author: Read, J.

text:
    Barbara Kelley and others v. William Stanbery, Howell Phillips, Jonas Stanbery, and others.
    An interlocutory decree may, on motion, at any time before final decree, be-modified, altered, or set aside, as the nature of the case may require.
    A. sold and agreed, by parol, to convoy land to B., and took from him a mortgage of the premises to secure the purchase money; on a bill filed by B\ to obtain a deed, A. is estopped from setting up the statute of frauds, to defeat the parol contract, or the right of redemption.
    Where the purchaser of land by parol is put in possession, the vendor can not set up a naked parol agreement to rescind. As part performance was necessary to vest an interest in the purchaser, so the same is required to divest his title.
    A purchaser of land in possession of a third person, is chargeable with notice of the occupant’s title and equities.
    In chancery from Licking county.
    The original bill was filed October 4, 1838, by the widow and heirs at law of Leonard Kelley, to redeem a mortgage giveij ^by him to William Stanbery, for 250 acres of land ; also, to obtain title to the land, and compensation for rents and profits, ■of which they have been wrongfully deprived.
    The complainants claim that, on October 25, 1826, Leonard Kelley entered into a parol contract for the .purchase of tho land, was put in possession, and gave his notes to William Stanbery lor the purchase money. At the same time he executed ■a mortgage of the promises to said Stanbery, to secure payment ■of the notes, which are specified in tho mortgage deed, and thus referred to in the condition: “ The same being executed by the said Kelley, as the lull consideration money, for tho payment of the above-described tract of land.”
    The notes and mortgage were afterward assigned by Stanbery to Hillbrand.
    Leonard Kelley died in February, 1832, having made valuable improvements. In September, 1832, his widow and heirs being still in possession, William Stanbery sold the premises to Howell Phillips, who, taking advantage of the temporary absence of the widow, and the tender ago of her children, entered upon, and has ■ever since held possession of the land, enjoying its rents and profits.
    The bill prays an account to be taken of the sum due for tho purchase money, that, on its payment, the mortgage and notes be .given up and canceled; an account against Phillips of rents and profits; a decree for title and quiet possession, and for general relief.
    The material facts appearing in tho pleadings and proofs, as •also the questions of practice raised by the parties on the hearing, .are stated in the opinion of the court.
    Matthew Mitoiiell, for complainants:
    At the October term of the court of common pleas for Licking ■county, 1839, a decree was rendered in behalf of complainants, allowing them to redeem, and ordering an account of tho rents and profits to be taken. From this decree an appeal was taken to-■this court; and at the session of this *eourt, on the circuit, ■for 1842, in Licking county, a decree, similar to the one rendered in the court below, was again rendered in behalf of complainants, ;and the ease referred to a master, to take an account with Phillips. At the session of the court for 1843 the master made his report, to which complainants filed various exceptions. The cause was continued for want of time to bear the exceptions. The case was then referred, to take an account for the rents and profits of the last year. At the term of this court for 1844, the master last mentioned made his report. And thereupon the defendant, William Stanbery, moved the court to reopen the decree entered at the session of the court for 1842; on which last motion the whole case' was reserved to the court in bank.
    This being the state of the case, the first question that arises is, can the court, according to the established rules of practice in chancery, grant the motion of the defendant, Stanbery, coming as it does?
    This motion can not be regarded as in the nature of a petition: for rehearing. Section 53 of the act regulating the practice in chancei-y, Swan’s Stat. 714, requires that a petition of this nature1 be preferred within thirty days after making the order. This was not so preferred. The motion does not pretend to be under the two succeeding sections of the statute, in the nature of a petition for a review, or for leave to bring a bill of review; which three1 methods, we conceive, are the only ones known to our practice by which a former decree in chancery can be reopened and reheard. To adopt the practice here sought to be introduced, would, in the very face of the statute, clearly be a departure from the established usages of courts of chancery; Story’s Eq. Pl. 302; lb. 336; and might, and probably would, be fraught with incalculable evil to the cause of regularly administered justice — the only justice known to courts in a country governed by laws, as we are.
    But suppose this court could, with propriety, treat this motion as an application under the statute for leave to bring a bill of review, or a bill in the nature of a bill of review, for *newly discovered testimony. How would it stand ? Newly discovered testimony, to support a bill of review, must bring to light some new matter, not known to the party at the time of the hearing, on the decree sought to be reviewed. It must be a new matter, not cumulative evidence merely. Livingston v. Hubbs, 3 Johns. Ch. 124.
    There can be no pretense that, in this case, such a ground is1 laid. The depositions of Roby and Pense, taken but a few days before the sitting of the court, was no doubt taken as a predicate for some such proceedings as the court has now before them on this motion. Suppose that the matter contained in those depositions was regularly brought before the oourt, on a petition for leave to bring a bill of review, or a bill in tho nature of a bill of review, as the ease might require, what would be the rightful conclusion of the court in the premises? Those depositions seek to establish the very same thing which defendants sought, before the hearing, to establish by the testimony of other witnesses, and are infinitely weaker in their force upon the point sought to be established. Roby’s, it is true, seeks to show that two of the heirs, who were of age, seem well satisfied with the compensation Stanbery had made them, in giving them the fifty acres of land. But, unfortunately for the defendants, the answer of Stanbery stands sadly in the way of allowing the truth of Roby’s deposition.
    That answer alleges, most positively, that no compensation was ever made the boys for their improvements or rights, and that tho fifty acres, instead of being a gift to them, as sworn to by Roby, was a sale for a full and valuable consideration.
    Stanbery, at that period, had his mind firmly set on maintaining the validity of the release from Leonard Kelley, sot up in his answer, and was determined to anticipate any presumption that might arise against that claim, by his having given tho widow, or the heirs, anything that could be regarded as a compensation for rights in the premises, which by the release from Leonard Kelley, he had before claimed was entirely extinguished, both in his widow and the heirs. But now, since he finds that we have clearly proved his own declaration, ^acknowledging, most unequivocally, the rights of the widow and heirs, he would change, blithe testimony of others, the truth he so unwittingly told in hi'S answer, and would now gladly prove, were it possible for him, that the land he sold for a valuable consideration in money, was given to two of the boys for their interest in the farm in controversy; so that the testimony of Roby could, by no possibility, be received to contradict, in Staubery’s own favor, the fact so clearly and distinctly stated in his answer, and consequently could avail him nothing upon a bill of review, or elsewhere. For the declarations of Kelley’s heirs who were of age, could be of no force to extinguish their title to the premises in controversy, except as those declarations showed a relinquishment of their title for a valuable consideration. For it will be easily discovered, that courts of equity look with peculiar jealousy upon the dealings of an unconscionable mortgagee, with the mortgagor or his heirs, for the equity of redemption, and will inquire strictly into the fairness of the transaction, and the value of th® consideration. 2 Johns. Ch. 30.
    Should this court, however, conclude that, to allow this motion in the shape it stands, and to review their former decision, would be for the furtherance of justice, the complainants can boo no reason why they should shrink from the most thorough canvass of the meri\s of their claim.
    The complainants claim, in this case, to be entitled to redeem the premises, in the bill described, as heirs of the mortgagor. Phillips seeks to defend himself, on the ground that he is an innocent purchaser, without notice. This he can not do, because of the record of the mortgage, which was prior to his purchase; and because the widow and heirs of Kelley were in possession, which was legal notice to him of all the interest they might, in reality, have in the premises. These principles wo take to be too plain to require authorities to bo cited in support of them. Phillips, then, is subject to all the equities that exist against his grantor, William Stanbery.
    ^Stanbery sets up in his answer that no title ever passed to Kelley, because no deed tvas ever made. This the complainants claim can not avail Stanbery :
    1. Because it would be allowing Stanbery to take advantage of his own wrong, which no man is allowed to do in a court of justice. Stanbery admits, in his answer, that it was solely of his own neglect that the deed was not made and delivered. It was 'Ihe intention of the parties at the time that it should be done, and was entirely of Stanbery’s wrong that it was not done.
    2. Because courts of equity always hold that to be done which ought to be done. 2 Pow. on Con. 56; 1 P. Wms. 710; 1 Salk. 154; 2 Ves. 639. All who come in Stanbery’s stead, and take in right of him, are bound by his agreement. 2 Pow. on Con. 57.
    3. Stanbery, and those claiming under him, are clearly estopped from denying title in Kelley. Stanbery accepted a deed from Leonard Kelley, and acted under it. This deed is in Wm. Stanbery’s own handwriting, and distinctly and positively recites •that the land described in it was convoyed to Kelley by Jonas and Lucy Stanbery. He, accepting this mortgage, and recording and transferring it, is estopped to deny its recitals, or'that Kelley had title to the land. Coke Lit. 352, 357; 2 Ld. Raym. 1051; Pet. Com. Law, 367, tit. Estoppel; 8 Cow. 585. The principle laid down in the last case, by Justice Jones, is, “ That an estoppel concludes the party from alleging the truth, and therefore a man who admits a fact or deed in general terms, either by reciting it in au instrument executed by him, or by acting under it, shall not be allowed to deny its existence.”
    If one take a contract from another for the purchaso of lands, he is estopped from denying the title of him from whom he purohased. 6 Cow. 401 ; 7 Ib. 717.
    The taking of lease by indenture of a man’s own land, is an •estoppel to claim the fee during the term. 1 Tom. L. Dic. 674; Moore’s Cas. 323.
    *The present is a case where equity as well as law dedares the defendant should be estopped from denying the title of Leonard Kelley.
    Had Stanbery acted in good faith, and kept his word with Leonard Kelley, and had the deed been executed as ho promised, there could not remain a shadow of doubt but that the complainants, as heirs of' Kelley, would bo entitled to redeem.
    If, however, these complainants could not redeem as heirs of a mortgagor, still they are entitled to relief, either by a specific performance, or by a compensation for lasting and valuable improvements made.
    Having made lasting and valuable improvements while Stanbery stood by and look on, lays a ground for them to claim a specific performance. Parkhurst et al. v. Vancortland, 14 Johns. 15.
    It is clear that the heirs of Kelley have had taken from them a valuable right, the avails of their hard industry, for which they 'have received no compensation. It was, with great propriety, said by the chief justice, in the ease last cited, that the rise in -value of the land, whatever it might be, more properly belonged to the man who expended his labor and toil in improving the land, with the honest expectation of enjoying it, than to him who stood 'by and silently watched the application of the laborer, intending to take both land and labor for nothing.
    Here, then, whatever rise in the value of land there may have, been, more properly belonged to Kelley’s heirs than to Stanbery. The value of the improvements and the rise of the land, put together, probably gave Kelley’s heirs a property worth at least $2,000, which Phillips and Stanbery seek to keep from them without the least compensation.

      But that their rights are clear, as heirs of the mortgagor, Stanbery seems to be conscious when he undertakes to avail himself of a release from Leonard Kelley.
    This release can not avail Stanbery, because:
    1. It is disproved by Stanbery’s own • declaration, proven by four reputable witnesses, who declare they heard Stanbery *say that the widow and heirs of Kelley had rights there which prevented him from disposing of the farm until he had settled with them.
    2. Had it been clearly proven, it would have been of no effect, by reason of our statute of frauds. It was not in writing, and it purports to have been for the transfer of an important interest in lands — a highly valuable equity of redemption.
    3. If it had been in writing and abundantly proved, yet it was, as appears, without the least consideration. It had not even the consideration of having released Kelley from his liability on the mortgage. For, by Stanbery’s own showing, the mortgage was at that time transferred to Hillbrand, and consequently out of Stanbery’s control, so that he does not show that he had the least authority to release Kelley from his liability on the mortgage, or to make any arrangement or agx-eemont with Kelley concerning it.
    Hence, oven the suspicious consideration of Kelley’s release from liability under the mortgage totally fails, and Stanbery can make no pretense to any other consideration. Indeed, he does not pretend to claim that this consideration did exist. He does not allege in his answer that Kelley was x’cleased, but admits the contrary, and claims that he afterward released the mortgage to Kelley’s widow. So that the pretended agreement set up in Stanbery’s answer with Kelley, lor the release of his equity of redemption, can, by no possibility, avail Stanbery or those claiming under him in a court of equity.
    But courts of equity, having learned by long experience the gross and iniquitous advantages often sought and obtained by those holding mortgages in dealing for the equity of redemption, hxxve adopted just and salutary rules on the subject.
    They have adopted, fii’st, that embari’assing rule to designing mortgagees, “ once a mortgage, always a mortgage.” This prevents the covering up, by artfulness, in the first place, or by subsequent acts, the true nature of the transaction. They have,. then, gone further, and adopted the rule that, although the equity of redemption may be released, “yet that the fairness *of the transaction, and the value of the consideration, must distinctly appear.” Holdridge v. Gillespies, 2 Johns. Ch. 30.
    If this court looks with jealousy on dealings between mortgagee and mortgagor, for the release of equities of redemption, certainljr there is something in this case to awaken their jealousy and suspicion. Coote on Mortgages, 26.
    The complainants in this case are entitled to the rents and profits of the farm since the defendants went into possession. Coote on Mortgages, 320. Defendants are also entitled to the reasonable cost of all lasting and valuable improvements necessary to-keep the place up, made before the commencement of the suit, but not for newly cleared land or ornamental improvements." 1 Johns. Ch. 385; 1 Hill. Abr. 293.
    The questions of law arising under the exceptions to the first master’s report, bring up the discussion of the above-stated principles, with their'various distinctions.
    The master, in making his account, has allowed compound interest to the mortgagee on his debt; has refused to allow interest, on the surplus rents and profits; has allowed for all improvements, whether done before or since the commencement of suit;, and has taken the very lowest estimates of the per-annum rents, paying no regard to the large number of other credible witnesses-who fix the rents much higher, by modes of computation, too, which show that they took by lar the most accurate means of knowing what the premises are worth. For these things mainly the report is objected to.
    That compound interest is not allowable in this state, except under special agreement, I take to be abundantly clear. 5 Ohio, 260.
    When a mortgagee is in possession, and receives the rents and profits of the estate, it is a well-established general rule that he-is to allow the mortgagor the rents he has actually received, or which he might, without gross neglect, have received, and interest on the same, making annual rests. 2 Atk. 510; 2 Pick. 506; 5 Ib. 160 259. In the case last cited, the rule is very distinctly laid down as to the allowance of ^interest on rents and profits. Wilde, Justice, says: “The general custom in England, has been to allow interest where the amount of rent was consider■able; otherwise, not. The rule would be more simple, and I think more just, to allow interest-in all cases, and to consider the rents received as so much paid upon the mortgage.”
    Nothing can be fairer than this, as a general rule, and there is nothing in the circumstances here to take this case out of it.
    The master has allowed all improvements, whether done before or since the commencement of suit. The case of Moore v. Cable, 1 Johns. Ch. 385, establishes the point directly, that for clearing wild land, as a general rule, no allowance will be made. The principle on which this doctrine rests is, that, by allowing such charges, it would enable the mortgagee in possession to improve the mortgagor, especially' if an indigent man, out of his estate. A gross injustice which courts of equity are careful to prevent.
    The most general rule which we can gather from the authorities is, that the mortgagee in possession will bo allowed for all necessary repairs and necessary expenses incurred in protecting and defending the mortgagor’s estate, made or incurred before suit was brought, but will not be allowed (or clearing wild lands, nor (or ornamental improvements, nor for new erections not necessary for keeping up the estate, and permanently beneficial. 1 Hill. Abr. 293; Moore v. Cable, 1 Johns. Ch. 385; 2 Pick. 506; 2 Sch. & Lef. 214, 661; Ib. 225, 676. In both cases, last cited, the master is expressly directed to take the account as to improvements made prior to filing the bill. The case of Webb v. Rorke, 2 Sch. & Lef. 661, shows, also, that the rents and profits should be applied as they fall due, to keep down the mortgagee’s debt; and also shows the jealousy with which courts of equity regard dealings between mortgagee and mortgagor for or respecting the equity of redemption.
    Complainants also claim that in this case they should recover full costs. 5 Pick. 259. They' have been brought to this *court by appeal, long delayed in obtaining their rights, and put to great -expense and trouble, when, if they' recover, as we claim they should, it is most manifest they were in the right, and their adversaries in the wrong. As a general rule, costs are taxed against the parties in the wrong.
    English, for defendants:
    The principal question is, whether a discharge by parol is sufficient t o defeat the c’lims of the heirs? The agreement made by •Stanbery to execute and deliver to Kelley a deed, was a parol agreement, but such a parol agreement as a court of equity would have compelled Stanbery to execute. There has never been any doubt but that a parol agreement might bo discharged by parol. Even an agreement in writing concerning lands may be discharged-by parol where the aid of a court is required to carry it into execution.
    It is universally considered that an agreement in writing concerning land may be discharged by parol. Sugden on Tend. 175. In Stephens!). Cooper, the chancellor, in giving his opinion, remarking on the principle that an agreement in writing concerning land may be discharged by parol, says, “ that the evidence in such cases is good only as a defense to a bill for a specific performance, and is totally inadmissible in law or equity as a ground to compel a performance in specie.” 1 Johns. Ch. 429; Botsford v. Burr, 2 Ib. 405.
    Stanbery acted upon the agreement of Kelley to give up the-land. He obtained Kelley’s mortgage and notes, from Hillbrand, to whom they had been assigned, and it can make no difference' by Stanbery’s retaining the notes and.mortgage in his possession. This was doing Kelley no injury, as the notes could not be recovered even at law ; at all events a court of equity would have restrained their collection. Stanbery acted further upon the parol discharge by afterward conveying and selling the Kind to the-defendant, Howell Phillips.1
    No fraud or injustice was done to Kelley’s heirs by the sale-to Phillips; it was sold to him fora less sum than would have *been due on the mortgage if the bargain had not been canceled, and it was sold at its full value.
    The widow and two of the sons of Kelley received a deed from Stanbery for fifty acres of land. As to these two sons, who were of age at the time, they can have no pretense for a claim to this-land. And if the court award a decree in their favor, it ought to be on condition that they make compensation for the fiity acres.
    S. D. King, for defendant Phillips, insisted that he was an innocent purchaser. He is not chargeable with notice by the record of the mortgage from Leonard Kelley to William Stanbery. The-state of the record was not such as to “ lead a searcher for incumbrances, using common prudence and care in investigating the-title, to a knowledge of the fact.” A purchaser from Stanbery ought to learn all conveyances from Stanbery existing on record at the time of his purchase. It is not pretended that any such record exists; on the contrary, no such conveyance, in fact, existed, as the deed from the Stanberys to Leonard Kelley appears never to have been, in fact, executed.
    The case of Leiby’s Ex’rs v. Wolf et al., 10 Ohio, 83, is precisely in point, showing the amount of diligence required to be used by a purchaser in searching for incumbrance.
    J. R. Stanbery, for defendant, William Stanbery:
    The court are referred to Leiby v. Wolf, 10 Ohio, 83. The answer of Howell Phillips denies all knowledge of the mortgago from Kelley to Stanbery. If he had searched for incumbrances on the land before his purchase, the state of the title or record would not have led him to the knowledge of the mortgage from Kelley, as Kelley had no deed recorded.
    The court, in the case last cited, say, “when the series of deeds runs on a line entirely different, and there is nothing to connect the name or the interests of a third person with *any part of it, it would be unreasonable to impute to the searcher a knowledge of the acts of such third person.”
    It may be said that Phillips knew that the heirs of Kelley were In possession, and was bound to take notice of the title under which they claimed to hold. The answer admits knowledge of !.hc possession of complainants, but states that he understood from them they claimed no right to the land, and yielded to him tho possession peaceably.
    The testimony establishes that Leonard Kelley, the ancestor of complainants, in his lifetime surrendered to Stanbery his right to tho land, and discharged him from his contract to deliver the deed. The testimony also proves that Barbara Kelley, the widow, after the death of her husband, the mortgagor of the land, settled with Stanbery, and received payment for the improvements made on the land. She wag the administratrix of Leonard Kelley, and in that capacity had authority to release her husband’s equity of redemption in the land. On this point the court are reierred to Bank of the United States v. Piatt’s Heirs, 5 Ohio, 540.
   Read, J.

This is a bill filed to redeem a mortgage, for specific elocution of a contract, to declare a trust, and for an account of rents and profits, in reference to the same premises.

Decree was rendered for complainants, in all aspects of the bill, at the term of the Supreme Court in Licking county, 1842, and was referred to a master to take an account of rents and profits, valuable lasting improvements, and the amount due on the mortgage. At the term of the Supreme Court, 1843, the cause was continued on exceptions to master’s report, and referred to a master to take an account of rents and profits of the last year. The cause coming up at the term of the Supreme Court, 1844, on master’s report, motion was made by William Stanbery, one of the defendants, to open up the decree of 1842, and look to the original equities; upon which motion the case was reserved to court in bank.

*This presents a preliminary question of practice, as to whether the court at this late period will entertain a motion to open up the decree of 1842. Counsel for complainants regard the decree of 1842, settling the equities of the cause, as final, only to be set aside upon petition for rehearing, or upon review for errors of law, or newly discovered matter since former decree.

The question depends wholly upon the fact whether the decreo of 1842 was final, or interlocutory; and if final, whether it was still under the control of the court for modification, correction, or to be set aside, as equity and good conscience might require.

The distinction between final and interlocutory decrees is oftentimes exceedingly nice, yet of most important consideration in practice, as the kind of proceeding to be had after a decree depends upon its character. When to take appeals, the time limited for petitions for rehearing, or bills' of review, or whether to question the decree on motion, or by original proceeding, are all involved. A want of observing at all times the distinction between final and interlocutory decrees, has induced some doubt and uncertainty in practice.

A decree is final which disposes of the whole merits of the cause, and leaves nothing for further consideration of the court. A decree is interlocutory which finds the general equities, and the cause is retained lor reference, feigned issue, or consideration, to ascertain some matter of fact or law, when, again, it comes under the consideration of the court for final disposition. When no further action of the court is required, it is final; when thr >,ause is retained for further action, it is interlocutory. Further decrees and orders of the court sometimes become necessary to carry into effect the rights of parties fixed by final decree ; and final decrees oftentimes ■direct an act to be done, as in case of specific performance, that on payment of the purchase money as specified in the final decree, the vendor shall execute a deed ; or, in case of redemption, that on payment of the money due, the mortgage be canceled, and even sometimes all the rights of the parties being found, *and all the consequences to flow from a certain fact having been finally determined, a reference as to such fact may be had to a master, and still the decree be final. The confusion has sprung up from failing to observe .the distinction between facts and things to be ascertained preparatory to final decree, and facts and things to be ascertained in execution of final decree. Because a final decree might direct that certain facts should be ascertained in execution of such decree, it will not make it interlocutory; nor, on the other hand, because a decree finds the general equities of the cause, and reference is had to a master to ascertain facts preparatory to ■final disposition, will it be regarded as final. It seldom happens that a first decree can be final to conclude the cause, and yet, in all cases, the general equity should be found, and the principles laid down for the government of the master, before reference had. But such decrees are never held to be final. Indeed, it is remarked by Judge Spencer, in Jaques v. Methodist Episcopal Church, 17 Johns. 548, that no case can be found in which a decree directing a reference to a master, or a feigned issue, for the purpose of ascertaining a material fact, has been held final. But under the practice of our courts, a decree finding the general equities of the case for the purpose of reference, etc., has been held final to support an appeal, but for no other purpose. In case of a final decree, an ap.peal of course brings up the whole merits of the cause. Proceeding upon the principle that a party may question the finding of the general equity, he can appeal from a decree which may possibly dispose of the case without the expense of reference or further proceeding, or may await the final action of the court, and then appeal if it be desired.

In all cases where the decree is interlocutory, the whole merits of the cause are before the court for consideration, and it is their duty to render such final decree as equity and good conscience, from a view of the whole case, may require. Even final decrees whilst they rest in paper, or before enrollment, are within the control of the court for modification, alteration, or to be set aside. And in our state, final decrees *are always under the control of the court during the term at which they were rendered, the term being but one day for the purposes of justice.

The decree of 1842 was not final, and the whole cause is before the court, and we must therefore look into the original merits and equities of the controversy.

The ‘bill charges that Leonard Kelley, the complainants being his widow and heirs, on October 25, 1826, purchased the land in controversy from Jonas and Lucy Stanbery; that to secure tho payment of the purchase money, 6800, five several promissory notes were executed, made payable to William Stanbery, the last of which fell due on October 25, 1832 ; and to secure said notes a mortgage deed was executed to said William Stanbery upon said land ; that Leonard Kelley died in February, 1832, before tho last payment fell due ; that on September 28, 1832, William Stanbery sold said land to Howell Phillips, by deed, in fee simple, without the knowledge or consent of said complainants, and without foreclosing said mortgage; that Phillips, taking advantage of the temporary absence of the widow and the tender age of the children, obtained possession, ejected complainants, and has held and enjoyed the premises ever since.

That after the purchase Leonard Kelley and complainants made large and valuable improvements, for which neither Stan* bery nor Phillips have made any compensation, and now retain and enjoy the benefit; that the mortgage is still unforeelosed and unsettled; that it was duly recorded in Licking county shortly after Stanbery received it; that Phillips had full notice of all tho rights of complainants when he purchased. Prays deed from Jonas and Lucy Stanbery, to be allowed to redeem; an account of rents and profits against Phillips, and on payment of balance duo on mortgage, that William Stanbery and Phillips be decreed to convey to complainants.

Phillips, in his answer, denies all knowledge of the mortgage, or of any claim of title on behalf of complainants; but *admits they were in possession, and that he obtained possession whilst Mrs. Kelley was absent from home; that he did not eject them, but permitted them peaceably to occupy until the next March, when they left of their own accord.

William Stanbory, in his answer, claims that he was the owner of the land prior to 1826, and that Leonard Kelley was, some time previous,.his tenant; that Kelley failing to make certain repairs agreed upon as tenant, excused himself upon the ground that his boys, of whom he had several, would not assist him; that if he could buy tho place his boys would work and help him pay for it; that thereupon respondent, Stanbery, sold the place to Kcdley for tho amount described in the bill, at the same time took the mortgage from Kelley charged in the bill, and drew a deed, intended to bo signed by respondent and wife, and Jonas and Lucy Stanbory, the latter of whom lived in an adjoining county, conveying said land to said Kelley; that the respondent neglected to get the last-named deed executed, and that it never was so executed and delivered to Kelley for tho land.

But by way of defense, Stanbery sets up that Leonard Kelley, in his lifetime, agreed, by parol, to give up to him the land without any consideration or pay for the improvements.

That he gave to Mrs. Kelley, the widow of Leonard Kelley, as it mere gift — not as compensation for any rights she had therein— fifty acres of land in Knox county; that he sold to the two eldest boys fifty acres more, and obtained from them a promise to move ■on tho land and improve it, and support their mother. Claims that Kelley’s heirs had no interest in the land, and no right to redeem; that the improvements were small, and paid for by the use •of tho land ; that no deed was ever made to Kelley, and that he consequently had no title; that he released to Mrs. Kelley, administratrix of tho estate, all claim under tho mortgage. Admits ■that he sold tho land to Phillips, and received full value.

The mortgago which William Stanbery took from Kelley recites that it was executed to secure tho consideration money for the land sold to Leonard Kelley.

*Jonas and Lucy Stanbery havo not answered, or in any ■way appeared, and, it seems, havo no interest in the matter ; but such decree may be taken, by way of precaution, as. will secure to complainants any title said Jonas and Lucy may have in said land.

This case is wholly without tho statute of frauds, by the recital in the mortgage, and the admissions in the answer of Stanbery, that the land was sold, possession taken, improvements made, and a mortgage executed to secure the payment of the purchase money, and that a deed of the land was to have been made to Kelley, which was not done, solely from the neglect of Stanbery, the respondent.

How can Stanbery resist the right of complainants to redeem and assert their equity to the land in controversy?

Will he say that the mortgage was given to secure the purchase money, and the right of redemption involves the specific execution of a contract for the sale of real estate, which' a court of equity will not enforce after such a lapse of time, and after other persons have acquired an interest in the land?

It is not admissible to set up the defense that Kelley had no title, because the mortgagee is estopped to deny title in the mortgagor, on bill filed by him or his representatives, to redeem. Besides, the fact that Kelley had not a deed, is from the neglect of Stanbery, and he is not permitted to take advantage of his own wrong; and equity regards that as done which should have boon done. The fact that this mortgage was given to secure the payment of the purchase money, does not, in this respect, alter the case. Because, had the deed been executed, the right to redeem would have been unquestioned. Had the purchase money been paid, the right to a decree for a deed would have been equally certain. Thus, whilst respondent, Stanbery, is estopped from the relation of mortgagee and the maxim of equity, that a man shall not take advantage of his own neglect or wrong, to deny title to prevent a redemption; he, at the same time, will be compelled to do what he should have done, and execute a title to the land.

*But Stanbery insists that Leonard Kelley gave up the land, by parol agreement, in his lifetime; and hence that the mortgage, and right to a decree for title, are both gone, and that in consequence thereof the mortgage claim was since released.

First, this is an agreement without consideration, and not binding ; and, secondly, is within the statute of frauds, and void. No interest in land, equitable or otherwise, passes by parol only. True, a parol agreement executed by possession taken, will be enforced. But an equitable interest, once acquired in land, can not be parted with except by writing, or by the same means that it was acquired, which is not pretended in this case. Besides, it is proven that long since Kelley’s death, Stanbery admitted the interest of Kelley’s heirs in the land. As to his subsequent conduct toward the widow and children, in giving'the widow fifty ac.’es of land in Knox county, as he avers in his answer, it was a mere gift, and the fifty acres to the boys was a sale; no defense arises, as it was the result of generosity in the one case, and a sale in tho other, and not the consideration of the relinquishment, of aright.

Stanbery, then,'has no defense to the redemption, or to a decree for title. How'does Phillips stand? Phillijos came in under Stanbery whilst complainants were in possession of tho promises, and therefore was charged in equity with full notice of the nature and extent of complainants’ rights, and stands in no better situation than Stanbery.

The complainants, therefore, have the right to redeem, and toa decree for title.

But, as Phillips has paid for the land, and as no one appears to have any interest in the mortgage but Stanbery, although there is some suggestion of an assignment to one Hillbrand, he is entitled to the money duo on the mortgage, to be paid on redemption, and to such valuable, lasting improvements, as he has put upon the premises.- He came in under color of title, and, by analogy to the occupying claimant law, he is entitled to compensation for improvements.

ffe have examined the reports of the masters, and, for the purposes of correction, referred tho whole.matter again to a master, to state an account, on the following principles :

*1. To ascertain the money due on the mortgage.

2. To take an account of tho annual rents and profits of the premises since Phillips came into possession.

3. To apply such rents and profits to the payment of interest on the mortgage debt, and any balance to the reduction of the principal; making rests annually in the calculation of interest on tho mortgage debt, when the annual rents and profits more than extinguish the interest on such debt.

4. To take an account of valuable, lasting improvements, put upon the premises by Phillips, and add tho same to the balance due on the mortgage,'after deducting rents and profits, as above specified.

The amount so found is to be paid over to Phillips, as directed in the decree, and, upon payment, title is to be made to complainants. Decree entered accordingly.


source: Caselaw Access Project

author: Wood, J.

license: Public Domain

text:
    Hamilton v. Jefferson, Cooke, and Tallmadge.
    "Where a decree in chancery merely finds the amount due, and subjects certain securities to be sold for its satisfaction, it is not a decree for the remainder of the debt after the securities are exhausted, nor can execution be issued for the unpaid balance.
    The amount thus found due, without decree for payment, is not “condemnation money,” nor is its non-payment a breach of the condition of an appeal bond, requiring only payment of condemnation money.
    This is an action of debt, on an appeal bond, from the county of Huron.
    It was agreed that if, on the facts in the case, the court should be of opinion that the plaintiff is entitled to recover, judgment should be entered for him ; but if not so entitled, judgment of non-suit to bo entered.
    *The state of the case will be found in the opinion of the court.
    Boalt & Worcester, for the plaintiff.
    Beecher & Cooke, with P. Hitchcock, for defendants.
   Wood, J.

The facts in this case, as they are admitted by counsel, or appear from the evidence submitted, are briefly these :

In 1836, the plaintiff filed his bill in chancery against Josiah Tallmadge, in which he set up the indebtedness of Tallmadge to the amount of §1,200 or $1,500, and the assignment by Tallmadge to the plaintiff of a certain contract for two hundred and twenty-five acres of land, held by Tallmadge against Wolcott and others, to secure said indebtedness. . Also, that Tallmadge had executed-to him certain bills of sale of divers articles of jmrsonal property for the same object, the personal property being left in the possession of Tallmadge.

The bill prayed for the sale of the equitable interest of Tallmadge in the land, and also of the personal property, and that the proceeds might be applied to the payment of the plaintiff’s debt.

Tallmadge answered the bill, and such proceedings were had that a decree was afterward pronounced in the court of common pleas of Huron county, in favor of the plaintiff. From this decreo Tallmadge appealed, and executed the appeal -bond, on which this suit was brought, with Jefferson and Cooke as securities.

The condition of this bond, as set out in the declaration, is, “ that if the said Tallmaldge shall pay the full amount of the condemnation money, in the Supremo Court, and costs, in case a decree shall bo entered therein in favor of the appellant, said writing obligatory to be void, otherwise of force,” etc.; and the declaration avers the usual breach in similar cases.

At the July term of the Supreme Court, 1837, Hamilton obtained a decreo against Tallmadge, The decree finds there'if. *due the complainant some $1,500, and an interlocutory de> creo directs the respondent’s interest in the contract for 225 acres of land and the personal property, if the same remain on hand, tobe sold, and the avails to bo applied in payment of the complainant’s debt, and also the costs of suit, taxed at twenty-eight dollars and forty-eight cents.

On these facts we entertain the opinion that the plaintiff is not entitled to recover. There is no broach of any condition in the bond of the defendants. Their obligation is to pay the condemnation money and costs, in case á decree should be entered in the Supreme Court in favor of the appellee.

In this decree there is no condemnation money. Tho appellant is condemned to pay nothing. The decree merely finds the amount due and directs the sale of the securities for its discharge. The proceedings are not technically, it is true, but substantially, in rem. The property is converted to pay the debt. The decree is inoperative beyond this. No execution can issue on such finding against Tallmadge, for ho is not decreed to pay anything.

The whole object of the decree seems to have been attained by the sale of the securities. By the terms of the decree nothing now remains to be done by Tallmadge; and if no liabilities rest on him, it is difficult to see on what principles the securities are to bo subjected on the appeal bond.

A decree might easily have been so framed that any balance due after the sale, and application of the proceeds of the securities, would have been a debt of record, having the same force and effect as a judgment at law, and on which execution might have issued. The amount found due in the case at bar is, however, but a predicate on which the decree for the sale of the securities is founded, and is not a decree for the payment of money by Tallmadge, the respondent. Judgment of nonsuit.


author: *Birchard, J.

text:
    *B. Lockwood and others v. Wildman, Mills, and others. Wildman, Mills, and others v. B. Lockwood and others.
    The directors of the fire-lands’ company divided all the lands in the half* million tract granted by the State of Connecticut.
    In construing the proceedings of the directors, their intention is to be gathered from a consideration of their entire records.
    Where doubts exist as to the boundaries of land aparted by the directors, the plats of surveys and field notes referred to in the records may be used as evidence, for the purpose of ascertaining the boundaries established by them.
    When lands are granted by metes and bounds, all the area within those bounds, and no more, passes.
    The township of Portland, containing 4,500 acres, was estimated, in making the partition, to contain but 2,783 acres, and was all disposed of in the three annexations, each having a portion of the base line, in the proportion that its quantity of acres boro to the whole supposed quantity of the entire tract.
    A prior decree, to be available as a bar, must bo plead or relied upon, and set forth in answer, and it must be shown that the same points were in issue in the former suit.
    The statute of limitations must be plead or relied upon, in answer, by way of defense; so also lapse of time.
    Persons residing out of the state, at the commencement of adverse possession, are not barred under twenty-one years after the disability is removed.
    This is a bill and cross-bill in chancery, from Erie county.
    In the bill and the answers to the cross bill, the following facts are set forth:
    In the year 180Ü, the State of Connecticut granted to her citizens, who were sufferers by fire during the- revolutionary war, a half million of acres of land, lying within tho State of Ohio, which was to be taken off what was called the “ Western Connecticut Reserve.” By an act of the legislature of the State of Ohio, ¡massed A. D. 1803, the sufferers wero incorporated under tho name of the “Proprietors of tho half-million acres of land, lying south of Lake Erie, called Sufferers’ Land.” The affairs of this company, by said act, were to be managed by a board of directors, who, among other ^-things, were authorized to locate and survey said half-million acres of land, and make partition of the same among the different claimants.
    On November 1, 1805, Taylor Sherman was appointed by the board of directors an agent to survey the above tract of land, and on the 16th day of December, of the same year, he entered into a contract with John McLane and James Clarke, Jr., to survey, or have surveyed, said tract, who were to begin the survey on the south shore of Lake Erie, 120 miles west of the west line of the State of Pennsylvania, as claimed by her, and from thence south to the 41st degree of north latitude; thence east, on said degree of latitude, so far as to include the half-million acres; and also, to begin at tho first-named point on the south shore of Lake Erie, 120 miles from the Pennsylvania lino, and run easterly along the shore of the lake, taking all the indents of the same, so far that a line run south to the 41st degree of north latitude would make the exact quantity of one half-million acres. Then they were to subdivide the area thus run out into townships, as Sherman might direct.
    Preliminary to any survey being made under this contract, it became necessary for the proprietors of this half-million acres to settle with tho Connecticut Land Company what should be regarded as land and what water in making up the half-million acres, and it was accordingly agreed between the two companies that the waters of Sandusky Bay should not be included. In order to determine “what should be deemed land and what the waters of Sandusky Bay, and what the south shore of Lake Erie,” each company should have an agent on the ground to settle such boundaries. That, in accordance with such an understanding, a survey was made under the inspection of the agents of both companies, by one Amos Spafford, commencing at tho east end of tho fraction, and extending west to within two miles of the outlet of Sandusky Bay, where the traverse terminated. The two companies afterward agreed to continue tho survey, to settle what should be deemed land and what the waters of Sandusky Bay, but it was *never done. McLane and Clarke proceeded under their contract to make a survey of the half-million acres, and among other things, a pretended traverse of the bay. But the whole survey was found to be wrong and inaccurate, which led-the company to cause a new survey of the whole tract to be made; and for this purpose the company, by their agent, Isaac Mills, on March 14, 1808, made an agreement with Almon Ruggles to survey the half-million acres, and especially, to survey off “ the fraction or broken tract or parcels of land on the shore of the lake, that they might be annexed together, so as to make one or more entire townships, and furnish said company with a correct map or chart of said lands,” in which was to be made appear “ all the town lines, streams, or water-courses, together with a traverse of the shore of Lake Erie and Sandusky Bay,” to be completed on October 1,1808.
    Ruggles surveyed the entire grant, run off the same into townships, but made no survey of Sandusky Bay, and made return of his proceedings, together with tho minutes of the survey made by McLane and Clarke of tho south shore of Sandusky Bay, to the board of directors at New Haven, with the following certificate appended to the whole :
    “I hereby certify that the above and foregoing field minutes were taken and made by me on the survey of the land of the Sufferers’ Land Company, in pursuance of my contract with said company, as on record, and are true and correct. But as to tho traverse of the shoro of the lake and Sandusky Bay, which was formerly taken under contract, between the company and John McLane and James Clarke, Jr., I can not certify that said traverse is correct.
    “ Almon Ruggles.
    “ November 7,1808.”
    The board of directors, having no confidence in the traverse of McLane and Clark, did not adopt it as a part of the survey of the company, and entered the following resolution on their records:
    “ That the field minutes of the survey of the lands of the company, made by Almon Ruggles, Esq., in performance of his contract with the company, be approved and recorded at full length in the records of the company.”
    *The traverse was so uncertain that it never was used as a basis of any calculation, either in ascertaining quantity or defining boundary, and has no connection with any other survey on record. Between the north line of township six, in the twenty-third range, and Sandusky Bay, there was a fraction of land, now called Portland township, the same of which no traverse was taken, except that of McLane and Clarke, as before stated, and which fraction, for the want of a correct traverse, was estimated by Ruggles by running a diagonal line on paper from the end of the east to the end of the west leg of the fraction, the former being fifty-three and the latter eighty-two chains in length, which made the exact number of 2,783 acres, thus:

    Ruggles supposed, from his knowledge of the country, that, in some instances the waters of the bay would extend south of this imaginary line, and, in others, that the land would run north of the same, but that, taken in its whole extent, it would form a fair average between land and water. With this information before them the board of directors did so divide off the fraction that each of the three divisions, which were subsequently made, should have whatever land should be north of this diagonal, as an equivalent for whatever bay or marsh might be south of it. Each of the three divisions should have their respective bases on the line of Perkins fixed, and then run the risk of land and water between this basis and the bay. Ruggles, as be was bound by bis contract, made a map of the entire survey, in which he represented the shore as a straight line to agree with the diagonal lino spoken of, and which was the only boundary of the fraction the board had before them at the time of partition.
    *Jessup Wakoman, Isaac Mills, Taylor Sherman, and William Eldridgo were appointed a eommiotoo to adopt some mode to make partition of the grant among different claimants, who, among other things, reported that the twe: ty-third range contained six square townships with a fraction, he one above mentioned between the north line of township six and the shore of Sandusky Bay, which contained, as before stated, 2,783 acres of land; and as sections one and four, in township one, range twenty-four, and section four, in township one, and range twenty-three, were of less value than the average sections of the firo lands, owing to swamp and marshes which existed in the samo» the committee recommended, in order to equalize said sections, as follows: “That to section one, in township number one, twentyfoui’th range, be annexed 1,783 acres off the east end of said fraction of 2,783 acres, between the north end of township number six, in the twenty-third range, and Sandusky Bay. That to section four, township number ono, range twenty-four, be annexed 500 acres of said fraction of 2,783 acres, between the north end of township number six, in the twenty-third range, and Sandusky Bay, next west of the former annexation of 1,783 aeres, and the remaining 500 acres of said fraction of 2,783 acres be annexed to section four, in township number one, in the twenty-third range.” That the sections wore composed mostly of m.arsh, and it was the intention of the hoax’d of directoi'S to equalize them, by appending to them the land on the hay. This report of .the committee was adopted and was made the basis of the partition.
    Some time about the year 1811, one Zálmon Wildman, who, with his brother Seymour, were tenants in common in said sections number one and foux’, in the twenty-fourth range, and their annexations, and also in section three (Isaac Mills being the sole owner of sectioxx foux’, in range twenty-three), having accidentally learned that a part of the above ñ’action was well suited for a town, concealed that fact from his co-tenants, and in the year 1812, filed his ¡xctition for partition of said first-named sections, and their annexations, in the county of Cuyahoga, under which petition partition was made. Under the proceedings in partition a ^travex’se of the bay shore was made, Wildman being present at the time, which traverse was intended to be used as a basis to determine the division from north to south between the several annexations. It was now discovered, for the first time, that the fraction contained about 4,000 acres of good land. This was owing to the fact that it was not known at the time the quantity in the fraction was estimated,, as befox’e stated, that the bay shore, after passing some distance fx'om the east end of the fraction, inclined suddenly to the north, leaving a large tract of land between the diagonal line and the bay.

      The Wildmans, being acquainted with the intention of the directors as to the manner in which the fraction was to be divided, and knowing that the first annexation was intended to be located on its proportional basis between the north lino of the township and the diagonal line, and that all land north of said line, if any, was to bo a part of said annexation, without regard to quantity, and so likewise as to the two remaining annexations, so run the lines between the several annexations as, measurably, to carry out the intentions of the directors. Under this partition there was set off to the first annexation 2,300 aeres, about 500 acres moro than its original quantity. To the second annexation there was set off 750 acres, 250 more than its quantity. The Wildmans, under this partition, had set off to themselves 805 acres in the east, or first annexation, which was bounded on the oast by what is familiarly known as the sycamore line, and which was, in fact5 their whole interest, not only in the annexations, but also in the three sections, and was so meant by the committee at the time. In the second or middle annexation, there was set off to the Wild-mans 475 acres, which was their entire interest in section four and its allotted annexation.
    According to this survey all the land cast of the famous sycamore, and 805 acres west of this lino, belonged to the first annexation, which brought the west line of the same to what was called the old white store, a spot near midway between Wayne street and Columbus avenue, on the present site of Sandusky City. The middle annexation extended west of the *last-.mentioned line, 750 acres, and was bounded on a line on the west, run from tho bay shore, south, at or near what is sometimes called Davidson & Root’s slaughter-house, at least sixty rods west of the store of Mr. Townsend. Mills and George Hoadley, who were the owners of the west annexation, found fault with the Wildmans for the manner in which they divided off the fraction ; Mills claiming that the west extended as far east as a point on the bay shore, near the present corner of Columbus avenue, and thence south to the township line. In order to define the extent of his claim, ho drove down a post at the point near the corner of Columbus avenue. The line thus run or claimed by Mills would give him 1,560 acres more than his original quantity of 500 acres. This he claimed by virtue of the term “remainder,” which was applied to the west annexation.

      In this controversy, Wildman justified the course he took, upon the ground that the directors had no traverse of the bay shore before them at the time they made partition ; that the quantity in the fraction was estimated by a diagonal line upon paper, and that it was the intention of the board that the fraction should be divided, as has been already explained. The ground covered by the dispute is the samé which now lies between Columbus avenue and McDonough street, being a body of about 750 acres. Kilbourn, who was anxious to close the controversy, in order that the city might be begun, advised a compromise, and under his auspices Wildman, who had before this time purchased out the interest of his brother, agreed to quitclaim the one-half of the disputed territory to Mills and Hoadley. But afterward, Mills and Hoadley, being anxious for an interest in Wildman’s location east of the point on Columbus avenue, and bet%veen that point and the sycamore line, Mills agreed to take the one-fourth of the whole 1,280 acres, set off to Wildman in the two annexations, instead of the one-half of the tract first mentioned as the one in dispute.
    This agreement was finally consummated, and Wildman and his wife, on May 3,1819, released to Mills and Hoadley, the one-fourth of the 1,280 acres, which is described in the release, as follows : “ A certain tract or parcel *of land on the fraction, so called, on Sandusky Bay, in Huron county, and State of Ohio. Said tract contains, in tbe whole, about 1,280 acres more or less, and is the same heretofore set and aparted to me, and my brother Seymour Wildman, on a writ of partition in Cuyahoga county; and for more particular description and boundary of said tract, reference must be had to said partition record. It is the same tract on which the city of Sandusky is located.” By this settlement, the division lines between the several annexations were settled upon by Mills and Wildman, and for twenty-five years were considered fixed and permanent, and were not departed from by either, until within a few years since. Shortly after the above settlement between Mills and Wildman, the former caused what he termed his west annexation, to be run out, and directed those who made the survey, in order to find the east line of the same, to commence at the east corner of Perkins-township, and follow that line to the point or stake where Wildman had fixed the southwest corner of the first annexation, and from thence west to where he had fixed the southwest corner of the middle, and from thence north to the bay shore, at the sapling near the slaughter-house of Davidson & Root.
    This, Mills called the east line of his annexation, which, according to the survey made at the time, contained 1,001 acres. In the year 1815, after Wildman’s partition,William, Eliphalet, and Buckingham Lockwood, and others, filed their petition for the partition of the remainder of the first annexation, Wildman having taken 805 acres off the west end. The committee who made the partition recognized Wildman’s lines of 1812. Owing to the fact that Wildman had his rights in the sections and annexations sot off in one body in the latter, when the Lockwoods, and some of the other tenants in common, came to get their portions of the east, or first annexations, according to the outlines of Wildman’s survey, there was nothing left for some of the co-tenants, and especially for Sam-' nel Cannon, who was a large owner in both annexations. Mills and Wildman, seeing the difficulty which would be likely to grow out of this state *of things, thought it advisable to get in the interest of Cannon, and accordingly set themselves about it, which they called a purchase, to quiet their title to Sandusky City. In 1818, Mills and Wildman contracted to K. Townsend a part of the 1,280 acres set off to Wildman in 1812, coupled with the condition that they could purchase the interest of Cannon in the tract, or, to use the words of the contract, “provided their title to said lands could be quieted.” Mills and Hoadley afterward did purchase out the interest of Samuel Cannon, both in sections 1 and 4, and their respective annexations. Before Mills and Wildman effected this arrangement with Cannon, the latter brought a writ of error to reverse the partition of 1815, and the same was reversed. The Lockwoods then supposed that Cannon’s rights in the first annexation would be located east of the sycamore, which, as Wildman had taken 805 acres off the west end, was already short. This gave rise to a bill in chancery shortly after the proceedings in error the object of which was to limit Wildman and Mills to a proper portion of the first annexation.
    The bill charged that there was a1 largo surplus in the fraction, and that they, Mills and Wildman, had, or threatened to take, possession of the same. The attorney and agent, George Lockwood being the latter, did not know that Mills and Wildman then held what was charged to be surplus as parts of the first and second annexations, and that Wildman, in 1812, had attempted to run the lines dividing the two, according to the intention of the board of directors.
    Milis and "Wildman did not set up any title or claim to unloeated rights east of the sycamore, except that of Samuel Cannon, to the lands undisposed of, and this was now done, although it had been purchased in the first place to “ quiet their title in Sandusky City.” As soon as that decision was made, which virtually decided that the first annexation was not entitled to the surplus, they sought to give it the most extended application, and claimed the entire 1,280 acres as a surplus, which belonged to the west, or Mills’ annexation. It was now claimed for the first time that the sycamore line, which, ^according to the survey of Wildman, in 1812, was the east boundary of the city tract, was, in fact, and in truth, the west boundary of the middle annexation. The west boundary of this annexation was now shifted from the line run from the shore at the slaughter-house, to the sycamore line, thus making at a single leap a stretch of 1,555 acres. The first'and second annexations now lay east of the sycamore line, when onty a part of the former, according to WiMman’s partition of 1812, lay on the east of this lino, 805 acres being on the west.
    At the October term of the court of common pleas, 1829, for Huron county, the decision in bank having been made the year before, they filed a petition for partition, wishing to have all their rights as tenants in common in the first and second annexation relocated east of the sycamore. And as the waters of the bay are subject to fluctuation, varying with the seasons, so as to effect the east end of the fraction, they continued their petition until the February term, 1836, waiting for the most favorable stage of the water, after which time they could no longer have a continuance. But while the petition was pending, to wit, in the year 1833, and after commissioners were appointed, Mills and Wildman sent for one of them, who was a surveyor, and directed him to run out the east annexation ; and in doing so they directed him to wade into the bay, along the east end of the fraction, “as long as any grass could bo seen above water.” The commissioner, after wading in deep water for some time, refused to proceed, as ho Was required, to make a survey which was dishonorable and impracticable. In the spring of 1836, a committee came on to the ground to make partition of the first annexation, which was, under the petition of Mills and Wildman, filed in 1829, the other tenants in common having in the meantime joined, and wore followed by Mills or his agent, and by the agent of Wildman, who was then deceased. While on the ground, tho agont made divers propositions to the committee about including a portion of the bay as a part of the first annexation, to which the committee paid no attention. The agent then took the writ of partition from them and indorsed the discontinuance of Mills, *and the heirs of Wildman. But the committee proceeded and made partition among the other claimants, except in two instances, whore the names were omitted in the writ by mistake, which proceedings were afterward confirmed.
    The committee barely set off to the first annexation 1,783 acres of land, which is about 500 acres loss than was sot off to the same by Wildman; and when 500 acres were set off next west for the second annexation, tho two did not extend as far west as the first did under Wildman’s partition of 1812. Quite a portion of tho 1,783 acros, as set off by the committee, is for tho most part of the season covered with water, over which a boat may float, and is of no value. As the lines of the first and second annexations were established by the committee, there was -left for the west annexation, although originally only entitled to 500 acres, more than 1,700 acres, which, on account of its quality and location, is much the most valuable part of the tract, comparing acre with acre. But, notwithstanding this, Mills and the heirs of Wildman complain that injustice has been done them, and have threatened suits in case their co-tenants took possession of what was set off to them under the partition. This led the claimants in the first annexation to file the present bill, with the intontion of bringing the entire subject again before the court. And in order that tho west line of this annexation may be permanently established where it should be, the owners in the second are made parties. The bill submits the cause to the court upon all tho facts, and asks that tho lino should be run according to the law and equity of the case. To this bill, although there aro numerous defendants, Mills and the heirs of Wildman are the only persons who come in to defend, and claim that the board of directors ascertained the quantity in the gore by means of the old traverse, as the northern boundary, and that the east or first annexation should be run out so as to conform to it. They also charge tho committee with fraud in divers particular’s, and, among others, charge that they were bound to run fifty-three chains on the east end of the fraction, when, in fact, they run only eighteen chains, and sixty-one links.
    *An issue is made in the bill, and answers as to the manner in which the board ascertained the quantity in the fraction north of Perkins township; the defendants claiming it was by means of the old traverse, and the complainants by means of the diagonal-line, and it is submitted on both sides for the court, to-ascertain the truth, and run the'lines of the annexations accordingly. Mills and the heirs of Wildman have also filed a cross-bill, in which they set up their rights in the first annexation, and pray that after it is run out, in accordance with the views and intentions of the directors, that the rights of each may be aparted to them in severalty, and insist upon what was the true mode-adopted by the directors.
    The complainants in the original bill have all answered, and deny that thé directors over used the traverse of McLean and Clarke for any purpose, but that the quantity in the traverse was-ascertained by means of the diagonal line, and ask that the annexations be run accordingly, or that the lines run by Wildman in 1812 be established as conclusive upon all the parties. Mills is. the exclusive owner of the third, or west, annexation ; he owns, or claims, 145 acres in the first, and about the same amount in the-second. Wildman claims 180 acres in the first, and about the-same amount in the second. The heirs of Eliphalet Lockwood and the heirs of John Cannon, the original sufferer, are the principal owners in the east annexation, and the latter own a small interest, or about one-fifth of the second. A partition was made-of the second annexation in 1837, as well as the first. The original bill states that two of the claimants in the first annexation-have not had their rights set off at all, and pray that, in the final order of the case, it may be ordered to be aparted to them ; also,, that one of the claimants in the second, Mrs. Townsend, has never-had her rights, which are asked to be set off to her.
    The controverted facts of the foregoing statement will appear in the opinion of the court.
    The case was elaborately argued, for complainants, by George. Reber, C. Boalt, and Peter Hitchcock, and for the respondents, by E. Parish, and Beecher & Cooke.
   *Birchard, J.

These suits were brought to effect a settlement of the boundaries of two parcels of land, embracing the site of Sandusky City, being a part of the township of Portland, or of the gore lying between the township of Perkins and the •southern shore of. Sandusky Bay. The great value of the property in controversy, and the importance of the issue to the numerous parties interested in it, have elicited untiring industry on the part of their respective counsel in preparing these causes for •a final hearing, and demand at our hands a careful investigation.

This land is a portion of the half million of acres granted in 1792 by the State of Connecticut to those of her citizens who suffered by the burning of Danbury, and several other towns, by the public enemy, during the revolutionary war. In the year 1803, these grantees and sufferers were incorporated by an act of the ■legislature of this state, which act authorized the appointment ■of a board of directors for the purpose of locating and surveying the grant, and making partition thereof among the numerous ■proprietors. In pursuance of their duty under this act, the directors, through Sherman, their agent, on December 16, 1805, entered into a contract with James Clarke, Jr., and John McLane to survey the entire grant. Before this survey could be made, it became necessary to settle a preliminary question with a company, who, under the name of the Connecticut Land Company, in the year 1795, purchased the remainder of the Connecticut Western Reserve, including prior grants, and particularly the grant of the half-million acres to the sufferers. This latter grant was bounded north on Lake Erie, but it was finally agreed by the agents of both the companies that the waters of the bay should be ■considered the waters of the lake, and that the northern boundary ■should be run by competent surveyors under the superintendence ■of two agents, one appointed on behalf of each company. Mc-Lano and Clarke began a traverse under the direction of Sherman and Spafford, the agents of their respective companies. The .answers of the respondents to the original bill, alleges that they did “so far settle all necessary lines *to enable the two companies to run and establish the dividing lines between the land owned by the respective companies,” and that McLane and Clarke did traverse the south shore of Lake Erie and Sandusky Bay “so .as to enable the two companies to run the division line, and run it correctly;” (and this traverse was the one adopted by the diirectors, and which regulated and controlled the' whole survey, and •all the annexations on Sandusky Bay,) “ and that this traverse is ■as binding upon the proprietors of the annexations as any other line.” There exists a train of circumstances and facts which induce the belief, and carry to our minds the conviction, that these allegations of the answer, however honestly made, are not in truth agreeable to fact.

1. If true, the area of the entire grant, instead of being given ag 500,027 acres, would have been some 8,000 acres greater than that number.

2. The gore in dispute would have had an area of 4,500 acres, nearly, instead of 2,783 acres.

3. The plats executed at the time, instead of representing the •shore of the bay, where it bound this fraction on the north, as -corresponding nearly with a right line drawn between the northern extremities of the side lines, would have corresponded more nearly with the true shore of the bay. Add to these the acts of the directors and the statements of witnesses, and all doubt is removed .as to the object and uses made of this traverse. It was never acted upon for any purpose beyond the effecting a settlement with the Connecticut Land Company. It could never have been regarded as a true line for the purposes of partition. Clarke and McLane left their work incomplete. In consequence of this, and of supposed inaccuracies, the directors, by Isaac Mills, their agent, on March 14, 1808, entered into a contract with A. Ruggles to survey and subdivide the entire grant, “ and especially the fraction )r broken tracts or parcels of land on the shore of the lake, that they might be annexed together,” and to furnish a map, showing all the town-lines, streams, or water-courses, together with a traverse of the shores of Lake Erie *and Sandusky Bay. Under this contract Ruggles mado a survey, and on November 7, 1808, returned to the directors his field notes and map, upon which is stated the area of each township and fraction, and also the field notes of the traverse of the shores of the lake and bay, taken by McLane and Clarke, certifying that his own work was correct, and stating that he could not certify that the traverse of McLane and Clarke was correct.

This survey was approved, and several hundred copies of the map by Ruggles were ordered to be published. In making the partition among the sufferers, the directors seem to have acted entirely upon this survey and report. A map struck under the order of tho directors, and a copy of tho manuscript map. used by them in making the partition, are in evidence, and upon neither of them is there anything to indicate tint the McLane and Clarke traverse was at all regarded. On the contrar>-, they show that it must have been entirely disregarded by Ruggles in platting the survey, and by the directors in aparting the lands.

Exhibit number two, appended to the answer of Mills, shows the plan of making the partition adopted by the directors. It is an important document, and mutually relied upon by all tho-parties to this proceeding. It is a record of the proceedings of the directors at a meeting holden at the county-house in New Haven, Connecticut, on November 8, 1808, to which Was reported-at length the plan of partition which was finally adopted. This report recites, among other things, that Ruggles had completed a survey of the lands of the company, by surveying it into five ranges of townships from south to north. The report gives the locality, boundaries, and area of each range, township, and fraction. It recites “ that the twenty-third range contains six square townships of the same dimensions as the others ” (five miles from north to south, and a little more than five miles from east to west), “with a traction between the north line of the sixth township and tho shore of tho Sandusky Bay, containing 2,783 acres,” and, after recommending tho mode of numbering, etc., it further recites, “that*range twenty-third consists of six townships, numbered as aforesaid, exclusive of the fraction of 2,783 acres, between-township number six and tho Bay of Sandusky, which is afterward annexed to section four, in township number one, in the-twenty third range, and sections one and four, in township number one, in the twenty-fourth range;” and stating that the object of making annexation is to render each section of equal value, in order that the whole land might bo aparted and divided by the drawing of one hundred and twenty classifications; tho proprietors-in each classification drawing the equivalent of one quarter township or section. The report recommends “ that to section first, in township number one, in the twenty-fourth range, be annexed 1,783. acres olf the east end of the fraction of 2,783 acres, betwoeu the north end of township number six, in the twenty-third range, and Sandusky Bay. That to section four, in township number one, in the twenty -fourth range, bo annexed 500 acres of said fraction, of 2,783 acres between the north end of township number six, in> the twenty-third range and Sandusky Bay, next west of the former annexation of 1,783 acres; and that the remaining 500 acres ■of said fraction of 2,783 acres be annexed to section four, in township number one, in the twenty-third range.” This exhibit ■further shows that, on November 9,1808, “the directors proceeded to and completed the draft, and made the exact partition of all the lands of the company, agreeably to the foregoing mode of parti* tion and act of incorporation,” and voted that the field minutes of the survey of the “lands of the company, made by Almon Buggies, Esq., in pursuance of his contract with the company, be approved and recorded at full length in the records of the company.” The present controversy has arisen from the fact that the fraction •lying between township six and the shore of the bay, including the marsh or lands frequently or constantly covered by the waters of the bay, has an area of about 4,500 acres instead of 2,783 acres. The respondents to the original bill, in their answer, and by their cross-bill, claim that the proprietors of the eastern annexation shall have their demand satisfied by a survey *of 1,783 acres, and no more, to be taken from the east part of the fraction, making the Clarke and McLane traverse, or the shore of the bay, their northern, and the township line of Perkins their southern boundary; and that five hundred acres next west, shall in like manner, be surveyed to satisfy the second annexation, leaving, for the purpose of satisfying the third annexation (which, in the words oí the directors, is “ the remaining 500 acres of the fraction of 2,783 acres ”), over 2,200 acres, no part of which is land covered with water. In support of this bold proposition, the court are urged to construe the descriptive language of the records of proceedings of the company, as we would similar language of description in a deed of bargain and sale; to apply the technical rules which govern such cases, and thereby gather the intention of the directors, regardless of all the other evidence manifesting their real intention, and, especially, regardless of all the parol and ■other proof, showing that such a course will clearly defeat the •object of the directors, will give to the owners of the third annexation an unjust advantage which was never intended, and will throw upon the owners of the 1,783 acre tract near 600 acres of marsh, swamp, or bay, which the directors and their agent, in the controversy with the Connecticut Land Company, were unwilling to receive and measure as land. We concede and recognize the doctrino that the boundaries of the fraction and annexations, as-fixed by tho directors, when found, are to remain immovable, and that the partition made is, in fact, the conveyance of their proportions to the respective owners. Nor is it d,oubted that when land' is conveyed by m.etes and bounds, all the land within the bound, and no more, passes by the deed or grant. It is upon this principio that we hold that all the land between the north line of Perkins- and Sandusky Bay was disposed of by the three annexations, notwithstanding the fact that tho directors assumed only to dispose, of 2,783 acres, when, in fact, they disposed of 4,500 acres.

Taking the record evidence by itself, it sufficiently appears’ that tho true area of the fraction was unknown to any of the *parties engaged in making the partition.

Ruggles did not pretend to have measured any but the base and side lines. Ho reported that McLane and Clarke’s traverse could not bo relied upon, in bis final report and previous letters. The-face of his maps shows that he did not follow it in platting. The-area stated could not have been given if any calculation had been based upon it, and could only have been found, as uniformly stated in the record, to contain 2,783 a'eres, by closing tho survey with an imaginary right lino, drawn between the northern termini of tho side lines. Other proof shows that the directors,, agent, and surveyor were aware that the extension of the east line fifty-three chains, would carry that part of the boundary off the dry land, and some twenty-eight chains into the marsh or bay, where the water was frequently from three to four feet in depth, and would include many superficial acres of what was not regarded as land, in the adjustment of boundaries between the Sufferers’ grant and the Connecticut Land Company. They were-also aware that the shores of the bay wore very irregular, and that, as claimed by them in the settlement with tho other company, the water-line would, in some places, lie south, and, in others, north of the right line assumed in estimating the quantity. The estimate, as shown by the letters ol Ruggles and the statements of the directors, was intended to be kept, at least, within the actual quantity of dry land, excluding the marsh and water; and, in making .the north and south parallel linos, to divide tho annexations, it was undoubtedly designed to intersect the base line at points where they would cut it, establishing them upon mathe. matical principles, assuming the measurement to be as reported by Ruggles : The base, four hundred and twelve chains in length ; the east line at right angles, and fifty-three chains in length ; the west line also at right angles, and eighty-two chains in length;, and the survey closed by a right line. This would give two hundred and eighty-three chains seventy links, for the base of the 1,783 acre tract; sixty-six chains and eighty-hundredths for the base of the first 500 acres next west therefrom, and a base "of sixty-one chains and a half for the “remaining 500 acres;” *and, in the words of the records of the directors, “ make a complete and exact partition of all tho lands of the company, according to the foregoing mode of partition.”

The whole of the land between the shore of the bay and the north line of township six was so divided, because that is what was intended to be done. Were it a fact that 'the whole record, taken together, owing to the manner and form of the expressions employed, would not admit of a construction consisteut with tho object had in view by the directors, the merits of this cause would make it a legitimate subject for the interposition of a court of chancery to correct the mistake, and to prevent annexation thus from acquiring an advantage inequitable, unlair, and unjust, in any and every aspect in which it may be viewed. But a court of equity is not at.liberty, nor is a court of law at liberty, to gather the intention of tho directors from an isolated part of the record. The whole, when brought forward and relied upon, should be looked to and considered as one act and deed. Tho object in view, and the means of arriving at it — equality of division and a complete partition, without a remaining surplus — were the great objects. Having no traverse of the bay, they gave quanüty as a rule of proportion, according to their understanding of the rights of proprietors; and what boundaries they intended can now, and could then, be lound only by adopting their mode of ascertaining the quantity given as their rule of proportion. Why should the descriptive words of the first 'and second annexations be the exclusive guide, and all other parts of the record disregarded? Wh3r disregard the plats referred to in the proceedings, and used at the time? Why overlook the objects in view — the duty of directors to make a complete and equitable division? Why the fact that, in equalizing, the values of the annexations are given in the quantity of acres each was supposed to contain? And why the words used descriptive of the third annexation — ‘‘.the remaining 500 acres of the fraction of 2,783 acres ” — words that clearly imply, that all of the fraction, save the 500 acres, was, in fact, given to the first two annexations? Independently of all parol proof, it is impossible for us to suppose *the directors meant to leave an undivided portion of the fraction ; as imposille to believe they intended to give to the third annexation 2,200 acres of the better portion of the’ tract. Taking the acts done, the facts and things to which their words referred, as they existed when the words were employed, and the true meaning may be safely gathered from a consideration of the whole, and in no other way.

They had three measured lines; an unmeasured,-but natural boundary, for the fourth line, and an underestimated quantity, all laid down upon a plat — the whole to be divided in the proportion agreed on. Thoy'so divided as to exhaust the entire base. Had this base been severed by lines run upon the ground, the descriptive words would not have changed those lines. They were only marked upon the plat. Yet the intention in this, as in all other grants, should govern; that intention was, that each annexation should appropriate a portion of the base, in proportion to the quantity, and the contents of the entire tract.

Eldredge, one of the directors, testifies that the area of the fraction was ascertained as we have supposed. Mills and Wildman have both said the same thing. Eldredge also states, that “it was the intention of the directors, that the 1,783 acres, from the east side of the gore, should extend west, on the south line of the gore, its duo distance, allowing the other tracts, of 500 acres each, the same extent of base, according to the quantity, and the supposed jhape of the gore.” The imaginary lino was used merely as the means of making the division, but it was intended that each annexation should extend to the bay shore. All the facts connected with the case so strongly fortify this statement that it would seem an unbiased mind could not question its accuracy. We believe in it, and act upon it. It will give to each tract more than the quantity estimated by the directors and Buggies, and will bound each, on all sides, by the boundaries intended, and will not enrich one class of proprietors at the expense of another.

Several objections to establishing the boundaries, as originally designed, romain to be considered. First in order is the *suit determined in this court, in 1827, in Lockwood v. Mills, 3 Ohio, 21. That was a bill in chancery claiming that there was a parcel of surplus, or undivided lands, lying west of the throe annexations, to which all, who drew any interest in the fraction, were tenants in common. It alleged a state of facts which never existed ; and, proceeding upon false premises in matters of fact and conclusions of law, was rightly dismissed, because, had there been a surplus, there was no such tenancy in common as was alleged, and all the parties interested by the showing of the bill and answers were not made parties. This was all that was necessary to bo decided to settle that suit, and all that should be considered as settled by it. In the opinion reported, the court remark that “the annexation, by acres, shows that so many acres were deemed sufficient to equalize the allotments made to each; and we conceive that the actual contents of the lraction can neither diminish nor enlarge the quantity annexed in this case, because the claim of each to his separate annexation was distinct from, and independent of, the other. If there had been a deficiency, each party entitled to an annexation must have been satisfied in the order of his claim, and the one who, in point of law, was last, must have been thrown upon the company, or bear the loss.”

The quotation is doubtless better law when applied to the ease which elicited it, than when applied to one essentially different. Tt should be borne in mind that the court were not called upon to. ■establish an unascertained boundary, and did not undertake to determine that the first annexation should not have the identical boundaries intended by the directors. The opinion is based upon the hypothetical case, there presented as a real one, and merely adoptR the well-established rule, that where a tract is granted, bounded upon three sides by natural or artificial limits, and the ■quantity given as the means of ascertaining the fourth line, the cxac-t quantity, and no more, passes by the grant. A iormor decree to be a bar, even when well pleaded, or set up by way of answer, must be such as shows that the rights of complainants, now set up, have boon already conclusively determined. 7 Johns. Cli. 1. *llenee, in support of a plea of former decree, it is necessary to set forth so much of the first bill and answer as will show the same point was then in issue. Collins v. Gough, 7 Bro. P. C. 94; 2 Mad. 314. But wo can not treat that adjudication as a bar, without doing what the parties do not require of us.

Mills, in his answer, prays that the court would ascertain and establish the west line of said 1,783 acre annexation, and the west line of said 500 acre annexation, next west therefrom, in exact accordance with- the modo of partition adopted by the directors of said' Sufferers’ Land Company, and that the court would then cause to be divided and aparted to each of the owners and proprietors, in each of said annexations, his and their just and exact proportions of said annexation according to the modo of partition, adopted by said board of directors. The answers of the Wikimans refer to the answers of Mills, make it a part of their own, and pray for a like partition; and the eross-bills contain a similar prayer in substance.

The next objection is the statute of limitations, and the above-quotation, from the answers, removes this obstacle. No advantage-can be taken of the statute unless it is pleaded, or insisted upon, by the answer. 1 Atk. 493. Yet, if the answers and eross-bills were differently framed, the statute is not a bar. The actual adverse possession of Mills and Wildman, began about 1818, the time-when the city was surveyed into lots — certainly not prior to 1816— for white settlements did not extend west of the camp,-at Huron, during the war. Before this E. Lockwood died, and his three-sons had never been in this state prior to tho filing of their bill.

John Cannon, the sufferer, died in 1796; John, his son, in 1797,. leaving John the 3d, who has never been in the State of Ohio, and who joined in filing the present bill. John the 2d also loft E. M. Townsend, Sarah St. John, and George Cannon ; the former of whom has always resided out of the state, and who is a party to-the present proceedings. Sarah died in 1808, leaving George B. St.John her heir, neither of whom have, ever been in the state.. •George, the son of John 2d, died in 1829, also being a non-resident. His children are parties to *the original bill. Esther St. John, the present claimant, was the daughter of James Cannon, .the sufferer, who died in 1798. Esther lias always been “beyond seas.” Kneeland Townsend purchased of Mills, in 1824, and between that time and the commencement of this suit, the statute has-not had time to run.

The fact that the parties had knowledge of the adverse possession more than twenty-one years before suit, and bad agents-within the state, does not, as we think, remove the disability and take the case from within tho proviso of the act. That the proviso is in force was settled in 7 Ohio, 152, 225.

The remaining objection is lapse of time. Courts of equity protect parties against stale demands, and will not encourage them in sleeping upon their rights, but will, in general, follow the analogies of the statute. These claimants are not, however, barred, if we adopt the analogies of the statute. Although more than twenty-one years elapsed after their property was wrongfully taken into the exclusive possession of Mills and Wildman, be'ore thoj7 filed this bill, it is not readily preeeived that the claim is a stale one. In some form or other it has been in litigation nearly the whole of the time since 1818. The proceedings in partition sought to be confirmed in one aspect of the case, were begun as-early as 1827, and are now ponding on a writ of error to the eour. of common picas. If the parties have slept upon their rights, ought it to be brought up in judgment to condemn them, cóntrarj to equity, when, from all the lacts, it appears that for twenty-four years they have made continuous efforts to rouse themselves enough to make the merits of their claim manifest in a court of justice, maugcr the skillful, and, hitherto, successful management of their more experienced and bettor informed adversaries? They have-not slept. They merely acted inefficiently, as opposed to more skillful men. Decree must be entered for complainants, referring-the cause to a master to make partition, valuation of property sold to bona fide purchasers, etc., reserving other questions until the coming in of the report. Decree accordingly.

Lane, C. J., did not sit in this case.