text:
    John K. Booth and others v. Benjamin Shepherd, administrator of James G. Hubbard.
    The territorial limits of the State of Ohio extend on the southeast, at least to the line of ordinary low-water mark, on the northwest side of the Ohio river.
    A reviewing court is not bound to notice errors which are not specially assigned; and will not do so where substantial justice does not require it to be done.
    In Error to the District Court of Belmont county. -

      The case is stated in the opinion of the court.

      Daniel Peck, for plaintiffs in error.

      G. G. Carroll, for defendant in error.
   Scott, J.

The original action was brought by the defendant in error, under the statute “ requiring compensation for causing death by wrongful act, neglect or default.” Swan’s Rev. Stat. 707. His intestate was a passenger on board a steamboat belonging to the plaintiffs in error, which was navigating the Ohio river from Wheeling to a point thirty miles below; and in attempting to land him at Bellaire, in Belmont county, he was drowned, through the wrongful act, neglect, and default of the plaintiffs in error, as the petition below avers.

The original petition in the court of common pleas stated that, “ at the time said deceased was drowned, the said steamboat was in the channel of said river, and near the middle thereof.” But, in the district court, into which the case came by appeal, the plaintiff b'elow obtained leave, by consent of defendants, to amend his petition, so as to make the foregoing averment read thus: “ That at the time said deceased was drowned, the said steamboat was in said river, inside of low-water mark, on the Ohio shore, within the county of Belmont, and State of Ohio.”

The record states that this amendment was accordingly made, and that “ the defendants, on leave, and by consent of the plaintiffs, filed an amended answer to said petition. The bill of exceptions shows that the cause came on to be tried upon the issues made by the amended petition of the plaintiff and the answer of the defendants thereto.

It is shown by the bill of exceptions that, “ there being evidence to the jury tending to prove that the said James G-. Hubbard, deceased, fell from the said boat into the said Ohio River, on the Virginia side of the bottom of the natural bank of the said river,” the counsel for the defendants thereupon asked the court to charge the jury, that “ if they were satisfied from the evidence that .the deceased was drowned on the Virginia side of the top of the bank of the river, their verdict should be for the defendant; and, 2d, that if they were satisfied from the evidence that the said Hubbard was drowned on the Virginia side of where the natural bank of the river is, though on or over a bar that has been formed by the action of the water, their verdict should be for the defendants.”

Each of these instructions the district court declined to give; and, instead thereof, charged the jury to the effect, “ that if the said Hubbard was drowned on the Virginia side of ordinary or common low-water mark, their verdict should be for the defendants.”

The jury found for the plaintiff below. The defendants moved for a new trial, and, their motion having been overruled, judgment was entered on the verdict.

The errors assigned are predicated on the supposed mistake of the law of the case by the district court, in refusing to charge the jury as requested by the defendant below, and in overruling a motion for a new trial.

As the right of action in this case is given solely by statute, and as this statute can have no extra-territorial force, it follows that unless the cause of action occured within this state, the defendants were entitled to a verdict.

If, then, “the natural bank,” or “the bottom of the natural bank ” of the Ohio River, on its northwest side, is the territorial limit of the State of Ohio, the district court erred in refusing to give the instructions asked for; but if otherwise, not. At least, it is clear that the refusal to charge as requested, and the instructions actually given, furnish no just cause of complaint to the plaintiff in error, if the territorial limits of Ohio extend as far as to ordinary low-water mark on the Ohio side of the river.

It-does not become necessary, in this case, to determine whether the middle of the Ohio River, the f.lum medium aquae” does or does not constitute the boundary line between the states of Virginia and Ohio. Eor all the purposes of this case, it may be assumed that Virginia was the original, undisputed owner of the territory on both sides of the river, and still retains all that she did not part with by her deed of cession in 1784. By that deed, she ceded to the United States “ all right, title and claim, as well of soil as jurisdiction, which the said commonwealth hath to the territory within the limits of the Virginia charter, situate, lying and being to the northwest of the river Ohio.” (1 U. S. L. 474.) The object, and one of the conditions of the cession, was that the ceded territory should be laid out and formed into states. In the case of Handly’s Lessee v. Anthony, the supreme court of the United States, proceeding on the assumption that Virginia was the original proprietor of both sides of the river, was called upon to give a construction to this deed of cession, and determine the boundary line which it establishes for the states bordering on the river. Chief Justice Marshall, in that case, states the general principle thus: “ "When a great river is the boundary between two nations or states, if the original property is in neither, and there be no convention respecting it, each holds to the middle of the stream. But when, as in this case, one state is the original proprietor, and grants the territory on one side only, it retains the river within its own domain, and the newly created state extends to the river only. The river, however, is its boundary.” 5 Wheat. Rep. 374. The court further say in this case: “ Wherever the river is a boundary between states, it is the main, the permanent river, which constitutes that boundary, and the mind will find itself embarrassed with insurmountable difficulty in attempting to draw any other line than the low-water mark.” And looking to the intention of Virginia in this cession, to the fact that she contemplated the future existence of independent states on the northwest side of the river, which, in the language of her compact with Kentucky, in 1789, should “ possess the opposite shores of the river,” and that she must have had in view and intended the reasonable convenience of the future population of the new states; and looking to the natural character of the boundary furnished by the river itself, it was held in that case, that the boundary line, contemplated in the deed of cession, is that of low-water mark on the northwest side of the river.

This decision has been acquiesced in by the courts of Virginia. In the case of Commonwealth v. Garner et al., 3 Graft. Rep. 655, a majority of the general court of that state, upon a very full examination of the subject, recognized the authority and propriety of the decision in Ilandly’s Lessee v. Anthony.

And the construction thus given to the Virginia deed of cession has been uniformly sanctioned and affirmed by the courts of this state. In Lessee of McCullock v. Aten, 2 Ohio Rep. 308, the court say: “ The state is bounded by the Ohio River ; but it can scarcely be supposed that' the beach, below the break of the bank, is not within her jurisdiction. In the case of llandly’s Lessee v. Anthony, this doctrine is distinctly recognized by the supreme court of the United States, as being a rule of boundary. And it is one to which this court have always adhered.” And in Benner’s Lessee v. Platter et al., 6 Ohio Rep. 505, it is said: “ The Ohio is a navigable river; it is moreover the boundary of state jurisdiction and sovereignty, and could only be a proper boundary for such purpose whilst each state was limited to its own side of the water.”

And in Lessee of Blanchard v. Porter et al., 11 Ohio Rep. 138, it was held, that lands on the Ohio side of the river, lying between high and low-water mark, are not common to the public as a part of the river, but belong to the adjacent proprietor whose land bounds on the river.

The construction given to the Virginia deed of cession by the supreme court of the United States, having been thus acquiesced in and acted on by the courts, both of Virginia and Ohio, may be regarded as decisive of the question. Indeed, such, would seem to be the construction which Virginia herself has always given to that instrument. She stipulated, in the compact by which Kentucky was enabled to become a separate state, for concurrent jurisdiction on this great river, upon the part of the states which should possess the opposite shores; and as the shores of a river extend to the water’s edge, and include the land between high and low-water mark, it would seem clear that she did not regard her tenitorial limits a's including the opposite shores, or any land west of low-water mark on the western side of the river.

And her right to the navigation of the river, and her concurrent juiisdiction over it, being unquestioned, it may well be asked, for what reasonable purpose could she have intended to retain dominion over a strip of land between the water’s edge and the adjoining states ? It would be a title productive of no practical benefit to herself, and yet subjecting the population on the northwest side of the river to the most serious and embarrassing inconvenience. The liberal and patriotic spirit which dictated the cession is itself sufficient evidence that she did not so intend. In point of fact, dominion has never been exercised by Virginia on this side of the river, since her deed of cession, but has uniformly been exercised by this state, to the line of low-water, during the whole period of her existence, and the question should nov| be regarded as settled.

"We have no hesitation in saying, that the district court did not err in refusing to give the instructions asked for; and of the instructions actually given, the plaintiff in error has no cause to complain.

It is claimed in argument, that the petition of the plaintiff below does not appear from the record to have been in fact amended in the district court, and that without such amendment it was error to give judgment for the plaintiff. It is true, that the petition, as amended, is not copied into the transcript, but the record affirms the amendment was made by consent of defendants; it states with precision in what the amendment consisted; it contains in full the answer of the defendants thereto; and the hill of exceptions shows that the cause was submitted to the jury upon the issues made by the amended petition and the answer thereto. The court charged the jury that their verdict should be for the defendants, if they found that Hubbard was drowned on the Virginia side of ordinary low-water mark. So that, it is very evident that both court and counsel regarded the amendment as being made, and that the issue presented by the amended pleadings was in fact submitted to the jury. Besides, this is not assigned for error.

And for these reasons, we think no injustice is done to the plaintiffs in error by our declining to notice the objection farther.

Judgment of the district court affirmed.

Swan, Brinkerhobb and Suture, JJ., concurred.


source: Caselaw Access Project

author: Brinkerhoff, J.

license: Public Domain

text:
    James Whaalan v. The Mad River and Lake Erie Rail Road Company.
    Where a servant is injured in Ms person through the carelessness of a fellow servant engaged in a common business and employment, and no relation of subordination or subjection existed between them, and the employer is himself guilty of no fault, such employer is not responsible for such injury.
    Whez'e the injuz-ed party is engaged in the repair of a railroad track which is then in use for the running of trains, and the party thi’ough whose negligence the injury occurs, is a hand employed on the engine and tender of a passing train, they are engaged in a common business within the scope of the above rule.
    In error to the Court of Common Pleas of Sandusky county. Reserved in the District Court.
    The plaintiff in error filed his petition against the defendant in error in the common pleas of Sandusky county, alleging, in substance, that he was, at the time of the injury thereinafter complained of, in the employ of the defendant, and, with others, was, at the defendant’s instance, engaged in working upon the track of defendant’s road, which was then in use for the running of trains. That it was necessary and usual for himself and others similarly engaged, for their personal safety, to retire from the track to the side of the road, whenever a train passed them on the road. That a man was employed upon one of the defendant’s trains whose duty it was to pass fire wood from the tender to the engine; and, on finding sticks unsuitable for use, to cast the same from the train. That the plaintiff having so retired from the track, for the passage of a train, a man, so as aforesaid employed, so negligently and improperly threw a stick of wood from the train as to strike the plaintiff in the face, put out an eye, and otherwise wound and injure him. Wherefore he prays judgment against the company for his damages.
    To the petition the defendant demurred, on the ground that it did not state facts sufficient to constitute a cause of action. The common pleas sustained the demurrer, and gave judgment for the defendant. To reverse this judgment the plaintiff filed his petition in error in the district court, and the same is reserved for decision here.

      Walter F. Stone, for defendant, insisted:
    1. That the act complained of was the willful act of the fireman, in doing which he was not acting in the course of his employ; and that, taking all the allegations upon this subject, and construing them together, this appears from the petition.
    2. But if the plaintiff’, in his petition, means to allege that the fireman, in doing the act complained of, was doing that which he was employed to do, he shows that he is himself in fault, and for that reason he cannot recover.' If it was the duty of the fireman to cast unsuitable sticks of wood from the tender, it may have been his duty to see first that the plaintiff was not there to be hit; bnt it was particularly and emphatically the duty of the plaintiff to see to that himself.
    3. But whatever may be the construction of the petition upon the points to which I have referred, it makes no case for a recovery, for the reason that the plaintiff, at the time he received the injuries of which he complains, was himself in the employ of the defendant, and the injuries complained of were, according to his own showing, occasioned solely by the negligence of another agent who was, at the time, engaged in the same common enterprise.
    It has been repeatedly decided in this country and in England, and in both countries as often as the question has arisen, that when different persons are employed by the same principal in a common enterprise, no action can be sustained by them against their employer, on account of injuries by one agent through the negligence of another. Priestly v. Fowler, 3 Mees. & Wels. 1; Farwell v. B. § W. R. R. Co., 4 Metc. Rep. 49; Munoy v. S. C. R. R. Co., 1 McMul. Rep. 385; Brown v. Maxwell, 6 Hill. Rep. 594; Ryon v. C. V. R. R. Co., 3 Am. L. Reg. 577.
    Nor do the cases decided by this court, relating to the subject, form, upon the point now under consideration, any exception to this unbroken current of authority. In view of the case of The Little Miami R. R. Co. v. Stevens, 20 Ohio Rep. 415, and the ease of C. C. § C. R. R. Co. v. Keary, 3 Ohio St. Rep. 201, the general rule may be stated thus: That where different persons are employed by the same principal in a common enterprise, and no control is given to one over the other, no action can be sustained by them against their employer, on account of any injuries sustained by one agent through the negligence of another.
    It may be argued that the fireman and the track repairer were each engaged in a distinct service, and that therefore the principal was liable to each for injuries which he sustained, occasioned by the negligence of the other, precisely as though the injured servant was a stran
      ger. But no such distinction can be sustained, either upon authority or principle ; but would lead to the most absurd consequences.
    But this distinction has no application to this case. The fireman and the track repairer are not each engaged in a distinct service, but in the common business of the company in operating the road, and in the accomplishment of the common purpose of carrying persons and property from point to point. In Farwell v. The B. § W. R. R. Co., 4 Metc. Rep. 49, 60, the court refused to recognize the distinction contended for. The case of Coon v. The S. &; U. R. R. Co., 1 Seld. Rep. 492, is, also, upon the subject now under consideration, precisely in point.

      JB. J. Bartlett §• Son, for plaintiff, argued in substance:
    That the plaintiff was entitled to recover, whether considered as occupying a subordinate relation or as a stranger.
    That the true test is the negligent performance of duty by an employee of the company whereby another sustains an injury; and it matters not whether that other person is at the time occupying a subordinate situation or not.
    That the plaintiff occupied, at the time of the injury, a situation subordinate to those in charge of the trains, at least as much so as if he had been employed upon the trains; for to occupy a subordinate situation, it was not necessary that the plaintiff should have been engaged in the same land of employment.
    ■That the plaintiff took upon himself none of the risks incident to the running of trains, but only those that were necessarily incident to his situation of track repairer.
   Brinkerhoff, J.

This case, it will be perceived, is not one in which the party injured is placed by their common employer in a position subordinate to and subject to the orders of the fellow servant through whose negligence and misconduct the injury occurs, so as to come’' within the principle decided in Little Miami R. R. Co. v. Stevens, 20 Ohio Rep. 415, and C. C. & C. R. R. Co. v. Keary, 3 Ohio St. Rep. 201, but presents the simple question, whether the master or employer is liable to one servant for injuries received from the negligence of a fellow servant, where no relation of subordination or subjection exists between them, while engaged in the business of their common employer ?

The negative of the general proposition involved in this inquiry has been uniformly held in England, in Massachusetts, New York, Pennsylvania, South Carolina, Georgia, and Illinois. And the same general doctrine is distinctly recognized in the Ohio cases before referred to. In Little Miami R. R. Co. v. Stevens, Caldwell, J., delivering the opinion of the majority of the court, says: “¥e could easily suppose a case where two persons, employed by the same individual, and standing on a perfect equality— where the business was managed as much by the one as the other — where they would stand on the same footing, as men in the community generally do — in which the employer would not be liable for an injury done to one by the negligence of the other.” And in C. C. & C. R. R. Co. v. Keary, Ranney, J., delivering the unanimous opinion of the court, says: “ That the servant takes upon himself all the ordinary risks of the business, including the liability to injury from the negligence of other servants employed with him, by the common principal, but having no control over the business, or the servant who receives the injury, we are quite ready to admit.” The same doctrine was also held in Mad River & Lake Erie R. R. Co. v. Barber, 5 Ohio St. Rep. 561, and in Madison and Indianapolis R. R. Co. v. Bacon, 6 Port. (Ind.) Rep. 205.

The only cases to which our attention has been called, or of which we are aware, which seem to militate against this general and overwhelming current of authority upon the point in question, are those of Gillenwater v. Madison & Indianapolis Railroad Co., 5 Port. (Ind.) Rep. 339, and Fitzpatrick v. New Albany Salem Railroad Co., 7 Port. (Ind.) Rep. 436.

In the first of these cases, the defendant employed Gillenwater, the plaintiff, to frame and build a bridge on its road, across Sugar Creek, and while he was engaged in the work, directed him to proceed in its cars to Greenwood, and assist in loading timbers for the bridge. While thus on the cars, as directed, the servants of the defendant who had in charge the running of the train, so carelessly managed and ran the same, that they thereby ran off the track, whereby the plaintiff was injured. And it was held that, under the peculiar circumstances of that case, the plaintiff was, at the time of the injury, a passenger, clothed with all the rights of a passenger and stranger, and that the defendant was, therefore, liable as a common carrier.

The other case was this: Fitzpatrick, the plaintiff’, was employed by the railroad company, with other laborers, to ballast a part of its road, by excavating gravel from certain banks, loading it in the company’s gravel cars, and afterward unloading and distributing it upon the railroad. The plaintiff, and others of the laborers, hoarded and lodged in the town of C., two miles from the gravel banks, and, by agreement with the company, were regularly to be conveyed to town to their meals, etc., and back again to the gravel banks. While the plaintiff was being thus conveyed, during the period of his service, on a gravel car, to the banks to work, by the gross negligence and unskillfulness of the engineer employed in running and managing the locomotive, a collision occurred whereby the plaintiff’s leg was broken. It was held that the plaintiff was entitled to recover. The question was raised and decided on demurrer of the defendant to the plaintiff’s complaint; and it was averred in the complaint, and admitted by the demurrer, that the plaintiff was received on board the cars as a passenger.

On these principles we see no good reason to question the correctness of these decisions. In the first case, Gillenwater was employed to build a bridge across Sugar Creek. That, and no more, seems to have been his contract. It does not appear that it was any part of his contract engagement to travel to Greenwood or elsewhere on the business of the company. And when the company requested him to go to Greenwood in its cars, in a matter and for a purpose outside of his contract, we are not prepared to say but that he might be properly regarded as a passenger, and invested with all the rights of a passenger. On this point, however, we cannot speak confidently, for we are not informed as to the precise terms of his contract with the company for the building of the bridge.

• In the other case, the plaintiff, Eitzpatrick, was very clearly a passenger. By the express terms of his contract, lie was to be conveyed in the company’s cars' from the gravel bank to C. for his meals, etc., and back again, daily.

Placing these decisions in Indiana on this ground, then, viz, that the plaintiffs respectively, were passengers in the cars of the defendants, we are not prepared to say but that they were correctly decided. And, viewed in this light, they have, obviously, no application to the case before us. Eor here there is no pretense that the plaintiff was a passenger, or entitled to claim any of the rights of a passenger.

It has been suggested, however, that this case is to be excluded from the operation of the general rule, in respect to the liability of the employer for injury to a servant by the negligence of a fellow servant in a common employment, on the ground that the servants here were engaged in different and distinct departments of duty, having no connection with each other; and this suggestion receives some countenance from the remarks of the judges, arguendo, delivering the opinion of the court in the Indiana cases above noticed. Eor although in both those cases the court hold the plaintiffs to be, under the circumstances, passengers — and contend that their decisions may well be sustained on that ground — yet, in their discussion of the questions involved, they argue that the fact of the plaintiffs being employed in different and distinct.departments of duty, would relieve them from the application of the general rule, although they might not have been passengers. The validity of this argument we, in this case, are perhaps not called on either to affirm or deny; for, if we admit that there may be departments of duty in the business of a common employer, so distinct from each other as to require an exception to be made to the application of the general rule, still, we must hold, on the authority of well considered adjudications, that this is not a case to create such exception.

Thus the case of Farwell v. The Boston & Worcester R. R. Co., 4 Metc. Rep. 49, was an action against the company for an injury to the engineer of a locomotive, arising from the carelessness of a switch-tender. It was held, notwithstanding the point was urged upon, and received the particular attention of, the court, that the plaintiff could not recover. And we are unable to see wherein the departments of duty of a fireman and of a track repairer are more distinct and independent of each other than are those of an engineer and a switch-tender.

The case of Coon v. S. & U. R. R. Co., 1 Seld. Rep. 492, is a case — aud the only one in the books, so far as we know— which, in the points it presents, is perfectly analogous to the one before us. There, the plaintiff was employed to inspect and repair the track. Here, the petition states that the plaintiff was employed to work upon the track, but in what particular work we are not informed; probably that of repairs. In both cases the plaintiff was injured through the carelessness of the servants of the company engaged in the management of a passing train. And it was held, in that case, that the plaintiff was not entitled to recover, and this on the ground, among other considerations, that the department of duty occupied by the plaintiff, and that occupied by him through whose negligence the injury was received, were alike necessary and indispensable for carrying out the primary object, to wit: the safe and speedy transportation of passengers and freight over the road. This holding was in affirmance, unanimously, of the judgment of the Supreme Court in the same case, (6 Barb. 231.) And the attention of the court of appeals being particularly called to the distinction since asserted in the Indiana cases, it was held that the general rule applies, though the employments of the agents are distinct, when both are necessary in the prosecution of a common enterprise.

"We are of opinion that the demurrer to the petition was well taken, and that the judgment of the common pleas ought to be affirmed.

Judgment affirmed.

Swan, Scott and Sutliee, JJ., concurred.


author: Sutliff, J.

text:
    James Richardson v. Henry M. Bates et al.
    In an action upon an indenture leasing land for five years, to recover of lessees upon their covenants to pay rent. Held:
    1. That the answer, setting up that the indenture was not attested nor acknowledged by the lessor, and therefore did not convey the term, and that the lessees were not indebted for any rent under the indenture, stated facts sufficient to constitute an equitable, and therefore a perfect, defense under the code.
    2. That the defect in the lease, in not being attested or acknowledged, is not cured or affected by the fourth section of the statute of frauds and perjuries.
    In Error to the Court of Common Pleas of Hamilton county. Reserved in the District Court.
    The original action was commenced by the plaintiff, on the 30th day of August, 1853, in the court of common pleas, to recover of the defendants $200 and interest, for a year’s rent, claimed to be in arrear, and due him from the defendants. The petition sets forth a copy of a certain indenture, signed and sealed, but not attested nor acknowledged, purporting to be a lease by tbe plaintiff, of a large room in a certain building described, in the city of Cincinnati, for tbe term of five years from tbe first day of February, 1850, and containing tbe usual covenants on tbe part of tbe defendants, among wbicb is a covenant to pay to the plaintiff rent for tbe premises at tbe rate of two hundred dollars per year; fifty dollars to be paid quarterly, commenehig on the 1st of May, 1850, during said term. Tbe petition avers that there is due and owing on account thereof, $50, with interest from tbe 1st of November, 1852; $50, with interest from tbe 1st of February, 1853; $50, with interest from tbe 1st of May, 1853; and $50, with interest from tbe 1st of August, 1853.
    Tbe defendants state, in answer to tbe petition, that they executed tbe indenture, a copy of wbicb is set forth in tbe petition; but insist that tbe same is not a lease, and deny any liability arising from tbe execution thereof; and they, in their answer, further deny that they are indebted to tbe plaintiff in tbe sum named in tbe petition, or in any other sum, for rent of tbe premises or otherwise.
    Tbe cause was submitted to tbe court of common pleas, and on the trial it appeared “ that tbe defendants were in possession of tbe premises at tbe date of tbe execution of said lease, and occupied tbe same, and paid tbe rent until tbe 1st of August, 1852, when they abandoned and refused to pay rent subsequently accruing. That this suit is brought to recover a year’s rent accruing next after defendants so abandoned tbe premises.”
    Tbe common pleas decided “that said instrument of lease providing for a term of over three years, and not being attested, acknowledged and recorded in accordance with tbe provisions of tbe statutes to provide for tbe proof, acknowledgment and recording of deeds and othqp instruments of writing, no recovery can be bad thereon, except for tbe time tbe premises were actually occupied by tbe defendants,” and gave judgment accordingly. To reverse that judgment, the plaintiff filed in the district court bis petition in ez’ror, which was reserved for hearing in this court.

      J. L. Miner, for plaintiff.
    Tbe lease conforms to tbe requisitions of tbe 4th section of tbe statute of frauds.
    Tbe 1st and 9th sections of tbe deeds act were not designed to affect, in any way, tbe statute of frauds; and, notwithstanding these sections, tbe lease was not void, but good between the parties, although it did not convey a legal term; for tbe law upholds and enforces equitable as well as legal rights. See Baldwin v. Walker, 21 Conn. Rep. 168, 182; 17 Penn. St. Rep. 231; 6 Whart. Rep. 500; 16 Ala. Rep. 73; 23 Penn. St. Rep. 18.
    The case of Grant v. Ramsey, 7 Ohio St. Rep. 157, is identical, in principle, with tbe case in hand.
    If this lease be void because not attested or acknowledged according to tbe deeds act, then all contracts for tbe sale of lands not executed in conformity with tbe statute would seem to be void. I can see no distinction between tbe liability of tbe lessors to pay rent in this case, and tbe liability of a purchaser to pay tbe installments of purchase money under a contract of purchase. Tbe lessor is not seeking to avoid tbe lease; be is claiming under it; be would not be permitted to avoid it if be wished to.
    Tbe lessors are in no wise affected by tbe omission of tbe legal formalities of execution on tbe part of tbe lessor. They bound themselves to pay; their obligation is perfect; it is personal; it does not, in contemplation of tbe statute, involve or draw in question tbe title to real estate. If it did, then suits for rent could not be maintained before justices of tbe peace. See Bridgman v. Wells, 13 Ohio Rep. 43.

      Caldwell § Paddock, for defendants.
    Tbe lease is invalid, and gave tbe defendants no light to hold for the term. Swan’s Rev. Stat. 308, sec. 1. No suit, therefore, could he brought upon the lease. The defendants, then, could only be charged for use and occupation. Rut in this case a recovery was sought, not for the time the defendants occupied, but for the year next after they abandoned the premises. They paid for the time they occupied. See Courcier et al. v. Graham, 1 Ohio Rep. 352; Atkinson v. Daily, 2 Ohio Rep. 213; Bridgman v. Wells, 13 Ohio Rep. 47.
    If it should be held that the instrument was a good contract for lease it would not help the plaintiff — his equitable interest would have to be made into a legal one by decree of court before he could bring the present suit.
    The obligee of a bond for a deed, cannot sustain ejectment by force of the bond. No more can the plaintiff in this case recover on the lease until it is perfected as a lease.
   Sutliff, J.

The indenture, upon which the plaintiff predicated his right to recover in the court of common pleas, is duly signed and sealed by the parties, but appears not to have been acknowledged or subscribed by witnesses, as provided by the statute for the execution of leases of longer duration than three years.

The first section of the act of February 22d, 1831, “ to provide for the proof, acknowledgment and recording of deeds, and other instruments of writing,” provides:

“ That when any man or unmarried woman, above the age of twenty-one years, shall execute, within this state, any deed, mortgage, or other instrument of writing, by which any land, tenement or hereditament shall be conveyed, or otherwise affected or incumbered in law, such deed, mortgage, or other instrument of writing, shall be signed and sealed by the grantor or grantors, maker or makers; and such signing and sealing shall be acknowledged by such grantor or maker in the presence of two witnesses, who shall attest such signing and sealing, and subscribe their names to such attestation; and such signing and sealing shall also be acknowledged by such grantor or grantors, maker or makers, before a judge of the supreme court or of the court of common pleas, a justice of the peace, notary public, mayor, or other presiding officer of an incorporated town or city, who shall certify such acknowledgment on the same sheet on which such deed, mortgage, or other instrument of writing, may be printed or written ;****** and shall subscribe his name to such certificate.” Swan’s Rev. Stat. 308.

It is also provided, by section 9 of the same act, as follows :

“ That nothing in this act contained shall be construed to affect the validity of any lease of school or ministerial lands, for any term not exceeding ten years; or of any other lands, for any term not exceeding three years; or to require such lease to be attested, acknowledged, or recorded.”

The present lease, being for a term of five years, is not within the provisions of section 9; and, therefore, being an instrument of writing for the conveyance of the tenement, for a term of five years, its execution is prescribed and governed by section 1, of the act.

The instrument, being neither attested nor acknowledged according to the provisions of the statute so governing its execution, is defective as a lease, and of no binding obligation. It has been frequently held, that a deed for the conveyance of the title of lands, attested by only one witness, or otherwise not in accordance with the provisions of the statute, was defective, and insufficient to convey title in this state. See the cases of Courcier & Ravises v. Graham, 1 Ohio Rep. 380 ; Patterson’s Lessee v. Pease, 5 Ohio Rep. 190; Roads v. Symmes, 1 Ohio Rep. 281; Johnson’s Lessee v. Haines, 2 Ohio Rep. 55.

The same doctrine being equally applicable to the instrument before us, it follows that the indenture was, by this statute, utterly inoperative to convey the term, as a lease. The lessees took nothing by the instrument, as a lease. Indeed, the defective nature of the instrument, in respect to the requisites prescribed by section 1 of said act, is conceded by plaintiff’s counsel. It is however insisted, that this indenture should be held operative under the 4th section of the statute of frauds and perjuries, which provides as follows:

“ That no leases, estates, or interests, either of freehold or terms for years, or any uncertain interest of, in, or out of lands, tenements, or hereditaments, shall at any time hereafter be assigned or granted, unless it be by deed or note in writing, signed by the party so assigning or granting the same, or their agents thereunto, lawfully authorized by writing, or by act or operation of law.”

A contract for a future conveyance or mortgage, or lease of land, is quite a different instrument from the deed, mortgage or lease, so expressed in the contract, and has never been regarded, in this state, as falling within the provisions of the statute referred to.

It is however urged, that inasmuch as this indenture is not also bad by reason of the statute of frauds and perjuries, it is therefore good and valid under that statute.

The argument is simply this: The indenture is admitted to be defective, under the statute prescribing the execution of such instruments. Under that statute, independent of the statute of frauds and perjuries, the instrument would be utterly inoperative to convey the term which it assumes to convey; and consequently, it not being binding upon the plaintiff, there could be no consideration to sustain the undertaking of defendants to pay rent, and, under the rule thus applicable to the case, that both parties must be bound or neither, it would be void as to defendants •, hut being so void, independent of the statute of frauds and perjuries, it is said that, by force of that statute, this indenture is operative and of full force and effect in law.

Can such a result flow from the operation of the two statutes ;■ and if so, how does it arise?

The instrument being confessedly void by force of the first mentioned statute, independent of the statute of frauds and perjuries, it must, if valid, derive its force and validity entirely from this statute. Let us then refer to the terms of the statute from which the validity of the instrument is so derived.

It is evident, upon inspection, that the statute of frauds and perjuries contains no positive provisions declaring any instruments of writing of force and validity. Its provisions are, that no leases, etc., “ shall at any time hereafter be assigned or granted, unless it be by deed, or note in writing, signed by the party so assigning or granting the same,” etc. The effect of this statute, so far as expressed, is only to declare void and inoperative all modes of assigning or granting “ leases, estates, or interests of, in or out of lands, tenements or hereditaments,” other than those made by deed, or note in writing signed by the party, etc. No provisions are, by this statute, expressed as to the operation of deeds, or written agreements, in relation to leases, estates, and interests in lands, etc. Its only effect upon those modes of assigning and granting, is obviously that of implication; it is only that which is, by reasonable intendment, to be understood as implied from the provisions thus expressed. .

What, then, is that which the legislature has so left to be, by reasonable intendment, implied and understood ?

It is insisted by counsel for plaintiff, that it is to be understood, necessarily, that all other modes of assigning and granting the “ leases, estates and interests” mentioned, except those declared by the statute inoperative, must be operative. But if this be so, it follows that the statute of frauds and perjuries, enacted in this state and in most of the other states, is utterly inconsistent with any statutory provisions, directing the form and manner of executing deeds of conveyance. And yet our statute of frauds and perjuries is almost a transcript of the English statute; and similar to that of Pennsylvania, and probably to that of most of the other states of the union; all of which states, it is understood, have by statute prescribed the manner of executing deeds of conveyance.

But no such construction can be reasonably given to the provisions of the statute. All other modes of assigning and granting leases, estates, and interests in lands, tenements and hereditaments, than those declared invalid by the statute, are not by implication declared valid, irrespective of other legislation upon the subject. The statute simply leaves other modes of assigning and granting such leases, estates and interests, unaffected by the statute. They are as if the statute of frauds and peijuries had never been enacted. Nor can there be any difference in this regard, whether the statute regulating or prescribing the execution of deeds, were enacted before or after the enactment of the other statute.

We regard the two statutes under consideration as consistent with, and independent of, each other. It is a rule of interpretation, that, if practicable, different statutés should be so interpreted as to preserve their consistency, and give effect to each; and we think these statutes not only susceptible of such construction, but that this construction is most in accordance, if not alone consistent, with the plain and obvious meaning of each, as expressed by the language of the statutes.

The record shows that the plaintiff, by his petition, predicated his right to recover solely upon the indenture set forth in his petition. He did not aver a part performance, and ask to have the instrument reformed, and then enforced. Nor does the petition state a delivery of possession by the plaintiffj or an occupancy by the defendants; but the right of action is placed solely upon the obligations imposed upon defendants by the instrument set forth.

We have seen, by the provisions of the statute, the form prescribed for the execution of a valid lease, of such a term as this assumes to pass, must have the same requisites as an instrument to convey the fee of the land. If then this instrument, as set forth, entitled the plaintiff to recover, one executed in a similar manner, purporting to convey a fee simple in land, should entitle a plaintiff' to recover, in an action for the title and possession of the lands; but that would be utterly inconsistent, as well with the uniform adjudications in this state, as with the plain provisions of the statute.

Under the statute of Eeb. 24,1884, allowing the failure, or part failure, of consideration to be given in evidence, in a suit upon a specialty, the facts stated in the answer would have constituted a perfect defense. And the provision of the code, allowing a defendant to set forth in his answer equitable as well as legal grounds of defense, permitted the same defense to be made in this case; and therefore the failure of consideration, stated in the answer, constituted a good defense.

Entertaining these views of the case, we perceive no drror in the record. The judgment of the court of common pleas must therefore be affirmed.

Swan, Brinkerhoee, and Scott, JJ., concurred.


text:
    Miranda Maxwell v. John Campbell and James Campbell.
    1. In an action on a promissory note given by a party in custody before, a justice of tbe peace, on a charge of being the father of a bastard child, to the mother of such child, for a compromise of such prosecution, and for the support of the child, the facts that the agreement of compromise was not acknowledged before the justice, that no memorandum of the same was entered on his docket, and that no bond was given conditioned that the child should not become a township charge, constitute no defense to the action.
    2. Nor does an answer in such action, averring that the child “ lived but a few days after birth,” and that no expenses were incurred in the support of such child, state facts sufficient to constitute a defense to the action.
    In Error to the Common Pleas of Morgan county. Reserved in the District Court.
    The case is stated in the opinion of- the court.

      John E. Hanna, for plaintiff in error.

      Evans $ Wood, for defendants in error.
   Brinkerhoff, J.

On the 13th of January, 1855, the defendants executed to the plaintiff their promissory note of that date for fifty dollars, payable in one year from date. Suit was brought and judgment recovered on the note before a justice of the peace, and from thence the case was appealed to the common pleas.

To the plaintiff’s petition, in ordinary form, on the note, John Campbell, one of the defendants, and principal in* said note, answered:

1. That said note, upon which this suit is brought, was given without any legal consideration.

2. “ That said note was given by defendant to plaintiff for the support and maintenance of a bastard child, with which she, the said plaintiff, was then pregnant, and for which she had procured the defendant’s arrest as the father of said child; that said note, together with other notes, were given, and the said plaintiff refused to prosecute said complaint for bastardy any farther, and that, thereupon, the justice of the peace before whom said complaint was made, rendered a judgment of nonsuit against the said plaintiff. That no memorandum of said agreement was entered by said justice of the peace upon his docket, and no bond was given by the defendant for the support or maintenance of said bastard child, or that said bastard child shall not become a township charge upon any township in this state. That said defendant was not discharged from liability to a further prosecution, or another prosecution, on account of said charge of bastardy.

3. “ That said note was given for the maintenance and support of a bastard child with which the plaintiff was then, to wit, at the time of giving said note, pregnant; that said bastard child died a few days after birth; that no expenses were incurred in the support of said child; and that the consideration for which said note was given, has failed.”

To the second and third of the supposed defenses in this answer contained, the plaintiff demurred, on the ground that they do not state facts sufficient to constitute a defense to the action.

On hearing, the court below overruled the demurrer; and, a jury being waived, and the case having been submitted to the court for trial of the issues of fact made by the answer, this is the finding of the court, as appears by the record: “ That the matters and things contained in the petition of the plaintiff are untrue, and that the said defendants are not indebted to the said plaintiff' as is therein alleged.”

It is assigned for error, that the court below erred in overruling tbe plaintiff’s demurrer to tbe second and third defenses set up in tbe answer, and in giving judgment for tbe defendants.

Tbe court below, in finding tbe “ matters and things contained in tbe petition untrue,” found what was not put in issue by the pleadings. Tbe answer did not ‘deny any fact stated in tbe petition, but set up new matter in avoidance of tbe cause of action stated in tbe petition. “ Every material allegation of tbe petition, not controverted by tbe answer, shall, for tbe purposes of tbe action, be taken. as true.” Code, sec. 127. There being, therefore, no finding as to tbe truth of tbe answer, and only a finding, contrary to tbe admission of the defendants, conclusively presumed from tbe silence of tbe answer, that tbe petition was untrue, it would seem that tbe judgment is erroneous for want of any determination of tbe issues actually made in the"pleadings; unless, indeed, we bold tbe subsequent finding, that tbe defendants are not indebted to tbe plaintiff, is a sufficient finding “ generally for tbe defendants ” under tbe 280tb section of tbe code. But' these questions, arising, probably, from inadvertence in making up tbe journal, are not made by counsel for plaintiff, and we therefore pass them over, and proceed to consider whether there was error in overruling the plaintiff’s demurrer to tbe second and third defenses, set up in tbe answer. And,

1st. As to tbe second defense set up in tbe answer. In it, tbe defendant who answers, does not deny that be is tbe father of tbe child of which tbe plaintiff was pregnant; admits that he was in custody on the charge of being its father; and, by fair implication, also admits that he gave the note sued on, with other notes, in pursuance of an agreement then made with the plaintiff' for the compromise and abandonment by her of the prosecution under which he was then in custody. But he claims to be absolved from the performance of his part of the agreement, for the reasons that such agreement was not acknowledged by the parties in the presence of the justice, and entered on his docket, and that no bond was given conditioned that the child should not become a township charge, in the mode the statute prescribes.

This presents the question whether the plaintiff is to be held responsible for the laches of the justice, or of the defendant himself, or both. If the plaintiff had been called on to acknowledge the agreement in presence of the justice, it does not appear but that she would have cheerfully complied; if she had power to cause the proper docket entry to be made, surely he had at least equal power in the premises; and it was he, and not she, who was under obligations to furnish the bond which the statute prescribes. So far as appears, she was guilty of no laches whatever; and we are not inclined to hold her responsible for the neglect of official duty by the justice on the one hand, nor to permit the defendant to take advantage of his own wrong on the other. It is alleged, that this compromise, not being perfected in conformity with the requirements of the statute, would be no bar to another prosecution. How this may be, we are not required to determine. It is very clear, however, that in case another prosecution were to be commenced, and could be maintained, the court adjudicating upon it, and which would have ample discretion as to the amount to be assessed upon the defendant, ought to, and would, make due allowance for any contribution which the defendant might have voluntarily made, or obligated himself to make, towards the fulfillment of a duty which his own acts had imperiously imposed.

2. As to the third defense set up in the answer. This defense is, that “the child died in a few days after birth, and that no expenses were incurred in the support of said child.” This defense contradicts itself. We live in a civilized and Christian state, and it is not a violent presumption, that when a woman gives birth to a child, she has the ordinary attentions which her condition requires, including the services of a midwife or a physician; that when a child is born and lives “ a few days,” it is clothed; and that when it dies, it is coffined and buried. And all this involves a necessary and proper expenditure quite sufficient to constitute a good consideration in law.

Eair and honorable compromises between parties, perhaps equally guilty, who are about to become the parents of illegitimate offspring, are not only dictated by sentiments of honor and duty, but are in entire harmony with the policy of our statutes. And had there never been any prosecution in this case, and, without the pressure of a prosecution, the defendant had voluntarily come forward and executed these notes, they would have been, as they now are, good in law, because based on the consideration of not only a moral, but also a legal obligation to provide, to some extent, for the expenses and support of both mother and child.

The amount which the father should pay and the mother should receive, was a proper subject-matter for negotiation and agreement; and no circumstance of fraud appearing in the case, and no coercion other than such as the law sanctions, we see no reason why he should be absolved from the obligations which, by contract, he has assumed.

Doubtless there might have been a contract so framed between the parties, that payments to be made by the father should cease at the death of the child; but no such contract is disclosed in the case before us. Eor aught that appears in the case, the contract was unconditional and absolute; she taking upon herself the risk that the support of the child might cost more than she was to receive, and he taking upon himself the risk of its costing less than he was to pay.

Judgment reversed, and cause remanded for further proceedings.

Swan, Scott and Sutliff, JJ., concurred.


text:
    Elijah Bocock and Wife et al. v. Henry S. Pavey et al.
    In the year 1856, A., and B., his wife, being seized in fee of lands in Ohio, executed a power of attorney in Virginia, acknowledged by A. but not by B., empowering 0. to sell said, lands. In 1818 0. duly executed a power of attorney to D. to sell these lands. In 1819 D., under this power of attorney from C., made a written contract of sale of the lands to E., and received his obligations, with security for the purchase money. A. accepted the contract and obligations, and, in 1820, received more than half the purchase money, and gave possession. F. having an equitable interest in the lands in 1822, instead of taking a decree for the lands, as he might have done, finding them sold at a high price, procured the court to enter a decree in his favor, for money against-A. and B., based upon the price and fact of a valid sale to E., and afterward told G., the trustee of E., to pay up the purchase money, and that his title, under the contract, would be good. In 1829 E. died, having made valuable improvements. In 1830, F., upon execution on his judgment, bought in the lahds, but did not give notice to, or require possession of G., who continued to hold the lands, and, in-1837, paid the residue of the purchase money, and in 1810, got a decree against A. and B. for the title. Held:
    1st. That the power of attorney from A. and B. was not obligatory upon B., not being acknowledged by her.
    2d. The contract made by D., was not, when made, obligatory upon A., C. having no power to delegate his authority; but the contract became obligatory upon A. by his acts under it.
    3d. That after the decree of 1810, F. held the title acquired at the sale on his judgment, in trust for G., or the heirs of E.; and that F. was, in equity, estopped from asserting said title against the title acquired by G. under the decree of 1810.
    In Chancery. Reserved in the District Court of Eayette county.
    Francis Dade, holding a land warrant for some four thousand acres of land, in consideration of his services as an officer in the Virginia line, in the revolutionary war, died intestate in Virginia, in 1802, leaving three minor children, Lawrence F. Dade, James Dade, and Mary J. Dade, his heirs at law, who became entitled to the lands.
    William Dade, their guardian, the same year entered into a written contract with William Barlow, to locate and survey, for the heirs, about two thousand acres of the lands in the Virginia military district in Ohio. By the terms of the contract, Barlow was to defray all incidental expenses in the location, survey, and entry of the lands, and to have one-third of the land as his compensation. Barlow proceeded under the contract, to locate the lands along Paint Creek, in Fayette and Highland counties, and procured the surveys and entries of the lands to be duly made, and fully performed the contract on his part. Mary J. Dade intermarried with Edwin Conway, and in 1811, James and Lawrence F. having sold, or contracted to sell, part of the lands to different purchasers, assigned all their remaining interest in the lands and warrant to their sister, Mary J., and her husband, Edwin Conway. A patent was duly issued upon such assignment, “ unto Edwin Conway and Mary J. Conway, his wife, formerly Mary J. Dade, in her own right, as heir of the said Francis Dade, and as assignees of Lawrence F. Dade and James Dade, co-heirs of the said Francis Dade, deceased,” of all the said lands.
    In 1818, William Barlow having deceased, without having received a conveyance from Conway and wife of the third of the lands, or any other compensation for his services rendered under the contract, his administrator, Samuel Shepard, who had married his daughter, with his wife and the other heirs of Barlow, filed their bill in chancery in the court of common pleas of Highland county, against said Edwin Conway and wife, and the other heirs of said Francis Dade, deceased, setting forth the contract and the performance thereof on the part of Barlow, in his life, and praying a specific performance, if practicable; but that if the same should be found impracticable by reason of the landshaving been sold, that a proper and just compensation should be decreed to be paid complainants, in money.
    Samuel Shepard acted also as attorney in the proceeding.
    It appears in the record of that case, that at the July term, 1822, on motion of counsel, the case was referred to a special master, to report in relation to what lands had then been sold, and the value of the lands, and what would be a proper money decree, in amount, if such a decree should be entered under the contract, in lieu of one-third of the lands.
    During the pendency of the suit so instituted in Highland county, by Shepard and others, Samuel Gregory, under whom the present complainants claim, entered into a written contract on the 27th of February, 1819, for the purchase of 105J acres in lot four, and 61-f- acres in lot five, and adjoining the 105 J, being part of the lands so located in Fayette county, with Samuel Winston, acting as attorney of Conway and wife, under the following authority: Conway and wife, on the 23d day of August, 1816, had executed a written power of attorney to Charles Thornton, to sell, but defective as to the wife, in that the same was not acknowledged by her, (she then residing in Virginia), either according to the statute of Virginia or Ohio. And on the 25th of June, 1818, Thornton executed a written power of attorney to Samuel Winston, assuming to authorize him to sell. Samuel Gregory bound himself to pay for the lands $316.50 Dec. ¿5, 1819, and $153.75 Dee. 25, 1820, and executed his two obligations therefor, with his father William Gregory as surety, payable to Thornton, as agent of Conway; entered into possession, built a cabin, and proceeded to clear and improve the lands; and on the 19th of February, paid to Conway and wife $251 of the purchase money; and was still residing upon the lands in 1822, at the time of the reference to the master, and the making his report, and the decree thereon.
    Under these circumstances, the master reported the land so then held (in 1822) by Samuel Gregory, under his contract of purchase, with other tracts of land sold by the heirs of Erancis Dade, as sold by “ Samuel "Winston, as the agent of Edwin and Mary Conway.” The master, after reporting all the several parcels of land sold by the heirs of Dade, and by Conway and wife, in pursuance of the order of reference, stated an account between the parties in the premises, and reported the sum of $811 as a just money compensation, at the commencement of the suit, due from the heirs of Dade to the said Shepard, under said contract with Barlow. And Shepard, at the November term, 1822, obtained a confirmation of the master’s report, and a decree thereon, in favor of himself and the other complainants in that suit, for the full sum so reported, being $1,012.73.
    The master having reported 198 acres of the land as unsold, Shepard, immediately after obtaining the decree, caused execution to be issued and levied on the 198 acres, and subjected the same to sale in part satisfaction of the decree; but did not assert any right to levy upon any of the land reported as sold to Gregory, and others, until October, 1829.
    Samuel Gregory continued to reside upon the land and occupy the same until some time in 1824, when he became insane, and unable to conduct his business; and his brother took him and his family under his care, and removed them to his own house; and perhaps continued a supervision over the land for the benefit of Samuel’s family for one or two years.
    In 1826, Jesse Pavey, the father-in-law of Samuel Gregory, called upon him while at his brother’s, and persuaded Samuel to assign and deliver to him his contract' for the land, to hold, and thereby control the land, for the benefit of the family, then consisting of Samuel and his wife, and two children, Lavina and Samuel Wesley, the younger about one, and the elder about two years of age. Jesse Pavey also received personal property of Gregory about the same time, to the amount of probably one hundred dollars and upward; but whether to a greater amount than the expenses by him incurred for the family, does not very clearly appear in proof. Samuel Gregory continued insane until his death, in 1829. Jesse Pavey continued in possession of the land contract, and received the rents •and profits of the place, estimated at about twenty-four dollars yearly, until about the time of his death, in 1845.
    On the 26th day of October, 1829, Shepard caused execution to be issued upon the decree so obtained in Highland county, and, on the 26th of the same month, to be levied upon all of the 167J acres so reported sold to Gregory. The land was appi’aised at $322.87J-, and bought in by Shepard, upon the decree, at $215.26.
    It is in proof, however, that previous to the levy, and previous to Gregory’s removal from the land, Shepard frequently had been at his house, and had read his contract, and spoke favorably of it to Gregory; that after removal, he had assured the wife of Gregory and Jesse Pavey, the holder of the contract, upon their inquiry as to his claim against the land, that he “ was going to have nothing to do with the sold lands;” and assured them that upon paying up for the land, Gregory’s title would be good; and that in 1824 or 1825, he, Shepard, had received money from Gregory’s wife, and, at her request, therewith paid the taxes for her upon the land. Again, the proof shows that Shepard, in a conversation had with the widow of Gregory, shortly after he bid in the land at sheriff sale, spoke of having some understanding with Jesse Pavey in relation to the land, and assured the widow that he would make a conveyance of the same to the children of Samuel Gregory.
    On the 23d of October, 1830, Shepard received the sheriff’s deed for the land; and on the 30th of November, 1831, executed a deed of conveyance in fee simple to John Boots, of the 61f acres in lot five, and 45 acres in lot four, part of the 105J acres upon which Gregory had resided and made his improvements. The deed contains a recital of the consideration of $118, and a special provision, “that if the said land or any part thereof should be lost by the interference of any other claims, then the said Shepard is to repay the purchase money for the part so lost, with legal interest thereon, from the 21st day of October, 1830, until paid, and no more.”
    On the 29th day of June, 1837, John Boots executed a deed of conveyance of the 45 acres in fee simple to Philip Barger, for the recited consideration of fifty dollars ; and on the same day executed a deed of conveyance in fee simple of the 61f acres to Hiram Rees; and on the 9th of June, 1847, Reese assumed to convey the same by deed in fee simple to John Howe, one of the defendants, for the consideration of $617.50, as exjDressed by the deed. Philip Barger, on the 26th of October, 1844, for the consideration of seventy-four dollars, as expressed in the deed, executed a deed of conveyance in fee simple to the defendant Henry S. Pavey, of the 45 acres. This deed contains a special provision, that “ if the land or any part of it should be lost in consequence of any interfering claim, the said Henry S. Pavey, or any person claiming title under him, shall have recourse upon those under whom said Philip Barger claims.”
    July 12,1837, Jesse Pavey paid the balance of the purchase money due upon the obligations of Gregory to Winston, to whom they had been sold and assigned by Conway; or at least paid him such a sum as was acceptable to Winston in satisfaction of the same.
    June 16,1838, Jesse Pavey filed his petition in the court of common pleas of Eayette county, against Conway and wife, for a deed of conveyance in accordance with their contract with Gregory, so held and paid off by him; and on the 15th of August, 1840, obtained a decree against them to convey unto him said 1671 acres of land in fee simple within thirty days; and that in default of such conveyance, the decree should operate as a conveyance. Jesse Pavey continued, as he had been since receiving the land of Gregory, in the undisturbed possession of the 105|-acreSj in lot 4, and continued to leave Shepard and those claiming under him, after his sheriff’s sale, in the undisturbed possession of the 61f acres in lot 5.
    On the 18th of March, 1845, and shortly previous to his death, Jesse Pavey executed a deed in fee simple of 45 acres of the 105| acres in lot 4, to Ellen and Susan Maria, minor children of his son Jesse; and about the same time, requested a scrivener, the witness, to-come to his, Pavey’s house, to write for him a deéd of the residue of the 105J acres to Bocock and wife, and Samuel W. Gregory, the complainants. It is in proof that the complainants were, at that time, in possession of.the 60 J acres so proposed to be conveyed to them; and there is no proof that their possession was not by the permission, if not at the instance, of Jesse Pavey, who had previously held the possession.
    Such was the state of the title, and such the state of facts preceding the death of Jesse Pavey the elder.
    Afterward, and while the complainants were remaining in possession, Henry S. Pavey, by deed of conveyance in fee simple, executed to him on the 17th day of October, 1845, by the heirs of Samuel Shepard, then deceased, obtained their title in the remainder of the 105J acres not conveyed by their father in his lifetime. The consideration stated in the deed is $200, and the conveyance includes, in its description, the 60J acres then held by complainants. After obtaining the deed of conveyance from the heirs of Shepard, Henry S. Pavey commenced an action of ejectment against complainants for the recovery of the 60J acres, and obtained judgment in the case. And the complainants thereupon, on the 26th of March, 1850, commenced this suit by filing in the court of common pleas of Payette county their bill in chancery.

      The bill is properly framed to present all the foregoing facts to the consideration of the court. Henry S. Pavey, who is a son and heir of Jesse Pavey, deceased, and his other children and heirs, as well as Ellen and Susan Maria, his grantees of the 45 acres, and John Howe, are all made parties defendant.
    The bill charges that Jesse Pavey received from the estate of Gregory means to pay off the contract for Gregory, and also that the defendants purchased, with full notice of the rights of the complainants, and also charges the defendants with confederation and fraud. The complainants pray a perpetual injunction against the proceedings of Henry S. Pavey to recover said land, and that the legal title of the 167-j- acres so purchased by Samuel Gregory, be decreed to them, and that they be fully put in possession thereof.
    The defendants answer, denying the material facts set forth in the bill constituting the right of complainants to the relief prayed for. The answers are not sworn to, hut are traversed by replication.

      Rush § Wilcox, for complainants.

      J. H. Thompson, for defendants.
   Sutliff, J.

The proof is sufficient to show notice of whatever equities the complainants have in the 105J as between themselves and Henry S. Pavey, and perhaps as between themselves and the grantees of the 45 acres. There does not, however, appear to have been any notice, actual or constructive, to John Howe of their equities in the 61f acres in lot 5.

It becomes, therefore, necessary to first determine what equitable interest, if any, Samuel Gregory held under his contract in the lands in question.

The patent, it will be observed, conveyed the title of these lands by its terms, in effect only one-third to Edwin Conway, and two-thirds to his wife, Mary J. The power of attorney executed by them to Charles Thornton, not having been acknowledged by her in accordance with either the statute of Virginia or of Ohio, was, as to her, utterly nugatory. The power of attorney can only be regarded as one executed by himself alone. But the contract was not entered into by Thornton; he constituted Winston his attorney to sell, and it was Winston who made and executed the contract with Gregory for the sale of the 167J acres of land. By force of the maxim that an attorney can not make an attorney, the contract so executed by Winston, was, when made, not obligatory upon Conway. But the proof shows that Conway recognized the agency of Winston, and ratified the contract by receiving the obligations executed by Samuel and William Gregory under it for the purchase money, and by recognizing Samuel’s possession of the land, and suffering him to make valuable improvements, and pay taxes upon it. Conway indeed received $251 of the purchase money upon the contract, and finally sold the obligations for the balance, and thus received the entire purchase money under the contract. The proof does not show whether or not the purchase money was shared by the wife in proportion to her interest in the land; nor whether she afterward executed another instrument .of writing, obligatory upon herself in relation to the sale of said land, from which the court, in 1840, decreed the validity of the sale of the land to Gregory, and his equity therein in favor of his trustee Jesse Pavey, as well against her as against her husband, Edwin Conway. But we have no doubt, after those acts of ratification of the contract of sale by Winston, as his agent, the contract became obligatory upon Conway, and gave as perfect an equity to Samuel Gregory in the land as if the contract had been executed by Thornton, his attorney in fact.

By means of the contract^ and the acts performed under it, and especially by force of the decree entered upon it in favor of Pavey, the assignee and trustee of Gregory, the equity arising under this defective contract would be established, but for the previous sale of the same land to Shejjard, upon the judgment in his favor against Conway and wife, so rendered in Highland county.

What right, then, did Shepard acquire against the otherwise subsisting equity of Samuel Gregory, by his purchase of those lands at sheriff’s sale?

The sheriff’s deed of Oct. 23d, 1830, to Shepard, doubtless conveyed to him in fact the fee of the lands. His purchase was, however, made with full knowledge of; all the equities of Gregory’s heirs and trustee, existing under his contract of 1819, both against Conway and wife, and against Shepard himself. Shepard had read Gregory’s contract, and had seen that it purported to be a valid contract of sale of said land, and that Gregory had paid therefor, ten years previous, $251, a sum at that time much larger than the price at which he had then purchased in the same land with all the improvements, and that Conway and wife had also received the obligation of Gregory with personal security, and which had been sold, and probably fully realized by them, for the additional sum of $229.25; making the sum of $470.25, probably actually received by Conway and wife, as of 1819, for the lands so then bid in by him, Shepard, with all the improvements made thereon, at the price of $215.26. Shepard knew, too, at the time of bidding in the land, the fact that he had himself insisted upon the validity of the sale by Conway and wife to Gregory, at the time of obtaining the decree in Highland county, and that he obtained a confirmation of the report of the sale of these lands to Gregory, and obtained a money decree against Conway and wife and the other heirs of Francis Dade, based upon and correspondent to the high price at which these lands had been so purchased by Gregory. Shepard also knew of his afterward counseling Gregory and his wife and trustee, to make full payment of the purchase money, and to continue to pay the taxes, assuring them that the title would be perfect under the contract upon such payment. Under this state of facts, as shown by the proof, we have no doubt that the title so acquired by Shepard, would, as between him and the heirs of Gregory, be held by him in trust for them under their contract; and that if, after the decree of the title from Conway and wife to the trustee Pavey, a petition had been filed for that purpose upon the foregoing state of facts, a court of chancery would have decreed a surrender of the title so held by Shepard to the heirs of Gregory.

To the foregoing view of the rights of Shepard, it might be urged that after his purchase at sheriff sale, in 1830, he was at least to be regarded as having thereby acquired all the rights of Conway and wife, and to have thereby become entitled to receive the residue of the purchase money under the Gregory contract still remaining unpaid, and which Pavey, the trustee, paid in 1837.

To this claim there are two answers. In the first place, apart from the slight proof of a mutual agreement between Shepard and Pavey, that Pavey should hold, by a perfect title, as trustee, the 105J acres in lot 4, and that he, Shepard, should have perfect title, under his sheriff' deed, to the 61§ acres in lot 5, there is no proof of notice to Pavey or the heirs of Gregory, that Shepard had bought the lands, or made any claim to them. And, in the second place, the purchase money, under the Gregory contract, was not paid by Pavey to Conway and wife, but to Samuel Winston, to whom they had sold the obligations given for the purchase money.

There is still another view to be taken of the relation of Shepard, under his purchase at the sheriff sale, to the claim of Gregory’s heirs under the deex’ee of 1840, of the title of Conway and wife to the trustee Pavey. Although Shepard had, in fact, by his bidding in the land upon his decx’ee, obtained the legal title to the 167J acx’es of land, he was, by his own acts and representations in relation to the title derived from the decree of 1840, upon Gregory’s contract, estopped from setting up a title under his decree inconsistent with the recitals contained in that record as expressed by the report of the sale of the same lands to Gregory, upon which he had obtained his decree, and inconsistent with his conduct and representations mentioned, made to Gregory and his representatives.

The rule of law applicable to such cases is thus laid down by Lord Denman, in the case of Pickard v. Sears, 6 Ad. & Ell. 475: “Where one, by his words or conduct, willfully causes another to believe in the existence of a certain state of things, and induces him to act on that belief, so as to alter his own previous position, the former is concluded from averring against the latter a different state of things as existing at the same time.” And in delivering the judgment of the court in the case of Freeman v. Cook, 2 Exch. 654, Park, B., said that the rule laid down in the case of Pickard v. Sears, was “ to be considered as established, but that the term ‘willfully’ must be understood, if not that the party represents that to be the truth which he knows to be untrue, at least that he means his representation to be acted upon, and that it is acted upon accordingly; and if, whatever a man’s real meaning may be, he so conducts himself that a reasonable man would take the representation to be true, and believe that it was meant that he should act upon it, and did act upon it as true, the party making the representation would be equally precluded from contesting its truth.”

It is remarked by the commentator in Smith’s Leading Cases, vol. 2, p. 545, upon this subject, as follows: “ In the class of cases just noticed, the estoppel must obviously be limited within such bounds as are sufficient to put the party who has dealt on the faith of appearances that turn out to be incorrect, in the same position with reference to the author of such appearances as if they were true.” And again, the same author adds: “ The truth is, that the courts have been for some time favorable to the utility of the doctrine of estoppel, hostile to its technicality. Perceiving how essential it is to the quick and easy transaction of business, that one man should be able to put faith in the conduct and representations of his fellow, they have inclined to hold such conduct and such representations binding, in cases where mischief or injustice would be caused by treating their effect as revocable. At the same time, they have been unwilling to allow men to be entrapped by formal statements and admissions, which were perhaps looked upon as unimportant when made, and by which no one ever was deceived, or induced to alter his position. Such estoppels are still, as formerly, considered odious.”

Under the reasonable application of the rule of estoppel as thus expressed, how stands this case ? In taking his decree, in 1822, Shepard had insisted upon the bona fide sale of these lands to Gregory, and, as stated, thereby obtained a money decree instead of a decree for the lands, which would doubtless have suffered Gregory to then have recovered back his $251, paid, and have prevented his expending thereafter, perhaps as large a sum in improvements. Again, after the decree was entered, if Shepard had not still continued to treat, by his acts and representations, the Gregory purchase as valid; if he had then treated these lands as unsold, and levied upon them, with other lands upon which he levied, for the satisfaction of his decree in 1822, the same result would have probably followed to Gregory; and he would even then have been able to recover back his $251, and have been prevented expending more in improving the land. But Shepard continued to treat the sale of these lands, by Conway and wife to Gregory, as valid; and even urged the payment of the residue of the purchase money, by assurances to the family and trustee, that the title would thereby be made perfect-under their contract. The trustee, subsequently to these representations and the conduct' of Shepard, proceeded, while in possession of the 105J acres at least, and without any notice from Shepard (except as stated), to pay off the residue of the purchase money for the land, and to obtain a decree of title under the contract, as Shepard had assured them they could do, on so paying the purchase money.

It seems to me, under these circumstances, if Shepard had attempted to recover the lands, against the decree title of Pavey under the Gregory contract, a reasonable application of the doctrine of estoppel would have prevented his asserting title under his sheriff’s deed.

But if it be insisted that J esse Pavey had notice of the fact of Shepard’s levy and purchase of the lands, before paying up the residue of the purchase money, it may be remarked, that the only proof of such notice is the statement of a witness who speaks of a mutual understanding, by which Pavey was to hold the 105|- acres, and Shepard the 61f- acres. And if it be objected to the reasonableness of such an arrangement, that Pavey suffered Shepard to receive a sheriff’s deed for all the land,' it maybe replied, that the approval of the sale and deed were made in Highland county. It may be further replied, that Shepard suffered Pavey to take a decree in Eayette county for all the land; so that the conduct of each party is equally opposed, in those acts, to the supposition of either intending to set up an adversary claim against that of the other.

The most favorable view, however,, which can be taken of the title acquired under Shepard’s sheriff" deed, is that upon which the parties, Shepard and Pavey, seem to have acted, in the occupancy of the land, to wit, that Shepard was to claim only the 61f acres in lot 5, and that Pavey was to hold the -105| acres in lot 4. And as Howe is a purchaser without notice, for a valuable consideration, we' are disposed to give effect to this view of the case by dismissing the petition as to him, but without costs.

It no where appears what amount Jesse Pavey paid, in satisfaction of the obligations held by Winston for the purchase money. It seems to be regarded as only between two and three hundred dollars. Nor is the value of the land by him conveyed to the children of his son Jesse, shown by the proof. But as there is no proof of his having acted in bad faith, and it is proved that, shortly previous to his death, Jesse Pavey, after conveying the 45 acres to his other grandchildren, contemplated conveying the residue of the land in lot 4 to the heirs of Samuel Gregory, as the amount of land, in his opinion, justly belonging to them, and supposing this to have been, in his estimation, from his knowledge of the amount he had paid "Winston, to be a just apportionment to them of their father’s interest in the land, we are disposed, as between his estate and complainants, to give effect to this expression of his opinion and intention.

The purchases of the Shepard title, by Henry S. Pavey, having been made — of the 45 acres while in possession of his father, Jesse Pavey, and of the 60J acres while in the actual possession of the complainants — he had constructive notice of all the claims and equities, to which we give effect, arising under the Gregory title. It is also proved that ITenry S. had actual notice of the rights of the heirs of Gregory, his brother-in-law, and of his father, Gregory’s trustee, in the lands in question. He could not, therefore, acquire any right in the premises by his purchase of the Shepard title.

A decree may, therefore, be entered in favor of complainants as to all the lands in lot 4, except the 45 acres conveyed by Jesse Pavey to Ellen and Susan Maria Pavey, and that Henry S. Pavey be perpetually enjoined from proceeding upon his judgment in ejectment against them, and that they recover of him their costs, to be paid in thirty days; and as to all other parties, the bill may stand dismissed without costs.

Bartley, O. J., and Swan, Brinkerhoee and Scott, JJ., concurred.


author: J. R. Swan, J.

text:
    George Powers v. The County Commissioners of Wood County.
    Proceedings to annex contiguous territory to the corporate limits of a town, in pursuance of the 14th section of the act to provide for the organization of cities and incorporated villages (Swan’s Rev. Stat. 959), are not in contravention of the provisions of the constitution.
    This is a petition in error to the District Court of Wood county.
    The petitioner sets forth that he is the owner of a tract of land on which he resides, situate in Wood county, and more than a half mile outside of the present boundaries of the incorporated town of Perrysburg; that the town council of that town, on the 20th day of February, 1854, passed an ordinance to submit to the qualified voters of said town, at the spring election in said year, the question of annexing certain contiguous territory to said town; that within the limits of the contiguous territory so proposed to be annexed, is the farm and residence of the plaintiff; that, at the annual spring election in said year, a vote was taken for and against the annexation of said contiguous territory, at which election plaintiff appeared and tendered his vote against said annexation; but his vote, as well as the votes of others residing out of said corporation of Perrysburg, was refused, on the ground that none were allowed to vote who were not qualified voters of the existing corporation; that a majority of the voters of said corporation being in favor of said annexation, a petition was, on the 7th day of April, 1854, presented by said corporation to the county commissioners of Wood county, setting forth the above facts, and asking the annexation of said contiguous territory; that the corporation of Perrysburg is very heavily in debt, being indebted to the amount of abou,t sixty thousand dollars, while the indebtedness of the township does not exceed fifteen thousand dollars; that, by the annexation, his taxes will be greatly increased, and his property held liable for the payment of a debt for which it was not liable at the time the debt was contracted; that there is no valid law to authorize the annexation of said territory by the county commissioners, as they are about to do. The plaintiff, for relief, asks that the commissioners may be restrained by inj unction from annexing the territory, until the final hearing of this cause, and, on such final hearing, the injunction may be made perpetual.
    To this petition the defendants demurred. The demurrer was sustained by the district court, and the action dismissed.
    To reverse this judgment the cause is brought here upon petition in error.

      James Murray, for plaintiff in error.
    Section 14 of the “ act to provide for the organization of cities and incorporated villages” (Swan’s Bev. Stat. 959), provides for the annexation, by a city or incorporated village, of contiguous territory, on the vote in favor thereof of a majority of the qualified voters of such city or incorporated village, and does not provide for obtaining the consent of a majority of the inhabitants of the territory sought to be annexed. In this particular, it differs from the organization of a new corporation, from the annexation of the inhabitants of contiguous territory, on their motion, to a city or incorporated village, and from the annexation of two or more contiguous corporations, and, in this particular, we claim this section to be unconstitutional and void. The section under consideration provides for annexing certain territory to existing corporations, on the application of such corporation, without respect to the wishes of the inhabitants of the territory sought to be annexed. It therefore disposes of their residences and property, without permitting them to exercise any right of suffrage in relation thereto, but simply at the will of those seeking to dispose of such residence and property, and of

      whom they form no part. Although no particular provision of the constitution is violated, yet it is an attempt to exercise a power not delegated by the people in the constitution, and therefore as clearly void as though it were the violation of an express provision. C. W. & Z. R. R. Co. v. Comm’rs of Clinton County, 1 Ohio St. Rep. 85.
    It is a well settled principle of law, that no body of persons can be incorporated without the assent of a majority of them; and any act of the legislature attempting to confer corporate powers on a body of persons, without providing for obtaining the assent of a majority of them, is void. In the case of Ellis v. Marshall, 2 Mass. Rep. 276, this point was distinctly presented. See also Baggs’s case, 1 Roll’s Rep. 224; Brownl. Rep. 100; Cumb’k 316.
    The constitution of Ohio grants to the general assembly power to provide for the organization of cities and villages by general laws (see sec. 6, art. 13); but it nowhere grants power to organize cities or villages by the act of the general assembly direct, or to authorize them to be organized, without the consent of a majority of those directly interested in the organization.
    The property annexed is subject to taxation, to pay prior indebtedness of the town. It is, therefore, private property taken for public purposes; and the act is void in not providing a means of compensation to those whose property is thus taken.

      M. JR. §• JR. Waite, for defendants in error,
    insisted, that the law providing for the annexation of territory to existing corporations, is not void because it does not provide for obtaining the consent of the people of the territory to he annexed; but, without discussing that question, maintained, that the action of the plaintiff in error was premature, in seeking to restrain the commissioners from acting on the petition to annex the territory.
   J. R. Swan, J.

The statute relating to the annexation of contiguous territory is as follows:

Seo. 14 When any municipal corporation shall desire to annex any contiguous territory thereto, not embraced within the limits of any city or incorporated village, it shall be lawful for the trustees or council of the corporation proposing such annexation, to submit the question to the qualified electors of the corporation, by an ordinance passed for that purpose, at least one month before some general election in April or October ; if a majority of the qualified voters of the corporation voting on the question, shall vote in favor of such annexation, the said corporation shall present to the county commissioners of the proper county, a petition, praying for such annexation, which petition shall describe the territory proposed to be annexed to such municipal corporation, and have attached thereto an accurate map or plat thereof; and like proceedings shall be had upon said petition, as are provided in the third, fourth, fifth, sixth and seventh sections of this act, so far as the same may be applicable ; and if, within two months after a transcript shall be delivered as above provided, no notice of a complaint against such annexation shall be given, according to the provisions of this act, then, at the end of said two months, and in case of any such complaint, then, at the end of said two months and after the dismission of said complaint, the said contiguous territory proposed to be annexed, shall be in law deemed and taken to be included in, and shall be a part of, said municipal corporation, and the inhabitants thereof, shall, in all respects, be citizens thereafter of the said municipal corporation.” Swan’s Rev. Stat. 959.

The third, fourth, fifth, sixth and seventh sections of the statute, above mentioned, in substance, require the county commissioners to hear the petition in public; to permit all parties interested to appear and contest the granting of the petition; to examine all affidavits which may be submitted in support of or against the petition; and if, after the hearing, it shall, in their judgment and discretion, seem right and proper that the petition should be granted, it is their duty to make and indorse upon the petition an order to that effect, and deliver such order, with the petition, to the clerk of the town. Within two months from the time said order is delivered to the clerk, any person interested may make complaint to the court of common pleas for the county, or to any judge thereof, in vacation, and it is made the duty of the court or judge to hear such complaint; and if the limits of the proposed annexation will make the corporate territory unreasonably large, to order the record of the commissioners to be annulled. The order of the commissioners has no effect until the two months have elapsed, if, within that time, a complaint is filed, the operation of the order is still further postponed until this complaint is dismissed. If no complaint is made, or, if made, is dismissed, then, after the expiration of the two months, and the dismissal of the complaint, the territory is annexed. If the complaint is sustained, it is the duty of the court, or judge, to annul the order of annexation made by the commissioners. Swan’s Rev. Stat. 956, 957, 958.

The plaintiff claims that his lands cannot be annexed to the town of Perrysburg without his assent, or, at least, without permitting him to vote on the question.

There is no constitutional provision upon this subject. The statute relating to a vote by the citizens of a municipal corporation, upon the question whether contiguous territory shall be annexed to the town, is simply for the purpose of determining whether an application shall be made to the county commissioners to annex the territory; and they, finally, after hearing the parties in interest, decide upon the public policy of making the annexation. No right of property is involved or determined by the vote contemplated by the statute.

The extent and limits of a municipal corporation depend upon a variety of questions, both of a public and local nature; and among them is involved, sometimes, the private interest of citizens residing near towns who enjoy the benefits without paying the expenses of public improvements ; and, on the other hand, the corporate limits of towns are sometimes extended simply to extend unjustly the area of assessments and taxation. The county commissioners are, perhaps, as proper public officers as any other to decide upon the public policy and conflicting interests involved in the determination of the extent and limits of municipal corporations. It is, however, enough to say, that the law has devolved it upon them.

The county commissioners, in the exercise of this authority, are determining a question of public policy, affecting, it is true, incidentally, private interests; but not determining, like courts, the specific private rights of individuals, any more than the annexation of contiguous territory to school districts, townships or counties, is a judicial act, in the sense in which the constitution vests in courts exclusive judicial powers.

The property, if annexed, will be subject to taxation to pay a prior indebtedness of the town of Perrysburg; and it is, therefore, claimed that private property will be thus taken for public purposes without compensation. That injustice may be, and has, sometimes, been done by the annexation of territory to a town, which has contracted an improvident debt, is, no doubt, true; and, sometimes, and perhaps more frequently the owners o± contiguous territory have had the benefit, by reflected value and convenience, of expenditures for which they have not contributed anything. The question is one beyond the reach of practical consideration, in the absence of any statute; and it would require a very artificial and unsound mode of reasoning to hold, that territory could not be annexed to a town which owed debts, until the owners of such territory were paid a compensation in money for a proportional part of such debts, on the ground that the property annexed was condemned for public use.

It is not indeed to be presumed that a municipal corporation has contracted a debt without being correspondingly benefited.

Judgment below affirmed.

Bkoskebhoee, Scott and Sutliee, JJ., concurred.