author:
Hitchcock, C. J.
      Avery, J.,

text:
    Edward Newnam’s Lessee v. The City of Cincinnati.
    A plaintiff in ejectment may recover upon his previous possession, as between himself and a stranger who has dispossessed him.
    The judgment of a court having jurisdiction cannot be collaterally impeached.
    Under the chancery act of 1810, and the act of 1812, supplementary thereto, jurisdiction of the person of a non-resident defendant might be acquired by publication in pursuance of an order of court.
    It is errror in a court to charge the jury in general terms that the plaintiff has no cause of action, and that they must find for the defendant, especially where evidence has been exhibited by both parties, and for such error the judgment must be reversed, although the reviewing court may be satisfied, upon the facts exhibited, that the defendant was in fact entitled to a verdict

      This is a writ of error to the Superior Court of Cincinnati.
    The original action was ejectment for the recovery of a part of lot No. 228, according to the original survey of the city of Cincinnati.
    The common consent rule was entered into by the defendant, and the plea of not guilty filed.
    The cause was finally tried by a jury at the January term of the superior court, 1849, and a verdict returned for the defendant. A motion was made to set aside the verdict, and for a new trial. This motion was overruled by the court, and judgment rendered on the verdict.
    During the progress of the trial various questions were raised, as to the admissibility of evidence, and other points ruled by the court, and also to the action of the court in overruling the motion for a new trial.
    The various points will be found stated in the opinion of the court.

      James Biley and Spencer Convine, for plaintiff in error,
    cited the following authorities:

      Ludlow v. McBride, 3 Ohio Rep. 240; Same v. Barr, Ibid. 388; Holt’s Heirs v. Hemphill, Ibid. 236; 1 Ohio Rep. 281; 7 Ohio Rep. 307; 10 Ohio Rep. 69, 482; Smith’s Lessee v. Hunt, 13 Ohio Rep. 260; Haydon v. Westcott, 11 Conn. Rep. 129; Sullivant’s Lessee v. Commissioners of Franklin Co., 3 Ohio Rep. 89; Lingan v. Henderson, 1 Bland’s Ch. Rep. 246; Snowden v. Snowden, Ibid. 588; 2 Ohio Rep. 23; 13 Ohio Rep. 550; 4 Wheat. Rep. 77; 12 Ohio Rep. 207, 253; Newcomb v. Smith, 5 Ohio Rep. 451; 5 Wend. Rep. 148; Bloom v. Burdick, 1 Hill’s Rep. 139; Parker’s Lessee v. Miller, 9 Ohio Rep. 115; 3 Phil. Ev. (notes) 800.

      Daniel Van Matre, for defendant,
    cited the following au thorities:

      Patterson v. Pease, 5 Ohio Rep. 190; 2 Ohio Rep. 264, Perkins v. Dibble, 10 Ohio Rep. 433; McArthur v. Gallagher, 8 Ohio Rep. 516; Ludlow v. Barr, 3 Ohio Rep. 407; Adams on Ejectment 29; 2 Starkie on Ev. 293; Paine v. Skinner, 8 Ohio Rep. 166; Boswell v. Sharp, 15 O. Rep. 447; Paine v. Moreland, Ibid. 435; 11 Ohio Rep. 257; Wilson v. Bull, 10 Ohio Rep. 250; Adams v. Jeffries, 12 Ohio Rep. 271.
   Hitchcock, C. J.

Many errors are assigned in this case upon the record, and the points raised have been elaborately argued.

The original action was ejectment for a lot of ground in Cincinnati, upon which one of the public school houses of the city is erected. Upon the trial of the case, exceptions were taken to the testimony, as it was offered, and also to the charge of the court. These matters will be considered in the order in which they are presented.

The record shows that both parties claim title under Henry B. B. Baber.

In order to sustain his action, the plaintiff proved that Baber was seized of the premises in controversy, as early as the 8th February, 1816, and so continued until the 25th March, 1821. On the latter day he executed a deed for the same, to Newnam, the lessor of the plaintiff, and received the whole purchase money. This deed was not attested by witnesses. Newnam took possession of the property and continued in possession, until 1828, when he went down the river,” and in his absence his wife either left the premises voluntarily, or was put out of possession. The premises were then taken possession of by some colored persons, who remained in possession until 1835, when the defendant entered into possession, erected a school house, and has continued in possession ever since.

It is proper here to inquire whether the plaintiff, by this evidence, made out a prima facie case for a recovery ? And to me it seems not only proper, but necessary, in consequence of the charge of the court, which will be hereafter considered. To my mind it seems clear, that the case made was such as necessarily to put the defendant upon her defense. Newnam had not, it is true, the legal title, because the deed under which he claimed was attested by but one witness.

Still he had a perfect equitable title, and the possession. This possession alone, and especially when connected with the equitable title, would enable him to maintain ejectment against a stranger, who should afterward dispossess him. Whatever might be the state of the case as between him and Baber, no stranger had a right to intrude upon him.

Under the facts so far proved, it would have been erroneous for the court to have directed a judgment of nonsuit.

The plaintiff having rested, the defendant, to prove the issue on her part, first offered in evidence a copy of a deed from Henry B. B. Baber, bearing date 17th April, 1816, conveying the premises in controversy to David Kilgore and Thomas Dugan, in trust, and to secure the payment of a note due from the said Baber to one James Morrison, for the sum of $972.94, payable eight months after the date of the deed of trust.

This deed is not in the common form of a mortgage deed, but is strictly and technically a deed of trust, and the grantees are authorized to sell the land at public auction, after giving notice, if the debt to Morrison is not paid.

The deed was objected to, on the ground that there was no proper proof of acknowledgment. Had the original deed been produced, it would not have been necessary to prove any acknowledgment, to give it validity as between the parties, but it was necessary that a deed should be acknowledged, in order that it might be recorded. And the instrument here introduced, or offered as evidence, purported to be a copy from the records of Hamilton county.

The deed purports to have been executed in the State of Kentucky. By the statute of this state in force at the time of the execution of this deed, it was provided, in substance, that deeds executed and proven, or acknowledged in other states, in accordance with the laws of those states, should be available to convey lands in this state, and might be admitted to record in the same manner as if such deeds had been executed and acknowledged in conformity with the laws of this state.

By the law of Kentucky, in force at the time this deed was executed, it is provided that “if any person making .a deed of conveyance shall acknowledge the same in any county court in this commonwealth, or if it shall therein be proven by two credible witnesses, or if he shall acknowledge it in the office of any such court, before the clerk thereof, or if it shall be proved in such office, before the clerk, by two credible witnesses, it shall be lawful for the clerk to certify the same on such deed; and being duly certified, etc., shall authorize the same to be recorded,” etc.

The deed now under consideration was attested by William Sutherland, Michael Ryan and H. Payne. Upon the deed is the following certificate:

“ State of Kentucky, Mason county, ss,
“ I, Marshal Key, clerk of the county court of said county, do certify that this deed of trust from H. B. B. Baber, to David Kilgore and Thomas Dugan, was this day proved by the oaths of William Sutherland and H. Payne, witnessess thereto, before me according to law, and the same is duly recorded in my office, which is certified to the recorder of Hamilton county, in the State of Ohio. In testimony whereof I have hereunto set my hand and the seal of said county, this seventh day of September, 1816.
“[Seal of county.] MARSHAL KEY.” '

It is objected by the counsel, that this certificate is informal and insufficient, but we cannot see wherein it is not in substance, in compliance with the law before recited. It might have been more specific, but as it is, it seems to the court that it furnishes sufficient evidence that the deed was proved before the clerk of the Mason county court, by two of the subscribing witnesses thereto, who must, in making such proof, have sworn to its execution by the grantor.

It is objected, however, that there is no evidence of the official character of Marshal Key, and seems to be supposed that his certificate should be verified, as in cases of judicial proceedings, under the law of the United States. This is not necessary, nor is it a case within the provisions of the United States law. The certificate is under the seal of the proper court, and by the seal is sufficiently authenticated.

In the opinion of this court, the superior court did not err in overruling the objections of the plaintiff to the reception of this deed in evidence.

Under this deed of trust the land might have been sold, as it seems to the court, according to the terms of the deed, without the intervention of a judicial tribunal. The grantees, however, elected to consider it as a mortgage, and the defendant, in further making defense, offered in evidence the copy of a record from the court of common pleas of Hamilton, to show that the equity of redemption in said trust deed, had been foreclosed. In connection with this copy of a record, sundry entries in the docket, blotter and minute book of said court, made during the pendency of the bill for foreclosure, were offered in evidence. All these items of evidence were objected to by the plaintiff, but his objections were overruled, and the same were received by the court. This is assigned for error.

An objection is made by one of the counsel for the plaintiff, because, as is said, the deed was not a mortgage deed, but an absolute deed, conveying the whole title to Kilgore and Dugan. If this were so, there would be an end of the plaintiff’s case. Upon this hypothesis the title passed out of Baber in 1816, and he had nothing in the land at the time he made the deed to Newnam in 1821. Let this be as it may, however, I suppose there can be no doubt but that Dugan, Kilgore and Morrison might go into a court of chancery to foreclose the equity of redemption, and to procure a sale of the land.

This record shows that on 21st of July, 1817, a bill was filed in the court of common pleas of Hamilton county, by Morrison, Kilgore and Dugan upon this deed as a mortgage. The bill is very specific in all its charges, and prays that unless payment is made within a short time to be fixed by the court, the land may be sold, etc. In the bill Baber is spoken of as having been a resident of Cincinnati at the date of the deed, and he alone is made defendant.

The record further shows that a subpoena was issued and returned at the July term, 1817, by the sheriff of Hamilton county, indorsed not found.

It further shows that the cause was continued from term to term until the May term of the court, 1822, when a decree was entered. In this decree the court ascertain the amount due, and direct that unless the same shall be paid within thirty days the land shall be sold as upon judgments and executions at law. It is asserted in the decree that due proof of publication in the case had been made; and the cause was again continued for the sale of the premises. An order of sale was issued, and the land was appraised and a return of the appraisement made to the court. At the December, term of the court, 1823, a further decree is made that the land be sold pursuant to this appraisement.

Various objections are made to this record, and perhaps it is not as formal as it might be. But we are not now to act upon this record, as if the same was before us on bill of review. The attempt now is to impeach it collaterally, and it certainly must be unnecessary to go into an argument or to cite authorities to prove that a judgment or decree cannot be collaterally impeached, no matter how erroneous, provided the court réndering the judgment or decree had jurisdiction. This principle is admitted by the counsel for the plaintiff, but it is strongly urged that the court had not jurisdiction of the case.

That the court had jurisdiction of the subject-matter before them there can be no doubt. The land mortgaged was in Hamilton county. The proceedings then to foreclose the mortgage must be in that county, and the court of common pleas of that county had jurisdiction of the subject-matter. But it is said the court had not jurisdiction over the person.- The -record shows that a subpoena issued in the case, had been returned, indorsed “ not found,” and the decree shows that publication of the pendency of the suit had been proved. This mode of giving notice to a non-resident defendant in chancery was provided expressly by the act regulating proceedings in chancery, of 19th February, 1810, the act in force at the time these proceedings were had. Chase’s St. 685. This particular provision of the act, however, only applied to cases where a part only of the defendants were out of the state. By the amendatory act of Dec. 24,1812, (Chase’s St. 786,) it is’provided “ that where all of the defendants are absent or reside out of the state, it shall be competent for the courts- of this state, having proper jurisdiction of the case according to the law and usages of courts of chancery, to direct any mode of giving notice to such absent defendant or defendants, as may be consistent. with the usages and practices of courts of chancery.”

Under this discretionary power, the court might with propriety adopt the same mode of giving notice where all of the defendants are out of the state, as the general assembly had prescribed where only a part of them were out of the state. This does not seem to be questioned, nor is it questioned that publication was made, but it is claimed that this mode of giving notice should be preceded by an order of court. In a' record, where the fact is found by the court that publication was made, I should not hesitate, where the attempt is made to impeach the judgment or decree collaterally, to presume that the necessary order had been made. But no presumption is necessary in the case under consideration. It appears from the bill of exceptions that at the March term, 1817, an order for publication was made. It is objected, however, that-in this order there was a mistake in the name of the defendant. But if there be any force in this objection, it is removed by a subsequent order for publication, made at the November term, 1817, where there is no mistake as to the name. This order was not carried into the complete record of the judgment, and therefore it is claimed that it cannot now be adduced in evidence. The fact that the clerk did not perform his entire duty in making up the record cannot deprive parties of their rights. Even although he should entirely fail to make up a record, such neglect would not affect those interested in the matter decided, if sufficient could be found upon the files and books of the court to show what had been done. What we call the complete record in a case, is nothing but a history of what has been done in the case, copied by the clerk into a book called the book of records. It is not the writing of those things in this book which gives them validity. It is the previous action of the court upon the subject-matter. The record is but evidence of this action, and if in copying, the clerk makes a mistake, that mistake will be corrected by entries made from time to time of the action of the court, and which entries made in other books of the court, lay the foundation for the complete records.

But it is claimed that this was not a proper case for notice by publication, because it is not charged in the bill that Baber was a non-resident. This was not necessary. A subpoena was issued and returned “ not found.” This was prima fade evidence at least that he was not in the county. Upon satisfactory evidence to the court that he was not a resident of the state, the court would order publication. Having ordered publication, we must presume the fact of non-residency was previously ascertained.

Council attempt to assimilate this case to one before a court of limited jurisdiction. In such courts it is necessary that the pleadings should show that the case is within the jurisdiction of the court. It is upon this principle the cases referred to in the United States Reports are decided. These courts are strictly courts of limited jurisdiction. The courts of common pleas of this state are courts of general jurisdiction.

It seems to this court that there was no error in receiving in evidence the copy of the record, and the accompanying entries in the docket, blotter and minute book of the court of common pleas.

The defendant next offered in evidence copies of the order of sale and other documents, and evidence to prove a sale pursuant to the decree, which were objected to, but received by the court, and we think properly.

The land was sold at public outcry, to Nicholas Longworth, and the sale approved by the court, and a deed ordered. A deed was made accordingly, which was offered in evidence, but objected to ; but the court rightly overruled the objection, and permitted the evidence to go to the jury.

The defendant then introduced evidence to prove, that the title, thus made to Longworth, had, through intermediate conveyances, 'become vested in the defendant.

To rebut the evidence on the part of the defendant, the plaintiff offered to prove, that the defendant was notified of the claim of the plaintiff to the lot in controversy, before purchasing the lot. This was objected to, and the objection sustained, which is complained of as error. Such notice would be of consequence in a proper case, where the proceeding was in chancery ; but we do not perceive how it could affect the title, in a case at law, like the present.

The plaintiff next offered to prove, that Baber was not served with process, and that he was not notified of the pendency of the suit in chancery. This was not allowed, and herein it is claimed that the court erred. The record itself shows that he was not served with ordinary process. Whether the court had jurisdiction, depended upon the question whether publication was made, pursuant to the order of court. That such publication was made, was proved to the court before decree rendered. The fact proved, in a trial in which it -was attempted to impeach the decree collaterally, that Baber did not receive actual notice, would not divest the court of jurisdiction. The proposition was, not to prove that there was no publication, but that Baber did not receive notice. The decision of the superior court, upon this point, can be sustained, without resorting to the general rule, that a record cannot be contradicted by extrinsic evidence.

The evidence being closed, the plaintiff requested the court to charge the jury specifically, upon eleven propositions set forth in the bill of exceptions. I do not deem it necessary to note those propositions particularly. They were most of them hypothetical, and it seems to me, the evidence and circumstances of the case would not require or justify the court in charging the jury as requested.

“ The court charged the jury that the foreclosure proceedings were not a suit ” pendente lite, against said Baber, until after “ he had sold the premises to Newnam, and Newnam had entered thereon.” The plaintiff requested the court to charge the jury, that said proceedings constituted no bar to the plaintiff’s right to recover, which was refused, and we think properly.

The court further charged the jury that the plaintiff had not shown or proved any title in or to the said premises, and that he could not recover in this action. That the defendant had shown a good legal title to said premises, and was entitled to a verdict in her favor in this action,” which charge was excepted and is assigned for error.

It seems to this court, that in giving a charge in these words, the superior court exceeded those limits by which it should be controlled. It assumed to itself the prerogative of deciding as well the facts as the law of the case. It might be difficult for that court — it is difficult for this court — taking the whole case together, to see upon what recognized principle the plaintiff can ever expect to recover. But it is a constitutional right, secured to parties litigant, to have the controversy decided by a jury, where that controversy is in a court of law. A jury, in ordinary cases, must receive the law as announced by the court, but of the facts they are the exclusive judges. In the case under consideration, it was proper for the court to construe all the written matters in evidence, to declare their legal effect, or the legal effect of each one of them. But there was other evidence in the case, which is not detailed in the bill of exceptions. Probably that evidence would not change the result.

When the plaintiff closed the evidence on his part, he had, as before stated, made out a prima fade case ; a case upon which he must have recovered, but for the evidence introduced by the defendant. Whether this prima fade case was destroyed, by the evidence introduced on the other side, it was for the jury to say, acting under the instruction of the court. When I say, acting under the instruction of the court, I do not mean that the court are to instruct the jury to find for one party or the other, in general terms, but the instruction must be confined to the legal effect of the evidence.

The court might have said to the jury, had there been no controversy as to facts, that the law upon the facts proved or agreed, was with the defendant. But in the general instructions given, it seems to us that the court improperly interfered with the province of the jury.

But it is said that, although the court may have erred in the particular complained of, still taking the whole case together, it is apparent that right and justice have been done — that another trial must result in a similar verdict; therefore, it is improper or useless to reverse the judgment for what may be denominated a technical error.

We do not consider this a mere technical error. But we look upon it as an invasion, by the court, of the province of the jury, which should always be guarded against; and although, upon the whole case, as exhibited to us, we are of opinion that the plaintiff has no claim, either in law or equity, to the premises in controversy, we feel ourselves bound to reverse the judgment. Under a proper charge, the verdict might have been different. The verdict would still have been under the control of the court, upon a motion for a new trial; and if against the law and evidence, might have been set aside, and a new trial granted. But in every case, it is right to presume that, where the same is fairly submitted to a jury, and the law properly stated, the verdict will be in accordance with the law and evidence.

The judgment is reversed, and the cause remanded for fur ther proceedings.

Avery, J.,

dissenting. Upon the merits of the controversy between these parties, I fully concur in opinion with my brethren. We were unanimous in the conclusion, after an investigation of the facts as shown by the testimony, and of the legal principles involved in the case, that the plaintiff in ejectment had no claim to a recovery; .and that the verdict for the defendant, as returned by the jury, was right. The deeds and various title papers, as well as the whole of the facts on both sides, embodied in the bill of exceptions, were before us; and they presented this as the only question in the case: in which of the parties to the suit is the legal right to the premises vested? or, more properly,.is it vested in the plaintiff? The bill of exceptions, after giving a minute statement of all the matters relating to the title, contained at the close of the detail of facts, the following expression, to wit: “No further evidence was offered or given by either of said parties, but both plaintiff and defendant rested the ease.”

Satisfied as we were with the finding of the jury, the judgment upon the verdict must have been affirmed, unless some error of the court had been disclosed, of sufficient consequence to call for a reversal. The only error supposed to be of that character, was found in a part of the charge to the jury, which is in these words: “ That the plaintiff had not shown or proved any title in or to said premises, and that he could not recover in this action — that the defendant had shown a good legal title to said premises, and was entitled to a verdict.” This was deemed, by a majority of the court, to be a fatal error, justify ing and requiring a reversal of the judgment. To the correctness of that opinion I could not assent. The instruction given in the case is called an invasion, by the court, of the province of the jury. I do not think it merits so grave a charge. Had not the whole of the facts, however, as they appeared upon the trial, been carried into the record, and been thus brought to our notice, I would have united in reversing the judgment. But, as the bill of exceptions embraces all the evidence, and shows conclusively that the plaintiff had not the title to the premises in dispute, he could not sustain any injury by the error in the form of instruction adopted by the court. And if the error in the charge, instead of being objected to at the time, had been left to be discussed in reference to its effect upon the motion for a new trial, the judgment of this court, I apprehend, would be different from that which is now given. At all events, the same verdict would doubtless have been produced, and in a manner not subject to objection, by a slight change in the phraseology of the charge. The actual case might have been stated hypothetically, and the jury instructed, if the facts supposed were found by them to be true, to return a verdict for the defendant.

I think, therefore, upon principle, and according to the spirit of our own decisions, that the error in the charge should not work a reversal of the judgment.


source: Caselaw Access Project

author: Spalding, J. Hitchcock, C. J.,

license: Public Domain

text:
    Justus Gale’s Administratrix v. Van Arman and Hopkins.
    Where a stranger to a note payable in clocks, at the time of the execution wrote upon the back and signed these words : “I guarantee the fulGllment of the within contractHeld, that the instrument, with its indorsement, was a joint contract, and that the parties might be sued jointly upon it.
    This is a writ of error to the Supreme Court for the county of Summit.
    The' original action was assumpsit, brought before a justice of the peace on the following contract:
    “ Akron, 0., Feb. 14,1846.
    “ Due J. Gale, or bearer, three cases of brass clocks, to be delivered on the opening of navigation, for value received: each case to contain six clocks, 0. G.- — be in good order when ship-, ped — throughout furnished, etc.
    “D. N. YAN ARMAN.”
    On the back of the instrument is the following indorsement r
    “ I guarantee the fulfillment of the within contract.
    “ Akron, Eeb. 14, 1846. A. HOPKINS.”
    Judgment was rendered by the justice for the plaintiff. The case was taken to the court of common pleas, by a writ of certiorari, and the judgment of the justice affirmed.
    On error in the supreme court for Summit county, the judgment of the common pleas was reversed, and to reverse that, judgment this writ was prosecuted.

      Bieree $ Ladd, for plaintiff in error.

      Bryan $ Bliss, for defendants.
   Spalding, J.

The only question presented for our consid eration is, whether the suit was properly brought against Yan-Arman and Hopkins as joint contractors.

A majority of the court regard the question as settled by repeated adjudications in our own state.

In Bright v. Carpenter & Schuer, 9 Ohio Rep. 139, it was-held that “ when a stranger to a promissory note indorses it in blank at the time of making it, the payee of the note may sue him with the maker as a joint maker of the note ; but if a person not a party give his name to a note already existing, his-engagement is collateral only, and he is to be held as guarantor.”

In Stage v. Olds et al., 12 Ohio 158, which was an action of covenant upon a writing obligatory, signed by E. B. Olds as: principal, and the other defendants, under a clause which reads —“ We hereby bind ourselves as security for said Olds, for the full and faithful performance of the above agreement” — both dates the same — the court held, that “ when several persons execute an instrument in parol or under seal, upon the same consideration, at the same time and for the same purpose, and taking effect from a single delivery, they are, in legal effect, joint contractors or obligors.”

In Leonard v. Sweetzer, 16 Ohio 1, it was ruled that “ a guaranty of the fulfillment of a contract, written below the contract and executed at the same time, subjects the guarantor as an original contractor, and a suit may be entertained against both parties jointly, or against either severally.”

In the case last cited, the action was brought upon the following instrument:

“ For value received, I, Welcome Martin, agree $nd bind myself to pay the half of a certain judgment in Knox county, in favor of the Clinton Bank of Columbus, against Joseph Leonard, Wm. Leonard, George Leonard and Robert T. Hickman, of about eight hundred and sixty dollars, more or less, and save said Joseph harmless from all costs.

“ Dec! 18,1837. (Signed) WELCOME MARTIN.”
“ I guarantee the fulfillment of the above contract.
“ Bee. 13,1837. (Signed) CHARLES SWEETZER.”

It will be seen that the guaranty in the case under consideration differs from the one in Leonard v. Sweetzer, in the words “within” and “above,” and this difference arises from the location of the guaranty, in the one case upon the back, and in' the other upon the face of the main instrument, and beneath the signature of Martin.

It is true, that in the one case, the guaranty was attached to an agreement to satisfy the one half of a certain judgment, and to save one of the judgment debtors harmless from costs; and in the other, to a contract for the delivery, to payee or bearer, of a certain number of brass clocks, to be delivered on the opening of navigation.

In both instances, however, the instruments were executed by principals and sureties “ upon the same consideration, at the same time, for the same purpose, and took effect from a single delivery.”

It seems to a majority of our number, that there is no difference in principle between the two cases.

The judgment of the court on the circuit is, therefore, reversed.

Hitchcock, C. J.,

dissenting. This was an action commenced against Van Arman and Hopkins jointly, upon the following instrument in writing:

“ Akron, Ohio, February 14th, 1846.
“ Due J. Gale, or bearer, three cases of brass clocks, to be delivered on the opening of navigation, for value received : each case to contain six clocks, O. G. — be in good order when shipped — throughout furnished, etc.
“ D. N. VAN ARMAN.”

On the back of the instrument is the following indorsement:

“ I guarantee the fulfillment of the within contract.
“Feb. 14,1846. A. HOPKINS.”

The original suit was commenced before a justice of the peace, and judgment was rendered against the defendants. A similar judgment was rendered in the court of common pleas. This latter judgment was reversed in the supreme court of Summit county, and the present writ of error is prosecuted to reverse the judgment of the supreme court. The simple question is, whether Van Arman and Hopkins are original joint contractors, or whether the undertaking of Hopkins is merely collateral.

I have entertained the opinion, that where any person enters into a written contract he is only bound by the terms of his contract, and a court in giving construction to that contract, must look to the contract as it is reduced to writing, in order to ascertain the extent of the liability of an individual who has signed it. A guarantor is not an original contractor; his undertaking is merely collateral. The fact that the guarantee is entered into at the time the original contract is made, can make no difference as to the legal effect. This fact may furnish evidence that there was a sufficient consideration for the under taking, but it in no shape changes the.nature of the undertak ing. It is still collateral.

It will be observed, that the name of Hopkins is not signed in blank upon the back of this instrument, but the contract is by him written at full length, and that contract is a contract of guarantee. It seems to me that the court, in holding that he is a joint contractor, and liable in a joint action, made a contract for the party, instead of giving a construction to the contract which he has himself made.

Let us for a moment test this principle by a hypothetical case. A enters into a contract to erect for B a house or any other building. The contract is reduced to writing. But B, doubting whether A will fulfill the contract, requires security. A procures C to go his security, and at the time the. contract is executed, C indorses upon the contract, I guarantee the fulfillment of the within contract,” and signs his name to the indorsement. In such case does C undertake to build the house ? Upon the doctrine established by the court he does. No one will suppose he ever intended, or that any of the parties ever expected, any such thing. He does not undertake to build the house, but he does undertake that A shall build it. His undertaking is collateral, and if the work is not done, he cannot be sued for the non-performance of the labor, because he has not contracted to perform it. But he may be sued, because A has not performed the labor, for his undertaking was that A should perform it.

So in the case before the court, Hopkins never contracted to deliver the clocks. Yan Arman bound himself to deliver them, and Hopkins undertook that Yan Arman should perform this obligation, not that he would do it himself. If Yan Ar-man failed in making the delivery, Hopkins would be liable on the contract which he himself made, not upon the contract which Yan Arman had made. Such, as it seems to me, is both the law and justice of the case.

A majority of the court consider that the question now presented has been settled in numerous cases in the state, in accordance with the decision now made, and several of these cases are cited. I draw an inference directly the reverse of this from the cases decided. And in the examination which I propose to make, shall refer to other eases, as well as to those cited by the majority of the court.

The first ease I shall refer to, is the case of Green v. Dodge & Cogswell, 2 Ohio Rep. 430. The case was this: Sidney Dodge made his promissory note to Green. Upon the note the defendants, S. Dodge and E. Cogswell, indorsed their names in blank. This indorsement was made without any consideration. Subsequently, the following was written over the indorsement : We, the undersigned, bind ourselves as security for Sidney Dodge, for the payment of the within note, according to the tenor and effect thereof, to Daniel Green the obligee in said note.”

The court considered the indorsers as mere guarantors, and held that they could not be charged unless there was some consideration ft>r the indorsement, and unless due diligence had been used to collect the note of the maker.

Here was a blank indorsement, and yet the indorsers were considered as guarantors merely, not as .original promisors. In the case now before the court, there was no blank indorsement, but the indorser stipulated that he guaranteed the fulfillment of the contract. Notwithstanding this stipulation, however, the court say he is an original contractor.

The next case to which I shall refer, is the case of Bright v. Carpenter & Schuer, (9 Ohio Rep. 133,) and this case is relied upon as sustaining the present decision.

The suit was upon a promissory note made by Carpenter, and indorsed in blank by Sehuer. The defendants were sued as joint makers. Evidence was adduced to prove that the note was indorsed by Sehuer, before it came into the hands of Bright, and was so indorsed because Bright insisted upon security.

The court decided that, where a stranger to a promissory note indorses it in blank at the time it is made, he may be treated as a maker, and might be sued as a joint maker, and that such indorser shall have the privilege of a surety. The court also held that parol proof was admissible to show the intention of the parties, as to the extent of the. indorser’s liability. The language of the court is : “ If a person not a party, give his name to a note already existing, his engagement is collateral only, and he is to be held as guarantor; but if such person sign his name to such paper, at the time of its execution, without prescribing the limits of his responsibility, he authorizes the holder to treat him as a maker, and is as much bound,.as if his name was written under that of the maker.” .

It is impossible for me to perceive upon what principle the above cited case can be held to be an authority in the case now before the court, to sustain the decision made by a majority. In the case cited, Schuer had indorsed the note in blank, and the evidence proved that this was done before the note was delivered, and that the intention was, that Schuer should undertake as surety. In the case now before us, there was no blank indorsement, and Hopkins did not put his name to it “ without prescribing the limits of his responsibility.” He expressly prescribes “ the limits of his responsibility.” His indorsement is, “ I guarantee the fulfillment of the within contract.” He prescribed, as he had a right to do, the extent of his undertaking ; but the court hold, that, though he. undertook as guarantor, he shall be bound as original contractor. And this, too, without any evidence that the indorsement was made at the time of the execution of the contract, except that it bears date on the same day ; as if, where an indorsement is made on the day of the date of a note, the indorser must, of necessity, have written his name on the back, at the same time the maker signed it.

This case of Bright v. Carpenter & Schuer, is the only case cited to sustain the opinion of the majority of the court, where the contract declared upon was evidenced by an indorsement upon the back of a written instrument. Still there are other cases in the Ohio Reports, upon the same point.

The case of Champion Lathrop v. Timothy Griffith, (12 Ohio R. 228,) was an action against Griffith as joint maker of a note with one Bridgman.

On the trial the following note was offered in evidence :

Columbus, March 28,' 1837. Four months after date 1 promise to pay Champion and Lathrop, or order, one hundred dollars, for value received. (Signed) Thos. Brid&man.’'’

On the back of the note was indorsed the name of the defendant T. Griffith,” in blank. It was in proof, that some time before suit brought, Griffith received from Bridgman fifteen dollars, to be applied on the note. And this was' all the evidence in the case.

The court nonsuited the plaintiff, and the case was presented upon a motion to set aside the nonsuit. This motion was overruled, and the court held that, The mere indorsement upon a note, of a stranger’s name in blank, is prima facie evidence of guaranty. But if made at the time of execution by •the other party, or in pursuance of an intention to become responsible, it is an original undertaking; and such person will be held as maker of the note. Such intention may be proved by parol, and the same rule applies whether the instrument was negotiable or not.”

The case of Robinson v. Abel et al., (17 Ohio R. 36,) is a case of precisely the same character with those already cited, and the principle adopted by the court is the same. In each case the name of the indorser is in blank. And there can be no earthly doubt, from what is said in the case in 9 Ohio R. that had the indorser in the indorsement prescribed “ the limits of his responsibility,” the court would have held him to the contract which he had actually made, and would not have imposed upon him a contract which he had never entered into.

The principle settled in these cases, is sustained by various cases to be found in the Massachusetts Reports, which are refer'red to in the case of Bright v. Carpenter & Schuer. But so far as I am informed, the same rule does not obtain in any of the other states. If it does, no decisions, either now or at any former period, in which it has been so determined, have been referred to. And it should be remembered, that the cases in Massachusetts, as well as in Ohio, are all eases in which the indorsement is in blank. Neither in Massachusetts, nor in Ohio, nor in any other state or country, has it before been decided, that where the indorser, at the time of indorsing, prescribes expressly the limits and extent of his liability, the court will, by construction, change his contract, so as to make .him liable beyond his express undertaking.

In addition to the case of Bright v. Carpenter & Schuer, cited from 9 Ohio Reports, two other cases are cited to sustain the decision now made. In neither of those cases, howrever, was there any question as to the effect of an indorsement of a note whether in blank or otherwise, but in both cases the names of the persons charged as original contractors, appear upon the face of the instrument declared upon. I know of no case in which it has been holden by this court, under such circumstances, that the individual thus subscribing his name, has not been held as an original contractor.

The first case referred to, is the case of Stage v. Olds et al., 12 Ohio R. 158. It was an action of covenant, against Edson B.' Olds, Thomas Huston, Joseph Olds and Andrew Huston, upon a contract, as follows:

“ Circleville, Oct. 6th, 1836. Por value received, I hereby agree and bind myself to pay, within five years from the first ■day of April next, to the Ohio Life Insurance and Trust Company, the loan of $1,500 made by said company to Richard Stage, and, if the payment thereof should be sooner required by said company, then to pay the same to said company, and to pay all interest which shall accrue thereon, from and after the first day of this month, said Stage paying interest up to that time, and I hereby agree to save said Stage harmless^ from all further claim on him by said company, on account of said loan. Witness my hand and seal the day above written.
“ EDSON B. OLDS, [l. s.]”
“ We hereby bind ourselves as security for said Olds, for the full and faithful performance of said agreement. Witness our hands and seals the 6th day of October, 1836.
“THOMAS HUSTON, [l. s.]
“JOSEPH OLDS, [l. s.]
“ANDREW HUSTON, [t. s.]”

The defendants were declared against as joint covenantors upon this instrument of writing.

The defendant Edson B. Olds, craved oyer of the instrument, and demurred to the declaration.

The court overruled the demurrer, and held that the defendants were joint obligors, the first as principal and the three last as sureties. The decision in this case is fully sustained by the case of Hunt's Administrator v. Adams, 5 Mass. R. 358. There is this difference only, in the two cases; the case in Massachusetts was upon a promissory note; this case upon a sealed instrument.

If we but for a moment look at the contract executed by Olds and others, I cannot perceive how they could have been treated in any other manner than as joint contractors. They all signed the same instrument, and at the same time. The only effect of the writing between the name of Edson B. Olds and the others, was to show that they were securities. The legal, effect is precisely the same as if the three last signers had each one of them attached the word “ security ” to his name. Or it is the same as if, in the body of the instrument, it had been specified that Edson B. Olds was principal and the others securities. The declaration was, as decided by the court, according to the legal effect of the instrument.

But the case now under consideration is entirely different. Hopkins does not sign the instrument as an original contraetoi*. He merely indorses it, and in that indorsement is careful far limit the extent of his undertaking or liability. My objection to the ruling of the majority of the court is, that they do not enforce the contract which Hopkins himself made, but make for him a different contract. It is said it makes no difference where the name of a person appears upon an instrument, whether upon its face or upon its back. It does make a difference, except in a single case, where the name is indorsed in blank. And even then, such indorser is to be held as a guarantor, unless there shall be proof that he put his name to the instrument at the time it was executed by the maker, or in pursuance of an anterior agreement to become security.

The next case cited by the majority of the court, is the case of Leonard v. Sweetzer, 16 Ohio R. 1. This was an action of assumpsit against the defendant upon ah instrument of writing, as follows: “ Eor value received, I, Welcome Martin, agree- and bind myself to pay the half of a certain judgment in Knox county, in favor of the Clinton Bank of Columbus, against Joseph Leonard, William Leonard, George Leonard and Robert T. Hickman, of about eight hundred and sixty dollars, more or less, and save said Joseph harmless from all costs.

“Dec. 13, 1837. (Signed) WELCOME MARTIN.”
“ I guarantee the fulfillment of the above contract.
“ Dec. 13,1837. (Signed) CHARLES SWEETZER.”

Upon this instrument, the court held Sweetzer to be an original contractor, and the reasons are assigned. The court say: “ We regard Sweetzer as an original contractor. The paper was executed by himself and Martin, both at the same time-, Martin signing first, and Sweetzer connecting with his signature just enough to show he contracted as a surety. Indeed, he is liable in this case, precisely as he would have been, if he had barely written the word {surety ’ after his name; and an action could be sustained, upon the paper, against Martin and Sweetzer jointly, as well as against either of them separately. In this view the only question involved was decided, by this-court, in the case of Stage v. Olds et al."

This extract shows that the court, in coming to the conclusion arrived at, were influenced by the manner in which the instrument was executed, the names of both the makers appearing upon its face, and the signature of the one following the other, the latter prefixing to his name “just enough to show that he contracted as surety.”

How this decision can, with propriety, be held to be an appropriate authority, in the case now under consideration, it is-impossible for me to conceive. This case went as far, certainly, as the authorities would justify. But the one now decided destroys all disctinction between indorsements, whether made in blank or otherwise. It decides, in fact, that a stranger to a note or other instrument, shall not be allowed, by his indorsement, to prescribe the limits and extent of his undertaking. No court, so far as I can learn, has gone this length; and I am not willing to do it now, believing that it will tend to unsettle the laws and work manifest injustice.


author: Avery, J.

text:
    Edwin Putnam’s Adm’r v. The Heirs of Edwin Putnam.
    The law of Ohio regulating descents and the distribution of personal estates, provides for advancements as to real, but not as to personal estates.
    This is a bill in chancery, reserved in Muskingum county.
    This bill was filed for the purpose of obtaining the direction of the court as to the distribution of the personal assets of the intestate amongst his heirs, and suggesting, inter alia, that William R. Putnam, a son of the intestate, died before the intestate, leaving two infant daughters his heirs. He was in solvent, and no administrator was ever appointed. Edwifi Putnam died intestate. The bill sets forth further that E. Putnam, the intestate, in the lifetime of himself and Wm. R., his son, made large advancements to his son, which constituted a debt which was charged in the father’s books against the son, which was not to be paid by Wm. R., in his father’s lifetime, but was to be accounted for and settled with the administrator, and be deducted and retained out of the distributive share of the-estate to which said Wm. R. might become entitled.
    The bill claims that Wm. R.’s children are liable to account for this indebtedness, and prays that they may be required to bring it into hotchpot, or pay the same to complainant, before they receive shares of said estate. He prays the direction of the court in the discharge of his trust.
    The answer of the minor daughters of Wm. R. denies any indebtedness by their father; but, if there ever was any claim, it is long since barred by the statute of limitations, being a common debt; and if not barred, they deny their liability for it. They deny that it is in law an advancement, and say, also, that, by the law of Ohio, there can be no advancement, except of real estate. They claim, also, to inherit directly from their grandfather, and not from their father.
    There are similar claims made in the bill, against some of the other children who are living.

      O. 0. Corners, for complainant.
    The first provision of the legislature, in relation to advancements, is found in the “ act regulating the course of descents and distribution of personal estate,” passed February 22,1805; (1 Chase 515.) The first ten sections of this act prescribe the course of descents of real estate. The 11th section provides, “ that where any of the children of the intestate, or their issue, shall have received from the intestate, in his lifetime, any real estate, by way of advancement, and shall choose to come inte partition with the other parceners, such advancement shall be brought into hotchpot, with the estate descended.”
    The 15th section of the same act provides, “ that if a,ny person shall die intestate, leaving any goods, chattels, or other personal estate, such goods, chattels, or other-personal estate, shall be distributed agreeable to the foregoing course of descents, saving, however, such rights which any widow may have to any portion of such personal estate.”
    The law of descent of real, and the law of distribution of personal estates, are, by this statute, made identical.
    The subsequent acts regulating descents and distributions, passed December 30, 1815, (2 Chase 906,) and February, 1824, (2 Chase 1313,) are, in their provisions, in all respects, similar to the law of 1805, except that, in the first section of each of these acts, the course of descents is slightly modified. So far as advancement is concerned, however, these three statutes are precisely alike.
    The “ act regulating. descents and the distribution of personal estates,” passed February 24,1831, (which repealed the act of 1815,) was in force when the intestate died. That law contains the identical provisions embodied in the two former laws, in relation to advancements and to the distribution of personal estates. The only difference is in the numbering of the sections. As to all the language used in the act of 1831, in-relation to advancements and to the distribution of personal estates, the terms employed in that act are the exact words contained in the prior laws of 1805 and 1815.
    This section touching advancements, does not “ prescribe a new “ course of descents.” It- designates no different persons as “ heirs entitled to the estate.” It is only subsidiary to the course of descents prescribed in the preceding sections, being designed to secure unimpaired that equality of division so evidently contemplated by all of the prior provisions of the law. It is simply incidental to and in aid of such prior provisions. It is designed to guard against the injustice of one of the heirs, in the line of “prescribed ” descent, obtaining more than his equal participation in the whole estate, to the prejudice of those standing in equal right with himself; and this, too, contrary to the intention of the common ancestor.
    When, therefore, the legislature declared, in the 10th section, that “ personal estate should be distributed agreeably to the foregoing' course prescribed for the descent of estates,” it ■designed to subject the distribution of personal and the descent of real estate to one and the same rule — to make “ distribution” and “ descent ” identical.
    The act of 1831, in distributing personal estate, is designed to accomplish what had been long before established, by. the legislature, as the settled policy of this state — to conform the ■course of distribution to the course of descent. It is a just and equitable policy. It should not be disturbed by courts, unless the intention of the legislature to change it be clearly ■expressed. A slight transposition in the order of the sections is .surely not sufficient, especially when the present law contains the precise language of all former laws. It is upon such slight transposition, (and that alone,') that the respondents rely as superseding — what, it is admitted, obtained under the former law — the application of advancement, a hotchpot to personal as well as to real estate. It will never do to hold that even slight verbal deviations in our statutes, (as from time to time revised,) from former laws, shall change the construction of the law.
    The remarks of Mr. Justice Cowen, in Davis v. Shields, (24 Wendell 329 and 330,) are, in this connection, quite apposite. He says: “ I will not now do more than advert to the general evil of considering every literal or verbal deviation, in our revised statutes, from the former acts which they adopt, as a change in substance. He had occasion to consider it, in some measure, at the last term, especially in respect to the statute of frauds; and daily observation confirms the views then expressed, with regard to all such former statutes as entered into and governed the general business of the community. They made, .and will continue to make, a part of the commercial and social habitude; and even where an alteration was obviously intended, or was plainly expedient or necessary, a century must perhaps go by ere the change' will be actually effected. Some fifty or more years have passed since a very necessary alteration was made, by statute, in the denomination of our currency; and, although the necessity was universally conceded, perhaps fifty more will not practically complete the change. To make the numerous verbal alterations in our revised statutes, in all or even a majority of instances, an actual departure from the former law, would be to open Pandora’s box. The evils would be intolerable, and the whole community would at once demand their repeal.” See also the remarks of the same Judge, in Douglass v. Hoaland, (24 Wendell 45, 46, 47 and 48.)
    Much less should a mere change in the collocation of the sections, made during a general revision, the entire language remaining untouched, be suffered, of itself, to change the construction.
    This doctrine of advancement is a most just and equitable one. It equalizes the distribution,‘among his children, of the estate of a parent, who happens to die intestate, in exact accordance with his declared intent. It combines two ingredients, which always find peculiar favor in a court of chancery: equality, and conformity to the expressed intentions of all parties.
    It is admitted that, in this state, advancement applies to real estate. Why, by mere implication, withdraw it from personalty ? It is just as equitable (and no more so) in the one case as in the other. To do so would mar the symmetry of the law, as it has always prevailed in Ohio, touching the disposition of the estates of intestates, which prescribes one and the same rule for all estates — real as well as personal — and that a rule which seeks, in all cases, equality of distribution.
    But, the “ act relating to wills,” passed March 23, 1840, (Swan’s Coll. Stat. 998,) in .operation at the time of the intestate’s death, and still in force, shows beyond question, that the legislature regard the principle of advancement, both as to real and personal property, as in full operation in Ohio. The 43d section of this act provides for the cases of an after-born child and a child absent and reputed dead, at the time of the execu tion of a will — declaring that such children “ shall take the same share of the estate, loth real and personal, that they would have been entitled to, if the testator had died intestate.” The 44th section provides, “ that in settling the extent of the claim of any child, as provided for in the preceding section, any portion of the estate of the testator, received by a party interested, ly way of advancement, shall be deemed a portion of the estate, and charged to the party who has received the same.”
    The studied object- of these provisions is to place the after-born and absent children upon the same footing as if-no will had been made. They are to take as in case of intestacy; and shall, therefore, as in case of ordinary intestacy, be charged with u any portion of the estate ” (the entire estate — the same estate mentioned in the preceding section, and that is the “ estate loth real and personal“ received by way of advancement.”
    These provisions assume the advancement as an established incident of intestacy, not thereby created for the first time, but as already existing under prior legislation.
    If anything were needed to remove the doubt which, in the opinion of the respondent’s counsel, the change in the order of the sections, in the act of 1831, seems to occasion, that doubt is fully dissipated by the full and unequivocal recognition of advancement, both as to personal and real estate, contained in this act relating to wills.

      Roswell Marsh, for the minor heirs of Vm. R. Putnam.
    At common law nothing was held an advancement but a particular estate in hands. 2 Black. Com. 190 ; 2 Kent Com. 420.
    All extensions of the principle are by statute. In England it was extended to personalty by 22 & 23 Charles 2d. See 2 Black. Com. 516 ; 4 Kent 417. In Ohio it is expressly restricted to real estate- advanced to a child or children of the intestate, or their issue. Swan’s Statutes, pages 287 and 288,. sections 2 to 12 inclusive. This restricts it to real estate, and to the lineal heir, and as I claim, to the person to whom the estate descends. The child of the intestate to whom an estate descended from his father, could not be required to account for the value of an estate in lands which the father had conveyed to one of his children, a grandchild of the intestate, for the consideration of natural love and affection. The converse of the-proposition I hold to be equally true.
    In most of the states, or rather in most of those whose statutes I have, had the opportunity to examine, the principle is extended to personal property by the express language of the statute. It is so in Pennsylvania. See Park & Johnson’s Digest Penn. St. 287, sec. 16; 2 Wharton’s Digest 177; 4 Wharton’s-Reports 130 ; 6 Watts 254.
    In New York the same principle is adopted. See Rev. St. vol. 1, page 754, sec. 23, 24, 25, and 26. Sec. 26 reads thus:: “ The maintaining, or educating, or giving of money to a child, without a view to a portion or settlement in life, shall not be-deemed an advancement.”
    It will be seen that, under this statute, not a single item of the account set up in this case could be claimed to be an advancement.
    The commencement of the 23d section is in the following, language: “If any child of an intestate shall have been advanced by him by settlement or portion of real or personal estate, or both of them, the value thereof shall be reckoned,” etc.
    And the concluding part of the section reads, “ then such child and his descendants shall be excluded from any share in the real and personal estate of the intestate.”
    Eor the construction of this statute see 24 Wendell’s Reports 329. The statutes of New York are equally definite on. this subject. See Laws of New York, page 178. In Massachusetts the statute of 1783, chapter 36, section 7, prescribes a similar rule, but much difficulty being experienced in determining whether any particular transaction was or was not to be held an advancement, the legislature, by the act of 1805, chapter 90, section 3, prescribed that nothing should be held an advancement which was not expressly stated to be such in the account in which the charge was made. Under this statute it has been held that an advancement could not be proved by oral testimony. 2 Pick. 337; 22 Pick. 508. That interest is not chargeable on an advancement; 17 Mass. 355; 3 Pick. 450. That a mere debt cannot be charged as an advancement; 17 Mass. 81, 356 ; 22 Pick. 508. That charges in the usual form of various sums of money in the ancestor’s - common book of accounts, although placed in a different part of the book from the other charges, and near a charge of an advancement to another child, did not constitute an advancement; 4 Pick. 21.
    I refer to the above authorities and statutes to show that it is the common understanding, and acted upon by the legislatures well as the courts, that advancements of personal property form no part of the common law, but are created and regulated wholly by the statutes. The statute of Ohio restricts advancements expressly to real estate, and coming as it does after those parts of the statute by which the rules of descent and distribution of both the real and personal estate are prescribed, taken in connection with the statutes of other states and of England, and the rules of common law on the same subject, must be holden to be entirely conclusive that the legislature of Ohio intended by express terms to restrict the principle of advancement to real estate.
    The contrary doctrine has been found to be prolific of embarrassments and litigations in the settlement of estates, and the legislature of Ohio wisely determined to shun the source of so much family difficulty and contention..
    So far as I have been able to ascertain, this is the first suit in Ohio in which the attempt has been made to set up an advancement of personal property in the settlement and distribution of an estate.

      Facts similar in character to those existing in this case must be of frequent occurrence, and that no attempt like the present has heretofore been made, is at least very strong evidence of the opinions of the profession throughout the state, that the principle contended for in this case by the complainant could not be sustained.
    An advancement is defined to be a part of the- estate advanced by an ancestor to his heir in anticipation of what he would inherit. Bouvier’s Law Die. 61. It follows from the definition that it cannot be a gift, for a gift is without consideration and can never be called into account in any way. It cannot be a debt, for a debt is demandable and payable, and this has been so treated by the intestate by receiving payment of a part, and alternatively by complainant, by claiming that respondents be decreed to pay the amount to him. An advancement does not carry interest, because it is not a debt due, and no suit will lie to recover it. The party who has been advanced in real estate must account for its value at the time he received it, without interest, and no more. As a debt, then, there are two answers. 1st. It is barred by the statute of limitations. 2d. They cannot be made responsible for it.
    It is not an advancement by any-test, having no quality of one. The laws of Ohio recognizé no advancement of personalty. It is not an advancement to the respondents, and cannot affect their claims upon their grandfather’s estate.
    The above brief outline of the views of the counsel for the minor children of Wm. R. Putnam, was prepared to be submitted to the court on the circuit, where counsel was unable to attend, and of course without definite knowledge of the means by which complainant’s counsel would claim to sustain their case before the court.
    The complainant’s counsel seems to have been not a little embarrassed in preparing his bill, in what aspect to present his claims against the respondents, and has, therefore, given them a sort of double but not distinctly an alternative form. He claims that they are an indebtedness on the part of the several respondents respectively, and yet not to be paid to the intestate, still he prays that they may be decreed to pay the several amounts to him, or account for them on distribution, which last, in a proper case in law and fact, might be either on the principle of a set-off or an advancement. The same uncertainty seems to have brought the representative of the widow of the intestate and the widow of Wm. R. Putnam before the court, under the idea that they might be interested in the funds claimed to he in the hands of the respondents. As to the widow of the intestate, if the children of the intestate were indebted to the estate, and those debts had been collected, they would have formed a’portion of the assets and been distributable accordingly.
    Had suits at law been brought against the sons and the personal representative of Vfm. R., whatever other defense might have been set up, a claim of advancements would have had nothing to support it. It is claimed as potent evidence of advancement, that all the sons’ accounts open on the same day with a charge of a gross sum as the expense of their education. It is truly said that this could not raise an indebtedness on the part of the son. The inference that, therefore, it must be an advancement, is not only a palpable non sequitur, but the reason given for it negatives the possibility that it could be an advancement. Nothing can be an advancement which might not have constituted the subject-matter of indebtedness between the parties.
    The statute of New York, before referred to, is in coincidence with the definition of the term advancement, as settled by the courts in England and this country. It is defined to be all or a part of a child’s portion, advanced in anticipation, to establish him in business or set him up in life.
    It is hence not a gift, for no account is ever to be taken of that.
    It has no one quality of a debt, for under no possible change of circumstances cán any portion of it be reclaimed either to pay debts -or to equalize distribution. So far as bound by law, the party advanced must bring it in to partition with his coheirs, or refusing to do so, content himself with what he has, and receive nothing more. A widow’s portion or dower cannot be affected by it, as she can claim no portion of personalty so advanced, or any thing in respect of it, any more than she can claim dower in an advancement of real estate.
    Her claim is to dower in the real estate, and to a certain portion of the. assets remaining after payment of debts, etc. Assets must be liable to the payment of debts. An advancement is not so liable, and, therefore, is not assets.
    The widow of Wm. R. Putnam is also made a party. Why, I do not perceive, unless it be upon the hypothesis that she, as his widow, may have a claim to a portion of the estate of Edwin Putnam. The idea will not be without some foundation when it shall be established that the portion of his father’s estate which would have descended to him, had he survived his father, can be taken from his children to pay this alleged indebtedness of his, and if this, then, pari ratione, any other indebtedness of his, and then an administrator of Wm. R. Putnam’s estate becomes a necessary party to this suit. Here would be an administrator engaged in administering assets which descended to his intestate after his death.
    Is the proposition at all relieved by considering it in the light of an advancement to Wm. R. Putnam ? It seems to me not, clearly. My wards are the heirs at law of Edwin Putnam, who last died seized and possessed of real and personal estate. They trace genealogy through Wm. R. Putnam, a son of Edwin Putnam, who died in his father’s lifetime. They claim title both to real and personal estate by immediate descent from their grandfather. ■ He died intestate. How can their rights be affected by any transactions between their father and grandfather ? I am unable to discover. I have thus far considered the case in this supplementary argument, as if there was evidence of the facts stated in the bill going to establish transac tions of some kind to the amounts stated in the bill. No testimony has been taken, however, in the case. The bill refera to an account book as the book of the intestate containing the family accounts, in which are contained the charges set up in the bill, but it is not made a part of the bill or an exhibit in the case, nor is any evidence offered of the authenticity of the book or of the genuineness of the charges contained in it. The fact of advancement or indebtedness is not admitted in the answers, nor can I waive any point of defense for my wards in the case, except that the entire book is in intestate’s handwriting. In the same book is a writing not referred to in the bill, but which is confidently relied on by complainant’s counsel to sustain his case. It purports to be a draft of a will of Edwin Putnam in his handwriting, dated in A. D. 1839, but never executed so as to be admissible to probate. No proof is offered respecting it. It cannot therefore be considered. It is relied upon as showing the intentions of the intestate respecting the distribution of his property. No inference of intention can be legally or safely drawn from it. The fair and legitimate inference would be, that, had it conformed to an intention definitely formed, he would have perfected it as a last will and testament. He lived nearly five years after it purports to have been written, and never made a will. He did not then intend that paper to guide the distribution of his estate, and if a man may be fairly presumed to intend what he deliberately does, then Judge Putnam in tended to die intestate, and that the law should distribute his estate. The paper is of a testamentary character. It is a will, or it is nothing. If a will, it passes the property, and the pleasure of the testator stands as the reason of his conduct. If not a will, within the statute, it can have no influence upon the distribution of the estate without in effect repealing the statute of wills. Even if a will duly proved, it could make no disposition of the matters in controversy in this suit, if advancements, because no longer under the testator’s control. They might influence him in distributing the property subject to his control, whether debts or advancements, just as he might have pleased, but as he has not chosen to exercise that right, it is idle speculation to conjecture what he might have done had he made a will.
    Again, an advancement must possess that character distinctly in the contemplation of both parties when it is made, or it can never become so afterwards at the option of either party. It is a contract to all intents and purposes, and as such must receive the assent of both minds at the time it was made. Now will any one suppose that in sixty different small transactions, often when they were separate, both understood each as an advancement in anticipation of death, and not as a gift or loan ? If, therefore, the inchoate will could be competent evidence it could not sustain the bill, as it is only the declarations of the'complainant’s intestate, made long after the transactions, unknown to the other party and not binding upon him. It might be very convenient in many cases to turn a debt into an advancement, to elude difficulties subsequently arising, as, by the creditor after it was barred by the statute of limitations; by both to defraud creditors; by the debtor to avoid payment, and in many other cases. The character of the act therefore must be fixed by some distinctive mark attending the act itself, to make it an advancement, as prima facie a transaction between father and son creates the same liabilities as between strangers. Ashley's case, 4 Pick. 21, is on all fours with this.
    Here the father received payment in part of the debt after most of it was incurred, showing conclusively that he considered it then as a debt, payment of which was to be procured whenever practicable. ■
    Whether it was a debt or advancement, my wards are not responsible for or affected by it. Whatever its character might be held to be in England, under the statute of distributions, or in our sister states, whose statutes make personal property a proper subject of advancement, by the laws of Ohio nothing but real estate can constitute an advancement, and therefore the claims set up in the bill against my clients cannot be sustained.

      U. J. Jewett, for other defendants,
    also submitted an argu ment.
   Avery, J.

By a law of the state, (Swan’s Statute 283, section 12,) if any child of a parent who has died intestate, shall have received from the intestate in his lifetime, any real estate by way of advancement, the value of such real estate, at the time of such advancement, shall be considered a part of his .share on partition, unless such value shall be greater than his share; and then, such advancement shall be considered as his full share, and the estate shall be equally divided amongst the •other heirs of the intestate.

The law of the state divides the inheritance amongst the •children and heirs of a deceased parent so fully in accordance with the general sense of what is just, that the great body of the men who have property to leave behind them, are content to let the law make the distribution amongst their children; And hence, estates are continually passing into the hands of ■heirs by the operation of law. To secure the perfect equality which, unless for some special reasons, parents generally desire, •the foregoing provision respecting advancements was introduced into the law; and the justice and propriety of it will not be denied. The same sense of equity which declares that a •child who has received his portion, by way of advancement, in a farm, shall not come in with the other children, to take a .share in the remainder of the estate, requires the application of the laAV to advancements of personal property. The bill in the •case before us claims that such is the existing law, and asks a •distribution of the assets in conformity with that principle ; and the only question we have to decide is, whether the present law extends to advancements of personal property.

The 10 th section of the statute above referred to, declares ■that, if any person shall die intestate, leaving any goods, chattels, or other personal estate, such goods, etc., shall be distributed agreeably to the foregoing course prescribed for the descent of estates, which came not to the intestate by descent. devise or gift. It will be observed that there is, in the statute* a provision, in so many words, upon the subject of advancement as to lands; but none is found there as to personal property. If the 10th section, relating to the distribution of personal estate, had followed that which relates to advancements of land, it would admit of plausible argument, that advancements as to personal estate, also, were intended to be embraced in the law. But to the act as it appears, and especially with the several sections arranged in the order in which they are found, we are not able to give the construction which is desired. We are unable, indeed, to discover any sufficient reason for the distinction made in the case. Other states of the Union, at least many of them, have not made it, and we suppose it has happened here without design. As it is, however, by the construction which we are obliged to give to the law, advancements of personal estate cannot be noticed; and, consequently, cases will not unfrequently arise, where, against the apparent intention of the intestate, his children must share very unequally in his property, and sometimes, for the very reason that one species of property has been made the subject of advancement. As, for instance, where a child has received land, he is compelled, in effect, to surrender it up, before he can claim any further share in the estate; whilst other children of the same parent, to whom personal estate has been advanced, equal to it in value, may retain the amount, and still claim a full share in the remainder of the estate. \

To avoid the inequality which would be inevitable without any law on the subject, as to personal property, and which, in some instances, would result from a law confining advancements to land, we should be satisfied, if the rules of interpretation would permit us to extend it also to personal estate. But as it is, the complainant can have no remedy in our courts, for the evil supposed to exist, according to the statements of hia bill.

The hill is dismissed.


text:
    Lessee of Washington Sockman v. Michael Sockman.
    Where a debtor has made a fraudulent conveyance of his lands, and the judgment creditor, after levying on the same, applies to a court of chancery to aid him in making a sale to satisfy his judgment, a decree for the sale by a master will not be void, though the fraudulent grantees are not made par ties, but may be set up by a purchaser under such decree, as a perfect defense in an action of ejectment.
    A new trial will not be granted in ejectment, except under peculiar circumstances.
    This is a writ of error to the Court of Common Pleas of Knox county.
    The original action was ejectment, in which judgment was rendered for the defendant, the case having been submitted to the court without the intervention of a jury. A motion for a new trial was submitted and overruled, and it is alleged that the court erred in giving judgment for the defendant, and in overruling the motion for a new trial.
    From the testimony in the case, all of which is spread out in the bill of exceptions, these facts appear:
    The plaintiff and defendant both claimed title to the prem ises in controversy, as derived from Christopher Myers — the plaintiff, by direct conveyance from Myers, and the defendant, as a purchaser at a judicial sale, made for the satisfaction, in part, of a judgment against Myers. The conveyance was not, indeed, from Myers to the plaintiff alone, but to him and his brothers and sisters, grand-children of Myers. The plaintiff, however, is now the sole survivor of the grantees, and takes, under the conveyance, and as the only heir of the other deceased grantees, whatever title passed, by the conveyance, from Myers.
    To defeat this claim of the plaintiff, and to protect himself in his possession, as well as to establish his own title to the land, the defendant sets up a defense, that the conveyance to the plaintiff is fraudulent and void; that Myers, at the time he made the conveyance, owed a large debt to one John J. Brice; and that the deed was made to save the land from being held liable for the payment of that debt; that Brice afterward obtained a judgment for his demand against Myers — issued an execution upon his judgment, and levied it upon various tracts of land, amongst which was the land now in suit. The defendant further claimed, that, soon after the levy, Brice sought the aid of a court of chancery, to enable him to effect more advantageously a sale of the lands, for the satisfaction of his judgment ; that the court took jurisdiction of his case — determined that the conveyance of all the lands was fraudulent and void, as against that judgment, and decreed a sale of specified portions of it; and that, at a public sale under this decree, the defendant became the purchaser of the premises in controversy.
    The bill1 of exceptions which was taken at the trial, with the agreed statement of facts, the various documents, exhibits and testimony attached to it, shows, that the lands were conveyed after the debt to Brice was contracted ; that a judgment upon that debt was obtained — an execution issued, and the whole of the land taken by a levy. It shows further, the whole, or so much as is required in the ease, of the proceedings in chancery above referred to. The bill, it appears, was filed in the court of common pleas for Knox county, at their June term, 1829, and set out the judgment as having been recovered at the March term previous. John J. Brice was the complainant, and the respondents were Christopher Myers and his sons, Wm. Myers, Jacob Myers, Solomon Myers and Isaac Myers, and his sons-in-law, George Hahn and Michael Sockman.
    The bill describes all the lands — charges that they were fraudulently conveyed to the sons above named and to Hahn, in separate parcels; and that the part so conveyed to Hahn, was by him afterwards conveyed to Michael Sockman. The bill alleges that the lands had been offered for sale by the sheriff, upon the execution, but were not sold; and it is supposed that it would be of no avail to issue another execution for the sale, because, as it was believed, they would not sell, in conse■quence of the doubts created respecting the title of said Christopher, by the acts of the parties before named. By the prayer of the bill, a decree is asked canceling the deeds, or an injunction, restraining the defendants from asserting any claim to the lands, against any person who may become a purchaser, under the execution upon the judgment; and for such other relief as may be agreeable to equity. The bill is the same which was before this court, at their term in Bank of 1831, (5 Ohio Rep. 121;) when,'after a full hearing upon the evidence, the .several deeds of conveyance from Christopher Myers were declared to be fraudulent and void, as against the judgment of Brice; and, unless the judgment should be fully paid before a day fixed, were, by an order of the court, directed to be separately appraised. By the same order, the appraisement was to be returned to the supreme court for the county of Knox, at their next term, and was so returned at that term, which was in October, 1832. This return showed the several appraisements which had been made, 'of the tracts of land as conveyed to the sons ; and of that which had been conveyed to Hahn, and by him to Sockman, the present defendant, being 196 acres ; and of 180 acres conveyed to Sockman’s heirs, being lot 16 and part of 13.
    At this last mentioned term, a decree was taken in the case, directing that the lands described in the bill, be charged with the judgment in certain specified proportions; and after charging against other lands their due proportions, the decree proceeds to charge against the tract of 196 acres and the tract of 180 acres, mentioned in the return of appraisement as deeded to Michael Sockman and his heirs, a sum equal to four-elevenths of the claim of the complainant. The order directs the master commissioner to proceed against the lands, in the- collection of the judgment, interest and costs, so charged upon them; and to cause so much of each tract to be sold as shall pay the sum charged on it. The sale was afterward made by the master, under this order, when 125 acres of lot 16, and 55 acres, part of lot 13, were purchased by Michael Sockman, the defendant in the action of ejectment, and a deed of conveyance in fe«' simple made to him.

      Vance Smith and R. 0. Hurd, for plaintiff,
    cited the following authorities:

      Myers et al. v. Hewitt, 16 Ohio Rep. 449; Jackson v. Caldwell, 1 Cow. Rep. 622; Woodman v. Bodfish, 12 Shep. Rep. 317; Chesebrough v. Millard, 1 Johns. Ch. Rep. 414; Foulke v. McFarlane, Watts & Serg. Rep. 297; Huffman v. Strohecker, 7 Watts Rep. 86; O’Neal v. Cathran, 4 Desau. Rep. 652; Waller v. Mills, 3 Dev. Rep. 515; 2 U. S. Dig. Sup. 584; sec. 297, p. 729; sec. 398, p. 55; sec. 600.

      Delano Israel, for defendant,
    cited the following authorities:

      Brice v. Myers, 5 Ohio Rep. 121; Barr v. Hatch et al., 3 Ohio Rep. 527; Hildreth v. Sands, 2 Johns. Ch. Rep. 36, 49; 1 Story’s Eq., sec. 190; 6 Shep. Rep. 232; 18 Wend. Rep. 353, 375.
   Avery, J.

From the statement of facts in this case it will be seen, that the premises in dispute, though actually levied' upon by virtue of the execution, and embraced in the bill and in the order of appraisement, were supposed, till after this last order, to have been included in the deed to the sons and s.onsin-law, who were parties to the bill. The return of the appraisement first disclosed to the supreme court, that the premises last named had been conveyed to the heirs of Sockman, but the court proceeded to direct the sale and apply the money arising' from it towards the satisfaction of the judgment.

It appears further by the bill of exceptions in the case, that the defendant in the action established by proof, which is satisfactory, that the conveyance from Christopher Myers to the plaintiff and his co-grantees, was like the other deeds to the respondents in the bill in chancery, fraudulent and void, as against the judgment of Brice. Upon the evidence given at the trial in the common pleas, that court decided, that the plaintiff in ejectment had no title to the premises, and gave a judgment against him; and they refused, upon a motion of the plaintiff, to grant him a new trial; and we, after a full examination of the case, have not been able to find any error in their proceedings. The lands in controversy were legally taken in execution to satisfy the judgment of Brice. If they had been fraudulently conveyed before that time, by the judgment debt- or, the conveyance as against that judgment, was absolutely void, a perfect nullity; and a sale upon the execution, had it been made, would have passed the title as effectually'as if Christopher Myers had never attempted to convey. It was not necessary to go into chancery in order to secure a valid title for the purchaser; it was only important for the purpose of ■effecting a more advantageous sale, by inspiring in that way greater confidence in the title which would be obtained. If, then, the defendant, being in peaceable possession, could so connect himself with the sale, under that judgment, as to show that he was not an intruder upon the premises, he would have a right to set up the fraud which vitiated the conveyance, and made it a nullity, as against the judgment. Without doubt, in this view, the defendant might have used in evidence the proceedings in chancery. But I can discover no objection to his introducing the record, to show a complete title in himself, if he were prosecuting as a plaintiff in the action. The land was liable to be seized and sold as the property of Myers, upon an execution against him; and could have been offered by Brice without consulting or noticing any person, whose only title was ander a fraudulent conveyance. A judgment creditor may proceed in chancery, when a deed is resting upon the title of the debtor, as well as for other causes; and if, by his will, he presents a case which the court will recognize as sufficient; if any party, even the judgment debtor alone, is before the court, jurisdiction is required over the subject-matter and over the defendant; and a decree ordering a sale in aid of a judgment at law, is not void, so that it can be impeached collaterally. It will operate, to some extent, to support the conveyance which it directs ; and such conveyance will be good till a better title is shown; it will at least be good against a fraudulent conveyance. It results, from what has been said above, that the plaintiff has no claim, merely because he was not a party to the bill in chancery, to disturb the present defendant.

But the plaintiff says further, that the defendant is guilty of misconduct and fraud in his attempt to connect himself with the premises, and that therefore he does not stand in the relation supposed, which would enable him to question the validity of the plaintiff’s deed. He is the father of the plaintiff, who is the only survivor of his co-grantees; and as the natural guardian of his children, he had taken the oversight and charge of the land, which had been conveyed to them by Christopher Myers, their grandfather. ' And while occupying this relation to his children and the land, he betrayed, it is claimed, the interests of his minor children, and fraudulently caused their land to be put to sale instead of his own, and then bid in the title, when he ought to have applied his money towards extinguishing the debt which was an incumbrance upon the land. It is very certain, that something appears in the conduct of the defendant, in relation to the purchase of his children’s land under the execution, which has not been explained; and his motives and actions may be reprehensible. But he was a purchaser at a public sale conducted by a master of the court, and his purchase cannot, at least upon such evidence as was given in this indirect manner, be attacked. However dishonest his motives may have been, his title cannot be assailed, while the master stands above all imputation of wrong. Upon the whole evidence, we decide that the plaintiff showed no right to recover.

But there is a view of this case which would have led to the same result, upon evidence much less decisive and clear for the defense. This is an action of ejectment, where a judgment has been given in behalf of the defendant who is in possession; and the plaintiff is the party moving for a new trial. In such a case, he is not to be heard with much favor. In Runnington on Ejectment 398, it is said, that an application for a new trial formerly, was not countenanced in an action of ejectment; because the injured party might bring a new ejectment. But the practice was at a later period adopted of granting new trials where the party applying would otherwise suffer by a change of possession. In Muhlenburg's Heirs v. Florence, 5 Ohio R. 245, there was a new trial granted; but the verdict was there against the defendant; and in such a case the court said, the reason of the rule ceases. In actions of ejectment, where the verdict is in favor of the defendant, it is rarely set aside for newly-discovered evidence. 6 Ohio Rep. 271.

As a general rule, but it would not answer to say as an inva-' viable rule, a new trial will not be granted on the application of a plaintiff in ejectment, who has failed upon the first trial.

Judgment affirmed.