author: J. R. Swan, J.

text:
    Ruth Smith v. Chester Smith.
    A woman, having a husband living at the time of her second marriage, is not entitled to dower in the real estate of her second husband; the second ' marriage being absolutely void, notwithstanding the provisions of the first section of the act relating to divorce, and the seventh section of the crimes act relating to bigamy.
    Petition for dower. Reserved in Delaware county.
    In 1817 or 1818, the complainant, then Ruth Atherton, was married, in Luzerne county, Pennsylvania, to one William Dennis. They lived and cohabited as man and wife one or two years, when they separated, and he went to Susquehanna county, in that State, where he afterwards married and continued to reside until his death, in 1853. In 1826 or 1827, Ruth came to Ohio, and in 1829 was married to David Smith, in Delaware county, and resided with him as his wife until his death, in 1845. During this coverture, David was seized of an estate of inheritance in certain lands, in said county of Delaware, which he conveyed to the defendant Chester Smith, said Ruth not joining in the conveyance. She now claims dower in these premises. Her claim is resisted on the ground that her marriage with Smith was void, as she had a former husband then living.

      Hubbell & Carper, and Sweetzer, for petitioner.

      Finch & Critchfield, for defendant.
   J. R. Swan, J.

It seems to be conceded by the counsel for the complainant, Ruth Smith, that if her marriage to Smith was absolutely void, she is not entitled to dower in his estate. Such is undoubtedly the law; and it is equally well settled, that a second marriage,, as in this case, while the first husband was living, is absolutely void, unless the legislation of this State has rendered such second marriage voidable only.

It is said that the statute which authorizes proceedings to obtain a divorce, “ where either of the parties had a former husband or wife living at the time of solemnizing the second marriage” (Swan’s Stat. 325, sec. 1), does, constructively, render such second marriage voidable only. The fact of a prior marriage may be one of doubt; and hence this provision permits parties to have the subject judicially investigated and determined. Another object of this provision was, probably, to give alimony to the second wife of a man who had a .former wife living. Besides, to render such second marriage valid, or voidable only, until decree of divorce, would require distinct and positive legislation.

No presumptive proof of a divorce between Dennis and his wife exists. Indeed, a divorce being a judicial proceeding of record, we do not see how such a presumption could arise without some proof. There is none.

The petition must le dismissed.


source: Caselaw Access Project

author: Ranney, J.

license: Public Domain

text:
    The President, Directors and Company of the Clinton Bank of Columbus v. Samuel M. Hart.
    A judgment for or against one of tbe several makers of a joint obligation, is a bar to an action afterwards brought against another.
    But not so if the obligation is joint and several.
    In such case, the creditor has the election to treat the obligation as joint or several, and he may sue and recover against each one of the makers separately, or all jointly; but he cannot do both; and hence the recovery of a joint judgment is a bar to separate actions, and separate judgments equally so to a joint action.
    The election of the creditor is not conclusively determined by the commencement of a joint action, and becomes fixed only upon the recovery of judgment against all the joint makers of the instrument.
    Until one judgment, either joint or several, is rendered for or against each of the makers of such an instrument, no merger of the several liabilities of any , one of them, as to whom no judgment has been rendered, takes place ; and a separate action may be sustained thereon.

      The commencement of a joint action, therefore, against all the makers of such an instrument, in which process was only served upon a part, and judgment against but one, is no bar to a separate action against one not served with process.
    In such case, the creditor has his election to sue out a scire facias against such several maker, to make him a party to the judgment against the others, or to commence and prosecute a separate action against him.
    Petition in error to reverse the judgment of the District Court of Fairfield county.
    The original action was assumpsit, brought by the plaintiff in error against the defendant in error, upon a promissory note executed by him, jointly and severally with one Jesse B. Hart and Crim, Hart & Co.
    The defendant in error plead non assumpsit, and specially, in bar, that the plaintiff in error had, before the commencement of this action, brought suit upon said note, jointly, against all the makers thereof; and obtained a judgment thereon against said Jesse B. Hart, and that said judgment remained in full force and effect.
    To this special plea the plaintiff in error replied, that the defendant in error was not served with process, nor was his appearance entered in said suit against all the makers of said note, before the rendition of judgment thereon against said Jesse B. Hart.
    To this replication the defendant in error demurred, and the District Court, into which the case had been taken by appeal, at the September term, 1854, of said court, gave judgment sustaining the demurrer.
    To reverse this judgment, the plaintiff in error prosecutes this petition.

      H. H. Hunter, for plaintiff in error.

      JP. Van Trump, for defendant in error.
   Ranney, J.

That a judgment for or against one of the makers of a joint obligation, is a bar to an action afterwards brought against another, was settled, upon a full review of all the authorities, in Sloo v. Lea, 18 O. R. 279. The reasons upon which the doctrine rests are somewhat technical ;'but the decision seems to have been the necessary consequence of the common law rules of pleading applicable to the question, and the legal effect of the contract upon which the action was brought.

But the case is entirely different when the obligation is, in terms, joint and several. In such case, the creditor has the election to treat the obligation as joint or several, and he may sue and recover against each one of the makers separately, or all jointly; but he cannot do both, and hence the recovery of a joint judgment is a bar to separate actions, arid separate judgments equally so to a joint action.

This, we think, is the fair result of the teachings of the elementary books and adjudged cases, from the earliest times. Indeed, we know not where it has ever been doubted, except in the case of The United States v. Cushman, 2 Sum. R. 436, where Judge Story has labored at much length to establish the position, that a joint judgment is no bar to a separate suit against one of the obligors, on a joint.and several bond; that the joint judgment only bars the joint remedy, and in nowise affects the several remedy, and that the two may be consequently pursued. The whole of the reasoning of the learned judge is based upon what he considers the legal effect of the contract; by which, he insists, each of the obligors has agreed “ that he will be liable to a joint action, and to a several action, for the debt;” and that the supposition, that the obligee has an election only of the one remedy or the other, and that by electing a joint suit he waives his right to maintain a several suit, “ is not a sound legal interpretation of the contract.” If this reasoning is sound, then all that is said in the books about an election of remedies, is wholly unmeaning. It is very true, that each obligor has bound himself to submit; to either form of-remedy; but it is equally true, that he bound himself but by one instrument, and for one debt; and whenever, by the pursuit of either remedy, the debt is carried into judgment, the instrument is necessarily extinguished, or merged in the higher security, and is no longer capable of laying the foundation for another recovery. This seems to us quite conclusive of the strictly legal aspects of the question; but when viewed in a broader light, and as a matter of governmental policy in furnishing adequate remedies for the enforcement of rights, no possible reason cán be given for vexing the defendant with two suits, when one judgment, in either form, is just as effective for reaching all his property, whether held jointly or severally, as the two could be. We are therefore of opinion that the creditor, in such a. contract, is put to his election which of the remedies, that the law provides him, he will pursue. But the question still remains: what acts of the creditor will determine this election ? The authorities cited to show, that where one is entitled to one of two things, as a woman to dower at the common law, or ex assensu patris, at her election, the institution of proceedings in a court of record, for the one or the other, will fix the right, we do not consider applicable to the present inquiry. It is perfectly well settled in actions merely personal, and is not controverted by the defendant’s counsel, that the election of the creditor is not conclusively determined by the commencement of a joint action; and equally well, that it becomes fixed only upon the attainment of the fruits of the action, by the recovery of judgment against all the joint makers of the instrument.

Until one judgment, either joint or several, is rendered for or against each of the makers of such an instrument, no merger of the several liabilities of any one of them, as to whom no judgment has been rendered, takes place; and, until then, a separate action may be maintained upon such several liability. It is clear, that both remedies cannot be pursued at the same time ; and, if it is attempted, the first commenced may be plead in abatement of the last. But when one, in either form, is ended short of a judgment upon the merits, it cannot be plead in bar of another afterward commenced, either in the same form, or in the other form allowed to the creditor by the terms of the contract.

An-application of these principles to the case in hand, leaves no doubt as to how it ought to be determined.

The pleadings inform us that the plaintiff commenced a joint action against the three makers of the note, which resulted in a judgment against one — Jesse B. Hart. In this action, the present defendant was not served with process, nor did he in any manner appear. It does not appear whether Crim, Hart & Co. were served, or what disposition was made of them. In point of fact, however, they were served, and a verdict rendered in their favor upon trial. In a scire facias afterwards prosecuted, to make the present defendant a party to the judgment against Jesse B. Hart, the Court in Bank held, that after the acquittal of Orim, Hart & Co., no .judgment could have been regularly rendered against Jesse B. Hart; and that, as no judgment could have been regularly rendered against the present defendant, had he been served with process, he could not be made a party to the judgment that was rendered by scire facias. This decision has effectually deprived the plaintiff of all joint remedy; for while the judgment against Jesse B, Hart stands, however irregular or erroneous it may have been, he cannot again be sued. To refuse now to enforce the several undertaking of the defendant, would be to deny all remedy upon as plain a contract as ever was written, and that in favor of a party who has never before been in court, and whose rights have never been subjected to judicial inquiry. We cannot think that technical principles can be legitimately used to effect such manifest injustice.

But if the judgment against Jesse B. Hart had been such as to permit the present defendant to be made a party to it by scire facias, our opinion would still be the same. The statute was designed to afford an easy and direct mode for enabling the creditor to make one not served, a party to the judgment against others; but it does not take from him any of his common law rights. In case of a joint contract it is his only remedy; but where the contract is joint and several, he has his election to pursue that remedy, or to commence and prosecute a separate action against any one of the several makers who has not been served with process, and whose several liability has not been merged in judgment.

The district court erred in sustaining the demurrer to the replication, and for that cause the judgment is reversed, and the cause remanded for further proceedings.


author: Bartley, J.

text:
    The City of Cincinnati v. Leverett G. Stone and Medad W. Stone.
    The liability of one person for damages arising from the negligence or misfeasance of another, on the principle of respondeat superior, is confined in its application to the relation of master and servant, or principal and agent, and does not extend to cases of independent contracts not creating those relations, and where the employer does not retain the control over the mode and manner of the performance of the work under the contract.
    But where the employer retains the control and direction over the mode and manner of doing the work, and an injury results 1'rom the negligence or misconduct of the contractor or his servant or agent, the employer is placed under a liability equal and similar to that which exists in the ordinary case of principal and agent.
    Error. Reserved in the District Court of Hamilton county.
    This was originally an action on the case brought in the (former) Superior Court of Cincinnati, against the city, for alleged negligence of her agents, causing an overflow of water into the store of the Messrs. Stone. The plea was the general issue. At the October term, 1852, of that court, the issue was tried by jury; and on the trial, a bill of exceptions was taken on behalf of the defendant below, which shows this state of facts :
    On the 16th of March, 1848, the city council of the city of Cincinnati passed an ordinance to regrade, and repave with boulder stones, Vine street, from Front to Third streets, in said city. On the 2d of May, in the same year, they directed their clerk, by resolution, to contract with George Barton to do this work, according to his proposition on file ; and on the 4th day of May, the city clerk, in obedience to their resolution, entered into a contract under seal with Barton, for the regrading and paving thus directed. This contract is of considerable length, and embodies specific and detailed directions, of the nature of specifications, as to the kind and quality of work to be done, and the manner of doing it; and among other provisions contains this: “ the whole to be done under the direction of the city civil engineer, or agent appointed by the city council for the same, who shall have entire control over the manner of doing and shaping all or any part of the same, whose directions must be strictly obeyed, and, if he deem it necessary, the whole or any part of the said pavement, supposed by him not to fully comply with this contract, must be taken up and replaced at the expense of the contractor, agreeably to the said city engineer’s or agent’s directions, and in accordance with this contract.” There are other provisions which bind the contractor to shape and assort the stone before bringing them on the ground, and to have them overhauled and assorted afterwards, if required by the city civil engineer, or other agent of the city, so that stone which are not suitable shall not be introduced into the pavement. The time within which the work was to be completed, was three and a half'months.
    In progressing with the work, Barton took up the stones from the former pavement, and before removing them left them for some time in heaps, many of these quite near the east gutter of the street. He brought the boulders and deposited them in piles also, before arranging them in the pavement, as required by the contract, and some of these too were near the same gutter. The effect of this was, to create a kind of dam in the east gutter, below the corner of Yine and Commerce streets, where the plaintiffs below had a feed store, and upon occasion of an extraordinary rain, the water thus obstructed rose and flowed back and over the pavement into the cellar of the plaintiffs below, doing the-damage complained of.
    It was also proved that Barton was repeatedly notified of the danger of an overflow, and that complaints were made to the street commissioner, and that he directed Barton to remove the obstructions to the free flow of water.
    It was also in evidence, that Barton was a street paver by occupation, and had done considerable work for the city, and was considered by the council as a man to be “ depended upon to do the work with ability, promptness, and fidelityand that the work required by the contract exceeded, in cost, fifty dollars, and that the length of time allowed to the contractor was reasonable.
    Upon this state of facts the court charged the jury, “ that under the contract proved in the case, George Barton, the contractor, was not an independent contractor, for whose neglect the city would not be liable; that the city had, by the contract, reserved to herself, through her “ civil engineer and other agent,” such a control over the manner of doing the work, and such a right to act for herself in case of disobedience.of orders by the contractor, that George Barton, the said contractor, became the agent or servant of the city, for whose neglect in doing the work, while carrying out the contract, she is liable. If the jury find that the injury here resulted from the negligent and careless obstruction of the street by the contractor while doing the work under the contract, the city is liable, otherwise not.”
    To which instructions of the court to the jury, the counsel for the defendant below excepted ; and the jury, under the charge of the court, rendered a verdict for the plaintiffs below, assessing their damages at $162.75. Whereupon counsel for the defendant below moved for a new trial, on the ground of supposed misdirection of the court to the jury, which motion the court overruled, and the defendant excepted.
    It is now assigned for error, that the court erred in the charge to the jury, and also in overruling the motion for a new trial.

      Mills & Hoadly, for plaintiff in error,
    cited: Px parte Par-top, 12 Yesey, Jr., 352; Laugher v. Pointer, 12 Eng. Com. L. Rep. 311; Randleson v. Murray, 35 Eng. Com. Law Rep. 342; Quarman v. Burnett, 6 Mees. & W. 499 ; Milligan v. Wedge, 40 Eng. Com. Law Rep. 177; Rapson v. Oubitt, 9 Mees. & W. 710 ; Burgess v. Cray, 50 Eng. Com. Law Rep. 577 ; Allen V. Hayward, 53 lb. 956 ; Rich v. Basterfield, 56 lb. 783 ; Reedie v. North Western Railway Co., and Hobbit v. Same, 13 Jurist 659, and 4 Exch. Rep. (Welsby,Hurlstone & Gordon) 244; Hnight v. Pox et al., 5 Ib., and 1 Eng. L. & Eq. Rep. 477 ; Overton v. Preeman et al., 73 Eng. Com. Law Rep., and 8 Eng. L. & Eq. Rep. 479; Peachey v. Rowland et al., 76-Eng. Com. Law Rep. 181, and 16 Eng. L. & Eq. Rep. 442 ; Pilis v. The Sheffield Gras Consumers’ Co., 75 Eng. Com. Law Rep. 767, and 22 Eng. L. & Eq. 198 ; Qayfordv. Nicholls, 9 Exch. (W. H. & Gr.) 702; Lowell v. Boston and Lowell B. B. Co., 23 Pick. 24; Karl v. Sail, 2 Mete. 353; Brown v. Lent, 20 Yermont 529 ; Fish v. Bodge, 4 Denio 311; Blake v. Ferris, 1 Selden 48 ; City of Buffalo v. Solloway, 14 Barb. 101, and 3 Selden 493 ; Pack v.. The Mayor, etc., of New York, 4 Selden 222 ; Kelly v. Same, 1 Neman 432; Barry v. The City of St. Louis, 17 Missouri 121.

      Mr. Biddle for defendants in error.
    The Reporter has been unable to find any brief for defendants in error.
   Bartley, J.

The city of Cincinnati having given a contract to a person to regrade and repave a street, providing in the contract for “the work'to be done under the direction of the city civil engineer," or agent appointed by the city council for the same, who shall have entire control over the manner of doing and shaping all, or any part of the same, and whose directions must be strictly obeyed,” etc., the contractor carelessly and improperly left piles of stones and materials for the work at a place near or about the gutter of the street, where a nuisance was likely to be created, whereby, at the time of a .rain, the water being obstructed, flowed back and over the pavement, on the premises and building of the defendants in error, doing the damage complained of.

The liability of one person for damages arising from the negligence or misfeasance of another, on the principle of respondeat superior, is confined in its application to the relation, of master and servant, or principal and agent, and does not extend to cases of independent contracts not creating the relation of principal and agent, and where the employer does not retain the control over the mode and manner of the performance of the work under the contract.

But where the employer retains the control and direction over the mode and manner of doing the work, and an injury results from the negligence or misconduct of the contractor, or his servant or agent, the employer is placed under a liability equal and similar to that which exists in the ordinary case of principal and agent.

In addition to the fact, in this case, that the city of Cincinnati retained the entire control and direction over the work, under the contract, it was a public duty enjoined on the city to remove all nuisances from the streets of the city, and to make no contracts for the improvement of the streets by which any nuisance would be created on the premises of the adjacent proprietors ; the city was, therefore, clearly liable for the injury sustained by the negligence of the contractor, or of any of his subordinates in the performance of the work.

Judgment affirmed.


author: Kennon, J.

text:
    William Watson & Co. v. William Sullivan.
    An order of the Court of Common Pleas, discharging an attachment against a resident as to the whole of the property attached, is an order affecting a substantial right made in a special proceeding, which may be reversed, pending the action in which the order of attachment was made.
    Motion to dismiss petition in error. Reserved in the District Court of Hamilton county.

      T. J. Gallagher, for the motion.

      T. D. Lincoln, against it.
   Kennon, J.

Watson & Co. commenced an action in the court of common pleas to recover a large sum of money against Sullivan. Nt the same time, the plaintiffs procured an order of attachment, and caused to be attached the property of the defendant, of the value of several thousand dollars. The defendant being personally served with a summons in the action, appeared, and moved the court to discharge the attachment. The attachment was discharged by the common pleas, and petition in error filed by Watson & Co., in the district court, to reverse the order of the common pleas discharging the attachment. A motion was made in the district court to dismiss the petition in error, upon the ground that such petition could not he entertained until after the determination of the action in the common pleas, which was still pending and undetermined.

The motion to dismiss the petition in error was reserved.

The only question in the case before this court is, whether the order of the court of common pleas is subject to be reviewed on error before the action is determined. Sec. 513 of the code, provides, that a judgment rendered, or final order made by the court of common pleas, may be reversed by the district court. Sec. 512 provides, that an order affecting a substantial right in an action, when such order in effect determines the action and prevents a judgment, and an order affecting a substantial right made in a special proceeding, or upon a summary application in an action after judgment, is a final order which may be reversed.

Is an attachment, or a motion to discharge an attachment, a special proceeding within the meaning of this section of the code ? and is an order discharging the attachment, an order affecting a substantial right made in such special proceeding ? are the questions which we are required to determine. It can scarcely be contended, that the order discharging the attachment, arid depriving the plaintiff of the security for the payment of any judgment which he may obtain, is depriving him of a substantial right — a right which the statute had conferred upon him. That a substantial right was affected is not controverted. But is this order made in a special proceeding ?

The code provides a mode of proceeding in attachment, which is called a “ provisional remedy.” It provides, that at or after the commencement of the action, an order of attachment may be obtained. In some cases it is made by the clerk of the court; in others, by the court or a judge thereof. It specifies particularly the grounds upon which such order may be made. It requires the execution of a bond in some cases, to be approved by the clerk, in double the amount of the plaintiff’s claim, with a condition, that the plaintiff will pay the defendant alt damages which he may sustain by reason of the attachment, if the order be wrongfully obtained; and it provides, specially, the whole mode of proceeding, upon and including the order, until the final disposition of the property, whether the plaintiff obtains judgment or not; and is in fact, in its very nature, a special proceeding.

The 3d section of the code abolishes the distinction between actions at law and suits in chancery, and substitutes in their place but one form of action, called a civil action. The commissioners, in their report to the Legislature upon this section, say: “ A civil action, under this code, will comprehend every proceeding in court heretofore insituted by any and all the forms hereby abolished. Every other proceeding will be something else than an action; say, ‘ a special proceeding.’ ” By the 604th section of the code, it is provided, that the code shall not affect any special statutory remedy, not heretofore obtained by action. The Legislature seems to regard all proceedings, not theretofore obtained by suit or action, as a special proceeding, or special statutory remedy; and it would seem to follow, that a provision in the code providing a proceeding, not by action, would be a special proceeding.

The 228th section of the code provides, that the defendant may, at any time before judgment, move to discharge the attachment as to the whole, or a part, of the property attached. By the 220 th section, if the plaintiff fails to recover judgment, the attachment shall be discharged, and the property or money restored to the defendant.

But in case the attachment is discharged by order of the court before judgment, or in case the plaintiff fails to recover judgment, the attachment, in either case, would have been wrongfully obtained, and the plaintiff would be' liable to an action on his undertaking for damages; and the fact that the court had ordered the attachment to be discharged, would be evidence against the plaintiff that the attachment had been thus wrongfully obtain ed, and the action might be immediately commenced for such damages, and such action be determined before the original action, and the plaintiff compelled to pay damages, on account, perhaps, of an error in the court in discharging the attachment. Indeed, the action, where there is personal service, in no manner depends on the attachment. There may be a just cause of action, and no grounds for the order of attachment; they are separate proceedings, and, in the opinion of this court, the attachment is a special proceeding, which may be reversed before the deter-mination of the action.

The motion, therefore, to dismiss the petition in error, is overruled, and the cause remanded to the district court for further proceedings.


author: Thurman, C. J.

text:
    Ansel Jenney et al. v. William Gray.
    V. D., a married -woman, being seized in fee of a tract of land — purchased with her sole and separate money, and conveyed to her during coverture and after the taking effect of the “ act in relation to the interest of husbands in the estate of their wives,” Swan’s Stat. 712 — one J. rented of her husband eight acres thereof, for the purpose of raising a crop of wheat thereon, stipulating to pay to the husband therefor, one-third of the wheat when raised and threshed. J. accordingly sowed the land in the fall. The next spring, V. D. was divorced from her husband, on account of his aggressions, and it was further decreed that she be restored to all her lands and tenements. Afterward, and before harvest, she sold and conveyed said tract of land to G. At harvest, J., with his servants, cut and carried away the wheat, threshed it, and set apart one-third thereof for V. D.’s late husband. G. brought á civil action in the common pleas against J. and his servants, for entering said close and cutting and carrying away said wheat; and claimed over $100 damages. Upon appeal, the district court — a jury being waived — found for the plaintiff, and gave judgment for the value of the wheat cut and carried away, to wit, $75. To reverse this judgment, the present petition was filed. Held: ■
    That the second section of said act does not apply where the interest of the husband was vested in him before the act took effect.
    A justification of a prima facie trespass, on the ground of authority derived from the husband alone, must, in order to be complete, show that his interest accrued to him before the act took effect.
    The second section of the act is not limited to cases in which the entire interest of the husband is attempted to be conveyed or incumbered.
    All conveyances and incumbrances of a husband’s interest in his wife’s real estate described in said act, unless made or created as therein required, are, if the husband’s interest accrued after the taking effect of the act, absolutely void as against the wife. They are not void merely, as against a claim by
      her for support, but as to her, they are-void to all intents and purposes. Whether they have any validity as against the husband, guere ?

    Whether the agreement aforesaid was or was not in legal effect a lease, it would, if valid, have created an “ incumbrance,” within the meaning of the act, upon the husband’s interest in the land, as it would, at least, have conferred upon J. a right to use and to occupy the premises so far as might be necessary in order to raise and harvest the crop. The agreement was therefore void as against the wife. And being void as to her, it was void as to her grantee.
    The doctrine of emblements does not apply to the case, the husband’s estate having been determined, on account of his own misconduct, by a decree that restored to the wdfe all her rights. And the agreement with J. being void, he is in no better condition than the husband.
    The common pleas has original jurisdiction where the amount claimed exceeds one hundred dollars, although the verdict may be for a smaller sum. It is the sum claimed, and not that found due, that gives jurisdiction.
    Error to tbe District Court of Medina county.

      Hills, Canfield & Kimball, for plaintiffs in error,
    cited: 1 Bouv. Law Die. 619 ; 8 J. R .151; 9 J. R. 108; 1 O. E. 251; 8 O. R. 294 ; 12 O. R. 88 ; 15 O. R. 248, 252; Hilliard’s Abr. (1st ed.) 53 ; 1 Co. Lit. 630, margin; lb. 639, 642 ; 4 Kent’s Com. Ill, 112 ; Cons., art. IY, sec. 4 ; Swan’s St. 261; Code, sec. 552 ; Oro. Eliz. 33 ; 2 P. Wms. 1771; 1 Roll’s Abr. 728 ; Cro. Car. 515 ; 2 Bla. Com. 113.

      Floyd & Canfield, for defendants in error.
   Thurman, C. J.

Gray brought a civil action, in the common pleas, against Jenney and others, for entering his close, and cutting and carrying away some wheat — laying his damages at $150. Jenny justified under a cropping agreement made with one Isaac Yan Dorn ; and the other defendants justified under Jenney as his hired men.

In the district court, to which the cause was appealed, it was submitted to the court upon the following agreed statement of facts:

“ It is agreed that the plaintiff is the owner of the land described in his petition ; that he went into possession on the 16th day of March, A. D. 1853 ; that plaintiff purchased of Caroline L. Yan Dorn; and that the said Caroline L. Yan Dorn was divorced from Isaac Yan Dorn, her husband, on the 9th day of March, A. D. 1863, for the aggressions of her husband, and restored to all her lands and tenements ; and that said land was purchased with the sole and separate money of the said Caroline L. Yan Dorn during coverture with the said Isaac Yan Dorn ; that sometime in the month of July, A. D. 1853, the defendants entered the premises and cut and carried away 75 bushels of wheat, worth $1 per bushel. It is further agreed, that Ansel Jenney, one of the defendants, rented eight acres of said land of Isaac Yan Dorn, by a parol agreement, sometime in the summer of 1852, for the purpose of putting in a crop of wheat; which was sown in the fall.of 1852. Said wheat was put in on shares — the said Jenney was to have two-thirds and the said Isaac Yan Dorn was to have one-third delivered to him in the half bushel. That said Isaac and Caroline L. were in possession of the premises. That the same has been threshed, and one-third put into a bin for the said Isaac Yan Dorn, which is the wheat in controversy. Now, if the court shall find for the plaintiff on this agreement of facts, then they are to enter up a judgment for plaintiff for $75; but if they find the issue for the defendants, then the Court are to enter up a general judgment for defendants.”

The court found for the plaintiff, and, after overruling a motion for a new trial and in arrest of judgment, gave judgment for $75.

To reverse this judgment the present petition was filed.

Gray founded his right to recover upon the ground that the agreement between Isaac Yan Dorn and Jenney contravened the second section of the act entitled, “ An act in relation to the interest of husbands in the estate of their wives,” passed February 28, 1846, to take effect July 4, 1846, (Swan’s St. 712, 713,) and was therefore void. The section is in these words:

“ Sec. II. All conveyances and incumbrances of the husband’s interest in the real estate of the wife, in the first section mentioned, shall be void and of no effect during the life of the wife, and during the life or lives of the heir or heirs of her body, unless an instrument of such conveyance or incumbrance shall have been executed, attested, and acknowledged, according to the laws of this State for the conveyance or incumbrance, of the estate of the wife in lands, tenements, and hereditaments, situate within this State.”

Among the real estate mentioned in the first section, is realty which may have been purchased with her (the wife’s) sole and separate money, or other property, and, during her coverture, shall have been deeded to her, or to any trustee in trust for her.”

On the part of Jenney et al. it is contended:

1. That the second section aforesaid does not apply to the case, because thé cropping agreement was not a “ conveyance ” or “ incumbrance ” of Isaac Van Dorn’s interest.

2. That, in a case like this, the late husband is entitled to the way-going crop as emblements.

3. That the court had no jurisdiction, the recovery being less than $100.

. There is nothing in the agreed case to show that the land was conveyed to Mrs. Van Dorn for her sole and separate use, so as to make it, by the very terms of the deed, technically her separate property. But it is shown that it was purchased with her sole and separate money during her coverture, and it is to be inferred from what is stated, that it was conveyed to her while covert — so that it falls within the terms of the statute above referred to.

But here arises a very important question of fact, upon which the agreed case is silent, namely: Was the purchase and conveyance to her before or after the taking effect of the statute ? If before, her husband was invested with a life estate when the act took effect, and could not be divested of it, or of his control over it, by the act — the Legislature having no such power. White v. White, 5 Barb. 474. It might be exempted from liability for his debts, as it is by the first section of the act, and as personalty is by the third and fourth sections, but he could not be deprived of his power of bona fide alienation of an estate to which he had a vested right.

But, if the purchase and conveyance were made after the taking effect of the act, there is no constitutional objection to its application ; for it is plainly competent for the legislature to say what interest, estate, or control, a husband shall have in, or over, the future acquisitions of his wife. -And it is to future acquisitions, only, that we suppose the second section was intended to apply.

How, then, are we to decide the case in the absence of a statement of this controlling matter of fact ? We can do so only by applying the settled principles relating to the burthen of proof. It appears by the agreed case, that Gray was the owner of the fee in possession, when Jenney and his associates entered upon the land and cut and carried away the wheat. Prima facie, therefore, they were trespassers, and the burthen lay upon them to show matter of justification. This they attempted to do by setting up a right under Isaac Van Dorn, but, in order to make the justification complete, it was necessary to show that .he could confer such right. He plainly could not confer it, if it amounted to a conveyance or incumbrance of his interest, unless his interest accrued to him before the taking effect of the act. It was, therefore, necessary for Jenney et al. to show that such was the fact, and not having done so, the contrary is to be presumed. And this presumption, I may remark, is probably in accordance with the truth ; for it is no where suggested in the record, or in the arguments of counsel, that Mrs. Van Dorn acquired tne land before the act took effect.

The facts being thus ascertained, our conclusions upon the law of the case are as follows. We hold:

1. Thakthe section of the act is not limited to cases in which the entire interest of the husband is attempted to be conveyed or incumbered.

2. That all conveyances and incumbrances of a husband’s interest in his wife’s real estate described in the act, unless made or created as therein required, are, if the husband’s interest accrued after the taking effect of the act, absolutely void as against the wife. They are not void as against a claim by her for support merely, but as to her they are void to all intents and purposes. Whether they have any validity as against the husband it is not necessary now to decide.

3. That whether the authorities which hold that a cropping agreement for a year, or less, does not constitute a lease, are sound law or not, (upon which question we express no opinion,) yet the agreement in question, though of that nature, would, if valid, have created an “ incumbrance,” within the meaning of the act under consideration, upon the husband’s interest in the land; as it would, at least, have conferred upon Jenney a right to use and to occupy the premises so' far as might be necessary in order to raise and harvest the crop. The agreement was therefore void as against the wife. And being void as to her, it was void as to her grantee.

4. That the doctrine of emblements, by which the way-going crop belongs to the tenant upon the determination of his estate by the happening of an uncertain event, has no application to this case, in which Isaac Van Dorn’s estate was determined, on account of his own misconduct, by a decree that restored to his wife all her rights. And the agreement with Jenney being void, he is in no better condition than Isaac Van Dorn.

5. That the common pleas has original jurisdiction, when the amount claimed exceeds $100, although the verdict may be for a smaller sum. It is the sum claimed, and not that found to be due, that gives jurisdiction. As the common pleas had original jurisdiction of the case, the district court had appellate jurisdiction.

Judgment affirmed.

Bartley, J., dissented.

        .) See Brunaugh v. Worley, 6 Ohio St. Rep. 597.


author: Bartley, J. J. R. Swan, J.,

text:
    John W. Coleman v. Uriah D. Edwards and Franklin L. Jackson.
    1. Whe^-e a motion for a new trial, on the ground of alleged misdirection of the court in its charge to the jury, is continued to a term of the court subsequent to the trial term, and then overruled, the party making the motion has the right to his bill of exceptions to the order of the court overruling the motion, although no exceptions were taken to the charge of the court to the jury at the time of the trial, and signed and sealed at the trial term ; this right of the party being secured by the positive provision of the statute giving the light of exception, in all cases of motion for new trial, on the ground of any supposed error of the court in its instructions to the jury. The case of Hicks v. Person, 19 Ohio Hep. 426, in this respect, explained and qualified.
    2. In case of a contract for the delivery of specific articles within a specified time, where the party has made a tender, which, through inadvertence or jpistake, turns out to be insufficient and ineffectual, he has the right to make a subsequent tender of articles, such as are required by the contract, within the time specified, unless there be some provision in the terms of the contract preventing it.
    3. In case of a contract for the delivery of five hundred hogs to a person in the city of Cincinnati, within a specified time, the hogs to be well corn-fatted, and of the average weight of one hundred and -ninety pounds net, to be delivered to the party and slaughtered within a reasonable time, weather permitting, the party receiving the hogs having the sole benefit and control of slaughtering them; where, after five hundred hogs, which had been delivered, and on being slaughtered and weighed, and ascertained to fall three pounds short of the average contract weight, had on this ground been rejected as not being in conformity to the contract, the provision of the contract, that the party receiving the hogs shall have the sole benefit and control of the slaughtering of them, imposes no burden or condition upon him (the slaughtering being paid for by the offals, and the control of the slaughtering being a benefit), which deprives the other party from the right to make a subsequent tender of five hundred hogs, in full compliance with the contract, within the time specified.
    Petition in error to reverse the judgment of the District Court of Hamilton county.
    The original action was brought by the defendants in error against the plaintiff in error, in the court of common pleas, on the 9th of December, 1847, for the recovery of damages for an alleged breach of covenant. At the November term, 1849, the cause was tried, and a verdict rendered for the defendant below > whereupon the plaintiffs below moved for a new trial, on the alleged ground of misdirection of the court to the jury. This motion was continued to the February term, 1850, when it was, after hearing, overruled, and judgment given on the verdict. The plaintiffs' below then tendered the bill of exceptions which was signed and sealed by the court, and afterwards sued out a writ of error from the late Supreme Court of Hamilton county, which was subsequently transferred to the district court, where the judgment of the common pleas was reversed, with costs. And to review that decision, this proceeding in error is prosecuted.
    The writing obligatory, upon which the original action was founded, is in these words:

      “ A memorandum of an agreement, entered into the third day of June, 1847, between John W. Coleman, agent for George W. Woodward, of the city of Cincinnati, county of Hamilton, and State of Ohio, and Uriah Edwards and Franklin L. Jackson, both of Rush county, Indiana, witnesseth: That the said Uriah Edwards and Franklin L. Jackson, do hereby agree and bind themselves to deliver unto the said John W. Coleman, agent of George W. Woodward, five hundred hogs, to average one hundred and ninety pounds net; said hogs to be delivered at Cincinnati, between the twentieth day of November and tenth of December, 1847; said hogs to be delivered to said Coleman, agent of said Woodward, and to be slaughtered within a reasonable time, weather permitting; said hogs to be well corn-fatted, and said Coleman, agent of said Woodward, to have the sole benefit and control of slaughtering said hogs. And the said John W. Coleman, agent of George W. Woodward, in consideration of the premises aforesaid, doth hereby agree and bind himself, as said agent for said Woodward, to pay unto the said Uriah Edwards and Franklin L. Jackson, the sum of four dollars and tw’enty-five cents per hundred pounds net for said hogs, when delivered at Cincinnati as aforesaid. And it is further agreed by said Coleman, agent for said Woodward, that if the said Uriah Edwards and Franklin L. Jackson shall require it, the said Coleman, agent of said Woodward, will, upon demand for the same, advance and pay upon said contract, unto said Edwards and Jackson, one thousand dollars, on or after the first day of September, 1847, upon said Edwards and Jackson giving satisfactory indorsers upon their notes for the same, if required by said Coleman, agent for said Woodward. In witness whereof, the said parties have hereunto severally set their hands and seals, this third day of June, 1847.”
    This article was signed and sealed by Uriah D. Edwards and Eranklin L. Jackson, and signed by Coleman, “ agent for G. W. Woodward,” but sealed with his own seal.
    The bill of exceptions states that, upon the trial, at November term, 1849, the plaintiffs; after presenting the article of agreement, under seal, “ offered evidence tending to prove that the said plaintiffs, between the twentieth day of November, 1847, and the tenth of December, 1847, delivered to the said John W. Coleman five hundred hogs; and there was evidence before the jury tending to prove, that said five hundred hogs were of the description mentioned in the contract, with the exception, that the average net weight of said hogs was one hundred and eighty-seven pounds only; but the defendant offered evidence tending to prove that the hogs were not an even lot, and not well corn-fatted. The plaintiffs also offered evidence tending to prove, that the market price for hogs, between the said 20th of November and 10th of December, 1847, was three dollars per hundred weight net; and there was also evidence tending to prove, that there was no difference, at the time last aforesaid, in the market price of hogs, of the average weight of one hundred and eighty-seven pounds net, and of hogs of the average weight of one hundred and ninety pounds net, but that corn-fatted were more valuable than others. And the plaintiffs, by their counsel, asked the court to charge the jury, that if the evidence convinced the jury that said hogs were of the description aforesaid, and were delivered as aforesaid, that the plaintiffs were entitled to recover. But the court refused so to charge, and charged the juiy, that the plaintiffs could not recover unless said five hundred hogs were of the average net weight and quality agreed upon in the contract.
    “ The plaintiffs also offered, and gave to the jury, evidence tending to prove, that the said John W. Coleman, by his agent, acting under his direction, received said hogs, caused the same to be slaughtered, and removed from the New York slaughterhouse to the pork-house of Taylor, Fuller & Co., where said hogs were weighed; and that immediately after the weight of said hogs had been ascertained, and reported to the said Coleman, he, the said John W. Coleman, refused to have any thing to do with said hogs. And thereupon the plaintiffs, by their counsel, asked the court to charge the jury, that if the hogs were received by the said John W. Coleman as aforesaid, and slaughtered as aforesaid, that then said John W. Coleman had waived all objection to said hogs, and that the plaintiffs were entitled to recover the difference between the contract and the market price. But the court refused so to charge, but charged the jury, that the said John W. Coleman was not obliged to make any objection to said hogs until after the same had been slaughtered and weighed, and the weight and quality of said hogs ascertained.
    “ And the plaintiffs also offered evidence tending to prove, that they, the said plaintiffs, afterwards, on the eighth day of December, in the year 1847, tendered to said John W. Coleman five hundred hogs, of the average weight of one hundred and ninety pounds net .and more, and otherwise filled the contract; and there was also evidence tending to prove, that the hogs last tendered were not in the possession of the plaintiffs; which hogs the said John W. Coleman refused to receive. And thereupon the plaintiffs, by their counsel, asked the court to charge the jury, that if they believed the plaintiffs, on the 8th of December, 1847, at Cincinnati, tendered to the said John W. Coleman five hundred well corn-fatted hogs, that then the plaintiffs were entitled to recover the difference between the contract and the’market price. But the court refused so to charge, and charged the jury, that the plaintiffs, having delivered five hundred hogs, as a compliance with their covenants, that they could not make a second tender; but if a second tender could be made, the party must show a present ability to perform the contract on his part.
    “ And the jury returned a verdict for the defendant, and thereupon the plaintiffs moved for a new trial, for the reason that said court misdirected the jury; which motion said court held under advisement until the present term of this court; and now, at this February term, 1850, of the court aforesaid, the said court overruled said motion for a new trial, and caused judgment' to be entered on said verdict. To all of which several opinions of the court aforesaid, the plaintiffs, by their counsel, objected and except, and pray that this their bill of exceptions may be signed and sealed by the court, and made a part of the record, which is done.”
    The error assigned in the district court was, that the common pleas erred in overruling the motion for a new trial, founded on the alleged misdirection of the court to the jury.

      Pugh & Pendleton, for plaintiff in error.

      J. T. Crapsey, for defendants in error.
   Bartley, J.

The first question made by the plaintiff in error is as to the sufficiency of the bill of exceptions. The cause was tried in the common pleas before a jury, at the November term, 1849, and, after verdict for the defendant, the plaintiffs moved for a new trial, for the reason of misdirection of the court to the jury; which motion the court held under advisement until the next term, when the motion was overruled, and judgment entered on the verdict. And the bill of exceptions was tendered and signed and sealed by the court, on the overruling of the motion for a new trial. The statute of March 12, 1845, relating to the allowance of bills of exceptions, under which this proceeding was had, authorized the party to take his bill of exceptions, and made it the duty of the judges to sign and seal it during the term at which the opinion was given, order made, or judgment rendered, to which the exception was alleged. Now, the bill of exceptions, in this case, was taken to the order overruling the motion for a new trial grounded on a supposed misdirection of the court to the jury. If the bill of exceptions had relation simply to the instructions of the court to the jury, which were given at the November term, 1849, it would have been bad, because not signed and sealed at that term. But an exception to instructions to the jury, in the charge of the court, is one thing, and an exception to an order overruling a motion for a new trial, for the reason of misdirection of the court to the jury, in the charge, is another and different thing. And these proceedings, clearly distinguishable, must not be confounded. If there were error in the instructions given to the jury, it was the duty of the court to grant a new trial, even at the next term, to which the motion had been continued. The power of the court to continue the motion for a new trial, under advisement, until the next term, is unquestionable, and yet, according to the construction of the statute claimed by the plaintiff in error, the exercise of this power would enable the court to deprive the party of the right to a bill of exceptions to the order overruling the motion for a new trial —a right secured by the positive provisions of the statute. '

It is insisted that this question has been differently decided in the case of Hicks v. Person, 19 O. R. 435. But, duly considered, that ease cannot be so taken. It is true, in the reasoning of the judge delivering the opinion, such a construction of the statute is strongly intimated, but the opinion on this point concludes as follows: “ Under these circumstances, we are of opinion that we cannot with propriety interfere with the judgment of the court of common pleas for any error supposed to have been committed by that court, in its action in the November term, 1847,” which was the term of the trial, the motion for new trial having been continued, and overruled at the March term, 1848, when the bill of exceptions was signed and sealed. Now, this conclusion is not at all inconsistent with the views taken in the case now before us. No bill of exceptions having been taken to the instructions given in the charge to the jury, at the November term, 1847, the court could not reverse the judgment of the common pleas for error committed at that term, on a bill of exceptions taken at a subsequent term. But the court- does not say, in the conclusion, that they could not interfere, upon the ground of error committed in the order overruling the motion for a new trial, at the March term, 1848. On the contrary, the court did proceed (for reasons assigned not vexy satisfactory) to consider and decide the case on the assignments of error predicated on the bill of exceptions. If the opinion in this case had to be considered, as confounding an exception to instructions to the jury given on the trial, with an exception to an order overruling a motion for a new trial, grounded on a misdirection of the court to the jury, it would have to be overruled.

We find no difficulty in disposing of this case on its merits. The contract sued on was for the delivery of specific articles, within a specified time ; and where the party bound to make the delivery has made a tender, which, through inadvertence or mistake, turns out to be insufficient and ineffectual, he has the right to make a subsequent tender of articles such as are required by the contract, within the time specified, unless there be some provision in the terms of the contract preventing it.

Edwards and Jackson bound themselves to deliver to Coleman, in the city of Cincinnati, between the 20th of November and the 10th of December, 1847, five hundred hogs well fatted, and of the average weight of one hundred and ninety pounds net, Coleman to have the sole benefit and control of the slaughtering of them, which was to be done within a reasonable time, weather permitting. It appears, that after Edwards & Jackson had delivered five hundred hogs, which, on being slaughtered and weighed, and ascertained to fall three pounds short of the average contract weight, had been rejected by Coleman as not being in strict conformity to the contract, they made a subsequent tender of five hundred hogs, claimed to be in full compliance with the contract, and within the time specified for the delivery. As to the evidence tending to prove this, however, and the instructions to the jury on the subject, asked by the defendants in error, the court charged the jury, that Edwards and Jackson having delivered five hundred hogs as a compliance with their covenants, if this delivery failed for insufficiency, and the hogs were rejected, a second tender of performance could not be made. In this the court erred. The provision of the contract, that the party receiving the hogs should have the sole benefit and control of the slaughtering of them, imposed no burden or condition upon him, (the slaughtering being paid for by the offals, and the control of the slaughtering being a benefit,) which deprives the other party of the right to make a subsequent tender of performance in full compliance with the contract, within the time specified.

Had the slaughtering of the hogs imposed a burden on Coleman, it might have had a material bearing on the rights of the parties; but it appears that the offals, at Cincinnati, fully compensate for the slaughtering of hogs ; and that Coleman stipulated for the slaughtering as a benefit to himself. And had he been indisposed to slaughter the hogs offered by the second tender, he could of course have had it done without any expense to himself.

Judgment of the district court affirmed.

Thurman, C. J., dissented as to the first and third propositions in the syllabus.

J. R. Swan, J.,

dissenting as to the third proposition of the syllabus. In general, an ineffectual tender does not prevent a party from making another and valid tender, within the time prescribed by the contract. But where, as in this case, a second tender devolves a burden upon the party to whom the tender is made, not contemplated by the terms of the contract, and arising out of the default of the party making the first tender, a second valid tender cannot, in my opinion, be made. In the case before us, the plaintiff took upon himself the risk of the net weight of the hogs. Coleman stipulated to slaughter the hogs. If the first ineffectual tender can be made good by a second, then the plaintiff was bound to slaughter one thousand, instead of five hundred hogs. It is clear that this was not contemplated by the contract. It is said that the plaintiff is benefited by slaughtering one thousand hogs, instead of five hundred. Whether he would be benefited or not, is a question within his province to determine, depending upon his own situation, convenience, and discretion. Whatever devolves on a party a duty, is a burden which he is not to be required by a court to perform, unless contemplated by the terms of his contract. He,might find it for his benefit to slaughter the five hundred hogs named in the contract, and a serious inconvenience to slaughter the one thousand required by the court. It is clear he was not bound to receive hogs already slaughtered; for no such thing is to be found in the contract.


text:
    Elias Straus and Brother v. The Eagle Insurance Company of Cincinnati.
    Corporations have such powers, and such only, as the act creating them con-fers; and are confined to the exercise of those expressly granted, and such incidental powers as are necessary for the purpose of carrying into effect powers specifically conferred.
    The act of incorporation, like any other statute, should be construed in such a manner as will best answer the intention of the Legislature ; and all its parts should, if possible, be made subservient to, and in harmony with, the-leading purposes and objects intended to be accomplished, and for which the corporation is created.
    Unless expressly restrained by its charter, a corporation has the incidental power to make any contract, and evidence it by any instrument that may be necessary and proper, to accomplish such purposes and objects.
    A note or bill made or received by such a corporation, is, prima facie, within its corporate powers, and, therefore, valid; but it is competent to show, that it was given or taken for a purpose not authorized; and when shown, the contract is void, and the instrument a nullity.
    An insurance company, authorized by its charter to invest its funds and capital stock, as should be deemed best by the directors, for the safety of the capital and interest of the stockholders, has no power to purchase upon credit, the promissory note of one insured by the company, and entitled to indemnity for a loss, for the purpose of setting- off such note against the claim.
    The power of investment was designed to enable the company to make a profitable use of its surplus funds; but such a contract, involving the use of no such funds, is not only without the limits of the charter, but directly opposed to its leading objects, as it furnishes a strong inducement to withhold prompt payment, for the purpose of depressing the credit of the insured, thereby enabling the company to purchase his paper at a greater discount.
    The company, therefore, has no power to become a party to the contract of indorsement, and no capacity to receive or hold the legal title to the note.
    A set off can only be allowed for such claims as in good faith and absolutely belonged to the party at the commencement of the action ; and does not extend to claims purchased conditionally for the purpose of using them as a set off, and with an agreement to return them to the seller, if they are not so used.

      Assumpsit. Reserved in the District Court of Ross county.
    This case was submitted and reserved upon an agreed statement of facts, which appears in the opinion of the court.

      McClintick, for plaintiffs.

      Fox & G. F. Pugh, for defendant.
   Ranney, J.

This action is brought upon a policy of insurance. The defendant admits the right of the plaintiffs to recover, unless the promissory notes produced by them are allowed as a set off to the plaintiffs’ demand. From the agreed statement-of facts, it appears that these notes, given by the plaintiffs to several creditors of theirs in New York, and upon which there was then due about $3,000, were indorsed by the holders to the defendant before the commencement of this suit, and in accordance with a written agreement made with the secretary of the company, which; after acknowledging the transfer of the notes, and reciting that they were purchased for the purpose of paying off and discharging the amount due upon the policy, bound the company to pay therefor the sum of $2,000, provided they could be made available for that purpose. But if the amount due upon the policy had been assigned, so that it could not be paid with the notes, and the company were unable to set off the same against the claim, then the company was authorized to return the notes in discharge of the said sum of $2,000. It further provided, that if the controversy with the plaintiffs should not be settled in thirty days, that the money should be deposited at the best interest that could be obtained, and paid over with the accruing interest thereon. It further appears, that no money has in fact been deposited or paid over, but things remain as at the date of the agreement.

We may at once dispose of a large part of the argument, by saying, that we make no question that the acts of the secretary in making this agreement have been fully ratified, if not previously authorized, by the board of directors; and that we make the whole case to depend upon the corporate power of the company to make such a contract, and its capacity, in this manner, and for such purposes, to acquire and hold the legal title to the notes : and this further question, whether claims purchased conditionally, and for the mere purpose of being used as a set off, can be thus used ?

1. In determining the first of these questions, we are enabled to invoke as a foundation for all reasoning upon the subject, a well settled principle of law. It is now universally agreed, that corporations have such powers, and such only, as the act creating them confers; and are confined to the exercise of those expressly granted, and such incidental powers as are necessary to carry into effect those expressly conferred. In the expressive language of C. J. Marshall, in Head v. The Providence Ins. Co., 2 Or. R. 127, The act of incorporation is to them an enabling act; it gives them all the power they possess ; it enables them to contract, and when it prescribes to them a mode of contracting, they must observe that mode, or the instrument no more creates a contract than if the body had never been incorporated.” And again, in Dartmouth College v. Woodard, 4 Wheat. 518, “ Being the mere creature of law, it [the corporation] possesses only those properties which the charter of its creation confers upon it, either expressly, or as incidental to its very existence.” In no State of the Union have these principles been adhered to with more unyielding tenacity than in this. Gallia Co. v. Holcomb, 7 O. R. 232, Pt. 1; Bank of Chillicothe v. Town of Chillicothe, 7 O. R. 31, Pt. 2; Bank of Chillicothe v. Dwayne, 8 O. R. 257; Bartholomew v. Bently, 1 O. St. R. 41.

The act of incorporation, like any other statute, should be construed in such manner as will best answer the intention of the Legislature ; and all its parts should, if possible, be made subservient to, and in harmony with, the leading purposes and objects intended to be accomplished, and for which the corporation is created. To effect this, the whole must be considered and construed together, with direct reference to those purposes and objects, and all its minor and incide, tal provisions be so used as to promote them. To dissect it into parts, and seize upon isolated .expressions upon which to ingraft independent powers, not in harmony with, or necessary to attain the main design, is, in almost every case, to defeat the intention of the General Assembly. The People v. Utica Ins. Co., 15 J. R. 380.

The power to contract and be contracted with, is one of the common law incidents of a corporation. Unless expressly restrained. by its charter, every corporation has the incidental power to make any contract, and evidence it by any instrument, that may be necessary and proper to accomplish the objects for which it is created. A note or bill, therefore, made or received by such a corporation, is, prima facie, within its corporate powers, and, therefore, valid. “ The presumption is always in favor of the validity of the contract; or, in other words, it will be presumed that the debt was due, or the note or other security given in the lawful course of business, until the contrary is shown.” Ang. & Ames on Corp. 198; N. Y. Fireman's Ins. Co. v. Sturges, 2 Cow. R. 664; Barker v. Mechanics' Fire Ins. Co., 3 Wend. R. 94. But when such a transaction is drawn in question, it is always competent to show that it was given or taken for a purpose not authorized, and when shown, the contract is void, and the instrument a nullity. The principle is thus stated by the elementary authors' to which I have referred, Ch. 8, § 12: “ A corporation and an individual stand upon very different footing. The latter, existing for the general good of society, may do all acts and make all contracts, which are not, in the eye of the law, inconsistent with this great purpose of his creation; whereas, the former, having been created for a specific purpose, can not only make no contracts forbidden by its charter, which is, as it were, the law of its nature, but in general can make no contract which is not necessary, either directly or indirectly, to enable it to answer that purpose.” And again: “When the charter, or act of incorporation, and valid statutory law, are silent as to what contracts a corporatiom may make, as a general rule, it has power to make all such contracts as are necessary, and usual in the course of business, as means to enable it to attain the object for which it was created, and none other.” And Mr. Justice Story, in treating upon the power of corporations to become parties to negotiable paper, says: Where the drawing, indorsing, or accepting such bills, is obviously foreign to the purposes' of the charter, or repugnant thereto, then the act becomes a nullity, and not binding upon the corporation.” Story on Bills, sec. 79.

These doctrines are supported by a multitude of adjudged cases. Broughton v. Manchester Water Works, 3 Barn. & Ald. 1; Munn v. Commission Co., 15 J. R. 44; N. Y. Fireman’s Ins. Co. v. Ely, 2 Cow. R. 664; Lane v. Bennett, 5 Conn. 574; Philadelphia Loan Co. v. Towner, 13 Conn. R. 249; Korn v. Mer. As. So., 6 Cranch 199 ; Bank of Chillicothe v. Swayne, 8 O. R. 257; McCullough v. Moss, 5 Denio 567.

And, in Slank v. The Highgate Archway Company, 5 Taunt. R. 792, and N. Y. Fireman’s Ins. Co. v. Sturges, 2 Cow. 664, it was held, that where a corporation is authorized to raise money on promissory notes for a particular.purpose, or may receive notes in the course of its proper business, evidence may be admitted in the one case in favor, and in the other against the corporation, to impeach the notes, by showing that they were issued for another purpose, or received in the course of business improper, or forbidden to it.

In the light of these principles, which permit the fullest inquiry into the true nature of the transaction, we are now prepared to ask the direct question, upon which the decision of this case depends — Does the charter of this company empower it to purchase, upon credit, the negotiable paper of one insured by it, and entitled to indemnity for a loss, for the purpose of paying or setting off the paper against the claim ? I am aware that the defendant’s counsel does not treat the settlement of this question as decisive of the case. He insists that it is quite immaterial whether the corporation had power to make the agreement or not; that the indorsement, so far as it operates to transfer the title, is an executed contract, and has invested the corporation with the legal interest in the paper; and that it is of no importance to the plaintiffs, whether they pay an acknowledged indebtedness to the indorser or indorsee. In short, whether the corporation could bind itself by the executory part of the agreement or not, so far as it is executed, it cannot be disturbed. If the transaction had taken place between natural persons, and the objection related to its legality, this argument might be altogether unanswerable ; but in its application to the acts of a corporation, it begs the very question at issue, and assumes as undoubted, what has been most explicitly negatived by repeated decisions of this court. The contract of indorsement, like every other, must have parties. Without two parties, competent to contract, there can be no agreement by which the one can lose, and the other acquire, the title to negotiable paper. The powers and capacities of a corporation must be derived from the law of its creation, or they do not exist. If a fair construction of its charter does not confer the power, it is incompetent to become a party to the contract of indorsement, and without capacity to take or hold the title. As well might a dead man, by the mere act of the indorser, be invested with the legal interest as a corporation, which only lives for the purposes and objects intended by the Legislature. Beyond these limits it has no existence, and its acts are neither more nor less than a nullity. It was upon this precise distinction between corporations and natural persons, that the case of The Bank of Chillicothe v. Swayne, and other kindred cases, have been decided in this State. As was said in that case: — “ This contract is void, not because the rate of interest is greater than the rate allowed by the general law of the land, but because it is such a contract as the plaintiffs had no capacity or power to make.”

We must, therefore, find in the charter the power to make this contract, or no contract has been made. We must there find a capacity given to take and hold the title to these notes, in virtue of this contract, or the corporation has no title. That this powet or capacity is expressly given, is not pretended. Is it a necessary incident to any express power ? But two provisions of the charter have been brought to our notice, to which it may be referred. By the 2d section, the corporation is authorized to take security from stockholders, for deferred payments of stock, “ by indorsed notes, payable on demand, or other property or stocks, to be approved by the board of directors.” The 6th section provides: — “It shall be lawful for such company to invest all or any part of their capital stock, money, funds, or other property, in such a way as the directors' may deem best for the safety of the capital and interest of the stockholders; and may, therefore, sell and dispose of any or all interest which the company may have acquired by such investment.”

The provisions of the second section do not require a single remark. They simply authorize the corporation to take security for unpaid stock. The persons from whom, and the purpose for which, it is to be taken, are all definitely stated ; and none of them bear the most remote relation to the present transaction. No doubt can be entertained as to the object of the 6th section. The power of the investment therein conferred was designed to enable the company to make a profitable use of its surplus funds, by placing them at interest, with a view to their safety and the interest of the. stockholders. But how the purchase, upon credit, of the promissory notes of one entitled to indemnity from the company, involving the use of no such funds, can be regarded as a fair execution of this power, is not readily perceived. Indeed, we are very clear, that it is not only without the limits of the charter, but directly opposed to its leading objects. We are not to assume, that this corporation was created for the mere benefit of the stockholders. The General Assembly must be supposed to have had a view to the public good, when they authorized the company to make contracts of indemnity against the calamities of fire. They must be presumed to have known, that the largest class of persons likely to avail themselves of this security would be merchants, whose all was invested in perishable property, and whose earnings, for years, might be destroyed in an hour; and whose credit must, of necessity, suffer unless prompt payment was made.

To have furnished inducements for withholding prompt payment, for the purpose of depressing the credit of the insured, thereby enabling the company to purchase his paper at a greater discount, would have been an act of most unaccountable folly and injustice. If it had been plainly proposed to arm the corporation with such a power, no one could for a moment suppose, that it would have received any favor from any legislative body that ever sat in the State. To engraft it upon the charter by construction, instead of. conforming to the intention of the Legislature, would be to disregard and defeat it.

I should, therefore, have been of the opinion, that the company could not use its surplus funds even, in a manner so destructive to the purpose of its creation. But it is only necessary now to say, that it could not, under the power of investment, employ its credit to purchase claims for such a purpose; that it had no power to become a party to the contract of indorsement, by which it obtained the notes in question, and no capacity to take or hold the legal title. This conclusion is very fully supported, by the cases of Smith v. The Alabama Life Ins. & Trust Co., 4 Ala. R. N. S. 558, and Attorney General v. The Life & Fire Ins. Co., 9 Paige’s Chy. R. 473.

In treating of the powers of corporations, I have not found it necessary to advert to a class of cases in which the corporation, in favor of innocent third persons, has been estopped to deny its corporate powers ; there being nothing in this case to give application to those doctrines.

2. It becomes unnecessary to consider the further question, as to the right of the defendants to use these notes as a set off, under the conditional agreement upon which they were obtained. I shall only add, that a set off can only be allowed for such claims as, in good faith and absolutely, belonged to the party at the commencement of the action; and that it does not extend to claims purchased conditionally, for the purpose of using them as a set off, and with an agreement to return them to the seller if they are not so used. The statute was designed to avoid circuity of action, by enabling the defendant to obtain the benefit of his own joint claims against the plaintiff; but it would be a fraud upon it to allow him, in anticipation of a law-suit, to get the use merely of the claims of others, with which to defeat his adversary.

The set off must be disallowed, and judgment given for the plaintiffs.


text:
    The Board of Education of Brown Township, Fairfield County, and others v. John Cheney.
    Under the 24th section of the act to establish a fund for the support of common schools, which provides that “so much of the moneys coming from township tax levied for the continuation of schools after the State fund has been exhausted, shall be applicable only to the payment of teachers in the proper township, and shall be drawn for no other purpose whatever; and all school funds made applicable to the payment of teachers only, shall be distributed to the several sub-districts and fractional parts of districts in the township,- in proportion to the enumeration of the scholars,” each sub-district is entitled to such distribution, and the funds cannot be applied in any other proportion for the purpose -of keeping up a school for seven months in each district, notwithstanding the provision of the same act, which provides that the board shall make the necessary provision for continuing the schools in operation in their respective townships, for at least seven months.
    Where such board has not sufficient funds to keep up a school in each sub-district for seven months, without using the funds belonging to other districts, it cannot comply with the requisitions of the statute in that particular.
    Motion for leave to file a petition in error, to reverse a judgment of the District Court of Fairfield county.
    The facts are stated in the opinion of the court.

      Hunter & Daugherty, for the motion.
   Kennon, J.

The board of education of Brown township, caused a tax of $400 to be assessed and collected in the township, for the purpose of - continuing the schools in the township after the State fund should be exhausted.

John Cheney was a resident freeholder of the township, and paid a-portion of the tax, and two members of his family were over the age of five, and under the age of twenty-one years, and had a right to the benefit of the free schools.

The board of education were about to distribute the $400 to the several sub-districts in the township, not in proportion to the enumeration of the scholars in each sub-district, but in such manner as to have a school continued at least seven months in each sub-district, thereby giving to the sub-district in which Cheney resided a sum less than that district would have been entitled to, if it received a sum in proportion to the enumeration of the-scholars in his district.

Cheney instituted a civil action against the board, to prevent the proposed distribution.

The opinions of the common pleas and district court were opposed to the proposed distribution, and the district court adjudged a distribution to the several sub-districts in proportion to the enumeration of the scholars in the several sub-districts.

A motion is now made in this court by the board of education, for leave to file a petition in error to reverse this judgment.

It is claimed:

1st. That the fund ought not to be distributed to the several sub-districts in proportion to the enumeration of the scholars in each, but in such manner that each sub-district should have a school for at least seven months in the year, and that the schools could not be kept seven months in each district, if distributed according to the enumeration, but could be so kept, if distributed in a different proportion.

2d. That the remedy, if any, was by mandamus, or action for damages after the distribution had been made.

If either of these claims is well founded, leave ought to be given to file the petition.

By the 24th section of the act it is provided, “ That so much of the school moneys coming into the hands of the treasurer as may be derived from the State tax, or from any township tax levied for the continuation of schools after the State fund has been exhausted, shall be applicable only to the payment of teachers in the proper township, and shall be drawn for no other purpose whatever, and all school funds, made applicable to the payment of teachers only, shall be distributed to the several sub-districts, and fractional parts thereof, in the township, in proportion to the enumeration of the scholars.”

These $400 were levied expressly for the purpose of continuing the schools after the State fund should be exhausted, and the statute in very clear language provides that the fund thus levied shall be distributed to the several sub-districts in proportion to the enumeration of the scholars in the sub-district. Each sub-district acquires a perfect right to a certain portion of this fund, a right of which it- cannot be deprived without in effect repealing this clause of the statute, and no one would claim that any other or different application could be made of this fund, were it not for another clause of the same section, which declares, “ that all other school funds of the township, not raised for the central or high schools, nor made applicable - to the payment of teachers as aforesaid, shall be applied, under the direction of the board, in repairing, building, or furnishing school houses, in procuring school house sites, and in making such other provisions for schools in the sub-districts of the proper townships as may in the opinion of the board be necessary ; and each township board shall make the necessary provision for continuing the schools in operation, in their respective townships, for at least seven months in each year.”

By the 22d section of the same act, it is made the duty of the board of education in each township to determine, by estimate, as nearly as practicable, the entire amount of money necessary to be expended in the township for school purposes, other than for the payment of teachers, and also such additional amount as the board may think necessary, not exceeding two mills on the dollar valuation of the taxable property of the township, for the exclusive purpose of sustaining teachers in the central or high schools ; or, for the purpose of prolonging, after the State fund has been exhausted, the terms of the several sub-district schools in the township, or for both purposes, as the board may judge best. In this section, the amount which the board are authorized to assess can not exceed two mills on the dollar, and this amount, thus raised, is expressly required to be distributed to each sub-district in proportion to the enumeration of the scholars therein, and can be applied to no other purpose whatever ; so that the power of raising the fund, as well as the mode of distribution, are prescribed by the State, and, if the schools cannot be sustained seven months in each year, with the funds provided by law for that purpose, the board cannot make the necessary provision for continuing the schools for seven months, for the obvious reason that the Legislature has failed to furnish the board with the means of so doing.

Indeed, it might be argued, with equal force, that, if the State school fund, and the tax of two mills on the dollar, assessed by the board, should prove insufficient for the support of schools for seven months in each year, the board must assess a tax of four mills on the dollar for that purpose, merely because the law requires the board to make the necessary provision for keeping up the school for seven months in each township. The assessment of the additional tax over and above what the law authorizes to be assessed, would be the exercise of a power no less expressly prohibited than the appropriation of the fund in a proportion different from that prescribed by the statute, viz: in proportion to the enumeration of the scholars in the sub-district.

We are therefore of opinion that the board had no authority to make the distribution claimed by it, and that the district court did not err in holding that the fund should be distributed to each sub-district in proportion to the enumeration of the scholars therein.

At this point of the case, the counsel for the petitioner withdrew his motion to file the petition, the principal question having been determined against the motion.


text:
    Roxana Woodworth v. D. R. Paige and others.
    If there is no fraudulent turning away from a knowledge of the facts which the res gesta would suggest to a prudent mind ; if mere want of caution, as distinguished from fraudulent and willful blindness, is all that can be imputed to the purchaser, then the doctrine of constructive notice will not apply — then the purchaser will in equity be considered, as in fact he is, a bona flde purchaser without notice.

      Semble. — -That a release of dower in a deed executed by husband and wife, without consideration, to defraud his creditors, will not estop her to claim dower against the grantee, or any purchaser from him with notice. No fraud can be imputed to her because of such release, for the reason that she releases nothing that could be taken by her husband’s creditors.
    This is a petition for dower, reserved in Ashtabula county,, The material facts of the case are' as follows:

      Daniel Woodworth was the owner of the land in dispute. Having previously become bail to the United States, for Robert Harper, who had failed, he, in 1839, conveyed the land to Nathan Warner, without consideration, and for the purpose of preventing its being subjected to the payment of the claims of the United States against Harper, for which he was holden. His wife, Roxana Woodworth, the complainant, with a full knowledge of its object, joined in the conveyance, releasing her dower in the usual form.
    Daniel Woodworth continued in possession until 1841, when he sold to two of his sons, Lyman and Erasmus, to whom a conveyance was executed by the said Nathan Warner. The father then gave up the possession to his said sons, and thenceforth, during his lifetime, exercised no act of ownership over the lands, and claimed no interest in them. The sons, and those claiming under them, were the possessors, made large improvements, and were the acknowledged owners until after the decease of the father, which took place in 1848.
    In 1843, Lyman and Erasmus sold to their brother, Jefferson, and in 1845, Jefferson, for a valuable consideration, and in good faith, sold to the defendant, D, R. Paige, to whom a perfect legal title was made. The sale to Paige was made with the knowledge and under the special advice of the father, Daniel Woodworth.
    As to these facts, there was no serious controversy; but whether Paige, upon the proof, was chargeable with notice of the circumstances under and purpose for which the deed from Wood-worth and wife to Warner was made, was a disputed question.

      Howe, Chaffee, & Woodbury, for complainant, made the following points:
    1. The complainant was induced to execute the deed to Warner, by fraudulent representations that her interest would not ba affected thereby, but that Warner would hold in trust for her. And by accepting the deed Warner beeáme her trustee.
    2. In violation of his trust, he, by quit-claim deed, and without consideration, and without her knowledge or consent, conveyed the land to Lyman and Erasmus Woodworth, who took with full knowledge of her equity; and who thereby became her trustees.
    3. Lyman & Erasmus, in violation of their trust, sold and conveyed to Paige, who purchased with full knowledge of complainant’s equity, or, at least, with sufficient knowledge to put him on inquiry.

      H. Wilder, Simonds & Cadwell, for defendant Paige, argued:
    1. There is no sufficient evidence that the complainant was induced to execute the deed to Warner by false representations.
    2. Paige is a purchaser in good faith, for a valuable consideration, and without notice; and, therefore, as to him, she is barred of dower by its release in due form to Warner, whatever the inducement to her execution of the deed.
    3. That having joined in the deed to Warner, which was made for a fraudulent purpose, with a knowledge of that fraudulent purpose, she is not entitled in a court of equity to have the deed set aside for her benefit.
   Thurman, C. J.

There can be no reasonable doubt, upon the testimony, that the complainant was aware of the purpose for which the deed to Warner was executed. Is she, then, estopped by it to claim dower in the land ?

In Winship v. Lamberton, decided by this court in 1854, but by accident never reported, we gave dower to a widow, who, during her coverture, had joined with her husband in a conveyance of his lands, executed without consideration, to defraud his creditors.

But that case differed from this in two material points.

Pirst. The defendant’s title was derived from a sale on a judgment and execution against the husband alone. He was not, therefore, in privity with the wife. He derived no title under the fraudulent deed, but held in direct opposition to it. The case fell, therefore, within the principle, often held, that a release of dower is binding only as against the releasee and his privies, and that a mere stranger cannot avail himself of it. Pixley v. Bennett, 11 Mass. 298 ; Robinson v. Bates, 3 Met. 40 ; Randolph v. Doss and Wife, 3 How. (Miss.) Rep. 205; Taylor v. Bowler, 18 O. R. 567.

Secondly. The fraudulent deed had been declared to be void and set aside, on a bill filed by the purchasers upon the execution, under whom the defendant claimed; and we were of the opinion that the defendant could not set up this deed, thus annulled, to defeat the widow’s claim to dower. Robinson v. Bates, supra. It is true, that it was contended for the defendant, that inasmuch as the decree required the fraudulent grantees to release to the complainants in the bill, the defendant, who held under those complainants, was in privity with these grantees ; but we thought that that provision of the decree was only meant to quiet the title against the deed, which, by the same decree, was declared to be void, and not for a transfer of an independent, substantial title; and that, therefore, there was no privity.

But, in the present case, the fraudulent deed has not been set aside, and the defendant, Paige, claims under it. So we are brought to the direct question, whether a wife, who joins in a deed, made without any consideration, and to defraud her husband’s creditors, is thereby estopped to claim dower against a purchaser, for a valuable consideration, from the fraudulent grantee. It would seem obvious that if the deed of the husband and wife was executed for a sufficient consideration, and was invalid only by reason of the intent to defraud creditors, she ought to be barred of her dower as against the grantee and his privies. For, as between her and them, there is no reason why her release, made for a sufficient consideration, should be avoided. But the case is quite different, I apprehend, where there is no consideration to uphold the deed, and it can only be upheld by the application of the doctrine, that, as between fraudulent grant- or and grantee, the title of the latter is good. Eor why, and in what sense, is the deed fraudulent ? And why is it that the title of the grantee, who has paid no consideration, is, nevertheless, good ? It is fraudulent, simply because it is an attempt to place the property beyond the reach of the husband’s creditors, and the title of the grantee is good, except as against the creditors, simply because no court will aid a party to avoid his executed contract, made for a fraudulent purpose. But so far as the wife is concerned, she places nothing beyond the reach of the creditors, to which they are entitled. It is the husband’s estate alone, and not her dower right, that is liable for his debts, and that estate he can convey without her joining in the deed. Her execution of the deed adds nothing to its efficacy so far as his estate is concerned — it simply releases her dower, which the creditors have no right to touch. How, then, can she be said to be a fraudulent grantor ? Whom does she defraud, either by the deed, or by avoiding it so far as to claim dower ? Not the creditors, for they had no right to her dower. Not the grantee, for he paid no consideration for the conveyance. Not a purchaser, with notice, from the grantee, for such purchaser is in no better condition than the grantee himself. How, then, can it properly be said that the deed is her executed, fraudulent contract, or conveyance, against which she ought not to be relieved, when its execution does not, and cannot, defraud anybody ? And what wisdom or justice is there in visiting women, who know so. little of the law, and who are so dependent upon, and so much under the control of their husbands, with the extreme penalty of a forfeiture of their dower, upon the ground that they have attempted to defraud their husbands’ creditors, when in fact they have released nothing to which the creditors are entitled, done nothing of which they have a right to complain ? For myself, I confess I cannot see; and although these views may not, as I am aware, accord with some adjudicated cases, I nevertheless believe they are sound, and it is probable that we should so hold, were Paige a purchaser with notice.

But is he such a purchaser ? That he paid a fair and valuable consideration for the land is not denied; that he has the legal title is apparent; that, if he purchased and paid for the land, and received his conveyance without notice of the complainant’s equity, his equity is superior to hers, is obvious ; for it would be manifestly inequitable to let her avoid her deed to the prejudice of an innocent person who, on the faith of it, had bought and paid for the estate.

There is no testimony showing that Paige had actual knowledge of the circumstances under which the deed to Warner was made, but it is contended that enough was communicated to him, by one Wood and one Miller, to put him on inquiry; and their depositions have been taken to prove certain casual conversations they respectively had with him when he was negotiating his purchase, about eight years before they testified. Now, to say nothing of the uncertainty of such testimony — an attempt by third persons, having no interest to remember what was said, to relate chance conversations after so great a lapse of time — it seems to us that the conversations, even as related, do not sustain the complainant’s case. The substance of Wood’s testimony is, that Paige told him that he thought of buying the farm from the Woodworth boys, and asked him what he thought of the title. Wood replied, that he should be a little afraid of it; that he had heard that Warner had a deed for the land.

Here was no notice of any claim of Mrs. Woodworth, nor of the circumstances under which the deed to Warner was made, but merely that such a deed had probably been made.

Miller testified more strongly. He says, that while Paige was talking of buying the land of Lyman or Jefferson Woodworth, he asked him (Miller) what he thought of it, and if they had a good title; to which the witness replied, that he could only give his opinion, which was, that they had no title at all, nor any right to sell it in any shape, and that he believed that, honestly, the place belonged to Daniel Woodworth and wife. But the witness further told him, that Lyman and Erasmus were the boys for him to deal with, instead of Lyman and Jefferson — that they had the deed from Warner.

Here we have no statement of any fact showing a right in Mrs. Woodworth, or impeaching the deed to Warner, but simply an expression of opinion by a man having but little qualification to give one, and whose recommendation to buy of Lyman and Erasmus, was not at all consistent with his opinion, that the land honestly belonged to David Woodworth and wife. But this is not all. It is clearly proved that Daniel Woodworth had, -years before, sold the farm to his sons, Lyman and Erasmus, for a valuable consideration, and procured Warner to release the title to them; that he gave them the possession, which they and their grantee, Jefferson Woodworth, held until the sale and conveyance to Paige — no claim whatever being made to the place, or the rents or profits, by the old people, or either of them; and that the old man not only knew of Paige’s negotiation, but urged Jefferson to accept his offer; and finally, that Paige, having to go East, left the business, with the consideration he proposed to give, in the hands of a lawyer, with instructions to pay over the consideration and take conveyances, if he found the title to be good, but not otherwise; and that the lawyer, upon investigation, found nothing to impeach the title, and being satisfied of its goodness, paid the consideration and took the deeds, while Paige was still absent in the East.

Now it does seem to us, that Paige did all that could be required of a prudent man. He bought of the person in whom there was apparently a good paper title; who -was in possession, claiming and enjoying the land, and no one setting up an adverse claim; who, and his brothers, from whom he had purchased, had been in undisputed possession for years, and had made large improvements; the title was investigated by an attorney and pronounced to be good, and the consideration paid and conveyances received by the attorney, in Paige’s absence, under instructions not to so pay and receive, unless the title were satisfactory; — and all this without a single fact being shown to have come to the knowledge of Paige, or his attorney, from which it was fairly inferable that Mrs. Woodworth had any claim whatever.

The law on this point is well settled.

In Sugden on Vendors 1040, it is said: “ Vague reports from persons not interested in the property, will not affect the purchaser’s conscience.”

In Jones v. Smith, 1 Hare 43, the Vice Chancellor said: “If there is no fraudulent turning away from a knowledge of the facts which the res gesta would suggest to a prudent mind; if mere want of caution, as distinguished from fraudulent and willful blindness, is all that can be imputed to the purchaser, then the doctrine of constructive notice will not apply — then the purchaser will in equity be considered, as in fact he is, a bona fide purchaser without notice.”

“ There is no case which goes the length of saying, that a failure of the utmost circumspection shall have the effect of postponing a party, as if he were guilty of fraud or had actual notice.” 1 Story’s Eq., sec. 400.

Upon the whole, we are satisfied that Paige is not chargeable with notice, and the bill must therefore be dismissed.