author: Judge Hitchcock,

text:
    Michael Reed, for the use of Jonas Polly, v. Nathan McGrew.
    Covenants for the sale of land maybe discharged by parol contract upon good. consideration. Case upon facts.
    Parol agreement to transfer a certificate of the entry of a tract of land not-within the statute of frauds.
    Error in stating an abstract proposition, not applicable to the cause, no ground. to reverse a judgment, or grant a new trial.
    Plaintiff, who sues for money had and received on the ground of rescinding a-contract, must be in a situation to restore to the defendant that for which the money was paid, or must show that the defendant has been the cause-that he can not make such restoration.
    New trial not granted upon discovery of an additional witness to a fact, upo» which evidence was given to the jury.
    This case was reserved in the county of Stark, on a motion, made by the plaintiff for a new trial.
    It was an action of assumpsit, for money had and received.
    *On the trial of the case the following facts were proven : On August 7, 1819, the defendant entered into a contract under seal to convey to the plaintiff a quarter section of'land in the county of Stark, for the sum of five hundred and sixty dollars. Previous to February 21, 1821, the purchase money was paid.
    On December 20, 1822, another contract, under seal, was entered', into between the plaintiff and defendant, in which they agreed to make an exchange of the quarter section of land, mentioned in the first contract, for a quarter section of land in Columbianacounty, which the defendant was to convey to the plaintiff, on or before January 1, 1828. At this time the fee of the quarter section of land in Columbiana county was in the United States, but-one David Henline was the owner of the certificate of entry, on which the first installment of eighty dollars had been paid. The certificate of entry lay at the United States land office, in Steuben-ville, subject to his order. At the same time, also, a contract was in existence between the defendant McG-rew and Henline, by which Henline was bound to transfer this certificate to McG-rew.
    On February 21, 1824, a verbal agreement was made between the plaintiff, defendant, and Henline, that the said Henline should transfer the certificate to the plaintiff (without any time being-specified for the transfer), that Henline should pay to the plaintiff two hundred dollars, that the defendant should, pay him one hundred dollars, making in the whole three hundred dollars, which was supposed to be sufficient, at least to enable the plaintiff to pay the land out of the office, and obtain a patent in his own name upon the certificate so to be transferred. This sum of three hundred dollars was admitted to have been paid. On the conclusion of this agreement, the plaintiff and defendant signed a joint order-in favor of Henline and Isaac Shelton, in whose hands the certificates of August 7, 1819, and December 20, 1822, aforesaid, were lodged for safe keeping for him to deliver it up to be canceled.
    It was also proven, that,subsequent to this period, the plaintiff stated that he did not want a transfer of the certificate, as he could do better with his money than to pay the *land out of the office. The certificate was not transferred, and on July 4, 1829, the land was forfeited to the United States for non-payment of the purchase money, and has since been sold to other persons. Some short time before the last-mentioned day, and before the-commencement of this suit, the attorney for the plaintiff called . upon the defendant with copies of the certificates of 1819 and 1822r when the defendant stated that Henline had transferred the certificate, and if he could establish that fact, he would refund the-money received under the first contract.
    Upon this state of facts the court instructed the jury: 1. That-if the plaintiff agreed to give up and cancel the aforesaid contracts-between him and the defendant, on the verbal agreement aforesaid, and agreed to take the verbal promise of Henline to transfer the aforesaid certificate, and -to accept of such transfer and the payments aforesaid, instead of the conveyance mentioned in the aforesaid second contract between the plaintiff and defendant, that would exonerate the defendant entirely; although the plaintiff might have no right of action against Henline on such verbal agreement. 2. That even if the plaintiff once had a right to rescind, if he neglected to exercise that right until events so happened, by lapse of time or otherwise, that he could not be restored to his original situation, that the right to rescind here was taken awajq although the right to rescind arose from the act of the defendant.
    Á verdict having been returned for the defendant, the plaintiff moved for a new trial and assigned the following reasons :
    1. The verdict is contrary to the evidence in and the law and equity of the case. 2. The court mistook the law in the direction to the jury. 3. Since the trial the plaintiff has discovered new and material evidence.
    Goodenow, for the plaintiff:
    If by fraud, failure of consideration, or by the statute, a contract is void, the parties are restored; and if recoverable, may he restored to their original rights, and the money paid or property parted with under such void or voidable contract, *may be recovered back. 15 Johns. 475, 503; 1 Ohio, 363; 1 Pet. U. S. 380.
    The second instruction of the court involves the doctrine of rescindment, as far as that doctrine applies to the action of money had and received. That doctrine, in general terms, seems to be this: that any act inconsistent with the obligation and duty of the party authorizes the other party to bring this action. 1 Cow. 46; 2 Stark. Ev. 115, 116; Bull. N. P. 132; 2 Esp. N. P. 644.
    What will authorize the party to rescind may be collected from the following authorities: 11 Wheat. 450, 451; 7 Term, 117; 1 New R. 351; 1 Ohio, 363; Esp. N. P. 644; 12 Johns. 274; 1 Day, 232; Cowp. 387; 4 East, 201; 3 B. & P. 162; 5 East, 449.
    Whether a contract is rescinded or is still open, is a question for the jury, to be settled upon the facts. But I must confess I ■do not see the application of the doctrine contained in the second direction of the court to the facts submitted to the jury. I contend, that if the parol contract of 1824 was void by the statute, then the right to rescind arose on January 1, 1828; if this contract was valid and binding on the parties, as the court decided, then the right to rescind arose on July 5,1829.
    Harris, for the defendant:
    The facts in this case show most conclusively that the equity of this case is with the defendant, and if so, the verdict ought not to be disturbed.

      The doctrine of rescindment has nothing to do with the ease. The contract- of 1819 was canceled or satisfied by that -of 1822, and this latter by that of 1824. On this latter day the parties’ agreed to cancel this last contract upon a valuable Consideration,' paid by the defendant to the plaintiff. From this time the defendant was discharged from all obligation to the plaintiff.
    I have no doubt that the authorities cited upon the other side ■are good law, but they do not apply to this case.
    If that part of the charge' of the court, to which the. plaintiff ■excepts in the second instance, had no connection *with the -case, as his counsel seem to think it had not, it certainly can be no reason for a new trial, even were it erroneous. But this is not admitted; on the contrary, it is believed to have been correct.
    As to the newly discovered evidence, it is only to enable the ■party to prove by additional testimony facts which were in proof by other witnesses on the trial of the cause. And this court will ■not grant a new trial for the purpose of merely enabling a party to introduce cumulative evidence.
    Goodenow, in reply:
    The newly discovered testimony is not merely cumulative. If ■ introduced it would go to destroy the effect of some part of the ■defendant’s evidence, especially the testimony of Henline, who was examined as a witness.
   Judge Hitchcock,

delivered the opinion of the court:

In the present action the plaintiff seeks to recover back money "by him paid when in contract to the defendant, and which he claims bas been rescinded, or which he has a right to rescind, in consequence of a failure, on the part of the defendant, to comply with his part of the contract. The only contract between the parties, ■in pursuance of which money was paid by the plaintiff to the de-' fendant, was made on August 7, 1819. In pursuance of this contract five hundred and sixty dollars were paid.- And whether the plaintiff claims to receive this amount or only the balance, after ■deducting three hundred dollars, which was paid to him by the defendant and Henline, does not clearly appear. 1 presume, however, it is the balance merely. Nor does it very clearly appear' which of the three contracts (for the three were made between the parties) it is sought to rescind. The general'principle can not be-controverted, that where one man pays to another money upon a contract and the contract fails in consequence of an -act done by the opposite party, or in consequence of his inability to perform,, the money paid may be recovered back in this form of action. And the circumstances are numerous where the party paying the money, or other article +of property, may consider the contract as rescinded, and recover back his money. This is apparent from the cases cited by the plaintiff’s counsel. Whether this is a , case of that description remains to be considered. But under no circumstances can a plaintiff recover if the failure of the contract is attributable to an act of his. The action is an equitable action,, and as in chancery, he that would have equity must do equity, so in cases of this description.

In order to determine whether the verdict in this case is against the evidence, the law and equity of the case, as is insisted by the. plaintiff, it is necessary to examine the facts and inquire what legal or equitable inferences may be drawn from those facts.

On August 7, 1819, the defendant entered into a contract, under seal, by which he bound himself to convey to the plaintiff a quarter section of land, in the county of Stark, for five hundred and sixty dollars, which was paid. It does not appear, from the evidence before the court, that any time was fixed within which the-conveyance should be made. It was then incumbent on the defendant to make the conveyance in a reasonable time, or upon demand, after the payment of the money. And had he refused, the plaintiff might have considered the contract as rescinded, and would have had a right of -action against him for money had and received. No conveyance, however, was made, nor does it appear that any was demanded, and the business remained in this situation until December 20, 1822.

On this last day another contract or agreement was entered into-between the parties. This contract also was under seal; and by' it they agreed to exchange the quarter section of land in the county of Stark for a quarter section in the county of Columbiana, the defendant binding himself to convey this latter quarter-section to the plaintiff, on or before January 1, 1828. Now what-is the legal effect of this last contract upon the contract of 1819? It would seem to me that there could be no doubt that the latter was fully discharged; as much so as if it had been complied with, according to its strict letter. The parties make an exchange of land, quarter section for quarter section. And as the title to the quarter section in Stark was not in the plaintiff, *but the defondant, it is in effect agreed that he shall retain it, and the plaintiff agrees to take his obligation, under seal, for the conveyance of the quarter section in Columbiana at a subsequent period. Everything appears to have been fair and bona fide. At least nothingtothe contrary appears, and is not to be presumed. After this, the plaintiff surely could not have any claim under the contract of 1819. True, an end was put to it, but not in such a manner as to-enable him to sue for and recover back the money paid, or to sue upon the contract itself and recover damage for its non-performance. By his own act, in concurrence with the-act of the defendant, it was closed, and he received that which he considered, and which the law would consider, as full satisfaction.

By the terms of the contract of 1822, a conveyance was to be-made of the land in Columbiana county, on or before January 1,, 1828. But before that time, to wit: on February 21,1824, another-agreement was made between the plaintiff and defendant, together-with Henline, with reference to the same subject matter, to wit: the quarter section of land in Columbiana. This agreement was-by parol or verbal. Before I proceed to examine it, it may be well to inquire into the relative situation of all the parties at that period. Henline was entitled to the certificate of entry of this land, which was then in the land office at Steubenville, subject to his-order. The first payment of' eighty dollars had been made, and upon the payment of the balance, the person entitled to the certificate could have a patent. Henline was under contract to transfer this certificate to the defendant, MeGrew, And from the circumstance that Henline paid the plaintiff two hundred dollars, it would seem that MeGrew must have paid him, Henline, in part or-in whole, for the quarter section. Probably, however, no more had, been paid than the two hundred dollars. MeGrew was under contract to convey this same quarter section to the plaintiff. The only evidence of title which any of the parties would then have, would, be the certificate of purchase, as no patent could issue until the-land was paid for in the office.

Such being the situation of the parties, they met on *February 21, 1824, and agreed, verbally, that Henline should transfer the>certificate direct to the plaintiff, and that the defendant andHenline should pay him three hundred dollars, a sum sufficient to pay-the land out of the office, and which was paid, two hundred dollars .by Henline, and one hundred dollars by the defendant. On the ■ conclusion of this agreement, the plaintiff and defendant gave an order in favor of Henline, upon Shelton, in whose hands the contracts of 1819 and .1822 had been lodged for safe keeping, for him to deliver up the same to be canceled. By the terms of this contract or agreement, it will be seen that the defendant surrendered up all claims which he had upon Henline for the certificate for the • land. In fact, he put it out of his power to comply with the contract of 1822. He put it out of his power to procure the land. And ■ through his instrumentality, the plaintiff was furnished with means to buy the land out of the office and procure a patent in his own name. It seems to have been clearly the intention of all the parties that this power should be vested in him. From all the circumstances attending this transaction, there can be no doubt that it was the understanding at the time this agreement was made, that it should supersede the contract of 1822. Instead of the conveyance of the quarter section in Columbiana, the plaintiff agreed to receive the three hundred dollars, and also an assignment of the certificate, for which assignment he was to look to Henline. It was the intention to put an end to the last-named contract else why deliver it up to be canceled? Still, although an end was put to the contract, it was not under such circumstances as to give the plaintiff .a right of action. From this time the defendant might well suppose that he was discharged from any further liability. He had put it in the power of the plaintiff to obtain a title to the land, had furnished him the means with which to do it, and had procured his ■ order to have the contract canceled.

But suppose he was not thus discharged, let us see whether there is anything further in the evidence which would make him liable. From the time this last agreement was made between the plaintiff, • defendant, and Henline, we hear nothing further respecting the subject matter until 1829, except that the plaintiff stated that he did not want the ^certificate, and that he could do better with the money than to buy the land out of the office. But in the year 1829, and previous to the month of July, he sent his attorney .to the defendant with a copy of the two first contracts. The defendant then stated that Henline had transferred the certificate, .and that if he had not, he, the defendant, would refund the money. In July the land was forfeited, and sold by the United States to other persons.

This evidence shows that the plaintiff has never acquired a title, but this would not give him a right of action, unless he had been prevented by some act, mistake, or default of the defendant It was not the duty of the defendant, but of the plaintiff, to pay the land out of the office, and the money with which to do it he-had received of the defendant. But this he did not do, nor is there any evidence that he-attempted to do it. It was not necessary that he should have the certificate for this purpose, for although he might not be able to acquire a patent without the certificate, he might have deposited the money, and thus have secured' the land. No time was specified within which the certificate was-to be transferred, yet there is no evidence to show that the plaintiff made an effort to obtain it by demand or otherwise. The transfer, however, was not to come from the defendant, but from-another person. Why all this neglect on the part of the plaintiff? It can be accounted for upon no other reason than the one-stated by himself, that he did not want the certificate, and could-do better with the money than to pay the land out of the office. This circumstance of the plaintiff’s lying by for so long a period, and-waiting until the time was about to elapse when the land would-be forfeited before he makes a single move, and then, instead of applying to the office to pay the money, or to Honline for a transfer of the certificate, applying, through his attorney, to the defendant with copies of the original contract, taken in connection with the other facts of the case, looks too much like a design on his part to wait until it should be out of the power of the defendant to procure a title, and then to call upon him for moneypaid some two years before. Or perhaps, which is the most favorable supposition for the plaintiff, this attempt to recover back money is an *after-thought. Upon the whole, it seems to the court that the verdict is consistent with the evidence, the law and equity of the case.

The next question is, whether the court erred in their instructions-to the jury. Amongst the other things, the court charged the jury “that if the plaintiff agreed to give up and cancel the aforesaid contract, between him and the defendant, on the verbal agreement aforesaid, and agreed to take the verbal promise of Henline to-transfer the aforesaid certificate and to accept of such transfer, and E. ■the payment aforesaid, instead of the conveyance mentioned in the aforesaid second contract, between the plaintiff and defendant, that would exonerate the plaintiff entirely, although the ■plaintiff might have no right of action against Henline on such verbal agreement.”

Now I see nothing wrong in all this. The parties had a perfect right to cancel their contracts, and if they agreed to do it upon •sufficient consideration, such agreement would be obligatory upon them. It was certainly competent for the plaintiff to take the three hundred dollars and the assumption of Henline, to transfer the certificate in full satisfaction of the contract of 1822, and if he did so, the defendant must be discharged from the obligation ■of this contract. Otherwise, what would be the situation of the defendant ? He had given up all right on his part to call upon Henline for a transfer of the certificate. He had parted with the •money which would have enabled him to clear the land out of the office, and had paid that money over to the plaintiff, who took upon himself the performance of this task. If this was not such a settlement between the two parties as would discharge the defendant, it is difficult to conceive what compromise or settlement would do it. Now, can it be very material whether this “ verbal agreement" to transfer was or was not obligatory upon Henline. It was not the only or principal consideration passing between the parties. The payment of the money was of more consequence. But there was not only a payment of money, there was the surrender of a right on the part of the defendant to the plaintiff; ■the right to call upon Henline for transfer of the certificate, and the right to receive a patent for the land upon the payment of the purchase money.

*But is it-so that the plaintiff would have had no right of action against Henline ? It is supposed by the counsel for the ■plaintiff that this contract is within the statute to prevent.frauds, and therefore void. Section 5 of this statute has this clause : “No action shall be brought whereby to charge the defendant upon any contract or sale of lands, tenements, or hereditaments, or any interest in or concerning them,” unless the agreement or memorandum thereof be in writing. 29 Ohio L. 218. This was not a “ contract in sale of lands,” or of “ any interest ” in lands.- It was merely a contract for the transfer of a certificate, which would mot vest in the person to whom the transfer was made any “inierest in the land.” The only effect would he to place in his-hands evidence, which, upon the payment of a certain sum of money, would enable him to procure an “interest in the land.” If I am correct in this, the contract is not within the statute, and. of course is obligatory.

The court further charged the jury, “ that even if the plaintiff once had a right to rescind, if he neglected to exercise that right, until events so happened, by lapse of time or otherwise, that he could not be restored to his original situation, that the right to rescind here was taken away, altho ugh the right to rescind arose from the act of the plaintiff.”

The counsel for the plaintiff remarks “that he does not see the application of the doctrine of this part ot the charge to the facts submitted to the jury.” And certainly I do not perceive the necessity of this part of the charge. According to my apprehension of the facts, the doctrine of rescinding contracts has nothing or very little to do with the case. The defense relied upon is that there had been a compromise between the parties, and that although the defendant had not literally complied with his contract, he had made complete and adequate satisfaction. But undoubtedly the subject of the rescission of contracts was discussed upon the trial of the cause by the counsel, and the court were led to express an opinion upon that subject without reflecting, whether it were or were not necessary. But if it had no application to the facts of the case, what is to be the consequence? We consider it as well settled that, although a court may err in the expression of an opinion upon an abstract ^question of law, which is in no way involved in the decision of the case on trial, still there is no cause for the reversal of a judgment or setting aside a verdict.

The charge in this case is, however, substantially correct.

Where the plaintiff sues to recover back money paid upon a contract which has failed, he must show that he has done all in his power to restore the defendant to the sanie situation in which he was when the contract was made. If the possession of the property contracted for has passed to the vendee, it must be restored to the vendor; and if, owing to the negligence, or any other act of the vendee, it is not in his power to restore the possession, although he is not without remedy, still he can not have .the action for money had and received. He must sue upon his contract, and recover damages for its violation. For instance, A. contracts to sell a quarter section of land to B., and receives one-half the purchase money. B. takes possession. The title afterward fails, or A. refuses to convey. B. may surrender the possession to A., thereby assenting to a rescission of the contract, and recover back the money paid in an action for money had and received. Or he may consider the contractas subsisting, and claim1 damages for its breach. In the latter case it would not be necessary, as a preliminary step, that he should surrender the possession. But suppose B. has sold the same land to C., and delivered unto him the possession. In such case he must resort to his action on the contract, because by his own act the possession had been transferred to another, whereby he is prevented from restoring his vendor to his original situation. I think these positions-can not be controverted. And, according to my understanding, this is the extent or meaning of the charge of the court.

Another reason urged for a new trial is the discovery of evidence, since the trial, material to the case. This newly-discovered evidence is not evidence, the effect of which will be to prove-new and distinct facts, but rather to prove facts by a new witness, which were testified to by other witnesses on the trial, and also to prove circumstances which will have a tendency to invalidate-the testimony of one of the defendant’s witnesses. This court will not grant a new trial to give a party the opportunity of introducing cumulative testimony merely, or to give him the-opportunity of impeaching the witnesses of his adversary. But there is in this case another reason why a new trial should not be granted on account of the discovery of this new testimony. Had it been before the jury, it would have still been their duty to return a verdict for the defendant.

An argument urged in favor of' the motion ought to have been-considered before. It is founded upon the promise made by the defendant to the attorney of the plaintiff, that he would refund the money if the certificate had not been transferred. If there was any legal obligation on the part of the defendant to refund the money, that obligation could be inferred without the promise. If there was no legal, but a moral obligation, to refund it, then that moral obligation would be a sufficient consideration to sustain the promise. Without consideration, the promise would be void. To my mind it is clear that there was no moral obligation resting upon the defendant to refund this money to the plaintiff. By the agreement of 1824 he had been completely exonerated. It was rather owing to the neglect of the plaintiff himself, than to any act of the defendant, that he did not get a good and valid title to the and in Columbiana. There was, then, no consideration for this promise. It is therefore nudum pactum and void.

The motion for a new trial must be overruled, and judgment entered on the verdict.


source: Caselaw Access Project

author: Judge Collet

license: Public Domain

text:
    Lessee of Hezekiah Sperry v. Moses Pond and others.
    A conveyance, on condition tliat the grantee shall keep a saw-mill and gristmill doing huisness on the premises, is a valid one, and if the grantee fails to perform the condition he forfeits the estate.
    This was an ejectment tried on the last circuit, in Trumbull county. A verdict was found for the plaintiff, and a motion made by the defendant for a new trial, which was reserved for decision here.
    *It was proved on the trial that Sperry, the lessor, was seized'in fee of a tract of land through which Mill creek flows, in the county of Trumbull. That being so seized, he, on September 10, 1817, by .a deed duly executed, for good consideration, granted to Isaac Clark, his heirs and assigns, the privilege of erecting on the said tract of land a grist and saw-mill, with any other machinery attached, at such place as Clark should select; of damming the stream and digging the necessary mill races, and to have a quarter of an acre for a mill yard at each mill. The said mills and privileges to be held and enjoyed by the said Clark, his heirs and assigns, “so long as they should continue to use and improve the same for the express purpose of grinding, and no longer.” That on December 11,1820, Sperry, by deed duly executed, for the consideration, as expressed in the deed, of one hundred and fifty dollars, conveyed to Clark, his heirs and assigns, one acre of land described by metes and bounds, including the mills and half acre mentioned in the deed of 1817, and a part of the above tract owned by Sperry, to be enjoyed and occupied by the said Clark, his heirs and assigns, “so long as he, the said Clark, his heirs and assigns, shall keep a saw-mill and grist-mill doing business on the premises, allowing, however, all necessary time for repairs, and no •longer.” That Clark erected on the premises a grist and saw-mill .and put them in operation; that in 1820, he sold and conveyed all his interest in the mills and premises to the defendant, Pond, and put him in possession; that about six months after Pond purchased, the grist-mill, for want of repair, was stopped running; it remained so until the spring of 1825, when it was repaired and run, as the water would admit, until some time in 1826, when it was again stopped running, and has not since been repaired or run. That the saw-mill was continued in operation by Pond from the time he purchased, as the water would admit, until the spring of 1824, when the forebay gave way, and it was not again started until the fall of 1825; witter was then conveyed to it by a trough, and some *sawing occasionally done. In the spring of 1826 the forebay was reconstructed, and the saw-mill repaired, and when there was water sufficient, it has ever since been kept in operation. That the stream would drive one of the mills about three months in the year; both, not more than three days at á time. It was also proved or admitted, that the defendants were in possession when this action was commenced, and that Sperry had not parted with the reversion.
    Stone, for the defendants,
    cited Cruise Dig., tit. 13, sec. 1; 4 Johns. 186, 215, 25.
    Loomis and Metcalf, for plaintiff,
    cited 2 B. C. 155; Cru. Dig., tit. 13, secs. 65, 66; 10 Rep. 41, 42; Co. Lit. 214 a, n. 1, 2.
   Judge Collet

delivered the opinion of the court:

When the first deed was made, it was not known where the mills would be erected; when the last deed was executed this was ascertained. By it an acre of land, described by motes and bounds, including the mills and yards and privileges conveyed by the first, was conveyed to Clark, his heirs and assigns, to be occupied by them “so long” as they kept a sáw-mill and grist-mill, doing business on the premises, “ and no longer.” After .the execution of this deed the premises were held according to its terms; if they vary from the terms of the first deed, the last must govern. The parties had the power and the right to vary them. The contingency, by the happening of which the estate granted might be defeated, is substantially the same in both deeds. The estate granted is made to depend, for its continuance, on keeping a grist■mill and saw-mill on the premises doing business, as much of the time as the water, and the necessary time to repair them, would .admit of, and no longer; not on keeping a saw or grist-mill doing business. It is plain and unambiguous; we can see no room for construction. As the parties make their deeds and contracts, the •court must take them.

*It is probable that the stream would not justify keeping both mills in repair on the premises; that the defendants had better lose their estate in them than do so. This, the court can not take into consideration. It was not impossible for them to keep both mills in repair on such a stream.

No inference can be drawn to preclude the plaintiff’s right tc recover, from his not bringing an ejectment at an earlier period; although the grist-mill did no business, and was out of repair from 1821 until 1825, and from 1826 until the bringing of this action, and the saw-mill from the spring of 1824 until the fall of 1825, The estate conveyed by the deed to Clark was a qualified or determined fee. If the terms of the deed are such, as to be construed a limitation (although the reversion was not disposed of, and Sperry could enter for a forfeiture without destroying any remainder), then, the estate of Pond terminated in 1821, and by operation of law, vested in Sperry, where it has ever since remained. 2 B. C. 109, 155. If the estate of Clark was on condition in deed, then the forfeitures, which happened by suffering the grist-mill to remain still and out of repair, in 1821, and suffering the saw-mill to remain still and out of repair, in 1824, were saved by having them both running in 1826. If Sperry knew of their being out •of repair, and of the repairs going on, and did not enter or forbid the repairs; but by supposing the grist-mill to go out of repair in 1826, and cease to grind, a forfeiture again occurred, and as the grist-mill was not repaired and put in operation before a demand was made by Sperry, the forfeiture still continues. An entry or demand of Sperry revested the title in him. The bringing this action is such a demand as, in England, would entitle him to recover for the forfeiture. 2 D. Rang. 750; Burt, on Ed. 46. The" judges who tried this cause remember, that on the trial it was proved that a demand and entry was made by Sperry some time before the commencement of this suit. If Sperry was ignorant-of, or did not assert his claim as soon as he might, he does not thereby forfeit his title.

*These mills, if kept in operation, as the water would permit,, would increase the value of the balance of Sperry’s tract of land, and\be a benefit to the occupier of it. This* probably, with-Sperry, was a part of the consideration for making the grant. Upon the whole,- the court overrule the motion for a new trial and enter judgment on the verdict.


author: Judge" Hitchcock

text:
    D. Z. and D. C. Cooper v. Micajah T. Williams.
    Decision as to water power in the canal, 4 Ohio, 251, affirmed.
    Bill of review reserved in Montgomery county.
    The decree, which it is sought to have reviewed in this cause, was entered at the January term, 1831, of this court, and is reported' in 4 Ohio, 251. The original case, together with the argument of counsel, is so fully reported that it is deemed unnecessary again to state it; more especially as the case is now submitted upon the same arguments.
   Judge" Hitchcock

delivered the opinion of the court:

As the principles involved in this case are very important, we-have bestowed upon it all the deliberation which that importance seemed to require, and, after the most careful examination, are not. able to discover that there is anything erroneous in the decree.

In the opinion expressed by the court, on the trial in the original case, we concur so far as that opinion is decisive of any point, and it is unnecessary at this time to go into a course of argument-to prove the correctness of the decision.

In that opinion, some doubt is expressed whether this court could with propriety interfere to restrain the canal commissioners from-Withdrawing more water from Mad river than what was necessary for canal purposes. Upon *that point I have no doubt. The canal commissioners are authorized to take private property-for the use of that work, but it must be done in such a manner as to do the proprietor no “ unnecessary damage.” It is for the'purposes of the canal alone that they can take it. And if they attempt to go beyond this, it is within the jurisdiction of this court to restrain them.

Although the law authorizes them, in some cases, to dispose of the water, for hydraulic purposes, with a view to raise a revenue to aid in defraying the expense of this work, still this relates only to the water which is necessary for the navigation of the canal, and which can be used for these other purposes without interfering with that navigation. It does not authorize them to receiv© ,a surplus quantity of water into the canal, that they may dispose of it, especially when an injury should be thereby done to an individual. Private property can only be taken by the government or its agent, when necessary for the “public welfare,” and in such case compensation must be made.

A riparian proprietor possesses the same right.to the use of the water flowing through his land that he does to the land itself. The water itself is hot his. It is the use. And in this use he can not be disturbed by an adjoining proprietor, either above or below him. Neither can he with impunity interfere with the right of such proprietor. Of this right he maybe deprived, if the “ public welfare ” require it, so far as that public welfare does require, he first having been compensated for the injury.

When the water was taken from the river at Dayton to feed the canal, the complainants were deprived of a right. And for this they did, or might have received a compensation. But they can not follow this water in the canal and make use of it for waterworks wherever a convenient site may offer. And this, because they have no exclusive property in the water, but in its use while flowing over their land. When withdrawn from the river, its natural channel, and flowing in the canal, this use is vested in the state, and may be disposed of by her agents, so that the navigation is not impeded.

*But as the public welfare does not require that any more should be withdrawn from the river than is necessary for the navigation of the canal, no more can be taken; and should an attempt be made to take more, this court might prevent it by injunction.

In the opinion of the court' which originally heard this case; there was no evidence that any surplus water was withdrawn', from the river, and we entertain the same opinion.

The bill is dismissed at the costs of the complainants.


author: Hitchcock, J.,

text:
    Alexander Cotter v. William Doty.
    In replevin, plaintiff may put in a double replication.
    An ordinance of the city of Cincinnati enforcing a penalty, without legal adjudication, is void.
    This case was reserved in the county of Hamilton.
    It is an action of replevin, in which the plaintiff declares that-the defendant, on May 1, 1830, wrongfully detained fifty kegs of ' gunpowder, of the value of four hundred dollars, the proper good»’ and chattels of the plaintiff.
    The defendant pleaded three several pleas, in the third of which he justifies, “ That he, as marshal of the city, under an ordinance passed December 16, 1826, seized the powder in a storehouse in Cincinnati, the same being a greater quantity than the ordinance permitted to be kept within the corporation at any one place. That having seized the powder, the defendant conveyed it to a place of safety, as he had a right to do.”
    The plaintiff replies: 1. That the powder was placed in the-hands of one Samuel E. Perry for transportation, who, without the plaintiff’s knowledge, stored it in Cincinnati, and was fined by the mayor for that offense one hundred dollars. 2. That the powder, after having been removed without the city to a place of safety, was demanded of the defendant, who refused to deliver ifc. up, although it was forfeited by the city ordinance.
    *To this replication the defendant demurs:
    Storer and Eox, for the defendant,
    suggested a doubt whether the double replication of the defendant was regular; but being desirous that the case should be settled upon the merits of the whole-pleadings, waived any objection on this account.

      They alleged that the two following questions were presented by the pleadings:
    1. Had the city council, under the act of 1815 (the act in force when the ordinance under which the defendant justifies), the power to create a forfeiture; and if so, could they enforce a forfeiture and penalty at the same time and for the same act. 2. Could such forfeiture be enforced, unless some legal adjudication condemning the property as forfeited should be first had.
    They admitted that without express power conferred in their charter no corporation could create a forfeiture. Such power could not be brought into existence by implication.. And they cited 8 Co. 249, C. Dub. ed. of 1793; 2 Vent. 182; 1 Term, 118; 2 Johns. 380. But they contended that this power was expressly conferred by the act of 1815.
    Upon the second question raised, they agreed that the necessity of the case required the mode of proceeding authorized by the ordinance. Before a legal adjudication could be had, the mischief intended to be provided against might have happened. They cited many hypothetical cases supposed to be analogous; where delay to obtain a legal adjudication would be followed by inevitable-ruin, such for instance as where, in case of fire, when it became necessary to remove or destroy contiguous buildings to prevent the spread of the flames.
    N. Wright, for the plaintiff:
    If it be admitted that a forfeiture of the kind under consideration could be imposed under the city charter, still it could not be imposed in addition to the fine. Mayor, etc., of New York v. Ordrina, 12 Johns. 122, is a case in point.
    But the charter of 1815 gives no power, express or implied, to create a forfeiture. And unless it be given in the charter, *an ordinance by which it is attempted to be enacted is void. 2 Com. Dig. 292; 8 Co. 127; 1 Bac. 551; 1 Dunf. & East, 118-124; 2 Maule & S. 53, 60.
    I insist,' in the next place, that if this charter authorized a forfeiture of goods, it could not be enforced in the manner provided in the ordinance in question. It is against the spirit of the constitution. Art. 8, sec. 5. It is against the whole spirit of the-common law, as understood in England and in this country. 1 Bar. 551.

      In the grounds I assume, I concede to the city all that is really necessary for the safety of the city, and all the ordinary remedies to enforce obedience to this by-law, all, indeed, except an arbitrary forfeiture. I allow them to seize and remove the powder out of the city, and to fine for the offense.
   Hitchcock, J.,

delivered the opinion of the court:

A doubt has been suggested as to the regularity of the pleading in this ease, on the ground that the plaintiff has replied double, to the third plea of the defendant. This subject is regulated by statute. Section 47 of the practice act, 29 Ohio L. 67, provides “ that it shall be lawful for the plaintiff in replevin, or for the defendant or tenant in any other action in any court of record, with leave of such court, to plead as many several matters as he shall think necessary for his defense.” In replevin both parties are considered as actors. And if the defendant avows or justifies to this avowry or justification, the plaintiff may reply or plead double. Such is the intendment of the statute; the pleadings, therefore, are regular.

The decision of this case depends upon the validity of so much of the ordinance under which the defendant justifies, as creates forfeitures and attempts to enforce them, without legal adjudication or investigation. This ordinance was enacted in December, 1826, by the city council of Cincinnati, and, together with others, contains the following sections:

“ Sec. 16. Be it further ordained, that no person or persons shall be allowed to keep in any house or other building within the bound-' aries of the corporation of this city more than twenty-eight pounds of gunpowder at any one time, *which twenty-eight pounds shall be divided into at least four parcels, and each parcel secured in stone jugs with tight stoppers, or in tin canisters provided with safe and sufficient covers ; and not more than seven pounds in any jug or canister as aforesaid ; and any person or persons keeping twenty-eight pounds of gunpowder, or less, within the boundaries aforesaid, and shall neglect or refuse to parcel and secure it in manner aforesaid, shall forfeit the same to the corporation; and any person or persons keeping any greater quantity than twenty-eight pounds within the boundaries aforesaid, shall forfeit the same, and shall pay a fine of twenty dollars for every hundred weight that he, she, or they, may have in their possession; and in that proportion for any greater or less quantity, on conviction thereof before the mayor; provided, that nothing in this ordinance shall be so construed as to prevent any person from conveying gunpowder through the streets to some place of deposit without the limits of the corporation; provided, that all gunpowder shall be put iip in .tight or sufficient casks or kegs.”

Section 11 makes it the duty of the city marshal and his deputies, and the chief and assistant engineers of the fire department and any of' the fire wardens, on any day (Sundays excepted), to ■enter into any building where gunpowder is kept or supposed to be kept, and examine the premises, and if any gunpowder is found ■contrary to the provisions of the preceding section, it is made their duty to receive the same and convey it to some safe place of deposit without the city. And it is further made the duty of the marshal, after having given three days’ publication, to sell all the gunpowder so seized, to the highest bidder, for the benefit of the corporation.

This section contains further provisions, to which it is unnecessary to refer.

The first important question is, did the corporation, under their charter, possess power to create this forfeiture ? For no matter •how expedient it may be, it can not be sustained unless the power is granted in the act creating the corporation. A corporation may, nay, they must, from the necessity of the case, have power to regulate their own internal concerns; and this, although the power is not specifically granted. But *the power to create forfeitures is a high power; one which will not be exercised by the legislature of the state except in extreme cases. Certainly, then, no corporation shall be permitted to exercise this posver, unless under an express and explicit grant of the right. But about this there is no dispute. The principle is not controverted.

It is claimed, however, that the power was created by the act of incorporation. The law in force at the time this ordinance was enacted, was the act of January 10, 1815, 13 Ohio L. 60. Section 7 defines the powers and duties of the town council, and among other things authorizes them “ to impose reasonable fines on all' persons offending against the laws and ordinances aforesaid, and to cause all such fines and all such forfeitures and penalties as may be incurred, under the laws and ordinances of the corporation, to be assessed, levied, and collected in such manner as they may prescribe.”

This is the only part of the law in which reference is had to forfeitures. It is clear that here is no. express grant of power to create-a forfeiture, and without such express grant, the power can not be exercised. But was it even proper to imply it, it could not, in the opinion of the court, be implied from this clause. The first part of this clause grants the power “to impose reasonable fines,” and. the latter part grants the power to prescribe the manner in which these fines may be assessed, levied, and collected. True, the words forfeitures and penalties are used, but from the manner in which they are used, from the connection in which they are placed, it is manifest that nothing more was intended than fines merely. Else-why speak of that which is to be assessed, levied, and' collected ?

In the “act to incorporate the city of Cincinnati,” etc., 25 Ohio L. 40, this power is expressly granted. Section 8 authorizes the city council “to impose fines, forfeitures, and penalties on all persons-offending against the laws and ordinances of said city, and provide for the prosecution, recovery, and collection thereof.” By section 24 of this act, “ all laws, ordinances, and resolutions heretofore lawfully passed and adopted by the city council of said city,” are continued in force until repealed. Now, although at the *time-the property in controversy was seized, the city council possessed this power, inasmuch as the defendant acted under an ordinance made at a time when they did not possess it, it will not avail him in his defense.

That the city council, under the law of 1815, had the power to-pass a law to prevent large quantities of gunpowder from being kept in the city, we have no doubt. For offending against an ordinance of this description they might impose fines. With equal propriety they might provide for its removal to a safe placo without the limits of the corporation. But they have not the power to declare it. forfeited, nor the right when it is removed to withhold it. from the owner.

Inasmuch, then, as the defendant, after the gunpowder was removed to a place of safety, refused, upon demand made, to deliver it up to the plaintiff, he is not justified. The replication is sufficient in law, and upon the demurrer, judgment must be entered for the-plaintiff.

Such being the opinion of the court upon the first question raised by the defendant’s counsel, it is unnecessary to consider the second. But were it necessary, we should have no difficulty. No man ought to be deprived of his property by forfeiture without having a legal investigation. And an ordinance of a corporation which violates-this principle, is not consistent with the spirit of the laws of the-United States or of this state.


author: *Judge Wright

text:
    Lessee of William Sellers v. Ichabod Corwin et al.
    Judgments in the United States Circuit Court for the District of Ohio, ren-dered previous to May, 1828, attached as liens upon the defendant’s lands, throughout the state, in virtue of the adoption, by that court, of the execution laws of the state, for the regulation of its practice.
    Between judgment creditors where a year transpires before execution upon either judgment issued out, execution first issued and levied obtains-preference.
    Purchaser upon execution entitled to benefit of occupying claimant laws.
    Ejectment to recover two lots iu the town of Lebanon, adjourned; from the county of Warren. The plaintiff claims title under a marshal’s deed upon a sale on a judgment and execution in the Circuit Court of the United States for the District of Ohio. This judgment was rendered January 8, 1822, execution issued *Fobruary 5,1823, and levy was made August 20th, in that year. Several writs-of venditioni exponas were issued, but no sale was effected until - August 9, 1831.
    The defendants rest upon a sheriff’s deed and sale upon execu-tion on a judgment of the court 'of common pleas of Warren county of August 11, 1821. The first execution upon this judg-ment was issued October 19, 1821. Several other executions were ■ afterward issued but no levy was made on the lots in question. In September, 1823, further proceedings on this judgment were enjoined in chancery, and the injunction was not dissolved until December 21, 1825. A new execution was issued on February 8, 1826, and levied on the lots in question. Upon this levy they were sold to Corwin, the defendant, and deeded to him by the' sheriff.

      Each of these parties when they purchased had notice in fact ■ of the claims of the other, or the judgments. The cause is sub•mitted upon an agreed statement embodying the above facts. The several judgments binding this property are fully stated in ■ Shuee et al. v. Ferguson et al., 3 Ohio, 136.
    P. Ross, Woods, and T. R..Ross, for plaintiff,
    cited 10 Wheat. 1, 51; 1 Peters, 604; Act of Congress, May 19, 1828; 2 Ohio, 65; 3 Ohio, 135, 136; 10 Johns. 336; 3 Wils. 345; 3 Johns. 526; 18 Ohio L. 180; 20 Ohio L. 68; 22 Ohio L. 108.
    A. H. Dunlevt, for defendants,
    cited judgment and execution laws of Ohio of 1824; United States Judicial Act of 1789 and 1797; 1 Gall. 5, 371; 5 Ohio, 138; 12 Johns. 162; 2 Bin. 223; 5 Ohio, 68; 10 Johns. 386; 3 Johns. 525; 3 Wils. 345; 6 Johns. 284; 1 Smith, 66; Pur. Dig. 204; 2 Bin. 66, 80; 2 Harris Ent. 776, 777; Tidd’s Pr., F. 219; 22 Ohio L. 114.
   *Judge Wright

delivered the opinion of the court:

The case presents the two following as the main questions for the decision of the.court:

1. Whether judgments of the Circuit Court of the United States ■in Ohio are liens upon land, and to what extent?

2. Whether the sale upon the junior judgment, under which the •plaintiff claims, vests in him a title discharged of the prior judg•ment in the state courts ^

1. This court determined in Roads v. Symmes et al., 1 Ohio, 261, that the judgments of a court of record operated as a lien upon the real estate of the defendant. This is a principle of law, say ■the court, which “has been acted upon from the commencement of .the administration of justice in the country,” and say the court also,'“it is equally well settled that the lien is co-extensive with •the territorial jurisdiction of the court that renders the judgment. The general court of the territory exercised its jurisdiction, and sent its process,'original and final, into' any county in the territory. The judgments rendered by it were, of consequence, a lien ■ or a charge upon the lands owned by the defendant anywhere, in the territory.” In McCormick v. Alexander, 2 Ohio, 65, this court say, that “ in the state of Ohio, from its first settlement, judgments i have operated as liens upon lands and real estate of the judgment debtor. Lands have always been liable to be sold on execution.”

The process act of -Congress, temporarily passed in 1789, ancD made permanent in 1792, 2 U. S. Laws, 72, 300, provided that until further provision should be made in that or other acts of the-United States, the forms of writs and executions, and modes of ' proceeding in the circuit and district courts of the United States, in suits at common law, should be the same as was then (1789) vsedf in the Supreme Courts of the same, and when different kinds of execution were issuable in succession, a ca. sa. being one, the plaintiff might take out that writ in the first instance. Section 14 of the United States judiciary act of 1789, 2 U. S. Laws, 62, conferred upon the courts of the ^United States “ power to issue writs of scire facias, habeas corpus, and all other writs not specially provided for by statute which may be necessary for the exercise of their respective jurisdictions and agreeable to the-principles and usages of law.” Section 18 authorizes these courts.to stay execution in certain cases, in order to give time to move-for a new trial. Section 34 declares that the laws of the several states, except when the constitution, treaties, or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decisions on trials at common law, in the courts of the-United States, in cases, where they apply.” The act of 1793, in addition to the last-mentioned act, 2 U. S. Laws, 367, provides that when it is required by the laws of the states that goods taken in execution on a fi. fa. shall be appraised previous to sale, it shall' be lawful for the marshal to summon three appraisers, and for them to appraise any goods taken on a fi.fa. issued by the United States courts, in the same manner as if the writ had issued out of a state court. The act further to regulate processes in the courts of the United States, passed May 19, 1828, Acts 1st Sess. 20th Con. 56, in section 1 adopts the forms of mesne process used at that time in-the highest court of each of those states, which have been admitted into the Union since September 29,1789 (except in Louisiana), for-the courts of the United States in those states, subject to such alterations as said courts should deem expedient, and to such rules as the Supreme Court should adopt. Section 3 adopts into the United States courts in each of those states, in like manner, “ writs of execution and other final process,” “ and the proceedings-thereon ” then [May 19, 1828] used in the courts of the state, reserving to the United States court power, “by rules of court, so far to alter final pr ocess in said courts as to conform the same to .any change which may be adopted by the'legislatures of the respective states for the state courts.” These provisions, it is believed, embrace all the legislation of Congress bearing directly upon the question under consideration.

*The act of 1789 was not applicable to the Ohio district. Neither the district nor state was then formed. The territory, now the State and District of Ohio, was then subject to one incipient organic law of the United States, adapted to the lowest grade of territorial communities. That act adopted the forms of process, etc., used in the Supreme Court of each state in 1789. The State of Ohio was formed in 1802, the District of Ohio in 1803. In 1789 it had no Supreme Court, nor any process then in use in such court. The subject • of the lien of judgments in the United States courts has been looked upon by the profession as awexatious one, but we are not aware of the •question now to be decided having been before any of the courts. The act of May, 1828, we do not think, with the counsel for the plaintiff, removed all difficulties. It is supposed to be prospective in its operation, and not to affect the judgment of 1822, and levy in 1823, under which the plaintiff makes title. That act very materially alters the act of 1788. It adopts in those states admitted into the Union since that time, the mesne process and modes of proceeding used in the highest courts of the state, May 19, 1828; while it adopts for all the states in the Union, no matter when admitted, the final process and proceedings used in the courts of the state at that time. It will doubtless exert a salutary influence upon the practice in the federal courts. While the act evinces a désire in the general government to conform the practice of its judicial tribunals to that of the states, it properly forbears to adopt the changes which the states may make, leaving such changes to be by the courts adopted into the practice if deemed expedient.

The laws of Ohio in force when the judgment in question was rendered in the circuit .court, make judgments in the state courts liens upon lands from the first day of the term on which they were rendered in the courts where the judgment was taken. It is contended, and we think successfully, that the acts of the Ohio assembly, in their terms, *only establish the lien of judgments of the courts of the state. Those laws were enacted as rules for the Ohio courts. The legislature, in the very nature of things, could only intend to enact laws upon subjects within their constitutional jurisdiction, not to embrace subjects and tribunals especially confined to another and distinct government. Such laws do not by their mere enactment, become rules for the courts of the United States. For rules to govern the proceedings of these courts, we must look to the Congress, and to the judicial decisions or rules of the courts of the United States themselves. Judgments are not liens upon lands at common law. Such liens are the creatures of positive statute. The Supreme Court of the United States in Parkin v. Scott, 12 Wheat. 179, recognizes this position, and holds such liens to have capacity to bind and- hold land so long as the statute preserves them in force. This court, in McCormick v. Alexander, 2 Ohio, 65, adjudge that judgments are not of themselves liens upon either real or personal property. They depend upon legislative enactment, are varied from time to time as policy dictates, and the provisions on the subject differ widely in different states. 4 Kent Com. 428-430; 2 P. Wms. 491.

In the United States v. Worson, 1 Gall. 518, the circuit court -determined that section 34 of the judiciary act of 1789, making the state laws rules of decision in the courts of the Union, did not apply to the process and proceedings in those courts.

In Palmer v. Allen, 7 Cranch, 564, the Supreme Court of the United States held that the process act of 1789 did not give efficacy to the laws of Connecticut touching the mode of' executing processes in the United States courts, or impose upon the officers of the United States an obligation to conform their conduct to those laws.

That court, in Robinson v. Campbell, 3 Wheat. 212, held that the remedies in the courts of the United States, at common law and equity, are to be, not according to the practice of state courts, but according to the principles of common law and equity, as distinguished and defined in the country from whence we derive our knowledge of those principles.

*In Wayman v. Southard, 10 Wheat. 1, that court held that Congress had the exclusive authority to regulate the proceedings in the courts of the United States, and the states have no authority to control these proceedings, except so far as the state process acts are adopted by Congress or by the courts of the United States; that the proceedings on executions in the courts of the United States were to be the same in each state as were used in the Supreme Court of the state in September, 1789, subject to* such alterations and additions as said courts may make; that a state law regulating executions, enacted subsequent to September," 1789, is not applicable to executions upon judgment rendered by thej courts of the United States, unless expressly adopted by the regulations- and rules of those courts. Judge Marshall, in giving the opinion of the court, makes the following remarks upon the origin of the acts of Congress of 1789, 1792-3, page 46: Congress, at the introduction of the present government, was placed in a peculiar situation. A judicial system was to be prepared, not for a consolidated people, but for distinct societies, already possessing distinct systems, and accustomed to laws which, though originating in the* same great principles, had been variously modified. The perplexity arising from this state of things was much augmented by the circumstance that in many of the states the pressure of the moment had produced deviations from the course of administering justice between debtor and creditor, which conflicted not only with the spirit of the constitution, and consequently with the views of the government, but also with what might safely be considered as* the permanent policy as well as interest of the states themselves. The new government could neither entirely disregard those circumstances nor consider them as permanent. In adopting the temporary mode of proceeding with executions then prevailing in the several states, it was ju'oper to provide for the return to-ancient usage, and just as well as wise principles, which might be expected from those who had yielded to a supposed necessity in departing from them. Congress probably conceived that this object would be best effected by placing in the courts of the Union the power of altering the modes of proceeding in suits at common law, which includes the mode of proceeding in the *execution of their judgments, in the confidence that in the exercise of this power the ancient, permanent, and approved system would be adopted by the courts, at least as soon as it should be resorted to In the several states by their respective legislatures.” He held it extravagant and utterly inadmissible to maintain that the practice of the federal courts, and the conduct of their officers, would be indirectly regulated by state legislatures by acts professing to regulate state courts.

And in U. S. Bank v. Halstead, 10 Wheat. 64, that court thought that'to permit a marshal to be governed or controlled by the state law, would be not only delaying proceedings against the act of Congress, March 2, 1793, 3 U. S. Laws, 367, but might entirely defeat the effect and operation of the execution, and would be inconsistent with the advancement of justice. The court decided that the circuit court had authority to alter the form of the process of execution, so as to extend to real as well as personal property; when, by the laws of Kentucky, lands were made subject to like process from the state courts; and, that the act of the general assembly of Kentucky does not operate upon, and bind, and direct the mode in which executions should be enforced by the marshal, so as.to prohibit the sale of land levied upon, unless it commanded three-fourths of its value, according to the provisions of said act.”

These decisions, taken by themselves, would seem to settle the-question, so far as it regards the acts of the Ohio legislature, against the plaintiff; for it will not be pretended, that the law applicable to the acts of Connecticut, or to the exocution laws of Kentucky, are not equally applicable to the laws of Ohio of the-like nature.

But the Supreme Court, in Waring v. Johnson, 1 Pet. 571, say, it has been the uniform course of that, court, with respect to the titles to real property, to apply the same rules that are applied by the state tribunals in like cases. And in Ross v. Doe et al., 1 Pet. 664, it is held, that where a practice has obtained in a state affecting titles to land, even if derogatory to the principles of the common law, the court would regard it, in cases affecting property in such state, if it did not contravene any act of Congress.

*Mr. Justice Johnston, in delivering the opinion of the court, in Fullerton v. Bank of United States, 1 Pet. 612, says: “ The district court of Ohio, which was created.in 1803, and exercised' circuit court jurisdiction, and had power to create a practice for its own government, did not create a system for itself, but finding one established in the state, in the true spirit of the policy pursued by the United States, proceeded to administer justice according to-the practice of the state courts; or in effect adopted, by a singlerule, the state system of practice, etc. So that when the Seventh circuit was established, in the year 1807, the judge of this court, who was assigned to that circuit, found the practice of the state courts adopted, in fact, into the Circuit Court of the United States. It has not been found necessary to make any material alteration since ; but as far as it was found practicable and convenient, the state practice has, by a uniform understanding, been pursued by that court, without having passed any positive rules on the subject.” Again, he says: “ Written rules are unquestionably to be preferred, because their commencement, and their action, and their meaning are most conveniently determined; but what want of certainty can there be, when a court, by long acquiescence, has established it to be the law of that court, that the state practice shall be their practice, as far as they have the means of carrying it into effect, •or until deviated from by positive rules of their own making. ■Such, we understand, has been the course of the United States court in Ohio for twenty-five years past. The practice may have begun, and probably did begin, in a mistaken construction of the process act; but then it partakes of the authority of adjudication. But there was a higher motive for adopting the provisions of this law into the practice of the court, etc., which must often occur in & court in which the remedy is presented by one sovereign, and the law of the contract by another. It is not easy to draw the line between the remedy and the right, where the remedy constitutes -so important a part of the right.” “ But what is the course of prudence and duty when these cases of difficult distribution as to power and right present themselves ? It is to yield rather than •encroach; the duty is reciprocal, and will no doubt be met in the spirit of moderation and comity. In the ^conflict of power and opinion inseparable from very peculiar relations, eases may •occur in which the maintenance of principle, and the administration of justice according to its innate and inseparable attributes, may require a different course, and when such cases do occur, our courts must do their duty; but until then, it is administering justice in the true spirit of the constitution and laws of the United States, to conform, as nearly as practicable, to the administration •of justice in the courts of the state.”

We are certainly disposed to meet this, as well as every other question, “in the spirit of moderation and comity.” It is unquestionably the province of the tribunals of the Union to expound the constitution and laws of the Union as applicable to themselves; and with this it is neither our wish nor purpose to interfere. We shall always feel gratified to find the decisions of those respectable tribunals, upon the grave and important questions before them, in perfect harmony with each other. We have ho desire either to arrogate to ourselves power that does not belong to us, to surrender any that does, or to detract from that of •other tribunals. The case- in 1 Peters is the only one we believe where the origin of the practice in the United States courts in ■Ohio is expressly alluded to. We are not aware that any express and positive rule of those courts was ever made, adopting the execution laws • of the state and the proceedings under them, as the law of those courts; but the practice oí one member of this court for many years at the bar of those courts, gave him opportunity to know that those laws have been repeatedly adjudicated upon in those courts as affecting both original and ’final process there. .Sales upon execution have been, most generally, for years, examined as to, their conformity with the state laws, and confirmed or set aside as found to conform. Relying, then, upon the exposition by the Supreme Court of the United States of the practice and proceedings of the circuit court oí Ohio, and our own observation •of its course of proceeding, we may regard the execution laws of the State of Ohio as adopted into the practice of that court, and .as the law thereof. The doubts we have on the subject yield the more readily, where we are only called upon to give to the judgments and proceedings *of the circuit court of the United ■States the ordinary effect and operations of the judgments and proceedings of our own courts, and to give to the act's of our •own legislature effect as the rule of proceeding in the courts of the United States. The profession has almost uniformly acquiesced in the practice of considering the judgments of the circuit court as having the same lien throughout the state that judgments in the state courts have; in the courts where rendered. ■Strong evidence of this asquiescence is found in the fact that no question of this kind has before been agitated in our courts. Property to an immense amount has changed owners under this practice, and we are disposed to look upon it as a law of property established among us, which is not now to be question ed.

2. The act of February 4, 1826, 22 Ohio L. 114, provides that no judgment theretofore rendered, or which might be thereafter rendered, on which execution had not been taken out and levied before the lapse of a year from the date of the judgment, shall, operate as a lien to the prejudice of any other bona fide judgment creditor. This act, upon full argument, was determined by this ■court in McCormick v. Alexander, 2 Ohio, 65, to be constitutional and operative, both as it regarded judgments rendered before and those rendered after its passage. The court has also decided that unless execution issued according to its provisions and was levied within a year after judgment, the lien of the judgment was taken away, as to subsequent bona fide judgment creditors who had sued out execution and made a levy. In Patton v. Sheriff of Pickaway, 2 Ohio, 395; Earnfit v. Winans, 3 Ohio, 136, and Shuee et al. v. Ferguson, 3 Ohio, 137, the court decided that where there are several judgments, and the property in question has not been levied on • within the year under either of them, they stood on equal footing, and the creditor who first takes out execution and causes a levy to be made, will have the preference. If execution on an older' judgment has not been levied within a year on a particular piece of property, and an execution upon a junior judgment has been levied on that property within the year, the junior judgment will have the preference, though a levy *may have been made on the same property under the older judgment before the levy was made upon the junior judgment. The prior lien ceases to bind the subject of it, in all cases where it is displaced by act of the party, or by provision or operation of law. The judgment under which the defendant claims was rendered August 14, 1821, but was not levied on the lots in dispute until February 8, 1826 ;• that under which the plaintiff claims was rendered January 8, 1822, but not levied until August 20, 1823. Neither of them were levied within a year from their date, and no lien was preserved on either by the judgment alone. Each, after the year, depended for preference solely upon execution and levy. The execution under which the plaintiff claims was levied more than two years before that under which the defendant claims, and the priority of the judgment in the circuit court is thus established. The sale to the defendant did indeed vest in him all the right of the judgment debtor, but that right was subject to the lien on the execution from the United States Circuit Court.

The defendants insist that the venditioni upon which the sale to the plaintiff was made, is void because it has no fi. fa. and levy upon which it is predicated. This position is based upon a variance in the amount stated in the vendi. from that of the recovery in the circuit court. Without explanation this objection might avail the party; but in the case in hearing the objection is entirely removed by the agreed case. By this it is admitted that •the vendí, was issued upon the same judgment on which the levy ■was made. .

In case the claim of the plaintiff is sustained the defendants ■elaim compensation for improvements under the occupying claimant laws. This claim is well founded. The defendants are possessed without bond under a judicial sale, and against this the .plaintiff sets up a better title. The defendants have a right to compensation for improvements made before suit brought.

The court find the defendant guilty of the trespass, etc., and assess the plaintiff’s damage to six cents; but in order to draw a jury to assess the value of the improvements, the cause is ordered to be continued in the county of Warren.


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    *Lessee of William Sellers v. Corwin and Benham. Same Plaintiff v. Corwin.
   These were cases in ejectment, reserved from Warren county, •which were submitted to the court upon the same agreement as in the preceding case. They depend on the same principles and facts, but relate to different property, and are decided as above.