text:
    *Orrin Harman v. Irad Kelley, H. B. Payne, and Unknown Owners.
    The demandant in partition is bound to set forth the title and interest of the ■ several tenants truly, and to sustain his position by proo£.
    Persons owning the entire interest in a part of premises, though misdescribed in the petition, have a right to come in and defend. And when it is shown that a part of the persons claiming to be tenants in common, have no interest in a part of the premises, the petition can not be maintained.
    A title in fee of a part of the premises, acquired by occupancy of the defendant, may be given in evidence to defeat the partition, as it disproves the title of the demandant.
    The existence of a deed is presumed in support of a long-continued possession by cestuis que trust, where the trustee should have conveyed; but the presumption is not raised to support the possession of a stranger, in opposition to a deed of recent date.
    "When, from the whole record, it appears conclusively that the proper judgment was entered, the proceeding will not be reversed on error, even if the court mistook the law on some of the propositions discussed during the trial.
    This is a certiorari to the court of common pleas of Columbiana county.
    The case made upon the record is this:
    The plaintiff filed his petition for partition in the court of common pleas, setting forth that he owned, in common with Kelley, Payne, and certain unknown owners, eight twenty-third parts of ten acre lots, 96, 97 and 98, and the west part of lot 99, and that his title was by deed from the surviving trustee of the Connecticut Land Company.
    Notice by publication was given, and Willard H. Willard, E. S. Willard, with three other persons, the heirs of John O. Willard, appeared, were made parties defendant, and filed their answers, denying the plaintiff’s title to lot 98, and part of lot 99, and avei*ringthat they are seized of it in fee simple, except seven acres, reserved to one Sarah Ames.
    They also state that Kelley and Payne have no interest in, or title to, any portion of lots 98 or 99, and that the heirs of Willard have no claim to any portion of lots 94, 95, and 97.
    *At the February term, 1845, the cause was heard upon the petition, answers, exhibits, and proofs ; and by the court dismissed.
    A bill of exceptions was taken pending the trial, and made part of the record, as follows:
    “ In this cause the petitioner, in support of his title, a tenant in common, produced a quitclaim deed to himself from John Morgan, the surviving trustee of the Connecticut Land Company, dated October 18, a. d. 1838, for an interest in'common in ten-acre lots in Cleveland, numbered from 80 to 99, inclusive, in the proportion of $800 to $13,333.33, which had been drawn by Beuben Dresser in said lots, which said lots had been set apart to said Dresser and others, in common (in the year 1802), in the following proportions, to wit: to Welch and Hinkley, $6,000 ; to Wright and Stoddard, $3,000; to Asa White, $1,200; to Samuel Collins, $1,600; to Beuben Dresser, $800, and to Joseph Williams, $733.33. The petitioner further produced the record of sundry proceedings in partition, among the aforesaid owners, to which the said Beuben Dresser was made a party, but did not appear (the first of which was dated in May, a. d. 1824; the second, in 1839); by which the shares above mentioned had been set to their respective owners, as aforesaid, or those claiming under them, except the share of said Dresser, and one-half of the said share of said Wright and Stoddard, and leaving unaparted the lands described in the petition, and those only. The petitioner also produced the record of a judgment in the Supreme Court of said county in his favor, against sundry persons for the proportion of interest claimed in the petition (rendered at the August term, a. d. 1843); but the heirs of John Y. Willard, the defendants who contest the right of the petitioner, were not parties to it, and objected to any testimony in support of the answers; and the evidence was received, subject to such exception. The defendants who have answered, in support of their objections to the petitioner, proved that, in the year 1813, one J. Sherman Bartlett went into possession of lot 98, and *that part of lot 99 which is embraced in the petition, under a claim of title; that, oecupjdng it two or three years, he sold it to one Curtiss, who succeeded him in the occupancy of it; that Curtiss sold it to Noble H. Merwin; that Merwin sold it to one-Gregg; that Gregg sold it to one Michael Temple; and that, on April 7, A. D. 1822, Temple sold and deeded it to John O. Willard, the father of said defendants; that the said John O. Willard occupied the said land until he conveyed it to one Ashley Ames, who conveyed all but seven acres thereof in common to the answering defendants, the heirs of said Willard ; and that the said answering defendants, and those under whom they claim as aforesaid, had been in the exclusive possession of said land, claiming title adverse to that of the petitioner, since the year 1813 aforesaid ; and that they were in the possession thereof, claiming title at the time said petition was filed and heard. No evidence was offered as to the residence of Reuben Dresser, but it was admitted that the trustees of the Connecticut Land Company were never residents of the State of Ohio. It was objected that the above evidence did not deprive the petitioner of the right to partition in the land claimed by the heirs of Willard, because no adverse possession could confer title as against the trustees of the Connecticut Land Company. But the court held that, under all the circumstances of the case, a conveyance of said land from the trustees of the Connecticut Land -Company to the said Reuben Dresser, might be presumed, and ordered the petition to be dismissed.”
    Upon this bill of exceptions, it is assigned for error:
    “ 1. The facts disclosed in the answers of -the respondents constitute no legal objection to the partition as prayed for, the petitioner having shown prima facie title as tenant in common.
    “ 2. The court erred in presuming that the trustees of the Connecticut Land Company had conveyed the same interest to Reuben Dresser, which the survivor of them subsequently ..convoyed to the .petitioner; no evidence having been given to show that said Dresser had ever been in possession of Baid promises.
    *“3. The court erred in permitting any evidence to be given of an adverse possessory title to a portion of the land in severalty, against a prima facie title to an individual interest in the whole, under a petition for partition.
    “4. The court erred in deciding that the statute of limitations would run against the petitioner by deriving title from a nonresident, and within twenty years.
    “ 5. The court erred in dismissing the petition, when, by the laws of the land, there should have been an order for partition agreeably to the petition.”
    II. Foote, and Allen &.Stetson, for plaintiff:
    We confine ourselves to one point. We claim that the common pleas erred in presuming a conveyance from the trustees of the Connecticut Land Company to Reuben Dresser. Dresser was never in possession of the land, and hence there was no room for the presumption. The principle applicable to such eases may be thus expressed: A conveyance from a trustee to his cestui que ■trust is to be presumed in those cases in which there appears to be no reason for continuing the legal title in the trustee, and the beneficial owner has, for a sufficient length of time, by actual possession, or something equivalent thereto, exercised the ordinary .acts of exclusive legal ownership over the trust property. It is this possession, this exercise of acts of ownership, which gives life to the presumption. The length of time requisite to bring it into ■existence, may depend on the circumstances of each particular case.
    The authorities on this subject, which are numerous, are believed to be all one way. A reference to a few of them will be •sufficient. 1 Greenl. Ev. 52; Doe v. Phelps, 9 Johns. 171; Jackson v. Moore, 13 Johns. 513; Hilary v. Waller, 12 Ves. 239 ; Dutch Church v. Mott, 7 Paige, 81; *Kean v. Dearden, 8 East, 263; Schauber v. Jackson, 2 Wend. 36; Doe v. Butler, 3 Wend. 149; Moore’s Lessee v. Burnet, 11 Ohio, 334; Kinsman’s Lessee v. Wood, 11 Ohio, 477.
    No argument was submitted for the defendants.
   Birchard, J.

The answers state that the plaintiff in error was not tenant in common with the defendants, in all the lands of which partition was demanded; but that some of the defendants were interested in particular lots only. If such were the facts, the suit was rightly dismissed. The point decided by this court in Prentiss’ case, 7 Ohio, 129, pt. 2, settles this cause, and we need look to no further authority.

From the record, it appears that the answers of the defendants ■stood uncontradicted. The court had but one thing to do, and that was to dismiss the bill, if the proof sustained the answer. The plaintiff claimed the right to prosecute his particular suit on the ground that he owned an undivided interest in the entire premises, and in common with certain others who owned also the residue of the undivided entire interest. To support his case, proof of the alleged joint ownership by the parties named was indispensable. The deed offered by him, at best, only proved his own title to the undivided interest of Reuben Dresser. It had very little tendency to establish the ownership of the remaining undivided interest. It in no sense connected either ayne, Kelley, or the Willards with the title. The records of the several proceedings in partition, which were offered, had no tendency to enlighten the court upon the subject. They showed only that certain persons, who were once entitled, as would appear by the book of drafts of the Connecticut Land Company, had ceased to have any interest in these lands, prior to the commencement of the suit. The remaining evidence introduced by the plaintiff, was this record *of a certain proceeding in ejectment, to which the defendants were not parties, by which <they were not bound, and against whom it proved nothing. For the plaintiff, it might be considered proof of his own' interest, and, as to the parties to that record, should be regarded conclusive of that fact; but it did not tend to establish the fact that this remaining interest in all of these lands, was held in common with the plaintiff by the defendants.

We do not learn from the transcript that anything was offered tending to prove that Henry B. Payne or Irad Kelley owned any interest whatever in lots 94, 95, or 97 ; and we see not how the court, in the absence of such proof, with the, sworn answer of the other defendants, denying that they had any such joint interest, could have done otherwise than dismiss the j>etition. Having come to this conclusion, it would follow that all of the other blatters assigned for error must fail to work a reversal of the judgment of the court below. It is manifest, then, that plaintiff has not been injured by other decisions that were made pending the trial. Even if they were erroneous, they- arc to be regarded in the light of bad reasons given to sustain correct decision, and for the giving of which a revisory court will never reverse the judgment. The object of a proceeding in error is to reach the judgment, and to avoid it when it does not possess the elements upon which alone all judgments should stand. I know of no case where a court has ever set asido a judgment upon the examination of a record, conclusively showing that it was correctly rendered and sustained by the proof, merely because the inferior tribunal had erred on some abstract point, in no way affecting the general merits of the suit. As we view the matter, independently of anything offered by the defense, the case was with the defendants upon the pleadings, and the plaintiff’s proofs.

It is objected that the defendants, Willards, are mere volunteers, > and should not be regarded as parties. That the petition did not make them so; that it put in issue no title or interest which they claim ; did not name them, and that the unknown ^owners, notified by the advertisement to come in and defend, were those unknown persons only, who were tenants in common with Orrin Harman of the whole premises. This position may be met in more ways than one. If it were'sound, the better way would have been to take the objection by a motion to strike the answers from the file before going to a hearing, or by demurrer. But if sound, it is difficult to see what is the object of the legislature in requiring unknown owners to be informed by publication of the pendency of the suit. It is very certain that any party demanding the partition of real estate, may, if desirous of having an ex parte proceeding, set forth that any two or more own a tract of land in common with him ; and if they do not so own, and each has title in severalty, that he may also say that the persons who do so own as tenants in common, are unknown to him. If, then, he may overlook and by such a false pretense avoid the actual notice to the real owner, and advertise for the pretended unknown owners, and-when the real owners come in to resist him, turn them out of court, because he has misdescribed them in his petition — I inquire, What is the object of a notice? What good purpose does it serve? The framers of the law intended to afford every person interested as owner in a tract of land of which partition is demanded, an opportunity of being heard, and of showing the demand unjust; for that the notice was required, and for that and other things, the demandant should have set forth the ownership and the state of the title, according to the truth. It would be a reproach to the law itself, if it would permit one to defeat the policy of the statute, and secure an advantage, by reason of his ignorance of the facts of his case, or his own cunning in suppressing or misstating them. We do not find that the court made the decision stated in the fourth assignment.

The third is, that the court erred in permitting evidence of an, adverse possessory title to a part of the premises.

It is not easy to assign a reason for sustaining this objection. It is very clear that proof of an absolute title in fee of *the entire interest in a part of the land of which partition was demanded, was a perfect bar to that part of the demand. A deed from Orrin Harman to the Willards, subsequent to the date of his deed from (he surviving trustee of the Connecticut Land Company, would have defeated him, and on the ground that it disproved the title incumbent upon him to sustain, in order to make out his case. So any other good and valid title in the defendants, inconsistent with the one which he was bound to maintain and prove, must have had the same effect. It would equally defeat his claim, because it would disprove it. By showing that they owned all the land, the defendants established the fact that plaintiff did not own the 8-23 parts. This they had a right to show, by the production of the kind of proof appropriated to make their right manifest. Whether they succeeded or not, is another matter, depending upon the facts proved, and the influence which they had upon the mind of the court. If they found them sufficient, we can not correct that finding in this proceeding. We do not, on a proceeding in error, undertake to correct the judgment of the common pleas in weighing evidence. We can only reach such mistakes as amount to errors in law. This seems to dispose of what is said concerning the statute of limitations; for we know not, from the record, that any such consideration influenced the court in arriving at their conclusion.

The remaining question is, whether or not the court erred in presuming a conveyance from the trustees to Reuben Dresser, prior to the quitclaim deed to Harman.

This point has been fully and ably argued. The correct doctrine upon the subject of presumption of the existence of deeds, was stated in the case of Kinsman’s Lessee v. Wood, 11 Ohio, 475. It is this: When a cestui que trust has for a long time been in possession of lands which the trustee ought to have conveyed to him, the conveyance may bo presumed, but the presumption is not raised in his favor who attacks, or holds in opposition to the equitable right.

.Now, if the proof satisfied the common pleas that the Willards, *and those under whom they claimed, were originally in possession, under a claim from Dresser, there was no error; otherwise they were perhaps mistaken. Their possession dated back to 1813, and had been undisturbed. Even to this day, so far as we know, neither Reuben Dresser, the person entitled in equity, as far back as 1802, nor his heirs, have ever set up any claim to the property. The proof offered by Harman, as stated in the bill of exceptions, connects him only with the naked legal title, and does not place the Willards in hostility to the equity of the cestuis que trust. The possession of Willards goes back thirty-three years; was adverse to all the world, originating in a possession of Bartlett, who, as the bill of exceptions states, entered claiming title. What title he claimed, or under whom he claimed, 'is not stated in the bill ; perhaps it was not stated to the court. They may have concluded, from the fact that Dresser never set up any claim to the land, from the length of the defendant’s possession, and from the fact that these lots had been assigned to Dresser on the former proceedings for partition, and also the fact that he had been adjudged in those proceedings, made evidence by the plaintiff, the owner in common of an undivided interest in the land which remained, that the claim of title set up by Bartlett was under Dresser; and, in so doing, may or may not^have been mistaken in a matter of fact. Assuming that they found the fact that the Willards held under Dresser, there was no error in presuming the execution of the deed forty-three years after the time it ought to have been executed. On the contrary, assuming the fact found the other way, the correctness of their opinion might be doubted. I employ this language designedly, for the bill of exceptions does not definitely inform us as to the precise grounds as upon which the presumption of a prior deed was intended to be placed. The words of the exception are, but the court held that, under all the circumstances of the case, a conveyance from the trustees of the Connecticut Land Company to the said Reuben Dresser might be presumed.” Now, it should be recollected that, of the evidence offered by the plaintiff wore certain proceedings in partition, *to which Dresser was a party. Those proceedings may and probably did aver such a conveyance to him, and showed that he was adjudged the legal owner of the undivided interest, and charged with his share of the costs, in consequence of that ownership. He could not have been so proceeded against, if the title was in the trustees of the Connecticut Land Company, and not in him; yet the plaintiff regarded that proceeding as valid and conclusive upon Dresser’s legal rights, and was compelled to do so; otherwise he would have iailed to show that he.had any such title and interest as that set forth in his petition. This may, with the others, have been one of the material circumstances from which the court presumed the execution of the deed; and if so, I am not prepared to say they erred on this point. Judgment affirmed.


source: Caselaw Access Project

author: Hitchcock, J.

license: Public Domain

text:
    *Jackson and Buel v. Horace Luce and others.
    A judgment entered by confession during the term of the court of common pleas, operates as alien upon the land of the judgment debtor, from the first day of the term, and is to be preferred to the lien of a mortgage, executed before, but not recorded till after the. commencement of the term.
    This is a case in chancery, reserved in Ashtabula county, for the purpose of settling the priority of liens of certain judgment creditors and mortgagees.
    There is no controversy as to the facts, which are as follows:
    On March 26, 1832, Horace Luce and John P. Eastman, two of the defendants, executed a mortgage deed to the State of Ohio, to secure the payment of $1,000 and interest thereon, borrowed of the fund commissioners of the county of Ashtabula, under the act of March 28, 1837, for the distribution of the surplus revenue.
    At the April term of the court of common pleas of said county, 1842, said term commencing on the 10th day of the month, complainants recovered a judgment against Horace Luce, Joseph Eastman, and Almon E. Eastman, for $1,474.37, with costs. This judgment was obtained by confession, and actually entered on April 20, 1842. One other judgment was entered at the same term of the court, against the same defendants, and the creditors in said judgment are made defendants. These creditors are Ralph Clark, Sidney Smith, and Enos P. Clarke,
    On April 7, 1842, Horace Luce and Joseph P. Eastman, with their wives, executed a mortgage to Horace H. Eastman, who is also made defendant, to secure the payment of $2,300.
    This mortgage was left at the recorder’s office for record, on the 12th, and actually recorded-on the 14th of April.
    The prayer of the bill is for general relief.
    *J. R. Giddings and Perkins & Osborn, for complainants :
    We rely mainly upon the statutes declaring the extent of judgment liens, and providing for the acknowledging and recording of deeds.
    Judgments operate as a lien from the first day of the term in which they are rendered ; mortgages, from the date of their record. Swan’s Stat. 468, 267, 268.
    All the authorities in this state, which bear upon the point, sustain this construction of the statutes. Magee v. Beatty, 8 Ohio, 396 ; Stansell v. Roberts et al., 13 Ohio, 148 ; Lessee of Sturgis v. Bank of Cleveland, 1 West. Law Lib. 209 ; Urbana Bank v. Baldwin, 3 Ohio, 65 ; Roads v. Symmes et al., 1 Ohio, 63.
    Wade & Ranney, for respondent, H. H. Eastman:
    The question to be settled in this case is, who has the preferable lien, the judgment or the mortgage ereditor ? We contend that the mortgage is to be preferred :
    1. Because an unrecorded mortgage is preferred in equity, when of an older date, to a judgment lien.
    This precise question has never been decided in any reported case ; but questions have been, which, in principle, settle the proposition as we have stated it. 1 Pet. 386 ; Bank of Muskingum v. Carpenter’s Adm’rs, 7 Ohio, 21, pt. 1; Manly v. Hunt, 1 Ohio, 257 ; Barr v. Hatch, 3 Ohio, 527 ; Patterson v. Johnson, 7 Ohio, 225, pt. 1; Norton v. Beaver, 5 Ohio, 178; Lake v. Doud, 10 Ohio; 2 Binn. 48; 1 Johns. Ch. 300; 3 Cranch, 155 ; 3 Hen. & Munf. 232.
    2. This mortgage being executed and delivered before the term of the court commenced, and being recorded before the judgment was rendered, when so recorded, relates back to the execution, and takes effect from that time by the ^doctrine of reíation. Jackson v. McCall, 3 Cow. 80; Vin. Abr., tit. Relation, 290; Foster’s Lessee v. Dugan, 8 Ohio, 87; Boyd’s Lessee v. Longworth, 11 Ohio, 235; Scribner’s Lessee v. Lockwood, 9 Ohio, 184; McGuire v. Ely, Wright, 520; Jackson v. Bull, 2 Caine’s Cas. 300; Heath v. Ross, 12 Johns. 140; Jackson v. Dickinson, 15 Ib. 315; Nichols v. Chapman, 9 Wend. 452; Griswold v. Stewart, 4 Conn. 457; Bennet v. Davis, 3 Cow. 69; Griswold v. Bard, 4 Johns. 230 ; 1 Cow. 740; 3 Ib. 75; Tooley v. Dibble, 2 Hill, 643; 4 Kent’s. Com. 457; 3 Atk. 646.
    3. A judgment rendered by confession can not so relate back to the first day of the term as to cut out the rights of third persons, bona fide acquired between the first day of the term and the-rendition of the judgment. Urbana Bank v. Baldwin, 3 Ohio, 63 ; Taylor v. Ranney, 4 Hill, 620; Jackson v. Benedict, 13 Johns. 533.,
    Giddings, Perkins & Osborn, in reply:
    All the cases referred to by defendant’s counsel, in their argu-ment, under the first head, depended upon general chancery principles, and belong to a distinct class from those referred to by us. They were all based upon the well-known principles of chancery jurisdiction, viz., fraud, trust, and accident. None of them depended upon the construction oí our statutes, and in this respect are clearly distinguishable from those in 3, 8, and 13 Ohio, cited by us.
    The doctrine of relation will not avail the defendant. The doctrine of relation exists only between th.e immediate parties to the , transaction, and is intended to prevent, not to promote injustice. Hood v. Brown, 2 Ohio, 357; 4 Kent’s Com. 338; Barr v. Hatch, 3 Ohio, 527.
    *The statute leaves no room for the doctrine of relation in cases of this desci’iption.
    Neither is the third point well taken by the defendant’s counsel. The lien, and the commencement of the lien, are fixed by statute. Judgment liens are the creatures of the statute; they take effect by force of statute, and not by fiction. Riddle v. Bryan, 5 Ohio, 48; McCormick v. Alexander, 2 Ohio, 65.
   Hitchcock, J.

There does not appear to be any controversy in this case with respect to the moi’tgago to the State of Ohio. That was prior, in point of time, to the judgments, and to the mortgage to Eastman, and as no objection is x’aised to it, wo suppose it was regularly recorded. The real controversy is between the complainants, as judgment creditors, and Horace H. Eastman, the second mortgagee. All the judgments and mortgages ai’e liens upon the same lands.

The facts with respect to these two parties are, that the mortgage was executed on the 7th of Apx’il, but was not entered for record until the 12th. A term of the court of common pleas commenced on the 10th of April; and on the 20th, but dux-ing the same term of the court, judgment was obtained by the complainant upon a cognovit. If the judgment operated as a lien from the first day of the term, this lien is preferable to the lien of the mortgage, because elder in point of time than the date of the delivery of the mortgage for record. That it does so operate there can be no doubt, unless we entirely disregard the statute. By a former-statute, judgments of this character did not operate as liens until the date of their actual entry. But, for some reason, the legislature thought proper to change this provision, and by the law, as ' it now stands, all judgments are placed upon the same footing, and the lands of the judgment debtor are bound from the first day of the term in which such judgments are entered. This point being settled, this case is precisely like the case of Mayham v. B. Coombs and ^others, decided at the present term. We believe the decision in that case to be correct, and must adhere to it. As between the judgments and the secon'd mortgage, the former must have the preference, and a decree may be taken accordingly.

Wood, C. J., being sick, did not unite in the examination and decision of this case.


author: *Hitchcock, J.

text:
    Margaret Miller’s Administrator v. Samuel Woodman and others.
    A suit in chancery for dower is abated by the-death of the dowress.
    This is a case in chancery, reserved in Muskingum county.
    On February 9,'1841, Margaret Miller filed her bill in chancery in the court of common pleas of Montgomery county, setting forth that John A. Miller, late of the county of Montgomery, died on or about May 12, 1820, leaving the complainant his widow; that John A. Miller, during coverture with complainant, was seized, as of an estate of inheritance, of certain real estate described in the’ petition, and that defendants, Samuel Woodman, and his wife Marcia, who was one of the heirs of John A. Miller, were seized of the next estate of inheritance, the said Samuel having purchased the rights of the other heirs of the said John A. Miller; that the ^complainant is entitled to dower in the premises, which she prays may bo sot off to her, etc.
    To this petition no answer was filed ; and at the July term, 1841, a decree pro confesso was entered. On the 16th of August of the same year, a writ was directed to the sheriff of the county, commanding him to assign dower, and to have the annual value of the land assessed from 1831.
    Return was made to the court at the September term, 1841, by the commissioners, that they had set off the dower of the cornplainant, and had assessed the value of the rents of the entire premises from 1831, at §1,200, one-third of which, to wit, the sum of $400, was the right of tho complainant. To this report exceptions were filed by defendant’s counsel on the 7th of October of tho same year.'
    No further order appears to have been taken in the ease during the life of Margaret Miller, who died in July, 1843, during the pendency of the proceedings.
    On January 10, 1844, John -A. Miller, administrator of Margaret Miller, filed his bill of revivor, and by this bill he seeks to recover, not dower, but rents and profits of tho dower estate to which the widow would have been entitled, had she lived, from the time of filing the original bill until the time of her death.
    This bill was answered February 20, 1844; and by the answer, the question is raised, whether the cause of action survived, so that it would be revived in favor of the administrator.
    Testimony was taken in tho court of common pleas, to prove the annual value of the rents and profits; and at the August term, 1844, a final decree was rendered against the defendants for $96.33, with costs of suit. From this decree, defendants aj>pealed.
    P. P. Lowe, for complainant.
    Crane & Davies, for defendants.
   *Hitchcock, J.

Tho facts of this case are somewhat singular, as disclosed in the pleadings and evidence. Margaret Miller was left a widow in 1820. In 1841, almost twenty-one years after the death of her husband, she filed her petition for dower. Had she waited four months longer, she would have been barred by the statute of limitations. One of the defendants is her daughter, whose husband has purchased the rights of the other heirs, and taken their conveyances with covenants against incumbrances, and with warranty. The case, forsomo cause, wasdelayod in its progress until July, 1843, when the petitioner departed this life, no final decree having been entered. Six months thereafter, John A. Miller, one of the heirs of the deceased husband, and who had conveyed with covenants, attempts to revive this suit, not for the purpose of effecting the original object of the bill, but for another and a different object. The question is, can he do it? Is this a case which can be revived? This is the question for the court now to decide.

An estate in dower exists where a man is seized of an estate of inheritance, and dies in the lifetime of his wife. In such case, by the common law, the wife is entitled, to be endowed, for her natural life, of the third part of the land whereof her husband was seized during the coverture, and of which any issue she might have had, might by possibility have been heir. By our statute, “the widow of any person dying, shall be endowed of one full and equal third part of all the lands, tenements, and real estate of which her husband was seized during the coverture, as an estate of inheritance.” Swan’s Slat. 296.

The estate is an estate for life. It commences with the death of the husband ; it ceases with the death of the wife. It is not in tho power of the widow to transfer any interest in it, until it has been actually assigned. When the dower is assigned, when it is aparted and set off to her by metes and bounds, then she may sell and convey, not before. The right, the chose in action, if I may so speak, is not assignable. It may be relinquished to him who has the next estate of inheritance in the *land out of which it is to be carved, but can not be transferred to a third person.

Our law has made ample provision for the assignment of dower when it is withheld. It is to be done through the instrumentality of the courts of justice ; and, when the dower is set off, the law makes provision that the widow shall be entitled to a c.ompensation for the time it is withheld after petition is filed. This compensation is to be ascertained by the commissioners who set off the dower. All these previous proceedings are to be confirmed by decree of the court. When that decree is pronounced, then, and not till then, the compensation becomes a chose against the tenant, to be enforced as the court may direct; and I have no doubt that the payment of this compensation, the -same being once fixed by final decree of tho court, might, in case of the subsequent death of the dowress, be enforced by her representative.

In all these proceedings the widow is the actor. Everything is done in her name. She can not delegate this right to another. If she ceases to carry on the suit, it is discontinued. Taking all these circumstances into consideration, it seems to the court that, if any legal proceedings are abated by the death of a party, such abatement must take place in the case of the death of a widow who is prosecuting a suit for dower. In such ease there can be no revivor. The bill is dismissed.


text:
    *Lessee or Richard Douglas v. William H. Dangerfield.
    Where land, after having been surveyed in the military district, and entered for taxation, is regularly sold for taxes, a subsequent withdrawal of tho survey will not defeat the title of the purchaser.
    Whether an auditor’s deed is prima facie evidence of title, qusere.
    This is an action of ejectment reserved in the county of Fayette.
    The action is brought to recover a certain tract of land in Fayette county, known as survey No. 1,122 or 13,377, of 1,333J acres. The lessor of the plaintiff claims title under a purchase at a tax sale, in 1837.
    To sustain his title, he offered in evidence upon the circuit the records of the auditor of Fayette county, showing that the land was delinquent for the taxes of 1836, and that it was sold for the taxes of 1836 and 1837, by the proper officer, to Wade Loofborow. In connection with these records, he offered a deed to himself from the auditor of the county of Fayette, bearing date July 23, 1841, reg.ularly executed and acknowledged. . This deed recites that, for the consideration of thirty-five dollars sixty-six cents and four mills, paid to the treasurer of said county, as appeared by a certificate of sale to Wade Loofborow, on December 25, 1837, for arrearages of taxes for the years 1836 and 1837, wherein a tract of land, thereinafter described, and ujion the said day sold to the said Loofborow for said arrearages of taxes, which certificate of sale was afterward duly assigned to Richard Douglas, by means whereof the said Douglas had become entitled to receive a deed thor'efor. The land is described as being survey No. 1,122, of 1,333¿- acres, originally made in the name of Theodore Bland, and surveyed on August 15, 1797.
    *Wade Loofborow was examined as a witness, and testified that he purchased, at the sale, for his own benefit, without having any communication with Douglas upon the subject, and that he afterward sold and transferred the certificate. '
    There is no further evidence from these records before the court now, than copies of the record of tax sales of 1837, and also a copy from the books of the auditor of state, showing that this land was regularly returned delinquent for the non-payment of the tax of 1836.
    The lessor of the plaintiff also offered in evidence a tax deed for the same land, dated March 6, 1834, from which it appears that the same land had been sold for the taxes of 1830-31, to one Joseph G. Green, who had transferred the certificate of sale to the lessor of the plaintiff.
    Also a tax deed bearing date April 29, 1833, for the same land, from which it appeared that the same land had been sold for the taxes of 1828-29. From this deed it further appears, that the land had been entered for taxation previous to this sale, in the name of Theodore Bland and William Dangerfield.
    Subsequent to this sale, the land was entered for taxation' in the name of Richard Douglas.
    There is also in evidence copies from the books of the principal surveyor of the Virginia military district.
    From these it appears that the land in controversy was entered on warrant 209, in the name of Theodore Bland, on August 14, 1787, and surveyed on August 15, 1797, and the survey recorded on the 20th of October of the same year.
    This entry andf survey were withdrawn on March 8, 1833, and the same warrant, No. 209, entered on the same land, in the name of the defendants. The number of the entry is 13,337. The last entry was surveyed on March 12, 1833, and there is no controversy but that it covers precisely the same land which was covered by the former survey, although the beginning corner and some of the other calls are different.
    *The land was patented to the defendants on April 1, 1833, and in the patent, the patentees are described as heirs of William A. Dangerfield, who was devisee of Martha Corran, widow, and legatee of Theodore Bland, to whom and for whose military services the original warrant was issued.
    R. Douglas, in person:
    The plaintiff, in support of his title, contended that the provisions of the statute, authorizing the sale of land for non-payment of taxes, had been complied with, and that the land was properly subject to sale ; that the withdrawal of the entry, and relocation of the same upon the same land, did not withdraw the land from the operation of the tax laws of the state. He referred to the following authorities : 3 Ohio, 236 ; 10 Ohio, 155; 2 Chase’s Stat. 1493, 1496; 3 Chase’s Stat. 1807, sec. 31; Swan’s Stat. 113; 2 Chase’s Stat. 1495 ; 8 Ohio, 541; 3 Chase’s Stat. 1812.
    William Ellsberry, T. Ewing, and Henry Stanbery, for defendants,
    insisted that the land, at the time of the sale, was not subject to taxation; and that if it was, the proceedings were irregular, and transferred no title to the purchaser. They relied upon the following authorities: 3 Chase’s Stat. 1808, secs. 18, 19, 21, 22, etc.; lb. 1810 : Winder’s Lessee v. Sterling, 7 Ohio, 193, pt. 2; 3 Chase’s Stat. 1809, secs. 22, 23, and 1811, secs. 29,32; Douglas v. Dangerfield, 10 Ohio, 152; 3 Ohio, 234; Taylor’s Lessee v. Myers, 7 Wheat. 23; 3 Chase’s Stat. 1806; 8 Ohio, 114; 1 McLean, 321; 1 Ohio Cond. 154; 5 Ohio Cond. 28.
   *Hitchcock, J.

The controversy in this case is as to the validity of the sale for taxes, in pursuance of which the lessor of the plaintiff claims title. If the proceedings under that sale were in accordance with the statute, the lessor has the legal title, unless there are other circumstances in the case which will defeat him.

Many objections are urged to these proceedings, or rather to the sufficiency of the evidence introduced to show what these proceedings were. Most of these objections, however, are based upon the supposition that there is a want of evidence preliminary to that which is now before the court, but this evidence was all introduced upon the circuit, and it is within the recollection of the members of the court that, after the most careful examination, no defect could be discovered in the proceedings up to the time the land was returned delinquent for the non-payment of the tax of 1836. The evidence now before us commences with a copy of the return of this delinquent list for 1836, by the proper officer, to the auditor of state, which copy is certified by the chief clerk in the auditor’s office. From this time it appears that the land was regularly returned delinquent, the fact of delinquency being established by the oath of the treasurer of the county. Then follows what is denominated a copy of the record of proceedings relative to delinquent lands and town lots within the county of Fayette, on which the taxes are due and unpaid for the years 1836 and 1837.

This shows that the tracts of land contained in a list, on which list is the land now in controversy, were regularly entered, by the auditor of the county, for taxation, on the duplicate of 1836. That on August 13, 1836, this duplicate was handed over to tha treasurer of the county for collection ; that the treasurer being •unable to collect the tax on the land contained in this list, returned the same as delinquent, on the first Monday of January, 1837; that the county auditor made out and transmitted a list thereof to the auditor of Estate; that the auditor of state not certifying that the taxes were paid thereon, the county auditor entered said land on the duplicate of 1837, charging the land with the tax of 1836, with the interest and penalty, in addition to the simple tax of 1837. On August 14,. 1837, this duplicate was handed over for collection to the treasurer of the county, and the-taxes still remaining unpaid, the county auditor made out a separate list of said lands, describing the same as they were described on the duplicate, and caused the same to be published for four successive weeks, between the 1st day of October and the 1st day of December, 1837, in a paper (naming it) printed and in general circulation in the county of Fayette, to which said list was attached a regular certificate, as required by the statute.

Then follows a copy of the advertisement; next a certificate of publication; then a statement that the treasurer attended at the court-house, in said county, on the last Monday in December, and offered the lands for sale, and that the land in controversy was actually sold to Wade Loofborow..

Then there is a certificate that this is a true copy of the records of his office.

This is objected to as being matter of history, not of facts, in the nature of a record. The auditor certifies that it is a true copy of the records in his office. It is matter, then, there recorded; and I suppose the record of a transaction is a history of a transaction. A record, for instance, of a judicial proceeding, is a history of that proceeding — nothing more nor less; and this record is a history of the proceedings which transpired previous to, and were consummated in the sale of this land.

We see no defection in it; counsel have failed in pointing Out any which actually exist.

Now, if there had been no other evidence in the case than is now before the court, it seems to us that the plaintiff would havo made out a prima facie case. We have evidence of the delinquency of the land for the tax of 1836 — evidence that it was again entered upon the duplicate in 1837, and evidence *that it was actually sold. This, in connection with the auditor’s deed, makes out a prima fade case for the plaintiff, and if there was anything wrong in the previous steps, it was incumbent on the defendant to have shown it. It would not, perhaps, be going too far to say that the prosecution of the auditor’s deed alone was sufficient to put the defendants on their defense. This land was sold under the act of March 14,1831, Chase’s Stat. 1837, which, after pointing out the manner in which lands shall be sold, and that the county auditor shall make deeds, provides, in section 39, “that the deed so made by the auditor shall vest in the grantee, his or her heirs and assigns, a good and valid title, both in law and equity, and shall be received in all courts as prima fade evidence of a good and valid title in such grantee, his heirs and assigns.” It will be seen that the phraseology of this statute is somewhat different from that of the act of February 1, 1825, 23 Ohio L. 89, under which the land in controversy, in the case of Carlisle v. Longworth, 5 Ohio, 368, was sold. It is not necessary, however, to express any opinion upon this point in the present case, as all the requisite preliminary proof was before the court at the time the case was reversed, and being before the court, it is immaterial as to which party introduced it. •

Another question is raised in the case which must be disposed of. The land in controversy was entered for taxation as survey No. 1,122, and entered also in the name of Richard Douglas, and it would seem to have stood in the name of Douglas, from the tax sales, in 1829. Previous to that time, the same land, by the same number of survey, had been entered upon the duplicate in the name of Bland and fm. Dangerfield. Being delinquent for nonpayment of the taxes of 1828 and 1829, it was sold to Douglas, and transferred to his name upon the duplicate, and has so remained to the present time, or rather, did so remain until the sale in 1837. In whose name it was taxed previous to 1828, we do not know, there being no evidence upon that point.

On March 8, 1833, warrant No. 209, the warrant *under which entry No. 1,122 had been made, and which entry had been surveyed in 1797, was withdrawn from that entry and survey, and the same was executed. On the same day, the same warrant was relocated by entry No. 13,377, and this latter entry was surveyed on the 12th day of the same month; and this latter survey was carried into grant on the 1st day of April next following. But whero was this warrant relocated? On precisely the same land upon which it was located before. I think it covers the same, and no more. Now, for what purpose all this maneuvering? The land ■ was fully appropriated by the previous survey, and no subsequent locator would interfere with it. But ft had been sold for taxes, and there can be no earthly doubt that the object of this relocation was to overreach the tax sale, to defraud the tax purchaser. Such finesse will not avail. This court have already decided that, after the survey of an entry has been recorded, it is not in the power of the owner to withdraw it, so as to destroy the tax lien of the state, or to avoid the regular sale for taxes. Hempbill v. Holt’s Heirs, 3 Ohio.

But it is said the land was not entered upon the duplicate by the correct number of entry. It was originally entered, and correctly entered, as No. 1,122, and it does not appear that any effort has been made by the proprietors of the land to have the number changed. It has, therefore, been continued upon the duplicate by that number. If the proprietors of this survey, after having received their patent, had honestly entered the land by its now number of survey, with the proper officer, for taxation, and had punctually paid the tax, all this difficulty might have been avoided; but this was not done; on the contrary, they seem to have rested upon the supposition that the change'of number would not only relieve them from previous, but from subsequent taxes, until, perchance, the proper officer should ascertain, by some means, that the change had been made.

It is necessary, in order to the validity of a tax sale, that the land should be entered upon the duplicate by a pertinent *description, and it should be entered in the name of the rightful owner, if known. If not known, however, the land is still taxed, being entered to an unknown owner. The tax attaches upon the land rather than upon the person — not upon the number of entry or survey, but upon the land included in such entry or survey. In this case, the land was pertinently described, and it was properly entered in the name of Douglas, it having been transferred to him in consequence of a previous sale.

'Upon full examination, we have discovered nothing to defeat the plaintiff’s title.

This case has been long in court, and continued from time to time, not on account of any difficulty in the case, but in the hope the same would be settled between the parties; and in consequence of the repeated declarations of the plaintiff, made in open court, that he wanted nothing but that the money and interest, which he had advanced for the taxes, should be refunded. We had hoped that this proposition, so fair in itself, would have been acceded to by the defendants; but as it has not been, the case must now be disposed of. Judgment is entered for plaintiff.

Wood, C. J., being indisposed, did not sit in this case.


author: Read, J.

text:
    Nathaniel Pigman v. The State of Ohio.
    Drunkenness of the accused, at the time of passing the alleged counterfeit hill, is a circumstance proper to he submitted to the consideration of the jury, and should have its just weight in determining whether-the accused knew the hill to he counterfeit.
    This is a writ of error to the court of common pleas of Marion county.
    The plaintiff in error was indicted for uttering, publishing, bartering, and disposing of counterfeit bank bills. The proof was the passing of a counterfeit bank bill of twenty dollars. A verdict of guilty was found by the jury, and the plaintiff was sentenced to four years’ imprisonment in the penitentiary.
    A. number of errors are assigned. But the one chiefly relied upon, or at all available, as disclosed in the bill of exceptions, is, that the court ruled out evidence offered by the accused, to show that he was drunk at the time he passed the bill, and therefore did not know what he was doing, or that the bill was counterfeit.
    *The case was argued for the defendant by James H. God-
    MAN.
    ' No argument was submitted for the plaintiff.
   Read, J.

Drunkenness is no excuse for crime; yet, in that class of crimes and offenses which depend upon guilty knowledge,, or the coolness and deliberation with which they shall have been, perpetrated, to constitute their commission, or fix the dogree of. guilt, it should be submitted to the consideration of the jury. If this act is of that nature that the law requires it should be done with guilty knowledge, or tho degree of guilt depends upon tho calm and deliberate state of tho mind at the time of the commission of the act, it is proper to show any state or condition of the person that is adverse to the px’oper exercise of the mind, and the undisturbed possession of the faculties. The older writers regarded, drunkenness as an aggravation of the offense, and excluded it for any purpose. It is a high crime against one’s self, and offensive to society and good morals; yet every man knows that acts may bo committed in a fit of intoxication which would bo abhorred in sober moments. And it seems strange that any one should ever have imagined that a person who committed an act from the effect of drink, which he would not have done if sober, is worse- than tho man who commits it from'sober and deliberate intent. The law regards an act done in sudden heat, in a moment of frenzy, when passion has dethroned reason, as less criminal than the same act when performed in the cool and undisturbed possession of all the faculties. There is nothing the law so much abhors as the cool, deliberate, and settled purpose to do mischief. That is tho quality of a demon ; whilst that which is done on great excitement, as when the mind is broken up by poison or intoxication, although, to be punished, may, to some extent, be softened and sot down to tho infirmities of human nature. Hence — not regarding it as an aggravation — drunkenness, as anything else showing the state of mind or degree of knowledge, should go to the jury. Upon this principle, in modern cases, it has been ^permitted to bo shown that the accused was drunk when ho perpetrated the crime of killing, to rebut the idea that it was done in a cool and deliberate state of the mind, necessary to constitute murder in the first degree. Tho principle is undoubtedly right. So, on a charge of passing counterfeit money; if the person was so drunk that he act. ually did not know that he had passed a bill that was counterfeit, ho is not guilty. It oftentimes requires much skill to detect a counterfeit. The crime of passing counterfeit money, consists of knowingly passing it. To rebut that knowledge, or to enable the jury to judge rightly of the matter, it is competent for the person chai’ged to show that he was drunk at tho time he passed the bill. It is a circumstance, among others, entitled to its just weight.

Judgment reversed, and cause remanded.


author: Birchard, J.

text:
    Eurotas P. Hastings, Administrator of Elliott Gray, v. Orlando H. Allen.
    It is an error in the court to assume to find a disputed fact, and, on that assumption, to arrest from the jury evidence which otherwise would be competent.
    One intrusted with personal property, may, in an action of replevin, contest the right of ownership and possession, without a redelivery of possession.
    This is a motion for a now trial, in an action of replevin, reserved in the county of Cuyahoga.
    The facts in the case appear in the motion, of which the following is a copy:
    And now, after verdict and before judgment, comes the said Orlando H. Allen, by Andrews, Foot & Hoyt, his attorneys, *and moves the court to grant a now trial in this cause, for the following reasons, to wit:
    The plaintiff offered in evidence the depositions of Samuel Lewis and others, for the purpose of proving, by the declarations of the defendant, that a few weeks previous to the commencement of this suit, the defendant had obtained possession of the schooner mentioned in the declaration, under a verbal agreement to sail her for Elliott Gray, the original plaintiff, during the sailing season of 1836; that the defendant, under the direction of Gray, immediately after obtaining possession of said schooner, made one trip in her to the upper lakes, and on his return, instead of reporting himself to the said Gray, secretly and clandestinely took said schooner to Buffalo, in the State of New York, and delivered her to Barker & Holt, of that city; that he afterward took two trips in her to Cleveland, and that, in the second trip, while he was at Cleveland, she was replevied in this suit by the said Elliott Gray; and upon this testimony the plaintiff rested his case.
    The defendant denied that there was any agreement, or sufficient proof of any agreement to sail the vessel for Elliott Gray, as claimed by the plaintiff; and offered to prove, by various witnesses and depositions, that the said schooner was built by Barker & Holt and others, in the year 1833; that the said Barker & Holt, who were the real defendants in the case, owned a majority of the shares of stock in said schooner ; and from the time she was built until within a few days of making the pretended agreement, the said Barker & Holt had the control and management of said vessel; and that during all that time the defendant had been in command of her as master, under the said Barker & Holt; that a few days before the making said pretended agreement, the said Elliott Gray forcibly and wrongfully took possession of said schooner from the said defendant; and that after the defendant returned from the upper lake trip, by the direction of the said Barker & Holt, he took said schooner to them at Buffalo, and under their directions sailed her between Buffalo and Cleveland, until *sho was replevied in this suit; that the said Elliott Gray never had any interest in, or title to said schooner, or right to the possession of her, before or at the time of the commencement of this suit.
    To the introduction of the above evidence the plaintiff, by his counsel, objected, alleging that as the proof showed that the defendant had obtained possession of the said schooner under an agreement to sail her during the season for the plaintiff, neither the defendant, nor the owners defending in his name, could refuse the plaintiff’s right to the possession of said vessel.

      The court held that the objection was well taken ; that the proof showed an agreement by tho defendant to sail the schooner for the said Elliott Gray, and that the defendant, and the owners defending in his name, were estopped by said agreement from disputing said Gray’s right to the possession of said schooner.
    Tho testimony was accordingly excluded by the court; and the jury, under tho direction of tho court, found a verdict, with nominal damages, for tho plaintiff.
    For tho improper exclusion of the defendant’s testimony, as aforesaid, this motion is made.
    Andrews, Foot & Hoyt, and J. B. Prentiss, in support of the motion :
    The question whether there was an agreement or not, and if so, what it was, were matters of fact for the jury. Assuming that such an agreement as that claimed" by the plaintiff, would, if proved, have estopped the defendant from denying the plaintiff’s title, it afforded no ground for tho exclusion of the testimony in tho first instance. The evidence should have gone to the jury with instructions to disregard it, if they found the agreement.
    *The agreement, if proved, would not estop the defendant showing title in a third person, at the time suit was brought.
    In replevin for a horse sold by defendant to plaintiff, it was held that defendant might defeat tho action by showing property in a third person. Boies v. Witherill, 8 Greenl. 162.
    So a warehouseman receiving goods from a consignee who had actual possession of them, to be kept for his use, may, nevertheless, refuse to deliver them, if they are tho property of another; and Heath, Justice, remarks that, “ It is peculiar to the action of ejectment, that one who is intrusted with tho possession of land, must deliver it back to his lessor; but that rule extends to no other action.” Ogle v. Atkinson, 5 Taunt. 759.
    So receiptors of goods to the sheriff may show, in an action brought by him, that the goods wore not the property of the debtor. Larned v. Bryant, 13 Mass. 224.
    A parol agreement can never ha pleaded as an estoppel. It may be given in evidence to the jury ; and, if conclusive at all, is conclusive only upon such things as are plainly expressed in it. It can not have greater effect as evidence, than it would have if under seal and specially pleaded. Matter of inference or argument can not operate as an estoppel. Co. Lit. 355, b.

      “Estoppels must be certain to every intent; for no one shall be denied setting up the truth, unless it is in plain and clear contradiction to his former allegations and acts.” Greenl. Ev. 26, and ' the cases there cited. These rules apply with peculiar force to a merely verbal agreement.
    Now the agreement relied upon in this case, contained no express admission of the plaintiff’s title or right of possession, nor any promise to return the vessel to the plaintiff. If, therefore, any such admission or promise is relied upon, it must be by way of inference, and could not in any contingency havo the effect of an estoppel.
    If, however, the agreement admitted anything, it was the plaintiff’s right to possession, and not an absolute title in him; *and the defendant ought to havo been allowed to show an interest in third persons, in mitigation of damages, if he could not do so to defeat the action.
    The defendant offered to show that, at the time the pretended agreement was made, he was lawfully entitled to the possession of the vessel; that he had been fraudulently and wrongfully dispossessed of her by the plaintiff, and that the plaintiff had no right or interest in hor whatever. If this were so, the agreement was void for want o'f consideration, for the plaintiff was legally bound to deliver the vessel to the defendant, and his doing what it was his duty to do, constituted no consideration for the undertaking of the defendant. He parted with no right, and the defendant acquired none. “Periormanee of an act which the party was by law bound to perform, is not a sufficient consideration for a promise.” 1 Wheaton’s Selw. 38; Still v. Myrick, 2 Camp. N. P. 317; Harris v. Watson, Peake’s N. P. 317.
    A voluntary restoration of what the law would compel a man to restore, is not a consideration for a promise. McDonald v. Neilson, 2 Cow. 139.
    Had the plaintiff been an owner of the vessel, the defendant should have been permitted to show that there were other owners; for the legal effect of the agreement was to run her for the benefit of all the owners; and, even if this were not so, there was no admission of title in the plaintiff, inconsistent with his being co-tenant with others. The evidence offered was material, because, in replevin, all the owners must join. Hart v. Fitzgerald, 2 Mass. 509.

      Tho suit was in effect a suit against the owners of the vessel, through brought of necessity against the person in possession, and they had a right to make any defense which they could have made had they been parties to the record. If they had been permitted to defend, the judgment would have concluded them. Kinnersly v. Orpe, Doug. 56; Kip v. Brigham, 6 Johns. 157; Bender v. Frembarger, 4 Dall. 436 ; 7 Johns. 168.
    It is, perhaps, superfluous to add that estoppels aro not favored *in law; that they are not to be extended, and that the inclination of courts is to discountenance them because tljoy may exclude the truth. 4 Mass. 181, 273; Garnett v. Ball, 3 Stark. 160.
    Payne & Wilson, for plaintiff, against tho motion:
    We contend that the acts and contract of the defendant operate as an estoppel, and preclude him from interposing the defense offered on tho trial.

      What is an estoppel ¶

    In Greenleaf’s Ev. 25, sec. 22, it is laid down, “A man is said to be estopped, when he has done some act which the policy of the law will not permit him to gainsay or deny. Tho law of estoppel is not so unjust or absurd as it has been too much the custom to represent. Its foundation is laid in the obligation which every man is under to act and speak the truth; and, in the policy of the law, to prevent the great mischiefs resulting from uncertainty, confusion, and want of confidence in tho intercourse of men, if they were permitted to deny that which they have deliberately and solemnly asserted and received as true.”
    Again, at page 33: “Another class of estoppels are £admissions ’ which have been acted upon, or those which have been made to influence the conduct of others, or to derive some advantage to the party, and which can not afterward be denied without a breach of good faith. This class comprehends not only all of those declarations, but also that line of conduct by which tho party has induced others to act, or has acquired any advantage to himself.”
    Again, at page 240, see. 207: “Admissions, which have been acted upon by others, are conclusive against tho party making them in all cases between him and tho person whoso conduct he *has thus influenced. It is of no importance whether they were mado in express language to the person himself, or implied in the general and open conduct of the party; for, in the latter case, tho implied declaration may be considered as addressed to every one in particular who may have occasion to act upon it. In such cases, the party is estopped, on grounds of public policy and good faith, from repudiating his own representations.” The same doctrine may be found in 7 Stark. Ev., 7 Am. ed. 22.
    In the case before the court, Allen had, by his declarations, promises, and conduct, both induced Gray to act, and secured an advantage to himself. And that this case comes within the rule as above laid down, is clearly shown by reference to the following cases.
    When a man has cohabited with a woman and treated her in the face of the world as his wife, he can not afterward object to a creditor who had supplied her with goods, that she was .not his wife. 2 Esp. 637; 1 Camp. 245 ; 4 Camp. 215. So, when a man has held himself out to the world in a particular character, he can not afterward divest himself of it, in order to claim that to which he is not entitled under the assumed character. 2 Esp. 637; 1 Camp. 245.
    A man who acquiesces several years in a commission of bankruptcy, and elicits the votes of creditors in the choice of assignees, can not afterward dispute the commission. 6 Esp. C. 20; 2 Ves. 236; 6 Esp. 61.
    So a petitioning creditor can not dispute the debt in an action by the assignees. 1 Moore, 300. So a defendant is estopped, by the recognizance of bail entered into for him by the name by which he is sued, from pleading a misnomer, although he is no party to the recognizance. Merideth v. Hodges, 2 N. R. 453. So a tenant can not dispute his landlord’s title, nor can a copyhold tenant dispute the title of the lord of the manor. 5 B. & A. 626 (7 Eng. Com. L, 214). A tenant is concluded by the statement he makes to his landlord, as to the time of entry. 2 Esp. C. 635. ^Respondents obtaining a respite of appeal, can not afterward object the want of notice. 4 B. & A. 535.
    When one being asked his name previous to issuing out a process against him, represents it to be John, he can not, in an action against the sheriff for trespass, insist that his name is William. Price v. Howard, 3 Camp. 108; Bass v. Cline, 4 M. & S. 13. When a plaintiff signed himself/1 M. D.,” it was hold that he was to be taken as a physician, and that he could not maintain an action for fees. 2 Camp. 441; 4 Term, 317. So when one has knowingly permitted his name to be hold out to the world as one of a trading firm, in an action by a stranger for credit given upon the faith of his being such partner, he is estopped from denying that he was such partner. 10 B. & O. 128, 140, 141; 6 Bing. 776, 794; 10 B. & C. 20; 2 Camp. 302. So one assuming to act in an official or professional capacity is bound by it, even to incurring penalties. Greenl. Ev., sec. 195, etc.
    This doctrine is also applied to the relation of bailor and bailee, the cases being in principle the same. 7 Bing. 399; 8 Wend. 610; 3 N. Hamp. 290; 1 Conn. 248; 1 McCord, 392 ; 2 B. & C. 540; 2 Camp. 344; 3 Pick, 38, 44, 317; Story on Bail. 78, sec. 102; 6 Al. & El. 515.
    Also, to the relation of principal and agent. Story on Agency, 207, 208, and notes; 9 Bing. 382, and note.
    Thus, also, the indorsement or acceptance of a note or bill is a conclusive admission against the indorser or acceptor of the genuineness of the preceding signatures, and of the authority of the agent when it was drawn by px-ocuration. 9 Watts,.273; Greenl. Ev. 243.
    Again, it makes no difference in the operation of this rule whether the thing admitted be true or false, it being the fact that it has been acted upon that renders it conclusive; e. g., the two •brokers instructed to effect an insurance, wrote that they had effected two policies. In an action of trover for the policies, they are held estopped to deny the existence of the policies. Peck on Ins. 4. See also 8 Wend. *483; 9 Ib. 147; 3 Pick. 38, 44; 3 C. & P. 136; 3 Hawk. 479; 2 Esp. 635; 1 B. & A. 650; 3 Camp. 108; 1 C. & P. 614; 1 B. & Ald. 712. Even in the case of an innocent mistake, if it has been acted upon by another, it is conclusive in his favor. Salem Bank v. Gloucester Bank, 17 Mass. 1, 27.
    In suppox’t of this doctrine, as applied to the landlord and tenant, a host of authorities, English and American, might bo cited, but the rule is too firmly settled by this court to require it.
    The reason of it is, that the tenant having derived a benefit, that is, having received this possession from the landlord, it would be a bx’each of good faith to permit him to repudiate that isolation until he restox’es the possession.
    It will be observed that none of the authorities place it upon the ground that the thing possessed is real estate. The rule is clearly defined by Justice Nelson, in Willard Canal Co. v. Hathaway, 8 Wend. 483. We quote the language of the court in that case:
    “As a general rule, the party will be concluded from denying his own acts or admissions which were expressly designed to influence the conduct of another, and did so influence it, and when such denial will operate to the- injury of the latter. The case of-the First. Presbyterian Congregation of Salem v. Withers striningly illustrates the general proposition. To an inquiry for rent and property liable to distress, the tenant replied that he had none. In ejectment for the premises, he was estopped from disputing the truth of his admission, by showing that he bad property out of which the rent could have been collected. All the cases I have seen in which the acts or admissions of the party are adjudged to operate against him in the nature of an estoppel, are generally cases where, in good conscience and honest dealing, he ought not to be permitted to gainsay them.”
    And in Davidson v. Franklin, 20 Eng. Com. L. 363, when the obligor of a judgment note had stated to the assignee of the obligee, before he bought it, that it could be paid; on a *motion to set aside the judgment on the ground that the note was given for a gaming debt, the court held him estopped, by his admission, from showing the illegality of the contract. Lord Tenterden remarked: “I think, according to the maxim that no man ought to be permitted to allege his own misconduct, we ought not to make this rule absolute. By so doing, we should enable the defendant to defeat the judgment by his own fraudulent misconduct, and to injure a person who had advanced money upon the faith that his representations were true.”
    But it is claimed that, admitting that this doctrine of estoppel is applicable to the case, provided the supposed relation between the parties is established, yet the existence of such relation was a question exclusively for the jury ; and that the testimony offerod should have gone to the jury, under a direction from the court to disregard it, if they found such relation did, in fact, exist.
    Hero it will be noticed that the court distinctly stated to defendant’s counsel that it was competent for them to introduce any evidence tending to impeach or rebut the plaintiffs proof of such relation, and defendant’s counsel as distinctly stated in reply that they had no such proof to offer. The decision of the court was merely this: that the plaintiff had prima facie made out a ease, which, until explained or repelled, precluded the kind of defense proposed to be made. The court so far pass upon the testimony as to say that, unimpeached, it proves certain facts. And this right, it is claimed, the court do not possess. It is not the exercise of that power, but the question of its existence, that is a matter of surprise. As a matter of convenience in expediting the trial of issues, courts have, from the earliest period, exercised, the right of deciding upon the extent and effect of testimony. Whether the plaintiff’s testimony sustains the allegations in his declaration, or whether there is any testimony at all which requires an answer from the defendant, must be determined by the court on' every motion for a nonsuit. In many other cases, as in the one at bar, the court are compelled to decide whether the testimony adduced ^establishes, prima facie, certain -facts or relations, with a view to the admission or rejection of particular modes of defense. In suits upon indorsed promissory notes, the court, upon inspection of the note offered in evidence, the relation of the parties to each other, whether that of indorser- and indorsee, holder or maker, etc., thereupon admit or exclude further testimony in accordance with such relation. In the familiar case of the Indorsor v. Maker of a negotiable promissory note or bill, which the plaintiff claims to have been indorsed to him before due, upon the defendant’s offering to prove a failure of consideration, the court will find from the testimony whether the plaintiff was a bona fide holder before due, in order to the admission or rejection of the proposed defense.
    In all cases of a joint trespass or joint conspiracy, the question whether the declarations of one are competent testimony against his co-defendants depends upon the fact of a certain relation between him and them, which the court must first find, at least, prima facie established. So in ejectment by and between landlord and tenant. When the lease is produced in evidence, the court find that the relation of landlord and tenant is prima facie established’; and thereupon, unless the proof is rebutted, exclude all defense which is not pertinent to an issue between parties sustaining that i*elation to each other. Many more examples might be given. A single one will suffice. ( Take the case of Vendor v. Vendee; as the case of Butler’s Lessee v. Wilde, above named. The contract produced in evidence, and the testimony to show that possession was taken and held under it by the defendant, aro for the consideration of the jury. But the court unhesitatingly pronounce upon this proof that the relation of vendor and vendee is prima facie made out, and, unless first repelled, the defendant is estopped to show title in a third person. Indeed, the court may with propriety charge the jury that the plaintiff upon that proof is entitled to a verdict. Yet it is the jury that finally pass upon the testimony, and award the verdict.
    Now that is precisely the case at bar. The depositions clearly prove a certain relation between the plaintiff and defendant, *which relation was created by the declaration, contract, and conduct of the defendant, and his express recognition of the plaintiff’s title. This is to be finally submitted to the jury, and this case was so submitted. Nor do the court say that such relation is absolutely established; on the contrary, they merely find that it is prima facie made out, and will entitle the plaintiff to a verdict, unless impeached or rebutted by the defendant; and that, without such impeachment, the proposed defense is inadmissible.
    Andrews, Foot & Hoyt, in reply:
    It is not pretended that the mere delivery of a chattel by one man to another, estops the latter from denying the title of the former. If this were so, a man who should deliver a borrowed article to its true owner, would acquire a title to it by estoppel. It depends, then, upon the agreement accompanying the delivery; neither is it every agreement that estops a man, for upon that principle, a delivery on a contract of sale could estop the vendee from disputing the vendor’s title. But the question of estoppel depends upon the nature and terms of the agreement; where the contract is in writing, and its validity is admitted. As on demurrer to a special plea or otherwise, the court can pronounce upon its legal effect. But where no agreement is before the court, but only evidence from which an agreement may be presumed, there the question is for the jury, and whether there is an agreement or not, depends upon the inference which they draw from the testimony. It is said, however, that the court always pass upon testimony in cases of nonsuit.
    When a single item of evidence is offered, it is often impossible to tell whether it tends to prove the issue or not. Its effect may depend upon other testimony.
    But when the plaintiff has closed his case, and the testimony does not tend to prove the issue, the court will directa non-suit, not upon the ground that there is insufficient proof, but upon theground that there is no proof before the jury. Where *the evidence conduces to prove the issue, it goes invariably to the jury, and they are the sole judges of its sufficiency to prove the facts it is adduced to prove. So in the case of a suit brought by the indorsee of a promisory note; if the indorsement is admitted, the court will decide upon its legal effect, and not permit the defendant to go into the original consideration. But if the indorsement is denied, the defense goes to the jury, and they will be directed to disregard it if they find the indorsement.
    In this case, it is not pretended that there was any agreement before the court, but only evidence from which the jury might presume one. Suppose, then, it were law that the defendant could be estopped by an agreement, would he be estopped by mere evidence that tended to prove an agreement ?
    Again, supposing that the defendant was estopped from denying Gray’s right of possession at the time he received the vessel, would he be estopped from showing that, at the time of the replevin, Gray had parted with his interest? As, for instance, that he had sold her to a third person for whom the defendant then held her? Now by reference to the motion, it will bo seen that the defendant offered to show that at the time suit was brought, Gray had neither the right of property nor the right of possession; but this if was held he could not do.
   Birchard, J.

The merits of this motion depend upon the,solution of one question :

Did the court err in ruling out the evidence offered by defendant?

Admitting that the agreement claimed by plaintiff to have been proved, would, if found to exist, have estopped the defendant from denying his title, it should nevertheless have been left to the jury to find its existence, with instruction, in that event, to disregard the proof that was overruled. Or, if no such agreement was found, then to give to such rejected evidence the consideration to which it was entitled. In assuming *lo find this matter of fact for the jury, and acting upon it, wo think there was error.

The evidence ruled out was, however, legitimate for the purpose of showing that the title and right of possession was in Barker and Holt. The principle that one who is intrusted with property must redeliver it before bo can contest the right to it, is peculiarly applicable as between landlord and tenant in actions of ejectment, but is not applicable to the state of facts made by the plaintiffs proof, and the evidence offered by the defendant. The proof offered, with that rejected, did not make a case of estoppel in pais. Such estoppels are where the party has acquired some advantage by the acts relied upon to estop him, and the opposite party has been defrauded of some right. Courts apply this doctrine on grounds of public policy, and to prevent fraud and imposition to the prejudice of another. The acts and admissions which operate against one by way of preventing him from proving the truth, should be such as in equity and good conscience he ought not to deny.

The proof offered, tended to show that Gray was a mere trespasser, without any right to the possession of the vessel, and that his retention of it from the rightful owner, could have been of no advantage to him ; that he parted with nothing of his own, with nothing that ho could lawfully retain when he placed her in the possession of Allen, and of course that he was not defrauded. By the law, the individuals owning the majority of interest in a vessel, have the right to control her. They may appoint the master, compel him to account to them for her earnings, and may direct the manner of her employment. To these rules Allen was subject, and Gray must be presumed to have known it when he placed him in .command; and if so, the agreement relied on by him, if conscientious on his part, must be understood to have been limited accordingly. New trial granted.


author: Wood, C. J.

text:
    *Abigail R. Jones, Administratrix of Samuel T. Jones, DECEASED, V. THOMAS SMITH, SURVIVING OBLIGOR, ETC.
    A nonsuit will not be set aside, though improperly directed, unless a verdict, in favor of the plaintiff, will lay the foundation for a legal judgment.
    A lease of a lot and house, with the furniture, can not be assigned, so as to enable the assignee of the reversion to sue for the rent in his own name, unless the entire interest of the lessor is passed by the deed.
    The rent is increased in respect to the personalty, and being entire, can not be apportioned between lessor and assignee.
    The right of the assignee to sue, depends on the fact, whether the covenant runs with the land, or is collateral with it and personal; for, if personal, no right of action is transferred by the assignment, there being neither privity of contract nor estate.
    This is a case reserved from Licking county.
    The plaintiff, in her declaration, in this case, inter alia, avers that, on May 25, 1835, for the consideration, thereinafter mentioned, John W. Dixon demised, granted, and leased to the defendant, and one George Gray, etc., their executors, administrators, and assigns, a certain two-story brick house, and other appurtenances thereunto belonging, situate, etc., to have and to hold the said demised premises, with the appurtenances, for and during the term of five years, with a certain quantity of household furniture, etc.; and the plaintiff avers that the said Smith and Gray, in and by said lease, for themselves, etc., did covenant and agree to pay to the said Dixon, his heirs, etc., $120 a year, to bo paid quarterly, etc., for the rent of said premises; and that the said Tlmmas afterward, on the same 25th day of May, entered upon said premises, and was thereof possessed for the aforesaid term.
    It is also averred that afterward, on September 4, 1847, Dixon and wife conveyed to the plaintiff’s intestate the house and lot mentioned in the lease, “ together with the reversions, *remaindors, rents, issues, and profits thereof,” by deed, and of which the said defendant then and there had notice, and by means whereof, the said defendant became liable to pay to the said intestato the said rents, etc.
    The broach laid, is the non-payment of the rent.
    To this declaration the defendant plead non est factum, and gave notice that, on the trial of the case, he would give in evidonee, in bar of the action, that before the commencement of the suit, and before the assignment of the lease, ho paid to the said Dixon all the rents reserved therein, for the whole term to come and unexpired, etc.
    At the September term of the Supreme Court, 1844, the case came on for trial before the court and jury. The plaintiff gave in evidence the lease described in the declaration, and offered in evidence the deed of conveyance from Dixon and wife to the plaintiff’s intestate, granting to him, in foe simple, the premises in controversy, with all the rents, issues, and profits thereof, which deed, being objected to, was overruled; and the plaintiff offering no other proof, the court directed a nonsuit.

    The counsel for the plaintiff then filed their motion to set asido the nonsuit, on the ground that the court erred in the rejection of the deed, and in thus taking the case from the jury. This motion was reserved for decision in this court.
    Smythe, for plaintiff.
    J. R. Stanbery and H. H. Hunter, for defondant.
   Wood, C. J.

We havo looked into the pleadings in this case with deliberation and care, and can see no reason why a different opinion should be entertained than that which was expressed on the trial of the case on the circuit. Suppose the court erred in rejecting the deed, the nonsuit should not be disturbed, unless a verdict in favor of the plaintiff will lay the ^foundation for a legal judgment. 11 Ohio, 41; 12 Ohio, 302. Laying out of view some of the objections which are urged to the declaration, and which show, at best, a defective title, and taking the case upon its broadest ground, with the deed admitted, amj we can find no authority to sustain the action. There are difficulties in the way not to be overcome. The lease conveys to the defendant and Gray the house and lot, and also many articles of household furniture, and both realty and personalty are the consideration of the rent reserved. The conveyance, or assignment, as it is called by the plaintiff, of the lease, though it is a grant of the reversion in fee, is of the house and lot alone, in which the personalty is not mentioned at all. If the plaintiff recover, it is because the rent reserved is in respect to the land, and not increased by the personalty ; for, in such a case only, is there either privity of contract or privity of estate; and without either, there is no shadow of right by the assignee of the reversion. The right of the assignee to sue depends on ¿be fact whether the covenant runs with the land, or is collateral to the thing dismissed, and merely personal. If personal, no right of action is transferred by the assignment. There is neither privity of contract nor estate.

In the case at bar, the covenant is to pay a sum of money for the use of both the realty and the personalty. This is the consideration of the lease, and no provision as to the amount to be paid for each. The consideration is entire. The assignee, if he avail him - self of the assignment of the realty, and the suit reserved in respect thereto, has no right to the rent for the personalty, for it is not assigned by the deed, nor is it liable to transfer. It is said by Lord Coke, in his 3 Institutes, 16, if a house and land for years, with a stock or sum of money rendering rent, be demised, and the lessee covenants for his executors, administrators, or assigns to deliver the stock or sum of money at the end of the term, the assignee shall not be charged with this covenant; for, although the rent reserved was increased in respect of the stock or sum, yet the rent did *not issue out of the stock or sum, but the land only; and therefore as to the stock or sum, the covenant is personal, and does not bind the assignee of the covenantor. No reason is pei’ceived by us, why the analogy does not extend to the assignee of the reversion, or why he should have the benefit of such a covenant against the lessee.

The rent is increased in respect to the personalty and the covenant cntiro. How, then, shall the damages be apportioned ? How much of the entire rent is the consideration for the realty, and goes to the assignee for the lease, and how much should be retained out of the personalty for the lessor, from whom it is not conveyed by any grant or assignment? In our view, no such partition can be made; and if the whole term, and the whole interest in the term, is not conveyed, it is no more an assignment which can be enforced in his own name, by the assignee of the lessor, than the assignee of the lessee. In 2 Ohio, 215, it was held that the covenant would not lie against the assignee of a part of the premises. It was said to bo an understanding, but no assignment in contemplation of law. The opinion then expressed has been considered as the settled law for many years on this point, and we see no reason to change the rule.

The deed, then, did not sustain the plaintiff’s case; it did n conduce to prove aDy state of fact which would enable the plaintiff to recover, as the assignee of the reversion, upon the covenant on which the declaration is framed. The court, therefore, committed no error in directihg the nonsuit, and it should not be set aside.

The motion is overruled.


author: Dead, J.

text:
    George A. Barker vs. Cyrus Cory.
    The act of March 12th, 1845, entitled "An act to regulate the Judicial Courts, and the practice thereof,” does not require a Bond to be filed previous to the issuing of a Writ of Error j such Bond need only be filed when designed to operate as a supersedeas.
    If goods or chattels are delivered to a bailee for hire, and he convert them to his own use, assumpsit will lie to recover their value.
    The act of March 4th, 1815, respecting appeals from a Justice of the Peace, does not apply to cases appealed before the passage of the act.
    This is a Writ or Error to the Court of Common Pleas of Trumbull County.
    The writ was issued under the provisions of the act of March 12th, 1845, entitled “an act to regulate the judicial courts, and the practice thereof.”
    On the circuit a motion was made to quash the writ, for the reason that, previously to the issuing of the same, no bond had been filed with the clerk, by the plaintiff in error to the adverse party, conditioned to prosecute the writ, pay costs, &.C., as provided for in the 6th section of said act. To give a construction to this section, was the object in reserving this case.
    In Bank.
    Dec. Term, 1846.
    To dispose of the case finally, the errors assigned vyere also reserved for decision here. They are —
    First: That the action was commenced before a Justice of the Peace in form, ex delicto, and that the'declaration in the Court of Common Pleas was in assumpsit.
    Second: That the Court below erred in rendering judgment against the defendant below, for the costs accruing against him in that Court.

      Wade Ranney, for Plaintiff in error.

      Tod, Hoffman fy Hutchins, for Defendant in error.
   Dead, J.

The object of the 6th section of the act of March 12th, 1845, entitled “an act to regulate the judicial courts, and the practice thereof,” was to prevent writs of error to issue without the allowance of a Judge, as a matter of course. The reason of this change in the old law was, that, by this act, appeals were cut off which authorized a second jury trial, and writs of error substituted; and therefore all restraint upon their being issued was taken away. It was not intended by this act to impose a new condition upon a party seeking a writ of error, but to remove a restraint. But it is contended, on the part of counsel for the defendant, that, by this act, no writ of error can issue, ■ unless the party suing it out shall give bond, with good and sufficient, security to the adverse party, to prosecute the writ to effect, and pay all costs in error. Such a construction is opposed to the object of the act, and will not be adopted by the Court, unless compelled by its express terms.

That part of the 6th section relied upon by counsel for the defendant, reads as follows:

“ The clerk issuing such writ of error shall, in all cases, take ‘ good and sufficient bond and security to: the adverse party, ‘ that the plaintiff in error shall prosecute his writ to effect, and ‘ pay all costs in error if he fail to make his plea good; and no ‘ error shall operate as a supersedeas, to any execution issued £ on any final judgment of the Court of Common Pleas, &c., £ unless bond add security shall be given, as required in the ‘ 104th section of the act, entitled £ an act to regulate the prac- £ tice of the judicial courts,’ passed March 8th, 1831.”

Hence, these two acts must be construed together. The section referred to in the act of 1831, declares that no supersedeas shall issue, unless bond be given to the adverse party in double the amount of the judgment obtained, conditioned for the payment of the consideration money and costs, if the judgment be affirmed. It has always been held, under the act of 1831, that a bond was only required when the writ of error was to operate as a supersedeas. The act of March 12th, 1845, although not as clearly expressed as it might have been, means nothing more. If it should be held that it did, it would amount to this: that two bonds should be given conditioned for the same thing — at least' as to part of the condition. The bond, to obtain the writ, would require security, as to costs; and the bond, to obtain the supersedeas, would also be conditioned for the payment of the costs. The truth is, the first part of the clause of the act of 1845, requires that a bond should be given; and the latter part of the same clause specifies the kind of bond, to wit: such a bond as the act of 1831 requires, to make the writ of error operate as a supersedeas. Hence it is plain, that a bond and1 security is only required when it is designed to have a supersedeas. A writ of error may issue without bond, but it only operates as a supersedeas when bond is given. This has been the uniform construction of the statute upon the circuit, and we think it correct. The motion, therefore, to quash the writ is overruled.

The errors relied upon are two —

First: That the suit was commenced before the justice as an action ex delicto, and the plaintiff declared, in the Common Pleas, in assumpsit.

Second: That the Court erred in rendering judgment against the plaintiff below, for the costs accruing against him in the Court of Common Pleas.

As to the first assignment of error: The Justice of the Peace modestly, and rightfully, omits to indicate the form of action; he merely states that, by consent of parties, the cause was entered. The term cause, embraces injuries sounding both in tort and contract, arid permits, on appeal, without variance, either form of action, ex delicto or ex contractu to be pursued, as the nature of the injury may require. Treating the transcript as a process, it cannot be complained, in this instance, that the declaration does not pursue the writ, but sets up a new cause of action. Variance, or a departure in the declaration from the form of action adopted in the writ or transcript, is not the error complained of, but that the plaintiff has adopted a wrong form of action, and declared upon a contract when the injury was a tort.

The bill of particulars declares the injury to be this: That the plaintiff had delivered a certain number of logs at the mill of the defendant, to have them sawed into lumber, and had paid for the sawing; and that the defendant did not deliver the lumber, but converted it to his own use. Admit that trover would lie, it is one of that class of wrongs where the person injured may waive the tort and recover the value of the goods, as upon a sale.

As- to the second error, as stated above, respecting the judgment for costs: The judgment in the Court of Common Pleas, on the appeal, was for two dollars and eighty-seven and a half cents. The act of the 4th of March, 1845, respecting appeals from Justices of the Peace, provides that, if, on appeal by the plaintiff, a recovery shall not be had for a larger sum than $20, exclusive of interest since the rendition of judgment, he shall be adjudged to pay all costs accruing in the Court of Common Pleas, including a docket fee of five dollars. The appeal in this case was taken before the passage of the act, and does not, therefore, fall within its operation. The party, at the time he took the appeal, had the right to do so, without any such conditions or penalties as this act imposes. The act is not remedial, but creates new obligations and rights; and hence the

Court will not give it a retrospective operation, or apply it to appeals taken prior to its enactment.

Judgment Affirmed,


text:
    Lessee of Richard Waldron and others vs. Cornelius Woodcock.
    A Defendant failing in Ejectment, on the ground that the land improved by him is without the bounds of his title-deed, is not .entitled to recover the value of his improvements, under the act for the relief of Occupying Claimants of lands.
    This was an action of Ejectment, ‘reserved in Delaware County.
    The question was a controversy about a boundary. Both plaintiff and defendant were bounded by a certain section line, and the recovery of the plaintiff depended upon fixing it in a certain place. The title-deeds of the plaintiff bounded him on the south by the section.line; and the defendant, in like manner, was bounded on the north by the same line. There were two lines, each of which was claimed as the true line.
    The case comes before this Court on a motion for relief under the Occupying Claimant law, the defendant in ejectment claiming the right to recover the value of his improvements made on lands outside of his title-deeds.

      Sweetzer 8f Barnes, in support of the Motion.

      T. W. Powell, and Finch Jones, contra.

      In Bank.
    Dec. Term, 1846.
   Birchard, J.

Motion Refused.