text:
    The Lessee of Henry Boyd v. Nicholas Longworth.
    A sheriff’s deed takes effect from the day of sale, so as to pass whatever interest the judgment debtor had in the lands sold at the time of the levy.
    The covenants in a deed which operate as estoppels, are those running with the land.
    This is an action of ejectment from Hamilton county.
    On the circuit there was a special verdict for the defendant, if on the questions of law made on the trial and reserved, he is, in the opinion of the court, entitled to it; but if not, then verdict to-be entered for plaintiff. On September 10, 1816, an execution-issued from the Hamilton common pleas, on a judgment rendered at the March term thereof, in the same year, in favor of Isaac-Morgan and another, against William R. Goodwin and another, and was levied on the land in question, as the property of the said Goodwin. Under a vendí, issued thereon, the said premises were-sold on *December 31, 1822, to the said Morgan, who immediately entered into the actual possession, and so continued until after the sale of the property, as his, by the sheriff, hereinafter mentioned. -On April 16, 1823, William Butler, the then late coroner, who made the sale, executed and delivered to him a deed, which does not contain the requisite recitals of the judgment and execution, and was made without an order of court confirming said sale, and directing the execution thereof.
    On the said April 16, 1823, an execution issued from the same-court, on a judgment rendered at the December term thereof in-1820, against the said Morgan, and on April 29, 1823, was levied on the said premises as his property. Under a vendí, issued thereon, the same' were sold, on November 19, 1824, to Israel Schooley. This sale was confirmed by the court, and a deed ordered, and afterward duly executed and delivered on March 9, 1825. Schooley, on September 30,
    At the Augusj: term, 1825, the said court, on motion, confirmed said sale of December 31, 1822, and ordered David Jackson, the then coroner (the sale having been made by the late coroner, and although there was then a sheriff in office), to execute and deliver to the purchaser a deed, which was done on October 4,1825,. in due form of law.
    Doubts having arisen as to the validity of this deed, as there-was then a sheriff in office, the said court, at the February term,. 1835, to wit, on the 2d of March, in said term, ordered the then sheriff to execute and deliver to the said purchaser, a deed for-the said premises, which was done on March 3, 1835.
    The lessor of the plaintiff claims title :
    1. Under a deed from the heirs of the said Goodwin (who had departed this life after the first sale aforesaid), dated and acknowl.edged February 7,1835; and,
    2. Under a deed from the said Morgan, in consideration of forty dollars, with a covenant, “that he had not done anything-^whereby the title could be annulled.” This deed bears date on January 20, 1835, was acknowledged on February 2, 1835, and recorded on February 9, 1835, and, of course, was delivered before the last sheriff’s deed of March 3, 1835.
    The reporter was furnished with no argument for the plaintiff,
    Y. Worthington, with Wright & Hodges, for defendant:
    This case presents several important and intricate questions. Several that it is proper to consider, though the case may be settled and leave them untouched. I shall, therefore, endeavor to discuss them apart, successively, and in the order that may give the least labor to the court.
    I. It will be perceived that the plaintiff claims title by the deed from'the heirs of Goodwin. This source of title is overcome by the judicial sale to Morgan, and the subsequent proceedings ratifying and confirming it. True, the coroner’s deed of April 16, 1823, may be considered bad on account of the defective recitals, Chase’s-L. 1237 ; and because there was no order of court confirming the sale and directing its execution, Chase’s L. 1236; 1 Ohio, 278; but these are cured by the subsequent orders and deeds, and this branch of the title, as at present advised, may be considered as disposed of.
    II. It will next be perceived that the plaintiff claims title through the judicial sale to Morgan, under a deed executed and delivered in February, 1835, before the sheriff’s deed of March 3,1835, under the order of March 2, 1835, without covenants of warranty, but with a covenant that nothing had been done to annul the title.
    1. Under this aspect of the case, to sustain the plaintiff’s title, it may be necessary to sustain the coroner’s deed of October 4, 1825, and we ask if that can be done? There was then a sheriff in office. The sale had been made by the *then late coroner, and the order of the court confirming the same, directed the then •coroner to execute a deed to the purchaser. When ■& title is derived from a statute, independent of a judicial order, there is no question that the statute must be strictly pursued, or it does not pass. The power is not executed. 3 Ohio, 233; 4 Craneh, 412.
    But when it has its origin in a judicial order of a competent tribunal, the title will vest, notwithstanding any irregularities that should have forbidden the order in the given case, and can, if at all, be overcome only by overcoming or reversing the order upon which it rests. 3 Ohio, 352; 10 Pet. 245. In such cases the court have the power, but exercise it upon an improper state of case. 3 Ohio, 560, 257, 272, 325; 4 Ohio, 130; 5 Ohio, 450, 500; 6 Ohio, 268; 7 Ohio, 12, 200; 9 Ohio, 19. And even then the title will not be overcome unless the party to the record is the purchaser. 8 Ohio, 127; 2 Chase’s L. 1301; Swan’s Stat. 479; 3 Ohio, 353.
    But in no case can a judicial sale be sustained if the court had uo power to make the order upon which the sale rests, or which is necessary in fact to sustain a deed under such sale. In all such cases the title is not affected, but remains. This was the great question in the Ludlow cases that have occupied no inconsiderable part of the attention of this court; 3 Ohio, 254, 554; 4 Ohio, 5; 5 Ohio, 494; as well as that of the federal courts. 2 Pet. 492.
    In the present case, the power exercised by the court in ordering the coroner to execute the deed of October 4, 1825, must be derived from some statute, if it exist. The only law in force at the time, upon this subject, will be found in Chase’s L. 1301, of the act regulating judgments and executions. It provides, “that if the term of service of the sheriff or other officer who hath made, or shall hereafter make sale of any lands and tenements, by virtue of an execution against the same, shall expire, etc., it shall be lawful for any succeeding sheriff or other officer, on receiving a certificate from the court from which execution issued, for the sale of said lands *and tenements, signed by the clerk by order of said court, setting forth that sufficient proof hath been made to the said court that such sale was fairly and legally made, etc., to sign, seal, and deliver to the said purchaser or purchasers, or his legal representatives, a deed,” etc. Section 20 of the present act, Swan’s Stat. 478, contains precisely the same provisions. This, law, as I understand it, requires the court to issue the order to the officer succeeding the one who had made the sale, and whose term had expired. The officer who had made the sale was the coroner-acting in the place or stead of the sheriff. He was the acting sheriff. His successor in all the offices exercised or to be exercised in this matter was the sheriff, and the order should have goue to him. The law gives no power to the court to direct who shall make the deed, but gives the power to the officer succeeding the one in office who had made the sale as to that subject matter, when he has received the requisite certificate. The court’s power is to grant the-certificate to the succeeding officer, and his power under the law is then to execute the deed, which shall be good and valid in law and have the same effect as if the officer who had made the sale-had executed the same.
    The case of Fowble v. Rayberg and Taylor, 4 Ohio, 62, does not present this precise point, but the court there held that the deed should be executed by the sheriff in office at the. time of the order. That case was on certiorari, and not in a collateral action. I, however, assume this to be a question of power, and claim that the court could only grant the certificate-indicated by the statute, and that, under it, the sheriff in office should execute the deed, and not the coroner; that the sheriff, as-to this matter, was the successor of the officer who made the sale, and to him the law gives the power to execute the deed.
    If this be the correct construction of the statute, the deed of October 4, 1825, is inoperative, and of no avail to the plaintiff in tracing out his title. He is then-forced to rely upon the deed of March 3, 1835, or go out of court.
    *2. We come, then, to consider whether he can rely upon this deed. If he can, it must be upon one of two grounds: either his deed from Morgan, in February, 1835, vests the title by estoppel or rebutter; or the deed of March 3, 1835, relates back to some period anterior to the deed of Morgan, in February, 1835,. so as to vest the legal paper title before the execution of that deed.
    Is the deed from Morgan to the lessor of the plaintiff, in February, 1835, sufficient to pass an after-acquired title by Morgan, if the deed of March ’3, 1835, is to be so considered, by way of estoppel ? I am not aware that any covenant in a deed, except-that of warranty, operates by way of estoppel or rebutter, to •vest the title, nor am I aware that any conveyance, except a feoffment, will pass a future estate, or one acquired after the alienation. Coke says (2 Thomas’ Coke, 353), “ This ancient manner of conveyance by feoffment and delivery of seizin, doth, for many respects, exceed all other conveyances. For, as hath been said, if the feoffor be out of possession, neither fine, recovery, indenture of bargain and sale enrolled, nor other conveyance, doth, .avoid an estate by wrong, and reduce clearly the estate of the feoffor and make a perfect tenant of the freehold, but only livery •of seizin upon the land.” And the annotator says (note B, 1): •“And it not only passes the present estate of the feoffor, but bars him of all present and future right to the estate which is so conveyed.” 2 Thomas’ Coke, 457. Coke also says (2 Thomas’ Coke, 245), “A warranty is a covenant real annexed to lands or tenements, whereby a man and his heirs are bound to warrant the ■same; and, either upon voucher, or by judgment in a writ of warrantia chartce, to yield other lands and tenements (which, in old books, is called in excambio), to the value of those that shall be evicted by a former title, or else may be used by way of rebutter'’ 'The annotator (2 Thomas’ Coke, 245, note a), says: “Express warranties are contracts which have all the import and effect of the feudal contract between the lord and tenant. For, first, they rebut such warrantor and his heir from claiming any right in the land.”
    *And Coke, commenting upon section 446 of Littleton (2 Thomas’ Coke, 457), says: “ For if there be a warranty annexed to the release, then the son shall be bound. For, albeit the release can not bar the right for the cause aforesaid, yet the warranty may rebut, and bar him and his heirs of a future right, which was not in him at the time ; and the reason (which, in all cases, is to be sought out), wherefore a warranty, being a covenant real, should bar a future right, is for avoiding of circuity of action (which is not favored in law) ; as he that made the warranty should recover the land against the tertenant, and he, by force of the warranty, to have as much in value against the same person.”
    So also in 1 Shep. Touch. 182, it is said: “ The fruit and effect of the warranty in a deed is, that it doth always conclude and bar the warrant of himself of the lands so warranted forever; so that all his present and future rights, that he hath or may have therein, '.are hereby extinct.”
    In 14 Johns. 194, the court say: “No title not then in esse would pass, unless there was a warranty in the deed; in which last case, it would operate as an estoppel, for avoiding circuity of, action.”
    In 3 Pick. 60, the court say : “ It has been the common understanding, that when one, supposing he has title, though in fact he has none, for a valuable consideration, conveys land by deed with warranty, and afterward purchases, that his new title shall accrue -to the benefit of his grantee.”
    To the same point see also 9 Cranch, 43; 9 Wheat. 454; 11 Johns. 97; 2 Serg. & Rawle, 515; 3 Ohio, 120.
    In 1 Swift’s Dig. 621, it is said : “ If one gives a deed of land he does not own, with warranty, and afterward purchases the same land, he would be estopped by his warranty, to say he did not own the land at the time of making the deed. A mortgagor is estopped to dispute the title of the mortgagee. A man shall not be permitted to defeat a deed under his hand, covenanting that the defendant shall enjoy the premises, and also for further assurance.”
    *So in 1 Ld. Raym.729, itwas held: “That if A., not having anything in certain land, demises it by indenture to B., and afterward A. purchases the land, this will be a good lease by estoppel.” Every lease contains an implied covenant of warranty.
    The case in 4 Bibb, 436, was under a warranty deed. So is the case in 1 Ohio, 402. In 5 Ohio, 193, the court say: “No man is permitted to deny an admission under his own seal. When this duty can be enforced under the forms of pleading, it is called an estoppel. But the instrument itself has never been held to bar him from setting up his alter-acquired title, unless it contains an effective clause of warranty.”
    The case in 5 Ohio, 194, and that in 7 Ohio, 228, relate more properly to recitals in a deed. They, however, bear upon the same point. The case in 8 Ohio, 223, and that in 6 Ohio, 366, are to the same point. A deed to work an estoppel must be an operative warranty deed. So also is the case in 10 Ohio, 70.
    In 7 Groenl. 96, it is said that a covenant that neither the grantor nor his heirs shall make any claim to the land conveyed, though not technically a warranty, runs with the land, amounts. substantially to that covenant, and estops the grantor and alb claiming under him.
    In the view of these authorities, I do not feel authorized to say that any covenant in a deed, unless it be in substance and in effect a covenant warranting the title or future enjoyment of the property conveyed, can operate as an estoppel. The reason why the covenant of warranty operates as a rebutter, would seem to apply with equal force to the covenant for quiet enjoyment; but I am not advised that the latter covenant can, upon principle, be held to furnish anything but an indemnity, in case of actual disturbance by a paramount title.
    In the present deed, there is none of the ordinary covenants, but simply the covenant that the grantor has done nothing whereby the title can be annulled. It is alone against his personal act, and if it could, under any circumstances, operate as *an estoppel, it must be in a ease within the covenant, where he had done some act to defeat the title, and had asserted title in the face of that act. In no aspect could the covenant work an estoppel, unless the position assumed by the grantor would constitute a breach of the covenant. If the right he asserts will constitute a breach of his covenant, then, if at all, he may be estopped by his covenant to assert such a right. But, -where the right asserted does not conflict with the covenant, it, of course, can not estop him.. If, then, the title vested in Morgan by the deed of March 3, 1835, conduces to establish that he had, prior to the deed of February, to the lessor of the plaintiff, done, or suffered to be done, some act to impair his title, he should be estopped by that covenant to assert title under the deed of March 3, 1835, otherwise not. But such is not the case, and the covenant, of course, no estoppel.
    If the covenant had been, that he had omitted no act necessary to perfect the legal title, and he subsequently should have asserted title, under a deed after acquired to perfect the title, for some omission covenanted against, then in this view, the covenant would have worked by estoppel, and vested the after-acquired title under the deed containing the covenant.
    It seems, then, that the plaintiff can not claim title under the deed in question, by an estoppel, and it remains to inquire whether the deed of March 3, 1835, relates back so as to give him title under his deed in February previous. If this deed relates back so as to pass the title before its delivery, there must be some particular point to which it goes for all purposes. Deeds executed under contracts are said to relate back to the dates of the contracts, so as to render valid intermediate sales by the vendees, and cut off statutory liens by law against the vendors. 3 Cowen, 75; 2 Johns. 510; 1 Johns. Cas. 81, 85; 2 Caine’s Cas. 301; 3 Caine’s Cas. 262; 1 Ohio, 257; 3 Ohio, 527; 7 Ohio, 225; 15 Johns. 309.
    So a deed, by the sheriff, gives the purchaser title, by relation, to the time when the lien attached, so as to cut off all intermediate rights. 10 Ohio, 404; 3 Ohio, 530; 9 Ohio, 185; 15 Johns. 315; 3 Cowen, 75; 12 Johns. 140; 8 Cowen, 538.
    So in 5 Ohio, 55, it is said, in substance, that the sheriff’s deed vests under the statute, in the purchaser, all the title of the defendant, at, or after the time, when said lands became liable to-satisfy said judgment. This is the language of the statute. Swan’s Stat. 476; Chase’s L. 1237, 1300.
    So in 8 Ohio, 107, it was held, that a deed executed by a sheriff in office, and acknowledged by him after his term had expired, was carried back and cured by relation.
    In the case of McGuire v. Ely and others, Wright, 520, the court held, that at a sheriff’s sale, the purchaser’s right vested on the day of sale, and the deed must relate back to give him title of that date. The law is imperative, as to the power of the court in ordering the deed in case the proceeding conform to its provisions or requisitions. They also say, that in the case of a reversal, after sale, under section 22 of the judgment and execution act, Swan’s Stat. 479, the deed, nevertheless, must be made, and restitution will be made of the money for which the land sold, with interest from the day of sale.
    In Scribner’s Lessee v. Lockwood, 9 Ohio, 184, this court held a purchaser, at sheriff’s sale, to be a bona fide purchaser from the time of the sale, and to be protected as such ; and though they do not exactly go the doctrine of relation, yet they countenance it, ' and their decision can not be upheld upon any other principle; because the basis of the decision, that he is in truth an innocent purchaser, can not be upheld without a legal title to rest on, and the deed, when delivered, must, to that end, go back to the day of jsale. 10 Pet. 177; 7 Pet. 252; 7 Johns. Ch. 76; Talmadge v. Talmadge, from Portage, decided in bank, last winter, and not yet reported.

      Without reference further, we suppose the purchaser’s rights to the property commenced with the day of sale, and the deed relates, when executed, back to that period. He is entitled to rents from that period, and bound for all assessments for ^public purposes, accruing thereon after that time ; and from that period the property will be bound for his debts.
    It is manifest there can be but one subsisting legal estate in fee simple, and that there can be but one available legal title thereto. It is also equally manifest that this legal available title must vest in some person, natural or artificial, and can not be in nubibus, nor in abeyance. It must rest somewhere. If we find it in one, and then in another, there must be some precise time of its transition. Some period when the property ceases to be legal estate of the one, and becomes that of the other. Some period when the legal title is in the one, and then in the other. In this instance there is a precise point at which the legal title passed from the judgment debtor to the purchaser on the execution. That point is at the delivery of the deed by the sheriff, or at the day of sale. If at the delivery of the deed, then the lands, after sale, and before the delivery of the deed, would be subject to levy, as the property of the judgment debtor, and the surplus of the sale would, if any, be applicable thereto; whereas, the money in the hands of the sheriff would not be, if the title passed, at this point in the judicial proceedings, by relation. 1 Ohio, 275. In case of reversal, the law, as we have seen, restores the purchase money with interest from the day of sale. If that be so, the emblements from that time belong to the purchaser. The pernancy of the rents must be his, because it would bo against reason and justice to permit the judgment debtor to enjoy the estate lawfully up to the delivery of the deed by the sheriff, and, upon reversal, to recover interest on the sale while he is in the enjoyment of the thing sold. If, in such a case, the interest on the sale money would be his from the day of sale, the rents or profits of the estate sold should not be, and must pass to the purchaser.
    In this view of the ease the deed to Morgan, of March 3, 1835, operated back, so as to vest him with the title at the time of the sale; if not, it did not' vest till the day of the delivery. If it operated .back to the day of sale, then it inures to give title to the plaintiff, and we are thrown upon the ^defensive. If it did not, then the plaintiff makes no title under it, and has ■established no claim to the judgment of the court.
    3. We have said that if the deed of March 3, 1835, relates back .so as to pass the title on the day of sale, the plaintiff makes a ease for relief unless we can show a better title; and this brings us to our third position, which is, that if the deed of March 3, 1835, or that of October 4, 1825, immaterial which, relate back to the day of sale, then the deed of March 9, 1825, under which we claim, divested Morgan of all title, and he had no estate to convey, by the deed, to the lessor of the plaintiff, in February, 1835. The deed executed by the sheriff, or by the party through the sheriff, has the same force as if executed by himself. 9 Ohio, 186; 15 Wend. 596. Morgan is the common source of title to both parties, and it is not competent'for either party to deny his right. 5 Ohio, 107. Indeed they can not, because their right depend upon it. If, then, both parties are precluded from denying Morgan’s title, and the sheriff’s deed, under which we claim, has the same operation it would have if executed by Morgan himself, the whole matter is settled by the priority of our deed over that of the lessor of the plaintiff. If, then, the deed of March 3, 1835, ■operates to pass the title as of the day of sale, it inures to confirm our title, and we are entitled to judgment, because we have the senior, and therefore better title.
    4. Here, probably, it might be sufficient for us to rest. But there is another view of this case, to which we will now direct the attention of the court. It will be perceived that when the levy was made, under which we claim title, Morgan was in possession under his purchase at. sheriff’s sale, with a deed in confirmation thereof, though defective, for the reasons above assigned, and that ho so continued in possession until after che sale to Schooley, on November 19, 1824. We claim that this possession alone constituted an interest in Morgan, which was subject to levy and sale ; .and when the sheriff’s deed emanated, in 1835, or the coroner’s, in 1825, it inured, also, to the purchaser at sheriff’s sale. Morgan, against *the purchaser, could not assert title; he could not set up title in. another, nor could any one, claiming title under him. 10 Ohio, 70, 403; 2 Ib. 224; 5 Ib. 55; 7 Ib. 228; 8 Ib. 23; 4 Cow. 601; 18 Johns. 94; 15 Wend. 593; Wright, 117.
    We grant that a mere equity in lands can not be sold on an execution at law; but if it be connected with the possession, as to all the world, except the holder of the paper legal title, the equity is merged or drowned by the legal title growing out of the possession, and, in legal contemplation, has no existence, Courts of law look alone to the legal right. Possession is evidence of legal title. It is, in fact, a legal title. 7 Johns. 206; 18 Johns. 94; 1 Ohio, 314, 257, 281; 2 Ohio, 244; 10 Ohio, 70, 403. It is transmitted by descent. 1 Marsh. 4, 62; 2 Marsh. 620; Wright, 216; 5 Ohio, 198; 3 Cond. Pet. 216, 570; 3 Wash. C. C. 475; 4 Des. 562; and may pass by grant or will. It is true that it is the lowest grade of legal title, but it is impregnable to the holder, except against the paper title, and in the run of time will drown it. Possession, under a contract executed, is a defense against the vendor in ejectment. 14 Wend. 227; 9 Ohio, 249. Why? Because the possessor has the better legal title. He is no trespasser. He is in lawfully, and must be in default before he can be dispossessed. He never can be evicted, unless he is a wrong-doer in legal contemplation. So, a decree against the holder of the legal paper title, barred by possession, is inoperative for the same reason. 10 Ohio, 69; 5 Ohio, 194. Possession gives title, and it becomes so strong by time and age, that nothing can overcome it. So, also, an adversary possessory title that bars a legal paper title,, bars all equities connected with, and springing out of, the legal paper title that is overcome by it. 10 Ohio, 104, 26; 9 Pet. 413; 2 Merv. 356; 2 Sch. & Lef. 628, 630, 636; 3 Serg. & Rawle, 310; 3 Johns. Ch. 216, 217; 2 Cond. Eng. Ch. 188; 7 Johns. Ch. 126. This shows the power and strength of a mere possessory right from its very inception. *It is strong in fact and in law. But one right can overcome it. All others fall before it.
    I have said that a court of law looks alone to the legal lights of the parties, and can take no notice of matters in equity; when it finds a party in possession of land, it holds him to be there by right. If he be there under a contract executed, he has the legal title against all the world, except the vendor; who can not evict him, nor transfer the legal title to another who can, because his possession is notice to the world that he is in lawfully. 5 Johns. Ch. 29; 4 Johns. Ch. 47; 3 Paige, 421; 3 Pick. 149; 6 Paige, 387.
    His equitable title under the contract has become united to his legal possessory title, and except for the single purpose, if the contract be executory, of securing the vendor’s lien, the equitable-title has become merged in the legal title.

      Whenever a greater and a less estate unite in the same person, the latter merges or sinks into the former; and whenever an equitable and legal title meet, immaterial what may be the grade of the latter, in one person, in the same right, the former merges. .It is true, in both cases, that equity prevents the merger, and preserves the estates distinct, for special purposes ; but, otherwise, the merger takes place, and the distinction is lost. 3 Johns. Ch. 56; 6 Johns. Ch. 393, 417; 5 Johns. Ch. 35, 214; 2 Thomas’ Coke, 556, 557, note K; 2 Atk. 67; 9 Ves. Jr. 509; 3 Ves. Jr. 126, 339.
    No man can be a trustee for himself. Take the case in its strongest aspect, and the principle seems to me to be tested. A. sells to B. a tract of land, receives payment in full, gives him a title bond, and puts him in possession. The legal paper title is in A. , but the possession is in B. For whose use does B. hold the land ? He does not hold it for A., because he has parted with his right to the possession and to the usufruct, as well as emblements. B. , then, if he holds to a use, must have a cestui que trust for whom the use exists. If there be no cestui que trust, or use, there is no use as independent of the possession, and B. holds in his own right. It then follows that there *is no independent equity, and a transfer of the possessory right must pass with it all equities connected with, or growing out of it, or upon which it is based.
    Take a very familiar case. A mortgagor is in possession, and condition broken. Against the mortgagee he has a mere equity, and against everybody else he has the legal title. While in possession, the land may be sold on execution as his, because of his possession; but if the mortgagee has possession, then it can not be .sold, because he has a mere equity. If it be sold while he is in possession, and the mortgage debt paid, the title of the purchaser is perfect. If the mortgagee buy the land, the mortgage merges, and the legal title prevails. If the land be sold on execution afterward, as the property of the mortgagee, he can not set up the mortgage. 6 Johns. Ch. 417. Now upon what basis does all this rest? It is upon the merger of the equitable into the legal title when they unite in the same person. No man can be a trustee for himself, nor can he be a creditor or debtor to himself. Whenever therefore, an equitable title unites in him with a legal title, so far as he is concerned, and so far as the whole world is concerned, except he who is interested in preserving the estates distinct, the former is gone, and he is held and treated as the legal owner of the estate. The law considers him in his best position, and as holding the-estate in the manner and under the title conducing to his highest interest. The law always places a man “ with his right foot foremost.”
    In 10 Ohio, 404, this court seem to consider this “as a question of the gravest character, and incumbered with great difficulties.” It may, therefore, be excusable in me to prosecute the inquiry somewhat further. The difficulty in the case seems to be, to determine in what way the purchaser under the execution is to be substituted to the rights of the vendee under the contract. He is substituted, I think, by the operation of the law working necessarily upon the case, as it does in all cases when it acts coercively. Suppose the vendee, after his purchase by deed, conveys the land without any reference to the contract, then it is clear, I apprehend, the purchaser *is substituted to his rights, and can compel a deed to him from the vendor, and the vendor may convey to him in affirmance of the contract without danger to or from the vendee. If, in such a state of case, the vendee should take a deed from the vendor, after his sale and conveyance, he would be estopped by his deed. He would not be permitted to say that ho had no title, and in accordance with one of the positions above assumed, his-deed would relate back to the date of his contract, so as to protect the intermediate purchaser.
    Such, then, would be the result where the vendee, in or out of possession, sells. We have seen that a judicial sale is as operative as a voluntary sale by the party. 15 Wend. 596; 9 Ohio, 186. But a judicial sale can only take place where the vendee is in possession. It passes to the purchaser of the property sold (8 Ohio, 24), to hold at law as the vendee or judgment debtor held it. 5 Ohio, 55; 9 Ohio, 186. That is the operation of a voluntary deed, and if a deed under a judicial sale is to have the like operation with a voluntary deed, the purchaser under the one should in all respects occupy as good a position in the law as the purchaser under the-other, and should in the like manner receive the same proteetionIf, then, the vendee would be estopped by his deed, he must be by the judicial deed. Why ? Because the deeds in both cases pass-the property and his legal right to the property, and that drowns and swallows up all his equities thereto. The possession gave a legal title. The acquisition of the legal paper title goes to confirm-the possession, and not to give a new right. It is, from the beginning, one and the same title, one and the same right. It is not distinct and independent of the right out of which the possession grew, and upon which it had fastened.
    In the present case, Morgan’s right grew out of his purchase on December 31, 1822. His possession is under that purchase, and the deed is to confirm his'purchase, and gives him no new right. After the sale he paid the purchase money and took possession, and had (the proceedings all being regular) an undeniable right to a deed. Wright, 520. *The deed, when received, inures to establish and confirm the possession already taken. He is in under one and the same right. There is no unity of distinct estates or rights, no merger. The possession and deed hang upon the sale; and are fed by it, and they all constitute but one title, operating upon the same estate. If he had sold and conveyed before he received his deed, the deed when made inures to protect the title of his vendee. If he sell and convey by the sheriff or other judicial officer, the same result must follow.
    We therefore claim, that if Morgan had conveyed this land before he received his deed, the purchaser could have received his deed'from the sheriff, and, on a proper case, it would have been ordered to have been executed and delivered to him. 7 Ohio, 204. We also claim that the sheriff’s deed, made to him after his sale and conveyance, would inure to the benefit of his vendee, and he would be estopped by his deed. We also claim that, in such a case, the same consequences would attach to a judicial sale and conveyance. After Sehoolcy received his deed, he could have obtained the sheriff’s deed, as the assignee of Morgan, by operation of law; or, if the deed was made to Morgan, as it was, if inured to his benefit, in confirmation of the possession previously taken by Morgan, and upon precisely the same ground that it would have inured, had ho been the voluntary vendee from Morgan.

      Wp therefore insist, in any aspect in which this case may be considered, the defendant’s possession ’should be protected, and ask, in his behalf, a judgment.
   Birchard, J.

Several questions are presented, which render this case intricate, and the decision somewhat difficult, if they are allowed to be so mixed up as to prevent each one from receiving a separate consideration. In examining them severally, we have found little difficulty in arriving at conclusions satisfactory to our own minds, aided, as we have been, by the careful, orderly, and thorough preparation of the case by counsel.

*The plaintiff’s first claim of title is under the deed from the heirs of Goodwin. These heirs took, by descent, from Goodwin whatever interest they had to convey. Their estate was no greater than that of their ancestor. Goodwin’s interest in the lot was levied upon and sold in 1822; and this sale, which was subsequently confirmed, left in him no interest whatever, from and after the day of sale. When the sheriff’s deed was finally executed and delivered, it, by relation, took effect as of the day of sale, and passed to the purchaser all the interest he then had.

Subsequently to that sale, he acquired no new interest in the land, and therefore dying seized and possessed of no right or title to the land, his heirs inherited nothing from him, and their deed to the plaintiff passed nothing, and may be treated as out of the way.

Whether the deed from Morgan vested in the plaintiff’s lessor any title or not, is the next question in the order of inquiry. Morgan’s right grew out of the coroner’s sale to him, which was made on December 31, 1822, and his possession, which was under that sale. The deed which was subsequently executed, under the order of the court confirming the coroner’s proceedings, gave him no new right. It merely confirmed the right acquired at the sale. If he had sold and conveyed, before the sheriff’s deed was finally executed, the' deed would have inured, when executed and delivered, to protect the title of his vendee; for the sheriff’s deed would relate back to the sale on execution, and operate as a conveyance to him from that time.

With this view of the title deeds offered in evidence by the plaintiff’s lessor, let us next consider the effect produced by the evidence given by the defendant. I lay out of view, as evidence of title, the coroner’s deed, executed on April 16, A. d. 1823, because it does not contain the requisite recitals, and was executed without a confirmation of the sale by the court; also, the deed of the coroner, executed October 4, A. d. 1825, because there was then in office a sheriff, who was the proper successor of the coroner who made the *sale, for the purpose of executing the deed. Schooloy, under whom defendant claims, was a purchaser at a sheriff’s sale, on execution against Morgan, who was then in. possession of the lot, and who was a purchaser at the sale upon •execution against Goodwin. He then owned all the right which he ever had to the premises. The sheriff’s deed vested all the title which Morgan had, at the time of sale, in Schooley. This is the effect produced by the statute, and if we are right in holding that a sheriff’s deed relates back to the sheriff’s sale, and is operative from that time as a conveyance, concerning which we have no doubt, it follows that the estate of Morgan, in this land, was -divested by that sale, and that the defendant is entitled to judgment.

But it is said that the deed of Morgan, of February, 1835, being prior to the sheriff’s deed of March, in the same year, and containing a covenant “ that he had done nothing whereby the title could be annulled,” vests a title in the plaintiff’s lessor, by way of estoppel or rebutter. To give this effect, it must be assumed that the setting up of title by the defendant, as derived from the sheriff’s sale to Schooley, is an act done by Morgan, in the face of his covenant. It could not be pretended that the covenant would work an estoppel, unless the position assumed by the defendant is to be regarded as the act of Morgan, the grantor, and is such .as to constitute a breach of his covenant.

The right asserted by the defendant, however, does not conflict with Morgan’s covenant. It does not establish the fact that he had done anything whereby his title could be annulled. It simply proves that he had omitted an act which was necessary to perfect his title, and this makes no case of estoppel, for estoppel is a matter of strict law.

An express warranty is the only contract which has the effect to estop the warrantor, and those claiming under him, from maintaining title under a subsequent purchase. The covenant must be me running with the land.

Judgment for defendant.


source: Caselaw Access Project

author: Read, J.

license: Public Domain

text:
    *Jacob Hoy v. George Hites.
    There can he no appeal to the Supreme Court, from a judgment of the court of common pleas, on a petition, under the statute, for partition.
    This is a motion from Holmes county to dismiss an appeal to the Supreme Court, from a judgment of the court of common pleas, on a petition for partition, under the statute.
    Hoagland and Tanneyhill, for plaintiff.
    Cox and Holland, for defendant.
   Read, J.

This case was reserved from Holmes county, on a motion to dismiss the appeal, upon suggestion that there was a difference of opinion among the profession, as tó the right of appeal, when proceedings for partition were had under the statute.

When proceedings are had for partition, under the statute, no right of appeal to the Supreme Court exists.

When the partition is sought in chancery, by bill, the statute confers the right of appeal.

The reason is, in the first case, the statute confers no right of appeal; but the latter is an ordinary suit in chancery, which the statute authorizes to be appealed.

Both these positions are expressly sustained in the case of Doane v. Fleming et al., Wright, 168. And the court say, in the matter of Chapman’s last will, 6 Ohio, 148, the practice of removing causes, by appeal, for a second trial, is created only by statutory provision. Appeal dismissed.


author: Lane, C. J. Birchard, J.,

text:
    *John Ingraham v. Thomas Hart.
    The existence of a law in a sister state, or foreign jurisdiction, is matter of fact, triable by a jury, and provable, if necessary, by witnesses.
    Where a plea discloses a defense under a statute of Pennsylvania, the modifications that statute received in Pennsylvania, either by construction or otherwise, not merely depending upon the just interpretation of the words of the statute, are facts, to be disclosed by replication.

      This is an action of debt, from the county of Monroe.
   Lane, C. J.

The declaration in this case contains four counts. The first and last are abandoned. The second and third are in debt, for rent of lands leased in Pennsylvania. The second counts' upon a simple demise, the third on a demise by deed.

To these counts the defendant pleads, in bar, that the causes of action accrued in Pennsylvania, in which state the defendant was a resident; that, by the statutes of Pennsylvania, of 1713, ratified by the statute of 1777, it is enacted, among other things, that all actions of debt, for arrearages of rent, shall be sued within six years after the cause of action accrued, which act continues in full force. That the supposed causes of action did not accrue within six years, by means whereof the plaintiff ought to be barred. In drafting this plea, the pleader recites the statute, enumerates the exceptions, and avers that the plaintiff comes not within their protection.

To escape the bar of this statute, the plaintiff wishes to lay before the court the construction of that statute by the courts of Pennsylvania, by which the effect of it is limited to debt for rent by parol demise. No doubt the position is sound that the law of limitation, in Pennsylvania, is the law of this suit, and if that construction prevails there, it constitutes a good answer. Ii) a former stage of this case, the plaintiff has attempted to rely upon a demurrer to the plea as the proper form to claim the benefit of it.

*If the doctrine depended merely upon a just construction of a statute, or of any document, this form of raising the question would be proper. But the question is not what is the just and true interpretation, but what is the actual construction of the document by the Pennsylvania tribunals ? It is a matter of fact, dehors the plea. All the averments of the plea are true, and the reason why it does create no bar arises from the acts of the courts of that state. The point in issue is, what is the law in Pennsylvania? What is the law of another state? The existence of a law of another state is a question of fact triable by a jury; and provable, if necessary, by witnesses. The demurrer, therefore, which presents the just, but not the actual, construction of the Pennsylvania statute, is not, in' the opinion of a majority of the court, calculated to disclose the defense; and it requires a replication to bring forward the fact of the actual construction, and tender an issue to the jury.

Archbold, for plaintiff.

D. Peck, for defendant.

Such was the opinion of the judges who held the Supreme Court in Monroe, in 1841, and the plaintiff’s demurrer was overruled. He has since filed his replication, to which the defendant has demurred, as argumentative and double. For it avers:

1. That the statute has never been considered, adjudged, or oonstrued, by the persons exercising the powers of government in Pennsylvania, to extend to debt, founded on a writing obligatory» either for rent or for any other consideration, but to debt upon parol demises only. It omits to specify what government or what officers.

2. Actions of debt, for rent, founded on writings obligatory, by the laws of Pennsylvania, have never been barred by the lapse of six years.

3. But such action may be commenced and prosecuted at any indefinite period of time.

4. Subject, only, to a presumption of payment after a lapse of twenty years unaccounted for.

5. And subject to no other presumption whatever.

*Now, this is really covering too much ground. It is too loose and inartificial to require any other answer than a special demurrer.

The plaintiff has leave to amend.

Birchard, J.,

dissenting.

My reason for not assenting to the opinion of the court, is a belief that the demurrer to the replication, which is defective, reaches the plea to the second and third oounts, and presents to the court, as matter of law, the question, whether this suit is barred by the Pennsylvania statute of limitations, as that statute is interpreted by the courts of Pennsylvania. And that the point should be determined by a reference to the decisions of their courts, without the intervention of a jury.


author: Wood, J.

text:
    The Lessee of Andrew Le Grange v. Isabella Ward et al.
    The probate of a will, taken witbin tbe county, at another place than the county seat, by the associate judge, is competent evidence to establish the will.
    The solemn adjudications of courts having jurisdiction over the subject mat. ter, are not void, but valid until reversed.
    This is a writ of error to the Supreme Court of Ashtabula county, to reverse a judgment in ejectment, at the August term, 1841.
    On the trial, a bill of exceptions was taken to the opinion of the court, from which it appears the cause was submitted to the court for trial, without the intervention of a jury, and that *the plaintiff, having proved that Benjamin Morse died lawfully seized of the premises; that the lessor of the plaintiff was one of his heirs, and entitled to one-fifth of tbe land of which he died seized, rested his case.
    The defendants then offered evidence of the will of Benjamin Morse, under which the defendants claimed title, and the probate thereof. The caption of the record of probate reads as follows: “ Special Court, Harpersfield, Tuesday, March 25,1813. Estate of Benjamin Morse, Esq., deceased. At a special court of common pleas-for the county of Ashtabula, held at the house of Marian Morse, widow of the late Benj. Morse, Esq., deceased, and at the particular request of James Harper, James A. Harper, and the said Marian Morse, widow, as aforesaid, the widow being an executrix of the last will and testament of the said Benjamin, and unable to attend at the seat of justice in said county, the request was made and granted by thecourt. Present: the Honorable Aaron Wheeler, Solomon Griswold, and Ebénezer Hewins, Esqs., associate judges.”'
    The evidence was objected to, but admitted by the court, and exception taken.
    The only special error assigned is, the permitting said paper writing, purporting to be a record of certain proceedings had in the court of common pleas, to go in evidence; Harpersfield not being the seat of justice of Ashtabula county, at the time the associate judges convened there and received the will to probate.

      Giddings & Chaeeee, for plaintiff:
    The jurisdiction of all probate and testamentary matters is vested in the court of common pleas. Constitution of Ohio, sec. 5, art. 3.
    If the associate judges had the power to change the place of holding the court of common pleas, they would have equal power to change the time.
    *The law then authorizing a special session of the court of common pleas, for probate matters, was the same as the law now in force.
    The law could give to the judges no power to take the probate of will, etc., except as a court of common pleas. It is therefore believed when the judges met at Harpersfield, they were no court of common pleas, and, of course, their acts were void.
    Wade & Rannet, for defendants:
    If the court should have been held at the county seat by law, still having jurisdiction over the subject matter, their proceedings can not be impeached collaterally; for, however irregular, the solemn judgment of a competent and authorized tribunal can not be treated as a nullity; and it can only be reinvestigated by writ of error or certiorari. Wier v. Zane, 3 Ohio, 306; Goodrich v. Jenkins, Wright, 349; 6 Ohio, 43; Buel v. Cross, 4 Ohio, 327; Lessee of Parker v. Miller, 9 Ohio, 108; Lessee of Mitchell v. Eyster, 7 Ohio, 257.
    The law in force at that time did not provide any place in the county where the courts should be held for any purpose. 2 Chase’s L. 797.
    The law under which this court was held, is found in section 5 of the supplementary act for proving wills, etc., passed February 8, 1812. 2 Chase’s L. 770. It authorizes any three of the judges * to convene,” for the purpose of granting letters of administration, etc., without any directions or limitations as to place. Now, they had jurisdiction throughout the county, and might, of course, convene at any place within their jurisdiction. If they went beyond its bounds, their acts would be coram nonjudice; but, while acting within it, they are not only valid, but perfectly regular. And this was the construction put on the law by the courts themselves at that time; for numerous instances of the kind occurred in this and the neighboring counties. Such a construction as is contended * for by the plaintiff in error would invalidate a great number of titles.
   Wood, J.

The seat of justice, as fixed by law, for Ashtabula county, when probate of the will was taken, was at Jefferson ; and the question raised by the plaintiff in error is, whether the court of common pleas, or the associate judges thereof, had power to take the probate of a will at any other place than the county seat. It is contended, by the plaintiff in error, they had not; and, therefore, their proceedings in this case are void. If so, it follows that the court erred in admitting the probate in evidence, and the judgment must be reversed. Let us inquire, then, what the law was at the date of this probate.

The act of February 8, 1812 (2 Chase’s L. 770), provides as follows : “ That it shall, at all times hereafter, be lawful for the judges of the court of common pleas, or any three of them, when required, to convene for the purpose of granting letters of administration, taking probate of wills, or for transacting any other necessary business relative to the settlement of estates of deceased persons.” This act was in force in 1813, when this probate was had, and it will be observed that it is silent as to the place where the court or associate judges shall assemble for the transaction of probate or testamentary business ; and, if there was any positive statute, then or now, requiring the court of common pleas to convene at the county seat, I have not been able to find it; it has been overlooked after diligent inquiry.

The county seat may have been a convenient place ; but whether the only place where the court could legally have held its sessions, under all possible exigencies, is, at most, doubtful. The associate judges are limited in their jurisdiction only by the county lines, and while they keep within them, there can be no substantial objection to their taking probate of a will at any place, and it is a part of the history of that section of the country that there are several others like the case at bar.

But suppose we are wrong in this, and that the judges were required by law to do all official business at the county seat, *it by no means follows that the acts of the court, or of the associate judges, are void.

If a court have jurisdiction over the subject matter, its solemn, acts and adjudications, although erroneous, are not void. They are valid until reversed. Weir v. Zanc, 3 Ohio, 306. And even the proceedings of mere judges de facto have repeatedly been sustained both in England and the United States. We are of the opinion, there was nothing erroneous in receiving the record of the probate court in evidence, and that the judgment of the Supreme Court of Ashtabula county ought to be affirmed.

Judgment affirmed.


author: Birchard, J.

text:
    The State of Ohio v. James A. Wells, Adm’r of James Forsythe.
    The statute making certified copies of the files of the auditor of state evidence, authorizes their admission only where the originals would he competent.
    The act regulating the sale of school lands does not authorize the final certificate of the county auditor to he used as evidence to charge the county treasurer; nor is a certified copy of an account, made out hy the auditor of state from such certificates, competent evidence.
    This is a motion for a new trial from Shelby county.
    The action was brought upon the official bond of defendant’s intestate, as treasurer of the county of Shelby, to recover money alleged to have been received by him on the sale of certain school lands. On the trial to the jury, the plaintiff offered in evidence a certified copy of an account current, made out in the-office of the auditor of state, authenticated by the seal of office, and official signature of the auditor, and certified in the following form :
    “ I, John Brough, auditor of state, do hereby certify the foregoing amounts have been carefully and correctly taken *from the final certificates on file, in this office, and that the same have not been reported according to law, or paid into the state treasury.”
    To the admission of this as evidence, the defendant objected, but the objection was overruled, and the account was read to the jury. For an alleged error in admitting this evidence, a new trial is asked.
    William J. Martin, for the state.
    J. S. Updegraff, for defendant,
   Birchard, J.

The first question in this case is upon the construction of section 14 of the act prescribing the general duties of the auditor, treasurer, and secretary of state. Swan’s Stat. 121. It is in these words: “The auditor shall deliver .to any person applying therefor, a certified copy of any survey, or other document in his office; and all such copies certified by the auditor, under his official seal, shall be received as legal evidence in all courts and places within this state.”

The question is, does this section contemplate the creation of any new evidence, or make a now rule of evidence? Or, does a true interpretation of its terms require that it should be held merely to authorize the use of the copy provided for, in those cases only, in which the original, if in court, would be held competent? In our opinion, the latter was the true meaning of the legislature. If so, it follows that the certified copy in question was improperly read to the jury, unless the original would have been competent evidence to charge the defendant in this suit. It is only necessary to turn our attention to sections 11,12,13, and 16 of the statute, 3 Chase’s L. 1556, 1557, to enable us to arrive at a correct determination of this matter. By section 11, it is provided that, on a sale of lands, the county auditor shall give a certificate to the purchaser, specifying the amount of payment to be made, and on what account; and that the purchaser shall make payment to the county treasurer, *and take his receipt; which receipt shall be deposited with the county auditor, who shall preserve the same, charge the treasurer with the payment, and give the purchaser a receipt therefor. By section 12, the county auditor is required to beep a book of sales, and day-book and ledger for accounts, and forward quarterly, to the.auditor of state, transcripts of the sales, and of the payments made to the county treasurer, which the auditor is to file in his office. Section 13 requires the county treasurer to keep books of account, in which all the moneys received by him are to bo entered, and to forward quarterly transcripts thereof to the auditor of state. Section 16 provides that, on full payment being made, the county auditor shall give to the purchaser a final certificate, etc., upon presentation of which, to the auditor of state, the purchaser shall be entitled to a deed. From these four sections, it is not difficult to perceive what checks are provided by law for the protection of the public, or’ what evidence is proper to charge a county treasurer, making default of a portion of the school fund.

In the first place, he can receive no money without giving therefor a receipt, in his official capacity, under his sign manual. This receipt must be deposited as an official voucher, and filed in the office of the county auditor. In the next place, he must make and forward to the auditor of state correct quarterly transcripts of his own account of moneys received. These, also, must be verified by his signature.

If sued, the original receipts, or the quarterly transcripts, are, in the first instance, the only competent evidence wherewith to charge him. But as there is danger in permitting official filos to be taken from the office of the auditor of state, the law has provided that a certified copy shall be legitimate evidence. The copy read to the jury was not such evidence, but was of a secondary character. It was not legal evidence. It was not even the copy of a copy of any paper or document emanating from the defendant’s intestate; but a statement of accounts made up from finaL certificates, which were made without the treasurer’s agency, and possibly without his ^knowledge, by the auditor of the county. I say probably without his knowledge, for it is at least supposable, that the auditor of the county might have issued a certificate by mistake, or on a forged receipt of payment, or willfully, he having himself received the money. Could it be tolerated, that a man’s property, or reputation for official integrity should be put in jeopardy in a court of justice, by evidence so liable to error as this?

The fact that the treasurer’s quarterly transcripts contained no reports of moneys paid on the lands in question, affords no sufficient reason for the admission of this evidence. For, if in fact, •the county auditor, as in the case supposed, was imposed, upon by -a false certificate of payment, and the county treasurer was a correct and honest man, his transcript would not contain a report of this kind. It is, however, argued, that inasmuch as a deed is required to be issued, on the presentation of the county auditor’s final certificate, the state may, under the views taken, lose the title to the land without receiving payment. If it were so, that would furnish no excuse for permitting the recovery from an innocent •person.

Bui-wo see no difficulty in making the county auditor responsible for the damage occasioned by the issue of any final certificate without the proper voucher.

Supposing him to have received such voucher and performed his duty, there is as little difficulty in the way of maintaining this suit. The prosecuting attorney has only to summon him to bring into court the treasurer’s receipts, and he will be furnished with lull proof of the plaintiff’s right to a recovery; or, if the receipts are lost, the auditor may then prove their loss, and give parol evidence of their contents. New trial granted.


author: Bead, jT.

text:
    *Walter Armstrong v. Arndt Kattenhorn and Martin Kattenhorn.
    A parol contract for a lease between landlord and tenant in possession, under a prior lease, is within the statute of frauds; unless possession be held solely under, and in performance of, the parol contract, the terms of holding clearly indicating the possession to be under the subsequent parol lease.
    This was a writ of error from the court of common pleas of Hamilton county.
    On the trial below, a verdict was rendered in favor of the defendants, under the charge of the court, to which the plaintiff excepted.
    The bill of exceptions shows that the defendants were in possession of certain premises as lessors.
    That Armstrong purchased these premises of the owner.
    That, while thus in possession, Armstrong made a verbal agreement with them that they should have and occupy said premises for one year, from February 6, 1840, at an annual rent of S600, payable fifty dollars per month in advance.
    That the defendants occupied and paid the rent up to June 6, 1840, when they abandoned the premises.
    This suit was brought to recover rent due on the 6th of Juno and 6th of July upon said parol contract.
    Possession of the premises was never delivered to the said defendants, under the said parol agreement on which suit was brought, but theirs was a continued possession of the premises on a contract with the original owner from whom the plaintiff bought.
    Upon this state of facts, the court below charged the jury that, 'if the rent had been paid by the defendants while in the actual occupancy of the premises, and the plaintiff sought .(merely) to recover upon the breach of the parol contract, concerning the renting of the premises, that it was within the statute of frauds, unless the possession of the premises had *been delivered in pursuance of the parol contract; and that if the possession was a mere continuance of possession, had under a former lease, such continued possession would not be such part performance of the parol contract made with the defendants, as would take the case without the statute of frauds.
    That to take the case without the statute, upon the ground of part performance, there should have been an actual delivery of the possession, in pursuance of the parol contract; and if such had not been the case, the plaintiff could not recover for the breach of the parol contract.
    To which opinion of the court counsel except, and assign it as error.
    Riddle and Roll, for the plaintiff:
    The plaintiff in error contends that the contract between the parties was so far changed by the parol lease, on February 6, 1840, by the payment of the rent, agreeable to said contract, subsequently, from February 6, 1840, to 6th June, same year, monthly, in advance, and was so different from the original possession and tenancy, that such a possession, under such circumstances, took the case out of the statute of frauds.
    The contract made on February 6, 1840, put an end to the old tenancy and possession, and by the defendants attorning to plaintiff, agreeable to the new contract, such a possession and compliance, under that contract, on the part of the defendants, would take the case out of the statute. In other words, it was such a part performance, on their part, that a court.of equity would have decreed against the plaintiff a specific performance of the lease.
    Judge Story sayB: “ If the possession be delivered, and obtained solely under the contract, or, if in case of a tenancy, the nature of the holding be different from the original tenancy, as by the pay-meat of a higher rent, or by other unequivocal, circumstances, referable solely and exclusively to the contract, *then the possession may take the case out of the statute.” 2 Story, 68,69.
    Now, we say that the holding, by the Kattenhorns, under the parol contract, between them and plaintiff, was entirely different from their former tenancy ; they paid a different rent, and attorned to a different landlord, and under a different contract, from what they were in possession under.
    The defendants do not pretend to say that they held under the lease given by Barr. Had not the possession so far changed, by the contract aforesaid, between plaintiff and defendants, as to make it a new lease, we would not contend, for a moment, that the court below erred in the decision there made.
    We wish to be understood that, by the defendants’ entering into a new contract, paying rents differently, and attorning for same under said new contract, that it was so far a change of the original tenancy, and that there was such a partial performance of said new contract, as to take the case out of the statute.
    Should the court be of a different opinion, then the judgment of the court below should be affirmed. If otherwise, it should be reversed.
    Wright, Coffin & Miner, with James Riley, for defendants:
    We do not see any error in the charge of the court. Courts have already gone too far in their efforts to make the statute of frauds of no effect. If wrong, it would be better to repeal it at once.
    In the more recent decisions, judges have expressed regret that so many exceptions to the statute had been established, and expressed a determination not to make any new ones.
    In Lindsay v. Lynch, 2 Sch. & Lef. 4, Redesdale, Lord Chancellor, says: “I am not disposed to carry the cases which have been determined on the statute of frauds any further than I am compelled by former decisions. That statute was made for the purpose of preventing perjuries and frauds ; and nothing *can be more manifest, to any person who has been in the habit of practicing in courts of equity, than that the relaxation of that statute has been a ground of much perjury and much fraud. If the statute had been,rigorously observed, the result would probably have been, that fewer instances of parol agreements would have occurred. Agreements would, from the necessity of the case, have been reduced to writing; whereas, it is manifest that the decisions on the subject have opened a new door to fraud; and that, under pretense of part execution, if possession is had in any way whatever, means are frequently found to put a court of equity in such a situation, that, without departing from its rules, it feels obliged to break through the statute."
    But it is now supposed attornment, or payment of rent, is such a part performance as will take the case out of the statute. This does not appear to have been a point made on the trial below. If it was made, and the court charged upon it, it is certain there was no exception taken on account of such charge. How can this court, then, look beyond the record for such error, and presume it? If the point was made, the action of the court, in respect to it, must appear in the bill of exceptions, or it is beyond the reach of this court, sitting as a court of errors.
    Waiving this objection, however, for the sake of argument, we have not found any case where it has been held that payment of rent, under a verbal agreement, not accompanied with a delivery of possession, is sufficient of itself to take the case out of the statute. In Wells v. Stradling, 3 Ves. 78, the bill stated that the plaintiff was lessee of a farm for seven years. The lease being to expire in 1794, the plaintiff, in.June, 1793, desirous of making some expensive improvements upon the premises, applied for a new lease for fourteen years, which was agreed to be granted at an increased rent. Shortly after, the plaintiff, upon the faith of the agreement, began to make improvements, and laid out a largo sum of money. Plaintiff continued in possession after the expiration of the former lease, and paid the increased rent, for which the defendant gave him ^receipts. Prayer for specific performance of the agreement. The defendant plead the statute of frauds, with an averment that there was no agreement in writing.
    Thurlow, Lord Chancellor. “ Three grounds are stated: possession by the plaintiff, which he refers to the agreement; payment of an increased rent, which he also refers to the agreement; and the laying out of money upon the improvement of the farm.
    “As to the first ground, the possession in the case of a tenant, who, of course, continues in possession, unless he has notice to quit, the mere fact of his continuance in possession would not weigh. The delivery of possession, by a person having possession, to the person claiming under the agreement, is a strong and marked circumstance; but the mere holding over by the tenant would not, of itself, take the case out of the statute, or even call for an answer.
    “As to the money laid out, if it was part of the contract that money should be laid out, and it was one of the considerations for granting the lease, it is very strong to take the case out of the statute. But the circumstance which I think distinguishes this case is the payment of the additional rent. Payment of additional rent, per se, is an equivocal circumstance, it is true. It' may be that he should hold from year to year, the lease being expired. But the averment is that the landlord accepted the additional rent upon the ground of the agreement.”
    Whether the possession be an unequivocal act, amounting to part performance, must depend upon the transaction itself, whether it be so circumstanced that it can refer only to a contract of sale. If the connection of landlord and tenant had before existed, it would be a continued possession, and no evidence of a contract. Savage v. Carroll, 1 B. & Beatt. 282; Morphett v. Jones, 1 Swanst. 181.
    A parol agreement will not be enforced upon the ground of part performance, as when the act is equivocal, and easily admits compensation ; as by a tenant rebuilding a party wall. So a tenant’s possession and cultivation of the premises would not *sustain a parol agreement to purchase. Frame v. Dawson, 14 Ves. 387.
    The acts done in part performance must be such as could be done with no other view than in part performance of the agreement. Gunter v. Halsey, Amb. 586 ; Lacon v. Mertins, 3 Atk. 4; 2 Story’s Eq. 69.
    Judge Story says : “ Mere possession of the land contracted for, will not be deemed a part performance, if it be obtained wrongfully by the party, or if it be wholly independent of the contract. Thus, if the vendee enter into possession, not under the contract but in violation of it, as a trespasser, the case is not taken out of, the statute. So, if the vendee be a tenant in possession under the vendor; for his possession is properly referable to his tenancy, and not to the contract. But if possession be delivered, and obtained solely under the contract, or if, in case of a tenancy, the nature of the holding be different from the original tenancy, as by the payment of a higher rent, or by other unequivocal circumstances, referable solely and exclusively to the contract, then the possession may take the case out of the statute.” 2 Story’s Eq. 69.
    The concluding remarks, above, are evidently grounded upon the case of Wills v. Stradling, 3 Ves. 378, before cited. But what is there in the case under consideration, referable solely and exclusively to the contract? Not the possession, for that is referable to a former agreement, with a prior owner of the premises; not the payment of rent, if that fact is to be considered, for that may be referred to the former agreement, or to the mere occupation or use.
    In the case of Frame v. Dawson, 14 Ves. 381, the defendant became the owner of the premises during the plaintiff’s tenancy under a former lease, and the plaintiff attorned to him; yet it does not appear that this fact was relied upon.
    The case of Jones v. Peterman, 3 Serg. & Rawle, 543, is identical with the case made by plaintiff’s bill of exceptions. Jeremiah Hornketb, the younger, was entitled to the land in dispute, as administrator of his deceased father, Jeremiah TTornketh, under a lease to the latter, made by Wm. Hamilton, dated *November 28, 1812, for the term of seven years. In 1813, Hornketh, the son, made a verbal agreement with one Jacob Perkins, to devise to him this land for the residue of said term. This verbal agreement was to have been reduced to writing, but was not. Perkins was in possession of the premises at the time of making the verbal agreement, and before, by virtue of some agreement with the son or the father, and continued in possession until ho assigned to the defendants.
    The plaintiff claimed under a written assignment of William Hamilton’s lease, made by Hornketh, the son, dated July 22, 1814. Upon these facts the court held that possession, had before a parol agreement of lease for seven years, and continued afterward, is of too doubtful a nature to be considered as part performance, and to take the case out of the statute for the prevention of frauds and perjuries. Although not expressly stated, Perkins must have paid rent, for he had the premises several years after the verbal agreement. So the case is identical, in all respects, with the one under consideration.
    We have examined a great number of authorities, but have not found a single one to sustain the claim of the plaintiff.
    We therefore conclude that, even without reference to the authorities cited by us, this court, in the absence of express authority, will not create a new exception to the statute of frauds for the benefit of the present plaintiff.
   Bead, jT.

We are unable to perceive any error in the charge of the court below.

The foundation of the action was a parol lease, of a term which the statute of frauds and perjuries declares void. To escape its operation, reliance is had upon part performance.

Part performance, which avoids the statute, may be defined to be acts done in performance of the contract, which put the party performing in such a situation that the non-enforcement of the agreement, as to him, would be a fraud.

The situation of the parties must be so changed that the enforcement of the contract alone can furnish adequate relief.

*Henee, the mere payment of the purchase money will not avoid the statute, because its recovery back is regarded as full compensation. But delivery of possession, in performance of the contract, avoids its operation.

But if possession be relied upon, it must be clearly referable to the contract, and be delivered and held in performance of it.

Possession must give the contract life, and if they can possibly be separated, the parol agreement perishes under the operation of' the statute.

Hence, if the possession can be referred to any other source than the parol contract, which it is claimed to support, even to the wrongful act of the party in possession, or to a different contract, the statute applies.

Thus, if a vendor sell to a vendee, in possession as tenant, the possession is referred to the original tenancy, and not the contract of sale. So with a tenant in possession, in case of a parol agreement for different terms of holding, if no acts are performed which clearly show that the possession is continued under the last agreement, it will be referred to the original tenancy, and such parol contract will be void. '

In the ease now under consideration, the record shows no act that is not as clearly referable to the possession under the old tenancy, as the parol lease upon which recovery is sought.

If it be contended that rent was paid under the parol contract, it may be replied, from aught that appears in the record, that the same rent was due on the original tenancy, under which the defendants were in possession.

The possession of the defendants, then, is not shown, by unequivocal acts, to have been continued or held solely in performance of the parol contract, and must be referred to the prior lease.

Possession must accompany the contract, in performance of it, in all cases, to avoid the statute; and this is, in substance, the charge of the court below. The record says the possession was not delivered tinder the parol lease, but was continued under the prior tenancy.

*True, Armstrong purchased the premises subject to the lease, and, after the purchase, rent was paid to him, but this, unexplained, must be deemed a simple act of attornment, and does not imply a holding upon different terms.

Rent was due upon either holding, and possession was consistent with the original tenancy. Judgment affirmed.


author: Lane, O. J.

text:
    Henry Miers and Jonathan Coulson v. The Zanesville and Maysville Turnpike Company et al.
    A general demand against a judgment debtor to disclose his assets, that they may be subject to execution, is proper. No suit lies against the state to compel the payment of subscription to stock. "Where there is a receiver of tolls, appointed under the statute of 1842, by a court of competent jurisdiction, it acquires authority to determine all questions touching the distribution and appropriation.
    This is a bill in chancery from the county of Fairfield.
    The state of the pleadings and the material facts appear in the opinion of the court.
    The ease was fully argued by Hunter & Garraghty, for complainants, and by H. Stanbery, for defendants.
   Lane, O. J.

The plaintiff shows he has recovered judgment against the turnpike company, and that they have no assets Hablo to be seized on execution at law; that there are back subscriptions yet duo the company, both from individuals and from the State of Ohio; and that the company are levying tolls from persons traveling on the road, all which, he prays may be subjected to the satisfaction of this judgment. A supplemental bill charges that D. Talmadge is indebted to the ^company for tolls, which they ask to be applied to their benefit.

The defendants demur to the several claims in the bill. To that part which seeks to subject unpaid subscriptions, it is claimed the demurrer lies, from the want of sufficient certainty in pleading. The bill asserts that a great number of individuals, whose names are unknown, but whom, when discovered, they ask may be made parties, are indebted for subscription of stock, and they pray the company may set forth their names in their answer. The defendants insist this general description makes a fishing bill, which they need not answer. We do not think the objection well taken. We regard it proper practice, when the liability of the defendant is fixed, and no assets at law are forthcoming, to compel Mm to disclose his means to pay the debt, especially where the nature of the resources are pointed out by the bill, and his answers, upon such a point, specifically required. 4 Johns. Ch. 620. If it were otherwise, equitable assets would frequently escape the most searching inquiries of creditors. So much of this demurrer as relates to the form of the bill is overruled, and the company is required to sot forth the names of their debtors.

To so much of the bill as assumes to compel the state to pay arrearages of its subscription, it is plain that no answer need be made; it is enough to say the state is not, in fact, a party, and is not capable of being made a party defendant.

To this class of assets the demurrer is well taken.

To that part of the bill which pursues the right to collect toll, a plea is offered that another creditor has filed his bill in Muskingum against these defendants, that a receiver has been appointed, and the tolls already sequestered, and in the hands of a court of chancery, having jurisdiction over these assets.

Whenever a trust fund comes under the jurisdiction of a court of chancery, for management and distribution, the nature of the case renders it necessary that such tribunal should assert and maintain its plenary power over the whole subject, to the exclusion of every other forum. The most usual case in which it is exemplified, is in the case of a creditor’s bill to ^settle the estate of a decedent, which brings the whole settlement of the estate within the court where filed, and all proceedings elsewhere will be restrained by injunction. 4 Johns. Ch. 631, 640.

But the same necessity submits in every case of a holder of a trust fund, to sustain the exclusive jurisdiction, for the purpose of preventing a double liability of the holder of the trust fund, and to insure its due appropriation.

The statute authorizes a creditor to institute proceedings against turnpike companies to sequester their tolls. A single suit, lawfully instituted, gives jurisdiction to the court to sequester the whole tolls, although the road passes through, and the gates may be situated in different counties; for the company is suable in the county where its functions are exercised, and its franchises may be seized by the court to whose jurisdiction it is subjected. As the court in Muskingum had power to appoint a receiver to seize its tolls, the authority of that receiver extends throughout the state, wherever it may be necessary to exercise it, and the court who appointed him will protect him in the exercise of his power. If, then, the plaintiff in that suit, in Muskingum, has secured a priority, he has drawn within the jurisdiction of that court the whole administration of the fund, which that receiver may control, until he, and those who are permitted to become parties to his suit, have exhausted the assets, or attains the objects he has sought by his bill.

It is then necessary to look to the question of priority, and determine by what it is acquired. This bill was filed first; but the decree rendered, and the receiver first appointed in the other. We think that ho whom the law first authorizes to receive the tolls should be protected in his possession, and we find the statute operates to confer this power by the decree. 40 Ohio L. 37. In the,present race between creditors, whose equities are equal, this first authority to receive, seems to us to confer the priority to the receiver of Muskingum, and that all questions of appropriation and priority must be settled in the court to which he renders -his account.

*It will be noticed that this shape of the case renders unnecessary the decision of certain questions of the most grave and weighty character; such as those' relating to the priority or equality between different creditors, and the right of the state to receive one-half of the tolls collected, undiminished by any debts save those for repairs. All these questions will arise, and may be settled in that suit.

Eor present purposes, so much of the bill will bo dismissed as pursues the right to the tolls, either in the hands of Talmadge or of the company.

It will be entertained to compel answers as to those indebted to the company for unpaid stock. Order for answer and discovery.


text:
    Wilson N. Brown v. The State of Ohio.
    On an indictment laying a particular day when the plaintiff acted as an officer of an unauthorized bank, it is competent for the prosecution to prove the act after the day laid.
    When such office is exercised in this state, it is not necessary for the prosecu. tion to prove that the bank or association is not incorporated.
    A sentence, that the defendant stand committed until the fine and costs be paid, is erroneous, and, quoad hoc, subject to reversal.
    This is a writ of error to the court of common pleas of Hamilton county.
    The facts appearing upon the record are stated in the opinion of the court.
    Wright & Miner, for plaintiff in error, made the following points:
    1. The indictment names a single day, on which the offense was committed, without saying before or after, or *using a videlicet. The prosecution should, therefore, be confined to the day laid in the indictment.
    2. The indictment charges the plaintiff in error with acting as an officer of an unincorporated bank. The burden is then upon the state to' prove that the bank or association was not incorporated.
    No arguments for the state came to the hands of the reporter.
   Wood, J.

The facts, from inspection of the record, appear to be these : The plaintiff in error was indicted, and, at the July term of the court of common pleas, a. d. 1840, he was tried and convicted on the second count of an indictment, framed under the provisions of sections 1, 2, and 3, of the act passed January 27, 1810, entitled “an act to prohibit the issuing and circulation of unauthorized bank paper.” Swan’s Stat. 136.

Section 1 enacts : “ That if any person shall, within this state, act as an officer, servant, agent, or trustee to any bank or moneyed association coming within the description contained in section 2 of this act, except a bank incorporated by a law of this state, he shall, for every such offense, forfeit and pay the sum of $1,000.”

Section 2 provides : “ That every company or association that shall lend money, and shall issue, by their officer or officers, or by any other person or persons, bonds, notes, or bills, payable to bearer, or payable to order, and indorsed in blank, or use other shift or device whereby the bonds, notes, or bills, given by such company or association, or on their behalf, pass or circulate by delivery, shall be taken and deemed a bank within this act.”

Section 3 is in these words : “ That every person who shall act as a president, cashier, clerk, or director to any such bank, or shall in any respect assist in the discounting of paper, or lending money for such bank, or in paying out or receiving money for such bank, or in any manner intermeddle, *for the benefit of such bank, with its concerns ; and every person whose handwriting shall appear on the bond, bill, note, or contract of such bank, whether as the drawer thereof, or witness, or payee and indorser, shall be deemed and taken an officer of said bank within the meaning of this act.”

The count, on which the conviction was had, is of the tenor following :

“And the jurors aforesaid, on their oaths, do further present that the said Wilson N. Brown, on March 1, 1840, with force and arms, in the county aforesaid, acted as an officer of a bank not incorporated by law, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Ohio.”

The defendant was sentenced to pay a fine of $1,000, and to stand committed until the fine and costs were paid.

A bill of exceptions was taken on the trial, from which it appears that, after the evidence was closed, the counsel for the accused prayed the court to instruct the jury that, under said count, they could not convict the defendant unless they found he exorcised the office therein mentioned before or on March 1, 1840, the only day named in that count; but the court, on the contrary, instructed the jury it was sufficient to convict the defendant if they found such office had been exercised on or before March 21, 1840, the day on which the indictment was found. To this charge of the court an exception was taken, and is now assigned for error. It seems to us, however, the court were perfectly right in their view of the law, in relation to the day laid, and that the instruction given is sustained by the authorities. In a late and most excellent work on criminal evidence (Roscoo’s Criminal Evidence, 100), under the head of Averments as to Time, it is laid down that aD indictment not alleging any time when the offense was committed, is bad; but, when laid, it is unnecessary to prove the particular time as laid, unless the time be ^material. Thus, in treason, if the overt acts be laid on one certain day, evidence of them after that day, is admissible.

The court were also asked to instruct the jury, that the defendant could not be convicted, unless the notes put in circulation purported to be the notes of the association to which the defendant belonged, and not the notes of some other bank or association. This instruction was refused; but the court charged that it made no difference by whom the notes were drawn, whether by persons within the state or without it, or what shift or devise was resorted to, to evade the law, if the association, or individuals composing the association, wrote their names upon their bills, in such manner as to make it their debt, binding them to redeem it, and gave it credit, by such signature, as money or currency. To this instruction an exception was taken, and is also assigned for error. We do not, however, perceive in it anything erroneous. The act purports, from its title, and such is the essence of its provisions, to prohibit the issuing and circulating of unauthorized bank paper. It is in the three first sections, under which the indictment is framed, directed against persons who act as officers of unincorporated associations, either in this state or elsewhere, if the office is exercised here. It was not necessary to a conviction, that the person charged as the officer of such unincorporated institution, should, in fact, be found by the jury to have issued notes of the company to which he belonged, or for which he was notoriously exorcising the office. The language of the act is broad : “That every company or association, etc., that shall, by their officer or officers, or by any other person or persons, etc., lend money, and issue bonds, notes, etc., shall be deemed a bank within this act; and every person who shall act as president, cashier, etc., or shall, in any way, assist in lending, paying out, or receiving money for such bank, shall be deemed and taken an officer of such bank, within the meaning of this act.” If, therefore, he act for any such association, in any capacity, as an agent, or his handwriting appear oh the notes, or if he intermeddle with its concerns, for its benefit, he is brought within the energies of the law, and *the court, in their instructions, appear only to have enumerated the acts which this statute defines as violations of its provisions.

The court were also asked to instruct the jury, that they could not convict the defendant on said count, unless the prosecution proved that tho association, acting as a bank, and for whom the defendant was an officer, had not been incorporated; but the court on this point charged that the jury should presume the association not incorporated, unless the contrary was shown by the defendant. An exception was, in like manner, taken to this part of the charge; and it is the only point, in our view, of doubtful or difficult solution. It is a general rule that the material averments in the indictment must be proved by the prosecution ; but there are few general rules without exceptions. In England, it would, under a like statute, be indispensable for the prosecution to prove a similar’ averment, because all acts of incorporation, whether emanating from parliament, or charters granted by the king, are private, and no one is bound to notice them, unless they are pleaded; but here it is otherwise. All statutes are printed by authority, and, though local or special, are, nevertheless, public acts, of which courts of justice, ex officio, take notice. On the trial, therefore, when the prosecution proved that the defendant acted as the officer of a company or association, if it existed in this state, the court and jury, without the introduction of testimony, from their presumptive knowledge of the law, a public law, would be within the legitimate exercise of their functions, in assuming that an unchartered association was so. Such averment is, therefore, proved by a public law. If, however, the association for whom the defendant exercised the office, existed elsewhere than iu Ohio, the rule would not hold. The private acts or statutes of other states must be private in this. The indictment in this case .is general. It charges the defendant with acting as the officer of 'bank; but whether the company existed in this state, or elsewhere, does not appear; it is left to be supplied by the proof on the part of the prosecution. The statute gives this general form of the indictment, *and this court, in the case of Noah Lougee v. The State, at the last term, held it sufficient. Ante, 68.

If the association or bank for whom the defendant exercised tho office, therefore, was out of the state, the charge that the prosecution was not bound to prove it unincorporated, was erroneous; but this does not appear by the bill of exceptions, and it should be presumed the association existed in this state, on the principle that every court of general jurisdiction is presumed not to err until the error is pointed out.

Another, and the last error assigned, is, that the court directed the prisoner, the plaintiff in error, to stand committed until the fine and costs were paid. It is the opinion of a majority of the court, that the court below, in this, exceeded the authority vested in it by law. When common law jurisdiction is entertained, and courts proceed according to its course, this power exists; but when offenses are statutory, punishments regulated by statute, and no such authority of commitment is declared, it is a power not conferred, does not exist, and can not be exercised; though it is equally clear, the court, after sentence, may direct the detention of,a prisoner until he can be charged in execution. But commitment until the fine and costs are paid, is an addition to the punishment prescribed by law for the offense, and therefore illegal, and the judgment of the court, quoad hoc, must be reversed.

Judgment accordingly.