text:
    Oliver O. Brewer and Others v. The State of Connecticut.
    An appeal lies from a decree in chancery taken by consent.
    The failure of a purchaser of land to make payment of the purchase money for nine years after it became due, connected with an abandonment of the-land itself, will not be specifically enforced, but may be rescinded.
    Purchasers upon mere speculation, at a nominal price, do not commend themselves to the favorable regard of the court.
    Bill in Chancery. From Portage. The bill in this ease was-originally filed in the court of Common Pleas, and the cause was heard there upon the bill, answers, exhibits and testimony, and a decree rendered, by consent of parties, against the defendants. From this decree the defendants gave notice of appeal, and perfected the appeal "by bail, according to law. In the Supreme Court a motion was submitted by the complainants’ counsel, to dismisjs the appeal, and this motion, as well as the questions upon the merits of the ease, are now before the court. The facts of the case are so fully stated in the opinion of the court, as to render it unnecessary to recapitulate them.
    Kirkum, and Spalding, for the complainants,
    insisted that the appeal could not be sustained, inasmuch as the decree was by consent. 'That in such case the party against whom a decree was rendered, could not be aggrieved, and unless aggrieved, could not appeal. To sustain the motion to dismiss, they cited the following authorities. 8 Wend. 219 ; 2 Camb. N. Y. Dig. 496, 7, 8, 9; 1 Cow. 691; 5 J. Ch. 564 ; 6 Ohio, 530 ; 12 Johns. 534; Ambler, 229.
    Upon the merits of the case, they cited 4 Kent C. 6, 141, 158, 162, 163, 186 ; Wright, 249; 2 Story Eq. 287; Walker’s Introduction, 302, 303; 1 Vern. 232; 2 Vent. 364; 2 J. Ch. 30; 2 Cow. 324 ; 1 Murphy, 117 ; 5 Ohio. 346 ; 6 Johns. Ch. 402 ; 3 Johns. Ch. 316; 7 Johns. Ch. 40, 174; 2 Cow. 332; 1 J. Ch. 497; 1 Peters, 373; 1 Johns. Ch. 566 ; 4 J. Ch. 136; * 1 Vern. 138 ; 7 Cranch, 218 ; 2 Pick. 505 ; 1 Ohio, 519 ; 3 Ohio, 327.
    W. Silliman, J. Andrews, and Wolcott, for the defendants,
    admitted that by the rules of chancery practice in England and New York, the appeal could not be sustained, but they insisted that the case was clearly within the statute of this state regulating the practice in chancery. They cited 6 Ohio, 530.
    They argued the ease at great length upon the merits, and cited 7 Ohio, 2d pt. 73, 91; 1 Bridgman’s Eq. Dig. 42, 4, 38; 1 Ves. 686, 667 ; 5 Ves. 722 ; 1 Br. Par. C. 27 ; 2 do. 447; 1 Ball. & Beat. 63 ; 4 Pet. 34; 4 Eng. Ch. 404 ; 1 Maddox, 418.
   By the Court,

Hitchcock, Judge.

The motion to dismiss the appeal in this case, is founded upon the supposition that an appeal in ■chancery can not be sustained where the decree in the court below, and from which the appeal was taken, is entered by consent. That such is the ease in England and New York, would seem to be evident, from the authorities cited by the complainants’ counsel. But before these authorities can be considered as effective in this state, it must be shown that the laws of the countries where the decisions were made, are similar to our own upon the subject of appeals. This subject, •since the first organization of the state government, has been regulated in this state by statute. And when a question arises as to the propriety of sustaining an appeal, it is the duty of this court to, look to <our statutes, and if, by a fair construction of those statutes, the appeal can be sustained, we are bound to do it, regardless of the-practice in other states and countries upon the same subject. In construing these statutes, the same rules must be observed as in. construing other statutes, tho great object being to ascertain the-meaning and intent of the law, from the language therein used. And this court could not be justified in giving a forced construction to the language and phraseology of a statute, in order to make-file practice in our courts, either in law or equity, conform to the> practice of the courts in other states and countries.

As before remarked, the subject of appeal in judicial proceedings has been, in this state, from its first organization, regulated, by statute. And the right of appeal, both in cases at common law and in chancery, has been secured in almost every possible case.to the parties litigant. The principle seems to have been adopted as a general rule, that the decision of the court having original jurisdiction of the ^matter litigated, shall not be conclusive of the rights of'tho parties, if either desire to remove the case to a. superior tribunal. This is the policy of the law, and it is the duty oJ this court to give it effect.

The law regulating appeals in chancery, will bo found in section 55 of the act of March 10, 1831, “directing the mode of proceeding in chancery.” 29 Ohio L. 81. It is in these woi’ds : “ Any person, or the heirs or representative of such person, may appeab to the Supreme Court, from any final sentence or decree pronounced and made in any case or suit in chancery in the court of common pleas, on giving notice and security within the time required by law, in cases of appeals at law.” It is impossible for-me to conceive of language which could be more clear and explicit,., and which would secure to suitors more effectually the right of appeal. As to the extent of this right, there is no limitation, except that there sha,11 bo first a “ final sentence or decree pronouned.”' As to what amounts to a “final sentence or decree,” there may be some doubt and some room for construction. We have held that a sentence or decree, conclusive of the rights of the parties, is such “final sentence or decree.” But when this is ascertained, there is-no limit as to the right of appeal, nor room for construction with! respect to it. In order to sustain the position assumed by the-complainants’ counsel, we should be under the necessity of adding to the section quoted, a proviso, to the following effect, “that such-final sentence or decree’'' shall not have been pronounced or made by■< ■and, with the consent of the party appealing. This is beyond our power. And even were we inclined to do it, we could not in conformity with the practice heretofore adopted. It is true that there is no case reported in which the question has been directly made and decided, but we know that it has been the uniform practice to appeal from decrees so made, and to sustain such appeals. In fact it is not within my recollection, that the propriety of such practice has ever before been questioned. Although no case is reported in which the point is directly made and decided, yet in the case of White v. Bank of the United States, 6 Ohio, 529, the right of appeal in such cases is virtually recognized.

It is urged by the counsel for complainants, that the right of appeal from judgments at law, is as general as from decrees in • chancery, and that as this court do not sustain appeals from voluntary nonsuits, and from confessions of judgments, it ought not for the same reason to sustain appeals from decrees made by consent. So far as respects judgments by confession, there can not be Raid to be any settled practice of the court, but it is true that appeals are not sustained from ^voluntary nonsuits. And it is believed that such practice is in conformity with the pro•visions of the statute.

Section 108 of the act regulating the practice of the courts of law, allows appeals. It provides, “that in civil cases an appeal shall be allowed, of course, to the Supreme Court, from any judgment or decree rendered in the court of common pleas, in which such court had original jurisdiction.” 29 Ohio L. 56. This section, however, is not the only one in the act providing for an •appeal. In section 96 it is enacted, “that, in all cases where a nonsuit may he directed by the court of common pleas, by reason of irrelevancy of testimony,” etc., “the plaintiff shall have the -same right to appeal, as in other cases.” Now, if it was intended to give the right of appeal in cases of nonsuit by section 108, why was this provision made for a particular class of nonsuits in section 96 ? No good reason can be assigned for it. And taking the two sections together, I can come to no other conclusion than this, that it was not the intention in section 108 to give the right to appeal from any judgment except such as are final and conclusive upon the parties. Such not being the effect of a judgment of non-suit, as the plaintiff could commence another suit, he has not the right to appeal from such judgment by this section, but that right-is secured to him in the cases specified in section 96.

The provisions contained in section 96, befo re referred to, were first introduced into the statutes in February, 1813. 1 Chase’s St. 795. Previous to that time the right to appeal was secured to the parties in as general terms and in precisely the same words as in section 108 of the act of 1831. 1 Chase’s St. 711. And yet the Supreme Court had uniformly decided that an appeal could not be sustained from any judgment of nonsuit. This fact was well known to the general assembly. Still that body, possessing this knowledge, and acting upon this subject, made no other change than to provide that from a particular class of nonsuits an appeal might be taken. 2 Ohio, 87.

Under these circumstances, no valid argument can be drawn from the practice of this court relative to appeals in cases at law, to justify us in sustaining the motion of the oomjfiainant, and the same must be overruled.

Having disposed of the motion to dismiss the appeal, I will now proceed to consider the ease upon its merits.

The facts of the case, as disclosed in the pleadings and testimony, are as follows: At an early period, the precise time not known, *James Dailey purchased of Joshua Stowe, by contract, two tracts of land, in the township of Stowe, in Portage county, one containing 160 and the other 40 acres. Whether the two tracts were purchased at the same time, or were separate purchases, is uncertain. It is alleged by the complainants, that at one time Dailey had a deed for the larger tract, executed by the agent of Stowe, which was afterward redelivered or destroyed, but of this fact there is no sufficient evidence. The original price of the land is not ascertained by any of the proofs in the case, but it seems that payment, in part, was made from time to time, although there is no evidence as to the amount thus paid.

On July 8, 1825, a new contract was made between Stowe and Dailey, relative to the same land, by which Stowe agreed, upon the performance of the covenants therein contained, by Dailey to be performed, to convey to him the land. Dailey on his part covenanted to pay $310.29, as the purchase money; and to secure the payment, at the request of Stowe, to execute his bond to Isaae Spencer, treasurer of the State of Connecticut, for the use of the school fund of said state, conditioned for the payment of that money to said state, by September 2, 1827, with annual interest to-be computed from September 2, 1825. Dailey further covenanted to pay the taxes upon the land as the same fall due, to commit no waste, and to make no assignment of the contract without the consent of Stowe. It was further expressly stipulated that if Dailey should fail in the performance of any of' his covenants, then Stowo should be released from performance on his part. On tho day of tho contract, Daileys made the bond to tho treasurer of the-State of Connecticut, according to the stipulation. On the same day, Stowe being indebted to the State of Connecticut, proposed to deed ihe land, in the contract described, to the State of Connecticut, in part payment of said debt, subject to sajd contract with Dailey, and the agent of the State of Connecticut made an indorsement upon the contract to the effect, that if such conveyances should be made, and if Dailey should pay his bond to the-state agreeably to its tenor, then the said state would release to Dailey all her right and tíllelo said land. The making of this-contract, the indorsement on the same, and the execution of the bond, appear to have been parts of one and the same transaction, and the whole arrangement was entered into by Stowe, Dailey, and the State of Connecticut, by her agent.

In April, 1826, Stowe conveyed the land to the State of Connecticut, %nd received a credit equal to the amount secured by Dailey’s bond, and by that conveyance vested the legal title in the State of Connecticut. Stowe, at the same time, assigned over to said state his duplicate of the contract with Dailey. Dailey remained in possession of the land until 1826, when he died, leaving a widow, or a woman to whom.he had been married, and supposed to bo his widow, and a number of children. Administration was granted upon Dailey’s estate to one of bis children. No-part of the purchase money, of the interest, or of the taxes, was paid during Dailey’s lile, or by bis administrator or heirs, after-bis death.

In 1828, Leonard Case, acting as the agent of the State of Connecticut, and -having the bond of Dailey in his hands for collection, had an interview wiih the administrator and urged him to make payment. This tho administrator refused to do, assigning as reasons that tho estate was insolvent, that he had not tho means of paying, and that his co-beirs would not assist him to do it. At length an arrangement was made, by which Case agroed for the-State of Connecticut to pay the administrator $100, and the administrator agreed to give up the contract, and cancel the bond, which was done. The possession of the land was then abandoned. On September 1,1828, the land was conveyed by the State of Connecticut, to Orrin Gilbert, one of the defendants, who took immediate possession, and has boon in possession ever since, making large and valuable improvements. In its present improved state, it is worth from $5,000 to $6,000.

James Dailey, before removing to Ohio, was residing in the State of Virginia, with a woman supposed to be his wife, by whom he had three children, John, James, and Nancy, intermarried with John Moreton. This woman was living when he came to Ohio. In this state he married another woman, by whom he had several several children, and with whom he lived until his death. There is no proof that the Virginia children ever resided with their father in Ohio. No movement, so far as appears, was ever made by the heirs of Dailey, to make payment to the State of Connecticut, or to procure a title to the land. In Augast and September, 1836, one Oliver O. Brower procured separate deeds of release from James Dailey, of Virginia, John Dailey, of Coshocton county, Ohio, and Nancy Moreton, of Wayne county. The releasors claim to be the heirs of James Dailey, deceased, and release to Brewer all their interest in their father’s estate. The whole consideration of these deeds is $120. In October, 1836, Brewer tendered to Caso, as agent *of the State of Connecticut, $575, as the balance due upon Dailey’s bond to the state, and claimed a fulfillment of the contract between Stowe and Dailey, which had been assigned to the state.

The bill isfiled by Oliver O,Brewer, John Dailey, James Dailey, and John and Nancy Moreton, against the State of Connecticut, Joshua Stowe, and Orrin Gilbert. The prayer of the bill is that such of the defendants as have title to the premises be compelled to convey to Brewer, and to account for the rents and profits.

It is claimed lor the complainant, Brewer, that by his purchase, be is entitled to the whole interest which was vested in James Dailey at the time of his death, the other children of the decedent being illegitimate and incapable of inheriting from their father. If we were carefully to examine all the testimony in the case, there would perhaps remain some doubt upon this point, to say the •least of it, but in the view we take of the case, it is a point entirely immaterial.

The principal position assumed by the counsel for the complainant is, that the conveyance by Stowe to the State of Connecticut, was a mortgage, that the equity of redemption was vested in Dailey, and descended to his heirs. That “in equity the character •of the conveyance is determined by the clear and certain intention of the parties, and any argument in the deed or in a separate instrument, showing that the parties intended that the conveyance should operate as a security for the repayment of money,” will make it a mortgage, and give to the mortgagor the right of redemption, there can be no doubt. But was this a transaction of this kind ? It seems to me not. A contract was made between Btowe and Dailey, for the sale of these lands, for which a specified sum was to be paid. Stowe being indebted to the State of Connecticut, in part payment of this debt, assigned over this contract to the state, and conveyed to the state the land which was the subject matter of the contract, and the state on her part undertook to fulfill the obligations of Stowe — in other words to convey to Dailey when the purchase money should be paid. Dailey assented to this arrangement, and in fact made his bond to the state for the payment of the purchase money. In consequence of this arrangement, the State of Connecticut acquired all the rights of Stowe, and was subjected to all his obligations with respect to this property. And in deciding the ease, we must be governed by the same principles we would be, were the case between the representatives of Dailey and Stowe alone, or had the contract been originally made between the State of Connecticut and Dailey.

^Considering the case, then, as if it were between Stowe and the present complainants, or as if the contract had been originally made between the State of Connecticut and Dailey, what are the circumstances? On July 8, 1825, a contract was made by which Dailey agreed to purchase the land in controversy, for which he covenanted to pay the price stipulated, in two years from the 2d day of September then next ensuing, thereby fixing the day of payment upon September 2, 1827. He further agreed to pay the interest annually, and the taxes, and he also bound himself not to assign or transfer the contract without the assent of his vendor. That time was of the essence of this contract, is apparent, for it contained a stipulation that if the vendee should fail in the performance of any of his covenants, then the vendor should be released from performance on his part. Every one of these covenants have been violated by the vendee during his life, or by his representatives since his decease. Neither the purchase money, the interest, nor the taxes were paid in time; nor have they been yet paid. And the legal representatives, or pretended legal representatives of Dailey, have attempted to transfer his interest in the contract, contrary to his express covenant. True, in October, 1836, Oliver O. Brewer offei'ed to pay to Case the balance then duo the state, but Case denies that at that time he was the agent for the State of 'Connecticut. But admitting that he was the! agent, was this offer made in time? The first installment of interest fell due on September 2, 1826; the principal fell due on September 2, 1827; the land itself was abandoned by the representatives of Dailey, in the spring of 1828, and was sold to the defendant, Gilbert, in the fall •of the same year. This offer, then, was not made until more than ten years after the first payment of interest should have been made, more than nine years after the principal should have been paid, •and more than eight years after the land had been abandoned and the contract given up to the vendor. Under these circumstances it seems to us that there was clearly an abandonment of the contract, and that the complainants can not now set it up as against these defendants.

It seems to be thought, however, that in favor of heirs this contract should be resuscitated and enforced ; but it must be remembered that the heirs of James Dailey have no interest in this suit, or if they have, that interest is against the real complainant. For although three of the children of Dailey are named as complain•ants, Oliver O. Brewer has the'sole interest in the case. The prayer of the bill is, that a decree may be made in the case which would result to his benefit alone.

* For a mere pittance he has purchased from heirs, as he ■says, a property worth from $5,000 to $6,000. In order to enforce his claim, he would stigmatize the ancestor of those heirs as having been guilty of bigamy, and further would bastardize a majority of the children of' that ancestor. However anxious this court might be to protect the rights of heirs, it does not seem that this ■complainant is very desirous to do it, nor do we see that he is entitled to any peculiarly favorable consideration.

Bill dismissed.


source: Caselaw Access Project

author: Wood, J.

license: Public Domain

text:
    Jacob Ramsdall v. W. B. Craighill et al.
    By marriage the husband becomes the owner of his wife’s personal property? and if they unite in selling her realty, and receive the money, that is his-also; and if it is invested in real estate, and the title taken to himself, the-estate is his.
    The debts of a deceased person are a lien on the land of-which he died seized, in default of personal assets, whether devised or east by descent, which can only be removed by tbe payment of the debts or the lapse of time.
    An injunction operates from notice to the defendant, or its service.
    In chancery. From Huron. This bill seeks to quiet the complainant’s title to two hundred acres of land, in Danbury, Huron county. The facts of the case, as they appear in the pleadings,, exhibits, and evidence, appear (as well as they can be extracted from a mass of loosely drawn papers), to bo substantially these: Gabriel Yillard died intestate, leaving a widow, Josette, and three daughters, his heirs at law. The widow took out administraiion, and managed the estate for herself and children. She realized from the estate $900, $200 of which were adjudged to her under the law for her year’s support.
    After this, Mrs. Yillard and one Charles Bebo, went together to the land office in Bucyrus, and each purchased a tract of sixty acres of land adjoining, near Port Clinton. Shortly after this-they intermarried. Bobo and his wife sold these two tracts to General Lytle, in 1827, for $1,100, and Bobo then bought of tho complainant the tract in controversy for $900, and received a deed for it in presence of his wife and others. The deed remained in Bebo’s possession without being recorded at his death. Mrs. Bebo, though she expressed no dissatisfaction with the deed when interpreted to her, yet expressed some dissatisfaction before his death; and afterward’set up a claim, that the land sold to Lytle was in part purchased with *hcr money, and the avails applied to purchase of the complainant, the land in dispute, and should belong to her. She kept the deed in her possession till she died ; when John Yalicot, who had married one of her daughters, by Yillard, got possession of it, and delivered it up to the complainant. Mrs. Bebo, by will, devised all her real and personal ■estate to Yalicot and his wife, and they, claiming this land under the will, released to the complainant.

    The defendant, Craighill, was administrator of Bebo, and the heirs of Yillard obtained a decree against him in chancery, for their portion of their father’s estate, which' came into Bebo’s hands upon his marriage with their mother. The debts due by Bobo, with the amount of this decree, exceeded the amount of Bebo’s personal assets; and upon the administrator’s application, the court of common pleas ordered him to sell the land in controversy, for the payment of these debts. In pursuance of which order he sold to the defendant, Gallagher, who now sets up that 'claim. This sale took place two days alter the bill in this case was filed, and upon notice that Craighill was in possession claiming title; but it does not appear that process had been served. 'The sale has been approved by the court, a deed ordered, and the money paid.
    Boalt and Worcester, for plaintiff,
    insisted that he had good title and possession to the land, and .should be quieted. -They cited 8 Ohio, 1 pt. 170; 22 Ohio L. 130.
    D. Higgins, for the defendants,
    contended the estate was in Bobo, at his death, and that Craighill acquired no title by the release of Yalicot and wife, under Mrs. Bebo’s will. As to the sale 'to Gallagher, it must be hold valid, as the court, having jurisdiction of the subject, have ordered and approved. But, however that may bo, the plaintiff is a stranger to Bebo’s estate, and can ■not call the proceedings in question. If there were any trust in the land resulting to Mrs. Bebo, from her having paid part of the purchase money, it is only to one-half; and in that event, Bebo’s estate should be credited with advances for Mrs. Bebo’s debts, to her children.
   By the Court,

Wood, J.

The first question arising in this case is, what title has the plaintiff to authorize him to invoke the aid of this court to quiet him by injunction? When Bebo married Mrs. Yillard, he became immediately entitled to all her personal property. When he and his wife united in selling the land they held at Port Clinton, *the proceeds being personalty, by like operation of law, were his. With the money he purchased •of the complainant the land in dispute, and took a title to himiself, as he had a right to do. The legal estate being thus vested in him, he died seized, and it passed by descent to his heirs at-law, subject to the payment of his debts, and it made no difference, in this respect, whether the descent was cast upon his or any other heir. But it is said Bebo defrauded his wife in taking-a deed in his own name, and that, inasmuch as Tier money entered into the purchase, equity will declare the estate hers, or so much of it as was purchased with her means. The answer to the allegation of fraud is, that she was present when the deed was executed and received, heard it explained, made no objection to it, and must be presumed to have assented to its form. No objection from her was heard till some time afterward, when it was too-late to affect the right. It is true, Bebo, when she complained, said it should be conveyed to her, but nothing was done. This does not show fraud, nor does it evidence any original understanding, that she was to keep any portion either of the personal or real property. The plaintiff, then, must resort to some other ground to sustain his right; and he avers that Bebo left no heirs but-aliens, and as they did not appear to claim the estate, it vested in Ms widow, and by her will was passed to Yalicot and wife, and to-him by their release. This does not aid the plaintiff in the least, if Bobo’s estate was in debt beyond his personal assets; because-the debts are a lien on the land, let it be cast upon, or transferred to whomsoever it may, which could only be extinguished by their payment.

Fraud is also charged upon the administrator and the purchaser, Gallagher, in the sale by order of the probate court, but. there is no evidence to support the charge, nor in any way to impeach the fairness of these proceedings. It is further alleged that these probate proceedings were irregular and void, among other things, because the preliminary injunction in this case was allowed before the sale. Although that is true, yet as it was not served until two days after the sale, it could only operate upon the administrator from the time he received notice.

In any view we can take of this case, it seems to us very clear that the plaintiff has no ground for relief in equity, and the injunction must be dissolved. Bill dismissed.


author: Lane, C. J.

text:
    *Lessee of Joseph Creps v. David Wilkinson.
    The grant of lands by the United States for the Black Swamp road, did not pass lands sold on credit in 1817, the credit for which had been extended.
    Ejectment, for lot 93, in Perrysburgh. From Wood. The plaintiff shows a patent from the United States, for the lot, dated in 1834. The defendant traces his title to a deed from the governor of Ohio, to McKnight, in 1830. The authority to make this-deed depends upon the extent of a grant made by act of Congress to the State of Ohio, in 1823, for the Black Swamp road. By section 2 of that act, Swan’s L. L. 153, “ a tract of land one hundred and twenty feet wide, on which to locate the road, together with a quantity of land, equal to one mile on each side thereof, is granted to the state.” The third section of the same act provides, that “in case any of the lands, through which it may be thought expedient to open the road, may have been previously sold by the United States, the secretary of the treasury is directed to pay over the net proceeds of the sales of the quantity thus sold, at the minimum price.” Lot 93 was sold by the United States at the land sales in Wooster, in 1817, and one-fourth of the purchase money paid. The other installments not being paid, the land became liable to forfeiture. The defendant claims that it was forfeited, and being then the absolute property of the United; States, it passed to Ohio by this general grant, within the limits of which it is admitted to lie.
    J. Stetson, for the plaintiff.
    Coeeinberrx and Spink, for the defendant.
   By the Court,

Lane, C. J.

It will be remembered that when this lot was sold, in 1817, the credit system for the purchase money of public lands, was in operation. Our government had, at all times, been a lenient creditor. It has never been its policy to enforce the forfeiture of land against purchasers, with any degree of strictness. A system of relief laws was early adopted, and times of payment were extended by various regulations, until, the general act of March, 1821, abolishing all sales upon credit. By this act debtors for lands were classified, and a forfeiture not, exacted until a non-payment of three months after the times thus extended. Under these acts the rights of the purchaser of this lot were not extinguished until 1829. This arrangement Congress had a right to make; the land was liable to become forfeit, but Congress only could take advantage of the ^neglect of the purchaser, to divest' him of his title to the lands. By this act, the privilege was waived, and the forfeiture postponed until after the neglect to pay the last installment.

Such were the rights of the purchaser at the time of the grant to the State of Ohio. The terms of section 1 are lai’ge enough to embrace the lot in question; but section 3 relates to lots “which may have been sold,” and secures to the State of Ohio the net avails only of such lots at a minimum ¡Drice, implying that the land itself was not conveyed, but remained in the United States. The grant took its whole effect at its date, and conveyed only those lands “which had not been sold,” not those in which individuals had an interest, and which might afterward revert to the United States by forfeiture. At the time of the grant the United States recognized an interest in the original purchaser, which they assumed to protect, and evidently did not mean to convey to the state. Judgment lor the plaintiff.


text:
    Samuel Strong, for the use of C. Reed, v. S. R. Darling and S. B. Walcott.
    A contract for the sale of a town lot is valid, although the town has not been surveyed, platted, and recorded, according to the provisions of the statute.
    A statutory imposition of a mere penalty upon the performance of an act, does not necessarily vitiate the contract itself.
    Covenant. From Lorain. The suit is brought upon a sealed land contract between the parties, dated March 22,1836, by which the defendants “bind themselves, their heirs and administrators, to pay or cause to be paid to the plaintiff, his heirs, etc., the sum of $350, in manner following — that is to say, fiity dollars on July 1, 1836; $100 on April 1, 1837; and $100 annually thereafter until ■the whole sum be paid, with interest to be paid annually, etc.; and in consideration of the above payments being punctually made at ■the time and in the manner specified,” the plaintiff agreed and bound himself, etc., “to convey by warranty deed to the defendants, the following described tract of land,” etc. The suit seeks to recover the first two installments and interest upon the whole up to April 1, 1837. The defendants have pleaded non est factum, .and appended a notice, that by the agreement the plaintiff sold them an in-lot in the town of Black River, which was the consideration of their ^covenants declared upon; that when the covenants were made, the plat of said town had not been surveyed by the surveyor of the county or of any adjoining county, nor had a map thereof been made according to the laws of Ohio. The case was submitted upon an agreement that the facts set forth in the notice were true.
    E. S. Hamlin, for defendants.
    The policy of the law for recording town plats is opposed to any sale of lots, until a record of the plat is made. This sale is opposed to the scope of the law, ■and therefore can not be enforced. . It makes no difference that the act contains no express prohibition to such sale. Com. on Con. 66; 1 Taunt. 135 ; 6 Ohio, 24; 1 Kent C. 437; 1 Am. C. L. 365, and cases cited; 2 Rose’s Bank Cases, 351; Wright, 150, 749
    No argument was submitted for the plaintiff.
   By the Court,

Wood, J.

Do tbo facts set forth in the notice annexed to the defendants’ plea bar the plaintiff’s action? Section •6 of the act referred to in the notice, 29 Ohio L. 350, provides that all proprietors of lots or grounds in any city or town corporate in this state, who have subdivided or laid out, or who shall subdivide and lay out the same in lots for sale, shall cause accurate and true ■maps or plats thereof to be made and recorded in the 'office of the recorder, in the county in which such town or city may be situated, etc.; and section 7 enacts, that if such proprietor shall sell any lot in any plan or subdivision of, or addition to, the lots originally laid out in said town, before a map of such subdivision or .addition shall have been so recorded, he shall forfeit and pay to the state for the "use of such town, the sum of fifty dollars, with ■costs for each lot sold, etc. It is argued for the defendants that the plaintiff can not recover upon this covenant, because it violates the act referred to, which is a penal statute. A question in strict analogy with this has been decided in England, which seems to the court to settle the present case. By the 29 George III, 68, it is enacted that every person who shall deal in tobacco, shall, before he shall deal therein, take out a license, and renew the same annually, under a penalty of fifty pounds. Suit was brought to recover the value of certain tobacco sold by the plaintiff, who had no license. The defense was that his want of license vitiated the contract of purchase, but the court held, that inasmuch as the statute did not declare a sale made under such circumstances illegal, the-sale, at most, was a violation of a mere revenue regulation, ^protected by a specific penalty, and the plaintiff had judgment. 11 East, 180, 299. We think the facts set up in this case do-not bar the plaintiff’s action. Judgment for the plaintiff.