author: Read, J.

text:
    William Brown v. Robert Willis.
    Where A. made a promissory note payable to B., and to be assigned to C., upon his paying a sum of money, and performing certain labor for A., the payment of the money and performance of labor constitute the consideration of the nóte; and, in a suit upon it against A. by C., who has obtained an assignment, his non-performance may be shown to defeat a recovery.
    This is a writ of error to the Supreme Court of Morgan county
    The error complained of is the affirmance, by the Supreme Court, of a judgment in the common pleas.
    The action was originally commenced by Willis against Brown, • for the collection of a sum of money due on a promissory note.
    The bill of exceptions to tho judgment of the court of common picas discloses that, “on tho trial, tho plaintiff gave in evidences to the jury a promissory note, of which the following is a copy:
    “1 Eight months after date, I promise to pay Isaac McKitrick, or order, the sum of forty dollai’s, for valuó received by him. As witness my hand, this 4fch day of February, 1835.
    his
    “ 1 William t*j Brown.’
    mark.
    “This note being in evidence, the plaintiff rosted his causo.
    “The defendant then offered to prove, by parol testimony, that the promissory note was made by the said defendant, and ^delivered to the said Isaac McKitrick, and to be assigned to said plaintiff, and to take effect and beeomo absolute, upon tho performance, by tho said plaintiff, of certain conditions, to wit: that the said plaintiff should pay Michael Wiseman for two pairs of boat gunwales, perforin two weeks’ labor for the said Brown on a salt boat said Brown was then engaged in building, and also to perform six days other labor for the said Brown, which conditions were never performed.” To this testimony the plaintiff objected. The court sustained the objections, and ruled oul: tho testimony. To this opinion of the court, the defendant excepted.
    The court of common pleas rendered up judgment for the plaintiff, and, upon error, the Supreme Court on the circuit affirmed it.
    To reverse that judgment this writ of error is brought.
    C. C. Covet, for plaintiff in error :
    The testimony offered was sufficient, if true, to bar the plaintiff’s right of action. The promissory note on which the action was founded was incomplete at the time of its delivery to MeKitrick, and-was delivered as an escrow; and before it was to take effect and be of binding force the defendant in error was bound to perform certain conditions, which the testimony offered showed lie had not performed. It was by agreement with him made payable to McKitrick, and the conditions, on the performance of which it was to become his property, wore acceded to by him; and having taken from McKitrick an assignment of the note, knowing, as he must, that the conditions had not been complied with, to allow him to recover on the note would bo allowing him to take advantage of his own wrong; The note in his hands is of no binding force against Brown, the plaintiff in error, whatever it might have been in the hands of McKitrick; and oven in the hands of McKitrick, it could be viewed in no other light than as an escrow. Pawling et al. v. The United States, 4 Cranch, 219. *But if in no other light, can it be looked upon as of binding effect until the conditions respecting it are performed, the fact that McKitrick was acting as the trustee of both parties will justify that conclusion ; and the rule that is sometimes applied to instruments absolute on their face, and payable to the person to whom they are delivered, that a contract or deed can not be delivered as an escrow to the party himself, does not apply in cases )f trustees. 1 Esp. Nisi Prius, 222. McKitrick having assigned the note can not bring suit on it; and as it has passed into the hands of Willis, he not having performed the conditions, by the performance of which alone he was entitled to the note, the nonperformance of the conditions is a good bar to the action. Wench v. Keely, Term, 621; Bottomly v. Brooke, Mic. T., 22 Geo. 3, C. B.
    Rich & Bascom, for defendant in error:
    There is no error in the record of this caso, as complained of by plaintiff in error.
    Parol evidence is not admitted to contradict or vary the terms of an instrument in writing. Parol evidence is inadmissible to show that a note made payable on a day certain was to bo payable on a contingency only. Ros. Crim. Ev. 9; 11 Johns. 201. Parol evidence is not admissible to show a different consideration than the one stated. 1 Johns. 139. Oral declarations, though made at the time of the contract, are not admissible. 5 Conn. 451; 2 Stark. Ev. 550. A contract can not rest partly in writing and partly in parol. 1 Johns. Ch. 272.
    It is assumed by"the plaintiff in error that the note referred to in this case was passed to McKitrick as an escrow. The position is not sound. An escrow is a conditional delivery of an obligation, to take effect on the happening of some event consistent with the instrument. “A condition of delivery repugnant to the contract, whose object is to vary its terms, is no escrow.” Wright, 662.
    *The note referred to is absolute on its face. It is negotiable; is made payable to McKitrick or order, at a fixed time, and without any contingency. It is an acknowledgment of a sum of money due said McKitrick, to be paid at a future fixed day.
    The parol evidence sought to be introduced is inconsistent with the instrument, and varies the terms of the contract.
    An escrow is put into the hands of a third person, to be delivered up or not on the happening of a certain contingency.- It is never put into the- hands of the porson contracted with. The note, then, in this case, can not be regarded as an escrow.
   Read, J.

The Supreme Court erred in affirming the judgment of the court of common pleas, because the facts offered to bo proved and ruled out would, if true, constitute a complete bar to the action.

Brown executed and delivered the note in controversy to MeKitrick, as payee, to be assigned to Willis, and take effect and become absolute when Willis should pay a specified sum of money, and perform a certain amount of labor. The payment of the money, and performance of labor by Willis, formed the consideration of the note; and Willis not having paid the money, nor performed the labor, there was a total want of consideration for the note.

The evidence ruled out by the court of common pleas did not set up a parol contract different from the written one, or in any respect alter or vary it, but disclosed merely the want of consideration.

If the parol evidence went to alter tho date of tho note, by showing that it was not to take effect from tho time specified in the note itself, but from its delivery over to Willis, such evidence would bo clearly inadmissible.

The suggestion that the note was an escrow, and that the evidence proved that it was not to take effect from its date, but when it should be delivered over to Willis, on his compliance with certain terms, instead of proving want of consideration, no doubt led the court into this error.

Judgment reversed and cause remanded.


source: Caselaw Access Project

author: Lane, C. J.

license: Public Domain

text:
    *Bancroft and Caffee, Assignees of Neilson and Wilson, v. Reuben J. Blizzard.
    No demand is necessary to sustain roplevin against a constable who levies on goods in possession of tho debtor.
    An assignment by a failing debtor to a trustee, for the equal benefit of all his creditors, is valid, although the intentions of the assignor were fraudulent.
    This is an action of replevin from the county of Licking.
    The cause was tried on the circuit; verdict for defendant; and a motion for new trial having been made by tho plaintiff, the following statement is agreed by counsel:
    “A jury being impaneled and sworn to try the issue joined in this case, the plaintiffs gave in evidenco to tho jury a deed of assignment executed by Neilson and Wilson to them of all their property and effects, including the property which was tho subject of the replevin in this case, conveying said property and effects to the plaintiffs in trust, to bo applied for the equal benefit of all tho creditors of tho said firm of Neilson and Wilson, and for any residue thereof that might remain, in trust lor the use of the said Neilson and Wilson. And further, the plaintiffs gave evidenco to the jury tending to prove that tho plaintiffs, after tho delivery of said deed of trust, took part of the property and effects so assigned, not including the property in question in this suit, into their actual possession, for the purpose specified in said trust. And further, the plaintiffs gave evidence to the jury tending to prove that, after the delivery of said deed of trust, and after tho acts of possession aforesaid, and whilst the plaintiffs, and the said Neilson and "Wilson, were in the possession of said property, and the same remained in the same situation as before the assignment, without being removed to any other place than that in which it had been kept by Neilson and Wilson before the assignment, the defendant, in his capacity of constable, having in his hands an execution in favor of Converse and Birkey, against Neilson *and Wilson, upon a judgment recovered in an action commenced after said assignment, levied said execution upon the property in question, as the property of Neilson and Wilson, and took and de tained the possession thereof, for which detention this action is', brought; and that before the levy by the defendant, other creditors of the said Neilson and Wilson had presented their claims to the plaintiffs as assignees.
    “ And the defendant gave evidence to the jury, tending to prove that the said Neilson and Wilson, before and at the time of making said assignment in trust, and in that behalf, without tho knowledge, concurrence or consent of the plaintiffs, acted fraudulently, and made said assignment with intent, notwithstanding said assignment, and contrary to the terms thereof, to control the disposition of their effects, and to defraud their creditors.
    “ And, the evidence being closed, tho court instructed the jury that, if they should find that the said assignment was made by said Neilson and Wilson with the purpose of defrauding their creditors, and not for the purpose of the distribution’thereof, according to the terms of said assignment, the same is fraudulent, and void in law, although tho assignees may not have been aware of said fraud. It further appeared that the defendant, as a constable, levied upon the property specified in the declaration, in virtue of an execution against Neilson and Wilson, after the execution of said assignment; that the said property, at the time of tho levy, was in the possession of said Neilson and Wilson, and that this suit was brought on the same day tho levy was made, and without any demand or claim made upon the constable by tho plaintiffs.'
    “ And the plaintiffs further gave evidence, tending fi show that the plaintiffs in execution, at the time of the making said levy, had knowledge of the said assignment.”
    “ And now comes the said plaintiffs and move tho court to set aside the verdict and grant a now trial, because the court erred in instructing the jury that if they should find that the said assignment was made by said Neilson and Wilson, with the purpose of defrauding their creditors, and not for the purpose *of distribution thereof according to the terms of said assignment, the same is fraudulent and void in law, although the assignees may not have been aware of said fraud.”
    George B. Smythe, for plaintiff:
    It is not necessary to the validity of this class of conveyances of property, that any beneficial interest should vest in tho trustees, or that the general creditors should have assented to the trust. The acceptance of tho trust by tho trustees forms an adequate consideration, if the trust is based on laudable objects Hardin v. Baird’s Heirs, 2 Pirtle’s Dig. 448. Tho trustees become the agents of the general creditors, as well as of' their assignors, If the conveyance be direct to the creditors, their assent is necessary to its validity ; but when made to trustees for their benefit, the acceptance of the trustees vests a beneficiary interest in the creditors whigh can not bo defeated by tho dissent of any portion of them, to tho injury or prejudice of others, and any one or more may enforce it. 4 Johns. Ch. 529; 9 Ohio, 92. It is tho-right and duty of the debtor in insolvent circumstances, to appropriate his effects equally by means of trustees, for the benefit of all his creditors; and on general principles, as well as under the statute, courts of justice carry the trust into effect. 7 Ohio, 247, pt. 2; 8 Ohio, 390. The statute of 1838 was intended to prevent any undue preference among creditors, and secures to them an equal distribution, in cases of assignments in contemplation of insolvency whether they be fraudulent or not. 8 Ohio, 390.
    The case of Harsham et al. v. Lowe et al., 9 Ohio, 92, is relie'd upon to establish the proposition of the defendant. I understand the remarks in that case to apply only to the statute, which expressly declares the conveyance void, as to the preference created by the assignment. It was a fraud against the statute, and it matters not by whom the act was done; whether by the assignor or assignee, or both of' them combined. The trust is made the subject of equity, and must *bo enforced according to the principles of equality prescribed by the statute. The remedy of tho creditors is a resort to the trust fund — they may compel security for the faithful performance of the trust, or procure a removal of tho trustees, and the appointment of others. The principio contended for by the defendant would produce the very result which, tho statute was made to prevent.
    As to the second point, a judicial officer is not distinguished from any other wrong-doer. It is said that the officer is the agent of tho law, and only performs a duty imposed upon him ; and having levied on property in tho possession of tho debtor, ho is to be protected until a formal demand is made upon him. It is his duty to levy on the property of the debtor, whether found in bis possession or not. If he seize the property of another, the taking itself is a wrongful act, and his possession is tortious.
    It is claimed that the statute providing for tho trial of the right of property by a claimant, before a justice of the peace, was framed for the protection of constables, and furnishes the only remedy against tho officer. But this court has already decided that the remedy is cumulative. Tho statute regulating writs of replevin makes no exception, but allows the remedy in all eases of wrongful detainer.
    Henry Stanbery, for defendant:
    Is this sort of assignment within the rule, that, the mala fides must be common to both the partios? I apprehend not. Tho assignees hero are not purchasers or creditors; they are individuals selected by the assignors ; they neither gain nor lose by the assignment.
    Tho general rule is, that whore the assignment or conveyance is voluntary, and not founded on a valuable consideration passing between the parties, it is void as against a creditor or purchaser, if tainted with fraud in tho assignor.
    Several cases are cited by plaintiff, in which it has been held that assignments for tho equal benefit of creditors have been *sustained, notwithstanding a particular intent to delay or defeat a recovery in full by one creditor.
    As to those cases, it is to be considered :
    1. That the only question which is made, is as to the fraud of the assignor; and that tho idea of sustaining them upon the bona fides of the trustee, seems not to have been entertained.
    2. In all of them the general intent of the assignor was not fraudulent, but honest. So that the courts were put to say that they could not impute fraud to an act which was designed to insure an equal and fair distribution, because of a particular intent to disappoint one creditor of a priority, and place him on the same level with the others.
    A wide distinction is obvious between those cases and this case. Hero there was no general, honest purpose, to overcome a particular intent prejudicial to one creditor, but the fraud was against all the creditors. It stands upon the finding of the jury, that this assignment was a device of the assignors to place their property beyond the reach of their creditors, that they might afterward control it for their own uses and purposes.
    The statute in force at the time of this assignment (Swan’s Stat. 717) contains the following provisions:
    “ Sec. 3. All assignments of property in trust, which shall be made by debtors to trustees, in contemplation of insolvency, with the design to prefer one or more creditors to the exclusion of others, shall be held to inure to the benefit of all the creditors, in proportion to their respective demands; and such trusts shall be subject 1o the control of chancery, as in other cases; and the court, if need be, may require security of the trustees for the faithful execution of the trusts, or remove them and appoint others, as justice may íequire.”
    This section has no application to the' case at bar. It is made specially to apply to assignments containing preferences; assignments in which there is not even a particular intent to defraud. At common law such preferences, so far from being considered fraudulent, are sustained. This section does nothing *more than change the law, in that respect, in order to an equal disti-ibution.
    If the court is with the defendant on this point, and concurs with the court on the circuit as to the law, the motion must be overruled; but if not, then we claim, in behalf of the defendant, that the verdict is right, and ought to stand on other grounds:
    1. Because the assignors had such an interest in this property as was subject to execution.
    2. That, under the circumstances, replevin will not lie against the defendant.
    Upon the first point, this court hold the equity of the mortgagor in real estate subject to execution at law. I do not see why an equity, or resulting trust in personalty, does not stand on the same footing. Randall v. Cooke, 17 Wend. 53.
    As to the second: At the common law if a sheriff, having an execution against A., levies upon and takes into his possession the goods of B., he is a trespasser.
    But whenever a sheriff acts in good faith, and with reasonable diligence, in endeavoring to ascertain the true state of tho ownership of goods levied on, ho is protected from an action.
    The mode of proceeding at common law, is very similar to the proceedings, under a claim of property in goods levied upon, under our statute. The sheriff impanels a jury to inquire as to the validity of the claim. It was for a long time held that the finding of the jury would protect the officer; but the later decisions are the other way. Watson’s Sheriff, 6 Law Library, 142.
    The court, however, always takes care to protect the officer, where he acts in good faith.
    It is said by Watson, at page 132: “ Tho sheriff is bound, at all ¿vents, to levy whatever goods tho defendant has in his county. In this manner tho sheriff would be, but for tho protection of the court, often placed in an awkward dilemma; for, if the sheriff fail to levy goods of tho defendant in his bailiwick, ho is responsible to the plaintiff in an action for a false return; if, on the other hand, he should seize goods which belong to a stranger, although they apparently arc the property of the ^defendant, tho sheriff is liable in an action of trespass; but the court will, whenever the property in the goods is disputed, give time to the sheriff to return the writ, until he is indemnified by one of tho claimants ; and, therefore, the sheriff should not return the writ whore there is a dispute.”
    In Now York they have no statutory provisions, as to the trial of the right of property levied upon, but the proceedings of the sheriff in taking an inquisition are at common law.
    In Curtis v. Patterson, 8 Cowen, 67, it is said by Sutherland, J., delivering the opinion of the court: “ I understand the law to be this; that if a sheriff has reasonable grounds of doubt on the question of property, he is bound, if no indemnity is offered to him by the plaintiff, to call a jury to try the title to the property. If they find it not to be in the defendant in the execution, he is justified in returning the execution nulla bona, unless an indemnity is then tendered to him. If it is, he is bound to proceed, notwithstanding the finding of the jury. . But a plaintiff is never bound to tender an indemnity until a jury have passed upon the question of property. A sheriff acts at his peril in making a return of nulla bona under any other circumstances.”
    The case of Williams v. Lowndes, 1 Hall’s N. Y. 579, very strongly resembles the case at bar.
    In that case the sheriff was sued by the judgment creditor for a false return of nulla bona. It appeared that the judgment debtor had in his possession goods, which he had assigned to one Stewart, with power to sell them and ajjply the proceeds, first, to a debt due to Stewart, and to retain the residue “ for the benefit of his (the judgment debtor’s) creditors.”
    The sheriff omitted to call an inquest.
    The court say: “ It was the duty of the sheriff to make the levy without any indemnity whatever, as he found the goods in the hands of the defendant in the execution; and he would not have been liable to an action as a trespasser, if he had made such levy. The goods were pointed out to him as the goods of the defendant in the execution; he was exercising acts of ownership over them; they were in his exclusive custody *and possession, and the sheriff would have incurred no peril from the act of levying. If, after the officer’s first duty was performed, a claim to the property had been interposed, then a jury would have been called to determine the right of property. If, by the inquisition, it should be determined that the property was in the claimant, then the return upon the execution should be nulla bona; and such a finding, although it would not be conclusive upon the question of property, would nevertheless justify such return. Should the jury declare the property to be in a third person, then the sheriff could not be compelled to proceed further, without a full indemnity. But, in the first instance, he was bound to make the levy, and there is nothing in this case to excuse his neglect in that particular.”
    Is there any difference, in the state of the law, in the two states ? None whatever.
    1. As to the trial of the right of property. In New York, it is according to the common law, and the verdict of the jury justifies the officer. In Ohio, it is by statute, and results in the same protection.
    But it is said our remedy by replevin is very extensive, and, inasmuch as the legislature take it away, or do not allow it to the judgment debtor, where goods are taken in execution, it is to be intended that they allow it to all others than the judgment debtor; undoubtedly, where there is a wrongful taking or detention.
    In New York the writ of replevin does not lie for the judgment debtor, but is expressly given to any other person, for goods taken in execution, if that other person has a present right to reduce them to possession. 2 N. Y. Rev. Stat. 522, sec. 5.
    Unquestionably there are circumstances which, either in New York or Ohio, would authorize this proceeding in the first instance, as where the officer, under an execution against A., levies upon B.’s goods, in the possession of B., without any sufficient ground to question B.’s title.
    Again, after a trial of the right of property, and a finding for the claimant, and refusal to deliver by the officer, the detention would be wrongful.
    *It is the laches of these plaintiffs that led the officer into the belief that the goods continued to be the property of the judgment debtor. The assignment was absolute, and contained no provision that any part of the goods was to remain in the possession of the assignors. In fact, that continuing possession is not only a proper indicium to third persons of ownership, but gives & prima facie character of fraud to the assignment. So that if the constable had known of the assignment he was bound to consider it void.
    In Patty v. Mansfield, 8 Ohio, 369, it is said the chief object was to afford protection to the officer. There is, however, an obiter dictum in the same case to the effect, that a claimant has his election, in all cases, whether to proceed under the statute, or sue tho officer at once.
    H. H. Hunter, in reply:
    The legal effect of the assignment is, that it shall be executed according to its terms, and not according to a secret, fraudulent intent of the grantors, contrary to its terms. Having delivered the assignment, all legal power on the part of the grantors over it, is determined, and any subsequent act of theirs in fraud of it, should, on principle, be deemed as ineffectual to defeat either the title of the assignees or the rights of the general creditors under it, as'any other fraudulent act of any party should be to defeat the just rights of another.
    Oases like the present, relating to the assignments for the benefit of creditors, stand upon a very different footing in regard to the effect of a particular fraudulent intent of the grantors upon the transaction, than would be the case in, perhaps, any other transaction. It is almost universally true that any act of a debtor, the object of which is to defeat his creditors in the recovery of their demands, is void, being fraudulent. The intent to defeat creditors, or prevent them from recovering their rights, is always a fraudulent intent.
    Like most other general rules, however, this is subject to exeeptions. For instance, if a creditor of a failing debtor, *more vigilant than other creditors, has recovered, or is about to recover a judgment, by reason of which he is likely to secure to himself, by the use of legal process, an advantage over other creditors, but has not yet perfected his proceedings so as to have acquired an actual lien, the debtor may, for the very purpose of defeating the advantage about to be acquired by the vigilant creditor*, dispose of his property, either in payment, or by way of security for the payment of a debt due to another creditor, or ho may, by a general assignment to the trustees for the equal benefit of all his creditors, do the same thing, and in either case, the title of the creditor thus paid or secured, or the title of the trustees, will be effectual in law and equity against the creditor in pursuit. Holland v. Andrews, 5 Term, 235; Pinckstock v. Lyster, 3 M. & S. 371; The King v. Watson, 3 Price, 6; Meux v. Howell 4 East, 1; Bowen v. Brambridge, 6 C. & P. 142.
    Indeed, any disposition of his property made by a debtor, although made with the fraudulent intent on his jmrt of defeating his creditors, is valid, if made to a bona fide purchaser. But a purchase by a stranger, although for a full and valuable consideration, if made under a knowledge of such fraudulent intent of the vendor, is, of course, void as against the creditors. This principle has never, to my knowledge, in any adjudicated case, been applied to a purchase by a creditor in payment of his debt. Such •transactions are regarded in the light of a race between creditors, either having the right to the advantage- he may gain over the -other.
    But where the alleged fraudulent act of the debtor consists, not in securing an advantage in favor of one creditor against another, but in securing absolute equality between all his creditors, and preventing any one from gaining an advantage over the others, which is the cáse in a general assignment for the benefit of all, the transaction, so far from being fraudulent, is j ust and meritorious.
    Such is the case in the instance now before the court, unless the effect of the deed of assignment, its legal and proper effect, can be overcome by the secret purpose of the assignees to defeat its fair and proper execution.
    *The question whether the resulting trust in favor of the grantors can be sold eo nomine, under execution at law, does not arise in the easo.^ Such a right is so essentially a matter of pure equity, that it is impossible to be a subject for common law jurisdiction in any form. Such is the case in regard to any equitable right in a chattel; in regard to which, the possession or right of possession, at law, is in any other person than the defendant in the execution.
    It is a universal rule that the actual possession of goods must accompany a seizure of them under execution; they must be within the reasonable power of the officer ; and his right to possess or hold them, by virtue of the levy, is regulated by and never can be any greater than the right of the defendant in the execution. If, therefore, any one have a better right to the possession than the defendant in the execution, the seizure by the officer is a trespass.
   Lane, C. J.

Two questions arise in this case :

1. As to the necessity of a demand upon a constable who levies upon goods in the possession of the debtor, before a suit is maintáinable against him. No such necessity is perceived. The writ authorizes a levy on the goods of the defendant debtor, and the officer must encounter the hazard of responsibility for taking other property, to preserve unimpaired the remedy of the true owner..

2. But a .majority of the court think an error was committed in instructing the jury that a conveyance to a trustee, made by a failing debtor, with fraudulent intentions, was void, although neither trustee nor creditor participated in the fraud. Naked justice between creditors consists in an equal distribution of the debtor’s property among all, in the same proportion. The law sometimes protects preferences, either to encourage vigilance, or to leave the acts of parties uncontrolled, when not directly wrong; but the rule of equity is the rule of equality, wherever it can exert its power; and it is this rule-which the statute endeavors to follow, when it operates upon assignments. If a debtor appropriates his property in a '■'manner most consistent with the statute law and the principles .of equity, and with the demands of pure justice, the validity of the transaction should not be impaired, although his intentions are fraudulent. The act is right, although the motive may be wrong. Conformably with this doctrine, it has been often held, that a purchase by an honest purchaser is not tainted by the fraudulent intention of the vendor. A conveyance to the trustee of a creditor appears to us entitled to equal protection; since, on his acceptance of the trust, ho assumes, and the statute imposes responsibilities, for his own cor rect administration, but which ought not to be extended into liabilities for the secret frauds or corrupt intention of others.

New trial granted, and cause remanded.

Birchard, J., dissented on the last point.


author: Birchard, J.

text:
    Keenan v. Saxton’s Adm’rs.
    A suit can not be maintained against a decedent’s estate, within eighteen months after letters issued, unless such claim was first presented to the executor or administrator for settlement, with a request that he should.indorse his allowance thereon.
    Executors and administrators arc entitled to a reasonable time for the examination of an account against the estate, before indorsing its allowance or rejection.
    This is a motion from Greene county, to set asido a nonsuit, and grant a new trial.
    The suit was brought by Keenan, against Saxton’s administrators, within eighteen months after the letters of adminstration wore granted, to recover a claim alleged to be due from the estate. The declaration was in assumpsit. Plea, general issue and notice of set-off.
    On the trial, the plaintiff was nonsuited, because there was no proof that, before suit brought, he had made out and presented 'his account to the administrator, with an affidavit of its being correct; nor was the administrator requested to pay the same, or indorse his allowance thereon.
    A. Harlan, for plaintiff.
    *J. S. Prescott, for defendant. '
   Birchard, J.

This motion presents a question arising under the following clause of section 9 of the act to provide for the settlement of the estates of deceased persons: “A claim shall be deemed disputed or rejected, if the administrator or executor shall, on presentation of the vouchers thereof, refuse, on demand made for that purpose, to indorse thereon his allowance of the same, as a valid claim against the estate.” There was no evidence offered which showed that such demand was made, and that there was any direct refusal. The account was merely presented, and examined by one of the administrators, and compared with decedent’s book, with which there was a slight disagreement. Ho evidence, affidavit, or vouchor, was produced by the plaintiff in support of it. On this examination and comparison of the books and account, the estate claimed the right of paying the same in wheat. If this were to be held sufficient to authorize a suit within eighteen months, a very useful provision of the law would be irifterod away, and it would become hazardous lor an administrator to enter upon an examination of the accounts of the estate, at any time, in company with the adverso party.

Wo think there should have been proof of a request to indorse an allowance of the claim, and a refusal so to do. The administrators had a right to expect,, after the claim of a right to pay in wheat was made known to the plaintiff, that the claim would be again presented to him authenticated, as required by statute, with a demand upon them to indorse thereon their allowance. They had a right, after such presentation and demand, to take a reasonable time to examine and determine whether it should be allowed or rejected. They had a right to say to plaintiff — Wo can not tell whether we will allow or reject your claim, until we have had time to examine and consider, your proof, and, perhaps, take the advice of counsel. A different rule would subject estates of decedents to useless and vexatious suits and costs, and would, to some extent, defeat the policy of the statute

Motion overruled-


author: Wood, J.

text:
    *Bridgmans v. Wells.
    Justices of the peace have not jurisdiction of real contracts, or where the title to land is drawn in question, hut where it is unnecessary for the plaintiff, in the first instance, to introduce proof of title, in order to make out his cause of action, the justice may have jurisdiction.
    Contracts to clear land, to repair tenements, to build a house, to leave land in good tenantable repair, to pay rent, and the like, are not real contracts, within the meaning of the statute, so as to oust the jurisdiction of justices of the peace.
    Covenant maybe maintained on an instrument not acknowledged or recorded, as required by statute, and therefore defective as a lease, where there has been entry and possession, according to the terms of the instrument.
    Parol proof may be introduced to show such entry and possession.
    This is a writ of error to the Supreme Court for the county of Monroe.
    The record shows the original action was instituted and tried in the common pleas of Monroe county, and appealed to the Supreme Court. The declaration is in covenant, in which the defendant in error declared against the plaintiffs in error, “ for that, whereas, on September 15, 1832, at Monroe county, by certain articles of agreement, then and there made and concluded, by and between the said Elizabeth Wells, of the one part, and said John Bridgman and John H. Bridgman, of the other part, sealed with their re-' spective seals, and now shown to the court here, the' said plaintiff did agree to lease to, a-nd agree to. lot the said defendants have her farm, in Monroe county, being the farm on which the defendants then resided, for the term of five years ensuing April 1, 1833, by which articles of agreement the said plaintiff further agreed to permit the said defendants to clear such quantity of land on said farm as they might wish to clear, by them, the said defendants, leaving the land in good tenantable repair. And the said defendants did, then and there, thereby covenant and agree to deliver up said farm to the said Elizabeth, at the expiration of the term of five years, in good tenantable repair.
    *The declaration then avers the entry of the defendants, and enjoyment for the term; that they cleared forty acres of the land ; and assigns for breach they did not leave it in good tenantable 'repair, but cut and carried away all the valuable timber, trees, etc, There is also another breach that the farm was not surrendered in good tenantable repair.
    The defendants plead: 1. Non est factum,; 2. Performance of the covenant; and gave notice of set-off.
    The cause was submitted to a jury in the Supreme Court, at the October term, 1842, and verdict and judgment for the plaintiff for $59.08 costs.
    On the trial, a bill of, exceptions was taken, which shows that the plaintiff, to maintain the issue on her part, offered in evidence to the jury a certain writing obligatory, in substance as follows : “ Article of agreement made and agreed upon by and between Elizabeth Wells, of the one part, and John Bridgman and John H. Bridgman, of the other part, witnessoth, that the said Elizabeth Wells doth lease to and agree to let the said John and John II. Bridgman have, for the term of five years, ensuing April 1, 1833, her farm, etc., the same on which the said John and John II. Bridgman now resides; they also have the privilege of clearing what land they wish, by leaving it in good and tenantable repair. For, and in consideration of which, the said John and John H. Bridgman, on their part, agree and bind themselves, their heirs or executors, to pay the said Elizabeth Wells seventy dollars for each and every year they may have said farm in possession, and, at the expiration of the same, also to pay the taxes on said farm, and deliver it, in good and tenantable repair, at the expiration of said term; and, should the said Elizabeth soli said farm, the said Bridgmans agree to deliver the farm to her, the said Elizabeth Wells, they having secured any crop or crops which they, the said Bridgmans, may have on the land, at the time of being notified of said sale; or, should the said Elizabeth Wells die before the expiration of said term, they, the said Bridgmans, agree to give the farm up to the heirs of said Elizabeth Wells, they, the said Bridgmans, having the ^privilege of securing their crops, as before mentioned. In witness whereof, we have hereunto set our hands, and affixed our seals, September 15, 1832.
    “ Elizabeth W ells, [Seal.]
    John Bridgman, [Seal.]
    John H. Bridgman. [Seal.]”
    “ In presence of us: L. M. Gale,”
    The instrument was neither acknowledged nor recorded.

      To the admission of which said writing obligatory tho counsel for the defendants objected, but the court overruled the objection, and permitted the same to go in evidence to the jury; and the plaintiff having given oral testimony of tho possession and occupancy, by the defendants, of the premises in said writing obligatory mentioned, for the term therein mentioned, being five years, and t'hat said premises wore delivered up, not in good tenantablo repair; .and the defendants having given testimony as to the repairs of said premises, at the time .they were surrendered, the counsel for the defendants asked tho court to instruct the jury that they could not legally find for the plaintiff, unless they found that the defendants entered upon said promises, and wore possessed thereof for the term of five years, and that such entry and possession could only be proved by a valid lease of said premises to the defendants for said term, and the entry of defendants under and by virtue of such lease, and that there was no evidence of such valid legal lease and entry before them, which instruction the court refused to give. To which opinions of tho court, in admitting said writing obligatory, and refusing to instruct tho jury, the counsel for the defendants excepted.
    These errors wore assigned :
    1. The rendition of judgment for full costs.
    2. The admission of the said writing obligatory in evidence to the jury.
    3. In admitting evidence of the use and occupation of the premises in question to go to the jury.
    Cowan & Jewett, and Mason, for plaintiff in error.
    *Henry Kennon, for defendant in error.
   Wood, J.

Whether the first assignment for error is sustainable or not depends entirely on the inquiry, whether the cause of action was within tho jurisdiction of a justice of. tho peace. Tf it were, as the damages recovered are less than $100, the plaintiff, by statute, is prohibited expressly from a judgment of costs.

Was the cause of action within such jurisdiction? It is provided by statute that a justice of the peace shall have no jurisdiction where the title to lands and tenements may be drawn in question except in trespass. Swan’s Stat. 525.

The language of the statutes previously, and up to 1824, is different in form, though, perhaps, not in substance. The words are, “where the title to land is drawn in question,” the jurisdiction of the justice is excluded. It was, doubtless, the intention of the legislature to use the verbs “maybe” in the act nowin force, in the same sense precisely that the verb “ is ” was employed in former acts. It could never have been designed to givo a defendant the option to oust the justice of jurisdiction in small suits for rent, for not making repairs on notes, bonds, or bills given for real property, and many other cases which might be supposed, because a defendant, with no merits, but solely to defeat a plaintiff, might set up, in bar, that he had no title to the land conveyed. In 4 Ohio, 21, this court say: “Certainly a matter so important as the jurisdiction of a court ought to have some rule of general application, and not be left in the power of a party, at any time, to preserve or destroy it.” The rule is this, as wo understand it: Where the plaintiff, in order to sustain his case, is compelled, in the firat instance, to prove certain facts, or to disprove them, and those facts, or either of them, is title to lands or tenements, the jurisdiction is excluded, except in trespass; but where it is unnecessary for the plaintiff to introduce such proof, the defendant can not, by its introduction, take away the jurisdiction.

* Another provision in the same statute, in like manner ex-eludes the jurisdiction of a justice in actions on contracts for real estate. Swan’s Stat. 525, see. 106. And it is contended the instrument declared upon, comes at least within the one or the other of these provisions. A contract for real estate, in the sense in which the words aro used in their ordinary acceptation, would mean some bargain or agreement for the purchase or conveyance of real property, or,, at most, some chattel real, or some interest in, or growing out of them. A contract to clear land, to repair a tenement, to build a house, to leave a farm in good condition, are all contracts for labor to be done on real estate, but not for the real estate itself, and are not, therefore, excepted from the jurisdiction of a justice. It can not, certainly, with any propriety, be claimed that a covenant to surrender up the land of A., in good tenantable repair, is a covenant for the land of A., or any interest in it, unless the meaning of language is most strangely perverted; and it is a reasonable inference that the legislature know at least the ordinary meaningof words, and employ them in thatsense. Wo therefore come to the conclusion, the jurisdiction of a justice was no; excluded in the case before us, by either of the statutory provisions, and that the judgment for costs is erroneous.

The other assignments for error may be disposed of with few words. The instrument declared upon is not, in fact, described in the declaration as a lease, but as a covenant to lease, on the part of Wells, and a covenant to- surrender up and leave in good tenantable repair, by the Bridgmans. As a lease, the instrument is invalid for the want of an acknowledgment, and another witness. It passed no term to the defendants below. It was defective by reason of its improper execution. If, however, the defendants entered and enjoyed the term, as the testimony clearly proved, their covenant was a valid personal covenant to surrender up the possession in good tenantable repair; and there is no substantia! variance in the legal effect, between the instrument declared upon as a personal covenant and the one set out in the bill of exceptions. *It follows that it was properly admitted to go to the jury.

The parol evidence was likewise legally received to prove the entry and enjoyment of the defendants. As the lease was defective to pass the term, neither the covenant to pay rent, nor surrender the possession were of any obligation without such proof, but with it, they were both .valid, and could be enforced.

The instruction to the jury, prayed for, would not, under the evidence, have been the law of the case, and was properly refused.

The judgment of the Supreme Court, quoad the damages, must be affirmed.

Judgment reversed as to costs, and affirmed as to the residue.


text:
    Joseph S. Lake v. The Columbus Insurance Company.
    Where a policy of insurance contained the following proviso, “provided that the insurers shall not bo liable for ally partial loss on salt, grain, fish, fruits, hides, skins, or other goods that are perishable in their own nature, unless it amount to seven per cent, on the whole aggregate value of such articles, and happen by stranding,” no recovery can be had for any partial loss of grain, unless the loss bo occasioned by the vessel stranding.
    Where a loss is occasioned by the vessel striking upon a rook, and bilging, without remaining stationary, it is not a loss by stranding.

      This was a suit upon a policy of insurance, reserved from the Supreme Court of Franklin county, for decision in bank, upon the following agreed statement of facts:
    “ That on November 11, a. d. 1839, the defendants, in due form, executed the policy of insurance to the plaintiff, which is made part of the agreed case, and marked A. That on November 9,1839, the plaintiff put on board the schooner ‘Buffalo,’ Rosetty, master, 5,254 and 13-GO bushels of wheat, as per bill of ^lading, marked B, which bill of lading is made part of the agreed facts in this case. That said schooner — on board of which, from the bill of lading, were placed said 5,254 and 13-60 bushels of wheat, the property of the plaintiff, and which were to be delivered to consignees, Kingman and Durfee, Black Rock, as per said bill of lading — struck a rock and was injured, and her cargo damaged, on November 13,1839, as set forth in the affidavit and notice of protest of Augustus Rosetty, master of the ‘ Buffalo,’ marked C, and made part of this case. The instrument of protest, dated April 21, A. d. 1840, marked D, is also made part of this agreed case. The paper marked E, is admitted to be a true account of the sale and net proceeds of the damaged wheat of the plaintiff on board the ‘ Buffalo,’ and is miado a part of this case, marked as above. It is agreed that the loss is a partial one. Neither party is to be prejudiced by the clause relating to arbitration. Defendants claim that the loss was not covered by the policy.
    “ If, from the above facts, the court is of opinion that the plaintiff is entitled to recover, judgment is to be entered for the plaintiff for the amount mentioned in the policy, with interest and costs, deducting the net amount made by salo, as per paper E; but if the court should be of opinion that the loss, as appears by said papers, was not covered by the policy, then judgment is to bo entered for the defendants, and costs.”
    So much of the policy as is deemed material is as follows:
    “ Touching the adventures and perils which the said insurance company are contented to bear and take upon them in this voyage, they are : of the seas, fire, enemies, pirates, assailing thieves, restraints and detainments of all kings, princes or people, of what nature or policy soever, barratry of the master (unless the insured be the owners of the vessel) and mariners, and all other losses and misfortunes which have, or shall come to the damage of the said wheat, or any part thereof, to which insurers are liable; provided that the insurers shall not be liable for any partial loss on hemp and flax, unless the loss amount to twenty per cent, on the whole aggregate value of such articles ; *nor for any partial loss on sugar, flax-seed, bread, tobacco, and rice, unless the loss amount to seven per cent, on the whole aggregate value of such articles ; nor for any partial loss on salt, grain, fish, fruit, hides, skins, or other goods that are esteemed perishable in their own nature, unless it amount to seven per cent, on the whole aggregate value of such articles, and happen by stranding.”
    The policy is dated November 11, 1839, and insures 84,203.33, on 5,254 13-60 bushels of wheat.
    The bill of lading, JB, is in the common form.
    Paper C is the affidavit of Augustus Rossetty, master of the schooner Buffalo, on board of which was the wheat of the plaintiff. He says: “ Went into Buffalo creek for the purpose of getting a pilot to pilot me down the river, to the mills in the lower village of Black Rock. This morning, sailed from Buffalo creek. When we entered Black Rock harbor we took in the mainsail, and run in under the foresail and jib; and when we got opposite the first mills the pilot cried out, 1 hard u}), and keep her away;’ but she refused her holm, and struck a rock, knocking a hole in her. The water came in so fast that we could not keep her free, and thought best to run her on the towpath, and, doing so, grounded; and fearing damage of cargo, enter this notice,” etc.
    The paper D, which contains a more detailed account of the disaster, is the affidavit of the captain, Rossetty, and of two seamen, Campbell and Nagle. “Shortened sail on entering the harbor. On nearing the Frontier Mills, she struck on a rock .or stump. On examining the forecastle, the water came in so rapidly, attempted to run her on the towpath, but she grounded. Fearing damage to the vessel and cargo, noticed protest, with liberty of entei’ing the same. After which, opening her,- found her mostly full of water. Immediately employed men and lighters, and commenced unlading said schooner. The wheat being in a damaged and perishable condition, sold it to the best advantage, (or account of whom it might concern,” etc. “ On heaving down the schooner, after unlading, *found the planks stove in, making a hole about four feet square.”
    The bill of sale of the wheat gives the sum of 81,291.88, as net proceeds of sale.

      G. Swan, for plaintiff:
    We claim a right to recover, first, upon the ground that the policy expressly covers, not only a general, but a partial damage by perils of the sea, and by all other losses and misfortunes which could happen to the wheat; and, secondly, that if there was a stranding of the vessel, and a loss by that, exceeding seven per cent., that then we are entitled to a judgment in our favor.
    The words of the policy are general terms, including all cases. There is no exception or condition to a total or partial loss by the perils of the sea, or other misfortunes, but in one single case, and that is “ stranding.” Wo say nothing about construction. The very language of the policy is, “we insure your wheat against general and partial losses by perils of the sea, and all other misfortunes, and will pay you for all such losses, except they shall happen by stranding of the vessel, and then we will pay you, if the damages amount to seven per cent, upon the whole value of such perishable articles as you see enumerated in the policy.”
    No dispute can possibly arise but what the damage,‘in part, to the wheat was the consequence of the vessel’s striking “a stump or rock,” or of grounding in attempting to run her upon the towpath. The testimony and facts show this in the most conclusive manner. It appears by the paper D, that the wheat, in the damaged state, was sold by the captain, Rossetty, “to the best advantage, for account of whom it might concern.” That this was all done in good faith, and without barratry, and also that it was for the advantage of .the underwriters, is not disputed. Upon this branch of the subject no question, as to the right of the plaintiff to recover as lor a total loss, can arise, but whether there was a technical abandonment to the underwriters? The authorities are conclusive that, under such circumstance, *the sale of the wheat was lawful by the captain, and that it was vested in the purchasers, and that, consequently, no formal abandonment by the insured was necessary.
    The case of Idle v. The Royal Exchange Assurance Company, 8 Taunt. 755; 4 Eng. Com. Law, 272; 3 Moore, 146. The action was on a policy of insurance upon the ship and cargo, from Quebec to a port of discharge in England. The ship, on her voyage down the St. Lawrence, having, by unavoidable accident, sprung a leak, and all efforts to get her into a place of safety having tailed, was run on shore and stranded. It was the opinion of all that it would be for the interest of the insurers to have tho ship and cargo sold. Tho captain sold both at auction. The transaction was admitted to bo a fair one. The court decided that no abandonment was necessary before the action. It was also deter mined that a right to sell ship and cargo exists, in cases of necessity, and that there is no distinction, when circumstances make it for tho interest of the parties to have a sale, between an insurance upon ship and goods, and one upon freight. So, when a ship is injured by the perils of the sea, and not repairable at all, or when tho expense would exceed the value when repaired, the assured may recover for a total loss, without abandonment. 2 Barn. & Cress. 691; 9 Eng. Com. Law, 224.
    In the case of Gordon v. Mass. Fire & M. Insurance Co., 2 Pick. 249, it is held, that-if the sale of a vessel insured was necessary, it would constitute a total loss without abandonment. “ The money arising from the sale,” says the court, “must be held by the master to the use of the underwriters. It is their property without 'any abandonment; and if it come to the hands of the insurer, it may be deducted from the loss as so much paid — this being what is called a total loss with benefit of salvage.” The coui’t, too, in this case, says, that the principle is the same as to tho cargo. Here the necessity for the sale is not questioned. The property has passed out of tho plaintiff, by a sale which is warranted by the rules of law, and no imaginable advantages could result from a formal abandonment. It was for the interest of the insurers that the wheat ^should have been sold; for, without a sale, it would have been their total loss. So, in Mullet v. Shedden, 13 East, 304, where an American had insured for a voyage from Calcutta to America. The ship was seized, and the cargo condemned and sold, by order of the court of admiralty, where sentence was afterward reversed on appeal, and the property ordered to be restored, it was held a recovery could be had on the policy for a total loss, without notice of abandonment. Lord Ellenborough appears to think it might be doubtful whether a notice of abandonment would not have been necessary, if the saltpetre, in its damaged state, had been restored to the owner before a recovery could have been had for a total loss; but he remarked that, “here the property" (which had been sold exactly as in our case) “was wholly lost to the owner, and therefore the necessity of an abandonment was altogether done away.” So, in 5 Pet. 604, Justice Johnson adopts the case of Gordon v. Mass. Fire & M. Insurance Co., as founded upon “pretty substantial reasons.” See also 2 Dallas, 280; 2 Johns. 150; 15 East, 13.
    The second branch of the first proposition, to wit, that we have a right to recover, at all events, for a pai’tial loss by perils of the sea, is clear. Let us refer to the language of the policy. “The said insurance company are contented to take and bear upon them, in this voyage, the perils of the seas,” etc., “ and all other losses or misfortunes which have or shall come to the damage of the said wheat, or any part thereof, to which insurers are liable.” Now. the condition and exception is this, and this only, that if a misfortune should happen by stranding; if the wheat should be damaged by stranding — expressly, partially damaged by stranding— the underwriters would be liable for that partial damage, if it amounted to seven per cont. upon the aggregate value. Thus the insured has his remedy under this policy, first, when there should happen a total loss by perils of the sea, or other misfortunes; and, secondly, when there should be a partial loss by stranding, amounting to seven per cent. Such are the express and unequivocal terms of the policy.
    *The general rule of construing instruments, when there are exceptions, is to let the exception control it as far as its words ex-' tend, and no farther; and then, upon the case being taken ora of the letter of the exceptions, the deed operates in full force. 7 Term 216, note a. To apply this to the present case, by the general terms of. the policy, the underwriters would be liable for general losses by the “perils of the sea, and all other losses and misfortunes;” but by the'condition and exception, they are not liable for a partial loss, unless it amount to seven per cent, and happen by stranding. Therefore, if there is nastranding in the case, the damage has happened by “the perils of the sea,” or has been caused by “other losses or mislortunes,” and consequently the insurers are liable, either; for the total loss; for that, without the exception, is the express terms of the policy. The principles here contended for, will be found in Burnet v. Kensington, 7 Term, 210. It does not appear that, on board the schooner Buffalo, there was any other memorandum article specified in the policy, or any other “ goods which could be esteemed perishable in their own natures,” except the plaintiffs wheat. No question, therefore, can arise as to the loss amounting to seven per cent., as the loss upon the wheat is admitted to be much greater than the amount, and, in that particular, the exception has clearly happened.
    Will these defendants insist that their policies covered only a single kind of loss, namely, “stranding?” Will they say their object was to deceive and defraud the community? And now, if the instrument was ambiguous, and its meaning had to’ be reached by construction, would the court so interpret it, that the underwriters should receive $31.52 premium for insnring against stranding alone, from Cleveland to Black Rock? But here the insurers have expressed, in unambiguous terms, what “perils they were content to bear and take upon them,” and they are, “ all losses and misfortunes which have or shall come to the damage of the wheat, or any part thereof.” Now this is, indeed, all and every peril and loss which can happen, except one; and instead of the policy covering only a single *poril or loss by misfortuen, namely, stranding, it covers all losses, including stranding ; but when the loss happens by-stranding, there must be an average of seven per cent.; and if there should be a loss by stranding, and not such average loss, then the assured shall recover nothing.
    The form of this policy is precisely that set out in Park on Insurance, 24, and which that author says has been in use two hundred years'. Id. 15. The only difference between this and the English former policies is, that in the exception and memorandum articles, this, in speaking of the partial loss and general average, puts the loss upon a general average and stranding; whereas the latter exempts the underwriters from partial loss unless they arise from a general average, or the stranding of the ship.
    We would refer to a learned exposition of the various parts of a policy, to 2 Bur. 1172 ; also to Park on Insurance, chap. G, 98.
    Wo shall, therefore, proceed to the second proposition. We insist that the loss was by the stranding of the ship, and having exceeded seven per cent, upon the aggregate value, that we are entitled to recover for the partial loss, in the language of the policy, “ on a general average.” What is stranding? Its ordinary, as well as legal meaning is, running upon the shore. The stipulation in the policy is to bo answerable if the ship should be stranded. There is no qualification to the agreement in this respect, nor is there any provision that the stranding should take place without, or in consequence of perils of the seas or other misfortunes; and we are sure, if the court should hold the defendant to be only answerablo for loss in this way, the judges will n'o’t be supposed very greatly to desire tho escape of the corporation, by straining a. point of construction so that it may altogether elude responsibility.
    The form of the English policy will be found in Dark on Insurance, 460, appendix; 4 Wend. 33; 8 Mass. 494.
    The defendant, wo suppose, claims that the wheat was injured by the striking against a “ stump or ;ock,” and that the subsequent stranding caused no damage. In escaping from this, we suppose, he is caught upon tho first horn of the dilemma which we have presented.
    *When there is a claim resulting from a clause of general average (and this is precisely our case upon this point), and the jettison does not save the ship, but she afterward perish in the storm, there shall be no contribution. Park on Insurance, 123. So, if a partial loss happen by stress of weather, and afterward a subsequent total loss by capture, the whole loss will be attributed to the last peril. Rice et al. v. Homer, 12 Mass. 230; Dorr v. Union Insurance Company, 8 Mass. 494. This is an undisputed principle of the mercantile law, that when there are two misfortunes, either of which would subject the underwriters to loss, it will be always attributed to the last peril.
    Now let this principle apply to the case under consideration. Hero was a misfortune insured against in the body of the policy, namely, perils of the sea. The ship struck a stump or a rock, without the smallest blame that can be attributed to tho commander or crew, and bilged. This was instantly perceived, and the ship intentionally and necessarily stranded, or if tho defendant prefer, accidentally stranded. Indeed, it is of no consequence how the stranding happened, for if intentional and unnecessary, then it would be barratry, and that is covered by the policy in express terms. “ The memorandum,” says Lord Kenyon, in the case of Nesbitt v. Lushington, 4 Term, 787, “is inserted in all policies to prevent disputes, and by it the underwriters expressly provide that they will not pay the average on these articles unless it be general, or the ship be stranded. When the ship is stranded, then the underwriters agree to ascribe tho loss to the stranding, as being the most probable occasion of the damage, though that fact can not always be ascertained.” The same principle is fully sustained in the case of Burnett v. Kensington, 7 Term, 219.

      In tho case at bar it is not pretended the wheat was injured before the vessel struck tho “stump or rock;” and as far as it appears from the facts, the vessel was almost instantaneously stranded in an attempt to run her upon the towpafh. The *bilging of the schooner and the stranding were, emphatically, one act.
    A jury found that stranding was when tho vessel took to the ground and bilged. 7 Term, 210; finding of the jury, 212 ; of the court, 221.
    Cartillon v. London Assur. Co., cited in Wilson et al. v. Smith, 3 Burr. 1553, also recognized as law, in Park on Ins. 21, and 2 Phillips on Ins. 468; held, that a ship run aground was stranded within the meaning of the memorandum.
    Thompson v. Whetmore, 3 Taunt. 227. Where a vessel was fastened bj? a rope to the pier and took the ground, it was not considered a loss by the perils of the sea, but by' stranding. 2 Phillips on Ins. 468.
    Bowering v. Elmssie, cited in Burnett v. Kensington, 7 Term, 216. A ship was in such leaky condition that the captain and crew thought it necessary to run her on shore for her own preservation and that of the cargo. Lord Kenyon said: “I think the ship being on shore in the manner sho was, a stranding.” In principle, the case of Bowering v. Elmssie is identical with the one at bar, and the facts are almost exactly the same. Court observed “that the stranding of the ship put the fish” (a memorandum article) “in the same condition as any other commodity not mentioned in the memorandum.”
    In Carothers v. Sidenbotham, 4 Maule & Sel. 77, a ship was stranded, which was laid aground in the river Mersey, on a bank in the north side of tho pier. Lord Ellcnborough said: “ The ship has laid upon the strand, and he considered that stranding within the policy.” Here the doctrine was carried to the etymology and definition of the word.
    The case of Rayner v. Godman, 4 Barn. & Ald. 225; 7 Eng. Com. Law, 76. This was a pure question of stranding. It becamo necessary to draw off water, in order to repair the navigation. The master had the vessel placed in the most secure place he could. The water was drawn off, and the ship grounded on some piles in the river. The learned judge was of opinion that this was a stranding, and tho jury returned a verdict for the plaintiff. On motion for a new trial, *all the judges present agreed in opinion that the instructions were right, and that this was a loss by stranding.
    Barrow et al. v. Bull, 4 Barn. & Cress. 736; 10 Eng. Com. Law, 451, is exactly in point. The ship, while entering the harbor, was observed, to have struck something, b.ut her progress was not impeded. Sho was moored in the harbor, under the pilot’s directions. She soon sprung a leak, and was warped up to prevent hor from sinking. She was drawn upon the ground by .means of warps. The court, upon the authorities of Burnett v. Kensington, 7 Term, 210; Harman v. Vaux, 3 Camp. 429; Dobser v. Bolton, Marsh. on Ins. 231; Park on Ins. 187; 1 Brod. & Bing. 388; 4 Maule & Sel. 77, gave their opinion that the ship was stranded.
    Bishop et al. v. Pentland, 7 Barn. & Cress. 219; 14 Eng. Com. Law, 33. The case was this: The vessel was compelled to put into tide-water, and was there moored. She was also fastened by tackles. When the tido loft the vessel the rope broke, and she fell upon her side and was injured; held a stranding, and the underwriters liable, although the stranding might have been occasioned, remotely, by negligence. The court say: “ The proximate cause must govern in the recovery.”
    There is a very late case, Wills v. Hopwood, 3 Bar. & Adolph. 20; 23 Eng. Com. Law, 23, where all the prior cases are particularly and very ably roviewed, and where the above-cited cases liiave received the sanction of the court, and are affirmed. A vessel got her forepart upon the bank, and did not ground entirely on the mud as was the custom, but on a bank of stones, and rubbish, and sand. The vessel sustained damage by straining, and the cargo became damaged; held, that this was a stranding, and that the plaintiff could recover. The rule laid down by Lord Tenterden is this: “ But when the ground is taken under any extraordinary circumstances of time or place, by reason of some unusual or extraordinary circumstance, such an event shall be considered a stranding.” Ib. 25.
    *Tbe court will at once see the application of these cases to. the one at bar. Indeed, they are as obvious as language can make them. 2 Phil. on Ins. 467. There is another principle of law which makes in favor of the plaintiff, namely, that in all cases arising upon policies of insurance, the losses are to be attributed to the proximate; and not the remote causes. The doctrine is oxpressly laid down by the Supreme Court of the United States, in Watters v. Merc. Ins. Co., 11 Peters, 223. I have nearly quoted the language of the court in giving their opinion.
    So in the Patapsco Ins. Co. v. Coulter, 3 Peters, 237, is thesamo doctrine. The court say that it is a general principle of maritime law, that the loss shall be attributed to the proximate of two or more causes.
    In Lenie v. Janson, 12 East, 648, Lord Ellenborough said that if a ship meets with damage so as to retard her sailing, so that she is taken by the enemy, though she would have arrived safely but for the sea-damago, the loss is to be ascribed to the capture, not the sea-damage. This is upon principle laid down in the au thorities, that causa próxima non remota spectatur.

    Now, if running upon the shore is not stranding, we would ask what would be? It comes within every definition of the term that can be found, common or mercantile. The policy does not provide that if the stranding should take place by reason of peril of the seas, or by reason that the vessel should be in danger of foundering from bilging, as in this case, that the underwriters should be discharged. The identical loss, that the defendants engaged to indemnify against, has taken place. Of this no doubt can exist, if precedents aro to be regarded in our own, or foreign courts.
    Taking this contract in the largest sense, what is it? Why, its legal effect, it is said, is to protect the underwriters from all partial losses, except that of stranding. Be it so. Here is a stranding. There is not an authority to be found which gives the smallest countenance to the doctrine, that the stranding must not take place in consequence of some injury *in the course of the voyage. Indeed, nearly every stranding does take place by reason of injuries at sea. The doctrine is, that the insured is entitled, in all cases, to receive compensation for deterioration, happening by stranding.
    Swayne and Bates, for defendant:
    Upon the facts of this case the question is, did the loss happen by stranding?
    It did not, unless striking the stump or rock, without remaining upon it an instant, constitutes a case of stranding; for it was by that that the loss was produced.

      What is “stranding?” Upon this point, we refer to the following authorities:
    A stranding, in the sense of a policy, is when a ship takes ground, not in the ordinary course of navigation, but by accident, or the force of the wind or sea, and remains stationary some time. 3 Kent’s Com. 323.
    A stranding takes place when a ship, being driven by the wind or sea, and taking ground, remains stationary some time. The term implies a settling of the ship;' some resting, or interruption of the voyage. So that, pro tempore, the ship may be considered as wrecked; a mere instantaneous stoppage does not constitute a stranding. And, therefore, where a ship, on coming out of the port of Now Grimsby, struck upon a rock and fell upon her beam ends, but remained upon the rock only a minute and a half, this was not a stranding. Hughes on Ins. 230.
    These elementary principles are fully sustained by the following cases, which it is deemed sufficient to refer to. McDoug. v. Roy. Ex. Ass. Co., 4 Mau. & Sel. 503; Bishop v. Pentland, 7 B. & Cr. 219; S. C., 1 Man. & R. 49; Hearne v. Edmonds, 1 Brod. & Bing. 338; see also 4 Camp. 283; S. C. 1 Stark. 130.
    We may safely admit, for the sake of the argument, that there was a stranding when the vessel grounded; but our answer to that is, that the loss did not happen thereby, but by a *previous occurrence, that is, by striking upon the rock or stump.
    If the language of this policy were the same as that of the English policies, the result would be very different.
    There the language is that the insurer shall not be liable “ unless the vessel'be stranded.” Under such policies it is held, that if the stranding occur the insurer is liable, no matter whether the stranding caused the loss or not. Hughes lays great stress upon the phraseology, and admits fully the distinction here relied upon. He says (Hughes on Ins. 230, 231) :
    “ When a stranding of the ship occurs, the common memorandum does not impose any restriction to the underwriter’s liability. The meaning of the words, ‘ or the ship be stranded,’ is, that if the ship be stranded in the course of the voyage, the underwriters are liable for a partial loss, whether it arises from the stranding or any other cause within the scope of the policy. The words operate by'way of condition, or rather, perhaps, as expressed by Lord Konyop, by way of ‘ exception.’ And the rule of construing an exception is to allow it to control’ the instrument as far as the words of exception extend and no farther; and then, upon the case being taken out of the letter of the exception, the body of the instrument operates in full force. How, the words of the exception are not ‘unless by stranding,’ or ‘unless the damage arise in consequence of stranding,’ but simply (i. e. or unless) the ship be stranded. And, therefore, if an insurance be effected on fruit, with the memorandum, corn, fruit, etc., warranted free from average, unless general, or the ship be stranded, and the ship be in fact stranded in the course of the voyage, the underwriters are liable for the average loss arising from the perils of the sea, although no part of the loss arise from the act of stranding.”
    The preposition, that the proviso or exception in this policy., above quoted, constitutes the contract of the parties to its ful!f extent, notwithstanding the generality of the terms which precede it, is fully supported by the case of Burnet v. Kensington, 7 Term, 217.
    *It will be found, also, fully to recognize the distinction upon which we insist, as arising upon the peculiar phraseology of the proviso in this policy. In that case the language of the exception was different.
    . The following authorities will be found to throw some light upon the subject:
    A just regard must be had to ,the language which the parties employ, and no strained or unnatural sense must be ascribed to the prejudice of either party. Dow v. Hope Insurance Co., 2 Hall, 166; 2 N. Y. Dig. 149.
    Especially should attention be paid to written clauses introduced into policies for special purposes. Ib.
    A policy of insurance, like any other contract, is to be construed by the popular understanding or the plain and ordinary sense of the terms employed, unless those terms have received a legal construction or have acquired a technical meaning in reference to the subject matter of the contract. Dow v. Whellen, 8 Wend. 160; N. Y. Dig., Ib.
    The object of introducing the memorandum into the policy undoubtedly was, to protect the underwriters against injuries arising to particular articles from inherent decay; but it does not follow that the excepted risk is to be confined to tiróse injuries only. If the insurer, for the purpose of guarding against natural decay, lias made the exception broad enough to include other losses, he is entitled to exemption from every risk which is plainly and especially included in the exception. Wadsworth v. Pacific Insurance Co., 4 Wend. 38.
    An underwriter is not liable for a partial loss on memorandum articles, except for general average, unless there is a total loss of the whole of the particular species, whether the particular article be shipped in bulk or in separate boxes or packages. Ib.
    There must be an actual, as distinguished from a technical total loss. Leroy v. Governeur, 2 Johns. Cas. 226.
    Where a vessel was insured, excepting French risks, and was captured by a French privateer, and after being detained four days was recaptured by a British frigate as French property, *it was held that the insured .could not recover. Roget v. Thurston, 2 Johns. Cas. 248.
    The policy contained a clause that the insurers took no risk in port but sea risk ; the vessel, while in port, was driven on shore and stranded, so that she could not be got off unless at an expense exceeding half her value, and was taken possession of, and burned by an armed force ; but there being no evidence that the cargo had been injured by the stranding, it was held that the loss was not occasioned by sea risk, but was to be attributed solely to the subsequent burning. Patrick v. Commercial Insurance Co., 11 Johns. 14; New York Dig. 202.
    In every question of loss demanded upon a policy of insurance, it is the immediate and direct, not the remote or contingent cause of the loss, which is to be regarded in stating and maintaining the title ol the assured to recover upon the contract. Delano v. M. I. Insurance Co., 10 Mass. 347; Law v. Goddard, 12 Mass. 112; Rice v. Homer, 12 Mass. 230.
    By the terms of a policy the underwriters were not to be liable for a partial loss on grain, etc., unless the damage should happen by stranding or bilging. In a hurricane, the ship was thrown upon her beam ends, and in consequence of excessive straining, her seams opened, whereby a great quantity of water was let into the ship, but no fracture was made in her bottom. Held, that this was not a bilging within the meaning of the policy. Ellery v. Merchants’ Insurance Co., 3 Pick. 47.
    The policy ip this case seems tp have been like that under consideration, except that the underwriters did not limit their risk to losses by stranding, but included those by bilging also.
    The cases cited by the opposing counsel do not, we think, affect the positions upon which we rely. In none of'them was the queS' tion considered, whether the loss “ happened by stranding.”
    The case cited by him, Burnet v. Kensington, 7 Term, 217, is relied upon by us also. This point was there adverted to, and the case was ruled against the underwriters, upon the different phraseology of the policy. It was admitted by the clearest implication, if not expressly, that if its language had been the same as in this case, the result would have been different.
    *The cases cited by him, upon the point of stranding, are mostly the same as those cited by us.
    They show clearly that there was no stranding of the vessel by its striking upon the rock.
    That was the “proximate cause” of the injury to the wheat, and the only cause. As the parties have made their contracts, so it must be construed, and it was no more unfavorable to the plaintiff, than was the contract in 3 Pickering, above cited, to the assured.
    It is not necessary to discuss the reasons why the insurers chose to put in this clause as to wheat, and other memorandum articles. It is sufficient that it is there. It speaks for itself, and can not be misunderstood.
    As before remarked, the only question in this ease is, “did the loss complained of happen by stranding ? ”
    We say it did not, because:
    1. It happened by “ bilging.” 3 Pick. 46.
    2. It happened before the stranding occurred, and, of course, could not have happened by it.
    3. The same cause produced the injury to the wheat, and the stranding of the vessel, the former being prior in point of time.
    4. The stranding, instead of producing the loss, prevented it from being greater.
    5. In no possible sense was the injury to the wheat caused by stranding. Wo think it would be an utter perversion to the contract, and of the evidence, to hold the insurers liable in this case,
   Birchard, J.

This suit is upon a policy of insurance, and is submitted to the court on the papers, written evidence, and an agreed statement as to certain facts. It presents two questions. What loss does the policy cover? And what is stranding?

That part of the policy under which the controversy arises, is in the following words : “ Touching the adventures and perils which the said insurance company are contented to *bear, and take upon them in this voyage, they are of the seas, fire, enemies, pirates, assailing thieves, restraints and detainments of all kings, princes, or people, of what nature or policy soever, barratry of the master (unless the insured be the owners of the vessel), and mariners, and all other losses and misfortunes which have, or shall come to the damage of the said wheat, or any part thereof, to which insurers are liable; provided that the insurers shall not be liable for any partial loss on hemp and flax, unless the loss amount to twenty per cent, on the whole aggregate value of such articles; nor for any partial loss on sugar, flaxseed, bread, tobacco, and rice, unless the loss amount to seven per cent, on the whole aggregate value of such articles ; nor for any partial loss on salt, grain, fish, fruit, hides, skins, or other goods that are esteemed perishable in their own nature, unless it amount to seven per cent, on the whole aggregate value of such articles, and happen by stranding.”

By the agreed statement it is admitted, that the loss was “ a partial loss,” amounting to more than seven per cent, on the whole aggregate value of the wheat insured. That the sales produced only 81,200.

From the statement, and the evidence, these facts appear: The vessel, on going into Buffalo harbor, struck on a rock or stump, which made a hole in her bottom, four feet long and two feet wide, into which the water ran rapidly; and being under way, the captain and crew attempted to run her upon the towing path, and, in doing so, she grounded ; and, on opening the hatches, she was found nearly full of water. From those facts, it is clear that the immediate or proximate cause of the injury to this wheat and of the partial loss, was the striking of the vessel upon the rock, and bilging. That the vessel itself did not at any time remain stationary upon the rock; and that the running of the vessel aground, so far from occasioning the loss which occurred, was the means of preventing an entire or total loss.

By the terms of the policy, it is stipulated that the insurers shall not be liable for a partial loss, unless it amount to seven *por cent., and happen by stranding; and courts have no power to alter or reform the agreement.

Have the two contingencies named so bapponed as to render the defendants liable? There is a wide difference between the terms of this policy and the words of English policies, to which wo have been referred. Shall not be liable “ unless the vessel.be stranded,” “or the vessel be stranded,” implies that if a stranding happen, the insurer shall bo liable for whatever partial loss may happen, at all events, whether the stranding bo the proximate cause of the loss or not. In this case it was agreed that the partial loss should happen by stranding, or the insurer should not be liable. This is the fair and natural import of the words, and we have no right to change the words or their meaning. It may be presumed that if the plaintiff had read and understood the effect of this clause of the policy, he would not have taken it. It may bo that the change from the usual policies was intentionally made with a design to limit the risk of the underwriter, and to avoid the extent of liability which, ordinarily, the insurer would incur on iacts like these. And it may be that the phrase, “ and happen by stranding,” was insidiously inserted with an expectation that the alteration would not bo noticed. If this be so, we can only regret it, not help it. We can go no farther toward correcting the evil than to point out the difference effected by a slight chango in the words of a policy, and thus call the attention of the public to the subject, leaving it optional with men of business to accept or reject similar policies in future.

But it is claimed that this loss did “ happen by stranding.” In Bishop v. Pentland, 7 Barn. & Cress. 219, stranding was held to bo, when a ship, by accident, is on the ground or strand, and is injured thereby. “A stranding in the sense of a policy is, when a ship takes ground, not in the ordinary course of navigation, but by accident, or the force of the wind or sea, and remains stationary for some time. The vessel'must ground from an accident happening out of the ordinary and usual course of navigation.” Wells v. Hopwood, 3 Barn. & Ald. 20. To constitute a stranding, the vessel must be stationary *some time. In this case it must have remained “aground,” upon the rock or stump, which caused the bilging and loss, a longer or shorter period, so as to check the navigation and interrupt the voyage. A mere instantaneous stoppage does not constitute a stranding. This is well settled by the cases cited by counsel. Taking, then, the definition as settled by authorities, and applying the evidence, it seems to ns clear that the loss was occasioned by a peril of the sea, by the bilging of the vessel while under way.

This brings us to another point urgod by counsel. That for a loss by peril of the sea, there is no exception or condition, and that plaintiff is entitled to recover at all events. The answer to this position is, that in the agreed statement of (acts it is admitted that a partial loss only was sustained ; and in the policy it is agreed that the insurers shall not bo liable for any partial loss on grain, unless it amount to seven per cent, on the aggregate value, and “ happen by stranding.” True it is that defendant expressly agreed to bear all losses and misfortunes which have, or shall come to the damage of the wheat, or any part thereof, in the words stated by counsel; but the proviso follows it, aod excepts from the operation of these broad terms, all kinds of partial losses, unless happening from the one cause. Judgment for defendant.


text:
    *Wilson and Marsh v. Fleming et al.
    "Where an equitable estate is conveyed to husband and wife, they hold as tenants in common. Upon the wife’s death, the husband surviving, he does not take the whole by the survivorship, hut her moiety descends to her heirs.
    So, if the husband die first, the wife does not take bysurvivorship, but a moiety descends to his heirs.
    The husband may, during the life of the wife, convey a moiety of such estate.
    There is no case in Ohio where one takes the whole estate by survivorship, as in joint tenancy.
    This is a bill in chancery from Muskingum county.
    The state of the case is this : George Jackson contracted, under band and seal, to convey to his son, William L. Jackson, and his wife, Harriet Jackson, their heirs and assigns, certain land, described in the bill. He also devised to his said son ono-eighth part of all his estate. The father died in 1831.
    In 1834, the son, William L. Jackson, executed a deed of trust of the land in question, and all his interest in his father’s estate, to one of the defendants, Jesse Jarvis, to secure the debts of certain creditors, who are made defendants.
    In 1836, William L. Jackson died, leaving the said Harriet his widovv. She has since intermarried with the defendant, Stench-comb. In one aspect of tho bill, it seeks to subject the land, so contracted tobe conveyed, to the payment of the creditors named in the deed, among whom are the complaiuants.
    The complainants claim that, by the agreement to convey, William L. Jackson and his wife became tenants in common of tho estate thus created, and that the undivided moiety thereof, by the deed of trust, passed to the trustees, and is subject to the debts of the complainants, and tho other creditors named in the conveyance.
    The defendant, Stenchcomb, contends that, on the death of her husband, the said Harriet took the entire equitable estate. This is tho controversy.
    *Goddard and Convers, for complainants:
    Wo claim, on behalf of the complainants, creditors under the deed of trust of William L. Jackson, deceased, mentioned in the bill, that, by the agreement of George Jackson, binding himself to convoy the land therein mentioned to his son, William L. Jackson, and Harriet Jackson, wife of William L., they became tenants, in common, of the equitable estate thereby created, and that, therefore, tho one undivided half of that estate passed to the trustee named in the deed, and is subject to tho claims of these complainants, and the other creditors provided for in tho deed of trust.
    If tho land had boon conveyed by an instrument of proper form to pass tho legal title, as by a deed or will, executed with the formalities proscribed by law, the case would not admit of doubt. The law, as applicable to gifts of land to husband and wife, when limited by a conveyance in legal form, was declared, as long ago as the yoar 1825, by this court, in the case of Sergeant v. Steinberger, 2 Ohio, 305, in which the question was presented upon a devise to husband and wife. For almost twenty years this decision has been regarded and acted upon as a rule of property. It will not now be disturbed, although the reasoning in support of that decision may not be entirely satisfactory
    It is claimed, however, that inasmuch as the agreement in the case before the court is executory only, the instrument not being a formal conveyance at law, the court will apply a different rule. It is true that, in certain special cases, a court of chancery, when called upon to decree trusts to bo settled by formal conveyances and declarations of trusts, in pursuance of articles merely executory, it will depart from the particular forms of expression contained in the executory articles, and direct other words to be employed in the formal instruments, when such departure is necessary to carry into effect the intention of the parties. But then this intention must clearly appear from other language contained in the writing itself. In executory agreements, technical words, *whose signification has been fixed by judicial interpretation, are always taken in a technical sense, unless otherwise declared. The example pat in argument is not correct. Where the executory agreement is to convey “to a man for life, and remainder to his heirs,” a court of equity, in carrying such agreement into effect, will not depart from tho words of this limitation, but will direct a conveyance, with the limitation, in the same words; and thus lot in the rule in Shelley’s case, unless it appears expressly, from other parts of the agreement, that it was tho intention to give tho estate to the first taker for life only, and no longer. It must appear, from tho agreement itself, that the parties did not intend the rulo should apply; otherwise, a court of equity can not assume to say that the words have been used in a sense different from their technical meaning in a formal conveyance.
    It is with a court of equity, in such case, a question of intent, and the intent must clearly appear to be different from that which the words technically impute; otherwise, it will be taken for granted that the words are used in their technical and legal signification.
    But in the case b’efore the court, there is nothing whatever in the agreement of the father showing that his intent was at all different from that which this court declares to bo the intent, in the case of Sergeant v. Steinberger, 2 Ohio, 305, before referred to. He uses tho same language employed in that case, and nothing more. This court can not say that tho intent is different from that which tho court has heretofore declared is expressed by the same words. It is suggested that tho agreement of tho father was a voluntary gift, but there is no evidence of this.* There is nothing to distinguish the transaction, as it now stands before the court, from an ordinary purchase by husband and wife, and such it must bo taken to bo. There is less reason, therefore, for considering it as a provision for the “united family,” than if it were a gift either by deed or will.
    And yet, in case of a gift by will, it was decided, in the above case, in 2 Ohio, that the husband and wife wero tenants in common.
    W. A. Adams, for defendants:
    I claim for Mrs. Stenchcomb, that, upon the death of her late husband, William L. Jackson, the whole of the land belonged to her, and that she is now entitled to the whole of the land, notwithstanding the deed so executed by William L. Jackson.
    If an estate is given to a man and his wife, they are neither joint tenants nor tenants in common; for husband and wife being considered one person in law, they can not take the estate by moieties, but both are seized of the entirety, per tout et non per my-The consequence of which is, that neither the husband nor wife can dispose of any part, without the assent of the other, but the whole remains to the survivor. 3 Bl. Com. 181. And if a grant is made to husband and wife and a third person, the husband and wife shall have one moiety, and the third person the other. 3 Bl. Com. 181; Lit. 291.
    The doctrine of survivorship is abolished in several states, by express statute — in New York, Tennessee, Kentucky, etc. But this destruction of joint tenancy does not apply to conveyances to husband and wife, which, in legal construction, by reason of the unity of husband and wile, are not joint tenancies, but conveyances to one person; and the survivor takes the whole; and neither, during their joint lives, can alien, so as to bind the other.
    The same words which would make two other persons joint tenants, will make husband and wife tenants of the entirety. This is the old law, and continues to this day. 4 Kent’s Com. 362; 2 Kent’s Com. 132; 1 Dana, 37, 243.
    And this is the law of Ohio, notwithstanding the case in 2 Ohio, 305; for I claim that the doctrine of that case is not law, and I ask the court to reconsider the question there decided. It is evident, from the language used by the court in that case, that the matter was not fully understood, or so strange a determination could not have been made. Our ^partition statute only impliedly destroys joint tenancies. It provides that joint tenants may be compelled to make partition. This statute surely can not be construed to compel the severance of an estate owned by husband and wife. The court would not entertain a petition by a husband against his wife, to have partition of an entirety. If not, then all the reasoning of the court fails; for it all proceeds upon the implied destruction of the estate of joint tenancy, and the doctrine of survivorship. But husband and wife are not joint tenants; nor is there any survivorship, for there is but one person. The law, as I claim it, Kent says, continues to this day. It may, as the court say, as to joint tenancies, “ be adverse to the understandings, habits, and feelings of the people:” So are a great many other provisions of the common law, which every lawyer knows to be the law of tho land ; as the rule in Shelley’s caso. So may a statute be adverse to the feelings and habits of tho people. And statutes often are so. But the legislature, and not tho courts, must make the correction.
    Besides, the contract in this case is not executed; and it is necessary that a court of equity should interpose, before a legal title can be had of the land in question. This court will look at the true intention of tho parties, and construe a contract accordingly, though a different construction would be given to tho same words, if employed in a deed, or strictly legal instrument. For instance, if a contract is made to convey land to a man for life, remainder to his heirs, and a court of equity was called upon to enforce that contract, tho court would decree a life estate only to the complainant; whereas the same words, in a deed, would be construed, by the same court, to convpy a fee simple.
   Wood, J.

That, between husband and wife, this was an equitable and not a legal estate, can make no difference, provided the intention to create such legal estate is clearly manifest from terms of the contract.

*It- is said in this case by the defense, that although bus-band and wife, by reason of their unity, can not hold an estate as joint tenants, nevertheless, on the death of either, the other takes, by survivorship, tho whole estate.

Can this principle be maintained? The jus accressendi prevails among joint tenants only, and, when there is no such estate, there is no such survivorship, that is, survivorship for the exclusive bonofit of the survivor; for, though partners may hold by survivor-ship, they hold as trustees for others, as well as (or themselves, and not as joint tenants at common law. Are husband and wife an exception to the general rule ? It has been so decided in some of the states; but the reasoning by which it is sustained is subtle and too much refined; for, while it is admitted that estates in joint tenancy are prohibited by statute, and that husband and wife, by reason of their unity, can not hold in that character, they are treated as quasi joint tenants, and the doctrine of survivorship applies.

It would become necessary to give to the whole subject a more extended research, and a more thorough investigation, wore it not for the decisions Of our own courts, and our well-settled convictions that they are sound law, and therefore ought not to bo disturbed.

In Sargeant and wife v. Steinberger et al., 2 Ohio, it was held that estates in joint tenancy did not exist under our law ; and, say the court, it has been so repeatedly adjudged upon the circuit. "We have, they remark, various statutory provisions inconsistent with any such principle as the right of survivorship, and a joint tenancy of husband and wile is at variance with our law. The court also decide that, under a devise to husband and wife, in caso of her death, her children inherit her undivided moiety, and that they hold it as tenants in common with their father. This decides the case at bar. In Lessee of Mills v. Fisher, 10 Ohio, 1, this court hold that estates in joint tenancy had no existence here. They are, in fact, no longer favorites of the common law in England; for, although they wore, Lord Holt, in 1 Salk. 391, gives us the reason. It was the right of survivorship. *Its policy was averse to the division of tenures, because it tended to multiply feudal services, and weaken the efficacy of that connection. But Lord Hard-wick, long after, in 1 Wils. 165, declared the reason had ceased with the abolition of tenures.

We entertain no doubt that such estates, and their concomitant incident, the right of survivorship, are utterly inconsistent with the genius and spirit of our laws.

It is suggested that this contract to convey was voluntary, and the execution of it, for that reason, can not be enforced in equity. The principle is sound, but the fact is not so. The agreement is under seal, and imports a valuable consideration.

Let a decree be entered for the execution of this trust.

Decree accordingly.