, “ Owes its decision to the peculiar phraseology of section 5 of the act of 1831.”
    III. The charge of the court, that if the plaintiff had during-the period after his majority and preceding the year 1826, done any labor for the defendant’s testator, which had not been paid for nor satisfied, the promise of the testator at any time after it was-done to pay for it would create a liability to pay for it, is erroneous and opposed to authorities as well as to reason. The subsequent promise creates a legal obligation, when there is a previous legal' or moral obligation to pay, and not otherwise.
    IT., The judgment of the district court, that the damages and' costs be levied of the assets of the testator-in the hands of the ex•ecutor, and the special mandate to the court of common pleas to carry the judgment into effect, are erroneous. Swan’s Stat. 378, sec. 95.
    N o other argument came to the hands of the reporter.
   Kennon, J.

Andrew Haymaker, the plaintiff below, in an .action of assumpsit brought against the defendant below, filed a ^declaration, containing three counts. The first, in substance, alleged that, in 1823, he entered into a contract with the testator, by which he agreed to serve the testator for three years, in consideration of which services the testator promised to convey to the plaintiff fifty acres of land, in Portage county; that the plaintiff performed the labor; that the testator refused to make the deed, and afterward conveyed the land to a stranger; that afterward, and after the statute of limitations had barred the plaintiff’s claim, and within six years before the commencement of this suit, the testator promised to pay the plaintiff for his services.

The second count alleged, that in consideration of the work and labor of the plaintiff, before that time done and performed for the testator (without any averment that it was done at the request of the testator), of the value of $800, the testator promised to pay the •plaintiff what the work and labor was reasonably worth; and the plaintiff averred that it was reasonably worth $800.

The third count contained all the common counts in one, in the usual form.

The defendants pleaded, firstly, non-assumpsit; secondly, the -statute of limitations; and thirdly, a special plea, averring that the plaintiff had presented the.claim, upon which the action was brought, to the executors for their acceptance or rejection, according to the statute in such case made and provided, and requested the executors to approve the same, but that the executors rejected the claim; and that this suit was not brought until more than six months after such rejection.

To this special plea the plaintiff replied, that he had brought .another action within six months after the rejection of his claim by the executors, and that he was non-suited by the court in said action ; and that afterward, and within six months from the time of said non-suit, he had brought the present action.

To this replication ithe defendants rejoined, that when the ■^plaintiff brought the first action, he was a non-resident of the county of Trumbull, and that he was ordered by the court to give security for costs, within forty days, or become non-suited; and that he failed to give such security, and in consequence thereof was non-suited.

To this rejoinder tbe plaintiff demurred, and tbe district court sustained tbe demurrer.

On tbe trial of tbe issues of fact to tbe jury, tbe plaintiff, to sustain the issue on bis part, proved that he was tbe son of the testator, and became of age in 1822; and further gave evidence tending to prove tbe several allegations in tbe first count in bis declaration, and that tbe plaintiff labored for tbe testator from 1822 to 1826. Tbe evidence of labor offered by tbe plaintiff was confined to a period previous to, and including, tbe year 1826; and tbe plaintiff gave evidence tending to prove that tbe testator, witbin six years-before tbe commencement of tbe suit, promised to j>ay tbe plaintiff’s claim. Tbe defendants, to sustain the issue on their part, gave evidence tending to prove that tbe plaintiff bad made no such agreement, as alleged in tbe first count of tbe plaintiff’s declaration, and also tending to disprove that tbe plaintiff labored for tbe testator any sucb period, after arriving at tbe age of twenty-one years; and also tending to rebut tbe plaintiff’s evidence, that tbe testator had subsequently promised tbe plaintiff, for tbe land or labor; and also-gave evidence tending to prove that tbe testator bad sold tbe said land in 1834, with tbe knowledge of tbe plaintiff.

The parties having closed tbe evidence, tbe defendant’s counsel-asked tbe court to instruct tbe jury, that tbe plaintiff could not recover on tbe first count, unless tbe several allegations of the-making of said original contract of service and tbe performance thereof, and tbe subsequent promise, were proved to tbe jury; and that for any service less than three years, performed as aforesaid, be could not recover under tbe other counts in tbe declaration,, unless bis original right of action for sucb labor bad accrued *within six years before tbis suit was commenced. But tbe court'refused thus to charge the jury, if tbe plaintiff had not proved the allegations in his first count, be could not recover thereon; but that, under tbe second count in tbe declaration, tbe plaintiff might recover, if be bad proved any amount of service done by tbe plaintiff for tbe testator, at any time after arriving at tbe age of twenty-one-years, for which tbe plaintiff bad not received payment or satisfaction, if tbe testator bad, in consideration of sucb labor or service,, contracted or promised tbe plaintiff to pay Mm for tbe same if such contract or promise was made within six years before the commencement of this suit. That, in snch case, the plaintiff might recover, not for the original labor, but upon the promise made in consideration of the labor.

To refusing to charge the jury as requested, and to the opinion of the court in the charge, the defendants excepted, and caused the bill of exceptions to be made a part of the record.

The jury found that the testator did assume and promise, within six years before the commencement of this suit, in manner and form as the said plaintiff had alleged, in the first and second counts in the declaration, and assessed the damages at $402, for which judgment was rendered.

The plaintiffs in error assign, in their petition, three causes, for either of which they claim the judgment of the district court should be reversed.

1. It is claimed the court erred in sustaining the plaintiff’s demurrer to their rejoinder to the plaintiff’s replication.

2. That they erred in charging the jury that the plaintiff might recover, under the pleadings, for any labor done by the plaintiff for-the testator, for which the right of action was barred by the statute ment of limitations.

3. That the court erred in charging the jury, that if the plaintiff had, after arriving at majority, performed any labor for the testator for which he had not received payment nor satisfaction, *and the testator had at any time afterward promised to pay for the labor, the plaintiff might recover on that promise.

There is also a fourth error assigned, that the court rendered judgment and ordered the same to be levied of the assets of the testator, in the hands of the executors. As to this last error, upon looking to the record, we find the judgment is in the usual form, and means only that the money is not to be levied of the property of the executors, but of the property of the testator; and execution is not ordered to issue on the judgment, but it is simply remanded to the court of common pleas, to be carried into execution as all other judgments are. If the judgment had been rendered against the executors without adding the words, “ to be levied of the property of the testator,” it might, and probably would have been, erroneous; but we think the judgment is in the proper form.

As to the first error assigned, whether the court should have sustamed the demurrer to the rejoinder, this depends upon a construction of our statutes of limitation.

By section 98 of the administration act, it is provided that no action shall be brought against an executor or administrator until after eighteen months from the date of the letters of administration, or the further time allowed by the court for the collection of the assets of the estate, except in certain cases therein named; one of which cases is provided for in section 90 of the same act. This section provides that if a claim against the estate of any deceased person be exhibited against the executor or administrator, and shall be rejected by him, if the debt be due, the claimant shall, within six months after such rejection, commence a suit for the recovery thereof, or be forever barred from maintaining an action thereon; and a claim shall be deemed disputed or rejected if the executor or administrator shall, on presentation of the vouchers thereof, refuse, on demand made for that purpose, to indorse thereon his allowance of the same as a valid claim against the estate.

*It will be perceived that by this section no provision is made to save the rights of a claimant who shall have commenced his suit within the six months, and after the expiration of six months shall become nonsuited; nor is any such provision made for a case where the suit shall abate, or where the plaintiff shall obtain a verdict and the judgment be arrested, or where judgment shall be rendered in favor of the plaintiff, and the judgment shall be reversed for error. In neither of these cases is any provision made, in express terms, authorizing another action to be commenced at any time after the expiration of the first six months.

There is, however, a provision in our statute of limitations which provides, that if any action be commenced within the time limited by this act, judgment shall be reversed or arrested, or the suit abate, or the plaintiff become nonsuited, until the time limited, as aforesaid, shall have expired. The plaintiff may commence a new action within one year after such arrest or reversal of judgment, nonsuit, or abatement of action, and not after. See Swan’s Stat. (old), 555, sec. 6.

This last act took effect June 1, 1831, and was in force at the time of the passage of the act -providing for the settlement of the estates of deceased persons.

It will be seen, from the reading of these two acts, that neither of them provide, in express terms, for the case in which an action .has been brought against an executor or administrator who had rejected a claim, and suit is brought within the six months prescribed by the statute, but after the expiration of the six' months the judgment is reversed, or the plaintiff becomes nonsuited.

It is very clear that the legislature intended, by our general statute of limitations, that the plaintiff should not lose his debt, if he commenced his action before the bar was complete, and afterward, and after the statute had run, he should be nonsuited by order of the court, but should have one year thereafter in which to commence a new action.

There is no reason why the rights of a party should be saved *in the one case, and not in the other; and the only question is whether the equity of the provisions of our statute of limitations can be extended beyond its express provisions, so as to provide for .a case under the administration law, where the claimant must commence suit within six months, and actually does so, and afterward becomes nonsuited, or his judgment is reversed.

Section 4 of the statute of James provided that if, in any of the said ■actions or suits (meaning the actions or suits mentioned in the English statute of limitations), judgment be given for the plaintiff, and the same be reversed by error, or a verdict pass for the plaintiff, and upon matter alleged in arrest of judgment, the judgment be given •against the plaintiff, that he take nothing by his plaint, writ, or bill. The plaintiff in such cases’ may commence a new action within one year, and not after. See Angelí on Limitations, 402. The English statute extended by its terms to only two cases, viz: •arrest of judgment, and reversal or writ of error; our statute extends to nonsuits and abatement’of the action. •

Under the English statute, if an action had been commenced within the six years, and by tho death of one of the parties the action abated, the statute has been so construed that a new action maybe commenced, though the six years have expired.- In such cases, however, the action must be commenced within a reasonable ■time, and that reasonable time has been held to be one year, the courts following the equity of the views of the legislature in cases of arrest or error. And such may be considered the settled law in England and the United States. See Angelí on Limitations, 404, 405, and authorities there cited. It will be observed that these decisions are based upon a construction of statutes wherein no saving is made for the abatement of an action by death or otherwise.

It has, however, been almost uniformly held that when the plaintiff became nonsuited, no new action could be brought, but this was-always under a statute where there was no saving in *case of nonsuits. Our statute expressly saves the right of the plaintiff in ease of nonsuit, and allows him one year thereafter in whicli to bring his action. On the principles of the decided cases, where the-statute made no provision for nonsuits, we think we would be safe in saying that if in this case the plaintiff had in his first suit obtained a judgment against the defendant, and that judgment had afterward on writ of error been reversed, the plaintiff should at least have a reasonable time in which to commence a new action, and that reasonable time would be six months, the time allowed by the statute in which to bring his original suit after the claim was rejected; but since our statute extends to nonsuits as well as reversal on error, the same reason would require a court to construe the statute to apply to nonsuits in cases like the present. The question whether this was a voluntary nonsuit, and whether the statute can be so extended as to include voluntary nonsuits, does not arise in this case, for the reason that, so far as we can see, it was anything but a voluntary nonsuit; it was made on the motion of the defendant, and was ordered by the court. The fact that it was ordered because the plaintiff had not complied with the statute in giving security for costs, is no more the fault of the plaintiff than any other error which he or his counsel might have committed on the trial of the case, by which the judgment might be arrested or reversed. We think, therefore, that the defendant’s rejoinder was no legal-answer to the replication, and that the court -did not err in sustaining the demurrer.

We ought, however, to observe on this point, that we have examined the case referred to by counsel for the petition in error, found in 6 Conn. 28, and, although we have not been able to find the statute upon which that that decision was based, we find the provisions of the Connecticut statute of 1849 are almost a copy of ours, with the single exception that it saves the right of a creditor who-may sue before the expiration of the six months, and there is no other saving clause in the act.

The case, according to the opinion of Judge Peters, might well have been decided on the point that the second action was not for the same cause of action for which the first was brought. The first suit seems to have been debt on a record; the second was an action of account going behind the judgment, and the judge says': “ But the actions are not for the same matter, cause, or thing, as • claimed by the plaintiff’s counsel. One is debt, the other account; and they have no more effect on each other than trover and eject- ■ merit for the same land.” It could in no sense be considered a continuation of the first action. We do not consider the case in point.

The second error assigned being that the court erred in chargingthe jury that the plaintiff might recover under the pleadings forany labor done by the plaintiff for the testator, for which the right of action was barred by the statute of limitations, is intended to ■ raise the question whether the declaration must not count upon the new promise, making the original and barred liability the consideration for such promise. Now, the first count in the declaration is-precisely such count: it states the original legal liability, the bar, and the subsequent promise, within six years before the commencement of the action; and the court charged the jury that if theplaintiff had not proved the allegations in the first count, the jury could not find for the plaintiff on that count. The court, as to that. count, charged in substance as asked, and charged, correctly. But the court further charged, “ That under the second count in the ■ declaration, the plaintiff might recover if he had proved any amount of service done by the plaintiff for the defendant’s testatorat any time after arriving at the age of twenty-one years, for which the plaintiff had not received payment nor satisfaction, if the testator, in consideration of such labor, promised the defendant to pay him for the same, if such promise was made within six years before - suit brought; that the plaintiff might recover, not for the labor, but upon the promise made in consideration of such labor.” It is-true that this count does not aver *that the original labor was performed at the request of the testator, but is a common count for work and labor. No advantage could be taken to the count-for the want of such averment, except by demurrer; and a court of error will presume that it was so found by the jury, unless the contrary appear.

So far as the evidence is set forth in the bill of exceptions, we ■ can not fail to see that it was all, on the part of the plaintiff, given to prove a special contract made by the parties for the services of the plaintiff; that it was not the intention of the court to charge-the jury that a request of the testator, either express or implied,. ■was not necessary to enable the plaintiff to recover for work and . labor performed for the testator. That was not the point in the .mind of either court or counsel. The real point was whether, if the claim was barred by the statute of limitations before any promise was made by the testator, which, if made before the bar, would have reversed the cause of action, a recovery could be had on any other than the first count in the declaration. In other words, was ■ either of those last counts so framed that in case the plaintiff failed •to prove the first count, he could recover on either of the others upon a promise made after the bar, and within six years before the ,commencement of the action? To this point alone was the attention of the court directed, and not whether it was necessary to prove an original request to perform the services. The court charged that ■a recovery could be had on the second count, although the plaintiff might fail to prove the first count, and although the promise was made after the plaintiff had been barred by the statute of limitations. Taking the testimony offered by the plaintiff, the plain fact, as it appears by the testimony offered by the plaintiff, that he had ■but one course of action — the point which was in fact before court ■when the charge was given — the fact that the jury found, under the first count, that the labor was performed at the testator’s request, and upon a contract, we are not able to see that the defend•ants either were, or could have been injured by the charge, so far as an original request to do *tlie labor is concerned, or that the jury could have at all been misled in supposing that the court intended to charge them that it was not necessary that the labor .should originally have been performed at the request of the testator.

We think the defendants could not.have been prejudiced by this charge; and that the judgment ought not, therefore, to be reversed - on that account.

It is also claimed that the court erred in their instruction to the jury, that a recovery might be had on the second count of the ■plaintiff’s declaration, although the claim had been barred by the . statute of limitations before the promise to pay was made.

The question raised by this assignment of error is, whether the ■■count is so framed as to admit evidence that the claim had been barred by the statute of limitations, and that in consideration of •■the prior indebtedness, a promise was made to pay the claim.

It is supposed that the charge that a recovery might be had as such, on this count, is contrary to the ruling of the Supreme Court in the case of Hillers v. Henry, 17 Ohio, 9.

The court in that case held that a cause of action could not be ■ revived by a promise made after the bar, but that the original indebtedness was a sufficient moral obligation to sustain a subsequent-promise.

This second count is framed on an executed consideration, and alleges in substance that the testator was indebted to the plaintiff for the work and labor of the plaintiff, before that time performed for the testator; and that, in consideration of that indebtedness, he promised to pay what the work was really worth. There is no averment that the claim had been barred before the promise. Otherwise the count would be sufficient in all respects. The plaintiff proved that the testator promised within six years. The defendants claim that he ought not to be permitted to prove a promise made so lately, but were of opinion that wherever a count on an account stated would have lain before the bar, or where the common count upon an executed consideration for work *and labor, would have lain before the bar, that on these two counts at least, a recovery may be had after the bar, founded upon the subsequent promise; that the form of the two counts, the one before and the other after the bar, must be very nearly the same, and that the court did not err in this particular.

Indeed it may be well doubted whether, in any case, unless upon a bond or sealed instrument, the plaintiff ought to be required to anticipate the defense of the defendant. There is no bar unless pleaded, and it would be requiring a good deal, to ask the plaintiff to foresee which defense will be made, and anticipate the statute of limitations. The better practice in such case would be to make the issue of the subsequent promise by replication.

Upon the whole, we think there was no error in the case, and the.; is affirmed.


source: Caselaw Access Project

author: J. R. Swan, J.

license: Public Domain

text:
    Nathan Harris v. Columbiana Mutual Insurance Company.
    The appropriation of a part of the insured building to the trade of coopering, in violation of the conditions and by-laws, annexed to and made a part of the policy (and which provide that such misappropriation shall, ipso facto, render the policy void), avoids the policy; and when it is shown that such forbidden trade was actually carried on, the breach of the conditions and by-laws is complete, although the trade was not carried on for such a length of time as to become “ permanent or habitual."
    .It seems that, where the condition of a policy renders it void if the building is appropriated or used for any trade, or for storing any goods denominated extra-hazardous, the carrying on such trade, temporarily, for the purpose of ordinary repairs, or the introduction into the building of the articles so denominated, to be used for ordinary repairs, or to be consumed in domestic or family use, does not avoid the policy, and the insurers are, notwithstanding, liable; and it is in these, and the like cases, that courts have said that the trade or use, etc., is not “ permanent or habitual.”
    *This case was reserved from Columbiana county. It was before this court in 1849, on demurrer to the bill, and is reported in 18 Ohio, 116 ; and the demurrer was then overruled. It now comes before the court for hearing on the bill, answer, replication, and tes.timony.
    The facts of the case material to the question decided, are stated in the opinion of the court.

      Mason and Potter, for complainant, cited—
    Shaw v. Robberds, 33 Eng. C. L. 12; Gates v. The Mad. Co. Mut. Ins. Co., 1 Seld. 469; 2 Greenl. sec. 408; 16 Bac. Sup. Ct. 119; Stebbins v. The Globe Ins. Co., 2 Hall N. Y. 632 ; Dobson v. Sotheby et al., 22 Eng. C. Law, 260; Meriam v. The Mad. Mut. Fire Ins. Co., 21 Pick. 162 ; Col. Ins. Co. v. Lawrence, 10 Pet. 507; 1 Ohio St. 471; Angel on L. Fire Ins., secs. 67, 146, 188, 190, 192; 1 Phil. on Ins., sec. 874.

      W. K. Upham, for the defendant,
    cited 3 Exch. 535; 21 Pick. 162; 1 Phil. on Ins., sec. 1035, sec. 10 ; 16 Ohio, 148; 6 Adol. & E. 75; 2 Hall, 589; 2 M. & V. 472 ; 2 Comst. 43; 2 Denio, 75.
   J. R. Swan, J.

The only question we deem it necessary to con-eider in this case is, whether the policy became void by the appropriation of the building insured to other purposes than those mentioned in the policy.

The property described in and covered by the policy, is a “ brick flouring-mill and engine-house, steam-engine, with all the machinery thereto attached and belonging, necessary for manufacturing flour with steam power, situate,” etc. The insurers covenant, in terms, “ according to the provisions of their act of incorporation, by-laws, and conditions annexed, to settle with and pay to Harris all losses and damages which may happen,” etc., during the time the policy shall remain in force.

*One of the by-laws annexed to the policy is as follows:

“If the insured shall alter or enlarge a building, or appropriate to other purposes than those mentioned in the policy, so as to increase the risk, the same shall, ipso facto, become void: provided that, in ■case of such alteration, enlargement or change of use, if the insured shall, within sixty days, and previous to any occurrence of loss on the property insured, give notice thereof to the clerk, the policy may be renewed by the board of directors on such terms as they shall deem equitable."

The conditions annexed to the policy contain a subdivision of .goods, etc., into three classes — not hazardous, hazardous, and extra-hazardous. “ The following trades and occupations, goods, wares, and merchandise, are denominated extra-hazardous: . . coach-makers, . . coopers, . . Memorandum. — Grist-mills, fulling-mills, and other mills, . . . will be insured at special rates of premium.”

During the existence of the policy, and on the 20th July, 1845, the premises were destroyed by fire. For the period of about three months before, and down to the time of the fire, the mill had not been running. It had been undergoing some repairs. The repairs, however, had been finished about one month before the fire occurred. The fire commenced in the thi$d story, about midnight. It was seen in the third story before the flames burst out upon the roof, and articles were taken from the second story after the fire had commenced. No fire was kept at the mill; no one slept there. The plaintiff had slept there some weeks before, but had removed his furniture from the mill, and lodged at a public house a short distance from the mill. He was seen leaving the mill on the night previous to the fire, after sundown. The bolting cloths were not in the mill when it was burned down. These facts do not justify the court in believing that the mill was set on fire.

During a part of the three months previous to the fire, the plaintiff' and his son were engaged in the business of making tubs *and churns, in the third story of the mill. The quantity made is not proved, nor would such a fact, in general, be susceptible of proof. One of the plaintiff’s witnesses thinks the plaintiff made a dozen or go wash-tubs, but does not know the quantity. Two witnesses of the defendant purchased tubs of the plaintiff, and one of them says that Harris worked at coopering as it was ordered; coopered now and then, as people wanted the articles; on a few occasions to pass time; manufactured tubs and churns for‘sale; and was not there, probably, more than half of the three months. There were piles of staves and a considerable quantity of shavings sometimes, in the-third story, where he and his son worked.

It appears, from the proof, that Harris and his son manufactured tubs and churns, in the third story of the mill, for a few weeks before the fire, and Harris sold the wares.he manufactured. 'Proof of the quantity of the articles manufactured may he an important element in determining whether the trade was actually carried on, when there is an absence of all proof of the sale of the articles or the object for which the articles were manufactured; but when there is, as in this case, satisfactory proof that the articles were manufactured to sell, and that the extent of the manufacture and trade was only limited by the amount of the orders received for the articles, the quantity manufactured is of little or no consequence.

It is insisted that the trade must be carried on for such a period-of time, and in such manner, as to be habitual or permanent. This may in some eases be true, but not to the extent, nor, in general, is the rule applicable in the sense claimed by the counsel for the plaintiff.

In 2 Greenleaf’s Ev., see. 408, the general rule is stated, that “ The change of use must be habitual or of a permanent character. Thus, where the policy was on premises ‘where no fire is kept and where-no hazardous goods are deposited,’ a loss occasioned by making a fire once on the premises and heating tar, for the ^purpose oí making repairs, was held covered by the policy. And where a kiln, used for drying corn, was upon on? occasion used for the more dangerous process of drying bark, whereby the building took fire and. was consumed, the underwriters, on-, the same were held. liable.” As authority for this statement, he refers to the cases of Dobson v. Sotherby et al., and Shaw v. Robberds.

Upon an examination of the tar-barrel case, Dobson v. Sotherby et al., 22 Eng. C. L. 260; it will be found that the building insured was of a kind which required the use of tar to repair the roof. The roof required tarring, and a tar-barrel was brought into the building, and the tar there heated by a fire, for the purpose of performing the necessary operation. The court did not decide the case upon the fact that a fire and tar were introduced into the building upon one occasion, but say, That the condition must be understood as forbidding only the habitual use of fire, or the ordinary deposit of hazardous goods, not their occasional introduction, as in this case, for a temporary purpose, connected with the occupation of the premises. The common repairs of a building necessarily require the introduction of fire upon the premises,” etc.

The rule to be deduced from this ease is, that although the policy forbid fire to be kept, or hazardous goods to be deposited in a building, such stipulation was not intended to cover, and does not cover, fire or hazardous goods necessary to make ordinary repairs, and used on the premises for that purpose.

The other case cited by G-reenleaf is Shaw v. Robberds et al., 33 Eng. C. L. 12; and was as follows:

The plaintiff insured a granary, etc., and “kiln for drying corn, in use.” The condition of the policy was that, “ If a building contain a kiln, or any process of fire-heat, other than the ordinary risk of common fires in private houses, the same must be noticed in the policy; and that if the risk of fire to which such building is exposed be by any means increased, such ^increase of risk must be immediately notified and allowed by indorsement on the policy, otherwise the insurance as to such buildings or goods will be void.” The kiln was used for drying corn, and for no other purpose. A vessel laden with oak bark was sunk, and the owner of the bark was permitted by the insured, as an act of kindness and gratuitously, to dry the bark in the kiln for drying corn. No notice of this was given to the insurers. The fire in the kiln for drying the bark was not larger than that usual in the case of drying corn. While the bark was drying, and on the third day after the commencement of that process, the kiln and all . the premises took fire and were consumed. The jury found that the trades of drying bark and drying corn were different; that the drying bark was the more dangerous; and that the fire was occasioned by drying it. The court say: “ Perhaps if the plaintiff had made any •charge for drying this bark, it might have been a question for the jury, whether he had done so as a matter of business, and whether •or not he had thereby (although it was the first instance of bark drying) made an alteration in his business within the meaning of that condition. But according to the evidence, we are clearly of the opinion that no such question arose for the consideration of the jury; and that this single act of kindness was no breach of the ■condition.” Ho rule of law is to be drawn from this case. It is simply the shipwreck of principle upon the generous impulses of the court. It was a case of hardship on the plaintiff, who had suffered for his kindness, and seems to be so regarded in England. 46 Eng. C. L. 19, note. It will also be observed that there was no provision in the conditions of the policy relating to an alteration of the trade; but it was clear that the risk of fire had been increased, for it was so found by the jury; and one of the conditions of the policy distinctly provided for increased risk by fire.

It seems to be settled that where the condition of a policy renders it void, if the building is appropriated or used for any *trade or for storing any articles denominated hazardous or extra-hazardous, the temporary use, or the carrying on temporarily, ef any of the trades so denominated, for the purpose of ordinary repair, or the articles so denominated are introduced into the building to be used in ordinary repairs, or to be consumed in domestic use, the insurers are, notwithstanding, liable. O’Neil v. Buffalo Ins. Co., 3 Comst. 122.

So, the carrying on the trade and business of soap manufacturing, although extra-hazardous, yet the making of soap by a family, from spoiled meat, on one or more occasions, would not come within •a condition forbidding such a business or trade. Gates v. Mad. Co. Mut. Ins. Co., 1 Seld. 479.

Courts, in speaking of the trades forbidden by the condition, and to distinguish them from repairs, etc., have said of the one, that it was temporary, and of the others, that they were habitual or permanent. But if, from this language, it is to be supposed when a building is actually appropriated to a trade forbidden by the condition, that it must be so long carried on that it becomes habitual or permanent, would be grounding a principle upon mere words. For instance, if the insured opens a drug store in one of the rooms cst the insured, building (it being a forbidden trade), must the trade become habitual or permanent before the condition is broken? Surely not. So, if the insured take the steps necessary to carry on the forbidden trade; does sufficient to show that he intends to manufacture for and sell to the public; begins to manufacture upon the premises, so that the risk actually commences, he can not excuse himself from the consequences of his own deliberate act, by showing that he carried on the trade but a short time, or that sufficient time had not elapsed for the trade to become permanent. If the insured, at the request of a neighbor, or for his own household, make an article which the forbidden trade usually manufactures, this would not forfeit his policy. It is not what the condition of the policy intended to cover. But if, as in the case now before the court, the insured manufactures *the articles of the forbidden trade for the public, and for gain, to the extent which the market demands, the question of habit or permanence does not arise, and he at once forfeits his policy, according to the condition and by-laws annexed thereto.

Bill dismissed.

Ranney, J., being a member of the insurance company, did not participate in the hearing or decision of this cause.


author: Ranney, J.

text:
    Elizabeth Dorah’s Administrator v. Joseph Dorah’s Executor.
    The death of a widow, to whom an allowance has been made under sections 45 and 46 of the administration law, before the expiration of the year, and before it has all been expended in her support, does not bar the right of her executor to recover the amount unpaid, from the executor of her husband.
    Such allowance confers a vested right of property, and is not divested by her death, or by any other contingency, occurring after the amount has been fixed and allowed by the proper tribunal.
    Whether, upon petition for such cause, the amount might be diminished by the probate court, under section 48 — qucere ?
    Case reserved in Muskingum county.
    The amended declaration counted on an indebtedness in the lifetime of the plaintiff’s intestate, from the defendant as executor, in the sum of two hundred dollars, “ for money then and there, by the appraisers of the estate of the said Joseph Dorah, deceased, certified" to be necessary for her, the said Elizabeth Dorah’s, twelve months’ support, from the death of the said Joseph Dorah, deceased, she being his widow,” etc.
    The defendant interposed the following special plea:
    “And the said defendant comes and defends the wrong and ^injury, when, etc., and says that the plaintiff ought not to maintain his action against him as to the said sum of $200, first mentioned in the plaintiff’s declaration; because, he says, that although the appraisers of the estate and property of Joseph Dorah, deceased, did, on the 15th day of March, 1852, at the county aforesaid, set off to, and allow, said Elizabeth Dorah the sum of $42.87, in certain articles of personal property, and did certify that the further sum of $157.13 was necessary for the support of the said-Elizabeth Dorah for twelve months after the death of her said husband, Joseph Dorah, who died on the 1st of March, 1852 ; yet the said Elizabeth Dorah died on the 24th day of March, 1852, without reducing the same to possession, or any part thereof, and without taking any steps therefor, except as to said sum of $42.87, in property, and the sum of $15.50 paid said Elizabeth by this defendant. And the said defendant avers that said sums of $42.87 and $15.50, making $58.37, were sufficient to support said Elizabeth Dorah during the time she lived after the death of her said husband, Joseph Dorah; and this the defendant is ready to verify. Wherefore he prays judgment if the jfiaintiff ought to maintain his action against him, etc.
    “ And for further plea in this behalf, after leave of the court first had and obtained, the said defendant says, that as to said sum of $200, first mentioned in plaintiff’s declaration, the said plaintiff ought not to maintain his action against him ; because, he says, that although the appraisers of the estate and property of said Joseph Dorah, deceased, did on the 15th day of March, 1852, in accordance with the statute in that case made and provided, set. off and allow to the said Elizabeth Dorah, the sum of $42.87, in certain articles of personal property, and did certify that the further sum of $157.13 was necessary to support the said Elizabeth Dorah for twelve months after the death of her said husband, Joseph Dorah, on the 24th day of March, 1852; yet the said Eliza■beth Dorah died on the 24th day of March, 1852, without having reduced the said allowance so made by the appraisers *aforesaid, for her first year’s support ás aforesaid, to possession, or any part thereof, and without taking steps therefor, or demanding the .-same, or any part thereof, except the sum of $42.87, in property, and the further sum of $15.50 paid by this defendant to the said Elizabeth Dorah. And the defendant avers that said sums of $42.87 and $15.50, making together the sum of $58.37, were sufficient to support the said Elizabeth all the time she lived after the death of her said husband, Joseph Dorah, and to pay the funeral expenses, and expenses of the last sickness of the said Elizabeth Dorah; and this the defendant is ready to verify. Whereupon he prays judgment if the defendant ought to maintain his action ■ against him,’.’ etc.
    To this plea the plaintiff demurred.

      S. Chapman, for plaintiff.

      F. A. tSeborn, defendant, in person.
   Ranney, J.

Whether the special plea, interposed as a bar to •this action, is sufficient, must depend upon the construction of several sections of the administration law. By section 45, it is made the duty of the appraisers to set off, from the property of the decedent, provisions or other property sufficient to support the widow, -and children under fifteen years of age, if any, for the period of one year. If there is not sufficient personal property, or property of a suitable kind, they are required by section 46, to certify .what sum, or what further sum, in money is necessary for the support of such widow and children for that time; and in either case, the property or money, thus sot off and allowed, is to be returned •in a separate schedule, and not included in the general inventory. The court to which it is returned, is authorized, upon the petition -of the widow, or other person interested, to review the allowance, and increase or diminish -the same, and make such order as it shall deem right and proper. By section 83, the executor or administrator is required to *pay the sum thus certified, or ultimately fixed by the court, next after paying the funeral expenses, those of the last sickness, and the expenses of administration, and before anything is applied to the payment of other claims. In this case, no application was made to the probate court to increase or diminish the allowance; and, consequently,, the action of the appraisers was final. But it is averred in the plea, and admitted by the demurrer, that enough of the allowance was paid to support the widow until her death ; and the question now arises, whether the balance may be recovered by her personal representative.

After a careful examination of the subject, we are of opinion that it may be; or, at least, that the plea is no bar to the present action. A different construction would often lead to serious difficulties, and, as it seems to us, would be interpolating into the statute a contingency never contemplated by the legislature. In cases where sufficient personal property, of a suitable kind, exists, from which the allowance is taken, it is undeniably clear, that it goes immediately into the hands of the widow, and is disposed of at her pleasure, and as her absolute property. In fixing the amount, in all eases, the children dependent upon her for support, are taken into the account; so that the death of a child might raise the same question as the death of the widow. We can see no reason to suppose, that it was ever intended to allow a recovery back of any part of the amount, upon the happening of such a contingency; and quite as little, that it was intended, where the property of the estate does not admit of the appropriation of specific articles, to place the widow in a worse situation, by making such an unequal and unjust discrimination. To allow such a deduction, either by giving an action to the administrator to recover it back where it has been paid, or by permitting, him to withhold it where it has not, is to introduce the most perplexing uncertainty as to the rights of the widow and the duties of the administrator, and to withdraw the whole matter from the appropriate tribunal, to the assessment and discretion of a jury.

*With the construction we adopt, the rights and duties of all concerned are clear, definite, and fixed. It gives to the widow and children a paramount claim upon enough of the estate to support them for one year, over creditors and distributees; and where it has been- fixed or set apart by the appraisers, or by the court on review, effectually withdraws it from the balance of the estate, and has all the force and effect of an adjudication in their favor. It confers a vested right of property, conclusively disposes of so much of the estate, and leaves no discretion to the administrator as to complying with it, and no responsibility upon him, to creditors or distributees, for thus complying. In the language of the statute, it is “setoff” from the estate, and “allowed” to the widow and children. The case of Adams v. Adams, 10 Met. 170, cited by defendant’s counsel, is in no way decisive of this. By the statute of Massachusetts, the probate court makes the allowance in the first instance, subject to an appeal from his decision. In that case an appeal had been taken, which vacated the order of the probate-court, and before the hearing in the appellate court, the widow died. There was, consequently, no amount allowed at her death, and the-court hold that they could not go on and make the allowance at the instance of her executor, and that no vested right existed until the amount was fixed. This may all be very correct, and still have no-bearing upon a case where the personal representative of the widow is not proceeding to obtain an order fixing the amount, but to recover the amount fixed and allowed in her lifetime. We have not found it necessary to consider, whether the probate court might,, upon a petition filed under section 48, take into consideration such circumstances, transpiring after the action of the appraisers, as-tended to show that the amount ought to be increased or diminished ; or whether the court should be confined- to the consideration only of the correctness of the decision made by them, and we therefore express no opinion upon that subject.

The demurrer must be sustained.


text:
    *John Roseberry v. John Hollister.
    Where the state authorizes an agent to sell at public auction her public land, and to issue a certificate to the purchaser at such sale, and such agent is also authorized, after the time of sale by public auction, to sell at private sale any of the unsold lands, and the agent does sell at the public auction a lot of said land to A, who pays for the same and obtains a proper certificate, and the agent afterward sells the same lot at private sale to another person, the second sale is void.
    In such case, if the governor make a deed to the last purchaser, and afterward, under a subsequent law, makes a deed to the first purchaser, the last deed will hold the land, although the last purchaser had no notice of the first purchaser’s equity.

      In Chancery. Beserved from Wood county.
    The case is stated in the opinion of the court.

      James Murray, for complainant,
    cited the acts referred to in the opinion of the court, and made the following points :
    X Where a public officer is required by law to do an act in the performance of his official duties, as between third persons, that act is presumed to be done, unless the contrary is shown. Adams v. Jackson, 2 Atk. 145 ; The People v. The Auditor, 2 Scam. 567; Vaugher v. Biggers, 4 Geo. 188; Shelden v. Wright, 7 Barb. 30.
    II. The law required a correct list of the lands sold to be semiannually returned to the office of the auditor of state, and filed therein. The bill avers this to have been done in this case. The law also required a correct list to be kept by the superintendent in his office. The legal presumption is, that this also was done.
    III. The defendant, when he made his' purchase, was bound to inquire whether the land had been sold at public sale; if so, he of course could not purchase by private entry. If he *had made proper examination in the office of the superintendent, and in that of the auditor of state, he would have ascertained that the father of the complainant had purchased and paid for this land. If he neglected to comply with this requirement, he can not complain if he suffer by his want of diligence.
    IY. The special provisions of the statute are somewhat similar to those governing the sales in the Yirginia military land district. Here each person is prohibited by the law from the entry of land that had been previously located. That he must examine the register of entries for the purpose of determining that question, appears from Brush v. Ware, 15 Pet. 111; McArthur v. Thomas, 2 Ohio, 418; Nisewanger v. Wallace, 16 Ohio, 559.
    Y. The government can only act'by its agents. The agent can only act as to the subject and in the mode provided by law. In these sales, the agent of the state, when he had sold this land to the ancestor of the complainant, received the money, and given the purchaser a certificate of purchase, had exhausted his powers; his duty was done, his authority at an end. Any attempt thereafter to sell the same land, or exercise any authority over it, was unauthorized by law, and void for want of power in the agent. The doctrine of caveat emptor applies, in its fullest extent, to a purchaser from him.

      YI. If the title of the complainant is lost, it is not from his own fault or laches, or that of his ancestor. If the title is lost, it is from the default of the state, not in failing to give us title, for that we had, but in failing to execute the evidence of that title. The man who, in a purchase from another, loses his right to property, loses it either because the title never vested in him, or, having vested, it is lost by his own default.

      M. R. Waite, for defendants, made the following points':
    I. There is no such principle of law as that what is matter of record shall be constructive notice to the purchaser. Dexter v. Harris, 2 Mason, 536. *It is the statute that gives to the record of deeds, in the office of the recorder of a county, the effect •of notice to subsequent purchasers, not the record itself.
    II. No such statutory provision exists in relation to the reports of the superintendents, on file with the auditor of state. They are not even open to the examination of the public.
    III. The bill does not aver that any plat or note of this sale was kept by the superintendent in his office. Nothingwill be presumed .to exist which is not averred in the pleadings-, or at least which is not legitimately to be inferred from the averments.
    IY. But suppose there was such a record. The principle applicable to the record and files in the auditor’s office, is equally applicable here. The law does not declare such record shall be notice to subsequent purchasers. The list and the record are kept, not for the information of purchasers, but for the agents of the state. Even this is not open to the inspection of those wishing to purchase. The superintendent may permit it to be examined, but he is not compelled by law to do so.
    Y. The decisions as to the effect of the location of Yirginia military land warrants, do not furnish a rule for the determination in this case. (1.) There the locator is required to record his entry or location. Swan’s Land Laws, 121. That statute also gives authority to parties making application for entries, to demand of the surveyor a “ view of the original or prior entry in his book, and also a certified copy of the same.” This book of the surveyor is, therefore, a public record, and one which any one interested may inspect. (2.) There is another distinction. Here a valuable consideration is paid. There the grant is in the nature of a gratuity — ■ it is a bounty. There the question arises between two donees; here between two purchasers. (3.) In the Yirginia military lands,, the entry is the act of the locator himself. He holds the warrant, and, by virtue of it, makes the location. Here the state sells; her agent puts the property into market, and offers it for sale. There the locator makes his own selection, *and he must himself’ see that his lands have not been before entered. He acts at his-peril. Here the state selects its lands for sale, and offers them fry the public. The purchaser acts upon this offer. He must see that the original title of the state is good, but he need not inquire for-her acts since acquiring title. The duties of the purchaser are, in this respect, not at all different from what they would be if he were dealing with an individual.
    YI. Again, it is said the second sale was void for want of power in the superintendent to make it, ho being only authorized to dispose, at private sale, of such lands as had not been disposed of at public sale. The superintendent was invested with full power to sell these lands. He was the proper person to apply to for the purchase. He sold, and upon his sale the governor conveyed. He has, in this case, assumed to sell this lot to Hollister. The purchase money has gone into the treasury of the state, and for that, consideration the governor has executed the necessary grant, which passes the legal title.
    The claim is, that as the act of the superintendent was unauthorized, it was void. If that is the case, it is wholly inoperative. It. was no sale, and the deed executed by the governor was equally unauthorized and void. If void, it passed no title. It did not divest the state of the legal title, and the subsequent conveyance to Roseberry, made pei’fect his equitable into a legal title. Such, however, is not the operation of the conveyances. The courts have always held, that the legal title passes to the first grant, and that the cider purchaser, if he have the better equity, must obtain the legal title from the first patentee.
    YTI. It is said that Ebenezer Roseberry, at the time he obtained his certificate of purchase, acquired a title which he has not lost by any act of his own, and he ought not therefore to be deprived of his rights. It is averred in the bill, that at the time of his purchase, the superintendent executed to him the certificate required by the law. Section 7 of the act of 1824, provides, that upon the presentation of such certificate to the governor, he shall *execute to the purchaser a deed. It was the duty, then, of Roseberry,. to perfect his title by the deed, and have the same recorded in the-county where the lands were situated. This would give notice to ■ others of his claim. He has neglected this duty, and by reason of this neglect, another has been induced to purchase. His loss is, then, directly the consequence of his own laches. Had he been diligent, he could have saved his rights. Hollister did not purchase until nearly two years and a half after he did. The title never vested in Roseberry, and he has lost his right to the title by his own fault.
   Kennon, J.

The bill in this case states that on the 7th of June,. 1825, Ebenezer Roseberry purchased, at the public sale of the Maumee and Western Reserve road lands, out-lot No. 220, in the town of Perrysburg; that he paid for the same the sum of $29.75 in cash, at the date of the sale, and obtained from the superintendent a certificate of his purchase; that said sale was, in all respects, conducted according to the provisions of the act to provide for the construction of a road from the Maumee of Lake Erie to the Western Reserve, passed February 25, 1824, and the act amendatory thereto, passed February 7, 1825 ; that Quintus F.- Atkins, the superintendent of the road, made due report of said sale, which was ■ in due time deposited with the auditor of state, where it has remained ; that Ebenezer Roseberry died in 1826, without having received a deed for the lot from the State of Ohio; that on the 29th of January, 1833, the legislature of the state passed an act directing the governor to execute to the heirs of Roseberry a deed for' said lot; that in pursuance of such direction the governor, on the-26th of February, 1833, did execute such deed; that complainant has acquired the title from the other heirs; that on the 10th of January, 1828, John Hollister purchased the same lot from, the state, and obtained a deed from the governor for the same, which he now holds. The bill prays that the defendants may be compelled to convey the legal *title to the lot, which, it is claimed, they hold in trust only for complainant.

To this bill John Hollister pleads that, on the 2d of November, 1827, he purchased from the State of Ohio said lot, for $47.50, by applying that amount in part payment of the amount due to him from the state upon a contract, made on the 22d of June, 1825, with the superintendent of the road, for the construction of a part of said road; that in pursuance of said purchase the lot was, on. the 10th of January, 1828, conveyed to him by the governor; and that, when Hollister made the purchase, paid the purchase money, and received the conveyance, he had no notice of the purchase by said Roseberry, nor of any claim in favor of said Roseberry or his representatives.

The cause came on for hearing on the bill and plea, and the only •question therefore presented for the consideration of this court, is the sufficiency of this plea.

The cause is to be considered as if it had been set down for hearing on the plea, and the plea viewed as though it had been demurred to for insufficiency in an action at law.

This plea is therefore to be taken as true, and that the defendant was a bona fide purchaser, without notice in fact of the complainant’s claim; and the first question therefore to be considered is, whether he had constructive notice, or such notice as the law will ■conclusively impute to him.

A man may be a bona fide purchaser from A, without any notice •in fact that B had purchased the same land from A, and had his deed regularly placed upon record; still, as between B and the subsequent bona fide pur chaser, without notice in fact of the previous ■purchase, the law would not permit the second purchaser to prevail because he had no notice. He would be presumed to have had .notice, and such presumption would be conclusive.

Can any such presumption of law be raised in this case, notwithstanding the plea of a bona fide purchaser without notice?

*It is alleged that the land-belongs to the state, by grant of Congress, for the purpose of constructing a road from the Maumee -of Lake Erie to the line of the Connecticut Western Reserve; that it was made the duty (by an act of the legislature of Ohio) of the superintendent to sell these lands at public sale, and semi-annually to make return to the auditor of state a correct statement of the land sold, to whom, and at what price; that the superintendent did, in ■compliance with such duty, make such return immediately after the sale to complainant, and the same still remains to be seen on file in the auditor’s office; and this is claimed, in law, as a conclusive .presumption of notice to the defendant, who subsequently purchased. It is also alleged, by way of argument, but not so stated in the bill, that by the first section of an act amendatory to the act of 1824, passed in 1825, it was made the duty of the superintendent to keep correct plat of all the lands, etc., with a note of those etc., in his office; and it is insisted that, as the presumption of law always is that an officer has done his duty, that it is to be presumed that such plat and note of sales were left in the office of the superintendent, and therefore that this plat and note were also notice to the defendant of complainant’s equity.

As to this last claim of notice, it is enough to say, that although the law would presume that the officer did his duty in this respect, and did keep such plat and note, yet he may not have done so; and in such case the defendant might well say he had no notice; and the question of notice or no notice in such case would be a question of fact, which could only be tried on an issue taken on the plea, and not on demurrer to the plea, which admits he had no notice, unless the law would conclusively presume such notice.

But it is expressly averred in the bill, and not denied by the plea, that the superintendent did make return to the auditor of state of the sale of this lot, to whom sold, and for how much. That return was on file in the auditor’s office at the time of the purchase by the defendant, and if he had seen such return, he *would not be a bona fide purchaser without notice. The plea shows that he did-not see the return or know of the same.

The question is therefore properly raised, whether the law makes this return of the superintendent notice, and conclusive notice, to-all subsequent purchasers.

By section 8 of our registry act (Swan’s old Stat. 267), all-deeds are required to be recorded within six months from the date-thereof; and if such deeds shall not be recorded within that time,, the same shall be deemed fraudulent as against subsequent purchasers, having no knowledge of the existence of such former deed: provided that such deed (or other instrument of writing for the incumbrance of land) may be recorded after the expiration of the six months from the date of such deed, and from the date of such-record shall be notice to any subsequent purchaser.

Under this section of the statute, all deeds recorded within six months from date are conclusive notice to subsequent purchasers; and so, also, if not recorded within that time, are conclusive notice,, from the date of the record, to all subsequent purchasers. In this case, the first deed made by the governor was to the defendants, so-that, if the legal title passed at all by that deed, it was vested in the defendant long before any deed had been made to complainants;, and the question arises, whether, by the act requiring the superintendent to make a return of Ms sales to tbe auditor of state, tbe defendant bad notice of tbe complainant’s prior equity. If it became necessary for tbe court to decide this question, we would be inclined to the opinion that this provision of the act was not intended to give notice to subsequent purchasers, but simply to enable the state to know how much money the superintendent had received, and from whom, and how much was still due the state, and to operate as a check on the superintendent himself, and not as a notice to subsequent purchasers. Upon this point, however, we give no opinion, but pass to the only other point in the case, namely, whether any title passed by the deed *under the second sale to the defendant. By the second section of the act above referred to'; the superintendent, appointed as by that act provided, is authorized to sell, after giving public notice in some newspaper, at public sale, the land*» donated by Congress to the state; such sale to be held at Low or Sandusky, and to be continued from day to day, from the ¡second Monday of May, 1824, until the second Monday of June next foil wing, or until any quantity of land not exceeding thirty thous- and acres should have been sold: provided that no part of said land 'Should be sold for less than one dollar and fifty cents per acre. By the 5th section it is provided, that after the second Monday of June, if the whole of said road shall not be contracted for, or if thirty tk< usand acres of said land shall not have been sold, the superinteu dent shall have power to enter into private contracts for such parts of said road as shall have remained uncontracted for, and may also sell, at private sale, as much of said land as, together with what shall have been theretofore sold, shall amount to thirty thousand .acres.

After the first public sales had been made, and after the time had arrived at which the superintendent was authorized to make private sales of these lands, the legislature, on the 7th of February, 1825, passed an act to amend the first-named act, by which the superintendent was required to cause the lands belonging to the State of Ohio, in the reservation at the foot of the rapids of the San-dusky river, adjoining to the road on each side thereof, to be surveyed into small lots, streets and alleys, of such number, size, form and width as he might deem most beneficial to the interests of the state; and also to cause to be made such surveys, as he might think necessary, of the lands belonging to the State of Ohio, in the reservation at the foot of the rapids of the Maumee of Lake Erie, and to canse a plat to be made of all the lands so surveyed belonging to the state ; one copy of which he was to transmit to the secretary of state, and retain another in his office, in which he was to note all sales by him made.

*By section 3 of this amendatory act, the superintendent was to sell at public auction to the highest bidder, on the first Monday of June, 1825, and for five days thereafter, at Lower ■Sandusky, all lands belonging to the State of Ohio, in the reservation at the rapids of the Sandusky and Maumee rivers, agreeably to the plat and surveys directed to bo made by this act, and the act to which this is an amendment; but no part of the land in these reservations was to be sold for less than seven dollars per acre.

Under this last act, and within the six days prescribed by the same, the ancestor of the complainant purchased and paid for this lot to the state. After the expiration of these six days, in which these lands were authorized to be sold at public sale, the superintendent might, possibly, sell any of the unsold lots at private sale, under the act of 1824. However that may be, it is very clear that the state never intended to authorize the superintendent to sell, •either at public or private sale, any of those lands which he had before sold and for which the state had received the full payment, and for which the superintendent had given to the purchaser a certificate announcing such payment.

The sale in this case was made to the defendant (probably at private sale) after the state had parted with all her equitable interest in the lot, and was made by the superintendent professing to act as agent of the state, authorized as such by a law of the state. The defendant contracted with this agent of the state, knowing that the agent was not authorized to make a sale of any lot which had previously been sold to any other person. The defendant did not, as averred by his plea, know that this lot had been sold to the .ancestor of complainant; but he did know that, if such sale had been made, the power of the agent of the state had thereby been exhausted. The authority of the state’s agent depended on the fact of whether he had made a previous sale of this lot. If he had not, then he could sell to the defendant; if he had, then he was not .authorized to sell. The superintendent ^having, according to the authority conferred on him by the state, offered at public auction, and sold, this very lot, he had no authority from the state to afterward sell the same lot, at private or public sale, to any body; and, therefore, the second sale was wholly unauthorized by law, without any authority as the agent from the principal to make the sale.

The law of caveat emptor, in such cases, applies with all its force to the purchaser. He buys at his peril. If the land had not been previously sold, he acquires title; if it had, he gets no title.

The state, in this case, so far from doing any act which would ratify the act of the agent, repudiates his authority, and authorizes' the governor to convey to the heirs of the first purchaser.

The state can act only by its agents, duly authorized by law; and where such agents, being (as in this case) mere ministerial officers, transcend their authority, their acts are void, or at least voidable by the state.

In the case of Stoddard et al. v. Chambers; 2 How. U. S. 284, where two patents had been issued by the United States for the same land, and the first in date be against law, it was held that it does not carry the legal title: that the-issuing of a patent is a mere ministerial act, and if it be issued for land reserved from sale by law, it is void.

If this lot in controversy had been reserved from sale, and a sale made by the superintendent, and a patent had been issued by the governor of Ohio for the same, the patent would have been void; and we see no good reason why, in this case, the patent issued for land not reserved from sale by the state, but actually sold by the state, should not likewise be void.

The plea in this case is overruled.