text:
    Lessee of Wilkins’ Heirs v. Huse and Swindler.
    Under the act of 30th of January, 1822, “providing for the remission of penalties, and for the sale of land for taxes,” the sale will be valid, although the judgment under which it is made is informal and erroneous.
    Where the amount of costs in the judgment is left blank, and afterwards taxed by the clerk, and included in tjie order of sale, that, if incorrect, will not invalidate the sale.
    Ejectment. From Licking. Upon trial to the jury, it was ad-•mitted that the plaintiff’s evidence made out a sufficient title in his ^lessors ; and the only questions raised were upon the defendant’s title, depending upon the validity of a deed from the auditor of Licking county to William Wilson, on a sale for taxes, under the act for the remission of penalties and for the sale of land for taxes, passed the 30th Jan. 1822. To sustain their title the defendants offered the following evidence.
    1. An entry in the journal of the court of Common Pleas of Licking, of December term, 1823, viz. “ Stephen M’Dougal, county auditor for the county of Licking, appeared in court in pursuance of an act -entitled ‘an act providing for the remission of penalties and for the sale of land for taxes,’ and moves the court for judgment in the name of the state of Ohio, against John S. Barnes, for the sum of thirteen dollars seventy-nine cents and three mills, due from the year 1810 to 'the year 1823 inclusive, on fifty acres of land, situate,” &e. The minutes then show a great number of similar entries against other per,-sons ; and amongst others the following, under which the defendants ■claim: “ Against John Wilkins for the sum of sixhundred and twelve dollars seventy-one cents, being the tax, interest and penalty due on nineteen hundred and fifty acres of land, being all the north half of S. 2, -T.'2, in R. 11, except fifty acres situate in the northwest corner of said section.” Then follow several other similar motions against others, and the entries close in the following words . “ being the persons in whose names said tax, interest and penalties are charged, and the said Stephen M’Dougal having produced to the court legal and satisfactory proof, and filed the same of record, that the notice required by the statute aforesaid has been duly given in the Wanderer, a nowspaper printed in said county of Licking and having general circulation therein, and also that the requisitions of the statute aforesaid have in all things been complied with; and the several persons aforesaid having been severally three times so'emnly called to come into court and show cause, if any they have or can show, why judgment should not be rendered against them for the tax, interest and penalties aforesaid, came not, hut made default. Thereupon it is considered by the court that judj ment be rendered, and judgment accordingly is rendered against the said several persons aforesaid for the tax, interest, and penalties so by them respectively due and owing as aforesaid, together with cost taxed at ; and it is ordered by the court, that the auditor of the county of Licking aforesaid, proceed to sell the aforesaid several tracts of land, or so much thereof as will satisfy the several judgments aforesaid, in pursuance of the statute aforesaid.”

      *2. Certified lists, purporting to be a list of the judgments,made out by the clerk of the court, nnder seal, and certified as follows : “ I, Amos H. Coffee, clerk of the court of Common Pleas of the county of Licking, in the state of Ohio, do certify that the foregoing is an accurate list of the judgments rendered hy said court, at their December torm, A. D. 1823, in pursuance of “ an act entitled an act for the remission of penalties and for the sale of land for taxes.” And I do also further certify that it was ordered by said court, that the county auditor for tho county aforesaid, should proceed to sell the aforesaid several tracts of land, or so much of them respectively, as should be sufficient to satisfy the aforesaid judgments, in pursuance of the provisions of the statute aforesaid. In testimony, &e. Amos H. Coffee, clerk.” The list contains ninety-three eases, numbered consecutively, and containing, 1. The name of the delinquent. 2. The number of aeres and description, range, township, section, lot, or quarter. 3. The year for which the tax was due. 4. Amount. 5. Costs. 6. Remarks. At number eighty-two on said list, is the following, under the head or caption which is common to all on the list :■ — -

    3. The original lists of sales made hy the county auditor, with the following certificate at the foot of it. “ To the honorable court of Common Pleas of Licking, now sitting : I, Stephen M’Dougal, auditor for said county, do hereby certify that the foregoing is a correct list of all the sales made by me on the 1st, 2d, and 3d days of June, 1824, to satisfy the several judgments entered in the court of Common Pleas-for said county, against the proprietors of the several tracts of land described in said list, together with the purchasers’ names, and the-quantity sold, and description of the part sold, and that I have in every respect complied with the several acts of the legislature of the state of Ohio on that subject, in making the aforesaid sales, and herewith present my records for the inspection of the court, that the legal - ity of said sales may be enquired into.” “ Stephen M'DougaL” The-list contains thirty-five acres, described as follows :

    *4. An entry on the Common Pleas journal of June term, 1824, as follows : “ On motion of Stephen M’Dougal, auditor of the county of Licking, and it appearing to the satisfaction of the court, that a list of the sales for taxes made by said auditor, previous to this term of this court, has been duly filed in the clerk’s office of this court, and plats and surveys of - the county surveyor, of the following tracts of’ land so sold by said auditor, made as the law directs, and duly filed with the clerk thereof, to wit : Six hundred and seventy acres in the 13th range,” etc. The entry, after stating that a number of tracts of land were sold, and amongst them the following, the tract claimed by defendants : “ One thousand nine hundred and fifty acres of land, in range 11, township and section 2, being the north half of said section, except fifty acres taken out of the north-west corner of said section, charged in the name of John Wilkins, and sold to William Wilson.” After several other sales are described the entry closes as follows : “ And on examination, the court being satisfied that the sales aforesaid have been made according to the provisions of the ‘ act providing; for the remission of penalties and the sale of lands for taxes,’ it is-ordered by the court, that the anditor aforesaid, make to the purchaser or purchasers respectively, deeds for the said several tracts, in pursuance of the act aforesaid, agreeably to the surveys thereof.”
    5. A deed from M’Dougal, auditor, to Wm. Wilson, the purchaser of tract sold in the name of John Wilkins.
    This closed the evidence. The court instructed the jury it was insufficient to sustain the defence. The plaintiff took a verdict; and, the defendant no.w moves for a new trial.
    P. Wilcox, H. Stanberry, and Smythe, for plaintiff.
    W. and J. R. Stanberry, for defendants.
   By the Court,

Hitchcock, Judge.

The law under which the premises in controversy were sold, is the act of June 30, 1822, entitled •“ an act for the remission of penalties and for the sale of lands for taxes,” 2 Ch. St. 121Í3. This statute authorized the sale of such lands •only as had been taxed prior to 1820, and the taxes remained unpaid. From 1815, up to 1820, there had- been no sale of land for taxes, but such sales had been from time to time suspended. In the mean time, taxes, penalties, and interest had been accumulating, where the same were not paid, and necessity seemed to require of the general assembly, some special legislation upon the subject. In 1820, a very * material change was made in the system of taxation, but the law then enacted made no ample provision, as to the disposition of taxes which had been previously assessed upon land, and remained unpaid. Consequently the act of January 20, 1822, was passed. The first section prescribes that all taxes, interest, and penalties which have accrued, and became due upon lands, and remain unpaid, prior to the year 1820, shall be collected in the manner hereinafter prescribed.”

In the second section it is provided that if the arrearages of such taxes, together with the interest, shall be paid previous to the 10th ■day of December then next, in.such case all penalties which accrued previous to 1820, shall be remitted.

In the fifth section it is made the duty of the county auditor, after having given notice as required in the section, “ to appear at the court •of Common Pleas of his proper county, according to the terms of said notice, and demand a judgment, in all eases where he shall be satisfied that such taxes, penalties, and interest may have been correctly and legally charged, and still remain unpaid.” This judgment is to be •demanded in the name of the state of Ohio. Any person or persons interested are authorized to appear and contest the claim, and pro•vision is made that there may be a trial by jury. But “if no person appears to contest the claim of the state as aforesaid, it shall bo the duty of said court, on motion, to render judgment for the amount appearing to be due, with costs that may have accrued, which shall be recorded by the clerk of said court, from which judgment there shall he no appeal or writ of error to a superior court.”

By the sixth section it is made the duty of the clerk of the court, to “ make out a list of such judgment or judgments under the seal of said court, with an order of court for the sale of such lands, to satisfy such judgm.ent or judgments, and deliver the same to said auditor, who shall proceed to sell the lands charged with said judgments,” in the ■manner subsequently pointed out in the law.

After having received the list, the auditor, having given notice of the time and place of sale, by advertisement in a newspaper having general circulation in the county where the lands lie, for thirty days, is required to sell the lands or so much thereof as may be necessary, to such person or persons as will pay the judgment and costs, for the-least number of acres.

Having made sale, it is required of the auditor that he return a list of such sales, “and if on examination said court shall be satisfied * that the sales have been made according to the provisions of this act, they shall order the. auditor to make a deed to the purchaser for the tract so sold,” etc.; and in the ninth section it is declared, that “the said deed shall convey to the purchaser all the title, either in law or equity, which the owner had in the lands described in said deed, at any time after the taxes, interest, and penalty, or cither, for which the same was sold, began to accrue, and shall be received in all courts in this state and elsewhere, as prima facie evidence of good title to-the lands therein mentioned, nor shall the title conveyed by such deed be invalidated or affected by the reversal of such judgment, or any error therein, or by any error in any proceedings previous to the rendition of such judgment, relating to the charging or collecting of" taxes on such land, or the obtaining of such judgment.”

It may be thought that the provisions of this law are somewhat severe, and we have been warned by counsel of the necessity of giving it a rigid and strict construction. In giving it a construction, I apprehend, however, that we must be governed by the ordinary rules in such cases. Because it is penal in some of its provisions, we can not therefore distort its evident meaning, and thus defeat the intention of the legislature. It must be recollected that this law was not intended to operate upon those who had punctually contributed to the support of the government, but upon those who had pertinaciously withheld suMi contributions — upon those who had long neglected and refused to pay the taxes levied upon their lands for the general welfare. And it, ought, too, to be recollected, that previous and up to the time of the passage of this law, an opinion was prevalent that a sale of lands for taxes could not be sustained in this state, an opinion which had gained' much strength in consequence of the decisions of our courts upon the subject. The prevalence of this opinion was well known to the members of the general assembly, and there can be no doubt, that this fact had much influence in the enactment of the law. This was one of the-great evils intended to be remedied.

It is true that in carrying out the provisions of this law, individuals-. may be deprived of their lands without receiving an adequate compensation. But to avoid this evil, if an evil, under the circumstances, it may be called, it would be highly improper for this court to disregard those provisions. The legislature having said that from a judgment of the court of Corrm.w. Pleas under this act, there shall be no appeal or writ of error to Tiny superior court,” it is beyond the power of this ■court to sustain appeal or writ of error. And the same legislature having prescribed that the title conveyed by the ^auditor’s deed shall not “ be invalidated or affected by the reversal of such judgment or any error therein, or by any error in any proceedings previous to the rendition of any such judgment, relating to the charging or collecting of taws on such lands, or the obtaining of such judgment,” it is our duty to give effect to this requisition.

In giving’ the judgment this effect, however, no new principle is introduced. It is in substantial accordance with the effect given to a judgment rendered according to the ordinary course of the common law. Th 0 reversal of such judgment will not defeat the title of a purchaser under execution, which title accrued previous to the reversal. And the judgment itself can not, so long as it remains in force, be impepehed collaterally, unless it be absolutely void. But it must be remembered, that a judgment rendered by a court not having jurisdiction of the subject matter, is absolutely void ; and under such judgment no title can be acquired. This principle will apply as well to judgments under this statute, as to those rendered in other eases.

In order to sustain the title of a purchaser under this statute, it is necessary in the first place that there should be a judgment, rendered by a court having jurisdiction of the case. If there be such a judgment, the court enquiring into the validity of the title, are precluded from going behind it. In its effects it is conclusive upon the rights of .■all concerned. No informality, no irregularity, no error can vitiate it.

No “error in any proceedings previous” to its rendition, “ relating to the charging or collecting of taxes on such lands, or the obtaining ■of any such judgment,” can defeat the title acquired under it.

In the second place, it is necessary that there should have been a list of judgments certified by the clerk of the court in which the judgments were rendered, under the seal of the court, directed to the auditor of the county, with an order from the court to sell the lands therein specified in satisfaction of the judgments ; which list vests as .-much power in the county auditor to sell, as would a levari facias in the sheriff of the county, with this difference, however, that the sheriff can not sell without appraisement, while the auditor can.

In the third place, it is necessary that there should have been a sale, in pursuance of notice previously given, as required in the law, and a return of this sale to the court by which it was ordered, for its examination and confirmation.

In the fourth place, there must have been a confirmation and approval of t.his sale by the court, and an order entered, that a deed be executed to the purchaser.

*And in the fifth place, this deed must have been executed.

The first question for determination, then, in the case under consideration, is, whether there was a judgment.

The evidence introduced on the trial shows, that at the December term of the court .of Common Pleas, 1823, the auditor appeared and moved the court for judgment in the name of the state of Ohio, against John Wilkins, for the sum of six hundred and twelve dollars and seventy-one cents, being the tax, interest, and penalty, on one thousand nine hundred and fifty acres of land, being all the north half of section two, township two, range eleven, except fifty acres, situate in the north west corner of said section. At the same time, and in the same motion was included an application for similar judgments against nine ty-two other individuals, for the taxes, penalties, and interest due on as many separate and distinct tracts of land. The auditor at the same time proved to the court, that the notice required by law had been given, and the persons against whom the motion was made, were three times severally called, and defaulted. “ Thereupon it is considered by the court, that judgment be rendered, and judgment accordingly is rendered against the said several persons aforesaid, for the tax, interest, and penalties, so by them respectively due, and owing as aforesaid, together with costs taxed at $ .” And it was further ordered by the court, that the auditor peoceed to sell the aforesaid several tracts of land, or so much thereof, as will satisfy the several judgments aforesaid, in pursuance of the statute.

Here is a judgment and order of sale. The judgment is informal and perhaps erroneous, but is it void ? There is no controversy but that the court had jurisdiction of the subject matter, and that legal notice that application for judgment would be made, had been given. It is a judgment in favor of the state of Ohio, agrinst the individuals named in the record, or rather there are separate judgments in favor •of the state of Ohio, against those individuals respectively. Several objections are made to its validity, however, which it is proper to consider.

It is objected that it is not rendered for any specific sum. The-sum due for taxes, interest, and penalties, from Wilkins, is specified! in the motion, and for the sums so due and owing, the judgment is rendered. Taking the whole record together, there can be n'o mistake as to the amount. It is as certain as it would have been, had that amount been specified in the judgment itself. It is the same in effect as would be the judgment upon a verdict of a jury assessing- * damages, that the plaintiff recover the damages so assessed, without repeating the amount in the formal part of the judgment itself. The verdict and the judgment taken together, show the amount' recovered.

Again it is objected, that this is nota judgment against Wilkins-alone, but a joint judgment against him and several others. That, there is some informality in this respect is apparent. It would have been better, had the record shewn a separate motion and judgment in-each particular case. But there is not a joint judgment against several individuals. .The record shows that the motion made was for judgments against several individuals, for the sums from them respectively due, and that judgments were rendered accordingly. There-were separate judgments against the separate delinquents.

Again it is objected, that the amount of costs is not specified in the judgment, but left in blank. If this be a defect, which we are by no-means prepared to admit, it is at most but an error, and as before shown, errors do not vitiate.

After a careful examination, we have come to the conclusion, that here was a judgment within the meaning and intent of the statute, and such a judgment as is sufficient to protect the title of a purchaser under it.

The second enquiry is, whether a list of judgments was made out and certified under the seal of the court, by tbe clerk, and delivered to-the auditor, directing him to sell, &c. Upon this point there is no controversy. Such list was made out, and in that list, the judgment against Wilkins is stated to be for taxes, interest, and penalties, amounting to six hundred and twelve dollars and seventy-one cents, and costs taxed at one dollar and seventy five cents.

The next enquiry is, whether the land was sold in pursuance of notice given according to law, and was a return of this sale made to the court of Common Pleas for confirmation. That the land was sold; and a return of the sale made, is not controverted. And the court, whose duty it was to examine the whole matter say, they are “ satisfied that the sales had been made according to the provisions of the act,” under which they were made. And this is sufficient to satisfy this court that notice must have been given.

It is objected to the sale, however, that the sum charged upon the land, and for which it was sold, was six hundred and fourteen dollars and forty-six cents, whereas the judgment rendered was only for six hundred and twelve dollars and seventy-one cents. The judgment was for the tax, interest, and penalty, amounting to six hundred and twelve dollars and seventy-one cents, together with costs taxed at * $ In the order of sale, the costs are included, taxed at one dollar and seventy five cents, making the whole six hundred and fourteen dollars and seventy-six cents, and for this the land was sold. It is said that the clerk had no right to tax these costs, and thus include them in the order. We are not prepared to assent to this position of counsel. Asa matter of fact, we know that judgments are ordinarily entered in this way, and the costs are subsequently taxed by the clerks and included in executions. Admitting the practice to have been originally incorrect, it has prevailed too long to be now interfered with. But by our system it seems to be the duty of the clerk to tax all cost, and for this he is entitled by the statute to receive a compensation. It would seem, too, that this is to be done after judgment, as the statute provides, “ that for drawing cost bill, after final judgment or decree,” the clerk shall receive thirty five cents. 29 O. L. 222. Let this be as it may, however, so long as it does not appear that the costs exceed the amount, which ought to be included in the judgment, we do not feel disposed to declare a sale void on this account.

The fourth enquiry is, whether tbe sale made by the auditor was approved and confirmed by the court, and a deed ordered to be made to the purchaser. That the sale was thus approved and confirmed, and a deed ordered to be made tr «he purchaser in pursuance thereof, is apparent from the evidence in the case, and it is equally clear that a deed was made in pursuance of the order of court. ■

Upon the whole, we are satisfied that the' court mistook the law in the instructions given to the jury, and a new trial must be awarded, the costs to abide the event of the suit.

New trial awarded.


source: Caselaw Access Project

author: Wood, Judge.

license: Public Domain

text:
    Lessee of John and Jacob Barger v. James and David Jackson.
    “Whore a tract of land is divided by a county line, leaving part in each county, each portion should, under the act of 30th Jan. 1822, be listed for taxation in the county whore it lies.
    A judgment against the whole tract is void, and the sale, confirmation, and deed, under such void judgment, of no validity.
    Ejectment. Prom Pike. Upon trial a verdict was taken for the plaintiff, subject to the opinion of the court. The plaintiff claims, two hundred acres of land to which his lessors claim title through a deed *from the auditor of Pike, under a sale for taxes,, on a judgment rendered in 1823, under the act entitled “ an act providing for the remission of penalties, and for the sale of lands for taxes,” passed January 30, 1822. This tract was divided by the county line, • between Pike and Highland. The agreed facts seek a construction of a part of that law, and will be sufficiently detailed in the opinion of the court.
    R. Douglass and B. G-. Leonard, for plaintiff.
    T. Scott and Son, and H. Massie, for defendants.
   By the Court,

Wood, Judge.

The 3d section of the act of the 30th of January, 1822, 2 Ch. St. 1216, provides, that the state auditor shall, on or before the 1st of May, 1822, transmit to the county auditors a list of the land within respective counties, on which arrearages ■of taxes were charged previous to 1820, and which remained unpaid, with a statement of corrections. This the county auditor is required to compare with the duplicates in his office, correct, and advertise a corrected list of the delinquent lands, and certify to the state auditor his corrections, from which duplicates were required to be made out and forwarded to the county auditor. The fifth section requires the county auditor to advertise the list so received, six weeks, in a newspaper of general circulation in the county where the land lies, of his intention to move the next court of Common Pleas for judgment, for the amouut of the tax, interest and penalty, against the person charged with the tax, and at the court to appear and demand judgment. The 6th section requires the'clerk to certify a list of said judgments under seal to the auditor. The 7th section requires the auditor to advertise in the county where the land lies, and proceed to sell.

In the case before us we need look only to the plaintiff’s title, for he must recover on the strength of that, if at all. He must show the provisions of the act of 1822, substantially complied with, for, after the repeated decisions of this court, I need hardly add, that a tax title is regarded stricti juris. The county line severs the tract in dispute, leaving part in Pike, and part in Highland county. The judgment ■was taken in Pike, against the whole tract, and the whole was advertised, sold and conveyed in that county. The question is, can this sale be sustained ? The statute seems to us to make each county a separate district for the collection of taxes. The duplicate is transmitted to the auditor of the county where the land lies, who is to advertise in a paper in that county, take judgment, make sale, and obtain a confirmation there. All the proceedings are required to be in the * county of the land. It seems to us very clear, that any proceeding in relation ■to the land and tax in any other than the county where it is situated, is void. The judgment in Pike against land in Highland county is itself a nullity, and embracing a subject, the land in Highland, not within the jurisdiction of the court. Being void for part, it is so for the whole, for a judgment is an entire thing. The charge upon the duplicate, the foundation of the judgment, the notice, sale, and deed, are all illegal and of no effect as founded upon a void iudgment. The plaintiff then is not entitled to recover

Nónsuit ordered.


author: Lane, C. J.

text:
    Joseph C. Bingham v. David C. Doane. and William N. Mumford v. David C. Doane.
    The grant of a privilege to construct a wharf or dock in a public highway, does not authorize the erection of a warehouse.
    'Where the proprietor of lands adjoining a public highway, owns to its centre, he may maintain trespass for a direct injury upon it; but where his land extends only to the line of the highway, case is his only remedy.
    The first suit is case, and the second trespass. Prom Wood. The ■cases depend upon the same title, and the two suits are brought to .avoid the risk of defeat, by the form of action.
    By the treaty of Brownstown, in 1808, Swan’s Land Law, 484, the Indians, then possessing the lands in the north western part of our ¡state, granted to the United States a tract of land, for a road one hundred and twenty feet wide, from the Maumee Rapids, to the Connecticut Western Reserve, and all theland within a mile of said road on each side, for the purpose of establishing settlements. In 1823, Congress, to enable the state to construct this road, granted to the-state a tract of land one hundred and twenty feet wide, whereon to-locate it, and likewise the land lying a mile wide upon each side-Swan’s L. L. 152.
    The road was surveyed and laid out, and a superintendent appointed to effect its construction,,under the authority of the state. The line of its projection, commenced at the western line of the Connecticut Reserve, and extended to the shore of the Maumee River at Perrysburgh. By the Ohio act of 1824, 22 O. L L. 128, the superintendent-was authorized to enter into contracts for making * the road, and. likewise to sell the land adjoining thereto, upon certain specified conditions. By the act of 1824, the 23 0. L. 33, the superintendent was-further directed to make surveys and sales of lands belonging to the state in the reservation at the Maumee Rapids. By the 4th section of' that act he was “ authorized to convey to such persons as he should-deem proper, the privilege of constructing docks and wharves at the-point where the road terminates at the Maumee River, to be constructed on each side of the road, in such manner as that said road shall in norespec be incommoded in consequence.” On the 17th of March, 1825, the superintendent by deed conveyed to Seth Doane, the privilege of constructing docks and wharves at the point of termination, within the one hundred and twenty feet wide, leaving thirty-three feet in thecentre unobstructed. This privilege is now held by the defendant.
    On the 1st of January, 1827, the state conveyed to John Hollister, lot 774, which lies on the Maumee River, adjoining the one hundred and twenty feet set apart for the road. He had full knowledge of' Doane’s interests, at the time he took this deed. Bingham, one of the plaintiffs, held Hollister’s interest in this lot from 2nd February, 1836, until the 1st June, 1836 ; when Mumford, the other plaintiff; acquired Bingham’s title. In November, 1835, the defendant, Doane, began the erection of a warehouse upon that portion of the strip of one hundred and twenty feet wide, which lies outside of the thirty-three'feet in the centre.
    Bingham brings the action on the case against him, counting upon, the erection of the warehouse in 1834, in the street in front of his lot. Mumford brings trespass for the erection of the warehouse, and for his continuance since. The cases are submitted upon agreed facts.
    Stetson, and W. Silliman, for plaintiffs, made two points.
    1. That Ohio had no authority to permit obstructions to a road by buildings within its limits. 2. That she has not authorized such obstruction. They cite the several statutes, and 5 Ohio, 410 ; 6 Ohio, 298.
    J. C. Spink, and Coffinbury, for the defendant,
    insisted that neither of these suits could be maintained; even if the defendant’s ■.grant was imperfect. 8 Ohio, 38 ; 6 Ohio; 298. The plaintiff having neither title nor possession, can not maintain trespass. The state having parted with its title to Doane, had none to convey to Hollisterj and she did not convey to him any riparian rights. 15 Johns. 454; 5 Wheat. 374. As to the action on the case, the grant to Ohio was full to lay out and open the road, without restriction *as to any proper structure for its improvement and preservation. The grant to Doane does not impair this nor impugn the ordinance of 1787, or the decision in 5 Ohio, 140 ; See also Dane’s Ab. 149 ; 1 Co. Lit. 121, b.
   By the Court,

Lane, C. J.

The important question in this case is, whether Doane acquired a right to erect a warehouse, within the one hundred and twenty feet wide, granted for the road ? It is plain that all the laws and documents point to, and recognize this as set apart for a road.” The act of Congress conveys it to the state of Ohio, as -a tract whereon “ to locate a road.” The act of Ohio directs the commissioners to locate and survey said road one hundred and twenty feet ■“ wide,” between the terminating points. Under these circumstances, ■we shall look for some strongly decisive act of the state, before we admit their intention to devote it to any other use. We find none. The superintendent was appointed in 1824, to contract for the construction of the road, and to make sales of the adjoining lands. The next year, his discretion is enlarged as to the forms of survey of the lands belonging to the state within the reservations, but no intention is expressed, and no power is given, to affect the line of the road, or contract the rights of the public to it as a public highway. The privilege of docking and wharfing, are in no degree inconsistent, but in •furtherance of the object. The point of termination is a navigable river. A wharf is the extension of the road into the river. A dock •is a place for vessels, either excavated from the land, or surrounded by wharves. Both, in this situation, are subservient to the public, by facilitating the transit of passengers and burthens between the land iand the water, and thus both contribute to the object sought for, by the establishment of the highway. When placed in public highways, ¿although individuals may have interests in them, they are intrinsically public establishments, and a part of the highway, as much as turnpikes and toll bridges, and held under the" control of public regulation or of’ law. But a warehouse has none of these properties. Although convenient for public, accommodation, it is held by an individual for his private benefit only. It is not a part of a pier ; it is not devoted to a public use; it aids not, but obstructs the right of passage. It is,, therefore, expressly forbidden by the law, directing the wharf or dock to be so constructed, that the road shall in no respects be incommoded-in consequence.

We next enquire, if the plaintiffs have such rights as to recover in. these forms of action ? It is admitted that for an injury merely to * the public, no individual can support an action. But the-owner of a lot adjoining a road has a specific interest in the privilege of the road itself. Ordinarily his land extends to its centre, as it is presumed to be taken from his land ; and in those cases, where he does own the soil of the road, he has an interest in the incorporeal right itself. Its existence generally contributes to the enjoyment of his lot,, and confers additional value upon it, and any act of another, which, impairs that'value or interferes with that enjoyment, may be the subject of a suit. To sustain an action of trespass, the plaintiff must have a present interest in possession in the lands. Where all highways run over land of another, the creation of the easement does not extinguish all the interest of the owner ; he still claims all not incompatible with the right of passing. For direct trespasses, as for the cutting of shade trees, or the taking of stone or gravel, he may sue.. The owner of the adjoining land is presumed to own the highway, because it is presumed the land was taken from him; he is, therefore, permitted to recover for injuries like those in trespass. But where the title exhibited is such, as shows the owner of the adjoining land had no title to the land covered by the road, as is the case before us, he has no interest which is the subject of trespass. The easement — • the privilege of the road — the advantage it confers on his land, is his, but not the road itself. The right lies not in livery but in grant; is incorporeal only, and not the subject of this form of action. The suit, therefore, of Mumford v. Doane, is misconceived, and judgment must be entered for the defendant. The action on the case is not subject to this objection. It is adapted to recover for the injury sustained by Bingham, during the few months in which he held the property. This case will be remanded to try his right.

Judgment against Mumford — the other case remanded.


author: G-rimke, Judge.

text:
    Lessee of John Livingston v. William McDonald.
    Where an officer taking an acknowledgment of deed, describes himself as an officer whom the law authorizes to take it, he need not state the fact in his certificate, that he was so authorized.
    A recorder’s copy of a deed, thereon which is a certificate of an associate . judge in Pennsylvania, of proof having been made before him of its execution, in August, 1800, is competent evidenoe, under the act of 1831.
    Ejectment. From Butler. Upon trial before the jury, the plaintiff, amongst other evidenoe, offered a certified copy of a deed from * John Oleve Symmes to James Henry, dated the 10th of July, 1797, and attested by three witnesses. The deed was proven by one of the subscribing witnesses on the 8th of August, 1800, before Reynold Keen, who certifies that he is one of the associate judges of the court of Common Pleas of the city and county of Philadelphia. It was recorded in Hamilton county the 28th of August, 1800, while Butler constituted a part of that county. This deed was ■ overruled by the court and a verdict taken for the defendant. The plaintiff now moves for a new trial because the deed was improperly rejected.
    Milliken, Bebb, and G. J. Smith, for the plaintiff.
    The deed was rejected because the official character of Keen was not sufficiently shown. The deed was proven in Pennsylvania according to the laws of that state then in force; and the judge’s certificate of his official character, is prima facie evidence of it. Read’s Dig. 89 ; 1 Ch. St. 168; 2 Ohio, 56 ; This deed having been recorded under the act of 20th of Jan. 1802, was, by that act, made valid. 1 Ch. St. 342, 3 ; 1 Kent. C. 456.
    J. Woods, contra, submitted no argument.
   By the court,

G-rimke, Judge.

The 8th section of the act establishing a recorder’s office, passed the 18lh of June, 1795, declares that deeds shall be ackdowledged by one of the grantors, or proved by one or more of the subscribing witnesses before one of the judges of the general court, or one of the justices of the court of Common Pleas of the county where the land lies. And the act of the 20th of Jan. 1802, gives effect to all deeds which had been acknowledged or proved according to the laws of the state where the acknowledgment or proof was taken. This deed was acknowledged according to the laws of Pennsylvania; and, indeed, the law of June, 1795, under which the deed was executed, was itself adopted from the Pennsylvania code. The grgund of rejecting the deed, was simply that it did not appear from the certificate of the judge that he was an officer authorized to take the acknowledgment or proof. In Lessee of Johnston v. Haines, 2 Ohio, 55, it was decided, that where the person taking the acknowledgment of a deed, gives himself no official character in his certificate or subscription, the certificate is insufficient, and the registry of the deed irregular. In that ease it was not expressed in the acknowledgment, that the person taking it was an officer of any kind, and the name subscribed was without any official character. But in the present instance it does appear from the certificate, that the person taking proof of execution, was one of the associate judges of the county and city of Philadelphia. It was not necessary that the judge should say, in so many words, that he was authorized to take proof, when he stated a fact from which that inference is, irresistibly made. He states his official character, and the laws of Pennsylvania gave a person invested with that official character authority to take the acknowledgment or proof. No objection was taken to the deed in consequence of its being a copy from the recorder’s office, nor could such objection be sustained, as the statute of 1831, makes such copies evidence. The deed, therefore, was improperly rejected, and a new trial must be awarded.

Néw trial granted.


author: Hitchcock, Judge.

text:
    Lessee of the Heirs of James Thompson v. John Gotham.
    Under the grant by Connecticut, to the sufferers in the revolutionary war, where the original sufferer was dead, the share for his losses passed to his heirs by purchase, not by descent.
    To sustain a collector’s deed for land sold for taxes, proof must be given to show that notice and the other preliminary steps have been duly taken ; the recital in the deed is not proof of such facts.
    The statute of limitations does not affect claims to land until after the Indian title has been extinguished.
    Partition of land held in common, will bind the owner of an interest although other persons may have represented his right >n the partition proceedings.

      Quere. If the territorial j urisdiction of Connecticut extended over the Westera Reserve until her deed of cession in 1800.

      Ejectmemt for a part of section 4. T. 6, R. 20. From Huron. ■Upon the trial, the plaintiffs proved themselves to be the heirs of James Thompson, late of the state of Connecticut, deceased, and claimed title to the land in controversy under a grant from that state; made on the 10th day of May, 1792. Thompson died in 1785, seven years before this grant was made.
    The defendants then introduced copies of records from a court of probate in Connecticut, from which it appeared that Guy Richards was appointed administrator on the estate of Thompson, and that in 1797, he was authorized to sell the real estate of said Thompson. It ■further appeared from the return of sales by the said Richards, that the interest of Thompson in the fire lands, so called, estimated at two hundred and ninety-eight acres, was sold to Nathaniel Richards, *on the 28th day of August, 1798. Two days after the-sale, the administrator conveyed his interest to Nathaniel Richards, and he re-conveyed the same to Guy Richards, the administrator, on the same •day.
    The defendant next gave in evidence an act of the general assembly of the state of Ohio, of the 15th April, 1803, incorporating the company commonly called the fire land company, by the name of “ the proprietors of the half million acres of lands, lying south of lake Erie, called sufferer’s land.” And also the minutes and records of said ■ company, proving the assessment of a tax of twenty-five cents on the pound, original loss, for the purposes named in the act of incorporation, the appointment of William Richards, collector of said fax, for New London, and the qualification of said Richards, as collector. In connection with this record, the defendant introduced a deed from William Richards, collector, to Guy Richards, bearing date the 25th -of August, 1805, which purports to convey the interest therein described, as being the rights of the proprietors of that loss, which was set in the original grant to James Thompson, of three hundred and fifty pounds and sevqn pence. This deed recites the act of Ohio, incorporating the company, the assessment of the tax of twenty-five cents on the poitnd, the notice of such assessment, the default of payment, the order of the company for sale in default of payment, the sale to Guy Richards as the highest bidder, and that the deed was made in conformity to the order of the company, for the sale of tha rights therein named.
    In the partition of the fire lands, so called, this right was -,aet to Richards in the section including the land in controversy.

      The defendant further gave in evidence a deed from Guy’ Richards for the premises, to Isaac Tillotson, dated October, 1809. A like deed from Tillotson to Asa Sandford, dated March, 1819. A like from Asa to Giles Sandford, dated July, 1819, and from Giles Sanford to the defendant, dated November, 1833
    The defendant further proved that he and those under whom he claimed, had been in possession of the premises since 1809.
    To rebut this last evidence, testimony was introduced by the plaintiff to show that his lessors had never been in the state of Ohio.
    The court charged the jury that the grant of the state of Connecticut, being subsequent to the death of James Thompson, no title to-the land ever vested in him ; that it was a donation to his heirs, and not subject to the payment of his debts. That the sale by the administrator, was of the interest of James Thompson, in the land, and as-James Thompson had no interest, the grantee could take ^nothing by the administrator’s deed. That the tax title was subject to the same infirmity, and that it was the duty of the jury to return a verdict for the plaintiff, which they did for eight acres. The defendant now moves for a new trial, because the court erred in declaring the administrator’s and collector’s deeds void.
    BoALT-and Worcester, for the motion,
    insisted that the court erred in holding that the administrator’s deed did not convey title. That although the grant was made by the state of Connecticut after the death of .James Thompson, and of course vested the title in his heirs, by its terms, yet as it was made to compensate a loss sustained by their ancestor, they must be holden as taking by descent, and not. by purchase. And to this point they cited Bond v. Swearingen, 1 Ohio, 395. They further insisted, that at the time of the sale, the premises in controversy were within the jurisdictional limits of the-state of Connecticut, and so continued until 1800, when that state authorized her governor to cede the jurisdiction of that state in the-Western Reserve, to the United States, in pursuance of an act of Congress, which authorized the President to quit claim, for the use of persons holding under Connecticut, all the right, title and interest, to-the soil of the Western Reserve. That the land being thus within the jurisdiction of Connecticut, her courts, in pursuance of her laws, might with propriety order its sale, and that sales made in pursuance, of such order, would be good and valid, and convey title. To sustain these positions, they argued at great length and with much ability. They further insisted, that as the lands were within the jurisdiction of Connecticut, the statute of limitations of that state must be operative, and that by this statute the rights of the lessors of the plaintiff would be barred. They claimed that the sale for taxes was in pursuance of the law incorporating the fire land company, and of course-by this sale a title was vested in G-uy Richards, by the collector's deed.
    Hopkins; for the plaintiff,
    insisted that the heirs of Thompson took by purchase and not by descent; and claimed that this principle had-been decided by this court in a number of cases in Huron county. Of these he referred to the Lessee of Garden and Huntington v. Wm. Winthrop, and Stephen Holt and wife v. John Miller. Admitting, then, the jurisdiction of the state of Connecticut, as claimed by the defendant’s counsel, the purchaser from the administrator of Thompson could acquire no interest in these lands, because Thompson himself had no interest. He insisted th?/t Richards acquired no title under the sale for taxes, because there was no proof that legal notice-had been given of the sale, or that the other requisitions of the law had been complied with, and cited 3 Ohio, 232; 5 Ohio, 368 ; 4 Wheat. 77 ; 9 Cr. 64.
   By the Court,

Hitchcock, Judge.

In deciding this ease, in the view we take of it, it will be unnecessary to determine whether the-state of Connecticut had jurisdiction over the Connecticut Western Reserve, prior to the act of cession of 1800, or not. This question does not appear to have been agitated upon t-he circuit, but for the-purposes of this case the jurisdiction seems to have heen admitted.

The court charged the jury that the administrator’s deed conveyed, nothing to the grantee, because the intestate had no interest in the land.

Whether the opinion of the court thus expressed was in conformity with law, must depend upon the construction of the grant of the state-of Connecticut. This grant was made by the legislature of that state, by resolution bearing date May 10th, 1792. Swan’s L. Laws, 81. To-its proper understanding it is necessary to take the preamble in connection with the resolution, and it maybe useful to quote both the preamble and resolution. It is as follows : ‘‘ Upon the memorial of the towns of Fairfield and Norwalk, showing to this assembly, that many of the inhabitants of said towns suffered great losses by the devastations of the enemy, during the late war, praying a compensation therefor ; and in a report of a committee appointed by this assembly, at. their sessions held at Hartford, in May, 1791, to ascertain from doeuments in the public offices, the amount of the losses of the said •memorialists, and others, under similar circumstances, which have been estimated conformably to acts of this legislature, being such as were ■ occasioned by the incursions of the enemy during the late war, distinguishing the losses of buildings and necessary furniture, from those of other articles, by said documents or otherwise ; and also, to ascertain the advancements which have been made to the sufferers, by ■abatement of taxes or otherwise ; and report the same, with their opinion relative to the ways and means of affording further relief, as per memorial and report on file. ■

“ Resolved by this assembly, that there hereby is, released and quit claimed to the sufferers hereafter( named, or their legal representatives, where they are dead, and to their heirs and assigns forev'er, five hundred thousand acres of the lands belonging to this state, lying * west of the state of Pennsylvania,-and bounding northerly on the shores of Lake Erie, beginning at the west line of said land, and -extending eastward, to a line running northerly and southerly, parallel to the east line of said tract of land belonging to this state, and extending the whole width of said lands, and easterly so far as to ■make said quantity of five hundred thousand acres of land, exclusive ■of any lands within said bounds, if any be, which may have been heretofore granted, to be divided to and among said’ sufferers, and their legal representatives, where they are dead, in proportion to the ■several sums annexed to their names, as follows in the annexed list.”

Then follows a list of "names, with the amount of loss sustained by •each. In this list, is the name of James Thompson, of New London, ■and the amount of loss annexed to his name is three hundred and fifty pounds and seven pence.

There can be no mistake as to the persons to whom this grant is made. It is the sufferers” themselves, where they are living, or to “ their legal representatives, where they are dead.” At the time it was made, James Thompson had been dead some years,-and the grant is as effectually to his heirs as if they had been specifically named therein. It is made to them, not as a matter of right, but as a donation to compensate for losses sustained by their father in the war of •the revolution, from the eo.mmon enemy. And in order to ascertain ■the extent of their interest in the land granted, reference must be had •to the amount of the losses thus sustained.

It is not insisted by the defendant’s counsel, but that the grant of ■■these lands was in fact to the heirs of Thompson, but it is claimed that they took them by descent and not by purchase; and that consequently they were properly liable to the payment of the debts of the.ancestor, from whom they descended, and could he sold for the pay-ment of those debts. The case of the Lessee of Bond v. Swearingen, 1 Ohio, 395, is cited as an authority. That was a case relative to-land within the Virginia military district, and it was decided by the court, that where lands have been located and surveyed by the ancestor, and subsequently patented to his heirs, the heirs* took by descent. By an entry and survey, the lands are appropriated. And when such-survey is made and recorded, every thing has been done that can be by the holder of the wu-rant, to secure to himself a legal title. He has-a perfect equity, and has a claim, noLupon the bounty, but upon the justice of the government, for a patent. And it is right and proper that if the patent is withholden during his life, and * subsequently emanates to his heirs, they should be held as taking by descent. The same principle applies where lands are purchased from the government of the United States, and the purchase money is paid. In-such case the purchaser can, as a ■ matter of right, demand from the ■ government a patent. By the purchase, the land is specifically appropriated, and whether patented or not. an interest in it will descend to* the heirs of the purchaser, in ease of his death.

But the case before the court is entirely different. James Thompson undoubtedly had a claim upon the liberality of the government of ’ Connecticut, if not upon its justice. But how that claim should be satisfied, whether by money, by abatement of taxes, or otherwise, was not determined during his life. There was no specific appropriation* of land for its satisfaction. Whether any satisfaction should be made, and in what way, does not appear to have been fully settled until the.passage of the resolution, by which the grant was made, and that was-long after his death. He never had any interest in these lands whicheou d- descend to his heirs. The grant then was a donation to those - heirs; they took by purchase, and the land granted could not be dispo-ed of to pay the debts of their ancestor. The deed, therefore, of-the administrator of Thompson, did in fact convey nothing, because-Thompson himself had no interest in tho land.

The court next charged tho jury that the deed from the collector of taxes was subject to the same infirmity with the deed from the administrator. Excop ion is taken to this part of the charge.

Ln saying that the collector’s deed is subject to the same infirmity with the administrator’s, I understand the court as meaning that it. -was equally defective to convey title. In order to sustain a title under .a sale for taxes, it is not sufficient to produce the collector’s deed. There must he evidence to show that the tax has been levied, that the steps required by law to authorize a sale have been taken, and that the person making the deed had authority to make it. It must be remembered that the tax for which the interest in this land was sold, was not a tax levied by the state of Ohio, but by a corporation created by the authority of the state of Ohio. Of course we can not resort to ■our public statutes to ascertain whether a tax was or was not levied. Nor can we resort to those statutes as pointing out the mode of collection. The law creating the corporation, is that which is to govern.

The evidence exhibited in this ease to sustain the deed of the collector, was a copy of the records of the fire land company, showing that by an act of the company of the 9th of February, 1804, a tax of * twenty-five cents on the pound of original loss, was assessed by the company, that William Richards was appointed a collector of the company, and that on the 10th of the same month, he was duly .sworn to discharge the duties of his office. This evidence shows that ■ a tax was assessed or levied, and we have no doubt that it was such a tax as the company had a right to assess or levy under its act of incorporation. In the 7th section of the act of incorporation, 1 Swan’s L. L. 107, it is enacted, that it shall be the duty of the collector or collectors, to execute all warrants to him or them directed by the treasurer, for collection of any tax or taxes laid by said board of directors. And said collector or collectors, shall give due and reason•able notice of the time when said tax or taxes are or shall be payable to the treasurer of said directors, by advertising the same at least three weeks successively, in at least one newspaper published in each of the counties of Fairfield, New Haven, and New London, in said state of Connecticut, and by giving any further notice in, or without said state of Connecticut, as said directors may order, and that said tax or taxes shall be assessed on the original rights or losses, in pro-portion to each person’s respective share or loss, as set in said grant: Provided, That said lands only shall be subject to the payment of said tax or taxes; and that when any tax or taxes, after the time limited •to the payment thereof, remains unpaid, it shall be the further duty of •said collector or collectors, to give notice of time and place, in manner aforesaid, that he shall proceed to sell, at public vendue, so much of the original loss and right of such delinquent proprietor, as will be ¡sufficient to pay said tax or taxes, and all reasonable charges arising thereon ; said notice to be at least sixty days previous to any sale being made by any collector.” There was no proof before the court, except what is contained in the collector’s deed, that any such notice as is required in this section was ever given. The recital in the deed is not sufficient proof of the fact. It should be proven by evidence extrinsic. To hold a sale for taxes valid, where there is this defect of proof, would be contravening the uniform decisions of this court upon the same subject matter. There being this defect of proof, the court decided correctly that the collector’s deed was not operative to convey title.

It is argued in favor of the motion for a new trial, that as these lands were within the jurisdiction of the state of Connecticut at the time they were sold at administrator’s sale, that the statute of limitations of that state, must, from the time of that sale,' have commenced running in favor of the purchaser, and that by that statute the claim * of the lessors of the plaintiff would be barred. It is a sufficient answer to this position of the counsel to say, that the statute of limitation operates in favor of a person in possession ; that the Indians were in possession of this land until the 4th day of July, 1805, when their title was extinguished by treaty, Swan’s L. L. 482, and that there is no evidence in the case to show that the defendant or those under whom he claims, were ever in-the actual possession until 1809.

Another objection to the verdict is, that it includes too much land. It is insisted by counsel, that if the heirs of James Thompson were not divested of their interest in the lands granted by the state of Connecticut, either by the deed made by the administrator of Thompson, -or by the collector of taxes, they must take the same in common with all the proprietors, regardless of partitions, which have been made ; ■and of course that in the lot of ground which is now in controversy, their proportion, instead of being eight acres, as found by the verdict, would be far less than one-fourth of an acre. This position assumed by counsel can not be sustained. In the second section of the act incorporating “ the owners and proprietors of the half million acres of land, lying south of Lake Erie,” Swan’s L. L. 106, the management of the affairs of the company is committed to a board of directors, to consist of nine persons, and among other things to be done by said ■directors, it is made their duty to adopt and prosecute measures “ to survey and locate the same,” that is the lands, into townships and otherwise, and to make an exact partition thereof, to and among the •owners and proprietors thereof, and their assigns, in proportion to the amount of loss or losses by them respectively owned, at the time of making such partition, in such way and manner as said board of directors shall direct.” In pursuance of this authority, the land was surveyed into townships and quarter townships or sections, the losses were classified, and partition made. In this partition a just proportion of land was set to each right or loss. The proceedings of the company were all recorded in books kept by their clerk, as well in the-transaction of other business as in making partition. By an act of the general assembly of the 20th of February, 1812, Swan’s L. L. 109, it is dii ected that these books of record be kept by the recorder of deeds of Huron county, that they “ be and remain a part and parcel of the records of said county, and that any certified copies therefrom, which-may hereafter be made by the recorder of said county, may be used- and read as legal evidence, in all courts of record, or elsewhere.”

In this'partition, the loss set to James Thompson in the grant of the * state of Connecticut, was classified as belonging to Guy Richards, he claiming as “ assignee” of this interest, in consequence-of the purchase at administrator’s and collector’s sales, and the land in controversy was in part set off to him in satisfaction of this interest. The land having been granted to the heirs of Thompson, and the title-still remaining in them, they may enforce their claim to it, either in/ his hands or in the hands of those who hold under him. In fact •when we remember that this partition was made more than thirty years since ; that it was just and fair ; that lands have been sold and settled with reference to, and in conformity with it; it may be well doubted' whether a court under any circumstances, could be justified in interfering with it.

New trial refused


author: Wood, J.

text:
    Philip C. Pendleton v. James Galloway and others.
    A hill in equity to impeach a decree or judgment for fraud, must set forth the-circumstances which constitute the fraud, particularly and precisely.
    Such a bill will not he sustained after an acquiescence in the decree for twenty-live years.
    Bill in Chancery. From Greene. The complainants allege, among other things, that at the August term of the Supreme Court iu 1833, they obtained a decree against one John Campbell, a non-resident* and Bobert Bogges a resident of Greene county, for five thousand two hundred and fifty-eight dollars, ninety-four cents, with interest and costs, and siso for the control of a judgment before recovered by said Campbell against said Bogges, for two thousand five hundred and three dollars, forty-five cents, in the Circuit court of the United States for the district of Ohio, to apply so much as might be made on the judgment, in part satisfaction of the decree. The complainant states that he has since ascertained that Bogges is wholly insolvent, so that nothing can be made of him ; that Campbell never resided in Ohio, and has no known property in the state, except certain entries and surveys of Virginia military lands, in the name of Archibald Campbell, for about six thousand acres, part of Warrant, No. 3001, issued to his father Bichard Campbell, for military services ; that John Campbell failed in Virginia before 1808, involving the complainant in a large amount, in part embraced in the aforesaid decree. That about 1808, John Campbell entered the army, was marched into the southwest and never returned, having, before he left, on the 8th of July, *1808, executed a deed to the complainant and one Newkirk, conveying all his interest, as heir at law, in said surveys, and a claim against said Bogges, to idemnify him against his said liabilities : that in Feb. 1800, Bichard Campbell, jr. another son and heir of Campbell, the warrant holder, conveyed these surveys to one John Baker, intended only as a mortgage to secure a debt due him, and Baker having willed all his lands to his son and two daughters, soon after died, and the heirs and devisees of Baker, in May, 1813, filed their bill in the Common Pleas of Greene county against John Campbell and others, setting forth this conveyance, but falsely and fraudulently representing it as the bona fide absolute deed of Bichard, jr. who was duly authorized by the other heirs to make it; and that after it was received, it was sent to Hamilton county for record, but by accident was lost. They prayed in that bill to be quieted in their title to the surveys. The complainant alleges that John Campbell and others had no notice in fact of that suit, the service being only perfected by advertisement; that the allegations in'their bill were false and fraudulent; Bichard having no authority from the other heirs to convey, and the conveyance itself being conditional and not absolute as alleged; and therefore prays that said decree may be set aside as false and fraudulent; the land subjected to his debt in the hands of Galloway and others who purchased with full notice.

      The defendants answer, denying fraud, and setting up the decree in Baker’s case. They- demur to the residue of the complainant’s bill.
    Wm. Ellsberry, for the plaintiff,
    cited 2 Bin. 455 ; 4 Ohio, 458 ; Sug. Vend. 303 ; 1 Har. Ch. 146; Rob. on Fr. 521; 1 Pr. Wms. 735, 737 ; 2 Pr. Wms. 73, 4, 5; 3 Pr. Wms. 104, 111, 371; 1 Johns, Ch. 194; 4 Johns. Ch. 202; 5 Johns. Ch. 69 ; 1 Ves. 287 ; 4 Ohio, 492.
    Odlin,' Schenck, and Gr. J. Smith, for the defendants,
    cited, Coop. Eq. 96, 217; 1 Johns. Ch. 194; 4 Johns. Ch. 202 ; 5 Johns. Ch. 69 ; 2 Pr. Wms. 111, 371; 1 Ves. 287; 4 Ohio, 492 : 5 Johns. 566; 4 Kent. C. 454, e.
   By the court,

Wood, J.

Two questions are made in this case. 1. Is the fraud set up in the bill of the kind required to impeach a decree ; and if so, is it sufficiently set forth? 2. Can a decree be impeached for fraud after the lapse of more than twenty-five years ?

The first proposition, in .our view, is of no importance in deciding this case, because the second is decisive of it. It is, however, a rule ^applicable as well to decrees in equity as to judgments at law, that when a bill is filed to impeach either on the ground of fraud, the particular and pricise circumstances which constitute the fraud must be stated : the acts done, or the words spoken which constitute the fraud must be set forth. Expressio falsi vel suppressso veri, or some fault, design, or wicked and evil intention, must be clearly set out in the bill, to which the defendant is called to answer : it will not do to impute mere laches to impeach a solemn adjudication of a court of justice. 4 Ohio, 492 ; Coop. Eq. 217 ; 1 Johns. Ch. 194. The only charge in this bill is, that Baker’s heirs, in their suit against Campbell and others to quiet their title, did not set out a collateral writing given to Richard Campbell, showing his deed intended as a mortgage, without charging their knowledge that such writing was within their control. If such writing existed, it was matter of defence, and should have come from the other side.

2. The decree sought to be impeached was rendered more than twenty-five years since, and the long acquiescence of the complainants, and the too obvious staleness of the claim, should not call into activity the energies of a court of equity for its relief. Lord Camden, in Smith v. Clay, 3 Brown Ch. 640, said a court of equity is never active to relieve, when a party has slept on his rights, and acquiesced for a great length of time. Where reasonable diligence is wanting, this court is passive and does nothing. Laches and negligence are always discountenanced, and therefore from the beginning there was always a limitation to suits in this court. Lord North, in Fitler v. Lord Macclesfield, declared, that though there was no limitation to a bill of review, yet after twenty-two years he would not review a decree; that interest reipublicce, ut sit finis litium, was a maxim that had always prevailed in equity, without an act of parliament. A court of equity is governed by the circumstances of the case before it. 2 Story Eq. 739. We think the circumstances disclosed in this case, require of us ■to sustain the demurrer to the bill.

Bill dismissed.


text:
    Almon Sortwell v. Simeon B. Jewett and others.
    .An assignment made by an insolvent debtor residing abroad, of land in Ohio, will not be superseded by a subsequent foreign attachment.
    Bill in Chancery. From Stark. This is a bill of interpleader, seeking to distribute the surplus moneys produced by the sale of * mortgaged premises. The lands were mortgaged by Davis to Strong, in May, 1836. They were sold by the plaintiff, as master commissioner in chancery, and after paying the mortgage money and certain other incumbrances against them, the sum of $12,501, is left for distribution.
    In October, 1836, Davis, living in New York, made a general assignment of his property to Jewett, Mor ley and Field, in trust to sell and pay his debts. The land covered by the mortgage, was conveyed by a separate deed to Jewett, to be held for this trust, and ■Jewett and Field, who accepted the trust, claim the money in the hands of the master.
    In February,-1837, the land was seized by process of foreign attachment, issuing from the Common Pleas of Starke county, and the creditors, who have obtained judgment under that attachment, are ■entitled to the money, unless it belongs to the trust.
    A. W. Loomis, Starkweather, and Jarvis, for the attaching creditors, contended :
    1. That the deed from Davis to Jewett, being without consideration, was void as against Davis’ creditors; and is not executed according to law. 2. That Davis’ assignment, made in New York, is inoperative in Ohio, against judgment creditors. 3. The assignment is not executed according to the laws of Ohio, and does not describe the land sold by the plaintiff. 4. The assignment has never been recorded in Ohio. 5. Morley never accepted the trust, or, if so, has severed it by prosecuting interests in conflict with it; and being concluded by the decree of the Common Pleas, it is incompetent for Jewett and Field alone to appeal. They cite the following authorities : 6 Johns. 42; 2 Fonb. Eq. 81; 2 Ohio, 234; 3 Ohio, 488; 2 Kent C. 406, 7, 8; 20 Johns. 266 ; 2 Wheat. 364; 13 Mass. 146 ; 5 Greanl. 245 ; 15 Pick. 18 ; 3 Pick. 128.
    C. Hitchcock, and Wilder, on the same side,
    cited 5 Ohio, 293; 11 Wend. 189, 240; 7 Ohio, 2 pt. 247; 1 Bin. 518; 2 Johns. Ch. 43; 2 Ves. Sen. 628: 2 Pr. Wms. 203: 2 Ohio, 235, 237; 3 Ohio, 448; 6 N. Hamp. 85; 6 Mass. 336 ; 8 Greanl. 418 ; 2 Fairf. 41 ; 1 Monroe, 105 ; 9 Cowen, 543 ; 6 Johns. 39 ; 13 Mass. 146 ; Kirby, 313 ; 6 Bin. 353 ; 1 Har. and McH. 236; 2 Hayn. 24 ; 14 Martin, 93 ; 5 Cr. 298 ; 12 Wheat. 213 ; 5 Greanl. 245 ; 20 Johns. 240 ; 4 Johns. Ch. 471 ; 15 Pick, 18; Story Con. L. 346, 348, 9 ; 2 Story Eq. 302.
    * Griswold, and Grant, for the assignees of Davis, insisted that the deed of assignment executed in New York, according to the laws of that state, and describing the land sold, creating a trust for the-laudable purpose of paying debts, was operative here. 29 O. L. 348 ; 2 Kent C. 532 ; 7 Ohio, 2 pt. 247 ; 8 Ohio, 390; 33 O. L. 13 ; 36 O. L. 71; 9 Cow. 69; 6 Johns. Ch. 4l7; 2 Kent C. 532, 406, 7; 4 Johns. Ch. 460, 471; 1 Am. Com. L. 588 ; 20 Johns. 229, 251, 238, 266; 6 Bin. 353, 361; 2 Blk. C. 285, 6 ; Story C. L. 336, 352, 382 ; 6 Pet. Con. 530 , 1 Paige, 236 ; 3 Wend. 358; 1 Green’s N. J. 326; 9 Conn. 487 : 8 Ohio, 390 ; 1 Bin. 502; 7 Ohio, 2 pt. 246 ; 5 Ohio, 180, 293; 2 Bin. 182; 5 Greanl. 245; Doug. 170; 4 T. R. 182; 1 Ohio, 218.
    H. R. Selden, of New York, for the same parties,
    cited, 4 Conn. 207 ; 4 Cruise Dig. 470; 4 Mass. 357 ; 1 Vern. 100 ; 7 J. Ch. 217, 223; 2 Cow. 118, 124, 126 ; 1 Bibb. 277 ; 5 Rand. 577; 1 Wash. 162 ; 5 J. Ch. 82, 3; 3 Lit. 57 ; 6 Har. and Johns. 485 ; 3 Dess. 12 ; 4 Dess. 20, 380; 3 Conn. 402; 3 Johns. 492; 14 Johns. 210; Wright, 755; 16 Mass. 223 ; 1 McCord’s Ch. 130; 2 Atk. 155, 6; 11 Wend. 241, 8 ; 7 Pet. 614; 1 Har. and Johns. 687; 6 Pet. 400 ; 3 Wend. 550; 3 Ohio, 488; 1 Pet. 366.
   By the Court,

Lane, C. J.

The question fai.rly arises between these elaimants, whether an assignment of lands in Ohio, by a foreign debtor, and to be partly executed abroad, shall be postponed by a subsequent .•attachment, at the instance of one of our citizens. Our court has heretofore decided, in two reported cases, 2 Ohio, 235; 3 Ohio, 488, that a transfer of legal title to land can not he made by the operation •of foreign insolvent laws. In the last ease, although the assignment by law was accompanied by some act of the party, it was held that nothing passed, even in equity, without a formal deed, because the •assignment of the party was a part of the law dependent upon it, and liable to be superseded with it. These cases adopt the very obvious principle, that a law has no effect upon land, except within its territorial jurisdiction; and are in conformity with the general current of American authorities. The effect of bankruptcy upon the personality, is noc settled with so much uniformity. See cases collected in 2 Kent. C. 406 ; Story Con. L. 337.

The states of Maine, Massachusetts, and Louisiana, seem to go much farther than this, and declare that even a voluntary assignment * by a foreign insolvent debtor, will be superseded by a subsequent attachment. Most, or perhaps all, the eases show the assignment to be void, by the law of the jurisdiction in which the property •is situated ; yet an effort is made to place their conclusions upon some other basis than this — upon some rule of policy, that a state should •preserve and prefer the rights of its own citizens, and exempt them from the laws and acts of citizens of other states. Neither the expediency nor the justice of this discrimination are admitted, especially as between citizens of the United States. The natural right of the owner of property, to dispose of it at his pleasure, depends on no localities, and is subject to no restrictions, except that of conformity •with the law of the states. A compliance with these forms should avail equally to the stranger as the citizen; for the law which confers the authority to hold, should not impair the capacity to enjoy ; and the distinction seems not only invidious, and too much in the spirit of meting out justice in different measures, but inconsistent with the •rights secured by the constitution. Such doctrines are plainly adopted by those to whom we are wont to look either for precedent or authority. There is such a decided case from South Carolina; they are said •to be followed in France, and Holland, and Scotland, atid England, and are countenanced by the opinions of Kaimes, and Parsons, and Story, and Kent, It is unnecessary for us, however, to look beyond our own reports ; in the last of which, 3 Ohio, 489, such a conveyance is recognized as good.

I need not examine by what law personality is regulated when held by a stranger : the present suit relates to land only. Its owner might lawfully dispose of it, although it'lies abroad. It is only necessary to se.e if he adopted the forms required in our state, and whether the objects he sought, would be justified if undertaken by one of our own citizens. The deed possesses the ordinary requisites of a conveyancej and is free from objection. The trust imposes no restrictions upon, creditors, and secures no advantage to the debtor, until the creditors are paid. The debtor divides his creditors into three classes, as they seemed meritorious to him, and secured the payment of those of each class in the same proportion; a discrimination which does not invalidate, for it is one of the rights of the debtor. Such an assignment, if made now, would enure to the equal benefit of all the creditors; but it is not affected by the act of 1835 ; and as it seems to aim at nothing except the speedy and effectual conversion of the effects into money, and the appropriation to debts, it presents no qualities inconsistent with our law.

*We find, then, a regular conveyance to trustees upon lawful trusts, made in October, 1836. The attachment was not levied until February, 1837 ; and it operated only on those interests of the debtor which had previously become extinct. As the parties are before us, a decree may be taken, referring to a master, to take an account of the. present state of the trust, preparatory to further proceeding.

Cause remanded.


author: Grimes, Judge.

text:
    Lessee of Uriah Scribner v. W. B. & S. D. Lockwood.
    Where a person conveys land, which is afterwards taken in execution, sold, the sale confirmed and deed ordered, before the first deed is recorded, the-purchaser at sheriff's sale is regarded a bona fide purchaser from the time oí sale, and protected as such, though the first deed he recorded after the confirmation of sale, hut before the sheriffs deed is made.

      Quere: If in such case the notoriety of the proceedings in the judicial sate would not he held constructive notice to the purchaser at the individual sate?
    The registry laws apply to purchasers at sheriff’s sate.
    Ejectment. From Sandusky. The case is submitted upon an agreed statement of facts. The plaintiff claims the west part of the S. E. Qr. of frac., S. 2, 6 T. and 13 R. under a deed from Samuel Scribner, and the defendant under a sheriff’s deed, upon a judgment and execution against S. Scribner. The plaintiff’s deed was executed in New York, the 26th Dee. 1823, and recorded the 28th June, 1825. The judgment against Scribner was rendered at May term, 1824, of the Huron Common Pleas. A fi. fa. issued upon this judgment, which was levied on the land in controversy, in Sandusky county, the 3d of Sept. 1824, on which the land was sold to William Townsend the 12th of March, 1825. This sale was confirmed by the court at May term, 1825, and a sheriff’s deed executed the 9th of August in that year. Scribner and Samuel Brown, by their agent, were in possession of the ground until 1823, when Scribner left Ohio, and Brown in possession. No information was received by Brown or those in possession, of the deed from Samuel to Uriah Scribner, until after the sale to Townsend. Samuel Scribner never returned to Ohio, and Uriah resided in New York. Townsend went into possession immediately after his purchase, and the defendants now hold his title, and that of Brown for the other half, and are in possession.
    C. L. Boalt for the plaintiff,
    insisted that S. Scribner, at the time of the levy, had no interest in the land. 22 O. L. 108. The delay in * recording the deed to the plaintiff’s lessor, would not let in the subsequent deed of the sheriff upon a sale made before the record, particularly as the sheriff’s deed could only convey the title Samuel Scribner had at the time of the levy. 3 Wheat. 449 ; 4 Cow. 599 ; 9 Cow. 120; 1 Wend. 504; 6 Wend. 213, 225; 8 Wend. 626; 15 Wend. 596; 1 Green N. J. 43, 53 ; 6 Cow. 227; 1 Pet. 559 ; Sug. Vend. 320, 520 ; Eq. Ca. Ab. 625 ; 1 Atk. 384 ; 10 Pet. 209 ; 1 Wash. 41; 3 Leigh 365 ; 7 Monro 599 ; 3 Yerg. 408, 508 ; 3 Hen. & Mumf. 316 ; 2 Bibb, 442; 1 Johns. Ch. 288, 301 ; 1 Marsh. 363; 3 Marsh, 13; 1 Yerg. 297 ; 2 Litt. 276 ; 1 Cook, 168 ; 1 Ohio, 336, 458; 4 Ohio, 66 ; 4 Day, 222 ; 15 Johns. 316 ; 3 Cow. 75 ; 5 Hals. 200; 8 Cow. 536; 5 Day, 160 ; 12 Johns. 140 ; 1 Bur. 20; 2 Bur. 945 ; 6 Mon. 204 ; 1 Blkf. 91; 2 Cox Ch. 393 ; 17 Wend. 30 ; 1 Root, 453 ; 5 Cow. 38 ; 6 Ohio, 447 ; 8 Conn. 536.
    G. Reber, and E. D. Parish, and T. Ewing, for defendants,
    contended that a purchaser at a judicial sale, which more than all others abides in the faith of the law, should receive the benefit of the registry act. They cited and commented upon the following authorities : 9 Cow. 120 ; 8 Wend. 626 ; 15 Wend. 596 ; 8 Co. 87 ; Yelv. 179 ; 10 Pet. 249 ; 1 Green, 59; 6 Ohio, 447; 5 Serg. & R. 225 ; 9 Serg. & R. 156 ; 11 Serg. & R. 138 ; 1 Pet. 552 ; 5 Hals. 193 ; 18 Vin. Ab. relation, 8 ; 5 Bur. 2674 ; 15 Johns. 309 ; 1 Blkf. 22 ; 12 Johns. 140 ; 1 Bur. 20 ; Wrights, 520 ; 3 Wheat. 21; 4 Johns. 222 ; 7 Serg. & R. 199 ; 10 Serg. & R. 207 ; 13 Serg. & R. 169 ; 10 Johns. 462 ; 1 Pet. 552 , Co. Lit. 18; 1 Atk. 384; 2 Atk. 630 ; 1 Johns. Ch. 288 ; 7 Johns. Ch. 41; 1 Wash. 31; 11 Wend. 412; 13 Law. Lib. 40; 2 Saund. 148 ; 2 T. R. 596 ; 1 Salk, 87 ; 3 Salk, 116 ; 6 T. R. 368; 4 Cow. 599 ; 6 Wend. 213 ; 10 Pet. 476.
   By the Court,

Grimes, Judge.

Two questions are apparently involved in the present inquiry : 1. Was there such an estate in the debtor as was liable to execution at the date of the levy ? 2. May the purchaser at sheriff’s sale avail himself of the benefit of the registry acts ? But in reality these two questions are resolvable into one. The execution and delivery of a deed do not always transfer the title of the grantor. The law has directed further, that such deed shall be * recorded within a limited time ; and if it is not, circumstances may arise which may prevent the estate from being vested in the grantee, and may enable it to be transferred to a subsequent purchaser without notice. I observe that the Supreme Court of New York have taken a different view of the law on this subject. In Jackson v. Town, 4 Cow. 599, it is supposed that if the judgment debtor has previously sold, that then the estate is not the legitimate subject of execution as against him ; that there was no interest on which the execution could operate, and, this-doctrine was approved in the subsequent case of Jackson v. Jacoby, 9 Cow. 120. But although thus confirmed, it was very near shaken in the case of Jackson v. Chamberlain, 8 Wend. 626, and in Jackson v. Post, 15 Wend. 588, it was entirely overruled. In this last decision, speaking of the case in 4 Cowen, it is said that the deed from the judgment debtor, was valid as between the parties and others having notice, but as against subsequent, bona fide purchasers it was void ; and it is added, that a deed from the sheriff would have the same force and effect as a quit claim deed from the debtor of the same date would have had.' Whether this last case is itself entirely free from exception, remains to be seen. There is undoubtedly a striking analogy between a deed taken immediately from a party, and one executed immediately by him, and through the intervention of the sheriff; but if the analogy is not perfect throughout, it may,-where the resemblance fails, cause a very different rule to be applied to the one from what would be applicable to the other.

Our statute declares that the sheriff shall make to the purchaser, as ■good and sufficient a deed of conveyance for the lands and tenements so sold, as the person against whom the writ of execution was .issued, could have made for the same, at or any time after the lands became liable to the satisfaction of the judgment. It will be observed that the words are not, after the land became bound by the judgment, but after it became liable to the satisfaction of it. What might be the effect of this phraseology, where the lands lie in the same county as that where the judgment is rendered, and the deed from the judgment debtor is recorded after the judgment, but before the levy, it is unnecessary now to say. The lands in this instance lie in a different county, and were therefore in every sense of the words liable to execution at the date of the levy. It, might, perhaps, in the first case, he proper to consider the judgment as exerting its binding efficacy top to the period when the order of confirmation of the sheriff’s deed ^toas made, and that when that act was done, it superseded the judgment, as then no longer necessary to the title.

But it is entirely unnecessary to make this distinction here, since' the purchaser had paid the purchase money, the sale had been confirmed by the court, and the sheriff was directed to deliver a deed, all before the conveyance to the plaintiff was registered. The question then is, not what would be the effect of this last deed, if it had been recorded at any period after the judgment and before the sale, but what is its effect, where it is not recorded until after everything has been dono, with (ho single exception of the delivery of a deed. The various steps which are taken in order to perfect a title derived through a judicial sale, are very different from anything which takes place on a private sale from one individual to another. In the last ease, if any negotiation precedes the execution of the deed, it is a matter in pais Only, while in the latter every ceremony which is performed is either matter of record or of public notoriety. Now it appears to rae, it is not going too far to say, that if a purchaser neglects to record his deed before a sale by the sheriff, the payment of the whole purchase money, and a confirmation of the sale by the court, that it is too late for him to say that the purchaser under this sale is not a bona fide purchaser; it would be nearer correct to say that he himself was a purchaser with notice, and that his deed should be postponed for want of being registered in time. It is a circumstance too of some importance, that the purchaser at sheriff’s sale could not recover back the purchase money, if there was a failure of title. He is compelled to take a deed without warranty, whereas the purchaser from an individual can always guard himself against a contingency of that kind.

The plaintiff contends, that inasmuch as his deed was recorded before the execution and delivery of a deed by the sheriff, that the common principle of law, that notice received any time before the convey-.nee, is well as before the payment of the purchase money, has a direct application, and that its effect is, to put aside the title of the defendant ; and this would undoubtedly be true, as I before said, if the analogy between a sheriff’s deed and a deed from a private individual was perfect throughout. It is a very common error, where there is a general resemblance between two things, so as to subject them, in some-measure, to one common law, to suppose that this law is of universal applicability, and that it furnishes the governing rule where the resemblance fails as well as where it is preserved. The various steps of the process through which a judicial sale is perfected, are something 'very different from what takes place in a private sale ; and * this is the true foundation of the doctrine of relation, as applied to a sheriff’s deed. It is not merely because something has been previously done similar to a private negotiation between individuals, it is because something importing the greatest solemnity, has intervened between the levy of the execution and the actual delivery of the deed. In the former case there might be infinite mischief if the deed related back. In the latter there would be no danger at all. And thus in Jackson v. Dickerson, 15 Johns. 309, land was sold at sheriff’s sale on the 1st of March, and the sheriff’s deed executed on the 18th. On the 10th of the same month a bill in chancery was filed by a mortgagee to foreclose, to which the purchaser at sheriff’s sale was not made a party. It was decided that he was not bound by the decree for he was in by relation, from the day of sale. The reason which is sometimes given for this doctrine of relation, is, that where a purchaser takes by the execution of a power, he is in and holds under the authority creating the power. Jackson v. Bull, 1 Johns. Ca. 81, is not very satisfactory. It would carry the principle infinitely farther than we-would be authorized to do. It is much more reasonable in the present instance to say that where a person has purchased at sheriff’s sale, has. paid the whole consideration money, obtained a confirmation of the sale, and an order for a deed, that these steps not only constitute so-many acts of public notoriety, but that they also contribute so completely to identify the land and consummate the sale, that he uhose title is perfect up to this period, shall not be disturbed in consequence; of the registry of another deed, before his own is actually delivered that he is in truth a purchaser without notice, and that the registry of the other deed before he receives his own conveyance, which would be a circumstance of the greatest importance, if both deeds were-private conveyances, is in reality of no moment in his ease.

I do not think it necessary to enquire whether the proceedings may be considered in fieri after the last- act of the court has been performed, and whether the purchaser might, on motion, succeed in having the-sale set aside and the purchase money returned. The plaintiff has-been guilty of such gross neglect, that he has no right to call upon the defendant’s grantor to take that position, and in numberless instances, the whole mischief would he perpetrated before this remedy could he employed.

The conclusion at which wc have arrived is, that inasmuch as the deed from Samuel to Uriah Scribner was not recorded until after the-levy, sale, confirmation by the court, and the payment of the purchase money by Townsend, that the delivery of a deed is consequent on *these proceedings, was a mere formal act, and that the title of the defendant therefore takes precedence of that of the plaintiff.

The cause has been very ably argued by the counsel on both sides, and I feel greatly indebted to them for the light which their researches have afforded in the investigation.

Judgment for defendants.