text:
    *Asa Mayo v. Charles T. Bosson and others.
    Values fixed upon stock brought into a firm and conducted tor a time, not to be readjusted in equity without proof of fraud.
    Errors in calculation, or in stating the account upon settlement, may be cor« reeled.

      This cause was brought to the court in bank for decision from the county of Miami. It was a bill in chancery, filed to open the' settlement of a partnership account and readjust its several items. The bill charges many specific errors and to a large amount, alleging that these errors are of a character necessarily involving the practice of fraud. The answers deny all fraudulent intent, and deny also the existence of the alleged errors in the settlement. The material facts in the case are these :
    In February, 1828, the complainant and Vm. Bosson were en-. gaged in mercantile business as partners, having an establishment at Cincinnati and another at Troy. Charles T. Bosson and Joseph Bosson, the other defendants, owned certain real estate near Troy, consisting of mills and water power, and a manufactory for spinning cotton near Dayton. On February 28, 1828, these four individuals agreed to become partners in the business of merchandising and manufacturing, and settled the terms; but these were not reduced to writing until August 30, 1828. This writing, enumerating the property before described, declares it all belongs to the new company. It then provides “ that the amounts of machinery, goods, credits, house, building, etc., etc., belonging as above mentioned, are to be ascertained by reference to the schedules taken at the time that the copartnership contract was agreed and entered upon — the improvements, additions to stock, machinery, etc., being considered as the joint property of the parties, as resulting from said partnership contract.”
    This schedule, which is part of the case, enumerates the amount of property brought into partnership by each of the concerns, and affixes to each item a price. In respect to the cotton machinery and leasehold property near Dayton, after setting down the items of which it consists, there is added, “ the whole of the above is in full operation excepting two throstles, which will be in four to six weeks, which is estimated to be worth at least fourteen thousand dollars.”
    The contract of partnership contemplated an act of incorporation, but this was never obtained.
    *The parties proceeded to the transaction of business as a [526 firm, in which they continued until August, 1830. On August 1, 1830, they agreed to dissolve their partnership,, and on the 31st of that month agreed upon a partial distribution of effects and liabilities, “reserving for future negotiation such points as may involve a difference of opinion, all of which., as they arise, shall be subjects of speedy arbitration.” This samo contract of dissolution provides, that “ difference in opinion concerning the machinery shall be submitted for arbitration on or before the 10th of November next.” An'd on the same day, August 31, 1830, the parties subscribed bonds for submitting the difference of opinion concerning the machinery to arbitration. The bond subscribed by Mayo contains this recital, “whereas, the said Mayo and the said Bossons have been partners in trade, under the firm of Mayo & Bossons, and having dissolved their partnership, and settled all the partnership accounts except in regard to the Montgomery cotton factory ; and whereas, a dispute has arisen between the said Mayo and the said' Bossons, in reference to the sum or amount for which said cotton factory was brought into the firm, and whether it should be considered in the contribution to the partnership property at the original valuation as per inventory, or be subject to a revaluation.”
    The cause was brought into the Supreme Court by appeal.
    In the court of common pleas the cause was referred to a master commissioner, who made a report readjusting the accounts between the parties, fixing a reduced valuation on the cotton factory and machinery, and making a new disposition of sundry other items. This report was excepted to by both parties for different reasons. A new reference was made, and a new report, in which the whole accounts are reviewed, new values fixed, and new results produced. To this report the respondents excepted, upon account of an error in the disposition of a particular item, and because it disregarded both the settlement of August, 1830, and the contract of partnership of February, 1828, in. fixing estimates and valuations.
    The testimony of a great number of witnesses was taken to establish valuations of the different descriptions of property, and in relation to the conduct of the parties — some to impeach the credit of others; some with the purpose of proving fraud, in the valuations of the original contract of partnership and in the contract of dissolution and settlement.
    *Fox and Grosvenor, for complainant.
    Schenck and Powers, for defendants.
   Judge Wright

delivered the opinion of the court: R

Its bearing being upon facts, it could not be understood without voluminous details of the proofs, and is therefore omitted. The decree embodies the points decided, and is as follows:

This cause came on to be heard on the bill, answer, exhibits, reports of master commissioners, exceptions thereto, and the arguments of counsel. Whereupon the court are of opinion that upon the whole proofs in the ease there is no ground for impeaching or setting aside the adjustment of values of original stock, as settled and agreed by the parties respectively in their written articles of copartnership of August 31, 1828 ; nor for impeaching or disturbing the settlement or distribution of the partnership effects as made and entered into- on August 13, 1830. But the court are of opinion that, in respect to said settlement, it is competent to correct all errors of addition or subtraction, and also to .correct the error, whereby Charles T. Bosson, one of the defendants, twice obtained credit for the same sum, as against the stock brought into the firm by Mayo and Bosson. Whereupon the court do award, order, and decree that the several reports of the master commissioners stating the accounts between the parties be set aside, and that an account be taken in reference only to the items of amount specified in this order and decree; for the taking of which and for such further proceedings as may be necessary to a final decision, this cause is continued until the next term of said court.


source: Caselaw Access Project

author: Judge Lane

license: Public Domain

text:
    *Pollard v. Kinner.
    Mere payment of part of the purchase money of lands, there being no memrandum in writing of an agreement to sell, does not take the ease out of the statute of frauds.
    This cause was adjourned from the county of Pickaway. It was a bill in chancery to enforce a specific performance of a contract to sell lands,
    6691).
   Judge Lane

stated the case and delivered the opinion of the court:

The bill makes the following case: The defendant, Kinner, solicited complainant to unite in purchasing of Poultney and another a tract of land situate in the Pickaway Plains — Kinner to purchase the whole tract, and complainant to have eighteen acres at the average price per acre. Kinner purchased at twenty dollars per acre, payable upon terms of credit. There was some obscurity over the vendor’s title, and by the agreement no payment was to be made until that was removed. Whilst this was unsettled, Pollard, upon request of Kinner, advanced to him forty dollars, in contemplation of its being ultimately credited as payment on the land. Kinner finally was invested with complete title, and Pollard brought his bill to have a decree for the land upon making payment. The advance of the forty dollars was the only allegation of part execution, and there was no written memorandum of the agreement. The defendant interposed a plea of the statute of frauds.

Olds and Green, for complainants.

Per Curiam. We have settled this point, at this term, in the case of Stites v. Keller and Skinner, ante, 483. The mere payment of purchase money is not a part execution that takes the case out of the statute. The bill must be dismissed.


author: Judge Wood

text:
    Jacob White v. Bank of the United States and others.
    Decree of dismissal in the court of common pleas, though pronounced pro forma, the parties understanding the cause was to ,be appealed for preparation and hearing, is final, if the appeal is not consummated
    Such defense may be made by answer.
    This was an original bill brought in the Supreme Court of Hamilton county, and was adjourned here for decision. The 529] *bill set forth a state of facts in relation to a contract of which it claimed a specific performance against the defendants, the Bank of the United States. It then set forth that a previous bill had been filed, in the court of common pleas of Hamilton county, for the same object and upon the same contract. The defendants answered ; no replication was filed or testimony taken, but the cause was set for hearing, with an understanding that the bill should be pro forma dismissed in the common pleas, and appealed to the Supreme Court for preparation and hearing. It was so dismissed, but complainant not being apprised of the arrangement in season, did not execute an appeal bond. The answer insisted upon this dismissal as final, and the case being decided on that point it is unnecessary to refer to the other points of the case.
    Hammond, and Walker and King, for complainant.
    Chase, for defendants.
   Judge Wood

delivered the opinion of the court:

If a decree in chancery is once pronounced in the court of common pleas, it is as conclusive on the rights of the parties as a judgment at law. Since the remedy to review the final decrees of that court by writ of error has been taken away by the act of 1831, the decrees of that court can only be set aside by partition for a rehearing, by bill of review in that court, or avoided on an appeal to this. In all eases within the jurisdiction of that court its proceedings are conclusive, and definitely settle the rights .of the parties, unless such proceedings are removed in the manner the law provides. It is an undeniable principle, that where a cause has once been adjudicated by a tribunal of competent jurisdiction, its merits shall not again be disturbed. It is fit, says the law, that there should be an end to litigation; and this rule is as applicable to proceedings in equity as at law. It is well settled that a decree in chancery can not be impeached by an original bill, except on the ground of fraud ; nor can it be opened, excepting on a petition to rehear, or a bill of review. 2 Johns. Ch. 205; 4 Johns. Ch. 199. This court have said, 5 Ohio, 460, the position is undoubtedly true that a decree on the merits binds all the parties to it; and in 5 Johns. Ch. 564, the chancellor remarks that there can be no doubt of the settled doctrine that a decree by *con- [530 sent is binding, unless procured by fraud. The complainant in his bill, and the bank in the answer, aver that the bill was filed for the same cause in the common pleas, and the same relief sought which is the object of this bill. The pleadings were made up, the issue closed, and by consent of counsel a decree of dismissal of the ■bill pronounced, and notice of an appeal given, which was not perfected. It is laid down in Sugden, that a decree of dismissal, unless qualified by the words “without prejudice,” is conclusive on •the subject matter laid in the bill. Has there been fraud in the ■rendition of the decree in the common pleas ? It is not pretended, •nor does the bill filed in this case seek to avoid it on that ground. It is sought, however, to avoid it, because counsel were negligent, .and did not notify the complainant in time for him to put in bail within the thirty days.

This court decided, 4 Ohio, 492, and 6 Ohio, 82, that the mere negligence of counsel would not afford sufficient ground for relief in equity against a judgment at law, and it is well said by counsel, that judgments and decrees by our statute, as it relates to their force, effect, and operation, are placed on the same footing. Can mere negligence of counsel or party, then, be cause for relief here? We think not.

Counsel attempt, however, to avoid this matter set up in the •answer as a bar, because such a defense is not made by plea. 5 Ohio, 460, is cited as an authority. The court in that case (Ferguson v. Miller) do hold that language. The bill set up matter in avoidance of a former decree. The defendant demurred, thereby admitting the matter set up. The court overruled the demurrer, said the defense could only be made by plea, and directed the case to ■stand for answer. I am satisfied from anything there is in the case, that the court did not intend to be understood that such defense •could not be made by answer; but only that it was not well made ■on demurrer. Mitford, in his treatise says, a plea is but a special answer, setting up some matter in bar of the bill. Mit. Pl. 219. We think the defense may be made by answer. Gilston v. Callwire, 1 Johns. Ch. 192, is such a case, and in point.

Our opinion is, that the decree of the common pleas upon the •same, matters set up here, and when the same relief was sought, is ■a bar. That decree being by consent, to enable the complainant to appeal, which appeal, not being perfected by the mere negligence 531] of the party, no fraud, no accident, no ^mistake set up by which the complainant was deprived of his right of appeal, does .not entitle him to any relief against the operation of that decree.


author: Judge Wright

text:
    Clinton Watson v. Israel Trask.
    It is a libel to charge a man with infracting a regularly granted patent for bark mills.
    This case was adjourned from Geauga county. The plaintiff declares that he was the original inventor, owner, and proprietor of a valuable improved cast-iron bark mill, and for ten years has been engaged in the business of manufacturing and vending said mills for profit, and that the defendant, to injure him and his said business, published of him and of'his said business the following libel:
    “ Caution. — The public are cautioned against purchasing, making, or vending the pretended patent right of one Watson to the patent bark mill, he having no right whatever to the same. The original patentees to said bark mill are Edward and John Trask, who have deeded their right to this state to the subscriber, who alone can and will dispose of the right to said mill in Ohio.
    “Israel Trask.”
    “ 5®“ E. and J. Trask invented and put in operation, in the year 1819 or 1820, a bark mill, and in the year 1821 obtained letters patent for the same. In the year 1822, Clinton Watson, by his own confession, saw and examined one of said mills, and, it is believed, called on the patentees for the purpose of procuring the right of vending the same, which was not granted. Soon after, he commenced selling mills made after this pattern, and still perseveres in his infringement of the right of said Trask, shielded from prosecution by his want of responsibility. I. Trask.”
    Issue was joined on not guilty, with a notice in justification that the publication is true. The jury found for the plaintiff.
    S. Mathews, and R. and P. Hitchcock, for the defendant, now move in arrest of judgment, and insist;
    1. That the plaintiff can not claim damage for injuring any patent right of his, because it is only alleged, in the declaration, that he was the inventor, not the patentee, and the right of an *in- [532 ventor without patent is no better than that of any other indi- „ vidual.

      2. The declaration discloses no title to recover on account of alleged injury to the trade or calling of the defendant, because the declaration only shows the plaintiff’s temporary, not permanent, business. 8 Johns. 40.
    3. Words spoken of a man’s office, profession, or employment, are only actionable where they impeach his skill, knowledge, diligence, integrity, credit, or the quality of the commodity in which he deals. Starkie on Slander, 110, 112, 119.
    4. The alleged libel does not question the plaintiff’s right to make and vend his improvement in the bark mill; but merely denies his right to make and vend Trask’s patent bark mill.
    W. L. Perkins, for the plaintiff insisted, that the publication was libelous and the declaration sufficient.
    He cited Starkie on Slander, 11, 12, 100, 108-110, 121, 132-137, 140; 6 Bac. Ab. 205 ; Cro. Eliz. 480; 1 Lev. 115; 3 Mod. 112; T. Jones, 136 ; 14 Petersd. 187, n.; 2 Day, 495 ; 10 Co. 130 ; 5 Serg. & R. 393; 2 Kent C. 298 ; Law of Patents, 50, 54, 55; 1 Tacitus, ch. 72 ; 2 Horace, epis. 1, ad Augs.; 2 Wils. 403; 1 B. & P. 331; 7 Johns. 264; 9 Johns. 214; 19 Johns. 364; 5 Bin. 340.
   Judge Wright

delivered the opinion of the court:

■ Where one, falsely and maliciously, orally charges another with anything involving moral turpitude, which, if true, will subject him to infamous,punishment, or that tends to exclude him from society, orto prejudice-him in his office, profession, trade, or business, the parties accused may seek redress by a suit in slanderr and recover without proof of actual damage. Where the words are false, the law infers malice, and where their natural tendency is to injure, the law presumes damages. 6 Bac. Ab. 205; Starkie on Slander, 11, 12, 100-110; 5 Johns. 188, 476; 17 Johns. 217; where the slander is written and published, it is denominated libel. A libel in reference to individual injury may be defined to be a false and malicious publication against an individual, either in print or writing, or by pictures, with intent to injure his reputation, and expose him to public hatred, contempt, or ridicule. 4 Mass. 163; 3 Johns. Cases, 354; 9 Johns. 214. Whatever 538] charge will sustain a suit for slander where the words are merely spoken, will sustain a suit for a libel, if they are written or printed and published, and it will be seen, at one glance, that many charges, which, if merely spoken of another, would not sustain a suit for slander, will, if written or printed and published, ■sustain a suit for libel. Words of ridicule only, or of contempt, which merely tend to lessen a man in public esteem, or to wound his feelings, will support a suit for libel, because of their being embodied in a more permanent and enduring form; of the increased deliberation and .malignity of their publication, and of .their tendency to provoke breaches of the public peace. This we understand to be the settled law of libel in this state, sustained by the uniform decisions of our courts, without a single exception within our knowledge.

Subject the publication in question to the test of the definitions .given. The publication is declared to be of the plaintiff in his business of maker and vender of bark mills. It imputes to him the infraction of another’s patent. This, if true, would subject ■him, and those purchasing and using his mills, to prosecution. Nothing could have a more direct tendency to the entire destruction of his business. It denies the plaintiff’s right to deal in the subject of his occupation, and asserts an adverse inconsistent right which he knew and acknowledged. It thus imputes to him falsehood, fraud, the want of capacity to confer a legal right by the sale of his manufactures. It does not stop here. It asserts, moreover, in direct terms, that he perseveres in this fraudulent •and pirating trade upon the rights of the Trasks, because he is “shielded from prosecution by his want of responsibility.” If irresponsible to the inventor whose right he was charged with infringing, he was equally so to those who should purchase of him. 'The charge is, if you deal with this man you incur the risk of lawsuits for violating the rights of others, and he is insolvent, irresponsible to indemnify. Would not such a charge, if true, •blacken a man’s reputation, injure his business, expose him to hatred and contempt? In our understanding, the publication is ■unequivocally libelous.

The declaration appears to us sufficient to entitle the plaintiff to judgment.

The point argued for the defendant, that the libel was in separate publications, is not supported by the record; it is alleged to be for publishing a certain libel. The second with the appears but as a postscript to the first.


text:
    *Neil and others v. Hepburn.

      Puis darrein continuance; evidence sufficient to sustain such plea.
    From Cuyahoga. Assumpsit. The declaration contained the common counts for money. Plea-, puis darrein'continuance, that the defendant paid the plaintiffs six hundred and eighty-eight dollars and sixty-nine cents, in full of all moneys then found due for the several causes of action set forth in the declaration, which they received in satisfaction thereof. Issue was joined on this plea; and the evidence being in writing, was by agreement submitted to the court without a jury.
    Andrews, Collins, and P. Hitchcock, for the defendants, offered the following evidence:
    1. A receipt from Neil, one of the plaintiffs, dated since the last continuance, for one Paddleford’s receipt for three hundred and fifty-nine dollars, and Hepburn’s two accounts amounting to one hundred and eleven dollars and seventy cents, stated this day, and cash two hundred and seventeen dollars and ninety-nine cents, total amount six hundred and eighty-eight dollars and sixty-nine cents, on account of stage fare received by him, fourth-quarter, 1831.
    2. An order from Neil to the attorney of record to discontinue the suit.
    They cited 5 Johns. 385; Gould’s Pl. 374.
    Willey, contra, submitted no argument.
   Judge Wright

delivered the opinion of the court:

The question is, whether the evidence read is prima facie sufficient evidence of the settlement' between those parties, and the satisfaction of the balance by the defendant. Our response is in the affirmative.

Judgment for the defendant


text:
    Harriet Scott v. Justin Scott.
    This was a petition for a divorce, adjourned from Geauga county.
   Judge Lane

stated the case and delivered the opinion of the court:

Held, that the act of the legislature, making habitual drunkenness for three years cause of divorce, does not apply to cases that occurred before its passage.


text:
    *Miami Exporting Co. v. S. J. Brown and J. H. Looker.
    A judgment in favor of the Miami Exporting Company, upon a short notice, according to their charter, is coram, nonjudice and void, unless the record show a notice regularly made and served.
    This cause was adjourned from Hamilton county. It was a scire facias to revive a judgment in the Hamilton common pleas in favor of the plaintiffs. The scire facias was original in the common pleas, and removed hereby appeal; plea, nul tiel record. The transcript of the record produced showed that the judgment had been rendered upon a notice according to a provision of the company charter. This notice was set out. It had no signature, and the record contained no proof of its service on the defendants, or either of them.
    O. M. Spencer and Farran, for plaintiff.
    Fox, for defendants.
   Judge Lane

stated the case, and delivered the opinion of the court, deciding that the authority to take jurisdiction by the common pleas, was dependent upon a notice regularly issued and served in due time upon the defendants. Both these facts must appear in the record as the foundation of the jurisdiction. If they do not thus appear, the judgment is coram non judice. Such being the state of this case, judgment was given for the defendants.


text:
    Bank of Chillicothe v. Thomas L. Pierce.
    Previous to 1822, security in an appeal bond, on appeal from the common pleas to the Supreme Court, became absolutely charged, by judgment in the Supreme .Court against the appellant. Suing out and levying an execution upon such judgment, where nothing was made, did not discharge the liability of the security, the plaintiff having done nothing to prejudice such levy.
    This cause was adjourned from Muskingum county. It was debt upon a bond, and came before the court on an agreed state of facts.
    The defendant, with John Matthews, deceased, became security for E. Granger, also since deceased, in an appeal bond, dated August 2, 1819. In the Supreme Court judgment was rendered against Granger, and execution issued and levied upon a tract of land as the property of Granger. The return was “ not sold for want of bidders.” The levy produced nothing, in consequence of subsequent events over which the plaintiff could have no control. The question raised was as to the continued liability of Pierce.
    *Swan, for plaintiff.
    Stillwell, for defendant.
   Judge Lane

delivered the opinion of the court:

In 1819, when this bond was executed, under the law then in force, the security upon an appeal became bound absolutely for the amount of the debt, upon judgment against the appellant in the Supreme Court. Such was. the law when the judgment against ' Granger was finally rendered. To charge Pierce, it was not then necessary to sue execution against Granger. This being the case, Pierce is not released by the fact of suing and levying the execu-; tion, out of which, without fault of the plaintiff, nothing was made. No other ground of discharge is set up. This being held insufficient, judgment must be for the plaintiff.


text:
      Wm. H. Douglass v. A. Huston and others.
    Stanbery and Olds, for complainant.
    Doan and Swan, for defendants.
   This cause was adjourned from the county of Pickaway. It was a bill in chancery to patch up a title to a tract of land. The case turned upon a matter of fact as to the commission of fraud, which the court, upon the evidence, held not to be made out.

Bill dismissed.


text:
    Lessee of N. Longworth v. Bank of the United States.
    Sheriff’s deed for lands sold under execution, correctly reciting the judgment execution, levy, and sale, is prima facie evidence of title; hut parol evidence is admissible, that it does not in fact cover all the land claimed un der it, and embraced in its description of boundaries.
    This cause was adjourned from the county of Hamilton, upon the motion of the plaintiff for a new trial.
   Judge Wood

stated the case, and delivered the opinion of the court:

On the trial, it was admitted that Daniel Symmes died seized of the premises in question, on May 10, 1817. The title of the plaintiff was derived through a sale made by the administrators of Symmes, under an order of the court of common pleas of Hamilton county, directing them to sell “thirty *acres [537 of land, situated in fractional section No. 12, township 4, fractional range 1; or in fractional section No. 7, town 3, fractional range 1; or a part, in both of said sections, being an undivided thirty acres of a tract of seventy acres.” The administrators sold to W. D. Jones and conveyed to him a tract of land, in fractional section 12, town 4, and fractional range 1, by specific location, and a deed from Jones to the lessor of the plaintiff, bearing date on August 22,1832. The plaintiff then offered parol evideno to prove that the lands claimed under these deeds were the same actually sold by the administrators, and possession being admitted by the defendants, the plaintiff rested, the court admitting the testimony offered, although it was objected to by the defendants.

The defendants then offered the record of a judgment in the-common pleas, rendered August 8, 1816, in favor of the Miami Exporting Company v. Daniel Symmes and others; an execution issued on that judgment dated January 23,1817, on which was an indorsement in these words, “ Levied on the following described land, to wit: forty acres lying and being in fractional section No. 12, town No. 4, fractional range No. 1; or in fractional section No. 7, town No. 3, and fractional range No. 2; or a part of said land in each of the foregoing sections, towns, and ranges, etc., as the property of Daniel Symmes. Cincinnati, March 8,1817.” In the appraisement and in a vendí, of June 18, 1817, the description is in the same words, and on the vendí, the sheriff has returned a sale made in these words: “ July 21, 1817, sold the within land to-Nicholas Longworth for the sum of five thousand and ten dollars.” The defendants also offered in evidence the sheriff’s deed of the land to Longworth, dated July 24, 1817, and in which the lands sold are described as recited in the levy, sale, advertisement, and valuation, agreeably with the returns on the execution, but more particularly by the following boundaries : “ adjoining lands on the south owned by Jacob Wheeler; on the east by William Lytle; on the north by Jacob Baymiller and Jesse Hunt; and westwardly by the state road, leading to Mad river, by Martin Baum, Smith, Findlay, and J. H. Piatt, being bounded on all sides by the property of the said persons, and supposed to contain forty acres, be the same more or less.”

The plaintiffs objected to this evidence, but it was admitted and the defendants rested their case.

The plaintiffs then proposed to prove but forty acres were 588] ^levied on and embraced in the levy, return, appraisement, advertisement, and sale under which Nicholas Longworth claims, whereas there were sixty-nine or seventy acres embraced in his deed, to all which he claimed title under his deed. This evidence was objected to and overruled, and a verdict for defendants.

V. Worthington, for plaintiff.

N. Wright, Caswell, and Fox, for defendant.

1. Point: Was tbe sheriff’s deed to Longworth properly admitted as evidence of the defendant’s title ?

2. Did the court err in rejecting the evidence offered by the plaintiff to prove the levy, appraisement, advertisement, and sale-were of forty acres only, whereas the defendant’s deed contained sixty-nine or seventy acres ?

The first point, that the deed was properly admitted, I think, may be supported by the current of the authorities. If the deed is no part of the sheriff’s return, it is an act required by law of the sheriff in the execution of his duty to complete the title to the purchaser, and is, uncontradicted, prima facie evidence that the land it conveys was levied upon and sold. It is but prima facie, and may, therefore, be rebutted by other evidence, that the land levied on and sold, is not the land covered by the deed? The court, therefore, erred in refusing the testimony to show that the land conveyed was not all sold by the sheriff on his levy. This disposes of both points. R. Douglass v. McCoy, etc., 5 Ohio, 524.

New trial granted.


text:
    Lessee of Hart’s Heirs v. Thomas Johnson and others.
    Township trustee’s office is a public office within the occupying claimant law, in reference to leases of school lands.
    Adjourned from Perry county.
   Judge Wood

stated the case and delivered the opinion of the court:

The question raised here is, whether, upon the facts stated in this case, as reported ante, 87, the defendants can claim the benefit of the law for the benefit of the occupying claimant ? This question turns on a single point. The act incorporating the original surveyed townships, authorizes the township trustees to lease the sections-reserved for schools. Are leases made by them and 539] recorded by the clerk of the township ^within the terms providing for a title recorded in some public office employed by the occupying claimant law? We are of opinion that this question is to be answered in the affirmative. The order for valuation of improvements is accordingly made.

Irwin and Orton, for appellants.

Stanbery and Hunter, contra.


author: Wright, J.:

text:
    Austin v. Hayden.

      Ante, 388.

      Dissenting opinion of Judge Wright.

   Wright, J.:

It is conceded on all hands that if an action upon the case was commenced in the court of common pleas, and the plaintiff filed a declaration in trespass, the declaration would abate the writ, because he does not pursue the suit he' commenced. Gould’s Pl. 28, 196, 269; 4 Bac. Ab. 40. I understand our statutes expressly to require eases appealed to be conducted in the same manner as if originally commenced in the court of common pleas. 29 Ohio L. 178. If this is so, it is not for me to alter the law.

The statute requires of justices of the peace, in cases of appeal, ' to transmit the original papers to the court of common pleas, to be used on-the trial in that court. 29 Ohio L. 178. It moreover requires the appealed suit to be in all things conducted, in the court of common pleas as if originally commenced in that court (29 Ohio L. 178); and it requires of the clerk to include the original writ in the final record. 29 Ohio L. 76.

A similar provision as to certifying up the original papers exists where a case is appealed from the common pleas to the Supreme Court, and for the final record. 29 Ohio L. 178. If this were a case in which slander was commenced before the court of common pleas, and a declaration in assumpsit in the Supreme Court, or case brought in the court below, and a declaration above in trespass, I can not conceive there would be any doubt that the suit would abate. In the case before us, the plaintiff brought an action on the'case before the justice, became nonsuit, appealed to the common pleas, and then, instead of prosecuting his action on the case, he declared in trespass with force and arms. He has appealed one case, and proceeds in another.

^However desirable it may be to have the law, as my [540-brethren declare it, so as to allow the same object to be pursued after an appeal in any more expedient form than that originally commenced, I am constrained to think it is not now so.


text:
    Ring and Rice v. Foster.
    Ante, 279.

      Dissenting Opinion of Judge Wright.

   Wright, J.:

The act of assembly dispenses with proof of execution of “ any promissory note or bill of exchange ” in a case situated as this is. 29 Ohio L. 122. The simple question before the court is, whether the following instrument is a promissory note, for no one claims it to be a bill of exchange:

“Three months after date we promise to pay Samuel Foster, or order, one hundred and forty-three dollars and twenty-two cents; provided Samuel Foster delivers the crop of tobacco raised by him and Trockmiller; the said Foster is to have one-fourth of the above in hand, and in addition three dollars and fifty cents per hundred for that part yet to be delivered, payable one-fourth in hand and the balance in one hundred and twenty days.
“ Thomas H. Cushing,
Ring & Rice,
J. H. Harris, per J. JJ. Gushing.
April 28, 1827.”

A promissory notéis a “written promise for the payment of money, absolutely, and at all events.” Bayley on Bills, 1. Accord* ing to Blackstone, 2 B. C. 467, it is “ a plain and direct engagement ■in writing to pay a sum specified, at the time therein limited, to a person therein named, or sometimes to his order, or oftener to the bearer at large.” To my understanding the instrument before me ■does not satisfy either definition, or the common acceptation of a promissory note. It is not an absolute promise to pay at all ■events a certain sum, for part of the amount is dependent upon the contingencies of the delivery of a crop of tobacco, and the quantity estimated at three dollars and fifty cents per hundred. The time of payment is not on a day fixed and certain, but depend-•541] ent the whole upon contingencies, and part upon ^double contingencies. If the crop of tobacco was delivered (at what time is uncertain), a fourth of the one hundred and forty-three dollars .and twenty-two cents was to be paid down, if not the whole in three months. If such an instrument was offered to a merchant, ■or a bank, as a promissory note, would it not be rejected at once .as no promissory note?

I think the court below erred in admitting the instrument in evidence without proof of its execution, because it is not a promissory note.


author: Judge Hitchcock

text:
    The State of Ohio on Relation of A. G. Brown v. Robert E. Constable.
    An election for county recorder is illegal and void, if held before the vacancy has actually occurred which it is intended to supply. Such election can only be held at the annual election in October.
    Beserved in the county of Athens.
    The case is this: At the November term, 1835, of the Supreme Court for the county of Athens, A. Gr. Brown, of said county, filed an affidavit, setting forth that at the October election of that year* he was duly elected recorder for said county; that he had demanded the books, papers, documents, and records, pertaining to said office, of one Robert E. Constable, who had previously holden the office, and who refused to give them up. And upon this affidavit moved the court for a writ of mandamus, commanding Constable to deliver over to him said books, papers, etc., or to show •cause to the contrary.
    This motion was sustained, and a writ issued accordingly.
    To this writ the defendant returned, that at the October election, 1832, he was elected recorder of said county of Athens. That he did not take upon himself the duties of the office until July 11, 1833, because that, on July 10, 1826, A. Gr. Brown had been appointed recorder, *under the then existing laws, for the term of seven years, which term did not expire until July 10, 1833 ; and the defendant claims the right to hold the office for the term of three years, from and after the time at which he entered upon the discharge of his duties thereof.
    To this return there is a demurrer and joinder in demurrer.
    Nye, for the relator.
    R. E. Constable, for defendant.
   Judge Hitchcock

delivered the opinion of the court:

Two questions are presented to the court for examination in the ■decision of this case.

1. Was Robert E. Constable, the defendant, legally elected recorder ?

2. If legally elected, at what time would his term of office expire ?

In the determination of these questions, we have no other guides than the several legislative enactments on the subject. Previous do the year 1829, county recorders were appointed by the associate judges of the court of common pleas of the proper county, and the term of office was seven years. But on the 11th of February, of that year, a law was enacted, changing the mode of appointment and providing for the election of these officers by the people. The term of office was also reduced to throe years. 27 •Ohio Stat'. 65. By this act it is clear that the legislature did not intend to interfere with those persons then in office. In section 1 it is enacted, “ that there shall be elected by the qualified electors of each county within the state, on the second Tuesday of October next after the term of service of those now in office shall have ex‘ fired, and on the second Tuesday of October triennially thereafter, a recorder for said county,” etc. From this it is plain that no election could be holden until after the expiration of the term of service of the then present incumbent — and an election so holden would be void. In order to. prevent any difficulty that might happen, in consequence of a vacaney from the expiration of a seven years’ appointment, or otherwise, the same law provides, in section 3, that if the office becomes vacant, “ the commissioners of the county shall appoint a recorder, who shall hold his office until the next ’¡’October election.” It is clear that the legislature intended that the office of the county recorder, as soon as it could be done consistently with the rights of those in office, should fall in on the second Tuesday oí October, triennially ; and that those elected by the people should hold their offices for the term of three years from that date. But they were cautious to provide that there should be no election, until a vacancy had occurred, from the expiration of the term of those in office who had been appointed under the pre-existing law.

Had the election of Constable taken place during the existence of this act, there can be no doubt but the election would have been void; because when he was elected there was no vacancy. Brown had been appointed in 1826, and his term of office did not expire until long after the election of Constable.

This law, however, was repealed on February 25, 1831, and is only referred to as aiding in the construction of the act of this latter date. In section 1 of the latter act, it is provided, “ that there shall be elected in each county in this state, on the second Tuesday of October, triennially, a county recorder, who shall hold his office for the term of three years, if he so long behave well, and until his successor shall be chosen and qualified.” That is a convenient provision; but still it was not the intention to interfere with the recorders then in office, as is apparent from the proviso to the repealing clause in section 9, which is as follows : “ Provided the that recorder elected under the provisions of said act,” referring to the act of 1829, and those theretofore appointed by the associate judges of the proper county, and whose term of service has not expired, shall continue to hold their respective offices for the term for which they were elected or appointed in the samó' manner as if the acts under which they were elected or appointed, were not repealed.” By this proviso, the laws under which recorders then'in office were elected or appointed, was continued in force as far so respected those officers; and it seems clear to my mind, that the law of 1831 was a mere continuation of the law of 1829 so far as relates to the appointment to or duration of the office. Although considerable change is made in the prescribed duties- and liabilities of the officer, no change is made as to the election. *It is true this act, in providing for filling vacancies, authorizes the county commissioners to fill such vacancies .as occur by “ death, resignation, or removal,” without authorizing them to fill vacancies in general terms. In this respect it differs from the act of 1829. But it is believed that this was a mere oversight; for at. the special session of the general assembly, holden on June 4,1832, we find an amendatory act providing that in case the office of' recorder in any county is or shall become vacant, the commissioners of the county shall appoint a recorder, who shall hold his-office until a recorder shall be elected and qualified.” 31 Ohio Stat. 11.

If we are right in the construction of the act of 1831, it follows that the election of Constable was void; being in anticipation of a vacancy which did not occur until the 10th day of July next following the day of election, and not in consequence of a vacancy which had already happened.

The correctness of this construction, so far as relates to an election in anticipation of a vacancy, is strengthened by reference to-the act prescribing the duties of county treasurer,” in section 1 of which it is provided that the treasurer, although elected in October, shall hold his office two years from the first Monday of the next succeeding month of June. 29 Ohio Stat. 291.. From which it is manifest that where it is the intention that an election should be held in anticipation of a'vacancy, that intention-is clearly expressed. So in the election of justices of the peace: “ when a vacancy is about to happen, or shall actually happen,” the trustees of the township are required to give notice to the electors of such township to fill such vacancy. 29 Ohio Stat. 167.

It may, perhaps, be though t that the election of Constable being void, his acts performed as recorder are void. But it is not. so. He was recorder de facto, and the business transacted by him in the office must be considered equally valid as if he had been properly elected.

The first point being against the defendant, it would seem to be unnecessary to say much as to the second. This, however, would seem to be equally clear against him. Both the statutes of 1829 and 1831 provide, it is true, that the recorder elected shall hold his office for three years, and until his successor is elected and qualified. But from what time ? The policy, if not the express words of the law, would indicate that it must be from the day of election. The election is to *be holden on the second Tuesday of October, triennially. If a vacancy happens, it is to be filled until the second Tuesday of the next succeeding October, and on this day the term of service must expire if a successor be elected, ■ or rather so soon thereafter as the successor is qualified. When no day is mentioned in the law from which the term of service shall commence, it must commence from the day of election. Any other construction would lead to this absurdity, that the officer elect would have it in his power to fix the commencement of the term of service for himself and his successor at any time he should think proper to qualify.

It is not so in regard to other offices; why should it be so in regard to this ?

It follows that had the election of Constable been legal, his term ■of service expired upon the qualification of his successor, and he had no right after that time to discharge the duties of the office, or to withhold the books, papers, etc., connected with it.

The demurrer is sustained, and a peremptory mandamus ordered.


author: Judge Wood:

text:
    Miami Exporting Company v. The Heirs, etc., of J. Halley, deceased.

      Scire facias v. heirs and terre-tenants to make lands liable for the payment of decedent’s debts.
    A debtor dies after judgment against him, subsisting as a lien upon his real estate. The administrator makes a sale, that for irregularity passes no title. The judgment creditor may proceed, by scire facias, against the heirs and purchasers in possession, to revive the judgment, and to have •execution awarded against the lands.

      In 1814 the plaintiff recovered judgment against Joseph Halley and William H. Hopkins, for one thousand five hundred and sixty-three dollars and twenty-eight cents, in the court of common pleas of the county of Hamilton. Halley died in 1816, and administration was granted to David S. Halley, who has no assets from which the judgment can be satisfied. In August, 1823, the judgment was revived against Hopkins as the survivor of Halley, and Hopkins had an execution issued returnable to the December term following, which was returned “ no goods, chattels, lands, or tenements of the said Hopkins.”

      The scire facias avers that the judgment remains unsatisfied; that the time allowed for the administrator to settle Halley’s estate has expired; that Hopkins has nothing from which the amount of the judgment can be made; and that in *1814, when this judgment was obtained against Halley and Hopkins, Halley was seized of certain lands which were cast upon his heirs by his death, and who with certain terre-tenants are made defendants, and the lands sought to be charged with execution in satisfaction of this judgment.
    P. Turpin, one of the terre-tenants, has plead that he is seized of the lands by legal title, acquired after the plaintiff’s judgment had become dormaut, to wit: on May 7, 1822.
    2. That after the death of Halley, and the grant of administration to David S. Halley, in 1817, the administrator obtained an order to sell the real estate of Josiah Halley; and, in pursuance thereof, sold the lands in question to Joseph Ruffner, whereby the premises are discharged from said judgment.
    There is a third plea, substantially like the second, but with this addition, that in confirmation of the sale to Ruffner, under the order of court, on July 12, 1817, the administrator executed a deed to Ruffner, in fee, whereby the said lands became discharged of the said claim.
    The plaintiff has replied, taking issue on all the facts set up in the special pleas.
    Y. Worthington, for the plaintiff.
    Storer and Hammond, for the defendant.
   Opinion of the court, by

Judge Wood:

This cause is submitted to the court in the place of the jury, and ' is to be determined as the evidence shall be found to sustain or not to sustain the issues made by the parties. The defendant has the affirmative; the onus probandi is with him, and if the issue made by the replication to either of the pleas is found 'for him, there is an end to the plaintiff’s case.

The proof he offers is an entry on the minutes of common pleas of Hamilton county, made on December 6, 1816, as follows: “ On petition and exhibition of the administrators of the estate of Josiah Halley deceased, praying an order for sale of real estate,personal estate being insufficient to satisfy debts due from the estate, court grant the petition, and order a writ to issue agreeably to law, and appoint Iehabod B. *Miller, Stephen B. Davis, and Nathan Hatfield, commissioners or appraisers.”

This is the only order made by the court of common pleas in relation to the sale of this property. Under it, the clerk issued his precept to the administrator, dated December 10, 1816, to sell the land. The commissioners were sworn, and appraised the land at three thousand dollars. On January 30,1817, it was sold by the administrator, and this return made: “By virtue of a special order gran ted by the honorable judges of the court of common pleas, in and for the county of Hamilton and State of Ohio, I sold on January 30, 1817, the property set forth and described in said order, to wit: one moiety of two hundred and fourteen and one-half acres of land, in Anderson and Columbia townships, county and state aforesaid. The aforesaid moiety was sold agreeably to previous notice, given according to law — sold with the incumbrance of a judgment in favor of the Miami Exporting Company —sold under the supposed amount of principal unpaid of eight hundred dollars, and the interest and costs thereon, and the widow’s right of dower, on a credit of ten, twenty, and thirty months, for nineteen hundred dollars.”

The defendant also offers in evidence the record of the administrators’ deed to Ruffner for the land sold, dated July 12, 1817, but which is executed in the presence of but one witness.

To the evidence so offered, the plaintiff objects, and insists that the order made by the court of common pleas is an order to appraise and not to sell the land, and that no order for a sale could be made until the appraisal was first made and returned. There is certainly force in the argument, and the same point was so decided in the case of the Lessee of Goforth v. Longworth, 4 Ohio, 130. The sale, however, in that case was made under the statute of February 10, 1810, section 32 of which provides, that the court «hall appoint three disinterested men to “view the land, tenements, or hereditaments so to be sold, and return to court, under oath, a statement of the value thereof, after which the court shall direct the executor or executors, administrator or administrators, to proceed to sell," etc.

The sale, in this case, was made under the statute of January 25, 1816, which enacts that the court shall appoint three disinterested men to view the premises, etc., and return to court a statement of the value of the remainder of such *lands, etc.; and the court shall direct the executor or executors, administrator or administrators, to proceed to sell, etc. The principal difference in these two statutes is, that the words, “ after which the court shall direct," etc., in the former, are left out of the latter statute. The practice is believed, however, to have been generally the same under both, and agreeably with the decision in G-oforth’s Lessee v. Longworth. The court of common pleas, on the return of the appraisal, have not unfrequently refused to grant an order to sell, because the appraisal has not been made, in all respects, in conformity with the law. Unless the appraisal is first made and returned, costs might be greatly accumulated by a subsequent sale, and all the proceedings, at last, set aside, because of a defect in the appraisal. Besides, the statute provides that so much of the real estate only should be sold as should be found necessary for the payment of the debts against the estate. The provision clearly contemplates an appraisal to be first made and returned; for without it, the court have not the facts to enable them to determine whether all, or a part, of the real estate must be sold, to liquidate the demands against the estate. It does not appear to us that any alteration was intended to be made in the statute of 1816 in this respect; and if a sale was required by the act of 1810 to be ordered by the court, after the appraisal was returned, we can see no reason why it is not necessary under the latter statute.

It is not important, however, that this question should be decided, as another point made determines the case. The legal title is not vested in the purchaser at an administrator’s sale, until the lands sold are conveyed by deed duly executed. It must be signed and sealed by the grantor ; and such signing and sealing must be attested by two witnesses, who are by law required to sign their -.names to such attestation. The deed of the administrator to Ruffner is defective; there is but the attestation of one witness. The deed, therefore, conveyed no legal title to Ruffner, and Ruffner could convey none to Pultney, nor Pultney to Turpin.

The first issue then made, that Turpin is seized and possessed of the lands by legal title, is not sustained by the deed offered in evidence. It does not conduce to prove this issue, and should be rejected.

The second issue is not proved. The lands were not sold on an ■order to sell the real estate, as set forth in the second *place. There was no such order, and -the lands were not discharged from, liability to satisfy such judgment.

The third issue is not proved. The deed offered in evidence to prove it, is rejected for the want of another witness. It follows, •consequently, that all the issues are found for the plaintiff. As against Turpin, the lands must be chargeable with the plaintiff’s •demand, and such appears to us to be the justice as well as the law of this case. The lands were bid in by Ruffner, with a knowledge of, and on the express condition, that they were to be subject to the plaintiff’s claim, and such is the language of the deed to Ruffner; and it must be supposed that Pultney, who purchased of Ruffner, and Turpin, who bought of Pultney, had examined Ruff.ner’s title, and had full knowledge of the restriction contained in the administrator’s deed.


author: Judge Wood :

text:
    Doe ex dem. John G. and George McCullough v. William Lee.
    While the statute of descents of 1805 was in force, if an infant died seized of an estate inherited from the father, leaving neither brother nor sister, the mother, as next of kin, inherited the estate, to the exclusion of the father’s sister.
    Reserved in the county of Harrison.
    A statement, agreed to by counsel, presents the following facts: Edward Yealhall died in 1813, in Athens township, in the county of Harrison, seized of forty acres of land, situate in said county, leaving Ruth Yealhall, his widow, and an infant child, who died the following year. Elizabeth, the sister of Edward, survived him, and, on the death of the child, claimed the land by inheritance from her brother, and executed a deed for an undivided moiety to the plaintiff’s lessors, under which they claim title.
    The widow, after the death of the child, executed a conveyance for the whole lot to the defendant, who claims that by the death of the child, the land ascended to the mother.
    Beebe, for the plaintiff.
    Dewey, for the defendant.
   Opinion of the court, by

Judge Wood :

The question is, under this agreed case, whether Elizabeth Teal-hall, the ,sister of the ancestor from whom the estate *came, or Ruth, the widow, and mother of the child, inherited the land. This must depend on the statute of February 22,1805, which continued in force until June 1, 1815, when the act of December 19, 1814, took effect, and repealed some of its provisions.

The statute of 1805, 1 Chase’s Stat. 515, sec. 2, enacts, that if the estate came by descent, etc., “from an ancestor, it shall descend to the children of the intestate, or their legal representatives.

“ That, if there be no children or their legal representatives, the estate shall pass to the brothers and sisters of the intestate and their legal representatives : Provided, they are of the blood of the ancestors from whom the estate came. That, if there be no brothers or sisters, or their legal representatives, the estate shall pass to the next of kin to, and of the blood of the intestate.”

Have we not, then, the very case to which this statute applies? This estate came by descent from the ancestor to the intestate, who died without issue. There are no children, nor their representatives, to whom it can descend. There are no brothers nor sisters of the intestate; and, in the language of the statute, it must pass to the next of kin to, and of the blood of the intestate. The investigation is limited to the single inquiry, who is the next of kin to, and of the blood of the intestate ? The mother, Ruth, or the aunt, Elizabeth.

In 2 Nels. Ab. 1077,1078, it is said, “ Kindred are a certain body of persons of kin, or related to each other; that there are three degrees of kindred, in the English law. One in the right line descending, as from the father to his son, and so on to his children in the male and female line, and their representatives. The next is the right line of ascending, which is directly upward, as from the son to the father or mother.” There being no heirs in the right line* descending, it results that the mother stands in the next degree of kin to the intestate, and inherits the estate; forit is the third degree, says Jacob, in the collateral line, which descends by the brother and-his children downward, or by the uncle upward. The title of the mother must prevail over that set up by the aunt; and, conse.quently, there must be judgment for the defendant.


author: Hitchcock, J.,

text:
    *Henry Reynolds v. Thomas Lieper’s Heirs.
    A forfeiture of lands for the non-payment of taxes was incurred during the owner’s lifetime, but he died before the sale; the infant heirs may redeem, and without paying for improvements made within two years after the purchase for taxes.
    Reserved in the county of Champaign.
    This case came before the court on writ of certiorari to the court common pleas for Champaign county. The case, as presented by the record and bill of exceptions, was as follows;
    In the year 1826, one hundred acres of land, part of survey No-. 5,050, in the Yirginia military district, and within the county of Champaign, listed in th e name of Thomas Leiper, ancestor of the defendants, was forfeited to the State of Ohio for the non-payment of taxes. In the month of May, 1831, Thomas Leiper died, leaving the defendants in error his heirs at law, who are all within the age of majority.
    On the 12th day of December of the same year, the said one hundred acres of land was sold by the auditor of Champaigncounty, charged with the taxes from the year 1826 to the year 1831, both inclusive, and purchased by Henry Reynolds, the plaintiff in error.
    At the October term of the court of common pleas, 1833, the defendants, by their next friend, Jacob Baum, having taken the-necessary preliminary steps, applied to the court for leave to*redeem.
    This application was resisted by Reynolds, but was sustained-, by the court, and an order made “ that the land be redeemed,”’ and that “the same may be discharged from all right, claim, or lien on account of said sale.”
    The errors assigned and relied upon for the reversal of this .order are:
    1. That inasmuch as the forfeiture happened during the lifetime of the ancestor no estate descended upon the heirs, which would authorize them to redeem.
    2. That if permitted to redeem, it could be done upon payment for all .valuable and lasting improvements.
    James, for plaintiff:
    1. The applicants were not entitled to redeem; because, by the forfeiture, the former owner was divested of all right to or inter- ■ est in the property. 23 Ohio Stat. 95.
    This forfeiture happening in the lifetime of the ancestor, nothing could descend upon the heirs. The provision in the*act of March 14,1831, “ that if land be sold, the property of any minor, etc., the owner thereof shall have the right to redeem in the manner prescribed by law ” (29 Ohio Stat. 297), can only be extended to those who were minors at the time of the forfeiture.
    2. But if the living have the right to redeem,'they must do it in “the manner prescribed by law;” and no mode has ever been •prescribed'for the redemption of land forfeited to the state for non-payment of taxes and sold under the forfeiture act. But if the laws prescribing the mode of redeeming land sold for taxes ..are to be referred to, then the act of 1816, and the supplementary act of 1829, must govern the case, as they were the only laws in force upon the subject at the time of the passage of the actkfor the sale of forfeited lands; hence, by these laws, the purchaser would be entitled to pay for improvements before surrendering the land.
    No argument was submitted for the defendants.
   Hitchcock, J.,

delivered the opinion of the court:

By the act of March 14, 1831, the legislature of the state made provision for the sale of all lands which had theretofore, or that •should thereafter, become forfeited for the non-payment of taxes. .29 Ohio Stat. 298. Section 6 of the act contains the proviso, “that if any lands shall be sold by virtue of this act, the property of a Jeme covert, minor, or insane person, or person in captivity, tha owners or owner thereof shall have the right to redeem the same in the manner prescribed by law.” Unless the heirs of ThomasLeiper are within this proviso the court of common pleas erred, in permitting them to redeem. The argument urged to prove-that they are not within this proviso is based upon the fact that-the land was forfeited during the life of their ancestor, from which-fact it is inferred that, although he died before the sale, no interest descended upon the heir. But is this inference well drawn?

It is true that the legislature, in section 15 of the act of February 1, 1825, to amend the “ act defining the duties of county-auditors,” say that when land is forfeited to the state for the nonpayment of taxes, “ all the right, title, interest, and claim of the' former owner thereof shall be considered divested out of said: former owner and vested in the State of Ohio. 23 Ohio Stat. 89.. But to the same section is attached a proviso, securing to such former owner or owners the privilege of reinvesting *themselves with* the same land upon the payment of all taxes, penalties, and interest that may have accrued at any time prior to the-disposition thereof by the state. Notwithstanding the forfeiture, therefore, it is apparent that a valuable interest remained in the-former owner — the interest or right to redeem. And we have no-doubt that, in the case of the death of the ancestor, this interest, would descend upon the heir, and it would be strange had the= law been otherwise. Lands actually sold for taxes might be redeemed, and why should not those forfeited to the state be-redeemed?

By the law of March 14, 1831, before referred to, these forfeited lands are directed to be sold. But still the legislature were unwilling to derive the former owner of all power over the land.. In section 4 of this act, they in effect give further time to redeem,, until the second Monday of December of that year. Before that day the ancestor of the defendants died, and from the day of his-death up to the day of sale, his heirs would have the right to pay the taxes, etc., and prevent the sale. They were disabled, however, in consequence of their infancy, and but for the proviso to-section 6 of the act would have been forever excluded. From these considerations we have been brought to the conclusion that-they are within that proviso, and of course that the court of common pleas did not err in permitting them to redeem.

It is objected that, if allowed to redeem, it must be done “ in thet manner prescribed by law,” and that no law has been ever enacted prescribing the manner in which forfeited lands when sold, should be redeemed. There can be no doubt that the legislature, in this part of the act, have reference to the general provisions of law authorizing the redemption of lands sold for taxes.

The next error complained of is, that the court of common pleas permitted the heirs to redeem without requiring them to pay for improvements.

In this, too, we believe there was no error. Previous to 1831 ■such payment was required, but in that year the law was changed. By the act for the redemption of land and town lots sold for taxes,” 29 Ohio Stat. 300 it is provided “ that no purchaser of any land or town lots sold for taxes, nor any person claiming under him, shall be entitled to any compensation for any improvement, which he shall make on such land or town lot within two years' from and after the sale thereof.” *The improvements for

which compensation was claimed in this case were made within the two years. But it is urged that this law, although enacted on the 3d of March, did not take effect until the first day of June following, and the law providing for the sale of forfeited lands took effect from its passage, and as this latter law authorizes the redemption “in the manner prescribed bylaw,” the law then in force must have been intended; hence, under that law, the purchaser would be entitled to pay for improvements wherever made. It seems to the court that in this counsel is mistaken. It must be remembered that at the session in which these laws were enacted', the legislature were revising the laws generally. Among other acts they passed one for the sale of lands forfeited for the non-payment of taxes ; not only such as have been, but such as should thereafter be forfeited. It was intended that this should be a permanent law. In this law provision is made for the redemption of lands which shall be sold under it, in case the person or persons having the right to redeem shall, at the time of sale, be laboring under certain disabilities. They say such persons “ shall have the right to redeem in the manner prescribed by law.” By what law? No particular “ law ” then in force is referred to, but law ” generally. It seems to have been the intention to place the former owners of lands which had been forfeited to the s tate, and who were laboring under the specified disabilities when the lands were •sold, upon the same footing with the former owners of lands sold or taxes, and to allow them to redeem upon the same terms. And the law in force at the time the land should be sold, must be the law to govern when application was made to redeem.

The order of the court of common pleas affirmed, with costs.