author: By the Court : Judge Burnet’s

text:
    *Duncan McArthur v. Sarah Porter, widow, and others.
    Where the vendor of a tract of land, having a lien for the purchase money, obtains a judgment, upon which the land is sold for a sum sufficient to pay the whole amount, the lien does not pass to the purchaser of the land, so as to enable him to set it up against the widow’s estate of dower, but is extinguished by the sale on execution.
    The substance of tbe case made in tbe bill and answers, is this : In May, 1797, George Porter, then being unmarried, purchased of Nicholas Talliaferro, part of an entry for land standing in the name of Talliaferro, and gave his bond for the purchase money, reciting that it was given for the purchase money of the land, and specifying that the land was to be held as a security until the bond was taken up. Porter obtained an assignment of the entry and warrant from Talliaferro, had a survey executed, and in August, 1797, obtained a patent in his own name. In April, 1798, he married the defendant, Sarah. In September, 1801, George Porter deceased, and administration upon his estate was granted to Peter Porter. The bond given to Talliaferro not being paid, suit was brought on it against the administrator in the general court of the territory, and at October term, 1802, judgment was rendered and execution awarded. The writ of execution commanded the sheriff to make the debt, charges, and costs of the goods and chattels remaining in the hands of the administrator, and for want of such goods and chattels, to make the same of the lands and tenements. Upon this writ, the sheriff returned that there were no goods, and a levy upon four hundred and fifty-two acres of land, condemned to be sold by a jury of twelve men, and not sold for want of bidders. There were, in fact, no goods. Upon a subsequent execution, the land was sold by the sheriff to the complainant for the sum of $1,521. The money was paid to the .sheriff, and on the 19th December, 1803, the sheriff made the complainant a deed. The judgment was satisfied, and the balance of the money paid over to the administrator, and the complainant obtained possession of the land.
    The defendant, Sarah, prosecuted her writ of dower against ■complainant, and recovered judgment for one-third of the prem* ises, and for damages at the rate of thirty-five dollars per year from September, 1802. The bill prayed a perpetual injunction, upon the ground that the bond for the purchase money, under which it was sold upon execution, attached as an equitable lien upon it, which was paramount to the widow’s dower, so that the sale by the sheriff divested her right in equity.
    *The bill also claimed that the complainant ought to be considered in equity as the holder of the bond of Talliaferro and the lien connected with it, and that the widow could set up no claim for dower until such lien was discharged; and that after so much of the land was sold as would discharge the lien, she should be endowed of the remainder only.
    And it claimed further, that the widow ought only to be endowed of the value of the land and of the improvements, as they were at the death of her husband, not as they were when her recovery was had.
    And if the court sustained the recovery of dower, it claimed of Talliaferro, who was made a defendant, that he should refund of the amount received pro rata, and asked a decree to that effect.
    The cause was argued at great length by Scott and Grimke for the complainant, and by Brush and Ewing for the defendants.
    The points discussed were:
    1. Whether, under the territorial law of 1802, the lands of an intestate were subject to be sold on execution upon a judgment against the administrator alone, the heir not being a party?
    2. Whether Talliaferro’s bond attached as a lien, in preference-to the widow’s right of dower?
    3. Whether the territorial courts have power, as courts of law,, to set up and enforce such lien, by subjecting the widow’s right of dower to the discharge of the lien or purchase money, and what proceeding should have been had for that purpose? But as the-majority of the court have placed the decision of the cause upon grounds not discussed in the arguments, it is deemed unnecessary to report them, especially as they are fully noticed and considered in the dissenting opinion of Judge Burnet.
   By the Court :

The view taken of this cause by a majority of the judges, renders it unnecessary to decide upon the validity of the sheriff's sale — the existence of the equitable lien relied upon — or the power of the territorial courts, as courts of law merely, to enforce such equitable lien. Admitting every one of these points to be decided as the complainant contends for, still he has presented no case that entitles him to the relief sought.

George Porter, the deceased, acquired, by his patent, an estate of inheritance in the lands in question. The defendant,- Sarah, by her marriage with George Porter, acquired the right of being endowed in these lands, if she survived her husband. Upon his death, *this right invested her with a complete, perfect, legal estate. If an equitable lien existod upon the lands for purchase money, it belonged to Talliaferro, and to no one else. As to all the world beside, her right was clear and unquestionable at-law. At the sheriff’s sale the complainant did not purchase any right or interest that belonged to Talliaferro. He purchased the estate of which George Porter died seized, and nothing more. George Porter held this estate subject to his wife’s'claim for dower. In his lifetime, he could not, by any act of his own, discharge the-estate of this claim. The sheriff could sell nothing more than what-George Porter himself could have sold. The land, therefore, was sold by the sheriff and purchased by the complainant subject to this charge of dower. The proseeutiou of this bill, and the arguments in support of it, seem to involve this admission. If the complainant acquired the widow’s dower by the purchase at sheriff’s sale, it would have availed him as a defense to the action at law. This suit would not be necessary. Where nothing but a legal right was sold, how could he acquire an interest to be set up and established in equity ? The land was sold as assets in thm hands of the administrator, for the payment of the debt due of the-purchase money. It sold for a sum sufficient, and the proceeds were applied in discharge of that debt. By this payment, the lien for purchase money, whatever its character or effect might be, became extinct. It never passed from Talliaferro, but perished in*his hands.

Had the estate of Porter, which was assets in the hands of his administrator, proved insufficient to pay the debt, it would them have been necessary for Talliaferro to have enforced his lien against the widow’s dower estate. This could only be done by making the widow a party. Could she have been legally divested of the freehold vested in her by the death of her husband, upon the mere suggestion of an equitable lien, of which she might bo> totally ignorant, without giving her a day in court to defend her right or redeem her land ? Such a principle would be most arbitrary and unjust; it is only by the application of such a principle •that the complainant’s claim can be sustained.

It may be asked how the territorial courts, having no chancery jurisdiction, could have proceeded against the widow? It may be answered, that if they could not proceed at all, the consequence would be rather that the widow should hold her estate than that she should lose it, without hearing or judgment. But if everything that was assets in the hands of the administrator had been ^exhausted and the debt not satisfied, a proper process might have been devised to subject the widow’s dower, determining, in the first place, that it was liable, and in the next place, •directing how it should be sold. A scire facias setting forth, the whole matter, and calling upon the widow to show cause why her dower estate should not be subjected, might have been a proper course. Such a proceeding would have carried with it some ■semblance of justice, which is not the character of the doctrine ■ contended for by the complainant.

Adopt this doctrine, and what is the consequence? The equitable lien is a secret circumstance known only to the creditor and debtor — other persons'have no opportunity to obtain a knowl•edge of it. It does not appear upon the records of the court, or in the registry of deeds, nor in the terms of sale. The bidders never hear of it. They bid for the estate, subject to the dower incumbrance, and offer a price accordingly. If it be afterward discovered that the judgment creditor held a secret equitable lien, the purchaser may claim it as his own, and call upon a court of -equity to set it up for him, in destruction of the widow’s right— thus acquiring, through the aid of a court of chancery, a valuable interest in the estate, which was not contemplated at the time of purchase, and for which he paid not one cent of consideration.

Such, in the opinion of the court, is the claim of the complainant. He seeks — without the payment of a cent of money, or the performance of a single beneficial act to the estate by way of consideration, under pretense of an equitable lien, which, if it ever ■existed, he never owned, and which was long since extinguished— to wrest from the widow a valuable legal estate, vested in her by the death of her husband, in absolute right, without hor ever being made a party to the proceedings that thus annihilates her" rights. An attempt of this kind ought not to receive the countenance, much less the aid of a court of chancery.

It is the opinion of a majority of the court, that as the complainant purchased the estate in question, subject to the widow’s-dower, her recovery leaves him in full possession of all that ho purchased: As he has lost nothing, he can claim nothing of Talliaferro or of others. His bill must be dismissed, with costs.

Judge Burnet’s

dissenting opinion:

Having dissented from the opinion of the court, given in this-cause, I feel it my duty to state the view which I have taken of the subject, and which has led my mind to the conclusion that the decree ought to have been in favor *of the complainant. In order to do this intelligibly, it will be necessary to state the leading facts in the case. In May, 1797, George Porter, since deceased, purchased the land in question from Nicholas Talliaferro, and gave-his bond for the purchase money. The condition of the bond specified that it was given on account of the land, and that the land should be held as a security until the bond was taken up. In ■ August of the same year, Porter obtained a patent, and in April, 1778, intermarried with the defendant, Sarah Porter. In 1801 he-died intestate seized of the premises, leaving the said Sarah, his widow, and W. I. Porter, his only child and heir at law. Peter Porter took letters of administration on the estate of George Porter. Talliaferro instituted a suit against the administrator for the balance of the purchase money not paid, and obtained a judgment in October, 1802, before the general court of the territory, for $1,125.16. On this judgment execution issued, and there being no-goods and chattels in the hands of the admistrator, the sheriff returned nulla bona, and that he levied on the land in question, being a part of the tract purchased of the plaintiff. The complainant became the purchaser at the sheriff’s sale and obtained his deed in due form of law.

When the judgment was obtained, and when the execution was-levied, there was no court of chancery within the territory. Sarah Porter has since set up a claim of dower, and obtained a judgment at law against the complainant, against which he prays to borelieved.

Many points are presented in the record, and have been discussed: in the argument, but it appears to me the ease may be settled by the examination and decision of two questions. First. Did McArthur acquire a legal title in the land in dispute, by his purchase at the sheriff’s sale. Second. Was Talliaferro vested with such an •equitable lien on the premises as will enable the complainant to -hold them, free from the claims of the widow’s dower, he having purchased at a sale for the satisfaction of the debt, which is alleged to have been a lien.

In deciding the first question, it will be necessary to look at the statute of 1795, which was in force when the action against Porter was commenced, and which is substantially the same as that of 1802. This statute was adopted from the Pennsylvania code, in which we find two statutes on the same subject, one passed in the year 1700, which was supplied by the other, passed in the year 1704. The governor and judges, who, it will be recollected, constituted the ^territorial legislature, under the first grade of government, adopted the latter act, the first section of which is in these words, “ To the end that no creditors may be defrauded of •debts justly due to them, from persons who have sufficient real, if ■not personal estate, to satisfy the same, all lands, tenements, and hereditaments, whatsoever, where no sufficient personal estate can be found, shall be liable to be seized and sold on judgment and execution obtained.” This section is literally transcribed from the law of Pennsylvania, under which it has been uniformly decided that lands are liable to be sold on judgments and executions against executors and administrators, without the interference of the orphans’ court, and without any previous proceeding against the heir. It was natural for the courts of the territory to adopt the rule of construction which had been settled in Pennsylvania, as the statutes were the same, and as their construction appeared to be reasonable, beneficial, and in strict conformity with the letter of the law. Accordingly, we find that the general court of the territory, in construing our statute of 1795, decided, in accordance with the rule established in Pennsylvania, that lands were liable to be taken and sold on judgment and execution against executors and administrators, in the same manner as in other cases; and such was the uniform practice under the territorial government. As the statute of 1802 did not make any substantial variation in the law, in this respect, the construction just adopted was continued, and the general court were in the constant habit of allowing and sustaining such executions and levies; nor do I recollect of hearing the soundness of their construction questioned till after the establishment of the state government. That construction had been given to the law before I commenced practice, in 1796, and in the western part of the territory its correctness was not questioned.

But it was contended at the bar, that the decisions in Pennsylvania were founded on the law of the year 1700, which subjected “ all lands of debtors to sale on judgment against them, their heirSj executors, or administrators.” It appears to me that the defendants can not strengthen themselves by taking this ground, for two reasons. First. Because if the law of 1704 materially altered that of 1700, it must, so far, have repealed it; for, if they contain different provisions, the former must give place to the latter — both can not stand. Leges posteriores priores ábrogant. Secondly. Because it appears easy of demonstration that the two laws are substantially the same. The first subjects all lands of debtors to sale on judgments against *them, their heirs, executors, or ad•ministrators. By the second, “all lands, tenements, and hereditaments, whatsoever, are liable to be seized and sold on judgments and executions obtained.” The additional words, heirs, etc., in the first act, can not, under this provision, be more extensive than we find it in the second. The only difference seems to be, that the latter statute, from which ours was copied, subjects all lands to sale on judgment and execution obtained, without designating any case, not even judgments against debtors themselves, while that of 1700 enumerates the cases. Had the latter statute authorized the sale of the debtor’s land on judgments against Mm, without further provision, the case might have been different; for then it would have been a fair inference, that having mentioned one description of cases they meant to exclude all others; but having specified no ease, and having made the provision broad enough to embrace every description of cases, they might well omit the words heirs, executors, or administrators as surplusage. Had it been their intention to give the statute a more limited operation than that of 1700, they would have selected such terms as were calculated to answer their purpose; they would have enumerated the cases which they intended to embrace, or would have excepted those designed to be excluded. But they have done neither. As ■they have omitted those words of the first case which relate to the debtor himself, as well as those relating to his representatives, the conclusion seems to be inevitable that they were considered assurplusage, and that the provision, couched in the general terms-of the latter law, was the same in its effects as the more special one in the former law. If it had been the intention of the legislature, by changing the language of the first act, to give the construction contended for by the defendant’s counsel, they would have retained the general phraseology of the first law, omitting the words-heirs, executors, and administrators; but as if for the purpose of excluding that construction, they have not only omit.ted those words, but have varied those preceding them so as to render the-second act more general and comprehensive than the first. The correctness of this remark will be apparent to every person who will attend to the effect that would have been produced on the first act by the simple omission of the words heirs, executors, and administrators, and then advert to the further effect that has been produced by the alteration of the words in the preceding part of the section. But be this as it may, the courts of Pennsylvania have decided either that the two laws are essentially *the same, or that the law of 1704, of which ours is a transcript, authorizes the sale of real estate on judgments against administrators, because their decisions have been made subsequent to the passage of that law, which must have repealed the former as far as it was inconsistent with it.

The first section of the act of 1802, under which Talliaferro’sjudgment was obtained, is in the following words : “ The better to enable creditors to recover their just debts, all lands, tenements, and real estate shall be liable to be levied upon and sold by exeeu. tion to be issued on judgments, which may hereafter be recovered in any court of record within the territory, for the debt, damage, and cost due and owing on such judgment.” This language is as general as words can make it. It embraces without exception, all creditors, all debts, all real estate, and all judgments, and it requires nothing but the judgment and execution1 to authorize the -levy and the sale. There is nothing in the act that excludes judgments against administrators, or that requires any step to be taken, after judgment, and beyond execution, in order to justify a levy and sale. If land may be taken and sold by execution on any judgment, it may certainly be taken on a judgment against an administrator, as the law makes no distinction. An application to-tho orphans’ court, or a scire facias against the tertenants, is not required, nor is it believed that any important benefit would result from it, to countervail the delay and expense that would certainly follow. It would have been easy to shape the law so as to have made but one or the other necessary. The law subjecting real estate to execution for debt, and the law for the settlement of intestate estates, have no reference to each other. They are distinct statutes, intended for different purposes. The former authorizes a sale by execution where there is a judgment, without the agency of the orphans’ court. The latter authorizes a sale by the orphans’ court, on the application of the administrator, without the agency of the creditor. The one puts it in the power of the creditor to effect a sale where the administrator does not choose to act. The other enables the administrator to proceed and settle the estate where the creditor does not see proper to act. The remedies appear to be concurrent and independent; neither seems to require or exclude the other. In the one case the court before which the judgment is obtained will protect the rights of all persons concerned. In the other, the orphans’ court which grants the order of sale, will perform the same office. As I can not perceive any particular advantage that would be gained by ^requiring the judgment creditor to apply through the administrator to the orphans’ court for an order of sale, and as such a course is not required by the letter of the statute, there appears to.be no sufficient reason to induce a court to require it. The difference that exists in the nature and extent of the lien which creditors have in this country and in England on the lands of their debtors, is sufficiently striking to show that many of the formalities that are considered necessary in that country are not so in reality in this. In England the personal estate is the fund for the payment of debts, and for that purpose it goes as assets into the hands of the administrator, while the real estate descends immediately to the heirs, unincumbered with any lien that will justify the creditor in meddling with it, without a previous judgment against the heir. But not so in this country; here lands are assets to the same extent as chattels, and the only difference is, that the personal property must be exhausted before the real estate is resorted to. In England the liability of land to the claim of creditors is partial and limited. Here it is general and extends to the whole interest of the debtor. There was not, therefore, anything incongruous or improper in the principle recognized by the legislature, and adopted by the court in the construction of this statute. At all events it must be conceded that the phraseology of the law admitted of the construction given to it, without violating any principle of common law that had been recognized or adopted in the territory, although other judges equally learned might have been disposed to give it a different construction. It will also be admitted that the general court of the territory had a right to settle the construction of statutes, and that their decisions should be considered as the law of the land. In 1 Blac. Com. 69, it is said to be “an established rule to abide by former decisions where the same points come again in litigation, as well to keep the scale of justice even and steady, and not liable to waver with every new judge’s opinion, as also because the law in that case being solemnly declared, what was before uncertain and probably indifferent, is now become a permanent rule, which it is not in the breast of any subsequent judge to alter or vary from, according to his private sentiments.” The only exceptions to this rule are where the. former decision is evidently contrary to reason or the divine law. The Supreme Court of the United States have recognized this rule, and have uniformly adhered to the construction given by the superior courts of the several states to their own statutes. In the case of Telfair v. Steads, Ex’r, 2 Cran. 418, that court adopted the construction given by *the courts of Georgia, to statute 5 George II., by which construction lands were made chargeable for debts in the colonies without making the heir a party. In the case of McKeen v. Delaney, lessee, 5 Cran. 32, although the Supreme Court of the United States considered the construction given to ah act of Pennsylvania by the Supreme Court of that state, to be incorrect, or such a one as they would not have given had the question been presented for the first time, yet they adhered to the construction given by the state courts, observing that in. construing the statutes of a state on which land titles depend, infinite mischief would ensue should they observe a different rule from that established in the state. The same doctrine is held in Higginson v. Mein, and Pollard, etc. v. Dwight, etc., 4 Cran. 418, 429. In 2 Blac. 264, it is said, where an error is established and has taken root, upon which any rule of property depended, it ought to be adhered to by the judges, till the legislature think proper to alter it, lest the now determination should have a retrospect and shake many questions already settled.

It would be highly improper for this court to disregard the construction given by the general court of the territory, to the statute in question, for many reasons. 1. The statute was adopted by them, and by their authority received its obligatory effect in the territory; they must, therefore, have known what they intended by the law. 2. The same construction had been previously given in the State of Pennsylvania, to a statute substantially the same. 3. By disturbing that construction much mischief would ensue, and many titles would be put in jeopardy. And lastly, as the statute has long since been repealed, there appears to be no necessity to alter or vary the rule, should it even be admitted to have been an improper one.

On the whole, I am led to the conclusion, that the statute authorized the levy and sale which were made in this case, and that the complainant, by his purchase, has acquired a legal title to the premises in question. On this point, however, I believe there is no material difference in the opinion of the court, though I am not authorized to say there is a perfect coincidence.

The next inquiry is, whether Talliaferro held such an equitable lien on the premises as will enable the complainants, by virtue of his purchase, to hold them free from the claim of dower? In considering this question, we are naturally led to inquire, whether Talliaferro held a lien — whether that lien is superior to the widow’s dower — and whether the complainant, as a purchaser under the sheriff, is entitled to the benefits of it, to the exclusion of the right of dower ?

*The rule seems to be well settled, that the vendor has a lien on the premises for the purchase money, unless he agree to relinquish it and rely on other security. Proof of such agreement must come from the purchasee; for, in the absence of such proof, the lien is considered as existing. The death of the vendee does not affect the lien, nor is it destroyed by giving an obligation for the purchase money, or by the payment of a part of it, and it exists in favor of an assignee. See 3 Eq. Cas. 682; 1 Vern. 267; 3 Alk. 277; 2 Ves. 622; 1 Johns. Ch. 308; and other cases there cited. So far from there being any agreement on the part of Talliaferro to abandon his lien, it appears, from the condition of the bond, that he relied on it, and that Porter understood and agreed that the land should be bound till the bond was discharged. The existence of the lien being ascertained, we are to inquire whether it excluded the widow’s dower ? We find that the purchase was made in 1797, and the marriage took place in 1798 — consequently the lien existed before there was any pretense to the claim of dower.- The right having once vested, it was not in the power of the vendee to alter or abridge it by any act of his own, so long as the purchase money remained unpaid. Such a power would be altogether inconsistent with the nature of the right, and would destroy the value of the security. A lien held at the will of him on whose land it attaches and whose estate it incumbers, would he a novelty in legal proceedings. It would form a species of seourity as useless as it is unknown. In fact, the idea of such a power is inconsistent with the existence of the lien, and amounts to a declaration that the lien was never in being. The law, by making this provision in favor of the vendor, intended to give him a beneficial security, and if so, the permanency of that security must be placed beyond the control of the vendee.

In principle, there is no difference between a privilege to destroy the right in part, or to abolish it entirely. We can prescribe no limit to the exercise of such a discretion. But it is apparent that the vendor had a right to hold the entire estate in security. The law gave him an equitable mortgage, and it must protect it. I, therefore, conclude, that as the lien extended to the whole of the land, it was not in the power of the vendee, by any transaction or contract of his own, to relieve a third or any portion of it from the operation of that lien ; and whatever might be the decision as to the widow’s claim, when prosecuted in a court of law, in this court it must yield to the prior equitable claim of the vendor. The doctrine *of notice, it is conceived, does not apply to a case circumstanced like the present. The widow does not stand on the ground of a purchaser, for a valuable consideration without notice. She comes as a participator in the rights of her husband, as they stood at the time of her marriage; and as far as those rights were incumbered, she must be affected by the incumbrance. Her claim is legal, not conventional: it would, therefore, be doing violence to the laws — it would raise it above itself — to give it the double operation of divesting the widow of a settled right for the arbitrary purpose of vesting it in another. On the same principle, a legal mortgage would give way; but I believe that the law, in settling the rights of the widow, has had a scrupulous regard to the rights of others. Hence we find many cases in which her claim yields to the superior equitable claims of others; as, for example, if her husband exchanges land with another person, she can not be endowed -of both tracts, although her husband was seized of an estate of inheritance in both during coverture, because it would be unjust and would operate injuriously on the rights of others. And for the same reason, if her husband, being seized in common with another person, make partition, and that person be evicted for want of title, she shall not have her dower in that part of the land which his co-tenant may recover pro rata. 2 Bac. Dower, B. 4; F. N. B. 150. So, if her husband were seized of a joint estate and died, she shall not be endowed on account of the survivorship, for the survivor claims from the grantor, which is prior to her title of dower. So when a vendee, at the time of receiving his deed, executes a mortgage to the vendor to secure his purchase money, the wife of the vendee is not entitled to dower; for although her husband was seized, it was but for a moment, and it would be inequitable to support the claim in opposition to the clear understanding of the parties, by which the deed and mortgage are to be considered as parts of the same contract and treated as though they had been embraced in one instrument of writing. 2 Co. 77; 15 John. 459; 4 Mass. 560.

In Winn v. Williams, 5 Ves. 130, the master of the rolls decided, that a purchaser or mortgagee might protect himself against a claim of dower by taking in a mortgage executed before the marriage, “although the consequence will be, utterly defeating the right of dower.”

The decisions by the courts of tbe different states, on this point, have not been uniform. In Massachusetts it has been settled that a widow is not dowable of an equity of redemption generally. 10 Mass. 364.

*In Pennsylvania, the widow is dowable of land mortgaged before marriage, but the right is subject to the mortgage. 2 Serg. and R. 554. But a sale on a levari facias, on a mortgage, will bar the right of dower, though the mortgage were executed during coverture. Scott v. Crosdale, 2 Dall. 127; 4 Dall. 301, note.

In New Jersey, dower can not be claimed of land mortgaged before coverture. 1 South. 260.

In Connecticut, Maryland, and New York, a widow may be endowed of an equity of redemption. 1 Conn. 550; 7 John. 282.

In North Carolina, it has been decided that a widow is entitled to dower only of such lands as the husband died seized of, and consequently that an alienation by the husband alone, during coverture, is a bar to dower. 1 Hayw. 243.

In Virginia, a mortgage by the husband during coverture does not bar dower, unless the wife join. 2 Munf. 527.

In South Carolina, the court said, in Wells v. Martin, the right to dower had a preference to mortgages or any other incumbrances made or suffered by the husband in his lifetime. 2 Bay. 22. But the reporter, in a note to Bogie v. Rutte, etc., 1 Bay. 312, says, that it has been repeatedly determined in the courts of that state, that “widows of mortgagors were not entitled to dower.”

In Kentucky, the widow may be endowed of any beneficial interest of which her husband was seized during coverture. In the case of Winn, etc. v. Elliot’s widow, etc., Hard. 488, which was a bill in equity to bar the widow of her dower, the husband had, during the marriage, a beneficial interest: he had acquired the legal title, and he died seized in law, whereby, said the court, the wife’s right to dower became complete at law, and they decided that her claim should not be ousted by an equity against the husband derived during the coverture, and from the husband: nor should it be defeated by showing a title not derived paramount to the husband’s, but under it; nor by an equity that did not commence previous to the wife’s, but subsequent thereto.

In Ohio, it is admitted that the widow is dowable of lands mortgaged or aliened by the husband during coverture, if she do not join in the mortgage a deed of conveyance. And it has been decided, in the case of Ewing v. Stansbury, that she shall be endowed with reference to the value of the premises at the time of the alienation.

But it is confidently believed, that no court in the United States has decided that a widow is dowable of an equity of redemption, *where the mortgage was executed before coverture, without the qualification that her right is subject to the mortgage. In the case of Collins v. Torrey, 7 Johns. 283, the court say: “ The plain and necessary rule is, to allow her the dower, which she must take, as the heir or the purchaser takes the estate, subject to the mortgage.”

It only remains now to inquire, whether the complainant, in consequence of his purchase, is entitled to the benefit of this lien ? We have seen already that the lien continues in favor of an assignee; but whether the complainant be considered in that light or not, as a purchaser at a sale legally made to raise the purchase money for the benefit of Talliaferro, he must be entitled to the same consideration that Talliaferro would have been entitled to had he became the purchaser — otherwise the value of the lien would be measurably lost. It was inimaterial to Porter who purchased. If the land were bound for its price, to the exclusion of the title to dower, it must remain so in the hands of the complainant; for if the right of dower did not attach prior to the right of sale, it certainly could not be created by the sale. If there had been a court of chancery in the territory, and if Talliaferro had filed his bill and obtained a decree for a sale, the estate in the hands of the purchaser could not have been liable to the widow’s claim. But as there was no such court, and the vendor was under-the necessity of proceeding in a court of laws, it would be unreasonable to say that he shall lose his security, which would be the case, in part at least, were the purchaser to take the property subject-to dower, as with that incumbrance it could not be expected to command its value.

This case, in principle, may be likened to a procedure on a legal mortgage, by scire facias, under our statute. If the mortgage be executed before the marriage of the mortgagor, the claim of dower yields to the lien of the mortgage, and the purchaser at the sheriff’s sale will hold the premises, to the exclusion of that claim, because the lien is prior and superior to it.

In the case of Garson v. Green, 1 Johns. Ch., the decree was against the widow and heirs at law, for a sale of the premises without any reservation. It, therefore, seems to have been considered by the chancellor that the right of dower did not exist, and that the purchaser would take the premises free of this incumbrance.

From the view that has been taken of the subject, it appears to me that Talliaferro had a lien on the land which must be treated *as an equitable mortgage, and which secures the land for the payment of the purchase money, to the exclusion of subsequent incumbrances, and consequently that the right of dower in this case was subject to the lien, and can not be set up till the debt is satisfied.

The objection that the proceedings were had in a court of law, seems to be obviated by the fact there was no court of equity in the territory, and that under such circumstances courts of law will give the same relief as courts of equity, provided the forms of their proceeding will admit it. They can not enforce a specific performance, or compel a disclosure by the parties themselves, but wherever an equitable right can be presented, investigated, and decided in a form of action used by them, they will not hesitate to do it, and will enforce their decisions by any form of execution known to the law, and calculated to accomplish the object. Such was the fact in the case before us.

Is it objected that the widow was not a party in the proceedings at law, and therefore has not had a day in court? Neither is she made a party in proceeding on a mortgage, by scire facias, under our statute, although her rights are affected in the same manner and to the same extent. But she is now a party, and the merits of her claim are fully before us. If those merits have not been decided, and if, as has been urged, the proceedings at law have not concluded her, because the lien was not legal, but equitable, it would seem that the parties, being now before a tribunal of sufficient power, a final disposition may be made of the cause, by which the objection that the widow has not had a day in court would be removed. Should it be admitted that after the proceedings in the suit at law, and the subsequent establishment of a court of chancery, the widow might enforce her claim to dower, at common law, against the complainant, and that his defense, being an equitable one, could not there be heard, the admission would not affect the question, unless by showing that the remedy in the territorial court, for the want of full chancery power, was not complete, and that the aid of this court was necessary to perfect it. The admission would not affect the existence of the lien, or its operation on the claim of the widow, it would only show that a court of law would not continue to protect an equitable right after the establishment of a court of equity, and that this bill was necessary to quiet the complainant and relieve him from the.claim at law. If the proceedings in the territorial court did not completely silence the widow’s claim at law, the only resource for relief was to a court of chancery.

*Should it be admitted in the broadest terms that the proceedings in the general court have had no bearing on the equitable lien of Talliaferro, or on the legal claim to dower, it would follow that the lien is yet to be enforced, and this is certainly the proper tribunal to do it. To render a mortgage operative, it is not necessary for the mortgagee to become the purchaser of the mortgaged premises. Should a third person purchase, at a sale to satisfy the mortgage, it must operate to protect him against after incumbrances, to the same extent that it would have done the mortgagee, had he been the purchaser, otherwise the mortgage would be of but little use, I do not therefore see the propriety of the conclusion, that because Talliaferro was not himself the purchaser, the lien has been discharged, and the complainant must be liable to an incumbrance that Talliaferro might have avoided had he purchased himself. If the lien existed, the whole object of it was to enable the vendor to have the land sold for the payment of the purchase money, free from subsequent incumbrances, and I consider it a matter of perfect indifference by whom the premises were purchased. If in this case the claim of dower is to be sustained because the mortgaged premises have been purchased at the suit of the mortgagee, and purchased by a stranger, at a price sufficient to satisfy the debt for which they were bound, on the same principle the claim of dower must be good in every case where a third person purchases under a judgment by scire facias on a mortgage, for a sum sufficient to pay the debt.

Whether McArthur relied on the lien or not, is a matter not known to the court, nor do I consider it material, as a man may be ignorant of his rights without forfeiting them.

On the whole, it appears to me that the equity of the case is with the complainant.


source: Caselaw Access Project

author: By the Court:

license: Public Domain

text:
    *Dugan v. Campbell.

      Writ of Error to the Common Pleas of Muskingum County.

    Action can be sustained upon a note in writing, whether negotiable or not, without setting out the consideration or original contract.
    The term currency means current money, where this interpretation is not controlled by the positive terms of the contract.
    This was an action of assumpsit upon a promissory note in the following words: “ Four months after date I promise to pay John S. Dugan or order seventy-five dollars for value received, payable in the currency of this place, if the said Dugan does not take it out in store goods at the same rate. Zanesville, August 17, 1820.”
    The declaration alleges that the defendant made his certain note in writing, commonly called a promissory note, and delivered the same to the 'plaintiff, by which he promised to pay, reciting the note substantially; it then proceeds as follows: “ And the plaintiff avers and says that the defendant did not, four months after the date of said promissory note, pay to him or order seventy-five dollars in money current in Zanesville, nor did he the plaintiff take out that sum in store goods at the same rate, by reason whereof the defendant became liable to pay to the plaintiff the said sum of seventy-five dollars in lawful money, and being so made liable to the defendant, then and there afterward, to wit: upon the 1st day of January, 1821, at the county aforesaid, undertook and faithfully promised to pay the plaintiff the said sum of seventy-five dollars, when thereto afterward he should be requested.” General issue pleaded, and verdict for the plaintiff. The court of common pleas arrested the judgment; to reverse which the writ of error was brought; general error assigned.
    S. W. Culbertson, for plaintiff in error:
    It is contended that the note declared upon, in this case, is not a promissory note within the meaning either of the English statute of Anne, or of the statute of Ohio; and not being a promissory note, though it contain the words “for value received,” the contract ought to have been specially declared on and the consideration set out.
    The definition of a promissory note, as it is understood at this day in Ohio, may be given in the words of Blackstone, 2 Com. 467: “ Promissory notes, or notes of hand, are a plain and direct engagement to pay a sum specified, at a time therein limited, to a person therein named, or sometimes to his order, or often to the bearer at large.” According to Butler, N. P. 272, it must be made payable *on a certainty and not on a contingency. A note made payable to an infant when he comes of age, is a good note within the statute of 3 and 4 Anne, chap. 9, sec. 1; Burr. 226; and it is a good note if made payable on the death of A. 2 Str. 1217.
    I understand a promissory note to be a written undertaking to pay a sum certain in money, or a certain representative of money, subject to no condition by which the liability to pay may be removed. If it is for the payment of money upon an event that must happen, it is good, for the event renders the time of payment certain.
    This is a note for the payment of a sum of money certain, and at a certain time. It is subject to no condition by the performance of which the defendant, without the assent of the holder, can defeat the right to demand money. It was to be paid if not taken out in store goods. The defendant could not tender store goods in discharge of the note; the plaintiff might take them if he chose, and he might have done the same thing if they had not been mentioned in the note. If the plaintiff called for store goods and the defendant did not give them, no new cause of action arose; no right of either party would be affected.
    It is argued that the note is not made for a sum of money certain, because, although it calls for seventy-five dollars, it is payable, not in money, but in the currency of Zanesville, which was of less value than money. This argument asks the court to infer a fact not expressed in the note, that the “ currency of Zanesville ” means something other than money, than the legal currency of the country. The absurdity of this argument must be manifest from this fact. That notes drawn as this one is must receive different interpretations, according to the place where they may be drawn. If drawn at Chill icothe and payable in the currency of the place, nothing being considered current there but money, it would be a good promissory note. But if drawn at any place where depreciated bank notes had a current circulation, at a reduced price, it would not be good as a promissory note. To ascertain whether the note be good or not, the court are required to travel out of the writing and inquire what was the state of the currency at the place where it was drawn ? This the court ought not to do, the note must be good or bad upon its own terms. The court should give one general legal interpretation to the words used. “ The currency of this place,” no matter where the note was executed, must mean the legal metallic currency of the country. The court can recognize no other unless the writing has specifically described it. If the engagement was ^expressed that the payment should be in bank notes of any particular bank, then the questions might arise, what was the value of the paper of that bank, and could the engagement be considered one for the payment of a sum of 'money certain ? As it is, no such questions can fairly arise.

      But if it were conceded that the terms “ currency of this place ” means bank notes, it would not vary the case. In Keith v. Jones, 9 Johns. 121, the note was for a sum certain, payable in York bills. The defendant demurred to the declaration, and the court overruled the demurrer. They said that the note was negotiable; “payable in York state bills is the same thing as being made payable in lawful current money of the state, for the bills mentioned mean bank paper, which is here, in conformity with common usage and common understanding, regarded as cash.”
    Goddard and Adams, contra:
    It is a principle of law too well settled to require any authorities from the books to support it, that there are only two classes of instruments which upon the face of them import a consideration. These are, specialties, and that class of simple contracts composed of promissory notes, and bills of exchange.
    Before the statute of 3 and 4 Anne, c. 9, which placed promissory notes on the same footing with bills of exchange, Lord Holt uniformly held that promissory notes were nothing more than special agreements, possessing none of the properties of mercantile instruments, and that therefore the actual consideration on which they were founded must be set forth in pleading, and proved on the trial, and that a contrary determination would be setting up a “ new kind of specialty hitherto unknown to the law. 2 Ld. Ray. 758. All contracts, therefore, which do not come within the statute, unless they are under seal, must be regarded as special parol contracts, and stand in the same situation which promissory notes did before the statute was made.
    The contract set forth in the first count in this declaration is one of this character; being payable in the “currency of Zanesville,” and not in money, without which it can not be declared on as a promissory note. 2 Bibb, 572, 585; 3 Bibb, 26, 76, 85, 115; Lansing v. McKillup, 3 Caines, 286.
    Besides, the contract set forth in pleading in this case is liable to another objection; the payment depends upon a contingency which destroys its property as a promissory note, even if it was payable in *money; for commercial transactions would be greatly embarrassed, if notes of this kind, incumbered with conditions, were permitted to circulate. It has been determined that a note promising to “ pay a certain sum, or to render the body of I. S. to prison by such a. day,” is not a note on which an action will lie after failure to render the body; because it was not originally for the payment of money, but became so by matter ex post facto, 2 Ld. Ray. 1362, 1396; and where the note was to pay if another did not within a certain time, the same doctrine was held. 8 Mod. 363. The note in this case is payable, “provided the plaintiff does not within a limited time take the amount out in store goods,” and can not be distinguished from the two last cases cited:
    A third objection to the declaration is, that there is no averment that the note was not paid “ in the currency of Zanesville,” but the averment is that it was not paid in “ money current in Zanesville,” so that the breach is insufficient, for it should be assigned in the words of the contract. Com. Dig. Pleader, c. 45, 49; 2 V. 2. In common language, when we speak of the currency of a particular place, we mean bank notes, a currency different from that of other places, and different from specie, for if the words “ currency of Zanesville,” are synonymous with money, where was the necessity of specifying a particular currency. The value of bank notes depends upon the facility of payment, which can be obtained more readily from banks in the neighborhood than from those at a distance, and bank notes are often below par from other causes, which creates a difference in their value; and it would be destroying language and the law to conclude that the word “ currency is synonymous with the word “money,” but this point has been directly decided by Chief Justice Parsons, in Jones v. Tales, 4 Mass. 252. He held that the words “foreign bills,” in a note did not mean money, and that they must be construed to mean bank notes, and consequently different in value from money.
   By the Court:

It is not necessary to decide whether the note in this case is or is not negotiable, or to adopt or reject the principles of the cases cited on either side; for if it were not negotiable within the rules of decision, we should nevertheless consider it a promissory note, importing in itself a consideration.

From the first settlement of the state, it has been a universal practice among all classes of citizens, in making contracts, for the party who has received a consideration, according to the terms of ^agreement, to execute a written promise to pay a sum of money or other property for value received. Although the writing thus executed may want words of negotiability, or may contain conditions that destroy its negotiable character, the promisee rests in security upon his written contract, as evidence of his claim, and preserves no other proof of the transaction upon which it was founded. By common consent, actions have always been brought and sustained upon such instruments without setting forth or proving the consideration. Were the court now to establish a different doctrine, great mischief might ensue : numerous judgments would virtually be declared erroneous — existing contracts might be seriously affected, and a rule would be established contrary to the common understanding and usage of the country. A door would be open for controversy, whether the note were any evidence of debt, or whether the whole original contract must be made out in proof by the plaintiff? This is required neither by justice nor by common sense. A principle once established and continued by common consent, and with general approbation, ought to be received as the law of the land. It should not, but for very weighty reasons, indeed, be departed from or overruled. In this case, we are of opinion that no such reasons exist.

The objection to the manner in which the breach is assigned, is not well founded. The term “ currency ” in a contract, must be taken to mean current money, unless there be something in the contract itself to require a different interpretation. The case in 9 Johnson is considered clear on this point.

Judgment reversed.


author: By the Court :

text:
    Campbell v. Hampson.
    Ho action lies against the sheriff for imprisoning a debtor in the same room with criminals, if the county jail contain but one apartment.

      (¿uxre: Whether such action may not be sustained against the county commissioners ?
    This case was certified from the supreme court of Muskingum county. It was an action of trespass, and was tried by a jury upon the plea of not guilty, who found a verdict for the defendant. The plaintiff moved to have the verdict set aside as against law. A statement of facts was made and agreed to by the parties, and the motion for a new trial referred for decision to this court.

      *The facts stated are as follows:
    The plaintiff was arrested by the defendant on the 26th day of September, 1822, by virtue of a capias ad respondendum issued from the court of common pleas of Muskingum county, in favor of John S. Dugan, in an action on the case, and was in the lawful custody of the defendant as a debtor. The jail of the county of Muskingum contains but one apartment, which is used, and heretofore has been used, for the imprisonment of convicts, persons charged with crimes, and debtors, this being the only room or building appropriated by the commissioners for that purpose. And it also appeared in evidence that the sheriff had represented to the commissioners the situation of the jail, and requested them to make provision for the separate confinement of debtors. The defendant, on said 26th day of September, by virtue of said writ, took said plaintiff to said jail, and there imprisoned him in said apartment, which then contained two insane persons, one person charged with rape, and one with bigamy. The jail was described as a filthy and loathsome apartment, and the plaintiff protested against being confined there, and claimed decent and comfortable lodgings. The keeper of the jail treated the plaintiff with all humanity and gave him every accommodation, and kept the room as clean and comfortable as the nature of the place would admit. On the 28th day of September the plaintiff procured bail and was discharged.
    Goddard and Spangler, for plaintiff:

      First. Was the imprisonment illegal ?

      Second. If illegal, is the plaintiff’s remedy against the sheriff?
    If the law supports the affirmative of both of those questions, we conceive a new trial must be granted. The first point was conceded, but to remove all doubt we will take a view of the law on the subject. By the common law, criminals and debtors shall be imprisoned in separate rooms. 3 Jacobs, L. D. 166; 2 Burns’ Justice, 321; 3 Bac. Abr. 351. It will be found also, on an examination of the above authorities, that the sheriff is not bound to confine debtors in the public jail, but may in all cases, if he prefers so to do, imprison them in any other place within his county.
    The above principles of the common law have been recognized by the Supreme Court of the State of New York. See 6 Johns. 22. The court then reasons by the analogy which exists between the ministerial duties of a sheriff and coroner, and decides that as it is *the duty of a sheriff to provide a place for the confinement of debtors, when no place has been provided by the proper authority, so also it was the duty of the coroner in that case to have provided a place for the confinement of the sheriff (whom the coroner had arrested on a ca. sa.), instead of imprisoning him in the county jail. The statute of the state, providing for the “ erection of public buildings ” (13 Rep., sec. 1), appears to have been framed with a view to the above principle of the common law. It provides that every jail shall contain two apartments, etc., one for debtors, and the other for criminals. It will be found, from the common law authorities previously cited, that it is imperious on the sheriff to imprison criminals at all events in the county or common jail.
    From those principles of the law we reason as follows: Debtors and criminals shall be imprisoned in separate rooms, or houses. But from the agreed statement of facts it appears that the jail of Muskingum county contained but one apartment, and the law (as we have shown) requires that criminals shall be confined there. Then where is the sheriff to confine debtors ? Not with the criminals, for that the law prohibits. Here, then, we see the propriety of that principle of the common law which authorizes the sheriff to provide a place for the confinement of debtors. But the sheriff did not pursue this course, thus pointed out by the law of the land. He, in violation of the law, and of the rights of the plaintiff, confined him in the same room with criminals. This imprisonment we hope we have shown to be illegal.
    It has been urged by the defendant’s counsel, and (we believe) the court inclined to the same opinion, that it was imposing an unreasonable duty and expense ón the sheriff, to require Mm to furnish a place for the imprisonment of debtors. To this we answer, that this duty appertains to his office, and is as old-and well established as the office itself. We conceive that' it was intended for the benefit of the sheriff as well as the debtor: for as a county jail might contain but one apartment, and that apartment be filled with criminals, and the sheriff subject himself to an action of trespass was he to imprison him therein, so a county jail may contain several apartments, and the sheriff may deem it insufficient for the safe keeping of the debtor and subject himself to an action for an escape, by imprisoning there. In the first instance, the law and the rights of the debtor require him to provide another place of imprisonment. In the other case his own interest requires that he should have the power of providing another place of imprisonment. As to the ^expense, it will be found by examining the act establishing boards of commissioners (18 Rep. 169), that this and every other necessary county expeilse is to be paid by the county, and were the commissioners to refuse to allow an expense thus necessarily incurred, the sheriff could recover it by law. But it was observed by the court, that by the statute of this state, the commissioners, and they alone, had the authority of erecting jails ; and therefore the sheriff had no alternative but to imprison debtors in the jail thus provided by the commissioners. The same objection might, with equal propriety, be urged in a similar case in England, as the sheriff there has as little to do with the erection of public jails as he has here. See 3 Bac. Abr. 345. Yet was the sheriff there to imprison criminals and debtors in the same apartment, he would forfeit his office, and be liable to the party injured in treble damages. 3 Bac. Abr.
    In the case before cited from Johnson, the coroner might have with equal force urged the same argument, and probably did, yet he was liable for not having provided a place for the imprisonment of the sheriff. Thus it appears that the principle here contended for, and we say supported by law, does not depend on, neither has it any connection with the power of erecting public 'jails; therefore the foregoing objection consequently must fall. We ask, what would be the course for a sheriff to pursue, was there no jail erected within his county ? Would he give the debtor his liberty because the commissioners had not erected a jail? If he did, the court knows he would be liable to an action for an escape. Here,' then, comes in his common law power to his aid, of providing a suitable place, by virtue of his office, for the confinement of the debtor. And here again we see the necessity for this power. We, say, then, that in the present case there was not in fact, or in law, any place provided by the commissioners for the imprisonment of debtors. The house appropriated by the commissioners for the county jail, contained but one apartment, and in that apartment the law required the sheriff to imprison criminals, and the same law forbids the imprisonment of debtors in the same room with criminals. It was then necessary for the sheriff to exercise the power with which the law clothes him, and provide another place for the imprisonment of the debtor, or, in violation of the law, imprison the debtor in the same apartment with criminals. He made his selection — he pursued the latter course, and thereby, we say, subjected himself to an action.
    But it has been urged, that if the plaintiff has sustained an injury, *his remedy is against the county, and not against the sheriff. This is the second point to be considered.
    We conceive there is no principle of law better established than that he who commits a trespass, even should it be by the advice or the command of another, is the person liable to the party injured. 6 T. R. 300; 5 Burr. 2657; 2 Esp. 533.
    He may, and probably has, his remedy qver. And indeed, in this case, it is clear to our minds, that the plaintiff’s remedy is against the sheriff only. We have endeavored to show that the law clearly pointed out a different course for the sheriff to pursue, than to imprison the plaintiff with criminals. If he, through ignorance of his duty and of the law, has committed a trespass, we can see no reason why the county should be liable. The commissioners may have neglected their duty concerning the erection of a jail, but that negligence can furnish no excuse for the sheriff, while he possesses the powers we have pointed out. The act providing for the erection of public buildings, before cited, provides, that “ whenever the commissioners may deem it necessary, they shall cause to be erected,” etc. Now was this suit brought against the county, the discretionary power lodged with the commissioners would, we think, be an effectual bar to the action. Because by the statute, the commissioners are not to erect jails until they deem it necessary. They have not deemed it necessary or expedient to erect a jail with two apartments, in this county, and in acting on this opinion (which probably was based on the poverty of the county) they have only exercised the discretion which the law gives them. For those reasons, we are of opinion that the {plaintiff’s remedy is against the sheriff, and against him only.
    No argument was presented for the defendant.
   By the Court :

At the common law it was unlawful to confine a person in custody for debt in the same prison with those imprisoned for crimes, unless the debtor assented to it. If a debtor were thus imprisoned, ,he had his action for the wrong against the sheriff.

•Our statute directing the erection of jails, provides that the jail shall contain not less than two apartments, one of which shall be appropriated to the reception of debtors; the other shall be used for the safe keeping of persons charged with or convicted of crimes. This provision is clearly predicated upon the principle that the unfortunate debtor is not to be associated with the unprincipled and profligate felon. And the court have no doubt but thus to associate *a debtor is a wrong for,which he may have an action for redress — the difficulty is, against whom shall such action be brought ?

The fact that this action is sustained, in England, against the sheriff, does not warrant us in sustaining it here. He has, with us, no authority to provide a jail, or to imprison a debtor in any other place than the public jail. It is the duty of the commissioners to erect and provide a jail. If this duty be performed — if there be a public jail with separate apartments, and the sheriff shall, in such case, confine a debtor among criminals against his consent, no doubt he would.be subject to this action. But the facts agreed present a very different case. Here was a jail with but one apartment, and that contained persons charged with criminal offenses. The sheriff had legally arrested the plaintiff — ■ he could not give bail, and it was the duty of the sheriff to confine him in the public jail. Had he imprisoned him elsewhere, it would have been illegal. The plaintiff, in the action, might have considered it an escape — 'the defendant a trespass. Where the sheriff acted in strict obedience to his writ, and in the performance of his duty, he shall not be subjected to an action. The plaintiff has sustained an injury from others, and must seek redress against the wrong-doers — not against the innocent sheriff.

The motion for a new trial is overruled.


author: Judge Burnet :

text:
    Rees v. Smith.
    Defendant in chancery having answered to the merits, without objecting to the jurisdiction, and having obtained an order to stay the proceedings until the decision of another suit involving the same merits, shall not afterward object to the relief in equity that there is remedy at law.
    Where a party has substantially, but not literally, complied with his contract, equity will interpose and aid him in obtaining justice.

      The bill was brought by the assignee of the vendor of a tract of land, against the purchaser, to obtain a decree for the balance of the purchase money, or a rescinding of the contract. The facts were these: Ludwick Wolfley, James Hunter, John Hunter, Morris Rees, Solomon Rees, Thomas Rees, and Noah Zane were proprietors in unequal proportions of sec. 11, T. 14, R. 19, situate in Fairfield county. The land having been entered at the Chillicothe land office, an agreement was made between the parties that the patent should issue to Zane, who gave a bond to each of the others to convey him his share of the land when the patent was obtained.
    In June, 1810, before the patent issued, Solomon Rees sold his *traet of land to the defendant, Smith, as eighty acres, at eleven dollars and fifty cents per acre. Thirty dollars to be paid in hand; four hundred and thirty in September following, and the residue in three equal annual installments. .The title to be made in September when the payment was made, and if not then made, Roes to give security for the title to be made in a reasonable time. Possession to be given to Smith in the ensuing October, if required. This agreement was reduced to writing, and executed by both the parties.
    Upon this contract Smith paid forty dollars at the time of execution ; two hundred and fifty dollars on the 27th of October, 1810, and one hundred and thirty in November following; and was put in possession of the land. Rees not having obtained a deed from Zane, in October, 1810,executed a bond to Smith for the title, with Thomas Rees and Jesse Rees as security, conditioned for making a title so sopn as a regular survey could be made. Upon this bond the Reeses indorsed an order to Zane to make the title to Smith. The bond and order was presented to Zane, who'indorsed upon the. bond a promise and an engagement to make the deed to Smith.
    After this a survey of the section was made, when it was found not to contain the full quantity. The proprietors all agreed to apportion the loss among themselves, allowing to Smith his full quantity of. eighty acres.
    In August, 1812, Zane, Smith, and all the proprietors, met for the purpose of executing and receiving deeds. By the consent of all concerned, Zane conveyed to Ludwick Wolfley, .James Hunter, John Hunter, and Morris Rees, their several tracts of the land by metes and bounds. At the same time he executed a deed to Smith ior the eighty acres purchased of Solomon Rees, the descriptive terms of which are as follows: “ being part of section 11, T. 14, R. 19, containing eighty acres, the line to run on the south boundary of the said eighty acres so as to include the two small fields south of the road, and to run the line as near the said fields as may be practicable, so that the line including said fields may be a straight line — thence to run east and west for the basis of the said eighty acres. The body of said eighty acres lying north of the run near Solomon Rees’, dwelling-house.” Smith received this deed, and gave up to Zane the bond executed by the three Reeses, and upon which Zane had indorsed his agreement to convey to Smith. At the same time Zane executed to the heirs of Thomas Rees a deed for all the residue of the section, reserving for himself fifty-five acres eighty-six poles in the northeast corner.
    YThese deeds Zane took with him to Yirginia to complete them by adding his wife’s relinquishment of dower. When those deeds were returned, Smith took the one for him to his attorney, who advised him that it was too vague and uncertain in description to be valid; upon which Smith refused to accept it, and left it in the attorney’s hands.
    The balance of the purchase money remaining unpaid, in February, 1813, Solomon Rees assigned Smith’s covenant to the complainant, and, Smith refusing to pay, the complainant brought suit at law upon the covenant. Smith defended the suit and resisted a recovery, upon the ground that Solomon Rees, not having executed the deed in September, according to the terms of the covenant, could not recover at law — and upon that ground obtained a verdict; -after which this suit in equity was commenced.
    Smith put in his answer without making or stating any objection to the jurisdiction of the court, and in his answer suggested that he was defendant in another suit in chancery, between other parties, in which the boundaries of the land were drawn in question, and praying that proceedings might be stayed until that suit was determined. An order was accordingly made to stay the proceedings, and they were stayed until the suit in question was decided, which settled the boundaries, as Smith, in his answer in that ease, had claimed. This cause was then proceeded in to final hearing in the common pleas of Fairfield county, when a decree was made that the defendant should pay the balance of purchase money with interest. From this decree the defendant appealed to the Supreme Court, and the whole case was reserved for decision in this court.
    No argument was submitted on the part of the defendants. For the complainant an elaborate argument was presented by Mr. Ewing. But as the principles relied on, and the reasonings urged, are substantially adopted by the court in the opinion, it is deemed unnecessary to report Mr. Ewing’s argument.
   Opinion of the court by

Judge Burnet :

Two questions are presented in this case: 1. Has the court jurisdiction ? 2. Has the contract been, performed on the part of Rees, so as to entitle him to the relief prayed for?

As to the first inquiry, it is manifest that the subject matter of the contract comes properly within the province of a court of chancery. The defendant might have sustained a bill for specific performance, or to rescind ; and it is contended with some force, that this right *must be so far reciprocal as to authorize the vendor to sustain a bill where the covenants on his part have been substantially, though not literally, performed, and the party claiming a strict performance, is in the full and secure enjoyment of the thing contended for. A punctilious performance of the minutia of a contract, is not always required in equity, though the want of it may present a difficulty in a court of law. If the conditions have been substantially performed, and the benefits of the contract fully secured to the opposite party, equity has considered it sufficient. But in this case the defendant, by answering and putting the merits in issue, has submitted to the jurisdiction, and the court, at this stage of the proceedings, may go on and decide as the equity of the case may require. He has not only acquiesced, but has obtained a stay of proceedings till the fate of another bill should be known, to which he was a defendant, and by which he might lose a part of the premises purchased of the complainant. The existence of that suit, and the possibility of a recovery, were relied on as an important part of his defense. The court so considered it, and he was indulged with a delay. That suit has been decided in his favor, and now, for the first time, an exception is taken to the jurisdiction of this court. To indulge the defendant in this course, would seem to be trifling with justice. It has been repeatedly decided, that an objection to the jurisdiction of chancery comes too late, after a defendant has answered and contested the merits. If he do not demur to the relief, the court will detsree for the complainant on the hearing. Gilbert’s History and Practice of Chancery, 219. In the case of Ludlow v. Simond, 2 Now York Cases in Error, 56, this doctrine is asserted and supported, both by reason and precedent.

The twenty-sixth section of the act directing the mode <of proceeding in chancery is also relied on. That section provides, “That after answer filed and no plea in abatement to the jurisdiction of the court, no objection, for want of jurisdiction, shall ever after be made, nor shall the court ever thereafter delay or refuse justice, or reverse the proceedings for want of jurisdiction, except in cases of controversy respecting land lying out of the jurisdiction of such court.” Without undertaking to decide how far this section will control or affect the provision contained in the second section of the same act, by which the chancery powers of this court are created and limited, we may safely say that in a case circumstanced like the present, it may be relied on with propriety and effect.

On the part of the defendant, it is urged that the complainant’s ^remedy, if any exist, is at law; but we can not shut our eyes on the fact, that the remedy at law has been extinguished by a judgment rendered against the complainant by a court of competent jurisdiction, on the ground alleged by the defendant, that Solomon Roes had not complied with his contract. The defendant having succeeded on that ground, now attempts to defeat the application here, by maintaining the converse of the proposition. The words of the statute defining the jurisdiction of courts of chancery, relate to the time of filing the bill. If the complainant has not then a complete and adequate remedy at law, it would seem that the legislature in tended to afford him the aid of chancery; nor does there appear to be anything in the statute making it necessary to inquire whether at any former period a legal remedy did or did not exist. It is one of the peculiar provinces of equity to grant relief in eases of fraud and accident, and it is worthy of inquiry, whether both of these circumstances are not to be found in the present case. The defendant admits that, in the trial at law, he denied the existence of a legal remedy, and having succeeded in that defense, obtained a judgment. He now attempts to defeat the application on the equity side of this court, by advancing the converse of that proposition. Although he admits that the facts remain as they were, he contends that there was a remedy at law, and that this court can not therefore grant relief. The accidental circumstance, that the plaintiff’s remedy at law has been destroyed by the practice of the defendant, ought rather to strengthen than to weaken his claim to the aid of this court.

As the statute admits the jurisdiction of courts of chancery, in cases where there is not an adequate remedy at law, it is difficult to perceive how that jurisdiction should be affected by showing that a legal remedy once existed,.which has since been lost, without the fault or laches of the defendant. It is alleged, and such appears to be the fact, that the plaintiff in the court below being an assignee, had no knowledge of the bond and security given by Solomon Rees to the defendant in October, 1810, or of the order on Zane for a •deed, or of his acceptance of that order, which circumstance seems to account for his failure in the suit at law.

Circumstanced as this case now is, it must be admitted that the remedy at law, to say the least of it, is both doubtful and difficult, which has been generally considered as a sufficient ground for chancery to retain a cause.

In order to determine the second inquiry, it is necessary to attend *more particularly to the facts. By the contract of June,. 1810, Solomon Rees was bound to deliver possession of the land in October, and to make the title deed in September, or to give satisfactory security that the same should be made in a reasonable time. It is admitted that possession was delivered, and that in October a bond was given, with security, to Smith, for the execution of the deed. At the time of the contract Smith knew that the fee of the entire section of which the land in question was a part, was in Noah Zane, in trust for Rees and the other proprietors. On the breach of the bond, Rees drew an order on Zane in favor of Smith for the deed, which order Zane accepted, and bound himself to execute the deed. ' Some time after, Zane, Smith, and the other proprietors met, and agreed on the manner in. which deeds should be executed by Zane to each of the claimants, of which meeting and agreement the complainant appears to have had no knowledge. In pursuance of this agreement, Zane executed and delivered deeds to each of the parties for their respective shares. At the time Smith received his deed, or at the time it was executed, he gave up to Zane the bond and security given by'Solomon Rees, together with the order on Zane and his acceptance. By the execution and delivery of these deeds, the whole of the land was disposed of, and from thenceforth it became impossible for the complainant to procure, or for Zane to execute to the defendant any other deed than the one which had been executed. By the agreement and the deeds executed as above, all the boundaries of the defendant’s tract were fixed and certain, except the northern line, which has since been determined and settled by a decree of this court, according to the claims and pretensions of the defendant, who is and has been, since that decree, in the quiet and peaceable possession of the land. The description of the land, as contained in the deed to Smith, appears to be confused and uncertain; but that uncertainty may be removed by reference to the other deeds executed at the same time, and to the decree before mentioned.

The defendant alleges that when he agreed to the execution and delivery of the deeds, and when he accepted his own, it was with a mental reservation, that if his counsel did not approve of it, he would not retain it or consider it a discharge of the contract; which determination, however, was unknown to Zane or the other parties concerned, till after the delivery of all the deeds, by which it became impossible for the complainant to procure for him any other.

From this state of the case, it appears that the complainant has ^failed to show a literal performance of the contract, though he has performed it substantially, and in the way assented to by the defendant. The bond and security was to have been given in September, but it was not furnished till October, when it was received without objection, accompanied with an order on Zane for a deed, in pursuance of which order a deed was executed and delivered, and the bond and accepted order given up to be canceled. This would not have been done, had not-the defendant considered the bond as executed in time, and the execution and delivery of the deed as a discharge of its condition. Having thus received the security, and availed himself of it, a court of chancery will not lend a willing ear to a mere technical informality. Another objection is to the description of the land as set forth in the deed. This defect may be attended with some inconvenience on the ground of uncertainty, but it may be obviated and rendered certain by a reference to the deeds and decree before stated; and in addition to this consideration, we can not but perceive that the difficulty has been produced by the defendant’s own conduct, and that it can not now be remedied either by the complainant or by Noah Zane. He saw the deed and agreed to accept it, and at the same time consented that the deeds to the other proprietors should be delivered, one of which conveyed to the heirs of Thomas Rees all the residue of the section not included in the previous deeds. The fee of the whole section having thus passed out of Zane, with the exception of his own tract, lying remote from the one in question, should the deed to the defendant be given up, as contended for, the title to his portion of the tract must vest in the heirs of Thomas Rees. This difficulty having been produced by the act of the defendant, without the agency or even the knowledge of complainant, it should not now be charged to his account, or made a pretext for withholding from him the consideration, which, it is admitted, he would have been entitled to, had the covenants on his part been literally performed. In equity, a substantial performance may be good, whatever objections it might be liable to in a court of law, and we are all' of opinion that such a performance has been made out in the present case, and that so far as this performance has deviated from the letter of the covenants, the deviation is to be ascribed to the defendant himself.

We consider it no objection to the decree in this case, that it is for the payment of money only. Such decrees are frequent. The case of Turner v. Dayton and others, decided at the last term, in Champaign, is in point. The bill was filed for a specific performanee. *The allegations of the bill were sustained, but Dayton having sold the land to his co-defondants, who had purchased for a valuable consideration without notice, a specific performance could not be decreed. The court, howevei’, having become legally possessed of the case, refused to turn the plaintiff round, retained the cause, and under the general prayer for relief decreed to the complainant the value of the land, which was admitted to be the sum for which it had been sold, and which was then in the hands of the defendant, Dayton. It is true that in that case the court were influenced, in some measure, by the consideration that the complainant might affirm the sale and hold the vendor liable to account as a receiver.

As to the first objection, we are of opinion that, independent of all other considerations, the doubt and difficulty that would attend an application on the common law.s.ide of the court, would justify us in retaining the bill. Such circumstances are entitled to much consideration, and many cases are to be found in which they have been deemed sufficient to support the jurisdiction of a court of equity (see New York Cases in Error, 54, and the cases there cited); but when taken in connection with other matters existing in this case, they seem to place the question in a very clear point of light as to the second objection. It would be unjust and inequitable to permit the defendant, Smith, to hold and enjoy the land, and also to retain the consideration which was to have been paid for it. The title having been conveyed to him by the trustee, on the order of Rees, the complainant has effectually and forever lost the land, and we can not discover any outstanding title or claim that can affect or in any shape trouble the defendant. It would be equally unjust to permit him to take an exception to the form of the deed, when that form was the result of an agreement between himself and the trustee, entered into without the knowledge of complainant, and by which he has effectually put it out of the complainant’s power to remedy the defect.

Upon the whole, we can not discover any valid objection to the decree prayed for in this case. Decreed accordingly.