author: Birchard, C. J.

text:
    The State of Ohio, on relation of Eleanor White vs. Amos A. Wright, Treas. of Tallmadge Township.
    School Districts embracing parts of different townships cannot be formed without the concurrence of a majority of the Trustees of each township, upon the petition of a majority of the citizens residing in the contemplated district.
    This is an Alternative Mandamus, from the County of Summit.
    The Mandamus was issued on the 17th of March, 1845, commanding the defendant to pay to the relator the sum of twelve dollars, for services as teacher of a Union School District, composed of parts of the Townships of Tallmadge and Stow, in Summit county, and Franklin and Brimfield, in Portage county, or to appear before the Court at the next Term thereof and show cause to the contrary.
    The defendant made return, among other things; “ That no such Union School District as that mentioned in said Writ, as being composed of parts of the townships of Tallmadge and Stow, in Summit county, and parts of Franklin and.Brimfield, in Portage county, ever legally existed; but the same as to that portion thereof which lies in the township of Tallmadge aforesaid, was embraced in said Union School District without the assent of the Trustees of the township of Tallmadge, at the time of the pretended formation of said Union School District, and against their express dissent.”
    To this return the relator demurred, and the question presénted by the demurrer was reserved for decision here.

      Carpenter &f McClure and Wm. S. C. Otis for Relator.

      George Kirkum for Defendant.
   Birchard, C. J.

The merits of this writ turn upon the question whether, in organizing a school district from two or more townships, a majority of the trustees of each township, or only a majority of all the trustees of the several adjoining townships, are to unite in establishing the ^district. The return to the mandamus shows that the part of the alleged district which lies in the township of Tallmadge was embraced therein without the assent of the Trustees of that township, and against their express dissent. They deny the authority of the trustees of the other three townships to interfere with their territory against their will, and have instructed their treasurer to retain the school money, which is the subject of . this controversy, in his hands, and hot to pay it on the order of the directors of the school district.

The question depends for its solution upon the 4th section of the school law, (Swan’s Stat., p. 845,) which declares, “ That the trustees, or a majority of them, in two or more townships, may lay off districts composed of parts of such townships, when they shall deem it necessary for the accommodation of the inhabitants thereof.” The authority can only be exercised upon the petition of a majority of the citizens residing in the • contemplated district, after thirty days notice in each township to be affected thereby.

The language of this statute is by no means so specific and certain, that the meaning and intention of the legislature can be ascertained without difficulty. The phrase, the trustees or a majority of them in two or more townships, may imply, and other considerations out of the way, most naturally would be understood to imply, a majority of the whole number of the trustees of the several township. Such appears to be the natural force of the words when taken by themselves. But this is not always the true test in construing a statute. Words which, when thus taken, lead to unjust results, at war with general policy, and which may admit of a different interpretation, according with the general policy and with principles of justice, ought ever to be so construed as to effect the latter object. Now these words, if so interpreted as to give the control absolutely to a majority of the whole number of the four townships, might admit of this inconvenient result. Two townships might contain a majority of the citizens-of a contemplated union district, and although this territory and taxable property should be less than a fourth of the territory and taxable property of the contemplated district, still, by combining together, they might present the petition and give the notice required by statute and with the aid of one trustee from one of the adjoining townships, the trustees of their township might establish a union district incommoding or deranging all the school districts of the other two adjacent townships. We do not think the General Assembly contemplated that such a result could happen, under the sanction of law. Human nature is such that no sensible man could suppose that a school district thus formed against the will of the people, that violated their rights as members of society, and that materially interfered with their township arrangements, could subserve the great interests of education. It would inevitably breed nothing but contention and strife. The general policy of the school laws, looks to the formation of school tricts \yithout breaking over township and county lines. The 4th section should be regarded an exception to the general policy, adopted merely for purposes of convenience, and to accommodate the wishes and interest of- people living in neighborhoods peculiarly situated.

An argument has been drawn in favor of the relator from the different wording of the various statutes relating to this subject. Some of the statutes (act of 10th of March, 1831, 3 Chase 1867; act of 28th of February, 1834, 32 O. L. p. 25,) authorize the majority of the trustees of each adjoining township to form or alter union districts, while others are like the act now under consideration. Hence it is said that those different acts show that the legislature at one time intended that a majoritity of the whole body of trustees, when assembled, should have power to form such dictricts, and at another time intended to confer the power upon the aggregate body only in case the majority of trustees of each township concurred. This is a legitimate course of argument, yet it has not convinced us, nor is it conclusive of anything save the fact, that the statutes in this respect, were not prepared with so much care, as to enable all persons interested in them to understand them alike,

It seems to us that the several provisions of the statutes, defining the duties of trustees of townships, contemplate that in all their official action, for and on behalf of their respective townships, they must act as a distinct corporate body. . And when we meet with language like that employed in the act of 1841, it should be so understood as to preserve this distinct action of each separate board of trustees. In this way, the independent action of each township is preserved ; and the wishes and wants of its people are respected. Nor does this view of . the subject do any great violence to the words of the statute. Strictly speaking, no one can be a trustee in two or more townships. Such an affair is unknown to the law.

Let the construction claimed by the relator prevail, and the meaning of the statute must be departed from; for if can be no one man a trustee in two townships, there certainly can be no “trustees,” or “majority of trustees in two townships.” We read and understand these statutes, as conferring the authority to establish union school districts upon the trustees of the several townships, and requiring a majority of each township board of trustees to concur, with a like majority of each, and of all the several township boards of trustees; and hold that no organized township, or any portion of it, can be forced into a school district against the consent of its trustees.

The demurrer to the return is overruled; and the writ dismissed, with costs.


source: Caselaw Access Project

author: Hitchcock, J.

license: Public Domain

text:
    William Robinson vs. John Abell and another.
    When the name of a stranger is indorsed upon a promissory note, no recovery can be had against him, charging him as maker, without proof that the indorsement was made at the time of the execution of the instrument, or that he intended to be held as such maker.
    This a Writ of Error directed to the Court of Common Pleas,of Trumbull County.
    The original action was commenced by the plaintiff in error, against the defendants, before a Justice of the Peace, and appealed from the decision of the Justice, to the Court of Common Pleas of Trumbull county.
    In this latter Court, the plaintiff declared upon a promissory note, bearing date June 1st, 1845, payable to plaintiff or bearer, for the sum of ninety dollars, payable six months after date; charging the defendant, Abell, as principal maker, and his co-defendant, Palmer, as surety; and also declared in the common counts.

      To this declaration the defendant Palmer, Abell being in default, pleaded the general issue, and several special pleas. It is unnecessary to set forth these special pleas, as the raised in the case have no reference to them.
    At the February Term of the Court of Common Pleas, 1848, the case was submitted to a jury; and after the plaintiff had closed his testimony, the Court, on motion of the defendant, non-suited the plaintiff, and entered a judgment against him for costs. The plaintiff afterwards moved the Court to set aside the nonsuit, and to grant a new trial; which motion was overruled.
    A bill of exceptions was then tendered by the plaintiff, and allowed by the Court, showing the foregoing facts.
    This writ of error is prosecuted to reverse the aforesaid judgment, and the following errors are assigned:
    1st. That the Court erred in ordering the judgment of non-suit.
    2d. That the Court erred in refusing to allow the plaintiff to call a witness to prove that N. W. Palmer put his name on the note, when it was given, and that the note was executed by John Abell.
    3d. That the Court erred in refusing to sustain the plaintiff’s motion, to set aside the nonsuit.
    4th. That judgment was given for defendant, when it should have been given for plaintiff.

      Crowell 8f Brown for Plaintiff in Error.
    The plaintiff was non-suited because he did not prove the signature of Palmer, one of the joint makers of the note, on which suit was brought, whose signature was on the back of the note, instead of being on its face, under the signature of John Abell, the other joint maker.
    Did the Court err in ordering the non-suit? We think it did, and will briefly give the reasons for this opinion.
    By an Act to regulate judicial proceedings where Banks and Bankers are parties, (Swan’s Statutes, 149, Sec. 51,) it'is pro-when any sum of money due, and owing to any bank or banker, shall be secured by indorsement on the bill, note, or obligation for the same, it shall be lawful for such bank or banker to bring a joint action against all the drawers or indorsers, &c., and each defendant may make the same separate defence against such action, either by plea or upon trial, that he could have made against a separate action, &c.
    These joint actions were riot permitted to be brought in any other cases, except those where banks and bankers were parties, till the year 1844, when it was enacted, (Statutes of Ohio, vol. 42, p. 72, Sec. 1,) that the lawful holders of any'promissory note, due bill, or bill of exchange, might commence and prosecute joint actions' for money had and received against all the original makers and indorsers thereof, and may give such note or bill in evidence, and each of the defendants may plead separate pleas, and make separate defences, &c.
    This last Act, like the one regulating judicial proceedings, where banks and bankers are parties, does not alter the rule of evidence, or repeal the Act, dispensing with proof in certain cases, Swan’s Statutes, 325, Sec. 18. Its only 'object appears to be to change the practice of the judicial Courts, and place all other parties to suits on notes, or bills of exchange, on the same footing with banks and bankers.
    By the express terms of the act, dispensing with proof in certain cases, (Swan’s Stat., p. 325, Sec. 18,) on plea of nonassumpsit or nil debit offered by the person charged as the maker or indorser of any promissory note, or drawer, indorser or acceptor of any bill of exchange, it is not necessary for the plaintiff to prove the making of the note, or the drawing or accepting of the bill of exchange, upon which such suit is brought or any indorsement thereon, unless the party offering such plea, shall make affidavit of the truth thereof, or that any such indorsement was not made as it purports to have been, &c.
    This act, in terms, applies to the case at bar, and as Palmer made no affidavit of the truth of the plea which he interposed, the Court below was- clearly in error in non-suiting the plaintiff, because he did not prove Palmer’s signature. Such was unnecessary, for the reason that the statute, in so words, dispenses with it, unless affidavit is made of the truth of the plea.
    If Palmer had put his name on the note after it was made, or in any other capacity than as joint maker — if he had signed it, for example, as surety, it would be matter of defence for him to make out by proof. And the statutes of this State have removed the impediment which the common law had put in the way of such proof. Swan’s Statutes, p. 481-2, Sec. 26.
    The proof should properly come from the party, whichever it may be, that is to have the benefit of it. This is the legal, as it is the common sense rule, and there is no reason for departing from it. The law presumes that Palmer is a joint maker, and signed the note when it was executed by Abell.
    8 Met. Rep. (Mass.) 504 -— Union Bank .of Weymouth and Braintree v. Willis. In this case the Court say, “ But that the promise was made - at the same time with the note, is a fact which is to be presumed when the note is jn the hands of a bona fide holder, and nothing is shown to the contrary. The plaintiff is the payee, and .there is no pretence that he is not the bona fide holder.” At any rate, there is no proof to the contrary.
    The Court further say, “ if he put his name on the note, at the time it was made, he is a promisor, if after the making of the paper, he is a surety or guarantor, according to the agreement upon which he gives his signature.” The same doctrine, for which we now contend, js held by this Court in Bright v.. Carpenter and Shuer, 9 Ohio Rep., 139; and we cannot find that it has been seriously controverted in any reported case.
    But it was supposed by the Court below that the case of Champion and Lathrop v. Griffith, 13 Ohio Rep., 228, overruled Bright v. Carpenter and Shuer, and introduced a new rule. This, however, is a mistake, as will be seen on an examination of the case.

      It is plain, from the arguments of counsel and the opinion of Court, that proof was introduced to explain Griffith’s indorsement.
    The Court say, “ In the case at bar it was not shown when Griffith’s indorsement was made; but from the facts in evidence it is fair to presume, that his name was indorsed on the note, not at the time, but after its execution by Bridgman.” The proof distinguishes the case, therefore, from the one at bar, and the question now involved did not arise in .that case. Whatever was said by the Court, in pronouncing the opinion, in Bright v. Carpenter, touching the question now under consideration, was merely obiter dicta, and of no binding authority. When a stranger indorses his name on a note after its execution, he is a guarantor, and not a joint maker. Upon this point there is no disagreement, all the authorities appear to harmonize. By the express terms of our statute, when suit is brought against joint makers of a note, proof of their signatures need not be made, without the affidavit which the law requires; and the rule is not changed, if some of the signatures happen to be on the back, instead of being on the face of the instrument. The’ Court, therefore, was clearly wrong in ruling that the signature of Palmer, who was one of the joint makers of the note, ought to be proved.'
    The decision was wrong for another reason. Abell was in default of a plea, and plaintiff was certainly entitled to judgment against him. The statute authorizes separate defences, and a successful defence by one defendant cannot enure to the benefit of another, who has no defence, and who makes none.
    But as the principal error is decisive, others need not be urged.

      R. P. Ranney for Defendents.
    Suit was brought in this case upon a promissory note drawn by John Abell, and payable to. the plaintiff, six months after date, and dated June 10, 1845. The note was indorsed in blank, first by the plaintiff, and then by the defendant in error. The defendant also upon the back of the note acknowledged notice of non-payment, December 9, 1845. The plaintiff, the trial, gave in evidence this note and rested. ' The in error moved a nonsuit, which was granted by the Court, and subsequently .refused to be set aside; and the only question is, whether in this the Court below erred ? To determine this it is necessary to fix the character of Palmer, and the relation he sustained to the note. Was he indorser, guarantor, or joint maker ? He was sued with Abell, and declared against as a joint maker or surety. But where did his position upon the note place him, unexplained ? I contend that it showed him to be an indorser, and as such entitled to demand and notice. The note was nogatiable and appeared to have been first transferred by the payee by indorsement. Such names as might appear upon the note after his, would be presumed to be placed there as indorsers in the regular transmission of the paper from hand to hand in the course of business. When the title appears to have been transferred by the payee, such names as appear after his, cannot be said to be “ stranger’s names.” On the contrary,they may, and are presumed to-be, connected with the title as successive owners of the paper. In this case there was no evidence of any demand, and the notice acknowledged upon the note appears to have been given one day before the note fell due by its ■ terms, and four days before it was due in fact, the days of grace being added. No right, therefore, was shown to recover against the defendant as indorser.

    But suppose the note had not been indorsed by the plaintiff, and it had appeared that Palmer was a “ stranger ” to it, what character would then attach to him prima facie, without any explanation? This question isvdirectly-and positively answered by this Court in the case of Champion Lathrop v. Timothy . Griffith, (13 O. R. 228,) by deciding that “ The mere indorsement upon a note, of a stranger’s name in blank, is prima facie evidence of guaranty,” and that “ To charge such person as a maker there, must be proof that his indorsement was made at the time of execution by the other party, or, if afterwards, that it was in pursuance of an agreement or intention that he -should become responsible from the date of the execution,” that “ such agreement or intention might be proved by parol,” and that “ The rule was the same, whether the instrument was negotiable or not.”
    With the single exception alluded to above, (and which makes the decision below more clearly correct,) it is impossible for any man to point out the least distinction between this case and the case cited. In that case the Supreme Court nonsuited the plaintiff, and refused to set it aside when moved. • If the Supreme Court were right, how can the Common Pleas be wrong when they have “ followed in the footsteps.” I do not propose to discuss the correctness of that decision. It was recently made, fully discussed, and concurred in by the whole Court. I believe it rests upon a substantial foundation, and when a question of that kind is once settled by the Supreme Court by extracting the rule from the conflicting decisions of other States, the people and inferior tribunals have a right to repose upon it with confidence that it will not be overturned.
    It has been intimated that this decision conflicted with the decision it the case of Bright v. Carpenter fy Schuer, 9 O. It. 139. This supposition is incorrect. Evidence was there offered to show that Schuer was a joint maker of the note, and the question was, whether such evidence was admissible. The -Court held that it was, and gave judgment for the plaintiff. It is true that the Judge who delivered the opinion seemed to think the evidence unnecessary ; but that question did not arise in the case, nor was it decided by the Court. The refusal of the Court to hear evidence after the motion for a nonsuit was granted, was so clearly a matter of discretion, as to require no notice here.
   Hitchcock, J.

In this case Palmer was sued as joint maker of the note, although it is not attempted to charge him as principal, but only as surety. To sustain his action the plaintiff offered in evidence the following note:

“ Six months after date, for value received, I promise to pay William Robinson or bearer, ninety dollars, with use.- Warren, June 10, 1845.” ' '

. Signed “John Abell for John W. Abell.”

The note was indorsed as follows : “ William Robinson,”

“N. W. Palmer.”

“I acknowledge notice of N. P., Dec. 9, 1845. N. W. Palmer.”

No. farther testimony was offered.

Upon this evidence the Court, on motion of defendant, non-suited the plaintiff, and this ig the first error complained of. In order to determine whether in this there is any error, it is necessary to ascertain in what character Palmer is to be considered. The name of Robinson,' the payee of the note, is indorsed upon it, and afterward appears' the name of Palmer. Taking the note itself,'and the indorsements thereon, no one would hesitate to say that Palmer,was indorser, and that before he would be made liable, payment must be demanded of the maker, and if not paid, notice must be given. Palmer acknowledged notice of non-payment, but there was no evidence of any demand. There was not sufficient' evidence, then, to take the case to the jury either upon the special or general counts.

The plaintiff in error insists that Palmer is to be considered merely as a maker of the note, and that the only effect of his placing his name upon the back of the instrument is, to give him the character of a surety. Suppose that no other name but that of Palmer had been indorsed, would the production of the noté alone, without other evidence, have been sufficient to warrant a recovery by the plaintiff? This question is answered by this Court in the case of Champion and Lathrop v. Griffith, (13 Ohio R. 228,) in which it was held that the mere indorsement upon a note, of a stranger’s name in blank, is prima facie evidence of guaranty, ljut if made at the time of execution by the other party, or in pursuance of an intention to become responsible, it is an original undertaking, and such person will be held as maker, of the note.. It is said further, that such intention may be proved by parol. According to this decision, it was necessary for the plaintiff to have offered further evidence than the note itself, before he made out a 'prima facie case for recovery against Palmer as maker. And no other evidence being offered, the Court decided correctly in ordering the nonsuit.

After the nonsuit was ordered, the plaintiff moved to have it set aside, and offered proof to show that the indorsement was made at the same time the note was executed. The Court however overruled this motion and entered judgment, and this is assigned for error. Although as - a general rule, I should be disposed to set aside a nonsuit* and admit the evidence in a case like this, I am not aware that there is any principle of law which demands it. I suppose it is a matter which rests in the sound discretion of the- Court, and as the Court of Common Pleas, in the exercise of such discretion, overruled the motion, this Court cannot say that in so doing any rule of law was violated.

Judgment of the Court of Common Fleas affirmed.


text:
    Lewis Fagin vs. Peter Cooley's Adm’r.
    A deposition cannot be read in evidence on a trial at law, unless the deponent would be a competent witness if personally present in Court.
    The heirs of a deceased person are not competent witnesses in a suit in which the estate of the decedent is interested, unless it be shown affirmatively, that they have no interest in the event of the suit.
    This is a Wb.it of Eebob to the Supreme Court of Hamilton County.
    The original action was commenced in the Court of Common Pleas, by Cooley, in'his lifetime, against Fagin.
    The declaration is in assumpsit, and contains the common counts. To this declaration, a plea of the general issue was interposed by the defendant below.

      After trial in the Court of Common Pleas, the cáse was appealed to the Supreme Court; and during the pendency of the case in the latter Court, the death of Cooley was suggested, his administrator was made party, according to the statute in such case made and provided.
    At the last Term of the Court in Hamilton county, the case was submitted to a jury, and a verdict returned for the plaintiff, upon which judgment was entered..
    ■A bill of exceptions was then tendered by the defendant below, now plaintiff in error.
    This bill of exceptions shows that on the trial of the case, the deposition of Calvin C. Cooley was offered in evidence, by the defendant in error. This deposition was taken during the lifetime of Peter Cooley, but it was now objected to, on the ground that the deponent was the son and heir at law of Peter Cooley, deceased, and as such heir was interested in the event of the suit, although not interested at the time the deposition was taken. The objection was overruled by the Court, and the deposition read to the jury. To this opinion of the Court, the plaintiff in error excepted.
    The error assigned and relied upon, is,'that the Court in admitting. this testimony, mistook the law.

      Storer fy Gwynne, for Plaintiff in Error. "
    The original action here sought to be reviewed, was brought by Cooley against Lewis and Hiram Fagin. Hiram Fagin and Peter Cooley, subsequently deceased, and Nathaniel Montgomery, Administrator of Peter Cooley, was made party plaintiff. On the trial of the cause, the deposition of C. C. Cooley, a son of Peter Cooley, was admitted by the Court, and was, in truth, the sole evidence for the plaintiff. In admitting this deposition, we claim the Court erred. It is conceded that the deposition was taken before Peter Cooley’s death.
    This witness/being the son, was entitled, in whole or in part, as distributee, to his father’s estate. No will was made by the father; no evidence was offered by the plaintiff that the fathet",s estate was insolvent. The testimony of the witness, theref0l-g; J,a(] tim effect to transfer money into his own pocket. If presented on the stand to testify, he would clearly have been incompetent. Shepard v. Ward, 8 Wend. Rep. 542; Hampton v. Garland, 2 Hayw. Rep. 147.
    The rule in England is well established, that the deposition of a witness who becomes interested in the event of the suit, cannot be admitted in a case at law. 1 Phil, on Ev. 364; Bull. N. P. 242; Tilley’s case, 1 Salk. 286; Balter v. Fairfax, 1 Str. 101; Holcroft & Smith, 1 Eq. Cas. Abr. 224. Such depositions have sometimes been read in cases in Chancery. 2 Vern. 699; S. C. 1 P. Wms. 287; 2 Atk. 615; 2 Ves 42. But no case can be produced in England, where they have been permitted in the trial of an action at law.
    In Irwin v. Read, 4 Yeates Rep. 512, the deposition of a witness in life, who became interested after bringing the suit, and after giving his deposition, was held to be inadmissible; and in Chess v. Chess, 17 Serg. & R. 412, this rule was held to be clearly settled in Pennsylvania. It cannot, we suppose, make any difference in the rule, whether the witness does or does not become actually a party on the record, as administrator, if he is the party really interested as distributee. In 1 Greenleaf on Ev. 206, Mr. Greenleaf makes some remarks in favor of admitting the deposition at law, but he admits no express authority has been found for reading the deposition. As was said in 4 Yeates, 512, the rules of Chancery, as to evidence, have never been adopted at law, otherwise the conscience of the defendant might be purged at law.
    In Gold v. Eddy, 1 Mass. Rep. 1, the deposition of a party taken in the original cause, was admitted in the review of the case, after some hesitation, on the ground that the law required the same testimony to be heard on the review, as was offered in the original cause.
    In Jones v. Scott, 2 Ala. Rep. 58, the deposition, taken before the interest was acquired, was excluded. In Le Baron v.
      Crombie, 14 Mass. Rep. 236, the Court, per Parker, C. J., held that the testimony given by a witness in a former trial of the same case, the witness having been in the mean time of an infamous offence, was not to be received, and recognized the rule above stated as prevailing in England, that a supervening interest excludes the deposition.
    Apart from other wide differences between the practice at law and in Chancery, this distinction may be pointed out between depositions, in tribunals acting under the different systems. All evidence in Chancery is by deposition. The evidence of a witness in Chancery, stands as of the day when it is taken, to be used whenever the hearing of the cause comes on. A deposition at daw, is only admissible in certain cases, where the witness is ancient or very infirm, resides out of the county, or intends to leave before the time of trial. When the deposition is taken, it is not certain that it will, or can be used on the trial; it is, in reality, taken de bene esse-. If, at the trial, the witness has ceased to be infirm, or is within the county, he must be present in Court. This fact shows, that the deposition speaks as of the day of trial, and the right of the witness to testify, must be governed by his interest at that time.
    If the witness happens then to be a non-resident, or out of the county, he certainly stands in no better position than if he were present. If present, he could not testify; and yet it is said that, although he cannot open his mouth, something before taken from his lips shall be read to the jury, perhaps in his presence. This is placing the wi|iess as if he were dead — recognising a death, such as no aüthority has contemplated. The doctrine is an interpolation on the law.
    Professor Greenleaf has carried the doctrine to its limit; for certainly, if it prevails, whatever evidence the interested witness gave orally on a former trial, may be offered in a subsequent trial, in his own behalf, if any one can be found who remembers it. The attempt to go as far as this, has, we venture to say, never been made.

      It will .be borne in mind, that the position in which C. C. Q00]e„ stands, has not been the act of the defendant, He has J assumed it, to be sure, by the act of the law, but we have a right to say, not involuntarily; for he might very easily have released his interest, and made himself competent. But he does not do so.
    We admit that a witness cannot deprive a party of his testitimony, by rendering himself incompetent. This rule goes upon the principle that a door would thus be opened to fraud and injustice. It does not apply where the witness becomes a party interested in, and who receives part of the fruits of the suit. Nor does it extend to a case where the interest devolves on the witness by act of law, or by an accident happening without his agency, 2 J. J. Marsh B.ep. 332-3; 1 Greenlf. on Ev. <§> 167; or where the interest is acquired bona fide, in the usual and lawful course of business. 1 Greenlf. on Ev. <§> 167, 418. -If a witness acquires a subsequent interest, by the act of the party producing the witness, he is disqualified., 1 Greenlf. on Ev. <§> 418.
    The position of Professor Greenleaf, on this subject, is contradictory. While, in § 167, be treats of those cases'in which proof of former testimony of a witness may be admitted, and admits, that if he becomes interested in the subject matter bona fide, he cannot testify, unless he releases his interest, and that the same principle applies to an interest arising by operation of law, upon the happening of an uncertain event, such as the death of an ancestor, he yet, in ,¡§> 168, intimates that a former deposition should be received in a case at law. Surely, the same rule which admits the deposition, would admit proof of what the witness had before stated orally, while under oath.
    Had C. C. Cooley, in this case, been presented on the stand as a witness, we might have examined him on his voire dire. Having then disclosed his interest, he must have been rejected ; and so, we think, should his testimony have been, whether oral or written.

      Fox French for Defendant in Error.
    We maintain the witness had no interest in the result of the suit at the time his deposition was given, his father was then living, and of course he had no more interest in the result of the suit than any other child or servant has in his father’s or mother’s business. 1 Greenleaf Ev. § 386.
    The interest to exclude a witness must be a present, certain and vested, not an uncertain and contingent one. Hence “ the heir apparent to an estate is a competent witness in support of the claim of his ancestor.” 1 Greenleaf Ev. <§> 390.
    The interest must exist at the time the witness is examined; a subsequently acquired interest is not sufficient.
    This must of course be the case where the witness is examined in open Court; the same rule holds where a deposition is taken. The reason why an interested witness cannot testify is, because the law will not hold out any temptation to the witness. Of course that reason only holds where the interest is vested and certain when the. witness is examined. That is the time when he will, if at any time, be affected by his interest. If he has no interest when examined of course it cannot affect his testimony.
    In >§> 168, 1 Greenleaf Ev., this question is discussed, and the writer shows that it is well settled that a deposition taken in a Chancery cause is admissible if taken while the witness was not interested, and says “ the analogies of the law are altogether in favor of admitting the evidence.” He also says that in 17 Searg. & Rawle 412, it was conceded there is no reason for any distinction, but the practice had been otherwise.
    On the same principle we maintain that our practice in Ohio has always been to admit the deposition if taken while the witness had no interest in the result of the suit. We have then the practice established in Ohio at law.
    The reason of the thing itself, and the practice in Chancery, all uniting to sustain the opinion of the Court delivered on the Circuit, viz : “ That the deposition of a party taken when he had no interest may be read in- the same cause after he acquires an interest in the result of the suit by the death of his father.”
    But we maintain farther, it was the duty of the plaintiffs in error to have shown that the witness was in fact interested in the result of the suit. We show he was not interested at the time; if the plaintiffs object to the testimony, they must show that the witness had since become interested ; is that shown merely by proving him to be a child of the original plaintiff?
    By, the law of Ohio the widow and the children are entitled to an allowance for a years support, and if a child can claim any thing, as heir, must he not first show the estate was solvent and more than sufficient to pay the allowance to the widow, &c. If the heir must show these facts in order to recover, must not any other person, who attempts to show an interest, prove the same facts ?
    We claim, therefore, that the deposition was clearly admissible under both views of the case. '
   Hitchcock, J.

The simple question which arises in this case is, whether in the trial of an action at law, the deposition of a witness, which was taken while the witness was disinterested, can be read in evidence, if at the time of trial he is interested in the result of. the suit. That under such circumstances, a deposition might be read on the hearing of a case in Chancery, I suppose there can be no doubt. The authorities are numerous to show that in Chancery, an interest cast upon the witness, subsequent to his giving his deposition, will not of necessity operate to exclude that deposition from the consideration of the Court. In the 168th § of the first volume of Greenleaf’s Evidence, the author says “If in cases of disqualifying interest, the witness has previously given a deposition in the cause, the deposition may be read in Chancery, as if he were since deceased, or insane, or otherwise incapacitated. It may also be read upon the trial at law, of an issue out of Chancery. In other trials at law, no express authority has been found for reading the deposition; and it has been said that the course of practice is otherwise; but no reason is given, ° the analogies of the law are altogether in favor of the evidence.”

It was in consequence of this dictum that I advised the admission of the deposition excepted tp in the case now before the Court, and afterwards for the purpose of bringing the question before a full Court, united in the allowance of a writ of error. It is true as the learned author says, that no express authority had been found for reading the deposition under such circumstances, but numerous authorities are found establishing a contrary rule. Some of these authorities are cited in the argument of counsel for the plaintiff in error, and would seem to be conclusive upon the point; and there is, to say the least of it, some reason why a different rule should prevail. In trials at law, witnesses must, as a general rule, be examined in open Court. It is only under peculiar circumstances that depositions can be read. If Calvin C. Cooley had been within the jurisdiction of the Court, and offered as a witness, he must have been excluded on the ground of interest; and it would seem to be inconsistent to admit the deposition of a. witness, who could not, at the time the deposition is offered, be admitted to testify. The admission or rejection of the testimony would be made to depend, not upon the competency of the witness, but upon the fact whether he was or was not within the jurisdiction of the Court. Upon consderation the Court are of opinion that it is safer to rely upon the uniform authority of adjudicated cases, rather than upon the opinion of an elementary writer.

But it is urged by counsel for defendant in error, that the interest of the witness in this case is not such as to exclude him, because from ought that appears, the estate of the father may be insolvent, and it is urged that it was the duty of the objector to show that it was not insolvent. , We think otherwise. Upon the death of the father, his heirs acquire a direct interest in his estate. It is the same interest which he had in his lifetime, although their claims must be postponed to those of creditors. In the prosecution of a suit, either in favor of or against the personal representatives, if any of the heirs are offered as witnesses, the law will presume them to be interested until the contrary appears.

The Judgment of the Supreme Court is reversed, and the cause remanded to the county of Hamilton for further proceedings.


author: Reed J.

text:
    James Devore vs. Abraham Sunderland.
    Whether the covenants of seizin and of power to convey are personal or real, and running with the land, depend upon the fact whether the grantor is in,possession or not, at the time of the conveyance.
    If the grantor be in actual possession, these covenants attach to, and run with the land, and are not broken until eviction by title paramount.
    If the grantor be not in actual possession, either in fact or in law, the covenants are in presentí and personal, and no one can maintain an action on their breach, but the grantee to whom they were directly made.
    This is a Writ of Error directed to the Court of Common Pleas of Muskingum County.
    The original action was Covenant. The declaration contained two counts— the first of which set forth that the defendant and his wife, on the 29th day of October, 1828, by their deed of that date, duly executed, attested, acknowledged and delivered, in consideration of one hundred dollars, gave, granted, bargained, sold, aliened, conveyed, and confirmed unto one Joseph Gorsuch, his heirs and assigns, Lot 15, in Range 8, Township 2, and Section 1, in the “United States Military District,” with all the appurtenances, privileges and commodities to the same belonging, or in ■ any wise appertaining; and that the defendant did, by such deed, covenant with Gorsuch, his heirs and assigns, “that before and until the sealing and delivery of the said deed, he, the said defendant, was lawfully seized in fee of the premises and appurtenances — that he had good right, full power and lawful authority in the same, to and convey the same to Gorsuch — and that the premises free from ajl former gifts, grants, or other incumbrance whatever.” It is averred that Gorsuch, on the 14th day of January, 1830, by his deed of that date, duly executed, attested, acknowledged, and delivered, in consideration of one hundred and seventy-five dollars, conveyed the same premises unto one Isaac Garrett, his heirs and assigns, and that said Garrett, on the 28th day of June, 1831, by his deed of that date, duly executed, attested, acknowledged, and delivered, in consideration of one hundred and fifty dollars, conveyed the same to the plaintiff, his heirs and assigns.
    The breach assigned is — that the defendant, before and until, or at the time of the sealing and delivery of his deed to Gorsuch, was not lawfully seized in fee of the premises; nor had he then, or any lime before, or afterwards, good right, full power, and lawful authority, to sell and convey -the premises, or any part thereof, as the same were sold and conveyed, or intended to be sold and conveyed to Gorsuch .; nor were the premises then, nor have they at any time since been, free from all former gifts, grants, or incumbrances whatever; but on the contrary thereof, at the time of the sealing and delivery of the deed to Gorsuch, the paramount title and freehold of the premises were, and ever since have been, and still are, in other persons than the defendant, or those claiming under him; by virtue of which paramount title, the plaintiff afterwards, on the 1st day of January, 1844, was evicted out of and from the premises.
    The second count is similar to the first, in all respects, except that it sets forth the covenants of the defendant, contained in .the deed to Gorsuch, as being, that the defendant and his wife were lawfully seized in fee of the premises — that the defendant and his wife, had good right, full power and lawful authority in the same to sell and convey the same to Gorsuch, and that the premises were free from all former gifts, grants, or other incumbrance whatever; and assigns for breach — that the defendant and Ms wife, before and until, or at the time of the sealing and delivery of the deed to Gorsuch, were not, nor was either of them, lawfully seized in fee of the premises; nor had the defendant and Ms wife, or either of them, then, or at any time before or afterwards, good right, full power and lawful authority to sell and convey the premises, or any part thereof, as the same were sold and conveyed to Gorsuch, nor were the premises then, nor have they at any time since, been free from all former gifts, grants, and incumbrance whatever; but on the contrary thereof, at the lime of the sealing and delivery of the deed to Gorsuch, the paramount title and freehold of the premises were, and ever since have been and still are, in other persons than the defendant and Ms,wife, or those claiming under them ; by virtue of which paramount title the plaintiff, afterwards, on the 1st day of January, 1844, was evicted out of and from the premises. '
    The defendant put in the plea of non est factum, without any affidavit of its truth.
    He filed, with this plea, a notice of divers special matters, to be given in evidence by him, in bar of the action. The notice sets forth —
    1st. That it was not intended by the defendant and Gorsuch, that the defendant should execute to Gorsuch a deed containing any covenants, or that any other than a quit claim deed should be given ; and that the covenants contained in the deed counted upon, were inserted thereto by mistake.
    2nd. That the defendant was never seized in fact, or in actual possession of the premises mentioned in the declaration — that the premises were wild land, purchased by the defendant, at an Auditor’s sale for taxes.
    3d. That it was well known to the plaintiff, that, the defendant was never in actual possession of the premises — that the same were wild land, whew purchased by him and sold to Gorsuch— that they had been purchased by the defendant at an Auditor's sale for taxes — that the title thus acquired was doubtful and well known as such to the plaintiff, and that for these reasons the premises were purchased-by the plaintiff, and those through whom he claimed, for a nominal consideration, compared with what would have been their true value, if the title had been considered beyond doubt.
    The cause came on for trial at the November Term, 1846, of the Court of Common Pleas. The Court, upon the objection thereto by the plaintiff, rejected the evidence offered by the defendant, of the alleged intention of the parties other than that expressed in the deed counted upon, and refused to allow proof to be given of the alleged mistake as to the covenants in the deed. The defendant, however, was permitted under his notice, to give evidence tending to show, that at the time of the conveyance from'the defendant to Gorsu.ch, the premises were wild, and that the defendant had not been in the actual occupation thereof. The jury, under the instruction of the Court, returned a verdict for the defendant.
    The pláiritiff moved the Court to set aside' the verdict, and to award a new trial, assigning as reasons therefor —
    1st. The misdirection of the Court to the jury in matter of law.
    2d. That the verdict was against evidence.
    The'Court overruled the motion and rendered judgment upon the verdict.
    ThP plaintiff tendered his bill of exceptions, which being signed and sealed by the Court, and made part of the record, is as follows :
    “ Be it remembered that on the trial of this cause, the execution and delivery of the several deeds of conveyance mentioned in the declaration were proved — all as stated in the declaration; and that the plaintiff had been evicted, by paramount title, on a recovery had against him, in ejectment, in the Supreme Court of Muskingum county.
    The several deeds described the premises as Lot 15, Section 1, Township 2, Range 8’, United States Military; and stated that it was the same premises that had been sold to the defendant for taxes, and conveyed to him by the Auditor of Muskingum county, and the deed from the Auditor to him, was referred to, as recorded in the Recorder’s office of Muskingum county. It was further proved that the premises, after the purchase of the defendant, at the tax sale, stood listed on the duplicate of said Auditor’s Office, for taxation, in the name of the defendant, from 1825, up to 1830; that it . appeared by the books in the Auditor’s Office, that during all that time the taxes had been regularly paid; but the books did not show by whom payment had been made; and here the plaintiff rested his casé: Wheréupon, the defendant moved the Court to direct a nonsuit, because the plaintiff had not alleged and proved that,' at the time the defendant made the conveyance to Gorsuch, he had a seizin in deed of said tract of land, which motion was overruled by the Court.
    It was then proved by the defendant, that at the time of the conveyance by the defendant to Joseph Gorsuch, mentioned in the declaration, the- defendant held a deed for the premises from the said Auditor, and that the premises were, at the time of such conveyance, as well as at the.time of the purchase thereof by the defendant, at the tax sale, wild and uncultivated land —no person residing thereon.
    That after the conveyance to Gorsuch, the premises were listed in his name, for taxation, on the Auditor’s books, and when he conveyed the same to Isaac Garrett, as mentioned in the declaration, the witnesses stated, that they believed, accord ing' to the best -of their recollection, (though not positive,) that preparation had been made, by Gorsuch, for building a cabin — a spot cleared up and some timbers cut for that purpose — that Isaac Garrett, after the conveyance to him, by Gorsuch, mentioned in the declaration, cleared and fenced a part of the premises, and cultivated the same and built a cabin thereon,-in which he resided up to the time of his conveyance to the plaintiff, mentioned in the declaration; after which last mentioned conveyance, the plaintiff made extensive improvements upon the premises and resided thereon, until evicted under the judgment in ejectment.

      It was further proved that the defendant, after his purchase at the tax sale, and before his conveyance to Gorsuch, said he had been on the land once.
    It was further proved that he had cleared no part of the premises, and that he had never resided thereon ; but resided five or six miles from the same — nor cut any timber therefrom, but that he claimed the premises as his own; and that while he held them under his tax purchase, they were called and known in the neighborhood as “ Sunderland’s land,” until the conveyance to Gorsuch, and then as “ Gorsuch’s land,” until the conveyance to Garrett, and then as “ Garrett’s land,” until the conveyance to the plaintiff, and that the plaintiff resided three or four miles from the premises, before his purchase thereof.
    Upon this evidence the Court charged the jury, that the plaintiff was not entitled to recover on the covenant contained in the defendant’s deed that the defendant “ was lawfully seized in fee of the premises,” unless it appeared that the defendant was, at the time of his conveyance, in the actual occupation of the premises, by himself of tenant under him — that, to support this action, there must have been a visible possession by the defendant on the land itself — what is called in law, a pedis possessio — that actual possession of land consists in going upon the premises and remaining there and making some improvement thereon — that the fact of the defendant claiming the land as his own, although the deed from the Auditor to him was on record in the Recorder’s Office, and no person was in the occupation of the premises, was not sufficient; nor was it sufficient that the defendant, while he was thus claiming the premises, had once actually gone upon them and viewed them, unless he left behind upon the land itself, some visible marks of ownership — that the payment of taxes, and other facts proved in the case, did not constitute such a possession as would sustain the action, without actual occupation of the land, or some part of it, in the manner above stated. To all which opinion and charge of the Court, the plaintiff excepts.
    And as to the covenant of “ good right, full power, and lawful authority to sell and convey the premises,” also contained in the defendants’ deed, the Court further charged the jury, ’ that the plaintiff could not recover upon that covenant, ■ because it was a personal covenant, not running with the land; and could not, therefore, avail the plaintiff — the right to sue thereon belonging to Gorsuch alone,. and not passing by his deed to his assigns. To all which opinion and charge of the Court, the plaintiff also excepts, and prays the Court here to sign and seal this his bill of exceptions, and that the same may be made a part of the record in the cause, which is accordingly done this 5th day of December, in the year of our Lord, eighteen hundred and forty-six.”
    Upon this record, the plaintiff sued out his writ of error from the Supreme Court to the Common Pleas, praying the reversal of the original judgment, and assigning error in this:
    1. In the charge of the Court of Common Pleas to the jury, that the plaintiff was not entitled to recover upon the covenant of seizin, contained in the deed of the defendant, counted upon in the declaration.
    2. In the charge of the Court, that the plaintiff ought not to recover upon the covenant of right to convey, also contained in the said deed of the defendant.
    3. In that the motion for a new trial ought not to have been overruled; but the verdict ought to have been set aside and a new trial awarded.
    4. In that the jury were not warranted in law, in finding the issue of non est factum in favor of the defendant, there being no affidavit of truth, of the. plea made by the defendant.
    ' 5. In that the said judgment was given for the defendant, when by the laws of the land, it ought to have been given for the plaintiff.

      C. C. fy T. Corners, for Plain tiff, in Error,
    Contended as to both the covenants in the deed •— the covenants of seizin and of right to convey — that they run with the land, and pass to the assignee ; whether the grantor, at the time of the conveyance, be in the actual possession of the premises or not. In support of this position they cited the following authorities: Kingdom, v. Nottle, 1 Maulé & Selwin’s Rep. 355 and 4 do. 53; King v. Jones, 5 Taunt. Rep. 418; Martin v. Baker, 5 Blackford’s Rep. 232; 2 Sug. on Vend. 458; Lewis v. Ridge, Cro. Eliz. 863; Lucy v. Levington, 2 Levinz, 26; S. C. 1 Ventris, 175; Foot v. Burnet, 10 Ohio Rep. 332; McCrady’s Ex’r v. Brisbane, 1 Nott & McCord, 104; Slater v. Rawson, 6 Met. Rep. 439.
    They further claimed that the plaintiff was entitled to recover upon the implied covenant of warranty arising from the word “ give,” contained in the deed of the defendant; and to that point the following authorities were cited : Young v. Hargrave’s Adm’r, 7 Ohio Rep. 63, part 2 ; Coke Lit. 384, note by Hargrave, 332; Perkins, sect. 124; Shep. Touch. 181; Holden v. Taylor, Hobart, 10; Frost et al. v. Raymond, 2 Caine’s Rep. 188; Kent v. Welch, 7 Johns. Rep. 258; Grannis v. Clark, 8 Cowen’s Rep. 36; Platt on Covenants, 47.

      Goddard if Eastman, for Defendant in Error,
    Cited the following authorities: Mitchell v. Warner, 5 Conn. Rep. 497; Shep. Touch. 170; Beckford v. Page, 2 Mass. Rep. 460; Marston v. Hobbs, 2 Mass. 437; Bennett v. Irwin, 3 Johns. Rep. 365; Abbott v. Allen, 14 Johns. Rep. 253; Greenby v. Wilcocks, 2 Johns. Rep. 1; Backus v. McCoy, 3 Ohio Rep. 211; Kent v. Welch, 7 Johns. Rep. 260; Vanderkarr v. Vanderkarr, 11 Johns. Rep. 122.
   Reed J.

The determination of this case depends upon the nature of the covenants of seizin and of power to convey.

These covenants are synonymous, but not converse.

If a man be seized in fee, he has the power to sell, but he may have the power to sell and not be seized.

- When, therefore, the power to sell results from seizin, the two covenants are inseparable and of the same nature, and in such case if the one be real the other is real, and if the one be personal the other is personal. Hence, in such case, if an action would lie upon the one it would upon the other; but dam-upon the one would be satisfaction for both. But by declaring upon both in separate counts in a declaration, the one cannot be treated as real and the other as personal. The one cannot be considered personal, stopping with the first grantor, and the other real, running with the land. Therefore, when the Court, in their charge to the jury, treated the covenant of seizin as one which ought, under certain circumstances, run with the land, and the covenant of power to convey as always personal, they erred in respect to the unity of these- covenants. But in the present case both covenants were personal, and as the judgment was in conformity with the law, no injury was shstained by the plaintiff by such charge. These covenants then will be treated as identical in the further consideration of this case, as they possess the same legal qualities and are attended with the same legal results.

The covenant of seizin is in presentí or in futuro, and may be personal or real. If it never attach to the land it is instantly broken and personal, if it once attach, it is real, and runs with the land.

If the grantor be in actual possession, claiming adversely, the covenant of seizin runs with the land, and is not broken until the purchaser, or those claiming under him, are evicted by paramount title. But if the grantor is not in actual possession, and has not title, the covenant of seizin is instantly broken, and is personal. If under Such circumstances the grantee should see proper to convey, the purchaser from him could not sue upon the original covenant of seizin as with the first grantor, he is neither in privity of estate or contract; and the covenant, in such case, being personal, is a chose in action not transferable, but remains to the first grantee. This conclusion is not only-supported by numerous authorities, but is expressly laid down in the case of Backus v. McCoy, 3 O. Rep., to which we still adhere.

But it may be contended that in this case the original grantor was in possession. This is not true either in fact or law. The land has been recovered by title paramount, and thus there was no title in the original grantor, which could draw the possession, and in point of fact there never was any actual Thus there never having been any possession in law or fact, the covenant of seizin and power to convey were personal, and no one could sue upon their breach but the first grantee.

We do not find, therefore, that the jury were misdirected in any material point as to matter of law, or that the jury were not warranted in their verdict. The motion for a new trial was therefore properly overruled, and judgment entered upon the verdict.

Judgment affirmed.


author: Avery, J.

text:
    Baltzer Eversole vs. Adam Plank.
    In an action of trover for an undivided third of certain goods, claimed as in partnership, it is sufficient in a plea in bar of verdict and former judgment for the identical goods, to aver a taking and conversion of the whole.
    Where the same pica avers a breaking of the close, and taking and carrying away the identical goods, it is not necessery to aver further, that it is the same taking.
    The same averment is sufficient where the facts are set out and found under a notice attached to the general issue in trespass.
    This is a Writ ok Error to the Court of Common Pleas of Perry County.
    The original action was trover, brought by Eversole against Plank, to recover one third part of certain goods, wares and merchandize which the plaintiff possessed and owned in the capacity of partner of John R. Irick & James Stewart.
    The declaration, besides the general and usual count in trover, has one charging that the goods came into the hands oí one David Fay, as sheriff of said county, by finding, and that the defendant conspiring with Fay received and procured him to sell the goods and apply the proceeds to the use of the defendant.

      The defendant plead the general issue, and two special pleas. To the second plea the plaintiff demurred, and to the third he filed a replication, and to this replication the defendant demurred.
    The only question arising in the case is upon the third plea, the second being confessedly bad.
    The third plea sets up as a defence, that the plaintiff had before sued the defendant for the same goods, in an action of trespass, for breaking and entering the plaintiffs close and carrying away the same goods, averring that they were levied on as the property of Irick & Stewart, and a finding of the jury for the defendant upon the merits.
    The 'replication avers that it was not a material question growing out of the issue joined in said cause, whether the plaintiff was or was not owner of one third of the goods as partner of Irick & Stewart; but the only question was, whether the plaintiff was the owner of the whole in his own right.

      Thomas Ewing, for Plaintiff in Error.

      Henry Stanbery, Attorney General, for Defendant.
   Avery, J.

The sufficiency of the third plea in the original case, is contested, under the demurrrer to the replication.

If the jury, in the action of trespass, actually passed upon the right to the property now in controversy, that is, to the one third of the goods held, as it is claimed, by the plaintiff, as a partner with Irick & Stewart, then the same question cannot be tried again, so long as the judgment rendered upon that verdict remains unreversed; and a plea. technically drawn for the defendant, will protect him from such second trial.

This, then, is a question purely of pleading; it has been entirely so treated in the argument, and it has been critically examined by the counsel upon both sides, and fully discussed.

The plea avers that Adam Plank filed his plea, that he was not guilty of the trespass, and attaching a notice to the plea, that the goods were levied upon as the property of John Irick and James Stewart, in virtue of an execution, and that the goods were in fact, at the time of the levy, the property of Irick Stewart, but then in the possession' of said Baltzer, under a fraudulent sale to him by Irick & Stewart, and that the goods were sold by the Sheriff, in part satisfaction of said judgment. The plea further avers, that issue being joined thereon by said Baltzer, further proceedings were had; the issue so joined was submitted to the jury, who returned a verdict that said Adam was not guilty, and thereupon the Court rendered a judgment against the plaintiff for costs; that issue was joined, and a verdict rendered upon the merits.

Either trespass, or trover, is an appropriate form of action for goods seized as these are alleged to have been; and if the right to the property was passed upon in the first suit, no action of trover could afterwards be brought, any more than a second action of trespass. This will be true, whether the verdict was rendered upon the general issue, with a special, plea in bar, or the general issue and notice, though the record is made up differently in the two cases. When the verdict is upon a special plea, the verdict shows a distinct finding on that plea. When a notice, only, is attached to the general issue, the finding of the jury upon the facts stated in the notice, when they are all found for the defendant, no where appears of record. . Nothing is there, except the verdict of “ not guilty,” and a judgment for the defendant.

The facts found by the jury, then, under the notice, if the law allowing such a proceeding is to be carried out, must be brought before the Court by averment, and cannot be verified by the record. No objection, however, is made to this. But it is claimed that this third plea does not show the issue to be the same in both cases; that the declaration in trover is for one third of the goods, owned by the plaintiff, as a partner with Irick & Stewart, and that in the action of trespass, no such point was in issue; that the Sheriff, under his levy, becoming a tenant in common with the plaintiff, trespass could not lie against the Sheriff, or the judgment creditor, in whose behalf they were gejze(j

Now, if this defence in the action of trespass had been made by plea instead of notice, the jury in case they had given a verdict for the defendant, must have found that, at the time of the levy, the goods were in fact the property of Irick & Stewart, and not of said Baltzer, either in whole or in part; and that they were in Eversole’s possession by virtue of a fraudulent sale to him from Irick & Stewart, and were sold in part satisfaction of the judgment. If the goods were in Eversole’s possession, without any right to the possession, and in fact were the property of Irick & Stewart, no ownership more comprehensive could be found — and it would seem to be as clear a denial of the finding of the jury to assert that a third part of the goods in fact belonged to Eversole, as to. assert that the whole belonged to him.

But it is said further, that the averment in the plea is of the fact itself, that the goods were the property of Irick and Stewart, and not of the finding by the jury of that fact. The words are, “ and the said Adam avers that the finding of said jury was not upon any formal or technical ground, but on the very merits of the case, and because the said goods and chattels were the property of said Irick & Stewart, and not of the said Baltzer, either in whole or in part.” It may be held, we think, that the finding on the merits, and because, &c., is substantially a finding that the goods were the property of Irick & Stewart, and the words used by the pleader sufficient.

A passage in Stephens, pages 352 and 353, is referred to, treating of certain pleas, which are regarded unfavorably by the Courts as having the effect of excluding the truth; such are all pleas of estoppel and the plea of alien enemy. It is said these must be certain in every particular, which seems to amount to this, that they must meet and remove by anticipation every possible answer of the adversary.

The principle is cited to bear upon the part of the plea before remarked upon, which did not allude to the third part of the goods, and is said to be bad, if it admit any possible replication, which does not take issue. The stringent principle noticed above, would be needed, I think, to apply to the case. But though in a plea of alien enemy, such a rule might be proper enough, or one even that, at the present day, would strike it from the list of pleas, still I do not understand that the same strictness is applied to the plea of “judgment recovered.” The English forms for such a plea are particular and minute, and some of them have averments that are not found in the present plea. Amongst other things, they aver that the judgment remains in full force and not reversed. Now, if to meet and reverse by anticipation every possible answer, be the trué rule to apply to such a plea, then the averment that the judgment, without which this verdict could not be supported, is still in force, seems indispensable. But the counsel has not noticed this as a defect, knd it can hardly be so considered, nor have we so regarded the defect pointed out and examined.

Further, it is contended that the plea is bad, because it does not aver that the taking and conversion in both cases are the same. The plea states that the plaintiff sued out a writ against the defendant, for breaking the close, and taking and carrying away the identical goods in this. declaration mentioned; and that in the declaration in trespass, the plaintiff had alleged that defendant had taken and carried away the said goods, and converted them to his own use. It is possible, indeed, to conceive that another and different trespass may have been committed by the defendant, upon the identical goods. But the whole tenor of the plea so strongly indicates that the wrong is identical in the two suits, that, in the opinion of the Court, the rules applicable to this plea do not condemn it for the fault pointed out.

Of this plea, it may certainly be said, that it is less encumbered with senseless words and formal averments than some of those found in the English and American books of forms; but upon a full examination of the plea, we believe it to contain all the essential allegations, and to be a sufficient plea.

Judgment affirmed.


text:
    Elias Johnson vs. Jacob Nyce’s Executors.
    An. action for a breach of the covenant of warranty in a deed, cannot be sustained until there has been an eviction, or something equivalent.
    A claim for dower, is covered by the covenant of warranty, and if such claim be prosecuted, dower assigned by metes and bounds, and the widow put in possession, the covenant of warranty is broken.
    In such case, the rule of damages would be the amount of the depreciation of the value of the fee simple interest, in consequence of carving out the life estate, estimating the value of the fee simple interest according to the consideration money paid to the covenantor.
    If, in the prosecution of such claim, dower is assigned as of the rents, issues and profits, and made a charge upon the land, it is equivalent to an eviction.
    If a gross sum is assigned in full of dower, the decree to be enforced by execution, there is no breach of the covenant of warranty.
    This is a Writ or Error, directed to the Court of Coni' mon Pleas of Sandusky County..
    The original action was covenant. The declaration was demurred to and the demurrer sustained by the Court, and judgment entered in favor of the defendants. It is now sought to reverse this judgment, and the errors assigned are, 1st. That the declaration is sufficient in law, and that the Court erred in sustaining the demurrer. 2d. That judgment was rendered in favor of the defendants when it should have been rendered in favor of the plaintiff.
    If is alleged in the declaration in substance, that Jacob Nyce, late of the county of Sandusky, deceased, and of whose last will and testament, the defendants are executors, with Margaretta' his wife, on the 10th day of June, 1830, by deed of that date duly executed, for the consideration of three hundred dollars, sold and ■ conveyed to one Peter Carsner, his heirs and assigns, seventy acres and seventy-eight perches of land, which is decribed in the declaration ; and that “ the said Jacob Nyce did then and there and thereby by the same deed for himself, his heirs, executors and administrators, covenant to and with the said Peter Carsner, his heirs and assigns, among other things, that he would forever warrant and defend said premises with the appurtenances, against all and any other person or persons whomsoever, lawfully claiming or to claim, by, from or him, them or any of them, or in any other manner whatsoever;” It is further alleged that .said- Carsner died, and that his heirs subsequently conveyed the same premises to the plaintiff, who, in 1832, entered into the possession and enjoyment of the same, a,nd ought to hold and enjoy the same as a good and indefeasible estate in fee simple, free from all incumbrances, according to the aforesaid covenant of said Jacob Nyce, “ and the plaintiff, in fact, says that the said Jacob Nyce, at the time of the ensealing, &c., had not, nor hath he had at any time since, a good and sufficient title to said last mentioned lands and premises, free from all claims and incumbrances, but on the contrary plaintiff avers, at the time of, -and prior to the execution and delivery of said deed by said Jacob Nyce, to said Peter Carsner, one Jane McLain had a contingent right of dower in said premises by virtue of her coverture with one Alexander McLain, who had, during the coverture, been seized,”. &c. It is further alleged that said Alexander McLain died in March, 1844, and that at the June term of the Court of Common Pleas of Franklin county, the county in which said lands were situated, the said Jane McLain filed her petition for dower, which petition the plaintiff answered and made due defence, “ and such proceedings were had therein by said Court, that after-wards, and at their November term, 1845, do.wer in all of said lands and premises was duly assigned and confirmed unto the said Jane McLain, at the gross sum of one hundred and thirty-seven dollars and fifty cents, which the plaintiff was thereby ordered to pay to the said Jane McLain, in full for her dower interest therein, together with two-thirds of the costs of suit, in sixty days after said November term, and in default thereof that execution issue as upon judgments at law; all of which will appear by certified copy of such proceeding and decree for dower, duly authenticated and now to the Court here shown, by means whereof the plaintiff has paid and been made liable to pay, a large sum of money, &c., of all which the said Jacob Ny°e an<^ ^ie defendants had notice,. &c., and were requested pay, &c., but have wholly neglected and refused, and still neglect, &c., and, so the plaintiff says, that the said Jacob Nyce, did not keep his covenants herein set forth, nor any or either of them, but broke" the same, nor have said executors or either of them, or any other person, kept said covenants or either or any of them, but have broken the same, to the damage,” &c.

      Watson &f Johnson, for Plaintiff in Error.

      R. P. Buckland, for Defendants.
   Hitchcock, J.

It will be seen by the declaration in this case, that the covenant, and the only covenant contained in the deed, for the breach of which it is sought to recover damages in this case, is the covenant of warranty, and the question raised is, whether the declaration is sufficient to entitle the plaintiff to recover. The breach assigned is, that one Jane McLain had a contingent dower interest in the premises conveyed, that after the death of her husband she filed and prosecuted her petition for dower, and such procedings were had, that she obtained a decree against plaintiff for the gross sum of one hundred thirty-seven dollars and fifty cents, not charged upon the lands, but strictly personal, with an order that if the same was not paid in sixty days, execution should issue as upon judgments at law. Upon such state of the case can plaintiff recover ?

We do not doubt that the covenant in the deed is sufficient to cover a claim for dower, provided the same be prosecuted to such a result,' that the covenantee is thereby deprived of even the temporary possession of the whole or any part of the land conveyed. It may be thought that a covenant against incumbrances is the appropriate covenant to meet such a case, but it is equally well met by the covenant of warranty. In order, however, to maintain an action upon the latter covenant there must, as a general rule, have been an eviction, and this 'fact should appear from the declaration. ■ There are exceptions it is true to this general rule, and in particular cases other matters have been held to be equivalent to an eviction. In the case of King v. Kerr’s administrators, (5 O. R. 154,) the Court say, in speaking of the covenant of warranty, “ this covenant is not broken until the grantee, his heirs or assignee, is evicted from, or disturbed in the enjoyment of the premises, or a part of them, by the setting up of a superior or paramount title.” Still in that case it was determined that where, after a judgment in ejectment, the tenant remains in possession claiming pay for improvements under the occupying claimant law, and while so remaining in possession, purchases in the paramount title, the tenant may have an action upon the covenant of warranty, against his grantor, although not actually evicted. In making this decision the Court was controlled by the principles of the occupying claimant law. Under that law the occupant cannot be dispossessed until paid for his improvements. And if the claimant should neglect to make payment, the occupant must either lose the benefit of his improvements, or be delayed in the proceeding under his covenant. The Court held that this case might be well considered as an exception to the general rule, that no action could be sustained until actual eviction.

So in the case of Tuite v. Miller, reported in the Western Law Journal, Yol. 5, 413,14. The Court held that where dower had been assigned not in kind, but in the value of one third of the rents and profits, and made a charge upon the land, that this might well be considered equivalent to eviction. The reason is this: By our law regulating dower, the widow is to be endowed of one third of all the lands, &c., of which her husband died seized, as an estate of inheritance, during coverture. This dower is to be set off and assigned by metes and bounds if it can be done, and after the assignment so made, and approved by the Court, a writ of seizin is to be issued to. the sheriff, who is required thereby to put the widow in possession. After this writ is executed, he who by this proceedevicte(b may have his action upon his covenant of war-against his grantor, and will be entitled to recover damages, not to the extent of the consideration money or of one third of the consideration money of his deed, but to the extent that the value of his estate is diminished by carving out this life estate, taking one third of the consideration money to be the value of one third of the fee simple interest. Such we understand to bo the rule of law where the dower is assigned by metes and bounds. The same law provides, that where no division can be made by metes and bounds “ dower shall be assigned thereof as of a third part of the rents, issues and profits to be computed and ascertained ” as in the statute prescribed. In the case of Tuite v. Miller, dower had been asigned in this latter manner. The one third of the rents and profits were computed to some sixty or sixty-six dollars per year, and this was made a charge upon the land, and it was ordered that unless payment was made the-land should be sold. The Court believed this to be such a disturbance of the possession,. that it might bé held equivalent to an eviction, and so decided. It is true this case was decided upon the circuit, but upon consideration, we are unanimous in the opinion that this decision was correct.

If so, then what will be the effect of -these principles upon the case now before the Court ? There is no pretence that the plaintiff has been evicted from, or disturbed' in the possession and enjoyment- of the land, conveyed by Nyce. True, Jane McLain set up a claim to dower in the land; but no dower was assigned to her by metes and bounds, nor was dower assigned to her by the provisions of the statute, as of a third part of the rents, issues and profits. The statute seems to have been entirely disregarded. True, a decree was made in her favor, against Johnson, for one hundred and thirty-seven dollars and fifty cents, which was to be in full of dower. This, however, was not made a charge upon-the land, and could in no shape act as an incumbrance upon it. It was amere personal decree, to be enforced by execution. It is said, however, that this decree is still in force, and cannot be collaterally impeached. do not impeach it. It is in force, but no persons are fected by it, but parties and privies. Neither Nyce nor his executors were parties to the proceeding, nor from anything which appears, had they notice of it. It has no operation to incumber the land. Had one third part of the land been set off, by metes and bounds, and the widow been put in possession, or had dower been assigned according to the statute, as in the case of Tuite and Miller, then the plaintiff might have had redress, upon the covenant of warranty. But as the case is now presented, he can have no such redress.

We are of opinion that the Court of Common Pleas did not err in sustaining the demurrer to the plaintiff’s declaration, and the judgment of that Court is affirmed.


text:
    Jacob Nyce’s Executors vs. Charles Obertz.
    In an action upon the covenant against incumbrances in a deed, it is not sufficient for the plaintiff to show that he has been compelled to pay a gross sum to free the premises from dower 5 but he must show that the dower Las been assigned according to the provisions of the statute, either by setting off the dower by metes and bounds, or by assigning it as of the rents and profits.
    This is a Writ of Error, directed to the Court of Common Pleas of Sandusky County.
    The judgment which is sought to be reversed, was rendered by the Court of Common Pleas in an action of covenant, instituted by the defendant in error, in favor of the plaintiff in error.
    The facts set forth in the declaration, are as follows: On the 21st of September, 1822, Jacob Nyce, and Margaretta, his wife, by deed duly executed, acknowledged and delivered, for the consideration of five hundred dollars, conveyed to one Adam Peters, eighty acres of land, particularly described in said deed, by which deed the said Jacob Nyce covenanted, “ that ggjq prem¡ses were free, and clear from all incumbrances, and they, the said Jacob and Magaretta, their heirs, executors and administrators, would warrant and defend the said premises to the said Adam Peters, his heirs and assigns, against the lawful claims of any person or persons whatsoever.” Adam Peters subsequently died, and by regular conveyances from his heirs, and other intermediate conveyances, the premises became tlie property of the deféndant in error; and on the 28th of September, 1841, he entered into the possession and enjoyment of the same. These facts are stated technically, and formally, in the declaration. It is then alleged, “ that the said' Jacob Nyce, at the time of the ensealing, execution and delivery of his said deed, had not, nor hath he had at any time, a good and sufficient title to said lands and premises, described in his said deed, nor were the same free from all incumbrances; but, on the contrary, plaintiff avers that at the time of, and prior to the execution and delivery of said deed, &c., one Jane McLain held a contingent right of dower in all of said lands and premises, by virtue of coverture with one Alexander McLain, who had been, during such coverture, seized as an estate of inheritance of all said lands and premises; and that afterwards, on the 17th day of March, A. D. 1844, the said Alexander McLain departed this life, leaving the said Jane McLain his widow, by which her right of dower in said lands and premises became absolute.” It is next alleged, in substance, that at the June Term, 1844, of the Court of Common Pleas of Franklin county, the county in which said land was situated, the said' Jane McLain filed her petition for dower, which was answered by the defendant in error; and at the November Term, 1845, “ dower in said premises was duly awarded, assigned and confirmed unto the said Jane McLain, at the gross sum of one hundred and thirty-seven dollars and fifty cents, and which the said plaintiff was thereby ordered to pay to said Jane McLain, in full for her right of dower in said premises, &c., within sixty days after said November Term, and in default thereof, that execution should issue as upon judgments at law, all of. which will appear by a certified copy, &c., by reason whereof the plaintiff had paid, and been made liable to pay, &c., of all which the said Jacob Nyce, as well as the defendants, had notice, &c., and were requested to pay the same to the plaintiff, but to pay the same, or any part thereof, refused, &c. ■ And so the plaintiff says, that the .said Jacob Nyce did not keep said covenant, but broke the same, nor have said defendants, as such executors, nor any-other'person, kept said covenants, but have broken the same, to the damage,” &c.
    To this declaration, the defendant below, now plaintiff in error, demurred generally. •
    Upon hearing, the Court overruled the demurrer, and the plaintiff in error failing to plead, in pursuance of leave given, judgment was .entered against him as by default, and the damages assessed by the Court, at §166 57.
    The errors assigned in the case are, that the declaration is not sufficient in law to maintain the action, and that judgment was rendered in favor of the defendant in error, when it should have been rendered in favor of the plaintiff.

      R. P. Buckland, for Plaintiff in Error.

      Watson Johnson, for Defendant.
   Hitchcock, J.

It will be seen that'there is great similarity between this case, and the case of Johnson against the same defendants, decided at the present term. The records show that the lands in which dower had been assigned, or attempted to be assigned, were adjoining lands, and the quantity in each case was not materially variant. At the same time and in the same Court, the same individual had preferred a claim to dower, and in each case and at the same November term of the Court, the defendants were each ordered to pay one hundred thirty-seven dollars and fifty cents, in full of the dower claims. The breach assigned in bach case is the same. We have already decided that the facts set forth in the case of Johnson against riefen(]ants do not constitute a breach of the covenant of The deed in the case before the Court, however, contains a covenant against incumbrances, and it remains to determine whether that covenant has been broken, so as to entitle the covenantee to a right of action. The facts alleged as constituting the breach are, that one Alexander McLain, previous to 1822, had an estate of inheritance in the premises, that while he had such estate, he had a wife by the name of Jane McLain, that he died in March, 1844,- that soon thereafter his widow prosecuted her claim to dower, that such proceedings were had that the Court finally made an order, or decree, that the tenant in possession, the covenantee, should pay to the widow one hundred and thirty-seven dollars and fifty cents, in full of dower, and that the defendant, the covenantee, has not paid the amount so decreed. To these proceedings neither Nyce nor his executors, were parties, nor of them had they any notice.

Here it may be well to inquire, whether the dower .interest of Jane McLain was an incumbrance upon this land, which is covered by the covenant against incumbrances in the deed. That covenant is, that the premises are free and clear of all incumbrances, not that the same shall remain free from future incumbrances. It is a covenant in presentí, and if there are incumbrances, the covenant, technically speaking, is broken, when made. Still the covenantee cnnnot have an action until he has been damnified in consequence of the covenant. He is not bound to wait, it is true, until he is evicted, but may pay off and satisfy the incumbrance, if the extent of it can be well ascertained, and then have his action. It is not necessary that he should in all cases wait even for a judicial determination of the amount, although this is preferable. The most common incumbrances in this country are mortgages, judgments and the like, and the extent or amount of these may be easily ascertained. In the case before the Court, the covenant was entered into in 1822. At that time there was no outstanding dower claim upon the property. True, Alexander McLain had once been-the owner of the-land, and Jane McLain was his But both were then living and it depended upon the contingency of which should first die, whether there ever would-, or could be any claim., for dower, any incumbrance of this nature upon the land. Suppose by contract,- A. should bind himself, for a consideration to be paid, to convey to B. by deed, containing covenants of warranty, and against incumbrances, a tract of land, could B. avoid the performance of the contract, by showing that by possibility there might be, at some future time, a dower claim like the one in the present case ? It seems to me not, but that B. would be compelled to take the land and rely upon his covenant. The case would be different, however, should he, after making the contract, discover that the land was incumbered by judgment or mortgage.

There can be no doubt that this dower interest would be within the covenant against incumbrances, according to the forms of that covenant as used in the English mode of conveyancing. It is as follows, following the covenant for quiet enjoyment: And that free and clear, and-freely and clearly and absolutely acquitted, exonerated, released and discharged, or otherwise, by him, (the vendor,) his heirs, executors and administrators, at his or their own costs and charges, in all things, well and sufficiently protected, -defended, saved harmless and kept indemnified, of, from, and against all, and all manner of former, and other gifts, grants, feoffments, leases, mortgages, bargains, sales, jointures, dowers, right and title of dower, uses, trusts, wills, entails, annuities, legacies, rents, arrears of rent, fines, amerciaments, statutes, recognizances, judgments, executions, extents, suits, decrees, debts of -record, debts to the King’s Majesty, or any of his predecessors, sequestration estates, titles, troubles, leins, charges and incumbrances whatsoever.” (10 Ohio R, 324, note.) According to our mode of conveyancing, this covenant is, as in the deed referred to'in the declaration, generally expressed in these few words: “ That the premises are free and clear from all incumbrances'-whatsoever. And under Such a covenant it seems to me somewhat doubtful whether c^a™ dower like the-one in the present case, can, by fair be brought within the operation of the covenant. The general impression however, is probably otherwise, and we do not deem it necessary definitely to decide this question.

Admitting that here Was an incumbrance, it was of that character that the extent and amount of it could not be ascertained, like the amount due upon a mortgage or judgment. It must of necessity be ascertained by the judgment or decree of a Court of competent jurisdiction. And when so ascertained, the tenant or covenantee, may have his action against the covenantor for indemnity. But before the covenantor can be bound by such judgment and decree, it must be in conformity with the statute regulating dower; and we have already decided in the case of Johnson, that a decree like the one relied upon in this case, is not in accordance with that statute.

But it may be supposed, that inasmuch as in this deed there is a covenant against incumbrances, the decree has ascertained the extent or value of the incumbrance. This finding is as of the value of the incumbrance at the time the assignment is made, not as of the value at the time the covenant was entered intOj and therefore it furnishes no rule by which the damages upon the action of covenant can be' estimated. Had the decree been in conformity with the statute, there would have been no difficulty as to the rule of damages. We all know that the consideration money paid is the rule of damages in an action on the covenant of warranty, to which will be added interest from the time of eviction, or from some other reasonable time, and in no case can the damages for a breach of the covenant against incumbrances exceed the amount of consideration money. (10 Ohio R. 317.) If a title to a part of the premises fails, damages will be apportioned according to the quantity. The Court of Common Pleas seems to have considered that the defendant in error was entitled to recover the amount awarded in the dower case. At least, I suppose it must have been soj for I cannot otherwise see how the judgment was made up — and it leads to this absurdity: if the title to one third of the premises had entirely failed, the covenantee could have recovered but one third part of the.consideration money originally paid, that is $166 66, whereas for the incumbrance of the life estate of a woman of whose age we know nothing, but who must have been married previous to 1822, he recovers $137 50, leaving $29 16 as the reversionary interest.

Had it been alleged in the declaration, that the tenant in possession, occupying the place of covenantee, had compromised the claim for dower by the payment of a stipulated sum, this payment would have furnished no rule of damages, nor would the allegation show any breach of covenant. Neither will the action of the Court of Common Pleas, in ordering a gross sum to be paid in full of dower; especially in a case where neither the covenantor nor his representatives are parties. But in order to constitute a breach it must appear that the law regulating dower has been complied with.

There may be, and undoubtedly will be, difficulties in doing perfect justice, where after an eviction, or that which is equivalent to it under the dower law, the then owner of the fee simple interest seeks redress against a remote covenantor, but we must approximate to it as near as we can. And this can only be -done by adopting the rule as laid down in the case of John-' son. If the lands have increased in value, the value of the dower itself will be increased ; but this increased value cannot with propriety affect the rights of the remote grantor. He can not be charged beyond what the rules of law as applicable to his contract require. Under the rule for the assignment of dower, as it is understood in England, in New York, in other States of the Union, and as it was practiced in this State previous to 1838, these difficulties would in a great measure, if not entirely,, have been avoided. That rule recognized that where lands had been aliened in. the life time of the husband, the dower should be assigned as of the value of the lands at the time of alienation, not at the time of the assignment^

After full consideration we are of opinion that the facts alleged as constituting a breach of the covenant' in the deed deupon, do not in law constitute a breach of 'both or either of those covenants, and that the declaration is insufficient inlaw. The judgment of the Court of Common Pleas is therefore reversed.