text:
    *Robert Richey v. Thomas S. Hinde.
    The action for use and occupation only lies where a tenancy is established.

      Entry on land tortious, the tort can not be waived and rent claimed in an action of assumpsit.
    This is a motion to set aside a verdict rendered at the trial of a suit in Champaign county, which is reserved for decision here.
    The declaration contains two counts in assumpsit: 1. For use and occupation. 2. For money had and received. A verdict was rendered for the plaintiff for one thousand two hundred and forty-six dollars, subject to the opinion of the court; whether, upon the facts proved, a recovery can be' had in this form of action. Qn July 19, 1824, Hinde and wife obtained a decree in the Circuit Court of the United States in this district against Richey, by which Richey was directed to convey to Mrs. Hinde the title to a certain tract of land, and to surrender the possession. In September, 1824, the possession not having been given up, was transferred to Hinde, by an hab. fao. poss. issued under this decree. In October, 1824, the deed was executed transferring the title to Mrs. Hinde. In 1828, an appeal having been taken, the decree was reversed. In November, 1828, the possession of Hinde was terminated by proceedings in forcible entry and detainer at.the instance of Fox, who had acquired Richey’s interest in the land. The plaintiff seeks in this suit to recover the rents and profits of the land while in the possession of Hinde.
    Swan and Mason for plaintiff:
    The defendant insists he is not liable in this action.
    1. Because the relation of landlord and tenant is not shown to have existed between the parties. We cite, to show this is necessary to maintain the action, Wood. Ten. 432; 6 Johns. 46; 13 Johns. 489; 4 Ohio, 213.
    2. We urge the decree of the circuit court was not vacated by the appeal, for the practice of their courts is regulated by that-of the chancery courts in England. 2 L. U. 56; 1 Pet. 6; 9 Ves. 316; 15 Ves. 181.
    3. Supposing the decree was out of the way, the plaintiff, to recover, should have moved the court for restitution, and had a writ regularly executed. 7 Cranch, 602; 1 Cox, 101; 4 Johns. 609; 3 P. Wills. 379; Croke Eliz. 465; 19 Vin. Ab. 153, pl. 5, Tit. Rent.; 9 Vin. Ab. 590.
    *4. The decree for possession is like a judgment for the plaintiff in ejectment, and the same process may be had to recover the possession. Adams’ Tit. 225; 3 Ves. 206 ; 4 Johns. 636.
    5. The decision'of the cases, 3 Ohio, 264, and 4 Ohio, 205, was right upon authority and reason. Bul. N. P. 138: Wood. Ten. 430; 6 Johns. 48.
    6. The legal estate, by the death of Mrs. Hinde and by operation of law, vested in her heirs, who were strangers to the decree, and are strangers to the action. No restitution could after her death be awarded, nor could the legal estate descended be divested without making them parties. 4 Bibb. 195; 2 Salk. 587; 9 Vin. Ab. 590.
    7. We conclude the plaintiff has no legal right to sustain this action: 1. Because the relation of landlord and tenant is not shown to exist between the parties. 2. A stranger can not recover rent of the owner without express agreement. 3. Because the legal estate is in Mrs. Hinde’s heirs, who are entitled to the rent.
    James, for defendant:
    If. the defendant had any defense to the merits of this case, he would show it in the present form of action, which is so well calculated to do entire justice between the parties. The objection, that the action should be trespass, not case on assumpsit, implies that the plaintiff has a right in some form to recover the value of the rents he has lost, by means of the erroneous decree under which the defendant received them.
    There can be no doubt of the plaintiff’s right to recover the value of the mesne profits which the defendant had received. It-is clear that wherever a writ oí' habere facias possessionem has been executed by giving possession, and is avoided by the judgment of a court, a writ of restitution should be awarded. Lowery v. Jenkins, 3 Bibb. 314.
    If a judgment be reversed, the party shall be restored to all -he has lost by occasion of the judgment, and a writ of restitution be-awarded. 2 Tidd. 1136 ; Cummings and Wife v. Noyes, 10 Mass. 433; Tappen v. Van Wagenen, 3 Johns. 465; 1 Har. & Johns. 408, 409.
    At common law, the mode of restitution was for the sheriff, when the restitution was for land, to ascertain by a jury the value of the rents and profits, to levy the same and pay over *to [373 plaintiff. 10 Mass. 433. Bat in Ohio the value must be assessed In court, and for this purpose assumpsit is proper.
    The action of assumpsit will lie wherever a person, without any •valuable consideration on his part, has received money which in good conscience belongs to another, and which ex cequo et bono he ■ought to refund. 2 Comyn on Contracts, 5.
    If the defendant be under an obligation from the ties of natural justice to refund, the law implies a debt, and gives this action founded in the equity of the plaintiff’s case, as if it were upon a ■contract. 2 Burr. 1008.
    It lies in numberless instances for money the defendant has received from a third person, which he claims title to, in opposition to the plaintiff’s right, and which he had by law authority to receive from such third peieon. Ib. And it is not necessary there should be any privity between the parties, except that which is •created by law. Ib.
    So it lies against an overseer of the poor to recover money in his hands which had been levied on a conviction, which was •afterward quashed. Felthean v. Terry, Lofft, 207, cited in Cowper, 419.

      Indebitatus assumpsit will lie for rent, received by one who pretends to a title; for in such case an account will lie. Arris v. Stukely, 2 Mod. 262.
    If a man, pretending title to my land, receive my rent, and get my tenants to attorn to him, an indebitatus has been held to lie for the money. 12 Mod. 324.
    And on the same principle, if one tenant in common receive all the rents, his co-tenant may bring assumpsit for his part. 9 Mass. 538.
    It will lie wherever account will lie. 2 Mod. 262, and 12 Mod 517. “A man shall have a writ of account against one as bailiff or receiver, where he was not bailiff or receiver; as if a man enter into my land to my use, and receive the profits thereof, I shall have account against him as bailiff” E. N. B. 117, A.
    “ Account lies against him who receives my rent without my appointment.” Ibid. “ If one receives rents from my tenants without my assent, account lies, and n’unque receiver, shall not aid him.” Ib. 118, B.
    The action for money had and received can not be too much ■encouraged, if the defendant be guarded from surprise. 1 Johns. 135. It is in the nature of a bill in equity, and therefore *to [374 support it the plaintiff must show that he has equity and conscience on his side, and could recover in a court of equity. 2 Johns. 370. The question always is, “is it against conscience that the defendant should keep the profits he has received.” Cowper, 793.
    A bill in equity will lie for rents where the party receiving them has made entry. 2 Vern. 724; Curtis v. Curtis, 2 Bro. C., party receiving them has made entry. 2 Vern. 724.
    Both from principle and precedent, this action would be proper in this case from the circumstances of it; as it is the mere instrument of ascertaining the value of a right, resulting from the decree of a court, it may be used if no rule of law forbids it; the action of trespass might for this end merely answer the purpose as well. Butin that there would be this inconsistency, that the defendant would be charged with entering vi et armis, when in fact he was authorized to do so by judicial process. If it be said that the first judgment is void by the reversal, and can not be shown in his justification by the defendant, it may be answered, that this is merely a fiction of law. If it be said that the party uses the judgment and process, he does it at the peril of being a trespasser from the beginning. On the avoidance of the process it may be asserted with as much consistency with truth, that entering under a known, legal liability, to account for the issue and profits if the judgment should be reversed, he undertakes in that event to account accordingly. 10 Mass. 435.
    The action of assumpsit is more favorable to the defendant than the action of trespass. In the former he accounts for only the nett value of the profits received, after deducting rents and interest on them which has been done in this case; and he would not be chai’geable for the time the property stood idle without his default. But in the action of trespass the plaintiff might recover damages beyond the amount and value of the rents actually received. Oowper, 416.
    The action of trespass for mesne profits would not lie in this case; for that action can only be brought after a recovery in ejectment. Adams on Ejectment, 328; 1 Atk. 525. In this ease there has been no recovery — no establishing of trespass. ' The declaration in trespass for mesne profits requires a recital of the recovery in ejectment, the value of the rents, etc.

      This whole action of trespass for mesne profits is a contrivance of a very awkward construction. It is founded on a recovery 375] *in ejectment, and the record is evidence of the trespass. But the recovery of damages in ejectment is no bar for mesne profits for the same trespass. The recovery in ejectment is then mere evidence of a right established, and yet courts have held, in-actions of assumpsit for use and occupation, that it was treating the party as a trespasser for the same thing. It has caused many of the distinctive characters oí an action of trespass to be abandoned for the furtherance of justice. Thus it has been decided in New York, that the action for mesne profits is an equitable action, and will allow of every kind of equitable defense: 2 Johns. Ca. 438, and in Maryland it is said that a recovery in trespass for mesne profits, is only for use and occupation of land, and does not bar an action of trespass quare clausum fregit for injuries done to the premises in the same period: Gill v. Cole Har. & Johns. 403; so that it becomes at last in its nature very much like an action of assumpsit.
    The plaintiff is not furnished with the argument of defendant’s-counsel, on the motion to overrule the evidence and enter a non-suit. It is understood, however, that he relies chiefly on the case of Butler v. Cowles, 4 Ohio, 213. The court there decided that the action of assumpsit for use and occupation will not lie to recover mesne profits after a recovery in ejectment. That case was regarded as settled by Birch v. Wright, 1 Term, 378, where the reason is given, that the plaintiff has already elected to treat the defendant as a trespasser, and thus destroy the presumption of a contract. But in the present case the defendant has not been treated as a trespasser. Nor has there been any recovery in ejectment.
    The plaintiff regards this as an open question, untouched by the decision in the above case, and if it is thought that propriety of the count for use and occupation js questionable, indulgence is-asked for an effort to show that some of the dicta appended in that decision, were not duly considered by the writer of the opinion.
    It has been often, but erroneously, said, that at common law assumpsit for rent lay only on express promise .given at the time of the lease; and that the action oí assumpsit for use and occupation was given by 11 Geo., 2 chap. 719, which was enacted in 1738. But it had been in use long before. The case of Dartnal v. Morgan, Cro. Jac. 598, was decided in 1621. The case of Sleek v. Bow-376] man, Cro. Jac. 668, was decided in 1623. The *case of How
      v. Norton, 1 Leving, 179, was decided about 1680, and in all of them the promise was implied in consideration of the occupancy. ■The quotations already made from 2 Mod. 262 (anno 1689), and 12 Mod. 324 (anno 1700), show that the courts then held it settled "that an indebitatus would lie.
    The case of How v. Norton was assumpsit in consideration that the plaintiff would permit the defendant to enjoy such land, and that he permitted him to enjoy it three years, and that it was worth ten pounds per annum. After verdict for plaintiff it was moved in arrest of judgment: 1. That it does not appear that the plaintiff had any title to the land. 2. If he had title, debt lies and not this action; but the court held the contrary on both points ■and gave judgment for the plaintiff.
    So far,'then, as the statute authorized the action, it only af.firmed the common law; but the object of the law was to enable “ landlords to receive a reasonable satisfaction for the use and occupation of lands held by defendants where the agreement was not by deed.” Before the statute, landlords were continually nonsuited by the tenants proving at the trial some parol demise, or memorandum in writing amounting to a demise; for, in ■in that case, the landlord ought to have brought an action of debt) ■and not case on assumpsit, which was remedied by the statute; “ and if, in evidence on the trial of such action, any parol demise or any agreement, not being by deed, whereon a certain rent was reserved, shall appear, the plaintiff, shall not, therefore, be non-suited ; but may make use thereof as an evidence of the quantum •of the damages to be recovered.”
    But the statute, nevertheless, has controlled the decisions in England ; and the same act having been in force in New York and in Massachusetts, their courts have conformed closely to the letter of the decisions requiring the relation of landlord and tenant to exist.
    If it were correct that the action was first given by the statute ■of 11 Geo. II., is it thence to be argued that-the action will not lie at all in Ohio, inasmuch as the English statutes have no obligation here? It may be confidently answered that the great remodial powers of the common law will accommodate to every emergency of justice, and mete protection and security to every private right. It is in force here according as it may suit our circumstances and condition; and the courts are invested with an •original discretion to mold its form and direct its action to the 377] furtherance of justice. This benign principle will *fully establish, that the action of assumpsit for use and occupation will lie in cases by the owner of land against anyone who has enjoyed the same, except where the owner has elected to treat the occupant as a trespasser. Wherever a person establishes his right to land as owner, and proves the occupancy of it by another, the law will thereupon imply an undertaking, and promise, by the occupant, to make a reasonable compensation for the occupancy.. This is the great perfection of the rule finally established in this action, which has always been struggling for enlargement; that whoever has enjoyed the benefit of another’s goods, or Iaboi’, or property, he must pay to the rightful owner a just consideration for it, unless he show an agreement to the contrary. The law does not seek for promises, in fact, but implies them, if good conscience requires them. And this is done in a variety of cases, where the conduct of the defendant does not warrant the presumption of an agreement in fact. Thus where one unlawfully converts to his own use the goods of another, the owner may waive the tort and bring assumpsit for the value of them, and the action has been held to lie against one who steals another’s money.
    The same rule was formerly recognized in England as to themesne profits where a recovery had been had in ejectment. In Cheney v. Butler, Cowp. 246, Lord Mansfield said (1775) that ejectment and assumpsit for use and occupation had both been brought for the same pi’emises at the same time, and recovei’y had in each case. On objection made, it was holden that one of the remedies was not a waiver of the other. Why? Because they were both brought for several demands, to both of which, the plaintiff was entitled ; consequently, one could be no waiver of the other. In 1781, it was recognized in Goodtitle v. North, Doug. 584, as-having been argued and decided in King’s Bench, that a party may, after a judgment in ejectment, waive the trespass and bring use and occupation for the mesne profits. For the first time it was ruled differently in the case of Birch v. Wright, 1 Ter. 378. It was there held, that for all rent due anterior to the time of the demise, that assumpsit would lie. Because, by the statute of 4 Anne having rendered attornment unnecessary, and having put the party in the same situation by the conveyance as if the tenant had attorned, he is to be considered in possession ; and then as there was no deed, use and occupation would lie. The same has been held as the settled law of Ohio. 3 Ohio, 265. But it must be for another 378] *eause, to wit: that the owner is entitled to compensation for the use of his land by another. But for the rents posterior to the date of the demise, it was held, that the action would not lie. For this the court gave a kind of fever and ague reason, that the plaintiff could not be permitted to blow both hot and cold at the same time. (The decision was made in November.) The reasons of the decision are not satisfactory; they allege that the plaintiff had not waived the tort, but insisted on it by bringing his action of ejectment; that in one action he insists that the defendant is his tenant, and shall therefore pay him rent; in the other, he says, he is no longer his tenant, and must deliver up the possession. This 'is not a true statement of'the effect of the two actions ; and this discrepancy would exist only in case the plaintiff by one action was seeking to prolong and continue the tenancy, and in the other to abridge it. But they have no connection nor do they clash. The ejectment -may be used either to dispossess a tenant, not desired to be retained, or to establish a title which he disputed. It does not seek damages for the rent, nor need it be noticed in the action of assumpsit for the rent, or mesne profits. The two actions could not be brought for the same thing ; but they are brought for different things. The recovery in ejectment at best is nothing more than evidence; and it is hard to perceive how the fictitious trespasses of Richard Roe can, by rule of court, be so completely transferred to a defendant admitted to defend a title only, that the plaintiff should thereby forfeit a remedy which he unquestionably had previously, and which could be sustained by the same evidence that would support the claim before the demise.
    The defendant at the trial proved the death of Belinda Hinde, in November, 1827, which was prior to the reversal of the decree, and that the case had not been revived against her heirs. The decree can not be impeached collaterally; and however erroneous it might be, it must be held binding until reversed.
   Judge Lane

delivered the opinion of the court:

The verdict must be sustained by holding the affirmative of one of the following propositions : that the profits of land held under these circumstances, may be recovered in an action for use and oc379] cupation ; or that the money received by the defendant *as rent, ex cequo et lono belongs to the plaintiff, and may be deemed money had and received to his use.

The law prescribing forms of action is in a great measure arbitrary, yet where the distinction between them is plainly and definitely marked by a course of decisions, we are not at liberty to transcend the boundaries. In Massachusetts a suit like the present might be supported; 10 Mass. 433; 17 Mass. 299; but in England, and New York, and in this state, it is settled by authorities too strong to be disregarded, that an action for use and occupation will be in those eases only where a tenancy subsists. 11 Taunt. 105; 6 Johns. 46; 13 Johns. 489; 4 Ohio, 205. The defendant entered on the land as his own, claiming title; consequently the suit is not sustainable in this aspect.

Where one man has money which equitably belongs to another, it may generally be recovered in an action of assumpsit for money had and received to the use of the plaintiff. And oven where the money is received after and in consequence of an act of trespass, in many cases the tort may be waived and the money itself sought by suit as received to the plaintiff’s use. Hambly v. Trott, Cowp. 378; Sir Th. Jones, 127; Cases Collated, Saund. Pl. and Ev. I. 127.

But it is believed to be unprecedented to waivo the tort where a trespass is committed upon lands under a claim of title. The case of Arris et al. v. Stukelcy, 2 Mod. 262, does not sustain such a position ; it shows only that where one receives my rent in my name, under a pretended authority from me, I may sustain assumpsit, because I may charge him in account as my receiver, and he may not deny his pretended authority. The action of assumpsit is an inconvenient form of litigating titles to lands, and it may lead to an injurious interference with the laws concerning occupying claimants. And it is unnecessary to extend this form of action to this case, since the law has otherwise furnished ample remedy. A judgment of restitution is incident to every judgment of reversal, and there is a plain mode for carrying it into effect. 10 Mass. 434; 13 Coke, 21; Rast Ent. 308; 12 Serg. & Rawl. 292; 4 Ohio, 375. The rights, therefore, of the plaintiff, subsist, or should subsist of record, and in our opinion they can not be asserted in the action of assumpsit.

It is unnecessary to decide the other point made as to the effect of the deed to Mrs. Hinde. The defendant is entitled to a new trial.


source: Caselaw Access Project

author: Wood, judge,

license: Public Domain

text:
    *Thomas Saunders v. Abraham Stotts.
    Plea to an action on a sealed note, that it was obtained by fraud, covin, and misrepresentation. Good on demurrer.
    Fraud may be specially pleaded in bar, even where it might be given in evidence on the general issue.
    This was an action of debt, adjourned for decision here from the county of Franklin. The case is stated in the opinion of the court.
    Starling and Gilbert, for plaintiffs.
    G. Swan, for defendants.
   Wood, judge,

stated the case and delivered the opinion of the court:

The plaintiff in his declaration counts on a sealed note, bearing date July 20, 1827, for the sum of five hundred dollars, payable on or before the 15th of November next after its date. To this declaration the defendant has filed a special plea in bar that the said note was “ obtained from the said Stotts by the said Saunders, and others in collusion with him, by fraud, covin, arid misrepresentation.”- 2. Plea, non est factum. To the special plea there is a general demurrer and joinder.

The only inquiry is, can the special plea be sustained? That fraud is a defense at law is not now to be considered as an open question. It has been settled by numerous adjudications. So far -has the principle been carried, that in a court of equity a defendant will not be relieved against a penal bond, obtained from him by fraud, if he has neglected to make his defense at law. 2 Ohio, 7.

But to avoid a deed, it is claimed the only fraud which can be pleaded at law is fraud in its execution, such as its fraudulent reading, the substitution of one instrument for another, or the obtaining by some devise or fraudulent representation such an instrument as the party did not intend to give. This is’doubtless the law on the subject. 2 Johns. 177; 13 Johns. 430 ; Hall, 446. Let us apply this law to the case before us. The defendant has plead that the note was obtained by “fraud, covin, and misrepresentation.” The counsel for the plaintiff claim that this plea is-bad because it does not set out the facts and circumstances on which the fraud arises, and that it is uncertain from the plea whether the fraud, covin, and misrepresentation it sets up have-381] reference to the inducements *to the execution of the note,, or the execution itself. This may be answered thus: that fraud is a mixed question of law and fact; that it consists of a multiplicity of circumstances, and therefore might be inconvenient to-require’them to be set forth. 2 Mau. & Sel. 377. That there are many precedents, directly in point, which are evidence that, the law holds such general allegation of fraud and covin sufficient. In Will. Pr. 93, the pleader is advised to add a plea of fraud and covin generally, omitting a statement of the particular misrepresentations. Several authorities are cited to sustain such position. 13 Johns. 430, it is true, is said by the author to be against the sufficiency of such plea; but with diie respect for his accuracy, I am led to a different conclusion. I find nothing in that case against the sufficiency of such plea as he advises the pleader to add. The action was debt on a bond. The defendant craved oyer, and set out the condition, and filed a special plea setting forth divers fraudulent statements and misrepresentations, all of which were inducements to the making of the bond, but none of them had any relation to a bearing upon its actual execution. The plaintiff demurred specially, and the court determined the plea was bad; that the fraud alleged was in the representation of the thing for which the bond was taken, and did not by the plaintiff’s own showing relate to the execution of the bond. In this very case it is also worthy of remark that there is a third plea of fraud in obtaining the bond generally, to which there is a replication; and from anything to be gathered from the case, was considered by all concerned as a good plea. I have been more particular in this case because the plaintiff’s counsel say it is the authority on which they mainly rely to support their position that the plea here filed is bad. I think it is entitled, at least, to some consideration, as an authority for the defendants.

It is said that this plea affords no notice to the opposite party, whether it is fraud in the execution of the note, or only misrepresentations which were the inducement to make it; which only amount to a want of consideration, and are no defense to a valid instrument. It would seem to me this objection, on general-demurrer, at least, is not well taken. The very nature of a valid instrument precludes an inquiry into the want of consideration; any representations made, therefore, to induce its execution, as to the nature or quality *of property for which it is given, [382 and which do not amount to fraud in the execution itself, are settled by the law not to be the subject of inquiry. The plaintiff . could not, therefore, be misled by supposing the inquiry, under the plea, would be a species of fraud, which the law would not permit on this trial to be investigated.

It is clear, then, that no other construction can be given to this plea than that the fraud, covin, and collusion it sets up, or such as relate to the execution of the note, and in this particular the plea is sufficiently certain. Is this plea bad because it does not aver the acts which constitute the fraud? The current of authority is certainly the other way. In 2 Hall, 434, there is a replication to-a special plea in bar, setting up that a deed of release was obtained by fraud and covin; this replication was treated as sufficient although so general and broad in its allegation, for the defendant-in his rejoinder took issue upon it. There are many precedents of high authority in the books to support this plea, and we think it sufficient to bar the plaintiff’s right of recovery.

One point more remains to be disposed of. The plaintiff’s counsel claim that if it is fraud in the execution of the contract, on which the defendant’s counsel rely, that such fraud may be-given in evidence, under the general issue of non est factum, and therefore the plea amounts only to the general issue, and must be held bad. If the counsel are correct on both points of law, their reasoning has nevertheless more ingenuity than solidity, in its application to this case. In assumpsit, payment, award and satisfaction, a release, discharge, and until the case of Imman v. Jenkins, a former recovery, might be given in evidence under the general issue. Either of these grounds of defense might be amounting to nothing more than tho general issue. Fraud may pleaded, and the plea, I apprehend, would not be rejected as be plead here, but because it may be given in evidence, it by no means converts the plea into the general issue. On all the points made, the plea is held sufficient, and the demurrer is overruled-There is an issue of fact for the jury.


author: * Judge Wright

text:
    *The State of Ohio v. The Heirs of M. Baum and others.
    A written proposition to the canal commissioners to convey grounds for hydraulic purposes on the canal, upon certain terms and conditions, not accepted by resolution or otherwise concluded, by specifying the land or reducing the agreement to specific terms, can not be specifically enforced in equity.
    This cause was adjourned here for decision in the county of Hamilton. Upon the bill, answers, exhibits, and depositions, the following case is made:
    The legislature, in section 10 of the act to provide for the internal improvements of the state by navigable canals, 23 Ohio L. 57, authorized the canal commissioners to apply to the citizens and others for grants or donations, in land or money, for the purposes of aiding the construction of said canals, and to take to the state such conveyances as might be competent to vest in the state a good title in the lands to be granted. By another act, 24 Ohio L. 58, the canal commissioners are authorized to procure land, by purchase or otherwise, at any point on the canal, where the water can be profitably used for hydraulic purposes. Provision is made, in this act, that such contracts shall not bind the state until submitted to the governor and approved by him. Other laws authorize the canal commissioners to soli the surplus water.
    The canal commissioners, by resolution of the board, in April, 1826, authorized the acting commissioner to negotiate for the purchase of lands to secure the state the value of the water-power created by the canals, where the amount paid at one point, or upon one contract, should not exceed five hundred dollars; in January, 1828, empowering the acting commissioner to sell or lease the water privileges of the canals for a period not over twenty-five years; in February, 1830, allowing him to sell hydraulic power at prices ranging from twenty-five to two hundred and fifty dollars, for a quantity sufficient to drive a pair of four and a half feet millstones, and the machinery for bolting and cleaning grain, and also to procure land on which to use hydraulic power where there may be surplus water.

      M. Baum, in his lifetime, addressed to M. T. Williams, one of the acting canal commissioners, the following letter:
    *“ Cincinnati, December 15, 1829. [384
    “Mr. M. T. Williams — Sir: According to the final location of the canal from Main street unto the Ohio river, in this place, there will be a fall from thirty-three to forty-four feet on my land. About one-half of this is above high-water mark in the Ohio river, and the other half below high water.
    “ I make the following two propositions to the canal commissioners, to wit: 1. I will convey to the state "as much ground as will be necessary to employ one-half the water on each of these falls, which can be used for hydraulic purposes at this point: say, six, seven, or eight lots, fifty by seventy feet each, as marked on the plat herewith sent, and I will lease the balance or the other half of the water, for which I agree to pay at the rate of two hundred and fifty dollars per annum for every one hundred and fifty cubic feet of water on the upper fall of sixteen feet or upward, and one hundred and fifty dollars per annum for the same quantity of water and height of fall on the lower seats or falls.
    “Or, 2. I will lease all the water at these seats, and pay the above rates, without granting any land to the state. One-third part of the rent is to commence at the time the water is delivered at the seats for operation; one-third one year thereafter, and the last third when the canal and the locks are completed between Main street and the river. Tour obedient servant,
    ‘Martin Baum.”
    Williams laid this proposition before the board of canai commissioners in a few days after its date, and was advised by them, without resolution to that effect, to accept the first proposition made; and in March, 1830, verbally notified Baum of his acceptance, and from thence until Baum’s death, he considered it understood by Baum and himself, that the state had a right to a title for said lots, when demanded, and that Baum had a right to a lease of the water privilege, upon the conditions named in the letter; but it was agreed, orally, that the title for the lots should remain in Baum until the arrangement and position of the locks should be definitely established, as it might be deemed best to modify their shape and position, to accommodate the interest and convenience of the parties. It was further orally agreed, that S. Farrer, the engineer then in charge of that part of the canal, 385] should finally modify and lay out the *lots to be conveyed to the state, as he might find most convenient for the application of the surplus water to hydraulic uses; and that no more ground should be conveyed than he should determine to be necessary for such application of one-half of the water; but such quantity, if not greater than the largest quantity proposed in the letter, should be conveyed. The price proposed to be paid for the water rent was as high as was paid for such privileges at any point on the canal. No time was agreed upon for the completion of the canal, or within which the water should be supplied for use.
    Farrer, the engineer, and Baum in Bis lifetime, made a plat of the ground through which the canal runs, marking out the streets, alleys, lots, canal-locks, and mill-race; designating, among other things, the six lots named on the plat given to Williams, and also three other lots of sixty by eighty feet each, adjoining one of the locks. The six lots designated, Farrer adjudged necessary for the purposes contemplated in the letter of Baum, and he considered the plat to the extent of the six lots final; but it was afterward agreed between him and Baum to leave the matter open for further negotiation as to the exchange of some of the lots on one side of the canal for some on the other.
    The canal through these grounds was not completed until after Baum’s death, nor when the suit was commenced; and the water is not yet prepared for use.
    On this state of the case the state has filed her bill, alleging that the administrators of Baum, and the heirs, some of whom are married, decline applying to the court of common pleas for power to convey these lots, and praying a decree for a “a specific performance of the contract,” and a conveyance “ for the land Baum agreed to convey, being the eight lots designated on said plat.”
    T. Worthington, for the state.
    J. Caswell, for the defendants.
    N. Wright, on the same side.
    ,S. P. Chase, on the same side.
   * Judge Wright

delivered the opinion of the court:

The counsel for the state urge a decree for the conveyance, because there was a contract between the parties which has been executed by the state; and insist that the statute of frauds and perjuries has no application to the case, because the proposition of Baum is in writing signed by him, and itself a contract; or, if held otherwise, that the statute of fraud and perjuries does not apply to the government, or regulate contracts made with it; and, in case this shall not be set up as a valid contract, that then the right of the state may be established, on the ground that this land has been dedicated to the use of the state.

We are unable to see what there is in the transaction disclosed, authorizing this court to interfere on the ground of a dedication to the public. The letter, if of any legal efficacy, is a proposition for a contract, and must be regarded only as such.

The assumption that the state, more than individuals, may enforce oral contracts for land, and is exempt from the provisions of the statute of fraud and perjuries, is too novel to be hastily adopted by this court. The claim for the state, that she may enforce descriptions of contracts against individual citizens, the execution of which, as between individuals, tends so strongly to encourage fraud and perjury as to. require the special interference of the general assembly, does not recommend itself to a favorable regard upon the first presentation of it.

It is, however, not necessary to discuss those questions, as the case may be disposed of upon acknowledged principles without. Equity will exercise a sound discretion in decreeing a specific performance of a contract, and will often refuse a decree and leave parties to their legal remedy, even where the circumstances would not warrant the setting aside the contract. 6 Johns. Ch. 111; 1 Cox, 402. So where the case is hard and unconscionable, or destitute of equity, the parties will be left to their remedies at law. 4 Pet. 328. They will be left where the agreement is voluntary without consideration paid, or defective in its terms, unless there is fraud, accident, or some unfairness alleged. 4 Johns. Ch. 499. So, if the terms of the contract be uncertain, though reduced to writing. 2 Sch. & Lef. 7; 1 Ves. Jr. 326; and equity will not supply the ambiguity. Bunb. 65; 1 Ves. & Bea. 524; 5 Pet. 276. An agreement must be certain, fair, and just in all its parts, or a performance will not be decreed.

*Apply these principles to the case before the court. What certainty is there in the alleged contract? Baum made _a proposition for a contract, which required subsequent arrangement to adjust its details and settle its terms. The precise land intended to be granted, its quantity, location, the time, and the water to be used, were all loft open and unsettled when Baum died. The location of the mill-race, streets, and alleys were, it is true, settled in his lifetime; all the other matters remained at the time of his death subject to modification. Nor has the state performed, or made certain, its part of the contract. The canal was not finished at the commencement of the suit. It is only alleged to be in such a state of forwardness that the state will want the land, and be able to supply the water in the course of the coming summer, though she knows not exactly when the water can be used, or what quantity can be furnished to the Baums on lease, in execution of her part of the agreement. There is no certainty in this alleged contract. It is voluntary and hard; and the court is prematurely applied to for relief.

It is also without mutuality. A specific performance will not be decreed when the remedy is not mutual, as if only one party is bound by the agreement. 1 Johns. Ch. 282, 370. This contract would not be enforced by Baum’s heirs against the state, even if, not being sovereign, she could be sued. She incurred no obligation to do anything. As a purchase of land for hydraulic purposes, it is invalid without the sanction of the governor, which has never been given to it.

Upon the whole, then, we think the contract imperfect and ihchoate — hard and voluntary — without mutuality; and on either ground not to be decreed. As a donation, it can not be decreed. As a dedication, the claim is wholly destitute of legal foundation. If loss has accrued to the state, by reason of the imperfect state of papers or contract at the death of Baum, she must bear it. This court will not shift it from her to Baum’s heirs.

The bill is dismissed.


author: Judge Wood

text:
    *George Austin v. Anson Hayden.
    Original process issued by a justice of tbe peace can not be made part of the record, by oyer, on appeal to tbe common pleas.
    In case before a justice for killing a hog, plaintiff may declare in trespass, in the common pleas.
    This cause was adjourned in the county of Trumbull.
    P. Hitchcock, for plaintiff.
    J. Croswell, for defendant:
   Judge Wood

stated the case, and delivered the opinion of the court:

The plaintiff brought an action before tbe justice of the peace, against the defendant, which was tried, judgment rendered for the defendant, and an appeal taken to the common pleas. The transcript certified up by the justice is entitled as follows: “ George Austin v. Anson Hayden, action on the case, damages twenty dollars for killing plaintiff’s hog, May 28, 1833.” The plaintiff filed his declaration in the common pleas in trespass for the same cause of action set forth in the transcript.

The defendant craved oyer of the writ issued by the justice, and - of the transcript certified to the common pleas, and filed his plea in abatement to the declaration, on the ground of variance between the writ, transcript, and declaration; the cause of' action-in the writ and transcript being trespass on the case, and, in the-declaration, trespass.

To this plea, in abatement, the plaintiff filed a general demurrer, on which issue was joined, and judgment given thereon by the common pleas for the defendant, sustaining the defendant’s-, plea,.in abatement, to the plaintiff’s declaration.

The plaintiff has assigned for error, on this record :

1. That the court of common pleas erred in overruling the-plaintiff’s demurrer to the defendant’s plea in abatement.

2. That the common pleas erred in sustaining the defendant’s-plea in abatement.

3. That the common pleas erred in rendering judgment for the.defendant, when, by law, it should have been for the plaintiff.

On this record, and these assignments for error, it will at once be perceived that but a single inquiry is presented, which is. how far a plaintiff may vary, in stating his cause of action in his declaration in the common pleas, from the form of action as sot forth by the justice in the transcript? This subject has been frequently 389] agitated in the different parts of this state, and *is believed to have been determined in different ways in the different circuits in which it has arisen. The extent of the jurisdiction of justices of the peace, and the frequent appeals taken from their judgments, make it highly necessary the question should bo settled by a reported decision.

In iorming an opinion on this subject, but little light can be obtained by a reference to any of the English books of practice; but we must look to our own statute, and to our local circumstances, and as far, at least, as reason and propriety will bear us along, and our power exists, view the proceedings of justices of the peace in that light which the exigencies of our community so peculiarly would seem to require. The proceedings of justices of the peace have usually, in our courts, been viewed with a favorable eye, and every reasonable intendment made to sustain them. From the manner in'which they are elected, their numbers, and the little business throughout the state which falls to the share of each, it ■ can not reasonably be supposed that they are generally acquainted 'with the forms of legal proceedings, and apply to their official acts ?.the same rules that we apply in courts of record, and few, very few, •of their proceedings can be sustained. This would not do. It •would produce much evil, and is not in our vew called for.

So far as the defendant has craved oyer of the writ issued by the ■justice, and pleaded in abatement for variance between that and •.the declaration, his plea in abatement is bad, and the demurrer to it properly sustained. The defendant can not crave oyer of the writ issued by the justice. It forms no part of the justice’s record. It is not required to be certified up to the common pleas, but remains with the files of the justice. It is, therefore, beyond the reach of the defendant, and, as he can not have oyer of the writ, he can not avail himself of any variance between it and the declaration, by plea in abatement.

It is true, section 44 of the act defining the duties of justices of the peace requires the justice, when an appeal is taken, to certify •up the bill -of particulars, the depositions, and all other original papers, if any were used on the trial before him. The bill of particulars is to be certified, because the plaintiff is confined to it in the common pleas; the depositions are to be certified, to be used as evidence on the trial; “ and all other original papers, if any used on the trial, means, we think, such papers and instruments only, as were used as evidence on the trial. The writ issued by the justice can not be used as evidence *on the trial; it forms [890 no part of the record, and could not be used in the common pleas, and it can not be supposed the statute required it to be certified to the common pleas, so long as it is perfectly useless to do so. The defendant, then, can take no advantage of a variance between it and the declaration, because he has no right to oyer of the writ. ,

The transcript is certified up by the justice. It forms a part of the record. It is the process or means by which the parties get' before the court. The defendant may crave oyer of the transcript, and if any real, substantial variance exist between it and the declaration, he may plead it in abatement. So liberally do we view the proceedings of parties, however, that it must be clearly such a variance as I have described, or it will not be favorably regarded. The transcript is in this case substantially like the writ; and is there any variance between it and the declaration which the law will not tolerate? In the transcript the suit is described, an action on the case; damages twenty dollars for killing plaintiff’s hog. The cause of action, as here laid, is clearly in tort. It is so far described, that the defendant has notice what it is for which the plaintiff complains. Is it possible that he can be misled in the common pleas, if the plaintiff then declares in trespass for killing a hog ? Is not the cause of action precisely the same ; and the only difference that, in the one case, the damages are immediate, and in the other, consequential? Would it be right? Does good policy, or is there any rule of positive law, applicable to the proceedings of a justice of the peace, that would require him to define the boundaries between trespass and case? A'point which it is sometimes difficult for the most learned of the profession to correctly determine. We think not.

Section 44 of the act to which I have reference, it is true, provides “the plaintiff in the court below shall be plaintiff in the court of common pleas, and the parties shall proceed in all respects in the same manner as though the suit on action had been originally commenced in said court.” Counsel argue, on this section of the statute, that as the parties are to proceed in the same manner on the appeal as if the action had been commenced in the common pleas, that taking the transcript for the process, they may avail themselves of any variance between it and the declaration, as if it were an original writ. We do not think so. This section only intends to require that a declaration shall be filed, an issue 391] made up, and the trial ^conducted on an appeal,, as if the proceedings had been commenced in the common pleas. This seems to us to be the obvious construction, and viewing the proceedings of the justice with certainly but reasonable liberality, there can not be said to be any variance between the transcript and variation, which ought to avail the defendant on a plea in abatement.

In Newland on Contracts it is said the declaration is only an enlarged exposition of the writ, and that the plaintiff may so far vary from the writ in declaring, as to go from assumpsit to debt, and e converso, but not from contract to tort. Reasoning from analogy, then, the plaintiff may change from trespass to case, or e converso ; and although there is no positive written rule to be found to sanction it, it is known to have been the practice in some of the circuits in this state to permit the change from one species of contract or tort to another for many years, and such we think to be the law; but whether a variance from contract to tort or tort to contract in such cases would be sustained, is unnecessary to be decided in this case. It is our opinion that the court of common pleas erred in overruling the demurrer to the defendant’s plea in abatement, and the judgment of the common pleas is reversed.


author: Judge Lane

text:
    Treon’s Lessee v. Emerick.
    Levy and sale on execution of a tenant in common’s interest, as by specified metes and bounds, is good for his undivided proportion within such boundaries.
    Plaintiff in ejectment may recover for any interest he may prove a title to, less than the claim in the demise.
    Sixty acres, part of north half section 13, insufficient description of land sold for taxes.

      This case was adjourned from the county of Montgomery, and came before the court upon an agreed statement of facts.
    In 1820, Dehart, from whom both parties claim title, conveyed the lands in dispute, being sixty acres, to Regal, Hubbler, and Jacoby. In 1827, Jacoby conveyed his undivided third part to Treon, the lessor of the plaintiffs. In 1820, a judgment was recovered against Hubbler and Regal, upon which execution was issued against them, which, in August, 1820, was levied upon their interest in this land. A sale was effected upon a subsequent execution in 1827, and Treon became the purchaser. The levy is in these words: “No goods levied on forty-three and a half acres of land on the east side of a tract of sixty %eres, that Dehart [392 conveyed to Jacoby, Regal, and Hubbler, in the west half of section 13, T. 3, R. 4, east of M. D. Said land to be run off by a line the same course with the east boundary'of said sixty-acre tract; said levy is made only to include Regal and Hubbler’s interest in said land.”
    The appraisement under vrhich the land was sold by the sheriff was of an undivided third part of the sixty acres. The sheriff’s deed recites the levy truly, and the appraisement of two undivided third parts of sixty acres, and proceeds to convey to Treon “ the premises so taken.”
    The defendants were in possession under a sale for taxes made in 1822. The description of the land in the duplicate and advertisement of sale is as follows: “Not known (owner’s name), R. 4, T. 3, S; 13, p. N. half sixty acres.”
    Odlin, Grane, Schenck, and Stoddard, for plaintiff:
    The agreed case admits the legal title to have been in Jacob W. Dehart, on October 8, 1816, and both claim under his title — the plaintiff by sheriff’s sale, the defendant under tax title.
    The first question that presents itself is, does the levy, sale and confirmation, and deed convey a good title (to the lessor of the plaintiff) to the undivided two-thirds of the sixty acres, of which it is admitted the judgment debtors, Regal and Hubbler, were then seized.
    The levy, though it attempts to effect a partition by calling Regal and Hubbler’s interest as forty-three and a half acres, is evidently, in intention and fact, a levy only on Regal and Hubbler’s interest, and is so declared, being two-thirds of the sixty acres; the appraisements made appraise the whole land, and deduct the outstanding third of Jacoby. And by the execution of August 9, 1827, under which the sale was made, it appears to have been advertised and sold as the undivided two-thirds of said sixty acres.
    The decisions go strongly to sustain the title of a purchaser under a sheriff’s sale. In the case of Wheaton v. Sexton, 4 Wheat. 503, it is said : “ Whether the marshal sells before or after the return, whether he makes a correct return or no return at all to the writ, is immaterial to the purchaser, provided the writ was duly issued, and the levy made before the return.” This doctrine is 893] recognized in the case of Lessee of Allen v. *O. Parrish, 3 Ohio, 191. And it has been frequently decided that the title of a purchaser under a ft. fa. et lev. is not affected by an irregularity in the proceedings. 1 Maule & Selwyn, 425; 5 Barn. & Ald. 746; 3 Johns. 97; 1 Gallison, 419; 8 Johns. 361; 1 Johns. Cas. 153.
    In the case of the Lossee of Matthews v. Thompson and others, 3 Ohio, 272, 274, it is said, “ a variance between the levy and the deed may be explained by parol; if the levy was actually on the tract contained within the deed, and that fact was known and understood at the time of the sale, no injustice has been done; an innocent purchaser ought not to suffer by the careless manner in ’which the officer has returned his proceedings, if, in point of fact, they have been substantially correct.”
    In the case of Douglass v. McCoy, 5 Ohio, 524, that a defect in a levy may be supplied by parol, and that proof was the order of confirmation, identifying the land, which was carried into the deed, and, in the absence of proof, would perhaps lead the court to presume, if necessary, that the part conveyed was the part appraised, and was duly described in the advertisement. The levy is made upon a tract of sixty acres, described to be conveyed by Jacob W. Dehart to Jacoby (1), Regal (2), and Hubbler (3), and declares that it is made to include Regal and Hubbler’s interest; that interest from the statement of the conveyance itself, contained in the levy, is two-thirds of the whole sixty-acre tract. It may be contended that the levy was upon the two-thirds interest in the íbrty-three and a half acres part of said tract.
    To this it is answered, that in the cases above cited of the Lessee of Matthews v. Thompson and others, and Douglass v. McCoy, the court have said, that a defect in a levy may be supplied by parol. However defective the amount of interest levied upon may appear in consequence of not naming at first sixty acres instead of forty-three and a half, yet the object and intention of the sheriff is explained and rendered manifest by the appraisement which he made (and of which the court have the original), by immediately causing his appraisers to appraise the whole sixty acres, and the deducting one-third for the outstanding interest of Jacoby, and by the fact that it was advertised and sold as the two-thirds of sixty acres, or rather as the undivided interest of Regal and Hubbler, in the whole tract of sixty acres. If, then, any doubt rested upon this levy, *the officer has himself explained it ; [394 as such the court confirmed the sale, and if the act of examination and confirmation by the court, and an order to make the deed for the undivided interest of Regal and Hubbler, is to bo of any value to an innocent purchaser, surely it is not contending too much to say, that the court were satisfied that the levy was upon the undivided two-thirds of the whole sixty acres, and so ordered the sheriff to convey, and thereby established and confirmed the construction placed upon the language of the levy by the plaintiff’s counsel, and which construction maybe fairly and properly drawn from that levy.
    In the language of the court in Matthews v. Thompson, before cited, it has been fully appraised, and fairly sold. No injustice has been done, and an innocent purchaser under such circumstances ought not to suffer.
    If, however, the court should differ from the plaintiff’s counsel and should be of opinion that the levy was a levy only upon Regal and Hubbler’s interest in the forty-three ind a half acres part of said tract of sixty acres, they still claim to recover under the authority of the case of the Lessee of White v. Sayre, 2 Ohio, 110. 2. By the agreed case the lessor of the plaintiff presents an undisputed legal title to one-third of the premises, by deed from Jacoby. But it is understood by a memorandum of objections furnished by defendant’s counsel, that upon that he can not recover, because, say counsel, the demise laid in the declaration is for the whole sixty acres, and not for an undivided interest.
    It is supposed that this objection is decided against the defendant beyond all controversy or cavil.
    In the case- of the Lessee of White v. Sayre, before cited, 2 Ohio, 115, Judge Burnet says, “ if a person declares for an entire tract, and proves title to a moiety only, he shall recover so much ; and again, the point can admit of no doubt, the plaintiff must recover according to his title,” and cites 2 Lev. 334; 2 Bibb, 350; Bull. N. P. 109. In Burgess’ Lessee v. Purvis, 1 Burr. 326, Lord Mansfield says, “it is an exceeding plain case, that part maybe recovered on a demise of the whole.
    In Adams on Ejectments, 188, it is said, “ under a demise for the whole, an undivided moiety may be recovered.” Doe, on the demise of Bryant, v. Whipple, 1 Esp. 330; Jackson v. Sidney, 12 Johns. 185.
    395] *It is contended, then, that the lessor of the plaintiff, has shown a legal title to recover at least a part, unless he is barred by some other cause than the objections urged to his title.
    For this purpose the defendant sets up a title derived from a sale for taxes delinquent in the years 1820-21.
    “ This title can not be established unless he shows the authority of the collector and the regularity of his proceedings. Great strictness has always been observed. The purchaser buys at his peril; the maxim, caveat emptor,’ applies.” Lessee of Holt’s Heirs v. Hemphill’s Heirs, 3 Ohio, 234.
    Under the provisions of this act, by the extract from the duplicate of 1820, it appears: “ Dechant — 60, 1, 2, 3 — R. 4, T. 3, S. 13 — ■ for N. half! — $1.50.
    And on the duplicate of 1821, it appears that the name of “ Dechant ” was omitted, notwithstanding the positive requisition of the statute, and entered thus: jxj —60, 1 — R, 4, T. 3, S. 13 — for N. half — $2.86.5.
    It also appears by the certificate of extracts, and copy furnished by the county auditor for the court in bank, and which have been forwarded, that although a certificate of an oath was attached to the duplicate, as required by section 30, yet that it was never sworn to. This fact does not appear by Certificate furnished by defendants, but is apparent by the one furnished' the court by plaintiffs.
    The land was advertised for sale, as follows: “Not known— R. 4, T. 3, S. 13 — for N. half — 60, 1 — $4.14.4—sold.”
    It is objected; 1. That the land was not properly listed under the statute, the owner’s name being known,-as evidenced by the duplicate of 1820, “ Dechant.”
    2. That the list of delinquent lands was never sworn to as required by the statute, section 30.

      3. That the land was never properly described by quarter section or lot, nor is stated whether east or west of Miami river; there being asimilar section, range, township, and quarter east and west of said river. See Hough and Bourne’s map of state and section.
    4. That it was never advertised in a paper at the seat of government.
    Upon the objection that the land was not described by quarter or lot, we confidently rely as defeating the defendant’s title; it is listed in direct opposition to the words of the statute, which requires that the quarter section or lot shall be designated ; it affords no notice to the owner: “Not known, sixty acres,” *part [396 of the north half of a section could convey to Dechánt no information. In Lafferty’s Lessee v. Byers, the court say, “that the description should be such that the owmer may know that the tax is unpaid on his land; and that the purchaser may know or learn the precise tract intended, and be'enabled to estimate its value.” Lessee of Matthews v. Thompson, 3 Ohio, 569; Lessee of Massie’s Heirs, 2 Ohio, 293; Ronkudorff v. Tayton’s Lessee, 4 Peters, 350.
    Fales, and P. P. Lowe, for plaintiff:
    The deed from sheriff to plaintiff is of two undivided third parts. The levy was made on a several interest, not an undivided one. If a deed by a private individual had been made with a similar description, showing, as in this case, from what part of the tract the land was to be taken, such a deed certainly could not convey an undivided interest. If this view is correct, the undivided interest of the two defendants was not levied on. The land was held in common, and they had a common interest in every part of it until there was a partition. The interest levied on and that sold were entirely different. Two-thirds of an undivided interest in sixty acres were sold, and forty-three and a half acres of the same by metes a.nd bounds were levied on. Theinterest of Jacoby was levied on and sold, inasmuch as he had an interest in the forty-three and a half acres as much as in any other part of it. That interest of Jacoby, being a tenant in common of the whole, could not be levied and sold, as the judgment was not against him. 3 Ohio, 196. Levy of an execution upon the lands and a sale by the officer are essential to a purchaser acquiring the same interest in the land that the judgment debtor had. French v. Lord, Adams 42. An execution against one holding land as a tenant in cornmon can not be extended on a part of the land as holden by metes and bounds. 12 Mass. 348. Execution against the land of a joint tenant or tenant in common can not be levied upon any particular portion of the land ; it must be levied on the debtor’s share of the estate in the whole land. 2 Conn. 213, 244, in notes. Lands of one tenant in common can not be extended by metes and bounds, but the execution must be spread over the whole land, and such undivided proportion thereof must be set off to the creditor to satisfy his debt. 4 Greenl. 230. Rules of construing conveyances by 397] deed and extentare *the same. The number of acres levied on was more than the proportion of two defendants in the execution in the tract. The judgment and the execution being against two of the tenants in common, the interest of the other tenant in common, Jacoby, could not be sold, and the sale, therefore, could not be valid, as his interest was in fact sold, that interest being an undivided third part of the whole tract. Tenants in common may have a partition. If a levy and sale founded on it like the present should stand, it would defeat the rights of the tenants in common. J. W. Dechant and wife conveyed by deed, bearing date February 3,1820, to Henry Jacobjr, Matthias Rigol, and Michael Hubbler, re? corded September 21,1820, the premises in dispute. Thepart levied on is described very particularly in the levy. The description applies to the whole tract, and the meaning of it can not be controlled by the concluding words in the description.' If the sale of the sheriff is void as to two-thirds of the tract, it is further insisted, on behalf of the defendant, that the plaintiff can not recover the third part of the tract conveyed to him by Jacoby .by deed, under the declaration in this case, because it is a rule of law, that when the plaintiff sues for an entire tract, he can not recover an undivided portion. 4 Stark. Ev. 541, n. 1. Where an entirety is demanded in ejectment, there can not be a recovery of an undivided part, the notice of such recovery being considered different from that oftheclaim. Young v. Drew, 2 Hayw. 100. Evidence of title toan undivided moiety in ejectment will not sustain a count for the whole tract. Carroll et al., Lessee, v. Norwood’s Heirs, 5 Har. & J. 164. If a person claims one hundred acres, less, than one hundred may be recovered. If he claims an undivided moiety, an undivided third may be recovered, or any undivided portion less than a moiety, but he can not recover an undivided part, when he claims an entirety, nor an entirety when ho demands an undivided portion. 7 Har. & J. 208. Where an entire tract is sued for, less than the whole may be recovered, but it must be an .entire and not an undivided interest.
    Again, the defendant insists that he has a good title to the premises in dispute. They were conveyed by deed in fee simple on a bona fide purchase to him by Elisha Brabham. They were sold to said Brabham by the auditor of Montgomery county for taxes, and a deed made to said Brabham for the same by the auditor of Montgomery county agreeably to law. The ^validity of [398 the tax sale is resisted by the plaintiff. On behalf of the defendant, it is insisted that the title by the tax sale is good and valid. The evidence necessary to support a tax title is stated in the following case : Lessee of A. Carlisle v. N. Longworth, 5 Ohio, 374. The court say that before the deed made by the county auditor can be received in evidence, it must be shown that he had authority to make it. And that that is done by showing that the lands have been advertised and sold for the taxes, and that all that is required to be made matter of record in the auditor’s office, and that there can be no difficulty in procuring the evidence, and that in connection with this preliminary evidence, the deed will be received, and the legislature has declared its effect.
    The evidence required by the court in support of a tax title in the preceding case, is furnished by a certified copy of the record of the county auditor of Montgomery county. It appears by that, that the lands had been advertised, except at Columbus, and sold for the taxes of 1820 and 1821. With this evidence, if the advertisement at Columbus was unnecessary, the tax title in this case is sustained agreeably to the rule laid down in the last case. The law, as observed by the court in the said case, has declared the effect of the deed of the auditor, see 18 Ohio L. 85, section 40, that all deeds of land sold for taxes,’shall convey to the purchaser all the right, title, and interest of the former proprietor in and to the land so sold, and shall bo received in all the courts as good and sufficient evidence of title in such purchase.
   Judge Lane

delivered the opinion of the court:

The levy appears to have been made with the intention of covering the whole interest of Eegal and Hubbler in the sixty acres. But it is so made as to fail in effecting that object. Eegal and Hubble'r held a joint interest with Treon, the purchaser from Jacoby, and this joint interest could not be separated by a levy, without investing the sheriff with an ex parte power of making partition. The levy is specific and confined to forty-three and a half acres. The boundaries are specially defined, and consequently the levy does not touch the remainder of the tract. The question then arises, whether these proceedings convey the land within them? We consider this point decided by the case of 2 Ohio, 113. There a majority of the court held, that a deed which 399] purported to convey an estate in severalty, *in which the grantee held a tenancy in common, was operative to pass the interest of the grantor to his undivided part within the limits described in the deed. The deed of the sheriff operates in the same way, and conveys to the purchaser two-thirds of the forty-three and a half acres of land.

In this view of the case, the plaintiff is entitled to forty-nine acres of the sixty, and not to the whole tract as he claims. Tet he is permitted to recover to the extent of his proof of title. The verdict and judgment may be for any amount of land less, than the whole quantity claimed in the demise. 2 Stark. Ev. 540.

The tax title set up by the defendant can not be sustained. The description in the duplicate and advertisement is too vague and uncertain: “ Sixty acres, part of the north half section 13.” Which sixty acres, is an inquiry natural to be made. In Lafferty v. Byers, 5 Ohio, 458, it is held that such description is too general. The tax sale must be held void.

Judgment for the plaintiff.

Defendant asks, and is allowed the benefit of the occupying claimant law.


text:
    George Hurley v. The State of Ohio.
    In a capital case, where the jury state they can not agree, the court may, in their discretion, discharge them, remand the prisoner for another trial, and continue the ease.
    Plea of autrefois acquit, must set forth not only the verdict of the jury, in the former trial, hut a judgment thereon, or it is bad.
    The indictment does not aver, that the grand jury were impaneled and sworn to inquire of crimes and offenses committed within the body of the county, is not error.

      "When the indictment contains three separate counts, and the jury say they find the defendant not guilty on the first, but can not agree on the other counts, it is not error for the court to refuse to receive the verdict and have it recorded.
    It is not error which will sustain a motion in arrest, that the traverse jury were not summoned within the time specified by the statute.
    This case was adjourned from the county of Highland. It was a writ of error made returnable to this court. The facts, as they appear of record, are these: The grand jury at the March term of the court of common pleas of Highland county, 1834, returned a bill of indictment against the plaintiff in error, containing three counts. The first count charged the plaintiff with murder in the first degree; the second, with *murder in the second degree, [400 and the third, with manslaughter. The plaintiff was put on his trial, at the same term, before the jury, who, having heard the evidence, retiredto deliberate, and having been some time absent, returned into court, and stated that they were unable to agree. The record states that the jury were then separately and collectively called, when they informed the court that they had agreed that the plaintiff was not guilty on the first count, but that they were not ablo to agree on the other counts, and that the court then continued the prosecution, and discharged the jury, on the motion of the prosecuting attorney, and against the consent of the plaintiff. The counsel for the plaintiff in error then moved the court to enter on the journal the verdict of the jury on the first count, which the court refused.
    At the succeeding term, the accused, by his counsel, filed two special pleas in bar: First, that the accused at the former term was arraigned on said indictment, plead not guilty, and was put on his trial; that the jury heard the evidence, retired and returned into court, were called and answered collectively and separately that said defendant was not guilty on the said first count, and thereupon the court discharged the said jury, on motion of the prosecuting attorney; that said indictment and said count, on which he was tried and acquitted, were the same, etc., on which it was now sought to again put him in jeopardy.
    The second plea in bar set up, that the accused was, at a former term, placed on his trial before the jury, and, after the jury had heard the evidence, the court, against the consent of the accused, on motion of the state, discharged the jury, etc.
    To these pleas in bar, the prosecuting'attorney demurred, and the plaintiff in error joined in demurrer. The court sustained the demurrer to the special pleas, and the accused was placed again on trial.
    On this second trial, the jury áequitted'the plaintiff in error, on the two first counts of the indictment, and convicted him of manslaughter, the offense charged in the third count.
    The counsel for the plaintiff in error then submitted a motion for a new trial, for the following reasons: 1. That the verdict was contrary to the evidence. 2. That the jury were illegally impaneled, because no new venire was ordered, when the jury wore discharged, that had been sworn. 3. Because the jury mistook, or did ( ot remember one important part of the evidence for the 4-01] plaintiff in error. 4. Because the verdict *is contrary to law. 5. Because new testimony has been discovered since the trial. 6. Because the jury was not unanimous. This motion was overruled by the court, and a motion in arrest then filed, for these reasons:
    1. That it appears from the record, that the plaintiff in error was put on his trial, on a plea of not guilty, and acquitted by the jury at^the March term, 1834, of the court, on the first count of the indictment which included the offense set forth in the two other counts.
    2. Because the indictment was not continued, or a new venire ordered, at the said last March term, 1834.
    2. Because the court erred in sustaining the demurrer to the pleas in bar.
    4. Because the plaintiff in error had, at the March term aforesaid, been tried and acquitted, and was again put in jeopardy of his life by a second trial on the same indictment.
    5. Because the indictment does not state the grand jury were sworn to inquire of crimes and offenses committed within the county of Highland.
    This motion, in arrest, was also overruled, and the plaintiff in error sentenced to imprisonment in the penitentiary.
    These are, we believe, the facts and circumstances, so far as they are shown-by the record, which attended this trial from its commencement to its termination in the court of common picas. The plaintiff now prosecutes his writ of error to reverse this judgment, and has assigned for error: 1. That the court below erred in discharging the jury, at the March term, 1834, without the consent and against the wishes of the plaintiff in error. 2. That the court erred in not entering judgment of acquittal on the first count of said indictment, according to the opinion and finding of the jury, at the March term, 1834. 3. That the court of common pleas erred in sustaining the demurrer to the said special pleas. 4. That the court of common pleas erred in not granting said plaintiff in error a new trial, for the reasons assigned at June term, 1834. 5. That the court of common pleas erred in not arresting the judgment for the reasons assigned at June term, 1834. 6. That it is not averred in the indictment that the “ grand jury ” were impaneled and sworn to inquire of crimes and offenses committed within said county of Highland; nor for any particular county, district, or place.
    *Collins and Collins, for plaintiff in error.
    Soott, prosecuting attorney.
   Judge Wood

delivered the opinion of the court:

The first error assigned on this record presents the question, whether the court- can discharge the jury after they had been once impaneled on the trial of a criminal cause without a discharge of the defendant? If they have not this power, the court were clearly in error in putting the plaintiff in error a second time on his trial in this indictment, fo,r no rule is better settled than that which prohibits putting a person twice in jeopardy for the same crime; and our constitution is nothing more than the recognition of the common law principle on that subject. Have the court, then, the power whore the jury are unable to agree, or for any reasonable cause, to discharge them, continue the prosecution, remand the prisoner, and try him at a subsequent term. There have, in modern times, been several decisions in England, which seem to sustain the course pursued by the court below. In the case of the People v. Olcott, 2 Johns. Cas. 301, Kent, Justice, in delivering the opinion of the court, says, that the position, generally,' denying the power of the court to discharge a jury, sworn and charged in a criminal ease, has originated from a dictum to be found in the institutes of Lord Coke, and that this dictum rests on his single authority, without the sanction of any judicial decision. On the other hand, he says, there are many authorities which establish the power of the court to discharge the jury in capital cases. It was done in the case of Ferreus, cited in Sir Thomas Raymond; in 1 Ventris, 69, and in Foster, 271, which was a case of murder. In Salkeld, 646, and 2 Hale’s P. C. 295, it is said, in direct opposition to Coke, that the practice had been common for the court, after the jury were sworn and charged and evidence given, to discharge the jury and remand the prisoner for another trial. In Foster, 22, in the case of the two Kinlocks, ten judges against one held, that the rule as laid down by Coke, that the court had not this power, had no authority to support it. That these cases are not capable of being determined by any general rule, for none could govern the discretion of the court, in all possible circumstances. Many other cases are stated in the books where this power may be exercised, besides the one mentioned in 403] this record.; 1 Camb. 401; in Rellinge, *26; 2 State Tr. 710, 827, this general power is recognized. 1 Hale, 35, if a prisoner be found insane; Leach, 443, or in a fit; Fowler, 76, or be taken in labor; or if a juror escape from his fellows, or be intoxicated ; in all these cases it has been held, that the jury may be discharged, and the prisoner remanded for another trial. In New York, in the People v. Olcott, the jury could not agree, and the court determined the power to discharge, and against the consent of the defendant, was not to be denied. The power of the court, in such cases, is analogous to their power in civil cases, and they possess the same power and control over the verdict. 6 Johns. 88. In New York, 18 Johns., the whole doctrine on this subject, in the case of the People v. Goodwin, was ably discussed, and all the leading authorities reviewed by Justice Spencer, and the law settled, as it had been before pronounced, by Justice Kent, in the case of the People v. Olcott. In Massachusetts, Commonwealth v. Bowden, 9 Mass. 494, Judge Parsons says, it-would not be consistent with the genius of our government or laws to use compulsory means to effect an agreement among jurors. After these solemn adjudications, it would require a bold man, in the exercise of his judicial function, to depart from principles they appear so conclusively to establish. No error, then, is perceived by us in the decision of the common pleas in discharging the juiy when they could not agree, and remanding the prisoner for anoth er trial.

The next assignment for error is, that the court refused to have the verdict of the jury acquitting the plaintiff in error, on the first count in the indictment, entered on the journal.

On this point we can find no decided case, and it must depend on the general analogies of the law. There are many authorities to this point, that the rules of evidence and proceeding, the power of the court over the jury, the verdict of. the jury, and the' right to grant new trials, is the same in criminal as in civil cases. 6 Johns. 688; Jones,163; Caine’s Ab.478. Suppose, then,acivilcase, a declaration on several separate contracts, with the proper count for each, and the jury having received the cause, should retire and again come into court and say that on one count they found for the defendant, but on the others they could not agree, could the court legally receive such verdict? If so, they must discharge the jury, continue the cause, and try it on the other counts at the next term. We think no precedent of the kind can be found. *We apprehend the ease is not changed in the reason which [404 should be applied, because this case wears a criminal form. A verdict in either a civil or criminal case must be considered an entire thing. It must respond to the whole declaration, and to every count in the indictment, or the court can not legally receive it as the verdict of the jury. Indeed, this court has decided, in several instances, if the verdict does not respond to an issue of fact, made by the defendant in civil cases, it is error. In this case the record shows that the jury could not agree on a verdict on the last two counts in the indictment; and having agreed on the first, was no reason why the verdict should have been received. It was in law no verdict, and the court did not err in rejecting it altogether.

The third assignment is that the court of common pleas erred in sustaining the demurrer to the special pleas. We have carefully examined this point, and have substantially disposed of it in our remarks on the other two points. The first plea is intended as a plea of autrefoits acquit. It sets up the statement of the jury, that they agreed the plaintiff in error was not guilty on the first count, and avers that such acquittal was an acquittal on all the counts. This plea avers that there was the verdict of the jury only. The reason why it is bad on its face is, that it was not then a judgment of the court on that verdict. In 2 Hale’s Pleas of the ■Crown, 243, the law is given as thus: “But it is to be known that there must not only be an acquittal by verdict, but a judgment thereupon, quod eat sine die, for the bare verdict of his former acquittal is not a sufficient bar, without a judgment pleaded also.”

The second plea states only that the jury were impaneled and ■sworn, heard the evidence, and were, discharged without delivering their verdict. The general authority and discretion of the court to discharge the jury renders this plea also insufficient. If the circumstances of the case were such that it was arbitrary, tyrannical, and oppressive in the court to discharge the jury, the plea should show the facts, which it does not do. The demurrer was then properly sustained.

The fourth assignment is, that the court of common pleas erred in not granting the plaintiff a new trial for the reasons assigned. The granting of new trials is a matter addressed to the sound discretion of the court, and it is extremely difficult in most cases to reach and revise the result of the exercise of that discretion on 405] error. It is true their discretion is a *legal discretion, and cases may arise where its exercise would be so manifestly erroneous that error would lie for such decision, but it seldom occurs. The first point made in the motion for a new trial is, that the verdict of the jury is against the evidence. The record furnishes us no proof what the evidence was on the trial, and we can not say that the court of common pleas erred in refusing the motion on that point. The second reason assigned for this motion is, that the jury were illegally impaneled, because no new venire was ordered when the first jury were discharged. It is a sufficient answer to this objection that it was not taken by the plaintiff in error when the jury were impaneled, and if it were an objection by his not making it then, it is clearly waived. The plaintiff in error, as the record shows, was tried by a jury of his own selection. The third reason for the motion is, that the traverse jury mistook an important fact; and the fifth, that new testimony has been discovered. On neither of these points does it appear, from the record, that the common pleas had any evidence to sustain these points in a motion for a new trial.

The remaining point in the motion for a new trial was, that the verdict was against the law, but of this we have already disposed. We can not discover from all the reflection we have been enabled, to give this subject, that the court of common pleas have not violated any known rule of law, nor deviated from the exercise of a sound legal discretion, in overruling the motion for a new trial. It is also said the jury were not unanimous in the verdict; but this is denied by the record, and does not aid, therefore, the plaintiff in error.

The next assignment for error is, that the court did not arrest the judgment for the reasons filed. This motion in arrest presents but one question, but what is assigned for error. It is alleged in this motion, that the prosecution was not continued when the first jury were discharged; and they urge, therefore, that it was discontinued and out of court. It is unnecessary to discuss the effect of such an omission in this case, because the record shows in express terms a continuance.

The only remaining assignment for error is, that it is not averred in the indictment that the grand jury were impaneled and sworn, to inquire within and for the body of the county of Highland, and this assignment can scarcely require notice. The law points out the duty of the grand jury, the law requires them to inquire within and for the body of the county, *when they [406 are impaneled, and for no other county; to her they are impaneled and sworn, therefore, the law presumes the purpose, and it is not error, any more than it would be to omit to state their number, to omit an averment of the purpose for which they are impaneled, when they can under the law be impaneled for no other purpose.

The whole case, then, is disposed of. We find no error in the record, and the judgment of the common pleas is affirmed, with costs.


author: Lane, J.,

text:
    Ellen Wilcox v. Lucius Balger.

      A general decree in, a suit by purchaser of land asking specific performance, can not be avoided by investigating the grounds upon which it was decided, in a new bill in relation to the same matter.
    Tras cause was adjourned from the county of Ashtabula. The bill states that in September, 1820, defendant, in consideration of eight hundred and forty dollars then paid, and three hundred and forty dollars to be paid him by one J. Bidwell, one-half in March, 1823, and one-half in March, 1825, agreed (in writing under seal) to sell to said Bidwell ninety-two acres and eighty rods of land in Kingsville, in said county (particularly described) ; that by said agreement, Balger was to make Bidwell a decree of said land on March 10, 1821, and to permit Bidwell to take immediate possession of the premises, and exercise all acts of ownership (the written agreement exhibited) ; that Bidwell did take immediate possession of the land, made valuable improvements, and kept possession until May, 1825; that Balger has never made deed to Bidwell; that Balger was unable to make deed until four or five years after March, 1825; that on May 5, 1825, Bidwell assigned to complainant all his interest in said land and said contract for a valuable consideration, whereupon the complainant took possession of the land, made valuable improvements, and kept possession of the same until the term of the common pleas of said county, for 1827, when he was ejected by suit of Balger; that the complainant has been prevented from making full payment for said land, by misrepresentations and fraudulent practices of Balger; that since the complainant was so ejected, Balger has been in possession, received the rents and profits of the value of 407] seventy-five dollars per year; *has taken therefrom fruit trees of the value of fifty dollars, and cord wood of the value of fifty-nine dollars; that on September 25, 1832, complainant made a tender of the balance of the purchase money due on said contract, after deducting for rents, profits, cord wood, and fruit trees, and demanded deed; that complaint has offered, and is now ready to pay any balance of money due for said land. The bill prays an account of the balance due on the contract, conveyance, and general relief.
    Abstract of the plea: That complainant filed his former bill in the common pleas, against the defendant, in 1823, setting forth that in the year 1820, he made his bond to Truman Bidwell for one thousand dollars, conditioned that if the said Bidwell should pay to Balger one hundred and seventy dollars in two years, and like sum in four years from date, that Balger should convey to said Bidwell the land in said bond described. And said former bill alleged that Bidwell entered into possession of the land, and made improvements, and kept possession until 1823, when Bidwell, for valuable consideration, transferred to complainant all his interest in the land and bond. That complainant went into possession, kept possession, and made valuable improvements; further alleged that complainant had paid to Balger full amount due for said land, which was accepted by Balger in full satisfaction. That complainant had well hoped, etc., that Balger had refused to convey the land, etc., and the prayer of said former bill was that Balger should make answer, and be decreed to convey, and for .general relief.
    The defendant, at November term, for 1823, filed his answer to ■said former bill, confessing said bond and contract as charged in said bill. That a conveyance to Bidwell was to have been made in March, 1823, and alleging that there were two notes given for the balance of the purchase money for the land. Admitting that •defendant had not conveyed, but averring that at the date of said note, Bidwell gave defendant a bond for payment of the balance of purchase money, which was agreed to be secured by mortgage deed of fifty acres of land. That Bidwell, at the time of making ■said contract for said land, knew that Balger was to obtain a title from one Corwin before conveyance could be made to him. That Balger got title, and was able to convey to Bidwell in 1823. Said answer admitted the assignment of Bidwell’s interest to complainant; that Bidwell had possession, but denied making improvements, and averred non-payment of the balance of the purchase money. '-¡“-That immediately after Balger obtained title he [408 offered to convey the land to Bidwell; that Bidwell declined receiving deed, saying he had assigned his interest to E. Wilcox; that defendant offered to complainant to convey said land, and requested him to give mortgage to secure payment of purchase money, but complainant refused; and that défendant was and still is ready to fulfill his agreement, and would produce here, in court, a deed of the land to be disposed of at discretion of the court. Denial of fraud, combination, etc.
    And the plea avers, that complainant filed his replication to said answer, and that at the April term said former cause was heard and a decree rendered in favor of defendant. That appeal was, by complainant, taken to the Supreme Court. That at the August term of this court, 1825, the former cause was heard on bill, answer and replication, proofs and exhibits, and submitted to the court, and a decree rendered upon the merits.. That it was adjudged and decreed that the equity was with the defendant, and that the bill be dismissed at the cost of the complainant, as appears by plea; avers that the land and contract described and set forth is the same as those in former bilí, and that the whole subject matter of this suit is the same as that of former.
    Complainant demurs: For cause of demurrer says, that from the showing of said plea the only matter of issue upon the former suit was payment of the balance of the purchase money. That this being found against complainant, as appears by said record, this court could render no other decree than that of dismissal. The complainant, not having offered, in his bill, to pay the same, and that from the whole proceedings in said former suit, as set forth in said plea, said complainant ought not to be barred of his present suit.
    -, for complainant.
    Hitchcock, for defendant.
   Lane, J.,

delivered the opinion of the court:

The complainant demurs to this plea because it appears, from the decree, that it was dismissed for non-payment of the purchase money, and that the contract remains unaffected by the decree. 409] *We think the dismissal is a bar to future proceedings. The rights of the parties were before the court, and all were investigated, and the plaintiff must abide by the shape in which he chose to submit them. Like a bill to redeem a mortgage, if it be dismissed without reservation for non-payment of the money within the time limited, it is a final decree, and works a foreclosure because it concludes all rights. 4 Johns. Ch. 140.