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    *Sardis Burchard v. Pliny Hubbard, George F. Whitaker, and Benedict Brooks.
    A tax title is invalid when the land has been listed, forfeited, and sold, “as one hundred and twenty acres in the Whitaker reserve,” there being one thousand two hundred and eighty acres in the reserve.
    Where a person, without title, conveys by deed of warranty, and afterward receives title as trustee from the rightful owner, for the purpose of transmitting it to a bona fide purchaser, the doctrine of estoppel does not defeat the trust estate.
    This was a bill in chancery from the county of Sandusky.
    In November, 1822, a patent issued to Elizabeth Whitaker for 1,280 acres of land, being the “ Whitaker reserve,” in Sandusky county.
    On June 3, 1823, Elizabeth Whitaker conveyed the entire reserve to George F. Whitaker, in fee; and on October 10, 1823, George F. conveyed in fee 190 acres, in which was included the land here in controversy, to Isaac Whitaker.

      On October 12, 1823, Isaac mortgaged his tract of 190 acres to James Whitaker, to secure the payment, on August 12, 1832, of $400, with annual interest.
    The taxes being unpaid in December, 1831, part of the land was sold at a tax sale to R. Dickinson, who received a tax deed. The auditor’s deed recites a sale of- 120 acres, and purports to convey “ 140 acres of land in the Whitaker reserve,” without any other description. Shortly after bis purchase, Dickinson agreed to hold the land for the benefit of Isaac, and reconvoy to him upon reimbursement of the amount paid and expenses. But Dickinson, having some transactions by which, on settlement, he fell in debt to George E. Whitaker, transferred to George P. this tax title, by deed dated January 15, 1834, to be held upon the same terms as it had been by Dickinson.
    *In Juno, 1834, the complainant, Burchard, talked of purchasing the tract of 190 acres, and with a view to effect a sale of the property to satisfy the mortgage, and the tax incumbrance, and to secure the residue to the benefit of Isaac, James executed and deposited with his agent, Dickinson, a release of the mortgage, leaving a blank for the name of the grantee, to be filled up when an arrangement should be effected.
    In March, 1835, Burchard agreed to purchase this tract of 190 acres, of George E. Whitaker, for $800, with Dickinson’s assent, but upon condition that the sale should be approved by James and Isaac. It was approved of, with the understanding that $200 should be invested in wild lands for Isaac’s benefit. Dickinson, being a lawyer, was consulted as to the best mode of transferring the title. Ho advised that, instead of conveying directly to the complainant Burchard, Isaac should make a deed to George E., in whom it was supposed the tax title was already vested, and that George P. Whitaker should then convey to Burchard, who would thus derive a perfect and unincumbered title.
    On April 12, 1835, a deed to George P. was made by Isaac, and left in Dickinson’s hands, by whom it was retained until July, 1835, when it, together with a release of the mortgage by James, was delivered to the complainant Burchard, and they were by him, on the 14th of August, handed over for record. On the 3d of November following, George E. Whitaker executed a deed, in fee, for the land, to the complainant.
    But, in the meantime, George E. Whitaker, on July 15, 1834, had sold this same tract of land, for $700, to the defendant, Pliny Hubbard, to whom, on June 24, 1835, having received the whole purchase money, he made a deed in fee for 150 acres off the west part of the 190 acres. This deed was recorded, June 26, 1835. In 1838, Hubbard sold and conveyed to Brooks.
    *Neither Hubbard nor Brooks had any actual notice of the transactions of George F. Whitaker with the complainant, but they were informed and believed that George F. had a perfect title. The complainant had no notice of the transaction between George F. and Hubbard.
    This bill is filed by Burehard, setting forth’ his title, and praying to be quieted therein. The defendants, Hubbard and Brooks, answer, denying all notice of Burchard’s interest, and claim that they are bona fide purchasers, and have an equity prior to the complainant’s, for which they claim protection.
    C. L. Boalt, for complainant:
    Under the pleadings in this case, the defendant can not rely on being a bona fide purchaser, without notice for a full consideration. If the defendant would rely on this character to protect a disclosure, he should make his defense by 'plea, Story’s Eq. Pl. 463, 465 ; and if he answers, at all, he must answer fully every allegation that bears’upon the question of notice; and a general answer is not sufficient. Id 654.
    The tax title, which is the only one that connects George F. with the legal estate, prior to the conveyance by George F. to Hubbard, is defective, and can not be relied on for any purpose.
    There are several adjudged cases, in our reports, in point. 5 Ohio, 458; 2 Ohio, 287; 6 Ohio, 391; 10 Ohio, 556.
    The subsequent passing of the title through George F. Whitaker, will not inure to invest Hubbard with any better title than George F. then had.
    The law of estoppel could only apply between George F. and Hubbard, in a court of law. It could not be extended to the complainant. No one is bound by an estoppel who can not take advantage of it. It is mutual in its application. Here Hubbard and Burehard derived their titles from different sources. The assertion of title by George F. Whitaker was adverse to the interests of James and Isaac. They could not *stand together. Neither is the complainant’s conscience bound in equity. If the act of George F., in attempting to convey without title, could have any effect on him, it was equally a fraud on him as on Hubbard ; and how can an equity arise against him out of such a state of facts?
    1 In the course of transmitting this title to effect another object, it was passed through George F., but Hubbard was not affected by it, or misled as to George F.’s rights. The mischief which affected him was already done. Had he been injured by that act, he might have some reason to complain; but such was not the case.
    Here George F. was made use of as a mere conductor, to transmit the title to another; and as dower will not attach in favor of the wife, where the estate is passed through the husband, and a mortgage taken back to secure the purchase money, on the completing a purchase, so, here, it will not inure to vest any better estate in the grantee than George F. had.
    The complainant had the better equity in the estate, and Hubbard was chargeable with notice.
    If Hubbard had no legal estate by virtue of the tax title, he cannot rely on the plea of bona fide purchaser. If he had, he was-chargeable with notice by the record, and by the adverse possession, or both. If chargeable with notice by the record, he must be taken to be advised of all they contain; but the records do not disclose the fact that George F. held the tax title as a lien for his advances only, and if that title is valid to convey a legal estate, he would still be without notice of the latent equity. This is not the case, however, in respect to his negligence to prosecute inquiries of the person in possession. As an inquiry, in that quarter, would have led to a knowledge of all the rights of Isaac and complainant, the notice will operate commensurate with the right, both as to the trust attaching to the tax title, and also as to the outstanding recorded title. We rely, also with confidence, on our objections to the tax title; and, in either case, if notice was 'conveyed, Hubbard will, himself, stand in no better position, in respect to the rights of the complainant than if the estate had passed through ^Hubbard, instead of George F. Such being the case, as the trust had attached in favor of the complainant, from whom the consideration moved, before' the deed was executed to George F., Hubbard would be held, in equity, subject to the same remedies with George F. In order for Hubbard, being himself chargeable with notice, to set up title by virtue off ' the deed from George F., he is compelled to take the position, that George himself was a bona fide purchaser for a full consideration. The notice that affected Hubbard, at the time of his purchase and advance of consideration, takes away all the merit which he might otherwise claim, in respect to his own conduct. It is such as places him along side of George P. himself, as a participator in his attempt to commit a fraud on the complainant, or, rather, he is seeking to avail himself of an advantage as the consequence of that fraud. But the complainant’s superior equity must prevail. I can not understand how the doctrine of estoppel, as admitted in a court of law, can have any effect in a court of chancery, under circumstances like these. What equity is there, in Hubbard, to ■claim an estate that he purchased (and paid for) of a person who had no title, being chargeable with notice that the title to that •estate was outstanding in a third person, of whom the complain■ant purchased it, and to whom he paid the consideration ? The mere fact that it became convenient, afterward, in transmitting the title to the complainant, to pass it through the person of whom Hubbard purchased, can not affect the merits of the question, one way or the other.
    This view of the case is strongly fortified, and we are willing to trust the decision of the case upon it.
    We have the right of being substituted in the place of the holder of the mortgage, which was then a lien on the land, and which we have paid off.
    Here, the mortgage being a subsisting lien when Hubbard purchased, he is no worse off than he was at the date of his purchase, if we, who have paid it off, are allowed to assert it.
    It would be unjust to allow Hubbard to have the benefit of that payment, for he was chargeable with notice that it was a valid incumbrance on the land when he bought.
    *This equity is but the claim of a familiar principle in favor of the complainant.
    Peter Hitchcock, on the same side:
    In the consideration of the case I shall treat it as if the controversy was between Burchard, the complainant, and'Hubbard, one •of the defendants; for although the defendant, Brooks, has purchased of Hubbard and paid the consideration money for the land, he can not claim under his purchase any better right than was vested in his vendor. And it may be further remarked, that at the time of his purchase all the title papers now given in evidence were of record, so that he had full notice of the state of the title.
    Neither Hubbard nor Brooks have interposed the plea of bona Jide purchaser, without notice; and if they had, such plea could not, under the circumstances of the case, have availed them. Neither do they rely upon such defense in their answer.
    I take this to be an incontrovertible principle, that the purchaser of real or personal property acquires no greater interest in the property purchased than was vested in his vendor. If the vendor has no interest, the purchaser acquires none. In the case under consideration, we admit that Hubbard contracted with George F. Whitaker for the land in controversy, that he paid him for it, and received from him a deed of conveyance; but we insist that, by this purchase, he acquired no interest, either legal or equitable, in the land itself, because his vendor had no interest, or if he did acquire any interest, it was only the interest previously vested in George. By this purchase the interest of third persons could not be affected. Burehard has also paid for the land; and by this payment he acquired an equitable interest in the land, because he contracted with, and paid to, the rightful owner. Both parties have paid for the land, but there is this difference between them: Bur-chard paid to the rightful owner, Hubbard to a stranger.
    *This principle that the purchaser acquires no greater interest by his purchase than was vested in his vendee, is one which it is necessary to bear in mind in the further consideration of this case. In such further consideration I shall avoid, as much as possible, the repetition of the arguments urged by my associate counsel.
    It will be seen that Dickson, in January, 1831, conveyed to George his tax title; in June, 1834, George contracted to sell 150 acres of the land to Hubbard; in March or April, 1835, Burehard purchased, and paid to and for the use of Isaac the purchase money, the entire 190 acres; in July, of the same year, George conveyed the land in controversy to Hubbard; in August, Isaac conveyed to George, and in November, George conveyed to Burehard.
    Now the inquiry arises as to the interest which Hubbard acquired by his contract of June, 1834. He acquired an equitable claim to whatever interest George then had in the land. He certainly acquired no other equity; no equitable claim to any interest which Isaac might have. The interests of George, so far as he had any interest, and the interest of Isaac, were adverse one to the other. The only claim of George to the land was in virtue of a sale for taxes, while Isaac had an interest in fee simple, unless that, interest was defeated by the tax sale. If this sale was valid, then Hubbard acquired an equity in the land, because George had title. But if this sale was void, then George had no title, and Hubbard1 acquired no equity in it, although he may have acquired a right, of action against George upon the contract.'
    Payment having been made upon this contract, George, on June-24,1835, conveyed by deed, with covenant of warranty, the 150‘ acres of land included in the contract to Hubbard; and this deed was recorded two days after its date. By this conveyance Hubbard acquired all the legal title of George to the land, as he had, by his contract, acquired all his equitable title. As we have before seen, this legal title was nothing but the tax title. If that was. valid, then Hubbard by this conveyance became vested with a title-in fee simple to *the land; but if it was invalid, he acquired no more interest by the deed than he did by the contract, that is,, just no interest at all.
    Before this conveyance, however, to wit, in March .or April preceding, Burchard had become interested in the land by purchase, and payment of the purchase money to the rightful owner; that is, unless Isaac ha-d been divested of his ownership by the tax sale. But, it may be said, that Hubbard knew nothing of this interest of Burchard. By an examination of the record of deeds of the county, he must have known the state of the title, and that George had no other title than that acquired by the tax sale. The deeds previously executed were all of record, and he was bound to take notice of them. Besides, Burchard was in possession, by his tenant, Isaac Whitaker. True, Hubbard, in his answer, says-that George represented the person in possession to be his tenant. But he was not the person of whom to inquire; he should have inquired of the tenant himself.
    Subsequently, in order to carry into effect the contract of Bur-chard, and to vest the legal title in him, the deed of April 12,1835, was delivered to him, although made, upon its face, to George;, and on the 3d of November following, George conveyed to Bur-chard. Should any suspicion of unfairness arise from the circumstance, that this deed bears date on April 12,1835, and was not delivered until the August following; or, should it be suspected that it was actually delivered at an earlier period than we say it was, •these suspicions must be removed when the court see, as they will see upon inspection, that it was not acknowledged until the 10th of August. Before this acknowledgment it could not, under our statute, operate as a conveyance. Besides this, Dickinson, in his testimony, explains the reason why the deed was not sooner delivered. He says that the whole business would have been completed on the 12th of April, but on account of the absence of some person whose presence was necessary; and that he, having the charge of the business for ajames and Isaac, did not find time to attend to its final completion until the August following.
    How, then, stands the ease in this aspect of it? Burchard has .a legal title derived from Isaac, the rightful owner, through George. Hubbard, if he has any title, has a legal title derived from the sale for taxes. And here it must be noticed, that the titles of Isaac and Dickinson did, at no one time, center in George. They were always adverse. Before the title of Isaac was vested in George, he had parted with the title derived from Dickinson. In this state of the case, it is manifest that Burchard has a perfect legal title, unless that title is defeated by the tax sale. And this leads to the inquiry as to the validity of that sale.
    Were we to look only at the deed from the auditor, it would seem to me that nothing could pass by that deed, on account of the uncertainty of the description. The court will see that the deed recites, that Dickinson had purchased 120 acres of land in the ‘‘ Whitaker Reserve,” in township 5, range 15. This is all the description we have of the land. Now, the Whitaker reserve contains 1,280 acres of land. Which of these 1,280 acres was forfeited — which part was sold — which part was conveyed? This deed, if available at all, would authorize the purchaser to claim as well in one part as another. There is that uncertainty about it( that the deed itself must be held to be void, unless some new rule -is established.
    Further, this deed is inoperative, because it purports to convey more land than was sold. The quantity sold was, according to the recital, 120 acres; the quantity conveyed is 140 acres. If this deed shall be held to convey anything, it is impossible for me to see by what rule of construction it shall be held to convey that part, or any portion of that part of the reserve, which had been conveyed to Isaac. There is nothing in it to point to that part. The land forfeited was not listed in his name, but in the name of his mother.. The quantity listed is fifty acres less than what belonged to him j. and there is nothing in the description designating his land.
    *But if the court can get over this difficutly, there is still another, growing out of the deed from Dickinson to George. In this-deed, the land conveyed is described as being the land of Isaac, but is described as being sold to Dickinson on December 14, 1831; whereas, the land conveyed by the auditor’s deed, which we have in evidence, was sold on the 12th day of December, and the deed executed on the 15th. There is, then, no evidence, except from the deed of Dickinson himself, that the land by him conveyed to George was ever sold for taxes.
    Again, it will be found upon reference to the papers from the auditor’s office, now on file, that there is the same uncertainty in the description of the land in the duplicate and list of sales, that there is in the auditor’s deed. The only description is 150 or 140’ acres in the Whitaker reserve. There is nothing, however, to-show that this particular tract of land was ever in default for the non-payment of taxes; 140 acres was forfeited and sold in some-part of the reserve, but in what part is not shown. Under the-authority of the cases heretofore decided by this court, and referred to by my assooiate counsel, this sale must bo held to be defective, if not absolutely void.
    Such being the case, it follows that, inasmuch as the complainant has the legal title, and is in possession, he is entitled to a decree to quiet him in that possession.
    I am here, however, met by the objection that, inasmuch as-George conveyed to Burehard, with covenant of warranty, and, inasmuch as we claim under or through George, we are estopped from denying that he had title. It is a familiar principle, and one-which I am not disposed to controvert, that where one man, having no title, makes a deed of conveyance to another with covenant ”of warranty, and subsequently acquires title, this after acquired title inures to the benefit of the purchaser, and the vendor, and those claiming under him, are estopped from saying he had no title. In such case, the right or title of the vendee commences, not from the date of his deed from the vendor, for by that he took nothing, but from *the date of the acquisition of title by the vendor. This estoppel works an interest in the land, and the vendee may, without impropriety, be said to have a title by estoppel. The object of this rule, is to do justice, and prevent multiplicity of suits. But it must be observed, that the principle or rule applies only in cases where the grantor has no title or interest in the thing granted, so that there is nothing upon which the deed can operate. If, however, there is any interest in the grantor, although defective, or although less than is granted, the deed will operate to convey this interest, and can not operate as an estoppel. Thus, if tenant for life convey in fee simple, with covenant of warranty, the estate for life passes. But if the grantor subsequently acquire the reversionary interest, this will not inure to the benefit of his vendee.
    In speaking upon this subject, Chancellor Kent says, 4 Kent’s Com. 98: “If any interest, however small, passes by a deed, it creates no estoppel. The deed which creates an estoppel to the party undertaking to convey or demise real estate, when he has nothing in the estate at the time of conveyance, passes an interest or title to the grantee or his assignee, by way of estoppel, from the moment the estate comes to the grantor.” So it is said, in Co. Lit. 45, a, “wheresoever any interest passeth from the party, there can be no estoppel against him; and so it was adjudged.” Again Co. Lit. 47, b, it is said: “A., lessee for the life of B., makes a lease for years by deed indented, and after, purchases the reversion in fee. B. dieth. A. shall avoid his own lease ; for he may confess and avoid the lease which took effect, in point of interest, and determined by the death of B. But if A. had nothing in the land, and made a lease for years, by deed indented, and! after purchase the land, the lessor is as well concluded, as the lessee, to say that the lessor had nothing in the land.” This doctrine is fully sustained in 3 Bac. Abr., tit. Leases, O.
    Let us apply this principle to the case under consideration. If, at the time George F. conveyed to Hubbard, he had no interest, but afterward acquired a title, this would inure to the *benefit of Hubbard ; and George, and those claiming under him, would be estopped to say he had nothing in the land, at the time of conveyance. As the deed would operate in no other way, it must operate by way of estoppel. But if George had any interest in the land, no matter how small, that interest would pass by the deed, and there could be no estoppel, He had an interest, such as it was, by the tax title, and this passed, although defective in form and substance; still, there was an interest.

      If I am right in this position, there is an end to the case. But if the court should be of opinion that this tax title was void, and that the deed from Dickinson, of January, 1834, conveyed no interest to George, still I insist that the equity of the case is with the complainant, and he is .entitled to a decree.
    If the conveyance of Dickinson vested in George'no interest in the land, then, in July, 1834, when he contracted to sell to Hubbard, he had no interest, and Hubbard acquired none. Neither did the conveyance of George to Hubbard, of June 24, 1835, vest any interest in Hubbard. Until and after this time the title, in fee simple, was in Isaac, subject to the mortgage to James. Hubbard, by his contract, acquired no equity in the land; by his deed he acquired no legal interest in it. It must be so unless the court should hold that a stranger, by contracting to sell my land, confers upon his vendee an equity in that land, or, by conveying it, vests in the vendee a legal title.
    Previous to the date of the deed of George to Hubbard, Burchard had acquired a perfect equity in the land, by purchasing the same, and paying to and for the use of the rightful owner the purchase money. At any moment he could, by a proceeding in chancery, have compelled a conveyance from Isaac. In fact, Isaac was his trustee, holding for him the naked, legal title. This, then, was the situation of the respective parties. The legal title was in Isaac, the equity in Burchard, and neither George nor Hubbard had any claim, either in law or equity, unless derived from the sale for taxes.
    *Thus the matter remained until August 10, 1835, when the deed of the 12th of April, of the same year, was perfected by acknowledgment and delivery.
    I admit, in the view now taken of the case, if this deed had been delivered to George with a view of vesting in him the ownership of the land, or if the design had been to vest the title in fee simple absolutely and unconditionally in him, or if, by the delivery of this deed, he bad become the owner of the property, both in law and equity, then the title by him acquired would have inured to the benefit of Hubbard; and George, and those claiming under him, would be estopped to say he had no title on the 24^ of June, when he conveyed to Hubbard. Hubbard’s title, however, would not have commenced with the date of his deed, but at the time George acquired title. The title would, in fact, have been cast upon Hubbard by the operation of law. But it would he absurd to suppose that any greater interest could vest in Hub-hard, by this estoppel, than was vested in George by the deed of Isaac.
    What, then, was this interest? We have already seen- that Isaac had nothing in the land but the naked legal title, which he held in trust for Burchard, in whom was the equity. This naked legal interest, then, was all he could convey, and all George could take by the conveyance, he knowing, as the case shows he did •know, all the facts. And by this conveyance he became, as his grantor had been before, the trustee of Burchard, holding the legal title for him. The fact that the deed was absolute upon its face could make no difference as to him. The testimony of Dickinson shows conclusively that the conveyance was made to George, not to vest the property in him, but for the purpose of transmitting the title through him to Burchard. George had paid nothing for the land, and had no claim to it, derived from Isaac. Upon this subject there can be no doubt, if Dickinson tells the truth. It'was the intention that George should take the naked •legal title alone, in trust for Burchard, who had the equity. Such was the understanding of all concerned. This statement of Dickinson is corroborated by the fact that this deed never was, in truth, delivered *to George, but was delivered to Burchard, the equitable owner of .the land. Under this state of facts, had -the title remained in George, after the delivery of this deed, and had he refused to convey to Burchard, a court of equity would have compelled him, on the ground that he was a mere trustee. George, then, did not acquire such a title as would inure to the benefit of Hubbard, and Burchard can not be estopped from showing the real nature of the whole transaction. If this title could .inure at all to Hubbard, it would only inure to him as it existed in George, and he must hold, as George did, tho mere naked legal titleñn trust for Burchard.
    I admit that if, while the title was thus vested in George, Hub-hard bad taken a conveyance from him, without notice, either actual or constructive, of Burchard’s equity, he would have held the land. In such state of things, however-, the question would arise, whether the actual possession of Burchard, by his tenant, was noi! sufficient notice. But such is not the state of the case. The conveyance of George, to Hubbard, was before George acquired even this naked legal title, and before he had any interest; therefore-the doctrine of notice has no application. Situated as this case is,, to hold that a title inured to Hubbard in consequence of the conveyance of Isaac to George, and that Burchard was estopped,, would be to apply a principle, which was intended for the furtherance of justice, to defeat justice.
    The mode of transmitting title in this case was, it may be admitted, somewhat singular, but it was the mode advised by Dickinson, a lawyer by profession, acting as the agent of Isaac, and' the mutual friend of the parties. It was probably adopted in consequence of the circumstance that the tax title had before been conveyed by Dickinson to George, with an understanding that he-should be indemnified when the property should be sold, and it does not seem to have been known to any of the parties that George had conveyed to Hubbard, except to George himself.
    Should it be objected that, inasmuch as this deed was absolute upon its face, we have no right, under the statute of frauds,, *to introduce parol evidence to prove the trust, I reply that it is a clear case of resulting trust, which may always be explained' by parol, the statute notwithstanding. Burchard actually paid the money for the land, and paid it to and for the use of the rightful owner, and in consequence of this payment the conveyance-was made, not to Burchard, but to George; and in consequence of the previous payment of the money a trust resulted. It does-not differ from the common case of the payment of money for land,, by one individual who takes the deed in the name of another, in which case there is always a resulting trust.
    Under all these circumstances it seems to meto be clear that the complainant has a perfect equity in this land, while the defendant has no equity at all. If he has any interest at all, it is th© mere naked legal title which he holds as the trustee of Burchard. He has no equity in the land, because, although he has paid a price for it, that price was paid to a stranger, not to the rightful owner. And if the court should hold that the title was in the defendants, or either of them, Isaac Whitaker is entirely cheated out of his land. For, upon such holding, it follows that the consideration for which .Burchard paid- his money, will have failed, and th© money paid may be recovered back.
    It may be thought that it will be equally hard for Hubbard' should it be held that he had no title. It is true he also has paid his money, but he paid it with his eyes open. The state of the-title appeared upon the records, and these records showed that his-vendor had no other than the tax title. This he acquired, and nothing more. No other title, not even the naked legal title, would ever have been conveyed to Isaac, but for the payment made by Burchard. Hubbard, if he loses anything, loses it, not for any default, deception, or misconduct of the complainant, but on account of his own negligence. Besides, it must be remembered that he has received back $300 of the purchase money, so that, at the-worst, he is but $400 out of pocket, which he may recover in an action upon the covenants of his deed, ^against George, the man in whom he trusted and confided. He can be placed in no-worse situation than he would have been had Burchard not purchased the land, for, in that event, he must have rested entirely upon his tax title.
    The defendant, Brooks, purchased in 1838, long after all the-deeds of conveyance, prior in time to his, had been -placed on record. Of course he must be held to have had notice of the-exact state of the title, and can be in no better situation than Hubbard.
    Upon the whole case, it seems to me that the plaintiff is entitled to a decree, both upon the ground that he has the legal title, and is in possession, and upon the ground that he alone, of all the parties, has any equity in the land.
    The reporter was furnished with no argument for the defendants.
   Birchard, J.

The first question in this case grows out of a tax sale, and the decision of it will settle the merits of this controversy.

A tax deed was the only title held by George F. Whitaker when he conveyed to Hubbard, and the only interest in the land, which Hubbard acquired from him, was the tax title. Unless it was valid, no legal estate was conveyed to Hubbard, and the respondents have no rights except such as flow from the covenants-contained in George E. Whitaker’s deed. Whether these covenants operate to their benefit, so as to secure a title by reason of the deed subsequently made to George F. Whitaker, will be considered hereafter. The tax deed recites a sale of “ 120 acres in the Whitaker reserve, in township five, range fifteen.” The whole reserve contained 1,280 acres. The deed does not inform us what part of the tract of 1,280 acres was delinquent, forfeited, or sold. And, if it was available, it would entitle the grantee to claim as well one portion of the tract as any other. It also recites a sale

*of 120 acres, and purports to convey 140 acres.

The lands were listed in the name of Elizabeth Whitaker. The portion of the tract in question had been previously conveyed to Isaac Whitaker. How do we know that it was Isaac’s portion of the tract, and not the part belonging to Elizabeth, which was sold? Certainly not from anything connected with the tax sale. The defects run through the proceedings in the auditors’s office, and the tax title may be laid out of view, so far as its validity is in question. The cases cited by complainant, in 2 Ohio, 287; 5 Ohio, 458; 6 Ohio, 391, and 10 Ohio, 556, are in point.

Whether the subsequent passing of the legal title, through George F. Whitaker, will inure to the benefit of Hubbard, by reason of the covenants contained in Whitaker’s deed, is the material and remaining question in the case. It will be observed that a mere naked legal title was all that ever passed through him. Burchard was the purchaser, and the title was conveyed to George F. Whitaker, as a matter of. convenience. Taking the title, then, as between the two, the law constituted George F. a mere trustee of the naked legal title. A trust resulted to Burchard, whose money was paid to the bona fide owner. Had George F. Whitaker acquired for himself the legal and equitable title, he would, by reason of the warranty contained in his deed, have been es-topped at law from denying the title of Hubbard, and, in chancery, his conveyance to Hubbard would have been held binding on his conscience.

We are asked to extend and apply this rule, as against the complainant. To do so, in the state of facts here existing, would be pushing it beyond reason. The equity of the complainant is equal to that of the respondents. He had no notice of their rights; his purchase did the respondents no harm; it did not mislead them. The deed, in fact, was not delivered to George F. Whitaker, but went into the hands of Dickinson, the agent and attorney of the complainant, who received it, and delivered it to the complainant, by whom it was put on record. If the doctrine of estoppel could apply, it would vest *no better title in Hubbard than George E. Whitaker himself acquired, that is, a trust-, estate.

In equity, he who is prior in time, other things being equal, hath the better right. Tried by this rule, complainant has the better equity in the lands. He purchased of the rightful owner, and paid his money. Hubbard bought of a stranger to the title. His payments were completed on June 24, 1835, at which time he took his deed from a stranger, who had nothing but a void tax title. This created no equity to the lands then owned by Isaac Whitaker. Before this time, complainant had become interested in the land by purchase, and payment of the money to Isaac, the real owner.

' True, the deed from Isaac to George E. Whitaker bears date April 12, 1835, but it was not delivered until the August following. The acknowledgment bears date the 10th of August, and Hubbard, in his answer, says he had no knowledge of it. Hubbard’s equity in the land, if he have any, can only date from the time George E. Whitaker received a legal title. It commenced with the delivery of Isaac’s deed to George E. Whitaker ; not with the delivery of George’s deed to Hubbard. Before this, Burchard had acquired an equity which chancery would have enforced as against Isaac, the real owner. And it would be strange, if Isaac’s subsequent deed, given without consideration on the part of George E., could, by operation of law, vest a title that would defeat him.

Is it doubted, if George E. had refused to convey, under these circumstances, that equity would have compelled him? He having made such conveyance, it must be held operative, and Burchard’s equity being prior in time, his title should be quieted.

Decree for complainant.


source: Caselaw Access Project

author: Read, J.

license: Public Domain

text:
    *Adam Moore v. The Lessee of Isaac G. Burnet.
    The legal title of a trustee under a deed of trust, with a power to sell for the payment of the debts of the cestui que trust, is not divested by the discharge of the debts, but the trustee may maintain ejectment.
    This is a writ of error to the Supreme Court of Hamiltott county.

      The plaintiff, in the trial below, offered in evidence as the foundation of his recovery, a deed for the land in question, bearing date November 18, 1826, from William H. Harrison and wife, Jacob Burnet and wife, and Lewis Whiteman and wife, to Isaac Cr. Burnet. This deed contained the following recital: “ Whereas, the parties of the first part are indebted to the estate of Hr. Elias Boudinot, late of the State of New Jersey, deceased, in the sum of about $4,000, on account of the purchase of the premises hereinafter mentioned, and have agreed to convey the said premises to t,he party of the second part, with power to sell and convey the same and apply the proceeds to the payment of the said debt, the amount of which will be ascertained by reference to a bond now in the hands of the executors of the said Elias, and which is considered as a lien on said land. Now this indenture witnesseth, that the parties of the first part, for and in consideration of the premises, and for the further consideration of one dollar to them in hand, well and truly paid, etc., have granted, bargained, and sold, etc.
    The deed then proceeds, in the usual form, with covenants of warranty. Both parties claiming under William H. Harrison, there was no question raised by either party as to his title. The defendant claimed the land in controversy by virtue of a deed made by the sheriff of Hamilton county, on a sale of the premises as the property of William H. Harrison, upon a decree against him in 1828; under which sale, the defendant *went into possession. The defendant then offered evidence tending to show that the debt, mentioned in the deed to Isaac G-. Burnet, was paid before the sale under which defendant claimed, and asked the court to charge the jury that if they were satisfied that said debt was so paid, the plaintiff’s title was extinguished, and he had no right to recover. The court refused to charge as requested, but charged that, if the debt was paid it would not defeat the plaiptiff’s title. To this opinion of the court exceptions were taken, and they are now assigned for error.
    Charles Fox, for plaintiff in error :
    It will be observed that Isaac G-. Burnet never had any beneficial interest in this land. It was merely conveyed to him to secure payment of the debt due to Boudinot’s estate, and the conveyance, it is said, gave him a power, to sell if ho should think proper to exercise it, in order more fully to secure the payment of the debt. This instrument, as I understand it, is nothing but .a mortgage; and if so, it will not be pretended the judgment is correct. Now, to constitute a valid mortgage, there must be a person capable of granting, a person capable of receiving the estate, an estate to be conveyed, and a debt to be secured. But, I insist, it makes no difference, whether the creditor, or a third per•son, is the mortgagee. The object of the mortgage is to secure the debt, and whether the title is vested in the creditor or some third person, for his benefit, is immaterial. It may be to the creditor, or to one of many creditors, for the benefit of himself and -others. 7 Cow. 13; 13 Wend. 485.
    The case in 13 Wend, was a case where a mortgage was made :and conditioned to be void if certain legacies were paid. These legacies were not due to the mortgagee.
    The mortgage, in 7 Cowen, 13, was to secure payment of a debt, on which the mortgagees and two other persons were liable.
    *In 15 Johns. 205, and 3 Wend. 209, the deed was absolute on its face, but a written defeasance showed the intention of the parties was to secure payment of a debt; therefore, the deed was held to be a mortgage. So in 15 Johns. 555.
    That a deed absolute on the face of it may be shown by parol, to have been intended only to secure the payment of a sum of money, and therefore is only a mortgage, is now well settled. 1 Cow. 122; 18 Johns. 7, 110.
    The essence of a mortgage, I suppose to be the security for the payment of a debt, or for the .performance of some other lawful act. It is immaterial whether it is the grantor’s debt, or the debt of some other person, or whether it is to pay a debt due to the grantee or some other person, or for the performance of an act beneficial to the mortgagee or some other person.
    Now, in the present case, the object of the conveyance is declared in the first part of the deed, and that object is to secure payment of a debt. We have, then, the existence of a debt admitted; the object declared to secure the debt; and the deed also contains the power to sell the premises, to pay the debt. Surely the deed does not cease to be a mortgage, because a power of sale is contained in the deed. 18 Ves. Ch. 343. All mortgages contain that power in New York, and a statutory foreclosure is provided for under such power, without going i„to chancery. 1 Johns. Ch. 50; 2 Cow. 195. If the whole of this debt had been paid, would it be pretended that the power to sell would not. have ceased from that time ? The power to sell was only a means provided for enforcing payment; and if the object of the parties (the payment of the debt) had been accomplished,It is very clear the power to sell ceased at that moment. The addition of such a power is contained in all the modern English mortgages. 3 Pow. Mort. 1122, contains a form of mortgage with power of sale. 1 Pow. Mort. 110, 9 a, note.
    The fact, then, that this deed authorizes Burnet to sell to pay the debt, can not affect the matter one way or another ; *and leaving the power to sell out of the question, we have a simple conveyance to secure the payment of a debt; and the amount is to be ascertained by reference to the bond referred to. If this is not a mortgage I do not know what is. It is not necessary that there should be any defeasance, in fact, to constitute a mortgage.. 2 Sumn. 487.
    The case of Stratton v. Warren, Sabin, and others, 9 Ohio, 30, has no application, because, in that case, thei’e was no evidence of any debt due.
    Nor does the case of Baird v. Kirtland et al., 8 Ohio, 23, affect this case, because the nature of the transaction did not appear on the deed, nor was the money paid, although the court say in that case the transaction would only amount to a mortgage in equity.
    If, then, this is a mortgage, Harrison had an interest which could be taken and sold on execution, and the purchaser took subject to the mortgage. 5 Paige’s Ch. 9; 10 Ohio, 71; 3 Ohio, 21. And it is now well settled that payment of a mortgage debt is a discharge of the mortgage, and that a reconveyance is unnecessary. But the fact of payment is, of itself) in effect, a transfer of the title. 1 Cow. 122; 18. Johns. 113; 11 Ib. 534; 1 Marsh. 53; 1 J. J. Marsh. 257; 8 Ohio, 23; 1 Pow. on Mort. 110, note; 3 Mason, 520.
    So a tender, of the money due, is held to divest the mortgage of the legal title. 18 Johns. 114, 115.
    It is said, however, this is a deed of trust, and therefore the title was not in Harrison. In one sense, every mortgage is a deed of trust; but if it is intended to say this is a technical deed of trust,
    I deny that it can be so construed. There is no trust declared in the deed itself, and if any trust exists, it is only by implication, and such a trust exists in all mortgages. If I transfer, by deed, absolute on its face, although really to secure payment of a debt, undoubtedly the mortgagee may be considered a trustee. But we have seen that it makes no difference as to the character of the instrument, whether the deed, absolute on its face, is turned into a mortgage by parol, *or by a written defeasance. The fact of its being to secure a debt, and that the debt is paid, may be shown at law or in equity, and when shown, defeats the title of the mortgagee. 1 Cow. 122 ; 18 Johns. 7, 110.
    I claim, therefore:
    1. That, as between Moore and Harrison, we showed a judgment, execution, and sale, and hence Harrison could not say we had no title,, as against him.
    2. That the'deed from Harrison to Burnet is, in truth and in fact, a mortgage, and not a deed of trust.
    3. That if it could be considered a deed of trust, after the payment of the debt, it was a trust for the benefit of the grantor, and therefore void, and could not operate against the levy made after such payment, and that the court ought so to have instructed the jury; but not having done so, the judgment ought to be reversed.
    Wright, Coffin & Miner, for defendant in error:
    The argument, on the part of the plaintiff in error, is directly to establish the fact that the deed to the lessor of the plaintiff was but a mortgage, and that being such, the payment of the money extinguished the mortgagee’s right, and reinvested him with the estate. This court, in St. Clair v. Morris, 9 Ohio, 15, say that a mortgage in fee, is, in reality, a fee simple conditional, which is as large and ample estate as a fee simple absolute, though it may not be so durable ; and a transfer of such an estate can not be affected by a mere assignment of the debt. It would seem, then, that if the estate was so ample that a transfer of the debt, which is claimed to be the principal ingredient of the mortgage, will not transfer the estate, that payment, or any other matter, evidenced by less solemn act than the mortgage, can not be held to effect that end. But a mortgagor, before condition forfeited, is only regarded the owner of the mortgaged premises, against all but tlie mortgagee; and if his right of possession be levied upon and sold, he only acquires that right, and upon it can not defend himself in possession against the mortgagee. 2 Ohio, *224, and mortgaged lands, in the hands of the mortgagee, can not “ be sold on execution until the equity of redemption is foreclosed.” Hill v. West, 8 Ohio, 224.
    The general assembly, in 1836 (Swan’s Stat. 270), finding doubts and inconvenience to exist as to making releases of mortgaged property, provided, for the first time in this state, that the entry of satisfaction, on the mortgage, or on the record, should “ operate, and be taken, to release the said mortgage to whoever might be entitled to a release.” In the case before the court, no evidence exists on the deed, or upon the record of it, of any satisfaction. The legislative provision is a good one., This court will not extend it. Before this act, we contend the’estate, vested in the mortgagee, could only be legally divested, and vested in the .mortgagor, by deed of release, an instrument of eqaal dignity with the conveyance.
    It is not necessary, we think, to inquire how far courts of equity may go, to ascertain whether a conveyance, absolute on its face, was, in fact, a mortgage, because our case bears no analogy to such.
    Our title is a deed of trust, absolute on its face, and in fact. It is true, the recital in the deed, in setting forth the reason for the conveyance, speaks of a debt due by the grantors to a third person, the intention of paying that debt, and to confer power to sell the estate conveyed, to effect that end ; but, having recited these facts, it conveys the land in fee absolute, without any condition of defeasance, in form, on its face, or, in fact, in any way. If, then, it were to be held, which we think it can not be, that the performance, in fact, of the condition of a fee conditional, saves the estate from becoming absolute, and ipso facto, worked a reconveyance, still that is not our case, simply because there is no condition of defeasance connected with our deed, evidenced by it, or otherwise. If, also, in such fees conditional, the grantor is held the owner until the condition of the grant which is to render it absolute has happened, and, until then, may be sold as his, yet, again, that is not this case. We have now to do with the grant actually made, not with any other the parties ought, or may have intended, to make. *If the deed does not convey the estate the parties intended, this court can not, in this way, correct it, and make it conform to their intention. Can any one say this deed is a mortgage in form or fact? We think not. And though a mortgage may, to some extent, be regarded as a trust, it does not follow that a deed of trust proper, as familiar to the law as a mortgage, is to be taken and held to be a mortgage, to let in a technical adverse claimant.
    In any view in which we may look at this case, it appears clear that the court did not err in either of the particulars named, even if the court suppose the evidence offered received, which does not appear; and if rejected, this court can not notice that, because no exception appears to have been taken to that. The practice in New York is peculiar to the laws of that state, and not well adapted to our law on this subject.
   Read, J.

William H. Harrison, Jacob Burnet, and Lewis Whiteman had, by deed, with full warranty, conveyed this property to Isaac G. Burnet, with power to sell and pay to Elias Boudinot $4,000.

This deed places the legal title in Isaac G-. Burnet, the lessor of the plaintiff in ejectment. Whilst the legal title was thus in Isaac Gr. Burnet, one-third of the estate was sold under a decree, as the property of William H. Harrison. The purchaser then, of course, takes but Harrison’s interest, whatever it may be.

Having but the equity, at most, by thé sheriff’s deed, he is here in court, urging it as a bar to a recovery in an action of ejectment.

Counsel perceive that this is an end of their case, and seek to avoid it, by contending that the payment of the $4,000 to Boudinot, ipsto facto, destroyed the deed to Isaac Gr. Burnet, and reinvested the cestui que trust, William H. Harrison, with the legal title, and that it has passed to the purchaser under the decree.

To make out this conclusion, it is contended that this is a case of a satisfied mortgage.

*To place it upon the most favorable footing for the defendant in ejectment, it is not a satisfied mortgage, but a satisfied trust. A cestui que trust having the legal title, may maintain ejectment after the trust is satisfied. Hopkins et al. v. Stephens et al., 2 Rand. 422; Hopkins et al. v. Ward et al., 6 Munf. 38. From anything that appears in the record, Isaac Gr. Burnet may be more than & mere naked trustee; he may have an interest.

There is nothing in this deed to distinguish it from an ordinary deed of trust, where a conveyance of the trustee to the cestui que trust is necessary to reinvest him with the legal title. It is not at all the case of a mortgage, because a mortgage is a mere incident to a debt which it is given to secure, and never divests the legal title of the mortgagor as to the rest of the world, nor even as to’ the mortgagee, except to allow him to obtain possession and apply the rents and profits to satisfy his debt. A mortgage lives and dies with the debt; satisfaction destroys it.

But such is not this case. The whole legal title passed in trust to the lessor of the plaintiff, where it remains, and entitles him to recover in ejectment.

The court did not err in their charge to the jury.

Judgment affirmed.


author: Lane, C. J.

text:
    *Epaphro Seymour v. Hezekiah King et al.
    A sheriffs return that he could find no goods or chattels, lands or tenements of the principal debtor, unincumbered by mortgage, is sufficient to authorize suit on an injunction bond.
    This is a motion for a new trial, from the county of Lake.
   Lane, C. J.

This was a suit on a bond given to obtain an injunction in a suit in chancery, which has been dissolved. It was reserved to determine whether the return of the sheriff, of the execution against the principal, is sufficient to give the action under the statute.

The return is in these words, “ I have made due and diligent search for goods and chattels, lands and tenements, belonging to the defendant, and find none in my bailiwick unincumbered by mortgage, whereon to levy this execution, and the same is returned wholly unsatisfied.”

This seems to us sufficient. The sheriff’s return is to be taken as good between these parties, and can not be falsified as between them by other evidence; for he is the officer of the law, and the creditor need look to no other source of information than his official return. If it be false, he may be sued for false return, and its falsity may be shown against him. Perhaps, too, these defendants have such an interest in that return that they may correct it in that court by motion. But here, it,must be taken as it stands, and wc can look no further.

Hitchcock & Wilder, for plaintiff.

Wade & Hurlburt, for defendants.

It showed the principal debtor had no property except what is incumbered by mortgages. What liens, or on what property is not set forth. Now an execution may be levied on the interest of a mortgagor in possession of mortgaged lands, because it is a possessory interest at least, which is a legal estate. But since it is to be appraised at full price, without regard to the mortgage, which remains an incumbrance on the lands, and may be asserted against the purchaser, it is plain that no fair sale can be made of lands so situated; and we *have held at this term that it affords a sound reason for abandoning such a levy. Commercial Bank of Lake Erie v. Western Reserve Bank et al.

A court of equity is the only proper tribunal to adjust the interests of all parties.

The most which can be made to favor the defendants from this return is, that there might have been made a levy, which the plaintiff was not bound to pursue, and from which he properly ■could obtain no satisfaction of his debt.

It seems to us the return affords the plaintiff ample ground to 'commence this suit; that under such circumstances of mortgaged lands, the surety may protect himself by paying the debt and claiming the benefit of the judgment by way of substitution.

Motion for new trial overruled. Judgment for plaintiff.


author: Wood, J.

text:
    William Melick and wife v. Abram Darling.
    To create a case of election there must he a plurality of gifts or rights, with an intention, express or implied, of the party who has a right to control one or both, that one should be a substitute for the other.
    The party who is to take has a choice, but he can not enjoy the benefits of both.
    This is a bill in chancery, from the county of Knox.
    The object of the bill is to compel the defendant, Abram Darling, to relinquish his claim to the southwest quarter of section 7, township 5, and range 10, in the county of *Knox, or to surrrender his rights under the will of William Darling.
    At the date of the will, the testator and the defendant were tenants in common of the quarter section, the patent having issued to both. This community of interest existed at the time of the death of the testator.
    The testator devises: 1. To his two grandsons, Patrick M. Darling and Wm. Darling, the form or plantation where he then lived, containing 525 acres, being in township number six, etc., to be equally divided between them in quantity and quality, when they arrive at the age of twenty-one years. In case of the death of either of the devisees without legal heirs, the property is to revert, to the survivor; and il neither live to have legal heirs, the plantation is devised to his grandson, Adam H. Darling; and if the last-named devisee died without a legal heir, the farm to be equally divided among the surviving sons of the testator’s son, Abram Darling; but if he had no sons, then to be equally divided among the surviving daughters of Abram Darling, etc. 2. The testator devises to bis grandson, William D. Beatty, his half of the quarter section, entered in the name of William Darling and William. Beatty, lying and being in township 5, range 10. Also, he gives to his grandson, Jeremiah Beatty, the southwest quarter of section 7, in township 5, and range 10. Also, to his two grandsons, Adam D. Darling and William P. Darling, the northwest quarter of section 7, in township 5, and range 10.
    A tract of land in Virginia is also given to the testator’s son and daughter, Abram and Jane; and his personal property directed to be equally divided among his grandchildren, after the payment of his debts.
    Hosmer Curtis, for complainant:
    The first question between us turns upon the right construction to be given to the will. That clause through which '^complainant, William Melick, derives title, is the devise to Jeremiah Beatty, and is expressed in these words:
    “ I also give unto my grandson, Jeremiah' Beatty, the southwest quarter of section 7, township 5, of range 10.”
    Did the testator intend, by this clause, to convey a fee simple ?
    We claim that he did; and that this interpretation is fairly ;nferable : 1. Prom the sense in which he uses the word “ give,” as-applied to the devises to his grandsons, Patrick Morgan and William Darling, in the first part of the will. Other clauses of the will clearly show that the testator understood these words as conveying a fee. 2. The situation and circumstances of the testator, and the circumstances of his property, go to confirm this inference. There is nothing in the will tending to show that the testator supposed he was leaving any part of his estate undisposed of by his will.
    On this question we refer the court to Smith v. Berry et al., 8 Ohio, 365. This authority we think decisive of the question.
    A second question made by defendant is this : Did the testator intend to invest Jeremiah Beatty with the whole, or only the undivided half of the quarter section in question ?
    The defendants assume the latter alternative of this question ; and, as I believe, principally rely upon the circumstance that this quarter section was the joint purchase, from the United States, of the testator in his lifetime, and the defendant, Abram Darling, his son ; and the want of any proof of a sale and conveyance by defendant to the testator. The facts are not disputed. But we claim for plaintiffs that the clear expressions used by the testator comprehend the entire quarter section, and not the undivided half. He could not have found language more definite to this point. And that he perfectly comprehended the difference between the whole interest and the half, is apparent on the face of the instrument. Because, in the sentence immediately preceding the gift to Jeremiah, the distinction is taken in a devise to his grandson, William Beatty; wherein, in - express terms, he gives to William, to use *his own language, “ my half of the quarter section
    entered in the names of William Darling and William Beatty,” etc. The evidence also shows this was an undivided half. The patent for the land in question, adduced by defendant in evidence, shows that this quarter was also the joint entry of the testator and Abram Darling. This fact must have been fully in the mind of the testator at the same time. And what sound reason can be urged why he did not, in the devise to Jeremiah, use the same restrictive language as in the devise to William, if he contemplated the gift to him of the same limited interest?
    The fair inference, as- we believe, is, that by some previous transaction or present understanding between the testator and Abram Darling, the former, at the time of making his will, supposed himself fully authorized to donate the entire quarter section to this grandson, and that he intended to do so. And this inference is strengthened by the testator’s circumstances, and other parts of the will. It seems the testator had but two children, a eon and a daughter, and, excepting his Virginia land, which he gave to these children in equal interests, and a limited estate to Abram Darling, he give all his real estate to certain grandchildren named. In looking over the several devises of his real property, it will thus be found that his bestowments upon Abram Darling’s family, besides the Virginia land, embraces his home farm of 525 acres, and an entire quarter section of 160 acres, making 685 acres of land to his male progeny, while, admitting our construction of the will, his daughter’s family were receiving no more than one and a half quarter section of land, equal to 240 acres. But if their construction of the will prevails, this quantity is reduced to 160 acres.
    A third question arising in this case is, whether (admitting the testator intended’by the will to give the entire .quarter section), in point of law, anything passed under the will to Jeremiah Beatty but the undivided half of the quarter actually owned by the testator at his death ?
    A solution of this question involves the well-known doctrine of election. 2 Story’s Eq. 335, 336, secs. 1075, 1076 ; Id. *337, 338, note 3; Id. 357, sec. 1096. For the plaintiff, we claim, under this head, that Abram Darling himself derived, under the same will, the undivided half, in fee, of the testator’s Yirginia land— of what value does not appear in evidence — and that he has also received the use and occupancy of the home farm, 525 acres of land, and is still entitled thereto, until the youngest of his children, then, or afterward born, shall marry or come*to the age of twenty-one years, for the purpose of raising his children. This benefit to him, under the will, has been worth $500 a year, as established by B. Butler’s deposition. So that having used and occupied this property already a period of some seventeen years or upward, he has derived the full amount of $8,500. And we insist, that, by availing himself of these large benefits under the will, Abram Darling has made his election to take under the will, and it does not now lie in his mouth to set up a right to this quarter section, or any part of it, which goes to defeat the will. We refer, under this head, to 2 Story’s Eq. 358, sec. 1097; Tibbits v. Tibbits, 19 Ves. 662; 1 Swanst. Ch. 382, note.
    But if it be considered by the court, that he has still the right to make an election, and chooses to adhere to his legal rights in the quarter section in controversy, then it belongs to equity to exact from him all the benefits he has, or maybe entitled to under the will, and to apply them to make good to complainants the full value of the half quarter in controversy. 2 Story’s Eq. 345, secs. 1083, 1084; Lewis v. King, Swanst. Ch. 438; note 1, Id. 441.
    The defendant has further insisted that the devise to Abram. Darling of the home farm, to raise children, etc., was not a pecuniary benefit to him; but in that he was only made a kind of trustee for his children’s benefit.
    By the laws of the land, a father is bound to provide proper sustenance for his own children ; and whoever supplies him with the means of performing this duty, necessarily benefits the father to the extent of the means supplied. It is as if the will had given a man a certain fund to maintain and support his wife, himself, or to provide himself with a ^mansion. The words relied upon are no more than the bonevolent expressions of a giver, which often are communicated with the gift, but which are never supposed to restrict or control the interest of the donee in the gift.
    R. C. Hurd, with Kinney and McNulty, for defendants:
    In determining questions of intention arising upon wills generally, the court is governed by the slightest preponderance of probability. Recognizing in every man a right to dispose of his own property, by will, according to his own good pleasure, it is content, notwithstanding- it may have doubts — doubts almost invincible — if it can say such was prob.ibly the meaning of the testator. .
    But the rule is different where the question is, whether the testator intended to devise property not his own.
    And to this effect are the authorities. “ It must be clear, plain, and incontrovertible, that the testator could not possibly give what he has given consistently with this paramount claim of the defendant.”
    “ Before you can prevent the legal right” (in this case, the defendant’s right to one moiety), “the intention must be perfectly clear.” The intention must be so clear that a “judge can say, It is impossible the testator could mean the defendant to have both.” French v. Davies, 2 Ves. Jr. 578, 581.
    “ The clear deduction from all the cases is, that the intent to exclude the right of dower by a voluntary gift, must be demonstrated by express words, or by a clear and manifest implication, and this implication must arise from some provision in the will inconsistent with the assertion of the claim.” Birmingham v. Kirwan, 2 Sch. & Lef. 444.
    “ The intention to exclude dower (no express words excluding it), is to be collected by clear and manifest implication from the provisions in the will. To enable us to deduce such an implied intention, the claim of dower must be inconsistent with the will, and repugnant to its dispositions, or some of them. It must, in fact, disturb or disappoint the will. This ^appears to be the result of a historical review of the cases upon this greatly agitated subject.” Adsit v. Adsit, 2 Johns. Ch. 451.
    These principles have been established in cases where it was attempted to put the widow to an election to abandon her legal right of dower, or relinquish all benefits under her husband’s will, and are, without doubt, applicable to the present. “It is upon similar ground (alluding to dower cases), that the doctrine of election has been held not to be applicable to cases where the testator has some present interest in the estate disposed of by him, although it is not entirely his own. In such a case, unless there is an intention clearly manifested in the will, or, as it is sometimes called, a demonstration plain, a necessary implication, on his part, to dispose of the whole estate, including the interest of third persons, he will be presumed to intend to dispose of that which he might lawfully dispose of, and no more. 2 Story’s Eq. 352, sec. 1089.
    Lord Eldon observes, in Rancliffe v. Parkyns, 6 Dow, 185 (cited in note to Dillon v. Parker, 1 Swanst. 394), that “it is difficult to apply the doctrine of election where the testator has some present interest in the estate disposed of, though not entirely his own.”
    The following remarks, by an able writer, are clear, and to the point, and evidently sustained by the numerous authorities which he cites.
    “The most numerous, as well as the most difficult class of cases,” says he, “ with which the courts have had to deal, consists of those in which the devisor, and the person against whom the election is sought to be raised, have each an individual interest in the property, and in which the question, therefore, is not, as in the cases before discussed, simply whether the testator meant to devise the property generally (for such a devise may be perfectly consistent with an intention to affect his own share only), but whether he intended to devise the land, inclusive of the other party’s interest. Of this description are those cases, in which the question is, whether the devisor’s widow is precluded, by a benefit given to her by the will, *from claiming dower out of lands devised by that will. This, at least, is indisputably clear, that a mere devise of such lands affords no indication of an intention to dispose of her dower.” Powell on Devises, 442, note 7 (Law Library).
    And, again: “In order to raise a case of election against any person claiming dower, or any other interest in the land, it must be “ incontrovertibly ” manifest, that the testator intends to dispose of that interest, as well as his own. It is admitted on all hands, that this intention is not evinced by a mere gift of the land itself, for it is rather to be supposed that the testator intends to confine his disposition to that which belongs to him ; the consequence therefore is, that every devise is first to be read as embracing the testator’s own property in the subject, and, if a repugnance be not thereby manifestly produced in the disposition, there is no pretense for extending it to that portion of interest in which he has no disposable property.” Ibid. Apply this sensible, practical test, plainly deducible from the authorities, and where is the repugnance? There is none.
    Should, however, the court be of opinion that this is a case for the exercise of its power to compel an election, it is claimed that the defendant still has the right to make his election. It is not pretended that he ever knew, or supposed that he was under any obligation to make any election, and his acceptance of the benefits devised to him can no t, therefore, be adduced as evidence of election. 2 Story’s Eq. 359, and cases cited; 1 Swanst. 381, note a.

    He is also entitled to a reasonable time in which to make his election.
   Wood, J.

The complainants claim that the will of William Darling creates a case of election against the defendant.

To create a ease of election, there must be a plurality of gifts or rights, with an intention, express or implied, of the party who has a right to control one or both, that one should be a substitute for the other. The party who is to take has a choice, but he can not enjoy the benefits of both. The doctrine of election, *says Justice Story, is borrowed from the civil law, and by if a testator may bequeath, not only his own property and that of his heir, but also the property of' other persons; so that the heir may be obliged to purchase and deliver it, or, if he can not purchase it> to give the legatee its value. To give effect to a legacy in such case, it is necessary the testator should know the property bequeathed by him was not his own; and the devisee, whose property has been thus disposed of, can hold, under the will, only by giving up his own, by which alone the will can have effect. 2 Story’s Eq, 338.

Is this, then, a ease of election ? This must be determined from the whole provisions of the will. The testator when he executed his will was a tenant in common, only with the defendant. The southwest quarter of section seven, etc., was patented to both. The testator, therefore, it is true, owned but a moiety, and in the devise in question he gives the southwest quarter of section seven, etc., to his grandson, Jeremiah Beatty. The language, it is said, is plain, clear, and operative, and includes the whole tract.

The case does not appear to us to be so clear “.that he who runs may read;” but nevertheless, when we consider the almost perfect equality with which the testator has distributed his property among his children and grandchildren; that when he has given to one, he has likewise given to others, “share and share alike,” a majority of the court arrive at the conclusion that by the devise of the whole quarter to Jei’cmiah Beatty, the testator only designed to convey his own interest. This construction places the devisee on an equality with the other grandson, to whom the half of another quarter in the same section is given, and carries out the general design of the testator, arising on the face of the will, of placing his devisees on a perfect equality in the disposition of his property; sons, daughters, grandsons, and granddaughters, with few exceptions, “ share and share alike.”

We think no case of election is created, and the bill must be dismissed. Bill dismissed.


author: Birchard, J.

text:
    *John S. Lewis et al. v. Charles R. Baldwin et al.
    A wife may transmit her separate estate, through the intervention of a trustee, to her husband.
    A conveyance to A. and B., and their heirs, and to the survivor of them, and to the heirs of such survivor, vests in the survivor an estate in fee.
    This is a bill in chancery, from the county of Franklin.
    This bill seeks to-set aside a deed executed by Charles R. Baldwin and Mary Jane, his wife, to Robert O. Spencer, in trust, and a deed executed by said Spencer to Charles R. and Mary Jane Baldwin, to them jointly, their heirs and assigns, and to the survivor of them, his or her separate heirs and assigns. The bill sets forth that said Mary Jane owned 783 acres of land, lying in Franklin county, and that she was young at the time of her marriage with respondent Baldwin; was, shortly after her marriage, afflicted with a lingering sickness which terminated her life without issue, and so preyed upon her constitution as to reduce her to a state of debility bordering on infancy, and placed her under the influence and control'of her husband, who availed himself of his ascendancy, and, shortly before her death, caused her to execute the deed in question. The answer denies all the charges of undue influence, imbecility, and all fraud. The substance of the testimony, and the points made, are stated in the opinion of the court.
    T. Ewing, for complainants.
    Stanbert & Tan Trump, for defendants.
   Birchard, J.

The proof establishes these facts: That Baldwin and wife were an affectionate couple; that she reposed entire confidence in him, as her husband, friend, and spiritual *guide; and it does not show that he was in any respect unworthy of the affection and trust bestowed upon him by this devoted wife. He was a circuit preacher of the Methodist Episcopal church, dependent upon a limited annual stipend for his support. His wife was in ill health, and desirous to bestow upon him a portion of the fortune she had inherited from her parents, in case she should be removed by early death. To accomplish this object, the deed in question was executed, as appears from the deed and answer, at her own instance, three months bef'or'e her death, at a time when she was able to ride four miles, in company with her sister, and another young lady, to effect this object, and wheD, for aught that appears, she was of sufficient mental capacity to make a contract. We are of the opinion that there is not proof, in this case, sufficient to require or justify the setting aside these conveyances, on the ground of want of capacity in Mrs. Baldwin, or for the exercise of any improper or undue influence over her, at the time of executing them.

It is objected, in the next place, that a conveyance by a husband and wife of her separate estate to trustees, upon trust to reconvey to thorn jointly, is invalid in law and equity. It is assumed that the deed is liable to the same objection that exists to a transaction of the kind between guardian and ward. There does not seem to be much analogy between the two cases. Our statute authorizes a wife to convey her property by pursuing a given form, which, in this case, was pursued. Nor can she be treated as laboring under any of the peculiar disabilities incident to infancy. The law does not attempt to limit or control her judgment in the disposition of her property. It is true she can not convey directly to her husband ; and the reason is to be found, not in the fact that he is supposed to have an undue influence over her — not that there is anything unnatural in a wife’s desire to make provision for an affectionate and beloved husband, out of her more ample fortune, but, in the legal fiction, that, by marriage, her existence is merged in that of her husband, and therefore one of the two parties necessary to make a valid contract is wanting. Hence, in a *conveyance from husband to wife, or e converso, the intervention of a trustee is necessary to effect the object; such is the authority in 4 Mason, 45, where a conveyance, scarcely distinguishable in principle from this, was sustained.

The next objection is a want of consideration. The deed of trust expresses the consideration of one dollar, and, in substance, a desire, from love and affection, to make provision for her husband, inasmuch as her brothers and sisters are otherwise amply provided for. Would it be doubtful, in a case where other persons than husband and wife were parties, that this cohsideration is sufficient? If not in such a case, why should it be in this ? Counsel have furnished us no satisfactory reason, and none occurs to our own minds.

The remaining question is, as to the nature of the estate conveyed by the deed from Spencer, the trustee, to Baldwin and wife. The grant is to them “jointly, their heirs and assigns, and to the 3urvivor of them, his or her separate heirs and assigns.”

Complainants contend that this makes them tenants in common with Baldwin, because, otherwise, the deed would be considered as creating a joint tenancy. But the respondent, Baldwin, has a fee by the terms of the grant, which was to him as survivor, and to his heirs and assigns. The deed gave a joint estate to the husband and wife, during their lives, and a grant over to him, as survivor, of the entire estate.

No perpetuity is created by such a grant. He holds title, not upon the principle of survivorship, as an incident to a joint tenancy, but as grantee in fee, as survivor, by the operative words of the deed. The entire estate, by the death of the wife, is vested in him and his heirs. This is the effect of the words of grant, contained in the instrument of conveyance. Bill dismissed.


author: Bead, J.

text:
    *David Loring v. John Melendy, E. W. Chester, Edward D. Mansfield, Arthur Elliott, et al.
    Where, prior to a judgment, a permanent leasehold estate has been conveyed by deed, absolute upon its face, though intended as a security, there only remained an equitable interest in the j udgment debtor, to which no judgment lien attached; and a judgment creditor who first pursued the equity by bill, is entitled to be first satisfied.
    A permanent leasehold estate is not a chattel, but is realty, subject to all the laws and rules which attach to land.
    This is a bill in chancery from Hamilton county.
    The facts are stated in the opinion of the court.
    E. S. Haines, for complainant,
    cited 1 Ohio, 314; 5 Mass. 419; 6 Ohio, 162, 163; 4 Johns. Ch. 690; 3 Ohio, 465, 517; 8 Ohio, 22, 23.
    H. Hall, for defendant Melendy.
   Bead, J.

This bill was filed to subject an equity to the satisfaction of a judgment at law, and involves a question of priority of liens.

Judgment at law had been obtained against E. W. Chester, in favor of Loring, Elliott, and the Lafayette Bank.

Chester, the judgment debtor, had conveyed the premises in question to John Melendy, by deed, absolute upon its face, though in fact a mortgage, bearing date April 13, 1838, which was recorded on January 2, 1839. The premises thus conveyed were a perpetual leasehold estate — a lease for the term of ninety-nine years, renewable forever.

Elliott had obtained two judgments against Chester and Mansfield, the latter as security, at the October term of the superior court of Hamilton county, 1838, and caused execution to be levied upon said leasehold estate on March 19, 1839.

*David Loring, the complainant, also obtained a judgment against Chester at January term of said superior court, 1839, and caused execution to issue, which was returned nulla bona. Loring filed his bill to subject the equitable interest of Chester in said premises, to satisfy his judgment, on April 17, 1839, subsequent to Elliott’s levy.

Judgment was also obtained against Chester, in favor of the Lafayette Bank.

Under this state of facts, Melendy claims that his debt, secured by mortgage, shall be first satisfied.

Elliott claims to overreach Melendy’s mortgage, by virtue of a. judgment lien obtained prior to the recording of the mortgage.

Loring claims that Chester’s interest in the premises is but an equity, and that having first filed his bill, to subject it, ho is entitled to have his judgment first satisfied, after Melendy’s mortgage debt, and that the other judgment creditors are entitled but pro rata to the residue.

These questions are all disposed of by determining the nature of Chester’s estate in the premises.

By the execution of the deed to Melendy, which was prior to all the judgments, Chester’s whole legal estate passed, and left with him the bare equity to redeem on payment of the debt secured. The deed was absolute upon its face, and, for all legal purposes, transferred the whole legal estate. Judgments and executions at law can only affect and reach the legal estate.

In Baird v. Kirtland, 8 Ohio, 23, the court say, in order that a judgment may operate as a lien, the defendant or judgment debtor must have a legal title. The fact that in equity the grantor would have a right to treat the deed as a mortgage, will in no sense authorize it to be treated as a legal estate. The dis tinction is between an equitable and legal mortgage.

In ease of a legal mortgage, which the court, in Baird v. Kirtland, define to be a mortgage, where the condition of defeasance constitutes a part of the deed, although the mortgagor, *in possession, is treated as the real owner at law, and possesses an estate to which judgment liens attach, and which may be sold on execution at law, yet, in the case just cited, it is expressly declared that when the deed is absolute upon its face, no such legal estate remains in the grantor. The express point of the case was, that where the deed was absolute upon its face, the grantor had no interest upon which a judgment lien could attach.

Elliott, then, takes nothing by virtue of his judgment lien and levy, because neither can reach an equity. .Melendy having the legal estate by virtue of his deed, which in equity is a mortgage, is entitled to have his debt first satisfied.

Loring, having first subjected Chester’s equity, is entitled, by reason of his superior diligence, to have his judgment first fully satisfied after Melendy; and Elliott, and the other judgment creditors, will come in, pro rata, for the residue.

This disposes of the whole case, although it was reserved to determine the question, whether a perpetual lease was to be regarded as a mere chattel, or as “ lands and tenements,” to which judgment liens attach.

Whether we call it lands and tenements, or a chattel, we should arrive at the same result, respecting the rights of these parties, which we have above declared. For, although a perpetual lease may be called a chattel, yet, for all purposes of conveyance or sale, it has always been treated as land capable of being charged', incumbered, and disposed of, only in the same manner.

In the case of the Widow and Heirs at Law of William Reynolds v. The Commissioners of Stark County, 5 Ohio, 204, the court say: “Aleaseis personal property, although it contains a stipulation that it shall be renewable forever.”

But it has been the policy of our law for many, and, in fact, for most purposes, to treat permanent leases as lands; such has always been the case for purposes of sale and transfer; and the question. is now, whether such leases are not put upon the footing of lands for all purposes.

*By the act of June 20, 1821, Chase’s L. 1185, it is declared that permanent leases, in cases of judgments and executions levied thereon, shall be considered as real estate, and shall be governed, in their sale, by the laws applicable to the sale of real estate then in existence, of such as may be enacted. By the act of March 5, 1839, Swan’s Stat. 289, permanent leasehold estates, for the purposes of descent and distribution, and for sales on execution, are subject to the same laws that apply to estates in foo.

Since the passage of this last act, we may feel ourselves admonished by the uniform policy of our legislature, by calling things by their real names, to harmonize our whole system of land jurisprudence. To withdraw permanent leasehold estates from their anomalous position, between chattel and realty, and by calling them what in truth they are, lands, we relieve them from all doubt as to the principles and laws which shall control them, and assign to them a certain and fixed place in the law. A permanent leasehold estate is not a chattel, but is, in truth, land, carrying the fee. Such is the nature of the estate, and so it has been considered and treated in the legislation of our state. We therefore declare that permanent leasehold 'estates are lands subject to all the rales and laws which attach to land for all purposes, and that judgment liens attach to them as lands.

In thus emancipating permanent leasehold estates from a name ..too narrow to convey their idea, and rules too contracted for their control, we are only carrying out the policy of our legislature -upon this subject. And although this case might have been disposed of without deciding this point, yet as it fairly comes up, and was the point upon which the case was reserved, we have thought proper to put this doubtful question at rest.

Decree for complainant.


text:
    *The Lessee of Thomas J. Northrop v. James Devore. The Lessee of Demas Adams and William L. Casey v. Andrew Bainter.
    When a sale for taxes is made on the 10th day of November, under the statute of 1822, and the order of confirmation describes a sale made on the 10th, 11th, and 12th days of December, no title passes.
    These were actions of ejectment from the county of Muskingum, and were submitted to the court upon an agreed statement of facts.
    Harper, Adams, and Stilwell, for plaintiffs.
    Goddard and Converse, for defendants.
    No arguments were furnished to the reporter.
   Lane, C. J.

In these cases it is necessary to notice but one point. The plaintiff holds the title claimed from the patentee, and is entitled to recover, unless his right has been extinguished by a tax sale. The sale was made under a judgment rendered ;mder the statute of 1822, to recover taxes delinquent previous to 1820. The statute required a judgment, advertisement, sale, confirmation, and deed. Chase’s Stat. 1216; The judgment was rendered in the common pleas of Muskingum, at the August term, 1824. The land was advertised for sale, and sold on November 10, 1824. At the December term, held on December 12, 1824, an order of confirmation was made, reciting that the sale was made on the 10th, 11th, and 12th days of December.

This mistake in the description of the time of sale appears to us a fatal defect in the defendant’s title. Although it is argued that no other sale was made, except that on the 10th of November, *and the time is probably misdescribed through the inadvertence of the clerk, yet, as the order stands, it affords no evi. dence that the sale of November was ever acted upon by the court.

Judgment for plaintiff.


text:
    Ebenezer G. Woodward v. Suydam and Blydenburg.
    Where a commission merchant, from time to time, sends an account of sales to his principal, who makes no objection to the sales, and draws for the balance of the account rendered, it is a ratification of the sales, and the principal can not recover for any alleged violation of his instructions as to the terms of sale.
    The value of goods sold by a commission merchant, contrary to the instructions of his principal, may be recovered, under the common count for goods sold and delivered.
    This was an action of assumpsit from tho county of Knox, reserved on a motion for a new trial by the defendants, against whom a verdict was rendered on the circuit.
    The case was argued, in support of the motion, by H. B. Curtis, and Goddard & Converse, and by C. Delano and H. Stanbery, contra.
    The material facts and points made are stated in the opinion of the court.
   Wood, J.

The declaration contains four counts. In the first, second, and third counts, the defendants are charged, as. factors and commission merchants, with having received 1,392 barrels of flour of the plaintiff, on consignment, with instructions not to sell for less than eight dollars per barrel, and with having disregarded such instructions, to the damage of the plaintiff.

*The. fourth is a common count, for goods, wares, etc., sold paid, and delivered, work and labor done, money lent, had and received, and on an account stated. Plea, non assumpsit.

The reasons filed for a new trial are:

1. The verdict is contrary to the evidence.
2. The damages are excessive.
3. The evidence was not admissible under the declaration.

On the trial of the case, it appears to have been proved, in substance, that, on May 28, 1838, the defendants wore instructed by the plaintiff not to sell his flour, when it should arrive, for less than eight dollars per barrel cash. The defendant resided in tho city of New York, and, between the 10th and 20th days of June, the flour was arriving in the city, and the defendants putting it in store in their upper lofts. The defendant, Blydenburg, about this time, showed it to a Mr. Norton, representing it as a superior article, saying he was waiting a rise in the market, and was not at liberty to sell it at less than eight dollars per barrel, according to the plaintiffs directions.

On June 19, 1838, the defendants wrote to the plaintiff that all his flour was in store, and they were waiting the market and his orders. On the 3d of July, they again wrote to the plaintiff, advising him of the market, and desiring his opinion, as to sales, etc. On the 16th of July, the defendants again wrote to the plaintiff that his letter of the 10th of July was received, and his intention, in relation to the flour, should be attended to. On the 26th of July, they again wrote, they had stored all the plaintiff’s flour, and, of course, had not offered any for sale, except fifty barrels of Norton’s brand, which they had sold on the 15th, with a view to ascertain how it kept, and should make no further sales until they heard from him.

On the 10th of July, the plaintiff wrote to the defendants, amongst other things, “I wish you to hold on to my flour, unless you can obtain somewhere in the neighborhood of eight dollars per barrel, etc.; I shall be in Now York in August.” *On the 19th of July, the plaintiff again wrote to the defendants, to hold on to his flour until August or September, if it should not advance before, and again repeated, he would be in New York in August-

The flour was sold in Now York, between the 10th of July and 13th of' September, for $9,844.32, or a fraction more, on an average, than seven dollars and seven cents per barrel. It is pretty clearly shown that the plaintiff arrived in New York in August, and, while there, 483 barrels of this flour were sold by the defendants; that the plaintiff had frequent interviews with the defendants, while in the city; that 813 barrels of the flour had been sold before the plaintiff arrived, and 96 after he left the city. The plaintiff appears to have received of the defendants, while in New York, $1,500; and there is no evidence of any dissatisfaction, expressed by him to the defendants, whilst there.

On the 17th of September, the defendants transmitted to the plaintiff an account of all the sales of the flour, and tho plaintiff drew for the balance in their hands, and expressed no disapprobation. The evidence also shows that, in September, flour advanced in the market to S9.50 per barrel. This was after the most of the plaintiff’s flour had been sold. These are substantially the proofs.

The counsel for the defendants then asked the court to instruct the jury that the plaintiff was not entitled to recover, because of the variance between the proof and the declaration, The court instructed the jury, that, as'the declaration averred, the defendants received the flour to sell at eight dollars per barrel, the averment was not sustained by the plaintiff’s letter of instructions, of the 10th of July, to hold on to his flour, unless they could obtain somewhere in the neighborhood of eight dollars per barrel, and that the plaintiff was not entitled to recover under the special counts, but that the evidence was properly admissible under the common count for goods sold and delivered; and the rule of damages would be, the value of the flour at the time it was sold by the defendants, in violation of their ^instructions; and it was the real value, at the time of sale, which should be ascertained.

With these instructions, the court are satisfied. They are, doubtless, the law of the case, as the evidence appeared on the trial. As the flour was sold by the defendants contrary to the plaintiff’s directions, it appears to us the plaintiff is authorized by tho books to treat them as purchasers, and to recover the value, as for goods sold. 5 Ohio, 349; 7 Johns. 132; 12 Wend. 38. But, taking this view of the case, the damages are unquestionably excessive, upon any legal calculation which can be made. We shall not, however, go into particulars upon this point, as there is another view of the ease upon which a new trial should be granted, and, from the evidence, as before presented, leaves it clear, in our opinion, that the verdict should have been for the defendants.

The evidence is, that the defendants, frequently, from time to time, advised the plaintiff of the sales of the flour; a part of it was sold while he was present in New York; ho received advices of the last of the sales, and drew for the balance of the money in the defendant's hands; and at no time disaffirmed, disapprobated, or censured their proceedings, until the institution of this suit.

The plaintiff, therefore, in our opinion, falls within the principle recognized by Justice Story, in his work on Agency, and which is supported by numerous authorities cited by him, in the margin of the same page, that, If a factor should sell goods for a price below his limits, and should send an account of his sales to his principal, who should make no objection, but should draw for the balance admitted to be due on the account, it would amount to a ratification of the sale.” Story on Agency, 252.

This seems to bo the identical case before us. A new trial must be granted, at the defendants’ costs.

New trial granted.