text:
    Lessee of Charles C. Paine et al. v. Roderick W. Skinner et al.
    Between 1805 and 1808 the law did not authorize the sale of a decedent’s estate, by his personal representative, where the estate was insolvent.
    The statute of limitations is available to protect the possession of a party that enters without color of title.
    This case was reserved in the county of Geauga, and the action was brought for the recovery of certain lands in that county.
    On the trial, before the jury, the lessors of the plaintiff proved that they were the heirs at law of Eleazer Paine, late deceased^ and that he died in 1804 seized of the lands in controversy, and here rested their Ciise.

      The defendants then proved, that in 1806, Abraham Skinner "took possession of these lands, and continued in possession until May 20, 1819, when, by deed, duly executed, and containing covenants of warranty, he conveyed to the defendants; since which .time they had been in possession.
    They then offered in evidence a deed from the administrators of Eleazer Paine, of whom the said A. Skinner was one, to the .said Skinner, dated November 26,1806 ; and with this deed a copy from the records of the court of common pleas of Trumbull county, in which county these lands were situated at the time of the death of Paine, showing the settlement of his estate. Prom this copy of record, it appears that administrators were appointed on this estate at the June term of the court, 1804, that the estate was insolvent, that trustees were appointed, and other proceedings had, in conformity with the law of February 11, 1802, “for *the settlement and distribution of insolvent estates,” the law in force .at the time letters of administration were granted; and that at the November term of the same court, 1805, an order was made for the sale of the real estate.
    At the March term, 1807, returns of sales, of both real and personal property were made, a dividend was declared, and the administrators were ordered to pay to the creditors forty-one cents upon.each dollar of their debts. From the return of sales it appears that Skinner, who was one of the administrators, purchased at the sale the land, or a part of the land, in controversy.
    To the introduction of this deed and copy of record as evidence, the counsel for the plaintiff objected, and the objection was sustained by the court.
    Counsel for the defendants then claimed that they had shown twenty-seven years actual, exclusive possession and occupancy to the land in dispute, under claim of title, previous to the commencement of this action, and requested the court to instruct the jury that such possession entitled them to the protection of the statute of limitations. This the court refused, but instructed the jury that such possession, unaccompanied by proof, to show color of title, was not such a possession as to protect the defendants.
    Under this instruction the jury returned a verdict for the plaintiff.
    The defendants then moved for- a new trial, assigning the following reasons:

      1. The court erred in rejecting the testimony offered by the defendants.
    2. The court erred in instructing the jury that an actual, exclusive possession of lands by the defendants, under claim of title, for the period of twenty-seven years, would not entitle them to the protection of the statute of limitations.
    3. The verdict is against law, etc.
    ip. Hitchcock, in favor of the motion, argued that the testimony offered by the defendants should have been received. He insisted that this testimony was sufficient to prove a perfect legal title to the premises in controversy in the defendants. He went into a careful and critical examination of the act of February 11, 1805, “directing the distribution of insolvent estates,” (1 Chase’s Stat. 495), and inferred, from all its provisions, that it was the intention of the legislature that the whol<* estate, real and personal, of •an insolvent decedent, should be distributed among his creditors.
    4=He further argued that if the court making the order of •sale have power to make that order, the title of the defendants must be considered good, although the statute had not been literally •complied with. In support of this position, be cited 3 Ohio, 257, 325, 561; 2 Pet. 163; 2 Bin. 46, 47; 1 Ohio, 200; 2 Bin. 40; 4 Wheat. 508.
    He further insisted that, admitting the proceedings of the court of common pleas ordering the sale of E. Paine’s real estate to be void, that still the deed offered in evidence was sufficient to prove color of title; and further, that under the statute of Ohio, adverse possession for the time specified in the statute, under claim, even without color of title, will bar an action of ejectment, and cited 7 Ohio, pt. 1, p. 264; 9 Wend. 519; 9 Johns. 180; 10 Johns. 356; 18 Johns. 361; 8 Cow. 589; 9 Cow. 531; 16 Johns. 293; 2 Caine. 183; 1 Term, 351; 3 Murphy, 539.
    Webb, Perkins, and Osborn, in opposition to the motion, insisted that the evidence offered was properly rejected, because the order of court for the sale of land by the administrator was void, being made without authority of law. 3 Ohio, 533; 4 Ohio, 131; 5 Ohio, 494.
    The deed was properly rejected because it is void upon its face reciting no order or authority to sell. Ohio Forms and Prac. 390, 2 Switt’s Dig. 289, 790; 6 Conn. 373; 3 Stark. 1198; Cowp. 29.
    It is also void for want of parties, Skinner being both grantor and grantee. Co. Lit. 33, b; 2 Black. Com. 440-442; 2 Kent’s Com. 363.
    The deed was properly ruled out, because it neither does, nor does it profess to convey property belonging to the estate or to the heirs of Eleazer Paine, nor to be in execution of a power, but to grant, the estate of administrators. 6 Conn. 373, 258.
    They further contended that the possession of the defendants was-not such as to bar the plaintiff, for the following reasons :
    1. It was a naked possession, without color of title, and such possession is not sufficient to bar the plaintiff in ejectment. Tilling-hast Ballentine, 383, and cases there cited; 10 Martin, 293; 9 Wheat. 541; 11 Wheat. 90; 8 Conn. 544, 551, 588; 5 Pick. 20, 27; 12. Johns. 365; 8 Conn. 605; 4 Day, 284.
    2. Skinner was a trustee, and the possession of a trustee is not-*adverse, and in favor of such possession the statute does not run. 6 Johns. Ch. 122; 1 Wash. 145; 5 Johns. Ch. 531; 3 Litt. 177, 181; 4 Mans. 222 ; 5 Pick. 321; 4 Har. & J. 430; 3 Atk. 459; 4 Dep. 77.
    3. Skinner’s deed was fraudulent, and therefore his possession under it is not a bar 10 Johns. 437, 462, 463; 11 Wheat. 90.
   Judge Hitchcock

delivered the opinion of the court:

This case has been argued at great length and with much earnestness by the counsel for the respective parties, and some questions have been discussed which it is unnecessary to examine in order to arrive at a correct conclusion with respect to the present motion. The first reason assigned for a new trial is, that the court erred in rejecting the deed and copy of record offered in'evidence-by the defendant. In order to ascertain whether the court erred in this particular, it is necessary to inquire, whether, at the time the order of sale was made by the court of common pleas of Trumbull county, there was any law in force in the state, authorizing such order, or authorizing the sale of the lands of an intestate by his administrator. This land was sold in 1806, in pursuance of an order made by the court of common pleas, at the November term, 1805. Eleazer Paine died, and his administrators were appointed in the year 1804. At the time of their appointment there is no controversy but that his lands, as well as his personal property, might be subjected, if necessary, by his administrators, to the payment of his debts. It will be remembered, however, that dur. ■ing the session of the legislature, commencing in December, 1804, there wasageneral revision of the laws, and material changes made, ■so far as respected "the settlement of testate and intestate estates. Questions growing out of the legislation of this session of the legislature, upon this particular subject, have been repeatedly before the court. In the case of Ludlow’s Heirs v. Johnson, 5 Ohio, 553, it was held, that by.this legislation, lands which, from the year 1795, had been under certain restrictions, assets in the hands of •administrators for the payment of debts, were withdrawn from them, so far as respects solvent estates at least. This case was repeatedly argued, and was not decided until after much reflection -and deliberation. Why this change was made, or what was the policy which dictated it, we know not, nor is it our business to ■inquire.

In that case, the estate was solvent; in the present, it was insolvent. The court were careful to go no further than was necessary for the decision of the case before them, and .^avoided the expression of an opinion upon one, situated like the present, although a doubt was suggested whether there was, in ••this respect, any difference between a solvent and insolvent estate. It is argued, by counsel for the defendant, that the law of Fobruary 11, 1805, “for the distribution of insolvent estates”• (1 -Chase’s Stat. 495), authorizes the distribution of both of the realty and personalty of an insolvent decedent. Before proceeding to •the examination of this act, it is proper to remark that all the laws in force at the time'this law was enacted, touching the subject of the sale of. lands by administrators, had been adopted, or •enacted, by the territorial authorities. There had been no state legislation upon the subject, for the act of February 18, 1804, “defining the duties of administrators on wills and intestate estates” (1 Chase’s Stat. 435), confided to administrators the care of personal property alone. These territorial laws were, most of them, repealed by their titles, but lest some might, by possibility have escaped, on February 22, 1805, there was a general repealing law, putting an end to the operation of all territorial legislation, with the exception of some few private acts, and the laws on the subject of levying a territorial tax. 1 Chase’s Stat. 517. At the same session of the legislature, to wit, the session of 1804-5, the law of February 18, 1804, before referred to, was repealed. ‘The law of February 11, 1805, like all the other general laws, enacted at the same session, took effect on the first of June of that, year. On. June 1, 1805, then, there was no law of the State of Ohio making real estate assets in the hand's of administrators,, under-any circumstances, unless it be this act of the 11th of February of that year, “for the distribution of insolvent estates.”

In giving a construction to this statute, it will not do to have-reference to any prior legislation to remove anything doubtful, unless that legislation is expressly, or by implication referred to.. It must, as far as possible, be construed by its own terms, or, if we look to other legislation, it must be that which is contemporaneous, and which is most intimately connected with the same subject. This is' the more necessary, as on the very day this law took effect, all prior laws with respect to the settlement of estates,, testate or intestate, solvent or insolvent, were repealed. The only one enacted by the legislature, at the same session, that can be. considered as having, in any shape, reference to the same subject-matter, is the law of February 1,1805, entitled an *act “ defining the duties of administrators on wills and intestate estates, and for the appointment of guardians.” 1 Chase’s Stat. 496. No-one can for a moment doubt, from an examination of this law, that, it was the intention of the legislature that administrators should have nothing to do with the realty. The general duties of ministrators are prescribed, the manner in which the personal property shall be disposed of, and the time within which the settlement of the estate shall be made. In this act nothing is said as to the solvency of the estate, and no provision is made for distribution, if it should prove insolvent.

The system, then, was incomplete without the law of February-11, 1805, “directing the distribution of insolvent estates” (1 Chase’s Stat. 495) ; and it seems to me that this latter law may be-considered as nothing more or-less than a supplement to the-former. Taking the two together, provision is made for the settlement of both solvent and insolvent estates, but in neither caséis express provision made for the disposition of the real estate of the intestate or testator.

It may be proper, however, to be a little more specific in our-examination of this law. The first section provides, that when an estate is found to be insufficient to pay all the just debts of the. deceased, the executor, or administrator, shall represent the fact. - .to the court of common pleas, and if t.he court is satisfied that the.

estate is insolvent, they are required to appoint two or more trustees. By section 2, it is made the duty of the trustees, and the executor, or administrator, to meet on a day to be appointed; and the trustees are required to adjust all the accounts exhibited,, “ and make equal distribution to the creditors severally, in proportion to the amount of their accounts as adjusted, aiter first deducting out of the estate the physician’s bill, the debts incurred during the last sickness, and the funeral expenses of the deceased,, all the expenses necessarily arising on the settlement of the estate, and also saving to the widow her right of dower and bed, with the useful furniture thereunto belonging, and her wearing apparel, etc. Section 3 provides that creditors who shall not have presented their claims, shall be barred, unless under peculiar circumstances; and the fourth directs the trustees in what manner to make their returns.

There are some expressions, it is true, in this statute, which, taken by themselves, would lead to the conclusion that the intention was, that the whole estate, whether real or personal, of an ^insolvent should be distributed among his creditors in proportion to their respective demands. The widow’s “ right of dower ” is secured, and in strict legal parlance this right grew out of, or is attached to lands alone; still the law does not expressly mention real estate, nor does it contain any provision as to the manner in which it should be disposed of. The act of 1802, upon the same subject, 1 Chase’s Stat. 357, which was repealed by this act,is explicit upon this point, and, if it was the intention to continue the same principle, it is strange that it should not have been expressly provided for, especially when we consider that there was no other law in force from which it could be deduced. Upon mature deliberation, we are inclined to consider this act as supplementary to the act “defining the duties of administrators,” etc., and are of opinion, that neither the one nor the other authorized personal representatives, under any circumstances, to dispose of the real estate of a testator or intestate.

Of course, the sale of the lands of Eleazer Paine, by his administrators, was without authority, and the deed offered in evidence was properly rejected as proof of title in the defendants. The copy of record, too, was properly rejected for the same reason. The court had no authority to make the order of sale, and that order was consequently void.

It is insisted, however, that this deed, although void as conveying title, should have been allowed to go in evidence to show color of title. In the view which we take of the case, it is unnecessary to decide this point. It may not, however, be improper to remark, that there are circumstances which will induce a court to permit a deed to go in evidence to a jury fora particular purpose, as-to show the extent of a claim of possession, although the same deed must be rejected as evidence of title. 7 Ohio, pt. 1, p. 53.

The second reason assigned for a new trial is, that the court erred in instructing the jury, that an actual exclusive possession of land by the defendants, under claim of title, for twenty-seven years, would not entitle them to the protection of the statute of limitations.

It is proper to remark that, in giving this instruction, the court did not intend to express a deliberate opinion upon the point raised, but as it was deemed proper, on account of the point already discussed, that the case should be reserved, this'instruction was given, that the important questions arising in the case might be settled in bank.

^Numerous authorities have been cited-to sustain the position, that adverse possession, without color of title, will not be protected by a statute of limitations. It is unnecessary to examine these authorities, as we have no doubt that such is the law in the State of New York, and in some of the other states of the Union. In some, however, if not in all the states, where this principle prevails, it is owing to the particular phraseology of their limitation laws. In other states, as in Pennsylvania, South Carolina, and Kentucky, the decisions have been otherwise. Reference has been made to some of the decisions of the Supreme Court of the United States. Upon this particular point, those decisions are of no more binding force than the decisions of the courts of the states, for in deciding upon state laws, that court follows the construction given by the state courts. Before the decision of a court of another state, giving construction to a statute of that state, can be obligatory here, it must be shown that the statute construed, is substantially, if not literally, like our own. Even if it be so, the decision is not obligatory, although entitled to the highest respect.

The act “for the limitation of actions,” passed January 4, 1804 (1 Chase’s Stat. 392), provides, in section 2, “that no person or persons shall hereafter sue, have, or maintain any action -of ejectment, or other action for the recovery of any possession, -title, claim of, to, or for any lands, tenements, or other hereditaments, but within twenty years next after the right of such actions, or suits, shall have accrued.” This was the law in force at the time the right of action accrued in the case now before the court, ■and by which it must be decided. It would seem that this language was explicit, and could not be misunderstood. Nothing is said about color of title, and I know not by what authority this court is authorized to make the interpolation. In the present case, at least, it is not necessary for the furtherance of justice. When does a right of action accrue in ejectment? Unquestionably when the person having the right of possession is divested of that possession. When did the right of action accrue in the present case? In 1806, when Skinner took possession, and before this action was brought, more than twenty-seven years had elapsed. How can we say that the statute can not operate, because there is no color of title? It would be defeating the obvious meaning and intent of the law. The uniform construction hitherto given to this statute has been that the possession under which a person .claims to be protected, must be continued, exclusive and adverse; ^and this we believe to be the true construction. Whether there is, or is not, color of title, is wholly immaterial. We are -of opinion, therefore, that the court erred in the instruction complained of.

It is urged, however, that if the court erred in this particular, still that a new trial should not be awarded, because Skinner was acting as trustee for the plaintiff, and the possession of a trustee will not operate as a bar under the statute of limitations. If we are correct in the opinion that the administrators had no power over the lands, then, as to these, Skinner was not a trustee, and the .argument fails.

Again, it is urged that the deed of Skinner was fraudulent; and having obtained possession under a fraudulent deed, he, or those claiming under him, can not be protected under the statute. Where is the evidence of fraud? The administrators of Eleazer Paine supposed that they had a right to sell his lands for the payment of his debts. They had the right when they were appointed, ■and the court, by whom they were appointed, supposed they had 'the right, and made an order accordingly. In pursuance of thi.s order the lands were sold and Skinner became one of the purchasers. For this land he paid his money, and that money went in part payment of the intestate’s debts. The widow, of that intestate, and the mother of the lessors of the plaintiff, was one-'of those administrators; and now these lessors, alter a lapse of nearly thirty years, are seeking to recover these lands discharged of the debts of their ancestor, and without any offer to refund what Skinner has paid toward those debts. If there be any fraud in the case, it is not on the part of the defendants or those ui der whom they claim.

A new trial will be granted, the costs to abide the even) *f' the suit.


source: Caselaw Access Project

author: G-rimke, J.,

license: Public Domain

text:
    Daniel Felter v. Jacob Weybright et al.
    A contract to convey land sold, on the 1st of August, or as soon as the vender shall pay two thousand dollars, is fixed for ultimate execution on August-1, 1835. A subsequent tender of a conveyance does not entitle the vendor to an action for the purchase money.
    This cause was adjourned from the county of Montgomery-., It was an action of debt, by the vendor of a tract of land, against, the purchasers, to recover an installment of the purchase money. The pleadings and case reserved involved sundry points, but the-court, by the decision of one, rendered it unnecessary to consider any other.
    *The contract bore date September 8, 1834, and stipulated that the vendor should convey to the vendees, on or before August 1, 1835, or as soon as the vendees shall pay to the vendor two-thousand dollars; and then the vendees shall give their notes for four thousand dollars, payable in six annual installments.
    The declaration averred, that on April 28, 1836, the vendor, the plaintiff, tendered to the vendees a deed, and demanded the two thousand dollars, and the obligations for the four thousand dollars, which the vendors refused, etc.; whereby an action accrued to demand and have the two thousand dollars. The defendants craved oyer, and demurred.

      Stoddard, for plaintiff.
    Holt, for defendants.
   G-rimke, J.,

delivered the opinion of the court:

When an instrument of writing is drawn with any degree of obscurity, it is impossible to give an interpretation to it which shall be absolutely satisfactory. In the attempt to ascertain the true meaning, it is unavoidable that we should, .to some extent, substitute our individual judgments in the place of that of the-parties. This instrument, though speaking of' the plainest things, of matters which may be reduced to the greatest precision and certainty, is yet so ambiguous, that, without giving very close attention to it, different minds might be led to give an entire different construction to it. The conclusion to which we have coméis, that August 1,1835, is the ultimate time fixed for the execution of the contract; that the terms, “or as soon as the vendees shall pay to the vendor two thousand dollars,” relate only to time between the making of the contract and August 1, 1835, within which the vendee, by the payment of the two thousand dollars,, might hasten his right to demand a conveyance. This interpretation of the contract precludes the plaintiff from maintaining his action on the tender of a deed in April, 1836; and judgment on the demurrer must be given for the defendant.


text:
    *Daniel H. Wheeler v. James W. Knaggs.
    Where an agent, in executing his power to sell, recites his agency, and describes himself in the body of a contract as executing 'a power, it is not necessary that he should add his character of agent or attorney to his superscription of the contract.
    A power of attorney may contain covenants, subjecting the principal to a. party contracting with the attorney, and to the action of the attorney also.
    Where an attorney, in executing a power to sell, makes a separate agreement, with the purchaser in respect to a contingent interest of the attorney in the contract, such fact does not make the purchaser and attorney joint, contractors, in relation to the principal.

      A power of attorney, coupled with an interest, can not be revoked after an agreement is made for its execution.
    An offer to pay in bank notes, and a declaration of the party to receive payment, that he would as soon take bank notes as specie, but that he would take neither, and would not ratify the contract, is a sufficient tender of payment.
    It is no answer to an action by the attorney against his principal, upon a collateral agreement, that a private understanding between the parties had b»en broken by the attorney.
    In a contract that an agent to sell land shall retain for his own use all the purchase money above a sum stated, the rule of damages between agent and principal is the amount beyond the stipulated sum for which a contract is made, that the principal refuses to ratify.
    .In such case the right of action accrues upon the refusal to ratify, though, an extended credit be given for the contracted excess.
    Reserved in the county of Lucas.
   Judge Wood stated the case, and delivered the opinion of the vcourt:

This action is brought on a covenant contained in a power of attorney, executed on February 4, 1836, which authorizes the plaintiff to sell certain tracts of land in Lucas county, for any sum not less than ten thousand dollars, and to transfer the same by bond or contract, under seal. The defendant obligates himself to make any necessary conveyance, by reason of such sale, and “ to release and relinquish to the plaintiff, to his own proper use and benefit, all sums over and above said ten thousand dollars, for which the plaintiff should be enabled to sell the land.”

Under this authority, the plaintiff, on February 22, 1836, made .a proposition to one Hiram Wellman to sell him the land, comprising one'hundred and forty-two and one hundred and fifty-seven one hundred and sixtieth acres, at the rate of one hundred •dollars per acre. This proposition was in writing, and signed by Wheeler; but in the body of the instrument he was described as the agent of the defendant. Ten thousand dollars was to be paid ■on or before April 20, 1836, and the balance in one year, with interest; provided, Wellman notified the plaintiff in twenty-nine ■days that he accepted the offer, and paid the ten thousand dollars, as specified in said proposition, and secured the balance of four .thousand three hundred dollars by a mortgage on the land.

Wellman, within the time limited, accepted the terms proposed, informed the plaintiff thereof by letter, and the day before the ten thousand dollars became due, tendered the amount to the defendant in current bank notes, and demanded a conveyance. The defendant refused to ratify the contract, and this action was commenced to recover the amount over ten thousand dollars, for which, the plaintiff had bargained the land.

The defendent pleaded non est factum, and gave notice, in ban of the action, that before the sale of the land, by an understanding between the plaintiff and defendant, the power of attorney was void ; that it was obtained by fraud and covin ; that in the-sale of the land, the plaintiff was making a fraudulent use of said power of attorney, to cheat and defraud the defendant, the land having greatly increased in value, of which the plaintiff was well aware.

*On these pleadings the cause was tried, on the last circuit, and a verdict found for the plaintiff for three thousand and eighty-seven dollars. The defendant moved for a new trial, and this motion presents the questions reserved for decision in this-court.

The counsel for the defendant contends that the court erred in. permitting the written proposition made by the plaintiff to Well-man, to go in evidence to the jury. The nature and legal effect, of this instrument have been very zealously and ingeniously discussed. It was the substratum on which the plaintiff must have built his hopes of a recovery; and, if irrelevant to the issue, the-verdict can not be sustained. It was said to be irrelevant, because the defendant was not bound by it, as it was signed by the-plaintiff in his own name, and not as an agent. By an examination of the proposition it will be found, that in the body of it, the-plaintiff describes himself as the agent of the defendant, and as-making the proposition for him, and' on his behalf; and, in our-view, it was unnecessary for him again to add -to his signature-the character in which he acted. If his character can be gathered from the whole instrument, it is sufficient. This bears no analogy’ to the cases cited, where the pretended agent affixes the seal to-his own name, and not to the name of his principal. In such case, it is the seal that executes the contract, and the inquiry is, not. who has signed, but who has sealed the paper. If the agent affixes the seal to his own name, although he may add the words, as agent, those words will be merely a descriptio personae, and mot of the character io which he does the act. The sealing of the contract is decisive of his character, and not to be disputed. 'The paper in question, executed by the defendant through his .agent, was the act of the defendant, and not liable to objection on the ground assumed. But, it is said, the power of attorney, only authorized the plaintiff to bind the defendant by ,bond, or contract, under seal, and not by parol. The words used in the power of attorney, are these: “ To sell, transfer, and by bond, or without, under seal, if required, or otherwise convey,” .and are sufficiently extensive to embrace any mode of. contracting, known to the law, in relation to real estate. It is said, .again, that'the covenant to convey is to the purchaser, and that the plaintiff, who was but the agent, could take no advantage of .a refusal to convey to Wellman, because he was not a party to ■such covenant, and that the evidence of a sale by the defendant to Wellman was, for that reason, improper. It appears to us, the deduction drawn by counsel from the premises is by no means *legal. It is true the covenant to convey may be said to run with the sale, to whomsoever made, but the power of attorney contains another covenant to the plaintiff, to release and relinquish to Mm, any sum beyond ten thousand dollars, for which he shall be ■enabled to dispose of the lands. This covenant exists between the parties to this action only; that it was so intended no one •can doubt. It is the sum fixed by the parties as to the amount of compensation the agent, in a certain event, shall receive. This power of attorney may properly be said to consist: 1. In a covenant to the purchaser to convey; and, 2. In a covenant to the plaintiff, the agent who made the sale, to release and relinquish to Mm the stipulated compensation; and either the purchaser or .agent, in case of a breach of the covenant to him, may, we think, maintain an action. The suit was brought by the plaintiff on the covenant to him; it was necessary for him to show performance of all conditions precedent; he must prove a sale to Wellman and the amount of that sale. Was not the proposition to sell, accompanied with the terms, a necessary and indispensable link in the ■chain of evidence to establish that fact? If so, it was clearly relevant to the issue, and proper for the consideration of the jury. Without proof of this proposition the plaintiff could not have shown its acceptance and the final consummation of the sale, .and, consequently, no right to recover would have existed.

Jt is urged the court erred in permitting the power of attorney to go in evidence to the jury. It is said the liability of the defendant is a joint liability to the plaintiff and Wellman. If so, it 'Should have been rejected, for it was not the covenant described in the plaintiff’s declaration. But this objection can not arise from anything apparent upon the face of the instrument, for the name of Wellman does not occur in it. Wellman was, however, .admittted as a witness on the trial, and testified that, to induce him to purchase the land, the plaintiff had agreed to deduct one-third of the amount over ten thousand dollars, submitted in his written proposition, as the consideration; and that, on such condition, the contract was made. The evidence, it is said, makes Wellman a joint obligee with the plaintiff in the covenant on which this action is founded. Such, we apprehend, is not the legal consequence. This was a collateral agreement, independent of •the defendant’s covenant, to which he was not a party, nor were his rights in any way affected by it. No such agreement, without his consent, could make the delendant liable to pay to *two that which he was liable only to pay to one. Whatever contract others may make, the defendant was to receive ten thousand dollars or he was not bound to convey the land, and he was to release .and relinquish all over that sum, more or less. The liability of the defendant could only be changed by the concurrence of his •own mind; and he not having agreed to include another, as a joint covenantee, his covenant to the plaintiff remained unchanged, and the power of attorney in which it was contained was properly admitted.

It was urged, that no legal tender was made to the defendant of the ten thousand dollars until after the power of attorney was revoked. The evidence on the trial was that the revocation was drawn, signed, sealed by the defendant, and notified to the plaintiff, on the 14th March, nearly a month after the proposition was made, and after the same was in fact accepted I There is no doubt of the power of the principal, by a proper instrument, to revoke a naked authority — one not coupled with an interest — ■ while the same remains unexecuted and the rights of the parties in statu quo. But in this case the sale was made before any pretended revocation. On the 2d March, Wellman wrote to the plaintiff, from New York, to consider the proposition as accepted if he did not hear from him again within the time limited, and afterward expressly accepted the proposition. To say the principal, under such circumstances, may revoke, would be destructive to the rights of the parties. -It would confer upon him authority to rescind his contracts, without any violation or fault of the other contracting party and against his dissent. Such a principle can be sustained, certainly, by no legal rule.

It is claimed, that no legal tender was made by Wellman to-the defendant. If we did not mistake him, Wellman testified on the trial, that on the 14th April he went to the defendant with ten thousand dollars in current bank notes, informed him. he had the money and demanded the fulfillment of the agreement; that he told the defendant there was sufficient time, and he would obtain the specie for him if he required it. To this the defendant replied he would accept bank notes as soon as specie; he would take neither, nor would he ratify the sale. Can it be doubted that this is a sufficient tender of the money?' An offer to -pay in bank notes is equivalent to an offer to pay specie unless objected to. It can not bo successfully claimed that Wellman was bound to count out the money; it is sufficient that *the money was there, and that enough was offered to the defendant; the law requires of the payee to tell the money.

It is supposed the court erred in refusing to permit evidence to-go to the jury that there was an understanding between the parties that the plaintiff was to sell the land, so that the defendant could have the money by the 4th March, to use at the sales at Bucyrns. Such evidence was offered and rejected; but how could it have affected the issue had it been received? If the sale was not-made by the 4th March, it is not claimed by the motion it was not to be made at all. It could, therefore, be no bar to the action; and if the plaintiff sustained an injury by the delay, or neglect, of his agent, it furnished him with no liquidated demand, which was the subject of set-off, nor could it go in mitigation of damages. The plaintiff would be compelled'to resort to his action for redress ; the evidence offered could not, therefore, be legally sent jto the jury.

It is believed by counsel that the court erred in charging the* jury that the'rule of damages was the amount for which the land was sold over and above the ten thousand dollars. We incline to the opinion such instruction was correct; the law intends the-remedy shall be adequate to the injury; that the plaintiff shall be placed in as good a situation by the verdict as he would have-been in had the defendant not broken his covenant. If the defendant had kept his covenant, the amount, over ten thousand dollars, for which the land was sold,- would have been received by the plaintiff, deducting the amount afterward thrown off, to induce "Well-man to complete the purchase. This, then, was clearly what the plaintiff lost; and the jury were instructed, after making such deduction, that the balance was the proper sum, if they found for the plaintiff, to which he would be entitled as damages.' The jury obeyed this instruction. Nothing more than substantial justice has been done, and of that the defendant ought not to complain.

J. M. Mat, for the motion.

A. Cofeinbert, contra.

It is said, as the last hope of the defendant, that the action was prematurely brought; that Wellman was not to pay the excess over ten thousand dollars until a year from April 14, 1836, and that this suit was commenced before that time had expired. It is very true the plaintiff could not have maintained an action against Wellman until the credit had expired; but the defendant agreed to convey whenever the plaintiff should make the sale. By breaking this covenant, the plaintiff was instantly damnified by losing the benefit of his agreement, and *not being able to receive Wellman’s obligations, secured by mortgage, on the land. This security, so far as the defendant is concerned, the law would hold equivalent to money, and as well might it be contended that an action of trover or trespass could not be maintained for a note, not due, wrongfully withheld, or forcibly taken, as that this action is not maintainable on the ground assumed. The third, sixth, eighth, and eleventh points made by the motion have been disposed of in passing upon the others, and need not be separately noticed. The amount in dispute, in this case, is large, and we have felt a disposition to indulge the defendant as long as anything could be said in his defense. His counsel has argued his case with zeal and ability, creditable to his industry and talent. The case may be, in some of its features, novel, but we see no serious difficulty in supporting the verdict of the jury. We have given the case a very careful examination, and the result leads to the conviction that the motion must be overruled, and judgment entered on the verdict.


author: Judge Lane

text:
    Abraham Wilson v. Trustees of No. 16.
    Suits by quasi corporations, such as township trustees, are to bo brought in the name of the corporation. It is too late to allege a variance between the party plaintiff in the transcript and in the declaration, after a general plea to the action.
    Township trustees can sustain an action for use and occupation against occupants who have held and used the township sections under a void lease
    In an action for use and occupation against tenants under a void lease, the writing may be given in evidence to show the value of the rents.
    This was a writ of error, adjourned from the county of Mont.gomery.
    The suit was commenced before a justice of the peace, in the mame of “ Jacob Lodge and James Dunkely, trustees of section 16, township 3, range 6.” It was brought into the court of common .pleas by appeal, where the declaration, that was filed, commenced -thus: “ The trustees of school section 16, township 3, range 6, ■Butler township, Montgomery county, complain,” etc., and proceeded to declare in assumpsit for use and oecujiation. The defendant demurred, but withdrew the demurrer, and substituted <the plea of non assumpsit, and upon this issue the jury found a «verdict for the plaintiffs, and judgment was rendered for them; .to reverse which the writ of error was brought.
    The errors assigned were : 1. That there was a variance in the ..parties plaintiffs to the original suit, before the justice, and the parties plaintiffs in the declaration, in the court of common pleas. *2. That assumpsit, for use and occupation of improved «school lands, can not be maintained to recover rents.
    P. P. Lowe, for plaintiff in error:
    This suit was appealed to common pleas by Wilson. The «declaration shows that it has added to the plaintiffs’ the words “school, Butler township, Montgomery county, Ohio.” This is such a change in the party plaintiffs as the law will not tolerate. Upon this ground a motion was made to nonsuit the plaintiffs in «court, and the motion was overruled. A party may change one form of action ex contractu to another, but he can not change the .name of the plaintiffs in the present controversy after judgment ¡before the magistrate. See 5 Ohio, 186 ; 29 Ohio L. 492.
    It is contended, by'the plaintiff in error, that assumpsit for use and occupation of improved school lands will not lie to recover rents; that the statute settles the question against the right; it also gives the terms of the lease. “ The trustees of townships aré a corporation for special, limited purposes, with special and defined powers only, and can not, in general, do any act foreign to the purposes of their creation.” 3 Ohio, 157; 5 Ohio, 186; 8 Johns. 425; 9 Johns. 73 ; 12 Johns. 199.
    “The power to lease the school sections is not within the general powers of the trustees of townships; that is a special authority which they are empowered to exercise in only one event.” 5 Ohio, 186. It is as important to adhere to the requirements of the statute in leasing improved school lands, as it is in the alienation of lands in fee. The action of assumpsit for use and occupation, with all its equitable qualities in relation to landlords and tenants, and the doctrines applicable to it does not apply to this case. Our statute directs the mode a lessee shall hold possession of improved school lands? Any other, or different mode, would be an illegal possession at law, contrary to the statute; and if so, no recovery can be had in the present form of action. It is true that the action for use and occupation was a common law remedy in England both before and since 2 George 2, c. 19, but this statute was enacted for the benefit of English landlords, who were constantly nonsuited by their tenants. 4 Hen. & Mum. 161. Although there was a statute on the subject, yet assumpsit lor use and occupation lay. Now, will this doctrine apply to the case in question, and to the spirit and ^provisions of our statute, leasing improved school lands. Indeed, the whole doctrine claimed by the defendants in error may be looked upon as entirely inapplicable. The statute is a special law, for special lands, but actions of assumpsit for use and occupation will not lie where there is an express unexpired lease for the premises. It lies when a tenant holds over, or where there is no agreement. In the present case the law makes the terms of the lease for improved school lands; it makes out the whole contract except the price; it fixes the time of payment, and the manner of protecting the land, etc. Now that these provisions of the statute may be disregarded, the statute not seen or referred to, in order to collect the rents for improved school lands, is a position that certainly can not be subscribed to. Yet if the law regulating landlords and tenants shall govern, then is the statute a useless enactment; but it is said that possession, when the lease was void, will authorize the bringing of this action. Well, if it will, .then there is no difference between the present case and the usual actions for use and occupation.
    If, however, this form of action can be maintained in despite of the statutory provision, the court below should have ruled the declaration also bad on the demurrer. No one will deny but that in order to make a contract, leasing improved school lands, good, it should conlorm to the requisition of the statute strictly. If no contract exists, the right of the plaintiffs to recover is one under the statute, and the declaration should contain: 1. An averment that the lands described in it are- school lands. 2. That the defendant, Wilson, occupied the same. 3. That the payment should be averred to be made on the first Monday of December of a given year. 4. That payment was not made to. the treasurer, and that therefore plaintiffs were entitled to recover ; in short, the declaration should conform to the statute.
    If the declaration fails to describe the lands as school lands, it is bad; no one can well conceive how a different opinion can be entertained, This corporation has control over nothing but school lands, and in an action to recover rent, they should show they seek to recover for the occupation of that, the proceeds of which, by statute, they are authorized to receive. The other averments are equally necessary. If the averment, as to the time of payment, be necessary, then no right of action accrued at the time suit was brought.
    The court of common pleas erred in suffering an unexpired lease to go to the jury to sustain the plaintiff’s declaration for use *and occupation when the suit was brought on the lease.. See Bill of Exceptions, 2 Saund. PL & Ev.,147.
    The common pleas erred in admitting the void lease, because the declaration must be founded on the bill of particular’s before the magistrate, and the one must support the other. 6 Ohio, 307; 29 Ohio Stat. 174, see. 24; see Bill of Exceptions.
    The court erred, in charging the jury, that the plaintiffs, in the action for use and occupation, could recover rents up to any period of time, different from that fixed by the statute. See Exceptions, 29 Ohio Stat. 492, sec. 7.

      J. H. Crane, for defendants in error:'
    The first error assigned can not be sustained, for there is no difference between the declaration and the transcript. The parties are the same in both, and the omission of the names of the trustees in the declaration is no variance. “ The safer way of pleading is to omit the names of persons exercising the duties of trustees and use the corporate name only.” Trustees of Concord Tp. v. Miller, 5 Ohio, 186; Hally v. Tipping, 3 Wils. 61; Lloyd v. Williams, Ib. 141 ; Weavers Co. v. Forrest, 2 Str. 1232. Nor were the plaintiffs below confined to the form of action before the justice,-but might change from one species of contract to another. Austin v. Hayden, 6 Ohio, 388.
    The second, third, fourth, and fifth errors assigned are substantially the same, and are founded on the assumption that no action can be sustained except on such lease as' is prescribed by the statute. 29 Ohio Stat. 492, sec. 7. It is contended, that the statute, which gives the trustees the care of the school sections, with power to lease them and to collect the rents, has imposed certain restrictions on the power to lease, and that all agreements, or leases, contrary to that prescribed mode, are without authority, and void-Yet, if ttnder such agreement, or lease,, the tenant has occupied the land, the trustees are not without remedy, and the rent may be recovered in an action for use and occupation. In Wood v. Tate, 5 Bos. & Pul. 247, the lease, made by a corporation, was void, in consequence of a blunder in the mode of its execution, yet the lessee was held to be a tenant from year to year, and the plaintiffs had a right to distrain for the rent due. From the transcript of the justice, and the bill of exceptions taken on the trial by the ^plaintiff in error, it seems there was an article of agreement between the parties, but the article of agreement itself forms no part of the record, and the court can not judge of its nature and contents. If it were an agreement fora lease thereafter to be executed, and the plaintiff-in error went into possession under it, the defendants in error might declare for use and occupation Elliot v. Rogers, 4 Esp. 59, Bannister v. Usborne, cited in Peakes Evid. 242. In McWilliams v. Willis, 1 Wash. 199, it was held, that indebitatus assumpsit would lie for use and occupation of a race ground, notwithstanding a subsisting special agreement in writing relating to the subject. It is admitted, that if a valid lease existed, the plaintiffs below were bound to declare on it, but the court can not, in the absence of proof, presume the existence of such a lease. If the article of agreement purported to be a lease, but was not made in conformity to the statute, and was, consequently, inoperative and void as a lease, still tbe possession of the plaintiff in error under it, would constitute him a tenant from year to year, 5 Bos. & Pul. 247; and the article of agreement might be given in evidence in an action for use and occupation to ascertain the amount of rent. In an action for use and occupation, the plaintiff has been allowed to resort to the original agreement, though void under the statute of frauds, to ascertain the amount of rent due. De Medina v. Poulson, per Gibbs, C. J. Holt, 47. In an action for use and occupation, the plaintiff may avail himself of an agreement, not under seal, whereby a rent certain is fixed to regulate the amount of recovery; and although the plaintiff has not declared on the agreement,'and claims generally to recover for use and occupation, the defendant is not at liberty to give evidence of the value of the premises occupied, to reduce the recovery below the sum stipulated. Williams v. Sherman, 7 Wend. 109. The action for use and occupation is an equitable one, founded on a contract express or implied. Birch v. Wright, 1 Term, 387. It could bo maintained, at common law, independently of the statute 2. Geo. 2, c. 19, on an express promise to pay the plaintiff a certain sum, Eppes Executors v. Cole, 4 Hen. & Mumf. 161 and authorities there cited and also on an implied jsromise. Sutton v. Mandeville, 1 Mumf. 407. There is nothing in the peculiar character and duties of trustees of school sections, which incapacitates them from maintaining this action. It is an appropriate remedy, where the tenant holds over after tbe expiration of a regular lease, and if sustainable in that case, it is equally so *where the tenant has 'occupied with their assent, under a defective leaso, or in any other manner. Debt, for use and occupation, lies by a corporation. Dean and Chapter of Rochester v. Peirce, 1 Camp. 466. In the case of a corporation, the law will imply not only a promise, but an existing tenancy in those who hold the land of a corporation, and a corporation aggregate may, therefore, sue for use and occupation, where the tenant has held possession under'them, and paid rent. Mayor, etc., of Stafford v. Till, 4 Bing. 75. Proof of payment of rent is prima facie sufficient to enables the plaintiff to recover in this action, 2 Saund. on Plead, and Evid. 488, and in this case, that fact may be inferred from the transcript, where the action is stated to be brought for the second year’s rent. The statute of frauds can not be objected to this action, for possession under the contract takes the case out of the statute. Webber v.
      Paine, 1 Ohio, 255; Moore v. Beasly, 3 Ib. 296. It is, moreover, an established rule, and one peculiarly applicable to this case, that a tenant is estopped from objecting to the title of his landlord, so long as he continues to enjoy the land. Sullivan v. Stradling, 2 Wils. 218; Hayne v. Maltby, 3 Term 442; Cook v. Loxley, 5 Ib. 4; Hodson v. Sharpe, 10 East, 350; Moore v. Beasly, 3 Ohio, 295; Hart’s Lessee v. Johnson, 6 Ib. 89.
   Judge Lane

delivered the opinion of the court:

The first objection assumes a change of parties; that in the suit appealed, Lodge and Dunkely were plaintiffs, while the declaration in the common pleas is at the suit of section 16. But casos in our own reports (3 Ohio, 224; 5 Ib. 186) show that the proper mode of declaring, where these quasi corporations are parties, is by the corporate name, without naming the individuals who compose them. The declaration is right. But, in the case of a variation from the preliminary proceedings, it is too late to except after a plea to the action.

The main question in this case is, whether these trustees can sustain an action for use and occupation. It is urged that they are a corporation with limited powers, capable of leasing for three year's only, on a rent payable annually, on the 1st of December, to the treasurer, and not able to hold land for any other purpose. Hence, it is inferred that no action is sustainable by them to recover rent, except upon the lease. This reasoning is correct where a valid lease exists; but where occupation has been enjoyed, Sunder an invalid lease, no obstacle is perceived to the recovery of the Amount, which the tenant ought ex equo et bono to pay, in this form of action. In cases of mere individuals, it is held the proper form of action, where land has been occupied under a void or expired lease. After the defendant has enjoyed the use of land, he is not allowed to raise a mere cavil, to protect himself from paying a fair rent.

A further ground of error is alleged in argument — that is, the court permitted the plaintiff to give the lease in evidence to the jury, to show the yearly value of the occupation, and thus, enable them to ascertain the sum they should award to the plaintiff. The conception that the lease was void is the foundation of this exception. But it is settled that a writing between the parties, stipulating the amount of rent to be paid, though void as a lease, may be used to prove the value of the occupation, as agreed and fixed upon by the defendant himself. 5 B. & P. 247; Holt, 47; 7 Wend. 109. Judgment affirmed.


author: Judge Hitchcock

text:
    Lessee of Clement A. Buckley et al. v. Wilkens Osburn.
    Under the law of January 29, 1827, “for the remission of penalties and for the sale of lands for taxes,” a sale of land for taxes in arrear before the year 1820, is not defective, although a portion of the taxes that accrued between 1820 and the time of sale are not included; no subsequent sale for the omitted taxes can be legally made.
    Where an objection is first taken in bank, that the plaintiff in ejectment can not recover, because he has laid his demise of three lessors, and his proofs show the entire title in one, the cause shall be remanded to the circuit, with leave to amend upon payment of costs.
    Ejectment for 295 acres of land, it being entry Ho. 7,540, in the name of John Clemson, on the north fork of Paint creek, in Fayette county.
    This case was submitted to the court in Fayette county, upon evidence proving the following facts: On September 20, 1819, the land in controversy was patented to Daniel Buckley, the father of the lessors of the plaintiffs, and devisee of John Clemson.
    ' By his will, Daniel Buckley devised all his real estate, of every description, to his sons, Clement A. Buckley, Matthew B. Buckley, and George W. Buckley, the lessors of the plaintiff. This will had been proved and admitted to record in Pennsylvania, on July 31, 1827, and an authenticated copy admitted to record in the court of common pleas of Fayette county, Ohio, in March, 1837.
    The land was entered for taxation in the'name of John Clemson, in 1813, and the taxes remained unpaid until the year 1823 *whon, at the October term of the court of common pleas of that year, a judgment was recovered in favor of the State of Ohio for the tax, penalty, and interest then, due, amounting to $111.60, together with the sum of $5.60 costs. In pursuance of this judgment, the land was offered for sale on July 12, 1824, but was not sold for want'of bidders.

      In December, 1827, the taxes on the same land being unpaid for the years 1826 and 1827, it was offered for sale, but was not sold for want of bidders.
    In pursuance of the law of January 29, 1827, the land was again offered for sale, on December 8, 1828, for the taxes from 1813 to 1825, inclusive, and was sold to James Wood for twenty-five cents. Wood transferred his certificate of purchase to Andrew Ramsey, and on June 29, 1829, the county auditor conveyed the land to Ramsey, in pursuance of the statute in such case made and provided.
    In December, 1829, the land was again sold for the taxes of the years 1828 and 1829, and purchased by the same Daniel Ramsey; and on January 4, 1832, Ramsey conveyed all his interest in the premises to Clement A. Buckley, one of the lessors of the plaintiff.
    On July 8, 1833, the land was again offered for sale, as being forfeited .for the non-payment of the taxes for the years 1826 and 1827, and sold to Norman E. Jones, who had been for many years auditor of Eayette county, and was auditor at the times of the previous sales. Jones assigned his certificate of purchase to John L. Tayler; Taylerto John Thompson, to whom the county auditor madea conveyance, and afterward Thompson conveyed to the defendant.
    Green & Caldwell, for the plaintiff, insisted that the sale to Jones, made in 1833, was illegal; that this land was improperly on the duplicate in 1826, and improperly returned delinquent. Of course there was no forfeiture. They further argued that the sale made to Wood, in 1828, should have been for all the taxes up to that period, and if it was not so, the fault wás with the officers of the law, in consequence of which, Wood or his assignees could not be made to suffer. In support of these positions, they went into a full examination of the several laws upon the subject, and particularly of the act of January 29, 1827.
    ^Leonard, for the defendant, controverted these positions,
    and insisted that the land in controversy was not within the act of 1827, and should not have been sold under it. He urged that, by that act, it was contemplated that no other forfeited lands should be sold than those which had been forleited for the non-payment of taxes previous to 1820.
    He principally relied upon the fact, however, that there was but one demise in the declaration, which was from Clement A. Buckley, and two others, while the proof showed that the title was in Clement A. Buckley alone, and the action should have been brought on a demise from him. Til. on Eject. 186.
   Judge Hitchcock

delivered the opinion of the court:

There has been such multifarious legislation upon the subject of taxation, and of the sale of lands for taxes in this state, as to create some confusion ; and where a particular case is presented, there is no little difficulty in ascertaining whether the sale has been in conformity with the law, especially if it be in any way connected with the early legislation upon the subject.

The lessors of the plaintiff derive title to the premises in controversy, in virtue of the last will and testament of David Buckley, the patentee, and this title is perfect unless it has been divested by some of the tax sales. The first of these sales, in point of time, was on December 8, 1828, and was intended to be made in pursuance of the law of January 29, 1827.

It appears that this land was originally entered for taxation in the' year 1813, in the ñamo of John Clemson, and continued so to be entered until 1823, the taxes for the whole period being unpaid. Any person acquainted with the history of the state knows of the difficulty that existed in the collection of taxes in early times, and of the difficulty of sustaining sales which were made of lands for the non-payment of taxes. In consequence of these difficulties, sales wore ordered by the legislature from year to year to be suspended, and it is believed that none took place from 1814 until after 1822. Penalties, however, were constantly accruing previous to 1820, at the rate of 100 per cent, upon the amount of tax for each year; and where lands had been twice returned delinquent, they were no longer continued upon the duplicate, but'were subject to sale, and were only restored by the payment of all arrearages of taxes and penalty. On February 8,1820, a law “ levying a tax on land” *was enacted (2 Chase’s Stat. 1101), materially changing the system, so far as the collection of taxes was concerned. Previous to this time, a difference had been made between resident and non-resident proprietors of land. The taxes of the former were collected in the several counties where they resided; but for the convenience of the latter, the state had been divided into six districts, called collection districts, and for each district a collector appointed, to whom they were required to pay their taxes; but by this law, the taxes, both of resident and non-resident proprietors, were required to be paid in the county where the lands were situate. The office of 'county auditor was created, and his duties defined ; one of which was to take a list of all lands in his county, according to their proper rate, etc. The auditor of state was required to make out and transmit to the several county auditors “ a complete list of all lands, the property of non-resident proprietors, in each of the several counties within the state, and also a complete list of all delinquent lands, whether resident or nonresident, in each of the several counties, with the amount of tax, penalty, and interest charged thereon.” In making out the duplicate, it is made the duty of the county auditor to enter the rate and amount of tax charged upon each tract. Nothing is said about his including in the duplicate the arrearages of taxes and penalties accrued before the passage of the act, but it is made his duty to transmit to the auditor of state, by the collector, “a list of all tracts of land within his proper county, in which the taxes have not been paid to the collector for the current year.” In section 61, it is enacted, “ that the sale of all lands, which by the laws now in force would be exposed to sale for the non-payment of taxes, interest, and penalties due thereon, upon the first Monday in December, one thousand eight hundred and twenty, shall be, and the same are hereby postponed until the first Monday in December, one thousand eight hundred and twenty-two.” The lands in the section referred to, are those which had been previously twice returned delinquent for the non-payment of th'e taxes.

It seemed to be necessary to refer to so much of the law of 1820, in order to a correct construction of that of January 30, 1822, “ providing for the remission of penalties, and for the sale of lands for taxes.” It will be observed, that this law was enacted within the time prescribed for sales of land by the act of 1820. By this law, the state treasurer, and the treasurers of counties, are authorized to receive until the 10th *day of December then next, all arrearages of land taxes which became due previous to the year 1820, with legal interest on each year’s taxes from the time the same was due, and if the taxes and interest were paid, then the penalties which had accrued previous tó 1820 were to be remitted. 2 Chase’s Stat. 1216. This provision did not extend to lands returned delinquent since 1820, the legislature evidently intending to make a difference between the two classes of delinquency, probably because it was supposed that there had been graater irregularity under the former laws than under this, and the penalty, too, was much less under this latter law than under the former.

If the tax and interest are not paid according to the provisions of the second section of this act, then the state auditor is directed to “ make out a list, or duplicate, of all land upon which any arrears of taxes, penalties, and interest may still remain due previous to the year 1820, charging each tract, or part of a tract, with all such arrearages .of taxes, penalties, and interest, which may actually remain due and unpaid, or remitted as hereinbefore provided, and he shall also add to such charge any.taxes, penalties, and interest, which may have accrued on such land since the commencement of the year 1820 and the. state auditor shall make out from his general list or duplicate a separate list, or duplicate, of delinquent land within the bounds of each county, as nearly as he can ascertain the same, which he shall certify under his official seal, and transmit the same to the auditor of the proper county.”

Section 5 then prescribes the steps to be taken by the county auditor, in order to obtain, on motion, a judgment of the court of common pleas of the proper county, which judgment that court is authorized and required to render, for the amount appearing to be due to the state, together with costs of suit. If the motion is contested, and the contestor requires a jury trial, he is entitled to it. In-pursuance of the judgment, the county auditor is authorized to sell the lands, but they can not be sold for a sum less than sufficient to satisfy the judgment. The last section of the act prescribes, that if "the land is offered for sale, and remains unsold for want of bidders, the same shall be considered as forfeited to the state, and shall become the property of the State of Ohio, and be subject to be disposed of as any future legislature may direct.”

Under this law, the lands in controversy being in arrear for taxes from 1813, at the October term of the court of common *pleas, 1823, a judgment was rendered by that court, in favor of the State of Ohio, for the taxes, penalties, and interest then due, amounting to $111.60, together with the sum of $5.60 costs. In pursuance of this judgment, the land was offered for sale, on July 12, 1824, but was not sold for want of bidders. Not being sold, it was forfeited to, and became the property of the state, to be disposed of as any future legislature might direct.

The-next act having a bearing upon this case is the act of Jan•uary 29, 1827, entitled, “an act for the remission of penalties and for the sale of land for taxes.” 3 Chase’s Stat. 1560. This statute, as is apparent from the first section, is applicable'only to lands which were in arrear for taxes previous to 1820. Like the act of 1822, it authorized the treasurer of state, and the respective County treasurers, at any time previous to the second Monday of December thereafter, to receive all arrearages of land taxes which became due previous to 1820, with the interest thereon from the time such taxes became due; and provides, that if the taxes and interest are paid within the time specified, “together with the tax, interest, and penalties accruing thereon subsequent to January 1, 1820, all penalties which may have accrued thereon prior to the year 1820, shall be and the same are hereby remitted.” It further provides, that if the taxes, etc., are not paid, the auditor of state shall “transmit to the several county auditors a correct list of the land within their respective counties on which arrearages of taxes are due and unpaid previous to the year 1820, whether said lands have or have not been forfeited to the state, charging each tract and part of a tract with all such arrearages of tax and interest which may actually remain due and unpaid prior to that time; and he shall add to such charge any taxes, penalties, and interest which may have accrued on such land since the commencement of the year 1820.” The auditor of each county is then required, if these taxes are not paid on or before October 15,1828, after having given the notice specified in the act, to sell the lands upon which the taxes-are in arrear, on the second Monday in Decembér thereafter, at public auction, to the highest bidder. Under the act of 1822 the land could not be sold unless for'the amount of the judgment; but under the act of 1827 it was to be sold to ^the highest .bidder. The county auditor is further required to make to the purchaser or purchasers, “ his or.their heirs, or assignee or assignees,” a deed for the land sold, “which deed shall convey to the purchaser or purchasers, his or their heirs, or assignee or assignees, a good and sufficient title to the land so sold; and such deed shall be received in all courts in this state as good evidence of title to the purchaser or purchasers, his or their heirs, assignee or assignees; nor shall the title conveyed by said deed to the purchaser or purchasers, his or their heirs, assignee or assigns be invalidated, or affected by any error previously made in listing, taxing, or conveying said land.”

In pursuance of this law, the land in controversy being in arrear for taxes since 1813, having been forfeited to the state in 1824, was, on December 8,1828, offered for sale and sold to one James Woods, he being the highest and best bidder, and bidding twenty-five cents. Wood assigned his certificate of purchase to Andrew Ramsey, to whom the auditor of Fayette county made a deed on June 23,1829. Ramsey, afterward, and before the commencement of this action, conveyed to Clement A. Buckley, one of the lessors of the plaintiff.

In this sale to Wood, it appears that the taxes were included only up to 1825 inclusive, instead of including all up to 1827, according to the provisions of the act last referred to, and an objection is made to this sale, that this land was not within the act of 1827, it having been forfeited for the non-payment of taxes, as well after as before the year 1820. This forfeiture was under the law of 1822, and the provisions of that act are express that the judgment provided for shall be for the amount of tax due, as well after as before 1820, and there could be no forfeiture for the non-payment of the taxes before that period merely, unless in cases where the taxes after that period have been punctually paid, and it is believed such cases were rare. • In truth, at the time of the change of the system in that year, most, if not all, the delinquent lands were subject to sale under pre-existing laws, and would have been sold in the month of December, 1820, had not the sale been postponed by the act of the 8th of February of that year. It seems to the court that the law of 1827 was intended expressly for lands situated as was the land now in controversy and that it might with propriety be sold under that law. It was sold, and for aught that at present appears, we incline to hold the sale legal, especially as it is provided that titles made under the law, in ^pursuance of which this land was sold, can not “be invalidated or affected by any error previously made in listing, taxing, selling, or conveying said land.”

Considering this sale as having been legal, the lessors of the plaintiff were, by its effect, deprived of the title which they originally had to the premises in controversy, and the same became vested before the commencement of this action in Clement A. Buckley, one of those lessors.

The defendant claims title under a sale of lands forfeited for the non-payment of taxes, made on July 8, 1833. It seems that this land, in the year 1826, was entered upon the tax duplicate in the name of John Clemson, under the law of February 3, 1825, “establishing an equitable mode of levying the taxes of this state” (2 Chase’s Stat. 1176), and was, in the fall of that year, in pursuance of tbe law then in force, returned delinquent for the nonpayment of the tax of that year. It was again entered upon the duplicate for the year 1827, and the tax being unpaid, was offered for .sale, but was not sold for want of bidders ; and not being sold, was, under the law then in force, forfeited to the state. If was sold, in pursuance of this forfeiture, on July 8, 1833, and it is under this sale that the defendant claims title. If the land was properly entered upon the duplicate -in 1826, I discover nothing in the subsequent proceedings to vitiate this forfeiture. By the act of 1825, “ establishing an equitable mode of levying the taxes of this state,” an entire change was made in the system of taxation, so far as the mode was concerned, although not as to the manner of collection. Before the enactment of that law, lands were taxed according to their quality, being distinguished as first, second, and third rate; but by that law they were to be taxed according to their value. This law, however, does not propose to tax lands not the property of individuals or bodies corporate and politic. In the first section, it is declared that the property of such persons, natural and artificial, shall be chargeable with tax. The land in controversy was not the property of an individual, but was the property of the State of Ohio, and it can not be supposed it was the intention of the state to levy a tax upon its own lands. I say it was the property of the state, and it must be so considered, if force is to be given to the law of 1822. Under that law it has been offered for sale to satisfy a judgment for the taxes, and was not sold for want of bidders, whereby it was forfeited to, and became the property of the state. Not being individual property, it was not property ^entered upon the duplicate for taxation in 1826 and, of course, there could be no forfeiture in 1827. This law of 1825 requires that a list shall be made of all delinquent lands, but it says nothing about forfeited lands, and it was undoubtedly the intention to leave them as they wore, to be disposed of as the legislature might afterward prescribe.

On January 18, 1826, an act was passed “providing for the collection of taxes on lands and town lots, which have accrued prior to the year 1S26 ” (3 Chase’s Stat. 1819); and under the provisions of this law, the arrears of taxes upon the land in controversy might have been collected but for the previous forfeiture. That law applies alone, not to forfeited, but to delinquent lands; and, it is believed, that there is no law prescribing the mode of disposing of forfeited land prior to the act of January 29, 1827, before referred to.

But it is said that the taxes for the years 1826 and 1827 were not included when the land was sold for the taxes in 1828. This appears to have been the case, hut it does not follow that the land was properly entered upon the duplicate in 1826. The taxes for these years should have been added, and that they were not, is owing to the fault, or mistake, of the agents of the government. The purchaser, under that law, must not be made to suffer on this account; he purchased the land under a law requiring it to he sold for all the arrearages of taxes, up to the time of sale, and he must take it divested of all previous.charges of that character.

For these reasons, we are of opinion that the defendant can not protect himself under his claim of title. In truth, he shows no title to the land in controversy.

But it is objected, for the defendant, that the plaintiff can not recover, because the title is not in all his lessors, but iu one of them, to wit: in Clement A. Buckley. The objection is well taken ; but as this point was not raised upon the circuit, we will not render judgment in the case, but remand it to the proper county, with leave to the plaintiff to amend upon'the payment of costs.


author: Judge Grimke

text:
    *John Kendrick v. William Y. Farquhar.
    The exemption from taxation of lands owned by literary institutions, and of buildings occupied by students under instruction, does not extend to a house occupied as a residence by a professor of the institution, and erected on its lands..
    This case was adjourned from the county of Knox. It was an action of trespass, for breaking and entering the plaintiff’s house. The defendant pleaded that he entered to distrain for taxes due on the house. The plaintiff replied, that the house was a professor’s, situate on the lands of the theological seminary, Kenyon College, and was not subject to taxation. Demurrer to the replication and joinder. In addition to the pleadings, there was an agreed case stating the came facts.
    Brown and Mitchell, for plaintiff:
    The statute of March, 1831 (29 Ohio Stat. 372, 373, sec. 2), enacts, that all lots of land, or ground, set apart for school-houses, academies, or colleges, with the buildings thereon occupied for those purposes, and all lands the property of any such academy, or other seminary of learning, which now is, or hereafter may be, established in this state, including all lands granted by Congress for the use of schools, academies, colleges, and for religious 'purposes (but the buildings, or any of them not occupied for. literary purposes, may be taxed), shall be exempt from tax. Under this statute, the premises in question were not taxed; and it is thought that the county authorities do not claim that they are taxable under it, but that they become so under the statute of 1834. We will examine, however, the ground for taxing them under this statute just recited. The only questions that can, or at any time could arise under it, would be, first, is the building on lands belonging to a seminary of learning? This determined, in the affirmative, the next and only question is, is it used for literary purposes? This determined in the affirmative,the property must be exempt according to the express provisions of this statute. It is admitted that the buildings in question are on the land of the theological seminary. The next question, and the one for the court to determine, is, are they (the houses referred to in this ease, one of which is described in the pleadings), used for literary purposes, being used as the residences of professors of the college? It does seem that no intelligent mind can for a moment doubt upon this subject. The professors are the most essential part of any institution of learning, and are *there, and accomraodated there, for literary purposes, and none other. So if any buildings connected with a college are used for literary purposes, those used for the accommodation of professors, the heads of the literary department, surely are.
    But it is claimed, by the county authorities, that the statute of 1834 (32 Ohio Stat. 12), providing for the revaluation of real property, makes an alteration in this particular, and that by section 5 of that act, the house in question is taxable.
    This statute declares, section 5, that the appraiser shall “ proceed "to list and appraise, at its fair cash value, all real estate made tax■able by the act pointing out the mode of levying taxes, passed March 14, 1831, conformable with the provisions of said act. The •excess over and above $200 on ail houses, except the property exempted from taxation by section 2 thereof: all town in-lots, and out-lots, subject to taxation; also all buildings and other improvements, in like manner erected upon, or affixed to, school and •college lands, or on lands granted for religious purposes; also all buildings, and other improvements in like manner erected upon, ■or affixed to, any town lots laid out on such schools and college land, or lands granted by Congress for religious purposes.
    The question now presented is, does this statute repeal, or in any way alter the force of the statute of March 14, 1831 ? It is a rule laid down by Blackstone (vol. p. 1, 89), that one part of a statute must be so construed by another that the whole may (if possible) stand. Can, then, this statute be so construed as to give to that clause, in section 5, which points out the property to be exempted, full force, and still make it consistent with the subsequent part of the section, declaring that all buildings, etc., erected on school and college lands, etc., shall be appraised.
    To give it such a construction would seem to us very natural, but to some it seems otherwise. It has been contended by those members of the board of equalization, who were in favor of taxing, that the latter part of this section has the effect to repeal •the former part, and also section 2 of the statute of 1831; still that same board of equalization did not include in their approved list of appraisements the large stone edifice called the college building; and this is a building on the college land; and if section 2 of the statute of 1831 is repealed by the statute •of 1834, subject to be taxed under the general expressions in the statute of 1834. But here they desert their strict construction *of the last clause of section 5 of the statute of 1834, and let in section 2 of the statute of 1831, with all its force. According to their own acts, then, the question, in regard to taxing the houses in controversy, seems not to be in reality one of ■the construction of the statute of 1834, but as to what shall be the construction of that of 1831; for if they would but exempt one building on school or college lands, they consequently give up their strict construction of the latter clause of section 5 of the .•statute of 1834, which reads also, all buildings and other improvements. etc., and resort to the statute of 1831 to exempt that one. If, then, the statute of 1831 be in force to exempt one, it is in .force to exempt all which are included in the clause which exempts -that one. Hence, then, according to the acts of the county au-tborities, the true question is, what shall be the construction of section 2 of the statute of 1831, to which they must have resorted to exempt the college edifice? The question arising on that section we have already discussed.
    But go upon the supposition that the board of equalization have refused to exempt any, even the college building, and the question is, does the latter clause of section 5 of the statute of 1834, above referred to, meddle with the plain force of the first part of that .section and the statute of 1831 ? Are they repealed by it, or are they consistent with it, and it with them? The first part of seC-tion 5, in the law of 1834, exempts all exempted by section 2 of -the law of 1831; and the latter clause of section 5 requires all improvements, buildings, etc., not above exempted, to be appraised;namely, all buildings, and other improvements, on school and -college lands, not used for literary purposes.
    This construction clearly gives force to every part of these .statutes, and makes them consistent.
    We know it is a rule of law, that subsequent statutes shall control the provisions of former ones repugnant to them ; but to this .rule there are exceptions, depending on the intention of the legislature. In this case, however, we contend that the latter statute -is not repugnant to the former. But grant that it were so, what would appear to be the intention of the legislature? Certainly'not to repeal the act of 1831, else why refer to it in the first part of .said section 5? On this point, see Pease v. Whitney, 5 Mass. 380; Capin v. Glover and others, 4 Mass. 305.
    When a statute is made, in addition to another statute, on the same subject, without repealing any part of it, the provisions of *each must be construed together, reddenda singula singulis. Pease v. Alwood, 13 Mass. 324. The law of 1834, then, if connected with that of 1831 at all, must be considered an addition to it, for it is an additional regulation of the mode of levying taxes. Hender, then, these two statutes together, if possible, so as to let both stand, and give to the terms of each a subject to operate upon. The court will, no doubt, give them such construction, and exempt all manner of property from taxation, under the statute» of 1834 that would have been under that of 1831.
    Curtis, for defendant:
    Whether the locus in quo be properly listed and taxed in the-name of plaintiff, is a question entirely waived; and that intended, to be presented (as agreed by counsel) is, whether the property be at all taxable.
    The statute of March, 1831, vol. xxix, 262, 263, sec. 2, exempts» from tax all the lots of ground, or land, set apart for school houses, academies, and colleges, with the buildings thereon, occupied for those purposes; and all lands the property of, or granted for the use of, such academy or seminary of learning; but adds a proviso, that the buildings, or any of them, not occupied for literary purposes, may be taxed.
    Section 5 of the act of 1834 (32 Ohio Stat. 12) requires the appraiser to list and appraise the excess over $200 on all houses, except the property exempt by section 2 of the former law; “also all buildings and other improvements, erected on, or affixed to,, school or college lands.”
    1. Docs the act of 1831 exempt from taxation a dwelling house built on college lands, and occupied by a professor?
    It is conténded by plaintiff’s counsel, that the word ‘■‘literary’’'' is of such general import, with reference to college institutions, that it embraces the residences of all persons necessarily employed in and about the seminary; and especially those of the professors. This argument seems to be predicated upon the false hypothesis, that whatever is connected with a literary institution ; or attached to it for comfort, convenience or support, becomes literary itself; and is entitled to all the benefits and exemptions, secured to the institution in its proper sense.' A professor or tutor is certainly a principal, and very necessary officer in a college; but his residence - or dwelling house, although very important for the *comfort of his family, is of no more consequence to the institution than would be the dwelling house of a judge, to the administration of justice in our courts of law. The professor is free to choose the kind of house he will inhabit, whether a cabin or the more splendid mansion; and the exercise of that choice does not, in any wise, affect the prosperity of the college.

      The same argument that would protect from taxation the professor's house, under the saving clause of the act of 1831, would .also embrace a great variety of other buildings; for it is to be remarked that the professor’s house is not claimed to be within the exemption because the tenant may be more of a literary man than ihe laborer who supplies the college with fuel or the baker who provide^ the students with bread, but because it is a necessary appendage to the college. Is itnot equally necessary that there should be a boarding-house attached to the college; and because the students board there is that necessarily “occupied for literary purposes?” Is it not equally necessary that the students and other members of the institution should be clothed ; and does it therefore follow that the clothing store or tailor’s shop on the college ground, though exclusively supported by the college, is occupied for literary purposes ? The college may institute and support a ■.hotel for the reception of visitors and guests ; it may establish a bakery, employ many families in washing for the students, furnishing fuel, etc., and, to make the expenditures for these comforts light to the student, provide houses for all free of rent. But will it gravely be contended that these various establishments are •.therefore for literary purposes ?
    The counsel for plaintiff would not probably claim the application of their argument to the extent above given; yet, to my mind, its conclusions embrace all the cases referred to. And its error consists in failing to distinguish between those 'buildings which are occupied as part of the institution itself and those which .are attached thereto for its comfort and convenience. Thus the counsel, in the concluding part of their argument, embrace in one class, as exemptfrom taxation, all houses built on the college lands» and occupied by students for lodging, recitation, or study; by professors, tutors, librarians; for libraries or literary societies. Now here are a variety of purposes of habitation, many of which are utterly dissimilar. For instance, the recitation and study rooms £of which there are several buildings distinct and separate from the main college buildings, yet belong to the same and occupied for those purposes) and the houses built for ^libraries and literary societies, none of which are claimed to be taxable, may readily be ■distinguished from the lodging or boarding-houses of the students .and the dwelling-houses of the president, professors, tutors, or librarians. The former constitute a component part of the institution itself, while the latter are attached for the convenience of individual persons connected with the institution. That some of these houses may be assigned to their occupants free of rent does-not in any degree weaken the distinction here made. Whether any, and what rent should be charged by the superintendent, under the direction of the trustees, is a sheer question of expediency, to be determined by the discretion of the proper officers; and the exercise of that discretion, either favorably for the tenant or more rigorously against him, can not change the character of the occupation.
    I do not admit that the practice under the statute of 1831 has-been to exempt from taxation professors’ bouses and the other buildings attached to colleges above considered. That in some counties such a construction may have obtained is probable; but that fact can have no sensible bearing upon the question submitted to the court. The true construction of the statute is now sought for by both parties; and former errors, if any have prevailed in practice, should not influence the decision.
    But there is another view that will greatly aid in finding the-true interpretation of this law. The first part of section 2, in the statute of 1831, designates by name, in a manner that can not be misunderstood, the property which shall be exempted from tax: “All lots of ground or land set apart for school houses, academies, or colleges, with the buildings thereon occupied for those purposes.”' What purposes? I answer, from the obvious meaning of the text, for the purpose of such school, academy, or college. This, so far as-involved in the present suit, is the exemption — the whole of the exemption. And the subsequent proviso is surplusage, and unnecessary for the purpose of reserving the taxing p*ower over other-items of property. If, then, the section' or clause creating the exemption ended here, without the addition of the proviso, could it-be construed that the legislature intended to include such buildings as in no wise constitute the school-house, academy, or college, proper or improper, nor any part thereof? If not, let us see if any enlargement of the exemption can be obtained from the subsequent saving clause.

      A proviso never substantially grants a power or right; but it is a clause introduced as a condition and caution, to guard against *the too extended operation of. a preceding enactment. It is intended-to limit and restrict the section of the law in which it, is placed, not to enlarge its operation. Why, then, is this proviso looked to as the passage in the law that exempts the property named in plaintiff’s replication? Is it claimed that the benfits granted by this section are increased', enlarged, extended by it? If so, the learned counsel do violence to the general and technical meaning of the word, and its legal use and application. I com’ mend them to Walker and Webster.
    The legislature, cautious beyond necessity, and fearing that the exemption of the lands belonging to schools, academies, and colleges from taxation, might be construed to include all houses built upon such lands, interposed the proviso to guard against such & construction. The word “ literary," as used in the sentence, must therefore be taken as meaning nothing more than was expressed in words before used. They had exempted school-houses, academies, and colleges; they had exempted the lands owned by those institutions; but they excepted from these exemptions buildings not occupied for literary purposes, obviously implying the buildings which they had already designated. This construction of the section renders the whole sensible, preserves the general use and meaning of the proviso, and gives to each member of the sentence definite meaning and purpose.
    2. The interpretation which I have given to the act of 1831 aids me in arriving at the true meaning of the legislature in the law of 1834. Whether, by the clause quoted from the last-named act, it was intended to remove any doubts that may have previously existed, or induce uniformity of construction and practice in the different counties, may be a question worthy of consideration; but is rendered unnecessary to discuss in this case, from the view already taken of the former act. I do not believe that the legislature intended, by the act of 1834, to repeal or change the law as it was enacted, by section 2 of the act of 1831. Nor is it necessary for the defendant in this case to assume that ground, as is erroneously supposed by the plaintiff’s counsel, in their argument. On the contrary, it strikes my mind, as clearly expressed on the face of the statute, to be the intent to preserve, in full vigor, the same exemption contained in section 2 of the act of 1831, and nothing more nor less.
    Statutes in pari materia must be construed with reference to each other; and by the application of this rule, we may frequently arrive at the intent of the legislator, when, without it, we would *be left in a labyrinth of doubt. True, the literal meaning of the following words: “Also all buildings and other improvements erected on, or affixed to school and college lands,” would require a construction that would utterly defeat so much of sec* tion 2, of the previous act, as,relates to buildings. But such a construction would be repugnant to the preceding part of the same section in which this clause is found, and which re-enacts the exemption contained in the former statute. Hence it becomes necessary to compare these enactments with those that before existed on the same subject, and which the legislator is supposed to have had in his view when he made the new law.
    By applying this principle to the sections of-the law under consideration, it can not fail to be perceived that these general words contained in the act of 1834 are subject to the exemptions designated in section 2 of the act of 1831, to wit: “ School-houses, academies, or colleges, and the buildings occupied for those purposes The ends contemplated are to bo considered, and general words may be thereby restrained. 3 Maulé & Solwyn, 510.

      Ut res magis valea-t, quam pereat, is the maxim of the common law, and is sustained and preserved by the construction I have given to the two statutes. A different one would do violence to this principle.’ “ This interpretation furnishes matter for each statute and every clause to work and operate upon.” A different one renders parts of the statute insensible, and involves repugnancy and confusion.
   Judge Grimke

delivered the opinion of the court:

Section 6 of the act of 1834 requires the appraiser to list and appraise the excess, over and above $200, on all houses, except the property exempted from taxation by section 2 of the act of 1831. He is also directed to appraise all buildings, and other improvements, in like manner erected upon, or affixed to any town lots, laid out on such school and college lands. The act of 1831, which is thus referred to, exempts from taxation all lots of ground set apart for school-houses, academies, and colleges, with the buildings thereon occupied for those purposes, and all lands the property of, or granted for the use of such academy, or seminary of learning; but it, at the same time, declares that the buildings, or any of them, not occupied for literary purposes, may be taxed. I do not know that there is any material difference between these laws. Both agree in exempting ^certain buildings from "taxation, and both agree in rendering certain other buildings liable to taxation. The act of 1831 describes both; the act of 1834 refers for a description of one class of these buildings to the .act of 1831. It was evidently the intention of the legislature to confer an advantage upon these institutions, which are of such •unspeakable benefit to the state, and by declaring even a monopoly in this respect to countenance and sustain the monopoly of learning generally. In so doing, we have imitated the examples of ■other states, in which controversies like the present have sometimes sprung up.

Two or three cases, I believe, have grown out of the'laws exempting certain property of Harvard University from taxation. All that we have to do, is, to give a plain construction to the statute, for if, on the one band, it should be said, that a law in aid of the interests of learning should be favorably expounded, on the other, it may be replied, that wherever a special exemption, from certain duties, is contained in a statute, that the rule of liberal ^construction is not the guide.

It appears that the house on which the tax was assessed, is used •as a dwelling-house by one of the professors in Kenyon college; ■a connection with that institution is thus shown, inasmuch as he is one of the faculty ; but this is not sufficient. It is not enough that the person residing in the house is one of the teachers; it must be shown that the building is occupied for literary purposes. I acknowledge that the distinction is not very broad; and there ¿ire some distinctions so nice, that no mind would make them unless it was compelled. But this is not one of such a character. A house merely occupied as a dwelling-house, and not as a place where any of the exercises and recitations of the college are had — • a house whose size and value may solely depend on the extent of a professor’s family, not one of whom have any connection with the college, can not be said to be a building “ occupied for literary purposes,” within the meaning of the law. It is true, such houses might be used for such purposes; but then, to the same extent that they would be withdrawn from taxation, certain other buildings, which are now exempt, would be unnecessary, and would not exist. The conclusion is, that this property was by law liable to be taxed, and the demurrer is sustained. Judge Lane, being a trustee of the theological seminary, Kenyon College, did not sit in this ease.