text:
    David Peabody v. Charles Fisher.
    Exception does not lie, after verdict, to the averment of a demand of payment, on a day before or after the expiration of the days of grace, where such averment is made under the usual videlicit, and with an additional averment that the bill was due.
    Error to the common pleas of Muskingum.
    Fisher sued Peabody in the court below as drawer of two bills of exchange for $298.58, both dated June 16, 1836, one at eight and the other at ten months. His declaration is in three counts, viz: .
    1. On the bill at eight months.
    2. On the bill at ten months.
    3. The common counts for money had and received, and upon an account stated.
    Peabody demurred specially to the first and second counts. To the third he pleaded non assumpsit as to the money had and received ; and as to the account stated, moved to strike that much out.
    The demurrers were heard and overruled, and, the cause being submitted to the court, judgment was rendered for the plaintiff To reverse which, Peabody brings this suit.
    Goddard and Converse, for the plaintiff in error:
    The bills declared on do not appear to be made payable at any bank, and therefore are n ot supposed to be entitled to days of grace. If SO, the first bill matured on the 16th of Febuary, and the demand of payment and notice on the 18th fixes no liability on the 18th. The ten months bill, upon the same principle, matured on April 16, 1837. If the days of grace are computed, it matured on the 19th. There is no averment of its presentation on either of these days, but its presentation is averred on the 20th; the first was presented at two days’ grace; the second at four days’ grace; therefore, the laches oí the holder has discharged the drawer. 6 Ohio, 66 ; 1 lb. *508. The account stated is improperly inserted. The indorsement on the writ is upon two bills, and'“ also for money had and received by defendant to use of plaintiff.” The party, under the statute, can not declare for anything not expressed in the indorsement. 29 Ohio L. 58. So there was no plea, but a notice to strike out.

      Geo. James and H. Stanbery, contra.
    Thought it sufficient to say, that the third count was unquestionably good ; the clause for money had and received will sustain the judgment, without resorting to the account stated. The motion to strike out has not been pressed or decided; but the court will not reverse a judgment because the common count contains a cause of action not specifically indorsed on the writ. A bill of exchange is entitled to days of grace whether payable at a bank or not. 7 Ohio, 223.
   Judge Grimke

delivered the opinion of the court:

It is supposed that the first count is defective, because it avers a presentation of the bill for payment on the 18th of February, the second day after the bill became due. The averment is, “ that afterward, when the bill became due, to wit, on February 18, 1837, the said bill was duly presented.” Ohitty, in his treatise on Bills, 494, n. A, says, the day is material, unless there be an express averment that the bill was presented when it became due, in which case, a mistake in the day after a videlieit would not be material, and this though the day stated be a Sunday. He adds, the better way is, therefore, to state the time of presentment generally. Doug. 679. The quotation refers to a precedent of.a declaration* as the precise form of this. The first and second counts are, therefore, good according to the authorities.

The third count is also good. A motion was made to strike out of that count the account stated clause, because the indorsement on the writ did not state that cause of action. It would be carrying the nicety of the law too far, but even admitting it correct, the bills of exchange were admissible in evidence under the clause-for money had and received. The judgment- is affirmed.

*Peabody v. Fisher.

Grimke, J.:

This is another ease between the same. The- declaration is upon a bill of Peabody for $375, dated January 30, 1837, at five months; and avers its presentation on the 3d of Juljq when the bill became due. It was presented in proper time, inasmuch as bills .of exchange are commercial paper. But if they were not, the declaration is good for the same reasons given as to the two first counts in the last case. Judgment affirmed.


source: Caselaw Access Project

author: *Judge Wood

license: Public Domain

text:
    Wilber Cahoon v. The State.
    Hit is no offense against the statute, March 1, 1835, section 29, to„ pass hills of an unincorporated hank in actual existence.
    Error to the common pleas of Lorain county?
    The plaintiff was indicted at November term, 1838, for uttering .■and publishing a note, “purporting to be issued by the Exporting, .'Mining, and Manufacturing Company’s Bank of Illinois,” and savers it was falsely and fraudulently published, passed, and put ■into circulation by Cahoon, he knowing that such bank never did, ,in fact, exist.
    Upon this indictment Cahoon was put upon his trial. After •the evidence was closed, the prisoner’s counsel prayed the court to instruct the jury, that if they found the note offered in evidence was issued by an existing bank or company, they should .•acquit, whether the bank was incorporated or not. The court ■refused this charge, but instructed the jury, that if they found that the note was issued by an existing company, they should ■ convict, if the prisoner knew that the company had no legal ■ charter from the Illinois legislature. This was excepted to, and the jury found the prisoner guilty, and he was sentenced to the ■penitentiary for five years; to reverse which, this writ is prose- ■ cuted.
    W. Stillman, for the prisoner.
    No counsel appeared for the state.
   *Judge Wood

delivered the opinion of the court:

This indictment is drawn upon section 29 of the act for the punishment of crimes, passed March 7,1835 (33 Ohio L. 39), which enacts, “that if any person shall make, alter, publish, pass, or put in circulation, any note or notes, bill or bills, purporting to be the note or notes, bill or bills, of a bank, company, or association, which never did, in fact, exist, such person or persons, knowing at the time of publishing, passing, or putting into circulation any such note or notes, bill or bills, that the bank, company, or association, purporting to have issued the same, never did exist, every person so offending shall,” etc.

The record shows that upon the trial, the prisoner’s' counsel, among other things, prayed the court to charge the jury, that if they were satisfied the note offered in evidence was a false note of a bank, company, or association, actually existing in the State of Illinois, they should acquit, whether such bank or company was chartered by the laws of that state or not. This instruction was refused by the court, but they charged the jury, that if they found the note one of an existing company, known to the prisoner as not legally chartered by the laws of Illinois, they should convict. In giving this charge, the court below were in error. The offense is the uttering of such note, knowing it to be of a non-existing’ bank or company, and not the uttering a note knowing it to have been issued by an existing unincorporated bank. Upon this ground the sentence is reversed, and the case remanded to the county for a new trial.

Roswell B. Meeker v. The State.

Error to the common pleas of Lorain.

This case raised precisely the same question as the last, and the same decision was had.


author: Judge Hitchcock

text:
    *Harness Rennick and the Heirs of Richard Seymour v. Cadwallader Wallace.
    On a sale of land for taxes, under the statute of 1822, the purchaser under the judgment obtains all the owner’s title, whether legal or equitable.

      Reserved in the county of Pickaway..
    This is a case in-chancery, and the facts are as follows:
    On August 3, 1787, Benjamin Holmes caused entry No. 513 of 1,000 acres of land in the Virginia military district, and within what is now the county of Pickaway, to be made on a military land war rant. On November 23,1795, this entry was surveyed, and recorded in 1796. Previous to March, 1810, 200 acres of this survey was withdrawn, and has been located elsewhere. In March, 1810, the residue of the entry was surveyed and recorded, amounting to 800 acres. This land from 1815 to 1823 was taxed in the name of Thomas Carnea], present proprietor; Benjamin Holmes, original proprietor. It was described as 800 acres; entry No. 513; original quantity 1,000 acres. The taxes all being in arrear, at the December term of.the court of common pleas of Pickaway county, 1824, a judgment was rendered for the amount of these taxes, under the law of “ providing for the remission of penalties, and for the sale of land for taxes,” passed January 30,1822. In pursuance of this judgment, the land was sold to Richard Seymour, who sold a part of it to William Rennick, who sold the same to Harness Renuick. The sale to Seymour was confirmed by the court, and an order made upon the auditor to execute a deed, which was done accordingly. Possession was taken by the complainants, and has been retained ever since.
    In April, 1831, Wallace, the defendant, professing to act for and by authority of the heirs of Holmes, attempted to withdraw this entry, and immediately made a location in part on the same ground, and has procured a patent to be issued to himself as the assignee of Holmes’ heirs. Said patent includes about 600 acres of the land claimed by the complainants as being covered by their deed from the auditor, pursuant to the judgment for taxes. The bill charges that Wallace, at the time he made his location and procured his patent, had full knowledge of their possession and interests. He admits that he had knowledge of their possession, and that they pretended to have some claim, but denies any definite knowledge of the extent of that claim.
    Wallace having procured his patent, commenced an action of ejectment against the complainants, and recovered a judgment at *law. The object of the bill is to enjoin this judgment, and to compel Wallace to release to complainants his interest in the land.
    Olds and Leonard, for complainant.
    Swan, for defendant.
   Judge Hitchcock

delivered the opinion of the court:

This case was once before the court in a different shape, and the court then intimated an opinion that although these complainants could not defend at law, yot that in a proper case made, they might have relief in chancery. Lessee of Wallace v. Seymour and Rennick, 7 Ohio, 156. It may seem to be somewhat novel that a purchaser at a sale for taxes can acquire a right which can be enforced in equity, although he is defeated at law. But such a principle was recognized in the case cited, and it grew out of the peculiar phraseology of our statutes upon the subject. And it was ex* pressly held, in that case, where lands have been entered and surveyed in the military district and sold for taxes before patented, that when patented, “the patentee must hold the land subject to any claim” which a purchaser at tax sale may have in consequence of such sale. This is upon the supposition that the sale for taxes is legal, although in truth if the sale be not legal, a purchaser at such sale acquires no rights whatever; at least he acquires none to the land itself, neither legal nor equitable, although if he goes into possession and makes improvements, he may, under the law for the relief of occupying claimants of land, recover compensation for the improvements made. If the court were right in the decision of the case cited, it would seem that the only inquiry in this case must be, whether the sale for taxes under which the complainants claim, was in conformity with law. No exceptions are taken to it, except such as grew out of circumstances which transpired previous to the judgment, such as the informality in listing, etc. The quantity of land is listed as 800 acres, original entry 1,000, and which part of the 1,000 acres is intended is not described. And it is supposed that this comes within the case of Lafferty, Lessee, v. Byers, 5 Ohio, 458. In answer to this objection, it is proper to remark that the sale in the ease last cited, was under an entirely different statute from the one under which the sale in the present *case was made. That was a sale for the taxes direct; this was a sale under a judgment for the taxes.

The act of January 30, 1822, entitled “an act providing for the remission of penalties and for the sale of land for taxes,” 2 Chase’s Ohio L. 1216, under which the judgment was recovered on which this land was sold, in section 19 provides, that the deed to be executed by the auditor shall convoy to the purchaser all the title, either in law or equity, which the owner had in the lands described in the said deed, at any time after the taxes, interest, and penalties, or either, for which the same was sold, began to accrue; and shall be received in all courts in this state and elsewhere as primá facie evidence of good title .to the land 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 the proceedings previous to the rendition of any such judgment relating to the charging or collecting of taxes on such land or the obtaining of any such judgment.” This law must be disregarded, or this exception on account of the'error in listing, if there was any error, must be disregarded. In carrying this law into effect we can not go behind the judgment to examine into the legality of previous proceedings.

Another exception taken to this tax sale is, that the judgment is for taxes in the name of Carneal and not of Holmes. This, however, can make no difference. The proceedings are rather in rem than in personam. The taxes were a lien upon the land, and the object of the law was to subject the lands to sale. Besides, although upon the'duplicate the lands were entered in the name of Carneal, yet the fact appeared, in the same duplicate, that Holmes was the original proprietor; and this fact, too, must have appeared in the advertisement giving notice of the sale; so that not only Carneal, but Holmes, or the heirs of Holmes, had notice that the taxes had not been paid, and, unless paid, that the land would be sold.

From anything appearing to the court, the proceedings after judgment were correct and the sale legal. The deed, made in pursuance of this sale, conveyed to the complainants, in the words of the statute, “all the title, either in law or equity,” of the former owner of the land. That title, at the time, was an equitable title; but since that period, the defendant, knowing these facts, has, as assignee of the former owners, acquired the *legal title. He can hold this title in no other character than as trustee for these complainants.

A decree will be entered enjoining the judgment in ejectment, and compelling Wallace to release.


author: Lane, J.,

text:
    Asa Mayo v. C. T. J. & Wm. Blossom.
    Bill of review upon matters of fact.
    Bill of review, reserved in Miami county.
    The case was argued, at great length, upon the facts, by D. S. G-rosvenor and Holt, for plaintiff; and R. S. Hart, and B. F. Powers, and Crane and Schenck, for defendants.
   Lane, J.,

delivered the opinion of the court:

The original suit has been heretolore decided in bank, at the term of 1834; and involving facts only, not principles, it was deemed inexpedient to report it. The plaintiff, whose bill was dismissed, has again subjected it to our examination. In its present form it affords an example of what Chancellor Kent once called the distressing voluminousness of papers. The abstract brief of the plaintiff is contained in 416 closely written folio pages, and the papers filed consist of more than a cubic foot. It would be wrong to complain of this preparation while new materials facilitate our examination of the case. ■ The plaintiff seeks, by this bill, to settle the accounts of a partnership in manufacturing and merchandise. The right to the account is admitted, and the principal questions arising are, whether certain machinery, taken as part of the capital stock, was agreed to be received at the price of §14,000, or whether its value was left open,- or whether fraud was practiced by the defendants, in inducing the plaintiff to admit it at that price.

In 1834, these questions were carefully examined by the then members of the court, and their decree made upon the basis of the agreed valuation of the machinery, no fraud being shown. The present members of the court have examined it again, and their opinion is unchanged. It is deemed unnecessary to repeat the proofs which have led to their conclusion upon the facts.

*Other questions are raised upon exceptions to the reports. The matter has been twice referred to accountants of much skill and judgment, and the whole laboriously sifted by counsel. In the cases pointed out by the exceptions, we find' no reason to believe the masters erred. The plaintiff was unfortunate either in a hard bargain or a losing business; but the very complicated state which these accounts have assumed, render it unlikely that the results of any new examination will be more satisfactory or more just. Decree affirmed with costs.


author: Judge Grimke

text:
    Abraham Hickox v. City of Cleveland.
    Where the corporation of a town are authorized to grade and level streets, and provide a mode for assessing damages and compensating adjacent proprietors, an action can not be sustained against them for an act done in the legal execution of the duties prescribed.
    Trespass on the case, reserved in Cuyahoga.
    The ease is submitted to the court upon an agreed state of facts, which are fully stated in the opinion of the court.
    Andrews and Foote, for plaintiff.
    H. B. Payne, for defendants.
   Judge Grimke

delivered the opinion of the court:

This action is brought for damage occasioned by grading Union lane and Water street, in the town of Cleveland. On June 15, 1834, an order was made by the corporation ior grading certain streets, including the two above mentioned. The order was made in pursuance of a law passed February 18,.1834. Union lane was graded in pursuance of the order in the year 1834. Water street was graded during the summer and fall of 1835, under an order for continuing the first-mentioned grade, and this order was made April 15, 1835. On March 7,1835, an act amendatory of the preceding act was passed by the legislature, appointing three persons therein named, to appraiso the damage which might occur to any persons from the prosecution of the work. On September 5,1835, a committee of three persons were appointed by the corporation, by virtue of section 4 of the last act, to appraise the damages caused by the grading. This committee was duly organized, and from about October 20, 1835, to February 26, 1836, met regularly to receive *and determine claims for damages; at which last-mentioned time they made their returns to the corporation, having disposed of all claims before them, since which they have never convened.

It is admitted that the plaintiff had notice of the time and place when and where the committee met, and that he preferred a claim for the injury to his lot on Union lane, which was acted upon and disallowed by the committee. It is further admitted, that previous to January 1,1836, the plaintiff had notice of an act of the legislature, passed in December, 1835, amendatory of the preceding act of March, 1835, and that he did not present any claim for damage to his property on Water street. It is also admitted that the board of appraisers consisted of three persons, two of whom were citizens, and all freeholders of Cleveland, and that they generally .made their appraisement upon view of the premises, without examining witnesses or hearing parties, excepting that the statements of parties were heard upon request-

In what respect, then, does the case differ from that of Scovil v. Giddings, 7 Ohio, 211 ? In none, except that the present action is brought against the corporation, and in the former it was against an agent. But this in reality presents a difference of fact, and not of principle; the corporation acted under the authority of an act of the legislature, and no action will lie for what they have dono in the execution of that duty, unless they exceeded the authority confided to them, or abused that authority by acting arbitrarily or oppressively in the mode of carrying it into execution.

In Boulton v. Crowther, 2 B. & C. 703, where, by a general turnpike act, the trustees of roads were authorized to divert) shorten, or improve them, it was held that no action could be maintained against them for a consequential injury, resulting from an act which they were authorized to do. And this was only a ratification of the same principles which had been previously declared in Sutton v. Clarke, 6 Taunt. 34. There the defendants had a public trust to perform, and it was held that having acted bona fide, and according to their best skill and diligence, in the exercise of a public function, although they had done an act which occasioned consequential injury to a citizen, they were not liable for such damage. The case of Leader v. Moxton, 3 Wils. 461, has been sometimes supposed to be inconsistent with these determinations.

In Manufacturing Company v. Meredith, 4 D. & E. 790, Lord Kenyon says that he doubts the accuracy of the report of that case in Wilson. But in reality, that case is not at *all irreconcilable with any one of the subsequent determinations. It would seem from the report that the defendants .had been guilty of an abuse of the authority intrusted to them; they were, therefore, trespassers ab initio. The question, therefore, was rightfully determined, although the court may have been mistaken in the annunciation of the general principle. The case which I have just referred to, from 4 D. & E., is itself a decisive authority against the present action.

The principle declared in these cases has been strengthened and confirmed by subsequent decisions in this country. In Steele v. Navigation Company, 2 Johns. 286, the action, as in this instance, was directly against the corporation, but inasmuch as they acted under the authority of an act of the legislature, it was held that no action was maintainable against them. And in Callender v, Marsh, 1 Pick. 418, where a surveyor was authorized by statute to dig down a street, it was decided that if he acted within the scope of his authority, a party injured could not institute an action against him, nor against any other person employed by him.

The power complained of, in this instance, is one which has been exercised in every civilized country. At Rome, the general care of the highways was given to the iE-liles, who appointed agents for the superintendence of the roads without, and of the streets within, the city. And one of the duties of these last was to level the streets. Where private property was taken for public uses, the civil law allowed a compensation. The common law lawyers have always contended against this right. In this country we have adopted the former rule, the State of South Carolina being the only one which I recollect whose constitution does not guarantee the right to be compensated in such casos. Whether this case, however, comes within the provision of our constitution, I think may well be doubted. Private property is not in reality appropriated to public uses; but by leveling the streets in Cleveland, a consequential injury only is sustained by individuals. It was in the power of the legislature, however, to award compensation ; and they have made effectual provision for that purpose. The act of February 18, 1834, gives the authority to grade Union and Water streets, and that of March 7, 1835, provides for the assessment of damages.

What just ground of complaint is there then? It is that the rightto jury trial is not preserved. There is not a single state in the Union, in which a case of this kind has been supposed to fall *within the constitutional provision relating to trial by jury. From time immemorial, the practice of assessing damages, by commissioners variously appointed, has been in use in the United States. And yet notwithstanding so many of them have revised and changed their constitutions, it has never been thought necessary to make the guarantee of jury trial more comprehensive in its meaning than it was before supposed to be. There is a total inapplicability of the use of jury trial in such a case. It' may as well be said that a tax can not bo collected without convening a jury, in the case of every individual, to determine whether it is rightfully levied. If it should not bo, then an action would be maintainable; and so in this case, if the corporation had exceeded the authority intrusted to them, they would subject themselves to an action, and then, in both instances, jury trial would have its full application. 7 Ohio, 111.

It is evident, then, that this action can not be supported. Water street was graded in the summer and fall of 1835. The committee to assess were in session until February, 1836, and yet the plaintiff presented no claim for damages, probably because he did not approve the decision of the committee on his claim for damages on tfnion lane. The amendatory act of December 17, 1835, declares that those who shall omit to present their claims shall be deemed to have waived them; in that mode, and as against'the present defendants, there never existed a right of action.

Judgment for the defendant.


author: ^Judge Wood

text:
    Abigail Stanbery v. James Mitten.
    On an appeal from the common pleas to the Supreme Court, there is no power to discharge the security in the appeal bond, that he may be used as a witness.
    Motion to change bail, on appeal from Richland.
    This suit came into the Supreme Court by appeal from the common pleas, bond, with security for the appeal, having been filed according to law. The appellant being desirous of availing himself of the testimony of the security in the appeal bond, moved for his discharge and for the substitution of other security, in order that the original security might be a witness for him. The question on the motion was reserved, the court on the circuit to settle the practice.
    No argument was submitted on either side.
   ^Judge Wood

delivered the opinion of the court:

No decision upon the subject is recollected by the court, and none are cited; and our decision aims merely to settle a question of practice, of frequent recurrence, the way the practice is settled being of very little consequence.

In the statute of 1831 (29 Ohio L. 179), sec. 52, it is provided that when the surety in recognizance shall be insufficient, or Ms testimony shall be required by the appellant, in “ appeals from justices of the peace, it shall be lawful for the court of common pleas, on motion, to order a renewal of such recognizance, and direct that the same be certified to the justice from whose judgment the appeal was taken, or to have it recorded in the common pleas.” This provision is limited in its application to appeals from justices of the peace to the common pleas. There is no similar provision applicable to cases brought by appeal from the common pleas into this court, and we think the plain inference is, that the legislature, in the latter class of cases, or the general assembly, did not intend to confer the like power upon this coux't.

Section 109 of the practice act, 29 Ohio L. 109, provides that the bond required to perfect an appeal from that court1 shall be approved by its clerk. It is his duty to judge of the sufficiency of the bond and of the security. This is a ministerial act of his, and this court has in the way no control over it. When the appeal bond is approved by the clerk and filed, the rights of the appellant and the obligations, of the appellee are fixed, and a majority of this court are of opinion such rights are beyond the power of this court, upon a mere question of expediency or convenience. A party should reflect upon the effect of his steps be-fox'e he takes them, and not the court to permit him to retrace them. This court is careful not to interfiere with the exercise of such duties, so clearly vested in the clerk and the party, in order to substitute its own discretion. 5 Ohio, 276; Wright’s S. C. 741.

It is said, however, that the law has been modified in this respect, by section 4 of the act of 1834, in f’ox'ce when this motion was made. 33 Ohio L. 55. We do not think this case within the scope of that act. Its language does not embrace the case. That section was designed merely to limit the time of excepting to appeal bonds, defective in form or otherwise, and provided that the omission to except beyond the time specified should be hold a waiver of the right to object. The b.ond before *us is properly executed, and is made in due time and form. Had the general assembly intended to confer on this court power to permit a change of the appeal bond, it would have done so expressly; as its exercise is not essential to the fair administration of justice, the court is disinclined to take it by implication. The motion is overruled.


author: Judge Lane

text:
    Austin Webb v. Vandeveer B. Moler.
    The franchises of a corporation can not be forfeited except by judicial sentence, nor can real estate conveyed to it be lost to its object by non-user.
    Error to the common pleas of Montgomery.
    The suit below was for trespass upon land, part of the southeast quarter of section 17, township 2, range 6, lying in Dayton township. The defendants pleaded the general issue (which was joined), with a notice, that before suit Richard Stephens was seized in fee and possessed of a part of said quarter section (describing the metes and bounds), and conveyed the same by deed to Charles Morgan, Jacob Darst, Luke T. Dorsey, G-eorge Patterson, and William. Hatfield, trustees of the Columbian school of Dayton, and their successors in office, under which said trustees were seized and possessed; and that afterward, said Darst, with A. and D. John and A. Hosier, then trustees of said school, bargained and sold said land to Webb, the defendant, put him into possession thereof, and entered into a written contract with him, signed by said A. John, as president, and said Darst, Hosier, and D. John, as trustees of said school, to convey the same to him, when he paid the purchase; that he entered under said agreement and exercised acts of ownership as it was lawful for him, and such acts are the supposed trespass complained of.
    The case upon said pleadings was tried by a jury, and there was a verdict and judgment for the plaintiff, Moler. In the progress of the trial, a bill of exceptions was tendered and sealed in substance as follows:
    That Moler, having given evidence of his possession of the. premises described in the declaration, and a deed from Stephens and wife of December 1, 1819, conveying the land in fee to Morgan and others and their successors in. office, trustees of the Columbian school, to the. only use and benefit of said school, agreeably to their constitution, forever; and, having further *given in evidence a deed from the same Stephens and wife, dated April 23, 1836, which, reciting the deed made by them “many years since” to said Columbian school, for school purposes, and nothing else; that said coiqnoration had long ceased to exist as a corporate body, and the premises to be occupied for school purposes, by which the premises had reverted to them, therefore, they conveyed the same to Moler forever, for the consideration of three dollars; and having also read in evidence the'articles of association of said Columbian school, which, among other things, designated the object of the association to be, to secure to themselves, and their heirs, such property as might be donated to them for literary purposes and the good government of their school; established the” corporation government of a president and trustees to be annually elected, and that “the president and two of the trustees shall form a quorum, do all business pertaining to the association, hold all property, real and personal, to the only use and benefit of the association, and dispose of the same when three-fourths of the members of the association shall deem it expedient and to apply the property and fund wholly to literary uses; and the said Webb having, in defense, given in evidence a title bond made by the trustees of said Columbian school, dated May 2,1836, reciting, that for the consideration of the receipt of an obligation for $50, they bound themselves to make him a good and sufficient deed for the same, so soon as he or his assigns paid said $50; and proven, that at the sale of the premises at public auction, about April 29, 1836, they put Webb into possession. The evidence closed, whereupon the defendant, Webb, prayed the court to instruct and charge the jury as follows:'
    That “if they were satisfied that said corporation of the Columbian school had a valid and legal right to the premises in question, and that in April, 1836, the trustees of said corporation put said defendant, Webb, into possession of the premises, it was immaterial whether he was put into possession under a sale made by said corporation, or its trustees, or not; or whether that sale was a valid one or not; and that if he was so put into possession by said trustees, it operated as a license to the defendant to enter and occupy.” And said defendant further moved the court to instruct the jury, “that no non-user bjT said corporation of the Columbian school under which the defendant, Webb, claimed to hold the premises in question, of any of its ^corporate rights, or any of its corporate property, will operate a forfeiture of any such rights or property, unless such default or forfeiture shall be first judicially determined in a legal proceeding, instituted for that purpose, according to law” — which said instruction the court refused to give; but as to the last question of law so prayed to be given in charge to the jury, the court instructed them, “that no non-user by said corporation of its corporate franchises would operate as a forfeiture of such franchises, unless such default and forfeiture had first béen judicially determined in a legal proceeding instituted for that purpose; but that the corporate property of said corporation might and would be forfeited by the non-user thereof, amounting to an abandonment by said corporation, without such forfeiture being first judicially ascertained in a legal proceeding instituted-for that purpose; and that said plaintiff might avail himself of such forfeiture, to sustain his legal title to the premises in question, derived by said conveyance from said Eichard Stephens and wife by the deed, dated April 23, 1836, admitted in evidence.” And on the matter of law, on which the defendant, Webb, first prayed the court to instruct and charge the jury, the court instructed and-charged, “that the defendant could not avail himself of any matter of license or authority from said corporation, or its trustees to enter or occupy the premises in question under the pleadings as made ' up in this cause, if the said corporation had abandoned and forfeited their right and title to the premises.” Webb excepted to said charges and refusal, and assigns them as error, on which he claims to reverse the judgment.
    IT. Stoddard, for plaintiff in error :
    1. The first deed from Stephens divested him of all title, and the subsequent deed to Moler conveyed no title.
    2. The license pleaded should not have been ruled out; the evidence showed a conveyance from the trustees of the school, who held, the fee; they contracted with him lor all their title, and put him into possession. This license was a good defense. 3 Ohio, 89, 93.
    3. The true principle is, that so long as the corporation exists, neither its corporate franchises, nor its property held in its corporate character, is divested by any mal, or nonfeasance. .-A forfeiture must first be judicially determined. 3 Burr. *1866, 1871; 2 Term, 515 ; 3 Term, 199, 244 ; 5 Johns. Ch. 366, 376-380 ; 2 Kent, 289-291, 278, 304-306, 312, 313; Ang. on Corp. 510, 511; 2 Chase’s Ohio L. 1918 ; 4 Com., tit. Fr. G. 5, F. 10 ; 10 Coke, 30.
    Odlin and Sohenok, contra.
    Insisted that the deed from Stephens to the corporation, for special objects, was conditional, and created only an estate in the corporation liable to be defeated, by non-user or misuser, in violation of the terms of the grant. The oral proof established the perversion of the property from the uses of the grant, and the reversion to the grantor was a legal consequence, and the next step at the trial was to make title to the party under the reversioner himself. Such reversion, resulting from matter in pais, could only be proved by oral testimony. The uses of the grant are sufficiently expressed in the deed; but if they were not, its legal effect should be judged of in reference to the act incorporating the grantees, which declares that “ no part of the property to be owned by such association, shall at any time be applied to any other purpose than the establishment and support of a school or a library, as the case may be.” The grantees could not abandon the estate, nor desecrate the house for literary purposes, nor sell it, without violating the grant'.
    Corporations have a determinable fee only for the purposes of enjoyment. 2 Kent’s Com. 282.
    2. The question is only one of inquiry into the title of real estate, not blended with corporate franchises. If a grant be made to the Dayton Bank, to be used only for banking purposes, and the bank should convert the property into a hotel or livery stable in violation of the condition of the grant, that would work a forfeiture of the estate, although the bank with all its franchises would still continue to exist. The common pleas, therefore, drew a proper distinction between corporate franchises and corporate property We admit that the corporate franchises can only be forfeited by the judgment of a competent court to that end. But surely as to property, a corporation, like a natural person, may forfeit or occasion its reversion, and still remain in esse. The very license rer lied upon by Webb, was itself a forfeiture of the estate.
    *A. Harlan, in reply:
    Cited 9 Cranch, 51.; 6 Cowen, 23; 1 Hall, N. Y. 191; 2 Term, 515.
   Judge Lane

delivered the opinion of the court:

No proposition is more thoroughly established, than that the franchises of a corporation can not be forfeited without a judgment either on scire facias or quo warranto. Abundant authorities are cited to this effect in the argument.

The court of common pleas seem to have considered, that although corporate franchises can not be divested without a judicial sentence, corporate property might be lost by non-user alone. No such distinction is known in law. The capacity to hold land in one franchise. The grant of land to a corporation is called, by Blaekstone, “ an estate for life, which may endure forever, or which reverts to the donor only when the life of the donee is terminated.” 1 Black. Com. 484.

Among the multitude of authorities bearing on this point, it is. enough to refer to two from New York: 6 Cowen, 23; 1 Hall, 97. The doctrine these authorities declare is, “that proceedings of trustees of a corporation, de facto, are valid until ousted by,a judgment in a proper suit, and that no advantage can be taken of any non-user, on the part of a corporation, by any defendant in a collateral action.”

The trust of a charity is not lost by the trustees’ neglect of duty. If it can not be carried into execution, the land may revert to the donor. But where it can be enforced, a court of chancery will furnish all needful relief.

Judgment reversed.


author: Judge Lane: Judge Hitchcock :

text:
    John Armstrong v. The Heirs of William Huston.
    Where an appraisor of lands to be sold by an administrator becomes a purchaser, the sale may be set aside on application of the heir, as infected, with fraud.

      This is a bill filed in the county of Mercer, to review a decree in the Supreme Court, rendered in 1837, and reserved for decision in bank.
    The original bill, filed by the heirs of Huston, sets forth that he died seized of land, parts of which were sold in the due course of administration. That the administrator preferred a supple mpntary ^petition, showing further sales necessary; that the court appointed appraisers, of whom John Armstrong was one, to assign dower and value the lands. Upon the return of the commissioners’ report, the court confirmed the assignment of dower, and directed a sale of so much of the land as will produce the sum of $500. Sales were made under this order to the extent ■of $621, which were confirmed by the court, and conveyances ■duly made. John Armstrong was one of the purchasers. The plaintiffs, who were minors at the time of this sale to Armstrong, .claim relief against it, upon the following ground :
    1. That more land was sold than was authorized by the order.
    2. That Armstrong assumed to buy for the benefit of the famnly.
    3. That being an appraiser, his purchase may be set aside by >them.
    At the term of the common pleas to which the report of the • ■sale to Armstrong was made, it was found necessary to sell the -remainder of the lands. The estate, on its final settlement, proved 'insolvent.
    This suit came on for hearing at the Supreme Court for Mercer .county, in 1837, and a decree was made setting aside the sale to Armstrong, on the plaintiff’s repayment of the sum advanced, and interest. This decree is complained of as erroneous, and this bill lis brought to review it.
    Thomas and Hall, for plaintiffs.
    Crane, for defendant.
   Opinion of the court, by

Judge Lane:

The present case presents the single question, whether the appraiser of land at an administrator’s sale stands in such a relation that his purchase, without fraud, will be set aside at the instance •of the heirs; for the question respecting the quantity to be sold, is to be made only before the court granting the order and confirmation. 10 Pet. 450; 6 Ohio, 269; 7 Ohio, pt. 1, p. 262. There seems no reason to distrust the integrity of Armstrong, or the fairness of the sale. The appraisal is not shown to be too low, when made, although the land has since appreciated. The sale was at public vendue, and no proof is made that Armstrong assumed to purchase for the benefit of the family.

The statute of 1824 (2 Chase’s L. 1300, sec. 12), forbidding purchasers by appraisers, relates to sales by execution only. The disability of the appraiser in the present case, if it exists, arises *under those general principles of equity, which prevents those from acquiring a title, to whose discretion or agency the management of a sale is confided.

The application of this doctrine to trustees, executors, attorneys, and agents is familiar in all the books. A majority of the court unite in the opinion, that the principle of exclusion attaches to every person, to whose integrity and judgment is committed the execution of any step needful in making the sale.

Where the law creates fiduciary relations, it seeks to prevent the abuse of confidence, by insuring the disinterestedness of its agents. It holds the relations of judge and party, of buyer and iseller, to be entirely inconsistent. The temptation to abuse power for selfish purposes is so great that nothing less than that incapacity is effectual, and thus a disqualification is wrought by the mere necessity of the case. Fullness of price, absence of fraud, and fairness of purchase are not sufficient to countervail this rule of policy. To give it effect, it is necessary to recognize a right in the former owner, to set the sale aside in all cases on repayment of the money advanced. 2 Johns. Ch. Cas. 252, and eases cited; 1 Story’s Eq. 315, et seq.

The appraiser of land is interposed between the buyer and seller in judicial sales, to prevent sacrifices, at undue prices, to the detriment of those interested in its value. If he were permitted to profit by his position, the law would lose its strongest security for his integrity. The legislature has acted in view of this, by imposing on him a disability by statute to purchase at sales under execution; but in this it only adopted a well-established rule of policy applicable to all analogous eases.

Bill of review dismissed.

Dissenting opinion of

Judge Hitchcock :

The principal question in this case is, whether a purchase at administrator’s sale, made by one who had assisted in appraising the property, shall be set aside on the petition of heirs of creditors, when the sale was properly conducted and has been approved by the court of common pleas.

There is no controversy as to the general doctrine, in equity,that a trustee can not purchase the trust property of his cestui que trust, and this doctrine applies to agents, executors, administrators, sheriffs, and other ministerial officers intrusted with the sale °f property, auctioneers, etc., and, in general, to all cases where one party has it in his power, in consequence of confidence reposed, *in a secret manner to sacrifice interests for his own advantage, which he is bound to protect. Does an appraiser of land, under our law regulating the duties of administrators, etc., come within this rule ? It seems to me not, but my brethren think otherwise.

By this law, if, in the progress of the settlement of an estate, it becomes necessary to sell lands for the payment of debts, application is made to the court of common pleas by petition by the administrator, and the heirs are made defendants. If the court are satisfied that a sale is necessary, the next step taken is to appoint three freeholders of the county to appraise the land intended to be sold. These appraisers, after taking an oath to act faithfully, fix a valuation upon the land, and make return to the court, and their duty is pei-formod. They have no further agency in the business, no further power over the land. The only trust and confidence reposed in them is to fix this valuation. It is a trust, if trust it may be called, which might, by possibility, be abused if reposed in one individual, but it is reposed in three; and I have a better opinion of that class of freeholders who are ordinarilv selected by the court as appraisers, than to suppose they would violate their oaths, because one of their number might desire to become the purchaser of the lands which they were about to appraise.

The court, having ascertained the value of the land, direct the administrator to sell, and the law provides that, in the first instance, the land shall not be sold for less than two-thirds of the appraised value. After the sale, the business again comes before the court, and if, upon examination, everything is found to be fair and' legal, the administrator is ordered to make a deed. It v ould seem, as if here were guards and cheeks sufficient in the statute itself, without going beyond it to devise others from the doctrine applicable to trusts.

It is the policy of the law, and for the interest of all concerned, that competition sbouid be encouraged at administrators’ sales, as well as at all other sales made in pursuance of judicial proceedings. Upon this principle, by a late act of the general assembly, an administrator is allowed, under certain restrictions, to be a purchaser at his own sale. 35 Ohio L. 60. But by the decisions of the court, throe men are precluded from bidding, because if they have no right to purchase, they have no right to bid. Although one oí them may be willing to give more, much more, than any other individual, yet he can not have the land. And the *land itself must be sold for less than its value, because he who is willing to give for it its value, has been once appointed by the court to ascertain that value. I can not see this to be proper, and it seems to me that an appraiser possesses nothing of that fiduciary character contemplated in the doctrine precluding trustees from purchasing. Judge Benson says, “Although it may seem hard that the trustee should be the only person of all mankind who may not purchase, yet for very obvious consequences it is proper the rule should be strictly pursued, and not in the least relaxed.” 2 Caine’s Cases in Error, 183. By the decision in this case,’however, the trustee is not the “ only person ” who may not purchase.

No case has been cited as directly in point, and it is by analogy the principle is to be sustained. The case most analagous to the one before the court is the case of the New York Building Company v. Mackenzie, 8 Bro. P. C. All I know of this case is derived from what is said by Chancellor Kent in the case of Davoue v. Fanning, 2 Johns. Ch. 252. From his statement it seems that the case originated in the court of sessions in Scotland. The appellants were an insolvent company, and their estates were sold by order of the court of' sessions at a public judicial sale to satisfy creditors. The course of such sale is to set up the property at a value fixed upon by the court, which is called the asset price, and which is founded on the information procured by the common agent of the court, who has the management of all the outdoor business of a cause. The respondent here was the common agent in that case, and he has purchased himself at the asset price, no person appearing to bid more, and the sale was affirmed by the court.” This order of confirmation was reversed in the house of lords, and the sale set aside. The reasons, it seems, are not given in the reported case, and can only be gathered from the arguments of counsel.

It may, at first view, be thought that this is a strong case in favor of the position that appraisers have no right to purchase; but upon careful examination, I think it will be found that there is but little analogy between it and the case before this court. What wasHhe business of this common agent? All I know about it is, as before remarked, from what is said by the chancellor in the case referred to. He had the management of all the out-door business of a cause. He ascertained for the court the value of the land, not from his own knowledge, but from the information of others. He afterward sold the land. If in this I am correct, he *was more like an administrator, under our law, than like an appraiser, and having purchased the land, he stood before the court in the character of both vendor and vendee. In order that the analogy might be complete, the purchaser, in the case referred to, should have been one from whom the common agent received information as to the value of the land, not the common agent himself. “ This decision,” the chancellor says, “ carried the doctrine to its full extent,” but when we extend it to embrace an appraiser, we certainly extend it much further.

It is claimed on the part of the heirs, that by an equitable construction of section 12 of the act of February, 1824, “regulating judgments and executions,” Chase’s Ohio L. 1297, this case is embraced.

This thing of extending a statute by equitable construction is a matter of which our people, for whom statutes are made, know but little. And there certainly is not that general character in the legislation of the state which renders it necessary to extend statutes by equitable construction. If even necessary, the cases are extremely rare.

Section 12 of the act regulating judgments and executions has reference to sales of real property by a sheriff, and forbids that officer, or any person, who has, in pursuance of the law appraised the land, to purchase, and declaims a purchase made by either void. There is certainly a similarity in the modes of proceeding between sales by sheriffs and by administrators. In either case the land must be appraised, and in the first instance can not be sold for less than two-thirds its appraised value. But there is this difference; the sheriff sells immediately upon the appraisal» without the interference of the court, while an administrator can not sell until the appraisal itself is approved and a sale subsequently ordered. Whether this difference is so material that in the one ease the sale should be declared void, and in the other held good, is not for me to say.

One reason for extending a statute by equitable construction is, that if the case to which it is proposed to extend it had been in the mind of the legislature at the time the statute was enacted, it would probably have been embraced. This case was in the mind of our legislature when the statute regulating judgments and executions was passed. That act was passed on the 4th of February, and the act defining the duties of administrators, etc., on the 11th, only seven days after. Both acts must have been necessarily before that body at one and the same time. Under *these circumstances, I can come to no other conclusion than that, as the legislature prohibited an appraiser irom purchasing in one case, and did not in the other, in the case where not prohibited, it was intended he should have an equal right with others to purchase.

There is another view of this subject which is worthy of consideration. Lands of deceased persons have been sold substantially in the same manner they are now for the payment of debts, since 1807, a period of more than thirty years. Is it not possible that within that time there are many instances in which appraisers have been purchasers ? There has been no positive law against it. It is possible that even among the members of the legal profession, the prevalent opinion has been that such purchase was proper. I must confess that I never heard a doubt suggested with respect to it until this case was presented to the court on the last circuit. Under such circumstances, even if I suspected the practice might be wrong, I would not interfere. The legislature are the appropriate tribunal to apply the remedy. They might do it as they have done in the case of sheriff sales, by a law which would be prospective in its operations, while the decisions of this court has upon these titles all the effect of retrospective legislation. I know it may be said that this court has nothing to do but to declare the law, regardless of consequences; but there is another maxim. It is this: Communis error facit jus, and it is peculiarly applicable to a case like the present.

There is another question in this case. The estate of Huston was insolvent, as appears from the facts of the case. We all agree that, under such circumstances, the rights of the heirs are subordinate to the fights of creditors. Under such circumstances if the purchase by Armstrong is set aside, a-resale should be ordered, and the proceeds applied, first, to refund the amount advanced by Armstrong, and then in payment of debts. But such was not the decree in this case. Such .could not be the decree, because neither the administrator of Huston, nor his creditors, are parties upon the record, The effect of the decree is to vest in the heirs of Huston property which confessedly does not belong to them until the debts of their ancestors are paid. It seems to me that, in this respect, it is wrong, and for this reason, as well as for the reasons before assigned, should be reversed.


author: Grimke, Judge:

text:
    Hart, Dubois, & Co. v. J. & J. Ayres.
    When a promissory note is given in evidence under the money counts in as* sumpsit, no other defence will be received against it, than would he received if the note was offered in evidence under a special count upon it.
    Assumpsit for money had and received: plea, non-assumpsit. From Cuyahoga. The only evidence offered by the plaintiffs, was a promissory note of the defendants, dated Oct. 1st, 1834, to the plaintiffs or order, for $336 70, payable on the first of January then next. The defendants then offered to prove that the note was executed and delivered for the purpose of taking up a note previously given, for some interest in a patent right. Upon the admission of this evidence, the judges on the circuit were divided in opinion.
    S. J. Andrews, J. A. Foot, and Hoyt, for plaintiffs,
    insisted that where a note is given in evidence under a money count, and the legal liability of the defendant is admitted, the suit can not be defeated by proof that the consideration of the note was not money. The point is expressly decided in Hughes v. Wheeler, 8 Cow. 77. It is not necessary in a suit for money had and received, to prove the actual receipt of money. Randall v. Rich, 11 Mass. 494 ; Beardsley v. Root, 11 Johns, 464; Tuttle v. Mayo, 7 Johns. 132; 3 Mass. 403 ; Clark v. Pinney, 6 Cow. 297.
    *H. Foote, for defendants.
    The simple question is, whether a promissory note given by the'defcndants to the plaintiffs, and offered in evidence under a count for money had and received, is conclusive evidence of the receipt of money, or open to explanation? We contend the note is only prima, facie evidence of the receipt of money, and the fact open to other evidence. He cited, Ch. on Bills, 8th Am. ed. 67, 596 7, 575, 592 ; Nightingale et al v. Devisme, 5 Bur. 2589 ; 2 Kent. C. 80 ; 1 Esp. C. 117 ; 2 T. R. 71; 5 Pick. 391; 6 Conn. 521; 8 Cow. 77; 2 Phil. Ev. 10 ; 2 Stark. Ev. 301, 2, 4, 5; 2 Esp. C. 245; Farr v. Price, 1 East. 55 ; Brown v. Watts, 1 Taun. 353 ; Morley v. Peet, 5 Esp. 121; 1 Sand. P. & Ev. 278; 1 Salk, 283 ; Bayly on Bills, 165, 487 ; Com. on Con. 340 ; N. J. Banking Co. v. Myers, 7 Halst. 141; 1 Wh. Selw. 331; Gibson v. Merritt, 3 Blk. 602; Whitwell v. Bennett, 3 B. & P, 559; Barlow v. Bishop, 1 East. 432; Page’s ad. v. Bk. of Alexandria, 7 Wheat. 35; Sheely v. Mandeville, 7 Cranch. 209 ; French’s ad. v. Bk. of Alexandria, 4 Cranch 141; Mackey v. Davis, 2 Wash. 219 ; Godall v. Stewart, 2 Hen. & M. R. 105.
   By the Court,

Grimke, Judge:

Judgment for plaintiffs.


author: Hitchcock, Judge :

text:
    *Lessee of John Hollister v. John E. Hunt.
    Under the Act of Congress of the 28th of February, 1823, authorizing the State of Ohio to construct a road from the Lower Rapids of the Miami of the Lake to the west line of the Western Reserve, and for granting land for the construction of the same, no land is granted to the State northwest of said Miami River.

      A grant to the State of Ohio, to enable her to open and construct a road, of. “a tract of land 120 feet wide whereon to locate the same, together with a. quantity of land equal to one mile on each side thereof and adjoining thereto, to be bound by sectional lines as run by the United States,” passes no land beyond the termini of the road, though tho section line is beyond..
    Ejectment, reserved in Lucas. This case, was submitted upon documentary evidence and an agreed state of facts.
    The land in controversy is a part of section six, township four, of the Miami Reserve. This section crosses the river Miami of the Lake, and a portion of it is situated upon, the south and a portion upon the north side of the river. When originally surveyed, the-land within the lines of the section which was covered by water, was', deducted from the number of acres constituting a section, leaving a' fraction upon each side of the river. It is agreed that in such case, it is the practice of the government of the United States to sell the' fractions separately, and that the Miami is a navigable river.
    On the 14th of July, 1825, the land in controversy, which is the-fraction of section No. 6, lying upon the -north side of the Miami River, was taken, surveyed, and appropriated by a superintendent duly appointed, as a part of the lands granted by the United States to the State of Ohio, for the purpose of constructing the Western Reserve and Miami Road. It was sold to the lessor of the plaintiff, and conveyed to him by the Governor of Ohio, by deed bearing date January 2, 1827. It is further agreed that the western termination of the Western Reserve and Miami Road, is a point on the south shore of the Miami river, .within said section No. 6, and that all the unappropriated and unsold lands in said section, were taken by the Superintendent of the road as road lands.
    The defendant claims title under a patent from the President of the United States, bearing date December 12, 1833. By this patent the land in controversy was granted to John Baptiste Brawgrand in his own right, and to John E. Hunt as assignee of Gabriel Godfrey. This patent was based upon a pre-emption right of Brawgrand and Godfrey, and much evidence was introduced relative to this claim, but in the view taken by the court of the case, it is unnecessary to recapitulate it.
    *Coepinbuby and Spink for plaintiff.
    W. Silliman for defendant.
   By the Court,

Hitchcock, Judge :

As the title of the plaintiff to

the premises in controversy is derived from the State of Ohio, the first inquiry to be made is, whether those premises were ever vested in the State ? It is claimed for the plaintiff that the title to this property was vested in the State by an Act of Congress of the 28 th February, 1833, granting certain lands to the State for the purpose of constructing a road from the Miami of Lake Erie to the west line of the Connecticut Western Reserve. The Act may be found at the 152d page of the Ohio Land Laws, published in 1825.

By the first section it is enacted, “ That the State of Ohio is hereby ■authorized to lay out, open, and construct a road from the lower rapids of the Miami of Lake Erie, to the western boundary of the Connecticut Western Reserve, in such manner as the Legislature of said State may by law provide, with the approbation of the President >of the United States; which road, when constructed, shall ever remain a public highway.”

In the second section it is enacted, “ That in order to enable the -State of Ohio to open and construct said road, a tract of land one hundred and twenty feet wide, whereon to locate the same, together with a quantity of land equal to one mile on each side thereof, and ■ adjoining thereto, to be bounded by sectional lines, as run by the Un:ted States, to defray the expense of making said road, is hereby granted to said State, to commence at the Miami Rapids, and termi-nate at the western boundary of the Connecticut Western Reserve.” In the third section it is provided, that if any of the lands through which it might “ be thought expedient to open said, road,” should have been sold by the United' States, the Secretary of the Treasury should pay to some officer to be appointed by the State of Ohio, the net proceeds of the sales of the quantity thus sold at the minimum price, And in the fourth section the President of the United States is required to “ direct, that until the first day of June, one thousand ■eight hundred and twenty-three, none of the public lands shall be sold within three miles, on each side of a line to be drawn direct from the foot of the rapids of the Miami of Lake Erie, to the Lower Rapids of Sandusky, thence to the western boundary of the Connecticut Western Reserve.”

It would seem that there could be little difficulty in ascertaining the lands included in this grant. In the first place, there is the land mpon which the road itself is to be opened, consisting of a strip one ^hundred and twenty feet wide, commencing at the Lower Rapids of the Miami, and running thence to the west line of the Connecticut Western Reserve. Next, for the purpose of constructing the road, a quantity of land is granted equivalent to one mile in width on “ each-side thereof .” This land is to he taken on “ each side ” of the road “ and .adjoining thereto,” and is “ to be bounded by sectional lines as run by the United States.” If any of the land thus described, had been sold by the United States, other lands were not to be given in lieu thereof, but the avails of the sale, estimating the same at the minimum price, were to be paid over to the State of Ohio. And in order that the lands intended to be granted, should not be sold until the State of Ohio might have time to signify its acceptance, the President of the United States is required to direct that for a limited time “ none of the public land shall be sold within three miles of each side of a line, to be drawn direct from the foot of the Rapids of the Miami of Lake Erie to the lower rapids of Sandusky ; thence to the western boundary of the Connectieut Western Reserve.” The contemplated road itself was to be constructed from the lower rapids of the Miami to the west line of the Connecticut Western Reserve. The river and the west line of the Reserve were to be its termini, and it would cross over neither the one nor the other. The land granted was to be on “ each side ” of, and “ adjoining to ” said road, and the-land reserved from sale was limited to the Miami River on the west, and the Connecticut Western Reserve on the east. Under these circumstances there can be no well founded pretense, that it was the intention of Congress to grant any other lands to the State of Ohio' than such as were situate between the Miami River and the west line of the Connecticut Reserve.

The State of Ohio accepted this grant upon the terms and stipulations in the Act of Congress contained, and a road was surveyed and opened, commencing at the Lower Rapids of the Miami, on the south shore of the river, thence running to the Lower Rapids of the San-dusky, and thence to the west line of the Connecticut Reserve ; and by such acceptance she became entitled to the land on 11 each side ” of and “ adjoining” to this road, not exceeding two miles in width.

Is the land in controversy within this grant? It is not between the “ west line of the Connecticut Reserve and the Miami River of' Lake Erie.” It is not “ adjoining ” the road, but is separated from its western termination by a navigable river. It is on neither “side” of said road. With what propriety then can it be claimed to be; within the grant ?

*But it is argued by counsel for the plaintiff, that inasmuch as the land taken by the State was to be bounded by sectional lines, and as the road runs into the section of which the land in controversy con* stitutes a part, therefore the State was entitled to the entire section. In arriving at a construction to this grant, the whole must be taken together, and taking the whole together, the'entire lands granted, are situate east of the Miami River. Section No. 6 is, by the river, divided into two fractions, one on the south and the other on the east side of the river. The road terminates at the north line of the southern'fraction. To that fraction the State was entitled, and the clause in the statute requiring the State to take by sectional lines, is complied with, when she is required to take this fractional section by its lines as surveyed by the United States.

Such being the opinion of the Court, the title of the plaintiff fails, and the defendant must have judgment.


author:
"Wood, Judge.
      Lane, C. J.

text:
    The Cincinnati, Lebanon, and Springfield Turnpike Co. v. William Neil and Others.
    The Act incorporating the Cincinnati, Lebanon, and Springfield Turnpike Company authorizes the Company to collect tolls from mail and passenger four wheel stages, at the rate imposed on coaches.

    A clause imposing tolls upon “ coaches, chariots, and other four wheeled pleasure carriages,” includes stage coaches used for the conveyance of the mail, or of passengers.
    Assumpsit for tolls accrued to the plaintiffs against the defendants for running divers coaches, chariots, and other four wheeled pleasure carriages, upon their turnpike road, through the gates, etc. Plea non-assumpsit. Reserved in Hamilton. It was conceded that the defendants, Neil, Moore & Co. run their daily lines of passenger and mail stages upon the turnpike of the plaintiffs, and were charged with the highest tolls assessed upon coaches, or four wheeled pleasure carriages, with four horses. The plaintiffs’ right to recover depends upon the construction of their charter. The Act of Incorporation fixes the rate of toll “ for every four wheeled carriage or wagon drawn by one horse or ox, at eighteen and three quarter cents; for every horse or ox in addition six and a quarter cents, etc., and for every coach, chariot, or other four wheeled pleasure carriage drawn by one horse, driver included, twenty five cents ; for every additional horse twelve and a half cents,” 26 L. O. L. 149. If the defendants’ stages are within the latter rate of toll, the plaintiffs have a right to recover.
    *Erazer, for the plaintiffs,
    contended that the defendants’ stages were coaches, within the fair meaning of the word, and cited Encyclo - pedia Americana, Reese’s and Perry’s Cyclopedias, and Johns. Diet. Coach. The charter declares all coaches and chariots pleasure carriages, and subjects all other four wheeled pleasure carriages to the same toll. By including the drivers of such carriages this is. clearly shown. But whether the defendants’ carriages are coaches or not, they are described in the general name of four wheeled pleasure carriages. They have all the requisites of pleasure carriages. They are hung on springs, have a close varnished body, with curtains, and cushioned seats. They carry passengers by the poll, not by weight. It is the style, etc., of the carriage that fixes the rate of toll, and the fact that passengers in stage coaches generally travel upon business, and not for mere pleasure, can make no difference.
    Storer and Eox, for the defendants,
    insisted that a stage was neither a pleasure carriage or pleasure coach. The Legislature intended to describe as pleasure carriages or coaches, only such carriages as were used for pleasure merely. A stage coach is as much a business carriage as the wagon in which merchandize is carried. The body of the mail coach is filled with mail bags, and only two or three passengers are taken outside; can such mail carriage be considered a pleasure carriage or coach? The common use of the carriage determines its character.
   By the Court,

"Wood, Judge.

'It is conceded that the defendants’ stages, or stage coaches, daily pass over the plaintiffs’ road, carrying the mail or passengers, and the only question is whether they are subject to pay toll as coaches or pleasure carriages, as described in the act incorporating the plaintiffs? It seems to a majority of the Court, that a correct construction of the act, will bring the defendants’ stage coaches within its provisions. Coach is a generic term. It is a kind of carriage, and is distinguished from other vehicles chiefly, as being a covered box, hung on leathers, with four wheels,. 3 Enc. Amer. 271, •tit, coach. A very large kind of coaches called omnibus, has lately come into use, which serve to carry passengers, newspapers, and furniture, ib. 272. Here an omnibus is called a coach, though not used for ¡pleasure, but for the common transportation of persons and baggage. Johnson defines a mail coach, a coach that carries the mail, and a stage coach, a coach that regularly carries passengers from town to town. Each is called a coach. It is ^contended that the word other, in the clause of the act describing these vehicles, refers to coach as well as chariot, and that the substantive chariot, used in the sentence adjectively, qualifies coach, and, carries with it the signification of pleasure coach. We do not so understand it. Coach forms a distinct member of the sentence; chariot then intervenes ; and this Johnson defines a half coach with four wheels, used for convenience and pleasure. Then follow the words other four wheeled pleasure carriage ; ■and chariot and carriage are coupled directly by the disjunctive or, intended to comprehend all pleasure carriages, other than chariots, but having no relation to coaches. We would not oppose the mere grammatical construction of a sentence, to the obvious meaning of the legislature ; but both concur here. A mail coach and a stage coach, are nevertheless coaches. A coach is the description in the act. The defendants’ coaches are run on the road with the mail and with passengers, and must pay the toll assessed upon coaches.

Lane, C. J.

dissented. The statute imposes a toll upon all four wheel carriages, but levies a higher toll upon “ coaches, chariots, and other pleasure carriages;” thus making a distinction between those devoted to industrial purposes, and those whose uses are more or less objects of luxury, and intending to favor the former, by laying a heavier burden upon the latter. A stage coach is a vehicle sui generis, but used for business, and in no sense a “pleasure carriage,” notwithstanding its ambitious name. I therefore think, that by the spirit and intention of the law, it should not be subjected to the higher rate of toll.

Cause remanded for inquiry of damages.


author: Lane, C. J.

text:
    Benjamin F. Hopkins v. Zenas Kent.
    "^Vhere a deed describes a line of the land conveyed, by a line running tv the Cuyahoga River, at low water mark, thence up the river at low water mark, etc., held that it did not pass title to the land within the bed of the river.
    Where a deed conveys a tract of land lying on both sides of the Cuyahoga Eiver, with all the waters and water courses thereto belonging: reserving nevertheless [to the grantor] seven acres on the east side of the Cuyahoga Eiver where the bridge crosses. Quere, Does the whole bed of the river pass by the deed, or is the land to the middle of the stream reserved ?
    Trespass on the Case, for a nuisance in overflowing the plaintiff’s land. From Portage. At the trial of the issue of not guilty to a jury, *both parties claimed title to the land overflown, derived from Frederick, George, and John Haymaker. In September,- 1825, the Haymakers by deed conveyed lot No. 25, with other lands, to Jacob Reed, with all the'waters and water courses thereto belonging, “ Reserving [to themselves] nevertheless seven acres of land off the northeast corner of lot 25, on the east side of the Cuyahoga River, where the bridge crosses said river.” This title is in the defendant as fully as Reed held it. In October, 1815, the Supreme Court in Chancery decreed the Haymakers to convey to one Quinby the title to the said reserved seven acres, by the following description : “ A piece of ground adjoining and lying on the east side of the Cuyahoga River, beginning at the north-east corner of the bridge, thence along the north side of the state road eastwardly to the north and south line on the east side of lot twenty-five, thence north to the north-east corner of said lot, thence west to the Cuyahoga River, thence south to the place óf beginning.” This land was conveyed to the plaintiff by deed in September, 1832, and described as “part of lot 25, beginning at the north-east corner, then south by the east line of the lot 13 chains 87 links to a post, thence west 3 chains and CO links to the Cuyahoga River at low water mark, intersecting said river 9 links north of a hemlock tree, thence up said river, at low water mark to the north line of the lot, thence east to the place of beginning.” Upon this state of title being shown, the court expressed the opinion that the plaintiff's deed did not cover the land within the bed of the Cuyahoga, River below low water mark, whereupon a juror was withdrawn and a nonsuit ordered. The court is now called to review that opinion upon amotion to set aside the nonsuit and for a new trial.

      L. V. Bierce, and R. P. Spalding, for the plaintiff,
    insisted that the whole question turned upon the construction of the deed from Haymakers to Reed. Did that grant pass to Reed the exclusive use of the river? He deeded 1050 acres on the west side of the river, with the water power upon it, and reserved seven acres on the east side with the water power upon that. The grant and reservation stand in the same situation, each having an equal right to the river flowing between-the tract conveyed and that reserved. The plaintiff, therefore, owns to the middle of the river, and the defendant is liable for overflowing his fall. The case in 3 Ohio 495, is conclusive of this; a boundary upon the river, passes the land to the middle of it. The reservation in this ease, calls for the east side of the river, and, of course, bounds by, and passes the land to the middle. The decisions *in Connecticut go even farther. The phraseology of the decree of the Court, beginning for the land at the corner of the bridge, and, running round the tract, to the river, etc., does not change the question. It evidently described that point, as the beginning, where the bridge intersected the bank of the river.
    E. Whittlesey, Newton, and Turner, for the defendant,
    submitted no argument.
   By the Court,

Lane, C. J.

The decree and conveyances under-which the defendant claims to the middle of the river, do not profess^ to convey the bed of the stream. Describing the land as adjoining, as lying on the east side of the river, and running the line to the river, would, in the absence of other evidence, imply an extension to the middle of the stream; but the equivocal language used, coupled with the previous conveyance to Reed of “ all waters and water courses,” would go far to prove that the bed of the river was not included. This presumption is confirmed by the construction which the owners of the small tract have since given to the extent of their title. The-conveyances down to the plaintiff, describe it as part of lot No. 25, beginning at the north-east corner, thence south by the east line of the lot, etc., thence west three chains sixty links to the Cuyahoga River at low water mark, thence up said river, at low water mark, to the north line of the lot, thence east. Here the bed of the river is-excluded in terms, so that even if it did not furnish satisfactory evidence, that the title to the middle of the river was not vested inQuinby by the decree, it fully concludes the plaintiff, by showing that-he acquired no rights below low water mark.

New trial refused.


author: G-rimke , J.

text:
    Frances H. St. Clair v. William R. Morris.
    Where the wife joins her husband in a mortgage containing a renunciation of dower, a sale of the land by the administrator of the husband for the payment of his debts extinguishes the right of dower, and transfers an unincumbered title to the purchaser.
    Bill in Chancery, claiming dower in lot 101 in Bonham’s subdivision of Cincinnati, part of out lot 34, of which the late Arthur •St. Clair, the plaintiff’s husband was seized in fee during coverture. Reserved in Hamilton county. The answer alleges, that the plaintiff, in *March, 1820, joined-with her husband in mortgaging the whole of out lot 34, to the Cincinnati College, to secure the payment •of four thousand dollars, in ten years, with annual interest, which was afterwards assigned to the Bank of the United States. That in February, 1822, St. Clair's administrator petitioned the Court of Common Pleas for leave to sell all his intestate’s real estate in Hamil-ton County, including out lot 34, to pay debts. The court ordered an appraisement of the land, and the assignment of dower to the plaintiff. Bower was assigned in all but out lot 34, as to which the appraisers reported the dower had passed in the mortgage to the College. A ■sale was ordered, and the out lot was sold for nine hundred dollars free of dower. These proceedings were approved by the Court. The .mortgage is uncaneeled. The facts set up in the answer were proven in the case.
    J. C. Wright, T. Walker, and H. Hall, for plaintiff,
    contended -that dower never was assigned in 34: the commissioners were mistaken in supposing a release of dower by a femme covert in a mortgage, was th'e same as such release in an absolute deed. Had Mrs. •St. Clair been a party to the proceedings and objected, there is little -doubt the assignment of dower in this respect would have been corrected. The confirmation of the proceedings by the, court only ■operated upon the dower actually assigned. The right of dower is ■highly favored by equity. In M’Farland v. Febiger, 7 Ohio 194, this ■ court went to the very verge of injustice in order to sustain it. The widow’s tabwlum, in infragio is to be saved if possible. Had the mortgage been paid off without legal proceedings, there can be no doubt the Rower would have remained. The equity of redemption can only be •extinguished by foreclosure, where the widow is a party. In these proceedings she was no party, had no day in court, and can not be concluded. Her claim has precedence over the debts of her husband.. When a mortgage debt is paid, no matter how, the mortgage is extinguished. The effect of the administrator’s sale, and the payment of' the mortgage debt, extinguished the mortgage, and restored the right of dower.
    W. R. Morris m person,
    contended that these proceedings barred, the dower, certainly to the extent of the incumbrance, although either the widow or heir had a right to redeem. If the widow redeemed she-might claim dower of the whole, and hold the mortgage lien on the remainder of the estate. 5 Johns. 452, 482, 497 ; *1 Johns. Ch. 45 ; 4 Kent. C, 45, 46. The sale by the administrator free of dower for less than the mortgage debt, left nothing for the plaintiff to be endowed of. The sale by the administrator is the same in effect upon the widow’s interest, as if the premises had. been sold under a decree-in Chancery to pay the debt, and passed the whole estate. A widow is not endowed in this state of a mere equity of redemption. 29 O L. 249; 1 Ch. St 472 ; 4 Kent. C. 40.
   By the Court,

G-rimke , J.

The position taken by the counsel for the plaintiff is, that when the mortgage money is paid, no matter how, the mortgage is extinguished, for the debt is the principal and the mortgage only the incident; that the effect of .the sale by the administrator, was to extinguish the mortgage, and by so doing to revive-the right of dower. But this position can hardly be true to the extent to which it is attempted to carry it; for if a bill had been filed to-foreclose this mortgage, it is very certain that the purchaser under the decree, would have taken a title discharged of the encumbrance of dower. The debt would have been paid, and yet the right of dower-would not have been revived, but would have been extinguished together with the debt. The language, the debt is the principal and the land only the incident, which was first attributed to Lord Mansfield in 2 Burr. 978, is calculated to mislead, for it never was true in the-universality with which it is thus stated. A mortgage in fee, as this is, is in reality a fee simple conditional, which is as large and ample an estate, as a fee simple absolute, though it 'may not be so durable, Co. Lit. 18 a., and a transfer of such an estate can not be effected by the mere assignment of the debt. All the eases, when strictly examined, are reconcilable with this view. If the mortgagee’s estate in-the land is the same thing as the money due upon it, then the money due upon the land is the mortgagee’s estate in it; and consequently' there would he no difference between the mortgage of land for a term only, and a mortgage of it in fee. The land is the incident in one sense, because it is uncertain whether it will be necessary to resort to it as a fund for the discharge of the debt. If it is, then it ceases any longer to be the incident. By the same process by which the debt is discharged, the right to the land is also transferred. Mrs. St. Clair, by joining with her husband in the deed of mortgage, barred herself of dower in express terms, so far as the mortgagee and his assigns, and ■all persons claiming under them, are concerned. The only difference between a renunciation of dower in a deed in fee simple, and á deed of mortgage is, that in the former case, the right ^of dower is ipsa facto extinguished, and in the'latter it is dependent upon some future event, whether it shall be so or not. But that it may be, is most certain ; otherwise there would be no meaning or utility in a relinquishment of dower. lie who takes a conveyance in fee, in which is contained a relinquishment of dower, is a purchaser of the right of dower ; and he who takes a mortgage to secure a debt, is also a purchaser of the right of dower, if it shall be necessary to the satisfaction of the debt; if it were otherwise, the mortgagee and the purchaser, under a judicial sale, would be iu the same predicament as if the deed had been executed by the husband alone.

The act under which this sale was made, 2 Ch. St. 929, like the one now in forcé, authorizes the administrator, where the personal property is insufficient to pay the debts, to sell the land for that purpose. But «ven admitting that the sale of the entire interest in the land was irregular, yet I do not see how it can be now cured. The proceedings «f a court of probate are strictly in rem and not in personam. If it has jurisdiction, its acts are binding as against all the world. But there was no irregularity in this ease. The proceeding was justified by the law, and was indispensable to carry out the provision regarding the estate of intestates. The ,35 th section of the act directs the administrator to make a deed for the land, which shall vest in the purchaser as complete a title as if the deed had been made by the intestate in his lifetime. And admitting that this will have reference in this instance to some period in the lifetime of Arthur St. Clair, after he had executed the mortgage, then the deed would, at any rate, transfer the whole equity of redemption, freed from the encumbrance of dower. This is on the supposition that the administrator had no right to sell any thing but the equity of redemption, and yet in that case the effect of the sale would he to extinguish the right of dower. But the power •of the administrator was broader than this. A creditor, other than the mortgagee, can only sell the equity of redemption, because, as to him, it is the only interest in the land which the mortgagor has. But the mortgagee may, for the satisfaction of the mortgage debt, cause the entire interest in the land to be sold. The proceeding by foreclosure, which now exists, and that by scire facies, which formerly existed, shows this. Now, an administrator, acting on behalf of .creditors by mortgages, may do the same. As the agent of the intestate’s estate, and of all the creditors also, his power necessarily reached to the equity of redemption which belonged to the intestate, and to the mortgage estate which belongs to the mortgage creditor. In other words, the power of the Probate Court to direct 4a sale of the land was concurrent with the power of a Court of Equity to decree a foreclosure and sale. Yery great inconvenience would be the consequence if this were not the case. The administrator is directed to settle up the estate, the personal property may be insufficient to pay the debts, the only real property which an intestate may have left, may have been encumbered by a mortgage, there may be a residuum after the payment of that debt, which may be wanting to pay other creditors, and the only just and regular mode of proceeding would be to sell the land and to distribute the proceeds among the creditors according to the priority of their claims. In the present instance, the proceeds were not near sufficient to discharge the mortgage debt. The petitioner, therefore, has no equity, and the bill must be dismissed.