text:
    Thomas Duncan, Sheriff of Jackson County, v. Thomas Drakeley.
    A sheriff can not be amerced for not executing a ca. $a. from another county, unless the indorsement “funds deposited,” etc., is made upon the writ, nor can a tender of his fees be substituted in the place of such indorsement.
    This is a certiorari to the court of common pleas of the county of Jefferson.
    The record shows that, at the August term of the court of common pleas of Jefferson county, 1839, Thomas Drakeley recovered a judgment against William Tullough and Alexander Armstrong, for the sum of §981.11 damage, and §6.91 costs of suit.
    At the same term of the court, on motion of Stokeley & Black, attorneys for the plaintiff, founded upon the affidavit of Daniel Darrah, agent of the plaintiff, that William Tullough, one of the defendants, had converted, or was about to convert, his property into money, with intent to prevent its being taken in execution, an order was made that a ca. sa. should be issued. This was accordingly done, and the writ directed to the sheriff of Jackson county. This writ bears date August 22,1839, and indorsed in the 46] usual form, with *the names of the parties, the date and amount of the judgment, etc.
    The writ was delivered to the sheriff of Jackson county, and by him returned on September 1, 1839, indorsed as follows: “The within writ not served, the clerk not having indorsed that funds were deposited with him to pay my fees. September 1, 1839. John Duncan, Sheriff, J. C.”
    On February 17,1839, Drakeley by his attorney, caused a notice to be served on the plaintiff in certiorari, that at the next term of the court of common pleas of Jefferson county, he would move the court to amerce him for refusing to serve and execute said writ without cause.
    The case came on for hearing at the May term of the court of common pleas; and that court found, among other things, that “the said plaintiff tendered and offered to the said defendant, Duncan, the sum of fifty dollars, for the express purpose of paying to the said defendant, Duncan, his costs to accrue in the service of said writ of execution, and for the serving of the same; that the said sum was more than sufficient to pay all legal fees for service, and that said Duncan refused to serve and execute said writ according to- the command thereof,” etc.
    Upon this state of facts the court amerced “the said defendant, Duncan,” in the sum of $1,032.79, the amount of the judgment with interest, and in the further sum of $103, being the penalty of ten per cent, thereon, for which judgment was rendered.
    To reverse this judgment, this writ of certiorari is prosecuted. A number of errors are assigned, but it is only necessary to notice the following:'
    “ 1. The affidavit on which said writ of ca. sa. was issued, was . insufficient, being made by one Daniel Darrah, as agent of the said plaintiff, but who was not the applicant; for issuing said writ, instead of being made by the ‘judgment creditor or his lawful attorneys,’ as the law directs.

      “ 2. It does not appear that any other testimony than the affidavit of said Darrah was adduced to the court or judge, *on [47 the application for issuing said writ of capias, of the truth of the fact alleged in said affidavit, and upon which said writ of ca. sa, was issued.
    “ 3. It does not appear that any affidavit was made or filed as against said Armstrong, one of the defendants, against whom the ca. sa. was issued.
    “4. The said writ ofca. sa. was not indorsed by the clerk, ‘funds are deposited to pay the sheriff on this writ,’ as is required by law.”
    Bostwick, for the plaintiff in certiorari.
    Peck, contra.
    As the case turns upon the construction of statutes, and no authorities are cited, the discussion of counsel is not inserted.
   Hitchcock, J.

Before proceeding to the consideration of this case, it may be proper to remark that in proceedings under the statute authorizing the amercement of an officer, great strictness is required, and he who would avail himself of the remedy therein provided, must bring himself both within the letter and spirit of the law. It is right that it should be so, because the remedy is. summary, and in its consequences highly penal. There is no trial by jury, and but little, if any, discretion is left to the court. The causes for which a sheriff may be amerced are, for neglecting or refusing to execute any writ of execution to him directed, and which has cometo his hands; for neglecting or refusing to sell any goods and chattels, lands and tenements; for neglecting to call an inquest to appraise lands, and return a copy thereof forthwith to the clerk’s office; for neglecting to return any writ of execution to him directed on or before the second day of the term, except in the county of Hamilton ; for neglecting to return an inventory of the goods and chattels by him taken in execution, unless he shall return that he hath levied and made the amount of debt, damages, and costs; for neglecting and refusing *to pay over on [48 demand, to the plaintiff, all moneys by him collected or received for his use; and for neglecting and refusing to pay over to the defendant, on demand, all moneys received on the sale of any property over and above what is sufficient to satisfy the writ of execution. 29 Ohio L. 109. In each of these cases, the sheriff, on motion in open court, shall be amerced in the amount of debt, damages, and costs named in the execution, with ten per cent, penalty thereon for the use of the plaintiff or defendant, as the case may be. While in an action at common law a plaintiff, in any of these cases, would recover only the damages actually sustained, by seeking his remedy under this statute he is sure to recover, if he recovers at all, the full amount of his debt, with the additional penalty. The object of the law is, undoubtedly, to induce fidelity on the part of a sheriff, but if carried into execution it sometimes operates very severely.

The three first errors assigned in this case refer to the proceedings which transpired before the writ of ca. sa. was issued, and are based upon the hypothesis that- no sufficient cause was shown for issuing the writ. Previous to the act of March 19, 1838, “to abolish imprisonment for debt,” a ca. sd. might have been issued, as a matter of course, to enforce the collection of a judgment. But since the enactment of this law such writ can be issued only in certain specified cases, and in pursuance of an order of the court rendering the judgment, or of a judge of that court. 36 Ohio L. 76. One condition upon which such writ may be issued, is where the defendant “has converted, or is about to convert, his property into money, with intent to prevent its being taken on execution.” Of the existence of this fact, the court or judge must be “satisfied by the affidavit of the judgment creditor, or his lawful attorney, and such other testimony” as shall be adduced. The attorney referred to in the statute, I apprehend, is an attorney at law. Such would seem to be the evident meaning.

In the case before us the affidavit was not made either by the judgment creditor or by his attorney in court, but by a third peril)] son, as agent of the ^creditor. The law speaks of “ other testimony,” in addition to the oath of the party, and no such testimony was introduced. It is clear that there was not a literal compliance'with the terms of the statute, and it is at least doubtful whether there was a substantial compliance. Another objection taken in the case is, that here were two defendants, with respect to one of whom no affidavit was filed, and yet the ca. sa. was issued against both. Such a case does not seem to have been in the contemplation of the legislature at the time the law was passed. At least nothing is said about a case so situated. If it be improper to imprison for debt, unless where there is prima fa:ie evidence of a fraudulent act, or fraudulent design on the part of the debtor, it would seem rather hard to imprison one individual upon evidence that another was about to commit a fraudulent act. It certainly would not be in conformity with the spirit of this statute, for under it I conceive that no man can, strictly speaking, be imprisoned for debt. The imprisonment is rather in the nature of a punishment for fraudulent conduct. But in the opinion of a majority of the court, it is not necessary in this case to decide any of these questions. The sheriff has no connection wi.th them. He can no more shield himself for neglect, in consequence of an error which the court may have committed in making the order, than he could by showing that there was an error in the original judgment. The execution having been issued by competent authority, would have protected him in the performance of any act necessary to enforce it.

The fourth error assigned is, that the writ was not indorsed, “funds are deposited to pay the sheriff on this writ.”

By section 20 of the act “ regulating the fees of officers in civil and criminal cases,” 29 Ohio L. 226,it is enacted, “that it shall be the duty of each and every clerk, when he issues such writ to a sheriff or other officer discharging the duties of sheriff in any other county in this state, to indorse on the back of said writ these words : ‘ Funds are deposited to pay the sheriff on this writ,’ and subscribe *his name thereto ; and no sheriff or other officer [50 shall be bound to execute and return any writ of capias ad respondendum which shall not be thus indorsed.” In the case before the court, the writ was a capias ad respondendum, and was not thus indorsed. And this was the reason assigned by the sheriff for not executing it. The object of requiring this indorsement is, that the sheriff to whom the writ is directed may have assurance that his fees are secured. The record before us shows, that the judgment creditor tendered to the sheriff an amount more than sufficient to satisfy all fees that could accrue, and it is urged by counsel that this is equivalent at least to an indorsement on the writ. It certainly is sufficient to satisfy the court that the sheriff did not refuse to execute the writ because he was apprehensive of any loss of fees. He must have been actuated by some other motive, and possibly, in an action at common law for a misfeasance in office, he might find it difficult to defend on the ground that the required indorsement was not made. Upon this point we express no opinion. But this is not such an action. It is a proceeding on a motion to amerce, in which ease the party prosecuting must, as before stated, bring himself within both the letter and the spirit of the law. Does he do it here? The statute is explicit that the indorsement shall be made, and it is equally explicit, that if it be not made, and the writ be a capias ad respondendum, “ no sheriff or other officer shall be bound to execute and return ” it. Can he be amerced for not doing that which the law declares he shall not be bound to do ?. We think not, and that the court of common pleas erred in deciding otherwise.

Judgment reversed..


source: Caselaw Access Project

author: Grimke, J.

license: Public Domain

text:
    *The State of Ohio, for the use of the Commissioners of Guernsey County, v. Samuel Findley and others.
    A bond given by a county treasurer, the condition of which is, that he shall faithfully and impartially discharge all the duties of the office, is a good statutory bond for so much as is prescribed by the statute and comprehended in the condition, even though it may be void for the residuo.
    The oath of office is a mere ministerial act, and not a condition precedent to entering upon the duties of the office, nor will the omission to take it by the principal in an official bond discharge the sureties.
    This is an action of debt from the county of Guernsey.
    The suit is brought against Hamilton Robb and his sureties, upon a bond for the performance of his duties as treasurer of the county. The declaration contains two counts, in each of which the bond with the condition is set out. That condition, after reciting that Hamilton Robb had been duly elected treasurer of the county, is in these said words: “Now if the aforesaid Hamilton Robb, treasurer as aforesaid, shall faithfully and impartially discharge all the duties of his said office agreeably to law, then the above obligation to be void,” etc. In the first count, it is averred that Robb, on January 5, 1838 (being the first Monday), took an oath that he would faithfully discharge all the duties of the office. The second contains no such averment. It is averred in both counts that Robb, on June 5, 1838, became and was in fact treasurer until March 1, 1839, when the office became vacant. The breach assigned is, that Robb, while acting as treasurer, received money which he failed to pay over. To this declaration the defendant demurred. The demurrer was overruled in the common pleas, and the defendants, having'leave for that purpose, plead the general issue, and five special pleas, the four first of which aver that Robb did not take an oath of office as required by the statute, and the sixth traverses the allegation in the first count of the declaration that Robb did not take an oath, etc. To these five last pleas the plaintiff has ^demurred. The demurrer to the declaration [52 raises these questions:
    1. Whether the instrument sued upon is a good statutory bond.
    2. If not, whether it is a good bond at common law.
    3. Whether Robb was entitled to act as treasurer before he had given the bond required by the act.
    The demurrer to the pleas presents a question similar to the last, that is, whether Robb was treasurer before he had taken the oath.
    B. S. Cowen, for the plaintiff:
    It is conceded, that the condition of this bond is more comprehensive than is required by the statute; still, inasmuch as the statute does not declare such bond void, and as there is nothing in it against public policy or morals, it must be held good for all the purposes contemplated by the statute. United States v. Bradley, 10 Pet. 343; Fanner & Brown v. United States, 5 Pet. 374; United States v. Vanzandt, 11 Wheat. 184.
    Robb having entered upon the duties of his office after the execution and delivery of the bond, it is too late for his securities to say that the oath of office was not administered. Welland Canal Company v. Hathaway, 8 Wend 483; Hughes v. James, 3 J. J. Marsh. 700; Pendleton v. Bank of Kentucky, 1 Mon. 171, 181; Bernard v. Lewis, 4 Littell, 148; Governor v. Twitty, 1 Devereux, 153; Hunt v. Bridgham, 2 Pick. 581; Phil. Ev., Cowen & Hill’s notes, pt. 1, p. 670.
    Harper & Bell, for the defendants:
    The omission by Robb to take the oath of office operates to discharge his securities. The oath is designed to protect not only the public, but the sureties also. They execute the bond upon the supposition that the principal will, act under the sanction of an oath. Unless all the formalties required by law be complied with, the bond is an escrow, and nothing more. The rule is well settled, that the liability of a surety is not to be extended by implication. 58] Miller v. Stewart, 9 *Wheat. 702; State of Ohio v. Crooks, 7 Ohio, 221, pt. 2.
    In Kentucky, a bond directed by statute to be executed and attested in a particular manner is void, unless the execution and attestation are in accordance with the provisions of the statute. Hardin v. Owings, 1 Bibb, 214.
    The condition of the bond differs from that prescribed by the statute, and therefore the commissioners of the county had no power to receive it. Their authority is limited to certain specified duties. Not so with the United States, and on this distinction turned the cases of the United States v. Tingey, 5 Pet. 115 ; Fanner & Brown v. United States, 5 Pet. 374; United States v. Bradley, 10 Pet. 344; Postmaster-General v. Early, 12 Wheat. 136.
    But a recovery can not be had on this bond, because its condition is indivisible. Where a condition is good in part and bad in part, and the good can be separated from the bad, the one may be retained and the other rejected. Not so, however, where, as in this case, the condition is single and indivisible. United States v. Tingey, 5 Pet. 374; Bartlett v. Willis, 3 Mass. 105; Fanner & Brown v. United States, 5 Pet. 388; Postmaster-General v. Early, 12 Wheat. 136.
    The bond must be substantially such as is authorized by the statute, otherwise it can not be enforced. Lowther v. Lawrence, Wright, 188; Collier v. Johnson, 7 Ohio, 235, pt. 1; Gardner v. Woodyear, 1 Ohio, 170; Commissioner of Insolvents v. Way, 3 Ohio, 103.
    W. W. Tracey, on the same side, cited these additional authorities: Reynolds v. Rogers, 5 Ohio, 169; The King v. Courtenay, 9 East, 246 ; The King v. Carter, Cowper, 220; The King v. Thorndike, 8 East, 543; Coulbourne v. Ellis, 5 Mass. 427.
   Grimke, J.

The statute prescribing the duties of county treasurers provides that a bond shall be given conditioned for the pay-54] ing over according to law all moneys which shall be *received for state, county, township, or other purposes; it also directs that each county treasurer shall take and subscribe an oath that ho will faithfully discharge all the duties of his office. It is evident, that the condition of the bond is not in its terms in conformity with the provisions of the statute; indeed, it is not denied that it is more comprehensive than the law requires; but it is contended ' that inasmuch as the paying over according to law all moneys which shall come into his hands, is one of the duties of a county treasurer, and the very one for which bond is required to be given, that the bond, in this instance, does include the very condition prescribed by the statute, and that therefore no objection can be made to a recovery for a breach of that condition; in other words» that if the bond is not wholly void, the plaintiff is entitled to recover upon it for so much as is good, without touching the question whether so far as concerns the residue it is a good obligation or not.

It was once supposed, that if any part of the consideration or subject matter of a contract was contrary to a statute, the whole would be invalid; and a distinction was taken between the common law and a statute, so that if only a portion of a deed or bond was contrary to the common law, the unlawful part, if it cou'ld be separated from the rest, should be rejected, and the remainder of the instrument should stand good. But there are many instances in which the invalidity of part of a deed, by virtue of a statute» has been held not to destroy the whole ; and the remainder being legal and distinct has been upheld, there being no express words in the act to render the whole void. Thus, the mortmain act, 9 G. 2, c. 37, makes void all grants to charitable uses; but where a deed contained several limitations, one of which was void, as being to a charitable use, it was held that the other limitations were not affected, although included in the same deed. Thompson v. Pitcher, 6 Taunt. 359. So it was decided upon the property tax act, that a provision inserted in violation thereof in a deed, that the tax should not be allowed or deducted from payments to be made, shall not affect the validity of the rest of the instrument. Readshaw v. Balders, and Fuller v. Abbott, 4 Taunt. 57, *105, [55 113. The distinction, when the cases are closely and thoroughly examined, is not between the different effect and power of the common and statute law. It turns rather upon the difference between those instruments which, on the one hand, contain provisions and conditions which are merely illegal, and those which are malum in se, as well as contrary to the enactments of some positive law. The case of Thompson v. Pitcher, 6 Taunt. 359, already referred to, contains a full and clear exposition of the doctrine. C. J. Gibbes, referring to the argument, that if the deed was void as to part, it must be void as to the whole, says, “ if the objection had been derived from the common law, it is admitted that would not be the consequence.” But he adds, “ it is urged that the statute makes the whole deed void; the truth is, however, there is no difference between a transaction void at common law and void by statute. If an act be prohibited, the construction to be put on a deed conveying property illegally, is that the particular clause which so conveys it is void equally, whether it be statute or common law. But it may happen that the statute goes further, and says that the whole deed shall be void, to all intents and purposes, and when that is so, the court must so pronounce, because the legislature have so enacted, not because the transaction prohibited is illegal."

The doctrine, that there is no difference between a transaction void at common law, and one void by the statute, may seem to be the promulgation of'an entirely new principle, and to contradict, in the plainest terms, decisions which had been previously made. But it is in reality supported by the earliest authorities, and no misapprehension could have existed as to their true import, if a full statement of the circumstances under which they were decided had always been given. Sergeant Williams, in a note to the case of Butler v. Wigge, 1 Saund. 66, n. 1, makes the distinction between the statute and common law. “ If a bond is- given,” he says, “ with condition to do a thing against an act of Parliament, and also to pay a just debt, the whole bond is void, because the letOer of the statute makes it void, and is a strict law,” and he cites 56] *Hob. 14. The words, “because the letter of the statute makes it void,” contains the true solution of the difficulty. Thus, in Malever v. Redshaw, 1 Mod. 35, which was debt upon a 'bail bond, Mr. Justice Twisden said he had heard Lord Hobart say, “ the statute is like a tyrant, when he comes he makes all void, but the common law is like a nursing father, making void only that part where the fault is.” But he added, that Lord Hobart had put this doctrine upon the ground that the statute then in question, directing sheriffs to take bond, had expressly declared, that if a bond was taken in any other form by color of their office, that then it should be void. The case of Harrison v. Cole, 8 East, 236, goes even further than this. It was there held, that notwithstanding the instrument (a bill of sale and mortgage of a ship) was declared to bo utterly null and void to all intents and purposes, yet that a covenant in the same instrument to repay the money lent was good as a personal covenant. And this doctrine was subsequently ratified in Howe v. Synge, 15 East, 440; Greenwood v. The Bishop of London, 5 Taunt. 727 ; Wigg v. Shuttleworth, 13 East, 87. In Greenwood v. The Bishop of London, the' court founded itself upon the true distinction between those cases where the statute had declared the instrument taken in any other form than that prescribed to be utterly void, and those where it had declared it void only as to the illegal part. It was said, that it was not as in the case of usury, where the instrument was avoided by the positive and inflexible enactment of the statute, but it was left to the operation of the common law, which rejecting the illegal part leaves the rest untouched, if they can be fairly separated.” Thus, the supposed distinction between the peculiar efficacy of the common law and the disabling property of a statute, is altogether discountenanced, and a distinction much more important and sensible is erected in its place. If there are a few cases which seem to contradict this host of authorities, it can only be attributed to the fact, that the qualifications and limitations under which the principle was originally announced, have been entirely lost sight of. The English courts.have never failed to retrace their *steps, where it has appeared that a decision, or [57 even a series of decisions, have been inadvertently made, and without a thorough examination of the law. It was, I think, in Kingdom v. Nottle, 1 M. & S., that the court of king’s bench overruled the whole course of decisions which had been previously made, as to who should sue, the heir or the executor. The law had been understood and declared very differently for more than-half a century. But it had stood upon the single dictum of'. Comyn, for, on examining the authority to which he referred, it was found to contradict, instead of lending support to this dictum.

But the American authorities are as strong and convincing as- those which have been just referred to. The eases of the Postmaster-General v. Early, 12 Wheat. 136; Farrar & Brown v. United States, 5 Pet. 373; Supervisors of Allegheny County v. Van Campen, 3 Wend. 48, and the United States v. Bradley, 10 Pet. 343, all uphold the doctrine as delivered in the English courts. In Farrar v. Brown, where the suit, as in this case, was upon an official bond, the law of the United States had declared-that surveyors should give bond conditioned for the faithful discharge of the duties of their office, and for the faithful disbursemeut of public money. The bond sued upon contained only the first part of this condition. Judge Johnson, in delivering the opinion, remarks, that “ the court feel no difficulty in maintaining that where the conditions are cumulative, the omission of one can not invalidate the bond, so far as the other operates to bind the party.” The only difficulty which was felt, was, whether, when the law was express that both should be inserted, the one could be held to be comprised in the other. But for the language used in the statute, he adds, “the court has no doubt that the case would be open to proof that the disbursement of money was one of the known and habitual duties of the office, and included in the general words,” In the United States v. Bradley, 10 Pet. 343, which was also upon an official bond, and where the condition was not, in its terms, in conformity with the statute, it was held that there 58] was no solid distinction in cases like the *one before the court, between bonds containing conditions illegal but not malum in se, and those containing conditions illegal by the express prohibitions of statutes; that in each case the bonds are void as to such conditions as are illegal, and good as to all others which are lawful. The only difference between this case and the one before the court, is, that in the former the bond was conditioned for the performance of many separate duties, some of which were not contemplated nor prescribed by the statute, while the bond given by Robb is conditioned generally for the performance of the duties which are required by law. And it might be supposed that that ■part which is void for excess can not be severed from that which is good, as it can where the condition is divided into distinct parts, containing an unexceptionable part in one clause and an exceptional part in another. But to balk or hesitate here would be to fiy after the shadow after we had got possession of the substance. That part which is legal is marked out in the statute book itself, and is, therefore, as completely severable from the rest, as if tile two parts were separated in the condition of the bond. There can be neither mistake, confusion, nor injustice in so holding. The law is not so absolutely a cabalisti■cal science as to refuse to listen to the interpretations of good ■sense. The case put by the court, in Farrar v. Brown, is precisely this case. If, say they, the condition required by the law is not the condition contained in the bond, but is contained and comprehended within it, the bond would be as good as if it pursued the very words of the statute. I think, then, there can be no doubt that this is a good statutory bond; if it were not, it would, undoubtedly, be a good bond at common law.

The only remaining question is, could Robb be considered as treasurer before the oath of office was taken ? If an officer be created by letters patent, he is a complete officer before he is sworn. This is almost the only way in which administrative offi- • cers are created in Great Britain; but it can not be denied that the creation of an officer by election is as high, if not higher, source of title to the officer. By the statute, 25 *G. 2, com- [59 monly called the test act, it is enacted, that all officers, civil and military, shall take the oaths of allegiance and supremacy, and in case of neglect shall be disabled to hold the said offices. Though these words are so very strong, yet it has been holden, that the acts of one under such a disability are good. 2 Mod. 193; 10 Mod. 185 ; Ld. Raym. 299.

But there are a class of persons who derive their office, even in England, from election. The officers of towns corporate are thus created, and by the statute of 13 Car. II, it’is declared, that in case certain oaths are not taken, the election shall be utterly null and void, yet the same authorities just cited have declared the same doctrine, which was considered applicable to the test act. It must be recollected, that the question is not made in an information, or quo warranto, where it would directly and properly arise; it is made after the state has consented to waive the objection,^after the principal has enjoyed the benefits and emoluments of the office, and for aught that appears, in consequence of the very bond which has been given. The taking of the oath can only be considered, as directory to the officer, and not as a condition precedent to his authority to act as treasurer. The demurrer to the declaration must then be overruled, and the demurrers to the second, third, fourth, fifth, and sixth pleas must be sustained.


author: Lane, C. J.

text:
    The Executors of James Findlay v. The Bank of the United States.
    Where the indemnity of a debtor is lost by the act of his creditor, the collection of the debt will not enforced.
    This is a bill in chancery from the county of Hamilton.
    Findlay, Davis, and Wheeler were securities for the Cincinnati Manufacturing Company, in a note to tho Bank of the'United 60] States, on which a judgment was rendered, in *the Circuit Court of the United States for the District of Ohio, in September, 1822, for the sum of $11,407. On this judgment execution was issued and levied on Findlay’s es.tate.
    To secure them against this responsibility, the Cincinnati Manufacturing Company, in October, 1820, gave a judgment to Findlay, Davis, and Wheeler, for the sum of $11,407.
    At the same term, a judgment was entered against the manufacturing company, in favor of the Miami Exporting Company, for $17,000.
    Át the next term, December, 1820, Lytle and Avery recovered a judgment against them for $49,645.
    Executions to collect these judgments were levied on the lands of the company.
    In November, 1823, Findlay, Davis, and Wheeler caused the lands of the company to be sold on their execution. The sale was confirmed, and a deed ordered, but not made.
    In 1826, the Bank of the United States acquired the rights of Lytle and Avery.
    On March 30, 1829, the parties were negotiating an arrangement, and a contract was drafted, purporting to be between the Bank of the United States on the one part, and Findlay, Davis, and Wheeler of the other, by which Findlay, Davis, and Wheeler transferred to the bank the judgment, with all its incidents, which they held against the manufacturing company, which assignment was accepted under the following conditions : that the bank was at liberty to use all efforts to show the lien of the judgment to be posterior to that imposed by the judgment of Lytle and Avery, but that if the lien of the Findlay, Davis, and Wheeler judgment was finally maintained, the assignment was accepted *as a satisfaction for the judgment held by the bank against Findlay, Davis, and Wheeler. This contract was signed by Davis and Wheeler, but not signed by Findlay. On the same day, Davis and Wheeler conveyed to the bank, by deed, the lands they had acquired by the judgment. On the same day, too, Davis made with the bank an arrangement, conditioned to be void, unless *Findlay acceded [61 to the contract just specified within one month. In the next July> the bank dispensed with that condition, and accepted from Davis an execution of his private arrangement, without exacting the assent of Findlay.
    At the August term, 1829, an order of court was made, purporting to be by the consent of parties, that the valuations and sales, made under the Findlay, Davis, and Wheeler judgment, the Lytle and Avery judgment, and a prior judgment of one Henry Hafer, should be set aside, and a new sale had, in divided parcels.
    This order was made upon an agreement of counsel, that the new sale should convey a valid title ; and that all questions concerning priorities of lien should be made in the appropriation of the money. These questions were finally settled in this court, in 4 Ohio, 457, and 5 Ohio, 333. By these adjudications the money was applied .upon the Lytle and Avery judgment, the court holding that under tho order of August term, 1829, the lien of Findlay, Davis, and Wheeler was postponed, because their judgment had become dormant.
    This bill was filed in 1838, praying the court to order the bank to credit its judgment against Findlay, Davis, and Wheeler with the amount of the judgment against the Cincinnati Manufacturing Company, assigned to the bank under the contract of March, 1829.
    The main point in the case was the question of fact, whether or not the Bank of the United States were equitable owners of the Findlay, Davis, and Wheeler judgment, and assented for them to the order of August term, 1829. This question was fully argued by N. Wright and Y. Worthington, for the plaintiffs, and by C. Fox and S. P. Chase, for the defendants.
    Mr. Wright
    cited 1 Story’s Eq. 480, sec. 502; Verplank v. Sterry, 12 Johns. 536 ; Lytle v. Cin. Man. Co., 4 Ohio, 459; Norton v. Beaver, 5 Ohio, 178 ; 1 Story’s Eq. 529, sec. 560, p. 595, sec. 642; Simpson v. Hart, 14 Johns. 63; Souverbye v. Ardon, 1 Johns. Ch. 251; 3 Dyer, 167, b ; 4 Cruise. Dig. 80, *sec. 80; 1 Shep. Touch. [62 57, 59; 4 Com. Dig. 273, Fait, A. 3; Wheelright v. Wheelright, 2 Mass. 447; Garnons v. Knight, 5 Barn. & Cress. 671; 12 Eng. Com. Law, 351; Moss v. Riddle, 5 Cranch, 351; Doe v. Howland, 8 Cowen, 284.
    Mr. Worthington
    cited these additional cases: Reily v. Mi. Ex. Co., 5 Ohio, 333; 1 Chit. Pl. 262; 3 Thos. Coke, 323; Walker v. Stokoe, 1 Ld. Raym. 151 ; Crawford v. Satchwell, 2 Strange, 1218; Dickenson v. Bowes, 16 East, 110; African Soc. v. Varick, 13 Johns. 38; Medway Man. Co. v. Adams, 10 Mass. 360 ; Southgate v. Montgomery, 1 Paige, 47 ; Jackson v. Wood, 3 Wend. 32 ; Smith v. Sherwood, 4 Conn. 276; Church v. Leavenworth, 4 Day, 274 ; Atwater v. Day, 4 Day, 431; Manny v. Harris, 2 Johns. 24; Brockway v. Kinney, 2 Johns. 210; Ogden v. Cowley, 2 Johns. 277; Outram v. Morewood, 3 East, 346; Wright v. Butler, 6 Wend. 288; Gardner v. Buckbee, 3 Cowen, 120; Buell v. Cook, 5 Conn. 208; Betts v. Starr, 5 Conn. 550; Hubbard v. Norton, 10 Conn. 433; 3 Thos. Coke, 431; Sintzenick v. Lucas, 1 Esp. 43; Wood v. Jackson, 8 Wend. 16 ; Lawrence v. Hunt, 10 Wend. 80 ; Etheridge v. Osborne, 12 Wend. 399; Wood v. Genett, 18 Wend. 117; Howland v. Ralph, 3 Johns. 20 ; Leyman v. Abeel, 16 Johns. 30 ; Phillips v. Berrick, 16 Johns. 136; Trevivan v. Lawrence, 1 Salk. 276; S. C., 2 Ld. Raym. 1036 ; 6 Tenn. 607; Bartholomew v. Candee, 14 Pick. 170; Critchfield v. Porter, 3 Ohio, 518; Reigal v. Wood, 1 Johns. Ch. 402; Barnesly v. Powell, 1 Ves. Sen. 120, 284, 289; Sholtenkirk v. Wheeler, 3 Johns. Ch. 275 ; De Riemer v. Cantillon, 4 Johns. Ch. 85; French v. Shotwell, 6 Johns. Ch. 235; 1 Story’s Eq. 179; Marine Ins. Co. v. Hodgson, 7 Cranch, 336; S. C., 2 Pet. Cond. 516; Ludlow v. Kidd, 4 Ohio, 244; Pawling v. United States, 4 Cranch, 219; S. C., 2 Pet. Cond. 92; Frost v. Beekman, 1 Johns. Ch. 288; Monroy v. Monroy, 1 Paige, 385; Jackson v. Richards, 6 Cowen, 617; Jackson v. Perkins, 2 Wend. 308; Jackson v. Leek, 12 Wend. 105 ; Mi. Ex. Co. v. Bank United States, Wright, 254; Union Bank v. Geary, 5 Pet. 112.
    *Mr. Fox
    cited Critchfield v. Porter, 3 Ohio, 518.
    Mr. Chase
    cited Mi. Ex. Co. v. Turpin, 3 Ohio, 514; Douglass v. Huston, 6 Ohio, 156; Reiley v. Mi. Ex. Co., 5 Ohio, 335.
   Lane, C. J.

The relief claimed in the present case depends on the position assumed *by the plaintiffs, that the Bank of the United States accepted the transfer of the Davis judgment, as made by Davis and Wheeler without Findlay, undertook its management as owners, and assented for them to the order of court, setting the sale aside, by which their priority was lost; that they are responsible for the loss arising from their mismanagement; that it is inequitable and unjust for the bank to enforce its judgment against Eindlay, Davis, and Wheeler, arising on a liability for the Cincinnati Manufacturing Company, and for which they were indemnified by the priority of their lien, when that priority has been lost by the acts of the agents of the bank.

The case has been discussed by counsel, in various points of view, and it is not necessary here to detail the testimony. , But we find, from proof, that it is altogether improbable that the consent, either of Findlay, Davis, or Wheeler, or of their counsel, was given to the setting aside the sale; that the order was made, either upon the bank’s assuming to give the assent of Findlay, Davis, and Wheeler, in the then existing relation between them, or that the assent was taken for granted, or inadvertently overlooked by the counsel for the bank and the. Miami Exporting Company. In either alternative, its consequences are equally disastrous to the holders of the lien; for without fault or negligence, they have lost the security, by which they would be protected from loss on their liability for the manufacturing company; and the money which ought to have extinguished their debt to the bank, is now held by the bank as a payment of another judgment.

The case, therefore, is resolved by the pripciple, that it is *uneonscientious for a creditor to enforce his debts against [64 a debtor whose security is impaired or destroyed by his act.

Decree for the plaintiffs.


author: Wood, J.

text:
    Samuel Gilbreath and Wife v. George Alban and William Kennon, Executors of John Winter.

      “ I give and bequeath to my wife, Mary, all the amount of moneys and interest that may be recovered of and from Dr. Kirker, for the purchase of the Penrose estate, to her and her assigns,” is a specific legacy, and the receipt of the money by the testator is an ademption of it.
    This is a bill in chancery from the county of Belmont.
    The object of the suit is to compel the respondents, as the executors of John Winter, to account for and pay to the complainants a certain legacy, to which they, in right of the wife, claim to be entitled nnder the will.
    The material clause of the will, under which the claim of the wife, as legatee, arises, is 'in these words : “I also give and bequeath to my said wife, Mary, all the amount of moneys and interest that may be recovered of and from Dr. Kirker, for the sums due me on the purchase of the Penrose estate, to her and her assigns.” The bill further states, that this money, so due from Dr. Kirker, was afterward received by the testator, in his lifetime, amounting to $1,298.08. The respondents demurred to the bill.
    J. Wier, for the plaintiffs:
    It is now well settled both in England and in the United States, that where a pecuniary or demonstrative legacy is given, and a particular fund, stock, or other security is pointed out in the will to satisfy it, there, although the fund fails, or the stock or other security is changed, called in, or fails, such legacy is to be made good 65] out of the general assets. Walton v. Walton, 7 *Johns. Ch. 262; Coleman v. Coleman, 2 Ves. 639; Husbands v. Husbands, 1 Vern. 95; Earl of Thomond v. Earl of Suffolk, 1 P. Wms. 461; Purse v. Snaplin, 1 Atk. 415 ; Orm v. Smith, 2 Vern. 681; 1 Bro. C. 565; Roberts v. Pocock, 4 Ves. 150 ; Wilson v. Brownsmith, 9 Ves. 180; Deano v. Test, 9 Ves. 146 ; Lambert v. Lambert, 11 Ves. 607; Sibley v. Perry, 7 Ves. 529; Guillaume v. Adderly, 15 Ves. 383, 389; Le Grice v. Finch, 3 Merivale, 49; Brondson v. Winter, Ambler, 57; Ashburner v. McGuire, 2 Bro. C. 114, and authorities there cited; Simmons v. Valance, 4 Bro. C. 345 ; Smith v. Fitzgerald, 3 Ves. & Bea. 2. The principle of ademption is, that the thing given does not exist at the death of the testator. Fryer v. Morris, 9 Ves. 363; Barker v. Rayner, 5 Mad. 217; Sel wood v. Mildmay, 3 Ves. 310. The intention of the testator is the true criterion, that is, did he intend to revoke the gift or not? Coleman v. Coleman, 2 Ves. 639; Graves v. Hughes, 4 Mad. 381; Walton v. Walton, 7 Johns. Ch. 264. A specific legacy is a bequest of a particular chattel specifically described, and distinguished from all other things of the same kind. Purse v. Snaplin, 1 Atk. 417. Or it may be something of a particular species which the executor may satisfy by delivering something of the same kind, as a horse, or an ox. Hinton v. Pinke, 1 P. Wms. 540; Mann v. Mann, 1 Johns. Ch. 231; Hotham v. Sutton, 15 Ves. 319. The inclination of the court is always against holding legacies to be specific. Webster v. Hale, 8 Ves. 412; Deane v. Test, 9 Ves. 152; Lambert v. Lambert, 11 Ves. 607; Chaworth v. Beach, 4 Ves. 566; Innes v. Johnson, 4 Ves. 573; Sibley v. Perry, 7 Ves. 527; Kirby v. Potter, 4 Ves. 748, 752. The intention of the testator may be collected from collateral matters to which the will has any relation. 3 Stark. Ev. 1013; Cole v. Robinson, 1 Stalk. 234; Shelton v. Shelton, 1 Wash. 53; Baldwin v. Karan, Cowp. 312; Jones v. Morgan, cited, in Lytton v. Lytton, 4 Bro. C. C. 441; Deane v. Test, 9 Ves. 152; Fryer v. Morris, 9 Ves. 360; Brice v. Smith, 3 Willes; Compton v. Compton, 9 East, 272 ; Thellusson v. Woodford, 4 Ves. 329; Milner v. Slater, 8 Ves. 306; Radclife v. Buckley, 10 Ves. *195, 197. And it is the duty of a court to [66 make all the parts of a will consistent with each other. Haws v. Haws, 3 Atk. 524; Pickering v. Stamford, 2 Ves. 279; Green v. Armstead, Hob. 65; Bridgewater v. Bolton, 6 Mod. 112; Radnor v. Shafto, 11 Ves. 457; 1 Bro. 529; Robinson v. Robinson, 1 Burr. 38; Barn. Ch. 261; Blandford v. Dymock, 4 Term, 82; Minshull v. Minshull, 1 Atk. 415. Unless by express provision in the will, neither expenses, debts, nor legacies can be charged upon real estate, except in the event of a deficiency of the personal estate. Lupton v. Lupton, 2 Johns. Ch. 614; Wright v. Dean, 10 Wheat. 229. In relation to interest, the rule of law is, that if no time is mentioned in the will for the payment of general legacies, interest begins to accrue from the end of a year after the testator’s death. Webster v. Hale, 8 Ves. 410 ; Maxwell v. Westenhall, 2 P. Wms. 26. But if the legacy is charged upon real estate, it will carry interest from the death of the testator. Maxwell v. Westenhall, 2 P. Wms. 26; Spurway v. Glynn, 2 Ves. 483; Shirt v. Westby, 16 Ves. 393; Smell v. Dee, 2 Salk. 415. Executors are held as trustees for the residuary legatees. Ripley v. Waterworth, 7 Ves. 424; Pickering v. Stamford, 2 Ves. 279; 3 Atk. 527; Lincoln v. Newcastle, 12 Ves. 227; Amb. 91. It is a rule of construction, that where the terms used in a will are those of recommendation or expressing a desire, if the objects with regard to whom such expressions are used are certain, the words are considered as imperative, and create a trust. Pierson v. Garnet, 2 Bro. C. 38; Paul v. Crompton, 8 Ves. 379 ; Brown v. Higgs, 8 Ves. 573; Dashwood v. Peyton, 18 Ves. 39. Courts of equity regard with favor a provision in favor of a wife or daughter. Selwood v. Mildmay, 3 Ves. 309; Gillaume v. Adderley, 15 Ves. 389.

      C. C. Carroll, for the defendants:
    To show that the legacy is specific, he cited Fryer v. Morris, 9 Ves. 360; Innes v. Johnson, 4 Ves. 568; Ashburner v. McGuire, 2 Bro. C. 108; Chaworth v. Beck, 4 Ves. 555; Gillaume v. Adderley, 67] 15 Ves. 384; Solwood v. Mildmay, 3 Ves. *306; Orm v. Smith, 2 Vern. 681; Blackstone v. Blackstone, 3 Watts, 335; White v. Winchester, 6 Pick. 55; Drinkwator v. Falconer, 3 Ves. 623; Jeffreys v. Jeffreys; 3 Atk. 120; Eider v. Wager, 2 P. Wms. 328; Stout v-Hart, 2 Halst. N. J; 414; Cuthbert v. Cuthbort, 3 Yates, 486; Walton v. Walton, 7 Johns. Ch. 258; Hinton v. Peake, 1 P. Wms. 540; Abney v. Miller, 2 Atk. 598: Flanders v. Clark, 3 Atk. 510; Smith v. Fitzgerald, 3 Ves. & Beam. 5; Purse v. Snaplin, 1 Atk. 414; Kirby v. Potter, 4 Ves. 748; Wilson v. Brownsmith, 9 Ves. 180; Webster v-. .Hale, 8 Ves. 410; Deane v. Test, 9 Ves. 145; Sibley v. Perry, 7 Ves. 522; Boberts v. Pocock, 4 Ves. 150; Lawson v. Stich, 1 Atk. 507; Peterborough v. Mortlock, 1 Bro. C. 565; Coleman V. Coleman, 2 Ves. 639. Tthe question, whether a legacy is or is not specific, is to be determined from the face of the will, exclusive of all extrinsic testimony. Innes v. Johnson, 4 Ves. 573; Sibley v. Perry, 7 Ves. 527; Deane v. Test, 9 Ves. 153 ; Strode v. Bussell, 2 Vern. 624; Barton v. Cooke, 5 Ves. 463; Ulrich v. Litchfield, 2 Atk. 374; Hay v. Coventry, 3 Term, 85; Ram on Wills, 107, 108, 141; Addington v. Addington, 7 Serg. & Bawle, 111.
    He further insisted that the' legacy is adeemed. That at the death of the testator, there being no money to be recovered from Kirker, and the specific bequest having been disposed of by the testator, the legacy is gone. Walton v. Walton, 7 Johns. Ch. 262; Fryer v. Morris, 7 Ves. 363; Abner v. Miller, 2 Atk. 598; Patterson v. Patterson, 6 Eng. Cond. Ch. 474; Blackstone v. Blackstone, 3 Watts, 338; Selwood v. Mildmay, 3 Ves. 106; Ward on Legacies, 268; Ram on Assets, 122; Hinton v. Pinke, 1 P. Wms. 540.
    Kennon, on the same side,
    cited these additional authorities: Toller’s Law of Executors, 302, 303; Heath v. Perry, 3 Atk 103 ; 2 Mad. Ch. Pr. 89, n.; 2 Cox, 180.
   Wood, J.

The question raised by the pleadings is, whether the 68] legacy in controversy is specific or demonstrative? If *the former, the receipt of the money, in his lifetime, by the testator, is an ademption of it, and the bill can not be sustained. If, on the other hand, the legacy is demonstrative or pecuniary, it is not adeemed, and the demurrer must be overruled.

In the investigation of this case, we have been very much aided by the industry of counsel in collating the authorities, and derived no small light from the manner in which they have presented their views. The distinction which marks the specific from the demonstrative legacy is frequently nice and difficult, but it is the oft-repeated language of the books that courts lean against the former, and it is with regret the chancellor declares he finds the intention of the testator establishes a specific legacy. It is the intention of the testator, however, which is to be sought for, in the construction of a will, and when clearly ascertained, it asserts the character of the devise. So it is declared by Chancellor Kent, in Walton v. Walton, 7 Johns. Ch. 264, and by Lord Loughborough, in Coleman v. Coleman, 2 Ves. 639; and unless there is an ambiguitas latens, that intention must be gathered from the face of the will.

“I also give and bequeath to my wife, Mary, all the amount of moneys and interest that may be recovered of and from Dr. Kirker, for the purchase of the Penrose estate, to her and her assigns.” The testator does not give an amount of money to his wife, and refer to the amount due to ascertain the quantity; but the language is, all the amount of moneys and interest, etc., that may be recovered of and from Dr. Kirker. This language, in its ordinary acceptation, would seem to bestow this specific debt, and if nothing should be recovered, it could hardly be successfully claimed that the amount due from Dr. Kirker should be paid to the legatee out of the general assets of the estate.

In 2 Bro. C. 108, the interest of a bond for life to B., and the principal, on her decease, to C., was held a specific legacy. In 4 Ves. 555, £800, the amount of banker’s note, and in 2 P. Wms. 328, the residue, deducting £500 of the money owing to him by Sir H. M., were likewise adjudged to be specific legacies, *and [69 the receipt of the money by the testators an ademption thereof. These cases are cited, by Chancellor Kent, with approbation, in Walton v. Walton, 7 Johns. Ch. 264.

In principle, those cases are not distinguishable, in our opinion, from the one at bar, and we may say with the master of the rolls, in 4 Yes. 568, that we are sorry to be under the necessity, after very full consideration, to declare, and we do so with great anxiety to hold otherwise, that this .legacy is, likewise, specific and not pecuniary.”

The demurrer is sustained, and the bill must be dismissed, with costs.

Bill dismissed.


text:
    The Lessee of Edward Jackson and others v. Charles Williams.
    One in possession, claiming title derived with warranty from an entry and survey not patented, has an estate that may he sold on execution.
    A patent issued, after such sale, to the heirs of the original owner of the entry and survey, inures to the benefit of the purchaser under the execution.
    A decree in chancery against such patentees, awarding the legal title to a purchaser from the judgment debtor after the sale on execution, is inoperative.
    This is an action of ejectment from the county of Ross.
    The premises in dispute are in-lot No. 213, in Cbillicothe, and the facts of the case are substantially these: In 1797, Massie conveyed the lot in dispute to Craig, it being covered by an entry and survey only; Craig conveyed to Niblack in 1805; Niblack to McMahan in 1806. The aforesaid deeds all contained covenants of warranty. After the sale to McMahan in 1806, the lot was sold, on an execution issued on a judgment against him, to John Hull, McMahan, at the date of the levy, being in possession. Hull afterward, in 1806, conveyed the lot to Crane, and then follow several intermediate conveyances to the lessors of the plaintiff.
    70] *Massie died in 1811, and in 1814, a patent for the lot issued to his heirs.
    In 1818, McMahan and wife conveyed to Collett and Evans, who filed their bill in chancery against the heirs of Massie in the court of common pleas of Ross county, and obtained a decree for the legal title in said lot, at the November term, 1819, and on the 6th day of December following, conveyed the same to the defendant, Williams.
   Wood, J.

It will be observed that, at the date of the levy, and

when the sale was made by the sheriff of this lot to Hull,-no patent had been issued to Massie, and all that was transferred by that sale to the purchaser was such an estate as McMahan had in the premises. McMahan being in possession, at the date of the levy, had such an interest, by virtue of such possession alone, as was subject to levy and sale. He had also, in addition to his possessory title, a warranty deed from Niblack, who held a similar conveyance from Craig, and Craig from Massie, and when Massie’s heirs, after his death, in 1814, obtained the patent for the lot, such patent inured to the benefit of the grantee of their ancestor, with covenants of warranty. Bond’s Lessee v. Swearingen, 1 Ohio, 412. McMahan, therefore, in 1814, by the emanation of the patent, was invested with the legal title, and it inured, also, to the purchaser at sheriff’s sale, and down to the plaintiff’s lessor.

Douglas, for the plaintiff.

Leonard, for the defendant.

It seems to us to follow, that in 1818, McMahan and wife had no interest in the lot to convey to Collett and Evans ; that they acquired nothing by such conveyance, and consequently nothing by their decree against Massie’s heirs, and therefore had no interest to convey to the defendant.

Judgment for the plaintiff.


author: Hitchcock, J. Lane, C. J.,

text:
    *The Farmers Bank of Canton v. The Commercial Bank of Lake Erie.
    Lands mortgaged may be sold on judgment and execution against the mortgagor.
    This is a certiorari to the court of common pleas of the county of Cuyahoga.
    It brings into this court the proceedings in the court of common pleas, upon a motion to appropriate money, made on execution ; and the case is submitted, on an agreed state of facts, in substance as follows:
    The Farmers Bank of Canton, on August 12, 1837, recovered judgment, in the Supreme Court of Cuyahoga county, against Alanson Penfield, for $3,126.06, including costs, which was remanded to the court of common pleas for execution. Upon this judgment no execution was issued within one year succeeding its rendition and return to the court of common pleas, nor until after the recovery of a judgment by the Commercial Bank of Lake Erie, as hereinafter stated.
    On April 16, 1838, Alanson Penfield mortgaged a house and lot on St. Clair sti’cet, in Cleveland, with other property, to Peter Pen-field and Horace Penfield, to indemnify them against their liabilities as sureties for the said Alanson Penfield to the Commercial Bank of Lake Erie, on several notes, amounting in the whole to $11,000, which it is agreed is more than the whole value of the property mortgaged. Said Peter and Horace have not paid, nor have they been expressly relieved from any of said liabilities.
    'On July 1, 1839, the Commercial Bank of Lake Erie recovered judgment, in the court of common pleas of Cuyahoga county, against Alanson Penfield, for $4,388.36, including costs. Within one year after the date of this judgment, an execution was issued on the same, and also an execution on the judgment in favor of 72] the Farmers Bank of Canton. *Both these executions bear date and were delivered to the sheriff on the same day. They were both' levied on the house and lot on St. Clair street, which were offered for sale and bid off by the Commercial Bank for $2,076, being more than two-thirds the appraised value.
    On this state of facts, the court of common pleas decided that the Commercial Bank had the better lien, and ordered the money to be paid over accordingly.
    To reverse this order, this writ of certiorari is prosecuted.
    Harris & Brown, for the plaintiff:
    Alanson Penfield had no interest in the mortgaged premises upon which the judgment of the Commercial Bank could operate aB a lien, he having a mere equity of redemption, which could not be sold upon execution at law, but must be subjected to sale by proceeding in equity under section 16 of the chancery act. 29 Ohio L. 84. The judgment of the Farmers Bank of Canton operated as a lien upon the land, which is preferable to that created by the mortgage to P. and H. Penfield.
    S. J. Andrews, for the defendant,
    cited McCormick v. Alexander, Ohio Cond. 254; Earnfit v. Winans, Ib. 504; Shuel v. Ferguson, Id. 505 ; Waymire v. Staley, Id. 606 ; Thompson v. Atherton 6 Ohio, 30; Ely v. McGuire, 2 Ohio, 223; Phelps v. Butler, Id. 224; Baird v. Kirtland, 8 Ohio, 21 ; Jackson v. Willard, 4 Johns. 41; Stewart v. Waters, 1 Caine’s Cases, 47; Hitchcock v. Harrington, 6 Johns. 290.
   Hitchcock, J.

From the statement of the case, it will be seen that the lien of the judgment of the Farmers Bank of Canton had lost its preference as to any other bona fide judgment creditor, at the time the execution on that judgment was issued. But the lien of the Commercial Bank of Lake Erie was in full force, if at any time the judgment in its favor operated' as a lien upon the property sold. But it is insisted *by counsel for the plaintiff, [73 that this latter judgment did not operate at all as a lien, on account of the mortgage which had been executed previous to its rendition, and it is further insisted that mortgaged premises can not be sold on execution.

Admitting this principle, as a general rule, to be correct, it might be well questioned whether it would apply in this case. This mortgage was executed for the purpose of indemnifying the mortgagees against any liability which they might be subjected to in consequence of having become the securities of the mortgagor to the Commercial Bank. To it tlio bank was in no shape a party. The judgment recovered was upon one of the notes upon which the mortgagees were securities, and the sale of the property would go so far to release them from their liability. To the extent of the amount made, they would be absolutely released. The result of the argument of counsel is this: the mortgagees can not hold the property, because they are purchasers, and as to all purchasers the judgment of the Farmers Bank is still a lien. The Commercial Bank had no lien, because the property had been previously mortgaged. But the question, whether mortgaged premises can be sold on execution is not a new one in this state. If it were we might have some difficulty about it. In the cases of Ely v. McGuire, 2 Ohio, 223, and of Phelps v. Butler, 2 Ohio, 224, it was held, that where the mortgagor was in possession and the condition had not been forfeited, the land mortgaged might be sold on execution against the mortgagor. This is precisely the situation of the case before the court. The mortgagor was in possession, and the mortgagees had not sustained any loss in consequence of their liabilities. The same principle was recognized in the case of Baird v. Kirtland and others, 8 Ohio, 21. A majority of the court sitting in this case feel bound by these decisions.* Nor do we see'any evil which can result. The interest of mortgagees are not affected. And when it is considered that the land must be sold for two-thirds its appraised value, certainly a mortgagor has no reason to complain.

74] *Tlie order of the court of common pleas is affirmed, with costs.

Lane, C. J.,

being a stockholder in the Commercial Bank, did not sit in this case, and Grimke, J., dissented. ,

Judgment affirmed.

      In Ohio, since the first organization of its government, the judgment of a court of record has operated as a lien upon the real estate of a judgment debtor. The earlier statutes creating and regulating this lien were found in some respects defective, especially during the pecuniary embarrassments which succeeded the late war. Beal estate could not be sold for less than two-thirds its appraisal. Debtors resisted payment, hoping that time would give additional value to their property. Creditors declined to accept payment in real estate, lest its value should still further diminish. No time was limited within which it was necessary for a plaintiff to sue out execution, or make a levy, in order to secure or enforce his lien. In these respects every one was permitted to consult his own interest or convenience. Judgment liens therefore accumulated; and senior judgment creditors, not choosing to take real estate in discharge of debts, which they deemed secure, often held the entire property of a judgment debtor beyond the reach of all other creditors.
      These inconveniences were sought to be removed by three successive acts of the legislature.
      The act of February 1, 1822 (2 Chase’s L. 1234): which provides “that in all cases where the party obtaining judgment shall .neglect, for the space of one year after the first day of the term, in which such judgment shall have been rendered, to sue out execution thereon, and cause the same' to be levied according to the provisions of this act, such judgment shall not operate as a lien upon the debtor’s estate to the prejudice of any other bona fide judgment creditor." . . . “ And in all cases where judgments have heretofore been rendered, and on which executions shall not have been taken out and levied prior to the taking effect of this act, it shall be lawful for the plaintiff in any such judgment to have execution thereon, and cause the same to be levied, according to the provisions of this act, at any time within six months next after the taking effect of this act; and after such levy, the judgment on which such execution issued, shall not operate as a lien on the residue of the debtor’s estate, to the prejudice of any other bona fide judgment creditor.”
      The act of February 4, 1824 (2 Chase’s L. 1297): which provides “that no judgment heretofore rendered, or which may be hereafter rendered, on which execution shall not have been taken out and levied before the expiration of one year next after the rendition of such judgment, shall operate as a lien on the estate of any debtor, to the prejudice of any other bona fide creditor.”
      The act of March 1, 1831, now in force (3 Chase’s L. 1709): which, in this respect, is a re-enactment of the statute just quoted, of February 4, 1824.
      The first case which arose under these statutes was that of McCormick v. Alexander, decided in 1825, in 2 Ohio, 65.
      There, in 1821, before any time had been limited by statute for the levy of executions, two judgments were rendered, one in March, in favor of Evans, and the other in the next July, in favor of McCormick. The junior judgment was levied six, and the elder twenty months, after their respective dates. In 1825, a sale was had on the elder judgment. In the meantime, the act of 1824 had taken effect.
      It was conceded that under the statute in force when Evans obtained his j udgment, his lien was perfect, and that if the property had been sold prior to the act of 1824, the proceeds would have been his. But as the act of 1824 repealed former statutes, and expressly took away the lien where no levy had been made within a year after the date of any judgment, it was held that Evans’ judgment had lost its priority; and McCormick took the money.
      The operation of this rule was deemed so severe, that an attempt was made to change it the next year, in Patton v. Sheriff of Pickaway County, 2 Ohio, 395, but without success; and in 1831, the legislature, by re-enactment of the provisions in the act of 1824, confirmed the construction given to it by the court, and so the rule has remained unchanged to the present time.
      A series of decisions has followed, which, with other rules laid down by this court, relative to the lien of judgments, may be ranged under four heads:
      I. As between judgment debtor and judgment creditor.

      II. As between judgment creditor and purchaser from a judgment debtor.

      III. Priority of lien among several judgment creditors.

      IV. Miscellaneous points.
      I. As between judgment debtor and judgment creditor.

      The duration of the lien in this case is perpetual. If the judgment becomes dormant, by lapse of time, the lien sleeps with it; and if the judgment be revived, the lien revives also, and so on, indefinitely. Norton v. Beaver, 5 Ohio, 178.

        II. As between judgment creditor and purchaser from a judgment debtor.

      If lands are sold, bona fide, before judgment, and the judgment debtor retains the legal title, he is merely a trustee for the purchaser, and a judgment against him is no lien on the lands. Manly v. Hunt, 1 Ohio, 257; Barr v. Hatch, 3 Ohio, 527.
      The lien relates to the first day of the term. Where, therefore, a term commenced on the 20th, and judgment was taken, during the term, on the 25th, and the defendant conveved his lands to a bona fide purchaser on the 21st of the same month, the judgment held the lands. Urbana Bank v. Baldwin, 3 Ohio, 65.
      While the lien exists, it binds the land into whatsoever hands it-may pass. But where no execution is issued for five years, or where five years elapsed between any two executions, so that the judgment becomes dormant, there a purchaser will hold the land. And it is no matter whether the purchase is made before or after the judgment becomes dormant. If the judgment creditor suffers the five years to elapse, and afterward revives, he has lost his lien as against any intermediate bona fide purchaser. Norton v. Beaver, 5 Ohio, 178.
      Where land is purchased from- a judgment debtor, the purchaser may in equity require the property of the debtor, or lands subsequently sold by him, to be first exhausted in satisfaction of the judgment. Ford v. Skinner, 7 Ohio, 148, pt. 2.
      Where lands lie in one county, and a judgment is rendered in another, and the lands are seized in execution, sold, sale confirmed and deed ordered; and afterward, but before the actual execution of the sheriff’s deed, a deed more than six months old from the judgment debtor to a stranger, and made before the levy of the execution, is placed on record, the purchaser on the execution has the better right. Scribner v. Lockwood, 9 Ohio, 184.
      Where a levy is made on goods and chattels sufficient to pay the debt, and during the levy, the judgment creditor sells his real estate to a bona fide purchaser, and afterward, by consent of parties, the goods and chattels are restored to the defendant, the purchaser holds the real estate discharged from the lien of the judgment. Ford v. Skinner, 7 Ohio, 148, pt. 2 — overruling the same case in 4 Ohio, 378. But a levy on real estate is not a satisfaction of the judgment. Reynolds v. Rogers, 5 Ohio, 169.
      A purchaser from an administrator under an order of court to sell for the payment of debts, holds the estate discharged of liens. Bank of Muskingum v. Carpenter, 7 Ohio, 21, pt. 1.
      Where a mortgage is defectively executed, a subsequent judgment against the mortgagor is not a lien upon the lands. Bank of Muskingum v. Carpenter, 7 Ohio, 21, pt. 1.
      A mortgage, executed after the term at which a judgment for the penalty of a bond is taken, but before the term at which the amount due in equity is ascertained, has the priority; and the lien of such judgment is only from the first day of the term at which the amount due in equity is ascertained; and then only for that amount. Tower v. Wells, 8 Ohio, 136.
      III. 'Priority oí lien among several judgment creditors.

      The cases under this head are embodied in these nine rules.
      1. That under the acts of 1824 and 1831, an elder judgment, not levied within a year after its date, loses its priority, as against a junior judgment, levied within a year; and this whether the judgments are before or after the passage of these acts. McCormick v. Alexander, 2 Ohio, 65; Waymire v. Staley, 3 Ohio, 366; Thompson v. Atherton, 6 Ohio, 30.
      2. That where an elder judgment is levied within a year, and after the year the levy is set aside at the instance of the plaintiff, a junior judgment, levied within its year, has a priority. Patton v. Sheriff of Pickaway County, 2 Ohio, 395.
      3. That a levy must be made on the properly in question, within a year after the judgment; and a levy on other property, though within the year, will not save the lien, as to property not levied on. Shuee v. Ferguson, 3 Ohio, 136.
      4. If there be several judgments, and no levy on either of them within the year, they stand on an equal footing, and he who afterward first levies, gains a priority. Shuee v. Ferguson, 3 Ohio, 136; Waymire v. Staley, 3 Ohio, 336; Sellers v. Corwin, 5 Ohio, 398.
      5. If an elder judgment be levied on.certain lands after its year, and a junior judgment be levied on the same lands within its year, but after the levy of the elder judgment, the junior judgment has a priority. Shuee v. Ferguson, 3 Ohio, 136.
      6. The lion of a junior judgment, on all property not levied on under an elder judgment within the year, continues one year after its date, to the exclusion of the elder judgment, provided the junior judgment was "rendered before the levy under the elder judgment; but a levy under the elder judgment, though after the year, if made before the date of the junior judgment, has a priority. Shuee v. Ferguson, 3 Ohio, 136.
      7. Where the court, in pursuance of the statute, order execution against a surety to be stayed, the lien upon his land is notwithstanding lost, unless a levy be made within the year. Earnfit v. Winans, 3 Ohio, 135.
      8. Where lands are sold under a judgment, and more than five years afterward the sale is set aside by consent of parties, the judgment thereby loses its lien, as against subsequent judgments. Lytle v. Cin. Man. Co., 4 Ohio, 459; ante, 59.
      9. Where an elder judgment is levied after the year and a sale made upon it, and afterward another sale of the same lands is made on a, junior judgment levied within its year, the title passes by the latter sale, although when the first said was made, the second sale had been set aside by an order of the common pleas, the order being afterward reversed by the supreme court. Walpole v. Inks, 9 Ohio, 142.
      IY. Miscellaneous points.
      A judgment does not bind an equitable interest in land. Roads v. Symmes, 1 Ohio, 281; Jackman v. Halleck, 1 Ohio, 318; Douglas v. Huston, 6 Ohio, 156; Scott v. Douglas, 7 Ohio, pt. 2; Baird v. Kirtland, 8 Ohio, 21.
      But whether the equity of a person in possession does not pass by a sale of his possessory right under execution so as to enable a purchaser to control it, is an open question. Scott v. Douglas, 7 Ohio, 227.
      The existence, validity, and extent of a judgment lien are matters purely legal, dependent on statutory provisions. If it fail at law, it can not be aided in equity. Mi. Ex. Co. v. Turpin, 3 Ohio, 514; Douglas v. Houston, 6 Ohio, 156.
      One in possession of lands has an interest which may be sold on execution, and the judgment debtor is not permitted to dispute the estate of him who chooses to take it. Phelps v. Butler, 2 Ohio, 224; Gray v. Tappan, Wright, 117; Biddle v. Bryan, 5 Ohio, 48; Scott v. Douglas, 7 Ohio, 227, pt. 1; Jackson v. Williams, ante, 69.
      The lien of a vendor for the purchase money has a preference over subsequent judgments, and all other later rights, except those of. a purchaser for a valuable consideration, without notice. Patterson v. Johnson, 7 Ohio, 226, pt. 1.
      Lands under mortgage may be sold upon a judgment against the mortgagor. Phelps v. Butler, 2 Ohio, 222; ante, 71.
      Judgments in the circuit court of the United States for the Ohio district are a lien upon all lands of the defendant within the state. Sellers v. Corwin, 5 Ohio, 398.
      A judgment is not a lien upon lands acquired after its rendition. Roads v. Symmes, 1 Ohio, 281; Phelps v. Butler, 2 Ohio, 224. But in such case, .the lien attaches from the date of the levy. Miller v. Murphy, 4 Ohio, 92. On a sci.fa. to charge lands on a justice’s judgment, no lien attaches till execution levied. Jackman v. Halleck, 1 Ohio, 318.
      A purchaser, under a judgment against the heir, acquires no right, as against a devisee, though the will be not recorded till after the sale, and the purchaser had no notice of it. Hall v. Ashby, 9 Ohio, 96.


text:
    *Jacob Kegg v. The State of Ohio.
    An indorsement on a note of partial payment, in the handwriting of the maker, without any signature, but made in the presence, with the concurrence, and by the direction of the payee, is a receipt, the alteration of which by the payee is forgery.
    This is a writ of error to the common pleas of the county of Richland. 76] ^Charles E. Patterson and Jacob Thuma owed Jacob Kegg a note for $100. Patterson made a payment of $33.25; and *in the presence, with, the concurrence, and by the direction [77 of Kcgg, Patterson made this indorsement on the note:

      78] *“ Received, May 4, 1839, on the within note, $33.25” — ■ without any signature.
    A balance being still due, Kegg retained the note, and when presented by him again for final adjustment, the indorsement had been altered so as to read thirteen instead of thirty-three dollars.
    Kegg was indicted and convicted of forgery, for making this alteration; and whether the alteration be forgery or not, is the question.

      *P. W. Burr, for the plaintiff in error.
    J. Brinkerhoff, for the state, cited Roscoe’s Crim. Ev. 485; Harvey’s case, Russ. & Ry. 227.
   Grimke, J.

A receipt may be defined to be such a written acknowledgment, by one person, of his having received money from another, as will be prima facie evidence of that fact in a court of law; and the real difficulty in the present case grows out of the fact that the name of the person purporting to have received the money is not placed at the bottom of the indorsement; from which it might be argued, generally, that a writing on the back of a note is not the subject of forgery; or, at any rate, that until signed it is an incomplete instrument, the alteration of which will not be a crime. And this will depend upon the fact, whether the indorsement can be considered as a mere private memorandum, or whether it is not such an acknowledgment of the receipt of the money as would preclude the payee of the note from disputing it. It is unnecessary to say what would be the effect of an indorsement which should be made by the payee without the privity and knowledge of the maker ; for here it is proved to have been made by the maker in the presence, with the concurrence, and by the direction of the payee, which relieves the case of a great deal of difficulty, since it resembles the indorsement to a binding contract between the parties rather than a private memorandum made by one of them. And this, among other reasons, may account for the fact that the signature of the payee is not affixed. The meaning and force of the instrument might, to both of them, seem to be sufficiently denoted without the performance of that ceremony.

But the nature and form of a receipt will almost always depend upon the mode in which the business to which it has reference is transacted. If a note is not present at the time when a payment is made, a receipt may, notwithstanding, be given; but it will, from the necessity of the case, be upon a separate piece of paper, and it will then invariably have the ^signature of the payee. [80-The payee may, also, afterward make a memorandum of that fact, for his own convenience, upon the back of the note, of which the maker may have no knowledge. This memorandum may or may not have his name subscribed to it, and it is unnecessary to say what would be the effect of an alteration in such a case. If the note is present at the time, and the indorsement is then made, it is not usual for the payee to place his signature to it; because the place where it is found, the note itself, indicates with equal, if not more precision and certainty, the fact intended to be commemorated, and identifies, beyond doubt, the person by whom and the intention with which it was maur.'. There are certainly exceptions to the rule, depending more upon the extreme scrupulousness and caution of one or other of the parties than upon any evident necessity. So, also, although an indorsement of a partial payment may be made, with or without signature, the maker will sometimes require a separate receipt also, not because he supposes it to be of more binding force, but because the note remaining in the hands of the payee, the indorsement might be subject to alteration. It is.like the case of a contract between two parties, where each chooses to have a copy in his possession, not because one is not as obligatory as two such instruments; but because one may be lost or interlined. Each has an interest in the contract, which is better protected if two instruments instead of one only are executed. If the parties could be sure that there would be no danger of loss or alteration, there would be no thought of having two instruments executed.

Where an instrument is intended to be delivered by the party making it to another person, the subscription of his name will be considered as almost absolutely necessary ; but where the nature of the transaction is such as not to imply a delivery, no such necessity will suggest itsélf. It is for this reason that an indorsement on a note of a partial payment so seldom has the name of the payee affixed to it; he could not deliver the indorsement without giving up the note, and it is necessary for him to retain 81] the last until a full payment has been *made. Such is the difference which the modes of doing business among men makes in the form of their transactions; but this difference.of form ought not to mislead the mind, it should rather be taken as an indication that the substance may remain, although the form may vary.

The case of The King v. Harvey, Crown Cases, Russ. & Ry. 227, is one of the very few to be found which has any analogy to the present. The prisoner was tried upon an indictment stating that William Chinnery was indebted to Thomas Thompson, and that the prisoner forged a receipt and acquittance. The prisoner was convicted, but a doubt arose whether the instrument charged tó be forged, could be . considered as a receipt. It was in the following terms: “¥m. Chiftnery, Esq., paid to X Thomson the som of 8 pounds, feb. 1812.” It was not subscribed, by Thomas Thompson. At a meeting of the judges, this conviction was held wrong, because the writing was not a receipt; it was only an assertion that Chinnery had paid the money, but did not import an acknowledgment thereof. It is evident, from the statement of the case, that the writing was upon a separate piece of paper. No note or other instrument is alluded to as evidencing,the original indebtedness. The circumstances of the case, indeed, forbid any such supposition being made. The alleged forgery consisted in making a writing which purported to be a receipt of money, whereas, in the present instance, the forgery consists in the erasure of a writing of the same import. The defendant in the one case was the'debtor, and in the other the creditor. If, in the first case, the alleged forgery was upon an instrument which is not supposed to be in the possession of the party committing it, the fact that such instrument existed, could not fail to have been stated. There may, therefore, have been good reason for holding that the writing contained only an assertion and not an acknowledgment of a payment. Mr. Archbold, however, remarks (Arch. Cr. Pl. 304), that the statute under which the conviction was had, did not contain the words “ accountable receipt,” thereby implying that if it had, the construction given to those words■ might *have [82 resulted in a different determination. Our statute, which is copied from another of the English statutes, does contain those words, but as the indictment is not framed to meet them, it is unnecessary to notice the distinction. If those words do contain a more comprehensive meaning than the words acquittance or receipt, I am not able to see it, although I am not prepared to say that they may not. Nothing is more common in the statutes than to set down every species of word which may by possibility denote every shade of offense, and afterward to rack one’s ingenuity in finding a meaning for them. This adds to, but does not diminish, the uncertainty of the law.

The King v. Barton, Crown Cases, 1 Moody, 141, is another ease growing out of the construction given to the term receipt. The indictment stated that a precept had been issued by a constable to the overseers of the poor to collect £21 11s. 4d.; that a receipt for that sum had been forged by falsely affixing and cementing to the precept, at the foot thereof., the following receijit; “ 1825 Reed. H. H.” It was held that the convictioti was wrong: that inasmuch as the receipt was signed with initials only, the indictment should have contained some averment explaining what those initials meant. It was not considered a sufficient objection' that the receipt was not subscribed in the name of the person purporting to have made it, but only that inasmuch as it was subscribed by two letters of the alphabet, and the indictment showed that fact, that it was necessary also that it should show what was the meaning of those letters. Neither of these cases contradict the idea that the indorsement in this case is a receipt. The great difficulty which existed in Harvey’s case does not exist in this; there the writing was made by the debtor, here the erasure is of a writing made by the joint act of both parties. There is a privity between them, which contradicts the idea that the indorsement was a mere assertion. It is made under circumstances which supersede the necessity of a signature. Barton’s case more than countenances the idea, although it is not directly decided that the signature of the name was not necessary. It carries that irresistible implica88] tion along with it. On *the whole, I am satisfied that the indorsement in this instance was a receipt, the erasure of which is forgery.

Judgment affirmed.


text:
    The Executors of George Leiby v. Jacob Wolf et al.
    The registry of a deed; the grantor and grantee in which are both out of the chain of title as recorded, is no notice to a subsequent purchaser.
    This is a bill in chancery from the county of Hamilton.
    Jacob Wolf held a lease, from the commissioners of Hamilton county, duly executed, but never recorded. While in possession under the lease, he made a mortgage to George Leiby, which the plaintiffs, his executors, now seek to enforce. The mortgage was duly recorded.
    Wolf, while in possession, sold his estate in the land to Marcus Smith, who had actual notice of the mortgage.
    Marcus Smith procured a new lease from the commissioners, which was duly recorded. .

      Marcus Smith afterward sold the lease to Samuel S. Smith, who denies, by his answer, any notice of the mortgage.
    Samuel S. Smith afterward sold to David Boring, who also purchased without actual notice of the mortgage.
    Upon this state of facts, the question is raised, whether Boring holds the land free from the mortgage or not.
    W. R. Morris, for the plaintiff:
    The registry of the mortgage is conclusive notice against all subsequent purchasers or incumbrancers. 1 Story’s Eq. 390 ; 8 Amer Com. Law, 303. The record estops the defendants from saying that they are innocent purchasers, without notice, nor can the plaintiffs be called upon to prove notice at all. 1 Story’s Eq. 392. Under the registry act of Ohio, a deed or *other instrument [84 duly recorded, is notice to all the world. Nor can the effect of such notice be evaded by any subsequent management between the original vendor and any other purchaser.
    But the case shows that the defendant had actual notice. Where a subsequent purchaser, by the use of reasonable diligence, can acquire the knowledge of a fact, the law presumes him to know it. Cunningham v. Buckingham, 1 Ohio, 264; Ohio Cond. 127 ; Reader v. Barr, 4 Ohio, 446 ; Sug. Tend. 484, 498; 8 Amer. Com. Baw, 305 ; 1 Story’s Eq. 384.
    A more possessory interest in land may be mortgaged; also, a mere equitable right. Powell on Mortg. 23; Parkert v. Alexander, 1 Johns. Ch. 394.
    Wolf, while in possession, with at least an equitable title, for a valuable consideration, gave the plaintiff this mortgage, which is duly executed and duly recorded. How, then, is the title of a subsequent purchaser to be preferred to that of the plaintiff?
    Storer and Fox, for the defendants.
   Lane, C. J.

Whenever the state of the title on record would lead a searcher of incumbrances, who was using common prudence and care in investigating the title, to a knowledge of the fact, the law assumes that he acquired the knowledge of it. A purchaser’, therefore, from Wolf, ought to learn all conveyances, from Wolf, existing on record at the time- of his purchase.

But where the series of deeds runs on a line entirely different, and there is nothing to connect the name or the interests of a third person with any part of it, it would be unreasonable to impule to the searcher a knowledge of the acts of such third person. Here Wolf was not in the connection of title at all; Loring, searching for incumbrances, would, be led, first, to Samuel S. Smith ; next, to Marcus Smith, and third, to the commissioners, 85] without any indication of Wolf’s interests,- or *the notice of any fact showing his relation to the estate. It seems that such a purchaser should be protected from claims which no ordinary prudence could detect.

■Bill dismissed.


text:
    Philip Young v. Samuel R. Miller, John G. Worthington, Horatio G. Phillips, and David Gwynne.
    Where a vendor stipulates with the vendee, that his deed shall save the rights of a tenant in possession, but the stipulation, through the fraud or mistake of the vendee, is not carried into the deed, the tenant, claiming under a contract void by the statute of frauds, has no relief in equity against the vendee.
    In such case, ii seems the vendor may correct the mistake, and then reinstate the tenant, the vendee, having notice of the rights of the tenant.
    This is a bill ir chancery from the county of Hamilton.
    It is stated in the complainant’s bill, that in April, 1816, one Maxwell Hargraves, then in full life, and Ann, his wife, who still survives, were the owners, for the life of said Ann, of a certain lot of ground in the city of Cincinnati, on the corner of Fourth and Main streets, sixty-six feet on Main, and one hundred feet on Fourth. That they made their certain lease, by which they rented to the complainant, for the life of the wife, a part of said lot at a yearly rent of one hundred and fifty dollars. That the complainant entered into the possession and occupied the premises until 1834, when he was dispossessed by the respondent, Worthington, by a writ of habere facias possessionem, issued o'n a judgment in ejectment, recovered at tho May term of the Supreme Court for Hamilton county of the same year.
    That in 1831, the respondents entered into a negotiation with Hargraves and wife, and finally purchased their interest in the whole lot, reserving therefrom, to the complainant, an estate for the life of said Ann, for that part occupied by him. That such reservation was made, to carry into effect the lease to the complainant. That a deed was drawn and executed *on July [86 26, 1831, by Hargraves and wife to the respondent Miller, for tho whole lot. That the conveyance was drawn by Miller; and that when it was delivered, and at all other times, when the subject of the purchase was under consideration, it was understood by all the parties interested that the purchase was made subject to the complainant’s interest for the term specified. That it was so agreed, and Hargraves and wife instructed Miller so to draw the deed as to secure the complainant’s interest.
    It is also stated, that upon the delivery of the deed, Hargraves and wife were told, and made to believe, by Miller and others in interest, that the complainant’s rights were reserved by the conveyance ; and that, with such understanding, the delivery was made; when, in truth, either by mistake of the draftsman, or by design, and with the intent to deceive the grantors, and defraud the complainant, and confer a benefit on the respondents, the interest of the complainant was not reserved; but the deed contained merely a reservation of the “ legal rights of the tenants in possession.” That for the purpose of asserting the undue advantage thus obtained, the respondent, Miller, on November 13, 1831, sold to the repondents, Worthington and Phillips ; and that Worthington, who held the legal title after the death of Hargraves, in 1832, commenced the ejectment in which the judgment was obtained, under which the complainant was turned out of the possession. That Worthington, subsequently, recovered in trespass for the mesne profits 11,030, which was about to be enforced by execution. That Worthington and Phillips afterward sold to Gwynne, and put him in possession. That Gwynne refuses to permit the complainant to enjoy the premises, according to the understanding of Hargraves and wife, though he, the said Gwynne, Worthington, and Phillips were interested in the purchase from them, and had full knowledge of the contract with the respondent Miller.
    The prayer of the bill is, that the said judgment for mesne profits' may be enjoined, the possession of the premises surrendered by Gwynne to the complainant, and that su6h of the ^respondents, as have had the possession since the complain- [87 ant was ousted, may be compelled to account to him for tho rents and profits, and for other relief, etc.
    The defendants have all answered. Miller admits the purchase, but denies that it was made for the benefit of others. He denies every other material allegation in the bill, in which he is charged, with deception, fraud, or design. Worthington answers that he purchased of Miller, at an advanced price; that Miller conveyed, etc.; admits the recovery in ejectment for mesne profits, etc.; but denies all knowledge of any interest in the complainant, except what appears from the reservation in th*e deed. Gwynne denies that Miller’s purchase was made for his benefit, or with his knowledge. He denies all knowledge of any reservation, in favor of the complainant, to occupy under his lease. Phillips denies all knowledge of any reservation in favor of the complainant; and Worthington, Gwynne, and Phillips, in like manner, deny the fraud charged in the bill. To these answers, the complainant has filed a general replication.
    The case turned mainly on questions of fact, and was fully argued by Strait and Fox, for the complainant; and Starr, Wright, and Walker, for the defendants.
    Mr. Fox
    cited Blecker v. Bingham, 3 Paige, 246; Moses v. Murgatroyd, 1 Johns. Ch. 119; 2 Story’s Eq. 308; Lett v. Morris, 4 Sim. 607; 2 Story’s Eq. 77, 78, 460; Brown v. Lynch, 1 Paige, 147; Cooke v. Graham, 3 Cranch, 229; Cholmondley v. Clinton, 1 Merivale, 171, 352; 1 Story’s Eq. 130, 159, 169; Movan v. Hays, 1 Johns. Ch. 339; Souverbye v. Arden, 1 Johns. Ch. 240; Steere v. Steere, 5 Johns. Ch. 1; Gillespie v. Moon, 2 Johns. Ch. 585.
    Mr. Starr
    cited Worthington v. Young, 6 Ohio, 313; 8 Ohio, 401; McBride v. Hagan, 1 Wend. 326, 335; 1 Story’s Eq. 121; 1 Fonbl. Eq. 113; Martin v. Dwelly, 6 Wend. 9; Imlay v. Sage, 5 Conn. 492; Aldridge v. Stuyvesant, 1 Hall, 210.
    88] *Messrs. Wright' and Walker cited Worthington v. Young, 6 Ohio, 335.
   Wood, J.

The case, it will be seen, is presented, by the pleadings, with the parties directly at issue on every material point which constitutes the gist of the complaint. The onus probandi lies, therefore, on the complainant, and the maxim, secundum allegata et probata, adapts itself to every jurisdiction, and to every civil action. Keeping these familiar principles in view, the proofs must be first applied, and then comes in the law, which sweeps away the foundation on which the structure rests, o.' it extends tho’ relief, which its wisdom has provided, as peculiarly adapted to the individual ease.

The complainant states that, in 1816, Hargraves and wife rented him the ground in controversy, during the life of the feme. That he entered and occupied until 1834, when he was dispossessed by Worthington. Hargraves, it appears, was seized in right of his wife, the lot being set off to her, as her right of dower, in the estate of Cutler. From the face of the pleadings, the question then arises, why is Young, the complainant, in this court? Having the right of possession, why did he not defend under his lease, in the ejectment brought against him by Worthington? For in ejectment there is no right of action, unless there is a right also of possession, which may be delivered under an habere facias possessionem. This is, however, explained by an inspection of the lease, an exhibit in the case, from which it appears not to have been acknowledged nor accompanied with a separate examination, and being executed by a feme covert, it passed to the lessee nothing but a freehold for the life of the husband, who died in February, 1833. Worthington v. Young, 6 Ohio, 313.

The rights of the complainant ceased, therefore, by the expiration of his term, with the death of Hargraves, and after that period he was a mere tenant by sufferance, and liable to be evicted by Worthington. These facts but illy sustain the complainant’s allegation in his bill, that the lease conveyed to him the interest in the premises during the life of Mrs. Hargraves? But to %,void this aspect of the case, the complainant shifts his [89 ground, as claiming exclusively under the lease, and sets up an agreement by Hargraves and wife, before the sale to Miller, by which he was to have the lot during the life of the wife, on paying the rent to Miller or his vendee; and of this agreement Miller is charged with having full knowledge, and to have received instructions so to draw the conveyance as to reserve Young’s right to the freehold during the life of Mrs. Hargraves ; but the deed, either by the mistake or the design of Miller, was not so drawn, but a clause inserted, merely reserving to the tenant in possession uhis legal rights,” and which Miller assured all concerned, and which was believed to reserve a freehold in the complainant during Mrs. Hargraves’ life. These allegations of agreements, mistakes, designs, instructions about preparing the deedj assurances, and impositions are all denied by the respondent, Miller; but they are directly proved by both Mrs. Hargraves and her son. Their testimony is also sustained by that senseless clause in the lease before cited, which secures nothing to any one, but appears to have been placed there for some purpose, and probably to quiet the fears of the complainants and Mr. and Mrs. Hargraves, in relation to the complainant’s supposed interest. It is said, however, that Mrs. Hargraves is not a competent witness. "We do not see any force in the objection. If she is a'warrantor of title to Miller, she is swearing against her interest when she sustains the right of the complainant; but if a warrantor, her covenant of warranty was during coverture, and is therefore void-Notice of Young’s claim, by Miller, is also proved by Thoms. Notice to Worthington is not so clear, and there is no evidence to prove notice to Phillips or Gwynne, before their purchase, but what arises from the complainant’s lease, and the clause in the deed to Miller, “reserving to the tenants in possession their legal rights." Young can not reach Phillips and Gwynne, because they are bona fide purchasers witiiout notice. But he is entitled to a decree against Miller and Worthington for a pecuniary consideration. Eor, though notice to Worthington is not so clear, we in-90] cline to *the opinion the evidence is sufficient to establish it, and the complainant is, in like manner, entitled to a decree against Worthington to enjoin the judgment for mesne profits, and to call him to an account for the rents and profits, after Young was evicted-That is, he, the complainant, is entitled to such decrees, provided the law as well as the facts are with him. We are compelled to say, however, in this respect the complainant appears to us to be less fortunate. We do not intend to impugn the principles settled in the case of Hunt v. Rousmanier, 1 Story’s Eq. 129, “ that wherever by mistake of the draftsman, or otherwise, either of fact or law, an instrument does not fulfill the intention of the parties, but violates it, equity will correct the mistake, so as to produce a conformity in the instrument.” This is doubtless sound law, and should be applied in all analogous cases. But in the case at bar, the complainant can not correct the lease of 1816, under which he occupied, so as to conform to the intentions of the parties, by conveying to him an estate for the life of Mrs. Hargraves, for it was never obligatory on her, neither in law nor equity. Not in law, because it was not executed according to the provisions of the statute. Notin equity, because her agreement to convoyan estate for her life was during her coverture, and therefore is not binding upon her; nor is she a party to this suit.

Is, then, the case' made by the complainant sustainable on the agreement set up in the bill, at the time of the sale to Miller, that Young’s estate was to be reserved in the deed ? There'was at that time no such estate created. There was, it is true, such an intention to create such estate, and a parol contract; but there was no possession taken under it, nor any one circumstance transpired to take the contract out of the statute of frauds. If Mrs. Hargraves was complainant, to reinvest herself of that of which she has been divested by the mistake or fraud set up in the bill, the case might perhaps be different. But what equitable right has the complainant as the case stands? His equity is neither more nor less than the mere intention of Mr. and Mrs. Hargraves, that he should have an estate in the premises for her life. An intention not carried *into grant, not even into such a contract as the law [91 santions as obligatory. The most that can possibly be made out of it seems to us to be but an equitable reservation of the ground occupied by the complainant, in Mrs. Hargraves during her life> which it is possible she may hereafter enforce, in some form, against some one. She may, probably, reinvest herself with the legal title, for her life, provided she can charge the vendee in possession with notice of such equitable reservation. She may then convey to the complainant, and there may be a moral, but no legal consideration is perceived, to induce such conveyance. Broad as the principles of equity may be, they can not be brought to aid the complainant, in a case like the present. The bill must be dismissed with costs.

Bill dismissed.