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    Lessee of Ludlow’s Heirs v. James McBride.
    Prior possession by an ancestor, claiming title, sufficient for the heirs to recover upon in ejectment, against subsequent possession of less than twenty years, without title.
    Tinder the law of 1795, for settling intestates estates, orphans’ court could not direct sales of land by administrators, except of lands lying in the county where the court sat.
    This was an action of ejectment, to recover lot No. 110, in the town of Hamilton, Butler county. The plaintiffs having proved themselves children and heirs at law of Israel Ludlow, deceased, and that they were infants at the time of his death, which occurred in January, 1804, gave further evidence, that in the year 1803, their ancestor, Israel Ludlow, was in possession of a large tract of land, including the lot in controversy, and having laid out on it the town, of Hamilton; that he died in possession, and that the land was subsequently taxed in the name of his heirs, and the taxes paid by his ^executors, from funds belonging to the estate; and that, in 1812, the defendant, McBride, entered into possession of tho lot, under an alleged purchase from the executors of Ludlow.
    The plaintiffs here closed their testimony, when the defendant’s counsel insisted that the evidence did not make a case upon which the plaintiffs could recover, and ought to be overruled. But the court expressed their opinion that the testimony made a prima facie case for the plaintiffs, and therefore must be submitted to ■the decision of the jury.
    The defendant then offered in evidence a transcript, duly certified, of certain proceedings of the court of common pleas of Hamilton county, consisting of an order, made on the application of the executors, at May term, 1804, in these words:
    “Administrators of Israel Ludlow, deceased, exhibit an account ■current of said estate. John Ludlow and James Findlay, two of ¿the administrators, sworn, and pray an order to sell real estate, to satisfy the debts, etc. Court grant the prayer of administrators, excepting and reserving the farm and improved lands in Cincinnati, together with the houses and lots in Cincinnati.”
    And also, of an order of the same court, made, at August term, 1805, but, when made, directed to be considered as made at May term, 1805, in these words:
    “ On application of the administrators oí Israel Ludlow, deceased, to extend the order for the sale of real estate, to discharge the debts of the deceased, court authorize administrators to sell the houses and lots in Cincinnati, and any other property, except the mansion house and farm in the country, so that the sale does not amount to more than $10,000.
    In connection with these orders, the defendant offered in evidence, a deed to himself, from the executors of Ludlow, for the lot in dispute. To the admission of this evidence, the plaintiffs objected, and the court sustained the objection. A verdict was found for the plaintiffs, and the'defendant moved for a new trial, on the ground that the court erred in considering the evidence of title given by the plaintiff sufficient to put the defendant on his defense, and in rejecting the evidence offered by the defendant. The decision of this motion was adjourned to the whole court at Columbus.
    *Other points arose on the trial, which were discussed by counsel in the argument, but not being decided upon, the report is confined to the points decided.
    Benham, in support of the motion :
    1. The court erred in the instructions given to the jury, at the request of the plaintiffs, in relation to the possessory of title.
    2. The court erred in rejecting the administrator’s deed, and the transcript of the proceedings, and orders of the court of common pleas of Hamilton county, which the defendant offered in evidence in connection.

      First. The lessors of the plaintiff claim this lot as heirs at'law of Col. Israel Ludlow, deceased, upon the following evidence of title, namely, that Ludlow, their ancestor, was in the year 1802 or 1803, reputed to be the proprietor of the town oí Hamilton; that he gave to Mr. Reily, the witness, a plat oí said town, and informed him he had sold lots to sundry persons, and requested him to see that the persons to whom he had sold made their improvements upon their proper lots. That Ludlow was in Hamilton when the commissioners met to fix the seat of justice, and made the donation for public buildings, on which the court house now stands. That he died in the year 1804, and at the time of' his death was in possession, and reputed the owner of the unsold lots. That after his death, Eeily, as agent for his administrators, paid the taxes upon the land in said town, out of money received- by him on account of the administrators, from proceeds of lots sold by them, as belonging to their intestate. That in 1812, the defendant, James-McBride, obtained possession of the lot in question from said administrators, and claimed to have obtained it in fee simple, and has been ever since, and is now in the occupancy thereof. They then proved that they were minors at the demise of their ancestor, and ¿rested their case.

      First. I contend that this proof does not make a prima facie.case for plaintiff, for it is well settled he must recover upon the efficacy of his own, and not upon the weakness of his adversary’s-title. This principle has become an element in the law of this action, he must prove a legal title of *himself, at the time of the demise, compatible with it, or he can not prevail. 7 Wheat. 161; 1 Johns. Cas. 283; 2 Phil. Ev. 170. Here, the heirs rest upon a prior constructive possession. I say constructive, as contradistinguished from- actual, or possessio pedis. A constructive possession can never become adverse, or toll an entry. 2 Johns. 330. Possession is not title; it is presumptive evidence of title, and I admit that in this possessory action, the first possession when no title appears on either side, is the better evidence of right, until countervailed by an opposite presumption, and so on toties quoties. In 10 Johns. 356, Kent observes, that this presumption of right, after a continued actual possession for twenty years, ripens-into a right of possession, which will toll an entry. In the case last, mentioned, the court decides that a prior possession under a claim of right for a less period than twenty years, formed a presumption of title sufficient to put the tenant on his defense; but it must appear that such prior possession had not been voluntarily-relinquished, without the animus reoertendi; and that the subsequent possession of defendant, was acquired by a mere entry, without any color of right. Id. 364; 1 Caine, 190; 2 Serg. & R. 53; 2 Johns. 22; Cro. Eliz. 437. In the last case of Bateman v. Allen, the jury found by their special verdict, that plaintiff had the prior possession, and that defendant enter.ed upon his possession, without any claim, or color of right, and upon this finding, judgment was rendered for plaintiff.
    The case which plaintiff’s counsel cites from 2 Saund. Ill, does not militate against this doctrine. That case, however, is moagerly reported, and Saunders remarks “ that the law was not argued.” The principle to be extracted, upon analysis of all the authorities, is, that this action will lie upon evidence of an actual prior possession against a subsequent possession acquired by a mere •entry, without any claim or color of right; as against squatters, intruders, or trespassers. 4 Johns. 202. Here the lessors have neither shown an actual possession, nor that defendant entered affirming their possession; nor that he entered as an intruder, without claim or color of title. When a person claims to recover possession, it must be clearly proved, and the payment of taxes, ■and execution of partition deed are *not sufficient evidence •of actual possession. Jackson v. Myers, 3 Johns. 388, 396.

      Second. I come now to inquire into the nature of McBride’s entry and possession. In 1802, he purchased the lot in question, from Ludlow’s administrators, who put him into possession, and he has remained in the undisturbed occupancy thereof ever since» claiming it in fee simple. Here then is a lawful entry, and possession under claim and color of title, not in subordination to the title of the heir, but hostile and adverse to his title. When a person seized of lands in- fee dies intestate, it descends to the heir who takes cum onere ; he is invested with the legal title* by-operation of -law, but the land is liable for the debts of his ancestors, and for that purpose is sub modo assets in the hands of his administrator. 1 Dall. 481. A grantee from an administrator does not claim under the same title with the heir ; the former claims by purchase, the latter by descent; the claims are emphatically antagonist. The title acquired under an administrator’s sale, who represents his intestate, is as completely adverse -to the heir, as if acquired by purchase from the intestate in his lifetime. A tenant in fee is not estopped from denying the title of his vendor, for he holds -adversely to all the world ; the doctrine applicable to landlord and tenant is irrelevant. 13 Johns. 406.
    If A. sell B. a tract of land in fee, and put him into possession, and B. afterward discovers that A.’s title is defective, B. -may protect himself by purchasing in the better title; since it -is clear if A. were to purchase it would enure to B.’s benefit. 8 Johns. 139; 1 Johns. Cas. 81; 5 Johns. 389; 12 Johns. 207. Persons may hold under the same title, and yet hold adversely; or adverse possession would be a solecism. If A. died seized of land in foe, having issue two sons, and the younger son enter by abatement into the land, before his elder brother (and heir at law), the statute will not operate in favor of his ouster; for the law presumes that he entered, claiming as heir to his father, by which title the elder brother also claimed. Coke Lit. 8 396.
    But if the younger son should have the actual possession, and his sister should oust him, she would hold adversely to the elder, for her possession could not be intended to maintain his possession. B. N. P. 102; Co. Lit. 161, 252; vide also 10 East. 588.
    *To constitute an adverse possession it is not necessary there should be a rightful title; it must, however, be a possession under claim or color of title, and exclusive of any other right. 9 R. 180; 13 Johns. 118; 18 Johns. 44; 2 Caine, 189.
    From the nature of McBride’s possession, which is hostile and adverse to the lessors of the plaintiff, as I think I have clearly shown, I would draw two deductions, either of which will destroy the right of the plaintiff to recover :
    1. That an actual prior possession (and not constructive) aleña makes a prima facie case for plaintiff, and that the presumption of right in such a case is countervailed by a subsequent adverse possession for about seventeen years, which is about the time McBride has been in the peaceable occupation of the lot in controversy.
    2. That if this be the nature of defendant’s possession, the court erred in rejecting the deed from Judge Symmes to Jonathan Lay-ton, for defendant had a right to protect himself under it.
    3. The defendant offered in evidence in connection with his deed, from the administrators, for the lot in question, the orders of the court of common pleas, of Hamilton, dated May 8, 1804, and December 17,1810. To the competency of this evidence two objections have been stated :

      First. That the common pleas in 1804 had no jurisdiction of the-subject matter, and that, therefore, the order was an act coram nonjudice.

      Second. That if the court had power to make the order, it could not extend to lands beyond the county. This objection applies equally to both orders, of 1804 and 1810.

      These objections involve the probate and testamentary jurisdiction of the court of common pleas. This tribunal was ordained and established, and a portion of its jurisdiction defined by the constitution, the fifth section and third article of which provides that the court of common pleas in each county shall have jurisdiction of all probate and testamentary matters, granting administration, the appointment of guardians, and such other cases as shall be prescribed by law. In 1803, the act organizing tile judicial courts was passed, which conferred upon the common *pleas plenary jurisdiction in all probate and testamentary matters, as provided by the constitution, and abolished the oi'phan’s court and all other courts established under the territorial government. Vide 1 S. S. 40, secs. 7, 28. It is manifest from these references that the common pleas, in May, 1804, when the first order was granted, had unlimited testamentary jurisdiction, and it is equally clear “ that the act for the settlement of intestates estates,” adopted from the Pennsylvania code, and which took effect August 15,1795, conferred the power upon that court to allow the sale of lands or tenements upon the application of an administrator for the payment of debts, etc. Land Law of Ohio, 381, sec. 7. But it is objected that this order did not extend to lands beyond the limits of Hamilton county. This objection will be found upon examination to be more specious than solid. I ask upon what ground you will impose this limitation ? The order itself, ex vi termini, extends to all the real estate of the decedent except the “ farm and improved lands near Cincinnati, and the house and lots therein.” The courts of common pleas in each county derive from the constitution and the act of 1803, defining their jurisdiction, and the act of 1795, unlimited power to authorize the administrator to sell the lands and tenements of bis intestate, for the payment of his debts, etc., without reference to their locality, provided they lie within the state.
    The administrator is an officer appointed by the court, who acts under a general law, and represents the person of his intestate in respect to his personal property, which vests in him, co-extonsive with the state, upon the grant of administration, and his letters relate back to the death of his intestate. Comyn’s Dig. B. 1; 2 Roll. Abr. 554. And the law regards the real estate of the decedent as a fund in the hands of his administrator for the payment of debts, etc., to be resorted to when the personalty is absorbed; a qualified interest in which, also, is vested in the administrator, co-extensive with the state. 1 Dall. 481.
    In England, testamentary matters belong to ecclesiastical cognizance, and the grant of administration is regulated by the bona notabilia, and the extent of the administrator’s rights depends upon the clerical dignity of the personage who makes the appointment. If all the goods and chattels of the ^deceased lie within the same jurisdiction, the bishop or ordinary grants administration; but if he have bona notabilia in two distinct dioceses, administration must be taken out before the archbishop or metropolitan. Blac. C. 509. Since, then, the rights of an administrator under our law are co-extensive with the state, I insist there is nothing in the nature of the application for the order to sell lands which can give it a local character. Real and mixed actions, and actions brought for injuries to the freehold, and actions founded upon privity of estate, are said to be local; but short of the black letter of Plowden and Coke we can not ascertain the reason. Land may be subject matter of a sale and yet the venue be transitory. A bill in chancery for the specific execution of a contract for the sale and conveyance' of land, may be filed where the defendant lives, for the decree operates in personam.

    This branch of the common law, however, affords no analogies, and sheds no light upon the problem under examination. I have said that the real estate of the decedent is convertible, mesne, or qualified assets, in the hands of his representative. The law gives him the power to sell it; but as ^ check upon him, and to guard the interest of those beneficially concerned, such as creditors and heirs, against the malfeasance of administrators, he must exercise this power under the supervision of the court. The law of 1795 provides, “-that it shall be lawful for the administrator to sell and convey such part or parts of the lands or tenements of the deceased, for defraying just debts, etc., and for the improvement of the residue of his estate, as the orphans’ court of the county where such estate lies, shall think fit to allow from time to time.” The plaintiff contends that this statute confined or limited the jurisdiction of the court of common pleas in 1804, to lands within the county. This, I maintain, is an unsound construction. The administrator may sell such part of the lands or tenements, as the orphans’ court of the county where such estate lies shall allow, etc. The word “ estate,” is said to be synonymous with lands or tenements. Then it would read, “as the orphans’ court of the county where such lands or tenements Lie shall allow.” Suppose the lands and tenements lay in different counties; then, by this construction, the act would be nugatory; for if the word, ^estate be synonymous with lands or tenements, it must in-elude all the lands and tenements of the deceased, and unless they all lie in one county, the orphans’ court has not jurisdiction. This •could never have been the intention of the lawgiver. The orphans’ court of the county where such estate lies : the legislature must have intended, the court and county where the administration was granted : where the administrator had given locality to the estate by filing his inventories, accounts, and exhibits, and where he had given security for the faithful execution of his trust. Let us test the opposite construction, ab inconvenienti. Section ■8 of the act of 1795 prohibited the orphans’ court from allowing the administrator to sell lands, until he exhibited two or more true and perfect" “inventories and conscionable appraisements of all the intestate’s personal estate, whatsoever; as, also, a just and true account, upon oath, of all the intestate’s debts which shall have come to his knowledge.” Now, suppose the decedent to have lands in every county in the state. Before the administrator could obtain an order to sell them, he must file in the orphans’ court of each county, the exhibits, inventories, and appraisements above required. The court granting the order for sale must settle with the administrators for the proceeds thereof. Hence, his proceedings would be scattered all over the state, and records of the orphan’s court in each county must be examined to determine what he has done. Again, the court in one county could not know what had been done by the court in another. This construction would have enabled the administrator to practice a fraud upon the estate, by selling all the lands and tenements, when a part would have ■been sufficient to liquidate the debts, etc.
    But, if under the law of 1795, the jurisdiction of the orphans’ court was confined to lands within the county, with what propriety, ■or by what rule of construction, can this limitation be imposed upon the common pleas, which I have shown by the constitution, and act of 1803 had unlimited testamentary jurisdiction. The orphans’ court was inferior, and of limited powers, and was abolished by the act last mentioned, which defined the jurisdiction of the common pleas. So much of the act of 1795 as related to and confined the jui'isdiction of the orphans’ court, became a dead ^letter upon the abolition of that tribunal, and can upon no principle of sound construction, fetter or limit the jurisdiction of the common pleas to lands within the county; the act defining its jurisdiction contains no such restriction.
    Garrard, for plaintiff:
    ■The first question of law, arising from the statement of the case, is, whether the lessors of the plaintiff showed a sufficient title to enable them to recover? The counsel for the plaintiff contends that the possession of the ancestor of the lessors of the plaintiff, and a descent cast upon them, was a sufficient title upon which to recover in ejectment, where no title appeared for the defendant.
    . In the case of Bateman v. Allen, Croke Eliz. 437, it was held that the plaintiff had a right to recover in ejectment, where it was found that the defendant had not the first possession, but entered, claiming the title of the plaintiff.
    In Allen v. Rivington, 2 Saund. 111, it was decided that “where upon a special verdict, a prior possession was found for the plaintff, and no title for the defendant, the matter of law Was never argued ; for priority of possession alone gives a good title to the plaintiff, against the defendant and all the world, except the rightful owner.”
    In 4 Taunton, 547, and 8 East. 353, it was held that mere prior occupancy, however recent, gives a good title to the occupier, whereupon he may recover, as plaintiff, against all the world, except such as can show an older and better title in themselves.
    In 2 Johns. 22, it was decided that proof of possession for a less time than twenty years, was sufficient to put the defendant on proof of title; and in 4 Johns. 202, it was held that a person who had been .in possession for eight or ten years, under color of title, was entitled to recover in ejectment, against a mere intruder or trespasser, or one for whom no title appeared.
    In Jackson v. Myers, 3 Johns. 388, it is laid down to be law, that prior possession is presumptive evidence of.a fee, and is suchproof of title as will put the defendant upon proof of his title.
    In 6 Johnson, 218, the court intimate the same doctrine as in the *above cases; and in Smith v. Burtis & Woodward, 9 Johns, the court say, “ that we presume title, from the ten years, sufficient to put the defendant on proof of his title.”
    In Smith v. Lorillard, 10 Johns. 363, all the former authorities. are cited and commented on at large, by the chief justice, in delivering the opinion of the court, in which he says: “A prior possession short of twenty years, under a claim or assertion of right, will prevail over a subsequent possession of less than twenty years, when no other evidence of title appears on either side; there are many decisions of this court which look to this point.” “ That the-first possession should, in such cases, be the better evidence of right, seems to be the just and necessary inference of law. The ejectment is a possessory action, and possession is always presumptive of right, and it stands good, until other and stronger evidence destroys that presumption. This presumption of right, every possessor of land has in the first instance, and after a continued possession of twenty years, under pretense or color of right, the actual possession ripens into a right of possession, which will toll an entry.
    “ But until the. possession of the tenant has become so mature, it would seem to follow, that if the plaintiff shows a prior possession, and upon which the defendant entered without its having been formally abandoned, as derelict, the presumption which arose from-the twenty years possession, is transferred to the prior possession of the plaintiff, and the tenant to recall that presumption, must show a still prior possession, and so the presumption may be removed from one side to the other, ‘toties quoties,’ until one party or the other has shown a possession which can not be overreached, or puts an end to the doctrine of presumption, founded on mere possession, by showing a regular legal title, or a right of possession.”
    The possession contemplated by this rule of law, is not such a possession as gives an indisputable title or right of possession, as twenty years, but merely such a possession as the defendant can rebut, by showing an older and better possession, with which he is connected; and the reason why a prior possession can not avail against a subsequent possession of twenty years, taken and held against parties under no disability, is, that such a possession is a good defense, *even against a paper title. And where a possession is shown in the ancestor, claiming title, and a descent cast, the heir will not only be held to be in possession, but also to have the right of possession connected with the fee, upon which the law will not permit those having right, to enter and evict the heir.
    ^The instruction of the court, therefore, upon the sufficiency of the possessory title of the lessors of the plaintiff was correct,, and the defendant has made no case for a new trial, unless the court •erred in rejecting the defense offered by the counsel upon the trial.
    Waiving all other objections to the orders of the court of common pleas of the county of Hamilton, and the deed executed to the defendant McBride, by the administrators of the said Ludlow, the counsel for the plaintiff insists that the orders of the court of common pleas could not operate out of the county in which they were granted, and that they could not constitute a warrant to the administrators to make the sale in question. The language of the .act of 1795, for the settling of intestates’ estates, is “that the orphans’ court of the county where such estate lies,” may order and direct sales in such cases as are provided for by the statute. It is contended by the counsel for the defendant that the word “estate,” as used in this-clause of the statute, should be construed 'to be the place where the intestate died, and where letters of administration were granted, and that it did not apply to the lands or tenements intended to be sold by the administrator. If this construction should be adopted against the plain and obvious reading of the statute, it would apply alike to all cases, as a general rule of construction, upon a statute of a general nature, and not local in its operations, and would alike affect the estates of persons in another state who hold lands in this, and the citizens of our own state. .Should such a construction be adopted difficulties would present themselves which this court seem unwilling to admit, when attempted to be introduced through a similar channel, but under a somewhat different aspect. Should it prevail we should be compelled to admit, as a necessary consequence, the power of other states to pass laws regulating the titles to lands in this; and the jurisdiction of the courts of other states over the ‘laws and the property *of the citizens properly subject to the' courts of •our own state. We should be forced to admit the humiliating doctrine that an administrator,-deriving his powers from the laws •of another state, and acting under the orders and decress of the courts of such state, has the right and the power to come into this state and sell and dispose of the real estate of his intestate, regardless of the laws of this state regulating the titles to her soil, over which she has sovereign and exclusive power of legislation, In the case of Wills v. Cowper and Parker, 2 Ohio, 128, 129, this point seems to have been placed in its true light in a very few ■words. The court say that it is not in the power of any state, by any legislative act, to prescribe the mode in which lands in another state may be disposed of, or the title thereto pass front-one to another. I can not see how this language of the court can be reconciled with the strained construction here contended for and sought to be introduced. The one or the other must be abandoned; they can not both stand as sound and consistent rules of law, and applicable to the same subject matter.
    Este, in support of the motion:
    By the law for the settlement of intestates’ estates, it is enacted that “it shall be lawful for such administrator to sell and convey such part or parts of lands or tenements, etc., as the orphans’ court of the county where such estate lies, shall think fit to allow, order, and direct, from time to time.” Ter. Laws, page 95, sec. 7.
    It is contended that a general order to administrators to sell real estate, given in the county where letters were granted, and where-the estate is finally to be settled up, will not authorize them to sell lands without the county. Upon examining this act it would seem that this construction conflicts with its general tenor. By section 2 it is expressly provided that the administrator’s accounts must be “first examined and allowed of by the orphans’ court of the county where the said administration is granted.” In section 8 it is provided that before an order for the sale of real estate can be made, two or more inventories of the personal estate must be exhibited, and a true account *on oath of the debts that have come to the administrator’s knowledge. The court shall order so much land, etc.
    In this act also, whenever the term estate is used in general-terms, it must be understood to mean all the property of the de- • ceased in the State of Ohio, the term personal, being, I believe, in all places prefixed to the personal estate. By the eighth section,, provision is made for “reserving the mansion house and most profitable part of the estate till the last.” Here the word estate relates to the realty, and clearly conveys the idea that all the real property in Ohio was considered as but one real estate. It also provides, that the lands and tenements to be sold, shall be advertised in the place where they lie. This is all right, and it is sufficient. The court which granted the letters where the inventories, sale bills, and accounts must be filed and allowed, etc., would seem to be the proper court to decide on the propriety os necessity of selling lands. Now, when the law authorizes the administrators to sell the real estate of the deceased, when directed by “ the orphans’ court of the county where such estate lies,” the word estates relates to the whole real estate of the deceased in Ohio, and wherever his mansion house was situate, the residence of the deceased was considered the most profitable part of the real estate, and an order made there, would, in truth, be considered as made where the principal part of the estate was situated ; and as it is contemplated for all the purposes of sale, etc., as indivisible and as one estate, that county would be the preferable place to obtain an order, etc.
    By the eighth section, before a sale can be ordered, two or more inventories must be returned, an account exhibited, and a deficiency of personal assets appear, and the mansion house and most profitable estate shall be reserved till the last. Now, what court, I ask, will reserve the mansion house, etc., but that acting in the county where the mansion house is situated? Then, on an application in Hamilton county for the sale of lands, it became the duty ot the court to order every part of the real estate of the deceased in Ohio to be sold before the mansion. If so, the act must have a construction which will sustain such an order. Provision is made in the same section, requiring, with great particularity, the notice of the sale to be given, etc., in the county where *the lands lie. This gives all the notoriety that can be asked.
    There appears to be no good reason for being compelled to get an order in each county where the deceased held lands. The expense is unnecessarily increased; delay is caused, and evidence is to be taken through the state to convince each court of the necessity of granting the order, when the court that granted the letters where all the business is transacted, has knowledge of everything from its own records and the returns on file.
   By the Court :

Several points have been made and argued in this case, which we deem it unnecessary to examine or decide. Most of these involve matters interesting to persons not parties to the case, which must necessarily arise and be determined in suits now pending for property to a large amount. Until those parties are fully heard, we wish to form no opinion that may affect their rights where it is not necessary to decide the case before ns. And it is not necessary to do so in this case.

It is contended for the defendant that the court erred in’ instructing the jury that the possessory title given in evidence by the lessor of the plaintiff, was sufficient to warrant a verdict for the plaintiff in the absence of all proof of title to the premises in the defendant. The correctness of this instruction depends upon that evidence. It was in proof that in 1803, Israel Ludlow, the plaintiff’s ancestor, was in possession of the premises, claiming them as his own; that he died in 1804, leaving the plaintiffs, his children, and heirs at law, all minors; that the administrators of his estate paid the taxes out of the funds of the estate, and, in 1812, sold the, premises as the property of the estate, in their character of administrators, to the defendant, and put him in possession, the.plaintiffs then being minors.

The doctrine is now too well settled to be disturbed, that a prior possession is presumptive evidence of title; and unexplained or uncontradicted, is a sufficient title to recover upon, in ejectment, against a mere intruder. The authorities upon this point are numerous and decisive, both in the English and American courts. It is not necessary that there *should be a continued posses- [255 sion for twenty years, to furnish this presumption of right. Such possession, when both adverse to all others, and continued, rises at length into a right, even against the legal owner of the fee, if once within the protection of the statute of limitations. And, when continued for less than twenty years, may prevail as a presumptive right, until rebutted by proof of prior possession, right of succession, legal title, or other evidence sufficient to defeat such presumption. In cases where no other evidence of title than possession is given by either party, the prior possession must prevail, especially when connected with an assertion of ownership, unless such prior possession has been abandoned, or the subsequent possession been continued until protected by the lapse of time and the statute of limitations.

Prior to 1803, Israel Ludlow, the ancestor of the plaintiffs, was in possession of a large tract of land of which the lot in dispute formed a part, laid out upon it, the town of Hamilton, made donations of lots, which were accepted, sold other lots to individuals, who entered and improved; and being thus in possession, Israel Ludlow, died in 1804. By his death, his estate whatever it might be, in the lot in question, and his possession of it, were cast upon Ms heirs, and they are to be regarded as having the possession by virtue of the descent cast upon them. This possession, upon which, the plaintiffs relied, was not a mere constructive possession, such as «very owner of unsettled land is supposed to have; but the actual seizin, the possessio pedis of their ancestor, transferred to them by operation of law, and continued for them by the administrators, as evidenced by their acts, until the defendant entered in 1812. The charge of the court, that the possession made out in proof, by the plaintiffs, must prevail over the defendant’s subsequent possession, which was not protected by the lapse of time, and the statute of limitations, in the absence of all evidence of title in either party, was correct.

The next error complained of is, the rejection of the evidence offered by the defendant, to show a sale by the administrators to the-defendant, and a conveyance in conformity with that sale. This-evidence consisted of transcripts of certain orders made by the court. of common pleas of Hamilton ^county, in the years 1804 and 1805, authorizing the administrators of Ludlow to sell his real estate for the payment of his debts. The competency of this evidence depends upon the legality of a sale of the lot in question, under these orders. If they conferred no power to make the sale, no right could be created in the defendant, or divested out of the-plaintiffs, by it.

At the time these orders were made, there had been no state legislation, upon the subject of selling the lands of an intestate to-pay his debts; and much doubt is entertained, whether the court of common pleas, who are vested with jurisdiction of probate and testamentary matters, had authority in any case, to direct a sale of the lands of an intestate to pay his debts. If this power was vested in them, it was in virtue of the territorial law of 1795, providing “for the settlement of intestates’ estates’’ and of the jurisdiction over intestate and testamentary matters, conferred upon them by the state law of April, 1803, first organizing the judicial courts.

The law of 1795 specifies the cases, in which the orphans’ court may direct an administrator to make sale of an intestates’ real estate, and prescribes the manner of directing and effecting such sale. The terms employed in conferring this power are these: “that it shall be lawful for the administrator or administrators of such deceased, to sell and convey such part or parts of the said. lands or tenements, etc., as the orphans’ court of the county, where such estate lies, shall think fit to allow, order, and direct, from time to time.” This authority is given by the law, subject to a proviso, that the orphans’ court shall* not “allow or order any intestate’s lands or tenements to be sold, before the administrator requesting the same doth exhibit two or more true and perfect inventories and conscionable appraisements of all the intestate’s personal estate whatsoever; as, also, a just and true account, upon his or her solemn oath'or affirmation, of all the intestates’ debts, which shall be then come to his or her knowledge, etc., then, and in every such case, and not otherwise, the court shall allow such administrator to make public sale of so much of the said lands as the court, upon the best computation they can make of the value thereof, shall judge necessary,” etc. The law ^further provides, that “ the court shall order so many writings, to be made by the clerk, as they shall think fit to signify, and give notice of such sales, and of the day and hour when, and the place whore, the same will be, and what lands they are, and where they lie, which notice shall be delivered to the sheriff or constable, in order to be fixed in the most public places of the county, or city, at least ten days before sale.”

If it bo admitted that the several courts of common pleas, under the state government, in 1804 and in 1805, were invested with the same power and authority over the lands of an intestate that were vested in the orphans’ court under the territorial government, by the law of'1795, the question then arises what was the extent of the po'wers conferred upon the orphans’ court? So far as the courts of common pleas were invested with jurisdiction over the subject matter upon which they may have acted, their decisions and orders are final and conclusive, if not reversed for error. They can not be impeached collaterally, nor will this court inquire whether all the statutory provisions, preliminary to making the decision or order, have been complied with. If the court of common pleas of Hamilton county were clothed with power to make an order to soli the lot in question, and in the exercise of that power have ordered it to bo sold and conveyed, their act is conclusive upon the parties. The grounds and proofs upon which they proceeded are not examinable in this case. The correctness of the opinion given, rejecting the evidence, depends upon these two question : Had the court jurisdiction ovex* the subject matter? Have they exercised that jurisdiction?

By the law of 1795 the power over an intestate’s real estate is in express terms limited to the lands within the county where the court is. “ The orphans’ court of the county whore the estate lies” is authorized to allow or oi’der a sale. The “estate” previously mentioned in this section, and the only one to which the terms such estate ” can apply, is the lands and tenements which the administrator may be authorized to sell and convoy. This authority is to be conferred by the orphans’ court, and its exercise is limited to lands within the county where the court sits. The power, or what is but another mode of expressing the *same thing, the jurisdiction of the orphans’ court over the lands of an intestate, is thus limited, in express terms, by the law creating it, to “such estate,” that is, such lands and tenements as lie in the county. It can by no safe rule of construction be extended to gi’anting administrators authority to sell the intestate’s lands wherever they maybe situate. Administration might have been taken out in a county where the intestate had no lands, although he owned a lai’ge real estate in other and distant parts of the state. In such a case the court possessed no competent means of ascertaining the various facts which they are required by law to ascertain, in making the oi'der for sale, except by ex parte affidavits. They could make no computation of value’upon safe grounds; they could not know what was the most profitable part of the estate,.to reserve it; they could exercise no control over the ministerial officer required to give the notice. The terms of the law confine the court to estates within the county; the obvious policy of the law calls for the same restriction.

It is argued that the term “estate” embraces all the land of the intestate, wherever situate, and that the orphans’ court of the county whore pai't of it lies is authorized to proceed upon the whole as one entire thing, especially the orphans’ court of the county where the intestate resided and made his home. This construction would be adopting a flimsy fiction to control a plain and palpable fact. The real estate of an intestate consists of as many distinct estates as he owned separate parcels of laud. His estate, though joint, or entii’e in the whole, is separate and divisible in the parts. The law in question so treats it, for it directs a sale of so much of said lands, and directs a reservation, till the last, of the “ most profitable part of the estate,” thus parting the estate in express terms.

Another objection to this construction is that where the mansion-house was in one county and the principal but least profitable part of the estate in another county, thé power to direct a sale might be vested in the court of a county where none of the lands sold would lie, because the lands situate in other counties would sell for a sum sufficient to discharge the debts.

*The orphans’ courts were peculiarly domestic. They were established in each county, and were supposed to, as they did in fact, possess peculiar facilities for acquiring correct information of the condition of intestates’ estates, within their jurisdiction. Much was intended to-be confided to their discretion, because their proceedings were ex parte, and, in most cases, operated upon and affected the rights of infants. They were not.empowered to control the title to intestates’ lands, without the county, for the reasons already stated. Their jurisdiction was sufficiently broad, when allowed, upon ex parte application, to control the sales of lands within their county, without adopting a forced construction, against the plain and obvious meaning of the words of' the law, to extend that jurisdiction over all the lands of an intestate within the state. We are satisfied it was not the intention of the law of 1795 thus to extend the power of the orphans’ court; and that by no just interpretation, can it be made to give them jurisdiction over lands out of the county in which they acted.

The property in controversy was not situate in Hamilton county; the title to it could not be affected by any order made in the orphans’ court of that county, had such order expressly contained authority to sell it. Whore there is no legal power, an attempt to act can be followed by no legal consequence. But the orders are in general terms, and as the court had clearly no jurisdiction, except over land in Hamilton county, we are bound to suppose that there was no intention to extend it beyond that county. This construction is perfectly consistent with the terms of the orders. Full effect is given to them, without including any lands but those within the county; and we avoid the conclusion that the court undertook or intended to transcend their jurisdiction. In this view of the case, we consider that the orders for the sale offered in evidence, did not extend to the lot in question, and consequently there was no error in rejecting them.

The validity of the orders, for any purpose, and the effect of subsequent laws upon them, which have been discussed in the arguments, are thus rendered immaterial to the decision of this case, and, for the reasons assigned in the commencement of this opinion, have not been considered.

The motion for a new trial is overruled.


source: Caselaw Access Project

author: By the Court :

license: Public Domain

text:
    The Trustees of Section 16 v. Miller.
    Surety for making improvements not bound, where plaintiff, by Ms own act, prevents them from being made.
    Tried before Judges Hitchcock and Burnet, in Montgomery county, 1827.
    This was an action of debt. The declaration contained a count on a recognizance of bail, and also a count on a bond. To the first count, there was no defense. As to the second count, the defendant relied on a proviso contained in the condition of the bond.
    The facts were these: One Crocket took a lease on part of the school section, and to secure the performance of his covenants, gave a bond, with the defendant, Miller, as his security. The condition of the bond contained a proviso, that if the lessee should complete the improvements required by the lease, within the period of four years, then, and in that case, the defendant, Miller, should be bound for the rent of the first year only. The suit on the bond was brought to recover the rent for the second, third, and fourth years. The recognizance was given for the rent of the first year. *The plaintiffs gave in evidence the recognizance of bail, to support their first count, and the bond to support the second. The defendant then proved that after the expiration of the lease, the rent not being paid, the trustees proceeded, according to the provisions of the statute, to dispossess the lessee, which was done before the expiration of the term of four years, allowed for the completion of the improvements. He then'called a number of witnesses, for the purpose of showing that the improvements were completed by Crocket before he was dispossessed; on which a question arose whether the evidence was not superfluous, on the ground that, as by the terms of the contract, the defendant was to be discharged from his liability, provided the improvements were made by the lessee within the term of four years, and as the plaintiffs had dispossessed him before the expiration of the time, they could not be allowed to exact from the defendant the penalty of a non-performance, admitting that the improvements had not been made.
   By the Court :

When Miller became security for Crocket, he relied on his ability to perform the condition within the time stipulated. He had, by his contract, a right to the benefit of the whole term. Although the labor might not have been completed when he was turned out of possession, it does not follow that it would not have been done if the plaintiffs had not put it out of his power to proceed.

It is no answer to the objection, that the statute made it the duty of the trustees to proceed as they did. They have, no doubt, been influenced by considerations of duty; but' if in the discharge of duty, they have prevented the performance of a condition, on the non-performance of which, a penalty was to attach, they must submit to the consequences. It is immaterial to the defendant by what motives they were influenced. The consequences to him are the same. He stipulated for a conditional liability, or for a liability to be discharged on the performance of certain conditions in a given time, and he was entitled to the whole' of that time to perform those conditions, or to cause them to be performed. If he who is to be benefited by the performance *of a contract, is the cause why it is not performed, the contract is dissolved, and the party bound is discharged from his obligation, and will be in the same situation as if he had performed it.

This rule of law applies with great force to cases where improvements are made on real estate, and the party for whose benefit they are to be made, prevents them from being done, by dispossessing the party bound, or by preventing him from entering on the premises. Here, the trustees re-entered, removed Crocket, and leased the land to a third person, who took possession, so that neither Crocket nor the defendant could enter, for the purpose of performing the condition, without being liable to an action of trespass.

The rule which governs this case is just and equitable, and the case itself is illustrative of the oppression that might be practiced, were it otherwise. By the terms of the bond, the obligors had the whole term of four years to make the improvements. They had a right, if they saw proper, to defer them till the last year. Of course, the condition was not broken, nor was the right of performing it forfeited, when the trustees made it unlawful for the defendants to proceed any further. From the testimony already heard, it appears that the improvements were nearly, if not entirely completed, before the possession was changed ; and it is a fair inference that they would have been finished in good faith, if Crocket had not been dispossessed. We mention this merely to show that there was no disposition, on the part of the defendants, to evade their duty, and that if it has not been fully performed, the blame lies at the door of the plaintiffs.

On the intimation of this opinion, the plaintiffs abandoned their second count, and took a verdict for the amount of the recognizance, being the rent for the first year.


text:
    *Sinnard v. McBride, Administrator.
    Assumpsit does not lie for mesne profits accruing after the demise laid in the declaration; but it lies for mesne profits before the date of the demise.
    Before Judges Burnet and Sherman, in Butler county, 1827.
    This case was submitted, on a statement of facts, agreed to by the parties, from which it appears, that in 1817, the plaintiff recovered certain premises in an action of ejectment, against John N. Cumming, since deceased. In 1823, McBride administered on the estate of Cumming, and in 1824, the present action of assumpsit was brought against McBride, as administrator of Cumming, to recover the mesne profits.
    The defense is placed on two grounds: First. That this form of action can not be sustained. /Second. That, if it could be sustained, in other respects, it is now barred by the statute of limitations.
    Collet, for the plaintiff, contended :
    That trespass for mesne profits, could not be sustained against the administrator. That equity could not interfere, and that if the present suit can not be supported, there is no remedy for a meritorious claim. He cited Cow. 246, 372, 376; 1 Term, 378; 22 State Laws, 325.
    Sargeant, for the defendant, contended :
    That the record produced by the plaintiff, to sustain this action, shows that Cumming occupied against the will of the plaintiff, as a wrong-doer, which precludes the idea of a contract. He cited Run. Ejectment, 445; 1 Chitty, 141; 1 Dal. 142; 1 Term, 373.
   By the Court :

We do not consider the authorities cited for the plaintiff as sufficient to sustain his action. They seem designed to show the hardship of the case, and the reluctance with which the .King’s Bench decided against a meritorious claim, on a technical objection, rather than to support the present action. In the case of Hambly v. Trotter, on which the plaintiff most relies, Lord Mansfield considers the question in reference to those actions, which survive or die on account of the cause of action ; and those which survive or die, on account of the form of action. If the claim can be ^considered as originating in contract, express or implied, the action survives; but not so, if it be a tort, or arises ex delicto, supposed tobe by force, and against the peace. In the ease submitted, there is no question as to the propriety of the form, in which the suit is brought. Assumpsit will lie against an administrator, on matters arising in the life of the intestate; but the real question is, whether this form of action can be maintained, on the facts in the agreed case. The premises occupied by the intestate, have been recovered in an action of trespass and ejectment. The term for which rent is demanded, is subsequent to the demise laid in the declaration. The proper remedy is, therefore, trespass for the mesne profits; but as the action, in that form, does not survive, it is contended, that the court ought to sustain it in its present form, to prevent a failure of justice. This we would do most willingly, if the law would permit it. But the plaintiff has elected to treat Cumming as a trespasser, from the day of the demise; he can not, therefore, in the language of Justice Ashurst, “blow hot and cold at the same time,” by treating his possession as that of a trespasser and of a lawful tenant, during the same period. He can not recover an ejectment, and then recover for use and occupation for the time subsequent to the day of the demise. It is admitted that there has not been any contract between Sinnard and Cumming. Cumming entered without the consent and against the will of Sinnard. He was considered, and treated as a trespasser, from the time of his entry, as appears from the record, and on that ground, the possession was recovered from him. There is not only a want of matter showing an agreement, but there is the proof of facts which estop the plaintiff from presuming it.

The action of assumpsit is often sustained, where there is not, in fact, any agreement between the parties. The proper action against a common carrier, is on the custom of the realm, which is for a tort, but after the death of the carrier, assumpsit may be maintained against his representatives. So trover, which is for a tort, is the proper remedy against one, who unlawfully converts the goods of another to his own use, but after the death of the wrong doer, assumpsit, for the value of the goods, will lie against his ex-ocutor, but this must be, where the facts are such that an agreement may be jiresumed.

*It seems to be well settled, that after a recovery in ejectment, assumpsit will lie for the mesne profits, anterior to the date of the demise, but not for the time subsequent to the demise. The reason of the distinction is evident. In the former case, the presumption of a contract is not excluded; in the latter case, it is. A man can not hold by agreement and as a trespasser, at the same time; though for a part of the time he may hold by agreement, and for the residue as a tresjiasser.

It is not stated in the agreed case at what time Cumming entered; but it was taken for granted in the argument, that the demise was carried back to the day of the entry, for which time, we are of opinion, that rents and profits- can not be recovered in this action.

As the case is disposed of on this point, it is not necessary to consider the question arising on the statute of limitations.

Judgment for defendant.


author: *By the Court :

text:
    Thomas v. Molier.
    Award to deliver books, papers, and accounts, a small chest, and wearing apparel, too indefinite to be enforced.
    Before Judges Burnet and Sherman, in Warren county, 1827.
    A motion was made in the court of common pleas to make a ¡submission a rule of court. The motion was overruled and judg.rnent entered against the applicant for cost. A bill of exceptions was taken to the opinion of the court, and a writ of error brought .to reverse the judgment. The errors assigned are :

      First. The court ought to have made the submission a rule.

      Second. The motion was rejected without assigning reasons.

      Third. It was erroneous to give judgment against the applicant .for cost.
    The case was argued by Thomas E. Eoss, for the plaintiff in ¡.error.
   *By the Court :

It appears from the proceedings that the award directs Molier to pay Thomas forty-six dollars and twenty-five cents, and cost. It orders Thomas to deliver to Molier all the books, papers, and accounts, together with a small chest and wearing apparel, not otherwise disposed of on July 31,1826, and which he, the said Thomas, might then have had in his hands, belonging to the said Molier.

The award is entirely too vague and uncertain. It contains nothing specific, but the payment to be made by Molier, on which Thomas is to deliver up books, papers, accounts, a small chest, and some wearing apparel, but what books, papers, and accounts, or how much, or what description of wearing apparel, is altogether uncertain; and the award contains nothing by which that uncertainty can be removed.

The object of arbitrations is to put an end to litigation, by ascertaining the rights of the parties, and for this purpose, the award must be so explicit and descriptive, that the rights and duties of each party are no longer matters of doubt or dispute.

If specific articles of property are to be delivered, they must be so described that when a delivery, or an offer to deliver is made, it may be known whether the articles are the same that the arbitrators intended or not.

Everything that is required to be done by Thomas, in this award, is indefinite. A tender of anything in the form of books, papers and accounts, and of any articles of wearing apparel, would be a literal performance.

But this is not all. The arbitrators have not ascertained the fact, whether any of these articles are to be delivered or not. This is to depend on another fact, not determined, that is, whether, there were any of them on hand, in July, 1826.

From this view of the ease, it is evident that the court of common pleas did not err in refusing the rule, and having refused it, the applicant was liable for cost.

The court were not bound to give the reasons of their opin'on, and in omitting to do so, they have not acted erroneously.

Judgment afiirmed.


text:
    *Reynolds v. Administrators of Reynolds.
    Case fully tried at law not relievable in equity.
    Heard before Judges Burnet and Sherman, in Brown county, 1827.
    The complainant charges in his bill, that in March, 1826, he gave his promissory note to his father, for one hundred dollars, payable in July, 1812, for the purchase money of fifteen acres of land. That in 1819, he purchased of his father a wagon, and gave his note for the further sum of seventy dollars. That in 1815, his father commenced a suit against one Delaney, and employed the complainant to conduct and manage the said suit, as his attorney in fact. That in the management of that suit, he'laid out and expended large sums of money, exceeding, in the whole, the amount of the notes given by him, as aforesaid. That after the death of his father, and after the service and disbursements before mentioned, the administrators of his said father commenced suit against him, on the notes given as above. That at the trial, he offered evidence of his demand, by way of set-off, but that the jury refused to allow him his full credit, and rendered.a verdict against him for one hundred and two dollars. The bill prays for an injunction, and for relief.
    The defendants demurred, and the case was submitted without argument.
   By the Court :

We are not often troubled with a case so perfectly destitute of equity as the one before us. The facts on which the bill is predicated, were not only a proper defense to the suit at law, bat it is admitted by the bill that they were all submitted to, and decided on by the jury, and the amount of the verdict shows that the claim was allowed, as far as the jury believed it to be correct. If injustice was done, the remedy was by moving for a new trial, or by an appeal.

Bill dismissed.


author: By the Court:

text:
    *Bliss v. Enslow.
    Application to set aside the levy of an execution on property alleged to ho exempt from seizure, is addressed to the sound discretion of the court, and not subject to revision in the Supreme Court.
    This cause came before Judges Burnet and Sherman, in Scioto county, 1827, on a certiorari to the common pleas.
    It appears from a bill of exceptions attached to the record that a motion had been made to set aside a levy made by a constable on a horse, saddle, and bridle, the property of Bliss, on the ground that he was a private in a company of cavalry, organized under the laws of the state, and that the articles levied on were, by law, exempt from execution.
    The court below refused the motion, and allowed a bill of exceptions.
    Brush, for the plaintiff,
    insisted that the decision of the common pleas was erroneous, and relied on the act regulating the militia» particularly sections 14, 15, 16, 19, and 23.
   By the Court:

The motion to set aside the levy was addressed to the sound discretion of the court below. They were at liberty to grant or reject it. If they were satisfied that the property was protected from execution, they had power to set the levy aside; but if they entertained doubts on the question, or on any other connected with the subject, it was their prudent course to overrule the motion, and leave the party to his remedy by suit. If the court had been satisfied, which seems to have boon the case, that the property was exempt, yet they might have believed, from other circumstances, that it was not prudent to decide the case in a summary way on ex parte testimony. If the applicant was injured, he had a remedy by suit, and it was discretionary with the court, under all the circumstances of the case, whether they would leave him to that remedy, or relieve him on his motion. Other persons were also concerned, whose rights the court wore bound to respect, and whose safety might have required time and an investigation before a jury.

Rut we disclaim the right of controlling the discretion of the court of common pleas in a case like this.

independent of these considerations, it does not appear that the common pleas have done any act of which the plaintiff complains, and which the court can reverse. They have refused to make an order. If they were bound to make that order tho remedy of the party injured is not by certiorari.


text:
    Wilson v Apple.
    In slander, defendant has a right to give facts not amounting to a justíñcatioj. in evidence to mitigate damages.
    Tried before Judges Burnet and Sherman, in Clermont .county, 1827.
    This was an action of slander. The words laid in the declaration are: You are a thief; you have stolen geeso. The defendant pleaded the general issue, and at the trial offered to prove, in mitigation of damage, that the plaintiff had driven away from one Benjamin Wilson a flock of geese belonging to said Wilson. This evidence was objected to and overruled. A bill of exceptions was taken, and a writ of error brought to reverse the judgment.
    Mooreiiead, for plaintiff,
    cited 2 Peake, 283; 2 Camp. 221; 2 Bos. & Pul. 224; 1 Ld. Raym. 727.
   By the Court :

Although the evidence rejected doesnot seem to be vary material, yet as the fact offered to be proved might, at the time of the speaking of the words, have had some influence in misleading the defendant, he had a right to prove it for tho purpose of reducing the malice.

There is a difference between a justification and an excuse. The one goes to the right of recovery, the other to the amount to be recovered. For the purpose of showing malice, the plaintiff may prove tho speaking of words not charged, if they be not actionable and with a view of extenuating malice, the defendant may prove, under the general issue, any eireumstance connected, with the transaction tending to show that he had probable ground for believing the truth of the words.

In estimating the damage, -the degree of malice is always *to be' considered. Any circumstance, therefore, tending to show that the defendant spoke the words under a mistake, or that he had some reason to believe they were true, is entitled to consideration, and is proper evidence to be received in mitigation. What effect this evidence.might have we know not, nor is it necessary to know. We are satisfied it was legal, and that the defendant had a right to use it for the purpose for which it was offered.

The judgment, therefore, must be reversed and the cause remanded for further proceedings.-


text:
    Inman v. Jenkins.
    former recovery can not be proven by parol to bar an action, nor unless pleaded at bar.
    Tried before Judges Hitohco.ok and Burnet, in Miami county, 1827.
    This case was brought up by writ of error. It appeared, from the record, that the plaintiff below commenced his action, as assignee of a promissory note, before a justice of the peace. The cause was appealed to the common pleas. The plaintiff declared in the commpn form, and the defendant pleaded the general issue, without notice.
    At the trial, the defend an ^attempted to prove a former recovery, and for that purpose, offered parol testimony to establish the following facts: that before the commencement of the present suit, an action had been brought .before a justice of the peace, and a judgment rendered an the same note, and that the docket of the magistrate containing the judgment had been lost or mislaid. The evidence was objected to, overruled, and a bill of exceptions taken.
    The error relied on, was the rejection of the evidence stated in the bill.
    Tho ease argued by Thomas, on the part of the plaintiff.
   By the Court :

The evidence offered in the court below, was properly rejected for two reasons. First, it was not competent for the defendant to prove a former recovery by parol. The ^circumstance stated, in relation to the loss of the docket, does not take the case out of the general rule. The objection to that kind of testimony, and the uncertainty and danger to be apprehended from it, is still the same. The docket might have been lost or mislaid by accident; or it might have been put out of the way, by design, to lay the foundation for parol testimony. In either case, the consequences are the same.

The evidence is not the best the nature of the case admits of; nor is it such as the law requires.

Salutary rules must not be dispensed with, because eases may arise in which they are found to be inconvenient.

But, independent of this ground, we are of opinion that by our practice act, this defense could not be set up, under the general issue, without a notice. Although it has been considered by this court, that the act does not require a notice of every matter, which, if specially pleaded, would be a good bar; yet we think the defense attempted, in this case, does not require it. Such has been the practice, and we do not recollect a case in which a former recovery has been proved, under the general issue, without a notice.

Judgment affirmed.


text:
    Lessee of Matthews v. Thompson and others.
    Points ruled as -to judgments, executions, and levy, in ejectment, for real estate sold by sheriff, and possession given to the purchaser.
   This was an action of ejectment submitted to the court in the county of Belmont, and removed for decision at the special session, in December, 1827.

The defendants relied on a title derived from a sheriff’s deed. It appeared that in the year-, Matthews voluntarily confessed a judgment, in good faith, on the appearance docket of the court of common pleas for the county of Belmont, which referred to a prior judgment against the plaintiffs, in the Supreme Court, for a debt which they were bound as the sureties of Matthews.

*The judgment so confessed, was entered without process, or pleadings, and it was made a question whether it had been entered in term time, or in vacation.

The execution on this judgment referred also to the judgment in the Supreme Court. The levy returned by the sheriff was on one hundred acres of lanct, in', section four, township seven, range four, without further description. The deed purported to convey to the purchaser all the right of the defendant in a particular tract within the section, which it was insisted contained more than a hundred acres. There was also a want of formality in the proceedings generally.

The deed offered in evidence by the defendant was objected to, on the ground that the judgment, execution, levy, and deed were all illegal and void.

The following points were resolved by the court, and the cause was sent back to the county of Belmont, for trial at the next term.

First. These proceedings took place at an early period, before any system of practice had been established by statute, or by rules adopted for that purpose. The court that ordered the judgment had jurisdiction of the subject matter, and the officers had power to perform the acts which they did. It would, therefore, be unreasonable to expect the same regularity and technical precision which would be required at the present day, and the proceedings ought to be viewed with an indulgent eye.

Second. The objection to the want of process and pleadings can not be sustained. Judgments confessed in person, or by power of attorney, in open court, are valid without process; and as an issue is not required in such cases; the pleadings may be dispensed with. It is, however, necessary that the judgment should be entered in term time, which fact may be ascertained by inspecting the docket and the entry.

Third. The execution is certainly informal. It ought not to have referred to the judgment of the Supreme Court, but wo are of opinion that the words Supreme Court may be stricken out as surplusage, and the writ will then contain the substance of a good execution.

Fourth. The levy indorsed on the execution is defective. It is stated to have been made on one hundred acres of land, *in section four, township seven, range four, with no further description. The return ought to have been so specific as to enable the pur* chaser to ascertain the land which he purchased with certainty. This defect, however, may be supplied by parol testimony.

Fifth. The variance between the levy and the description in the deed may also be explained by parol. If the levy was actually made on the tract contained within the boundaries set out by the deed, and that fact was known and understood at the time of the sale, no injustice has been done. An innocent purchaser, under such circumstauces, ought not to suffer by the careless manner in which the officer has stated his proceeding, if, in point of fact, they have been substantially correct.

      Note. — At tbe next term of the court in Belmont, the cause stood for trial, but the counsel for the plaintiff entered a discontinuance.


text:
    Long v. Hitchcock.
    In slander, defendant appeals, and after appeal dies, suit abates.
    Tried before Judges Burnet and Sherman, in Scioto county, 1827.
    This was an action of slander, in which the plaintiff obtained a verdict and judgment in the common pleas. The defendant gave notice of an appeal, and perfected the appeal bond within the time ■directed by the statute, and died before the return of the transcript to this court.
    Tract, for the plaintiff,
    moved to docket the case, and dismiss the appeal. He contended that the appeal was the suit of the appellant, and that his death abated the appeal only. He cited 2 Ohio, 517; 2 Bac. Abr., title (a); 3 Hen. & Mun. 217: 2 Hen. & Mun. 137, 211.
   By the Court :

The cases cited in support of the motion are not applicable. 'There is no similarity between the appeals to which they refer, and the appeal given by our statute. The defendant in this case had perfected his appeal before his *death. When that was done the verdict and judgment were vacated, and the cause was ' considered as transferred to this court, for trial on its merits. The death of the party under these circumstances produced the same effect as if the verdict had been set aside, on motion in the court* below, and a new trial granted; in which case there is no doubt but that the suit must have abated by the subsequent death of the defendant. If the defendant had died after the notice, and before the appeal was perfected; or if the appeal had been irregularly taken, the verdict and judgment would have remained in force, and if a transcript in such case had been sent here the motion might have been proper. But the case now stands as if there had been no trial, and as the cause of action does not survive at common law, and is not saved by the statute to prevent the abatement of suits, the motion can not be granted.

Suit abated.


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    The Executors of Brown v. Brabham, Administrator, and others.
    Case of payment.
    Heard before Judges Hitchcock and Burnet, in Montgomery county, 1827.
    This bill was filed for the purpose of compelling payment of a balance claimed to be due on the partnership accounts between the late firms of Sutherland & Brown, and of McCullom, Butler, & Landon.
    The account of Sutherland & Brown, on the dissolution of their partnership, had been assigned to Brown. A settlement was afterward had between Brown and McCullom, by which the balance due to the former, from the firm of McCullom & Co., was ascertained. All the parties to the transaction, except Sutherland, are deceased. Most of them were insolvent, and the persons who administered on their estates are most of them dead, and several of them insolvent.

      The object of the bill is to require the payment of the aforesaid* balance, from Brabham, surviving administrator of McCullom.
    ^Sutherland, having asssigned his interest to the complainant, has disclaimed.
    Brabham relies on the statute of limitations, and on a receipt from Brown, for a draft on General Porter, in favor of Butler, and. indorsed by him to Brown.
    The case was argued by Stoddart and Bacon, for complainant,, and Smith for defendant.-
   By the Court :

It is not necessary to examine many of the grounds that have-been taken and relied on in the argument. It appears to us¡ that Brown’s receipt is decisive of the matter in controversy. That receipt was given in 1811, after' the settlement, referred to in the-bill, had been made. It acknowledges that Brown had received, on account of the balance now claimed, a draft for six hundred and eighty dollars, drawn on Porter, in favor of Butler, and indorsed by him.

A number of objections have been taken to the allowance of this receipt. It is contended, in the first place, that the proceeds of the draft have never been received by Brown. This seems to be the fact, but as he constituted Butler his agent, to collect the-money, by whom it was received, and misapplied, he can not avail himself of this objection. A payment to Butler was in effect payment to the complainant, whose agent he was, and it does not rest with him to charge the defendants with the consequences of his-own misplaced confidence.

It is said, in the second place, that the draft was Butler’s private property, and that being indebted to Brown in his private, as-well as in his partnership capacity, he had a right to direct the money to be applied on either account. This is not denied, but so-far as there is evidence on this point, it goes to show, that the draft was assigned for the purpose of extinguishing the partnership debt, but if not, there is no evidence to show that Butler directed it to be otherwise applied; and if no directions were given, the house had a right to credit it to either account, and he has applied it to the partnership account. The receipt given for the. draft specifies that application, and was received without objection. Butler did not dispute it in his life, nor has *it been* -disputed since, by any person .legally representing him, and certainly the complainant, who made the application, can not now -be allowed to question it.

Again, it is said that Brown used due diligence by employing a ■confidential agent, as he had a right to do. This is admitted; but as that confidential agent collected the money, it is the same thing to the defendant as if Brown had collected it himself. The amount -of the draft exceeds the balance due on the settlement, and extinguishes the whole debt. It is not necessary, therefore, to consider •any other point made in the cause.

Bill dismissed.


author: *By the Court

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    Street v. Francis.
    2STo appeal lies from the decision of the court of commoWpleas, on an application to redeem land sold for taxes.
    Beeore Judges Burnet and Sherman, in Adams county, 1827.
    This was an appeal from a decision of the court of common pleas, on an application for the redemption of land sold for taxes.
    The appellee moved to dismiss the appeal for want of jurisdiction.
    Brush, for the appellant, contended:
    That the case was within the statute, allowing appeals from judgments and decrees in the common pleas. That the appellate jurisdiction of this court ought to be favored. That the act for -the redemption of land contains nothing prohibiting an appeal. 'That this appeal is from a judgment of the court below; and that the delay of bringing up the case by an allowance might be prejudicial. —
   *By the Court

The practice of removing causes from the common pleas to this -court, for the purpose of a second trial on the merits, has been created by statute. It is a proceeding unknown to the common law. It can not, therefore, be extended beyond the plain and obvious import of the statute.

*The appeal is given from judgments and decrees rendered in the court of common pleas. In every case of an appeal,, security must be given for the amount of the condemnation money,, and cost in the Supreme Court. The statute also directs that all cases appealed shall be tried on the pleadings made up in the common pleas, unless, on good cause shown, the parties are permitted to amend their pleadings. These provisions evidently relate to cases of a different character from the one before us. The right of appeal is given in the statute which regulates the practice of the courts in cases that are conducted according to the course of the common law, and the terms made use of clearly show that the provision applies only to suits in which there are plaintiffs and defendants, and in which pleadings are filed and issues joined, according to the course of the common law. It has never been considered as extending to cases in which a summary jurisdiction has-been granted to the common pleas, by particular statutes. In such cases, we never sustain an appeal in this form, unless it has been allowed by the statute which creates the jurisdiction. In, this case, the statute does not provide for, or allow of an appeal. The decision, therefore, of the common pleas on the merits is final. This court has an undoubted right to examine such proceedings on certiorari, and so far as the merits are exhibited in the record of the proceedings below, to see whether the court has decided correctly, and if not, to set the matter right.


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    Abbott v. Hughes & Miller.
    Plaintiff mistaking his deiense at law, can not be relieved in equity.
    Heard before Judges Burnet and Sherman, in Brown county,. 1827. t-,
    The complainant states in his bill, that, in February, 1823, he-, made his note to the defendant, Hughes, for one hundred dollars,, payable in twelve months, either in legal claims on the said Hughes, or in produce; that before the note became due, he purchased a note, given by said Hughes to one Walker, for one hundred dollars, payable in August, 1823, *for the purpose of discharging his own note, and offered it to Hughes, who informed him that he had assigned the complainant’s note to the defendant, Miller, to secure the payment of forty dollars; that Miller having left the note with Gilliland, he called and informed him that he was ready to discharge it, by the delivery of Hughes’’ note to Walker, which was refused. After this, Miller put the note-in suit. The complainant pleaded the facts as above. The plaintiff demurred to the plea. The court sustained the demurrer, because the plea did not aver an offer to assign the note purchased of Walker. The complainant, by leave, amended his plea, by an averment of that fact. On the trial, he failed to prove that he had so offered to assign, and a verdict and judgment were rendered against him. The object of the bill is to enjoin that judgment. Miller has answered; the bill has been taken pro confesso, as to Hughes; and the cause is submitted to the court without argument.
   By the Court :

The facts set out in the bill are fully supported, but it is very evident that the remedy of-the complainant was at law. The purchase and tender of the note given by Hughes to Walker was a legal discharge of his own note to Hughes. It was not necessary for him to assign that note. By the operation of the contract, the purchase of the note from Walker was for the benefit of Hughes, the maker, an'd intended to extinguish it. It was, in fact, a payment on behalf of Hughes, and nothing more was necessary than an officer to deliver it, as a canceled note.

It is a' general rule, that after a trial at law, the defendant can not sustain a bill for relief in equity, on' facts which would have been a good defense at law. If the complainant had refused to amend his plea, and had suffered the cause to take its course, he might have been put right, either by appeal or writ of error; but having abandoned his legal defense, he is without remedy, so far as Miller is concerned. His interest, however, does not extend to the whole note. He is seeking to recover a part of the amount for .the benefit of the defendant, Hughes, by whom the bill is confessed, and who certainly has no just or equitable claim on the complainant. *Under these circumstances, it would be against equity and good conscience, to suffer the assignee to collect that part of the judgment. As far as his own interest is concerned, he must be permitted to enforce the judgment. But as to the residue, or so much of it as is to be applied to the use of Hughes, a perpetual injunction must be awarded.


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    Dixon and Hawke v. Ewing’s Administrators.

      Chancery.

    Execution creditor against principal and surety, byreleasing property of prin. cipal, taken in execution, loses bis redress against surety. See 3 Wheat., contra.
    Heard before Judges Burnet and Sherman, in Brown county, 1827.
    The bill states that the complainants joined in a title bond to Ewing, as the securities of one Foot, for the conveyance of a tract of land. They had no interest in the transaction. Foot failed to convey the land. Ewing brought suit, and obtained a judgment for one hundred and ninety-two dollars and fifty cents. Execution was taken on the judgment, and levied on some personal property belonging to Foot. The property so levied on was afterward discharged from the execution, and returned to Foot, by order of plaintiffs’ attorney, without the knowledge or consent of the complainants.
    ■ That answer admits the facts in the bill, but denies that the property was restored to Foot by the direction of the defendants.
    The case was submitted on the briefs of counsel.
   By the Court :

As Foot was the principal debtor, and the complainants were his sureties, the judgment creditors were bound, at least, to let the law take its course, withoutinterfering to exempt the principal debtor, or to relieve his property, in such a way as to increase the risk or eventual loss of the securities. It appears that property belonging to Foot had been taken in execution, by which the judgment might have been in part discharged; and although Foot’s insolvency was notorious, *this property was given up by order of the plantiffs’ attorney, who fnust have known that by doing so, the entire' debt would fall upon the sureties. This has been the result, and the question is, whether a judgment creditor can release the property of his principal debtor after a levy, and then enforce the collection of the entire judgment against the sureties. We are of opinion that he can not) and that these complainants are entitled to a credit on the judgment for the. value of the property so surrendered or relinquished. We do not say that Ewing was bound to pursue the principal to insolvency, before he came on the sureties; but that he had no right to interpose for the protection of the' principal or his property, by discharging either from the debt to the injury of the sureties; and that having done so, the loss must be charged to his own account and not to the complainants. The case is not varied by the allegation that the defendant did not, in person, authorize the release. He is bound by the acts of his attorney.

The question is not what degree of diligence is required, or what degree of negligence may be permitted, in the judgment creditor, in relation to the safety of the sureties, but how far he may be allowed to injure them by his direct acts. Our statute, for the relief of bail and sureties, is a beneficial one, and .•although this case, as it now stands, is not within its letter,, it i» within its spirit, at least, so far as injurious preferences are attempted.

But we are disposed to put the case on the ground of fraud. 'The release of Foot’s property has operated as a fraud on the complainants by taking from them the means of protection on which they must have relied, and which alone could have induced them to Incur the responsibility. They, no doubt, relied on the ability of Foot to perform his engagement or to answer the consequences, ■and any proceeding by the judgment creditor, which has a direct tendency to defeat that calculation, can not be viewed otherwise than as a fraud.

After the property of the principal was in the hands of the sheriff, the sureties had a right to the benefit of it. The judgment, therefore, must be enjoined as to the value oí the property relinquished.


text:
    *Lessee of McCoy v. Galloway.
    Case of boundary upon evidence. Neighborhood report can not contradict record evidence. When course and distance will yield to natural objects. When not.
    Before Judges Burnet and Sherman, in Warren county, 1827,
    The parties agreed to dispense with a jury, and the cause was. submitted to the court on the testimony.
    Corwin and Collett, for the plaintiff.
    E. and H. Dunlavy, for the defendant.
   By the Court :

The lessor of the plaintiff has the first entry, and the eldest, patent, he must, therefore, recover, if his patent covers the land in the possession of the defendant, or any part of it.

The southwest, or beginning corner of Bussell’s survey, under which the plaintiff claims, is sufficiently established. The south boundary line, running east from that corner, is also proved. The plaintiff’s patent calls to run from the beginning, east, two- hundred sixty-six and two-third poles to a sugar and ash. He now claims by a line, four hundred and eighty poles, to a hickory, beech, and oak. His third corner called for is two beeches and an ash. The corner which he now claims is two hickories and a beech.

It is in evidence that when the defendant made his entry, he went to the beginning corner of Eussell and traced the south-boundary, for the purpose of ascertaining the lines of his survey, but not being able to find any corner answering the calls of his-location, he run from the beginning, the distance called for by Bussell, and made a corner from which he made his own entry. Bussell’s survey contains the quantity called for, without interfering with the entry of the defendant; but the corner, he now wishes to establish, will include the whole of the defendant’s entry. Some of the witnesses say that the corners, now claimed by the-plaintiff, have been considered in the neighborhood, for many years, as the original corners of Russell’s survey. It also appears from the connected plat that the two hickories and beech claimed by the plaintiff as his third or northeast ^corner, must have been made as a corner lor Muhlenburgh’s survey of eleven hundred and twenty acres, and not as a corner for the survey of Russell. This appears to be the substance of the testimony, as far as-it appears to be in any way material, and we are clearly of opinion that it does not establish either the second or third comer of Russell’s survey, without which it is impossible to say that his patent, covers any part of the land claimed or occupied by the defendant. The attempt to establish those corners by reputation might have been successful, if the testimony did not contradict the presumption arising from the neighborhood opinion that has been stated. It is evident that the persons, who considered them as-belonging to the plaintiff’s survey, must have been ignorant of the calls of that survey. If they had known that the southeast corner was a sugar and an ash, and the northeast corner two beeches and an ash, they could not have believed that the hickory, oak, and beech in the one case, and the two hickories and beech in the other, were those corners. If corners can be identified and proved by such evidence,-the record testimony, which the land laws have provided for, must yield to neighborhood reports, and certainty and precision must be dispensed with.

When corners are lost they maybe proved by reputation. Witnesses may be examined to show that a corner once existed; that it has been destroyed, and that it corresponded with the call of the entry or survey; but they can not be allowed to substitute one corner for another, or to contradict the evidence which is of record. They can not change a sugar tree to a hickory, or an ash to a beech.

The length of the first line, and the numbers of acres contained in the entry, are strong corroborating circumstances in support of the conclusion that the corners claimed are not the corners called for. By the survey Russell’s south line is two hundred and sixty-six poles and a fraction of a pole ; that line, as he now claims it, is four hundred and eighty poles, almost double the distance in the patent, and the quantity of land which he demands exceeds the quantity for which he has a patent in the same proportion. These facts, we admit, are not conclusive. In the Virginia military district it generally happens that the lines are longer, and the number of acres greater than the calls of the patent, *but it rarely happens that the discrepancy is so great as in the present case; .•■and although these facts would not be sufficient to reject a corner, in other respects sufficiently proved, yet they afford a sufficient ground to reject a claim for a corner, supported only by neigbbor-hood opinion, and particularly so when that opinion contradicts 'the survey.

The fact that the hickory, ash, and beech are in the line of ■Muhlenburgh’s survey, and are called for as a corner for that survey, in the absence of all proof that such a corner belongs to Russell’s survey, confirms the conclusion heretofore drawn.

It is admitted that course and distance must give way to natural -objects, but this rule has its limits, and must be used with sound discretion. When a natural object is distinctly called for and satisfactorily proved, it becomes a landmark not to be rejected, because the certainty which it affords excludes the probability of ■mistake, while course and distance depending for their correctness on a great variety of circumstances, are constantly liable to be incorrect. Difference in the instruments used, and in the care of surveyors and their assistants, must lead to different results. Hence it is that this rule has been established. But in the case before us, the natural objects called for have not been proved. If the plaintiff had established his sugar and ash corner in or near the direction of his first course, and the hickory and beech corner in or near the course of his second line, those corners must have been sustained, although they might have varied from the course and distance in the patent, provided that variance were not too great to be ascribed to the causes just mentioned. But when the -corner claimed by a party has no similitude to the one he has made and recorded as his landmark, he can not aid himself by resorting to this rule. He must be governed by the converse of it, that when there is not an object called for and proved, varying from his course and distance, he must make his corner where course and distance lead him.

Other grounds were taken in the argument, but we consider it unnecessary to pursue them. The plaintiff has failed to establish his second and third corners, and is therefore confined to his course and distance, which do not interfere with the land claimed .and possessed by the defendant.

Judgment for defendant.


text:
    *Harlan v. Read.
    Payment of a note can not be avoided in a suit at law by way of defense, upon the ground of fraud, unless the fraud goes to the whole consideration.
    Tried before Judges Burnet and Sherman, in Clinton county, 1827.
    This was an action of assumpsit on a promissory note for two" hundred and fifty dollars, payable in February, 1826. Plea nonassumpsit. The plaintiff gave the note in evidence, and rested his - cause.
    The defendant examined several witnesses, by whom it appeared that he had purchased a farm from the plaintiff, received a title bond, and taken possession, and that the note in question was given for a part of the purchase money. He further offered to prove that before he made his contract he went with the plaintiff to examine the property; that he examined it in part, and as to ! the residue, relied on the representations of the plaintiff; that the property did not answer the description given of it; that it was - of less value, and that in equity and good conscience he ought not1 to be required to pay the whole amount of the note. This testimony was objected to.
   By the Court :

To avoid the payment of a note in a suit at law, on the ground.: of fraud, the fraud must extend to the whole consideration. We. have no rule to ascertain the extent of the partial injury sustained by the misrepresentation complained of. The jury can not make a new contract for the parties. They can not establish for. them a price or value different from the one agreed. There is no-doubt but that a vendor, who sells by description, is bound to make it good; and in this case, if the vendee was deceived by misrepresentation, he might have refused to execute his contract. He-might have filed a bill to avoid it, but in place of doing this he has affirmed it. He has taken possession with a full knowledge of all the facts, and has paid a part of the purchase money. Under these circumstances, whatever relief he may be entitled to elsewhere, he can not avail himself of his proposed defense in the present action. W e know that courts of common law, as well as courts of equity, may *relieve against fraud in any form in which their modes of proceeding can reach it; but it does not follow that a party who has acquiesced in a fraud, and thereby •sustained a partial loss, may set that up as a defense to an action brought on a note for the consideration of the contract. Such a ■course would not only be inconvenient, but would lead to uncertain results. It would burden the jury unnecessarily. Plaintiffs would be perpetually liable to be taken by surprise, and much ■of the time of the court would be wasted by unprofitable disputation. Attempts have often been made to set up this kind of defense, but it has been always rejected.


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    Strum v. Cunningham.
    Award must show that the arbitrators met at the time and place specified in the submission, or it is bad.
    Tried before Judges Hitchcock and Burnet, in Shelby county, 1827.
    This was an action of slander, brought to issue in the common pleas, and then submitted to arbitration. Bonds were executed in conformity with the statute, by which the submission was to be made a rule of the court of common pleas. The arbitrators awarded that the defendant should pay to the plaintiff the sum of sixty-two dollars; that the suit then pending should be discontinued, and that the parties should execute mutual releases.
    On motion before the common pleas, the submission was made a rule. The defendant took a bill of exceptions, and brought a writ of error to set aside the rule.
    Several errors were assigned. But the error chiefiy relied on was, that it did not appear from any of the proceedings that the arbitrators had met at the time and place required by the submission,
    Bacon argued for the pi aintiff.
    Chaplain, for defendant.
   *By the Court :

The statute authorizing and regulating arbitrations, requires that the arbitration bond shall specify some time arid place, at which the arbitrators shall attend to hear and determine the matters in dispute. The bonds executed in this case, contain such a provision., but it does not appear that it was observed. For anything we can discover, the arbitrators might have met at another time, and at a different place, and the award may have been exparte. The same motive which induced the legislature to require that a time and place should be agreed on, and stated in the submission, requires also that the agreement in that respect should be strictly observed. They have not trusted to parol proof of this part of the agreement, but have directed that it shall form a part of the submission, and for the same reason, the performance of it should appear from the award. But whether parol proof be admissible or not, for this purpose it must appear, from some part of the proceedings, that the auditors did meet at the time and place agreed on. As this does not appear, the rule must be set aside, and the case remanded for further proceedings.