text:
    Jacob L. Wayne v. Steamboat General Pike.
    Jn bills of lading, where the terms used have, by usage, acquired a particular signification, the parties will be presumed to have used them in that sense,
    'But usage will not be permitted to control the terms used, unless it is established by clear and satisfactory proof.
    This is 'a writ of error directed to the superior court of Cincinnati.
    The action below was assumpsit, brought by the plaintiff in •error, against the defendant, upon two bills of lading, the same in form, one of which is as follows:
    “ Shipped, in good order and well conditioned, by R. Mitchell ,& Co., for account of J. L. Wayne, on board the good steamboat General Pike, whereof is master, for the present voyage, Oapt. Ross, now lying at the port of Cincinnati, and Abound for Memphis, the following articles marked and numbered as below, which are to be delivered without delay, in like good order, at the port of Memphis (the unavoidable dangers of the river only ■excepted), unto J. W. Hayne, or to his or their assigns; he or they to pay freight for the said goods, at the rate of thirty-four ■dollars for lot.
    “In witness whereof, the owner, master, or clerk of the said boat hath affirmed to three bills of lading, all of this tenor and date, one of which being accomplished, the others to stand void.
    “Dated at Cincinnati, November 5,1844.”
    The bill of lading, below the list of articles shipped, was signed J. W. Strader, clerk.” The breach alleged was, that the goods were not delivered to the consignee.

      It was admitted on the trial, that the articles shipped, were not delivered to the consignee, Hayne, but were left at the wharf-boat ■of A. B. Shaw & Co., at the Memphis landing, and never came into the possession of Hayne.
    The plaintiff having rested, the defendant, by her counsel, proposed to offer evidence to show by parol testimony, that by the known established usage and custom of delivering goods at Memphis, shipped on steamboats at Cincinnati, bound beyond Memphis, to be delivered to consignees at Memphis, Tennessee, it was a good and sufficient delivery if the boat delivered such •goods to A. B. Shaw & Co., at their wharf-boat at the Memphis landing, without any direct notice, by the boat to the consignee, of the arrival of such goods ; to the receiving of which testimony to prove such usage or custom, the plaintiff objected, as tending to vary the liability of the boat as fixed by the terms of the bill of lading. The objection was overruled, and the testimony ■admitted.
    After the testimony was closed, the plaintiff asked the court to ■charge the jury, that if the defendant had shown that it was the custom or usage for steamboats to deliver goods at Memphis to A: B. Shaw & Co., at their wharf-boat, *without giving notice to the consignees, if at Memphis this custom could not be binding on the plaintiff, nor affect his right to recover; but the court refused to give such charge in terms as asked by the plaintiff; but ■did charge the jury, that if, by the usage or custom of Memphis is meant a local usage at that port, as contradistinguished from a known and established usage of trade, of shipping and transporting goods from certain ports to the port of Memphis, then the court charged as asked by the plaintiff; but if, by a known and ■established usage of the trade in question, a delivery at a wharf-boat at the port of Memphis, without notice to the consignee by ■the boat, is a delivery to the consignee, then such delivery, according to the known and established usage, would discharge the -carrier; to which refusal to charge as requested, the plaintiff excepted.
    The jury having found a verdict for the defendant, the plaintiff moved for a new trial, assigning for cause the ruling of the court aforesaid; and also, that under the law as laid down by the court, the facts did not warrant the verdict, there being no satisfactory .proof of the usage or custom sought to be established by the defen dank. The court overruled the motion, and rendered judgment upon the verdict.
    It is alleged here, that the court erred in admitting testimony to establish the supposed usage, and in refusing to grant a new-trial.
    There were other points made during the progress of the trial, as to the competency of testimony, and as to the charge of the court, but they are all involved in the foregoing.
    The testimony to establish and to dispi’ove the alleged custom or usage, is incorporated in the bill of exceptions, but it is not necessary that it should be inserted hero, to a full understanding of the case.
    Fox & Lincoln, for plaintiff in error, contended:
    1. That a bill of lading is a special contract, and can not be altered or varied by parol testimony, of usage, custom, or otherwise.
    *2. That this contract imposes a duty on the carrier to deliver the goods personally, at the usual landing-place of boats visiting the port of delivery, if the consignee is to be found, or by giving him notice that the goods are ready for delivery.
    3. If the consignee can not be found or is absent, it is the duty of the carrier to' deposit the goods with some safe person, to be delivered to the consignee, or to be kept for him.
    4. That usage or custom can not dispense with the necessity of delivery, or of notice of the arrival, and a notification to the consignee, that the goods are at the wharf for him, and therefore the evidence to prove such usage was improperly admitted.
    5. If the evidence was admissible it did not establish a usage, therefore a new trial ought to be granted.
    In support of these propositions they submitted the following authorities:
    Babcock v. May et al., 5 Ohio, 346; Ostrand v. Brown, 15 Johns. 39; Story on Bail. 358, 543; 2 Kent’s Com. 604; 2 Greenl. Ev., sec. 250; 2 Wash. C. C. 24.; 14 Pick. 144; 1 Grreenl. Ev., sec. 292; 3 Met. 363; 1 Phil. on Ins. 48, 483; 2 Johns. 335; 2 Penn. 240 ; 2 Burr. 1222; 2 Marsh on Ins. 707; 10 Mass. 26; 21 Pick. 108; Ib. 483; 8 Serg. & Ra. 533; 17 Wend. 311; Smith on Merc. Law, 170; Story on Bail. 347; 3 Campb. 414; 14 East, 475 ; 4 Term, 581; 5 Term, 387; 2 Esp. 693; Abbott on Shipping, 247; 19 Wend. 235; 21 Wend. 355; 2 Hill, 623; 8 Taunt. 144; 4 Campb. 40; 2 Bos. & Pul. 168; 4 Esp. N. P. C. 177; 2 Campb. 415 ; 2 Stark. 249; 1 Stark. N. P. C. 249; 5 Barn. & Ald. 53; 2 Barn. & Ald. 356; 3 Brad. & B. 177; 4 Barn. & Ald. 21; 1 Duer on Ins. 259, 261, 267, 277, 279.
    King & Anderson, for defendant in error.
    *No argument for the defendant came to the possession of the reporter.
   Birchard, O. J.

A bill of lading is a special contract, and as a general rule is not to be varied or altered by parol evidence. The contract imposes the duty of delivery according to its terms as understood by the contracting parties at the time of entering into the same. Where there is nothing in the nature of the business which is the subject of the contract to control the meaning of its terms, the instrument must be interpreted, and its meaning gathered from the instrument itself, without resort to any parol •testimony.

In reference to bills of lading, where some of its terms, applicable to the business contracted for, have, by the course of trade and the usages of those concerned in it, acquired a particular .signification in reference to an established usage of the trade, a legal presumption arises that the persons engaged in such trade used such terms in their contract according to that acceptation, and in the sense recognized by the trade. The owners of the General Pike claimed that there was a general and well-established usage known to carriers, consignees, and consignors, and all persons concerned in freighting goods by steamboats on the rivers Ohio and Mississippi, by which a contract of lading, to deliver from a steamboat goods to a person residing at Memphis is understood to mean a delivery to A. B, Shaw & Co., owners of a wharf-boat lying in the stream opposite the town, who, by «aid usage, are the general agents of all consignees residing at Memphis.

From the bill of exceptions it appears the attempt was made to establish such a usage, although the proof was objected to. Wo are not prepared to say that the court erred in overruling the plaintiff’s objections, and allowing the defendant to introduce proof in order to establish this supposed usage and its reasonableness. Nor do we mean to say that, on some of the points ruled by the court, it is quite clear that error did not intervene. But assuming that *thero was nothing erroneous in the decision on all the points ruled in the admission and rejecting of testimony, and also in the instruction given to the jury, we have come to the conclusion, with entire unanimity, that the superior court did err in refusing to grant a new trial.

The usage attempted to be established by proof was, to say the least, of a very extraordinary character—one that might in practice become very injurious to the interests of shippers, consignees, and owners; and its supremacy should not be allowed to be established without clear and satisfactory proof of its actual existence, and of the general acquiescence therein by the public. If it is convenient to owners of steamboats and consignors to land goods at wharf-boats without notice to the consignee, and they can not conduct their business without being allowed this privilege, it is not difficult to provide, in their bills of lading, a form to meet the case.

Now what did the proof show ? Not that any such usage as that contended for was understood generally at either Memphis or Cincinnati, nor that it had been universally the custom. Several merchants of Cincinnati engaged in shipping goods to Memphis had never heard of such a usage. They state that when they consign goods, they consign them to the person to whom they belong, unless specially directed to have them left at the wharf-boat of Shaw & Co. The other merchants, who spoke of having known that such a practice prevailed among captains of transient-steamboats, speak of Shaw & Co. refusing to receive goods of boats that would not make their bills good, and that they were-not authorized to open bills of lading or letters, except for certain persons residing at Memphis. Several persons, also residing at Memphis, say there is no such usage known, although steamboats generally deposit at the wharf-boat and pass on. Indeed, without-, going minutely through the great mass of testimony, it is sufficient lor us to say, in general terms, that the most that could be made of the evidence, and all that it established, was, that ^steamboats have been for several years in the practice of landing goods at places upon the river where wharf-boats are stationed, with the keepers of the wharf-boat, and intrusting them •with the duty of the delivery to the consignee, and then passing on without further care than to secure their freight; and that where the goods have eventually come to the proper hands, and no difficulty has occurred, no one has made any complaint. This, instead of proving a custom which is to control the torms of a bill of lading, and become a part of the law of the contract, is proving a very loose practice, which can not terminate the responsibility of the carrier, which the courts ought to aid the proprietors of steamboats in correcting for the benefit of community. If captains of steamboats will land goods thus, the owners of the boat must be made to understand that they are responsible for the loss, provided the goods fail in coming to the hands of the true owner or consignee. If a loss happen, they can not force the consignor to look to the proprietor of the wharf-boat for remuneration. He may make the steamboat answerable for the damage. If not satisfied with this risk, boats can decline the responsibility of assuming it, and stipulate, by their bills of lading, for a delivery on the wharf-boat, and at no other place, as the proof shows that many have been in the practice of doing, A new trial should have been granted, on the ground that the evidence not only did not establish, but strongly disproved the defense that was attempted to be made. Judgment revorsed.


source: Caselaw Access Project

author: Birchard, C. J.

license: Public Domain

text:
    * James Galloway and Robert P. Mitchell v. Jacob Brown’s Lessee.
    "Where a patent contains a call for a corner and line not established at the time of the survey, it is not a eontroling call, and will not govern course and distance.
    The call for the corner and line of A., in a patent, is to be taken as a call for a corner and line as established at the date of the survey, and not as they may be established by A. in subsequently surveying his entry.
    This is a writ of error, brought to reverse the judgment of the court of common pleas of Greene county.
    The points in the case as disclosed in the bill of exceptions, sufficiently appear in the opinion of the court.
    J. G. Gest and Henry Stanbery, attorney-general, for plaintiff in error.
    ■ Wm. Ellsberry, for defendant in error.
   Birchard, C. J.

This is a writ of error to reverse a judgment of the court of common pleas of Greene county. The action was ejectment, and judgment was rendered in favor of the plaintiff. A motion for now trial was made, which being overruled, a bill of exceptions was taken, presenting all the proof offered in evidence upon the trial. Three errors are assigned which may be considered as one. Did the court err in overruling the motion for a new trial? The plaintiff claimed under a patent of the United States, bearing date February 6, 1797, issued on a warrant for the military services of Major-General Horatio Gates, for 2,500 acres of land, situate between the Little Miami and Scioto rivers, “ as by survey bearing date March 8, 1793.” The description of this survey is such, and the boundaries are so well ascertained; that no difficulty arises upon any part of it, except the last or closing line, *which, starting from the fourth corner called for in the patent, reads thus, “thence south forty-five degrees ■east, 820 poles, passing McAdams' corner, at 287 poles, and with his line crossing a large branch of Cmsar’s creek, to the beginning.”

This line, if run directly from the fourth call to the place of beginning, would pass some 28 poles from McAdams’ corner, and would leave a vacancy of 28 rods in width, opposite McAdams’ corner, and terminating at points'at each end of the line. This tract is the subject matter of controversy. For this the plaintiffs hold title under a patent, issued to Galloway, if the land is not embraced in the Gates’ survey.

The whole difficulty turns upon the point whether the boundary ■of the Gates’ patent is identical with McAdams’ line, and whether the call for his corner is a controlling call of the patent. By reference to the patent and entry of McAdams, we find that his ■entry is older and his survey junior to the Gates’ survey. The entry reads, “ beginning at said McAdams’ north corner of his ■entry, No. 1,995, thence south 45 degrees east 533J- poles, thence north 45 degrees east, at right angles for quantity, 1,333J- acres.” The survey of this entry was made April 10, 1793, one month later than the survey of Gates, and is described as beginning at two elms, an ash and white oak tree, east corner to the survey, thence north 45 degrees east 400 poles, crossing a branch at 350 poles, to two black oaks and a dog-wood. From the other evidence disposed by the bill of exceptions, it appears that the disputed line •was an open line at the date of Gates’ survey, and was never run until surveyed in 1806, by direction of Col. Elzy, the then owner of the land, who run in a direct line from the fourth corner to the first or beginning corner; thus departing from the McAdams’ corner and lino throughout this course. This line Elzy recognized as the time one, while he owned the land. It is also evident that in surveying the McAdams’ entry, the surveyor was governed by course and distance, and.that the corner fixed by the surveyor .and recognized in his patent, and now ascertained *as the corner, 28 poles distant from the right line run between Gates’ ■first and fourth corners, was then a mere ideal corner, having at that time neither natural nor artificial objects to define its locality. It is equally evident that had the survey of McAdams been made according to the entry, there could havo existed no vacancy botween the two surveys. But by some means, the line of survey •diverged from the true corner called for by the entry, and we find the shape of the tract varying from a rectangle, and creating a vacancy, which the patent of Galloway, under which plaintiffs in error claim, might well appropriate.

The survey of McAdams merged his entry, and although he might have placed his corner and line so as to correspond with the right line of Gates, extended between his first and fourth •corners, as surveyed and recognized by Elzy, yet not having done so, the oonsequence is that his title can not cover more than his ■survey embraced, and if the Gates’ patent can be made to embrace up to Adams’ line by reason of his call for his corner, it would then follow that it covers ground not embraced by the survey or descriptive calls, as they originally existed, but in consequence of the acts subsequently done by McAdams’ surveyor. To test the soundness of a rule that would work such a result, let the proposition be reversed, by supposing McAdams to have surveyed without his entry, and to have encroached upon and included part of the survey of Gates. Would he be bound to submit to such subsequent change of location and suffer his boundary to bo thus changed ? Or suppose that McAdams’ line had never been run at all, would it follow that Gates’ lino was subject to change, from the line actually intended in March, 1793, and that it could not be ascertained without discovery of a call having no existence ? We think not. It necessarily follows, then, that the calls in a deed for objects which had no existence at the time are mistaken calls which should have been rejected, and should not have been allowed to control course and distance. From the view we have taken a new trial should have been granted.

*There is another ground upon which the plaintiffs were entitled to a verdict. The proof shows that the line of Gates’ patent was unsurveyed until Elzy surveyed it, and marked it as now claimed by plaintiffs. The corner of McAdams was then known, and its distance from the line measured by the surveyor. Notwithstanding, Elzy claimed only to the line actually run. He treated the land now in dispute as vacancy; suffered Galloway to enter, survey, and procure his patent for it as government land not embraced within the calls of the Gates’ patent. After that he lay by for many years, and suffered possession to. be taken, and improvement to be made, under the patent, never questioning the boundary while he held and possessed the legal title. This conduct should, in our opinion, estop him and those holding under him from setting up his title, to interfere with a boundary by himself established, and thus defeat a title which otherwise would or might not have been obtained.

It is the opinion of the court, therefore, that the title obtained under the patent to Galloway was a valid defense, and should have prevailed.

In overruling the motion for a new trial, the court below erred, and their judgment must be reversed.


author: Bead, J.

text:
    Dwight Johnson v. Madison Miller.
    A contract by which one party agrees to furnish whgat to stock a mill, and the other party, with the money advanced by the first to purchase the wheat, convert it into flour, and, after deducting 2£ per cent, and the original cost of the wheat, to receive the -avails of the sale of the flour, does not constitute a partnership.
    In such case, the wheat purchased is the property of the person furnishing the capital, and is only held hy the other as bailee; and, if levied on as his property, may he replevied at the suit of the person advancing the capital.
    This is an action of replevin, reserved in Cuyahoga county.
    The defendant, as sheriff of Cuyahoga county, had levied *upon a quantity of wheat, the property in controversy, as the property of Hutchinson & Co. The plaintiff claims that it belonged to him. It was submitted to the court upon the circuit, upon an agreed statement of facts, which follows, and was reserved for decision here.
    “This case is submitted to the court upon the following facts, proved and admitted, to wit: The property which was replevied, October 20, 1842, consisted of 9,000 bushels of wheat, worth $5,400, which had, on October 19, 1842, been levied upon by the defendant (he then being sheriff of said county of Cuyahoga), and was held by him on an execution in favor of H. B. & M. D. 'Well-man against A. S. &. S. R. Hutchinson and Elijah Bingham, who composed the firm heretofore existing of Hutchinson, Bingham &■ Co., but which was dissolved in 1839, on which execution there was due, August 23,1847, the sum of $3,018.92, the return made by said defendant on said execution of his said levy being as follows: ‘Cleveland, November 1, 1842. In obedience to the command of this writ, I did, on October 19, 1842, levy on 9,000 bushels of wheat, which was replevied out of my hands by the coroner, at the suit of Dwight Johnson, and no money made.’
    “ The wheat in question was purchased under the contract hereto attached, marked ‘ A,’ and was in the possession of Hutchinson & Co., at their said Cleveland City Mills, under said contract, at the time of said levy. The funds employed in the purchase of wheat under said contract, were provided by said plaintiff Johnson, and deposited with M. T. Williams & Dow, and by them paid over to the said Hutchinson & Co., and the said agent of the said Johnson, as they became necessary, and with funds so furnished the wheat in question was purchased, part by said Hutchinson & Co., and part by the agent of said Johnson, as provided in said contract. At the date of said levy said plaintiff had' advanced about $45,000, and had' received by sales of flour in Cleveland and Buffalo, about $18,000, but what amount, *if [488 any, had been sold in New York, or what quantity of wheat and flour wás on hand, did not appear. The firms of Hutchinson & Co., and of William Chard & Co., were the same, and were composed of S. R. & A. S. Hutchinson and Wm. Chard; the latter holding an interest of one-fourth part in the same. Said firms of Hutchinson & Co., and of Wm. Chard & Co., so composed as aforesaid, existed previous to and during all the time embraced in said contract. At the date of said contract, Hutchinson & Co. owed said plaintiff $10,000, and owed to other persons $16,000, which indebtedness continued unpaid at the date of said levy, and at the time of the levy said firm of Hutchinson & Co. was entirely insolvent. Whenever they received money or wheat under said contract, they credited the same to said plaintiff, and charged him with any money deposited for his use, as provided in the contract. During the whole time embraced in the contract the market was declining, ■and the whole loss by means of said adventure was not less than $10,000. This suit was commenced by the assent, and at the request of the said S. R. Hutchinson, acting for said Hutchinson & Co., given the next day after the levy aforesaid. The milling assets, at the date of said contract, of the said Hutchinson & Co., constituted the principal assets of said firm, and which assets in all did not exceed from $2,000 to $3,000. Said milling assets were used as required by said contract, and said firm of Hutchinson & Co. were in no better situation as to assets, during the continuance of said contract. After said wheat was replevied, Johnson returned it to Hutchinson & Co., and the same was floured in pursuance of said contract.”
    The agreement mentioned in the preceding statement of facts is as follows:
    “ This contract, made and entered into at Cleveland, by and between Dwight Johnson, of New York, and Messrs. Hutchinson & ■Co., of Cleveland, Ohio, witnesseth :
    *That Dwight Johnson hereby agrees to furnish wheat, and stock the Cleveland City Mills, to the full capacity of said mills from the date hereof, until the 15th day of November next.
    “ The said Hutchinson & Co., in connection with the agent of said Johnson, shall purchase the wheat, using the best judgment of both parties.
    ■“ The said wheat so furnished to be floured by said Hutchinson & Co., at the Cleveland City Mills, and the said flour to be sold at Cleveland, and at Buffalo by Wm. Chard & Co., or be shipped to Dwight Johnson, New York, as said Hutchinson & Co., may think best for their interest.
    “ The proceeds of said flour to be paid over as fast as sold to tho agent of said Johnson at Cleveland; if sold at Buffalo, the proceeds are to be deposited with H. R. Seymour & Co., to the credit of M. T. Williams & Dow, and when so.deposited, such proceeds shall be at the risk of, and shall be a payment of so much to said Johnson. ’The said Hutchinson & Co. agree that the milling assets they have on hand shall be brought into the milling business as fast as possible, for the purpose of applying on their indebtedness to said Johnson.
    “ All flour retailed at the mill is to be accounted for by Hutchinson & Co., as being paid either for the purpose of carrying on the-mill, the support of their families, or to said Johnson’s agent.
    “ The said Johnson is to receive a commission of 2J per cent, on' all sales of flour, except on single barrels retailed at the mill.
    “At the close of this contract, all proceeds of flour sold which havo come into the hands of said Johnson, shall be paid and applied as follows: 1. To repay for wheat purchased. 2. To liquidate the balance due said Johnson. 3. The balance is to be paid over to said Hutchinson & Co. ■
    “Witness our hands this August 16, 1842.
    “ Dwight Johnson.
    Hutchinson & Co.”
    “ In the presence of Prentiss Dow.”
    *Bishop & Backus, and Bolton & Kelley, for plaintiff, cited the following authorities :
    Story on Bailment, secs. 396, 397, 413, 421, 423; Loomis v. Marshall, 12 Conn. 69; Turner v. Bissell, 14 Pick. 192; 17 Mass. 197; 1 Campb. 331, in notes; 2 H. Blk. 590 ; Coll on Part. 19 ; Story on Part. 60, 373-377 ; Story’s Eq. Jur. 677; 17 Ves. 194, 205, 206.
    Andrews, Foot & Hoyt, for defendant, cited the following authorities :
    Gates v. Gates, 15 Mass. 310; Collins v. Evans, 15 Pick. 63; Dunham v. Wycoff, 3 Wend. 280; China v. Russell, 2 Blackf. 172; 12 Wend. 131; 18 Pick. 278; 16 Pick. 562, 567; 7 Conn. 681, in note; Story on Part. 511.
   Bead, J.

The judgment under which the levy was made was-against Hutchinson, Bingham & Co., the property levied upon is claimed to belong to Hutchinson, & Co., a new firm composed of some of the members of the firm of Hutchinson, Bingham & Co., which had been dissolved. The 9,000 bushels of wheat levied upon, was furnished under the contract with Johnson, and was no part of the assets of the old firm of Hutchinson, Bingham & Co.

The questions in the caso are: 1. Was Johnson a partner?' .2. Under the contract was the wheat the property of Johnson or of Hutchinson & Go?

If Johnson was not a partner and the wheat under the contract was the property of Johnson, it renders it unnecessary to consider, the question respecting the levy upon the partnership property to satisfy the debt of an individual partner, and the rule of damages in case the other partner replevy it, and the action be determined against him, as to whether it shall be the full value of the property replevied, or only the residuary .interest of the debtor partner, after tho settlement of the partnership accounts.

The two questions which we propose to consider, and *which, in our opinion, determines this case, depend entirely upon construction of the contract.

By the terms of the contract Johnson agrees fully to stock the ■Cleveland Mills from the 16th day of August to the 15th day of November, 1842; Hutchinson & Co., in connection with, an agont of Johnson’s, were to purchase wheat.

This wheat was to be converted into flour by Hutchinson & Co., at the Cleveland City Mills, and sold at Cleveland, Buffalo, or •shipped to Johnson at New York, as the Hutchinsons might think best for their interest.

All the proceeds of sale were to go at once into the hands of Johnson or his agents.

The Hutchinsons agree to bring on their milling assets as fast as possible into the milling business, to be applied to discharge their indebtedness to Johnson.

All flour sold at the mill for carrying it on, or for tho support of Hutchinson’s family or Johnson’s agent, to be accounted for.

Johnson to receive 2J per cent, on all sales except the flour retailed at the mills.

On the expiration of the contract the proceeds arising from the sale of flour, are to be applied : 1. To repay for wheat purchased; '2. To liquidate the balance due Johnson; 3. The balance to be paid to the Hutchinsons.

Now this is not a contract of partnership, but a mere mode by which they may appropriate their labor and the use of their mills to the discharge of their debt to Johnson, with tho advantage of ■the rise of the market. The Hutchinsons agree that they will ■employ their own labor and the use of their mills in converting ithe wheat of Johnson into flour and shipping it, for the sum which can be realized for the flour, after deducting the cost of the wheat and 2J per eent. on sales. Now what more is this than a mere compensation for labor expended and the use of the mills. There is one division of property between the Hutchinsons and Johnson. The Hutchinsons take the whole property after deducting 2| per cent, on the sales, which may be regarded *as compensation, or part compensation, to the agent to be employed by Johnson. The bare fact that the compensation is uncertain, or to be taken out of the profits, or to depend upon the profits, does not constitute a partnership.

This is a usual mode of compensation to stimulate industry, effort, and diligence, familiar to the books.

We can not under the contract regard the money to be paid for the wheat as a loan or advancement to the Hutchinsons, so as to constitute tho wheat purchased their property. Johnson agreed to stock the mills—he did not agree to advanco money to the Hutchinsons. In the purchase of the wheat he employed an agent who was to act in conjunction with the Hutchinsons. His part of the contract was to stock the mills with wheat; the wheat was his property, the Hutchinsons were to convert it into flour; they were simply bailees, and their right of possession was only one of bailment.

In this view, the Hutchinsons had no possessory legal right to the wheat subject to levy. They could not dispose of it to a third person, so as to defeat the right of' the bailor. If a third person should seize upon it, it would not deprive the bailor of his property and right of possession, nor does it alter the bailor’s right that the property was seized upon to satisfy the debt of the bailee. The fact that the bailee could not maintain replevin in his own name against the sheriff, the property having been seized in exe. cution to satisfy a debt against him, does not impair in any degree the right of tho bailor. Judgment for plaintiff.


author: Birchard, O. J.

text:
    *Eleazer Burrage’s Lessee v. Elliott Beardsley.
    Where a deed purports to be executed for a valuable consideration, and is-impeached hy proving that no such consideration passed, it can not he sustained hy proving that it was executed in consideration of natural love and affection.
    This is a motion for a new trial, reserved in Lake county.
    The action was ejectment, and verdict was rendered for the defendant. The facts in the case are disclosed in the following statement, signed by the counsel:
    “On the trial of this cause in the Supreme Court on the circuit, it was admitted by the parties that the plaintiff and defendant claimed title under Samuel Burrage, Sen., who was the common source of title, and thereupon the plaintiff offered in evidence, the certified copy of a deed from Samuel Burrage, Sen., to himself and to Hannah Burrage, Nancy Burrage, Polly Burrage, Betsy Burrage, Samuel Burrage, Jr., Eleazer Burrage, and Sally Burrage.
    Also, the plaintiff offered in evidence the deed from Samuel Burrage, Jr., to himself.
    Also, the deed from Sally Burrage to himself, and rested, claiming three-sixths of the land set out in the consent rule. The defendant then introduced proof to show that the grantees in the deed first above mentioned, were the wife and minor children of said Samuel Burrage, Sen.; also to prove that said wife and children had no property or means to purchase the said land, and that no money or other valuable consideration was paid by said grantees, or either of them for said land.
    The defendant also offered in evidence the deed of the said land from Samuel Burrage, Sen., to William Fulton. Also, a mortgage deed of the said land of the same date with deed No. 4, from said Fulton to said Burrage, Sen., which said last-mentioned mortgage was assigned for a valuable ^consideration by said Burrage, Sen., to the defendant, which said assignment is hereto attached, and marked No. 6.
    Also, the record of proceedings in the Supreme Court, had August term, 1841, by the defendant, and against Burrage, Sen., and Wm. Fulton, for the sale of said mortgaged premises, and the sheriff’s deed, dated June 29, 1842, conveying the land in controversy to the defendant on his bid therefor of $2,684, which proceedings in chancery, and the deed from the sheriff, wore admitted by the plaintiff to be regular ; also proved, that on December 2, 1826, said Samuel Burrage, Sen., left home, leaving his family with a man hired by him, in possession of said land ; returned again in February, a. d. 1827; left again about the 1st of April, and returned in August following, and from that date until after the sale to said Fulton, lived with his said family on said land, and other land owned by him, and that during all the time aforesaid, he was in possession and control of said land, using and occupying the same as his own until the sale to said Fulton, and the plaintiff admitting that no pecuniary consideration passed for said deed from said Samuel Burrage, Sen., to his said wife and children, the defendant rested.
    The plaintiff then offered to prove that the deed was executed by the said Burrage, Sen., to his said wife and children for the consideration of love and affection, and for the purpose of making for them a suitable provision, considering his property and circumstances, and that said Burrage, Sen., at the date of said deed, was a man of property, free from debt, and that the said land would be no more than a suitable provision for the said grantees, considering said Burrage’s proporty at that time, and that the land in controversy constituted but a small part of said Burrage, Sen.’s, property at the date of said deed in proportion to the whole, and that the .said deed was not made in contemplation of insolvency, but in good faith for the purpose aforesaid, and that said Samuel Burrage’s children were all minors at the time of *the sale to Fulton, and that Burrage lor many years after this assignment to his wifo and children continued a man of property, and that the debt on which the land was sold on execution, was not contracted until many years after the date of said deed.
    To the introduction of this evidence the defendant objected, and the objection was sustained by the court, and the jury returned a verdict for the defendant.
    Thereupon the plaintiff submitted a motion for a new trial, assigning several causes, but all substantially the same, to wit, that the court erred in rejecting the testimony offered by the plaintiff, for the purpose of sustaining the deed, and the questions thus presented were reserved for decision here.
    E. Wade and R. Wood, for plaintiff, in support of the motion, submitted the following authorities:

      Saxton v. Wheaton, 8 Wheat. 229; Hinde’s Lessee v. Longworth, 11 Wheat. 199; Brice v. Myers et al., 5 Ohio,. 121; Seward v. Jackson, 8 Cow. 496; Yan Wick v. Seward, 6 Paige, 526; Bank of United States v. Housman, 6 Paige, 535 ; 1 Conn. 525; Lush v. Wilkinson, 5 Ves. Jr. 384; Gale v. Williamson, 8 Mees. & Wels. 404; 12 Ves. 236 ; Russell v. Hammond, 1 Atk. 15; Walker v. Barrows, Ib. 93; Townshend v. Windham, 2 Ves, Sen. 1; Henderson v. Dodd, 1 Bailey, 138 ; Jackson v. Town, 4 Cow. 603; Wilkes v. Clark, 8 Paige, 161; 5 Pot. 264; 18 Pick. 131; 14 Mass. 139; 12 Johns. 526 ; 1 Story’s Eq. Jur. 426-430.
    Hitchcock & Wilder, for defendant, cited the following authorities :
    Steele et al. v. Worthington, 2 Ohio, 182 ; Clarkson v. Hanney, 2 P. Wins. 103; Watts v. Grove, 2 Sch. & Lef. 500; 1 Phil. Ev. by Cow. & Hill, 549, 552 ; Roberts v. Roberts, 2 Barn. & Ald. 368 ; 3 Phil. Ev. 1451, n.; Betts v. *Union Bank of Maryland, 1 Har. & Gill, 175; Bullard v, Briggs, 7 Pick. 537; Harvey v. Alexander, 1 Rand. 219; Wilt v. Franklin, 1 Binn. 518.
   Birchard, O. J.

One question only was determined on the trial upon the circuit, to wit, that the plaintiff could not offer evidence to prove a consideration contradictory to, and different from that expressed in the deed from Samuel Burrage to his wife and children. If the court erred upon this point, a new trial should be granted, otherwise judgment should bo entered upon the verdict.

Both parties claimed title under Samuel Burrage, who was the common source. The consideration expressed in the deed under which the lessor of plaintiff hold, was as follows : “ for the consideration of $3,000 received to my full satisfaction of" said grantees, naming them.

The defendant held under a sheriff’s deed, the title being under Burrage, but junior to the plaintiff’s deed, which they impeached by proving that no consideration had ever passed as expressed in the deed from Burrage’s wife and children to him. That he had always used and occupied the premises as his own, until he sold and couveyed to Fulton in 1837, under whoso mortgage the defendant had acquired by sheriff’s sale a valid title. It is said by counsel, that the ruling of the court upon the circuit is not founded in reason or authority, because the proof did not impeach the deed; it did not show that it was fraudulent. We can not subscribe tc this assumption. It is not true in fact, but if it were true, the evidence offered in support of the deed was properly rejected ; for if the deed was unimpeached, it needed no extrinsic evidence for its support. Upon that hypothesis the evidence offered and rejected was merely irrelevant, and should have been ruled out for that reason.

But proof that the consideration had not ever been paid, that it was still due, would have shown at least that the grantor had a vendor’s lien upon the land for the purchase money and interest. His continual use of the promises for *many years, and till their deed was forgotten; his absolute control over the land, and his subsequent sale and conveyance of it for full value, tended to show pretty conclusively, that the original conveyance was made subject to a secret trust to his own use, to be enforced by the voluntary consent of his wife and children, or as vendor by establishing his lien for the purchase money against their consent, through the intervention of the legal tribunals. The case made then by the proof, was prima facie a case of a deed impeached for fraud—• of a deed successfully assailed and rendered null and void on account of fraud ; and the question is, can such a deed be restored by proof which directly contradicts it, and shows that it held forth upon its face, and from the beginning, a false statement.

Love and affection is a good consideration for a deed. The grantor, however, did not profess to have conveyed upon any consideration of that kind. The grantees did not receive the deed upon those terms, but in consideration of $3,000 paid, or to be paid. And as between the grantor and the grantees, what the deed expressed, was the evidence of their contract. Neither sound principles, nor the statute of frauds and perjuries, would permit them to alter or vary it by parol. It would introduce a rule productive of great mischief, to permit a written instrument of so solemn a nature as a deed of bargain and sale, to depend upon the inventive recollection of any witness, and to allow titles to be set up by oral testimony in opposition to the written and recorded evidence required by statute. So far from being unfounded in reason, it would be difficult to imagine anything more directly in conflict with reason and principle, than to permit a deed thus assailed to be set up, by proving it false upon its face. How stand the authorities? The first case cited by plaintiff is Hinde’s Lessee v. Longworth, 11 Wheat. 213. In that case the deed was from a father to a son, for the consideration expressed in the deed of natural love and affection. There was no proof that the expressed consideration did not exist. No attempt was made *to show that the son and father had not mutual love for each other. The deed was assailed for fraud in fact, and to rebut the evidence of the fraudulent interest in making the deed proof of indebtedness of the father to the son was offered, and by the Supreme Court held admissible, for the purpose of repelling the presumption of fraud; but the court sayón the point now before us: “Had the evidence been offered for the purpose of showing that the deed was given for a valuable consideration, and in satisfaction for the debt due from the father to the son, and not for the consideration of love and affection, as expressed in the deed, it might well bo considered as contradicting the deed. It would then be substituting a valuable for a good consideration, and a violation of a well-settled rule of law, that parol evidence is inadmissible to substantially varya written agreement.” If this authority means anything, it is pointedly against the doctrine contended for, and fully sustains the circuit decision in this case.

The next case quoted is Brice v. Myers, 5 Ohio, 121. The deeds in that case expressed a consideration of $1,000. The consideration in fact was natural love and affection, and an annuity of twenty dollars. They were held fraudulent as to creditors. But the question made in this case was not hinted at in that, and could not have arisen, for there was a valuable consideration to sustain those deeds, to wit, the annuity. And, although different in amount, it was the same in kind as that expressed in the deeds. Sundry other authorities which have been cited, and they are numerous, seem to be to this effect: That a voluntary conveyance-to a child is not fraudulent- under certain circumstances, etc. As the cases can have no very distinct bearing upon the point before us, it is not necessary to notice them particularly. The case referred to in Bailey, we are not able to find, not having the book before us, and can not say but it fully sustains the position of plaintiff. If it does, however, sustain him, we think we hazard very little in asserting that it stands alone, and is unsupported by the general course of decisions in any oourt of last resort, either in ^-England or any of the states of this Union, and is also unsustainable upon any safe or sound principle. In the Bank of the United States v. Housman, 6 Paige, 535, the vice-chancellor held as to three deeds given for an expressed money considera^ tion, when in fact there was no consideration but that of blood or natural affection, that the deeds must fail, and were effectual for no purpose whatsoever. On appeal, the chancellor reversed the decree as to two of the deeds, and held them effectual as covenants to stand seized of the premises to the use of the grantees. As to the third deed, he held that it was a case in which the grantee was not permitted to rebut the prima facie evidence of fraud arising from the apparent nature of the transaction, by covenants or evidence contradicting the deed under which he claimed, because the father had remained in possession notwithstanding the deed, leaving those with whom he was doing business and contracting debts, to suppose ho was the real owner. Whether we are to consider the decision of the chancellor, or of the vice-chancellor, as the better law, it matters not as it may affect this case ; for if the opinion of either be taken as giving the correct rule, it will not help the plaintiff. Burrago not only remained in possession, notwithstanding the deed, and contracting debts on the credit of the estate, but he actually sold and conveyed it as owner. Applying the rule of the chancellor, and the case was one in which evidence to contradict the deed could not be given. This is a much stronger case than the deed to which the chancellor applied the rule. In Clarkson v. Hannoy, 2 P. Wms. 103, the consideration expressed in the deed was a twenty pounds annuity. There was evidence that the grantor was a weak man, and had been imposed upon, to rebut which it was offered to prove an additional consideration of blood and affection; but the master of the rolls said “ it would be of mischievous consequence, and liable to the danger of perjury, which the statute of frauds intended to prevent, to suffer parol evidence, to prove blood and kindred to have been the consideration.” The above was affirmed by Lord Macclesfield on Appeal.

* Chancellor Kent, in Hildreth v. Sands, 2 Johns. Ch. 43, says “ a deed brought forward as founded on a valuable consideration, can not be set up as a gift or voluntary conveyance. The party is bound by the consideration alleged. There is no doubt of the rule,” and he cites Lord Hardwicke and Lord Redesdale to sustain him. 2 Ves. 628; 2 Sch. & Lef. 501.

Phillips, in his treatise on Evidence, vol. 1, p. 549, says: “It is an established rule that a party may aver another consideration, which is consistent with the consideration expressed, but no covenant can be made contrary to, or inconsistent with, that expressed in the deed and in the notes by Cowen & Hill, numerous authorities are referred to in support of this text, and to show what are the exceptions to tho rule. They all sustain tho dictum of the Supreme Court of the United States, in Hinde’s Lessee v. Longworth, and seem to settle the doctrine upon the only point in this case, and consequently the motion for new-trial. For if the consideration could not be proved, any other testimony offered on the trial could Dot have aided the plaintiff, and the jury should not have been required to waste their time and patience in listening to it.

New trial refused ; judgment for defendant.


text:
    Conrad Reid and Caleb Ormsby v. Joseph Quigley.
    An appeal from the common pleas to the Supreme Court must be taken by the party to the suit; and an appeal bond reciting that one not a party to the suit has taken an appeal, is upon its face void, as against public policy, and can not he enforced.
    This is a writ of error to the court of common pleas of Lorain county.
    The original action was brought upon an appeal bond. Tho declaration sets forth the bond, and recites its condition *thus: Whereas, the said Conrad Reid had taken an appeal from a certain judgment rendered against one Joseph Cummins, in favor of the said Joseph Quigley, in the court of common pleas within and for said county of Lorain and State of Ohio, at the July term thereof, 1841, for tho sum of $49.50 damages, and $76.65 cost, to the Supreme Court within and for said county.” It was provided in and by said condition, that if the “ said C. Reid should pay the full amount of tho condemnation in the said Supreme Court, and costs, in case a judgment should be entered therein in favor of said Joseph Quigley, then said obligation should be void.”
    The declaration avers a recovery by Quigley, in tho Suprema Court, of $40 and costs, the sending down of a mandate, etc., and tho issuing of an execution against Cummins, upon which was a return of no goods, etc., and that neither of the defendants have paid the said damages, costs, and increased costs, whereby, etc.
    The defendants below craved oyer of the bond, set it forth, and demurred. There was a joinder in demurrer, and judgment overruling the same, and for the penalty of the bond, to reverse which this writ is prosecuted. i
    H. D. Clark, for plaintiff in error.
    Hitchcock, Willson & Wade, for defendant in error.
   Birchard, C. J.

The question first presented is, can a stranger or third person interfere to remove a case by appeal from the common pleas to the Supreme Court? This declaration and the bond set forth on oyer shows that Reid, one of tho defendants below, volunteered, of his own motion, to appeal the cause of Quigley v. Cummins. There is nothing in the record to show that this was not the sheer intermeddling of a stranger. Section 109 of practice act (Swan, 682) provides that, in order to remove a cause by appeal, tho party desirous of appealing shall enter notice on *the record of such intention, and within thirty days from the rising of tho court shall enter into bonds to the adverse party, with one or more good and sufficient sureties, etc.

This is the only law which gives an appeal in any case, and this only enables the party to appeal from a judgment of an inferior court to<the Supremo Court. This authority is given to the party to the judgment, and to no one else. Third persons are not authorized to act by tho law nor would good policy allow them to interfere and remove causes, by appeal. It is manifest that such a practice could not be tolerated, as it would produce many evils, and be subversive of private rights. But it is urged that if Reid took the appeal, the defendant Cummins had given the notice, and subsequently prosecuted the appeal, and thereby adopted Reid’s act and made it his own, so that in fket “the party to the suit took the appeal, gave the bond (by adopting the one given' for his benefit), and prosecuted it to final judgment.”

This argument travels somewhat out of the case made in the declaration, and is objectionable for that reason. It is equally bad for another. Cummins had no right to treat his case as appealed, unless by his own act he caused a bond to be filed within thirty days. If he had made no election before that time, he could not thereafter elect to take advantage of the officious act of another.

It is farther urged that if this bond was void, it did not remove the cause, and if not, the judgment rendered therein in this court is a nullity. We are not of the opinion that this result necessarily follows. If both parties appeared in the Supreme Court and litigated the case, as the argument assumes, the judgment will be good enough, because neither could go behind the judgment to take exception to the mode in which this court obtained jurisdiction.

Again, section 4 of the amendatory act (Swan, 680) provides that no exception to an appeal bond in any case removed from the court of common pleas to”the Supreme Court shall be taken, unless the same be done at *tho term of the court in which the appeal is entered, and failure to take such excoption at that time, shall be considered as a waiver of -all exceptions. And if upon exception the bond shall be found defective, either in form or in any other respect, the appellate court may order a new bond to be given, etc., and. if given, said appeal shall not be dismissed, unless the bond were filed after the expiration of the thirty days. Under this statute we think the appeal bond, if actually filed at the instance of Cummins, was the subject of amendment, and "might have been amended under the order of court, upon showing that Reid’s name was inserted as appellant by mistako. But the exception was never taken, and the failure to take it was a waiver on the part of Quigley. It estops him from asserting that the cause was not well appealed, and from taking any exception to the appeal bond. Ho can not complain, for it is his own fault that he relied upon a bond that could not be enforced without amendment, and neglected to move for an amendment in time, and has thereby lost tho means of collecting the judgment from securities.

It is further contended as a distinct ground for recovery, that this bond was founded on a good consideration, and may be sustained as valid at common law. As the pleadings stand, the question concerning the sufficiency of the consideration is not ojien to inquiry. The seal imports a consideration, and there is no plea or defense set ujd under the statute, which permits the consideration of instruments under seal to be inquired into. Still the bond can not be valid as a common-law bond, admitting the consideration which the seal imports. It carries on its face evidence that it is against public policy, and nothing in the record relieves it from this apparent difficulty. We can not sustain it, without sanctioning the doctrine that one man may officiously interfere with another man’s business, and appeal his causes from an inferior to a superior tribunal. Judgment reversed.


author: Read, J.

text:
    *Myers, Fall & Collins, and others v. Joseph Hewitt and Others.
    The lien of a senior judgment which has not been levied, within the year will not be defeated by a decree of foreclosure of a junior mortgage, ordering a sale, and a sale and confirmation, within the year from the rendition of the decree.
    A judgment creditor may file a bill aftor levy, to clear away the cloud cast upon the title by such sale, and subject the land again to sale; or he may charge the fund arising from such sale in satisfaction of his judgment.
    Although a decree upon foreclosure of a mortgage may be so framed as to permit execution to issue, as upon judgment at law, to collect any balanco which may remain after exhausting the mortgaged premises, yet such decree creates no lien upon other land.
    The only decree which gives liens under the statute, are decrees for the payment of money generally
    This is a bill in chancery, reserved in the county of Athens.
    The facts are in substance these: The complainants, at the July term, 1842, of the court of common pleas of Athens county, recovered judgments against Joseph and Benjamin P. Hewitt, amounting in the aggregate to $669.59, but neglected to make a levy upon lands of defendant, within the year subsequent to the rendition of the judgment. On February 4,1843, Joseph Hewitt mortgaged a tract of land in Athens county, to Henry Hay and others, to secure the payment of $485.42. On March 3,1845, the mortgagees filed their bill in chancery against Hewitt and others, praying a sale of the mortgaged premises, and such proceedings were had that the premises were sold, and the sale was confirmed at the June term, 1846, of said court, and the money arising from the sale, which had been brought into court, was ordered to be distributed among various persons named in the bill, and having liens upon the land. The complainants were not made parties to this suit. Subsequent to the sale and order of distribution, but before ^the money had been paid out, the complainants levied upon the same land, and then filed this bill, making parties all the parties to the previous bill, and the purchasers of the land, claiming that the land was liable for the payment of their judgments, and praying that it might be sold for that purpose, or that the proceeds of the sale already had, might be thus appropriated.
    There were various judgment and mortgage liens, some prior and some subsequent in point of time to the judgments of the complainants, but the preceding statement presents the only litigated questions, and for the decision of which the case was reserved.
    John T. Brazee, for complainants, cited the following cases:
    Norton v. Beaver, 5 Ohio, 178; Jackson v. Mill, 13 Johns. 463; Minor v. Wallace, 10 Ohio, 403; Walpole v. Inks, 9 Ohio, 142; Rankin et al. v. Scott, 6 U. S. Cond. 504.
    John Welch, for respondent, cited the following cases:
    2 Ohio, 395; 2 Ohio, 366; 9 Ohio, 142; 10 Ohio, 208; 8 Ohio, 120, 377 ; 3 Ohio, 337, 541; 8 Ohio, 52.
   Read, J.

Persons having liens upon land, not being made parties to the proceeding, will not be affected by a decree subjecting such land to salo. The lien of a judgment under the statute subsists and continues for the period of five years. The sale taking place under a decree junior to the judgment, and the judgment creditors not having been made parties to the proceedings under which the decree was rendered, and the judgment liens being still in life, the purchaser would take subject to such judgment liens, unless the decree would protect him, either from having acquired superiority to the judgment by having been rendered a year after the judgment without levy, and a levy within the year or a prior levy to the ^judgment alter the year, or because the decree was subjecting the land to the satisfaction of a lien older and superior to that of the judgment. In this case the levy under the judgment was not had until after the sale under the decree. It might bo contended that the complainants had a complete remedy at law, and that a bill in chancery could not be sustained. A judgment lien is a statutory provision, and holds all the lands of the judgment debtor subject to execution, for the satisfaction of tbo debt during its subsistence. An execution at law will not reach an equity. The effect of a judgment lien is to prevent a judgment debtor from divesting himself of the legal estate during the subsistence of the judgment, and thereby placing it beyond tho reach of execution at law. But although a judgment lien is a statutory and legal right designed to aid and secure the execution of a judgment at law, and has no independent existence apart from the process of execution, and in and of itself is unknown to equity, yet if other parties should attempt to impede its operation, equity would lend its aid to remove such impediment, and might exert its power to secure its satisfaction in some other mode than subjecting the'specific land, if that end could be accomplished, and it was necessary to protect the rights of others. Thus it is a familiar instance to levy upon lands which have been conveyed to hinder and defraud creditors, and then to file a bill to remove the cloud which tho fraudulent conveyance has cast upon the title, and which might prevent a sale, or the party may proceed and sell and litigate tho validity of the fraudulent conveyance upon a question of title in an action at law. In the present case the purchaser holds under a judicial sale, and has paid his money which has boon brought into court, but the judgment creditors not having been made parties to the proceeding in chancery, and having a subsisting judgment lien, the land is still liable to execution and sale at law to satisfy the judgment, but the judicial salo has cast a cloud upon the title which equity may remove. But all the parties being before the court, and the funds arising from the *sale of the lands being still under tho control of the court, to satisfy a mortgage lion which is inferior to the judgment lien, as is claimed by the bill, the appropriate remedy is to direct that the money shall bo appropriated to discharge the elder lion, and in this manner protect the purchaser. A bill filed on the part of a purchaser of land to direct that the fund thus paid into court should be applied to the discharge of elder liens entitled-to satisfaction out of the land, would be entertained upon ordinary and familiar principles of equity.

But the principal question in this case grows ont of the liens which are given to judgments and decrees under the statute.

It is admitted that the judgment lien is elder and superior to that of the mortgage, and must prevail, unless the iaet that there was no levy under the judgment within the year from the time that it attached, and that a decree was had upon the mortgage after such year, and sale made within the year, gives to the decree a superiority over the judgment.

The statute provides that when there is a senior judgment and no levy within the year, and a junior judgment and levy'within the year, that the junior judgment shall hold against the senior judgment; and further it is provided that a decree in chancery shall have the same force and effect as a judgment at law. It is claimed, therefore, that this lien of the decree is superior to that of the judgment. If such be the case, a junior mortgago, if reduced to decree, might by virtue of the statute, under such circumstances, prevail against a senior judgment. It is claimed that the mortgage is merged in the decree, and that the decree has the force and effect of a judgment at law. If this were so, a judgment junior to a mortgage might oftentimes, by neglect of levy, cut off the mortgage. The object of a foreclosure is to enforce a lion; and the decree will not merge it so as to hazard its existence. This distinction must be observed between liens created by the acts of the parties, the liens of judgments, and decrees under the statute. The statutory liens are nothing but incidents and aids to the execution of judgments and decrees, *theyare designed merely to hold the property of the debtor within the reach of the execution, not to create, destroy, or impair independent rights to property. Strangers to a suit are not affected by their operation. But to hold that decrees to enforce specific liens, or to subject property to which such liens attached for their satisfaction, merged such liens, and that the property was only alter their rendition held by virtue of the liens of the decrees under the statute, would be to expose such liens to the risk of being lost by the very means employed to carry them into specific execution. The liens of judgments and decrees are given by statute, and exist, and are lost according to its provisions. The lion of a mortgago is the result of a contract of the parties, a right secured against all the world, and which can only be discharged by satisfaction or consent of the mortgagee. The general statute lien only attaches to the extent of the rights of the debtor, subject to the same restrictions, limitations, and incumbrances. The general statute lien is thus always subject to the specific lien. Hence the specific lien being superior to the general statute lien, will not be merged in it. A superior right is never merged in an inferior one; the whole doctrine of merger proceeds upon the principle of a superior right covering and swallowing up an inferior right, and that keeping those rights separate when they unite in the same person, to the same thing, would be useless. The doctrine of merger never applies when it would work an injury to the owner, or where his interest requires that these rights should have a separate existence. It is perfectly clear, then, there is no merger.

But it is contended that the decree finding the money due under the mortgage, and a decree that it shall be paid, or the mortgaged property shall be sold to satisfy it, gives a general lien under the statute, which, if carried into levy and execution within the year, will prevail against a senior judgment, when execution had not been levied within the year, so as to give superiority to a mortgage junior to the judgment. The mortgage attached to land which was ^subject to the judgment lien ; if the mortgagee, when he filed his bill, had made the judgment lienholder a party, the decree would have directed the land to be sold and the proceeds to be distributed according to priority of lien, which would have first satisfied the judgment. But to sustain the doctrine contended for, the neglect to make the judgment lienholder a party to the proceedings, a foreclosure would, under such circumstances, enable the mortgagee to wholly defeat the judgment lien. Now, it is a fundamental maxim that persons having rights to land can not be affected by a judgment or decree touching such land, unless they are parties to the proceeding. To hold that the judgment lien subsisting at the time the mortgage lien was acquired, and superior to it, could be defeated by a proceeding to enforce the mortgage without making the judgment lienholder a party, by holding that the decree was a general lien, having the force and effect of a judgment at law, would violate this maxim, and give to tho mortgagee an advantage from his neglect or design to obtain an unfair advantage, which he could not have obtained had he performed his duty in making proper parties; thus, even upon the doctrine that a decree upon foreclosure, finding-the amount duo on the mortgage, gave a general lien under the statute, we should be compelled to limit it in such way as not to destroy older judgment liens. But the truth is, a decree of foreclosure is not such a deeVee as will confer a general lien as a judgment at law. True, the statute provides that the decrees of courts of chancery “ shall, from the time of their being pro* nounced, have the force and effect of a judgment at law.” Swan’s Stat. 708. A judgment at law gives a general lion, but it is not every decree in chancery that can give a lien similar to a judgment. There are a great variety of decrees in chancery which give no lien, such as decrees or injunctions to stay waste, to surrender and cancel securities, to set aside fraudulent conveyances, and various others ; yet the language of the statute covers all decrees. Hence the language of the statute must be *limited, and as a lien is only a security for a money demand, no decree in chancery can confer a lien under the statute except a decree expressly for the payment of money. At law, it is only a judgment against a debtor, or a judgment for the payment of money, that gives a lien; a judgment in ejectment gives no lien. Hence the decrees in chancery that confer liens similar to judgments, are decrees for the payment of money. A decree of foreclosure is not a decree for the payment of money. Originally such decrees only cut off the equity of redemption and gave the land to the mortgagee. The object now is to cut off the equity of redemption, but in the ancient mode, by giving the whole land to the mortgagee, but on sale to the purchaser, in order that on discharge of the debt the surplus money be paid over to the mortgagor. But still all parties having a lien and right to the land, whether by act of the law, descent, purchase, or contract, may redeem, if not made parties to the proceedings of foreclosure. But treating a mortgage as a mere incident to a debt, a security arising out of a specific lien, the procedure of foreclosure is strictly to enforce the lien, to subject the land or thing mortgaged to the payment of the debt. This is not to obtain a decree for the payment of a money demand, but to subject certain land or property to the payment of a money demand secured upon such land or property. But in order to determine the extent of the lien, it is necessary to determine, as a preliminary matter to the seizure and appropriation of the land as other property, the amount due between the mortgagor and mortgagee.

The amount so found becomes a debt of record, not a decree for the payment of money, but is only a predicate authorizing a sale of the mortgaged property to satisfy such debt. No one pretends that such finding is a decree for the payment of money. If there is not a decree for the payment of money, it gives no lien ; and hence, a decree of foreclosure gives no lien as a judgment at law. It is only within a short time, that it has been supposed that a decree of foreclosure finding the amount due, could give further relief than ^subjecting the mortgaged property to sale, and applying the proceeds to the payment of the mortgage debt. If any balance remained, it was regarded as a debt of record, to be collected as such, but not as a decree for the payment of money upon which execution could be awarded. This is undoubtedly tho strict and true doctrine. But to prevent multiplicity of suits, within a few years it has been the practico of some of the courts of common pleas, to order that if any balance shall remain, after subjecting the mortgaged property, and applying the proceeds, that execution shall be awarded for its collection as upon judgments at law. I see no difficulty in this view, except that it mars the symmetry of’the system, and by the introduction of a new principle confuses and renders doubtful many other well-established rules. This doctrine has never been reoognizod by the court in bank, until so late as the case of Hamilton v. Jefferson et al., 13 Ohio, 427. The court, after recognizing all the principles I have heretofore stated respecting the nature of a mortgage proceeding, and determining, in that ease, that no execution could issue for the balance of the amount found due after exhausting the mortgaged property, state that a decree might have been so framed, that after the mortgaged premises had boen exhausted, and the proceeds applied, that the remainder would have been a debt of record, having tho force and effect of a judgment at law, upon which an execution might have issued. But the court there do not intimate that it has the force and effect of a judgment at law, to confer a lien; or that it has the force and effect of a judgment at law, except as to the balance remaining duo, after subjecting the mortgaged property. But if the lien attaches under such a decree, when does it attach ? It must attach, if at alb from tho first day of the term at which the decree was rendered, and to the amount of the whole debt found due under the mortgage, and upon all the lands of the mortgagee, as well those covered by the mortgage as those not. But I have already shown that the statutory lion is merely in aid of the execution. Hence, if a general execution could not issue, a ^general lien could not attach. But it will not be pretended that a general execution could issue against the lands and tenements of the debtor in the first instance, but that the lands mortgaged must be first subjected, and no one has ever claimed that, an execution could go against the lands generally, except for the unpaid balance.

The statutory lien, then, does not attach to the whole debt, but only to the balance. It can not, therefore, attach to this balance until it be ascertained, and this can not be done until after the term at which the decree was rendered, and hence no lien, under the statute, can attach to it at all. It is, therefore, demonstrated that a decree finding the amount due on a foreclosure is not such a decree for the payment of money as confers upon it the statutory lien. And if the court will permit at all an execution to issue as at law, under any shaping of the decree for the collection of the amount remaining, after subjecting the mortgaged premises, the utmost caution will be observed not to to permit a matter of mere favor to the mortgagee to confer upon him rights and advantages, to the detriment of others, in violation of long-established and well-settled principles.

Hence, in this case the judgment lien being older than that of the mortgage, must prevail against it; but as a purchase has intervened under the sale of foreclosure, and the money is in the hands of the court, and no detriment can come to the judgment creditor by any such order, we direct that the proceeds be first applied to the satisfaction of the judgment.

Decree for complainant.


author: Hitchcock, J.

text:
    Abner M. Fuller v. Edward Pelton.
    Under the statute of this state, when a plea is interposed of a tender of the amount due the plaintiff, made before the commencement of the suit, and issue found for defendant, the proper judgment to be-rendered is a judgment in favor of the plaintiff for the amount due, and in favor of defendant for costs.
    *This is a writ of error directed to the court of common pleas of Delaware county.
    The original action was commenced before a justice of the peace, and an appeal taken from his judgment to the court of common pleas, and in that, court the following proceedings were-had:
    The plaintiff declared on a note for the payment of twenty-five’ dollars, and added the common counts.
    The defendant pleaded: 1. The general issue to the whole;. 2.’ General issue as to all but five dollars, and tender as to the five dollars; 3. A submission and award as to second count; 4. Notice of set-off, and among the claims noticed as a set-off was an award between the parties and in favor of defendant for $21.25. Eeplication puts the whole in issue.
    On the trial the plaintiff proved his claim*of twenty-five dollars-on the note, and no more.
    The defendant proved the submission and award in his favor-for $21.25, and after that a tender of five dollars, which money was in court.
    The plaintiff then asked the court to charge the jury that if they should find for the plaintiff on the note, and for the defendant on the submission and award, and also the tender, still, as the pleadings were in this case, the jury must return a verdict for the plaintiff for the balance of the amount of said note over and above the amount of said award; which instruction the court refused to give, but did charge the jury that if they found for the plaintiff on the note, and for the defendant on the tender and award, and that the amount of the tender and the amount of the award equaled the amount of the note, then they must find a verdict for the defendant. To which opinion of the court the plaintiff took a bill of exceptions.
    The jury returned a verdict that on the plea of the general issue they found for the plaintiff for the sum of $25.68, the amount of the note and interest; and the jury found the submission and award as pleaded by the defendant at $21.25, *which, when deducted from the amount found due plaintiff, leaves a balance of $4.43 due plaintiff; and as to the said $4.43, they find that the defendant, in payment and satisfaction thereof, did tender and offer-to pay the plaintiff the said sum of five dollars, in manner and form, etc., as in the said second plea pleaded. Thereupon the court gave judgment for the defendant.
    The plaintiff then moved the court for a judgment in his favor, for the difference between the amount of the note and award, i. e.. $4.43, notwithstanding the verdict, which the court refused to do-

      The errors relied upon are: 1. The refusal of the court to give the instructions asked for. 2. Refusing to render up judgment in sfavor of plaintiff for the said $4.43.
    Finch & Jones, for plaintiff in error.
    Powell & Buck, for defendant in error
   Hitchcock, J.

This is a case of but little consequence, so far as the amount in controversy is concerned, but it seems to have been severely litigated in the court of common pleas, and the arguments submitted in this court show that the counsel concerned, take great interest in the final result. Every question which the ■record presents has been fully and ably discussed.

Two errors are relied upon by the plaintiff for the reversal of the judgment: 1. That the court refused to instruct the jury as requested. 2. That the court refused to enter up a judgment for 'the plaintiff upon the verdict as returned by the jury. These two errors, however, are in substance the same. The entire question is in fact presented upon the verdict. If the court erred in rendering a judgment upon that verdict for the defendant, it •erred in refusing to instruct as requested. If it did not err in ■the rendition of the judgment, it did not err in refusing to instruct.

It is to be observed that each one of the 'three pleas filed *by the defendant was a full answer to the entire declaration, •or to an entire count of the declaration which it professes to answer. The first is a plea of non assumpsit to the entire declaration ; the second, non assumpsit as to the whole with the exception of five dollars, and tender as to that; third, arbitrament and award as to the second count. All these matters were put in issue by the replication. To this plea, the defendant attached a .general notice of sot-off, and also a special notice of a set-off, 421.25, the amount of an award in his favor against the plaintiff. Had the jury returned a general verdict in favor of the defendant, upon either the first or second pleas, a general judgment must have been entered in his favor, unless there is something in our statute upon the subject of tender to prevent it.

Counsel for defendant say that “the question"presented is in -substance whether the evidence adduced upon the trial was such, that a verdict and judgment should be rendered for the defendant, Mpon this state of .pleading, upon the issues made by the parties upon the recordWe do not so understand it. The evidence is not recited in the bill of exceptions; it is no part of the record. If the evidence was such as to justify the finding of the jury, we may conjecture what it was, but we do not, and can not positively, "know its nature and extent.

It is claimed by the plaintiff that the jury must have found; under the second plea, in order that a judgment could be entered upon such finding for the defendant, that the defendant did not ■undertake and promise as to all except five dollars, and as to that, that a tender was made. Such finding would unquestionably have justified the judgment. The court however was bound to take the whole verdict, and upon that base a judgment, not the •finding upon either one of the issues joined, neglecting the finding upon the other issues.

Now what is the verdict? It purports to be special. But the ■substance of it is that the jury find upon the issues joined *thore was due to the plaintiff $4.43, at the date of the commeneement of the suit, and that beforo that time the defendant, to pay and liquidate this balance had tendered to the plaintiff five ■dollars, which was more than sufficient to satisfy and pay what was due to him. To arrive at this conclusion, it is true the jury find first for the plaintiff the amount due upon the note; they •next reduce this amount by finding the amount of the award in favor of the defendant, leaving a balance of $4.43, for the payment •of which they find a tender was made. The legal effect I apprehend is the same as it would have been, had the jury found generally in favor of defendant upon the second plea.

It seems to be admitted that had the defendant pleaded specially the set-off of $21.25, and the tender of the five dollars in one plea, as an answer to the entire declaration, and had the jury found the facts as now found, such finding might be held to be a bar.

I apprehend such is in fact the state of the pleadings, so far as it can be under our statute. According to the uniform practice of this court a set-off can not be set up by way of special plea-This is a matter entirely regulated by statute, and the statute authorizes a set-off to be taken advantage of, in no other way than by notice. In this case the defendant did give notice of a set-off "to the amount of $21.25, and pleaded specially a tender as to the amount of the plaintiff’s demand. It was at the election of the defendant, had he thought proper, to have given the notice of the tender, as well as notice of the set-off, and if this had been done, it is reasonable to presume that the finding of the jury would have been as it is now.

But it is insisted that the tender found is not sufficient to bar the plaintiff, because the amount is not equal to the sum then due upon the note exclusive, of the set-off. The statute provides, that “ in any action or suit brought on any writing obligatory, promise, or contract for the payment of money, if the defendant, on a plea of tender, shall prove that he did tender ^payment of the money due on such writing obligatory, promise, or contract,” etc., and it is insisted that at the time this tender was made, the whole amount of the promissory note was due. The jury say, however, that but $4.43 was due, and this finding is conclusive upon the court in the present stage of the proceedings. It is said, in this connection ,that at the time the tender was made, it was not certain that the defendant would set off the award. He might have neglected to do it, and then the tender would have been of no avail. It was his duty, however, to do it, and had he failed so to do, although he might in a separate action have recovered the amount awarded, he could not have recovered costs.

It seems to us there can be no doubt but that in the state of pleadings in this case, the jury might with propriety, if warranted by the facts in proof, return precisely such a verdict as was returned, and the question arises, upon such a verdict, what should be the judgment of the court?

The second section of the act “allowing mutual debts to bo set off, and concerning tenders,” provides “that in actions or suits brought on any writing obligatory, promise, or contract for the payment of money, if the defendant, on a plea of tender, shall prove that he did tender payment of the money due on such Writing obligatory, promise, or contract, at the time and place where by such writing obligatory, promise, or contract, he was holden to pay the same, or any time before the commencement of such action or suit thereon, and shall bring into court the money so tendered, the plaintiff shall not have judgment for more than the money so due and tendered, without costs; and shall pay the defendant his costs.”

By this it is apparent that the tender, although the money be brought into court, is not to be held as a satisfaction of the plaintiff’s demand. He is still entitled to a judgment for the amount found due and tendered but without costs, and further, he must pay the defendant his costs, according to the provisions of the statute; then the plaintiff in this *case was entitled to a judgment for the sum found due and tendered, and the court of common pleas erred in not rendering such judgment. So tar as the judgment for costs was concerned, it was properly rendered in favor of the defendant, and so far the judgment is affirmed. The judgment being affirmed in part and reversed in part, the costs of the suit in error will, in pursuance of the statute, be divided between the parties.


text:
    James L. Rowan v. Horace S. Holcomb.
    A plea of certificate of final discharge in bankruptcy, on a voluntary application, is good without setting forth the facts necessary to show the jurisdiction of the court granting the certificate.
    This is a writ of error directed to the court of common pleas of Hamilton county.
    The action below was debt. The defendant below pleaded: 1. The general issue; 2. A special plea, containing these averments: that before the commencement ot the suit, to wit, on February 1, 1843, at the county of Hamilton, in the State of Ohio, on application made in the United States district court for the district of Ohio, praying to be discharged from all his debts, and for a certificate of such discharge, pursuant to the act of Congress entitled “ an act to establish a uniform system of bankruptcy throughout the United States,” approved August 19,1841, the defendant did, on February 27, 1843, receive from the said district court of the United States for the district ol Ohio, under the seal of said court, attested by ffm. Minor, clerk of said court, a certificate of his discharge in full from all his debts, as well the pretended debt of the said plaintiff, for *the recovery of which this suit was brought, as all other debts of the defendant; and concluding with a verification.
    To this plea the plaintiff demurred specially, assigning as cause for demurrer:
    1. That the plea did not allege that Rowan was a resident of the district of Ohio, at the time of the application and discharge.
    2. That the plea contained no averment that the debt, to recoveiwbich the snit was brought, was due or provable at the time of the application or discharge, nor did it confess and avoid the debt with which he was sought to be discharged.
    3. It was not averred that the debt was not contracted in & fiduciary capacity, nor that the plaintiff had notice of the application, nor that in the schedule annexed to the application the debt was admitted to be due to the plaintiff.
    The court sustained the demurrer, and gave judgment for the plaintiff below, to reverse which this writ is prosecuted.
    The errors assigned are : 1. That the declaration is insufficient; 2. That the court erred in sustaining the demurrer to the defendant’s plea.
    Carey & Telford, for plaintiff in error.
    James Riley, for defendant.
   Read, J.

This case, among other reasons, was reserved because it involved the constitutionality of the voluntary part of the bankrupt act.

So far as this court is concerned, we regard this question as settled. The constitutionality of the voluntary portion of the bankrupt act was recognized by this court at its present term, in obedience to the decisions of the United States court. 1 How. U. S. 227; Chapman v. Forsythe, 2 How. 202.

We deem the declaration of sufficient substance to support the judgment.

Fiduciary debts are exceptions to the general operations *of the act. It is not necessary for the bankrupt, in his plea of discharge, to aver that the debts embraced in his certificate were not of a fiduciary character; but the creditor, to withdraw his debt from the general operation of the certificate, should reply, and prove that the debt sought to be recovered, was within the exception. It was so held by Mr. Justice Story, in the United States Circuit Court of Massachusetts, in the matter of Tibbets, 5 Law Reporter, 259. '

The objections to the plea relied upon in argument, are: 1. That it does not aver the facts necessary to confer jurisdiction upon the district court; 2. That it does not confess the debt, and avoid it by the fact of discharge.

Section 4 of the act constitutes the final certificate of discharge1 a complete bar to all suits for debts embraced within it, and makes the certificate conclusive evidence of itself in favor of the bankrupt, unless impeached for fraud, or unless the debt be withdrawn from its operation because of its fiduciary character. Plea of final certificate of discharge is a complete bar of itself.

It is not requisite that the plea should set forth all the facts and proceedings necessary to give the district court jurisdiction. True, it has been held otherwise in 5 Hill. But we do not hold the district court of the United States to be a court of local limited jurisdiction, in such sense, that to give validity to its orders or decrees, as a plea in bar, that it is necessary, in the plea, to allego all the facts and proceedings necessary to confer jurisdiction. The district court is a court of record, created under the powers of the constitution of the United States,.having jurisdiction over matters of bankruptcy, by the act of Congress. • Matters of bankruptcy, by the act, are conferred upon the district court as part of its general jurisdiction; and in principle, its orders of final discharge may be plead precisely as the judgments and decrees of any court of general jurisdiction. Besides, the act itself authorizes the discharge and certificate to be plead in bar to suits upon all debts, contracts, *and other engagements of the bankrupt, and provable under the act.

It is claimed that the plea should confess the debt and avoid it. That this plea merely alludes to the pretended debt of the plaintiff, and does not admit its existence. That every special plea should confess and avoid. The court are of opinion that this plea admits the plaintiff’s cause of action, as alleged in his declaration, and avoids it by his plea of bankruptcy. It is averred that the plaintiff’s debt, as well as others, is included in the certificate of final discharge. We regard the plea, as it stands, a good bar. If any matter exist which would avoid it, it should be set up by replication. Judgment reversed.


text:
    Commissioners of Crawford County v. Commissioners of Marion County.
    When county lines are changed, and territory is detached from one county and is attached to another, the county acquiring the additional territory is not entitled to demand-from the other any portion of the funds in its treasury, under the act of 1820.
    This is a writ of certiorari, brought to reverse the judgment of the court of common pleas of Marion county.
    In 1845, the legislature erected, the county of Wyandot out of territory taken in part from the county of Crawford. The quantity thus taken reduced Crawford county below her constitutional limits ; and, to make up the deficiency, besides a portion of Rich-land county, thirty-two square miles and a fraction from the north side of Marion county were attached to Crawford county. Marion county having funds in her treasury more than sufficient to pay her debts, the commissioners of Crawford county demanded of the ^commissioners of Marion a portion of her public moneys, in proportion to the land and other taxable property in the territory ‘detached from the latter county.
    The commissioners of Marion refused to settle and allow to the ■commissioners of Crawford any part of the money in her treasury, .and thereupon application was made to the court of common pleas in Marion county, under the act of 1820, to compel the commissioners to make such settlement. The court dismissed the application and rendered judgment against the applicants for costs, and to reverse the judgment of that court this writ is prosecuted.
    Franklin Adams, for plaintiff in certiorari.
    J. H. G-odman, contra.
   Read, J.

The whole question in this case depends upon the •fact whether the county of Crawford, by the change of its boundaries, for the erection of the new county of Wyandot, and for the preservation of its constitutional limits, became a new county. The county of Crawford was organized in 1820. The political organization of the county of Crawford was not destroyed by the .act of 1845, creating the new county of Wyandot. The act organizing the county of Crawford has never been repealed. It can not, therefore, be contended that Crawford is a new county. It is either an old county, or else it has no existence, having been destroyed by being reduced below its constitutional limits, and not having been re-established. In either case it would not be entitled to the money claimed from Marion county. It is claimed that it became a new county by the act which, for the construction of Wyandot county, reduced it below its constitutional limits, and added sufficient territory to make up the deficiency. The identity of a county does not depend upon its territorial boundaries, but its political organization, which the constitution prohibits from being established upon *a less territory than 400 square miles. The object of the act of 1845, in the erection of the county of Wyandot, was not the destruction of the county of Crawford, or a violation of the constitution, but was merely for the erection of a new county, and the preservation of the constitutional territory to an old one, by shifting its boundaries. Now whilst the legislature is prohibited from erecting a new county upon less territory than 400 square miles, we know of no constitutional objection to changing the boundary of a county, if the constitutional quantity of territory is preserved.

This was all’ the act of 1845, beyond the erection of the new •county, contemplated or declared. A change of boundary is not the erection of a new county. If its political organization continues, its identity is preserved, its existence dates from the act erecting it, and not the act which may change its boundary. But in the present instance it was not the design of the legislature to destroy Crawford county, or create it into a new county. If it was •destroyed at all, it is by a construction of the act in reference to the constitution, holding that reducing its old limits below the •constitutional quantity, destroyed the county, and that adding thereto new territory, to make up the deficiency, created a new oounty. Such was not the object or intent of the legislature; nor .are we authorized to construe the act to effect that result.

In no sense, then, is Crawford a new county within the meaning of the act under which she seeks to establish a charge upon the treasury of Marion county. Judgment affirmed.