author: Caldwell, J. Avert, J.,

text:
    Francis James v. Hosea Roberts.
    Where a person has been induced by threats of a groundless prosecution, to execute a note and mortgage, a court of chancery will grant relief, and restrain their collection.
    This is a bill in chancery, reserved in Trumbull county.
    The bill is filed for the purpose of canceling a mortgage, and certain notes given by complainant to defendant, which are alleged to- have been obtained by the defendant without consideration, by means of threats, and putting the complainant in fear of a criminal prosecution, for perjury. The transactions out of which the difficulty arose, commenced in January, 1837. At that time Francis James, the complainant, being the owner of fifty acres of land, sold the same by title bond, to Isaac C. Robe, for five .hundred and twenty-five dollars, payable in four annual payments, for which Robe executed his notes. The deed for the bond was to be made on the payment of the purchase money. In the month of March, 1838, Robe, who had been in possession of the property for something more than a year, being about to go down the river, sold his interest in the land, by assigning the title bond to the defendant Roberts, for twenty-five dollars. Roberts went into the possession of the land, and remained in possession until the month of November, 1838, when the first note for the purchase money, having been for some time due, and unpaid, he sold out his interest in the land, and delivered up the title bond to complainant James; and James delivered over to him Robe’s notes for the purchase money. Roberts delivered over these notes to a man by the name of James Jenard, who brought suit against Robe to recover their amount.
    In that case the deposition of James was taken by Robe, the defendant in that suit. James testified, in substance, that when the notes were delivered by him to Roberts on his receiving back the land, the agreement was, they were to be delivered up to Robe. Roberts asserted, that in this deposition James had sworn falsely. On the ninth of September, 1841, Roberts, in company with two other men, Goodrich and Freeman Deming, started to Ravenna; Roberts says in his answer, that he was going to Ravenna for the purpose of getting out a warrant against James for perjury. They stopped at James’s house, and he went with them to a justice of the peace, who drew up the mortgage and notes now in controversy, and James executed them.
    All the other facts in the case are matters of controversy, and being questions of facts are not inserted here, but are stated in the opinion of the court.

      Wm. S. 0. Otis, for complainant.
    The case was submitted for the complainant without argu ment.

      Hitchcock, Willson Wade, for defendant.

      In this ease, it is confidently believed that a careful examination of the testimony will show clearly that all the material allegations of the bill are disproved, and if so, it must of course be dismissed.
    But supposing we are mistaken in this view, and that the court find that the consideration of these notes and this mortgage was the prevention of a criminal' prosecution, is the complainant entitled to the relief sought ?. We insist that he is not. It is to be observed here, that he takes nothing by the allegation that the charge was false. In cases of' this kind, the court never look to the collateral inquiry, whether the prosecution stifled, the charge made, is well or ill founded. The inquiry is, what induced .the promise — what consideration moved the parties ? Was the object to prevent an investigation — to suppress inquiry ? If yea, the law declares it contrary to sound policy, and subjects both parties to the rule, that courts of justice will leave them where they find them; that they will lend their aid to neither. Such is the language of the authorities. Thus, in 2 Kent’s Com. 366, and 4 Ohio Rep. 418, it is said “ a contract, the consideration of which is to conceal a crime, or stifle a prosecution, is necessarily repugnant to public policy,” etc. So, in Johnson v. Ogilby, 2 P. Wms. 277, the agreement was to “ stifle ” a “ criminal prosecution.” So, also, in Harding v. Cooper, 1 Stark. N. P., the agreement was “ to drop a prosecution.”
    But if the law would permit this inquiry to be made, the complainant here attempts to impeach both his own deed and his own note, on this ground. Of course he must offer some proof tending to show the falsity of the charge made. He, however, has utterly failed to do so. On the contrary, it is shown that he admitted the deposition complained of to be false; and the matters therein stated are, moreover, shown to be untrue by several witnesses. If, therefore, the court shall find the consideration of the mortgage and notes in this case to have been the suppression of a criminal prosecution, the naked question presented, is, will a court of chancery interfere, at the instance of the maker of them, to decree their surrender or cancellation ? We insist that it will not. Waiving, for the present, any argument based on the well established principle, that equity never interferes in favor of parties in pari delicto, we insist that the question is no longer an open one in this • state; that is fully settled by the case of Raguet v. Roll, from Hamilton county.
    That case has been before this court, in different shapes, four different times, and arose out of this state of facts: Raguet suspected, and accused, Roll’s son of larceny, and threatened a prosecution, but agreed to omit it, and to use his influence to prevent an investigation, if Roll and his son would execute their two notes, for $500 each, and secure the same by mortgage. This proposition was accepted, and the notes and mortgage were executed accordingly.
    Upon one of these notes Raguet commenced suit, and the same came, before the Court in Bank, on the question of the sufficiency of a plea setting forth- the above facts. The plea was sustained, and the court clearly and distinctly declared the principle governing all cases of this kind, in these words : “ Whenever an agreement appears to be illegal, immoral, or against public policy, a court of justice leaves the parties as it finds them; if the agreement be executed, the court will not rescind it; if executory, the court will not aid its execution.” 4 Ohio Rep. 419. *
    After this, Raguet caused a scire facias to be issued, to which a plea of the same facts was interposed, and the same came on for hearing at the Dec. term of this court, A. D. 1835, when the court sustained the plea on the ground that, in cases of this kind, “ the law is, in executed contracts, that the parties are to be left precisely as they are found. The law lends no aid to either plaintiff or defendant.” 7 Ohio Rep. (pt. 1) 78.
    Raguet then brought an action of ejectment on the mortgage, which came before this court on a motion for new trial, and was decided at the December term, A. D. 1836. In that case it was distinctly held, that the legal title passed to Raguet; that the mortgage was an executed contract, and the ejectment might be maintained by virtue of it. The court say, “ The distinction between an executed and executory contract, whose consideration is unlawful, is a very plain one. In the former case, the court will not annul; in the latter, they will not enforce ; and this course, so totally opposite in the two cases, is intended to be subservient to the same end, the prevention of an immoral act.” 7 Ohio Rep. (pt. 2) 70.
    In Cowles v. Raguet et al., 14 Ohio Rep. 38, the same facts again came before the court, on a bill in chancery, presenting a much stronger case for relief to Roll, than the present case makes for the complainant. In that case Cowles had purchased the mortgaged premises, under a decree upon a junior mortgage, dated in 1835, and his bid left a surplus of $1,500, which of course belonged to Roll, unless properly applicable to some other valid existing incumbrance. In 1832, after forfeiture, Raguet had assigned the mortgage and notes to McMieken, for the benefit of his creditors. Cowles filed his bill asking to be permitted to appropriate the surplus to the payment of the mortgage money due to Raguet or his assignee. Roll was party, and defended on the ground of the illegal consideration of the mortgage and notes. Here was a case where the action of the court became necessary to prevent the money from going into the hands of Roll, and, inasmuch as that became necessary in order to meet the spirit and reason of the law governing such contracts, it was not withheld; but the court decreed, that the surplus money should be applied to the payment or redemption of the mortgage, and denied the validity of his defense. To allow the position assumed by him, the court say, “ would in effect amount to a rescisión, by a judicial tribunal, of an executed contract, the consideration of which was against public policy, and which would be contrary to the opinion of the court, as expressed in the case already cited from 4 Ohio Reports.”
    This, it will be observed, was a case in chancery, and yet the court adhered firmly to the doctrine settled in the previous cases, and refused to do any thing which might, by possibility, operate to rescind an executed contract based upon an illegal consideration. On what ground, then, can the complainant ask the rescisión of the mortgage in the present ease ? How can the two be distinguished ? We submit, that to grant the relief sought, would subvert the authority of all the cases above cited. But these decisions, in Ohio, are not peculiar. The same doctrine is fully recognized, and the same distinction acted upon in Inhabitants of Wooster v. Eaton, 11 Mass. 375 to 379, and we have been utterly unable to find an authority or even a dictum to the contrary. The complainant, therefore, cannot have his mortgage canceled.
    But as to the notes secured by it, he is equally destitute of any equity. This follows, necessarily, from the previous argument. Indeed, it is impliedly and necessarily settled by the cases above cited. To grant him relief in reference to the note, would be to cancel the mortgage, to declare it a void incumbrance, and effectually to overrule all the principles laid down in the several cases above cited from the Ohio Reports; it would be to do indirectly what the court would not do directly, a course never adopted by courts of justice, and directly condemned in the case of Cowles v. Raguet et al., above cited.
    Aside from these decisions, however, we insist that the relief sought as to these notes cannot be granted, for the following reasons :
    1. There is ample and adequate remedy at law, and of course no necessity for the interference of this court. A court of chancery never interferes to set aside or rescind a contract, to which there is a legal defense, unless under very peculiar circumstances. It leaves the parties to their" rights at law. Indeed, the power of the court to interfere at all in such cases, has been much doubted. In some cases it has been directly denied; in others, the relief has been delayed and the cause continued until the question could be tried at law; while in others, where the facts were undisputed or some difficulty attended the defense at law, relief has been given at once. See the case of Hamilton v. Cummings, 1 John. Chy. 522, where the authorities are collected and the subject fully discussed. In that case the general authority is admitted, but the chancellor says it is in all cases a matter of discretion, and in reference to both the bonds against which relief is there sought, finds there would be difficulty attending the defense at law, and this is made the ground of his interference. In the present case no special circumstances are alleged in the bill; none in fact exist. The notes remain in the hands of the original payee; if given for an illegal consideration, there is at law a perfect defense— no difficulty intervenes to prevent complainant from setting it up; and there is no necessity for the interference of a court of equity, for the exercise of the discretion spoken of by the chancellor in the case last cited.
    2. The complainant is precluded from relief by the fact that he is a party to the illegal contract, and by the application of the well known rule, “ in pari delicto potior est conditio defendentis.” With such agreements, neither courts of equity nor of law will interfere. If parties will enter into such immoral or illegal contracts, they must abide the consequences without asking the aid of courts of justice. “ Whenever an agreement appears to be illegal, immoral, or against public policy, a court of justice leaves the parties as it finds them.” 4 Ohio Rep. 419; 7 Ohio Rep. (pt. 1) 79; 14 Ohio Rep. 38; 2 Stark. 88, 102, note; 1 Swift Di. 219; 1 Story Eq. 296, and cases there cited.
    3. If chancery would not necessarily refuse its interference, the complainant has not made such a case as entitles him to relief. He must do equity before he asks it. But the case shows, beyond a doubt, that he is indebted to the respondent; that such indebtedness constituted a part, if not the whole, of the consideration of the notes in question. That indebtedness he ought in equity to discharge. We admit, to its fullest extent, the rule, that a contract predicated in part upon a legal and in part upon an illegal consideration, is void, and cannot be made the basis of an action. But the application of the rule is limited to cases where the contract is sought to be enforced, either at law or in equity. Where the obligor seeks to avoid, it by the aid of a court of chancery, it- does not apply. There he must first pay, or offer to pay, the amount in equity due, or to comply with his contract, so far as the consideration is legal. Such is the law relative to bonds and other contracts tainted with usury, and all analogous eases. This is a familiar principle, requiring for its recognition no reference to authority. Such payment, or offer to pay, is obviously dictated by the rules of common honesty, and is a condition precedent to the right to seek relief in a court of equity. The present complainant has failed to comply with it, and therefore his bill must be dismissed.
   Caldwell, J.

The bill alleges that at the time of the making of the mortgages and notes to Roberts, Roberts and the Demings called on James at his barn; that Roberts told him he was going to prosecute him for perjury; that he was on his way to Ravenna for that purpose; that he had two witnesses who would swear that the statements in his deposition were false, and that unless he would settle with him, he would have to go to the penitentiary ; that he asked for time to consult his family and neighbors; that Roberts refused, telling him that nothing but immediate compliance would save him, and that he might consult the Demings, who were friendly to him; that he, James, did advise with the Demings, who told him he had better settle with Roberts; and that thereupon, being greatly alarmed, he executed the notes and mortgage, for the purpose of saving himself from the threatened prosecution.

The bill also alleges the innocence of complainant from said charge ; and states that in his deposition he only swore to such facts as he well remembered to be true. The bill further states that the consideration paid to Roberts by James, for delivering up the land, was twenty-five dollars, which was paid at the time of the transaction.

The answer denies the principal allegations of the bill. Roberts states that he procured a copy of the deposition of James from the clerk of the court of Trumbull county; that he started in company with the Demings to go to Ravenna for the purpose of instituting the prosecution; that when they got to Charleston, in the neighborhood of where James lived, Freeman Deming proposed that they should go and see James; that he read to him the deposition; that James said it was false, that he had never sworn to it, that he signed it without reading; and that James proposed to settle it, and asked him, Roberts, on what terms he would settle it; that he told James that he could not settle for the state, but that for his own part he would settle ; that James requested the Demings to say nothing about it, and that they shortly after went to a justice of thé peace, who drew up the notes and mortgage, and that James executed them. Roberts states that the consideration of the notes and mortgage arose out of the arrangement he made with James to deliver up to him the land. He says that James agreed to give him seventy-five dollars; that James paid him twenty-five dollars in cash, and that for the remaining fifty he gave him the notes of Robe, amounting to $525 ; that Jenard had brought suit on these notes, and failed, and that he, Roberts, had to pay the costs, which amounted to $83.81; that the fifty dollars on the contract respecting the land, these costs, and the costs and damages which he might afterwards have to pay on account of the false deposition of James, constituted the consideration of the notes and mortgage.

The first inquiry which we propose to make is, whether there was any valuable consideration for these notes and mortgage. This necessarily leads us to examine, in the first place, what was the contract between Robe and -Roberts, in reference to the notes of Robe held by James ?

Susannah Robe, the mother of Isaac Robe, states that Roberts told her that the bargain between him and Isaac, was, that he was to pay twenty-five dollars and keep the notes for Isaac, as they were paid off. She says that after Roberts had sold out to James, and had got from James the notes he held on Isaac, she heard that Roberts was trying to sell the notes, and she went to him and told him what she had heard. He denied it, and said he was about to start south on a peddling tour, and that he would take the notes to Isaac, who then lived in Licking .county.

Seth Oviatt says that Roberts told him, that he was to pay Robe twenty or twenty-five dollars, and clear Robe of the contract, or lift the notes — witness is not certain as to the language. '

James E. Robe states, that shortly after the sale of thwrand to Roberts, when his brother Isaac was about to leave this part of the country, they went together to the shop of Roberts, and his brother said to Roberts : You will see old James and get those notes, and stand between me and all harm.” . Roberts said he would.

Seth Oviatt, jr., said he heard Roberts say that he had bought the article for the land, from Robe; that he paid Robe twenty-five dollars for it; that he got a piece of wheat and some wood or saw logs, and that when he got the notes he was to deliver them up to Robe.

Isaac Robe states.that the contract was, Roberts was to pay him twenty-five dollars for the land, and lift his notes.

On the other side, we have the testimony of Asahel E. Goodrich and Horatio Roberts, who state, that at the time the contract was made, Robe said he did not care a damn about the notes, that he had got two hundred dollars worth of timber off the land; and Horatio Roberts says that he, Robe, said he was going away, and did not expect to return. Chancey Richards says that he had a conversation with Robe about the contract. In that conversation, Robe told him he did not care a damn about the notes; Roberts might lift them or not, as he chose.

Here it will be seen are five witnesses on the one side, whose testimony goes directly to prove that the contract was, that Roberts should lift these notes of Robe’s, and save him from all liability on them. On the other side, we have the testimony of three witnesses, whose testimony goes to show that. Robe expressed a perfect carelessness about what should become of the notes; still this evidence is perfectly compatible with his, considering himself freed from all liability on their account. Indeed we think that would be the fair inference from it. We think the direct evidence in the case proves very clearly that the contract between Roberts and Robe was, that Roberts should lift the notes for Robe. But the circumstances of the case, we think, place the matter beyond all doubts. No other understanding in reason could have existed between the parties. Roberts could not get the title to his land without paying off the amount of the notes. Robe, who, from the evidence, is a responsible man, and the owner of real estate, transferred the title bond for the land to Roberts, and put him into possession, leaving the whole of the purchase money unpaid. Now that Robe should sell out his title for twenty-five dollars, and pay the whole of the purchase money for the land, is inconsistent with all our notions of men and things.

The next questipn arising in the case is, what was the understanding between James and Roberts in reference to these notes of Rohe’s, at the time Roberts delivered up to James the land with the title bond, and James delivered up these notes to Roberts ?

The claim of the defendant is, that the contract was, that he was to receive seventy-five dollars from James for deliver ing up the land; that twenty-five dollars was paid in money, and he took these four notes of Robe’s for $525, for fifty dol lars.

The testimony of Susannah Robe, (that we have alluded to above,) is to the effect that he, Roberts, had received these notes, to deliver them over to Isaac Robe.

Seth Oviatt states, that after Roberts had given up the land to James, he had a conversation with Roberts about what he got for it. Roberts stated that James gave him twenty-five dollars; Robert's at the same time remarked that he had had the use of the land.

On the part of the defendant, Horatio N. Roberts, Edward H. Oviatt and Samuel Thomas, state that they were at the house of Roberts when the contract was made, and that Roberts received seventy-five dollars, twenty-five in money, and Robe’s notes at fifty dollars. Here is a direct conflict of testimony. It will be seen that there are three witnesses testifying on the part of the defendant, and two on the part of the complainant. Although the defendant has the advantage so far as the number of witnesses is concerned, yet when we take the other facts and circumstances of the case in consideration, we think the evidence very strongly preponderating in favor of the complainant. That Roberts and James, after the title bond and the land had been delivered up to James, should make these notes of Robe’s, given for the entire purchase money of the land, which Roberts had purchased, and the amount of which, as we before remarked, he was bound to pay before he could obtain his title for the land, and which, if we are right-in our conclusion above, he had contracted to lift, and hand over to Robe, the subject of sale for a valuable consideration is altogether unreasonable. Besides, that these notes, that amounted to $525, with a considerable amount of interest on them, should have been sold for fifty dollars, adds to the improbability of such a transaction. The other theory is the reasonable and consistent one. James received back his land, and the title bond which he had given. He did not pay for the land, he only paid for such interest as Roberts had in it, with all the purchase money unpaid, and he delivered up the notes that embraced the entire consideration for the land under the contract that by this arrangement had been put an end to. If we are right in this, it establishes two important facts in the case : 1st. That the deposition of James, taken in the case of Jenard v. Robe, was true in stating that these notes were merely delivered up by him, and not sold.

And, secondly: That the mortgage and notes given by James to Roberts, and which are sought to be set aside by this proceeding, were made without any pecuniary consideration passing from Boberts to James. The next, and only remaining question of fact in the case is, whether these notes and mort gage of James to Boberts, were obtained through fear, occa sioned by threats of Boberts to prosecute James, criminally, for perjury.

Now, we think this appears from the answer of Boberts to have been the case, although he denies it in words. He states that he started that day in company with the Demings to go to Bavenna, for +he purpose of commencing a criminal prosecution ; that one of the Demings, when they had got to Charleston, proposed that they should go and see James; that they went to him, and he read to him the deposition; that James admitted that it was not true, and asked how he could settle, and requested them all to say nothing about it. Boberts’s own answer, as given by himself, shows that he understood James to mean a settlement of the prosecution; he replies, that he cannot settle for the state, for he had no authority to do so; but for his own part, he would settle for one hundred and fifty dollars. They went before a justice, had the writings executed, and Boberts proceeds no further with the prosecution.

Freeman Deming, who was in company with Boberts, says he heard no threats made use of by Boberts towards James, and that neither he nor his brother advised James to settle.

Lyman Deming states, that he was at work with Freeman Deming — that Goodrich Deming came after Freeman, and would have .him to go with him, on particular business, and that they went off together.

Witness states, that he afterwards told Freeman that he had found out what he, Freeman, went for; Freeman said he ad vised James to settle it, as Boberts threatened to send the constable after him.

Abel Fowler states, that soon after the transaction, he told. Freeman Deming that it was no use for him to deny that he advised James to settle it; that Freeman replied that he did not deny that he advised James to settle; that Boberts said he would take him with a state’s warrant if he did not settle.

Alanson Baldwin states, that in a conversation which he had with Roberts, he, Roberts, said that James owed him one hundred and fifty dollars, and if he did not settle with him, he would prosecute him, or sue him, or take him up for a false oath; that if James did not settle with him, he would make a wood chuck skin of him before he got through with him.

A majority of the court, who sit in this case, are of opinion that the evidence shows that the consideration of the notes and mortgage, was to stop the threatened prosecution by Roberts..

The question then presents itself, Can the court grant relief in such a case ? It is contended on the part of the defendant, that the court cannot grant relief; that the contract is opposed to sound morals and public policy, and that the court will not move in the matter, but leave the parties where it finds them. Numerous authorities are cited to sustain this position, amongst others the case of Raguet v. Roll, 4 Ohio Rep. 419. In that case, it appeared from the plea, on the averments of which the court made the decision, that Raguet agreed that he would not only not prosecute, but that he would use his influence to prevent a prosecution, and that he would not appear as a witness against the accused.

The court considered this contrary to public policy. They say: “ Whenever an agreement appears to be illegal, immoral, or against public policy, a court of justice leaves the parties as it finds them; if the agreement be executed, the court will not rescind it; if executory, the court will not aid in its execution.” This is no doubt a well established principle, but we do not think it applies to the present case. A majority of the court are of opinion that James was entirely innocent of the crime charged against him, and that this was known to all parties concerned; that the charge was got up merely for the purpose of extorting money from him by operating upon his fears, and that fearing the consequences of the prosecution, notwithstanding his innocence, he executed the notes and mortgage.

He is proved, by a great number of witnesses, to be a very weak and cowardly man, and a number of remarkable instances .are given of the effect of fear on him. Cowardice is a great defect of character, but where a party is compelled through fear to do acts which are only calculated to injure himself, they have never, in the legal sense of the term, been regarded as immoral or contrary to public policy. A true public policy requires that all groundless prosecutions should, if possible, be prevented, and that every facility shall be afforded to the innocent to escape from such a calamity; and we think an innocent party may, with great propriety, ask to be relieved from the consequences of a groundless charge.

There will be a decree for the complainant.

Hitchcock, 0. J., having been of counsel, did not sit in this case.

Avert, J.,

dissenting. That it is against public policy to stifle a criminal prosecution, is a settled doctrine of the common law. A note, bond or agreement, intended to effect such a purpose, .being founded upon an illegal consideration, is, therefore, held to be void. Courts of justice will not lend themselves to carry into execution any such agreement — and holding both parties who consent to engage in it to be guilty, will not allow themselves to interfere in behalf of either, nor to give countenance in any shape to such a transaction.

This wholesome doctrine has been recognized as the law of Ohio, in all the various forms in which the question has been heretofore presented to the court. In the 4th Ohio Rep. 400, Roll v. Raguet, the principle is distinctly asserted, “ a court of justice leaves the parties as it finds them; if the agreement be executed, the court will not rescind it; if executory, the court will not aid in its execution.” I do not believe there would be wisdom in the attempt to overturn, or in any way ■depart from that principle.

The complainant sets forth in his bill, besides other matters therein stated, that in 1837 he sold a tract of land to Isaac C. Robe for $525, payable in four annual installments. He gave to Robe an article of agreement, and took his four promissory notes for the purchase money. Robe, in the course of a year or somewhat more, assigned all his interest in the article to Roberts, the defendant, for $25; and Roberts afterwards, for the consideration of $25, delivered up the article to the complainant, to be canceled. On the 25th of July, 1840, Roberts obtained, with complainant’s consent, the possession of the article, for the purpose of using it as evidence in a suit he had pending in the common pleas of Trumbull county. Roberts afterwards, on the 9th of June, 1841, in company with Freeman and Goodrich Deming, called on the complainant, at his residence in Portage county, and accused him of the crime of perjury, in a certain deposition by him given before one Luther L. Brown, Esq., to be used in evidence in the aforesaid cause pending in Trumbull county. Roberts stated that he had two substantial witnesses by wrhom he could prove the perjury; that he was then on his way to Ravenna to commence a criminal prosecution for said crime, and unless complainant would forthwith give him his notes for the sum of 150 dollars and a mortgage to secure payment of them, he would straightway prosecute him for the crime of perjury. The complainant protested he was innocent, and asked for permission to consult with his neighbors and with his wife, but was refused, and he was then and there induced to execute to Roberts his three promissory notes for $50 each, and a mortgage to secure their payment. The prayer of the bill is for a decree, that the notes and mortgage be delivered up to the complainant, and for such other relief as may be according to equity.

This bill of the complainant, it will be observed, distinctly asserts, that the notes and mortgage were given to stifle a prosecution for perjury. It does not hint at any other real or pretended consideration, as existing in the case.

Roberts, in his answer, which is under oath, denies the greater part of the allegations in the bill. He asserts th^t the com plainant called upon him, and proposed to take back the land contract, and pay him $75 — to which proposition he acceded, and thereupon gave up the contract; that complainant paid him $25, and not being able, at the time, to pay the remaining $50, delivered to defendant the notes he held against Robe. He says further, that the complainant did not give up the notes against Robe to be canceled, but he gave them up on account of the $50 — the balance which he owed the defendant— telling him that he should not give up the notes to Robe, but should sue and collect them.

The deposition of the complainant, in giving which, it is alleged he committed perjury, was taken before Luther S. Brown, Esq., on the 9th of March, 1841, to be used in a cause in the common pleas of Trumbull county, between James Jenard, plaintiff, and Isaac C. Robe, defendant. It states the contract for the sale of the land, and sets out the four negotiable promissory notes, payable one, two, three and four years after date. It further states, that the deponent purchased the article from Roberts, for which he paid him $25, and gave him up the notes for the land; that he supposed the notes were all settled; for Roberts said that Robe had told him to take up the notes and keep them, as deponent supposed, for Robe. To the inquiry, whether he ever disposed of the notes, the deponent’s answer is, that he never did to any person, but delivered them up to Roberts to keep for Robe.

The deposition further asserts, that Roberts came to deponent, stating that he was about to be sued for the notes, and he wanted the article; that deponent asked Roberts if he had kept the notes in his possession, and he gave no satisfactory answer: and that, to the question, What did Roberts agree to give you, at the time he got the article ?” deponent’s answer was, “ He said I should have half of what he could collect on the notes.”

Now, there were present at the time of the transaction — that is, the sale of the article by Roberts to the complainant — three witnesses, who all support Roberts in the statement of the contract, as given in his answer, and contradict the complainant’s testimony concerning the sale — that the consideration was $25, and that the notes were not disposed of, but were delivered up to Roberts for Robe. Here is no inconsiderable array of witnesses, to establish the charge of falsehood against the complainant.

Opposed to them are two witnesses, Susannah Robe and. Seth Oviatt, neither of them present at the transaction, who testify to declarations of Roberts concerning the contract, which are regarded as inconsistent with the testimony of the three, and which are supposed to show that the contract between Roberts and the complainant was for $25, and no more, and that the notes were merely given up by the complainant for the use of Robe.

So much testimony to the falsehood of some' of the statements in the deposition, needs to be met by rather strong testimony and circumstances, before all belief in it can be destroyed, and before relief can be granted in equity, against the direct denials, under oath, in the answer. The improbability that two such men as these parties have shown themselves to be, should attempt a speculation of the kind, is not, to my mind, strong enough for the purpose. To me it seems not incredible, that both Roberts and complainant should have supposed it possible, and have actually thought of trying to make something out of these negotiable notes in their possession, and that, without scrupulously consulting either the rights or the interest of Robe. Especially may this be believed, if any reliance can be placed upon that part of the complainant’s deposition which represents the agreement spoken of, when Roberts last got possession of the article — that complainant “ should have half of what could be collected on Robe’s notes.”

Concerning the alarm and fear of the complainant, when ac cused of the criminal offense, there may be room for conjeeture upon the evidence, that it was conscience that madé a coward of him, in the case.

The statement of the complainant, that he was not allowed to consult his friends or his wife, cannot be entitled to very great consideration; because he was left by Roberts and the others, with his family, after the threat, and he had time for reflection and consultation, before he started to meet Roberts, and complete the arrangement at the office of the magistrate.

But whatever may be determined as to the guilt of the complainant, whether the whole evidence taken together be sufficient or not, to establish the charge of falsehood, there is reason for believing that Roberts, upon the evidence within his reach, had the intention, which he averred, of prosecuting the complainant ; certainly, there is no absurdity in supposing that such was his real intention. And the actual guilt or innocence of the complainant, is not a question properly arising in the case, as I had supposed; it is the character of the contract — was it really made and intended for the suppression of a criminal prosecution ? In the case before referred to, in 4 Ohio Rep. 400, which has established the rule in this state, the plea as there given, contains no averment that the party executing the instrument, was either guilty or innocent, but only that he was suspected and accused.” A plea, therefore, is good without such averment.

I was not able to concur in opinion with the other two members of the court who sat in the cause. I think the complainant showed no cause for relief, and that his bill ought to be dismissed.


source: Caselaw Access Project

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

license: Public Domain

text:
    Hannah Taylor v. Cary A. Fowler.
    Where land is mortgaged to secure the payment of a debt, in which the wife joins, and the same land is subsequently sold under a judgment against the husband, at the suit of a stranger to the mortgage, the wife is not divested of her dower as against the purchaser at such sale, though the court may have ordered the purchase money in part to be applied to the payment of the mortgage debt.
    This is a petition for dower, reserved in Miami county.
    The petitioner represents that she is the widow of Jonah Taylor, late of Miami county, deceased; that during coverture the said Jonah Taylor was seized as an estate of inheritance of the south half of the N. E. quarter of section 24, township 7, range 5, east, in Miami county, in which the petitioner is entitled to dower; and that Cary A. Fowler, the defendant, now holds the estate of inheritance, by virtue of a decree from the sheriff of the county in pursuance of a sale, made by said sheriff upon a judgment against said Taylor, at the suit of John Sloan; and prays that reasonable dower may be assigned, etc.
    Cary, in his answer, says he claims title to the land derived from the deed as stated in the bill, and admits that complainant is the widow of Jonah Taylor, and that said Jonah was seized of the lands as of an estate of inheritance. It is further stated in the answer, that said Taylor borrowed of' the fund commissioners of Miami county, the sum of $450, and mortgaged the premises to secure the payment of the loan. That the petitioner united with her husband in the execution of the mortgage deed, thereby relinquishing her right of dower. That said loan being unpaid, the fund commissioners, on the 1st of November, 1841, filed their bill in chancery to foreclose the mortgage, and compel the sale of the mortgaged premises for the satisfaction of the debt, and obtained a decree at the May term of the court of common pleas of Miami county, 1842, against Taylor and wife, in pursuance of which an order of sale was issued, and the land appraised, but not sold for want of bidders, nor was the same ever sold under the decree.
    In 1847, defendant purchased the land at sheriff’s sale, upon a judgment, which was a lien upon the land subsequent to the lien of the mortgage, and when the sale was reported to the court, for confirmation, the prior lien of’ the mortgage was made manifest to the court, and the court ordered that the proceeds of the sale should be first applied to the satisfaction of said mortgage; which being done, but about sixty dollars of the purchase money was left to be applied upon the judgment under which the land was sold. The defendant relies upon these facts as a bar to the petitioner’s claim.

      Burgess, Smith <f* Vallandigham, for petitioner.

      Charles Morris, jr., for defendant.
   Hitchcock, C. J.

There is no controversy about the facts in this case, and they are all contained in the bill and answer. In May, 1887, Jonah Taylor, the husband of complainant, mortgaged the premises in which dower is now demanded, to the State of Ohio, for the use of the fund commissioners of Miami county, to secure the payment of a loan from said commissioners. To the deed of mortgage the complainant was a party, therein relinquishing her right of dower. The loan being unpaid, such proceedings were had, that a decree for the sale of the mortgaged premises was entered against Taylor and wife, at the May term of the Miami common pleas, 1842. Orders of sale were issued, but the land remained unsold for want of bidders until 1847.

In the meantime, and after the rendition of the decree, John Sloan renewed a judgment against Taylor, upon which an execution was issued, and the land mortgaged, levied upon and sold in 1847. The sale being reported to the court, was approved, but the court directed the mortgage to be first satisfied from the money made on the execution.

■ In this state of the case, the question made is, whether the petitioner is barred of her right of dower.

Had the land been sold under the decree of foreclosure, she must have been barred. Of this there can be no doubt. In such case, the purchaser must have held all the rights of the mortgagors and mortgagees. His title would have been perfect as against them, and all in privity with them. If the purchase money exceeded the amount of the. mortgage debt, the petitioner would have been entitled to her dower in this surplus, provided the sale had been made after the death of her husband. The land, however, was not sold under the decree. Why it was not we do not know. The fact is apparent, that it remained unsold for more than five years after the decree was rendered, and when sold, was sold on a judgment which was subsequent in point of time to the lien of the mortgage.

Suppose the fund commissioners, instead of proceeding upon the mortgage, had prosecuted a common law suit upon their bond, had recovered judgment, and upon this judgment the land had been sold, would the purchaser have taken the land discharged of the dower interest of the widow ? It seems to me he would not. In such case, the only interest which he would acquire, would be the interest of the judgment debtor; not any interest, present or contingent, of the wife of the judgment debtor. A judicial sale of the real estate of the husband does not divest'the wife of her right of dower, unless that sale is in a case where she has herself, by her own act, divested herself of any interest which she may have had in the property. The hypothetical question here stated, does not, however, arise in this case, and it is not necessary to settle it.

In the case under consideration, Sloan recovered a judgment against Taylor, took out execution, had the same levied on the land in controversy, and the land was sold to the present defendant. Now there can be no' pretense, that under this sale the defendant acquired any right incompatible with the petitioner’s right of dower. This judgment had no relation to the mortgage. Nor was the sale, so far as appears, made with reference to that mortgage. It was an ordinary sale on execution. After this sale, had Taylor, or had a stranger satisfied the mortgage lien, there can be no doubt but that the petitioner would have been remitted to her right of dower. By her contract she could only be barred of that right, in case the property pledged was appropriated to the payment of the debt for which it was pledged, and there was but one way by which it could be regularly thus appropriated, and this was by a judicial proceeding upon the mortgage itself.

As before remarked, Taylor himself, or a stranger, might, after the sale of this land, have satisfied this mortgage, in which event the petitioner would have been entitled to dower. Even had the defendant himself, of his own mere motion, discharged the mortgage debt, the result would have been the same. Can the fact that the court of common pleas directed the mortgage to be satisfied from the purchase price of the land make any difference in the case ? It seems to a majority of the court that it cannot. That order was made for the benefit of the defendant. Without it, he might have been compelled to pay the price bid, while he would have acquired only a title incumbered by a mortgage. With it, he acquires a title disincumbered of the mortgage, but incumbered with the widow’s right of dower.

No question like the present has ever, within my recollection, been submitted to this court; nor do we find many, if any, analogous cases in the books of reports of other states.

In the case of St. Clair v. Morris, 9 Ohio Rep. 15, this court held, that where the wife joins her husband in a mortgage, containing a relinquishment of dower, a sale of the land by the administrator of the husband for the payment of his debts, extinguishes the right of dower, and transfers an unincumbered title to the purchaser. The case shows that the land sold for less than one half the debt secured by the mortgage. Under our law, the administrator may sell land incumbered by a mortgage, but the money received must first be appropriated to discharge the mortgage debt. The right of the administrator to sell does not interfere with, or in any way affect, the lien of the mortgagee. His specific lien is secured to him; and the sale by the administrator, would be as effectual to defeat the widow’s right of dower as would a sale, upon a judicial proceeding upon the mortgage itself.

The case of Hopkinson v. Burmstead, 8 Mass. Rep. 491, is one which is supposed to militate against the decision now made, but I do not see that it does. In that case, the equity of redemption to mortgaged premises had been sold at administrator’s sale, under the law of Massachusetts, and the court held, that the purchaser might redeem the land and hold it discharged of the widow’s dower, she having joined with her husband in the execution of the mortgage deed.

The cases of Harrison v. Eldridge, 2 Halstead’s Rep. 392, and Barber v. Parker, 17 Mass. Rep. 564, are cases which, if not directly in point, go strongly to sustain the decision now made. We put the case upon this ground: If the defendant had been a purchaser under the decree of foreclosure, he would so far have connected himself with the mortgage as to have been protected against the dower claim; but, inasmuch as he is a purchaser under an ordinary judgment, he is in no way connected with the mortgage, and can derive no protection from it.

The complainant is entitled to a decree.

Avery, J.,

dissenting. All the facts of this case, so far as made known to the court, are found briefly stated in the petition and answer. From them it appears that the fund commissioners of Miami county obtained a decree on their mortgage, in the court of common pleas of the county, at the May term of the court, 1842, against Jonah Taylor and the present petitioner, then bis wife. Pursuant to this decree, the land was appraised and advertised, and was afterwards offered at public sale, for the satisfaction of the mortgage debt; but how often, or when last offered, is not stated The officer made return, that the land was unsold for the want of bidders. At some subsequent term, but at what term does not appear, a judgment was recovered against the said Jonah Taylor, on the law side of the same court of common pleas-, in favor of John Sloan, Under an execution from this last named judgment, a sale of the land was effected; but when at the following term the sale was reported for confirmation, the court ordered the proceeds to be first applied to the discharge of the mortgage lien, and the balance, being only about sixty dollars, to be credited upon the judgment.

The sheriff, who, according to the statute, is a proper officer of the court to make sale of land in cases occurring either in equity or law, is required to proceed, both under a decree in chancery and a judgment at law, in precisely the same manner, to cause the premises, in either case; to be appraised by three -disinterested freeholders, who, upon actual view, make and return to him, under oath, and under hand and seal, an estimate of their value in money; but without taking notice, in either ■case, of any supposed or real incumbrance. He is to proceed, by virtue of the order or execution, to advertise the land, and afterwards to offer it for sale, but is not at liberty to sell at less than two-thirds of the appraised value. In the case under consideration, therefore, whether acting in pursuance of the decree or the judgment, the duty of the appraisers was the same, and the bid of the purchaser must, in either case, have been at least equal to two-thirds of the appraised value.

When the court were asked, at the return term, to confirm the proceedings, they seem to have regarded the sale of the land as upon a full consideration, and as passing all the title, of mortgagee as well as mortgagor. For they proceeded to determine the liens upon the proceeds of sale, and applied to the claim of the fund commissioners (as if the decree upon their docket bound the entire premises) nearly the whole amount of the money, at least the full sum that was found necessary for the discharge of that lien — leaving but a trifle to ■be paid upon the judgment at law. To this course the fund commissioners indeed could have no reason to object, because-provision was made for the payment of their demand in full. But why Taylor did not set up a claim, that nothing but the equity of redemption had been sold, and therefore that no part of the money brought into court ought tó be taken to extinguish the mortgage lien; or why Sloan did not, for the same reason, insist upon applying the proceeds to the satisfaction of Ms judgment, is not stated any where in the case.. Perhaps an attempt .of the kind, being contrary to the apparent understanding of the parties, would have given rise to a motion in behalf of the purchaser (the present defendant) for setting aside, instead of confirming the sale — and thus have left the land to-be again offered, either upon process under the decree above, or under both the decree and judgment.

Whatever result might have followed, if opposition had been made at the time, no objection, by either one of the parties interested, appears, in fact, to have been taken to the determination of the court. It was the understanding, probably, that the land had been sold at its full value; that the purchaser had the benefit of extinguishing, by means of the proceeds, the mortgage lien, and the mortgagor of applying the value of his equity of redemption, and that only, in part payment of another of his debts. There is nothing in the case to show, that the sale was for a less sum than the full value of the land, without incumbrance, nor to indicate the possibility of a different result, had the offer of sale been made under the decree instead of the judgment. If it had been so offered, the purchaser, without dispute, would then have held the land free from incumbrance of any kind; the husband, too, would have received all the benefit of the equity of redemption, leaving nothing on which a future dower claim could rest. Had the husband died before a sale, since the wife, under our law, takes dower in such case, (as indeed she does in all the husband’s equities in land, existing at the time of his death,) she would have had her dower, but only in the equity of redemption — in this case, an interest for life in one-third part of the sixty dollars, the proceeds of the equity.

It does not appear that the fund commissioners ever aban doned their claim upon the land, until they obtained full payment ; on the contrary, they had converted their mortgage into a higher security — a decree in chancery binding the land— and had proceeded to take out orders to sell it; and indeed it is not affirmatively shown, that there was no such order in the hands of the sheriff, at the time of the sale, though the probable inference is the other way, since the land is reported as sold on the execution at law.

There is no difficulty in determining where lies the clear justice of this case, though there may be, it is conceded, in settling upon the correct principles by which it is to be reached. It seems to be acknowledged, that no question like the present has ever before been submitted to this court. Nor is any authority found, going far enough to sustain the principles which have been adopted by a majority of the court to govern the ease, and which may prove hereafter, as well as now, to operate injuriously.

It may be admitted, as a general rule, that an execution issued upon a common judgment, when levied upon mortgaged premises, can sell only the equity of redemption; and that, to pass the whole title, it is usual, to sell under the decree upon the mortgage. But the rule cannot be held, I think, to be inflexible ; and the present might be supposed a proper case to support the position. The court of common pleas, having up on its docket a decree in chancery, ordering the sale, and also a judgment at law, which was a subsequent lien upon the land, treated the sale as if made under the decree, and applied the proceeds to the satisfaction of the decree; and this was done without any objection, so far as the evidence shows, from parties who must have had a much greater interest, apparently, to prevent such action of the court, than any which could be supposed. to exist in the petitioner. Is this whole proceeding of the court, touching the judgment upon its docket, under the circumstances, as they appear, and with the parties before them, to be regarded as of no effect whatever, and void — as passing no interest but the equity of redemption ? The wife had consented, by joining with her husband in the mortgage deed, that the loan from the fund commissioners should be a charge upon the land, to be fully paid, if the commissioners so desired, out of the land itself. Now., in point of fact, the loan was paid off with the proceeds of the sale of the land. For whose benefit was this done ? Was it to re-invest the husband with any title or interest in the land, or to secure to him the payment of the mortgage debt or any part of it ? The husband made no such claim, but suffered the payment to inure to the benefit of the purchaser and for his use, to extinguish the mortgage debt.

But though the husband, in his lifetime, never suspected that, by force of the proceedings, he had become assignee of the mortgagee, or that any interest remained in him after the sale; yet the petitioner, since his death, and as his widow, claims a right to take from the purchaser, one third of the land, and hold it during her lifetime. By what rule of law, as applicable to the case, can this demand be upheld ?

I suppose it to be now established, by the more recent decisions of this court, as between the parties to a mortgage, after forfeiture, or condition broken, that mortgagees have the legal itle to the land, and mortgagors only an equity — the equity of redemption. In Rands and wife v. Kendall, (15 Ohio Rep. 671,) the husband mortgaged before marriage, and afterwards, during the marriage, conveyed the equity of redemption by his deed alone — the execution by the wife being treated by the jourt as of no validity. The widow was in that case not allowed her dower; the court saying that, to entitle her to dow er, it was necessary that the husband should have been seized of a legal estate of inheritance, during coverture, or of an equitable interest at the time of his death.

In the case now under consideration, after the condition of the mortgage was broken, was there any seizin in the husband ? Was not the mortgagor’s interest a mere equity cf redemption, and all the legal estate then vested in the mortgagee ? If so, when after that period was there a seizin of the husband, or a re-vesting of the estate, so as to support the claim of dower ? I confess I cannot see any principle, according to which dower must be declared necessarily to attach.

Amongst the cases examined, there is one, decided by a court always held in respect, which appears to me to be very much in point, and an authority against the present demand of dower. The case is in the 8th Mass. Rep. 491, (Mary Hopkin v. Jeremiah Bumstead.) As it appears by the plea, on the 30th of April, 1806, Thomas Hopkin and his wife, the said Mary, mortgaged the premises to one Thomas Capen, for 3,000 dollars. Capen entered and became seized. After the death of the husband, the mortgagor died, and on the 9th of Nov., 1807, an administrator of his estate was appointed, who obtained from the court a license for the purpose, and sold the equity of redemption. This equity passed afterwards by conveyance, to Bumstead, the defendant. As the mortgage debt had not been paid, either by the mortgagor or by his administrator, Bumstead himself, on the 19th of September, 1810, paid the whole of it to Capen, the mortgagee. The widow, in her replication to this plea, stated, that, on the 19th of September, 1810, the mortgagee, having received payment of all the sums due on the mortgage, repaired to the office of the register of deeds, acknowledged in the margin of the record of said mortgage deed, full satisfaction and payment, quit-claimed all his right to the premises, and signed the discharge, and acknowl edgment; and that thereupon the mortgage deed was canceled and discharged, according to the law in such case provided.

It was contended there, upon the facts stated, that the title to dower had revived; but the court said, it would be singular, if the tenant, by paying the mortgage debt, to extinguish the only incumbrance known to him to exist, should, by that act, revive the claim to dower, which, as he was under no obligation, it could not be presumed he meant to do. And the court proceed to say, that the facts produce no such absurdity. When the tenant purchased the equity of redemption, it belonged to him to pay the money due on the mortgage, and thus rid his^ estate of that incumbrance. Having all the equitable interest in himself, when he had paid the money due by the mortgage, the legal estate followed the equitable interest, and he became seized of the whole fee simple. If this were not the plain, legal operation of the transaction, the law would construe the discharge of the mortgage by the mortgagee, a release of the-legal title by him to the tenant, who had become. lawfully possessed of the equitable interest, and from whom the consideration for that discharge flowed, rather than such a mischief should, follow; and the replication was adjudged bad.

In the case now before the court, the payment of the mortgage debt — not much less than the whole value of the land— was, in effect, made by the purchaser, and should operate,, therefore, in equity, to pass to him the mortgagee’s claim.

As the husband and wife have power, by their mortgage, to create an incumbrance, by means of which all the legal estate in the land may ultimately pass, I see no reason for holding, that the payment of the mortgage debt shall necessarily, in every case, extinguish the incumbrance, so as to revive the right of dower; or to decide that the remainder, after the legal title-has vested in'the mortgagee, can be made to pass in one mode; of proceeding only, to wit: by sale under a decree upon the mortgage. Indeed, this court has already decided that the widow’s right of dower may be extinguished in a case where-the sale was not effected by a proceeding upon the mortgage. In St. Clair v. Morris, (9 Ohio Rep. 18,) it was held that the dower of the widow was extinguished in land sold by the administrator of the mortgagor, though by that propeeding the debt was satisfied. It was there claimed that a payment, in any manner, of the mortgage money, extinguished the mortgage; and that the effect of the sale by the administrator was to ex tinguish the mortgage, and by so doing, to revive the right of •dower; but the court decided against the claim of the widow,, 'upon her petition for dower.

The supreme court of Massachusetts have decided another •case, upon principles in perfect harmony, as it seems to me, with those upon which they acted in the determination before referred to, in the 8th Mass. In this last case, (17 Mass. Rep. 564, Barker v. Barker and others,) cited by this court as an authority to some extent in point for their present decision, the claim of dower was resisted by the owner of the equity of redemption. The mortgagor’s equity had been sold at the suit of a creditor; after which, one who had been a tenant of the mortgagor, paid off the mortgage debt, and the mortgagee thereupon released his right to the mortgagor. There the purchaser of an equity of redemption claimed, that by the mere payment of the mortgage debt, he had become the owner of an unincumbered ’estate in fee simple, though he had neither paid, nor had any agency in paying the debt, or any part of it, and notwithstanding it had in fact been all paid by a former tenant •of the mortgagor. There was but slight equity in such a defense against the widow’s claim of dower. If the debt had been paid off by the husband, in his lifetime, or for his benefit, the owner of the equity could not, upon any just principle, be •thereby so invested with the legal title as to hold it free from the equities growing out of the payment.

The ease of Harrison v. Elridge, (2 Halstead 392,) is also referred to. That was an action at law, brought by the widow to recover dower. The mortgagees had previously instituted proceedings at law upon their claims, obtained judgment, levied execution upon the land, and sold it. The claim •of dower was resisted by the purchaser under execution, but the court allowed the widow her dower, deciding that the state ■of facts would not constitute a bar to her claim. But that case differs in its facts from the present, and lacks, as will be seen, ■several important features to be found in this. It cannot, therefore, I think, be considered an authority very much in point. It was decided by the court of New Jersey, in 1801, Kinsey. C. J,, dissenting and denying the demandant’s right to dower

In our practice, authorized by express statute, instead of pursuing the remedy by a writ of dower at law, the widow files her petition in chancery, and the court on hearing, it is provided shall “ render such decree in the premises as to them shall appear just and consistent with the rights of all the parties interested therein.” On such hearing, what objection can there be to an inquiry into the transaction by which the sale was effected ? If through fraud or any improper act the wife has lost her right of dower, let the proof, as in other cases, .show the fact, and, in such case, let her be restored to all her rights. There is no pretense here that any such proof exists.

It is without doubt that the husband and wife, by their joint act and consent, placed an incumbrance upon the land. As it turned out, there was at the sale but a small sum left, after discharging the incumbrance; and the mortgagee’s claim was paid, not out of the husband’s separate funds, but by a forced sale of the land. Upon such facts, I cannot see that there is any right of dower left; at all events, the largest bona fide claim would seem to be for dower, subject to the mortgage. I think the bill should be dismissed.


author: Avert, J.-

text:
    Christian Rohrer v. George and Christopher Morningstar.
    In a case upon a joint contract, where one of the defendants interposes the plea of infancy, the court may permit the jury to pass upon that issue,'and if it is found for the defendant, may allow him to be examined as a witness.
    The rule that a party to a negotiable instrument is not a .competent .witness to impeach the instrument, is not applicable, unless the instrument be negotiated before it falls due.
    Where there are several issues, one of which is upon the plea of infancy, and that is found for the defendant, it disposes of the whole case, and entitles the defendant toa judgment; and the jury need not pass upon the other issues.

      This is a writ of error to the Court of Common Pleas of Montgomery county.
    The action below was debt, upon a joint promissory note, under seal, for $800, signed by George and Christopher Morningstar, made payable to C. C. Emerick, and by him indorsed to the plaintiff when it was over-due.
    The declaration contained a special and the common counts.
    The defendants severed in their pleas.
    Christopher Morningstar pleaded,
    1. The general issue.
    2. Infancy.
    3. Want of consideration.
    4. That the note was obtained by fraud, and averring the facts.
    5. Fraud, without stating the facts.
    The replications were,
    1. A traverse of the second plea and issue.
    2. Acknowledgment of liability after the defendant came of age.
    3. A traverse of the third plea and issue.
    4. After a demurrer to the fourth plea had been overruled, a traverse and issue. -
    5. A traverse of the fifth plea.
    The rejoinder took issue upon the second replication.
    The issues as to George Morningstar were the same, except as to the plea of infancy.
    The case went down to a jury, and the testimony being closed, the defendants moved that the jury be directed to pass upon the issue joined by the replications to the plea of infancy, to enable Christopher to testify in the case, should the verdict be found in his favor. The court so directed the jury — a verdict was rendered for the defendant, and thereupon he was examined as a witness, and gave testimony tending to prove fraud in obtaining the note, and want of consideration.

      P. P. Lowe, M. J. Forsythe and Q. L. Vallandigham, foi plaintiff in error,
    cited these authorities:
    1. As to the point made, that the jury did not find upon all the issues joined between the plaintiff and Christopher Morningstar : Powell v. Harter, 5 Ohio Rep. 259; Headly v. Roby, 6 Ohio Rep. 521; Hewson v. Saffin, 7 Ohio Rep. 232; Clark v. Irvin, 9 Ohio Rep. 131; 4 Ohio Rep. 187; 5 Ohio Rep. 227.
    2. As to the power of the court to' direct the jury to pass upon the question of infancy, separately, for the purpose indicated by the defendant: Peake’s Ev. 161; Phil. Ev. 74; Stark. Ev. 581; 1 Greenl. Ev. 401; Raven v. Dunning, 3 Esp. N. P. Rep. 25; Emmet v. Butler, 7 Taunt. Rep. 599 ; 1 Wend. Rep. 119; 4 Wend. Rep. 456; 3 Campb. Rep. 283.
    3. As to the competency of Christopher Morningstar, as a witness, to impeach a note to which he was a party: Walton v. Shelley, 1 T. Rep. 296; 1 Greenl. Ev. 430; Bent v. Baker, 3 T. Rep. 27; Rich v. Topping, 1 Esp. Rep. 177; Peake’s Rep. 6, 40, 52, 116; Jordain v. Lashbrook, 7 T. Rep. 599; Bank W. S. v. Dunn, 6 Peters’ Rep. 51; Bank of Metropolis v. Jones, 8 Peters’ 12; Scott v. Lloyd, 12 Peters’ 149; Henderson v. Anderson, 3 Howard’s Rep. 73; Smith v. Spader, 4 Howard’s Rep. 404; 11 Peters’ Rep. 86; Taylor v. Luther, 2 Sum. Rep. 235; Carpenter v. Frazer, 2 McLean’s Rep. 244; Winton v. Laidler, 3 John. Ch. Rep. 185; Wilkie v. Roosevelt, Ibid. 206; Coleman v. Wise, 2 John. Rep. 165; Woodhull v. Holmes, 10 John. Rep. 230; Mann v. Swann, 14 John. Rep. 270; Baker v. Arnold, 1 Caines’ Rep. 257; 4 Mass. Rep. 417; Stone v. Vance, 6 Ohio Rep. 246; Treon v. Brown, 14 Ohio Rep. 483; Bodkins v. Taylor, Ib. 489; 1 N. H. Rep. 60; 2 N. H. Rep. 212; 5 N. H. Rep. 187; 4 Greenl. Rep. 191; 5 Greenl. Rep. 374; 10 Martin’s Rep. 18; 5 Martin’s Rep. N. S. 139; 2 Vermont Rep. 541.

      Lord Walker, and Swan Sp Andrews, for defendants,
    cited the following authorities:
    As to the second point made by the plaintiff: Milne v. Huber, 3 McLean’s Rep. 212; 1 Peters’ Rep. 80; 3 Esp. Rep. 76; 5 Esp. 47; 4 Taun. Rep. 468; 1 Saun. Rep. 207, note 1; 1 Ch. Pl. 8 Amer. ed. 44, 45; 1 Greenl. Ev. sec. 356; Graham’s Prac. 609; 12 East’s Rep. 454; Waight v. Powlin, R. & M. Rep. 128; Child v. Chamberlin, 6 Car. & P. Rep. 213; 3 Car. & P. Rep. 596; Brown v. Burns, 8 Miss Rep. 211; 2 Stark. Ev. 766; 1 Phil. Ev. 73; Gibb’s Ev. 117 Bull. N. P. 295; 1 Hale 307; 6 Birney’s Rep. 319; 1 Root’s Rep. 489; 8 Serg. & Watt’s Rep. 71; 1 Greenl. Ev. § 358; 4 Wash. C. C. Rep. 79; 15 John. Rep. 223; 7 Ohio Rep. 1st part, 98; 6 Miss. Rep. 211; U. S. Dig. Sup., p. 967, sec. 212; Schermerhorn v. Schermerhorn, 1 Wend. Rep. 119; Bates v. Russell, 1 Mood. & Mal. Rep. 332; Affello v. Fourdriner, 6 Bing. Rep. 306; Phil. Ev., p. 145, note 134; Kimball v. Sampson, 2 Verm. Rep. 138; Brady v. Neal, 16 Pick. Rep. 501; Blake v. Ladd, 10 N. H. Rep. 190; Essex Bank v. Rix, Ibid. 201; Brooks v. McKinney, 4 Scam. Rep. 309; Burns v. Barber, 1 Gil. Rep. 401.
    As to third point: United States v. Leffler, 11 Peters’ Rep. 86; Scott v. Lloyd, 12 Peters 149; 5 Cowen’s Rep. 23, 153; 3 Wend. Rep. 415; Townsend v. Bush, 1 Conn. Rep. 260; 2 Yerger’s Rep. 35; Taylor v. Beck, 3 Rand. Rep. 316; Ringgold v. Tyson, 3 H. & J. Rep. 172; 2 Harrison’s Rep. 192; Todd v. Stafford, 1 Stewart’s Rep. 199; 11 N. Hamp. Rep. 180; 1 Smith’s Leading Cases 88; Law Lib. 34; Thayer v. Crossman, 1 Met. Rep. 416; Baird v. Cochran, 4 Serg. & Rawle’s Rep. 397; Park v. Smith, 4 Serg. & Watt’s Rep. 287; Darling v. Marsh, 9 Shep. Rep. 184; 1 Met. Rep. 428; 3 Mass. Rep. 82; 5 Mass. Rep. 261; 7 Ohio Rep. 116; Corman v. White, 4 Hamp. Rep. 301; 4 How. U. S. Rep. 419.
   Avert, J.-

When this cause was brought on for trial in the court of common pleas, a number of separate issues between the parties appeared on the record. Amongst them was one upon the plea of infancy, filed in behalf of Christopher Mor ■ ningstar, and another upon the plaintiff’s second replication, averring a subsequent promise by the infant after he became of age; our statute allowing, on leave given by the court, several replications to the plaintiffs, and several rejoinders to defendants. After the testimony upon the whole case on both sides was closed, the defendant, George Morningstar, moved for a separate verdict, on .the plea of infancy, put in by Christopher, and upon the replication of a subsequent.promise, for the purpose of using him as a witness, in case a verdict in his favor should be returned by the jury. The motion was granted by the court, and after a verdict was returned by the jury on the defense of infancy, in favor of Christopher, a judgment was rendered and he was permitted to appear and testify as a witness for George. It is alleged by the plaintiff that there was error in this proceeding on the part of the court, both in sending the cause to the jury and in allowing the party who had obtained a verdict, to become a witness.

Cases have not been found precisely like the present, either amongst the authorities cited by the counsel, or those which have come under the observation of the court; and of the numerous decisions .upon the subject, not all of.them, by any means, are found to be in harmony with each other. But there are established principles, and some reported decisions, bearing upon the questions involved, which have led the court to a determination of the case, that is to their own mind satisfactory.

Two issues were submitted to the jury in the court of common pleas, one confined to the infancy of the defendant, and the other to the promise alleged to have been made by him after he was of age.

When the pleadings assume the form which they took in this case, they may, it is true, .occasion greater delay and inconvenience than can ordinarily occur under the single plea of infancy. But if such an objection alone is to be deemed sufficient for denying the leave to take a separate verdict, the plaintiff having a right to reply a subsequent, promise, can put the two issues upon the record, and thus always defeat the effort to make a witness of the infant. The only question raised in the case by this branch of the pleadings, is in effect whether as to one of the defendants the action is barred by his infancy; and the inconvenience suggested as a consequence of granting the leave was properly regarded by the court as not a sufficient cause for refusing the motion.

This defense, upon which the jury were directed to pass, was •one which could operate only to the personal discharge of the party pleading it, and not in bar of the whole action. There was no denial by the infant of the execution of the contract on which the action was prosecuted, either in behalf of himself -or his co-defendant. And this defense, if successful, while it might entirely discharge him from all liability, and so deprive him of all actual interest in the controversy, instead of operating to the apparent benefit of the other defendant, might leave him to -pay, without aid or contribution, the whole of the judgment, should there be a recovery by the plaintiff.

The' plea of bankruptcy is of the same description with that •of infancy, a defense going merely to the personal discharge of the party relying upon it'; and when the certificate has been regularly obtained without fraud, it constitutes a perfect protection to the bankrupt, both against the demand and costs of the suit, and usually against all other claims growing out of ■that cause of action.

The plea of coverture also presents a defense of the same ■character, being personal in its results to the party pleading it.

Now as to these several persons, in an action on a contract in executing which they had united with others, when they are not named as defendants, or not served with process, and therefore not parties to the record, they are all competent witnesses for either party unless interested in the event of the suit. In the case of bankruptcy, when that ■ plea is put in, it is establisted, according to numerous authorities, and is the settled law in England as well as this country, that the plaintiff may enter a nolle prosequi as to the bankrupt, (who is thereby discharged from all liability upon the record,) and then proceed with his cause to trial and judgment against the remaining defendants Upon the trial against them, the bankrupt, if not shown by evidence to be interested, may be a witness for either party. In respect to the plea of infancy, however, the English rule, according to some of the authorities, has not been the same, but instead of allowing a nolle prosequi, has required the plaintiff to go out of court, and to commence his action anew against the adult defendants. Still such is not admitted to be, without dispute, the English rule. But should that rule, according to the better opinion, be found to prevail in the courts of England, it is certain that a different practice has been adopted in many of the courts of this country, one which is supported by apparently sound reasoning, and which is strictly analogous to the practice upon the plea of bankruptcy. Upon the subject of these personal defenses and the right of the plaintiff to enter a bolle prosequi in all of them, see Greenleaf’s Evidence, 2d edition, 424; Noke v. Ingham, 1 Wilson’s Rep. 89; 1 Tidd’s Prac. 682; 1 Saunders Rep. 207; Woodward v. Newhall, 1 Pick. Rep. 500; Hartness v. Thompson, 5 John. Rep. 160; Pell v. Pell, 20 Johns. Rep. 126; Miner v. Mechanics’ Bank of Alexandria, 1 Peters’ Rep. 74; Affalo v. Fourdriner et al., 6 Bing. Rep. 306.

The plaintiff in this case had the right, if he had chosen to exercise it, of entering a nolle prosequi as to Christopher Morningstar, after discovering the plea of infancy upon the record, instead of making up an issue upon that plea or upon the alleged subsequent promise. Had he done so, his cause could have proceeded against the remaining defendant without objection. Christopher Morningstar could then have been improved as a witness in behalf of George, unless disqualified by some liability created after he was of age.

The plaintiff, as it is believed, had the option to commence-in the first instance, against George, and omit the name of the infant; he had the privilege, after having commenced against both, upon finding a plea of infancy, to cease proceedings against the infant, and go on with his cause against the other. In either case, he could, by his own act, make the infant a competent witness for himself; and by the same act, the infant, in. either case, would become a competent witness for - the other defendant. Now, as a plaintiff has not; in a ease like this, the legal- right-.to judgment against the infant, and.as to him has-the privilege of discontinuing his suit without prejudice to himself; and then making .use of him as a witness, it would seem-that the defendant ought to have a corresponding privilege of removing the infant’s name from the record, for the purpose o£ using his testimony; especially when it can be done without the-violation of principle, and without- too great an interruption or inconvenience in the progress of the trial. It is the practice in actions for a tort, when there is no evidence against one of the defendants, to direct a separate verdict as to him, and upon the-return of a verdict in his fayor, to admit him as a competent witness for the other defendants. There the sole object-of taking a separate verdict is to render the defendant a competent witness. If the rights of the parties upon a plea of infancy filed,, be as above supposed, there might, in such case, exist the same reason for taking a separate verdict, as in an action of tort. No case, however, is found in the great number examined, where this has been done, except under some provision of a statute seeming to give countenance to it; as, for instance, where in aa action on a contract, a recovery has been authorized against a part of several defendants sued, and a recovery at the same time in favor of thp rest. In a case in 7th -Taun. 607, the counsel for part of the defendants moved that a verdict be taken for the bankrupt defendant, in order to make him an admissible witness, but Park, I., said that he did not feel warranted in establishing a new precedent in the ease. And perhaps it was once, and even after the time when the decision was made, generally held by the English courts, that upon a plea of per- ‘ sonaBprivilege, the defendants were not entitled to a separate verdict, for the purpose of qualifying the party whose discharge was sought, to become a witness. There is, however, a later case, Bate and another v. Russell and others, 22 Eng. C. L. Rep. 327, which is in principle like the one under consideration. The action was assumpsit against several defendants, and upon the plea of bankruptcy being pleaded by one of them, a motion was made for leave to take a separate verdict for him." The court decided in the case, that where a defendant put in a plea,' operating only in his personal discharge, a verdict might be taken for him on that plea, and he be then examined as a witness for his co-defendants; and the motion was granted. Park, J., saying, in allusion to certain former decisions, that those cases were no longer authorities directly in point; the bankrupt law, with reference to the costs, not being exactly what it had been.

Upon a view of the authorities, and the reason of the case, we are all of opinion, that in permitting a separate verdict to be taken in behalf of Christopher Morningstar, and then receiving him as a witness for George, the court of common pleas did not commit any error.

It is further urged for the plaintiff, that though the proceedings of the court of common pleas, in permitting the infant to testify, may not be held erroneous for the causes above considered ; yet there was error in admitting him as a witness, because his name appeared upon the note in suit, as one of the makers. A multitude of decisions are found upon the point thus raised, and many of them in direct conflict with others which had been made upon the same question. The reason for this last mentioned objection is not that the witness is interested, or that he is one of the parties upon the record; but that he is inadmissible on the grounds of public interest and the public convenience. These forbid a man, as it is said, to give testimony to invalidate an instrument designed to circulate as negotiable paper, after having lent his aid in giving it character and currency, by affix ing to it his own signature. The English judges, by their determination in Walton v. Shelley, in the king’s bench, exclud cd thq witness on principles of public policy; Lord Mansfield, in that case, declaring the rule to be, that no party who had signed a paper or deed should ever be permitted bo give testimony to invalidate the. instrument, because every man who is a party to an instrument gives credit to it. But the same court afterwards, in Jordain v. Lashbrooke, admitted him as competent to testify. The American courts have likewise decided •differently upon the question, some admitting, others rejecting the' witness. The rule of some of these courts, applicable to negotiable paper, excludes the witness only when the paper has been negotiated and put into circulation before its maturity. The cases and authorities upon the whole question are collected and referred to by the counsel in their several briefs. One important question upon the general subject discussed in the present case, has been already before this court, and settled in Treon v. Brown & Fuller, 14 O. R. 483. There the instru ments, the drafts in controversy, were made at Miamisburg, indorsed there by all the parties, and given to Brown & Co., the plaintiffs, who, after failing to obtain the money, and causing them to be protested, commenced a suit to recover the amount •of the drafts. Joseph Watson, who was an indorser, was offered as a witness upon the trial to prove them void, and defeat a recovery, but the court excluded the witness; and this decision afterwards, upon -a writ of error, was sustained. This decision •settles the law in Ohio, and excludes the witness whenever the •commercial paper has been negotiated in the course of business, and before it fell due ; and leaves for us, on this branch of the case, the single question, whether, to a negotiable security, if put into circulation, when over due and dishonored, the same rule is to be applied.

The case of The United States v. Leffler, 11 Peters 86, was upon a joint bond where one who was an obligor, but not a defendant, wras called and admitted as a competent witness. By the judge giving the opinion of the court, it is said, that the case in 6th Peters 51, Bank of the United States v. Dunn, decides that no man who was a party to a negotiable instrument should be permitted by his own testimony to invalidate it. That the principle settled by the court goeáyto the exclusion of such-evidence only in regard to negotiable instruments, upon the grounds of the currency given to them by the name of the witness called to impeach their validity, and extends not to any other case to which that reasoning does not apply.

Both in the case in 6th Peters, the leading case in the United States court, and in Walton v. Shelley, the negotiable paper to' which the rule was applied had come into the hands of the indorsee as an innocent holder, received in the regular course of business, and, as it is understood, before it was due. Upon the faith of such paper men of business are in the daily habit of dealing with confidence, and the public interest requiring that there should be such confidence, they are encouraged so to deal by the decisions of the courts, and by the law affording to them a peculiar protection. But this confidence is never reposed in negotiable paper over due, dishonored, as it is called. Whoever takes such paper, takes it marked with suspicion upon its face; the law withdraws from it the peculiar protection, and leaves it subject, in the language of the books, to all equities, in the hands of such a holder. There is good reason, then, that the holder of dishonored paper should not use for his protection, the shield provided for a different description of persons. In behalf of those who are supposed to be thrown off their guard by the apparent fairness of the transaction, an extraordinary rule is adopted, and to them it should be applied. But the holder of negotiable paper taken after due and dishonored, stands in a different situation; he took it to recover the amount under the-application of different rules both of law and evidence.

The plaintiff in this case took the obligation after it was due, and we are of the opinion, for that reason, that he is not entitled to exclude Christopher Morningstar, whose name is upon the instrument, from becoming a witness.for the other defendant.

This disposes of the main questions in controversy between-the parties. There are two or three other errors alluded to, they are however not regarded by the court of serious import.ance in the decision of the case.

It is said that all the issues made up between the plaintiff •and. Christopher Morningstar', the infant, have not been found by the jury.

To this it may be answered that the issue upon the defense •of’infancy being found in favor of the infant, necessarily concluded any other issue. It could be of no possible consequence for the jury to find whether the instrument was procured by fair or fraudulent means, upon good consideration or without any consideration. According to any state of facts, under the pleadings, the plaintiff could not recover.

To the objection that a new trial in the case might perhaps be granted after the infant’s testimony had been given, it-is sufficient to say, that the application for a new trial is to be addressed to the court. They would take care, in considering the motion as it respected the claim to a new trial whether against cne or the other of the defendents, to prevent the infant’s testimony from benefiting himself, and if the party should desire on that subject the supervision of the court of last resort, it could be secured by causing the testimony upon which the court below grants or refuses a new-trial, to appear upon the record.

It is further said that the plea’in bar in the case on the ground of fraud setting out the facts, is not a good plea, and that the demurrer taken to it ought to have been sustained.

The right to take advantage of the objection after verdiqt, and upon a writ of error, is secured to the party by our statute; .but the court upon an examination of the plea, do not regard it as defective upon the demurrer. The plea states a train of facts, and with sufficient formality, showing, if true, that the •obligation was procured by fraud.

It is further said that the weight of the evidence before the jury was against their verdict. We have drawn a different conclusion from the facts as shown in the bill of exceptions.

In the opinion of the court, none of the various errors assigned require a reversal of the judgment of the court of common pleas; and it is consequently affirmed.


author: Spalding, J.

text:
    Samuel Hammell v. Mary Hammell, and another.
    If there he no delivery of a deed, it will he inoperative to pass the legal title, and the grantor his remedy at law. But if the deed he recorded, and the grantee take possession under it, these facts, unexplained, will amount to a delivery
    This is a bill in chancery, reserved in Hamilton county.
    The complainant sets forth in his bill, that on or about the first day of July, A. D. 1886, he contracted to sell to his sons, John Hammell and William Hammell, a lot of land, with the improvements thereon, situated in Cincinnati, and being a part of lot number 230, described as follows, to-wit: Beginning at a point one hundred and thirty-five feet east of Race street, thence east on a line with Third street, twenty-five feet, thence north ninety-nine feet, thence west twenty-two feet, thence south ninety-nine feet to the place of begin ning.
    That said John and William agreed to pay for said premises, the sum of two thousand and five hundred dollars. That complainant, on the day and year aforesaid, executed a deed of the premises to said John and William, which said deed' was never delivered to them, but on the contrary has 'always been retained by complainant, to be delivered only on the payment of said purchase money and interest.
    That complainant caused the said» deed to be recorded, and paid fees for recording, intending thereby, not to deliver said deed to said John and William', but merely to preserve the evidence of said sale.
    That complainant has retained possession of the premises, and taken the rents and profits until a few months before the filing of his. bill, when, in the absence of complainant, the said William Hammell induced the tenant of complainant to give possession to him, the said William, without the knowledge or consent of complainant.
    That no part of the purchase money, has ever been paid, and the said John, being unable to pay, has conveyed to complainant, by deed, all right, interest, and claim which he had in the premises under said contract of sale.
    That subsequent 'to said change of possession, the said William has died, leaving one child, the defendant Samuel Hammell, his sole heir, and Mary Hammell, his widow, who are now in the receipt of the rents and profits of said premises.
    The prayer of the bill, is, that the moiety of said premises may be subjected to the payment of one half of the purchase money, or that the contract of sale be annulled, and for general relief.
    To this bill the infant defendant answers by his guardian ad litem, disclaiming any knowledge of the facts set forth therein, and invokes the aid of the court in the protection of his rights.

      Mary Hammell, the widow of William Hammell, also makes answer, denying, in general terms, the material allegations in the bill, and insists upon her right to dower in the premises.

      Storer & Gwynne, for complainant.

      Strait & Cox, for defendants.
   Spalding, J.

In the argument, counsel for complainant lay much stress upon the proposition that “ delivery is essential to the complete execution of a deed.”

Admit it: and admit farther, for the sake of the argument, that there was, in fact, no delivery of the deed by Samuel Hammell to his two sons, John and William, and what figure does this case make in a court of chancery ?

The deed has not taken effect for want of delivery; the complainant has, therefore, a good legal title to the land in controversy, and although out of possession, his remedy at law is entirely adequate.

. But the deed is made an exhibit in the case, and appears to have been recorded in the records of Hamilton county, on the 29th of April, 1889. This fact, in connection with one other important fact disclosed by the testimony, to-wit: that William Hammell died in possession of thé premises, in the fall of 1847, having a short time before obtained the possession by means of an action of forcible detainer, the law will construe as being tantamount to delivery, in the absence of explanatory proof on the part of the complainant. And this, too, upon the admission that the grantor alone procured the deed to be recorded.

There is no testimony, however, which sustains the allegation in the bill, that complainant, of his own volition, and at his own cost, and for the sole purpose of. preserving the evidence of the contract of sale, procured the deed to be recorded.

It does appear, indeed, from the deposition of H. P. Gaines, that at the time the deed was acknowledged before him, on the first day of July, 1836, the grantees were not present, and it was not then delivered, to his knowledge. The witness goes on to say that it was by his advice the deed was not delivered, as the grantor had told him that the grantees should not have the property until they paid him the twenty-five hundred dollars.

He further says that he told the grantor to retain the deed and that, if he did so, the property would remain his, notwithstanding the deed, even though he caused it to be recorded.

This same witness, however, in another part of the same deposition, says, that some time during the previous year, (1848,) he was employed by Samuel Hammell, the grantor, to institute proceedings, in forcible entry and detainer, to obtain possession of said house and lot from the widow of his son William, when, “ to his surprise,” said Samuel then held said deed in his possession.

For anything that appears in the evidence, Samuel Hammell may have received from his son William, who is proved to have been an engineer in Cincinnati, and an industrious man, a full consideration for the one half of said property, and may have made actual delivery of the deed to him at some time anterior to the day on which it was entered in the office for record.

We have no means of knowing who caused the deed to be recorded, and in the absence of proof, will presume it was done with the assent of the grantee, and for his benefit.

The complainant says in his bill, that he caused the deed to be placed on record, not to pass the title, or perpetuate evidence of the same, but merely “ to preserve the evidence of said sale.',

Of what sale ? Most undoubtedly he alludes to the alleged sale of the premises to his two sons, John and William, for the sum of twenty-five hundred dollars, as set forth in his bill.

But we nowhere find his allegation supported by proof. On the contrary, John Hammell, who is made a witness by complainant, swears that there never was any agreement between himself, and his brother William, and their father, as to the payment of any money for said premises.

For what purpose, then, was the deed made ? As William Hammell was dead before this suit was instituted, and died in possession of the premises, with a deed on record conveying to him one half of the property for a consideration expressed in the instrument to have been received to the satisfaction of the grantor, it is charitable to conclude that the transaction was bona fide, and that, so far as regards a moiety of the premises, the grantor has received his pay. At all events, the testimony submitted to our consideration by the complainant, has failed to satisfy our minds that it will be equitable to take from the widow and the orphan that which was never required at the hands of the husband and the father while he had breath to proclaim his rights. ■

The hill will he dismissed.