text:
    Ebenezer Martin v. The Trustees of the Belmont Bank of St. Clairsville.
    A warrant given to a bank for tbe entry of judgment, may be used by the trustees authorized by statute to close the affairs of the bank, after its charter has expired.
    The trustees may sue in their collective names, not in their individual names.
    It is error to include attorney’s fees in a judgment confessed
    This is a writ of error to the court of common pleas of Harri-son county.
    From the record, the following facts appear:
    On Jun.e 25, 1840, Smith, Boardman & Co., Joseph Hargrave, and the plaintiff in error, made their bond for $700, at 120 days, payable to “the president, directors, and company of the Belmont Bank of' St. Clairsville,” to which bond was attached a warrant of attorney executed at the same time, in the usual bank form; in its terms, authorizing any attorney to enter up judgment for any •sum due thereon, “at the suit of the president, directors, and company of the Belmont Bank of St. Clairsville,” on said bond; ,also¡ to confess judgment for costs, and for two and a half per ■cent, on the amount due on said bond, as attorney’s fees.
    *The charter of said bank expired, by limitation, on Jan-nary 1, 1843.
    Afterward, on April 26, 1843, the following written notice was given to the plaintiff:
    “ Belmont Bank of St. Clairsville.
    “ To Messrs. Smith, Boardman & Co., Joseph Hargrave, and Ebenezer Martin : You are hereby notified, that on your bond, duly executed and delivered to the president, directors, and company of the Belmont Bank of St. Clairsville, ior the payment to-the said bank of $700, dated on June 25, 1840, and payable one hundred and twenty days after the said date thereof, there‘remains due the sum of $670, as principil, with interest thereon from May 15, a. d. 1842. And that unless the same is sooner paid, a motion will be made at the May term of the court of common-pleas-of Harrison county, in the State of Ohio, for the year 1843, which commences on May 1, a. d. 1843, at Cadiz, in said county, and on May 3, a. d. 1843, or so soon thereafter, during the said term of said court, as the same can be heard, that a judgment may be rendered in favor of the trustees of the president, directors, and company of the Belmont Bank of St. Clairsville, against you, either jointly or severally, for the amount of the principal and interest due on said bond, together with two and one-half per cent, thereon, for attorney’s fees, and the costs of suit by virtue-of the said bond, and by virtue and in pursuance of the provisions of the warrant of attorney thereto attached for confessing judgment, by you also signed, sealed, and delivered to the said bank. ’ t “J. 0. Ramsey,
    “ Agent for the Trustees of said Bank

    At the May term, 1843, of the common pleas for Harrison-county, judgment was entered upon .the bond, warrant of attor. ney, and notice, for $670 in debt, $56.35 in damages, and $7.75 in costs.
    There was due on May 1, 1843, $670 of the principal, the sum of $37.67 interest, and to make up the sum of damages, $17.68, the-attorney’s fees were included.
    The errors assigned are:
    1. That the warrant of attorney was not an authority for any attorney to confess judgment on the bond in favor of the trustees of the dissolved corporation.
    *2. That the trustees could notsuo by their collective name.
    3. It was erroneous to render judgment for the attorney’s fees^
    D. Peck, for plaintiff in error:
    The question made by the third assignment has been settled by this court, and requires no further notice.
    The warrant of attorney is a special authority to any attorney to appear and waive process at the suit of the president, directors* and company of the Belmont Bank of St. Clairsville, to confess judgment in its favor, and for no other purpose whatever.
    The warrant of attorney in this case was made specially to the bank; it was not an authority to enter up judgment in favor of any other person or persons. The appearance of an attorney in such a case must be by virtue of the special warrant of attorney. This power can not be enlarged, and must be strictly followed. 5 Hill’s N. Y. 497.
    At the time of the entry of this judgment, the party to whom the warrant of attorney was made had ceased to exist, and it would seem to follow that the warrant of attorney died with the party in whoso favor it was made. The power could not be ex ecuted strictly after the dissolution of the corporation.
    This bank lost, to all intents and purposes, its corporate char* acter upon its dissolution, and the debts due the stockholders and creditors could not have been collected but for the special acts of the legislature for that purpose.
    On March 7, 1842, an act was passed to enable the stockholders to settle up the business of dissolved corporations. 40 Ohio-Laws, 72, see. 14. This section provides, in substance, that the-directors, and the survivors of them, in office at the time of the dissolution of the corporation, shall be the trustees of the creditors and stockholders, with power to settle up the affairs of the corporation and distribute the effects ; and that the persons so constituted trustees shall have authority *to sue for and recover the debts and property of the dissolved corporation, by the name of the trustees of such corporation, describing it by its corporate name, and shall be jointly and severally liable to the creditors and stockholders. The trustees may be made parties by scire facias to suits pending. If the directors refuse, the court may appoint other persons to act as such trustees.
    On March 10, 1843, this act was amended. 41 Ohio Laws, 52. This act provides that no action pending shall abate by the dissolution of the corporation ; that those persons having the-legal charge of the assets, whether creditors, assignees, or trustees, might cause execution to issue on judgments, in the corporate name; that suits which had abated should be revived; that the title of all the real estate belonging to such corporation should-pass to the trustees, and that they should have power to sell the same, and to make a good title therefor.

      The counsel for the defendants in error claims that these acts extended the life of the corporation, and only added a new name to it — that it is the same artificial person. He contends that it is like a natural person whose name had been changed by the legislature.
    I can hardly suppose that the legislature would be guilty of the folly of creating one corporation to settle the affairs of another, nor can I Roe anything in those acts which might bear any such construction.
    If the life of the corporation had been prolonged, why interpose trustees? The trustees were only to administer the assets, and for that purpose, where suits were pending or abated, they could use the corporate name. If there were no suit pending, they could sue in their own names as trustees, and not otherwise.
    Tho whole legal estate of the corporation, both real and personal, vests in the trustees on the dissolution of the corporation, and they have the full control of it.
    This judgment was rendered in favor of the trustees, as such trustees, and is not a judgment in favor of the bank.
    *It seems to be clear, that the warrant of attorney would not authorize the appearance and judgment in this case. The trustees are not the party in whose favor it was made, though they represent the bank as much as an administrator represents his intestate., There can be no hardship in holding the trustees of dissolved corporations to the ordinary suits; such were, no doubt, contemplated by the acts above referred to.
    There is another question as to the construction of the act of 1842, of much importance; that is, in what manner shall the trustees sue for debts due the corporation? Shall it be sufficient that they sue as they have in this case, by their collective name as trustees, or must they sue by their natural names as such trustees ?
    I do not see how they can be exempt from the ordinary rules applicable to other parties. They are not a corporate body; and none but corporations can use a corporate name.
    Can they be sued by tho name simply of trustees? "Who are they, and where would they be found ? No process could bo served on them. No judgment could be rendered against them -by such collective name that would not be void for uncertainty.
    The trusteeship is a traversable fact, as much as that of executorship. If suits could be. maintained by sucb uncertain or unknown persons, the parties interested in the assets would not know where to look for their effects.
    Will it be contended that by such a collective name the trustees could make a good title for the real esta'e of such corporation? And yet one would think that they could convey by the same name that would enable them to recover judgment for money, or in ejectment.
    It is not perceived that the trustees have one single attribute of a corporation. They have no common seal, nor can they make-one. They must make their conveyances and their settlements-, with the creditors and stockholders in their natural names, and each one may be severally and differently liable.
    It is very desirable that both these questions be settled, on account of the settlement now in progress of many dissolved corporations.
    *R. J. Alexander, for defendant in error:
    The charter of the Belmont Bank of St. Clairsville expired m January, 1843, and the bond and warrant of attorney, as copied in the record, were executed and delivered by the plaintiff in error to the bank prior to that time. And the act of March 7, 1842, provides, among other things, that the trustees “shall sue for and recover the debts, by the name of the trustees of such corporation, describing it by its corporate name.” Ohio L. 72, sec. 14.
    As to the first error assigned, it is claimed by the attorney for the plaintiff in error that the trustees, in such cases, are to be regarded in the light of administrators of deceased persons, and that, consequently, a warrant of attorney would not authorize a judgment by confession in favor of such administrator. This, then, is the substance of the claim of the plaintiff in error on this ground; but, on the other hand, it is claimed that there is but little, if any, analogy in the two cases.
    The defendants in error had their original existence by virtue of an act of the legislature, and have had that existence as a corporate body extended or prolonged by the act of March 7, 1842. Their corporate existence is the same, or rather they are the same artificial persons now that they were before the expiration of their original charter, and when the bond and warrant of attorney in question were executed and delivered to them. Even their' name is the same, except that in bringing suit the word “trustees ” is to be inserted before their original corporate name. Not so in the case of the decease of a natural person.
    It will then be perceived that it is claimed by the defendants in error, so far at least as this question is concerned, that it was the intention of the legislature, in passing the act of March 7, 1842, to prolong dr continue the corporate existence of the defendants in error for some purposes, and among others to enable .all the banks embraced by the act to collect their debts, and give them, for that purpose, all the securities and facilities which they had at the time of the expiration of their several charters.
    *In this view of the case, the warrant of attorney did authorize the judgment as rendered in this case, not in favor of the trustees as such trustees, but, substantially, in favor of the president, directors, and company of the Belmont Bank of St. Clairsville, which was the original corporate name of the defendants in error.
    This judgment, then, is just as valid as a judgment would be, rendered in a like case, in favor of a natural person whose name might be changed by an act of the legislature after the execution and delivery of a like bond and warrant of attorney, and before the entry of a judgment thereon in favor of such natural person by his new name. The person being the same, though of another name, such warrant of attorney would undoubtedly fully .authorize the entry of a judgment thereon; this can not be well controverted.
    It certainly can not be claimed that the warrant of attorney would have been rendered de.ective or inoperative if the act of March 7, 1842, had authorized suits to be brought in the original corporate name of the defendant in error. Such claim would evidently be most preposterous; and is it not clear that in this case there has been, at most, but a mere slight change in name? The change in name being the only change which the defendants in error have undergone, and the judgment sought to be reversed having been rendered substantially in favor of the same artificial person, and its proceeds having to go to the same identical persons, the warrant of attorney fully authorized the judgment.

      The second cause of error assigned is, that “ the names of the trustees do not appear.”
    . Is it necessary that this should have been the case? The act of March 7, 1842, as already cited, provides that suits shall be brought “in the name of the trustees of such corporation, describing it by its corporate name.” The act does not read in the names of the trustees, but is in tbe singular number, when it was known that all the corporations embraced by this act had at least from nine to thirteen, or some considerable number. And wherein would be the necessity of requiring the *names of the trustees to be used or disclosed in bringing suit? It would certainly be of no advantage to either plaintiff or defendant. At all events, I apprehend it is now too late for the plaintiff in error to take such exception. The time to. make the objection has elapsed, and the objection, if otherwise valid, is now waived. However, it can not be necessary, even if admissible, to name the trustees individually; and in other analogous cases, such as suits by the trustees of townships, it is recommended that the names of the trustees be omitted in the institution of suits.
    The third and last cause of error assigned is, “that it was erroneous to render judgment for the two and a half per cent, attorney’s fee.”
    So far as this cause of error is concerned, I apprehend that, if it was erroneous to include the two and a half per cent., the court will only reverse the judgment pro tanto, and affirm it otherwise. The transcript shows the amount, which is $17.71, and the court can rectify it, as has been done by the same court on the circuit in other cases.
    On examination of the notice given to the plaintiff in error, as copied into the transcript, the court will perceive that the plaintiff in error had due notice in regard to the two and a half per cent, and that the warrant of attorney authorized the judgment for it. And the notice having been given according to the requirements of a subsequent act of the legislature, I apprehend that it was not. erroneous to include the two and a half per cent, in the judgment under these circumstances.
    It also appears to me that the warrant of attorney in this case is a part of the contract, and is binding upon general principles, and may be in this way enforced, as a borrower from a bank may undoubtedly make a valid contract with such bank to pay two and a half per cent, for attorney’s collection fees if any suit should have to be brought for the collection of the money borrowed. Why not? And if so, why not make such contract, and make it enforceable in this way? It is not taking more than “six per cent, in advance,” and ought not to be so considered, unless the attorney’s collection fee agreed upon ^should be considered so extravagant as to amount to evidence of a mere device, upon the part of such bank, to realize over six per cent, upon its discounts. As the plaintiff in error has been the occasion of the expenditure, he.certainly ought to pay it.
   Birchard, J.

The suit below was an amicable action of debt apon a joint and several bond, executed by plaintiff and others, to which was attached a power'of attorney, authorizing any attorney "of record in this state to appear in any court of this state, with or without process, “at the suit of the president, directors, and company of the Belmont Bank of St. Clairsville, upon the said bond, at any time after the same shall become payable, and confess judgment for the sum due, with two and a half per cent, attorney’s fees.”

The charter of the Belmont Bank expired on January 1, 1843. After the bond fell due, on April 26, 1843, the- agent of the trustees served a notice, agreeably to the provisions of the statute, of his intended motion to enter up judgment upon the bond, at the May term, 1843, and judgment was accordingly entered for the sum due, and two and a half per cent, attorney’sf'ees.

The following are assigned for error:

1. That the warrant was not an authority for the attorney to-confess judgment in favor of the trustees.

2. That the trustees could not sue by their collective name.

3. It was erroneous to include the attorney’s fees.

The case of the State of Ohio v. Taylor, 10 Ohio, 378; of Shelton v. Gill, 11 Ohio, 417, and Spalding v. The Bank of Muskingum, 12 Ohio, 544, settle the principle that an agreement to pay a percentage as collection fees, in addition to the legal rate of interest, is against public policy, and void. With those decisions wo are satisfied. It follows that this judgment was erroneous, and the third error well assigned.

The validity of the second assignment depends upon a construotion of section 14 of the act, passed March *7, 1842. 40 Ohio L. 72. This section provides that upon the dissolution of a corporation, the directors acting last before the time of its dissolution, and the survivors of them, unless otherwise provided for by legislative enactment, or by'some court of competent authority, shall be the trustees of the creditors and stockholders of the corporation dissolved, “and the persons so constituted trustees shall have authority to sue for, and recover the debts and property of the dissolved corporation, by the name of the trustees of such corporation, describing it by its corporate name.” If it be fair ttt interpret this language according to its common acceptation, there would seem to be little room left for argument against the right to maintain this suit in the name in which it was brought. Had the legislature designed that the names of the several directors should be used, specifying that they were trustees, would they not have employed different and more apt words to convey that meaning? Certainly they would. It may be admitted that inconveniences may arise from allowing a collective name to be used, instead of the individual names of the directors. Doubtless the legislature considered all questions of this nature, and balanced the evils of permitting suit in a particular name, against those which might arise from requiring, in all cases, the names of numerous directors. Be that as it may, arguments from inconvenience can have no effect to vary the interpretation of words of plain and natural meaning.

Upon the point first assigned for error, the inclination of my own mind is, that it is well taken, and for the reason stated by plaintiff’s counsel. Tet my brethren are all of a different opinion-The reason upon which they instruct me to place their opinion is, that the operative effect of the act of March 7, 1843, is to keep alive, substantially, so far as this debt was concerned, the original corporation ; that this suit is, substantially, a suit of the corporation, and that therefore the authority contained in the power was ample to justify the entry of an appearance and the confession of a proper judgment. On the first ground judgment will be reversed. Judgment accordingly,


source: Caselaw Access Project

author: Wood, J.

license: Public Domain

text:
    *Smith’s Lessee v. John E. Hunt.
    A mortgage in which the magistrate’s certificate does not show by whom the instrument was acknowledged, vests no legal interest in the mortgagee.
    A plaintiff, claiming under such deed, can not recover in ejectment.
    This is an'action of ejectment from Cuyahoga county.
    The facts of the case are as follows :
    Ezekiel Folsom, of Ohio City, executed to the lessor of the plaintiff, a certain mortgage deed of the promises in controversy, on February 21, 1835. The justice has certified the acknowledgment in these words:

      “ The State of Ohio, Cuyahoga county, ss.

    “ Brooklyn, February 21, 1835.
    “Personally appeared --, who acknowledged that he did sign and seal the foregoing instrument, and that the same is his free act and deed. Wm. Burton, Justice of the Peace.”

    On September 4, 1835, Folsom conveyed the same land in fee ■to Ambrose Anthony. On March 24,1839,.Anthony conveyed to ■the defendant, Hunt.
    At the November term of the court of common pleas of Cuyahoga county, 1840, the plaintiff filed his bill in equity against •Fulsom, the mortgagor, for the sale of the premises, in satisfaction of the mortgage, and at the March term, 1841, obtained a decree pro confesso. Anthony was made a party defendant in the •suit, but Hunt was not.
    Asale was afterward made by the master commissioner; the ¡plaintiff became the purchaser; the sale was confirmed by the •court of common pleas and a deed, executed. This is the plaintiff’s title, and the question is, whether, under this state of facts, the plaintiff is entitled to recover. • •
    Bishop & Backus, for plaintiff:
    The decision of this case depends upon the construction given to the acknowledgment attached to the mortgage of *Folsom to Smith, submitted as a part of the evidence in this'caso. This mortgage was duly recorded, and was, as we say, legal notice to defendant Hunt.
    We argue that this deed should be supported, because, in the State of Ohio, the court has ever been accustomed to look with a favorable eye on the acts of justices of the peace.
    In Austin v. Hayden, 6 Ohio, 388, the court say: “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.” The court further say: “From the manner in which they are elected, their numbers, their little business, etc., it can not be reasonably supposed that they are acquainted with the forms of legal proceedings, and apply to their official acts the same rules as to a court of record, and very few of their proceedings could be sustained. This would not do; it would produce much evil, and is not, in our view, called for.”
    That a more strict rule is, and has been, in the older states, applied to the acts of justices of the peace, is readily admitted; but in this state, from the nature of the case, is, and has ever been relaxed. The same reason for a rigid rule being applied to acts of justices of the peace in this state does not exist. Their rule is the English rule ; ours is a rule adapted to our own case, and the early settlement of states. Tou will find this liberal rule running through all our legal proceedings where justices of the peace take &, part.
    But this deed should be supported and the acknowledgment held good, because the court will sustain the deed, if possible.
    Every part of a deed ought, if possible, to take effect. 4 Cruise’s Dig. 293, sec. 5.
    A deed is always construed most strongly against the guarantor. 2 Hill. Abr. 333, secs. 12, 14.
    The whole deed, if possible, shall stand, 2 Hill. Abr. 334, secs. 6, 19.
    The law will so arrange the clauses of a deed as to give effect to the object of tbe-parties. 2 Hill. Abr. 335, sec. 9; Swift’s Dig. 225, 229; Shep. Touch. 84.
    *The only defect in the acknowledgment is the omission of the grantor’s name, and there are cases in which the omission of a word in the draft of a contract will be supplied when it appears to be omitted by accident or mistake, and the meaning of the parties is sufficiently apparent. 2 Ohio, 347; 1 Conn. 36; 6 Conn. 116; 9 Conn. 454; 1 Chit. Pr. 124; 4 Cruise’s Dig. 297, sec. 25.
    Take the original deed and inspect it; see the printed form; see the date of it, which is February 21, 1835; see the acknowledgment, which is of the same date; see the name of William Burton, as a witness, and see his signature to tho acknowledgment, and can there be any doubt but that the name of Folsom was omitted by mistake; is it not so apparent on the face of the paper, and should it not be so held ? We can not see how the court can avoid giving such a construction, especially when the rigid rules before laid down are applied, to wit: “ The whole deed, if possible, shall stand,” etc.
    Take the case of Couch v. Graham, 1 Conn. 36. There tho worn “die,” the operative word in the devise, and upon which the whole case turned, was applied by the court, and upon the, ground that, taking the whole will together, the intent of tho testator was manifest, and could not be effectual but by supplying tho word evidently omitted by mistake.
    Peck v. Wallace, 9 Conn., is in point. Where the sheriff’s return stated that “tho appraisers, after viewing the land described at sixty dollars per acre as its true and just value, of which appraisal said appraisers made and delivered a certificate,” etc., and the certificate of the appraisers, appended to the return, stated that “the appraisers having been appointed and sworn to appraise the land described at sixty dollars per acre,” etc., it was held that the return, by necessary implication, showed an appraisal of the land. If the word “die,” in tho first case, without which tho will in question would have no effect, could be supplied by the court, may not the name of Ezekiel Folsom be supplied in this case in the acknowledgment of the deed in question? Would any new violence be done ? We think not. The case in 9 Connecticut is equally strong; ^without supplying almost a sentence, the whole return and certificate would be without moaning.
    An apparent uncertainty is removed by collecting the general intention from the whole writing, or by reference to some other event or writing. 1 Phil. Ev. 538.
    We admit, if the acknowledgment stood alone, it would effect nothing; it would have no meaning. But take it in connection with the deed, to which it belongs; connect Ezekiel Folsom’s name, which stands almost connected with it, so as to appear to be a part of the acknowledgment; taking the dates of the deed and certificate, the handwriting of Burton to both, view the whole, and it will be difficult to avoid tho conclusion that Folsom acknowledged the deed. It may well be supposed, on inspecting the deed, that the magistrate, seeing Folsom’s name already written, thought it not necessary to be repeated, and so filled up the acknowledgment as to have it read thus: “Ezekiel Folsom—(at) The State of Ohio, Cuyahoga county. Brooklyn, February 21, 1835. Personally appeared-, who acknowledged,” etc.; and, indeed, such a conclusion is unavoidable. He saw Folsom’s name, and then filled up the blank without rewriting it, adopting the name already written as a part of the acknowledgment.
    Lastly, there are cases in the books, though not as to acknowledgments particularly, which vary as much as the one in question from the usual form, and the form prescribed by law, that have been sustained.
    In one case, the law required the certificate to the deed to state that he (the magistrate) knew the person acknowledging the deed to be the person therein named ; but the certificate only stated that the person was to the officer known, and the court held it sufficient. 2 Cow. 552.
    Again, in the same case, a question was raised as to posting up notices of sale of land by sheriff. The certificate to the affidavit read thus: “Sworn to and subscribed before me.” But the law required that the officer should state that the person making the affidavit appeared before him and made oath to the same. The certificate here was also held good.
    Again, in 15 Johns. 89, where A. and B., his wife, are stated to have come to acknowledge, it was held that they not only camo to acknowledge, but actually did acknowledge the deed.
    But it is contended that the case of Hayden v. Westcott, 11 Conn. 129, decides this case. We, however, respectfully, submit, if the dissenting opinion in that ease is not the better law for this state, taking the liberal view the courts of this state do of the acts of justices of the peace. It is further contended, on the other hand, that the certificate in that case is more certain than this; that stating, “by him sealed and subscribed,” and this one stating, “who acknowledged ho did sign and seal the foregoing instrument.”
    Now, with all deference to learned counsel, we maintain that the certificate in this case is much more certain than in the case of Hayden v. Westcott.
    In this case the relative pronoun icho, is used, rendering it certain that some person appeared ; in that case no such relative pronoun is used, and, instead of “ who,” the word “ and” is used. B it who can look to the statement of either case, and, with the uniform policy and liberality toward the acts of magistrate and purchasers that have always been practiced in the Supreme Court of Ohio, and not immediately come to the conclusion that the grantor in each deed acknowledged the same ?
    H. Foote, for defendant:
    Does this certificate import that Ezekiel Folsom, the grantor, appeared and acknowledged his signing and sealing of the deed? 1 suppose that this certificate does net furnish any evidence that either Ezekiel Folsom, or any other person, acknowledged the instrument to be his deed. Its terms do not import that any body appeared before the magistrate, but the contrary.
    Personally appeared — who ? Why — [blank] and [blank] mean") nobody. But if [blank] mean3 somebody, *does it necessarily or by reasonable intendment mean Ezekiel Folsom? If so, then all deeds, no matter by whom signed and sealed, certified, as to the acknowledgment, as the deed in question is, should be taken to have acknowledged by Ezekiel Folsom.
    The rule applicable to this subject undoubtedly is, that the certificate should show, with reasonable certainty, that the grantor in the deed appéared and acknowledged the instrument to be his. In the present case one of two things seems to be certain ; either this certificate fails entirely to show that any person acknowledged the deed, or, if it may be fairly inferred from it, that some person did appear and acknowledge the instrument — it utterly fails to ascertain and designate that person. In either aspect of the case the certificate is fatally defective.
    The certificate, to bo sufficiently certain, should either contain in itself express words that Ezekiel Folsom appeared, etc., or, by referring to something else, should designate him as the person. There is, however, no reference in it to anything from which the blank can be supplied. The utmost that can be made out of it is, that a person appeared, etc.
    In the case of Hayden et al. v. Westcott, 11 Conn. 129, the certificate was in the following terms: “Personallyappeared- and acknowledged this instrument, by him sealed and subscribed, to bo his free act and deed.” And it was held that such a certificate did not import an acknowledgment by the grantor. This case goes the length of deciding the present, and more too. There is a little difference in tho language of the two certificates, and that difference is decidedly against tho certificate in the case on trial.
    In the case above cited, one of the judges thought that, by supplying the words “which was,” and which he supposed to be understood, after the word “ instrument,” the certificate in that case might be tortured into the meaning that the sealer and subscriber of tho instrument appeared and acknowledged, etc., which would be sufficiently certain. The other four judges thought differently.
    *In the present case there is no room for indulging in the speculations of the dissenting judge, in the case cited, as to this particular. For it can not bo pretended that the certificate in question will admit of any such construction.
    Personally appeared-, who acknowledged that he [blank'j signed and sealed the foregoing instrument, and that the saméis his [blank’s] (ree act and deed. The magistrate does not say that the signer and sealer of the instrument appeared and acknowledged, but only that somebody or nobody appeared and acknowledged that he, this same .somebody or nobody, signed and sealed, etc.; but whether this somebody or nobody was in fact the signer and sealer, can not be ascertained by any just construction of the words of the certificate.
    Allen and Stetson, on the same side:
    The question is not whether the mortgage is good, as between the parties, but whether record of it is notice to subsequent pur. chasers.
    If the deed itself is not good, the record of it is a nullity. Lessee of Johnson v. Haines, 2 Ohio, 55.
    Tho acknowledgment of a deed can not be presumed. Roads v. Symmes, 1 Ohio, 316.
    If, then, the acknowledgment bo substantially defective, the objection is fatal, and the plaintiff’s title fails.
    It has been held, in this court, that “ the certificate of acknowledgment must show in express terms, or by necessary implication, a compliance with every substantial requisition of the law.” Brown v. Farran, 3 Ohio, 140; Connell v. Connell, 6 Ohio, 353.
    The law requires the signing, and sealing, to be acknowledged by the grantor. The certificate shows that some person not named, acknowledged tho signing, etc., but does not show that this person was the grantor. The certificate does not then show, in express terms, any compliance with the law, and we can not perceive that it does by “ necessary implication.” *What is meant by necessary implication? If we understand the expres sion correctly, a certificate shows a fact by necessary implication only, when its terms are such that the certificate can not be true, unless the fact exist. The certificate shows that some person acknowledged the signing, etc., but does not show that such person was the grantor. Now .suppose the grantee himself to have acknowledged that he signed and sealed said deed, etc., the certificate would be strictly true. The acknowledgment itself would be false, but the magistrate has not certified that the person who made the acknowledgment told the truth, nor was he the person B.worn to do so. The certificate is true, if any person whatever acknowledged the signing, etc., even if that person was a stranger to the deed. It certainly can not be said that the certificate necessarily implies, that the grantor acknowledged, etc., when an acknowledgment by any other person equally satisfies the terms of the certificate. It may be inore probable that the acknowledgment was made by the grantor, than by any other person, but probability will not support the certificate. It is claimed that the fact of the justice having signed the deed as a witness, aids the defective certificate. We do not understand how it aids, Is it parol evidence'that the grantor acknowledged the deed? if so, we should wish to have the witness sworn; but it is not evidence of the fact — the deed may have been signed by the grantor in presence of the justice, and the justice then have signed as a witnes, without taking any acknowledgment. We suppose that the fact proves nothing, except that the justice knew who the grantor was, and this he could have learned as well by reading the signature. But we suppose it well settled that the acknowledgment,, or the defect in an acknowledgment, can not be proved by parol. Lessee of Johnson v. Haines, 2 Ohio, 55; Brown v. Farran, 3 Ohio, 140; Pendleton v. Button, 3 Conn. 406; Heyden et al. v. Westcott, 11 Conn; 129.
    In the case of Pendleton v. Button, the court held the certificate to be bad, when the words, “ and acknowledged” were omitted ; and in the last case; Hayden et al. v. Westcott, the *omis sion was the same as in the present case; yet the court held, that the certificate did not import an acknowledgment. In that case there was much more on which a presumption might be founded than in the present. The form, of the certificate was, “ personally appeared-and acknowledged this instrument, by him sealed ar/d subscribed, to be his free act and deed.” In our case, tho words, “ by him scaled and subscribed,” are not contained in the certificate. Those words might be understood as a certificate of the magistrate, that the person making the acknowledgment was tho signer and sealer of the deed, which would have made tho certificate good; and one of the judges thought that was the proper construction, but a majority thought otherwise, and held tho certificate to be bad. In the case under consideration there are no words in the certificate which even intimate that the signer made the acknowledgment, and of courso nothing which would, in Connecticut, have called out the dissenting opinion, as in the case of Hayden v. Westcott, 11 Conn. 129.
   Wood, J.

In an action of ejectment, the equities of the parties» if any exist, can not be adjusted. They must be settled in another forum. It is the legal title only which is recognized as the ground of tho action, and the plaintiff must recover, if at all, entirely on the strength of his own title. The legal title, when ascertained, whether in the plaintiff or in the defendant, draws to it the judgment of the court.

Has the plaintiff any legal title in this case ?

It has been held, as often as the question has been made in our court, that the legal title to lands and tenements is not transmitted to the grantee by a conveyance, unless executed, substantially at least, in pursuance of the requisitions of the statute. They require every species of deed to be acknowledged by the grantor, and isuch acknowledgment to be certified by the magistrate or person before whom it is made. Does the certificate in this case furnish any evidence of a compliance with the law? This must depend solely on the fact whether blank, and-Ezekiol Folsom, the grantoiy are synonymous. *If Folsom is blank, and blank is Folsom, the execution of the mortgage is complete; but as no evidence is adduced to prove these facts, we know of no rule of law which will authorize us to infer that Ezekiel Folsom, the grantor, is just nobody at all; especially as he has conveyed his land twice,. and an honest plaintiff, seventy years of age, has lost his entire property by the operation.

It is clear, we regret to say, that no legal estate was conveyed by this defectively executed mortgage to the plaintiff. The legal title remained in Folsom. He had conveyed it to Anthony, and Anthony to Hunt, the defendant, long beforo the institution "of the chancery suit, and to which Hunt was not a party.

The plaintiff, therefore, acquired no logal title by his purchase under tho decree in chancery, and judgment must be entered for-the defendant. Judgment for defendant.


author: Birchard, J.

text:
    The Miami Exporting Company, for the use of Barr, v. Daniel Gano and others.
    A corporation -which has been adjudged forfeited, and placed in tho hands of receivers, under the act passed February 13,1842, can not prosecute a suit after such dissolution.
    The corporate name can only be used, to prosecute a'suit, by the receivers appointed under said act, and the suit will he dismissed unless the receivers set forth sufficient to show the character in which they prosecute.
    This is a writ of error to the court of common pleas of Hamilton county.
    The point on which the case was decided will appear in tho opinion of the court.
    The case was argued by Y. Worthington, for plaintiff in error.
    *Arguments for defendants in error were submitted by Spencer and Corwin, Storer and Gwynne, Morris and Rairden, Wright, Coffin, and Miner.
   Birchard, J.

This writ was issued March 23, 1843. The charter of the Miami Exporting Company expired January 1, 1843. Barr, for whose use the writ is prosecuted, died prior to the date of tho writ.

The first inquiry is, are the proper parties before the court?

On looking into the record wo find that the corporate franchises of tho Miami Exporting Company were adjudged forfeited, and the corporation dissolved, at November term of the court of common pleas of Hamilton county, a. d. 1842, in a proceeding instituted under an act passed February 18, 1843, 40 Ohio Stat. 13.

In the case of Renick v. Bank of West Union, decided at this term, a point was settled fatal to this writ, unless there is some provision of the statute that will enable the suit to progress.

Section 14 of the act of 1842 vests the receivers, appointed by virtue of its provisions, with the powers and duties of the special commissioners, as conferred by the act of February 25,1839, Swan’s Stat. 126, so far as that act remained unrepealed.

Section 19 of the act of 1839 invests, for the time being, the special commissioners with all the powers of the bank necessary to a faithful discharge of their duties. (i They shall have power to sue (or and collect any claims, or recover any property, in the name of said bank, for the use of its creditors, in the same way, and to the same extent that said bank could sue and recover.’ Under this section aright to prosecute any suit, where the cor. porate name of the bank is necessary to be used, is conferred upon the receivers. The right exists nowhere else. The corporation exists no longer, and it can not act in any way. None but the receivers can sue in the corporate name. When they use that name as a party plaintiff, they must set forth sufficient to show the character *in which they appear before us. If this were not required, suits might be prosecuted in the name of a dissolved corporation by unauthorized persons, without right, against law, in violation of the rights of debtors, creditors, and stockholders, and the court would remain in ignorance of 'the fact that they were performing the useless task of listening to a cause and rendering judgment, which in the end would amount to a nullity for want of parties. Writ quashed.