text:
    The State of Ohio, on the Relation of Samuel H. Goodin, v. David K. Este, President, Thomas Henderson, Jonathan Cilley, and John Burgoyne, Associate Judges of Hamilton County.
    The appointment of a clerk of the court of common pleas, must he the act of the court, made in open court and entered on the minutes.
    The annunciation from the court, in session, that A. B. is appointed clerk vests no such right as precludes the court from subsequently refusing to have the appointment entered on the minutes. Even such entry does not compel the acceptance of the bond, and upon taking the oath, an induction into the office; hut upon reading the journal entries, and before the minutes are signed, the order may be rescinded.
    This case was reserved in the county of Hamilton.
    On May 19, 1835, and during the session of the Supreme Court in the county of Hamilton, Samuel H. G-oodin filed in said court an affidavit setting forth that, at the term of February, 1834, of the court of common pleas for said county, on Saturday, the 12th day of April, a day in said term, the court being in session and all the judges being present, the office of clerk of said court being vacant, said court then and there appointed the deponent clerk of said court, which appointment, signed by three of the judges, was delivered to the deponent.
    The deponent further stated, that the said court at the same time handed to David Gano, acting clerk pro tern, of said *court, in writing, the form of an entry of said appointment, to be by him entered on the minutes of the proceedings of said court for that day, directing him to enter the same on the minutes of the proceedings of said court, and then adjourned over until Monday morning, the 11th of the same month of April.
    That the said Gano failed and refused to enter the same, and on the meeting of the court on Monday morning, all the judges being present, and in session, two of them, to wit: Judges Henderson and Burgoyne, dissented from, and objected to, the entry thereof upon the minutes of said court, directing the clerk pro tem. not to .place the same upon the minutes, the other two judges, to wit: .Judges Goodenow and Cilley, then and there directing the said •clerk pro tem. to make the entry. And the court being so divided, ?the said clerk pro tem. then and there refused and still refuses do make entry of said appointment.
    That on the 16th day of April aforesaid, the court still being in ■session, the deponent offered to give the bond required bylaw, for the faithful discharge of the duties of clerk, with such security as /should be approved by the court. That he produced his bond in •court, and offered to take the oath of office, but two of the judges •refused to approve of the bond without objecting to its sufficiency, /and also refused to permit him to take the oath of office, or to en•ter upon the execution of the duties of the office; the other two judges at the same time consenting and agreeing that he might ..give bond as aforesaid, take the oath of office and enter upon the ■ execution of its duties. And the court being so divided in opinion, the application of the deponent was then and there refused.
    That the deponent, previous to his appointment, had received a .certificate of a majority of the judges of the Supreme Court that /he was qualified to discharge the duties of clerk of said court of /common pleas, which said certificate was before said court of •common pleas, when the said appointment was made as aforesaid.

      That said court adjourned without day, on the 17th day of April aforesaid, not having made entry of the appointment aforesaid, and without permitting the deponent to enter upon the execution of his office.
    The deponent further states, that afterward, to wit: on August *4, 1834, in the term of August of said court of common pleas, he appeared before said court of common pleas in his own proper person, and then and there tendered, for their approval, to said court his bond with securities for the faithful discharge and performance of the duties of clerk; and on the same day tendered and delivered to said court a certificate, that'he had taken the oath of office as clerk as aforesaid, and then and there offered to enter upon the execution of the duties ; and also then and there moved the said court to be permitted to enter upon the duties of the said office, and that said bond and oath of office might be entered upon the records of said court, and also moved said court to order the books and papers of said office to be delivered over to him.' But two of the judges, to wit, Thomas Henderson and John Burgoyne, refused to grant said motions, refused to permit said bond to be filed, although they did not object to its sufficiency and also refused to permit the deponent to enter upon the duties of his said office; and the other two judges, to wit, John M. Goodenow and Jonathan Cilley, decided in favor of the motions aforesaid, and the court being so divided in opinion, said motions were then and there overruled, and the deponent excluded from his office.
    The deponent further states, that. he is advised and believes, that by the appointment aforesaid, by the laws of the state of Ohio, he is legally entitled to the office of clerk as aforesaid, and that he is unjustly and illegally deprived of the exercise of the duties thereof. And that he is informed and believes that William H. Harrison is in the performance of the duties of said office to the exclusion of the deponent without any legal right or authority whatever.
    This affidavit was sworn to on May 11, 1835, and in it reference is made to the following papers, to wit:
    1. A copy of the certificate of the judges of the Supreme Court of the qualification of Samuel H. Goodin, to perform the duties of clerk of the court of common pleas of Hamilton county.

      2. The certificate of appointment, in these words :
    “ We agree to the appointment of Samuel H. Goodin to the office of clerk of the court of common pleas of Hamilton county.
    “John M. Goodenow, P. J.
    John JBurgoyne,

      “April 12, 1834. Jonathan Cilley.”
    *3. Copy of an order handed to Daniel Gano, clerk pro tem., to be entered upon the minutes of the court as follows: “It is ordered that Samuel H. Goodin be, and he is hereby appointed clerk of this court for the constitutional term of seven years.”
    And also an entrjr made on the minutes of said- court, on April 18, 1835, by J. M. Goodenow, president judge, in the following words: “I sign this journal with the protest, that it is not complete, for want of an entry .of the appointment of Samuel H. Goodin, clerk.”
    4. A bond tendered by said Goodin, to the judges of the court of common pleas, on August 4, 1834, on the back of which is the following indorsement:
    “Filed August 4, 1834, or rather presented to the court on that day, and Judges Henderson and Burgoyne refused to let them be filed. “ John M. Goodenow.”
    5. Copy of the oath of office of Samuel H. Goodin, presented to the judges of the court of common pleas, on August 4, 1834, certified as having been made on the 7th of May of the same year, before R. Mulford, a justice of the peace, upon which is the following indorsement:
    “Filed August 4,1834,or rather presented to court on that day, and Judges Henderson and Burgoyne refused to let it be filed.
    “John M. Goodenow.”
    6. Copy of an entry which Goodin moved the judges of the court of common pleas to admit on the minutes of said court, on August 4, 1834, which is'as follows, to wit:
    “ 1 Samuel H. Goodin, who claims that he was legally appointed the clerk of this court at the February term thereof, 1834, now comes into court and tenders his bond, with securities as such clerk, and moves the court to approve thereof; and also tenders his oath of office, duly administered, to the said court, and moves the court to admit him to enter upon the execution of the duties of his office as clerk.’ The court, being divided in opinion, refused to approve of the said bond; and also refused to admit him toenterupontheexecutionofhisoffieeas aforesaid. August4, 1834.”
    Upon the affidavit aforesaid, together with the documents referred to, the Supreme Court, on motion of S. H. Goodin, granted a rule upon the judges of the court of common pleas, to show cause at the opening of said Supreme Court, on May 27, 1835, why a mandamus should nob issue to ^compel the said court of common pleas to admit the said Goodin to file his bond, and take upon himself the discharge of the duties -of clerk of that court, pursuant to his appointment, made, as alleged, by that court on April 12, 1834.
    In pursuance of this rule, the judges of the court of common pleas showed cause respectively!
    Judge Henderson states that he is not advised, nor does he know that Goodin was ever appointed clerk of said court of common pleas. That his claim to said office rests altogether upon the assurances and promises.of others, as the defendant supposes, as he had nothing to do with the matter. He was never consulted with respect to it, nor did he ever attend to it. From these considerations, both Judge Burgoyne and himself refused to permit an entry to be made on the minutes of said court of common pleas of an appointment of said Goodin as clerk, which alleged appointment, so far as obtained, they considered as surreptitious, and of a character demonstrating the impropriety of investing him with the office. He protests against Goodin’s being placed in the office of clerk of the common pleas, as he believes it is now legally and rightfully filled by another.
    Judge Este states that he does not know that Goodin was ever appointed clerk of the court of common pleas aforesaid. That he has examined the minute book of the court as well as their records and proceedings relative to the alleged appointment, and finds the following entries only, to wit: “April 18, 1834. I sign this journal with the protest, that it is not complete for want of the appointment of Samuel H. Goodin’as clerk. John M. Goodenow, president judge.” Which is followed by the signatures of Judges Henderson and Burgoyne, denying that any legal appointment of clerk was made, etc.
    He further states that he was qualified and took his seat as president judge of said court of common pleas, on December 22, 1834; that he then found William H. Harrison officiating as clerk, and as such recognized by the judges of said court; and that upon further examination of the minutes of said court, he ascertained that Harrison was, at the August term, 1834, appointed clerk for the term of seven years, gave bond and security and took the official oath. From all which premises he insists that sufficient can m is shown why the said court ought not to he compelled to admit S. H. Goodin to *fi!e his bond, and take upon himself the discharge of the duties of clerk, etc.
    Judge Burgoyne insists that Goodin was not, at any time, legally appointed clerk of the court of common pleas; and, further, that at the term of August, 1834, William H. Harrison was appointed to said office, gave bonds to the acceptance of the court, and took all necessary official oaths.
    Judge Cilley admits the appointment of Goodin, as stated in the affidavit and accompanying documents, and that he was not permitted to enter upon the discharge of the duties of clerk in consequence of the opposition of Judges Henderson and Burgoyne; and, in consequence o'f the same opposition, no entry was made of the appointment upon the minute book.
    He further states, that without his approbation William H. Harrison was, at the August term, 1834, appointed clerk of the same court, and entered upon the discharge of the duties of the office.
    Morris, for the relator:
    The questions presented for the consideration of the court are:
    1. Whether the relator has a right to the office he demands.
    2. If he has that right, do the laws of the State of Ohio afford him a remedy by a writ of mandamus issuing from this court.
    By the constitution and laws of the state the Supreme Court and the court of common pleas are authorized to appoint their respective clerks. State Constitution, art. 3, sec. 9; 29 Ohio L. 57.
    The court of common pleas exercised their appointing power in the proper manner in the appointment of Goodin; and, having made the appointment, they could not recall or reverse what had been legally done. An entry on the journal is not necessary to the validity of the appointment. It is not required by law — an appointment is complete without it; and, being made, can not bo defeated by the fraudulent or improper conduct of the acting clerk to make the record. 1 Oranch, 137 ; 3 Hon. & Munf. 1.
    If tbe relator was legally appointed clerk, the proper course foi him to pursue, in order to obtain the evidence of his appointment, and to place him in the exercise of the duties of his office, is by writ of mandamus. 1 Cranch, 137; 2 Hon. & Munf. 1.
    *Hammond, Eox, and Worthington, for respondent:
    In the present case, there is one question to be decided which relates to the form of proceedings — whether the rule to show cause should be issued to the court of common pleas as a court, or to the individual judges of the court.
    We contend the rule should issue to the court of common pleas, not to the individuals composing that court. It is the action of the court which is required, not the action of the individual judges.
    Upon the merits of the case we conceive the rule must be discharged. The cause alleged, by a majority of the judges, why a mandamus should not issue, is that the relator was never appointed clerk. The return must be taken as true. 4 Ohio, 351.
    But if the affidavit of the relator is taken as true no cause is shown for issuing a mandamus. The relator has no right to file his bond and enter upon the discharge of the duties of clerk unless he has been first appointed. An appointment can only be made by order of the court, and no order is valid unless entered upon the minute book and signed by the president judge. 3 Ohio, 577; 4 Ohio, 130 ; 5 Ohio, 363, 450.
    The applicant 'must show a clear, legal right to discharge the duties of the office of clerk or a mandamus will not issue. If the right remained doubtful the court will compel him to resort to the writ of quo warranto, particularly where there is an incumbent in the office claiming to be legally appointed. 2 Esp. N. P. 665, old ed.; Com. Dig., Ib. Mandamus, B; lb., c. 3; 1 Johns. Cas. 134; 2 Bl. Com. 110, 111; 1 Johns. Cas. 79.
    With the appointment of a clerk of the court of common pleas, this court have nothing to do. By the constitution each court has the exclusive power of appointing its own clerk.
    J. C. Wright, for the relator, in reply:
    It is insisted that the rule should have been addressed to the court and not to the judges of the court. Authorities are abundant, in favor oí directing the rulé to the judges. 1 Johns. Cas. 179, 181; 2 Johns. Oas. 68, 118, 215; 4 Ohio, 357; 3 Hen. & Munf. 1; 9 Mass. 388; 2 Pick. 414; 4 Pet. 102.

      *The authority of this court to issue a writ of mandamus, in the case made, is denied unless the relator is found invested with the right. This court is authorized, by statute, to issue the writ, 29 Ohio Stat. 56; and it issues to prevent a failure of justice, and may be used on all occasions wherein justice and good government ; there ought to be one, and the law has provided no other specific remedy. Bac. Ab., Mandamus, D. E.; Com. Dig., Manda mus; 4 Ohio, 357; 5 Ohio, 543; 6 Cranch, 115.
    Counsel for the respondents further insist that the relator was not appointed, because the minutes show no entry of the appointment. This is the very thing of which we complain. We say the entry ought to have been made, and the object of this proceeding is to procure it to be made. The appointment was perfected when announced in open court, and the neglect of the clerk pro tern, to perform his duty by making the entry can not divest the relator of his right to the office. When the appointment was made the power of the court over the office was at an end, and it was the duty of the acting clerk to make the entry. It was the duty of the court to compel him to make it. And that court having failed to perform this duty, it is incumbent on this court to compel them to do it by process of mandamus. Upon this part of the case the reasoning of the Supreme Court of the United States, in the case of Marbury v. Madison, 1 Cranch, 14, is peculiarly applicable.
   Judge Hitchcock

delivered the opinion of the court:

The first question which presents itself to the court for consideration is, whether Samuel H. Goodin, the relator, has a right to the office 'which he now demands. In order to settle this question, we are disposed to disregard any technical objections, and to consider all the facts as they are presented to us by the papers submitted. Those facts are substantially as follows : On Saturday, April 12, 1834, the court of common pleas for the county of Hamilton, being then in session', and the office of clerk being vacant, a written paper was handed to Goodin, signed by three of the judges, in form following: “ We agree to the appointment of ' Samuel H. Goodin to the office of clerk of the court of common pleas of Hamilton county.” At the same time the form of a journal entry was handed to the clerk pro tern, with directions to have the *same entered on the minute book, in the following words : “ It is ordered that Samuel H. Goodin be, and he is hereby appointed clerk of this court for the constitutional term of seven years.” And the court then adjourned until the next Monday morning. It does not appear that the certificate of appointed was presented to the fourth judge, and he denies that he was consulted on the subject.

On Monday morning it was discovered that the journal entry, for some cause, had not been made, and two of the judges refused to permit it to be .made, insisting that Goodin had not legally been appointed clerk, and protesting against his appointment; the other two judges at the same time insisting upon his appointment. In consequence of this opinion, the clerk refused to make the entry, and it has never been done.

On the 16th day of April, and before the final adjournment of the court, the relator appeared before the court, and produced a bond conditioned'as the law directs, for the faithful discharge of the duties, of clerk, which bond was signed by himself and a number of individuals, which bond was offered for the acceptance of the court. No objection was made to the sufficiency of the bond, but objections were made by two of the judges to its acceptance, and, of course, the court being equally divided in opinion, it was not accepted. At the same time the relator offered to take the oath of office, but owing to the same division of opinion, this also was refused.

On the 7th of May he went before a justice of the peace and took the oath of office, the court not then being in session.

At the August term of the court, and' on the 4th day of that month, the relator again came into court, and tendered the aforesaid bond, and mov ed the court to approve of the same ; he also tendered a certificate of his oath of office, and moved the court to admit him to enter upon the execution of the duties of the office of clerk. But the court being still divided in opinion as to his appointment, the motions were refused.

At the same August term., William H. Harrison was appointed clerk of the court for the term of seven years, was qualified as the law directs, and entered upon the execution of the duties of the office.

Do these, facts evince that the relator has been legally and constitutionally appointed; that he is, in truth, entitled to the ^office of clerk of the court of common pleas of Hamilton county? If so, he is deprived of a right, and the law must furnish an adequate remedy..

Section 7, of article 3, of the constitution, provides that, “each court shall appoint its own clerk for the term of.seven years.” There is no other restriction, than this: that the court of common pleas shall not appoint any person to this trust for this term of time, unless he first produce a certificate signed by a majority of the judges of the Supreme Court, that they judge him well qualified to execute the duties of the office. This right being secured to the several courts, this court will rarely, if at all, interfere with its exercise. There may be cases where it would be proper to do it, but such cases must be extremely clear and free from doubt.

The mode of. appointment is not specified in express terms, either by the constitution or the law, but as it is an act of the court, we apprehend, like every other act, it must be done by an order. It is not sufficient for the judges to give to the applicant a certificate that they have agreed, or do agree to appoint him to that office. This, of itself, can be considered in no other light than as a pledge from the individuals signing the paper that he should be appointed. Neither would a certificate by the individual members of the court, that the applicant had been appointed, be an appointment; nor would it be legal evidence of an appointment, because it would be a personal act of individuals, not their act as a court.

It is true that, from necessity, this court does sometimes make pro tem. appointments, when not holding court in the county for which the appointment is made, but never to continue for a longer period than until the commencement of the next succeeding term. It is done to prevenía failure or delay of justice. The same necessity does not exist in the court of common pleas. In case a vacancy occurs in the office of clerk in that court, the law makes provision that.the associate judges who are residents of the county, and who may be easily convened, may appoint pro tem. 29 Ohio Stat. 58. But a permanent cferk can not be appointed, either by the Supreme Court or court of common pleas, except in open court, and also by an order of court. Such seems to have been the construction put upon the law by the court of common pleas in the case before us. For, notwithstanding a certificate of the agreement of three of the judges to appoint *him, was given to the relator, yet the attempted appointment itself, was by order of court, as is manifest from the form of journal entry, handed to the clerk pro tem.

By section 94 of the practico act, 29 Stat. -75, it is provided, “that for preventing errors in entering the judgments, orders, and decrees of each court, the judges thereof, before every adjournment, shall cause the minutes of their proceedings to be publicly read by their clerk, and corrected when necessary, and the same shall be signed by the president judgé, then sitting in court; which minutes, so signed, shall be entered in a book and carefully preserved among the records; and no proceedings, orders, judgments, or decrees of either of the said courts shall be in force or valid, until the same be so recorded and signed.”

Under this section, the order of appointing a clerk as well as ev'wy other operative order of the court, must be entered upon the minute book, and until it is so entered, and the minute book signed by the presiding judge, it can not “be in force or valid;” in other words, the appointment is not complete. If this be a correct exposition of the law, Goodin was not, appointed clerk of the common pleas for the county of Hamilton. No order appointing him has ever been inserted in the minute book of the court. But it is said this is the very thing complained of. That the order was in fact made, and the object of the relator is to compel the court of common pleas to have it entered upon the minute book. This is claimed upon the hypothesis, that the fact of the appointment having been announced from the bench, it was so far made, that no change could afterward take place, neither could it be recalled. But is it so? Suppose a court should announce the name of an individual as appointed to the office of clerk, and immediately thereafter should discover that he was in no way qualified to discharge the duties; might not another appointment be made? Would it be improper for the court to direct that no entry upon the minute book should be made? Or suppose, that through mistake, the name of a wrong individual should be announced, might not the mistake be corrected ? The term of court is in law considered as one day, and during the termas a general rule every subject is open for reconsideration and correction. And this, to a certain extent, must be the case with respect to the appointment of clerk. After the announcement of the appointment, ^although the order making it is regularly entered, still, before the individual can proceed to discharge official duties, he must take an oath of office, and also give bond, with security to be approved of by the court. After all this is done, it would be too late for the court to interfere with the office, unless for good cause shown. But, until this is done, the individual appointed, has no right to demand the office. Until it is done, if the court, making the appointment think proper, in the exercise of their discretion to rescind the order, and make another appointment, I am not prepared to say that thei’e would be sufficient ground to justify the interference of this court. On the contrary, it seems to me that the office is within the control of the court until the bond is approved. The cases of Marbury v. Madison, 1 Oranch, 137, and of Drew v. The Judges of the Sweet Spxdngs District, 3 Hen. & Munf. 1, have been cited as opposed to these principles.

In the case of Marbury v. Madison, the court decided that there must be some point of time' when the power of the appointing authority over the officer must cease, when the officer is not removable at will. That this must be when the power of appointment has been exercised. And the power has been exercised when the last act required from the person possessing the power has been performed. In that case the appointing power was in the president, and the-last act was the signature of the commission. If we apply these principles to the case now under consideration, they rather sustain than controvert the position before laid down. In this case the court of common pleas was the appointing power. By the order before referred to, had the same been regularly entered on the minute book, no authority was given to the relator to enter upon the duties of the office. He must take the oath of office; he must also give bond. And here another act is to be performed by the court- — the appointing power, and that is to approve of the bond. When this is done the appointment is complete, and not before. Had these things been done Goodin would have been clerk of the court, and would have.had the right to demand the office.

The case of Dew v. The Judges of the Sweet Springs District Court, in some of its general features, is like the ease under consideration. It requires, however, but a slight examination to see that that case turned upon the ^construction of certain Virginia statutes. What those statutes are we know not, except so far as can be gathered from the report of the case. Sufficient can be collected from this to show that they are materially different from onr own, and, of course, the ease can not be considered as authority here.

'Upon the whole, we are of opinion that the relator has not established his right to the office of clerk. And such being the opinion of the court, it is unnecessary to inquire as to the power of this court to issue a writ of mandamus in a proper case made, or to examine the question whether it would be a proper mode of proceeding where the court of common pleas had wrongfully dispossessed a clerk of his office.

The rule is discharged.


source: Caselaw Access Project

author: Judge Hitceccook

license: Public Domain

text:
    Lessee of David Dresback et al. v. Duncan M’Arthur.
    The owner of a survey of lands in the Virginia military district has not a legal estate upon which he can maintain an ejectment.
    A collector’s deed as upon a sale for taxes, though insufficient to convey title, may be given in evidence on the trial of an ejectment, as an item of proof to show the extent of the possession claimed under it.
    Upon a question of the better right of possession, in ejectment, the plaintiff claimed a naked possession only, proof that the defendant came into possession under a writ of habere facias possessionem, on a judgment in a case where the lessor of the plaintiff, in this case was defendant, is admissible, and the fact when proved, gives to the defendant the better right of possession.
    This action of ejectment was submitted to a jury in the county of Pickaway.
    The lands in controversy are within the Virginia military district, and the declaration in ejectment contains several demises. Amongst others, one from Dresback, Apple, Ely, and one from' John Tench.
    On the trial, the plaintiff proved that previous to June, 1814, and at that time, one Nathan Kennedy and those claiming under him were in possession of the premises. That on the 13th day of July aforesaid, John Carlisle recovered a judgment against Kennedy, in the court of common pleas of Pickaway county, and on the 27th day of the same month sued out his writ of ft. fa. upon this judgment. This execution was levied upon the premises in controversy, consisting of two hundred and fifty acres of land, and the land purchased at sheriff’s sale by Dresback, Apple, and Ely, on August 14, 1814, and conveyed in pursuance of the sale, by the sheriff of the county, by deed duly executed.
    The plaintiff then offered in evidence a deed from John Car-lisle, as collector of taxes, to Nathan Kennedy, dated June 3,1803, purporting to convey to the said Kennedy two hundred and fifty acres of land on sale for taxes; and also offered evidence to prove that John Carlisle was at the time of the *date of said deed collector of taxes in the Virginia military district, but offered no evidence to prove that the land had been regularly entered for taxation, or that it had been legally sold. The deed was objected to by the defendant’s counsel, but was admitted by the court for the express purpose of defining the boundaries of Kennedy’s possession, and for no other.
    The plaintiff next offered in evidence a survey of John Tench, No. 456, of twelve hundred acres, connected with proof, that the premises in controversy are included in said survey. This testi-' mony was objected to by the defendant’s counsel, and rejected by the court.
    The defendant then offered in evidence the record of a judgment in ejectment on his own demise against Dresback, Apple, Ely, and other defendants, rendered in the Supreme Court at August term, 1818, and also a writ of execution issued upon the same judgment, in virtue of which he was put in possession of five hundred acres of land; and also examined Robert Campbell as a witness, who testified that the premises in controversy were included within the said five hundred acres. To this testimony, the plaintiff objected, but bis objection was overruled, and the testimony went to the jury.
    The court charged the jury that if they were satisfied that the defendant had come into possession of the premises in virtue of his recovering in ejectment, and writ of possession issued thereon, and that if they believed the testimony of Campbell, they must be so satisfied, then it would be their duty to return a verdict for the defendant.
    A verdict accordingly was returned for the defendant.
    The plaintiff then moved the court to set aside the verdict and to order a new trial, for the following'reasons, to wit:

      1. The court erred in overruling the evidence offered of the survey of John Tench.
    2. The court erred in the charge of the jury.
    3. The verdict is against law and evidence.
    Douglass, for the'plain tiff, insisted:
    That a prior possession of less than twenty years is sufficient to maintain ejectment, and that this possession gives strength from its duration. The deed from Carlisle shows that Kennedy and those claiming under him were in under *color of title; of course the plaintiff does not claim as from a naked possession.
    2. The recovery of the defendant, in a former action, could not of itself defeat the right of the plaintiff vested in him in consequence of the prior possession. It was necessary for him to show something beyond this to defeat this possessory right. The doctrine of the case,- 16 Johns. 314, relied upon by .respondent’s counsel and sanctioned by this court on the circuit, sustains the principle that one action of ejectment is a law to another. Whereas no principle is better established than the one directly the reverse of this. 1 Baum. 114; 3 Johns. 270; Til. Ejec. 295, in notes, etc. It is at war with the whole understanding of the profession, and the practice of the courts in Ohio for twenty-six years at least.
    3. The prior possession of Dresback, Apple, and Ely is not a mere naked possession. They claim under a deed from the collector of taxes. It has been decided in Massachusetts that “everything necessary to the validity of a collector’s deed will be preserved alter twenty years, if it be shown that he was collector of the taxes committed to him. 14 Mass. 105, 145, 177. The same doctrine has been lately sanctioned in Kentucky. 2 J. J. Marsh. 436.
    4. The court mistook the law in rejecting the survey of John Tench. The plai ntiff had a right to recover on his demise from Tench. The owner of .a survey has a right to possession. He can maintain ejectment. 1 Peters, 638; 1 Ohio, 402; 3 Ohio, 116; 5 Ohio, 526; 6 Peters, 431; 7 Term, 329; 1 Bibb, 129; 5 Cowan, 200; 2 Caine, 335; 1 Ch. Dig. 353; 3 Ohio, 59, 254, 407.
    G-. Swan and Leonard, for defendants contended:
    1. That a, party can not recover in ejectment upon a mere naked prior possession against one lawfully in possession. It is admitted to be good law that one in actual possession may sustain ejectment when ousted by a wrong-doer, who has no right of entry, although the English reports show but three cases where the question has been directly considered by their courts. Cro. Eliz. 427; 2 Saund. 112; 2 Johns. 749. The same point was decidod in the case of Smith v. Serilland, 10 Johns. 338. The court of Kentucky holds there may be cases where a plaintiff in ejectment may recover on bare possession where there has been an actual disseizin *or ouster of the tenant, and the defendant appears to be a trespasser without color of title. 5 Litt. 319. The same view,of the question is taken by the courts of Massachusetts. 5 Mass. 319. The exact point which arises in this case was before the court of New York in the case of Johnson v. Rightmire, 16 Johns. 314, in which it was determined that the possession set up by the defendant, was acquired under the authority of a judgment at law, and was consequently a lawful entry.
    2. The collector’s deed conferred no right upon Kennedy or those claiming under him. There was no evidence to show that the land had been entered and surveyed when it was sold for taxes. There was no evidence to show that, any of the steps had been taken required by law preparatory to the sale, and the deed was admitted for no otherpurpose than to prove the extent of plaintiff’s claim.
    3. The survey of Tench was properly excluded. The owner of a survey has no legal interest. His claim is equitable, and does not confer upon him the right of entry. He can not sustain ejectment. There is a difference between a final certificate issued to the purchaser of Congress lands and an entry and survey in the Virginia militai’y district. The holder of the certificate can not voluntarily l-elinquish the land while the owner of a survey may withdraw it, and when withdrawn, the land returns to the general mass, to be appropriated to the satisfaction of other military warrants. 2 Wash. C. C. 32; 1 Munf. 442; 2 Bibb, 150; 4 Bibb, 554; 2 Ohio, 263; Adams 32, n. 1, and 247; 1 Ohio, 313; Litt. Sel. Cas513; 2 Bibb, 129, 416; 3 Wheat. 212. These authorities establish, beyond contradiction, two principles, first, that entries and surveys are mere equitable titles, and seeondLy, that such titles will not support ejectment.
    Douglass,
    in reply:
    The limitation of the right to recover in ejectment, founded upon prior possession as stated by defendant’s counsel, is entirely too general, and not warranted by authority. They confine it to the case where the prior possessor has been ousted by a wrong-doer who has no right of entry, whereas the prior possession is evidence of an estate in fee. 2 S. N. P. 618; Buller N. P. 103, 109; Salk. 321; 8 Co. 101; 3 Johns. 388; 3 Johns. Cas. 128; 4 Conn. 602; 1 Paine, 457, and such *prior possession puts the defendant upon his defense, upon which he must show title or a possession overreaching that of the plaintiff. 6 Johns. 218; 9 Johns. 197; 3 Ohio, 454-459; 1 Bro. 280; 2 S. & R. 53.
   Judge Hitceccook

delivered the opinion of the court:

Yarious reasons are assigned in favor of the motion for a new trial, which will be considered in the order presented. *

1. It is supposed the court erred in the rejection of the survey of John Tench.

Since the decision of the case of Lessee of Anderson v. Clark and Ellison, 1 Pet. 628, the question has been much litigated within the Yirginia military district, as to the nature of the interest which an individual acquires under a plat and survey, whether it be legal or equitable. Upon an examination of that case, I am not aware that any new light is thrown upon this subject. In fact, this question was not before the court for consideration. The defendants claimed to be protected in their possession under a survey in which they were interested, not because they held a legal estate, but because the location in virtue of which the plaintiff’s patent issued, had been made on land previously surveyed, and of course the patent was void undelr the act of Congress of March 2,1807. The great object was to defeat the plaintiff’s title,'for in that, as in every other case in ejectment, unless the plaintiff could show some kind of legal title, unless he could show a right of entry, the defendants were secure in their possession. The chief justice says, “ lands surveyed are as completely withdrawn as lands patented from subsequent taxation.” Again he says, “It maybe the defendants may never be able to .perfect their title. The land may not be subject to the disposition of Congress. It is enough for the present case to say, that, as we understand the act of Congress; it was not liable to location when the plaintiff’s entry was made.” These expressions are supposed to sustain the position that a plat and survey confer upon the owner a legal interest. It is true the language is strong, but it does not warrant the inference drawn from it. “Lands surveyed are as completely withdrawn as lands patented from subsequent location,” so long as the survey subsists, because by the proviso to the first section of the before-mentioned act of Congress, it is declared that no locations after the passage of that act shall *be made upon lands “for which patents had been previously issued, or which had been previously surveyed, and any patent which may nevertheless be obtained for land located contrary to the provisions of this section shall be null and void.”

It has been strenuously urged by the counsel for the plaintiff in the case before the court, and it is manifest that he is familiar .'with the subject, that a survey confers a legal interest. At least, that it confers such an interest as to give to the proprietor the right of entry. If it be true that a survey gives the right of entry, then the court were mistaken in rejecting the survey of Tench. That it does not give a legal estate, in fee, is admitted on all hands. There is much plausibility in the reasoning on this subject. All will admit that the owner of the survey has a better •right to the land than a stranger. His right is preferable to that •of all others except the government. But the same is the case with all equitable interest as between individuals. The person ¡holding a contract for lands has an interest in those lands superior to any interest in a stranger. Still it is not a legal interest. It ■is a mere equity. If the contract is complied with, on his part, •he can force the legal title from the other contracting party by a proceeding in chancery. But, until he obtains this legal title, we iave uniformly held that he could not sustain ejectment unless by •the terms of the contract he was authorized to take the possession. In such case, however, should the equitable claimant acquire the possession, and afterward be ousted by a stranger he might sustain ejectment. Not, however, on account of his equitable interest, but on account of his prior possession. The contract itself gives no legal right of entry unless so expressed upon its face. How does the case differ with respect to a plat and survey? If an entry is made in conformity to law — if the land is surveyed, and surveyed according to law and the survey recorded — then, upon •the production of the plat and survey, the proprietor is authorized to demand and receive a patent which conveys the legal title. Until the patent issues the legal title is in the government. The law has prescribed the terms upon which it may be obtained; but that law, in no part of it, gives to the proprietor a right of entry so soon as the entry and survey is made. But so soon as that law, which constitutes the terms of the contract on the part of the governmet, is complied with, then the patent issues as a ^matter of course. So soon as it is complied with, the proprietor has a complete equitable interest, of which he can not be divested. And, as in ease of a contract between individuals, so here, if the equitable owner acquires possession he will be protected in that possession against a disseizer, and for the same reason.

Counsel have produced no decided case in which it has been held that the owner of a survey could sustain this action. If it had been so decided the case might have been found. Still, after all our research, we have not been able to find any one. But we do find cases in which it has been held that such an interest is merely equitable. In the case of Reed et al. v. Bullock et al., Litt. Sel. Cas. 510, the court of appeals of Kentucky say: “ But we affirm, without hesitation, that a right acquired by virtue of an entry for lands, is not a legal but an equitable right. It may, indeed, as contrasted with an illegal right, be said to be a legal one, and so may every equitable title. But in the same sense in which a legal right is contradistinguished from an equitable right, it possesses no one attribute of the former and every one which appertains to the latter. 2‡ affords no legal remedy; it can not even be noticed on a trial at law, and is peculiarly and exclusively cognizable in a court of equity. This was so ruled in the origin of controversies of this sort, and have ever since been undeviatingly maintained by the courts of this country.” The same principle was decided in the case of Chiles v. Calk, 4 Bibb, 559. Here let it be remembered that no decisions are of higher authority in this class of eases than those of Kentucky. In the case of Roads v. Symmes et al., 1 Ohio, 313, it was held by this court that the legal title does not vest until the patent is issued, and we have found nothing to the contrary of this except in the case of Lessee of Bird v. Swearingen, 1 Ohio, 409, where the judge, in delivering the opinion of the court, says: “He would have maintained ejectment against any person not having a grant from the government.” This question, however, was not involved in the case before the court. It is merely said by way of illustration, and if taken into consideration at all, must be considered as the individual opinion of the judge using the expression. Although the opinions of no man are entitled to more respect, yet we can not concur with him in this particular, especially when we advert to the fact, that *this case was decided at the same term with the case of Roads v. Symmes, above referred to, in which the reverse of this principle was expressly maintained.

In adopting the principle advocated by the plaintiffs’ counsel, wo feel that we should be introducing a new rule of decision. That we should overrule, not only our own decision, but should deny the authority of the decisions of the Supreme Court of the United States, and of the courts of some, at least, of our sister states. We are unwilling to do this, but prefer to travel in the plain beaten track, until the law shall be changed by that authority, whose peculiar province it is to supply the remedy, when existing laws are found to be defective.

Upon this point in the case, a majority of the court are of opinion that the law is with the defendant.

2. The second reason assigned for a new trial is, that the court erred in the charge to the jury.

In order to determine this point correctly, it is necessary that we ascertain the true state of facts in the case. The lessors of the plaintiff had proven a possession in Kennedy and those claiming under him as early as the year 1811, which was continued until 1819, when the defendant was put in possession. They, had further proven the recovery of a judgment in favor of Carlisle against Kennedy, an execution under that judgment, a sale of the premises, and a purchase by themselves. In order to show title in Kennedy they offered in evidence a deed from John Carlisle to him, executed by Carlisle as collector of taxes, on June 3, 1803, purporting to convey the premises in controversy. This deed was objected to, but it was permitted by the court to go to the jury, not as evidence of title, but to show the boundaries of Kennedy’s claim. But it seems to be supposed by the plaintiff’s counsel, that inasmuch as it was before the jury, it was their right to consider it for any other purpose. It will not, however, I apprehend, be contended that they could give it any other than a legitimate effect. Suppose we give it that effect. It is a deed from a collector of taxes due prior to 1803, and before the organization of the state government, unaccompanied by any evidence to show that the lands had been subjected to taxation, that they had been entered upon the duplicate, or that a single preliminary step had been taken to render the sale valid. There was ho evidence *that the lands had been sold, except such as is derived from the deed itself. Whatever the law may be now, with respect to the sale of lands for taxes, we know that, at this early period, the claimant under a tax title was bound to prove that every requisition of the. law had been strictly complied with. And without such proof, the deed itself furnished no evidence of title. Whatever may have been the ease in Massachusetts, and other states of this Union, such was the course of decision in this state, and we are not at liberty to depart from it. This deed, then, although in evidence, could have no other legitimate effect than that for which it was admitted by the court, that is, to show the boundaries of Kennedy’s possession. So far as respects title, it could prove nothing, and, of course, may be considered as out of ¿the case.

The only interest which the lessors of the plaintiff acquired by their purchase under Carlisle’s execution, was the interest of Kennedy, which was nothing more nor less’ than a naked possession. Of course, a'prior possession was the only title upon which the plaintiff could claim to recover.

To defend against this, the defendant proved a recovery in ejectment of the premises on his own demise, in a case where the lessors of the present plaintiff were defendants; and that in pursuance of this recovery, he was put in possession by the sheriff of the county in virtue of a writ of habere facias.

This was all the evidence on either side, so far as title is concerned, and the court being of opinion that this recovery, connected with the taking possession under the writ of habere facias, was evidence of better right than the mere possession of the plaintiff, provided the premises in controversy were the lands thus recovered, so instructed the jury. And further, that if they believed the witness Campbell, who testified that the premises were a part of the identical lands thus recovered, they must return a verdict for the defendant. Were the court mistaken in this principle of law? Counsel seem to consider the opinion of the court as based upon the hypothesis that a recovery in ejectment is a law to a subsequent suit. But it is not so. We admit the principle that one recovery does not settle the rights of the parties. But in ejectment the party having the better legal title must succeed. It seems to the court that the mere naked possession does not furnish as strong presumption of right, as does a recovery in ejectment, followed by possession. In the one case there is ^nothing but possession ; in the other, possession, accompanied by the judgment of a court, that the party has a right of possession. In such case, then, there can be no pretense of ouster or disseizin. An entry under a writ of habere facias, issued upon a subsisting judg'ment, is a lawful entry; and it would be unjust that a person thus in possession should be disturbed by one who had no other claim than that of prior possession, especially when that prior possession had been held to be illegal in a trial between the identical parties. The question in this case-is, whether the lessors of the plaintiff, showing only a prior naked possession, have better right than the defendant, who shows a recovery of the same premises in an action against these same lessors in a prior suit. It seems to us that they have not. The case of Johnson v. Rightmire, 16 Johns. 314, was, in one of its features, at least, similar to this. And the court decided that, although a prior possession under claim of rights, and not voluntarily abandoned, will prevail in ejectment over a subsequent possession acquired by mere entry without any lawful right, yet where the subsequent possession of the defendant is acquired by a recovery and execution in ejectment, his entry is a lawful entry, and affords a better presumption of right than the prior possession, and the party who brings a second action of ejectment, after being ousted by a writ of habere facias possession, must produce additional evidence of title, and not rest upon his possession alone.” There is this difference, however, between the case of Johnson v. Rightmire, and the case before the court. In that case the judgment was by default against the casual ejector — in this, a judgment upon trial. Still that court held that such a judgment furnished better presumption of right than a mere naked prior possession. If such be the law, and we take it to be, then there was no error in the instruction given to the jury.

3. The third reason assigned for a new trial is, that the verdict was against law and evidence.

If we are right as to that law, the verdict is strictly according to law; and, as to the evidence, it clearly sustained the verdict.

The motion for a new trial is overruled, and judgment will be entered for the defendant on the verdict.

Judge Collett dissented upon the first point.


author: Judge Hitchcock

text:
    *Lessee of Cadwallader Wallace v. Richard Seymour and H. Rennick.
    By a sale of land for taxes in the Virginia military district, surveyed but not patented, the whole interest passes to the purchaser, and no right remains in the original holder. But, if such holder, to defeat the sale for taxes, is permitted to withdraw the survey and make a new one, upon which he obtains a patent, such patent is not void. The patentee holds the title subject to the rights that may have been acquired by the purchaser for taxes.
    Reserved in the county of Pickaway. This case was submitted to a jury'at the last term of the court, in the county of Pickaway, and a verdict returned in favor of the plaintiff.
    The lands in controversy are situated within the Virginia military district.
    On the trial the plaintiff gave in evidence a patent from the United States, covering the land in controversy, and rested his case.
    The defendants then offered to prove that the survey upon which the plaintiff’s patent was based, was founded upon an entry in the name of Benjamin Holmes ; that this entry had been previously surveyed, and the survey recorded in the name of Benjamin Holmes; that while the said lasLmentioned survey subsisted, the survey and lands covered thereby had been legally sold for taxes to the defendant, Seymour, and a deed duly executed therefor; that after the sale and conveyance as aforesaid to Seymour, the heirs or representatives of B. Holmes caused “ error ” to be written on the recorded plat of the said previous survey, and withdrew the same, and caused a new survey to be made in their own names and recorded, which is the survey upon which the plaintiff’s patent is based ; and that the latter survey excludes two hundred acres of land included in the first survey.
    This evidence was rejected by the court, and a verdict was returned for the plaintiff as before stated. Whereupon the defendants moved for a new trial on the ground that the court had im properly rejected the evidence by them offered.
    Leonard, Douglass, and Olds, in favor of the motion, insisted :
    1. That since the act of Congress of March 2, 1807, a survey is a sufficient defense in the action of ejectment, where the defendant is in possession under such survey. It is a good defense even against a patent granted on an entry made after the survey, and to support this position, they cited the ease of Lessee of Anderson v. Clarke and Ellison, 1 Pet. 628.
    2. That the patent to Wallace is void, not being issued in conformity to the act of Congress. The act of Congress, *Swan’s Land Laws, 132, requires the production of the warrant, etc., and the survey executed agreeably to the laws of Yirginia. This prerequisite was not complied with in the present case. The survey upon which the patent is based, is in contravention of the laws of that state, being made without any authority. By the sale for taxes, all the rights of Holmes, or his heirs, were vested in the purchaser. After this sale, there was no authority left in them to withdraw the survey, or to affect a new one.
    3. The patent was fraudulently obtained for the purpose of defrauding the purchaser for taxes of his interest in the land.
    On all these grounds they insisted that the evidence offered by the defendant should have been received, and inasmuch as it was not, therefore a new trial ought to be granted.
    G. Swan, contra:
    Entries and surveys are only equitable estates, and as such can not be relied upon to support an ejectment or to defend in such action. 2 Wash. C. C. 33: 1 Marsh. 197, 440; 2 Bibb, 150; 4 Bibb, 554; 2 Ohio, 263; Tel Adams Eject. 32, note, 267; 1 Ohio, 313; Lit. Sel. Cas. 513; 2 Bibb, 129, 416; 3 Wheat. 212.
    It may be affirmed, without fear of contradiction, that an ejectment has never been sustained upon an entry or survey ; nor has it been attempted to subject lands thus situated to sale on judgment at law.
    If the sale for taxes conferred any interest upon the purchaser, it conferred no greater interest than had previously been vested in Holmes, and this was a mere equitable interest, which can not at law avail against the legal title.
    It is to be presumed that the first survey was properly withdrawn until the contrary is proven, and as the survey upon which the patent is based, was executed upon an entry made previous to 1807, the case is not within the proviso to the act of Congress of that year.
   Judge Hitchcock

delivered the opinion of the court:

In the consideration of this motion, a variety of questions are presented of more than ordinary difficulty, in consequence of the nature of the titles in the Yirginia military district, and the peculiar structure of our laws regulating the sales of land for taxes. "By the introduction of his patent, the plaintiff ^established an apparent right to recover. And this right could only be defeated by showing a superior legal title, or by showing that the patent itself was inoperative to convey title. No attempt was made to show an older patent than that under which the plaintiff claims ; of course, the defense relied upon does not depend upon a grant derived directly from the government of the United States, but upon the fact that the title of the plaintiff is invalid; in other words, that his patent is void.

It is claimed that this patent is void on the ground that the survey upon which it is based was made in contravention of the law of Congress of March 2, 1807. To determine this question, it becomes necessary to consider the effect of the sale for taxes, to prove which, the evidence rejected was intended. This sale' we are bound to presume was in all respects in conformity to the law, and that the auditor’s deed actually conveyed to the purchaser all the interest in the land which, under the circumstances, could by law be conveyed. The laws in force at the time provided that such deed should “ convey to the. purchaser all the right, title, and interest of the former proprietor in and to the land so sold.” Before this sale for taxes, the “proprietor” of this survey was Benjamin Holmes, and at the time of sale, it was vested in him or his heirs — all the interest of Holmes and his heirs was, under the law then in force, vested in the purchaser. But as no grant had been made by the government, this was a mere equitable interest, as has been decided at the present term in the case of Lessee of Dresback and others v. McArthur. As it was a mere equitable interest, it could not at law avail the defendants against him having the legal title; and this disposes of the proposition of the defendants, that upon an entry and survey, ejectment may be sustained, or that the proprietor of such entry and survey may, upon the strength of his title, defend in ejectment.

At the time of this sale the legal title being in the government, had that title afterward been granted to Holmes, his heirs or assigns, upon the same survey, the case would have been similar in principle to that of Stuart’s Lessee v. Parish, 6 Ohio, 477, in which the court held that where lands had been sold for taxes before a patent issued, the legal title of the patentee would not be thereby affected. But although the effect of the auditor’s deed is only to convey an equity *where the former proprietor had no greater estate, yet this is only between the owner of the legal estate and the purchaser. The tax deed purports to convoy a legal estate. It is made by. authority of the state, and as to all the world, except him who has the legal interest, would convey a legal title. Further, should the former proprietor afterward obtain his patent, although vested with the legal title, he must hold it in trust for the purchaser at tax sales. There is a difference in sales for taxes and upon execution. Upon the latter, mere equities can not be sold, while express provision is made by statute for selling any interest, which a man may have in lands, for taxes.

A sale for taxes, vesting in the purchaser all the interest, whether legal or equitable, of the former proprietor, it follows, in the present case, where the hypothesis is that the sale was legal, that the interest of Holmes and his heirs was vested in the defendant, Seymour. And although, according to the law as we understand it, the proprietor of an entry and survey may withdraw the same and locate it on other unappropriated lands, yet when his ownership ceases, this power ceases. After the purchase of Seymour, neither Holmes, nor any person claiming under him, had any right to withdraw this survey because they had no interest therein, and Seymour would be protected against any subsequent locator in virtue of the act of 1807.

This act extends the time for making locations within the district for the term of three years, “ Provided that no locations as aforesaid within the above-mentioned tract shall, after the passing of this act, be made on tracts of land for which patents had been previously issued, or which had been previously surveyed, and any which may, nevertheless, be obtained for land located contrary to the provisions of this section, shall be considered as null and void.” Swan L. L. 134.

The object of this provision is to prevent new locations uj>on previous surveys — not to prevent the survey of previous locations. In the case before the court, the original location was made long before 1807. It was also surveyed before that date. An attempt has been made to withdraw this survey, ...id resurvey a part of the same land on the original entry or location. And upon this resurvey the patent has emanated. *The case is not within the letter of the proviso to the act, and we think it is not within its meaning.

It is objected that the withdrawal was without authority, and therefore that the survey upon which the patent is based is void, and if so the patent is also void. Upon this part of the ease there certainly is much difficulty. As before stated, we consider that Seymour, after the purchase for taxes, was the owner of the survey as completely as Holmes was before, and of course the subsequent withdrawal was without authority. Still, we incline to the opinion that the patent is not void, as all the land granted by it is within the original survey, although it does not purport to be based on that survey. The legal title is gone from the government, and vested in Woldmer. Whether he holds it in trust for the defendants must depend upon such facts as may be disclosed in a prope'r case.

It has been further urged in support of the motion that, as the patent covers only six hundred out of the eight hundred acres originally surveyed, if this patent is held to be valid the defendants will be deprived of the two hundred acres not patented. It is not so. The survey as to the two hundred acres is still a subsisting survey, because, although an attempt has been made to withdraw, it is a void act, having been attempted by those who had no interest.

Another objection to this patent is, that it was obtained for the purpose of defrauding the purchaser for taxes. If the patent had been issued on the original survey, it would have been a valid instrument. Does the circumstance that the survey was changed alter the case? We think not. The object of this withdrawal was undoubtedly to evade the payment of the taxes, or rather to defeat the title of the purchaser for taxes, a measure which can never be sanctioned by this court. So far as an attempt to defeat this title can be considered fraudulent, a fraud was undoubtedly intended. But, notwithstanding this change of the survey, the patentee must hold the land subject to any claim which the defendants may have in consequence of their purchase at tax sale, and this claim will be sustained in the proper court upon a case made entitling them to relief.

Upon the whole, we are of opinion that the evidence offered would not have availed the defendants in their defense, and it was therefore properly rejected.

The motion for a new trial is overruled.


author: Judge Collett

text:
    *Hamlin’s Lessee v. Wm. Bevans.
    A decree for alimony, charged upon real estate, where the petition for divorce is in general terms, hinds the estate only from its rendition, and must be postponed to judgments rendered while the petition for divorce was pending.
    This cause was reserved in the county of Knox, and came before the court in bank on a motion, by the defendant, for a new trial.
    The lessor of the plaintiff claimed title under Hannah Hollister, whose title was derived under a decree of the Supreme Court divorcing her from her husband, and assigning her the land in dispute for alimony. The defendant claimed under a sale on executions, upon judgments against the husband, Hollister. The facts were as follows:
    On May 8, 1828, the petition for a divorce was filed and process issued, which was served on Hollister, June 10, 1828. The petition was in general terms, describing no lands, and containing no specific prayer for alimony. The decree of divorce and assignment of alimony was pronounced in September, 1829.
    The title under which the defendant claimed is derived thus : At June term of the court of common pleas, 1828, and after the service of the process in the divorce case, a judgment was rendered, at law, against Hollistei’, for the payment of money, in a suit pending, before filing the petition for the divorce. At June term, 1829, a decree for the payment of money was rendered against Hollister in the common pleas. This suit, too, was commenced before the petition for divorce was filed. Executions were issued upon this judgment and this decree, and subsequently to the decree for alimony, was levied upon the land. A sale and conveyance was made by the sheriff.
    The plaintiff having presented his title und^r the decree for alimony, the defendant produced the record book to show the record of the deed from the sheriff, neither producing the original or other copy. The plaintiff objected, but the court admitted the record book. The plaintiff further objected that the deed was insufficient in not describing the character of the action in which, the judgment was rendered, on which the execution issued. This objection was also overruled. The defendant having proved the confirmation of the sale by the sheriff, offered in evidence the judgments upon which the sales had been effected. They were objected to as not corresponding with the recitals in the deed, except the one rendered in June, 1828. This objection was also overruled, *and the court directed the jury to find a verdict for the plaintiff, and they found accordingly.
    The defendants moved for a new trial on the ground that the court erred in directing the jury to find for the plaintiff.
    Brown and Delano, in support of the motion, argued that the commencement of the suit for divorce attached to the petition no interest in the property of the defendant. Though a lis pendens, it did not affect the right of- the defendant to sell, or of strangers to purchase his property. Consequently, that a judgment duly rendered, before a decree for alimony was pronounced, attached as a lien upon real estate, and obtained a preference. They cited Murray & Winter v. Ballow and others, 1 Johns. Ch. 566; Green v. Slayter, 4 lb. 38.
    Goddard, Converse, and Hall, for the plaintiff:
    A new trial ought not to be granted, because :
    1. The court erred in admitting the recorder’s book as evidence of the deed. The statute makes a copy, certified in a particular manner, evidence. A law so liable to abuse should never be extended beyond its letter. If a party, with the original deed in his pocket, will, for reasons best known to himself, withhold it, and rely upon testimony of an inferior degree, because the statute (unwisely) permits it, let him bring himself exactly within the terms of the law, whose aid he invokes. It is no answer to say that there is as much reason for admitting the reoord, as a copy of the record; there is no reason for admitting either until the non-production of the original is accounted for. We are thrown beyond the empire of reason into the regions of strict law.

      2, It appears to us that the objections taken to the judgments offered should have been sustained, as also those to the deed itself, in omitting to set foi’th the kind of action, etc. As these, however, are mere questions of practice, which have, probably, been determined by the court upon the circuit in other cases, we will trouble the court with no remarks of ours.
    3. The substantial question in the cause is, whether the title acquired by the decree of divorce is superior to that acquired by the purchaser under the judgments. We understood the counsel for the defendant, on the trial in the county, *fco rely mainly upon a principle allowed by him to exist, namely, that the doctrine of lis pendens could only be urged in a court of law. The contrary is, however, directly asserted in Burnet’s Lessee v. Williams, 5 Ohio, 461.
    It is conceded that if the petition for divorce had contained a description of the land and a prayer for alimony, the wife’s title by the decree would have overreached a conveyance by the husband pending the petition — because the purchaser would then be chargeable with notice of the petition and its objects. But he is as much chargeable with that notice in this case, because of the universal practice to decree alimony to the wife upon a petition like the present. Not only is this the ordinary, it is the universal result of success on the part of the wife. If a divorce be granted on the prayer of the wife, alimony always follows, if the husband have property. Alimony out of the husband’s estate being, then, one of the necessary consequences of a successful termination of the suit, a purchaser chargeable with constructive notice of the pendency of the suit is chargeable with the same notice of its necessary oonsequences.
    But we are not contending with a purchaser pendente lite. The defendant is a purctiaser subsequent to the acquisition of our title, and claiming only that the judgments under which he claims were rendered before the decree. There is, in our opinion, a vast difference between the two cases, the rights of him claiming a mere lien being far inferior to those of one claiming to bo a bona fide purchaser, upon sufficient declaration. Our meaning may be illustrated by a familiar principle. The assignee of a promissory note, who takes it as a purchaser in the regular course of business, may recover of the maker, though there were no consideration for the note. But he who takes the same note merely as security for a pre-existing debt, stands in no such favored, situation. See Bay v. Codrington, 5 Johns. Ch. 54, and other eases.
    Again, what is the lien of a judgment ? A mere creation of the statute, which may be given or taken away at pleasure by the legislature. The same legislative authorities authorize the transfer of the title to land from the husband to the wife. The decree in this case was a conveyance, and in the form of a conveyance. No execution had been issued upon the judgments, no levy made, no appropriation of this particular land to the payment of the creditor. What is there inconsistent *with sound principles in holding that the wife’s lien carried out and effectuated by the conveyanc e authorized by one act of the legislature, is superior to the inchoate claim of the creditor authorized by another act of the legislature?
   Judge Collett

delivered the opinion of the court:

The main, principal question to be decided is, are the decree and judgment obtained against Hollister, pending the petition for divorce, preferable liens over the decree for alimony ? Where the object of a suit, in law or in equity, is to recover specifically a described piece of real estate, the pendency of the suit is held to be notice to all the world of the claim, and a final judgment or decree in his favor overreaches intermediate purchases, that is, purchases made pending the suit. 5 Ohio, 462; 1 Johns. Ch. 566. So, if the suit be against a trustee, to' affect his title to land as trustee, and a final decree be rendered to that effect, the land is bound from the service of process. We know of no cases going further than these.

This bill alleges no claim to any specific tract of land, nor does it ask alimony to be decreed by way of annuity upon the real estate of the husband, in general terms. The court make such decrees without specific prayers in the bill, charging the rents and profits of land with alimony. But no reason is perceived why such charge should operate as a lien, until the decree is pronounced fastening it upon a particular property.

The statute laws of the state give to judgments and decrees, for the payment of money, liens on real estate, according to -established priorities. This is but a decree for the payment of money, and its priority must stand upon the general law. It is subsequent in date to one judgment and to a decree, upon which the sale on legal process was effected. The preference is with those, consequently the defendant has the better title. .

The exceptions to the documents offered by the defendant in evidence, and received by the court, are very imperfectly stated. They are technical in character, and may not, on another trial, touch the true merits. As the court erred on the principal question, we grant a new trial, the cost to abide the event of the suit.


text:
    *Zanesville Canal and Manufacturing Company v. Administrator, with the Will annexed, of E. Granger, deceased, T. Pierce, and S. Scovil.
    Representatives of a deceased party to a judgment, -where there is a surviving party, can he proceeded against by scire facias, jointly with the survivor, although deceased was a surety only for the debt.
    This cause was reserved in the county of Muskingum. It was a scire facias, reciting that, in the lifetime of E. Granger, the plaintiff recovered a joint judgment against Pierce, Granger, and Scovil which remained unsatisfied — reciting also the death of Granger, and the grant of administration to Goddard, and demanding that Goddard show cause why he should not be made a party to the judgment, and why execution should not issue against Goddard, as administrator, with Pierce as principal debtoi*. The defendants severed in their pleadings — Goddard pleaded that his testator was a security only in the original contract, and that, therefore, he was not liable to be charged jointly with the surviving principal. Pierce also pleaded that he was surety. To their pleas, the plaintiff dem urred, upon which arose the question adjourned.
    Goddard, in support of the demurrer, insisted that, in ease of a •joint contract, if one of the parties die, the survivor only can be proceeded against, the executor or administrator of the deceased party being discharged from liability at law. 1 Chit. PL 39. A judgment against two or more, is as a joint obligation or contract,, where the suit, in which the judgment obtained, is a joint one.
    If there be a judgment against two, and one dies, a scire facias lies against the other alone. Bac. Ab. Ex. G\, 1.
    If a surety in a joint obligation die, the principal,surviving, no-remedy can be had, in law or equity, against the personal representative of the deceased surety. 2 Wash. (Ya.) 136; Weaver et al. v. Shyrock, Ex’r, 6 Serg. & Eawle.
    C. C. Converse, for the plaintiffs:
    In England, the heir is the representative of the realty of the-deceased defendant. In this state the executor or administrator is, quoad creditors, the representative of the realty, according to-the decision of this court. Piatt v. St. Clair’s Heirs, 6 Ohio, 237; vide see. 29 of “ act defining duties of executors, etc.,” 29 Ohio-Stat. 236.
    The scire facias in this state, therefore, must issue ^against the executor or administrator, and can not be brought against the-heirs. In the scire facias against heirs which formerly prevailed in-this state, this court has decided that the writ must contain a description of the lands sought to be charged. The writ in the case before the court contains no such description, nor is'it necessary that it should, being against the administrator. It is the land which descends to an heir that fixes his liability for the satisfaction of the judgment. In other words, it is the land in his hands, and not himself as heir, that is bound by the judgment. If no land descends to the heir, no judgment can be rendered against him. The writ against the heir must, therefore, show something in his hands to be charged, otherwise thére is no grounds for a judgment against him. But it is otherwise with an administrator. He can not show that he has no assets. By our law, flene administravit is an immaterial plea. Abbot v. Cole, 5 Ohio, 87. It is not necessary to ascertain that there are assets in his hands, before judgment can be rendered against him as administrator, as it is before judgment can be rendered against the heir. It is not the fact that he has assets that fixes his liability, but that a debt or demand is due from the estate. Whether there be assets or not, the creditor is entitled to-judgment against the administrator. The question as to assets comes up in another form, and at another time, when the creditor seeks satisfaction of his judgment already obtained. It is not therefore, necessary to set forth the lands in the writ against an .administrator.
    But there is another, and, as we think, abetter and more correct view of the case, which settles the first question presented by the ■demurrer. By section 69 of the practice act 29 Ohio, Stat. 71, it is provided “ that if in any such suit or action ” (i. e., such as do not .abate by the death of the parties), “ there be two or more plaintiffs,” “or defendants, and one or more of such plaintiffs or defendants, shall die before final judgment, such suit or action ■shall not thereby abate, but the cause of action shall survive to the surviving plaintiff or plaintiffs, and against the surviving ■defendant or defendants, and such death being suggested on the , record, the suit, or action, shall proceed in the same manner as if ■such death had not happened.” And the law in force when the original suit was brought contained the same provision. 2 Chase’s Ohio Stat. 966, ch. 384, sec. 70. And by section 70 of the practice act, 29 Stat. 71, it is provided, “ that after final judgment, the ^surviving plaintiff or plaintiffs may, by writ or writs of ■scire facias, cause the executor or administrator of any such deceased defendant or defendants to be made parties to said judgment.” 2 Chase’s Ohio Stat. 966, ch. 384, sec. 70. This provision gives a scire facias when the death of one of several defendants happens after commencement of suit and before final judgment. The plaintiff may have a scire facias under this provision •of the statute when the death takes place, while his demand is matter in pais, and the subject of litigation. The reason and equity •of the case require that the plaintiff should have at least the same remedy when death takes place after the matter in pais is reduced to matter of record, and the subject of dispute between the parties forever put at rest by the solemn judgment of the court. Will not the law furnish a special scire facias in analogy to that furnished after the elegit was given, although the statute does not give, expressly, such writ? The objection to the- form of the execution •on a judgment against some of the defendants in their own right, ,and others in their representative capacity, is put at rest by the ■recognition of such execution by the statute, when it gives it where ■the death happens pendente lite.

    The second point raised by the demurrer- is, does the fact that ■the deceased defendant was a surety in the judgment constitute a bar ?

      The relation of principal and surety ceases at law when judgment is rendered. After judgment, all are principals.

    C. C. Converse, for the plaintiffs:
    Section 26 of the act regulating judgments and executions, 29 Ohio Stat. 108, continues this relation after judgment for one pur* pose only; that is, for the purpose of first exhausting the property of the principal for the satisfaction of the judgment, before that of the surety shall be taken. As to all other purposes the defendants are principals.

    The fact pleaded existed before judgment, and was then no answer to the original action ; and no fact which existed before the judgment can be pleaded to the scire facias, much less a fact which could not be pleaded in bar in the original suit. But it is said a court of chancery will give no relief when death of surety happens after judgment. This, however, is not a suit in chancery. But, in South Carolina, it is held, “Though a bond be a joint bond, the obligors are bound *in- equity, so that on the death or insolvency of one of them, the other and his representatives are liable.” Smith et al. v. Martin et al., 4 Des. Equity, 148. This court has said “ it would hesitate before it adopted the doctrine cited from 2 Was. 134; Hen v. Munf.” Buell v. Cross, 4 Ohio, 330; Again, by reference to the charter of the plaintiffs, it will be seen that they are a banking company. 14- Ohio Stat. 298-300, secs. 7, 11, 13, 14. By the act in force at the time when the original suit was brought, it was enacted that if the bank should institute a separate action against drawer and indorser, no cost should be recovered ; although the contract was a several contract by the common law. 2 Chase’s Ohio Stat. 1135, ch. 482, sec. 8. This court has said, in reference to this provision of the statute, that “ a court of chancery would probably be open to the complainants ” (a banking company against the administrator of a deceased surety), “ when they shall have exhausted their legal remedies, if a balance still remains due upon the judgment.” Bank of Chillicothe v. Yoe, Adm’r of McKay, 4 .Ohio, 125. The only operation, the fact that Granger, was a surety can have, is to authorize the court to direct the clerk to certify that fact on the record when the judgment is entered up.
   Judge Collett

delivered the opinion of the court:

At common law, when a judgment was rendered against two, and one died before execution, the judgment was held to subsist as. several against the survivor. No process was recognized to maka the representatives of the deceased a party to the judgment. If the deceased was a surety, it was held that the defect in the law to charge him «ould not be aided in equity. Our legislature seem to-have considered these rules of decision as not in accordance with, justice. In this view they have made statutory provisions to supply the defects. By the practice act of 1816, it is provided that where there are two or more defendants and one or more die pending the action, it should proceed against the survivors ; and if the cause of action survived against the representatives of the deceased, they might be made parties to a final judgment when obtained by scire facias. This provision has in substance been ever since continued in force. We believe it changes the common law rule as well in respect to judgments ^rendered as to suits pending. It gives full remedy at law and embraces as well the case of sureties as of principals. All may be made defendants in one joint process, which is a safe and convenient mode of proceeding, introduced by legislative provision to expedite the administration of justice.

Judgment for the plaintiffs.


text:
    Zanesville Canal and Manufacturing Company v. Granger’s Administrators.
   This cause was the same in the main question as the foregoing. Judgment for the plaintiffs.


author: *Judge Lane

text:
    Arthur Dunn v. William Evans and Wife and others.
    One seized of an estate of inheritance dies, leaving neither father, brother, nor sister, nor descendants, but leaving a mother. His estate is cast upon his next of kin of the blood from which the estate came. The mother marries and has a child, the estate passes from the next of kin and vests in. such child as heir of the half blood, under the Ohio law of descents.

      ' This is a suit in chancery, reserved in the county of Belmont. The plaintiff claiming to be the owner in fee of 3185-4116 parts of one hundred and forty-six acres of land, which he holds as tenant in common with the defendant, asks partition.
    On April 3,1830, Mariam Penn, owning the premises, conveyed them to Francis Penn, her son and only child, and died sood afterward. On September 6, 1830, Francis Penn died seized of ■the land, leaving his wife pregnant. James Francis Penn, the posthumous child, was born on January 18, 1831, inherited the lands in fee, subject to the dower of his mother, and died on January 20, 1831. The plaintiff holds the interests in part, of those who, at the death of James Francis Penn, the person last seized, were his nearest of kin, of the blood of Francis Penn, “ the ■ ancestor from whom the estate came,” and upon whom the estate descended; and upon this title he seeks partition.
    It is shown by plea, that after the death of James F. Penn, his -mother intermarried with William Evans, to whom, on December 14, 1833, was born a son, Ather Evans; and the partition is resisted on the ground, that the subsequent birth of a brother of James F. Penn, although of the half blood, terminates the estate .of those who inherited the land at his death.
   *Judge Lane

pronounced the opinion of the court:

. The fourth clause of the statute of descents of 1824, then in force, ’2 Chase’s Stat. 1313, see. 1, preferred the brothers and sisters of the intestate of the half blood to the next of kin to the intestate of the blood of the ancestor, from whom the estate descended, provided such next of kin were more remote from such ancestor ■.than his brothers and sisters, or their representatives. So that in this case, if Ather Evans, the brother in the half blood of James F. Penn, had been living at the time of his death, the land would have descended to him.

And it makes no difference with the right of Ather Evans, that his birth occurred after the death of James F. Penn. Although lands descend to him who is heir at the intestate’s death, by the operation of the feudal rule, that the freehold should not be in abeyance, this descent may be defeated at any time, by the birth of a nearer heir. Co. Lit. 2, 6; 3 Cruise’s Dig. 230; 3 Wils. 516; 3 Atk. 203. To prevent the supposed evils of a shifting inherit.ance, in a case like this, the Virginia statute of descents requires from the heir the capacity of taking at the intestate’s death» Tucker’s Blackstone, 1803, 2 Appendix, 12.

The plaintiff, in argument, claims the profits of the land, in the-interval between the death of James F. Penn, and the birth of Ather Evans. His right to such profits seems well grounded, 5 Co. Lit. 11, 6, n. 4, and cases cited; but his bill is not adapted to-such relief. His purchases of the land were at various times,, some before and some after the birth of the present owner, and the plaintiff acquired no interest in them until his purchases. The settlement of these claims will require the taking of a very complicated account, to which all parties in interest must be made parties, and an entire new frame of bill is necessary for this-purpose.

Bill dismissed, reserving all right to account, either in law or equity.


author: Judge Lane

text:
    *State of Ohio v. Executors of Thomas Worthington.
    An alternative contract to pay money, or convey land, in a certain event, iff not discharged by the death of the contractor rendering the conveyance of the land impracticable.
    This was an action of assumpsit, reserved from the county of Ross.
    The first and third counts of the plaintiff’s declaration set out,, in substance, that the decedent, on December 1, 1825, promised to-the plaintiffs that provided the canal should pass though the town of Chillicothe, he would pay or convey to the commissioners of the-fund, two thousand dollars in land, or in in-lots, of his addition to-the said town, or in money, at his option, the money to be paid in three years, and the land at any time within six months after the line of canal passing through said town should be put under contract. They proceed to aver that the line of canal passing through said town was put under contract in 1829, of which the decedent had notice, yet neither the decedent in his lifetime, nor the defendants since his death, have paid or conveyed, etc.
    The defendants crave oyer of the letters testamentary, by which they are appointed executors, and demur to these counts.

      Worthington and Douglas, for defendant.
    Leonard and Swan, for plaintiffs.
   Judge Lane

pronounced the opinion of the court:

The oyer is irregular. It is of an instrument of which no proferí is made, nor is it in the hands of the plaintiff, but of the demurrants; yet as the letters testamentary are carried upon the record, we have not declined considering the case as regularly disclosing the fact that the death of Worthington occurred in 1827.

In the cases in which we have heretofore decided upon these subscriptions (5 Ohio, 55; 4 Ohio, 142), we have held that the action is sustainable in the name of the state; that the contract is not without consideration nor void because the canal was not put under contract within three years from the date of the subscription, and that no averment of demand or of readiness to receive performance need be made. This disposes of the first six objections raised in the defendants’ brief.

The defendants insist that the death of Worthington happening ♦before the time of performance discharges them from the right of action on this contract; that since they can not convey the land, they hold themselves excused from paying the money, for they assert it to be sound law, that where a contract is in alternatives, one of which becomes impossible by the act of God, the obligor is released from the discharge of the other. The authority cited for this principle, 5 Ohio, 20, was a suit on a penal bond, conditioned that one Rumsford should settle lands on his proposed wife, or leave her a legacy by will, to which the defendants showed she died in the lifetime of Rumsford, so that he could not perform, the last alternative, upon which the court held the bond was gone.

The decision above cited plainly depends on the principle of interpretation applicable to the condition of a penal bond. This is an element of the obligation, introduced for the benefit of the obligor, to dispense with a penalty; therefore, everything in it, ambiguous or equivocal, is to be taken in his case as proven. 1 Pow. Con. 397; 10 Mod. 268.

Not so with the words of obligation in a contract, bond, or covenant; they are interpreted most strongly against the obligor, for it is presumed that he used those most favorable to his interests, and all doubtful terms or ambiguous words are to be construed against him. He who speaks should speak plainly, or the other party may explain to his own advantage. 1 Pow. Con. 396. In this the common agrees with the Roman law, ff. II. 14, and with the French code, Code Civil, III. 1162. The counsel for the defendants have erred in applying to the contract a principle of interpretation applicable to the condition only, by which the contract is avoided. The law exacts from the obligor the literal performance of his engagement, and its fulfillment is not dispensed with unless every alternative of its term becomes impossible. Admitting, then, for present purposes, that the executors can not convey land, we conceive the contract becomes a simple engagement to pay money. “ When several things are due under an alternative, the extinction of one does not extinguish the' obligation.’' Poth. on Obligation. “ L' obligation alternative devient pur.e et simple, si V une des choses promises perit, et ne peutetre livree, meme par la faute du debiteur." Code Civil, III. 1193. It would be indeed startling to the good sense of an honest man, if one who contracted to do one of two things need do neither if unable to do both.

*Demurrer overruled; case remanded to the county to try an issue offset.