author: Birchard, C. J.

text:
    John Moorhead and others vs. The Little Miami Rail Road Company.
    Private acts of incorporation, which confer power to subject private property to public use, should be strictly construed.
    The 11th and 12th sections of the act incorporating the Little Miami Rail Road Company, do not confer upon the Company a right to re-locate theirroad, after completing it upon the first location, and to condemn to the uses of the road, private property.
    Chancery has power to restrain such acts.
    This is a Bill in Chancery, reserved in Hamilton County.
    The bill sets forth that the complainants are the owners of certain premises, situate near and about the division line between Cincinnati and Fulton, fronting two hundred feet on the turnpike road on East Front street, and extending in depth to the Ohio river, the same width throughout; that they have been long in possession, and contemplated the erection thereon of a large saw-mill, and the establishment of a lumber-yard; and that they have dug the foundations, and made all their contracts to build the mill. That the Little Miami Railroad Company, claiming a right to appropriate a portion of said premises for the purposes of said Company, have notified the President Judge of the Court of Common Pleas of Hamilton county, that it is necessary, and proper that said Company should take possession of and úse for the construction of their road, forty feet in width of the petitioners’ premises. That the said Judge has issued to the Sheriff of the county his order, as contained in Exhibit A, pursuant to which the Sheriff caused an inquest to be held, who, upon oath, returned an estimate of the complainants’ damages at $6,500. That the said Company have designated the line of their road, which will divide the complaintants’ premises in the centre thereof. That, by the act. of incorporation of said Company, the Company were authorized to select the most advantageous line for their road. That the Directors did cause an examination thereof to be made, from near Deer Creek the township line of Columbia, which line or route was finally laid out or located upon the south side of the high ground near to the line of High street; that said line was surveyed by O. M. Mitchell, Esq., the engineer of said Company, who returned his survey thereof to the Board of Public Works at Columbus, as will appear by Exhibit C. That the Company did not proceed to erect their road upon said line as located, but after-wards appropriated, with the consent of the City Council of the city of Cincinnati, and by the sufferance of the Town Council of the town of Fulton, the public street, known in Cincinnati as East Front street, and in Fulton as the Columbus and Wooster Turnpike Road, for the use of which they have a contract with the directors of the Turnpike Road. That upon this line, they proceeded to construct their railway; and from the first opening of the road until the present time, for five years and upwards, have occupied the same with their cars and locomotives, and are now in the daily use thereof. That the Company now seek to change the route of the road a second time, whereby a line south of that now used is asked to be appropriated, when there is no physical impediment in the present line, to prevent the enjoyment thereof by the defendants. Whereupon the petitioners charge, that, having once established said road upon the line, as it is now used, and appropriated the highway for the purposes of the Company for the period aforesaid, the said Company cannot change the said route or course of said road, by the appropriation of any other land or estate, upon which said road can be re-located; nor have the said defendants any right to enter upon the premises of the petitioners, and take the same for the purposes of the said road. The petitioners claim that the power of the Company has been exhausted, and that if the route can be changed, such necessity should be imperative, and that the route originally located by O. M. Mitchell, the engineer of said Company, is more safe for the public, cheaper for the construction of the road, and will interfere much less with the improvements of individuals, than the proposed route between the road, as it is now constructed, and river aforesaid. The complainants pray that the Company may be restrained, by injunction, from taking possession of, or constructing their road upon the complainant’s premises, and from any interference therewith, in any manner whatever, for the purposes of said Company. The bill is sworn to by one of the complainants.
    Exhibit A. referred to in the Bill.
    To the Sheriff of - Hamilton county, greeting : Whereas the Little Miami Rail Road Company, have notified the undersigned, one of the Judges of the Court of Common Pleas, of Plamilton county, that it is necessary and proper that said Company should take possession of and use for the construction of the Little Miami Railroad, the following real estate, being a piece of ground forty feet wide, running nearly parallel with Front street in the city of Cincinnati, through the whole length of a lot owned by John Moorhead, Nathaniel Foster and Thomas Moorhead, and which lot is bounded on the south-west by property of Jacob Strader, and south-eastwardly by property of Jacob Strader and is situated in Hamilton county, State of Ohio ; the length of this lot is about two hundred feet, and the centre of the road, as located, being the centre of the forty feet, and have made application for me to issue a warrant for the appraisement of said land, according to law, which premises re owned by the following persons: John Moorhead, Nathaniel Foster, and Thomas Moorhead, who are not willing or able to agree with the said Little Miami Railroad Company as to the price and value of said land so required for said road ; and it appearing to me that the warrant heretofore issued by me has been returned by the Sheriff, and that the inquest by him called thereupon was unable to agree upon a valuation of the property. You are therefore hereby required to summon an inquest of three freeholders, having served a copy of this warrant on the parties, or their agents, of said county, who shall not be stockholders in said Little Miami Railroad Company, or inter-r J ested therein, together with said owners, or agents, to appear the premises above described, on the 19th day of August, 1847, then and there, in writing, to value and appraise the land above described, and ascertain and value the damages which the several owners above named will sustain by, the use or occupation of said lands so required by said Company as aforesaid, having due regard to the benefit such owners may derive from the locality and structure of said road, according to the provisions of the statute in such cases made and provided. Given under my hand and seal this 15th day of August, 1847.
    WILLIAM B. CALDWELL,

      President Judge.

    Exhibit C. referred to in the Bill.

      Proceedings of Board of Public Works.

    September 8th, 1847.
    Board met. Present — Messrs. McConnell, Wall, Ransom, Bates, Harris and Dickinson.
    Mr. Bates offered the following preamble and resolution :
    Whereas a survey, an exhibit of the grade, a plan of the superstructure, and an estimate of the costs of the road and fixtures of the Little Miami Railroad have been submitted to the Board of Public Works ; and whereas, a survey, an exhibit of the grades, and a plan of the superstructure, and an estimate of the cost of the road and fixtures of the Lake Erie and Mad River Rail Road, have been submitted to the Board of Public Works; and whereas, a survey, an exhibit of- the grades, a plan of the superstructure, and an estimate of the cost of the road and fixtures, of the Ohio Railroad, have been submitted to the Board of Public Works, therefore,

      Resolved, That the Board of Public Works do approve the plan and estimates of the cost of the construction of the aforesaid roads, and are of opinion that either of them will, within two years from the completion thereof, yield a net profit of Per cerlt• Per annum on ^ie money invested in the construction, and that they consider all of the works above named will be, when completed, of public utility.
    On the question of adopting the above preamble and resolution, the yeas and nays were demanded :
    Yeas — Messrs. Bates, Dickinson, McConnell' — 3.
    Nays — Messrs. Harris, Ransom, Wall — 3.
    So the question was determined in the negative.
    The following in relation to the same Railroad was then unanimously adopted:
    Whereas, a survey, an exhibit of the grades, and the plan of the superstructure and estimate of the cost of the road and fixtures of the Little Miami Railroad have been submitted to the Board of Public Works, therefore,

      Resolved, That the Board of Public Works do approve the plan and estimates of the cost of construction of the aforesaid road, and that they consider the same will be, when completed, of public utility.
    Columbus, January 14, 1838.
    Board met. ■ Present — Messrs. McConnell, Bates, Dickinson, Ransom, and Wall. The following preamble and resolution were adopted:
    Whereas, a survey, an exhibit of the grades, a plan of the superstructure, and an estimate of the cost of the road and fixtures of the Little Miami Railroad, have been submitted to the Board of Public Works, therefore,

      Resolved, That the Board of Public Works do approve the plan and estimates of the cost of the construction of the aforesaid road, and are of opinion that the said road will, within two years from the .time of the completion of the same, yield a net profit of two per cent, per annum on the money invested in its construction, and in the fixtures, engines, apd carriages, necessarily employed thereon.
    Further notices may be found in the Annual Report of Board Public Works for 1837-8, No. 19, Vol. Legislative Doc. of that session, and Annual Rep. for 1838-9, No. 50, 2d Yol. of Leg. Documents.
    The following exhibits the action of the City Council of Cincinnati as to the location on Front street:
    May 27th, 1841.

      Resolved, That the Little Miami Railroad Company have the privilege to lay down their rails on East Front street on the south side to Deer Creek, on condition that they McAdamize the street, except the gutters, from the corporation line to Spring-hill Avenue; and that they shall grade the same and put down the rails under the direction of the city surveyor; and provided the city shall reserve the right of withdrawing this privilege at any time they shall think that the public shall require it, provided that if the city withdraw said privilege, she shall give to the said Company six months notice of such withdrawal; and provided further, that said Company pay all damages that may arise to individuals in any change of grade, and on the express condition that no locomotive engine is admitted on said street.
    July 14th, 1841.

      Resolved, That the Little Miami Railroad Company have the privilege to lay down the rails on East Front street, on the south side near the south curb stone, to Deer Creek, on condition that they repair with stone so much of the said East Front street as is necessary to take up in laying down the rails for the railroad, and place the same in as good condition as it now is, and pay all damages that may arise to individuals in any change of grade, and on the express condition that no locomotive engine is admitted on said street — the street to be graded and the rails to be put down in such manner as to leave the surface of the street as level as the nature of the case will allow ; and the work to be done under the direction of the City Surveyor and Trustees' of the 3d Ward, who are to act under the directions of the City Council. Provided, that the City Council may withdraw from the said Railroad Company the privilege of using the said part of East Front street, hereby granted, by giving ^ie sa*d company six months notice of their intention to resume said street.
    April 10th, 1845.

      Resolved, That so much of the resolution passed by the City Council, July 14th, 1841, as prohibits the admission of any locomotive engine on the Little Miami Railroad on East Front street, between the corporation line and Deer Creek ; and also so much of said resolution as provides that the City Council may withdraw from the said Railroad Company the privilege of using , the said part of East Front street, for laying down their rails thereon, by giving the said Company six months notice of then-intention to resume the street, be and the same is hereby re- ( scinded.

      To E. Woodruff, Esq., President of the City Council of the City of Cincinnati:

    Sib. : — The Little Miami Railroad Company have established the location of their road up to the Corporation Line of the City of Cincinnati, and are now prepared, with the concurrence of the City Council, as provided in the Charter of the Railroad Company, to establish the location within the city. The Railroad approaches the city by a single track per horse power through'Front street of the town of Fulton, and the Company is desirous to continue said location within the city along the same street to a junction with the Miami Canal.
    Respectfully,
    A. H. EWING,

      Commissioner.

    Cincinnati, April 21, 1841.
    The President read to the Board a communication from A. H. Ewing, Commissioner, “that the Little Miami Railroad Company have established the location of their road up to the corporation line of the city, and are now prepared, with the ■concurrence of the City Council, as provided in the Charter of the Railroad Company, to establish the location, of the road . _ within the city.” Referred to the Committee on Roads and Canals.
    Council Chamber,
    Cincinnati, Sept. 23, 1847.
    I certify that the foregoing resolutions, communication, and proceedings of the City Council, are correct copies from the Records in the City Clerk’s Office.
    CHAS. SATTERLY,

      City Clerk.

    The Answer admits that complainants own the property in question.
    Claims that defendants by their Charter and its amendments have been authorized to construct a Railway with a double or single track, from, at, or near Springfield, through Xenia, down the valleys of the Little Miami and Ohio, to Cincinnati, and such points in that city as may be agreed on by the City Council of Cincinnati and the directors of the Railroad Company.
    That defendants are also authorized to take possession of, and use such land as may be indispensable for the construction and maintenance of their road, to be paid for as provided in the Charter.
    That they have, likewise, after having selected a route, a right to change it when a cheaper and a better can be obtained, or when the difficulty of construction or of procuring right of way, presents obstacles to its construction on the first location.
    That complainant’s land lies almost wholly in Fulton, front*ing on the Wooster Turnpike, and that defendants, by their Charter, have a right to contract with the .Turnpike Company for the use of a part of their road : in pursuance of which they made a conditional agreement with the Turnpike Company, (of which the answer attaches copy,) permitting defendants to lay their rails on the southern side of the Turnpike, which in the year-they did accordingly, from the toll-gate pass the greater part of complainants’ property to Cincinnati, but this location was not permanent, nor had any permanent location been made until a few months before filing the answer.
    That within a year previous it had become apparent that the Railroad could not remain on the Turnpike, on account of the increasing travel and business on both roads, and the narrowness of the Turnpike: that during the preceding fall great disturbances had arisen, and threats of violence made, on account of the use of the Turnpike by defendants, and great complaints by the people of Fulton of the inconvenience and injury suffered by them on account of the use of the Turnpike for defendants’ road.
    That, desirous of accommodating the public, defendants did in the preceding autumn or winter, publish their determination to remove their Railroad south of the present line, and had since endeavored to procure the right of way over all the land south of present line, and west of the Turnpike gate to the city limits, and had purchased large parcels of said land, and had used all fair means to purchase complainant’s property, or the right of way over it, especially before Thomas Moorhead and Foster purchased an interest in it of John Moorhead, their co-complainant. But complainants refused all reasonable offers, and to prevent, (as the defendants charge,) their obtaining right of way at reasonable cost, determined to build a saw-mill, on the line where the road must run, and proceeded to dig for a foundation, but had not as yet laid any part of it, and might with little trouble remove the mill nearer the river, and out of the way of the proposed track.
    That if complainants contracted for materials, &c., it was with full knowledge of defendants’ intentions, and as defendants had been informed, with injunctions of secrecy, by Thomas Moorhead, to the contractors, in order to keep the preparations from defendants’ knowledge.
    That defendants did obtain a condemnation of said property at the valuation, &.C., as stated in the bill, from which complainants took no appeal, and expect to build their road over said land. . _
    Denies that defendants ever located their road on the line High street, but that examinations and surveys only were made, by which it was ascertained that from the slipping of the earth and the unevenness of the route, it could not be used.
    That defendants are authorized to construct a double track, which the increasing business now requires. Cannot do so on the present line, nor any where except on the route proposed to the south of it.
    That defendants do not believe the location proposed for their road will injure complainants’ property, and that they are willing to purchase the whole of it at a fair price, and are willing the Court should have the value of it ascertained, and to pay such value.
    That it is a very unsuitable place for a saw-mill.
    Sealed and signed by Jeremiah Morrow, President.
    Upon this answer and affidavits the respondent asks a dissolution of the injunction.

      Storer & Gwynne, for Complainants.

      Fox &f French, for Defendant.
   Birchard, C. J.

This motion presents the question whether the Little Miami Rail Road Company having once located and constructed their road, have the power to re-locate and re-construct it on other and distinct ground ? An answer to the inquiry must be given from the charter of the Company and the amendments which it has received. Unless the power is therein expressly granted or necessarily and fairly to be implied from the express grants it cannot be exercised. The first section of the respondent’s act of incorporation authorized the construction of a rail road terminating at Cincinnati, and at such a point in the city as might be agreed on by the City Council of Cincinnati and the directors of the Company. The tenth section required the Company ,to select the route on which the road was to be constructecl> as soon as practicable, after making the examina- and surveys necessary to enable them to select the most advantageous line.

The twelfth section gives “ authority to vary the route and change the location after the first selection had been made.

1st. Whenever a better and cheaper route could be had.

2d. Whenever “ any obstacle to continue said location was found, either by difficulty of construction or procuring right of way at a reasonable cost.” 34 Local L. p. 4Ó4.

It is in virtue of the provisions of this last section that the right to re-locate the road and condemn the complainants property, is claimed.

Now, a moment may be well spent in considering the nature of the rights conferred, and the trust devolved upon the Company by their act of incorporation. Section 11 confers, in express terms, the right to enter upon, and take possession of, and use all such lands and real estate as may be indispensable for the construction and maintenance of said rail road, and the accommodations requisite to, and appertaining to them. In case of disagreement of the owner as to the price of any lands or materials required for the road, provision was made for the condemnation of the lands or materials, by an inquest of freeholders, &,c., against the owner’s consent. True, the valuation of the inquest was required to be tendered or paid to the owners, or deposited in some bank to their credit, before the title to the lands and materials could vest in the Company. These grants of power are in derogation of private right, and would be totally void but for the provisions of the constitution, which make private rights subservient to the public welfare. Admitting that the interest of the public were such as to warrant this extensive delegation of the right of sovereignty, or right of eminent domain, and it is quite certain that the power should be clearly expressed, or necessarily and clearly implied from what is clearly expressed in the grant. In such case the rule of construction should be strict. No State can ever be presumed to have parted with a portion of its sovereignty even to her own citizens, without a grant affirmatively made. And no derogatory of private right should gain anything by forced struction. The general rule requiring grants of this nature to be strictly construed is, in our opinion, the only safe one, and it should be adhered to with unyielding tenacity.

The respondents suppose a different rule of construction should prevail, and cite the decision in Bates v. Cooper, 5 Ohio Rep. 119. In that case it was contended that the act to provide for the internal improvement of the State by navigable canals, simply authorized the taking of materials to prepare the canal for public use, but conferred no authority to take materials for repairs subsequent to the completion of the canals. This Court, as then constituted, did not so construe that statute. And the learned Judge, who reported the opinion, says, that such a construction would be altogether too narrow for the liberal policy of that act. Yet it is strongly intimated, on page 120, that if the officers and agents in that case had not been exclusively public, engaged in the constructionof a great public improvement, for the sole benefit of the State, a different rule of construction would have prevailed. That had they been private corporators they would “ have been restricted to a rigid exercise of the literal power granted in their act of incorporation, to appropriate to their public structure private property.”

Whether in point of fact any distinction should exist in the,rules of construing the statutes providing for our system of public improvements and those providing for public roads by private corporators, is a question not now before us, nor does it seem that the case of Bates v. Cooper turned upon the question that the learned Judge discussed.

That statutes of this nature should be strictly construed, is a position abundantly sustained by the cases cited by complainants’ counsel.

This case stands thus: The corporators had the power to locate and construct a rail road. They could exercise this right but once without a further grant. To accomplish this object a most important attribute of sovereignty was bestowed upon them by the Legislature — the extraordinary reserved power of subjecting the property of private individuals to a public use. If it was intended that this should be a continuing power, one that might be exercised, and re-exercised again and again, as often as might suit the convenience of this Company, the Legislature should have so declared in express terms. They have not done so. The 12th section of the charter, when speaking of the right to vary the route and change the location, treats the road as still being in an unfinished state, as the location of a route for a road to be constructed, not a location of a road already completed. Even this right to change the location is restricted by the 12th section to the cases therein specified. It was to be exercised first, when the difficulty of construction interposed an obstacle ; a difficulty which could not happen after the completion of the structure. Or secondly, when the procuring of a right of way at a reasonable cost presented an obstacle. This could only happen before the completion of the road upon the route first located, for when the right of way had been secured and the structure finished thereon, the obstacle arising from the cost of that right of way, must have been met and.overcome, and could no longer exist. Or thirdly, when a cheaper and better route could, be had. This cause of changing the route also looks to a time prior to the completion of the structure. The new route must be both better and cheaper. The change here intended, must be a change of location merely, not a change of a finished road, because the cheapness has reference solely to the cost of construction, while the word better refers to the ultimate utility and convenience as a source of profit and public accommodation. If not so, why employ the word cheaper in reference to a finished and complete thing ? The term evidently has reference to the cost of the structure, and would be inappropriate to express the idea intended, if the object was to confer the power to make both a different location and a road altogether new.

The completion of this road upon the route first located, exhausted all the power of the Company. The force of the grant was then spent; and no matter how necessary the change of location may be at present, the Company must seek authority to make that change in some Legislative enactment, aside from their act of incorporation.

Counsel for respondent claim authority for the act complained of, under the 11th section of their act of incorporation. If we gather correctly their meaning, the validity of their argument depends upon the construction of the word maintenance, as used in this section. “ It shall be lawful for the said Company to enter upon, and take possession of, and use all such lands, and real estate, as may be indispensable for the construction and maintenance of said Rail Road,” &c.

They well say that the object of the Legislature was to have this road built, and maintained, as a road, and to confer the necessary power to build and maintain it, as a road suitable for the business of the community. But it by no means follows that this section authorizes the change of road set forth in the bill.

Two things are indicated too plainly by the language here employed, to admit of confusion. To build or construct a Rail Road, is one thing; to maintain the structure, after it is erected or built, is another. The word maintenance has reference to ■ the powers to be'exercised after the completion. This is the natural force of the expression.* Any other meaning is unnatural, and could not be inferred from the language of the act, without departing from the common acceptation of the words of the section, and without the least excuse for the departure.

It would be a matter of regret, if the utility of this improve- ■ ment were to be seriously impaired, by reason of an error in its original location. Yet even that would be no reason for permitting the corporation, under assumed powers, to violate private rights. It is the duty of the Court in such a case, -to keep them strictly within their granted powers; and if the necessity of the case requires an enlarged power, to force them to seek it at the hands of the Legislature.

Inasmuch as the facts presented in the answer and proofs, show that the contemplated change of road will be beneficial to the public, we have come to this conclusion the more cheerfully, from the consideration that an act of the General Assembly, of a date subsequent to the commencement of the proceedings complained of, (Yol. 46, Gen. Laws, p. 44, <§> 10,) has made suitable provision for the contingency.

Notice to dissolve refused, and injunction continued.


source: Caselaw Access Project

license: Public Domain

text:
    John Williamson’s Adm’r. vs. John A. Collins and others.
    The co-signers of anote, joint and several in its terms, which fell due in 1807, and on which suit was severally instituted in 1814 against another co-obligor, and judgment recovered, and afterwards suffered to lie dormant sixteen years, and then revived, and finally paid thirty-eight years after it became payable, cannot be compelled to contribute.
    This is a Bill of Review reserved in Fairfield County.

      John T. Brazee, for Complainant.

      Ewing, Stanbery, Van Trump and Swayne. for Defendants.
   Birchard, C. J.

This bill was filed in order to effect a reversal of a decree rendered in this Court in 1846.

The facts are sufficiently stated in the report of the case in the 15th Ohio Reports, 572.

The cause has been again argued and considered, and I am instructed again to report the opinion of this Court, affirming the original decision. I was willing to bring the cause again into bank, and to undergo the labor of re-examining it, to avoid the effect of some expressions, which through haste and want of proper care, found their way into the report and are well calculated to mislead the profession in forming an opinion the grounds upon which the case was decided. It was not intended in the original opinion to advance the doctrine that any thing which would bar an action in favor of Putnam, would necessarily operate to bar the claim of a co-surety for contribution ; and in so far as my former opinion is supposed to favor such doctrine, it does neither express the views of myself or of the residue of the Court. The case was not determined on that ground. We were not indeed able to say that any statute of limitation would have operated to bar a suit upon the note by Putnam against either of the makers. That was a point upon which this Court had been equally divided. The true ground upon which the bill was dismissed was the great lapse of time which had rendered it impossible to produce proof of the true facts, and the conduct of the parties to the paper. The obligation had been over due for thirty-eight years. It had been treated by the obligee as though Williamson was the person who ought to make the payment. After he had paid ($ 1200 he waited twenty years without claiming that either of the co-obligors were liable to contribute any thing to him.. This looked as if he alone expected to pay the debt. There was no satisfactory excuse for- this conduct. The presumption from it was and is, that many years ago Williamson took the burthen of the payment upon himself, and that if he had discharged the judgment at a proper time, some of those who lived thirty or forty years ago, but who have long since gone to their graves, would have been able to prove facts showing that Williamson had no equitable claim against any of these deceased co-obligors. Upon such a state of facts, after such a lapse of time, we were satisfied an implied assumpsit to contribute could not with propriety be raised and enforced.

Demurrer sustained and Bill dismissed.


author: Hitchcock, J.

text:
    William Marshall vs. Charles Stewart and others.
    Where land is conveyed by an absolute deed, and the vendee at the same time delivers to the vendor a contract by which he agrees to re-convey the premises by a specified time, upon tho rc-payment of the purchase money with interest, the circumstances furnish presumptive evidence that the deed, although absolute upon its face, was intended as a mortgage, and it will be so held in equity.
    This is a Bill in Chancery reserved in Butler County.
    The complainant in his bill alleges that he is a judgment creditor of one Peter Letweller. That his judgment was rendered at the March Term of the Court of Common Pleas of Butler county, 1843, for the sum of fourteen hundred and thirty-six dollars, and costs. That the said Letweller has no property from which said judgment can be satisfied. He further alleges that the said Letweller has the equity of redemption in certain premises which are described, which were conveyed by said Letweller and one Christopher Morseman to the defendant, Charles Stewart, on the 7th of August, 1841. That the deed, although absolute upon its face, was intended merely as security for money at the time advanced by Stewart, and that Stewart at the same time gave to Letweller and Morseman, a lease of said land for five years, upon certain rent therein stipulated, and with a condition that if, at the expiration of the said term, a certain sum of money named in the lease, was paid to the said Stewart, then that the said Stewart would re-convey said land to Letweller and Morseman. Complainant alleges that the sum so to be paid, was made up of the original sum advanced by Stewart, together with interest, at a rate far beyond six per cent. It is further alleged, that subsequently Stewart fraudulently procured the said Letweller and Morse-man to release to him the aforesaid lease. The complainant insists that the release so executed is void for the fraud, and that the said Letweller and Morseman have an equity of redemption in the land, which he seeks to have applied to the of his judgment. The prayer of the bill is that the lands be sold, and that from the avails, what is justly due to Stewart may be paid, and that the balance, if any, may be applied upon the complainants’ judgment.
    Stewart, in his answer, admits the conveyance of the land by Letweller and Morseman to him, but denies that this was as collateral security for the payment of money advanced by way of loan. On the contrary, he avers that he refused to make any loan, but ofFered to purchase, and did purchase the land at a stipulated price, the amount he does not now recollect. That the sale to him was absolute, not conditional. He admits the execution of the lease by him to Letweller and Morseman, as stated in the bill, but alleges that subsequently, in February, 1842, the said Letweller and Morseman, being anxious to surrender to him the leased premises, by an instrument of writing indorsed on said lease, released to him all their interest therein. He denies that this release was fraudulently obtained. He charges that the judgment of the complainant is fraudulent, and that it was rendered without consideration for the express purpose of defrauding him.

      John Woods, for Complainant.

      Campbell &f Milliken, for Defendants.
   Hitchcock, J.

The decision of this case depends entirely upon matters of fact, and I am not aware that there is any particular principle of law involved. The evidence shows that a deed was executed as charged in the bill; and, although absolute on its face, we are satisfied, notwithstanding the denial of Stewart, that the true object was that it should operate as security for money loaned. It must in equity be held to be a mortgage.

To secure to the mortgagors the right of redemption, Stewart, at the time of the date of the deed, executed to them a bond for five years, containing a condition that upon the payment of a certain sum, at the end of said term, to said Stewart, he would re-convey to them the premises. The nature of this instrument cannot be mistaken. It secured to the mortgagors the right to redeem. But in order to entitle themselves to this privilege, they must, before they could claim the interposition of this Court, have offered to refund the amount loaned, with interest. The complainant stands in no better situation in this respect, than would the original mortgagors. He, too, should have made the same offer. If his object was merely to procure the sale of the equity of. redemption, in pursuance of the 16th section of the Chancery act, this might not be necessary. But the object here, is to compel the sale of the mortgaged premises; and the mortgagee should not be thus compelled to have his security disposed of, until his money is first, offered to him.

But there is another difficulty in the case. Letweller and Morseman, on the 23d of February, 1842, under their hands and seals, assigned and surrendered to Stewart, all their interest in, and under said lease, or contract, which secured to them the right of redemption. This must operate as a relinquishment of their equity of redemption. It is claimed, however, on the part of the complainant, that this instrument was fraudu/en tly procured ; but no testimony is introduced to prove the fraud. We have the testimony of a witness who was present at the exécution of the instrument, and who reduced it to writing, and he testifies that the transaction was fair and bona fide. This puts an end to the case, and the bill is dismissed, at complainant’s costs.


text:
    James P. Provost and others, vs. Asa Wilcox and others.
    The mortgage of a steamboat, or other water craft, does not withdraw such craft from the operation of the law authorizing proceedings against her by name j and in the distribution of the fund made by the judicial sale of the craft, the mortgage must be postponed to the judgments.
    This is a Bill in Chancery, reserved in Cuyahoga County.
    The material facts of this case, so far as it is necessary to state them, for the understanding of the points decided, are as follows":
    In July, 1845, the schooner Maryland was attached at Cleveland, under the law authorizing proceedings against steamboats and other water craft by name, at the suit of sundry creditors; and at the February Term of the Court of Common Pleas of Cuyahoga county, 1846, judgments were' rendered in favor of said creditors, for about twenty-seven hundred dollars.
    On the 7th January, 1846, the owners of said vessel being at Buffalo, in the State of New York, and the vessel then being there, mortgaged her to the complainant, Provost, to secure a debt for sails and rigging previously furnished her at Buffalo. The debt secured, amounted to $382 62, payable October 1st, 1846; and the mortgage was duly filed, in the proper office, according to the law of New York. On the 16th January, also at Buffalo, they mortgaged one-half of said vessel to Thomas L. Parker, also a complainant, to secure $500. due July 1st, 1846, and $500 due November 1st, 1846. This mortgage was never filed, according to the law of New York.
    In October, 1845, said vessel was sunk, by the perils of the sea, and some of the debts hereafter mentioned arose in raising and refitting her for use.
    From April 20th to April 27th, 1846, the vessel being at Cleveland, she was seized under the statute before referred to, by above thirty different creditors, for labor, and materials and furnished, principally prior to January 1st, 1846, and rendered against her in due course of law, for about $2,500.
    On'the 8th May, 1846, by virtue of executions issued on the judgments rendered in February, 1846, as stated above, the vessel was sold for $4,900, leaving a surplus of about $2,000 after satisfying the judgments last aforesaid, and the present controversy is as to that surplus.
    On the 12th of May, 1846, complainants filed their bill restraining this surplus, in the hands of the sheriff, and asking its appropriation to the payment of their debts, instead of the debts of subsequent attaching creditors. The fund remained in the hands of the sheriff for one year, or nearly so, and has" since been placed at interest by the order of the Court. All the judgment creditors are made defendants, as well as the sheriff who made the money on execution.

      Foot and Hoyt, for Complainants.

      Bishop fy Backus, Hitchcock, Willson fy Wade, for Defendants. ■
   Hitchcock, J.

The simple question raised and discussed in this case, is, whether the execution of a mortgage upon a steamboat or other water craft, withdraws such craft, until such mortgage is satisfied, from the operation of the law, which authorizes proceedings against her by name. True, this is not the exact shape of the question, but if is the substance of it. It is not denied that the judgments rendered in the suits commenced previous to the execution of the mortgages must be first satisfied. But it is claimed, that the mortgages miist be preferred to the subsequent judgments.

I had supposed that the question now raised had been heretofore definitively settled by decisions made in this Court. In the case of Kellogg et. al. v. Brennan et. al., 14 Ohio Rep. 72, the Court say, the establishment of the principle that the lien of a mortgage should take precedence of a judgment, when the boat was seized subsequent to the date of the “ leads to this result^ that if a steamboat or other water craft is under mortgage, no suit can be prosecuted against her, notwithstanding the provisions of the law of the 26th February, 1840. The execution of a mortgage would in effect repeal the law, in part at least. Any person having a claim of the description specified in the act, may prosecute his claim against the boat by name. But give the Statute the construction contended for,” and that is the construction contended for in the present case, “ and we add to it a proviso, that such boat shall not be encumbered by mortgage. Such construction would afford the owners of boats with a very convenient method of avoiding the force of this act. They would have nothing to do, but to encumber the property with a mortgage.” But in that case the Court held that the judgment creditors should be preferred to the mortgagee, more especially because the boat was running for the joint interest of both mortgagor arid mortgagee.

In the case of Jones & Watkins v. Steamboat Commerce, 14 Ohio Rep. 408, it is expressly decided that the private sale of a steamboat or other water craft, transfers to the purchaser the property in the same state in which it was held by the vendor, and subject to the same liabilities. Notwithstanding the sale, the craft may be seized for a pre-existing debt. And if she may be so seized, after absolute sale, surely she may be so seized after a mortgage. The mortgagee can acquire no better right than could a vendee. By a fair construction of the Statute, as well as by the force of these decisions, we feel ourselves compelled to hold that the mortgage of the complainants must be postponed to the debts of the judgment creditors.

A question is made as to the distribution of the fund between the judgment creditors, but I am not aware that it comes within the province of this Court to decide it at the present time. The fund was restrained in the hands of the sheriff by the action of the complainants. It remained in his hands for a numjjer 0f months, when it was placed at interest. In the distribu- • . it would seem to be just, that the creditors should receive the same proportion of this fund, that they would have received had it been at once distributed. This can be effected by commencing the computation of interest upon the judgments, at the same time the fund itself was placed at interest.

The bill is dismissed at complainants’ cost.


author: Avery, J.

text:
    John S. Seymour and another vs. John H. Browning and others.
    A defendant who, after he has been made a party to a suit by personal service of process, takes the benefit of the bankrupt act during the pendency of the suit, no notice of the fact appearing in the subsequent proceedings, cannot assign the bankruptcy as error in a decree finally rendered against him in the case.
    In a creditor’s bill, where the Court does not settle the rights as between the judgment debtor and his debtor, it is error to direct payment of any surplus remaining after the satisfaction of the judgment, to be made to the judgment debtor.
    This is a Bill of Review from Lake County.
    From the Bill of Review these facts appear:
    The complainants in the original bill, not having been able, by execution at law, to collect their judgment, proceeded in Chancery against Griffith, the judgment debtor, and also against several of his debtors, one of whom was Seymour, one of the complainants in the present suit. Personal service was made upon Seymour, by which he became a party to the suit, but soon afterwards he removed to Iowa, and there, daring the pendency of the suit, took the benefit of the Bankrupt act, and at length, without any notice in the Chancery suit of his bankruptcy, a decree was finally rendered against him, for tbe amount of bis indebtedness to Griffith. This decree he claims is erroneous upon two grounds.

      First, because it was rendered against him after his bankruptcy, upon a claim which had existed before.
    And second, because the decree was for an amount than the claim of the judgment creditors, and it directed the ■ surplus to be paid over to the judgment debtor, or his administrators, who, on the death of Griffith, before the final decree, were made parties to the suit.

      E. Wade, for Complainants in Review.

      Hitchcock &f Wilder, for Defendants.
   Avery, J.

Upon the first question presented in this case, it may be said, that the certificate of bankruptcy, would doubtless have constituted a good defence at any stage of the proceedings, if the bankrupt had chosen to make it, and it admits of as little doubt, that the bankrupt in the present case had it in his power to make the defence. He was a party defendant, and therefore knew or had the opportunity to know all the proceedings in the case; and the final decree against him was not rendered till about two years after he had obtained his certificate. This bankruptcy is not to be likened to the death of a defendant, while proceedings are pending against him, and before a judgment or decree rendered, because, notwithstanding his bankruptcy, he will be liable -for his acts, and upon all his contracts subsequently made, and may bind himself to pay a debt existing before as well as one existing after his bankruptcy. There is no reason, then, why a judgment against him should be held to be erroneous, as in the case of a judgment rendered after the defendant’s death. Accordingly the books treat a suit after the bankruptcy of one of the parties is made to appear in the case, as defective, but not abated. The property and claims of the bankrupt all pass to the assignee, and it may become necessary in the progress of the trial, to make the assignee a party to the suit, either plaintiff or defendant, in order to secure any beneficial results from the This may be important, to the bankrupt himself, to the assignee and the creditors, of whose interests he has the charge, and to other parties in the suit. Story’s Equity Pleadings, sections 329, 849, and notes.

Since, then, a suit is not abated because a party to it has become bankrupt, and since he has still the general right to sue and is liable to be sued, it must follow that a judgment or decree against him may be valid — that it is not of course erroneous. But further this certificate of bankruptcy may be impeached. If obtained by fraud, this fact may be shown, when it will furnish no protection to the party, and can be of no avail to him for any purpose. Fraud in procuring the beneefit of the act, may be proved, whenever the certificate is presented upon the trial of the cause, as well when the claim existed before as after the bankruptcy. The first cause assigned is therefore not sufficient; the decree is not erroneous because of the defendant’s bankruptcy.

The second exception to the decree is well taken. Not in allowing to the judgment creditors who had filed that bill, the right to proceed against all the debtors, though their debts jointly, and even the complainants’ debt alone greatly exceeded the amount required to satisfy the claim. For it could not be known how much could actually be collected by the sheriff from any one of the debtors. But the only object of the bill was, to obtain authority to satisfy the complainants’ demand. There was no case made for collecting the money for the use of the judgment debtor and to be paid over in part or in whole to him. The rights of the judgment debtor and his debtor, as between themselves, were not litigated in the case and could not be settled. The part of the decree which directs the payment of any balance to Griffith’s administrators is erroneous and is reversed.


author: Read, J.

text:
    David S. Silver vs. The State of Ohio
    Perjury cannot be assigned upon an answer in Chancery, unless the bill call for the answer under oath.
    The mere belief oí a witness is not sufficient to warrant the jury in convicting a man charged with a criminal offence.
    This is a Writ of Error to the Court of Common Pleas of Columbiana County.
    The Plaintiff in Error was prosecuted for Perjury. The record, including the bill of exceptions, discloses the following case:
    The indictment consists of three counts, the principal difference in which is, that the substance of the bill and answer are set out more fully in the first than in the other counts, and that the second count alleges that the bill prayed for an answer under oath. An allegation of the materiality of the matter sworn to is inserted in each count. The indictment alleges that on the 3d of August, 1846, Isaac Groff filed his bill in Chancery against the plaintiff in error, stating that he had borrowed several sums of money of said Silver at different times, and gave notes therefor containing illegal interest. That on the 20th March, 1845, he gave Silver a new note, including the previous notes, and a note formerly given by Silver to Samuel Kemble for $129 82, for about $732, with a warrant of attorney to confess judgment —that to the note there were, certain stipulations and conditions changing the body of the note and forming a part of it — ¡-that there was about $300 of usury embraced in said note — that in May, 1846, Silver requested Groff to pay one Dehoff $200 on the note — that he let Dehoff have $200, took Dehoff’s note and transferred it to Silver, as so much paid on said note of $732, and the same was indorsed by Silver on said note — that on the 28th of June, 1846, Groff made another payment of $200 on said note, which in all made $400 paid thereon — that after said last payment of $200 was Silver cut it off, and the condition also of said note — Silver threatened that unless Groff would pay said note with the $200 cut off, he would go into some remote county of the State and enter up judgment for the whole amount, and that said bill charged that said Silver sought to defraud said Groff, and that said condition and the $200 were cut off for that purpose. The indictment further alleges that said Silver, on the 24th of March, 1847, exhibited to Edward Carroll, a Justice of theJPeace in and for said Columbiana county, his written answer to said bill of Isaac Groff, and being duly sworn by said Carroll, deposed that the matters contained in said answer were true to his best knowledge, information and belief; and that the said answer was on the same day filed in the Court of Common Pleas.
    That in said answer, said Silver, among other things, swore that there was no illegal interest included in the note of $792 26 given on settlement, in March, 1845, nor in a note of $470 26, given on a former settlement and included in said $79226 note — that said Groff never paid him any money on said note of $792 26, which is not indorsed thereon, and that more is actually indorsed than ever was paid him, to wit: sixty dollars.
    Among the assignments of perjury are the following:
    1. That Silver well knew and believed there was illegal interest included in said $792 26 note.
    2. That he knew and believed there was usury in said note of 470 26, and
    3. That he knew and believed that Groff had paid him money, which at the time of answering was not indorsed on said note of $792 26.
    On the trial of the cause it appeared that the bill in Chancery and the answer were both lost. Thereupon the State called Anson L. Brewer, the attorney who filed the bill in Chancery against Silver, to prove the contents of the bill, and especially to state whether it called for an apswer under oath. The testimony was objected to, but the objection was overruled and the testimony received. He stated that as the attorney of Groff he had made out a brief of the bill, that he could not state the . - . specific allegations of the bill, nor its language, without reference to his brief, that the brief was made strongly in favor of Groff, that he could only testify with the aid of the brief, that it was his belief the bill required an answer under oath, though he could not so swear positively,' and that the brief of the bill did not show it. There was no other -testimony to prove that the bill called for an answer under oath, but there was other parol testimony as to the contents of the bill, which was also objected to.
    To prove the contents of the answer" the State produced a paper, which Samuel B. McKenzie, the Clerk of the Court, swore was a true copy of the answer made out by him for one of the parties in the suit, before the answer was lost. This testimony was also objected to, and the objection overruled.
    The jury found the defendant guilty, whereupon a motion was submitted for a new trial, upon the ground of error in receiving parol testimony as to the contents of the bill and answer, because there was no proof that the bill called for an answer under oath, because there was not sufficient proof to contradict the answer of Silver, and for other causes; but the Court refused the motion.
    The reasons assigned for reversing the judgment of the Court of Common Pleas, are in substance the same as those urged for a new trial, and also that the indictment is bad, the first and third counts in not averring that the bill called for an answer under oath, and the second count because it does not make that averment in sufficiently specific terms.

      Thomas Ewing, Geo. W. Belden, H. Griswold, Wm. K. Upham, and Wadsworth ip Lee, for Plaintiff in Error,
    cited the following authorities:
    Buller’s Nisi Prius 237; McNally’s Ev. 468; 3 Bac. Ab. Title Ev. 559; 2 Russ, on Crimes, 549; 1 Phil. Ev. 394; Archb. Cr. PI. 122; 2 Stark. Ev. 856 ; Russell’s Crim. Ev. 190 and 759; the State v. Gallimore, 2 Iredell’s Rep. 374; Wheat. Am. Cr. Law, 479; 1 Stark. Ev. 128; 3 Term Ptep. 754 ; 8 East’s Rep. 2844.

      Henry Stanbery, (Attorney General) and John Clark, for Defendant in Error,
    cited the following authorities :
    1 Stark. Ev. 5 Amer. Ed. 155, 254, 282, 619; Arch. Cr. PI. 121, 155; Rex v. Laycock, 19 Eng. C. L. Rep. 405; Hoe v. Perkins, 3 Term Rep. 749; 2 Camp. Rep. 112; State v. Rawls, 2 Nott & McCord’s Rep. 331; Ros. Cr. Ev. 812 ; Ch. Cr. Law. 567; 2 Russ, on Cr. 674; Spragg’s case, 14 East’s Rep. 276 ; Commonwealth v. Ross, 2 Mass. Rep. 373 ; Rex v. Hunter, 19 Eng. Com. L. Rep. 306; Rex v. Chadwick, 25 Eng. Com. L. Rep. 344; Commonwealth v. Snell, 3 Mass. Rep. 82; United States v. Reyburn, 6 Pet. Rep. 325; Ph. Ev. 4 Am. Ed. 1066-7 ; Rex v. Jones, 1 Shaw’s Rep. 327; 2 Cow. Rep. 522; 6 Cow. Rep. 118 ; 25 Eng. Com. L. Rep. 415.
   Read, J.

To constitute perjury the oath or affirmation must be material, or be required by, or have some effect in law.

Under the late act, an affidavit of the truth of an answer in Chancery, has no legal effect, unless the bill expressly calls for such answer on oath. Unless called for on oath, the affidavit of the truth of the answer is wholly immaterial; it neither benefits the respondent or injures the complainant. The answer has the same effect, and nothing more, than it would have had, had it not been sworn to.

Hence, to assign perjury upon an answer in Chancery, the indictment should aver that the bill called for an answer under oath.

The 1st and 3d counts not containing this averment are bad. The 2d count is not liable perhaps to this objection, although the averment is so worded that it is objected, that it is an averment of the finding of the jury, and not the fact in the bill. But treating this count as good, it will not support the ment of the Court.

The motion for a new trial is based upon the admission of improper evidence, and the insufficiency of the evidence, if properly admitted, to warrant the verdict.

The Court admitted parol evidence to prove that the bill and answer had been filed, affil upon proof that the bill and answer had been lost or stolen, admitted a certified copy of the answer sworn to by the clerk of the Court. To prove what the party charged actually did swear to, it is contended that the answer itself should be produced, and that a copy is not sufficient. There is much force in the objection, and it may be well said that no person should be subjected to the hazard of a conviction for perjury, upon the possibility of a mistake in the copy. Cases have been referred to in support of the admissibility of the copy, to show that on indictments for perjury, where the production of the instrument is necessary, proof of its loss, destruction, or that it was in possession of the party, would authorize parol proof of its contents. But in these cases, the evidence is the direct declaration of a witness as to what he knows,-and not the mere correctness of a copy. The case of Rex v. Jones, 1 Shaw. 327, cited in Roscoe’s Criminal Ev. 189, was where the defendant was convicted of perjury upon proof of a copy of an affidavit. But in that case it was in proof that the defendant had made use of such copy in the course of the cause, so there was express proof that the correctness of the copy was recognized by the party charged. But although the principle may be admitted that in criminal cases, copies and parol proof of the contents of instruments, may, under certain circumstances, be admitted in proof to convict of crime, yet it should be offered with great caution and be very narrowly restricted by the Courts. For although the maxim may have been so long in use as to be deemed a mere sound, signifying nothing; it is in truth better that ninety-nine guilty persons should escape than that one innocent man should be convicted. Besides, where the charge is for the making or passing a forged instruparoj pr00f that it existed is not so liable to mistake as a ’ r r of exact words upon which perjury is assigned. The existence of a forged or counterfeit instrument is very readily proved by parol, and the necessity of proving its exact words and contents, results from the rule that in charging forgery the instrument must be specifically described, so that if a mistake should occur in the exact description, it would go not to the substance of the crime, but the rule of strictness required in pleading. And if a man should'actually forge an instrument, the hazard of receiving parol proof as to its exact words, would not be a risk to which the prisoner would be subjected upon the body of the offence, but of a violation of the technical correspondence between charge and proof required in a conviction of crime. The rule that a forged instrument should be strictly set out in an indictment is one of caution and safety, and not the substance of the crime. It prevents the possibility of a prisoner being indicted upon one forged instrument and convicted upon another forgery, or of a second conviction upon the same instrument. But still the hazard by the admission of copies or parol proof in such case is not upon the substance of the charge. But upon assignment for perjury upon words written and falsely sworn to, where the omission of a not or particle of negation, may affirm that to be so which was denied, and make the party swear that to be true which was false, goes to the substance of the crime. The best copyists are liable to err, and a poor copyist or unpracticed hand is almost certain to blunder. Hence, I am disposed to deny that perjury can be assigned or established upon an unsupported copy. But this point is not so decided by a majority of the Court. The same objection would apply to the introduction of a copy of the bill, but this was attempted to be proven by the oath of a witness.

In perjury it requires two witnesses, or at least what is equivalent. There is the direct testimony of Groff, the complainant, but it is a matter of very serious doubt with me whether there is proof which is equivalent to the direct testimony of two witnesses, and to this doubt the prisoner would be entitled.

But upon the point that the bill called for the answer or oath, there is a total failure of proof. Brewer swears, “ It is my belief that the bill called for an answer under oath. It is my belief that it did though the brief does not show it, and as near as I can recollect the brief, it is in substance the same as the bill.”

There is no proof that the bill called for the answer under oath— it is mere unsupported belief.

We therefore reverse the judgment, and award a new trial.


author: Read, J. Avert, J. Birchard, C. J.

text:
    Richard Spader and others vs. Davis B. Lawler.
    A mortgage with a clause to Becure future advances, will be postponed to a second mortgage, placed upon record prior to the making of the future advances, to the extent of such advances.
    This is a Bill of Review reserved in Hamilton County.
    The Bill is filed to reverse a decree of the Supreme Court of Hamilton County, rendered at the April Term, 1844.
    The facts as set forth in the Bill of Review are as follows :
    On the 25th January, 1831, Joseph Bonsai mortgaged to Matthew B. Lawler certain premises in Cincinnati, and the same day the mortgage was recorded, and afterwards transferred to Matthew L. Harbeson.
    On the 6th January, 1832, Bonsai mortgaged the same premises to Davis B. Lawler, the mortgage being recorded on the 11th of the same month, and afterwards transferred to Long-worth and Blachley.
    On the 25th September, 1832, Bonsai again mortgaged the same premises to Davis B. Lawler, and on the 11th October following, the mortgage was recorded.

      On the 8th October, 1836, Bonsai mortgaged the sameprem*ses to ^ complainants, and the mortgage was recorded on the day; and again on the 24th of July, 1838, he made another mortgage to them on the same premises, which was recorded on the 8th October following.
    Longworth and Blachley commenced the original proceedings to foreclose on the mortgage assigned to them — Harbeson, Lawler and complainants, set up their mortgages by way of answer and cross-bill.
    Lawler admits the whole amount secured originally by his mortgage, with interest, has been paid, but says, on the 14th of September, 1841, Bonsai became further indebted to him by a note then made at ninety-five days after date, for the sum of................................. $228
    On the 28th, same month, the further note for........ 440
    On the 22d October, same year, the further note for... 340
    Total, without interest,.............$1,008
    The mortgage contains, in addition to the ordinary defeasance, this clause: " And any other sum, or sums of money, which the said Bonsai may be owing, or indebted in, to the said Lawler, his heirs and assigns.”
    The Superior Court of Cincinnati refused to declare this $1,008 a lien on the premises anterior to complainant’s mortgage — from which Lawler appealed.
    The premises were sold by order of said Court, and produced the sum of............................... $18,222 00
    Which by the Supreme Court was appropriated as follows:
    To Taxes,............................ $ 508 96
    To Costs,.............................. 216 83
    To M. Harbeson, the eldest mortgagee,..... 4,497 27
    To Longworth and Blachley, the second lien, 1,676 34
    To Davis B. Lawler, the third lien,......... 1,389 00
    To the Complainants, the fourth lien,....... 7,961 60
    $18,222 00

      The mortgagor died pending the proceedings, hopelessly in- In Bank. solvent, and the Court found due the complainants on their De%f„erm' mortgages the sum of...................... $13,943 10
    From which deduct......i.............. 7,971 60
    Leaves a balance of................... $ 5,981 50

      Th. J. Strait, for Complainants in Review.
    The error complained of is, that the Court declared the notes given by Bonsai to Lawler after September, 184P, to be better liens on the premises, or the funds produced by the sale thereof, than complainants’ mortgages, made and recorded from three to five years previous. The decree should have allowed Lawler $236 only, and not $1,389.
    The notes do not refer to the mortgage, nor is it pretended that they are renewals, but for advances made at the date of the notes. It is probable they were given for extra interest, as Lawler could hardly have advanced money on so precarious a surety. This, however, is not shown by the record.
    The complainants contend, 1st: That the clause in the mortgage extends only to an indebtedness existing at the time the same was made and recorded, and not to subsequent advances. That such was the intention of the parties, and is the true meaning of the language used.
    The clause cannot be construed to secure subsequent loans, unless it be done by giving to the language more than ordinary power and force. '
    2d. That the Registry act of the 1st June, 1831, somewhat alters the old law of mortgages, by declaring them to take effect from recording.
    If a mortgage has no validity until recorded, and then only from the date of the record, it follows that no greater amount can be secured by the same, than is contained in the defeasance at the date of the record; and though it may provide for future advances, the Registry law is not thereby effected, for such advances must be recorded, or noted on the record of the mort&a&e’ an^ ta^e e^ect only from the date of such record.
    advances cannot have a retrospective operation. Mortgages to third persons of record when they are made, must have the preference, because as to them the subsequent mortgage is the oldest record. Every new loan is a new mortgage, because the latter is only a mere surety and incident to the debt; and the surety can have no existence without the principal. The debt is the principal, and the mortgage the surety ; and a nullity without the debt. It only remains operative while the debt exists, and ends with satisfaction. The mortgage commences with the debt, and can have no effect previous. It ends with the same, and is without effect afterwards.
    A subsequent advancement, as to this, is the creation and beginning of the debt; and though for other purposes the mortgage may exist previous, yet for the purpose of securing the debt, it commences with it, and cannot affect the mortgages of third persons, recorded in the meantime. A different construction of the Registry law would not only be extremely dangerous, but contravene its very provisions, and measureably thwart the object in view in making it. See 11 Ohio Rep. p. 341; 13 do, p. 156; 16 do, p. 537. In the latter case the Court say, “ Mortgages are sureties, to protect either equitable or legal rights. ' They are neither the legal right or the equity, but an incident that attaches to some substantial right or equity. Destroy the debt or right to which the mortgage attaches, and it dies, and without some right to which it can attach, it could never exist. It is in its nature an incident.” If this be true, the mortgage, as to the subsequent advancement, is a nullity until the advance is made; and that being after the recording of the complainants’ mortgages, clearly establishes their priority, and consequently the error in the decree.
    3d. It is insisted that the law of mortgages, as recognized by the Courts of Ohio previous to the act of 1st June, 1831, would not have justified this decree. The strongest case bearing on the point in question, is to be found in 7 Ohio Rep. part first, p. 225, where a'mortgage was made to secure future indorsements, and a judgment lien set up as preferable. The indorsement in that case was made, however, before the ment lien took effect; but subsequent thereto the note matured, was carried into judgment, and another note made and indorsed to raise money to pay the judgment. This subsequent indorsement to pay the first, was in effect a renewal of the note. Besides, the general lien of a judgment does not occupy the same position in equity as a specific lien. Such general lien is a mere legal right, carrying with it no equity. If it does not attach as a legal lien, it does not attach at all. A mere equitable lien, without notice, provided it be elder and specific, is preferable to it.
    The doctrine that junior legal rights prevail over elder equities, can avail nothing in support of this decree, inasmuch as the legal estate had passed from Bonsai to Harbeson,by a mortgage older than Lawler’s. That nothing but the equity of -redemption remained for the operation of either Lawler’s or complainants’ mortgages. Both of these mortgages attached to a mere equity; Lawler’s the eldest for the original debt, but junior as to the subsequent advances, and the complainants’ junior as to the original debt, but elder as to the subsequent advances.
    Many cases are cited by defendant’s counsel, but not one of which comes up to this case. Some peculiar feature is found in each upon which the case turns. What is considered and treated as the subsequent advancement, is either a mere renewal or in some way connected with, or clearly traceable to the original debt. And though mortgages containing clauses providing for subsequent advances are recognized as valid, (and they undoubtedly are so, as between mortgagor and mortgagee,) yet none of the cases go so far as to declare a debt of this kind, standing alone, and in no way connected with' the original debt, a preferable lien to a mortgage recorded before the same was created.
    Notice, in fact, or otherwise, does not operate to change the rights or positions of the parties; for the subsequent mortgage, though operating upon the equity of redemption only, is never-a leSal instrument — is recorded, and takes effect as The lien created by it is a legal, not an equitable lien. The prior mortgagee is as much bound to take notice of it, as any other legal deed. This doctrine of notice, in fact, influenced more or less the opinions delivered in the cases referred to; but the Registry Laws of Ohio dispense with every thing on that subject, by declaring that the deed shall not take effect, or have any validity as a deed, until recorded.

      Walker Kebler, for Defendant.
    The mortgage to Lawler of the 25th September, 1832, secured him for future advances to Bonsai, and although the $ 1008 was advanced to Bonsai after the recording of themortgages to Spader, yet Lawler, by virtue of the clause in his mortgage, to secure future advances, had a lien upon the rhortgaged premises for the amount of the $1008, and interest, as well as for the money advanced at the execution of the mortgage. At all events he is entitled to all advances made under that mortgage, until the receipt of actual notice of subsequent liens.
    What is considered as sufficient to put a person on inquiry is considered as conveying notice; and in this case the debt secured by the mortgage was described in the condition of the deed with sufficient certainty to enable subsequent creditors to ascertain by inquiry aliunde the extent of the incumbrances.
    From various authorities to which we might refer, we subjoin quotations from the most important.
    1 Powell on Mortgages, 544 (Ed. by Coventry page 533.) “ Also if a clause be contained in the first mortgage deed, making it a security for farther sums borrowed, subsequent loans will have relation to, and be taken as a part of the original transaction; and they must be paid before a second mortgage intervening, although the first mortgagee had notice of it at the time of advancing more money, if the second mortgagee had notice of the clause in the first mortgage.”
    4 Kent’s Com. 175. “ So a mortgage or judgment may be taken and held as a security for future advances to the extent of it, when this is a constituent part of the original agreement; and the future advances will be covered by the lien, in preference to the claim under a junior intervening incumbrance, with notice of the agreement.”
    In the present case, the only notice, on either side was that resulting from the recording of the mortgages. Of the clause in Lawler’s mortgage securing future advances, the subsequent mortgagees had notice by the 'record, and so are within the above principle laid down by Powell and Kent, and abundantly supported by adjudged cases.
    In Adams v. Wheeler,. 10 Pick. 199, a mortgage of personalty to secure future indebtedness was held good against creditors, it being a bona fide transaction. The Court say, (page 203) “It was an honest transaction, for valuable consideration ; the conveyance is sufficient in substance; it purports to cover future liabilities; they were in fact incurred, and the property was delivered, before the taking by the defendant.”
    The same doctrine is held in regard to a mortgage of realty, . in Commercial Bank v. Cunningham, 24 Pick. 270. The Court say, (page 274) “ We think it clear that a mortgage made bona fide for the purpose of securing future debts, expected to be contracted in the course of dealings between the parties, is a good and valid security. And so are the authorities.”
    In Hendricks v. Robinson, 2 Johns. Chy.,Rep. 283, the same doctrine was held in regard to a mortgage for chattels. The Chancellor said, (page 307) “ This is not a new doctrine. It depends upon the circumstances of the case, how far a subject pledged for a debt, may be considered as, a security for further loans. This is the amount "of the language of the Master of the Rolls in Jones v. Smith, 2 Ves. jr. 372; and in Demainburg v. Metcalf, 2 Vernon, 698, this extension of the security was admitted.” The same doctrine is held in Brinkerhoff v. Turning, 4 Johns. Chy. Rep. 73 ; and in James v. Morey, 2 Cowen, 246, the Court say, (page 292) “ A mortgage made to secure against future as well as present responsibilities is undoubtedly good.”
    In U. S. v. Hooe, 3 Cranch, 73, the same doctrine was held in regard to a mortgage of realty. Here the mortgage was made “ to save Hooe harmless on account of his having become the security of Fitzgerald to the United States, and on account of notes to be indorsed by Hooe for the accommodation of Fitzgerald.” And the Court say, per Marshall, C. J. “that the property stood bound for future advances, is in itself unexceptionable. It may, indeed, be converted to improper purposes, but it is not positively inadmissible. It is frequent for a person who expects to become more considerably indebted, to mortgage property to his creditor, as a security for debts to be contracted.” And this doctrine was reiterated in Shirras v. Cary, 7 Cranch, 34, and afterwards in Conard v. the Atlantic Insurance Co. 1 Peters, 386.
    Not to tire the Court with further quotations, we cite in Pennsylvania, 5 Binney, 589; 1 Watts, 135 ; 6 Watts, 57; and in Connecticut, 7 Conn. 387 ; 8 Conn. 219; 9 Conn. 286.
    With this array of authorities, and a former decision of this Court upon the precise point, we suppose the result cannot be doubtful.
   Read, J.

Under the doctrine of mortgages,, in Ohio, which makes the recording a part of the execution, the question may well arise whether a clause in a mortgage securing future advances is of any effect whatever. There is no such thing with us as an equitable mortgage. It must be a legal statutory mortgage or it is nothing. Where the doctrine controlling mortgages proceeds upon the principle that it is contrary to good faith to take a subsequent lien, with the knowledge of a prior equitable incumbrance, and that equity will therefore protect the latter, it is perfectly consistent to hold that a clause in a moitgage to secure future advances is valid. But this whole doctrine proceeds upon the ground of notice. B.ut in our State it matters not whether the subsequent mortgagee have notice not, provided he can have his mortgage first recorded. Of what does a mortgage with a clause for future advances advise a subsequent mortagee ? It does not advise him that any such advance has been made. True, it advises him that advances were contemplated upon the faith of the mortgage. It may be said this is sufficient to put him upon inquiry,. and enable him to ascertain the amount actually secured or advanced ■ at the time. But the old doctrine of mortgages went so far as to hold that subsequent loans shall have relation back to the original transaction, .and that a second intervening mortgage shall be postponed, although the first mortgagee had notice of it af the time of advancing more money, if the second mortagee had notice of the clause in the first mortgage to secure further advances.

But the doctrine of mortgages has come to be placed upon something like a rational foundation, as a mere security, and with us, that as among creditors, all have equal equities to be paid or secured. Equity will not aid one in preference to another, and to prevent this the statute was passed which converts a ■ mortgage into a mere legal security. Hence under our statute, as a mortgage is a mere legal instrument, and has no vitality or existence until it is placed upon record as notice to all the world, from which time it is effective against all prior as well as subsequent creditors, it would seem nothing more than reasonable that it should advise the public of the only really material thing for them to know — what is the amount it actually secures. What would be the legal nature of a mortgage placed upon record to secure all moneys hereafter to be advanced ? It would not be a mortgage because it would have nothing to secure. If nothing was ever advanced, no one would pretend that it was a mortgage. A mortgage is a security for the payment of money. If there was no money due there could be nothing to secure, and consequently no mortgage. If it be called a mortgage, what sort of a mortgage — a sleeping mort8aSe — a contingent mortgage, or a mortgage in abeyance— is, something which in legal contemplation or expectation might by the happening of some future event become a mortgage. But what difference does it make by having a present named sum secured, if it can grow, increase or enlarge to any extent under the clause of future advances ? Such a mortgage might well be denominated a mortgage in esse — without the possibility of issue extinct — as no man can tell what progeny of numerous debts it might subsequently gather under its motherly folds. The truth is, I hold the mortgage should specify an existing debt which it is designed to secure, and that once executed by the parties, that they cannot by a clause of continuando, make it into a new mortgage every time a new debt may be subsequently contracted between them. If parties are compelled to make a new mortgage every time they contract a new debt, there can be no conflict, and no door opened for doubt or fraud. This I believe to be the necessary result of our doctrine of mortgages, although I am not permitted to declare it to be the law, and it is not necessary in this case. But it is perfectly clear, and the unanimous opinion of the Court, that when there is a mortgage executed prior to the subsequent advances under the clause, to secure future advances, that the second mortagee shall take precedence as to such subsequent advances. The second mortgage is notice to the first mortgagee, and if he advances he does so at his peril.

We all agree that the clause for future advances, if allowed any legal effect whatever, should be narrowly guarded and restricted. Such clause can only be tolerated in any sense upon the ground that it advises subsequent mortgagees or purchasers that future advances were contemplated, and enables him by inquiry to ascertain the extent of the incumbrance.

In the case under consideration, years after Spader’s mortgages were recorded, Lawler makes advances. Under such circumstances, the law is perfectly clear, that such advances must be postponed to the prior mortgages.

We therefore overrule the demurrer to the bill and reyerse the decree to the extent of error claimed.

Avert, J.

dissenting. I dissent from the opinion just declared by a majority of the Court. It reverses a judgment of the Supreme Court upon the circuit, rendered in 1844, which was decided, as I believe, in conformity with long established principles, and ought to be sustained.

The mortgage before that Court, and which is now before us in the present bill of review, had been given to secure certain specified notes, and contained a provision, following after the description of the notes, in thesé words: “ and in case any of the above described notes should be renewed, then such renewed notes respectively, and any other sum or sums of money, which the said Bonsai may be owing or indebted, unto the said Bonsai.” The mortgage deed was not to become void, but to remain in full force until payment should be made of the sums of money therein specified. The Court upon the circuit construed the words employed in this provision, to embrace future advances, and I do not see how any other construction can fairly be given to them. -

By the very terms of the mortgage, the payment is to be future, of all the several amounts secured; the deed is to be void only upon the condition that the notes of Bonsai therein described, the notes to be renewed, and any other sums which said Bonsai may.be owing, shall thereafter be paid. That the words admit of the interpretation here contended for, I do not expect to hear denied, and that such is not the more natural interpretation of the language, cannot, I think, be claimed. “ Sums of money that may be owing,” would seem to look to the future, and unless restrained by some word as now owing, or by something else in the deed to show that a present debt only was contemplated, would apply to a future indebtedness.

The Court on the circuit decided also that a mortgage given to secure future advances is a valid mortgage, and sufficient to protect such advances. In this it will be hard to prove that they are not sustained by the authorities, both American and English. The principle is sound whether applied to advances or future liabilities under a bond of indemnity. The cases cited are ample and full to the. point.

Our statute relating to deeds, (Swan’s, 265,) does not change the original form of the mortgage. It speaks of it as it does of the deed, neither attempting to limit or enlarge, or in any way to define the meaning of either teiyn. And there is nothing peculiar in our business or circumstances, which should lead the Court to deny the validity in this State, of a mortgage deed to protect future advances or liabilities.

But I do not understand the majority of the Court to deny that such a mortgage, is binding between the parties to the instrument, and proper as between them, to become the foundation for proceedings in Chancery and for a decree of foreclosure or sale.

But why restrict this* mortgage tp its effect upon the parties alone, when that must deprive it of nearly all its practical value ? If mortgages are to continue in general use, as one of the forms of security, they must be of force against those who have knowledge of their existence, as well as against the parties executing them.

It seems I think to be feared that giving full force to such a mortgage, will in some way affect the construction heretofore given to the Registry act. If such an instrument as I have been considering is a mortgage, and valid as such between the parties, then when it is placed upon the record, it is a valid mortgage recorded; and constructive notice, not to be gainsayed, is thereby given to all, of the existence of such incumbrance. The terms of the mortgage make the land liable as between the parties. The only object of recording, is to give notice of this fact to others. Uncertainty as to'the amount actually covered by the mortgage, at any given time, can be no sufficient reason for refusing to support such a mortgage, because the same objection will lie against all other mortgages. The record very seldom furnishes any evidence of the true amount of the debt. Let the person then who wishes to loan money, or secure other liabilities on the mortgaged premises, take measures to ascertain, as in other cases, the extent of the incumbrance at the time he makes his loan.

The decisión to be pronounced in this case, may perhaps go so far as to protect all advances made after the execution and up to the time when the second mortgage is recorded. If so, it will be because the record of this first mortgage is constructive notice to all persons, of such subsequent advances. In that case, to do equal justice to these two < mortgagees, the subsequent ought to give actual notice to' the' prior mortgagee, and put him upon his guard against incurring liabilities for the mortgagor, as he had been formerly doing with safety. Unless this be done the second mortgagee should record and hold his mortgage subject to all advances made by the first, till he" gets actual knowledge of the second incumbrance. The second mortgagee, if he acts with the common prudence, will, unless he trusts to the honesty of the mortgagor, cause the record to be examined, and then, besides constructive notice, he will obtain actual knowledge of the incumbrance. To enable him to break off the agreement, upon which the parties to the first had been before acting in good faith, it is not too much to-require him to give information to the person who, otherwise by continuing to repose upon the agreement, might suffer a loss. The record points out the first mortgagee, but he has no means of knowing' who is about taking a second incumbrance, that is to supercede his. He may indeed- go to the recorder’s office to transact the business with his debtor, make-the advance there, and preserve evidence of the exact time when the advance is made, and thus avoid the effect of a subsequent mortgage.

If the difference between the majority of the Court and myself shall be reduced to this, to wit, whether actual notice is to be required from either encumbrancer, the question becomes one of less interest than I at first supposed. But if so, what necessity is there, or principle, that requires the first mortgage, which once had been valid, and notice to all the world, to be destr0yed by the mere recording of a subsequent mortgage ? If there not any difference of moment, there is, then, the less reason for reversing the decree rendered by the Supreme Court some four or five years ago, which settled the rights of these parties, as it seems to me, correctly. How far that decree may have operated as a precedent for similar decrees since rendered, or how far business men may have regulated their conduct by it, I do not know. But this individual case, itself, will cause a considerable sui^ to change hands; and I can see no sufficient reason for disturbing the old relations of the parties, or for establishing the principle settled by this decision.

Birchard, C. J.

In this case, I hold that the placing upon record of Spader’s mortgage, was notice to Lawler; and that the advance of a thousand and eight .dollars, by him, made some five years afterwards, upon his elder mortgage, is to be -Taken as an advance made with notice of Spader’s lien. Beyond this, the case requires no opinion, and I give none. My conclusion on this point, which is decisive of the case, is drawn from the statute, (Swan, 266,) which declares that all mortgages shall be recorded in the office, of the county recorder, and shall take effect from the time when the same are recorded. Spader’s mortgage took effect in 1836, and its effect was to hold and bind the precise interest which Bonsai then had in the . premises. So far as Lawler’s mortgage was concerned, the estate was at' that time bound only for the balance then due to him. As to his future and subsequent advances, he ought, in equity and law, to be considered as acquiring a subsequent interest, which in one sense relates back to the date of his mortgage, but yet has no such relation back as will defeat the intermediately acquired rights of Spader. There is no reason why the record should not be notice to him, as well as to every other man.

Hitchcock, J„ concurred in the above.