text:
    William Dixon v. The City of Cincinnati.
    Proceedings of the city council of Cincinnati in opening streets, and in assessing damages and special taxes, can not he reviewed on certiorari.
    A certiorari will not he sustained to reverse a judgment of the mayor of Cincinnati, which is absolutely null and void. ,
    This case comes before the court on a writ of certiorari to the mayor of Cincinnati, for the purpose of reversing a judgment of said mayor, in an action of debt, rendered against said Dixon.
    The transcript, returned in obedience to the writ, contains a history of the proceedings of the city council of Cincinnati, ^relative to the opening of a street in said city, called 'Commerce street, commencing June 5, 1839, and ending July 13,1842, which is certified by the city clerk. From this, it appears that the street was opened, the damages assessed, and a special tax assessed upon the proprietors owning lots adjoining the streets, according to the benefit conferred upon them by opening the same. The plaintiff Dixon was .taxed to the amount of $880. A copy of the assessment was delivered to the city collector.

      On November 28, 1842, the mayor of the city made the following entry on his docket:
    “ City or Cincinnati v. Wm. P. Dixon.
    “Action of debt for $880, special tax for opening Commerce street, from Yine to Race street, assessed June 24, 1842.
    “It having been made to appear to me, Samuel W. Davis, mayor of said city, that a lawful demand has been made of William P. Dixon, the defendant, and payment refused, judgment is therefore rendered against defendant, Wm. P. Dixon, for the sum of $880, and interest and costs. Debt $880; costs 75 cents.”
    This is certified by the mayor to be a true copy from his docket.
    On the same 28th day of November, a warrant, of which the following is a copy, was issued by the mayor:
    “ State or Ohio, j
    City or Cincinnati, j
    “ To James Saffin, Esq., marshal of said city, greeting:
    Whereas, on June 24, 1842, a special tax, amounting to $880, on that lot or parcel of land lying and being in the city of Cincinnati, on the north side of Commerce street, between Race street and Gilmore’s alley, being part of in-lot No. 228 of the original lots, fronting ninety-five feet, more or less, on Commerce street, and extending back northwardly of that width about ninety feet, to the north line of *said lot No. 228, bounded on the west by a public school lot, and on the east by Gilmore’s alley, which tax was assessed to defray tho expense of opening Commerce street, between Yine and Race-streets.
    “And whereas, in pursuance of the ordinance of said city, in such case made and provided, a lawful demand has been made of Wm. P. Dixon, the owner of said lot, for payment of said tax, by Joseph Alexander, appointed by the city council for that purpose, which payment the said Wm. P. Dixon has failed to make. You are therefore commanded to seize the lot or parcel of land described as above, as the property of the said William P. Dixon, and to sell the same by public auction, or so much thereof as will pay the said tax, interest, and cost, due thereon, and of this writ make legal service and due return according to law.
    “ Given under my hand, and seal of said city, this day, Novem- - ber 28, 1842.
    “Samuel W. Davis, Mayor."

      Upon this transcript the following errors are assigned :
    1. That the city council of Cincinnati have no lawful power to lay out and establish Commerce street in manner and form as set forth in the transcript.
    2. That the city council of Cincinnati have no power to open or extend any street or alley within the city, until they have first determined that the public good and convenience of the citizens of said city requires the same to be done; and, from the said record, it does not appear that any such determination was had.
    3. It does not appear, from the said record and proceedings, that the damages and benefits resulting from the opening of the said street therein named, have been legally ascertained.
    4. The said review, in the said proceedings set forth, is illegal.
    5. The said mayor is not by law authorized to enter said judgment against the said ffm. P. Dixon.
    6. Said judgment could not be rendered until after service of process upon Dixon, or until he had a day in court.
    7. There is no law authorizing the said sale by the marshal, in pursuance of said warrant to him directed, nor to pass the titlo to the said premises.
    *8. The said proceedings do 'not warrant and are not sufficient to maintain at law the said action.
    9. Said judgment should have been for the said Dixon, and not for the city of Cincinnati.
    Y. Worthington, for the plaintiff, submitted an elaborate argument, contesting the right of the city council to impose the tax, or assess the damages complained of, the legality of their proceedings in assessing the same, the right of the mayor to render judgment for the amount of the damages assessed, to issue his warrant upon such judgment, and the power of the marshal to execute such warrant; but, as the case was decided upon other grounds, the argument is omitted.
    Samuel M. Hart, for the defehdant,
    also submitted an extended argument, of which so much is published as bears upon the point decided by the court:
    At the outset, I insist that the writ must be quashed, irrespective of merits, on the ground of public inconvenience. To grant a certiorari for the purpose of reviewing the acts of special jurisdictions, created by statute, which do not proceed according to the course of common law, is not ex debito justifies, but rests altogether in the discretion of the court. It is therefore that judges have distinguished certain cases where they will deny the writ without regard to the regularity of the proceedings sought to be reversed. That the present is one of those cases, I think myself able to demonstrate.
    This writ can not be used to review an assessment of taxes or rates, whether made for the support of the government or to equalize the burdens of a public improvement. Thus in Rex v. Inhabitants of Utoxeter, 2 Stra. 932, we are told that “ upon great debate and search of precedents, it was held that a oertiorari would not lie to remove the poor rate itself, the remedy being to appeal, or by action when a distress is taken, which will answer all the ends of justice in coming at an unequal *rate; whereas, if the rate itself should be required to be sent up, great inconveniences and delays would follow, and a case was cited, Mich. T., (Ann. Regina, v. Inhabitants de St. Mary the Virgin, in Marlborough), where it was so resolved.” And in Rex v. The Justices of Shrewsbury, 2 Stra. 975, the reporter says: “ Upon appeal to the sessions, the poor rate was quashed, and the sessions made a new one; to remove which I moved for a certiorari, because here we could have no appeal, which was one reason given in the case of Utoxeter. But the court said that was not the only reason they went upon and denied the certiorari.” See also 2 No-land’s Poor Laws, 338: “ The poor rate can not be removed by certiorari, as it would prevent the collection of the rate, and the poor must remain unprovided for while the case is depending in the superior court.” In the King v. King, 2 Term, 234, a certiorari having been obtained to remove the assessment of land-tax in the tower division of the city of London, for the year 1787, it was quashed by the court of king’s bench, on the ground of public inconvenience. The point was very fully considered in the People v. Supervisors of Allegheny, 15 Wend. 198, where a certiorari had issued to remove the assessment of county, taxes. Mr. Justice Bronson, having reviewed the authorities, said, “that the court will not interfere in a case like the present, has, I think, for a long time been regarded as the settled law.” This doctrine was affirmed in the People v. Supervisors of Queens, 1 Hill, 195, on a motion for certiorari, to relieve the inhabitants of New Hemp-stead from an unequal tax. We have now seen that this writ will not lie to review ordinary assessments for the support of the gov-eminent, and also that it-will not lie to remove the rates which are made to support the poor, mend bridges, construct sewers, and drain fens. The last three are certainly eases of assessment to defray the expense of public improvements, and the principle of those cases ought to be decisive here. But other courts have already applied that principle to instances like the present. In the People v. Mayor of New York, 2 Hill, 12, where the common ^council had made a sower and assessed special taxes to meet the cost of it, the Supreme Court, for this reason, quashed a certiorari which had been granted to review those proceedings. So in the case of Chaple street (page 14), where the writ had issued to bring up the assessment of special taxes 'for grading and paving. So in the matter of Mount Morris Square (page 28), on motion for a certiorari to revise the assessment of damages and benefits which accrued by the laying out of that square, after full consideration of the authorities, the writ was denied. “ In general,” said Mr. Justice Oowen, speaking for the court, “ we ought not to allow the writ where assessments of taxes or awards of damages are in question which affect any considerable number of persons. If there bo a want of jurisdiction oven in the judicial act sought to be reviewed, or, in other words, if there be an excess of legal power, by which any person’s rights may be injuriously affected, an action lies; and it is much better that he should be put to this remedy than that the whole proceeding should be arrested and perhaps finally reversed for such a cause. The assessments and tax rates of the government, both general and local, are all imposed and framed by the officers of municipal corporations or quasi corporations, some portion of whose duties may be considered judicial, and therefore technically the subjects of a writ of certiorari; and the evil would be intolerable if these were to be deemed as a matter of course, liable to arrest and general reversal; because, in respect to a-single person, or any number of persons, the'Officers may have overstepped the precise line of their jurisdiction.” The point does not seem ever to have been presented in this light to the supreme court of Massachusetts. But, in Rutland v. Commissioners of Worcester, 20 Pick. 30, they declared that a certiorari ought not to issue, even though the record be informal or defective, “where substantial justice has been done, or where, if the proceedings are quashed, ruinous or very mischievous consequences would ensue, and where, upon reversal of proceedings, parties can not be placed in statu quo.” Perhaps this objection might be urged *with' better grace when the writ is applied for; but, in the present instance, no opportunity was given, as the application was, ex parte, to a single judge in vacation. It is not, however, too late; for, in many of the cases referred to, although a certiorari had been granted, the court nevertheless entertained the objection. And, in the New York authorities cited, it was repeatedly decided that, if the writ be awarded in such a case as the present, it will be dismissed for this reason alone, after a return and a hearing upon the merits. To that effect also was the language of Lord Mansfield, in Rex v. Wakefield, 1 Burr. 488. “We are all of opinion that the rule for the certiorari, having, been made absolute, and the return thereto having been filed, ought not now to stand-in the way, and prevent our coming at the real justice and merits of the case. For, if the certiorari issued, improvide, we can order it to be. superseded, and the return to be taken off the file.”
    Of the cases cited by Mr. Worthington, to show that he has here adopted the proper remedy, the following classification may be made:
    Van Steenbergh v. Bigelow, 3 Wend. 43, was an action of trespass by the owner of land against the officer who took possession of it for a turnpike. No question about assessment was made, and the court merely said that the regularity of the proceedings might be examined on certiorari.

    Ex parte Fay, 15 Pick. 243, 254, and Parks v. The Mayor of Boston, 8 Pick. 225, were not cases where any matter of assessment was involved. The former was in reference to a ferry license;, the latter, like Yan Steenbergh v. Bigelow, merely concerned the regularity of proceedings where land was condemned for a> street.
    Ex parte the Mayor of Albany, 23 Wend. 277, is against the position of Mr. Worthington. After stating several cases where the court would withhold a certiorari, Cowen J., said: “ So to remove and suspend proceedings on a general assessment, to the amount of thousands of dollars, because A. B. ought or ought not to be assessed, would sometimes work a *great evil. There the writ had better be refused and the party be put to his action.”
    Leroy v. The Mayor of New York, 20 Johns. 430; Lawton v. The Commissioners of Cambridge, 2 Cain, 182; Bouton v. The President of Brooklyn, 2 Wend. 195, and Storm, v. Odell, 2 Wend. 287, were cases where the question was not discussed nor oven noticed. Their authority, moreover, is denied in The People v. The Supervisors of Alleghany, 15 Wend. 209.
    Rex v. Dukes, 8 Term, 542, was a case of summary conviction for misdemeanor by a magistrate, nor is this point over so remotely alluded to.
    Birdsall v. Phillips, 17 Wend. 464, and Prindle v. Anderson, 19 Wend. 342, 391, were not cases of assessment; they arose under the New York statute relative to landlords and tenants.
    Patchin v. The Mayor of Brooklyn, 13 Wend. 664, only decides that, on certiorari, the question as to jurisdiction will be examined. Tho subject of, assessment was not decided, nor argued.
    The Matter of Divingston Street, 18 Wend; 556, was a motion to confirm the commissioners’ report, and the only part of the decision appropriate to this case is a grave doubt expressed by tho court whether certiorari would lie.
    That doubt, however, seems to have passed from the minds of the judges; for, in The People v. The Mayor of New York, 2 Hill, 11, the next case cited by Mr. Worthington, they expressly decided that the writ would not lie, which decision they affirmed in the last case cited — The Matter of Mount Morris Square, 2 Hill, 20-23.
    There is, therefore, nothing to prevent the court from a vindication of the law in this case, by dismissing the suit which has so long suspended the action of the city in a matter of great public concern. If we take the rule of the Massachusetts court, the certiorari must be quashed, because, as Commerce street has already been opened, graded, and paved, very mischievous *consequencés will follow a reversal of these proceedings, and the parties can not be put in statu quo. Or, if we take the more definite rule of the New York court, tho writ must also be quashed, as an attempt to review the assessment of public burdens. Nor has that learned tribunal overrated, in the least, the inconvenience of suits like this, whereby a municipal corporation is for years deprived of its revenue from taxation, and obliged to make good the damages, without being allowed to reimburse itself by collection of the benefits assigned.
   Hitchcock, J.

It will be seen, from the statement of the case and the errors assigned, that the four first errors question the propriety of the action of the city council of Cincinnati, in laying out and opening a street in that city; also, in assessing the damages sustained, and in assessing a special tax to make compensation for those damages. These proceedings, although they may have led to the subsequent action of the mayor, do not constitute any part of the transcript sent up by him, in obedience to the writ of certiorari. They are not certified by him, but by the city clerk, We have before us, in fact,-two transcripts from two different tribunals, and errors ate assigned upon each, although there is but one certiorari. And, so far as it respects the proceedings of the city council, the question naturally presents itself, whether these proceedings can be by this court reviewed in this manner. This question has been, as well as all the other questions raised, ably and elaborately argued by counsel.

By the constitution, the judicial power of the state is vested in a supreme court, courts of common pleas, and justices of the peace; but the specific jurisdiction of each is, in most cases, left to bo prescribed by the legislature. Section 6 of article 3 provides, however, that “the judges of the court of common pleas shall, within their respective counties, have the same powers with the judges of the supreme court, to issue writs of certiorari to justices of the *peace, and to cause their proceedings to be brought before them, and the like right and justice to be done.” If we look, then, to the constitution alone, the use of the writ of certiorari would seem to be confined to the removal of causes from a justice of the peace to a higher tribunal. But such could not have been the intention of the convention.

By section 3 of the act “ to organize the judicial courts” (Swan’s Stat. 222), it is provided that “ the Supreme Court shall have power, on good cause shown, to issue writs of habeas corpus, cum, causa certiorari, mandamus, prohibition,” etc. And further, “ that either of the judges of said court, in vacation, shall, on good cause shown, have power to grant writs of error, supersedeas, and certiorari; and also to grant writs of habeas corpus, for the purpose of inquiring into the cause of commitment.”

In section 4 of the same act, the court of common pleas is invested with the “ same power to issue remedial and other process (writs of error and mandamus excepted), as the Supreme Court hasand the judges of that court have power, within their proper jurisdiction, in vacation, on good, causo shown, to allow writs of certiorari, directed to justices of the peace.

The power of either couyt to issue a writ of certiorari, or of an individual judge, in vacation, to allow such writ, in a proper case, can not then be doubted. But the question is, as to what constitutes a proper case. Hitherto generally, if not universally, in our practice, these writs have been issued by this court, and allowed by its judges, to remove cases from the court of common pleas to this court, for some alleged error in that court, where the proceedings were not according to the course of the common law. And it has been held, contrary to the practice in England, that the proceedings could not be removed until after the final order of the court of common pleas, in the particular case. In fact, there has been no difference, in practice, as to the effect of the writ of certiorari, and the writ of error, except that *the former has been applied to cases where the proceedings are not according to the course of the common law, while the latter has been applied to cases where they ai*e. There can be no doubt there are other cases where a remedy might with propriety be sought, through the instrumentality of this writ. But it does seem to a majority of the court, that, in a case like the one before us, it is not the appropriate remedy, that is, so far as the action of the city council is concerned; and it seems to us that the authorities cited by counsel sustain us in this decision. Those proceedings may have been, and we incline to the opinion that they were,, in some respects, irregular, but we can not review them in this case.

The fifth error assigned is, that the mayor is not authorized by law, to enter the said judgment against Dixon.

This is undoubtedly true. There was formerly an ordinance of the city council, authorizing the mayor to enter such judgments; and, under that ordinance, the judgment, in the case of Cincinnati v. Gwynne, 10 Ohio, 192, was entered. The tax in the case now before the Court, was applied under an ordinance passed May 29,1839, which repeals former ordinances upon the same subject. This ordinance provides, “ that all special taxes authorized by this or any other ordinance of said city, by petition or otherwise, shall be levied and collected in the following manner, unless ¿herwise specially provided for, to wit: a certified copy of the list of assessment shall be by the city clerk delivered to such person or persons as the city council may appoint for that purpose, whose duty it shall bo to make immediate demand, of payment of the owner or owners, their agents or guardians, if they be found in said city, or if not, then on the premises so assessed; and, in case of failure to collect said tax on demand, as aforesaid, the said persons or lots so delinquent shall be forthwith reported to the mayor; and, if he is satisfied that lawful demand has been made, as above specified, he shall issue a warrant directed *to the marshal, commanding him to seize the real estate upon which such tax shall have been charged, as aforesaid, and sell by public auction so much,” etc. It will be seen, by this part of the ordinance, that no judgment is necessary — a mere ministerial act is to bo performed by the mayor. If the tax is not paid on demand, to the collector, he is to make returns to the mayor ; and thereupon, the mayor, without any preliminary proceedings, if satisfied that the return is correct, is required to issue a warrant to the marshal, requiring him to sell, etc. This was all done in the case before the court; a copy of the assessment was delivered to the collector; he had demanded the tax, which was not paid; of this fact he made return to the mayor, who thereupon issued his warrant. On the same day, however, he entered the judgment, which is claimed to bo erroneous. But it is worthy of remark, that the warrant is not at all based upon the judgment. In no part of that instrument is the judgment named. It merely recites such facts as go to prove the propriety of its being issued — such facts as show that, under the ordinance, it was the duty of the mayor to issue it. Counsel say, with propriety, that the mayor was not authorized to enter said judgment. He had no more power to do it, than would a justice of the peace have to enter a judgment in ejectment, or any private individual a judgment of any description. What is the consequence? The judgment is void; a perfect nullity, so far as respects rights acquired under it. It conferred no power upon the mayor to issue the warrant. He did not treat it as if it conferred any such power.

But does it follow that because the mayor had not power to render the judgment, therefore it shall be reviewed on writ of certiorari? If we were to do it, no good could possibly result. It is a nullity as it stands, and if reversed, it would bo nothing more nor less than a nullity. In fact, the reversal would be a vain thing. The truth is, the judgment is not the matter which disturbs the plaintiff in certiorari. The foundation of the complaints, on the previous proceedings of the city council, *in opening the street and assessing the tax, and not so" much the former as the latter. The existence of the judgment is seized upon as the basis of a writ of certiorari, in the expectation that when the judgment, void as it is, is before the court, the court will be induced to review and pass upon the legality of those previous proceedings of the council.

The other errors assigned, are relative to this judgment, with the exception of the one which charges that there is no law authorizing the sale of the property by the marshal, in pursuance of the warrant to him directed, nor to pass the title to the property when sold. If it be so, then a sale would do no injury to the rightful owner. He would not be divested of his interest; or if he was apprehensive that such sale might cast a cloud over his title, his proper remedy is in a court of chancery, where the sale might be prevented by injunction. But surely this circumstance can not operate as a legitimate foundation for a certiorari.

Upon the whole, after mature deliberation and reflection, a majority of the court are of opinion that the writ of certiorari was improvidently issued, and that the case must be dismissed for want of jurisdiction.


source: Caselaw Access Project

author: *Wood, C. J.

license: Public Domain

text:
    Charles Gorgas v. Thomas Blackburn and others, Officers of the Town of Massillon.
    The answer to a mandamus must respond to all the allegations in the writ, or it will be held bad on demurrer.
    The saving clause of the act repealing the act incorporating the town of Massillon, imposed upon the persons, then officers of said town, the duty of levying and collecting taxes, and paying its debts; and they can not, by resignation, avoid the performance of this duty.
    This is an application for a writ of mandamus to the town council of the town of Massillon, reserved in the county of Stark. »
    This writ, issued in this'case, is directed to Thomas Blackburn, mayor; Henry W. Smith, recorder; William Bowen, John E. McLane, David R. Atwater, Sylvanus Buckins, and *Levi Rawson, trustees of the corporation, and known as the town council of Massillon, and recites, “ 'That whereas it is represented to said coart by Charles (Jorgas, that at the November term, 1841, of the court of common pleas of said county, he recovered judgment against said corporation for the sum of $1,079.57, including costs, which judgment remains in full force and unsatisfied, and that said corporation has no property subject to execution to satisfy the same, and that you, as officers, as aforesaid, of said corporation, are the persons authorized to levy and collect taxes to pay and satisfy said judgment, which you have hitherto refused and neglected todo.
    “You are, therefore, hereby commanded, without unnecessary delay, to levy and collect,” etc., “ or forthwith to show cause to this court why you neglected or refused,” etc.
    In the application for the mandamus, which is verified by the affidavit of the applicant, it is stated, in addition to what is recited in the writ, that, on March 26, 1841, the act' creating the corporation of Massillon was repealed, but that the repealing act contained the following proviso:
    “Provided, that the officers of said town shall havo power, by their corporate name, to sue and be liable to. be sued, to levy and collect all taxes necessary to discharge the present liabilities of said town; and provided further, that all rights acquired and liabilities incurred by virtue of said act (incorporating said town) shall remain valid in all respects as if this act had not been passed.”
    And that the debt on which the judgment was rendered, existed at the time of the repealing of the act of incorporation, and was then an existing liability against said corporation.
    The defendants have all answered, and among other things for cause, etc., say that, at the time of the service of the writ, they were not officers of the town of Massillon, they having before that time resigned their offices respectively, etc.
    To these answers, the counsel for Gorgas demurred, generally, and counsel for the respondents joined in demurrer; and, to determine the question as to the sufficiency of the answers, *the case was reserved for the consideration of this court.
    Griswold & Grant, for the plaintiff:
    The answers of the respondents are defective, because they do not respond to all the allegations in the writ — or, in other words, do not cover the whole ground assumed by the plaintiff. They say the respondents are not officers, etc., and the reason given is, because they have resigned, but without stating when. They admit they have been officers, but do not state when they ceased to be such. It may have been after the writ issued — it may have been before, but after the passage of the act, repealing the act incorporating the town of Massillon. They are, then, evasive, and on that ground bad on demurrer.
    They are bad, too, because, applying to them the rules of pleading, by which they must be governed, they admit all that is alleged by the plaintiff. Every plea must be construed most strongly against the pleader, and every allegation not traversed, is held to be admitted — applying these rules, this is the case before the court.
    The plaintiff has a claim against the town of Massillon, which existed at the time of the repeal of its charter, and which is reduced to judgment. The repealing aht pi’ovides, that all liabilities against the town shall remain valid in all respects as if the repealing act had not been passed ; the officers were declared liable to be sued, and empowered to levy and collect taxes to pay its debts ■ — these defendants were at that time its officers, having the power to levy the tax — after the issuing of the writ, they resign, and claim thus to be divested of all responsibility, and that the town, by a novel species of bankruptcy, stands discharged of the debt.
    It seems to us that the simple statement of the case bespeaks the judgment of the court in favor of the plaintiff.
    The legislature seems to. have had a suspicion that there *might be repudiation lurking in the application of the citizens of Massillon for a repeal of its charter. It “snuffed it on the tainted breeze,” .and, therefore, very wisely guarded against the intended fraud, by providing that all “rights acquired ” against the town “should remain as valid in all respects as if this act had not passed.” And, not content with this declaration, for the purpose of preserving these rights unimpaired, there was this further proviso, that the officers should proceed to levy and collect taxes to pay the debts of the town.
    This duty is devolved upon “the officers of-said town,” that is, upon those who, at the time of the passage of the repealing act, were officers. They, must bo performed by these officers, because the town can never have any other. In the repealing act, no provision is made for any future election; no mode prescribed for filling vacancies. These officers, then, must levy and collect the tax, or it can never be done; and if not done, clearly the design of the legislature will be frustrated, and rights then existing against the town will not “remain valid in all respects as if that act bad not passed.”
    If this view of the case be correct, these respondents stand charged with the performance of a duty which they can not avoid by resignation. They are clothed with a power which they must exorcise, no matter how repugnant to their feelings. They must discharge the honest debts of the town before they will be permitted to cast off their trappings, and lay aside the dignity of office, and return to the sweets of private life, for which they are evidently longing
    “"With ardent hope and strong desire.”
    This, it seems to us, embodies the whole argument of the case. It is with the court, and its decision will determine whether this, the latest adventure in the scheme of repudiation, shall be crowned with success.
    S. Pease, Keith & Miller; and Eolger & Underhill, for the respondents,
    submitted the case without argument.
   *Wood, C. J.

On application of the town of Massillon, the act of incorporation was repealed by the legislature. But the debt of the plaintiff, Gorgas, on which his judgment was obtained, existed against the town as a valid debt, before the repeal of the charter, and the repealing act contains this proviso:

“That the officers of said town shall have power, by their corporate napie, to sue and be sued, and to levy and collect taxes necessary to discharge the present liabilities of said town,” etc., and “ that all rights acquired, and liabilities incurred by virtue of said act, shall remain valid in all respects,” etc.

The repeal of the charter, therefore, did not discharge the officers of the corporation from the duties of collecting the debts duo the town, and paying off the liabilities it had incurred. It was the duty of the then officers of the town to provide for the payment of its debts — those in office when the charter was rejiealod — and they are continued as such officers by the act for that purpose. No fraudulent resignation will absolve them from the discharge of the duties imposed, for the statute makes no provision for successors or any other persons than the then officers, to levy taxes or pay the debts of the corporation.

What, then, is the answer? That when the writ was served they were not officers — they had resigned. When did they resign ? Was it before the repealing act fixed their duties? The answer docs not state, and in this respect is clearly defective, foi the rule is, that every plea must have convenient certainty of time, place, and .persons, and must be construed most strongly against the pleader.

It is admitted by the answer that the respondents were officers of the corporation, and as the time of their resignations is not averred in the plea to bo before, the law will intend it was after the repeal and their duties fixed.

The demurrer must be sustained, with costs.


author: Wood, C. J.

text:
    *Leonard Whitcomb v. The State of Ohio.
    In a criminal prosecution, on motion for a new trial, because the verdict is against the evidence, on the ground that the witnesses are not credible, the opinion of the common pleas, in refusing such motion, can not be reversed on error.
    This is a-writ of error to the common pleas of Hamilton county, made returnable to this court. The points in the case are stated in the opinion of the court.
    J. Brough, Zinn & Collins, for plaintiff.
    C. H. Brough, for the state.
   Wood, C. J.

On inspecting the record, we find that the plaintiff was tried and convicted, at the July term of the court of common picas, 1845, on an indictment for unlawfully selling, bartering, and disposing of certain false and forged bank notes, knowing them to be such, to one William Harris, and sentenced to be imprisoned at hard labor in the penitentiary. The indictment contains three counts. On the two first, the plaintiff was acquitted; on the last, found guilty. In this count it is, among other things, averred that the bank notes were in the likeness and similitude of true and genuine bank notes, on the State Bank of Indiana— the one of the denomination of five, and the Other of twenty dollars.

The record shows a motion was made by the plaintiff’s counsel for a new trial, which was overruled, and a bill of exceptions taken.

Counsel suppose the court of common pleas to have erred in the admission of certain testimony, which was permitted to go to the jury, and in overruling the motion, as it is insisted the verdict was contrary to the evidence given on the trial.

*No argument has been submitted, but instead thereof, an agreement that the case shall be brought before the court, on the assignment of errors only, and which is, therefore, supposed to put us in possession of all the points material to be considered, in disposing of the case.

It appears from the bill of exceptions, that one Elizabeth Graham alias Elizabeth Harris, a very base woman, was the important witness for the prosecution. She levied with Harris, the person to whom the bank notes were bartered, and claimed him as her husband, though not married. She had been an inmate of the penitentiary of Kentucky, and her term of confinement not having expired, she was nevertheless residing in Cincinnati, and engaged with Harris in buying, or rather in secreting and keeping for him the counterfeit paper in which he dealt. While thus living at Cincinnati, the governor of Kentucky issued his pardon to Mrs. Harris. On her introduction as a witness, she was objected to on the ground of her conviction of an infamous crime in Kentucky, and the objection sustained by the record of conviction. This was met b j profert of the pardon by the prosecution, and the witness admitted by the court to testify.

The first assignment for error is, that the court erred in the admission of this pardon to restore the competency of this witness, on the ground that the same was procured by fraud.

There does not appear to have been any evidence before the court to justify any such inference, but it is probable the pardon was procured with a view to this very trial, and to enable Mrs. Harris to testify.

If the governor was imposed upon by artful and fraudulent representations, it is a question between him and his constituents; but with which the plaintiff had no concern, and to which no objection from him could lie.

The second assignment is, that this Elizabeth Harris was admitted to testify, being incapacitated by reason of infamy; but it is a very general rule of the common law, that the pardon restores the competency; that it operates as a remission of all *prior offenses, and the convict is sent, a new man, into the world, and unaffected by any former attaint.

If there is anything in the constitution or laws of Kentucky that limits the pardoning power, or makes the conviction a disqualification to testify, it is not shown upon this record. The presumption is the other way, and we can not, ex officio, take notice of the constitutions or laws of other states, but they must be specially brought to our notice.

The third assignment is, that the common pleas erred in overruling the motion for a new trial, because the verdict was not sustained by the evidence ; the bills set forth in the indictment are not identified, and the scienter is not proved.

The bill of exceptions sets forth the most of the testimony given ; and the court of common pleas considered it sufficient to sustain the verdict, or they would have granted the motion. Gan we say it was not? That the bill of exceptions shows testimony was given on the trial, sufficient to warrant the conviction, can not be denied, if it could be believed; but it is insisted the evidence of Mrs. Harris should have been corroborated. This was a question ior the jury, to say whether she was to be believed. They saw her manner of giving testimony, which is sometimes of great importance in determining the credibility of a witness. The common pleas have been of the same opinion, and there is nothing on the record to show that such opinion is wrong.

A case might possibly arise, when this court would reverse the judgment of the common pleas in overruling a motion for a new trial, because the verdict was not sustained by the proof; but it must be a case where there has been no evidence given, on some one point, not where the proof is full, and so, much depends on the exercise of a sound discretion in the common pleas, as to whether it should be bejieved or not. All familiar with courts of justice have often witnessed the difference in the effect of testimony given on the stand, and transferred to paper. A woman is living in a state of adultery, engaged in crime, and has been an inmate of the penitentiary. *A11 would look upon any statement made by her, on oath, if only seen on paper, as unworthy of any reliance. If it implicated a person of good character, no man should form his opinion from evidence originating from so polluted a fountain.

Yet, on a personal examination in court, herself, standing unimpeached by any direct testimony, and implicating one long engaged in crime, a court and jury might reasonably come to the opinion she was entitled to full credit. What we mean to say is, those who tried the case are more competent than we to form a correct opinion of the credit of this witness, and we ought not to upset their conclusions.

If her testimony, then, was worthy of credit, it satisfactorily identifies the two notes, proves the sale of them by Whitcomb to her adulterer, at one dollar for five, and which, of itself, is evidence of the scienter, though there is, in this case, other testimony full • and satisfactory on that point. Judgment affirmed.


author: Birchard, J.

text:
    *James Durbin v. Barber and Barney.
    A court in chancery, in decreeing a rescission of articles of copartnership for a violation of its terms, may fix the date of the dissolution at the time of the abandonment by the aggrieved party, if the equities of the party so require.
    The profits made subsequent to such dissolution, if growing out of the use of joint capital, is an increase, of such capital, and, if the proceeds of the individual or original capital of the aggreived partner, they are his.
    This is a bill in chancery, reserved in the county of Erie.
    The material facts in the case are stated in the opinion of the court.
    Reber, Hitchcock & Wilder, for complainant.
    E. Lane, Butcher & Cook, and Parish & Sadler, for defendants.
    No arguments of either of the counsel came to the possession of the reporter.
   Birchard, J.

This cause was elaborately argued in this court at the December term, 1843, and the following decree entered :

“ The court find that the defendants and the complainant ent' into partnership December 28, a. d. 1839, as set forth in the of said complainant; that the defendants violated said contract o copartnership by appropriating to their separate use money and funds belonging to the copartnership, as in said bill specified ; that the plaintiff, in consequence of the violation by the defendants of said contract of partnership, on November 16, 1840, gave notice of the dissolution of .the same, and rightfully dissolved the *same, and that the equity of the case is with the plaintiff, and that the parties are entitled to an account.”

A reference was therefore directed, without further findings, to take the account in different forms.

At the last term in Erie county, no account having been taken, the case was again reserved for more specific directions.

The defendants rely upon the following propositions:

1. That if the plaintiff is entitled to relief, he could not, by his own consent, even for just cause, work a dissolution of the partnership until after a decree of the court.

2. That all profits of constructing the work, which was the subject of the partnership, should be divided between the partners, agreeably to the terms of the articles of copartnership.

The first of these propositions was fully considered on the former hearing; but as it was then disposed of without giving an opinion to the reporter, the case is not to bo found in tjie volume of reported cases. To determine its merits it became necessary to look into the papers of the whole case, and cover almost the entire ground embraced by the former investigation. This labor has been performed; and although it would be perhaps more satisfactory to the parties concerned, were wo to take the pains to embrace in our opinion all the questions of facts and law arising in the controversy, minutely and in detail, with an opinion upon each in its turn ; yet it would be of little value to any one else, and would require much labor that may well be dispensed with. So far as may be necessary to give a full view of the principles of law that have governed heretofore, and at this time, the decision made, I shall endeavor to speak of the facts as in our judgment they exist.

On December 29, 1839, the complainant, having a contract with the board of public works for the construction of sections 49, 53, 56, and 57, upon the Wabash and Erie canal, and the work requiring more means than he could readily command, in order to obtain assistance, he entered into articles of agreement with the respondents, the substance of which is as follows:

The said Barber and Barney were to be mutually interested *in the contract for the construction of said sections with said Durbin, and each of the parties to share alike in the profit or loss; and it was understood by the parties that they were to share and share alike (the said Barber and Barney, of the one part, and the said Durbin of the other part, each one-half) of all the profit and loss, from the beginning to the completion of said work.

In consideration that said Durbin would bestow his time and attention in superintending the construction of said work, and in consideration also that said Durbin had taken said Barber and Barney into partnership, and given them a joint and equal interest with him in constructing said work, all which ho had agreed and did thereby agree to .do, the said Barber and Barney covenanted and agreed to and with the said Durbin, that, for the purnose of constructing said sections of said canal, they would from time to time, as might be required for obtaining materials, employing hands and carrying on said work, make such advances in money, goods, produce, etc., as might be wanted for that purpose, over and above the estimates that might be at any-time received. Provided, always, and it was thereby agreed and understood between the parties, that they should not bo required and compelled to advance, at any one time, over the sum of $3,000 ; and that said goods, produce, etc., should bo furnished at original cost prices, or such as should be mutually agreed upon by the parties! thereto.

It was understood and agreed that, whenever any estimates should be received from the state, for the construction of said work, or any part thereof, they should be received by both parties thereto, or their order, and that one party should not receive the same without the consent of the other, and the said estimates, when so received, should first be applied toward the payments of advances made as aforesaid, by said Barber and Barney, and the other debts and costs and charges in constructing said work, and the balance, if any, should be equally divided between the parties thereto.

*Under this agreement, the parties commenced work in January, 1839, and the work was successfully prosecuted till May, when the state paid an estimate of $9,000. At this time the company owed debts of over $9,000, besides the advance by respondents of $2,743; of this estimate Barber and Barney applied to their own uses, or retained, $3,550. The work still progressed till July 27, when respondents were .in advance about $2,100, and the debts of the company wore, including this advance, about $7,300. On the 17th of the month, Durbin was in great want of money, and wrote to defendants that he had expended his last cent, and was in need of help. They started for the work, and one of them, on the way, succeeded in getting from the agent of the state an advance of $6,300, and went on to the job; but said nothing to Durbin about it, and he knew nothing of it until he learned it from the agent of the state about two months subsequent, when calling for another estimate. In the meantime the respondents had used the money in private speculations of their own. Durbin, in the interval, had been laboring under serious difficulties for want of funds; his hands were leaving him, claims were pressing upon him, and he had to resort to every means 'n his powcy to sustain their credit and keep his workmen and the state engineers quiet. Finally, after repeated calls upon them, and after learning the extent of their violations of the contract, and the job being in debt some $5,000, and respondents in arrears instead of being in advance; he notified them of his intention to abandon, on his part, the contract between them; filed this bill on the 20th of November, upon which was allowed an injunction, restraining them from further interfering with the work, and from receiving further estimates. These are the general features of the case, and upon these we hold that the copartnership ought to be considered as dissolved, and put an end to, from the 16th of November, the day notice was given.

It is now said by learned counsel, that this dissolution should date from the decree only.

*The point was fully argued on the former hearing, and much debated between the members of this court. It was then supposed to be within the power of the court to say at what date the contract of copartnership should, in equity and good conscience, be considered as at an end. We believe still in the correctness of that doctrine. It is within the power of the court to say at what time a partnership contract shall be rescinded and ended as between the parties ; for there is nothing in the nature of a partnership contract to restrain the court from trying a question of violation by the same rules applicable to any other agreement. Wo may admit that the partnership was not dissoluble at the mere will of either party ; and that the period of its termination, by the terms of the article, was at the completion of the job of work; and yet that weakens not the position taken, nor does it touch the grounds upon which it is based. The great principle upon which the decision stands is equality — a principle in which equity “peculiarly delighteth.” Barber and Barney had refused to be bound by the contract — they disregarded its letter, and violated its spirit. Not only neglecting to observe the agreement to advance funds, the only object of Durbin in giving them any interest in it, they secretly withdrew the proper funds of the company for private purposes of their own. Under circumstances like these, it would be unequal, as it would be unfair, to hold Durbin bound by his part of the agreement. They had violated it, and their acts gave him a right to abandon it. This right he pursued in a proper manner by giving prompt notice, and asking the court to do lor him what, without their aid, he could only do at the hazard of losing all the anticipated profits of the undertaking. He was not willing to end the business by throwing up the contract to the state, nor to surrender it to partners who had kept no faith with him, nor was he bound to do it. The respondents had done that which justified him in appealing to a court of equity to rescind the contract as of' that day, to restore to him his own, and to give back to him, as far as the ^altered circumstances would permit, what ho had parted with for a consideration which had more than failed. The case cited from 5 Ves. 228, is easily distinguishable lrom this. It was like the case of a surviving partner continuing the business of the firm on the former capital of the firm, when the joint property having been made the foundation of the profits, the interest in the profits followed the interest in that which produced it; and such would bo the rule here, had not measures been taken to put an end to the joint business. But that precludes the idea that the complainant intended to proceed in the business as a joint concern. This act forbids any such implication. And the defendants’ conduct equally forbid the court’s making any such inference in their favor.

This brings us to the second point. What has already been said has much bearing upon the question as to the manner in which the account should be taken. There is, perhaps, no general rule without exceptions, certainly none that will do exact justice in every case, or that may not do injustice in particular cases. There is one general maxim, however, that is seldom found to fail, to wit, that when a supposed general rule is so applied as to work manifest injustice, it is most likely that it is either misunderstood or misapplied.

The difficulties which have embarrassed counsel in this branch of the case arise from the fact, that after Durbin had taken measures to free himself from the connection with, and interference of, the respondents, he went on and completed his contract with the state, and, it is supposed, made some profit by it. Assuming that this was “ a trading with joint capital,” the respondents claim half the profits, upon the common principle, that the employment of the common capital, having produced an increase, the owner of' the one is entitled to the other, subject to all just deduction. No fault can be found with this rule, when applied to a proper case; and yet, were we to apply it here, treating Durbin’s contract with the state as a part of Barber and Barney’s capital or joint stock, in the way which they claim to be right, it would certainly *take from Durbin half, if not all, the profits he has made, and to which he would have been entitled, had they observed with him the ordinary good faith required of partners. Durbin, be it remembered, lot them into the benefits of the contract, in order to get the continued use of $3,000, to enable him to carry on and complete the job. The capital stock, on his part, was his labor; on theirs, the advance which they agreed to make. When they failed and withdrew all of their capital, and some of the proceeds of the work, and he took the measures rendered necessary for self-protection, he was left with his contract with the state on his hands, to be performed as best he could, or to be forfeited, and himself subjected to any loss the state might sustain in consequence of his non-performance. To avoid the forfeiture, he had to look for other capital than that of the respondents, and to offer to other capitalists inducements-suffioient to procure those advances which they had failed to make. It seems to us, that equity, under these circumstances, requires that, in applying the general rule to this case, the contract with the state, and Durbin’s labor should, together, be taken as the portion of joint capital brought into the firm by him, and that in taking the account, the master should so regard it, treating the partnership agreement as rescinded from and after November 16, 1840, and each party entitled to a return of his own capital with a use of it, and entitled to all the increase since that day.

That, as to the joint operations before that day, they share alike in profits and loss, except that complainant shall be entitled to a decree for such damages as he may have sustained from the violation of the articles of agreement by the respondents. .

Lot the decree be drawn, directing the master to state an account: 1. Of all the work done on November 16, 1840, and its amount at contract price. 2. The amount and value of all the property and credit of the partners to the same time. 3. The amount of the debts then due. 4. The payments made on account of said debts, and by whom. 5. *The amount of damages sustained by complainant, by reason of the violation of the articles of copartnership by the respondents. 6. What amount of capital, after the payment of all partnership debts, if any was used by the complainant in. the work after the dissolution of partnership; and what amount of capital the complainant used in the said work, which was advanced to him by Benjamin P. Hollister, treating said contract with the state as part of complainant’s capital, the cash value of which the master shall ascertain. 7. The profits on respondent’s capital employed in the work, which shall be ascertained by giving to it the same amount of entire profits made after the dissolution, which said capital bears to the whole amount of capital employed, and which is to be ascertained as specified in the sixth direction.

Hitchcock, J., having been of counsel, did not sit in the case.


author: Read, J.

text:
    *Frederick Gibler and others v. James M. Trimble. Josiah Roberts and others v. The Same. Polly Barr and others v. The Same. William Carothers and others v. The Same.
    Persons having an interest in lands by contract of purchase with the legal holders of military land warrants, having paid the purchase money, and being in possession, aro necessary parties to a suit instituted against the legal holder of the same, to compel an assignment of such warrants, and all interest in lands acquired under them by entry, location, and survey.
    That, if not made parties, they are not prevented by the doctrine of lis pendens from proceeding, during the pendency of such suit, to clothe their junior equity with the legal title, and procuring patents from the United States.
    That the doctrine of stale equity will apply in such cases, to protect the junior equity, after an undisturbed possession, for a great length of time.
    These are four cases of bills of review, reserved in Highland county. The leading facts and the principles involved in each being tho same, they are all embraced in one decision.
    The decrees sought to be reversed in these cases were pronounced at court in bank in 1842. The same material facts are common to all the cases, and all will be considered together.
    The facts material to the decision of these cases are, in substance, these:
    One Archelaus Moon died in 1796, possessed of four Virginia military land warrants, Nos. 5,703, 5,704, 5,705, 5,706.
    He had two sets of children. To the one ho devised throe warrants. The others, not devisees, to wit, Josiah F. Moon, George and Martha, his wife, formerly Martha Moon, claiming to be the only heirs of A. Moon (as recited in tho assignment), ^assigned these warrants to one Price, who assigned the same to Joseph Kerr.
    Kerr, claiming to be the sole owner of these warrants, contracted with the complainants to soil the lands in dispute, and secure the title by taking the steps required to procure patents. The purchasers, under this contract, went into possession.

      The Barrs allege purchase in 1803; possession in 1808; entry under the warrants, March 22, 1810; survey, March 12, 1812; patent, February, 4, 1819.
    The Giblers purchased 1807; have had possession ever since; madeentry November -22, 1814; survey, November 28, 1814; and obtained patent, October 2,1819.
    Davidson and Roberts purchased in 1800; have had possession ever since 1806; made entry November 22, 1814; and procured patent on December 12, 1824.
    Oarothers and others came within the principles of the above state of facts, as they acquired title under them.
    Thus these complainants were all possessed of the legal title by patents.
    Trimble obtained the decree which is now sought to be reversed, that these complainants should convey the land to him, and account for profits, upon the ground that they had acquired the legal title under such circumstances, and with such notice of the equities of those under whom he claims, that they were merely trustees, holding the legal title for his benefit.
    The facts relied upon to charge respondents as trustees, are as follows:
    In 1812, the devisees of Moon filed a bill in the United States circuit court in Ohio — subpoena returnable January 1, 1813 — to compel Kerr to assign said warrants, and all locations, entries, and surveys, or interest in land, acquired under and by virtue of said warrants, and obtained a decree to that effect, embracing the land in controversy.
    This cause was appealed to the Supremo Court of the United States, and the decree reversed, for the reason that the complainants claimed under the will of Archel'aus Moon, or *Archibald Moon (being known by the name of Archelaus and Archibald), which had been executed, proved, and admitted to record 'in the State of Kentucky in the year 1796, but had never been proved and recorded, according to the laws of the State of Ohio, and was therefore not competent to transfer lands in Ohio. This case is reported — Kerr v. Moon, 9 Wheat. 566. The cause was then remanded for further proceedings, and finally a decree was had in the circuit court of the United States in 1827, that Kerr, by proper assurances, should assign, transfer, and convey to said Moon’s devises said warrants, and all locations, entries, surveys, lands, and interests in lands acquired under the same. Kerr never, in any respect, executed said decree; nor did such decree, of itself, it is conceded, operate as a conveyance or transfer of title under our statute. In 1829, the devisees of Moon, under this decree, had partition of the lands among themselves, and proceeded to make sales.
    Trimble, the present respondent, became a purchaser, but the present complainants having the legal title, refused to give possession. Kerr, in the meantime, died; the decree of said United States circuit court being unexecuted by him, and no effort was made either to carry said decree into execution, or to revive the same, until the year 1839.
    In the year 1839, by leave of court, and by consent of parties, Trimble was permitted to file a bill of revivor, and a supplemental bill, in said circuit court, against Kerr’s heirs ; and by consent a decree was rendered against them, and,'under said decree, conveyances of the lands in dispute were made to Trimble in 1840.
    In view of these facts, the decree, sought to be reversed was rendered against complainants, in favor of Trimble. It was supposed that complainants having perfected their legal titles, after suit in 1812, in the circuit court, by Moon’s devisees, under whom Trimble holds, and decree against Kerr, that the doctrine of lis pendens would operate to entitle Trimble to the legal titles so acquired.
    . *John Jollieee and J. Winston Price, for complainants in review :
    It is a general rule of law, founded upon the clearest principles of natural justice, that no person shall be bound or affected by judicial proceedings, unless they have had an opportunity of producing evidence on their behalf; of examining the witnesses of the opposite party, and being heard by their counsel. 4 Peters, 466; 1 Peters, 328; 2 Peters, 163; 2 Aiken (Vt.), 219; 1 Litt. 181; More v. Farrow, 1 Litt. 118; 1 Car. 166; 2 Nott & McCord, 25; 1 Marsh. 526; 9 East, 192, and cases collected in note to 9 East, 194; 15 Johns. 121; 10 Johns. 162; 4 Cowen, 294; 5 Wend. 151; 9 Cowen, 227; 19 Johns. 39; 17 Johns. 146; 14 Johns. 248; 9 Mass. 462 ; 1 Dallas, 2161; 3 Wilson, 341; 2 Wilson, 382; 3 Ohio, 541; 5 Ohio, 463; 9 Ohio, 111; 3 Monroe, 267; 4 Monroe, 544; 6 Monroe, 70, 505.

      In 3 Ohio, 542, Judge Sherman, in delivering the opinion of the court, said: “ This rule of Us pendens, adopted by courts of equity, from necessity, and in imitation of the common law, that where a defendant in a real action aliens after suit brought, the judgment in such real action will overreach such alienation, is yet considered as against a real and fair purchaser, without actual notice, as a hard rule, and the courts will gladly avail themselves of any defect in the pleadings or proof of the plaintiff, to prevent its operation;” and he refers to 2 P. Williams, 482. See also 2 Sugd. on Tend. 327, 9 ed.
    The original bill in the circuit court was filed December 7, 1812.
    In the argument of the case before the Supreme Court of the United States, it was contended, “that the interest of Moon in these lands ought to be considered and treated as personal estate.” But that court were unanimously of the opinion “ that it can by no means be admitted that this is to be considered in the light of personal property. ”
    . *The present complainants, or those whose titles they claim, were all in possession of the land sought to be recovered by the defendant in review, before the year 1812, before the bill was filed in the circuit court. All that is necessary for the purpose of my argument is, that the persons in possession at the commencement of the suit had the right to be heard before decrees could be made affecting their interests in the lands, whatever those interests were.
    The case of Parks v. Jackson, 11 Wend. 444, is in point.
    I ask the especial attention of the court to the luminous opinion of Senator Seward in that case, because I submit that it is exactly applicable to the State of Ohio — so clear and irresistible is the argument, that the whole court (twenty in number), see page 466, with the exception of the chancellor, voted to reverse the judgment.
    See also Fenwick’s Adm’r v. Marcy, 2 B. Mon. 70; 9 Dana, 198; Jackson v. Dickinson, 15 Johns. 313.
    In Hopkins v. McClaren, 4 Cow. 678, the same principle is decided.
    “No tenant, who was in possession anterior to the commencement of the ejectment, can be dispossessed upon a judgment and writ of possession to which he is not a party.” Ex parte Reynolds, 1 Caine, 500.
    “ Care will be taken by the court not to make a decree which will affect a person not a party to the suit.” Joy et al. v. Wirtz, 1 Wash. C. C. 417.
    The lis pendens, if any, did not commence until after the will of . Moon was proved and admitted to record in Ohio, and the amended bill filed, stating that fact.
    At the time the bill was first filed in the circuit court, the complainants had no right of action. 9 Wheat. 565; Wilson v. Tappan, 6 Ohio, 474; Bailey v. Bailey, 8 Ohio, 245; Lessees of Swayzes’ Heirs v. Blackman, 8 Ohio.
    A suit upon a note before it is due, would certainly create no lis pendens. If the party in fact knows of the existence of *the suit, he also knows that the plaintiff has no right to recover. A subsequent purchaser, with notice of a prior deed made to defraud creditors, is not bound by it; because, although he knows the fact that such deed exists, he also knows “ it could not hurt him,” being void. Gooch’s case, 5 Coke, 60; 14 Mass. 147; 9 East, 67; Sugden on Vendors, 137; 2 Thomas Co. Lit. 192, top paging.
    “If in a suit at law; the plaintiff has suffered nonsuit, or if, in chancery, the suit abated, the plaintiff must make the person who purchased during the former suit a party.” Newman v. Chapman, 2 Rand. (Va.) 103, 104. “If there was any intermission of suit, or the court made acquainted with the conveyance, the court is to give order upon the special matter according to justice.” Bacon’s Law Tracts (Oct. ed. 1787), 282; in note to 2 Ves. & Beam, 202.
    In Lessee of Smith v. Trabue’s Heirs, 1 McLean, 88, McLean, J., held, that persons who enter into the possession under tenants, on whom a notice has been served in ejectment, will be subject to be turned out of possession under the judgment. “But this rule is not without limitation.'1'' That the judgment fixes the right of entry, but without an actual entry the statute of limitations will continue to operate against the right. And after the lapse of eleven years, being four years more than the limitation fixed by the statute, a writ of possession was quashed, and a writ of restitution awarded, to give the tenant an opportunity of setting up a right under the statute.

      In Ledgerwood et al. v. Picket’s Heirs, 1 McLean, 143, a demise in an action of ejectment was amended, the term extended, and a writ of possession was taken out, under which the terre tenants were about to be turned out of possession without notice. On writ of error coram vobis, Judge McLean decided that “ it is very clear that such a power should not be exercised except on notice to all persons whose interest may be affected by the amendment.” He said that, “in this summary way, ‘the rights of no individual should be prejudiced without notice, and an ample opportunity given of showing cause why *the amendment should not be granted. Indeed, it is manifest, from the facts in this case, that great injustice will be done unless this writ of possession shall be set aside.” S. C., 7 Pet. 144.
    The cases in 1 McLean decide the proposition that the statute of limitation runs in favor of a pendente lite purchaser. It runs in favor of the defendant in ejectment himself. 1 McLean, 88. McLean, J.,says: “A mere entry while the tenantremains in possession, will not hurt him; he must be turned out of possession, or acknowledge the right of the lessor of the plaintiff, by consenting to hold under him. Nothing short of this will stop the statute.” See also 8 Ohio, 167, 168; Smith v. Hornback, 4 Lit. 233.
    The case of Baldwin v. Love, 2 J. J. Marsh. 489, is opposite to the present. There the purchaser had obtained the property in question, after the filing of the original bill. The complainants amended their.Ijfll, but the order of amendment was not noted in the order book as a statute of Kentucky required. The court held that, “ under these circumstances, if it was designed to impeach Morton’s (the purchaser’s) title to the slaves, he should have been made a party to the suit," and reversed the judgment of the circuit court.
    In Sale v. Crompton, 2 Stra. 194, “a warrant of attorney was given in 1732, to confess a judgment for Crompton, but the record of the judgment, had left out the r, and it was made Compton, and now the court refused to amend it by the warrant, for fear of inconveniences to the purchasers." Equity looks at the substance, and not at the form of things. The reversal of the case because, by the complainant’s own showing on the bill, they had no right to sue, was substantially as much as a nonsuit at law, or an abatement in chancery.
    If, in such case, the complainants had sued at law, they would have been nonsuited, or had judgment against them. The case was reversed by the Supreme Court of the United States, on the ground that before they proved the will in Ohio, the complainants had no right to sue or intermeddle with the ^effects of the testator in Ohio. Here, then, is a clear case of a party suing when he had no right at all to sue.
    In Bishop of Winchester v. Beaver, 3 Ves. Jr. 318, the court ordered a bill of foreclosure to stand over, that a judgment creditor, who had obtained his judgment after the filing of the bill, might be made a party in the case.
    See also Sherman v. Cox, 2 Ch. 46; Haines and others v. Beach and others, 3 Johns. Ch. 459; Daly v. Kelley, 4 Dow’s P. C. 435, where Lord Eldon held, that if land be aliened pending a suit about it, the alienee having the legal estate ought to bo brought before the court in order to convey; and if there are vexatious alienations pending the suit, the court will restrain them. See also Sugd. on Vend., 7 ed. 327, 328.
    In Preston v. Turbin, 1 Vernon, 285, it is said, “ Where a man is to be affected with a lis pendens, there ought to be a close and continued prosecution.” See also Watson v. Wilson, 2 Dana, 406; 2 Sugd. on Vend., 9 ed. 336.
    See also 2 B. Monroe, 470, where it is said the purchase must have been made during a diligent prosecution of the suit.
    If the Us pendens be collusive, it will not bind the purchaser. 2 Sudg. on Vend. 326.
    The complainants, when they filed their bill of revivor in the circuit court, ought to have made the present complainants parties to the suit. See 2 Randolph; 4 Dow, beforo referred to.
    The doctrine of Us pendens does not apply to this case, because the proceedings were in the circuit court.
    In Tarbell v. Griggs, 3 Paige’s Ch. 207, Chancellor Walworth decided, there is “ nothing in a court of the United States to place it upon any higher ground than the judgments of other courts of a sister state. And the fact that the court was setting within the limits of our own state, can not give the plaintiff any better claim than he would have had if *the judgment had been rendered in any other state or territory of the United States.”
    In 2 Story’s Eq., sec. 405, it is said : “ It is upon similar grounds that every man is presumed to be attentive to what passes in the courts of justice of the state or sovereignty where he resides; and, therefore, a purchase made of property actually in litigation, pendente,” etc.
    “The state tribunals are no part of the government of the United States.” Rawle on the Constitution, 200, quoted with approbation by Judge Story, in 3 Story on the Constitution, 448, note 2.
    A bill of exchange, drawn in one state of this Union, on a person in another state, is a foreign bill, 10 Ohio, 185; 10 Pet. 579; 12 Pet. 54; where it is decided that “the respective states are sovereign within their own limits,-and foreign to each other, regarding them as local governments.” 2 Pet. 586 ; 1 lb. 179.
    The complainants then ought to be no more affected by these proceedings than if they had taken place in the state courts of Maine, or Now Hampshire, or in the courts of the United States for Louisiana or Florida.
    The rule that a lis pendens is notice to the world, applies only where the suit is brought in the county where the land is situated. And, with that limitation, a purchaser, with reasonable diligence, can know whether the title he is purchasing is in litigation or not. Once compel a purchaser to go beyond the county in searching for suits, and there is no limit to the extent of his liability.
    The party who claims the benefit of a Us pendens, by which the other party has been deprived of the right of being heard in a court whose aid is sought to wrest from him his possession, must clearly show that such lis pendens exists. Although the defendant has the aid of able and diligent counsel, they have not produced a single case where, either by decision or dicta, the doctrine they now contend for has been held. And, to adopt the language of Judge Lane, in 5 Ohio, 193, “ it is *an argument of irresistible force that, in the whole range of authority within our reach, not one has been found ” to support the principle claimed by the defendant’s counsel.
    In the case in 6 Ohio, 463, the court thought it to be material that “no settled practice furnishes evidence that the profession have deemed it necessary ” that the decree should be recorded in the registry of deeds.
    A Us pendens is not notice to postpone a prior registered conveyance. This point was directly decided in Newman v. Chapman, 2 Rand. 93, where it was held that a Us pendens of an unregistered mortgage was not notice to postpone to it a recorded deed. See also Wyatt v. Barwell, 19 Ves. Jr. 539; 4 Kent’s Com. 171, 172. The will under which the defendant claims, has never, I believe, been recorded in Highland county; at least I do not remember any such fact in the case. The statute of Ohio (Chase, 572, sec. 12; 681, sec. 12). requires the copy of a foreign will to be recorded in the county where “such estate shall lie,” A purchaser for valuable consideration from an heir, without notice of a will, will be protected in equity. Rowe v. Tweed, 15 Ves. Jr. 372.
    In Mead v. Lord. Orrery, 3 Atk. 243, Lord Hardwick held that “ a lis pendens is only a general notice to all the world, but can not affect any particular person with a fraud unless there was a special notice of the title in dispute to that person.”
    In 2 Fonb. Eq. 153, it is said : “In general, a decree is not constructive notice to persons not parties to it; but if a person not a party have express notice of such a decreee, he shall be bound by it;” referring to Harvey v. Montague, 1 Vern. 67; Watlington v. Howley, 1 Des. Ch. 170.
    . The statute of limitations protects the complainants. They had the actual, adverse, notorious, and exclusive possession of the land upward of, twenty-one years before the commencement of these suits in Highland county. The rendering of a judgment in ejectment, without dispossessing the tenant, does not deprive him of the benefit of the statute of limitations. See 1 McLean, 2 Litt., and 8 Ohio, before referred to.
    *The demand is a stale one. “Equity will not aid a stale demand, where the party has slept upon his rights, and acquiesced for a great length of time.” Bowman’s Devisees et al. v. Wathen et al., 2 McLean, 396, and the cases there collected. S. C., on appeal, in 1 Howard, 189. In that case the Supreme Court decided that a court of equity will not give relief “against conscience or public convenience,” or to a party “ who has slept upon his rights — that the complainants had slept long upon their rights, and by their want of reasonable diligence, others have been induced to contract in an undertaking against which these complainants had power to warn them with respect to these parties; therefore, this court must remain passive, and can do nothing. They s.aid that the complainant, by his negligence, or by failure to look after and protect his own interest, had permitted the title of another to grow into full maturity, and that he has, by lapse of time, created as complete a title in equity as would be imparted by an express conveyance.”
    See also 1 Johns. Ch. 314 ; 5 Johns. Ch. 188 ; 6 Johns. Ch. 160; 1 Sch. & Lef. 52; 3 Ohio, 506, 333; 2 Ohio, 580; 4 Ohio, 384; 11 Ohio, 445; 1 Ohio, 14, 124; 9 Ohio, 178; 8 Ohio, 62; 10 Ohio, 24, 524, 288.
    As the proceedings in the circuit court do not prevent the running of the statute of limitations, they, upon the same principle, do not prevent the alleged equity of the defendant from becoming stale.
    The complainant, before he can deprive the defendants of their legal title, must show to the court that he has more equity than' the holders of the legal title. Brashear v. West, 7 Pet. 608. And where both parties claim by an equitable title, the one who is prior in time'is deemed the better right; and where the equities ' are equal, the law must prevail. Boone v. Chiles, 10 Pet. 177; Phillips et al. v. Crammond, 2 Wash. Ch. C. 441; Fitzsimmons v. Ogden et al., 7 Cranch, 2.
    The difference of twenty years in Ohio is as great, probably, *as half a century in England, in the price of real estate. Time here, in these matters, is of far greater importance than there; and hence, delays indulged in by the English courts afford no warrant in principle for similar delays in Ohio. Sixty years there, is the ultimate limitation for real actions ; twenty-one years in Ohio. And this difference affords a fair rule for adjusting the differences in time between the two countries, in cases of chancery. And the difference in Ohio was far greater from 1812 to 1836, than it now is.
    The case of Jackson v. Williams, 10 Ohio, 69, is like the present. There a bill in chancery was filed, and a decree obtained for the legal title to the lot in dispute; but, as the legal title inured to the grantee.of their ancestor by his deed, with covenant of warranty, the court held that the complainants in chancery acquired nothing by their decree. In these cases, Kerr had parted with all his eqnity to these lands by his contracts, before the suit was commenced, and the legal title passed directly by the patents to the complainants, or those under whom they claim.
    Kerr’s heirs had no interest, legal or equitable, in the land; - and therefore there was nothing for the decree to operate upon.

      James H. Thompson, for defendant in review :
    Had a decree in the circuit court of the United States the same operative effect that a decree in our state courts has, in passing title, there would have been no necessity for filing the supplemental bill and bill of revivor, or the present bills, because the titles would have passed from Kerr or Kerr’s assignees toMoon’s devisees, by the original decree, and that would have ended all further litigation; but such is not the effect of such decree. 7 Ohio, 272, pt. 1. There was no other mode of carrying that decree into execution than the one adopted.
    . *Had Trimble, as assignee of some of Moon’s devisees, the right.to file the supplemental biil, in the nature of a bill of revivor, to carry the original decree into execution? Surely, on this point there can be no doubt; and if there were, this court would hardly be expected, collaterally, to reverse a decree of a court of competent jurisdiction, in executing its own decrees, made in a case of which it had undoubted cognizance. But there is no doubt. Story’s Eq. PI. 281, 343, and authorities there referred to. What, then, is the effect of the proceedings on this supplemental bill, in the nature of a bill of revivor? Do they continue the suit and relate back to the commencement of the original suit, form part of it, and reinstate it in all its bearings; or in law, was the original suit ever out of court? It is insisted, on principle and authority, that the original suit was never abated, and that the last proceedings are incorporated into and constitute a part of it. At law, when one of the parties dies the suit abates; but in equity, the rule is entirely different, and a bill of revivor puts all the parties in the same condition, when filed, as they were in at the happening of the death, and it carries with it the full effect of all the original proceedings. Story’s Eq. PI. 289. In 12-Pet. 171, this point is directly decided; and could there be any doubt of it on general principles, as the court say, in that case the act of Congress regulating the practice of the United States court has proscribed the rule for them; and, having construed it, the point must be considered as sottled. In 11 Ves. 194, 200, the same point is decided. If, then, it be true that all the influences of the original decree are imparted to the subsequent proceedings, which, in point of fact, only ordered such decree to be executed according to the new relations of the parties, and did not change the equities of those litigating in the least parfcieular, what effect has such original and amended proceedings on the titles of the .defendants? By the original decree, the equity was found with the complainants, and Kerr was ordered to convey, so as to pass to complainants all the title to all the *lands located under the four warrants, and the three tracts in controversy among others, so as'the same should be assured and warranted to them or their assigns' against himself and all persons claiming under him. Now, did this decree and the one under the last proceedings, which adopted it as part of it, and placed Trimble' in the exact position of Moon’s devisees, destroy, utterly vacate the titles of these complainants ; or are they, in the language of the law, “pendente lite ” purchasers, and have acquired nothing by their intermeddling with these titles while in controversy ? The rule of law is, and has been for three centuries, that' he who purchases a title in litigation takes nothing by his purchase, and the parties litigating are not bound to notice him in any way. His title is absolutely void, and passes no right which is not subject to the decree in the suit. Authorities are without number, but one directly in point of this court (deciding that the title of a 11 pendente lite ” purchase is void, not voidable) is sufficient. Bennet’s Lessee v. Miah Williams, 5 Ohio, 461.
    In 1 Story’s Eq. 383-386, and 2 lb. 501-503, the rule is clearly defined, and there can be no evading the assertion that a constructive trust must be forced on these parties. Constructive notice in equity can not be evaded, any more than it can be at law, nor can-proof be adduced to destroy it. The most usual illustration is that of a deed registered or recorded, where the law holds the subsequent purchaser bound by it, whether he has ever seen or heard of it; and in these cases, the conclusion in equity is equally fatal for these complainants. They are bound to know and notice all the assignments under which they claim their title, from the patent down to the warrant; and they must abide the exact part of the title, and no more than has been handed down by each transfer. They claim as the assignees of Joseph Kerr, who was the assignee, through R. Price, of J. P. Moon, and G. C. Friend, and Martha, his wife, formerly Martha Moon, who obtained the warrants, and assigned them as aforesaid,-a's the only heirs at law of said A..Moon, deceased. How is this ? *The record éstablishes that said Josiah P. Moon and Martha Moon, the wife of said George C. Friend, were children of the said A. Moon, deceased, by a former marriage, and in the will of said A. Moon were entirely cut off from any part or parcel in these warrants : and it further decrees that they had no right at all to said warrants or surveys made under them ; that their assignment of the same was void; that Price’s to Kerr was void; and, of course, it follows that Kerr'had nothing to áSsign, and that his assignment is void. Thus, the whole foundation of the complainants’ titles fall; and inasmuch as through these void assignments they have acquired the legal title to land covered by our warrants, and entries, and surveys, made in the name of Kerr, who is decreed to' be a trustee holding for us, the law charges them with individual notice, and applies to them the rule that whero a party purchases trust property, knowing it to be such, in violation of the objects of the trust, a court of equity forces the trust upon the conscience of the guilty party, and compels him to perform it, and to hold the pi’operty subject to it, in the same manner as the trustee himself held it. All this doctrine, in the fullest extent, has been sustained by this court. Reeder et al. v. Barr et al., Ohio, 446; Mattoon v. Clapp’s Heirs et al., 8 Ohio, 248; Miami Exporting Company v. Halley’s Heirs et al., 7 Ohio, 11, pt. 1; Bonner v. Ware, Wilcox’s Ohio, 468, and authorities there cited. In the last case, the court dismissed Bonner’s bill, filed against Ware et al., for quieting h'is title, on the ground that he was affected and bound by all the recitations in the patent, and must abide the regularity or irregularity of all the assignments, from the warrant down to the patent, and from that to him, although there had been three assignments before the patent issued, and several conveyances after, before the title came to Bonner, and the court go back and find the defect in the very first assignment of the warrant, as we insist they shall do in these cases.
    It has been, and doubtless will be, earnestly urged by the complainants, that as- the original suit seems to have been dormant *for a while before the bill of revivor was filled, the defendants were not pendente lite purchasers — because, say counsel, the rule is that the suit must be in full life and prosecution before one can be affected by the doctrine of lis pendens. The courts have decided this point in both ways, in the cases in Yesey referred to. There the purchase was made during the abatement of the suit. And there are other authorities to the same point.
    But grant the rule to be, as complainants’ counsel will contend it is, how are they to be helped by it? Here is the main defense, and I desire the attention of the court to its entire want of application, even conceding the rule of law to be that the suit must be in full life and vigor. All their authorities heretofore referred to (11 Wend. 456; 4 Cow. 676; 2 Dana, 412; 3 Ohio, 543), all go to establish that, in different states, of cases where a suit is dormant, and a purchase is made during such abatement, the purchaser is not to be considered as a lis pendens purchaser; all of which, for the present argument, is conceded, though the ease from Peters referred to, and the other authorities, are against it. Yet how is the concession to help the defendants ? Is not its whole effect met, and entirely destroyed by one single question, the answer to which is altogether against them, viz: Did any one of these complainants, or those under whom they claim, purchase, acquire, or perfect their title, during the time that the original suit was in abeyance — from 1827 to 1839? Not one of them. Fix the purchase when they may, at the .time the patents were issued, or when the entries and surveys were made, or even before they, were made, before the suit, still the doctrine of Us pendens sweeps away all their title. I
    In Lessee of Bond v. Swearingen, etc., 1 Ohio, 402, 403; and in Lessee of Allen v. Parish, 3 Ohio, 121, it is ruled to be law, that where the ancestor sells land under an entry and survey, by general warranty deed, and the patent afterward issues to his heirs, that the title inures to the purchaser; and, in all the authorities, we find the rule to be that, if one *sells land with an imperfect title, by warranty deed, and afterward acquires the legal estate, it inures to the purchaser, by reason that he is estopped by his warranty from asserting title in himself.
    I place these rules before the court for the purpose of inquiring how these complainants can connect themselves, legally, with the entries and surveys under which they claim.
    Lastly, the complainants claim to be protected by time and adverse possession.
    Will a court of equity extend the protection of the statute (even where it would not run at law, as in these cases) in furtherance of a fraud? 2 Story, 739; 10 Pet. 227, 247; 2 Johns. 230, 10 Ib. 475 ; 12 lb. 365 ; 16 Ib. 293; 18 lb. 355.
    Adverse possession can not, however, even at law, run in any case until the patents have issuod; and if the court would act in analogy to such statute in these cases, although it is manifest from the record that Moon’s heirs are non-residents, and although it is confidently conceived that time has no bearing on the circumstances of the cause; yet all this aside, it will bo found that twenty-one years have not elapsed since the date of the patents, before the commencement of these suits. 7 Ohio, 251, pt. 1; 5 Ohio. 289.
   Read, J.

The proposition of fact stands thus: Kerr, being the legal owner of said four military land warrants, made sale of the land in dispute, received the purchase money, and the purchasers went into possession. The equitable title to these land warrants was in Moon’s devisees. The complainants were the purchasers from Kerr, without notice of the equitable interest. Being thus in possession, under such purchase, Moon’s devisees commenced suit against Kerr in the circuit court of the United States, to compel an assignment of said warrants, and all entries, locations, surveys, and interests in land acquired under them. Before suit was commenced, Kerr *was the legal holder of these warrants, the complainants purchasers of the land in dispute, in possession, and bad paid the consideration money under contract of sale, binding Kerr to perfect to them the legal title. Moon’s devisees were the owners in equity of said land warrants ; but the legal title to the lands in dispute was in the United States. The complainants, then, had an interest in these lands before suit was brought, and should have been parties to the suit, which was instituted to deprive both Kerr and them of all right to said warrants, and all interest in the lands now in question.

The equities of the complainants then, and of Moon’s devisees, and of Trimble, who claims under them, are equal. But Trimble’s equity is the elder, and therefore better, and must prevail unless the junior equity has protected itself by clothing itself with the legal title. This' the junior equity has done, by patents to the complainants from the United States for the lands in dispute. But this.was done after suit commenced in the circuit court; and hence it is contended that the doctrine of lis pendens will deprive it of that advantage. An innocent purchaser, without notice of an outstanding equity, holding the legal title, will prevail'. But, pending suit to compel the legal title, if a person buy of the trustee, and take the legal title, although having no actual notice of the outstanding equity, the law charges him with such notice, and forbids him from taking any benefit from such purchase, from a principle of necessity, that the right to the very matter in dispute cg,n not be changed between the commencement and termination of the suit. If this were permitted, the trustee could always defeat the cestui que trust, by divesting himself, when sued, of the legal title. But this doctrine does not apply to persons who had an interest in the subject matter before suit commenced, and who should have been made parties. If such persons are not made parties, they may proceed, having an equity before suit, to clothe themselves with the legal title; because, having an interest before suit commenced, and being necessary parties, and not having been made such, neither equity nor the ^doctrine of Us pendens forbids them to protect themselves by acquiring the legal title. If it did, they would be affected by a suit to which they should have been parties, but were not without a day in court, to present their interest and claim their right. Hence, in such case, persons who should have been made parties, may proceed precisely as' though no such suit existed.

In this case the legal title to the lands in dispute was in the United States, and the complainants, by contract of purchase, had acquired an interest in these lands, as far as Kerr was concerned; and, having taken possession, paid the purchase money, and made improvements, Kerr was bound to secure to them the legal title. The lands being unlocated at the time, the contract required Kerr to take all necessary steps, by location, entry, and survey, to procure the title from the United States. This was the understanding of the parties, Kerr then being in possession of these warrants, and having the power to fulfill his contract; hence they acquired not only an equitable interest in the land, but the equitable right to have that land secured by the warrants in Kerr’s possession. In some of the cases now under consideration, tbe title under the contract was completed as far as entry, location, and survey, before said suit in the circuit court; but in others, entry, location, and survey were had after suit, and all the patents were procured after said suit. Thus, it will be perceived that no mere equitable interest was acquired from Kerr after suit was commenced. Hence complainants were not intruders after suit commenced, and they had, therefore, the perfect right to proceed and protect themselves by obtaining the legal title by procuring patents, and equity will not deprive them of that advantage. It is quite certain that this reasoning is conclusive as to those instances whore the location, entry, and survey were had before suit brought in the circuit court. But counsel contend that in those instances where entry, location, and survey were had after said suit, there is a difference, and that those instances must come within the doctrine of lis pendens; *that the legal title to the warrants was in Kerr, and the. land he contracted to sell, unappropriated and disconnected with said warrants, until after suit. There appears to be some difficulty in this view, but if there is, it operates both ways; because, if these lands were in no sense connected with the warrants before suit brought, the decree for the transfer of the legal title in the warrants could not affect the land; and if it was sought to claim the lands upon the ground that the warrants bad been attached to it after suit, by entry, location, survey, and patent, those facts should have been brought before the court by supplemental bill, and the persons in possession of those lands, prior to such supplemental bill, should have been made parties, but no such thing was done. Hence, in that view,-the decree of the United States court would not deprive them of their land. But these warrants, so far as these purchasers are concerned, can not be viewed as disconnected with these lands ; or rather, these purchasers can not be regarded as having no interest in the warrants. They contracted with Kerr for land: Kerr possessed that which was equivalent to land, and could secure land. The contract was made with Kerr, unquestionably, in reference to these warrants. The possession of land was delivered by Kerr to the purchasers, which was unlocated, and which he had the power to appropriate and receive. He contracted to take the necessary steps to secure these lands. The whole right to them, therefore, and the right to have them appropriated, by the warrants, resulted from the contract. This contract, and purchase of the land, was made before suit in the circuit court. No new contract was made with Kerr, and no new interest was required from him after suitKerr, after the suit, simply proceeded to perfect the equity which existed against him before suit. The contract coupled the warrant with the land, and money having been paid under it, and possession of the land taken, the equitable interest in the warrants was equal to the equity of Moon’s devisees; and, it must be conceded, that if Kerr alone was concerned, there would be no doubt as between him and the purchasers; and Whence, if the land is to be claimed by and through Kerr’s acts, Kerr had the power to contract that these acts should go to the benefit,of the purchasers; and hence Moon’s devisees, claiming from Kerr in this manner, should have made these purchasers parties; but it may be said that there might be a secret understanding, or bargain, between Kerr and the contract purchasers, and it could not be discovered who should be parties; but such is not the casé; these parties were in possession of these lands ; this was sufficient notice, to all the world, of their rights, if these rights were, in any manner, to be affected by the suit. We can not, therefore, regard the lands and warrants as disconnected, but hold that the contract of sale conferred an equitable right in these lands, as against Kerr, to compel the legal title; and this existing before suit, the legal title acquired afterward will not be disputed.

But there is another ground which should have prevented a decree in favor of Trimble, the respondent to this bill.

These complainants were in possession of these lands as early as 1806 and 1808, and have been in possession ever since, paid the purchase money, and made valuable improvements. They have been suffered to remain quietly in possession for some thirty or thirty-four years, before suit is brought against them, to deprive them of their lands. Stale equities will not be enforced; when a party, having an equity, neglects to enforce it, for a period which would constitute a bar at law, under the statute of limitations— in analogy to the statute — it will also be barred in equity.

Decree reversed and cause remanded for hearing.