source: Caselaw Access Project

author: Judge Burnet :

license: Public Domain

text:
    *[TAe following cases, decided upon the circuit, were not received by the Reporter in time to be inserted in their proper place.]

    Taylor and Morgan v. Galloway and others.
    Power given by will to executors to sell land may be executed by one executor, if one only accept the office under the will.
    • Such power does not authorize an exchange or barter of lands, but a sale for money only.
    This was a bill in chancery, prosecuted in the common pleas of ■ Greene county, and carried into the Supreme Court by appeal, 'where it was decided at May term, 1822, by Judges Pease and Bur-net. The case, so far as it involved the points decided, is stated fully in the opinion of the court by Judge Burnet, and need not be .repeated.
   The opinion of the court, by

Judge Burnet :

The decree that ought to be rendered in this case may be determined by the solution of two questions.

1. Was the acting executor, James Williams, authorized to sell the land without the concurrence of William Edmonds, who was-named in the will as a co-executor ?

2. If he was, has he made such a sale to the complainant, Taylor, as is authorized by the will ?

The authority given by the will is in the following words: “ All the rest of my estate I leave to be sold, as my executors hereafter named, shall think best; and the moneys arising from such sale, I give unto my infant daughter, Susanna Eliza Green, to her and her heirs forever.”

William Edmonds and James Williams were constituted executors. Williams obtained probate, and undertook the duties of executor alone. Edmonds, who did not join in the probate, was afterward appointed guardian to the infant children.

The contract entered into by Williams, the acting executor, with the complainant, Taylor, authorized the latter to change the locations, to redeem such parts of the land as had been sold for taxes,, and to do whatever might be necessary to secure the property and' perfect the title ; in consideration of which, Taylor was to have an equal moiety of the land.

The first question that arises, is, was Williams alone authorized to sell the land ?

It is manifest that the will gives to the executors a naked power *not coupled with an interest. If land be devised to executors to be sold, or if it be devised to be sold by executors for the payment of debts, in either ease the power is said to be coupled with an interest, and the survivor may execute the trust, because the act of God shall not prejudice; but if one of the executors refuse to act (the devise being to them by name), the other, it would seem, at common law, can not sell, because it is a joint confidence and must be jointly exercised. This principle has been changed by 21 H. 8, which authorizes a sale by those who consent to act. Swinb. Wills, 406-408.

If land be devised to be sold by executors, this is a naked authority, not coupled with an interest, and can not be executed by a survivor. Swinb. on Wills, 407. If the devise be, that the land be sold by the executors, not naming them, although the power be not coupled with an interest, it seems that it shall survive; because the power being to the executors generally, those who execute the will are legally the executors, and, therefore, may execute-all the powers given to the executors as such. Co. Lit. 112, 113 ; Cro. Eliz. 26.

But if a devise be that A. and B., who are constituted executors, sell the land, although they may legally sell without taking on themselves the duty of executing the will, yet if one should die, the survivor can not act, because the power must be pursued strictly, and it being given to two jointly, it is determined by the death of one of 'them. The case of Bonefant, Cro. Eliz. 80, contains a different principle, but that ease does not seem to be supported by the authorities.

In the case before us, the devise is that the executors may sell. "Williams, therefore, having proved the will, and taken on himself the office of executor, was thereby vested with all the power given to the executors as such, and consequently had a right to make the sale.

But the most important question is, whether the contract made with the complainant, Taylor, be such a sale as was contemplated or authorized by the will.

The manifest design of the testator was to convert the whole of his estate into money, for the benefit of his infant daughter. The trustees are not authorized to exchange or incumber the land or to dispose of any part of it, to perfect a title to the residue. The power is to sell, and the sale must be for money.

It may be said that the contract with Taylor was a sale, and that he is a purchaser for a valuable consideration. This is technically true, as it would have been if the executor had conveyed to him a *moiety of the land as a reward for effecting a sale of the other moiety. But it is presumed that such a sale would not be valid, as it would defeat the object of the testator.

The power must be strictly pursued, and must be executed according to the manifest intent of the testator.

If the trustee could incumber the estate, by granting an equitable claim to an undivided moiety, for the purpose of procuring a removal of the entries and a completion of the title tp the residue, he might, on the same principle, exchange it for land in Virginia, and give a moiety of it to the agent who should negotiate the exchange.

The trust delegated by the will is personal, and can not be transferred. As Williams voluntarily took on himself the office of trustee, it was his duty to execute the trust in person, and to do everything that might be necessary to enable him to do so. He certainly had no right to give away any part of the land, to procure a third person to perform services that he was bound to perform himself. If such a discretion exist, it is impossible to say how far it extends, or by what rule it shall be limited. It would vest in the trustee the same power, and the same control over the property, that the testator had in his life. This difficulty can be obviated only by holding the executor to a strict execution of the power, which was, in the present case, to sell the land for money, and at a fair price. As the contract on which the bill is founded, was not such a sale, we feel bound to say that it was not authorized by the will, and that it vested no right in the complainant. The circumstance, that the guardian joined in the contract, can not alter the ease, as he certainly had no power to sell the real estate of his ward.

It being ascertained that the complainant acquired no title, either legal or equitable, to the land in question, by the contract under which he claims, it is unnecessary to look into the title of the defendants.

Bill dismissed.


text:
    *Anonymous.
    Bill in equity to foreclose the equity of redemption in mortgaged premises may be sustained, notwithstanding the statutory legal remedy by scire facias.

    Upon such hill the mortgaged premises must he valued, agreeably to the provisions of the law regulating judgments and executions, and the court will direct a sale, and not a foreclosure, if two-thirds of the valuation amounts to more than the debt.
    Such sale will he directed on the same principles that real estate is sold, under the act regulating judgments and executions.
   A writ of error was allowed by Judge McLean to remove the record of a final decree, rendered by the court of common pleas in Huron county, on a bill to foreclose an equity of redemption. The principal errors assigned were : 1. That such a bill could not be sustained, because there was an adequate remedy at law, under the act providing for the recovery of money secured by •mortgage. 2. That the court below had directed the mortgaged premises to be sold without valuation.

The cause having been argued by counsel, in Huron county, was taken under advisement, and submitted to the court in Trumbull county, at the term in 1821, all the judges being present.

After mature consideration, the following points were unanimously decided: 1. That the court may sustain bills of this' description, notwithstanding the statute allowing proceedings by scire facias. 2. That in every such case the laws of the state require that the mortgaged premises be appraised, and that they be not sold at less than two-thirds of the appraised value.

For the regulation of the practice in similar cases, the court established the following rule: That no final decree be entered on a bill to foreclose an equity of redemption or to effect a sale of a mortgaged premises, until the court shall have caused an appraisement to be made agreeably to the provision of the act regulating-judgments and executions; and that if, on the return of the appraisement, it shall appear that the premises, at two-thirds of the valuation, do not exceed the sum due on the mortgage, the court may decree a foreclosure; but if the mortgaged premises, estimated at two-thirds of the appraisement, shall exceed the amount due on the mortgage, and a decree be rendered for the complainant, a sale shall be directed on the principles of the act regulating judgments and executions.


text:
    *Smith v. Parsons.
    State insolvent laws discharging debtors from the debt upon surrendering up all their property, valid as to contracts made between citizens of the same state within its jurisdiction after the law was enacted and in force.
    This cause was decided by Judges Pease, Hitchcock, and Bur-net, in Ross county, November, 1822. The whole case is fully stated in the opinion of the court, by Judge Burnet.
   Opinion of the court, by

Judge Burnet :

This cause is presented for the opinion of the court, on the following agreed case:

“The suit is brought on promissory notes, executed by defendant •when a resident and citizen of the State of Maryland. The. defendant pleads his discharge'under the bankrupt law of that state. At the time the notes were executed, both plaintiff and defendant were citizens of Maryland. The bankrupt laws were enacted prior to the execution of the notes. The defendant is & regular certificated bankrupt, or insolvent, under the laws of Maryland, which are a full discharge of all debts returned. This debt was returned. All defendant’s property was duly assigned to trustees in Maryland.”

Before an attempt is made to investigate the principles presented by this case, it is necessary to state that this court recognizes the constitutional right of the Supreme Court of the United States to expound the constitution, and to settle its import, wherever a doubt arises; and that it is our duty implicitly to receive their construction as a rule of decision, in all cases in which it applies. That tribunal having decided that a state has authority to pass a bankrupt law, provided such law does not impair the obligation of contracts within the meaning of the constitution, and provided there be no act of Congress in force to establish a uniform system of bankruptcy, conflicting with such law, our inquiry may be limited to the single question, whether the law of Maryland did or did not, in the sense of the constitution, impair the obligation- of the contract on which the present suit is founded.

This case is clearly distinguishable from that of Sturges v. Crowninshield, and can not be considered as determined by it. In that case, the notes were given prior to the passage of the law. In this case, the law was in force at the time the notes were executed. By that case it was decided that a legislative act can not affect a. contract *made before its execution, so as to discharge a party from its obligation, which would have been the consequence had the plea been sustained. In this case it is to be decided whether-a law in force at the time of the execution of a contract, can operate on that contract, so as to relieve a party from the performance of its stipulations. The case of McMillan v. McNeil is confidently relied on as settling this question; but that case appears to be as clearly distinguishable from this as the case of Sturges v. Crowninshield, as will appear by a comparison of facts. In that case the parlies were both residents of the State of South Carolina, where the cause of action arose. There was no bankrupt. law in force in that state. The defendant, Mr. McMillan, removed to Louisiana, where he obtained the benefit of the eessiobonorum. He had also obtained a certificate under the bankrupt law of England ; and, being sued in the District Court for the District of Louisiana, pleaded those certificates in bar of the action. The contract was made under the laws of one state ; the discharge was obtained under the laws of a different state. The law of South Carolina governed the contract — the laws of Great Britain and of Louisiana were relied on to discharge it. In the present case, the parties were residents of Maryland; the contract was made, and the certificate was obtained, under a law of that state, in force before and at the date of the contract. From this comparison, it appears that the cases are distinguishable in several important facts. Yet if it were cearly discernible, that the Supreme Court intended to embrace within the scope of their opinion, a case situate precisely like the present, this court would receive it as their guide ; they would not feel themselves at liberty to investigate its correctness, or to question its authority, but would at once render judgment in favor of the plaintiff. But such does not appear, from the opinion delivered by the chief justice, to have been their intention. He decides “ that the case was not distinguishable in principle from the preceding case of Sturges v. Crowninshield; that the circumstance of the state law, under which the debt was attempted to be discharged, having been passed before the debt was contracted, made no difference in the application of the principle.” The reason is not stated, but we can be at no loss to discover it A law of Louisiana, or a statute of Great Britain, could have no influence on a contract made in Charleston, under the laws of South Carolina. The parties can not be presumed to have had a knowledge of their existence, much less to have agreed that they should form a rule for the construction and government of their contract. *They could not, therefore, under any circumstances, affect it, or the rights of the parties under it; and consequently it made no difference whether they were passed before or after the contract, for in neither case could they influence it. Well, then, might it be said that tho circumstances of the law having been passed before the debt was ■contracted, made no difference. This is understood as applying strictly to the case then before the court; and being so applied, who can question its correctness? If the law, under no circumstances could bear on the contract, the fact of its prior existence ■ could give it no other or greater force than would be ascribed to it, had it been enacted after the date of the contracts; and consequently, the distinguishing fact relied on in this case, could not in that case make a difference in the application of the principle.

From this view of the subject, the question presented in the case before us seems to be open, and the court at liberty to ex.amine and decide what effect the bankrupt law of Maryland has on the notes on which the present suit is brought.

As was observed in the argument, contracts are either expressed or implied, or part expressed and part implied. A provision created by law for the government or construction of all contracts made under it, need not be recited or expressly referred to in a contract; it will be considered as implied, and have the same force and effect as if it were set out. Should a contract contain a clause, declaring it null and void on the happening of a particular event, as the insolvency of either party, would such a clause be void, or would it be considered as impairing the obligation of the contract? If not, would the same provision in a law, made applicable to all subsequent contracts, so as to form a part of them, be considered as impairing their obligation ? It is believed not. Many cases might be cited in which the law forms a material part of the contract, although neither recited nor even referred to; as when one person engages to labor for another, without a promise or stipulation of payment. If payment be refused and suit be brought, courts do not hesitate to say that by the law in force when the engagement was made, the laborer was entitled to the value of his labor — -that the contract must be construed by the law — that the law must be taken as forming a part of the contract — and, therefore, that the plaintiff shall recover. In such a case, the obligation to pay is entirely created by the law, and the recovery is had on the ground that the law forms a part of the contract; for on no other principle would the defendant be held liable.

Although a state legislature can not pass laws impairing contracts, *yet they may regulate them, prescribe their form, their effect, and the mode of their discharge, and every contract is supposed to be made with reference to those laws. Thus if a ■contract be made for the payment of money, without designating ihe time of payment, the law says it shall be payable on demand. If it fixes the day of payment, but is silent on the subject of interest, interest shall attach from the day the money becomes due. In these, and in many other cases, the obligation is created by law. In other instances it is discharged by law; as, if a contract be,in whole or in part, contrary to a statute, it is void in toto. If the condition of a bond becomes impossible, by the act of God, by the act of the party, or by operation of law, the bond is void. If a contract be founded in usury, or given for a gambling consideration, or for a consideration malum in se, or if it be contrary to good’ policy, it is void. In all these cases, the intention of the parties-is controlled and restrained by the law; yet it is not considered-that the contracts are unconstitutionally impaired. On the same-principles, may’not the bankrupt law of Maryland be considered as controlling the obligation of the contract on which the present suit is founded.

It is admitted that the states have not given up the entire power of legislating on the subject of contracts. They may, for instance, pass laws preventing usury, and fixing the interest of money. Should such a law enact that a lender may receive from a borrower six per cent, interest and no more, and should an after contract contain an express promise to pay ten per cent., such contract, although voluntarily made for the payment of a specific sum, would be void in part, and, in many of the states, the obligatiou of the contract would be entirely destro}Ted, and the obligor released from the payment of both principal and interest. Independent of statute law, every person has the same right to contract for ten per cent, interest, that he has for the payment of the-principal sum; and if the law limiting interest at six percent., can absolve him from the payment of the excess, and even of the-principal itself, is not the obligation of the contract as clearly affected, as it is in the case before us ? It is admitted that such a law, applied to contracts made prior to its enactment, would be unconstitutional; but not so when applied to subsequent contracts. Why, it may be asked, docs this distinction exist, and why is not this class of laws considered void on constitutional grounds?' They evidently affect contracts voluntarily made on subjects about which the parties had a right to contract. One reason only can be assigned. The legislature has a right, by law, *to regulate contracts, to determine their effect, and point out the mode of their discharge. These laws are applied to all subsequent engagements, and fix the rights of the parties at the very instant the* •contract is closed, so that the contract, in its inception,receives an impress from the law, and the effect of the law being co-existént with the contract, can never be said to alter or impair it. It continues what it was at its commencement; and it is more correct to say that the law has in part made the contract, than that it has changed it. If an obligor be entirely discharged from a contract, by the operation of .a statute against usury, and the constitution be not violated, it would be difficult to assign a reason why that instrument should be violated by a bankrupt law acting prospectively and pointing out a state of things, on the happening of which a contract shall cease to have effect, or shall be considered as discharged. If, however, an attempt should be made to give these laws a retrospective effect, the constitutional objection would arise in all its force; for although the legislature may regulate contracts to be made in future, it can not disturb those previously made, or unsettle rights previously vested; and this is the distinction that ought to determine the character' of the law of Maryland. On any other view of the question, the power of the states to legislate on the subject of contracts will be materially impaired; for if it be admitted that a bankrupt law, operating on an after made contract in the manner prescribed and as was understood by the parties, be unconstitutional, or if contracts be not made with reference to existing laws, so as to imply an assent to their provisions, it must follow that statutes of limitation, statutes against usury, gambling, sale of offices, frauds, and perjuries, and the like, must be void, because they impair the obligation of contracts not prohibited by the constitution, and which would have been legally binding had not those statutes been made.

It can not be said that bankrupt laws go further than the statute just mentioned. They require all contracts to contain, by implication at least, a condition that they shall be discharged on the happening of a particular contingency, which would not have affected the contract had there been no statute on the subject. The Supreme Court of the United States decided that the states may legislate on the' subject of contracts. They originally possessed that power, and have conferred it on the general government only in part. They, therefore, possess a concurrent power, and may exercise it as freely as the general government. They may pass a bankrupt law, with this qualification, that so far as it conflicts with *an act of Congress to establish a uniform system of bankruptcy, it must yield. But the general government having no law on the subject, there appears to be no restraint on the states. By a power derived from the people, Congress may establish a uniform system of bankruptcy throughout the United States. The states, by a power also derived from the people, may pass bankrupt laws (qualified as above), operating within their respective territories. These powers being received from the same source, and differing only in the extent and limits of their operation, would be considered, at first view, as conferring on each equal rights; and it is the opinion of some intelligent jurists, that when Congress have no law on the subject, the states may legislate to the same extent that Congress have a right to do. But as we only ■claim for the states the power of discharging, by the operation of their bankrupt laws, contracts entered into subsequently to their passage, and within the state in which the law has effect, and admit that if those laws were applied to pre-existing contracts, ■or to contracts made in a different state, they would impair their obligation. It is not within our province to examine that opinion.

It is asked if a law releasing a contracting party from the performance of his stipulation be not a law impairing the obligation of contracts, what is the definition of such a law? It may be answered, when a law by which the parties to a contract are not bound, or which can not be considered as forming a part of the contract, or as creating a rule for its construction, is applied in its discharge, it may be said to impair its obligation in the sense of the constitution.

It was contended by counsel that, although the contract between these parties was made with a knowledge of the law of Maryland, it was also made with a knowledge that the law was unconstitutional, and that the contract could not be affected by it. This is drawing a conclusion from premises that take for granted the point in controversy. It is arguing from the contract to the law, and determining the validity of the latter by the apparent intention of the former. When the law in question was enacted, it interfered with no contract, every contract then in existence being placed beyond its operation. As to them, therefore, it was unobjectionable. It had no operation on them prohibited by the constitution. Consequently, persons then about to contract could not know the law as one impairing the obligation of contracts in the sense of the constitution, but as an act regulating future contracts,, and pointing out a mode by which they might be discharged. If the law, at its inception, *had no improper bearing on contracts, and was free from constitutional .objections, the parties to-an after contract could not change its nature, and convert it into an unconstitutional act. This would be enabling them to give a new character to an existing statute, and virtually to contract away the power of the legislature. Contracts can not change the character of laws ; they are subordinate to them. Instead of determining the validity of the statute by reference to the alleged intention of the parties to the notes in question, we must fix the legal intent of the parties, as well as the nature and extent of the obligation of the notes, by a reference to the statutes. The statute-must be tested by the constitution applied to it at the moment it took effect, and with reference to the operation it then might have on rights vested by existing contracts, and if it be found then free from constitutional objection, parties about to contract can not know it to be unconstitutional.

In the case of Melon v. Fitzjames, 1 Bos. & Pul. 142, in which it was determined that a contract made in France should be construed by the laws of that country, and that the defendant was not bound by the mere words of the contract, but might show how it would be considered in France, Justice Rooke says : “ If the law of France has said that a person shall not he liable on such a contract, it is the same as if the law of France had been inserted in the contract." The plain import of this language is, that contracts must be expounded according to the laws in force at the time they were made; and that the parties are as much bound by a provision contained in a law, as if that provision had been inserted in, and formed a part of the contract.

On the whole, from the view now taken of the subject, we are-led to conclude that the case before us differs materially from the cases of Sturgis v. Crowninshield and McMillan v. McNeil, and that it can not be considered as settled by their authority — that this court, therefore, must decide it according to their own construction of the constitution. That the statute of Maryland, being confined in its operation to after contracts made within that state, does not interfere with the constitution, and that the defendant was, by the operation of that statute, discharged from the payment, of the notes on which the present suit is founded.


author: By the Court:

text:
    *William Jackman v. J. H. Hallock and others.

      Vendor's Lien — Execution against Lands on Judgment of Justice.

    'The assignee of a note given for purchase money of land has no lien.
    Equity is not subject to lien of judgment.
    Award of execution against land upon a justice’s judgment is no lien before levy.
    This was a bill in chancery to charge certain land with the payment of a balance of the purchase money due upon it. It was adjourned for decision here from Jefferson county, and the facts of the case were these:
    The land in question was sold to Yandike by Elliot; part of the purchase money paid, but no deed given. Yandike sold to the defendant Decker, and an arrangement was made, by which Decker gave his notes to Elliot for the balance of purchase money due from Yandike, and Elliot gave to Decker a bond to convey. Two of Decker’s notes to Elliot, for the sum of fifty dollars fifty cents each, being the balance of the purchase money of the land, were assigned by Elliot to the complainant Jackman. Upon these notes, Jackman, as assignee, brought suit against Decker before a justice, and recovered judgment. Execution issued and returned do goods.
    Jackman then filed a transcript, and obtained a soi.fa. from the court of common pleas, to show cause why execution should not issue against Keeker’s lands. At August term, 1821, execution was awarded against the real estate of Decker. At this time, Elliot had not conveyed to Decker, and he had no real estate except his interest in the land in question.
    At August term, 1821, suit was brought by Decker against Elliot upon the conveyance bond, in which the defendant Halloek was attorney for Decker. At the December term, 1821, the counsel for Decker tendered a deed for the land from Elliot and wife to Hal-lock, who refused to take it, because it did not sufficiently describo the lands.
    Decker, becoming indebted to Halloek for fees as counsel, and for moneys advanced to secure the payment, and also to secure-him for becoming his bail upon an appeal bond, in January, 1822, assigned to him Elliot’s bond, then in suit. Halloek gave Decker a memorandum of the object of assigning the bond, and a stipulation to reconvey when paid and indemnified. At the time-of this transaction, Halloek knew that part of the purchase money due to Jackman *upon the assigned notes was unpaid, and knew of the legal proceeding upon these notes.
    At March term, 1822, a deed from Elliot and wife, properly describing the land, was offered to Halloek for Decker, but was-not accepted. At this term the suit of Decker v. Elliot was discontinued. This- suit was commenced in April, 1822, against Hal-lock, Decker, and others, praying a sale of Decker’s equitable interest in the land, and a preference in payment of the judgments for Jackson upon the notes taken for purchase money. The court directed a sale of the property, and that the proceeds be brought into court. The question how they should be distributed was reserved for decision here.
    Three questions were submitted for decision:
    1. Whether the assignee of the notes, given for the purchase-money of land, can enforce, in equity, the original lien of the vendor against the land?
    2. Whether Jackman’s judgment attached as a lien upon Decker’s-equitable interest in the land ?
    3. Whether, when execution is awarded by the court of common pleas against real estate upon a judgment rendered by a justice, a lien upon land attaches before levy made?

      Wright & Colliers, for complainant,
    submitted the case without argument.
    Hallock, on the other side,
    maintained:
    That the lien of the vendor for purchase money, though a well settled rule in equity did not extend to third persons. Upon a careful examination of the chancery reports, digests, and elementary writers, no dictum could be found suggesting such a doctrine. In Sugden on Vendors, 392, 398, and 2 Maddox, 105, it is laid down that the principle does not extend to third persons in general terms; but the cases referred to do not resemble this. He also-cited 15 Ves. 330, and 4 Wheat. 225, as containing a full exposition of the doctrine in respect to the lien of a vendor.
   By the Court:

The vendor’s lion for purchase money is founded upon an implied trust between the vendor and purchaser. The purchaser is held in equity to be the trustee *of the vendor, receiving the contract or conveyance to hold it for the use of the vendor, until the purchase money is paid. The trust attaches to the land, and follows it into the hands of a subsequent purchaser with notice, upon the-universally received doctrine that he who purchases a trust property, with notice of the trust, is bound by it. But this trust does not and can not attach to notes given for the purchase money. It is an equiety between the vendor and vendee, which the notes can not affect, but which exists in the same character, whether a note be given or not. . This equity arises to the vendor for his own safety, but it can not be transferred to another. No law has made it the subject of conveyance or assignment. It can not follow the notes, because the assignee takes in them a legal interest, and the-assignment does not purport to transfer and could not transfer an equity existing independent of them. The notes for purchase-money are evidences of debt without any reference to the consideration for which they were given ; the vendor’s lien is a substantive right, distinct and separate from the notes. The vendor may unite them by keeping the notes in his own hands; but he can not transfer both to his assignee of the notes, neither at law nor in equity. A majority of the court are of opinion that the complainant can claim nothing upon the ground of Elliot’s lien for purchase money.

Jackman’s judgment did not attach as a lien upon Decker’s •equitable interest in the land. This court have so decided in the case of Roads v. J. C. Symmes and Stanberry at this term.

An execution issued by a justice of the peace can not be levied upon lands; it follows as a necessary consequence that a judgment upon a justice’s docket can not attach a lien upon real estate. The ■proceedings upon sci. fa. is not to have a new judgment, but an execution of a particular character. Upon this sci. fa. no judgment is rendered; execution only is awarded as prayed for in the writ. This award of execution can not attach a lien upon land before levy, which is only effected by a judgment for money. It gives a now capacity to the justice’s judgment, but no. new effect. In such case, lands, like chattels, are bound from the levy and not before.

On the first point Judge Burnet dissented.


author: By the Court :

text:
    *Lessee of Ziba Lindsley v. Arthur Coats.

      Decided at Columbus, by all the Judges.
    Legal title to real estate could not be acquired by parol before tbe statute of frauds.
    This was an action of ejectment, tried before the Supreme Court, in Athens county, 1823, upon an appeal by the defendant from a verdict and judgment rendered against him in the common pleas.
    The facts of the case were these: The defendant, and one Timothy Wilkins, under whom the lessor of the plaintiff derived title, were owners of leases for ninety-nine years, renewable forever, of part of the college lands, in Athens county. In the year 1807, the defendant, Coats, and Timothy Wilkins, agreed by parol to exchange the lands they owned, and each gave up to the other possession according to the agreement. Coats had remained in possession of the premises thus obtained by exchange, which are the same for which the suit is brought, ever since. It was part of the contract that deeds should be executed between them, but it was never done. Upon the trial, in the Supreme Court sitting in Athens county, the plaintiff relied upon the legal title. The defendant gave evidence of the contract of exchange, and the possession acquired under it. The court, Judges Pease and Sherman, charged the jury that the agreement by parol, and the possession acquired under it, could not be set up at law to defeat the legal title of the plaintiff. A verdict was found for the plaintiff. The defendant moved for a new trial, upon the ground of jurisdiction, and this motion was reserved for decision by all the judges.
    Ewing, in support of the motion:
    At common law an exchange, without livery of seizin, transferred real estate when the lands lay in the same county, and such exchange, by parol, was good. Littleton, sec. 62-65, and Coke thereon, C. L. 50, 51; and see Shepherd’s Touchstone, title Exchange. This mode of exchange was done away in England by the statute of frauds, 29 Charles II., 63 Hargraves’ Notes, N. 126.
    No English statutory provisions have ever been of force in this state or territory, except by the provisions of the territorial law of 1795, which adopts the common law of England and the statute made in aid thereof to the 4th of James I. — no farther. Until long after that time a parol exchange was good in England.
    *The law, in that respect, is in nowise affected by the ordinance of Congress, which was temporary in its provision, and, in that particular, to exist only until the governor and judges should adopt laws. 8 Stat. Laws, 619. The law of 1805, vol. 8, p. 398, which provides for the execution and acknowledgment of deeds, does not declare, nor can it be inferred from its provisions, that lands shall not be conveyed otherwise than by deed. If it do, it defeats, at least, our other common law estate (that by curtesy), which, I believe, is not recognized in any of our previous statutes. It may be said that the mode of transferring real property by parol is not suited to our state of society. This is true, and was a good reason for legislative interference, but could not, without that interference, alter the rule of law.
    No argument was presented on the other side.
   By the Court :

The lessor of the plaintiff produced a regular title to the lands in controversy, from the university at Athens, under whom the same was held.

The defendant gave evidence, that in the year 1807 (anterior to the enactment of the statute of frauds), an agreement by parol was entered into by him and one Timothy Wilkins, the then owner of the lands in dispute, and through whom the plaintiff deduces title to exchange the same for lands of the defendant, also hold under the university, situate in the same county; and that each party to the contract went into possession of the lands so obtained by exchange. The court instructed the jury that the parol exchange accompanied with possession did not vest in the defendant the legal estate in the land. A new trial is sought for, on the ground that this direction was incorrect. It is contended by the defendant that, at common law, a parol exchange of lands situate in the same county, accompanied with possession, transfers the legal estate without livery of seizin; and that at the time when this exchange was made, there was no statute law of the state requiring contract of or concerning lands to be in writing.

By the common law, a parol exchange of lands situate in the same county, was good, provided each party went into possession' of the lands acquired by such exchange; but if the lands were situate in different counties, or either party died before going into possession, such parol exchange was void. Shep. Touch. 294; Lit., sec. 51, 52, 62. Nor was livery of seizin necessaiy to perfect such exchange, for each had already corporal possession of his land.

*This was one of the ancient common law modes of transferring real estate, adopted at a time when writing was practiced or understood but by few individuals.

It has been repeatedly determined by the courts of this state that they will adopt the principles of the common law as the rules of decision, so far only as those principles are adapted to our circumstances, state of society, and form of government. In no instance have the ancient common law modes of conveyance, as such, been adopted in this state; and long anterior to the settlement of this country, they had given way to the comparatively modern mode of assurance by deeds of lease and release, bargain and sale, etc. There is nothing in our circumstances or state of society that would seem to require the adoption of a principle so pregnant with mischief as that the title to real estate might rest in and be evidenced by parol only.

The policy of all our laws respecting lands is opposed to such a principle. Without attempting to enumerate the different acts of the legislature applicable to this subject, it may.be said that from the first organization of the government to the present time, it has been the policy of our laws that the title to real estate should be matter of record, subject to the inspection of every individual interested. The uniform custom of giving and receiving deeds upon all sales and transfers of real estate has been in accordance with this policy; and this is believed to be the first instance in which an attempt has been made to sustain a legal title to lands resting only in a parol- contract.

The policy of law, the custom of our country, the danger of perjury,, and the many inconveniences that must necessarily result from the establishment of the principle contended for by the defendant, would, in the absence of all legislative provision upon the subject, require us to declare that the exchange claimed by the defendant did not transfer to him the legal title to the land in controversy; and that no contract evidenced only by parol, though accompanied with possession or livery of seizin, would vest in the purchaser, a legal estate in, or legal title to lands.

The court, however, do not deem it necessary to determine this cause upon the principles of the common law, as applicable to our circumstances and state of society; as we are of opinion that at the time when the exchange relied on in this case took place, there were statutory provisions in force, regulating the conveyance of real estate.

The ordinance for the government of the territory of the United ^States, northwest of the river Ohio, passed July 13, 1787, after providing that the governor and judges shall adopt such laws of the original states as they may deem best suited to the circumstances of the district, subject to the approval of Congress, provides, “that until the governor and judges shall adopt laws, real estate may be conveyed by leaáe and release or bargain and sale, signed, sealed, and delivered by the person, being of full age, in whom the estate may lie, arid attested by two witnesses.”

The ordinance provides for the conveyance of real estates, and points out the manner in which such conveyances may be made by deed duly executed, thereby clearly excluding all parol conveyances of land, under whatever circumstances they may be made, or with whatever solemnities attended — expressio unius est exclusio alterius. It evidently was not the intention of Congress merely to legalize those modes of conveyance which are mentioned in the ordinance, leaving it at the option of owners of real estate within the territory, upon the sale of their lands, to convey the same either by the ancient common law mode of feoffment, with livery of seizin, or by deed duly executed; but to provide that every conventional transfer of real estate by vendor to vendee should be evidenced only by deed. And this opinion is strengthened by the provision of the ordinance that “ personal property may be transferred by delivery,” and by the clause saving to the French and Canadian inhabitants, in certain parts of the territory, “their laws and customs now in force among them, relative to the descent and conveyance of property.”

The governor and judges, in 1795, executed the powers vested in them by the ordinance, and adopted a law directing the manner of executing, proving, and acknowledging deeds, as well as providing for recording them. In 1802 the territorial legislature made further provisions upon this subject, and gave effect to deeds foi lands in the territory where such deeds were made out of the state, but executed and proved or acknowledged in the manner prescribed by the laws of the state where made, and recorded in the county where the land lies.

The provisions of these laws are substantially enacted in the act of 1805, which provides -for the whole subject of executing, acknowledging, proving, and recording deeds, and directs, among other things, that the deed shall be recorded in the county where the land lies.

None of these acts provide, in express terms, that land shall only *be conveyed by deed; but they are all evidently framed on the hypothesis that real estate can not be transferred by parol. The latter act contains many provisions which can be neither literally nor substantially complied with, if a parol conveyance be effectual in law to vest a legal estate. Such (for example) is the provision that conveyances, whereby any lands, tenements, or hereditaments shall be- affected in law or in any manner incumbered, shall be recorded. It is claimed that the exchange proved in this case, accompanied as it was with possession, amounts to a convey, anee of the estate in the lands exchanged; and if it can have any legal effect, it must be as a conveyance of the estate, and, as such, must, by the positive enactment of the statute, be recorded. Yet it is, in its very nature, incapable of being recorded.

The care of the legislature, in providing in each county an officer for the recording of deeds of real estate, in providing for the formal execution of such deeds, and in requiring them to be acknowledged before some judicial officer, is idle and vain, if a mere parol conveyance, necessarily unaccompanied with these formalities, will vest in the purchaser a valid legal estate.

Admitting, then, as contended for by the defendant, that that part of the ordinance which points out the mode of conveying real estate, had ceased to be effectual by the act of the governor and judges of 1795, made in pari materia, being a substantial compliance with the provision which limits its duration to the time of the governor and judges’ adopting of laws, yet its provisions are substantially re-enacted in the act of 1805, which was in force when this exchange of lands was made. The ordinance was the first of a series of legislative acts respecting the transfer of real estate, and its provisions, with little variation, have been incorporated into all subsequent statutes. We are satisfied that, upon a fair construction of the legislative acts in force at the time the parol exchange, relied upon by the defendant, was made, no conveyance would pass a valid legal title to real estate, except such conveyance were by deed. If the defendant acquired any interest in the land in dispute, by the exchange with Wilkins, it is an equitable and not a legal interest, and his right must be asserted in a different manner and before another tribunal. It can not avail ¡him as a defense in the action of ejectment, when the legal title to the land in controversy is in the lessor of the plaintiff.

The motion for a new trial must be overruled.


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    Wilber v. Paine.

      Error. — Trespass—Statute of Frauds — Part Performance.

    Party in possession of land under parol contract may maintain trespass against the owner.
    Possession given upon a parol contract for leasing lands and performance hy lessee, takes the case out of the statute of frauds.
    This case come before the Supreme Court, on a writ of error, at the May term, 1824, in the county of Jackson, Judges Hitchcock and Burnet being on the bench. .
    The facts were these: The defendant in error made a parol contract with one E. Shearer, that he (Shearer) should clear and fence a certain lot of ground, in consideration of which he should be permitted to raise on the premises a crop of corn. Shearer, in pursuance of the contract, took possession of the lot, cleared and fenced it, and raised his crop; but before it was gathered, he sold it to the plaintiff, Wilber, for a valuable consideration, and authorized him to gather and remove it. Notice of this sale was given to Paine, who afterward went on the premises, gathered the corn, removed it, and converted it to his own use, for which this action of trespass was brought.
    The declaration contains two counts. The first is laid with a guare clausum fregit. The second with an exportavit *only. Plea not guilty. The court of common pleas (the president dissenting) decided that the case was within the statute of frauds and perjuries, and gave judgment against the plaintiff below, to reverse which this writ of error was brought.
    Douglas, for the plaintiff in error,
    contended:
    That if any part of the case was within the statute, it must be that relating to the contract with Shearer. That the sale by Shearer could not be within it, or if it was, that it could only be avoided by Shearer himself, Paine having nothing to do with it. He also relied on the fact of part performance, and cited 5 Johns. 372; 11 Johns. 145; 1 Ld. Raym. 182; 11 East, 362; 1 Bos. & Pul. 397; 3 Day, 476; 6 East, 602 ; 2 Stra. 783.
    Brush, for the defendant,
    contended :
    That Paine may avail himself of the statute, against Wilber, otherwise Shearer by his own act, has repealed the statute. He admitted that a growing crop might be levied on, but contended that it could not be sold without writing, and relied on the cases of Howard v. Easton, 7 Johns. 205, and Emerson v. Helis, 2 Taunt. 38. He also objected to the form of the action, and contended that trespass could not be maintained.
   By the Court :

The objection to the form of the action can not be maintained. The nature and object of the contract required that Shearer should be put into possession of the lot, which appears clearly to have been the fact. The sale by Shearer to Wilber transferred all his right in the crop, and if the contract had contained no stipulation in relation to the possession, it would nevertheless have transferred that right, as.far as was necessary to protect, gather, and remove the crop, which could not have been done without an entry on the premises. The sale of a growing, crop, without the right of entering on the premises, upon which it is growing, would be of no avail. The contract would be a perfect nullity. As Shearer’s right of possession, by the terms of his contract with Paine, was to terminate when the crop was removed, and as the crop, with the right of removing it, was sold to Wilber, there can be no doubt as to the *real intention of the parties. The possession passed with the crop. Shearer had no right or interest remaining, and Paine, by entering and removing the corn, was a trespasser. As between the parties to this suit, there was no contract. Wilber was not privy to the agreement with Paine. He entered by virtue of a right derived from Shearer, and his proper remedy was trespass. We do not consider it necessary, however, to maintain this action, that the plaintiff should have the full and exclusive possession of the premises. A possessory right under an agreement is sufficient. The grantee, vestures, tenes or herbagii terree, may maintain trespass guare clausum fregit, though he have not the soil. Co. Lit. 4 b. An exclusive right of digging turf, is a sufficient interest in the soil to maintain trespass. 3 Burr. 1824. So he who has the exclusive right to the herbage or pasture of a close, may maintain trespass against the owner, or a stranger. Moore, 355; 5 Term, 329. So the person entitled to the exclusive enjoyment of a crop growing on land, may maintain trespass against the owner of the land, although the agreement only authorizes the cutting and carrying of it away. 6 East, 602. But n this case Shearer had the entire and exclusive possession of the lot, delivered to him under his contract with Paine, and Wilber, by his agreement with Shearer, succeeded to that possession. Paine, therefore, had no right to enter till the expiration of the term, which was to continue till the crop was gathered and removed.

But the defendant principally relies on the fifth section of the act for the prevention of frauds and perjuries, which is in these words : That no action shall be brought, whereby to charge the defendant on any contract for the sale of lands, tenements, or hereditaments, or any interest in, or concerning of them, unless the agreement, upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, signed by the party to be charged therewith, or some other person thereunto by him or her lawfully authorized.” As the contract which gave rise to this action, and on which the plaintiff claims the right to sustain it, is for an interest in land, it comes within the operation of the statute, and if either party had wholly refused to execute1 it, neither could have sustained a bill for a specific *performance; but this court has repeatedly decided that part performance may take a case out of the statute, and although the policy of such exceptions has been questioned, we are induced to believe that, if they be admitted with caution, they have a salutary tendency; and that they are sometimes necessary to prevent the statute from confirming and legalizing the frauds it was intended to suppress. No case has been decided in this court, from which any general rule can be inferred, as to the description of part performance, that will take an agreement out of the statute. It has been settled in England that payment of money alone will nofc do it, because by the repayment of principal and interest the parties may be placed in statu quo ; and because their statute has said, in relation to goods, that payment of money shall prevent its operation. This provision, existing in the statute, and being confined to one class of cases, they infer the intention of Parliament that it should not extend to any other. In the construction of our statute, this distinction can not arise, because it does not exist. The statute does not contain any provision by which payment of money, in any case, shall prevent its operation. It is not necessary, however, to express an opinion on this point, as it is not presented by the ease before us. The circumstance relied on by the plaintiff" in error is, that he was put in possession of the lot, and that he has performed the contract fully on his part. In the case ■of Clinan v. Cooke, Lord Reddesdale lays it down as a rule, that •nothing should be considered as a part performance that does not put the party in such a situation as that it would be a fraud on him not to perform the agreement, and cites a case similar to the one before us, to illustrate his meaning and show the propriety of ■the rule. In Foxcraft v. Leister, 2 Vern. 436, it was said that the party who had been let into possession ought not to be liable as a wrong-doer, because he entered in pursuance of an agreement; that for the purpose of defending himself against a charge that might be brought against him, parol evidence was admissible, and if .admissible for one purpose, there was no reason why it should not be admissible throughout.

*In the Earl of Aylesford’s case, 2 Stra. 673, there was a parol agreement for a lease of twenty-one years. The lessee had entered and enjoyed for a part of the term, and then the earl brought a bill to oblige him to execute a lease for the residue of the term. The lessee pleaded the statute, which was overruled, because the agreement had in part been carried into execution.

The cases cited from 1 Ld. Raym., 11 East, 1 Bos. & Pul., and 3 Day, might be in point in a case between Wilber and Shearer, but as between these parties, we do not see their application.

It has frequently been held, on the circuit, that the delivery of possession, on a parol agreement, was sufficient to take it out of the statute, and we see no reason to reverse the rule, or to reject the principle on which it is founded. When the existence of a contract is evidenced by a change of possession, which must result from the joint act of the parties, the mischief intended to be remedied by the statute is scarcely to be apprehended. The fact, as far as it goes, is as satisfactory evidence of the existence of a contract as a memorandum in writing could be, and it may be added, that under such circumstances, to enforce the statute, and leave the party who has been put into possession, by virtue of an agreement, to be treated as a wrong-doer, would not only be repugnant' to justice, but would make the statute a shield and protection for injustice.

In giving a construction to any statute, the court must consider its policy, and give it such an interpretation as may appear best calculated to advance its object by effecting the.design of the legislature. The great object of the statute in question is clearly expressed in.the title prefixed to it. It is for the prevention of frauds and perjuries. It is not, therefore, to be presumed that it was intended, in any instance, to encourage fraud, and we may infer that any construction which would have a certain tendency to do so, would counteract the design of the legislature, by advancing the mischief intended to be prevented. Most of the decisions restricting the statute, 29 Charles II., and taking cases out of its operation that might be brought within *it, by a literal [256 construction of its terms, have been made on the same principle, as for example : although the statute requires that all contracts for the sale of lands should be in writing, yet defendants in equity have been, and are permitted to introduce parol evidence varying or discharging such contracts, or for the purpose of avoiding them for fraud, accident, or mistake, notwithstanding they are for the sale of land.

The reason commonly assigned in support of these cases is, that the statute is intended for the benefit of the party to be charged, yet it is easy to pei’ceive that the decisions may be ascribed to the license of construction before referred to, and that they depend on the same principle, that the contract, as it appears in writing, can not be enforced, without a fraud on the defendant. In the case before us, we can not forbear to enforce the contract, without sanctioning a fraud on the plaintiff. It is also the constant practice to permit a complainant to vary his written contract by parol, if he can make out a clear case of fraud, such a one as, in the language of Lord Thurlow, “ comes among the string of cases where it is considered a fraud upon the rule of law.”

Such cases as these, and such as are founded on the fact of part performance, show it to be the impression of courts in G-reat Britain, and in this country, that for the due administration of justice, it is necessary, by the use of a sound legal discrefion, so to interpret statutes as to advance the remedy and suppress the mischief.

On this principle, we have decided that a parol lease of a farm for one year, after the lessee had been put into possession, was valid, and that the tenant might defend his possession against his landlord, as well as against a stranger. In the case now before us Shearer was not only put into possession, but was permitted quietly to occupy till he made all the improvements that were agreed upon as a substitute for the rent, and until he had raised his crop and sold it to the plaintiff for a valuable consideration, then the defendant entered, and removed the crop, on the ground that his contract *was void, and to protect himself in this act of fraud, he sets up the statute against fraud. We have no hesitation in saying that the defense attempted is against conscience, and that the facts in this case take it out of the statute.

The judgment of the court below, therefore, must be reversed.


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    Manley v. Hunt and Hunt.

      Chancery. — Land—Lien—Judgment—Demurrer.
    Land sold and not conveyed, is not liable to subsequent judgment against the vendor. Sale upon execution may be stayed by injunction.
    When demurrer is overruled, defendant is not permitted to answer without affidavit of merits.
    This cause came before Judges Pease and Burnet, at tbe August term, 1824, in Ashtabula county.
    The facts alleged in the bill were these: That one John Lay, being owner and proprietor, and vested with the legal title to a certain tract of land in the county of Ashtabula, contracted to sell it to one Harman. That in July, 1818, Harman, not having received a legal title, sold all his right and interest in the land, bona fide, and for a valuable consideration, to the complainant, Manley. That in November following, the defendants recovered a judgment at law against Harman. That Lay, after the recovering of the judgment, conveyed the land in question to Harman, who conveyed the same in April, 1820, to Manley, the complainant, according’ to his contract. That in June, 1823, the defendants sued out execution on their judgment against Harman, and caused it to be levied on the same tract of land, and that they were proceeding to sell it.
    The prayer of the bill is, to be relieved from the execution and to be quieted in the possession and title.
    The defendants demurred on the ground that the matter stated ■ in the bill did not entitle the complainant to the relief prayed for.
    The question discussed at the bar and submitted to the court was, whether the judgment against Harman was a lien *on the land, and authorized the defendant to proceed and sell it in satisfaction of their debt, as the legal title had been vested in Harman after the rendition of the judgment.
   By the Court :

We are decidedly of opinion that the land in question is not affected by the lien of the judgment, although the legal 'title was vested in Harman subsequent to the judgment. After Lay had sold this land to Harman, he held the title in trust for him, and the land ceased to be liable for. the debts of Lay. After the sale to Manley the trust inured to his benefit, and Lay became his trustee, so that the land was not liable to the debts either of Lay or Harman. There was no necessity of passing the title through Harman, the deed might have been made direct to the complainant, but as it is, his equitable rights are not affected by the course pursued, for the moment the title vested in Harman he was seized in trust for Manley, and had he conveyed the title to a third person, for a valuable consideration with notice, the lands would have continued chargeable with the trust, and equity would have decreed the title to the complainant.

It would be productive of much mischief and injustice to make trust estates liable to judgments against the trustee. Such a principle never has been, and we trust never will be recognized in this state. ' From the moment Harman contracted in good faith to sell the land to Manley for an adequate consideration, he became a trustee for Manley, and the land ceased to be liable for his debts on after acquired judgments. It then became liable in equity to the debts of Manley, and the purchase money, if any part of it remained unpaid, might be reached in the same way by the creditors of Harman.

The demurrer must be overruled.

The defendants then moved for leave to answer, but not having produced an affidavit of merits, and that the demurrer was not filed for delay, as the statute requires, the court were on the point of overruling the application, when, by consent of the complainant, defendants were permitted to file their answers.


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    *Isaac Spencer, Treasurer of the State of Connecticut, v. Elias Brockway.

      Suit by State — Penal Laws — Effect of Judgment from Sister States.

    The state may sue in the courts of Ohio. ■
    Suit upon a judgment for violation of penal laws in a sister state sustained. Judgment in a sister state can not be impeached here.
    If action on the case be brought on judgment from a sister state, liability and breach must be averred.
    This cause came before Judges Pease and Burnet, at the August term, 1824, in the county of Ashtabula.
    The plaintiff describes himself as treasurer of the State of Connecticut, and successor in office to Andrew Kingsbury, late treasurer of that state. The declaration contains two counts. The first states that a suit was commenced in the Supreme Court of the State of Connecticut, wherein Andrew Kingsbury, treasurer of the State of Connecticut, was plaintiff, and Elias Brockway was defendant, on a bond of recognizance, made by the said Elias to the said Andrew, as treasurer aforesaid, and that such proceedings were had that the said court rendered judgment in favor of the said Andrew, against the said Elias, for the sum of one hundred dollars debt (or damage), and cost, taxed at $21.90.
    The second count states that there was another suit at the court aforesaid depending ‘in favor of Andrew Kingsbury, treasurer of said State of Connecticut. That such proceedings were had, that the said Elias being three times solemnly called, came not, but made default, and that judgment was thereupon rendered, that the said Andrew recover of the said Elias the sum of one hundred dollars (debt or damage) and cost, taxed at $21.90, which judgment remained in full force, etc., by reason whereof, the said Elias became liable to pay the said Andrew, treasurer, etc., and being liable in consideration thereof undertook, etc., that the said Elias did not pay, etc., to the defendants, damage $850.
    The defendant demurred to each count of the declaration separately, and the plaintiff joined in demurrer.

      The defendant craved oyer, and set out the records of both judgments, from which it appeared, that they .were recovered on two forfeited recognizances, taken in consequence of an alleged violation of the penal laws of that *state, and that the defendant was in court, by his counsel, when his default was entered, and that on his application, the court exercised their chancery pow er by reducing the sum from $200 to $100 on each recognizance.
    Webb, in support of the demurrer,
    contended :
    1. That the State of Connecticut can not maintain an action in' the courts of this state. •
    2. That the courts of one state will not enforce the penal laws of a sister state.
    3. That the declaration does not present such a case as will em title the plaintiff to recover.
   By the Court :

We do not discover any reason why the State of Connect»out should be prohibited from prosecuting her just claims in the courts of this state. There is not anything in the constitution, or laws of Ohio, that requires such a prohibition, nor do we believe that it is necessary, or that it would be expedient; but if the position could be supported, it would not apply in this case, because the suit is brought in the name of an individual, and not in the name of the state, and it can not be a matter of any importance for whose use the money is recovered.

The second objection is equally groundless. There is nothing in the declaration from which it can be inferred that the object of this suit is to enforce the penal laws of the State of Connecticut. If the defendant had a right to crave oyer, and if it were proper to look into the transcripts, it would be found that those laws, as far as this demand is connected with them, have been enforced in the courts of that state.

The suit is for the recovery of a sum of money. It is founded on judgments obtained in the Supreme Court of the State of Connecticut, and not on the penal laws of that state. The objection, therefore, can not be sustained.

The third ground of demurrer, leads to the inquiry, how far judgments recovered in sister states are to be regarded in this state. This court has often decided that judgments regularly obtained in other states, against defendants who have been served with process, or have otherwise appeared, and had an opportunity of making a defense, are to be received as conclusive evidence, and that no reexamination *0f the grounds on which they were rendered can be permitted. We believe this to be the true construction of that section in the constitution of the United States, which requires that “full faith and credit shall be given, in each state, to the public acts, records, and judicial proceedings of every other state,” and of the act of Congress in pursuance thereof, which requires that they shall have such faith and credit given to them, in every court within the United States, as they have by law or usage in the courts of the states from whence the said records are or shall be taken.” The faith and credit here spoken of, requires us-to admit, not only that there is a record, and that it is what it purports to be, but also that it is just; that the money awarded to the plaintiff is legally due, and that he has a right to recover it, without a re-investigation of his claim. Such is the effect of the faith and credit given to it in the state from whence it came, and such must be its effect here, or like causes do not produce like effects.

Had a suit beon commenced on this record in the State of Connecticut, the defendant could not have questioned its correctness, in consequence of the faith and credit given to it in the courts of that state, and the same degree of faith and credit must produce the same results here. We are aware that a different opinion has been given in some of the states. In Massachusetts and New York, it has been decided that judgments obtained in other states are only prima facie evidence, and that the defendant, in a suit brought on such a judgment, may impeach the justice of it. But it appears to us that the provision in the constitution extends further, and embraces the effect as well as the admissibility of the record. Such a provision would seem to be of but little use, if it merely required the record to be acknowledged and received in evidence, and left its operation as it stood at common law.

In cases where both parties have been before the court, and have had an opportunity of being heard, it does not require the exercise of an unreasonable degree of confidence to conclude that justice has been done; but where the defendant has not been served with process, or had an opportunity of making his defense, the conclusion may be different. In such cases we have considered the record as prima *facie evidence, and permitted the defendant to impeach its justice, because it shows on its face, that the merits, on his side, have not been heard, and because it would not only be deciding without evidence, but presuming against probability, to take the judgment under such circumstances as conclusive evidence that the merits have been fully heard on both sides. In the State of New York, it has been decided that an action can not bo maintained in that state against a person not a resident, who has not been served with process or had actual notice. Kilburn v. Woodworth, 5 Johns. 41; Robinson v. Ward, 8 Johns. 86. This question, however, does not arise on the demurrer, and it will be unnecessary to pursue it further.

The plaintiff having seen proper to treat these records as foreign records, by bringing an action on the case, the question might have been presented in a different form; by another course of pleading, but as the issue how stands, the records are to be considered as conclusive evidence, by the uniform course of decision in this court, and our inquiry must be confined to the sufficiency of the declaration.

The first count is manifestly defective. It contains no averment of liability, or promise of payment, or breach by the defendant. The demurrer, therefore, as to that count, may be sustained. In the second count, we do not discover any substantial defect.

Judgment for the plaintiff oh the second count.


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    Lessee of Cunningham and Cully v. B. Buckingham.

      Deed not Recorded.

    Validity of deed not necessarily destroyed by omission to record it.
    "Where a sheriff’s deed to a purchaser upon execution is not recorded, subsequent purchase affected by presumptive notice.
    This was an action of ejectment for a house and lot in the town of Kewark, county of Licking, and was tried before Judges Hitchcock and Burnet, at the September term, 1824.
   The plaintiff gave in evidence a deed from James Black to Cunningham, one of the lessors, and John Cully, for the lot in controversy, dated January 18, 1822. Consideration $140. Also, a deed for the same premises, from John Cully to John W. Cully, the other lessor.

*The defendant then proved that the lot in question was levied on by virtue of an execution, in 1810, and sold as the property of James Black; that Schenck and Stansbury became the purchasers; that James Black, the then owner of the lot, being satisfied with the sale, agreed, for a small additional consideration, to execute a ■deed to the purchasers under the sheriff. He then offered a deed for the lot in question, from James Black and wife to Schenck and Stansbury, under whom he claimed, dated May 19, 1810. This deed was objected to on the ground that it had not been recorded within six months after its execution, according to the act providing for the acknowledgment and recording of deeds. The clause of the .statute relied on is in these words: “ And if any deed for the conveyance of lands, tenements, or hereditaments, made and executed, whereby the same shall be affected in law, or in any manner incumbered, shall not be acknowledged, or proved and recorded within the respective times allowed, the same shall be deemed fraudulent against any subsequent bona fide purchaser or purchasers, without knowledge of the execution of such former deed ■or conveyance.”

The court were of opinion that the omission to record the deed ■did not necessarily destroy its validity. That it was not an objection to the deed itself, but to its effect as evidence in the cause, and that the objection might be rebutted by parol testimony. They, therefore, overruled the objection, and the deed was read to the jury.

The defendant then called several witnesses for the purpose of charging the lessors of the plaintiff with notice.

Mr. Station testified that Cunningham and Cully were living in the town of Newark at the time of the levy and sale; that the .sale was made near Mr. Cully’s door; that the sale and the deed from Black to Schenck and Stansbury were generally known and spoken of in the town; that the making of the deed was a subject •of conversation for several weeks, and that there were not at that time more than a dozen families residing in the town.

Mr. Johnston testified that he saw the sheriff’s advertisement; that he was present at the sale to Schenck and Stansbury, and that the circumstances of the sale were generally known arid spoken of in the town.

*Judge Wilson testified that he recollected the sale and purchase by Schenck and Stansbury; that it was notorious and commonly talked about, and so was the deed from Black. He understood, and he thinks it was generally understood, that Houston and McDougal were in possession of the lot under Schenck and Stansbury.

Mr'. Wright testified that he knew of the sale at the time; that it was generally known and talked of, and he supposed everybody knew it.

Mr. Yan Buskirk heard it publicly talked of that Black had given the deed to Schenck and Stansbury.

Mr. Lincoln lived in town at the time of the sale, which was a notorious thing; he supposed everybody knew it. He thinks, from the conversation on the subject, that every person in town* must have known it.

Mr. Black — he was at the sale; it was generally known.

Mr. Smith testified that Cunningham was searching the records-for the deed.

Mr. Evans testified that Cunningham had told him he had searched for the deed.

The plaintiffs then called several witnesses to rebut.

Colonel Davidson testified that he had heard a long time back of the sale to Schenck and Stansbury; that some said there was a deed ; that others thought not.

Mr. Obannon testified that he did not live in town at the time-of the sale, but heard of it, and that there was'a difference of opinion about it.

Mr. Gillespie had heard of the sale and purchase.

Mr. Elliot was in town, and knew of the sale, but not of the deed.

Mr. McDougal testified that he always understood there was a-deed from Black to the purchasers, under the sheriff.

On this testimony the cause went to the jury.

The plaintiff’s counsel called on the court to charge them that, it was necessary for the defendant to prove that the lessors of the plaintiff had actual notice of the deed from Black, under which. the defendant claimed; and that if such proof had not been made it would be their duty to find for the plaintiff.

*The court refused to give the direction required; but after stating the case, and summing up the evidence, informed them that the omission to record the deed did not necessarily render it void. That its validity or invalidity depended on the fact of notice, which might be proved by the same description of evidence that is admitted in other cases. That violent presumption, or the proof of such facts as imply notice, was sufficient, and that if their minds were convinced, by the whole testimony, that the lessors of the plaintiff had knowledge of the deed, under which the defendant claimed, they should be charged with notice. That a man was not at liberty to shut his eyes against the truth,- and shelter himself under the plea of ignorance. That where a fact comes to his knowledge, that necessarily puts .him on his guard, he is bound to make diligent inquiry, and to search for information at the sources from which it is most natural to expect it. That’although the adverse possession which existed in this case, and was known to the plaintiffs, was not evidence of actual notice, yet it was a violent presumption, which, in connection with other facts, might satisfy the mind of a jury. That the cases under the registry acts of Great Britain, cited at the bar, were inapplicable, as those acts do not contain the proviso that is found in ours. They declare the instrument absolutely void, and relief against them can be had only in chancery, on the general principles of equity. Stricter proof is therefore required. The party applying for relief must make out a clear case of fraud, but our statute provides relief, and the jury is authorized to examine and decide the fact, and they must do it according to the established rules of evidence in ordinary cases, at common law.

Verdict for the defendant.


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    *Harvey, etc. v. Brown, etc.

      Minutes of Proceedings — Record.
    Minutes kept of the daily proceedings of courts are not a component part of the record, but memoranda only, from which record is made.
    How minutes should be entered.
    This cause came before Judges Sherman and Burnet at the July term, 1824, in Butler county, on a writ of error. The error relied on was that no regular judgment had been entered in the court of common pleas.
    The facts of the case were these: The cause having been called in its order, in the common pleas, the defendants were defaulted, and judgment ordered to be entered against them. The clerk, in making up the minutes of the day, stated the cause, and entered the order in these words: “Judgment,” etc., in which form the entry stood when the minutes were read and signed by the presiding judge. After the rising of the court, the clerk ma.de up a complete record of all the proceedings in the cause, setting out the judgment fully and technically, and entered the same in the book provided and kept for that purpose, agreeably to the statute. The writ of error was then taken out and returned, with a transcript of that record certified in due form. An attested copy of the minutes of the court, containing the original entry of the judgment, was also annexed to and returned with the writ.
    Woods, for the plaintiff in error,
    contended:
    That the copy of the minutes ought to be received as a part of the record on which he was at liberty to assign errors. That the entry on the minutes of the court below was not made in pursuance of the statute. That it was a perfect nullity, and did not authorize the record subsequently made up, and now returned with the writ of error.
   By the Court :

The copy of the minutes forms no part of the record, and can not be considered as the foundation of an assignment of errors. The statute makes a clear distinction between the daily entries on the minute book, and the complete record which is to be made up in the vacation and entered in the book of records. The former is intended to prevent mistakes in entering the orders of the day, and to detect them where they are made. The latter is considered *the record of the cause, and supersedes the necessity of any further recurrence to the minute book. The writ of error must be returned with a transcript of this record, and the assignment must be predicated on it. The plaintiff can not be permitted to contradict it by a paper purporting to be a copy of detached parts of the proceedings in the cause.

Such a course is unprecedented, and might jeopardize a large portion of the judgments that have been rendered in the common pleas throughout the state. On the same principle, the copy of any paper, improperly admitted or rejected, or of any motion improperly granted or overruled, might be tacked to the record, without having been made a part of it by a bill of exception. Such' a practice would lead to endless confusion — it would destroy the certainty of records, and defeat the object for which they are made. The entries which are required to be made in vacation are the records of the court, and as there is no error in the transcript of that record, the judgment must be affirmed.

It may not be improper, however, to make a remark on the manner in which the entries should be made on the daily minutes of the court. Although the eighty-seventh section of the judiciary act, which requires the proceedings to be entered, read, and signed, ■does not prescribe the form in which the minutes shall be kept', or expressly require the orders, judgments, and decrees to be entered at length, or direct the clerk to pursue the exact form of those entries in making up the record, yet that course would be the most safe one, and would be most conformable to the spirit of the statute. This, however, has not been the common construction given to that section by the clerks throughout the state. Many of them have considered the minutes as concise memoranda of the proceedings .of the day, from which full records were to be made up in the vacation, and if those memoranda were sufficiently explicit to enable them to make the record with certainty and correctness, they have considered them as made in conformity with the statute. This construction has probably resulted from the reason given in the statute for requiring the duty, which is to prevent errors in entering the judgments, orders, and decrees of each court.” It is the opinion-of this court, however, that the ^correct course is to make the entries with the same technical precision as is required in the complete record made up in vacation.

Judgment affirmed.


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    The Treasurer of Champaign County v. H. Norton.

      Appeal from the Common Pleas.

      Practice — Suit against Administrator.

    Acquiescence of attorney of record hinds the party.
    Appeal does not vacate submission on report made in common pleas.
    This, cause came before Judges Burnet and Sherman, in the county of Clark, at the July term, 1824.
    It was an action of debt brought on an administrator’s bond. From the record it appeared that the parties had submitted the cause to the court of common pleas, on an agreed case. The court referred it to a special commissioner, who reported a balance due from and in the hands of the defendant as administrator. Exceptions were filed to the report, which were overruled. Judgment, was entered for the plaintiff and an appeal taken to this court.
    O. Parish, for the defendant,
    moved to set aside the report:
    First, because the submission was made to the common pleas-without the knowledge or consent of the defendant’s attorney on record. Secondly, because the report having been made on a reference in the common pleas prior to the judgment, it ought to be-, considered as vacated by the appeal.
    As it appeared from the record that the cause had remained in the court below more than a year after the submission before the rendition of judgment, during which time one of the attorneys of that court, at the request of the attorney on record, had answered to the suit without objecting to the submission or the reference, and it appearing further that the submission and agreed case were signed by the attorney of a co-defendant, with the knowledge of the agent of Norton’s attorney, the court were of opinion that whatever might have been the merits of the motion, had it been made in time, it was then too late for the party to avail himself 'of it.
   *On the second ground, it was the opinion of the court that neither the submission nor the report were vacated by the appeal, but that the report was open to the same exceptions as in the court below. Motion overruled.

The defendant then took sundry exceptions to the report, some of which were sustained ; and it appearing that payments had been made by the defendant for the benefit of the estate, which had not been submitted to the commissioner, in consequence of the vouchers not being in the possession of defendant, the ease was referred to the same commissioner for re-examination and report at the next term.


author: *By the Court :

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    Miller v. The Commissioners of Montgomery County.

      Collector’s Bond.

    6
    Summary proceedings by motion can not be had upon official bond erroneously taken.
    This cause came before Judges Sherman and Burnet, on a writ of error, at the July term, 1824, in Montgomery county.
    It appeared from the record that James L. Miller had been appointed collector for the county of Montgomery, and had executed a bond, payable to the treasurer of Montgomery, conditioned for the faithful performance of his duty. The money contained on the duplicate not having been paid over agreeably to the condition of the bond, the commissioners served the collector with notice of a motion for judgment, and in pursuance of that notice a motion was made before the court of common pleas, and a judgment entered in the name of the commissioners against the collector for the sum claimed to be due, with twelve per cent, damages thereon, and cost of suit. To reverse this judgment, the writ of error was sued out.

      Alexander, for the plaintiff,
    relied on two errors:
    First, that the bond, not having been taken agreeably to the ■statute, was void. Second, that the court were not authorized to render a judgment against the collector for a greater penalty than ten per centum.
   *By the Court :

. The statue under which these proceedings were had, requires the ■collector to give bond “to the commissioners, in behalf of their county, with such security as said commissioners may approve.” By this we understand that the bond must be made payable to the commissioners for the use of the- county. There is not any provision in the act which authorizes the bond to be made payable to the treasurer, and whatever might be our opinion as to the validity ■ot this bond at common law, and notwithstanding it might support an action of debt in the name of the treasurer for the use of the county, it does not authorize a resort to the summary proceedings allowed by the statute. But if the commissioners were at liberty to take the bond in the name of the treasurer, the proceedings ■should have been in his name also, in pursuance of the bond.

The second error assigned seems to be predicated on a misapprehension of the statute that governs the case.

The section referred to, giving a penalty of ten per centum, relates to the state tax, and not the county levy, on which the law directs a penalty of twelve per cent. In this respect, therefore, there is no error; but for the first error assigned, the judgment must be reversed.


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    Smurr v. Forman.

      Order for Money on Regimental Paymaster.

    A colonel is not liable upon orders drawn on a regimental paymaster.
    This cause came before Judges Hitchcock and Burnet, in "Wayne county, 182-1, by writ of error.
    Harris, for the plaintiff; Avery, for defendant.

      The declaration contained four counts: The first was for a horse-sold and delivered; the second, third, and fourth charged the defendant as indorser of three several orders, each drawn by the colonel of the second regiment of the third brigade of the sixth, division of the Ohio militia, signed by him in his official character, directed to the paymaster of the same regiment, requesting him to pay John Smurr, for a drum, ten dollars out of the regimental fund, which ^orders had been severally assigned by Smurr to Forman, and were declared on as bills of exchange.
    The assignments were in these words: “ I assign all my right. and title of the within order to Alexander Forman.”
    There was a general verdict and judgment for the plaintiff, to-reverse which, the writ of error was sued out.
    The error principally relied on was, that the action could not be sustained against Smurr, as indorser of those orders.
   By the Court:

These orders were drawn agreeably to the directions of the-statute relating to the militia, and were payable out of the regimental fund, in the hands of the’ paymaster. It was not the intention of the law, in any event, to render the colonel liable on these orders, or to place them on the footing of negotiable paper. They are given and received on the credit of a particular fund, and it is well understood that the holder is to look to that fund for payment. This was’ the nature and effect of the orders in the hands of Smurr, and when he assigned them, he passed nothing more than the right then vested in himself.

In case of a delay of payment, he had no recourse on the colonel, as a drawer of a bill of exchange, and when he assigned them, he gave no recourse on himself as an indorser of a bill of exchange. The assignee took them on the credit of the fund, and to-that he must look for payment.

The statute making certain instruments of writing negotiable, contains a restricting clause. It provides that nothing in the act contained, shall be construed to make negotiable any bond, note, or bill of exchange, drawn payable to any person or persons alone, and not drawn payable to order, bearer, or assigns. These orders - were drawn payable to Smurr alone, and not drawn to order, bearer, or assigns.

The transaction appears to have been bona fide, and without, fraud or misrepresentation, but had it been otherwise, the assignee must have sought his remedy in a different form of action. He could not treat the orders as bills of exchange, and infer the liability of the defendant from the assignment alone. His remedy must have been by a special action on the case.

For these reasons, we are of opinion that the second, third, and fourth counts are had, and the verdict being-general, that the judgment must be reversed.


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    *Leffingwell v. Flint.

      Justice of Peace — Cost on Appeal.

    An appellant from the judgment of a justice is not bound to pay the costs ’ before he can demand transeript.
    A justice-is liable to action for refusing transcript.
    This case was tried before Judges Pease and Burnet, in Trumbull, at the August term, 1824.
    The facts of the case were these : The defendant being a justice of the peace in the township of Warren, on an application for that purpose, issued a summons against the plaintiff, on which a judgment was afterward rendered for $28.81, and cost of suit. The defendant, Leffingwell, gave notice of an appeal to the court of eommon pleas, and before the expiration of the ten days allowed for that purpose, executed a recognizance, with security, approved of by the justice, and then demanded a transcript of the proceedings, which was refused, unless he would pay the cost of the suit, amounting to about $7. The appellant refused to pay that sum, but offered to pay the fee for the transcript, and tendered thirty-one cents. The transcript was withheld. The appellant lost the benefit of his appeal, and an execution issued against him on the judgment, by which a part of his property was taken and sold. It also appeared from the record, that the writ, in this suit, issued before the commencement of the term to which the transcript ought to have been returned. The defendant pleaded not guilty, with a notice that he was always ready to give th'e plaintiff the transcript required, on his paying the cost of the suit, which he refused to do.
    The cause was tried in the common pleas, and removed to this court by appeal.
    A number of witnesses were called, who proved the facts substantially as charged in the declaration.
    The principal points contested were, whether the justice had a right to withhold the transcript, in consequence of a refusal to pay the cost, and whether the suit was not commenced before the cause of action arose.
   The opinion of the Court was against the defendant on both points:

The statute is not only silent as to the payment of cost, but requires the appellant to give security for the debt and cost, and cost that may accrue in the court of common pleas; it is, therefore, impossible to suppose that *the costs are to be paid before the appeal. It would be an outrage on common sense to give the law such a construction, as would require the appellant to pay the cost, and, at the same time, to give security to pay them.

The second point is equally clear. The justice is not to delivor the transcript to the clerk of the court of common pleas. It is his duty to hand it to the appellant, on demand, and it is the duty of the appellant to deliver it to the clerk, on or before the first day of the term nest following the appeal. The cause of action, therefore, arose at the time the security was given and the transcript demanded.

Verdict for plaintiff.