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    David Randall v. John Pryor.
    The statutory provision that a decree for a deed may he made operate as a conveyance does not take away the jurisdiction of the court to enforce the execution of a conveyance by process of attachment.
    Motion to discharge a rule taken upon the defendant to show cause why process of contempt should not be issued against him; and was adjourned for decision from the county of Belmont.
    It app eared, that at the October term of this court, 1829, a final decree, in chancery, was rendered against Pryor, and in favor of Randall, by which, among other things, it was decreed that Pryor, within thirty days thereafter, should execute and deposit with the clerk, for the benefit of Randall, a deed of release in fee ¿imple, for certain lands, with covenants of special warranty. Pryor having neglected and refused to comply with this decree, a rule was taken upon him at the May term of this court, 1830, to show cause why an attachment should not issue against him for contempt. Upon this rule Pryor appeared and submitted the present motion.
    There was no argument in favor of the motion.
    Hubbard and Johnston, contra:
    1. The court have so decreed.
    2. By a specific execution of the decree, Randall would have a conveyance which could, without question, be admitted to record, and by which, in due form of law, ^notice should be given to the world of his title. Rev. Code, 283.
    3. Randall must otherwise incur the expense of the chancery record.
    4. Randall, upon a failure of title, would have a more beneficial and direct remedy upon the covenants.

      5. Randall has a right to the performance of the decree, and the court having the power,, will, in respect of its own dignity, enforce the decree. Const., art. 3, sec. 1; Rev. Code, 15, secs. 1, 2, 40, 42; 1 New Prac., ch. 3, sec. 1; Harrison Ch. 199, 201.
   By the Court :

There is no doubt of the general power of the court, to enforce its decrees by attachment. The statute, vol. xxii. 80, sec. 40, gives this power in so many words. The only question is, whether the legislative provision, making a decree for the conveyance operate per se, as a conveyance, does not take away the power of the court to enforce the specific execution of such a decree by attachment.

It was not the intention of the legislature to discharge the party, against whom such a decree might be rendered, from the actual execution of the deed. The provision was not intended for the benefit of the party, who had agreed to execute a conveyance, and who, by neglect or refusal, compelled the other party to resort to a court of equity for a specific performance. The object of the legislature was, to furnish an adequate remedy, in that class of cases, where the procedings were in rem, and where the court could not enforce personal obedience to its decrees, for want of jurisdiction over the person. It is true that the ¡erovision in question embraces all cases where a decree for a conveyance is rendered ; but the party has an option, either to rely upon the decree, as a conveyance, by act and operation of law, or to enforce the actual execution of a deed, where the person of the defendant is within the jurisdiction of the court.

Whether in the event of a failure of title, the remedy of a grantee would not be more plain and simple upon a deed with covenants, than upon a decree, the court do not intend to intimate an opinion. The general power of the court to ^enforce its decrees, is not limited by any statutory provisions; and we see no reason, in this case, why it should not be exercised.

Motion to discharge is overruled.


source: Caselaw Access Project

author: By the Court :

license: Public Domain

text:
    Robert Fulton v. William Monahan.
    Where defendant justifies breaking plaintiff’s close and carrying away stone, under the act of Congress for constructing the National road, the plea must aver and set forth the facts that constitute the necessity for such an invasion of private right, or it is bad.
    This was an. action of trespass, guare clausum firegit, and was reserved from the county of Muskingum.
    The defendant justified, under the act of Congress, passed May 15, 1820, and March 3, 1825, establishing a National road through the State ot Ohio, and, in his plea of justification, alleged, that the National road had been laid out, near the close in which, etc.; and that, in the construction of said road, it was necessary to make use of certain limestone, within the close in which, etc.; and that the defendant, as the servant, and under the direction and authority of the government of the United States, broke and entered said close, and took, and carried away said limestone, and used the same, in the construction of said road, and for no other purpose.
    To this plea, the defendant demurred generally.
    Adams and Stillwell,
    in support of the demurrer.
    Culbertson, contra.
   By the Court :

The plea does not set forth, with sufficient certainty, the authority under which the defendant professes to have acted. The government necessarily acts by its officers ; and whenever an individual undertakes to justify a trespass, under the authority of government, that authority must bo traced to some officer of the government, known and recognized by law as such.

*The defendant, however, in this ease seems to have rested his defense principally upon the grounds that the National road had boon located near the plaintiff’s close, and that stone were necessary in the construction of that road. Admitting these grounds^ it by no means follows that it was necessary to use the plaintiff’s stone. If he chose to rest his defense upon the necessity of using the plaintiff’s stone, he ought to have set forth the facts, that the court might judge of the necessity, A man may justify going over another’s ground, by reason that the common highway is founderous, or out of repair; but, in his plea of justification, it is not enough to say, that it was necessary for him to go upon the adjacent land, but he must allege specially, that the highway was out of repair, or founderous. Doug. 747; 1 Saund. 298; 1. Story’s PL 607.

Demurrer sustained.


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    The Town of Marietta v. Henry Fearing.
    Incorporated towns within this state can not subject stray animals, owned by persons not residents of such towns, to their corporation ordinances.
    Error to the court of common pleas of Washington county.
    An action of debt was commenced before the mayor of the town of Marietta, to recover a penalty for the violation of an ordinance of said town, to restrain horses from running at large. From the decision of the mayor, the defendant in error appealed to the court of common pleas. The plaintiffs in error set forth, in their declaration, their charter of incorporation, by which, among other things, it appealed that they were authorized and empowered to establish such ordinances and laws, with such penalties annexed, as to them might seem proper and necessary, for the health, safety, cleanliness, convenience, morals, and good government of saicl town, and the inhabitants thereof; and to cause the streets and commons of said town to be kept open and in repair, 428] and free from every kind of nuisance, and to require *and compel the abatement of all nuisances within the corporation: Provided, all such ordinances and laws should be consistent with the constitution and laws of this state and of the United States. Under these powers, the plaintiffs, on April 7, 1825, established an ordinance, by which'it was declared to be unlawful tor any horse to be suffered to run at large on the streets, commons, or vacant or uninclosed Jots, within said town, between the 10th of April and the 1st ot December of each and every year; and that if the owner or keeper of any horse, mare, etc., should suffer the same to run at large, contrary to the provisions of this ordinance, the person or persons-so offending should forfeit and pay, for the use of said town, a sum not exceeding two dollars for each offense, to be recovered before the mayor. This ordinance was duly published. The defendant, disregarding said ordinance, permitted his two mares and one colt to run at large, on the streets and commons of said town, during the time prohibited in said ordinance.
    To this declaration, the defendant pleaded, that before and at the time when, etc., the defendant did not reside within the limits of the town of Marietta, but resided upon a tract of land adjoining said town, and through which tract of lands, there run a public highway, leading from said town of Marietta to the town of Belpre; and between which and the commons of said town of Marietta, there was no fence or barrier; and that at the time when, etc., the defendant turned said two mares and colt from his fields, part of said tract of land, into the said highway, whence the said mares and colt, without any other permission of the defendant, strayed upon the commons, in the declaration mentioned, and remained there without the defendant’s knowledge, which is the same running at large complained of, etc.
    To this plea, the plaintiffs demurred generally. The court below overruled the demurrer, and gave judgment for the defendant, to reverse which, this writ was prosecuted, and the common error assigned.
    *Nye, for plaintiff in error:
    Aggregate civil corporations are distinguished, generally, into public and private. To the last, the power of making reasonable by-laws, for the good government and benefit of the place, is, from the very nature and purpose of their being, incident. 4 Wheat. 668; 1 Salk. 142; 2 Bac. Ab. 8; 1 Bac. Ab. 545, 546, 550; 1 Cowp. 270.
    It has been said, by high authority, that the whole government of the country is a series of corporations. Hence, it is said that a by-law may be prceter the general law, though not contra. 1 Bac. Ab. 651.
    As civil communities, for political purposes, there are attached, in a qualified degree, to public corporations, the rights of domain and security, and those which flow from them. These rights and immunities, whether ample or limited, are, in this respect, perfect; and are no more legally exposed to infraction, with impunity, by strangers than citizens. 2 Yattel, ch. 4, sec. 49.
    Strangers coming into a corporation must, at their peril, take notice of the by-laws of such corporation. 1 Bac. Ab. 550; Skin. 350, pl. 19; Lutw. 404.
    It is not necessary to set forth in a by-law, the reasons for its enactment. Carth. 482 ; 1 Bac. Ab. 545 ; 3 Burr. 1838.
    The defendant was bound to take notice of the law of the corporation, and having knowingly and voluntarily permitted his horses to run and remain at large within its jurisdiction, he is liable to the penalty inflicted by that law. .
    H. Stanbery
    submitted an argument on the other side.
    Goddard, contra:
    The question of law supposed to be raised by the plaintiff’s demurrer, to the defendant’s amended pleas, is this :
    Has the corporation of the town of Marietta power to fine a stranger, owning lands contiguous to said town, whose horse, lawfully grazing on his own land, strays into said town; between which and the land of said stranger, there is no barrier ? This is 430] the substance of this dispute. If stated *too narrowly, a recurrence to the plea will correct this error.
    The defense to this action is founded mainly on section 12 of the act relating to stray animals. Vol. xxii. 359. I think it will be conceded that this statute would effectually prevent the town of Marietta from taking up Paul Fearing’s old mare (who has run on these commons from the time whereof maq’s memory runnneth not), except as a stray, and in the manner pointed out by the stray act. Indeed, such was the decision of this court in the case of David Putnam’s sheep, which- induced the town of Marietta so to alter that law, as to take away its operation in rem, and seek to enforce it in personam. I claim that their present ordinance is repugnant to the spirit of our public statutes.
    It is proper here to inquire into the true intent and meaning, reason and spirit, of section 12 of the stray act, and of the “ act defining a lawful fence,” etc. — p. 240. The common law doctrine upon the subject of a close, surrounded by an ideal, invisible fence, leads to consequences wholly irreconcilable with the use and enjoyment of real estate, in a new, sparsely settled country. Take this case for illustration. It has been decided that the owner of land over which a road runs may maintain an action of trespass against his neighbor, whose cow grazes by the side of the road. Adhere to the common law doctrine, and this court must decide that hogs eating mast in the woods subject their owner to an action, or to a thousand actions, in favor of the owner of the soil, an injury notremedied by section 58 of the judiciary act, relative to tender of awards. The provisions of the two first statutes to which I have called the attention of the court, are intended to modify the common law in this respect.
    I hold that the “ act defining a lawful fence,” etc., provides, in effect, what shall be a close ; and that no action will lie, for an injury done to land by the animals there named, unless the land be inclosed by the kind of fence there defined to be “ lawful.” This act, by implication, proclaims it to be lawful for the animals of A. to graze on the land of B., which is in fact uninclosed.
    Some further legislation was, however, thought necessary. The legislature were in the habit of incorporating *towns, giving them extensive powers; and it was desirable that those powers should not be so construed as to interfere with the sound principles of public policy, which the legislature had adopted. They had already, as I have argued, pronounced it lawful for a man’s animals to graze on another’s uninelosed land. While doing so, they might stray into a corporate town; and it was necessary, in pursuance of the same policy, to guard the owner from the vexatious operation of town ordinances. Section 12 of the stray act was intended to effect this object; and when we have learned the intention of the law-maker, we have that, rather than the words, to guide us. This section, it is true, in terms only, prohibits towns from “taking up and dealing with ” animals; but is any one so blind as not to see, that enforcing a penalty against the owner of the animal is the same thing? I only ask for the application of the common rules laid down for the construction of statutes.
   By the Court :

It is a general rule of law, that strangers, as well as citizens, are bound by the ordinances and by-laws of a corporation. Strangers visiting a country are bound by the laws of its sovereign. 1 Vattel, ch. 4, sec. 49. Strangers coming into a corporation. must, at their peril, take notice of the by-laws of such corporation. 1 Bac. Ab. 550; 1 Cow. 269. A by-law of a city is binding upon strangers coming within the territorial limits of the city. 6 Pick. 187. These principles prevail in all well-organized governments, and the experience of ages has proved their practical utility.

• But do these principles apply to the present case? The statute concerning stray animals, vol. xxii. 343, after pointing out the mode in which animals running at large may be taken up and disposed of, provides, “ that nothing in the act for the incorporation of towns, and toothing in any special act for the incorporation of any town or village in this state, shall be so construed as to authorize the making of any by-laws or ordinances, or to enforce the same, of any such town or village, which shall subject any animals, the property of any person not residing within the limits of such town or village, *to be taken up and dealt with in any other manner than is provided for in this act.” We consider this a decisive expression of the legislative will upon this subject; and it was intended to subject non-resident owners of animals to no further liabilities for strays than those imposed by the act. It removes no difficulty to say, that the ordinance of the town of Marietta operates, not on the animals, but on the owner,dn the shape of a penalty. It infringes the spirit of the law, and is repugnant to its policy. That can not be done indirectly which the law prohibits to be done directly. An ordinance of an inferior corporation, in violation of a public statute, is necessarily void.

But this statute was passed after the town of Marietta was incorporated, and it is to be inquired, whether it is competent for the legislature to modify or restrict its charter without its consent. In this respect there seems to be a well-settled distinction between private and public corporations. In the case of Dartmouth College v. Woodward, 4 Wheat. 518, the Supreme Court of the United States held, that a private corporation is a contract between the government and the corporation, and the legislature can not repeal, impair, or alter the rights and privileges conferred by the charter, against the consent, and without the default of the corporation, judicially ascertained and declared. But a public corporation, created for the purposes of government, can not be considered as a contract. We adopt the rule laid down by the late Chancellor Kent upon this subject. 2 Kent’s Com. 245. “ In respect to public corporations, which exist only for public purposes, as counties, cities, and towns, the legislature, under proper limitations, have a right to change, modify, enlarge, or restrain them, securing, however, the property, for the uses of those for whom it was purchased.”

Upon the whole, we are of opinion that the legislature reserved the power to prohibit corporations from interfering with animals running at large, where the owners are non-residents of the corporation ; and that this power was virtually exercised by the passage of the statute.

Demurrer overruled.


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    * James Miller v. John A. Fulton and others.
    Where a tenant is in actual possession of a water grist-mill, and of the lands adjoining, on a contract indefinite as to time, and on a rent of a portion of the proceeds of the mill, the landlord can not maintain trespass against a stranger for destroying the mill-dam.
    This was an action of trespass guare clausum fregit, for tearing down the plaintiff’s mill-dam, situated on the Scioto river, in the county of Ross. A verdict was found for the plaintiff, under the plea of the general issue, in the Supreme Court, and a motion for a new trial was submitted, and reserved for the 'decision of this court. Numerous questions were presented by the record, but the opinion of this court was limited to the question of the plaintiff’s possession of the locus in guo ; the statement of facts is, therefore, confined to the same point.
    John Outright, a witness for the plaintiff, stated that at the time the trespass was committed, and for several years before, the complainant was the owner of, and in possession of a small tract of land, situated on and bounded by the western bank of the Scioto river, in Ross county, on which tract of land there was a water mill, a small dwelling house, and a corn house; that no part of the tract had ever been tilled or cultivated; that some ten or twelve years previous, a dam had been erected from the mill across the river, and which abutted against the eastern bank of the river, on a tract of land formerly owned by one Hough, who also had a mill supplied from the same dam. The breach in the dam, for which this suit was brought, was between the east bank and the center of the river. That for two or three years prior, the plaintiff had repaired the whole dam every spring. That he, the witness, at the time the breach was made in the dam, was running the plaintiff’s mill, as his miller, and he and his family occupied the dwelling house and the corn house, situate on the mill tract, near the plaintiff’s mill. That he, Outright, hired hands to assist him in running the mill, and paid them out of the proceeds of the mill. That he provided lights for the mill, and was not bound to grind for the plaintiff more than for other persons. That he had the entire management of the mill, as a miller, to work her; that he had a right to do as he wished with her; he used the tract of land on which the mill stood, or a part thereof, for *pasturage; that he was to retain one-third of the proceeds of the mill for his services, as miller, etc., and give the plaintiff two-thirds; and that no time had been fixed for the termination of the contract between himself and the plaintiff.
    Joseph Hawkes- also testified that Outright and one Veal were ' in possession of the mill, at or about the time of the trespass.
    It was admitted that at the time of the trespass, the plaintiff resided in the town of Chillicothe, one or two miles from the mill.
    Eing, Allen, and Leonard, for the motion.
    Murphy and G. Swan,
    against it.
   By the Court :

The evidence in this case proves beyond a doubt that Outright was a tenant of the plaintiff, and had the possession in fact of the premises at the time the trespass complained of was committed. A special contract had been entered into, by which Outright was bound to pay to the plaintiff two-thirds of the proceeds of the mill. Under this contract, Outright took actual possession of the mill and its appurtenances, and employed and paid his own laborers, in conducting the business of the mill. The same relation of landlord and tenant existed between Outright and the plaintiff, as between any other tenant who is bound to yield one-third of the crop, and the owner of the soil.

It is no longer an open question, whether trespass guare clausum fregit can be supported by the lessor, for a wrong done by a stranger, while the tenant has the actual possession. 1 Chitty’s Pl. 161; 1 Johns. 511; 3 Sorg. & Rawle, 514.

New trial granted.


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    *John Dob, ex dem. David Gwynne, v. Richard Roe. The Same, ex dem. George Morris, v. The Same.
    Where landlord proposes to he made defendant in ejectment, and tenants for years under him do not, plaintiff can not insist upon joining the tenants.
    These actions were brought in the Supreme Court of Hamilton county to recover the possession of certain lots in the city of Cincinnati.
    Declarations were duly served upon the tenants in possession. At the appearance term, William Harmer and others, heirs at law of Josiah Harmer, moved' the court to be made defendants in the place of the casual ejectors; and, at the same ti me, presented a petition to remove the causes to the next Circuit Court of the United States for the district of Ohio.
    ' It appeared that the value of the premises in question was greater than five hundred dollars, exclusive of costs; that the lessors of the plaintiffs were residents of the 'State of Ohio; that the persons upon whom the declarations were served were tenants for years under the said William Harmer and others, who were owners of the fee, and bound by their covenants to sustain their said tenants in the quiet possession of the premises; and that the said William Harmer and others are citizens and residents of the Commonwealth of Pennsylvania. Bonds with security were entered in pursuance of the act of Congress. Vol. ii. 60.
    The decision of these motions were reserved for the special session.
    Caswell and Starr, for the motion:
    We understand the plaintiffs to contend that they have a right to insist that the tenants shall be made defendants with the landlords, and having thus mado the tenants parties to the record, the federal court will be ousted of its jurisdiction, inasmuch as all the parties will not, in that evont, be competent to sue in that court,

      The plaintiffs concede that unless they have a right to insist upon the tenants being made parties, that the present defendants have a right to remove their causes for trial to the Circuit Court of the United States.
    *They, however, contend that the court, in the exercise of its discretion, can interpose such parties as shall, in effect, defeat the operation of our own statute and the act of Congress. This position, as it is sought to be applied, we utterly deny. We say that the rights of those who apply to be made defendants, and remove their cause for trial to the circuit court, are matters of positive legislation..
    The court, in examining this' question, will constantly bear in mind that these applications were made by the owners of ithe fee, and not by the tenants.
    The heirs of G-eneral Harmer, having acquired the property in controversy by descent from their ancestor, ask the court to permit them to defend their title, in the place of the casual ejector. This granted, they ask that their cause may be tried in the federal court, because they are citizens of the State of Pennsylvania, and the plaintiffs are citizens of the. State of Ohio. Have they a right thus to defend their title and possession ? We think they have. Section 59 of the practice act (22 Ohio L. 60) provides: “That no plaintiff shall proceed in ejectment, and recover any lands or tenements against any casual ejector, without ten days’ notice being given to tenant" in possession (if any there be) — and it shall be lawful for the court, on application for that purpose, to make the tenant, or landlord, or both, or any other person claiming title to the premises, defendant in the place of the casual ejector.” Section 60 of the same act provides: “ That the plaintiff, on affidavit of the delivery of the declaration of ejectment, shall have judgment against the casual ejector, unless the tenant in possession, or landlord, or some other person, shall apply to be made defendant, and enter into the common consent rule, within the term to which the tenant had notice to appear.”
    According to the provision of this statute, the tenant in possession had a right, when suit was brought, to appear and make an application to defend his possession, under the title of his landlord, and the court having satisfactory evidence that he was a tenant in possession, would be bound to admit him as a defendant. *If he does not choose to appear, he may give notice to his landlord of the pendency of the suit, and call upon him to defend his possession.
    If the court are satisfied that he has a claim to the property, and he applies to defend that right and the possession of his tenant, they are bound to permit him to do so, and any other person claiming title to the premises has a right to demand that a judgment shall not be entered against the casual ejector without a trial of the right of the plaintiff to the possession of the property lor which the suit is brought.
    In the cases before the court the tenants do not apply to be made defendants, but relying upon their covenants for quiet and peaceable possession, they give notice to their landlord, as they were bound to do, and they appear at the bars of the court, and showing their interest, ask to be made defendants upon the usual terms. Under these circumstances, is it competent for the court to enter a judgment by default against the casual ejector? The petitioners in this case have adopted the usual mode of proving their interest.
    They have made oath that they are the owners, in fee, of the premises, and are in possession by their tenants, whose possession they are bound by their covenants to defend.
    They have in all things complied with the provisions of the act of Congress authorizing them to remove the causes. . This point is not disputed.
    The defendants insist that the court have no power to compel the tenant or any other person to make himself a defendant — that there is no process known to the law which will compel the tenant to appear, and the landlord can not substitute the name of the tenant for that of the casual ejector, and subject him to costs without his consent; and if he should so enter it, the tenant might apply to the court and have it stricken out. If no person will appear and make himself a defendant, within the provisions of the statute and the practice of the courts, it is the duty of the court to render judgment by default against the casual ejector. This is the utmost limit of the power of the court. Can this power be exercised, consistent with the law; where the owner of the *fee appears, complies with the provisions of the law, and asks to defend his title?
    We think the statute too plain to admit of any reasonable doubt, and if we resort to the common law and the practice of the courts, we shall find that the right of the landlord thus to defend his possession has been uniformly sustained.
    I have already observed that the defendants are strictly within the terms of the act of Congress, and have complied with all its conditions. It is not deemed necessary to recite the act; it will be found in 2 Laws of the United States, 60.
    Wo admit, to establish our right to remove these causes into the federal court, we must show that all the defendants have a right to be beard in that court.
    If the interests of the defendants be joint, all must have a right to sue or defend in that court, or the cause can not be removed from the state court. This position is fully established in the following cases: 3 Cranch, 267; 1 Wheaton, 91; 5 Cranch, 303; 8 Wheat. 451, 1 Paine, 410; 1 Dunlap’s Prac. 232; 1 Kent’s Com. 324.
    But we contend there is not, from necessity, any joint interest between landlord and tenant. They may or may not both be interested to retain the possession. There is no unity of interest within the meaning of the law.
    In order to be within its spirit and meaning, their interests must be such that the one can not sue or defend without the other. No such interest exists between landlord and tenant. They may unite in their defense or not, at their pleasure.
    It is contended by the plaintiffs that after they shall have recovered in their action ot ejectment, they can not recover the mesne profits of the non-resident landlord, and therefore they have a right to insist that the tenants shall be made defendants. Non sequiter.

    Suppose neither the landlord nor tenant appears to defend, and judgment is taken against the casual ejector, how will the plaintiff recover the mesne profits then?
    The learned gentlemen who oppose these applications are too deeply versed in actions of this kind not to know that after a writ of possession is executed they can maintain *their action of trespass, and recover the mesne profits of any person who has been in possession of the premises.
    It is not necessary that the tenant should be made a defendant, in order to enable them to recover from him the mesne profits, and any damage sustained by waste.
    The only difference which would exist between the case of a judgment, by default, against the casual ejector, and the judgment on trial, where the tenant is made a defendant, would be in the proof necessary to sustain the action of trespass.
    In the one case, the record would prove it, for all the time covered by the declaration in ejectment, and in the other, the plaintiff would be compelled to prove that the defendant in the action of trespass had been in possession.
    But the right of these petitioners is not to be defeated in order to save the plaintiffs the trouble of making that proof. The court have no discretion upon this subject. As we have before observed, the rights of these defendants, if they have any, are the result of positive legislation.
    If the reasoning of the plaintiff’s counsel be correct, a non-resident proprietor can never try his cause in the federal courts without first abandoning his possession.
    If he put a tenant upon the premises, he can not have the aid of the federal court to sustain his title.
    Of what value would a recovery be to him in the federal court? He brings his suit as he has a right to do (being out of possession), in the federal court. He establishes his title; a writ of possession issues; he is put in possession under it; he then leases his land to tenants. His opponent then brings suit in the state court to regain that possession. He serves his declaration and notice upon the tenants. The landlord can not defend in the federal court because, forsooth, he did not abandon the possession awarded to him by the federal court. The state court is unfavorable to his claim, and renders a judgment against the casual ejector, because the tenant does not choose to defend, and they will not admit the landlord to appear without him; and thus the means used by him to render his title secure, and his former recovery valuable, are made the ground of defeat by the state court.
    *We have as much confidence in, and are as justly proud of the independence of our state tribunals, as our learned opponents.
    But we can not surrender the rights of our clients without a struggle. We think it as much the duty of the state courts to surrender their jurisdiction to the federal tribunals, in those eases clearly provided for by the law and the constitution, as it is to exercise it in cases within their own jurisdiction.
    If we are correct in the construction we have given to the laws of' Congress and of the state, the court will accept the bond and order the causes to be removed for trial to the next Circuit Court ■of the United States for the district of Ohio.
    C. Hammond, contra:
    These cases present for the consideration of the court a single •question, which is thought by the plaintiffs’ counsel to stand free from any difficulty. Both cases involve the same point. The lessors of the plaintiffs claim, in separate rights, certain property, upon which the tenants in possession have leases for a term of years. Aaron Yalentine for a term of ten years, Duncan McCoIlom for the term of ten years, Jedediah Banks for the term of ten years, and. J. U. Phillips for the term of ten years. Each of these leases- are for separate parcels of the land in controversy.
    Josiah Harmer and others, purporting to be the lessors in these leases, come into court upon the return of the ejectments, and move to be admitted defendants, in place of the casual ejectors, and claim to be so admitted, exclusive of the lessees’ tenants in possession. The Harmers are citizens of the State of Pennsylvania, and with their motion to be admitted sole defendants, they prefer a petition to remove the causes to the Circuit Court of the United States. The question for decision is, have the applicants a right to be admitted exclusive defendants, under the circumstances of the case ?
    The laws of Ohio, vol. xxii. 62, sec. 59, provides that “it shall be lawful for the court, on application for that purpose, to make the tenant, or landlord, or both, or any other person ^claiming title to the premises, defendant, in the place of the casual ejector.” This law submits the question of admitting defendants to the sound discretion of the court. What is a legitimate exercise oí that sound discretion in this case?
    The object of the applicants is, by being admitted sole defendants, to oust this court of jurisdiction, and take the cause to a tribunal of thfeir own preference. The first consequence of' indulging them is, that the plaintiffs, supposing them to recover, are compelled to look to the applicants for their mesne profits, instead of the parties in actual possession. The plaintiffs claim that the court ought not to compel them to accept of any responsibility for mesne profits which substitutes others for the tenants in possession, to whom they might prefer to resort. They claim, further, that the court ought not to compel them to accept as defendants, residents oi another state, against whom no redress in action for mesne profits can be had in this state unless they please to appear. The plaintiffs, if they recover in ejectment, ought not, by the act of the court, in admitting defendants, to be driven to seek their mesne profits in a distant state. The plaintiffs claim that the avowed object of the application is one which is entitled to no favorable consideration. It is the peculiar and the exclusive province of the state courts to settle the rights of property within the state. The federal courts expressly and fully recognize this, and conform their decisions to those of the states. This, then, is an attempt to draw the decision from the appropriate tribunal to one that confessedly follows it in its decisions. Ought this court to aid parties in the perfecting such an object ?
    The English statute, upon this subject (11 G-eo. II., c. 19, s. 13), made it lawful for the court to admit the landlord to join, as defendant, with the tenant, or to be made defendant by himself. There is more verbiage in the English statute than in ours. But their provisions are substantially the same. Very soon after the enacting of this statute, Fairclaim, Lessee of Fowler, v. Shawtelle, 3 Burr. 1290, 1304, it was admitted in the king’s bench that this statute was but an affirmance of the practice of the courts. Since the statute the English courts, in admitting defendants, have been careful to establish the practice that was calculated *to protect the interests of all concerned. And we hold that our court should act upon similar principles.
    The lessees in this case, who are the actual tenants, have a direct and permanent interest. They only are entitled to the present possession. The persons claiming to be exclusive defendants, could not dispossess them. But by colluding with a plaintiff, if permitted to' make the entire defense, this could be effected. Nothing short of an express refusal of the lessees to be made defendants, would warrant the court in substituting the applicants, even if the plaintiffs did not object. We deem it unnecessary to enlarge upon this matter.
   By the Court :

Upon service of a declaration in ejectment, if no application be made to the court by the tenant, or other person claiming title, for leave to defend, a judgment by default passes as of course; and the court have no power to compel the tenant in possession, or any one else, to make a defense. By section 59, of the judiciary act, a discretionary power is vested in the court to admit the tenant, landlord, or other person claiming title, upon application being made to the court for that purpose. In these cases the tenants are not before us. They make no application to be admitted defendants, either severally or in conjunction with their landlords; and it is out of the power of the court to compel them, nolensvolens, to undertake the defense. The application is made by the landlords alone, and having exhibited a prima facie right, they must be admitted as defendants. The landlords being admitted as defendants, and showing themselves citizens and residents of the Commonwealth of Pennsylvania, are entitled to the privileges of the act of Congress ; and the cases are accordingly certified to-the Circuit Court of the United States;


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    *Cincinnati Water Company v. The City of Cincinnati.
    Where a plaintiff recites a special title in his declaration conducing to his cause of action, as an ordinance of a city corporation, he must set it out in terms.
    This was an action on the case, reserved from the county of Hamilton.
    The declaration alleged that on March 31, 1817, the town council of the city of Cincinnati, by their certain ordinance, granted to the Cincinnati Manufacturing Company, their heirs, successors,, and assigns, the exclusive privilege of conveying water, by tubes or otherwise; from the Ohio river, through the streets, alleys, etc., of the city of Cincinnati, for the purpose of supplying the inhabitants, etc., for the term of ninety-nine years, upon certain terms, in said, ordinance expressed. That on March 18, 1820, the-Cincinnati Manufacturing Company duly assigned all their interests and privileges, acquired under said ordinance, to one Samuel W. Davies, who, with his associates, on January 7,1826, were duly incorporated under the name of the- Cincinnati Water Company. That the Cincinnati Water Company thus acquired the exclusive privileges so granted by the city, and became possessed of all the buildings, machinery, pipes, reservoirs, etc., of the Cincinnati water-works, and became and were the owners, and were possessed of divers pipes, etc., located in divers streets, alleys, etc., which were particularly specified and described in the declaration. That the Cincinnati Water Company being so possessed, ■etc., and enjoying great profits, etc., the city of Cincinnati, not ignorant of the premises, but contriving and intending to injure and oppress the Cincinnati Water Company, and to deprive them ■of' the profits, etc., and to put them to a great expense in removing and replacing said pipes, etc., by a certain ordinance of the city council, did order and direct, and cause the said streets and alleys to be dug down, torn up,, and the water pipes, etc., therein located, to be dug up and destroyed, etc., and compelled the Cincinnati Water Company to replace their pipes, etc.
    The defendants demurred generally. The court of common pleas . sustained the demurrer, and the plaintiffs appealed to this court.
    *Storer and Fox,
    in support of the demurrer:
    We insist that the ordinance under which the plaintiffs derive their rights, and which is treated by them as a contract between the city and the manufacturing company, is not sufficiently set out.
    If the plaintiff's have any foundation for the privilege they claim, and which they insist has been greatly injured, it is material to understand, specifically, the nature, extent, and character of their right. It is admitted that the right was granted on certain conditions; and it is therefore contended by the defendants that these -conditions must be set forth specially, that it may appear how far the plaintiff's have complied, or neglected to comply, with their part of the contract. If there should be any conditions prec■edent, to be performed by the party seeking a remedy, it must be yielded at once that the account of performance should be full and positive.
    Whether, then, we regard the instrument,-by which the privilege was granted, as a contract on the part of the town, duly entered into by its authorized agents, or merely an ordinance or by-law conferring a right, we insist the whole instrument must be set out in the pleadings of the plaintiff's.
    The by-laws or ordinances of a corporate body, having legislative power, like all private acts of the legislature, can not be taken notice of by courts unless they are specially pleaded. 1 -Chitty’s PL 211; 6 Bac. Ab. 395; Howard’s case, 4 Co. 76. And there is a peculiar reason why the whole by-law should be set out, as the court are bound to know whether it is lawful, reasonable^ and j ust, in the language of Lord Coke. 8 Rep. 126, “ legi, fldei, rationi cansona.”

    As it is the exercise of power, by an inferior jurisdiction, the-court should know judicially whether that power has not been exceeded. 2 Burr. 177. And if it should appear on the record to be such an act that the corporation had no power to do, the court would be bound to disregard it.
    The Mayor, etc., of New York, v. Ordrender, 12 Johns. 122; 6 Pick. 187. Yandine petitioned for a writ of certiorari against the city of Boston.- In this case Chief Justice Parker expressly decides the point we have assumed, as to the necessity of pleading specially the whole by-law.
    *It seems, therefore, clear to us, that the instrument should be fully set out. .
    If the plaintiffs regard the grant of their privilege as a contract between the manufacturing company and the city, the rule we-have relied on will, a fortiori, hold good.
    It can not be disputed, that in declaring on a contract, the whole' consideration must be stated, and no part of it can be omitted; and if any proviso or condition in the contract constitute a condition precedent, or there be any matter which qualifies the contract, or goes in discharge of the liability of the defendant, it must be stated. 1 Chit. PI. 301, S02.
    The plaintiffs can not urge that it is for the defendants to pleadv such matter in their defense. If they were bound-to perform any precedent duty their cause of action was entirely dependent upon-such performance. Nor can it be said, with any legal propriety, that there are no such precedent conditions, because they do not1 appear to the court. The whole contract is not set out; it can notr therefore, be inferred what it is; and until its conditions are ascertained it seems clear no correct adjudication can be had.
    Hammond, contra:
    The defendants demur generally; and, in argument, allege two grounds of demurrer:

      First. Because the ordinance conferring the right is not set out-at large.

      Second. Because the action is not sustainable at all.

      Upon the first point I am not able to perceive the force of the argument, nor the application of the authorities upon which the defendants rely. The recital of the ordinance, aa the foundation of the right, imposes upon the plaintiffs the obligation of producing and proving it at the trial. It is but matter of inducement to the action, and not that upon which the action is grounded. When produced at the trial, its terms and conditions are open for inspection. And, upon the whole case, the court can then adjudicate upon what rights it is created, whether the plaintiffs are in possession of those rights, and whether the injuries complained of violate them. When deeds, grants, or contracts are alleged only *by way of inducement, as tracing a right in the plaintiff, it is not necessary to recite them at large, although it is necessary to allege and prove them. This seems to me the plain good sense of the case, and altogether consistent with the authorities cited for the defendants. I am not, however, solicitous about it, for I trust that if the court consider the exception well taken, they will permit us to amend.
   By the Court :

The plaintiff might, perhaps, have rested his title upon his possession, but he has chosen to set out his title, and he must therefore sot out a good title. 1 Chit. Pl. 215. He claims title under an ordinance of the city of Cincinnati, and from his own showing it appears that his rights depend “ upon certain terms in said ordinance expressed.” It does not appear what those terms are, or whether they are such as give him any rights,

Demurrer sustained.

       A plaintiff, who is to recover upon the strength of his own case, is to show that sufficiently to entitle himself. 13 Bast, 112; 1 Bos. & Pul. 97.


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    Stephen W. Reeder and others v. John T. Barr and others.
    A patent issued to N., assignee of the administrator of SC. B., deceased: Held, that a subsequent purchaser can not set up the plea of innocent purchase, without notice, against the heirs of H. R.
    This was a suit in chancery, reserved for decision by the Supreme Court in Hamilton county.
    The bill sets forth that the complainants are the heirs at law of one Henson Reeder, who died in the year 1811. That some time in the year 1810,' Henson Reeder purchased a certain lot of land, in the city of Cincinnati, of the United States, and paid up r part of the whole of the purchase money, and obtained a certificate therefor, in the usual form, and took possession thereof. Some time after the death of Henson Reeder, Samuel Newell set up some claim to said *lot, as assignee of the administrator of Henson Reeder; and by falsely representing himself as such assignee, obtained a patent for the lot in his own name; that the administrator of Henson Reeder never sold, directly or indirectly, said certificate, or any interest whatever in the lot, to Newell, or any other person, and had no power so to do. That Newell took forcible possession of the land, and retained the same until 1823, when it was sold upon execution, as the property of Newell, to the defendants, John T. Barr and Thomas Welch.
    The bill also charges that the defendants, Barr and Welch, when they purchased, had notice that Newell claimed title only as assignee of the administrator of Henson Reeder; that his title is so recited in the patent, and knew also that said administrator did never, in fact, assign any interest in the lot to Newell.
    It is also charged that the patent was 'fraudulently obtained, and the President of the United States imposed upon.
    The patent was issued on August 15,1816, to Newell, as assignee of the administrator of Henson Reeder, deceased. The bill prayed for an account of the rents and profits, and for a reconveyance of the title.
    The defendant, Barr, filed his plea in bar, alleging that on December 8,1819, Newell being in the quiet possession of the lot, mortgaged it to Barr and Welch for a valuable consideration; that the mortgage became forfeited; a scire facias issued; a judgment was rendered, and the lot was taken in execution, and sold by the sheriff to Barr and Welch, and conveyed to them by the sheriff, on February 26, 1823; that Barr and Welch took possession; and on October 5, 1826, Welch, for a valuable consideration, conveyed all his interest in the lot to Barr, who has continued the possession ever since; that he had no notice whatever of the claim of the plaintiffs, or that Newell claimed title only as assignee ■of the administrator of He nson Reeder; or that his title was so recited in his patent; or that the administrator had not assigned the title of said lot to Newell, at or before the time when he, the said Barr, acquired his title, as herein set forth; and that he was an innocent purchaser, for valuable consideration, and without notice.
    To this plea the plaintiffs filed a general replication.
    *The defendant, Newell, answered, denying all fraud, and disclaiming title, the lot having been sold upon execution, as set forth in the plea in bar.
    No testimony was taken.
    Storer and Fox, for complainants:
    The complainants contend, that inasmuch as the patent is granted to “Samuel Newell, assignee of the administrator of Henson Reeder,” and inasmuch as Barr claims under that deed, he is chargeable with notice, first, that Newell claimed title from a trustee merely ; second, that the trustee could not dispose of any interest, in real estate, without an order of court for that purpose.
    1. It is well settled, that “ where a purchaser can not make out his title but through a deed which leads to a fact, he will be affected with notice of that fact.” 2 Mad. Ch. 327; Beame’s Plead. 252; 2 Schoale & Lefroy, 327; 13 Vesey, 117, 118; Newland on Contracts, 511. Inasmuch, therefore, as Barr can not make out his title without the patent, he is chargeable with notice that New-ell purchased, or pretended to purchase, of an administrator.
    2. Knowing that Newell purchased of an administrator, he was bound to know that no administrator, merely as such, had authority to dispose of real estate, except under an order of court; and, in taking the estate, he took it subject to all the equities to which it was subject in the hands of Newell.
    If A. make a conveyance to B., with power of revocation by* will, a subsequent purchaser is intended to have notice of the will, as well as of the power of revocation. Hewland on Contracts, 511.
    So, where a purchaser claims under a conveyance, where there was an estate tail prior to the estate under which he purchases, it is incumbent on him to see if that estate is spent. Id.
    In 3 Johns. Ch. 344, the court decided that a purchaser purchasing under the commissioners of loans, who had special authority to sell in a particular mode, was bound to know whether the sale was made in a regular or irregular ^manner, and that he was affected by all irregularities, in the sale.
    In Lessee of Willis v. Bucher, 2 Binney, 455, the defendant claimed title under one William Willis, to whom a patent had issued, reciting that the title was derived under the will of Henry Willis. On referring to this will, it was found that the will did not authorize a sale.
    Several sales had been subsequently made to persons who were innocent purchasers, unless the recital in the patent charged them with notice.
    The question, therefore, presented in the case before the court and in 2 Binney are exactly alike. Judge Tilghman, in deciding this point (page 466), says: “ The learned judge, who tried the cause, was of opinion that the purchasers were not bound to look further back than the patent; and, no doubt, this opinion must have had great weight with the jury. This is a principle of very great importance, considering the vast mass of property which is held without patent in this commonwealth. It may have very extensive and alarming consequences, if every purchaser from a patentee is to be considered as having no notice, and not bound .to' take notice of anything prior to the patent. In cases like the present, where the prior title is referred to in the patent, there is no reason why the purchaser should not take notice of it. The will of Henry Willis was recorded, and it was the fault of the purchasers not to examine it.”
    It appears to us that two cases more analogous can not be found than the one now before the court and the case last cited. Both patents refer to the origin of the title claimed by the assignee. The sale was void in the one case, because the will did not authorize a sale. The sale is void in the other case, because the law did not authorize a sale to be made by an administrator without an order of court. The plea admits there was no order of court granted. The law says, he is chargeable with notice of the fact that it was an administrator’s sale. The purchaser, then, is placed in this situation: he buys of a person who he knows is not authorized to sell, and, of course, can not keep the property from tha true owner.
    *N. Wright, contra:
    If a purchaser can not make out a title but by a deed which leads to a fact, he shall be deemed cognizant of that fact. 2 Fonbl. Eq. 151.
    The fact shown by Newell’s patent is, that the administrator had assigned; nothing more. Sugden states the rule in the same way; and, for example, adds: “Therefore, if a man knows the legal estate is in a third person, he must take notice what the trust is.” Sug. Fraud, 498.
    “But the recital of a fact in a deed, which may or may not, according to circumstances, amount to a fraud, will not amount to notice.” Sug. 500.
    And the recital must be such a reference to the fact that “it will be deemed crassa negligentia that he sought not after it.” Sug. 499.
    2 Mad. Ch. 327, states the law in the same way.
    Newland Con. 511, states it thus: “When the law imputes to the purchaser the knowledge of a fact, of which the exercise of common prudence and ordinary diligence must have apprised him.” “ Thus, if by looking into a deed, etc., in his claim of title, he must have been apprised of a right in another person, etc., notice is presumed.”
    Lord Erskine states it thus: “Another case is, where the law imputes that notice, which, from the nature of the transaction, every person of ordinary prudence must necessarily have.” , Thirn v. Mill, 13 Ves. 120.
    In support of the foregoing doctrines, as laid down in the elementary books, Newland cites : Ferrars v. Cherry, 2 Term, 384; Morret v. Paske, 2 Atk. 54; Coffin v. Fannyhough, 2 Bro. C. O. 291; Tanner v. Florence, 1 Ch. Cas. 259; Vane v. Barnard, Gilb. 8; Biscoe v. Banbary, 1 Ch. Cas. 28; Lowe v. Smith, 1 Atk. 490; 2 Ves. Jr. 440; Moore v. Bennet, 2 Ch. Cas. 246; 1 Ch. Cas. 291 ; 1 Atk. 522.
    Fonblanque cites most of the same cases, and also Bovy v. Smith;

      1 Term, 649; Druoch v. Kent, 1 Term, 319; Drapers Co. v. Yardley, 2 Term, 662; Martins v. Joliff, Amb. 313.
    Sugden cites the same cases, and also 2 Frazier, 337; Kenny v Brown, 3 Ridgw. P. C. 512; 1 Durnf. & E. 763.
    Maddock cites most of the same cases, and also 2 Anst. 431, 428; Eyre v. Dolphin, 2 Ball & B. 301.
    *In all these cases, so far as I have been able to examine them, the recital in the deed or will, which was held to be sufficient notice,- was an express and direct recital of the equitable right sought to be established, or a reference to some other deed which expressly stated the right. The right was expressly shown. In the case now before the court the patent shows no right in another.
    In Beame, the law is thus laid down: “ Constructive notice is no more than evidence of notice, the presumptions of which are so violent that the court will not allow even of its being controverted.” Beame’s PL Eq. 252.
    I consider it clear, from the foregoing cases, as well as from reason, that the rules of law, on which complainant relies, go no further than this: that the chain of title must show, by express recital, the equitable title set up or the fraud charged, or must refer to some other instrument or fact, showing such title or fraud, in such .a way that the purchaser could not, without gross negligence, avoid noticing it.
    In the present case, the patent does not recite any title in another nor any fraud ; and the only question must be, whether it refers to any other fact in such a way that the purchaser is chargeable with gross negligence for not noticing that fact. By gross negligence I am willing to be understood to mean, the want of that prudence which a man of common prudence and ordinary diligence would use.
    The recital is, that Newell was the assignee of the administrator ■of H. Reeder. The law authorized the administrator to make sale of the land on complying with certain forms, etc. The purchaser had a right to presume that the administrator, who acted under an oath of office, had done his duty, and obtained the proper order of court; there was nothing in this recital, therefore, calculated to alarm him; nothing which would naturally suggest to him the idea that there was any defect in the assignment, or any fraud; nothing which would put a man of ordinary prudence upon inquiry for such objections.

      Again: the officers of the United States act officially in issuing the patent, and are required, by law, to see that the assignment was duly made before a patent could issue to the assignee. The purchaser had a right to presume that they *also had done their duty, and that they had issued the patent upon legal assignments. So far, therefore, from being led, by the recital, to suspect any defect or fraud in the assignment, the presumption of law, as well as the common understanding of men, would be that the assignment was right and fair.
    The presumptions of law always are, that a man has conformed to his duty, not that he has been guilty of fraud. 3 Stark. Ev. 1249. “ Omnia presumuntur rite et solemniter acta, donee probitur in contrarium.” Stark. Ev. 1248, 1250. “ Odiosa et inhonesta non sunt in lege presumunda.” Stark. Ev. 378; 10 East, 216. “The presumption is that he has conformed to the law.”
    “A person shall be presumed duly to execute his office till the contrary appear.” Williams v. E. J. Co., 3 East, 200.
    “If a person is required to do an act, the omission of which would make him guilty of a culpable neglect of duty, it ought to be intended that he has duly performed it.” Hartwell v. Root, 19 Johns. 347.
    So in relation to the effect of a patent, the presumptions are equally favorable.
    Chief Justice Marshall says, “The laws for the sale of' 'public lands provide many guards to secure the regularity of grants and protect the incipient rights of individuals, etc.; that every prerequisite has been performed, is an inference properly deducible, and which every man has a right to draw from the existence of the-grant itself.” Polk’s Lessee v. Wendell, 9 Cran. 98.
    Justice Johnson says, “The existence of the grant itself is, in itself, a sufficient ground, from which every man may infer that every prerequisite has been performed.” S. C., 5 Wheat. 304; Patterson v. Jenks, 2 Pet. 237.
    The presumption is, that an agent, intrusted to execute a particular authority, has done everything requisite for the completion of it. Boville v. Bradbury, 2 Stark. 136; Pat. Ag. 4.
    Such being the legal presumptions, surely the purchaser could not be chargeable with gross negligence, because he did not presume differently; because he did not perceive, in the recital, any intimation which would lead him to inquire *into the sufficieney of the assignment. Prior to the time Judge McLean was in the land office -it is probable that most of the assignments of land certificates by administrators were informal; but, I believe, it has never been thought of, that a subsequent purchaser after the patent was bound to inquire into their regularity, and they must all have recited the same fact as appears in this patent.
    An innocent purchaser, without notice, is a favorite in equity. No step shall be taken against him; he shall be protected, unless the proof is full and satisfactory. If the evidence is loose, and only creates a suspicion, courts will not act upon it; and the recital of a fact, which may or may not amount to a fraud, according to circumstances, is not notice. 2 Ves. Jr. 458; Eyre v. Dolphin, 2 Ball & B. 301; 8 Johns. 108; 2 Mad. Ch. 327; Sug. Vend. 500.
    The recital in the patent shows certainly no more than this last rule requires. For, if there were even no legal presumptions in favor of the regularity of the assignment, the most that could be said, would be, that it might, or might not, be regular, according to circumstances.
    In Frost v. Beckman, a mortgage for three thousand dollars was recorded as for three hundred only, and held it was good against a purchaser only for three hundred dollars. There the purchaser had notice of the mortgage, and it might as well have been said that he was bound to see the original mortgage itself; but held that he had a right to believe the recorder had done his duty. 1 Johns. Oh. 288.
    The result of my argument is, that the recital in the patent in question is not the recital of any right or interest existing in Reeder’s heirs. It recites merely the fact that the administrator had made the assignment; and, of course, the only question is, whether, with knowledge of that fact, the purchaser is chargeable with such gross negligence for not looking into the administrator’s proceedings, that his title can now be defeated by the administrator’s default ; and I insist that the purchaser is not so put upon his guard by the recital as'to be chargeable with the defaults of the adminisrator : First. Because he has a right to suppose that the administrator, acting under a judicial appointment, and the infliction of an oath, has done his duty; and, second. Because *he has also a right to believe that the officers of the United States have done their duty.

      In this view of the case, I do not perceive the application of the case of Willis’ Lessee v. Bucher, 2 Bin. 455, cited by the other side. In the first place, it is evident in that case that the patent by its recitals showed distinctly that all the right of William Willis, the patentee, was his right as devisee, under the will of his father. That will show that he had an estate tail, and not a fee. Had the present ease recited the purchaser to be devisee of Reeder, the case might, perhaps, be different; for then the legal presumption that the administrator had done his duty would not arise. The devisee of an estate tail would be entitled, of course, to the patent; and, whether the interests of the tenant in tail could be otherwise protected in the patent, under a will of doubtful construction, than by referetice to the will as the foundation of the title, is, at least, questionable. We are not informed of the extent of the recitals in that case. If they were such as evidently to guard the rights of all parties, the decision oí the court merely carried into effect the purport of the patent.
    Again: It appears from the arguments of counsel in that case, that the land in question was' proprietary lands; it was sold as early as .1737, or 1744; it was the property of individuals, not of government, and, though the deed perfecting the title is called a patent, it does not appear that such patent was issued under any sanctions of public law; that it passed the hands of any officer in whose correctness and fidelity the public had a right to rely. So far as appears,it was the mere private deed of the proprietors, and so the defendants’ counsel speak of it.
    Again: The judge himself, in giving his opinion, relies upon the peculiar situation of titles in that state; and the counsel speak of the warrant, with payment of purchase money, as giving a legal title, according to their construction, and of the question of notice, overreaching the patent, as a question settled in practice in that state with reference to the peculiar situation of that description of titles. It is evident, therefore, that the decision turns upon local circumstances in part, if not altogether.
    ^Either of the foregoing considerations is sufficient to distinguish the case in Binney from the present. Others might be urged, but it is hardly necessary, for a case so equivocal can not weigh much against clear law.

      Fox,
    in reply:
    The opposite counsel seems to think that it is necessary, wherever the plea of innocent purchase is put in, for the plaintiff to show such circumstances of notice as to charge the defendant with gross neglect. But such is not the law; if it were, purchasers pendente lite could never be affected; for I know of no case where a purchaser, pendente lite, has been affected on the ground of his being negligent. On the contrary, the great principle upon which all pendente lite purchasers are chargeable with notice is public policy. There would be no end of suits, if a defendant could transfer his legal title to an innocent purchaser as soon as a bill was filed against him to obtain that legal title. 3 Ohio, 542.
    The same may be said where a man is chargeable with notice given to his agent and the agent neglects to inform his principal. The principal is bound, but not because he was guilty of gross neglect, but because a man might bo in a better situation, by employing another person to purchase, than if he attended to the purchase himself.
    It is laid down in Sugden, that the recital in a deed of a fact, which may, or may not, according to circumstances, be held in a court of equity to amount to fraud, will not amount to notice. Sugden refers to 3 Ridgw. 512, a book not to be found in Cincinnati, and it is certainly difficult to tell what the writer means by, this short note. Notice of a fact which may, or may not amount to fraud, will not charge the party with notice. I can not tell what it means. “ If A. makes a conveyance to B., with power of revocation by will, a subsequent purchaser is intended to have notice of the will, as well as of the power to revoke.” Newland on Contracts, 511, &12, and other cases cited.
    Cases in 9 Oranch, 5 Wheaton, and 2 Peters, are cited to show *that when a patent has issued, every man may infer that every prerequisite has been performed.
    This position is true, in one sense, and in one only. So far as-the government is concerned, I admit it is to be presumed that they have received payment for the land, that a proper survey has been filed, etc. But it is evidence of nothing as to third persons. And the reason of this obvious. The person issuing the patent is a mere ministerial officer.
    That I am correct in this position, will appear manifest, by referring to the numerous cases of equity, where a person having an. elder entry, comes into court to obtain relief, against an elder patent on a younger entry.
    If the presumption is, that the officer issuing the patent acted correctly; and if you can not go behind the patent, on what authority is it, that the court acts in taking away the legal title from the elder patentee, and giving it to the younger. May the courts go further, and say that the plea of innocent purchase is not a good plea in such cases?
    The case in 9 Cranch, 98, merely decides that, as to all matters, merely directory to the officers, the court will presume the directions of the statute have been complied with, after patent in an action at law.
    But the court say, “there are some things so essential to the validity of the contract, that the great principle of justice and of law would be violated, did there not exist some tribunal to which an injured party might appeal.” And they conclude the proper tribunal is a court of equity.
    And by examining the case in Cranch a little further, the court will see it is directly in favor of the position we take. For they say, “If, as the plaintiff offered to prove, the entries were never made, and the warrants were forgeries, then no right accrued under the act of 1777; no purchase of the land was made from the state, and independent of the act of-cession to the United States, the grant is void by the express words of the law.”
    What, then, becomes of the presumptions in favor of a patent arising from the mere issuing of the patent. In a case at law, the Supreme Court decided a patent to be void, merely because the officer had issued it upon forged warrants and entries.
    *The case referred to by Mr. Wright, in 5 Wheaton, is the same as that in 9 Cranch, and the words quoted by Mr. Wright are a part of a quotation from the judge’s opinion in 9 Cranch.
    We think that the very object of requiring the names of the assignors and assignees to be mentioned in all the patents is for the purpose of preventing frauds being committed; and if it appears a patent has been obtained on a forged assignment, or on an assignment made by a person having no authority to make it, the patent has been issued without authority, for a patent can only be issued to the original purchaser, his heirs, or assigns. Suppose a patent issues to A. B. & Co., as heirs of D., when, in fact, E. was the true heir, can it be possible that E. is to be cheated out of his fights by such 'a contrivance? Unquestionably the court would say the patentee is bound, in a suit brought by the real heir, to givo up his title.
    The great error in Mr. Wright’s argument is this: he appears to treat the case as though an administrator, merely as such, has power to convey interests in real estate, whereas the reverse is the truth of the case; and this distinction must be kept strictly in view. Whenever the title to property vests in an administrator, and he disposes of it, he will be presumed to have disposed of it properly, because he had authority to dispose of it. But real estate does not vest in an administrator. He has no power to sell as an administrator; and if a person claims title under an administrator, he must show that the administrator has obtained authority to sell. The court may presume that a power has been correctly executed in some cases, but they never will presume that a power was created. This principle runs through all the cases, and has been acted upon frequently. Take the position of Mr. Wright to be correct — that the administrators will be presumed to have acted under a power — and the court must overrule everything which has been decided with regard to such sales.
    If an administrator makes a deed for land, according to this doctrine, no order of court need be shown, for it is to be presumed ho had one. But this court, in Lessee of Goforth v. Longworth, last court in bank, think differently. 4 Ohio, 120.
    *Again: In sales by sheriff, if a deed is made, the court are to presume a judgment and execution. Tet this court have decided that a judgment and execution, and an order confirming ¡the sale, must be shown.
    To conclude, then, we take this to be the law: that where a person purchases Under one not owning the property himself, but ¡relying on the sufficiency of a power to sell, the vendee, and those claiming under him, must be charged with a full knowledge of the •extent of that power, and if there is no power, the sale is void.
    We have not argued the question as to the power of the court to grant an order for the sale of a mere equity to administrators. Our opinion has been that in 1816 the court had no such power. If the court are of this opinion it makes our case stronger.
   By the Court :

The patent was issued to Newell, as assignee of the administrator of Henson Beeder, deceased; and the only question is, whether this disclosure of the rights of the patentee, and of the manner in which they were acquired, is sufficient to charge a subsequent purchaser, with notice of the equitable rights of the complainants, as heirs at law of Henson Reeder. The true rule upon this subject appears to be “that the law imputes that notice, which, from the nature of the transaction, every person of ordinary prudence must necessarily have.” 13 Ves. 120; Mad. Ch. 327; Newland, 511.

If, in the investigation of a title, a purchaser, with common prudence, must have been apprised of another right, notice of that right is presumed. Here, Barr, in tracing his title, must have seen from the patent that Newell’s right was derived from an administrator who possessed no title to the land himself, and whose deed could be available only by a previous compliance with certain legal formalities. If the assignment of an administrator, fer se, conveyed the equitable rights of the intestate, the purchaser might stand in a different situation. As it is, we are of opinion that the recital in the patent is sufficient to put a man of ordinary prudence to an inquiry for the rights of the heirs, and that a subsequent ^purchaser must, at his peril, ascertain whether those rights have been regularly extinguished.

Authorities are cited to show, that presumptions of regularity are to be made in favor of public officers. 3 East, 200; 19 Johns. 347. And that the existence of a grant is sufficient ground to presume that every prerequisite has been performed. 9 Cranch, 98; 5 Wheat. 304. If this grant wore a simple conveyance to Nowell, his assignees might, perhaps, claim the benefit of these rules; but the grant, upon its face, shows that the heirs of Reeder were the owners of the estate, after the death of their ancestor; and it is going too far to say, that there is a legal presumption, not only that the officers of government have performed their duties, but that the rights of the heirs of Reeder have been divested by a judgment of a court of competent jurssdiction.

Plea overruled.

         Purchasers under letters patent, reciting a trust, are bound to take notice of the trust at their peril. 1 Ves. 261, 319; 1 Ch. Cas. 258. So a purchaser under persons authorized by statute to sell, is persumed to know the nature and extent of the authority, and purchases at his peril. 3 Johns. Ch. 344.


author: By the Court:

text:
    William H. Lytle and Henry Avery v. The Cincinnati Manufacturing Company.
    Money made upon a junior judgment in life can not be distributed to elder judgments and levies, where five years have elapsed from issuing an execution, and the judgment is not revived.
    Certiorari to the court of common pleas of Hamilton county, to reverse an order for the distribution of certain moneys made upon execution.
    At November term, 1829, the sheriff returned that he had made twenty-six thousand eight hundred and sixty dollars upon an execution issued on a judgment in favor of Lytle and Avery against the Cincinnati Manufacturing Company. Upon this return, several other judgment creditors appeared, and claimed this money or a part thereof, and founded their claims upon the following state of facts:
    * October 12,1820, the Miami Exporting Company recovered a judgment against the Cincinnati Manufacturing Company for seventeen thousand eight hundred dollars. On the same day, Samuel Davis, James Findlay, and Jacob Wheeler recovered a judgment against the same defendants, for ten thousand two hundred and thirty-six dollars and fifty cents. On December 27, 1820, Lytle and Avery recovered a judgment against the same defendants, for forty-nine thousand six hundred and forty-five dollars and fifty-nine cents. There was also another small judgment against the same defendants, in favor of Henry Hafer, which, by the agreement of all parties, was entitled to a preference, and about which there was no dispute. Upon the other three judgments, executions were issued, and returned as follows:
    Miami Exporting Company. — Judgment October 12, 1820.

      Execution. Date. Return, etc.

    Fi. fa. et lev. fa. Jan’y 30, 1821. Levy on land, January 30, 1821.
    Vendi. Dec. 8, 1821. Unsold.

      Execution, Bate. Return, etc.

    Al. vendi. June 19,1823. Sold on an execution, in fa- ' , vor of Davis, Eindlay, and Wheeler. This return, on motion of plaintiffs, was set aside at August term, 1823, to which the writ was returnable. This judgment was revived by scire facias, on December 24,1829.
    Davis and others. — Judgment, October 12,1820.

      Execution. Bate. Return, etc.

    Fi. fa. et lev/fa. Jan. 31, 1821. Jan. 31, 1821. Levied on same land, as execution in favor of Mi. Ex. Co.
    Vendi. April 2,1822. To May 7,1822. Stayed by injunction.
    Al. vendi. June 25, 1823. Aug. 1, 1823. Sold to J. C. Morris. At August term, 1823, this sale was set aside by the court.
    *P1. vendi. Nov. 11,1823. Dec. 15, 18-23. Sold [461 to the plaintiffs in execution. This sale, and the valuation, was set aside, by consent, Sept. 3, 1829.
    Lttle and Avert. — Judgment, Becember 27, 1820.

      Execution. Bate. Return, etc.

    Fi. fa. et lev. fa. Feb. 8, 1821. February 9, 1821. Levied on same land, as execution in favor of Mi. Ex. Co.
    Vendi. March 27, 1824. Not given to the sheriff.
    Al. vendi. March 23, 1827. Indorsed, “ Judgment assigned to U. S. Bank, March 31,1827.” Stayed by Jones and Fox, June 27, 1827.

      Execution. Bate. Beturn, etc.

    PI. vendi. June 16, 1829. Sold, July 20,1829, to the Mi. Ex. Co. This sale and the valuation were set aside by consent, Sept. 3, 1829.
    Al. pi. vendi. Sept. 10, 1829. Sold, November 16, 1829, to G-. W. Jones, agent U. S. Rank, for twenty-six thousand eight hundred and sixty dollars, the money now in controversy.
    The assignees of the judgment of Lytle and Avery against the Cincinnati Manufacturing Company also offered in evidence a mortgage of the premises levied upon, dated December 11, 1820, executed by ."William Lytle, William H. Lytle, and Timothy Kirby, in their capacity as trustees of the Cincinnati Manufacturing Company, to William H. Lytle and Henry Avery, to secure the payment of forty-eight thousand eight hundred and six dollars and eighty-two cents. This mortgage was recorded January 9, 1821, and on April 13, 1826, was assigned by Avery and Lytle to the Bank of the United States.
    *Also, a notice, dated December 21, 1820, signed by David E. Wade, president pro tern., and William Oliver, cashier, served upon the Cincinnati Manufacturing Company, notifying them that the Miami Exporting Company, on the 25th of December then next, would take judgment against the Cincinnati Manufacturing Company upon the same debts for which the judgment had been rendered in favor of the Miami Exporting Company against the Cincinnati Manufacturing Company; and that at the date of this notice, Wade and Oliver acted as the officers of the Miami Exporting Company.
    Also, a declaration in assumpsit, signed by Este and Storer, as attorneys for the Miami Exporting Company, against the Cincinnati Manufacturing Company, founded upon the same debt, and served upon the latter company at the same time with the above note.
    Also, a bill in chancery, filed in the Supreme Court.of Hamilton county, at June term, 1821, by the Miami Exporting Company, against Davis, Findlay, Wheeler, and other’s, in which the Miami Exporting Company charged that Davis and Wheeler, pretending to be two of the trustees of the Cincinnati Manufacturing Company, on September 2,T820, made a warrant of attorney to Joseph S. Benham, Esq., by virtue of which he confessed the judgment in favor of the Miami Exporting Company against the Cincinnati Manufacturing Company; that the Miami Exporting Company were never consulted by Davis and Wheeler as to the confession of said judgment, or the warrant of attorney to Benham; nor had they any knowledge thereof until after the judgment was confessed; and they deny any and all right in Davis and Wheeler to make said power of attorney in behalf of the Cincinnati Manufacturing Company; and pray that the said judgment be decreed null and void, and completely vacated for the want of authority in Davis and Wheeler to make said warrant of attorney, and for the manifest collusion, fraud, and illegal conduct, on the part of the defendants in the bill, in obtaining the judgment. This bill was dismissed by the complainants the same term at which it was filed, and the injunction allowed therein dissolved.
    *Also, the following statement of David E. Wade, which was admitted in evidence, by consent, as if sworn to,-not admitting its truth or competency. David E. Wade states that, in 1820, he was a director of the Miami Exporting Company, and acting as their presidentpro tern.; that the above bill in chancery was filed at the instance of B. Storer, one of the counsel of the bank, Mr. Este being absent; that he was first induced to take some steps in this matter by Henry Avery, who informed him how the judgments were taken, and urged him to file the bill, which he did, by the advice of Storer and two or three of the directors, contrary to his own opinion. He thinks the board of directors were not convened upon the occasion.
    The Miami Exporting Company gave in evidence a bill in chancery, and an injunction allowed thereon, filed in the Supreme Court of Hamilton county, on May 18, 1821, by the Cincinnati Manulacturing Company, against the Miami Exporting Company, Oliver M. Spencer, and William Oliver, charging that the warrant of attorney to Benham was unauthorized by the Cincinnati Manufacturing Company, and reciting the allegations contained in the bill filed by the Miami Exporting Company, against the Cincinnati Manufacturing Company, as above set forth; and charging that the Miami Exporting Company had levied an exe cution on the lands of the Cincinnati Manufacturing Company, and were proceeding to sell the same, and prayed a perpetual injunction. The bill was answered; and, on the final hearing, May 19, 1823, was dismissed, at the costs of the complainants.
    Also, the record of the original judgment in favor of the Miami Exporting Company against the Cincinnati Manufacturing Company, and of the proceedings in' a writ of error allowed thereon, from which it appeared that a summons issued in favor of the Miami Exporting Company against the Cincinnati Manufacturing Company, on the 7th, and was served on October 13,1820, and that the judgment was confessed by Benham on the 12th of the same month, by virtue of a warrant of attorney for that purpose, executed by Davis and Wheeler, as trustees of the Cincinnati Manufacturing Company, with a release of error, and stay of execution for three months. Upon this judgment a *writ of error was allowed on September 27,1825, and continued in the Supreme Court until May term, 1829, when the same was quashed, on the motion of the defendants in error.
    Also, the record of the original judgment in favor of Davis, Findlay, and Wheeler, against the Cincinnati Manufacturing Company, and of the proceedings in a writ of error allowed thereon; from which it appeared that this judgment was confessed by Ben-ham on the same day, and under the same circumstances, as the judgment in favor of the Miami Exporting Company, with the exception of a stay of execution. Upon this judgment a writ of error was allowed on April 21, 1825, which was discontinued by the plaintiff in error at May term, 1829.
    Also, a bill in chancery, now pending in the common pleas of Hamilton county, filed by the Bank of the United States and William Lytle, against the Cincinnati Manufacturing Company, the Miami Exporting Company, Davis, Findlay, Wheeler, and Avery, setting forth the assignment of said mortgage, and of the judgment of Lytle and Avery, against the Cincinnati Manufacturing Company, to the bank ; and also all the proceedings of the Miami Exporting Company, and of Davis, Findlay, and Wheeler, in relation to their respective judgments against the Cincinnati Manufacturing Company, and praying a sale of the mortgaged premises for the benefit of the judgment of Lytle and Avery, and an injunction against the Miami Exporting Company to restrain them from enforcing their judgment against the mortgaged premises.

      Also, the answer of the Miami Exporting Company asserting their rights to a preference, by virtue of their prior judgment against the Cincinnati Manufacturing Company.
    The order for the distribution of the moneys in controversy was made on^November 16, 1829, the same day on which the land was sold.
    No bonds were given upon the allowance of the writs of error upon the judgments against the Cincinnati Manufacturing Company.
    The judgment of the Miami Exporting Company was revived on December 24, 1829.
    *Upon this state of facts the court below ordered, that after discharging the judgment of Hafer,thebalance of said moneys should be applied to the discharge of the judgments of Davis, Findlay, and "Wheeler against the Cincinnati Manufacturing Company, and the Miami Exporting Company against the Cincinnati Manufacturing Company, in preference to the judgment of Lytle and Avery against the Cincinnati Manufacturing Company; to which order the Bank of the United States, assignees of Lytle and Avery, excepted, and sued out this writ of certiorari.

    Caswell and Starr, for the plaintiffs in certiorari.

    Storer and Fox, on the same side.
    Worthington, contra.
   By the Court:

The assignees of Lytle and Avery, having purchased the real estate in controversy, upon an execution in their favor, regularly issued and levied, are entitled to retain the purchase money, and apply the saíne as a credit upon their judgment, unless some other subsisting, paramount claim is interposed.

The pretensions of the several applicants are to be considered.

First. It seems agreed by all parties that the judgment of Safer is entitled to priority; and may; therefore, be laid out of the question.

Second. The judgment of the Miami Exporting Company, being older than the judgment of Lytle and Avery, is entitled to a preference over the latter, unless that preference has been lost by the lapse of time, or laches of the party. It appears that the last execution issued by the Miami Exporting Company was on June 19, 1823, the sale upon which was sot aside at the August term following. The judgment, was revived on December 24,1829, more than five years from the date of the last execution, and from the time the sale thereon was set aside. The sale, which ^produced the moneys in controversy, was made on November 16, 1829; and the motion to distribute the moneys was made and granted on the same day, and more than one month before the judgment of the Miama Exporting Company was revived. So far, therefore, as the Miami Exporting Company are concerned, the only question is, whether a senior judgment creditor, who has issued no execution for more than five years, is entitled to moneys made by a sale upon a junior judgment.

By the common law, a plaintiff could not have execution upon a judgment after a year and a day passed; but he was put to his action of debt upon the judgment. 2 Inst. 469 ; Co. Lit. 290-296. But by St. W. 2, 13 Ed. I. 45, he might have a scire facias quare exeeutionein non, etc. If this statute was in force in this state, it is now abrogated by the statute, in which our legislature have undertaken to act upon the same subject matter; and they have, in effect, prevented the issuing of executions, either ft. fa. et lev. fa. or vendi., by declaring that after the expiration of five years it shall be lawful to maintain an action of debt, or sue out a scire facias upon judgments, etc.

At common law, if a fi.fa. were issued within the year and day, and nulla bona returned; or an elegit, and no execution thereon, there might be another ft. fa., elegit, or ca. sa., several years after, without scire facias, if continuance were entered from the first fi.fa. or elegit. 1 Inst. 230 ; 4 Inst. 271; Str. 100 ; 4 Com. Dig. 143, This principle of the common law was also abolished by our statute, which provides, that if five years intervene, after the date of one execution, before another is sued out, then debt or scire facias may be prosecuted, etc.

It is a well-settled rule, that an execution issued upon a dormant judgment, will be set aside on motion, and the goods or money levied, restored to the judgment debtor; and sometimes with costs. 2 Wils. 82; Tidd’s Prac, 935; 3 Caine, 270; 2 Saund. 71-74. The reason of this rule is, that after the year and day, the law presumes the judgment satisfied; and it will not permit the judgment debtor to be disturbed by an execution, without a scire facias, or other legal process.

♦This rule of the common law, and its reason, apply with equal, if not greater force, to cases under our statute, where five years elapsed and no execution issued; or where five years elapse after the date of an execution before another is sued out. But it is urged that the injunction obtained by the Cincinnati Manufacturing Company takes the ease out of the operation of this rule.

It was formerly held, that if the plaintiff had been tied up by injunction for a year and day, he could not take out execution without a scire facias. 6 Mad. 288; 1 Str. 301; Bac. Ab., Exec. But this principle has been overruled, .and it is now held, that he may afterward sue an execution without scire facias. 2 Burr. 600; 2 Saund. 72.

In the present case, however, the injunction was dissolved, and the bill dismissed in May, 1823; and more than five years having elapsed from that time, as well as from the date of the last execution, the party is in the same situation as if the injunction had never been allowed, or any execution issued.

It is also claimed, that the writ of error prosecuted in 1825, removes the necessity of suing out execution within five years from the date of the last execution.

If the defendant brings a writ of error, and the judgment is affirmed, the defendant in error may take out execution after the year, and without scire facias; because the writ of error was a supersedeas to the execution, and the defendant in error must wait until it be determined. 5 Rep. 88; Bac. Ab., Exee. 362 ; 2 Saund. 72.

But by the express provisions of our statute, vol. xxii. 70, no writ of error shall operate as a supersedeas, until bond and security are given. Notwithstanding the allowance of the writ of error, therefore, the Miami Exporting Company were at full liberty to sue out execution upon their judgment. No bond was executed, and of course there was no supersedeas to the execution.

Admitting, then, that the judgment of the Miami Exporting Company was originally valid, a point upon which we intimate no opinion, it was dormant, and no execution could have regularly issued upon it, at the time the order of appropriation was made in the court below. It necessarily follows that the moneys in ♦controversy can not be applied to discharge such a judgment. The law presumes it to have been paid ; and that presumption must be rebutted by an action, or a scire facias. Had an execution issued on the judgment of the Miami Exporting Company and the money made, the court, on motion, would set aside the execution as irregular, and restore the money to the judgment debtor. It would be an anomaly in the administration of justice, to apply money raised upon a junior judgment to the discharge of a senior judgment, when, if the same money had been raised upon the senior judgment itself, the court would set aside the execution and award a restitution of the money.

3. The claims of Davis and others, rest upon the same grounds as those of the Miami Exporting Company with one exception.

On November 11, 1823, an execution was issued on the judgment of Davis and others, upon which a sale of the real estate was made by the sheriff, on December 15, 1823, which sale, with the valuation, was set aside by consent on September 3, 1829.

Whatever may have been the rights of Davis and others, on September 3, 1829, as to the sale upon their execution, they were then lost by their voluntary appearance in court and consenting that their own purchase should be set aside. More than five years had then elapsed sinco the date of their last execution, and they were bound to know that they could issue no other execution without scire facias. The law presumes that the sale was set aside, because the debt had been paid or released; and if such be not the fact, the plaintiffs must attribute their loss, if any there be, to their own acts. It has been settled in this court, that if a levy be set aside, the parties stand in the same situation as if no levy had ever been made. 2 Ohio, 400. We see no reason why this principle should not be applied to a sale upon execution voluntarily set aside by the parties; the execution upon which the sale had been made was functus officio; no subsequent steps could be taken to enforce the collection of the judgment without a new execution; and no new execution could be sued out because more than five years had elapsed since the date of the last execution.

The judgment of Davis and others, therefore, was entitled to no share of the money in controversy.

*It is unnecessary to settle the question, whether the judgments of the Miami Exporting Company and of Davis and others have lost their priority of lien upon the real estate, or whether the purchaser under the judgment of Lytle and Avery holds the lands, discharged of the prior incumbrance of those judgments. ¥e are satisfied that the Miami Exporting Company and Davis and others, are not entitled to the moneys in controversy; and if they have any other rights, we leave them to be asserted in such manner and form as the parties may be advised.

Order reversed.