author: Hitchcock, C. J.

text:
    Cincinnati Mutual Insurance Company v. James May. Firemen’s Mutual Insurance Company v. James May.
    If a steamboat or other vessel be overloaded or unduly laden, she is unseaworthy. But whether or not unduly laden depends upon the capacity of the boat or vessel, not upon the depth of water upon the shoals and bars in the river upon which she is being navigated.
    The capacity of the craft, not the capacity of the river, is to control in deciding a question of this character.
    If a boat or vessel insured meets with a disaster, the captain and crew ara bound diligently to labor for the recovery of the property; but the insertion of a clause in the policy requiring such labor and effort, does not impose any additional duty upon the assured.
    It is not proper, as a general rule, to inquire of a witness upon the stand, who has heard the testimony in a case, his opinion, from the knowledge he derives from the testimony, as to a particular fact, which is material in the determination of the issue in the case.
    Error to the superior court of Cincinnati.
    The original suits in these two cases were commenced on the same day, by James May, against the defendants in error, in the superior court of Cincinnati. The writs bear date July 24, 1647, returnable forthwith, to the June term of the court, which seems to have been continued until after the date and service of the writs.
    *In the first case a declaration was filed on August 27,1847, in assumpsit, upon a policy of insurance, bearing date February 20, 1846, by which the company caused to be insured upon the steamboat Olive Branch, $3,000, continuing the adventure from twelve o’clock of said 20th day of February until noon of February 20, 1847. It was charged that the said boat was lost by the perils insured against, on August 7, 1846.
    A similar declaration was filed on the same day in the case against the Firemen’s Mutual Insurance Company, upon a policy bearing date December 2, 1845, whereby the sum of $3,000 was insured upon the same boat, the risk to commence at noon on November 28, 1845, and to continue until noon of November 28, 1846.
    In each case it is stated that the boat was to navigate the usual western waters, with certain exceptions stated in the respective policies.
    A plea of the general issue was filed in each case, with notice of set-off, etc.
    At the January term of the court, 1850, the cases were submitted to separate juries, and in each case the jury returned a verdict for the defendant in error. TJpon the return of each verdict, a motion was made for a new trial, and the reasons assigned were:
    “1. That the court erred in its rulings on the trial, as to the admission and rejection of testimony.
    “ 2. That the court erred in its charge to the jury.
    “ 3. That the verdict is against the evidence.”
    These motions were overruled by the court, and judgments entered upon the verdicts.
    ■Whereupon the plaintiffs in error excepted to the several rulings of the court, and their bills of exception were allowed, sealed, and made part of the record.
    These bills of exceptions, with the papers and depositions, are extremely voluminous, and it would be useless to insert *them at length, as it is believed that enough appears in the opinion of the court to lead to a correct understanding of the points decided. The errors assigned in each case are, in substance, that the superior court erred in overruling testimony offered by the plaintiffs in error: in refusing to charge the jury as requested; in the charge actually given; and in overruling the motions for a new trial.
    Coffin & Mitchell, for plaintiffs in error.
    I. The question propounded to Ross was proper, and the court erred in sustaining the objections. Ross was an expert in the true sense of the term. 1 Smith’s L. C. 286, 287; 1 G-reenl. on Ev., 5 ed. 555, n. 1; Steamboat Clipper v. Logan, 18 Ohio, 394, 396.
    II. The policy in each case contains this clause:

      “And in case of loss or misfortune, as aforesaid, it shall bo the duty of the assured, his agents or assigns, to uso every practicable effort for the safeguard and recovery of the said steamboat; apd if recovered, to cause the same to be forthwith repaired; and in case of neglect or refusal on the part of the assured, his agents or assigns, to adopt prompt and efficient measures for the safeguard and recovery thereof; then the said insurers are hereby authorized to interfere and recover the said steamboat, and cause the samo to be repaired for account of the assured ; to the charges of which the said insurance company will contribute in proportion as the sum herein insured bears to the agreed value in this policy, but in no case whatever shall the assured have the right to abandon, until it shall be ascertained that the recovery and repairs of the said steamboat are impracticable, nor sell the wreck, or any part thereof, without the consent of this company.”
    The court charged that this clause “rendered the insured no more and no less responsible for the negligence of the officers and crew of the boat, in saving the boat after the disaster, than he would have been if no such clause had been inserted.”
    *In this we think the court erred.
    The testimony justified the defendants in fairly raising on the trial, to the court and jury, under the above clause in the policy, these three questions:
    1. Whether the insured, by his agent, did use every practicable effort for the safeguard and recovery of the vessel.
    2. Whether, if he had adopted prompt and efficient measures for that purpose, she could not have been saved with but a partial loss; and,
    3. Whether, if he did not adopt those measures, he could recover for a total loss,
    The verdict in each case was for a total loss. 1 Marsh. 334; Mitchell v. Eddie, 1 Term, 613.
    2 Arnould on Insurance, 773, 1086. Upon abandonment, the master becomes the agent of the underwriters, from the moment of the loss, and is responsible to them. Until abandonment he is tho agent of the assured. 1 Arnould, 197; Jumel v. The Marine Insurance Co., 7 Johns. 423, and note (a) and authorities there cited, and 519; 2 Phillips, 439; Smith v. Marine Insurance Co., 7 Met. 453.
    Independent of this clause in our policies, the assured, upon meeting with a loss, not absolutely total, but only highly probable, may, by abandonment, make it in effect total. 2 Arnould, 997, 998; Lord Ellenborough, in Wellish v. Andrews, 15 East, 16; the same learned judge, in Bainbridge v. Neilson, 10 East, 341; 2 Arnould, 1086, 1114, 1181 (sec.409), 1196, 1197; 7 Johns. 519, 520.
    III. Tho policy provides that the insurers shall not be liable for any partial loss, except in case of general average, unless said loss amounts to five per cent, on the agreed value in the policy, exclusive of all expenses of ascertaining and proving the same; “ nor for damage or loss from, or caused by, the said steamboat being’ unduly laden during the continuance of this policy.” It is evident that she was too deeply laden for the water.
    Wo asked the-court in both cases to charge the jury:
    *1. That, “if the Olive Branch, at the time she left St. Louis, was loaded so as to draw more water than there was in the river, such overloading made her unsoaworthy; and if such overloading contributed to her loss, the plaintiff can noL recover.

      “2. That if the jury shall find she was so overloaded, she was, in tho language of tho policy, unduly laden, and the plaintiff can not recover for a loss arising therefrom.”
    : Which the court refused to charge, but charged that, “ if tho boat was laden deeper than her capacity would safely allow, then she would be unsoaworthy and unduly laden, and not otherwise.” And the court also charged, “that if tho Olive Branch was so loaded as to draw more water than there was in the river, such act of overloading was one of carelessness on the part of the officers and crew, and any loss consequent thereupon was within the risks insured against (see 2 Arnould, 772, sec. 287), and covered by the policy; but if the boat had been loaded beyond her capacity, or so as to sink her below her guards, she would thereby have been rendered unsoaworthy.”
    We claim that tho court erred in refusing to charge as requested, and in the instructions given. 1 Arnould, 679, sec. 251; Weir v. Aberdeen, 2 B. & Ald. 320; Chase v. Eagle Insurance Co., 5 Pick. 53; Abbott, 346, 347; 1 Arnould on Ins. 697; Perrin v. Protection Insurance Co., 11 Ohio, 147; 5 Pick. 53; Bush v. Tho Royal Exchange Assurance Co., 2 B. & Ald., was decided in 1818, and Walker v. Maitland, 5 B. & Ald. 171, in 1821; Waters v. M. L. Insurance Co., 11 Pet. 213; Walker v. Maitland, and Bishop v. Pentland, 2 B. & C. 219. In Walker v. Maitland, the case of Bush
      v. Royal Exchange Assurance Company is relied upon; and in Bishop v. Pentland the same case of Bush v. Royal Exchange Assurance Company, and the case of Walker v. Maitland, arc the authorities cited. Not the least information-is given that anything which was said in Weir v. Aberdeen conflicted with the views expressed in the later cases.
    *In Arnould on Insurance it is said, if the ship is so heavily or so improperly loaded, when she sails on the voyage insured, as to be incapable of encountering the voyage, that is unseaworthiness; and the case of Weir v. Aberdeen is cited with approbation. 1 Arnould, 679, and 2 Ib. 5, 1, 086, and 772, 773.
    Bates & Scarborough, for plaintiff in error:
    I. The question propounded to Ross was competent, and tended to prove the defense. Steamboat Clipper v. Logan, 18 Ohio, 375.
    II. The chai’ge in relation to seaworthiness of boat. 1 Phil. on Ins. 308; 1 Arnould, 652; 11 Pick. 227; 2 Met. 432; 1 Whart 399; 5 Pick. 58.
    III. The clause in policy requiring assm’ed to use efforts for recovery of the steamboat. 1 Arnould, 577-583, inclusive; 1 Phil. on Ins., 346, 351; Wood v. Hartford Fire Ins. Co., 13 Conn. 553; 1 Marsh. 248, 250 ; Park. on Ins. 318.
    The assured were bound to use these efforts to entitle them to a l’ccovery. The question whether they were or wore not used should have been submitted to the jury.
    Fox & French, for defendant in error :
    I. The court properly ruled out the questions propounded to Ross.
    II. The charge that the policy rendered the'assured no more or less responsible for the negligence of the officers in saving the boat after the disaster, was correct. Nor did the court err in refusing the charge asked.
    The defendants contend that the boat, when she leaves port, must, at her peril, know that there is sufficient water to enable her to go from St. Louis to New Orleans without stopping. This is the substance of the charge asked.
    *Tke loss was not occasioned by running on a sand-bar, or on shallow places, but by running on a ledge of logs, and then, breaking in two; and that there was water enough to navigate, is evidenced by the fact that she was navigated to the place of disaster.

      Again, the position assumed by the defendants below, is contrary to another well-settled principle in insurance law. That is, that the insurer is always liable for any increased risks during the voyage. 1 Phil. Ins. 630.
    The counsel for plaintiffs in error are under a mistake, in supposing there is any warranty in the policy that the boat shall not be loaded deeper than the depth of water on the bars. 16 Pick. 303; 15 Wend. 532, 535; 12 Pick. 232; 5 Pick. 51.
    But a warranty, if not complied with, will defeat a recovery, although the breach of warranty did not contribute to the loss, and as is said, even if the subject matter of the warranty is immaterial to the risk. Park on Ins. 318; 1 Marsh. on Ins. 347.
    But even this position is doubted in the late English cases. 2 Barn. & Aid. 73; 5 Barn. & Ald. 171; 7 Adol. & Ellis, 40; 5 Mees. & Welsh. 405; 2 Met. 448.
    III. The next question arises under the clause providing for what shall be done in order to preserve the vessel from loss in case of accident met with'in the course of the voyage.
    This clause in the policy, so far as the insured is concerned, was originally inserted in policies for the benefit of the insured, so as to enable him to use his best exertions to save the vessel, “ without prejudice to his right to abandon.” 2 Condy’s Marsh. 614, ch. 13, sec. 5; 1 Ib. 324, ch. 8, sec. 3. The meaning of it is, that till the insured has been “informed of what happened, no act of the captain shall prejudice their right to abandon.” 2 Marsh: 614, 591; 1 Term, 608; 2 Marsh. on Ins. 592, ch. 13, sec. 2; 1 Term, 608; Mitchell v. Edie, 2 Marsh. ch. 13, see. 5, p. 614; 1 Johns. 367; 7 Johns. 423. Whatever a master would have a right to do, if the ship and cargo wore his own, the underwriter
    %nust answer for. 2 Phil. Ins. 268, 294; 2 Marsh. Ins. 580, 615. Acting for the benefit of all concerned, means with a view to that benefit, and not what the consequence of the act may prove. 2 Phil. Ins. 269; 1 Phil. Ins. 514; 3 Mass. 417.
    But it -is 'claimed, as we understand, that the insertion of the words, “ it shall be the duty of the assured, or his agents, to use everj practicable effort for the safeguard and recovery of the said steamboat,” means not only that the master shall make use of all ordinary efforts which skillful men would make use of, but if any one effort remained which others could have made use of, that effort must have been made use of, or the insured can not recover. Ve contend no such meaning can be attached to the clause. Gardere v. Col. Ins. Co., 7 Johns. 519; 2 Phil. on Ins. 443; 3 Mason, 82.
    Taft & Mallon, for plaintiff in error, in reply:
    We claim the superior court ei’red: 1. In excluding competent evidence to prove the unseaworthiness of the boat. 2. In charging that the steamboat could not be “unduly laden,” within the meaning of the policy, unless she were laden too deep for her capacity. 3. In charging that the clause in the policy, “that in case of loss or misfortune, it should be the duty of the assured, his agents or assigns, to use every practicable effort for the safeguard and recovery of the said steamboat, etc., did not affect the responsibilities of the parties to the policy, in any manner.

      First. It was claimed by the defendants below, that the Olive Branch was unseaworthy, because she had an incompetent pilot. Seaworthiness is a fact; and its existence is to be proved by evidence of facts, rather than by opinions. 1 Arnould’s Ins. 653.
    Wo claim, therefore, that the ineompefccncy may be proven by instances of bad piloting. Upon this principle those questions were put to the .witness Ross, which called for his opinion *of this, as an instance of good or bad piloting. 1 Arnould’s Ins. 675, 678.

      Secondly. 1. We claim that the court below erred in refusing to charge that a steamboat was “ unduly laden,” within the meaning of the policy, which was laden too deeply for the navigation of the river at the time when she left port. The provision in the policy is, that the company “ should not be liable for damage or loss caused by the said steamboat being unduly laden, during the continuance of the said policy.” The court charged the jury that this provision had reference only to the capacity of the vessel, and not at all to the depth of the water she was to navigate.
    2. But we claim that, independent of the clause in the policy, to which we have last referred, a boat which starts out from a home port, laden too deep for the depth of the water in the river, is not river-worthy. The vessel is to be equipped and loaded in proper manner for the navigable water in which she is to run.

      Thirdly. But the error upon which we most confidently rely, is in that portion of the charge which asserts that the clause in the policy requiring the assured, “in case of loss or misfortune, to use every practicable effort for the safeguard and recovery of the said steamboat,” “renders the insured no more and no less responsible for the negligence of the officers and crew of the boat, in saving the boat after the disaster, than they would have been if no such clause had been inserted.” This instruction, we insist, is erroneous. We claim that this clause means precisely what it says. It is an express warranty or condition in the policy, a compliance with which is a condition precedent to any cause of action. It has been settled by this court, following the Supreme Court of the United States, and the English courts, that negligence in the management of a ship or vessel, even of the insured himself, is no excuse for the insurer, where there is no express provision in the policy on the subject.
    1 Arnould on Ins. 577, sec. 213, pp. 578, 585; De Hahn *v. Hartley, 1 Term, 345, 346; Hibbert v. Pigon, Marsh. on Ins. 395 ; 1 Arnould, 347.
   Hitchcock, C. J.

These cases are alike in substance, and were argued and submitted by counsel as involving the same principles. The policies of insurance are alike, although of different dates. They were effected upon the same boat, and for the benefit of the same individual. The same testimony was offered in each case, the same points were made, and ruled substantially alike in each case, and in each the verdict of the jury was in favor of the insured.

There is some difference, however, in the charge of the court, upon one particular point in the two cases, and perhaps a slight difference in the ruling as to the testimony. Whether this difference is such as to require of this court to decide the cases differently, is a question to be considered; This difference is not adverted to by counsel, if it has been even perceived by them.

The general facts of the cases are these; The risks upon the “ Olive Branch” were taken at the times, and for the amounts stated in the declarations. This is apparent from the policies, which arc made part of the bills of exceptions. The bills further show that the boat left St. Louis on a voyage to New Orleans, about August 7, 1846, with a cargo on board ; that her draft, with the cargo on board, when she left St. Louis, was about six to six and a half feet. At the time, the water was low in the river, and with the cargo on board, the boat could not pass some of the bars, and in order to get over them, the captain and crew were compelled to lighten her by taking out portions of the cargo. She-•was detained at Turkey Island some three days, at'which point a part of the cargo, consisting of lead, was taken out, and, by so lightening, her draft was reduced to from five and a half to six feet. Subsequent to this, she rubbed upon some of the bars, and ■occasionally upon logs. Her progress was slow, and she did not arrive at the place where lost until somewhere from the 15th to the 17th of August; at *which time, at about eleven o’clock at night, she was run upon a reef of stumps and logs, opposite the mouth of the Bordeaux chute, and was lost. The testimony as to the depth of water upon the bars is not very definite. The captain ■of the boat states the water was very low in the upper Mississippi; that below the mouth of the Ohio there was seven feet in the lowest places, which he considers very low for that part of the river. At the point where the accident happened, there was in ■the channel a sufficient depth of water, and no particular difficulty in the navigation; but the boat was some distance from the proper channel when she was run upon the logs. She is proved to have been staunch, sound, and seaworthy, when she left St. Louis, and there is no evidence of any injury done to her before the accident which occasioned her loss. It is possible, perhaps probable, that she might have been strained and injured somewhat in rubbing' upon bars and logs.

The evidence was offered to prove that the officers and crew were competent, and these, so far as examined, concur in testifying that, after the accident, everything was done, which, according to their judgment, could have been done, to save the cargo and relieve the boat, but they state it to have been their opinion, from the time of the accident, that there was no possibility of saving her. Witnesses were examined, on the part of the plaintiffs in error, to induce the belief that it was owing entirely to negligence and carelessness, that the boat was not relieved from her dangerous situation after she struck. Indeed, one witness, who was a passenger on board, states it as his opinion, from what he saw of the conduct of the officers and crew, that the boat was intentionally run upon the logs; that no efforts were made to get her off, and that he believed the design to have been to charge the insurers with the loss. The captain of the boat, however, and the other officers examined, say, expressly, that they did not, at the time of the loss, know that the boat was insured, and did not learn that fact until some time afterward.

Such are the.leading facts in the cape as set forth in the bills of exceptions.

*The defense relied upon by the insurance companies, was that the boat was unduly loaded, that she was unseaworthy, and that the insured and his agents did not use every practicable effort for the safety and preservation of the boat, at the time of the accident and loss.

On the trials, a witness was introduced by defendants below, by the name of Charles Ross, who had been á pilot upon the river, and who seems to have been acting as.the agent of said defendants below to prepare said eases for trial. He was acquainted with the river; had seen the wreck of the Olive Branch about two weeks after the loss. He stated how pilots usually run; that the descending boats are not usually very particular there, because of the depth of the river and width of the channel; that when he first saw the wreck, he was not nearer than four hundred and fifty yards from her; that boats might run within seventy-five yards and be safe.

The plaintiffs in error then propounded this question to the witness: “ State your opinion, from your knowledge of the character of the navigation of that part of the river, whether or not a boat descending the river, could be run to the place where the Olive Branch was when you saw her, by a competent, sober pilot, if awake, without criminal neglect or fraud.” The question was objected to, and the objection was sustained. In this it is claimed that the court erred.

It is difficult to conceive what object the party had in view in propounding this question. If the object was to enable the jury to infer from the answer that there had been neglect on the part of the pilot, such neglect could not excuse the underwriters. If it was to enable the jury to infer that the pilot was not awake, such fact would not excuse the underwriters. If the object was to prove that fraud had been committed, this ^certainly was not a legitimate mode of proving the fact of fraud. If the object was to induce the jury, contrary to all the evidence in the case, to believe that the pilot was not competent, it was a singular mode of proving incompetency.

The question is not based upon any hypothetical state of facts> bet upon the defendant’s knowledge of the navigation of that part of the river, and from this knowledge, he was called upon to state whether a boat could, under any possible circumstances, by night or by day, in time of storm, when affected by the force of wind or otherwise, be run to the place where she was wrecked by a competent, sober pilot, if awake, without criminal neglect or fraud.”

The witness might have answered the question, and have answered in accordance with the wishes of the plaintiffs in error, hut we think he was properly precluded from doing it, and in sustaining the objection the superior court did not err. The witness stated that he had heard the testimony as to the position of the boat on the logs, and as to that part of the river where the disaster happened, and further, that he had never heard of such a man as Hunt, who was pilot of the boat at the time of the loss, before that loss occurred.

This question was then propounded to the witness: “ Ou the facts in proof in this case, as to that part of the river where, and as to the night, and running of the Olive Branch when the accident happened, what is your opinion as to the competency of the pilot at the wheel ?”

This question was objected to and the objection sustained.

One of the questions involved in these cases was as to the competency of the pilot. This was a question for the jury. Upon this point there had been testimony, and the witnesses acquainted with the pilots had generally, if not universally, ^stated that they were good and competent pilots. This witness is then called upon to give his opinion of'their competency, not upon a hypothetical case stated, not upon an agreed state of facts, but from what ho had heard of the testimony in the particular case. He must then, as a juror, ascertain the state of facts from the evidence, conflicting as it was, and from the opinion which he formed of what the facts really were, draw his conclusion as to the competency or incompeteney of the pilots. This would be carrying the doctrine of permitting experts to testify and express their opinions upon particular matters, upon which they are called upon to speak, to a dangerous length. This doctrine was carried to the utmost extent it could be, in the case of the Steamboat Clipper v. Linus Logan, 18 Ohio, 375, with any kind of safety. But that case was materially different from this.

Admitting that Ross, as an expert, could be permitted to express bis opinion, it must be upon a hypothetical state of facts, or in a case where there was no contradiction of facts relative to the subject matter upon which ho was called to speak. In the case against the Cincinnati Mutual Insurance Company, the court seems to have admitted that upon a hypothetical case, he might express bis opinion.

As the question was propounded, we think the court very properly sustained the objection which was taken to it.

The plaintiffs in error then propounded the following question to the witness Ross: “State whether, since you have heard of Hunt, you have learned what was his reputation and character for sobriety, or drunkenness, at the time of this occurrence; if yea, state what that reputation and character was.”

This question was objected to, and the court would not permit it .to bo answered. This is complained of as error.

It is not readily perceived how the general character or reputation of Hunt was put in issue in this case; but if it was, it should bo proven by those who were acquainted with him and his reputation at the time, or before the time, of the disaster, *not by one who never heard of him before, but'might, by possibility, have heard evil reports of him after that disaster.

In the case against the Firemen’s Insurance Company, a witness by the name of McDonald was examined, and he was called upon, by plaintiffs in error, to state his opinion upon a particular point, from what he had heard of the testimony in the case, substantially, as was Ross in the second interrogatory propounded to him. This was not permitted by the court, and we think in thi3 the court ruled correctly.

These are all the points upon which it is claimed that the superior court erred in its rulings as to the testimony. In the opinion of this court, there was no error in those rulings.

The testimony being closed, the counsel for plaintiffs in error requested the court to charge the jury, “that if the Olive Branch was loaded so as to draw mor.e water than there was in the river, such overloading made her unseaworthy; and if such overloading contributed to the loss, the plaintiff can not recover; that if the jury shall find she was so overloaded, she was, in the language of the policy, “ unduly laden,” and the plaintiff can not recover for a loss arising therefrom.

The court refused to charge as requested; hut did charge “that if the boat was laden deeper than her capacity would safely allow, then she would be unseaworthy and unduly laden, not otherwise.’r At least such was the charge in the case of1 the Cincinnati Mutual Insurance Company.

That the overloading a vessel renders her unseaworthy, there can be no doubt, and being thus unseaworthy when she starts upon her voyage, if she is lost, no matter from what cause, the insurers are discharged, as the policy never attached. But the question raised between the superior court and the counsel for plaintiffs in error, is, whether the loading is to be controlled by the capacity of the vessel or the depth of the water over which the vessel is to float. The court' say that the capacity of the vessel is to control. If she is not loaded beyond her capacity, she is not, in contemplation of law, unseaworthy on- ^account of her loading. Counsel seem to admit this to be sound law enough, so far as concerns vessels navigating the ocean, but insist that in navigating the western waters a different rule must prevail. That here we must not look so much to the capacity of the vessel as to the depth of the water in our rivers—not the depth of water in the rivers generally, but the depth upon shoals and bars. It is urged, in favor of this construction, that there is a clause in these policies that the company shall not be liable “for damage or loss arising from, or caused by, the said steamboat being unduly laden during the continuance of the policy,” etc. It is said that in usiug the word unduly, something more was meant than what the law implied, without that provision.

Suppose we consider for a moment the consequences which would follow from adopting the construction which is contended for by plaintiff’s counsel. As a matter of the fact, we know that there is a great difference in the depth of our rivers at different seasons of the year. In times of flood the waters are deep; in times of drought they are very shoal. At one time a boat may bo loaded to her full capacity, and she will be within the terms of a policy of insurance. At another time she may not be loaded within two or three feet of her capacity, and she will not be within the same policy, because there may be shoals and bars over which she can not pass without rubbing upon the ground. A boat might bo loaded at New Orleans with a full cargo, and start on a voyage for St. Louis while the water in the lower Mississippi was in good navigable order, and might be lost before she left that part of the river, and still, if it could be shown that when she left Now Orleans the water in the upper part of the river was so low that she could not have passed the shoals and bars without grounding, the loss would not have been within the same policy. She might have been loaded within her own capacity, but not within the capacity of the river for the whole length of the voyage; therefore she was unsoaworthy from the commencement of the voyage, and the policy did not attach.

*It seems to the court that this will not do, and that the only sensible constniction to the terms “overloading” or “unduly laden ” is that given by the superior court—that it relates to the capacity of the boat, not to the capacity of the river.

But it is said that the judge erred in his charge in this: that he said, “if she was laden deeper than her capacity would allow, she was unsoaworthy, and not otherwise.

The language of the judge is not correctly quoted. As it was used in the case against the Cincinnati Mutual Insurance Company, it was this: “ If the jury should find that the boat was laden deeper than' her capacity would safely allow, then she would be unseawortby and unduly laden, and not otherwise.” The last words clearly have reference to the loading of the boat.

In the case against the Firemen’s Mutual Insurance Company, the language used in this part of the charge is different. The request to charge is the same, but the language of the court is as follows: “ If the Olive Branch was so loaded as to draw more water than there was in the river, such act of overloading was one of carelessness on the part of the officers and crew, and any loss consequent thereupon was within the risk insured against, and covered by the policy ; but if the boat had been loaded beyond her capacity, or so as to sink her below her guards, she would therefore have been rendered unseawortby.”

This language is not as clear and explicit as it might have been, but still it is easily understood, and is consistent with the charge in the other ease. The ideas conveyed are these: If the boat was loaded beyond her capacity, she was unseaworthy. Had she been loaded so as to sink her below her guards, she would have been unduly laden, and therefore unseaworthy ; but if she was so deeply laden as to make the navigation difficult, but still was loaded within her capacity, it was an act of carelessness on the part of the officers and crew, and any loss consequent thereon would have been covered by the policy.

In such case the vessel would be seaworthy so far as the loading was concerned, but tbero would have been more loading *than prudence dictated; but so long as she was seaworthy, the insurers would be liable for any loss.

So far as this charge is concerned, we do not, in either case, discover any error.

The policies contain this .clause: And in case of loss or misfortune as aforesaid, it shall be the duty of the assured, their agents or assigns, to use every practicable effort for the safeguard and recovery of the said steamboat, and if recovered, to cause the same to be forthwith repaired; and in case of neglect or refusal on the part of the assured, their agents or their assigns, to adopt prompt and efficient measures for the safeguard .and recovery thereof, the said insurers are hereby authorized to interpose and recover said steamboat, and cause the same to be repaired for account of the assured.”

The court charged the jury, “ That this clause rendered the assured no more and no loss responsible for the negligence of the officers and crew of the boat, in saving the boat after the disaster, than he would have been if no such clause had been inserted.”

In this it is claimed that the court erred.

In the opinion of the superior court, the insertion of this clause added nothing more to the responsibility of the assured, so far as the negligence of the officers and crew in saving the boat after the disaster was concerned, than would have been imposed upon him without any such clause. The disaster has happened which was insured against, and after this, after the insurer is liable to a partial or total loss, as the case may bo, the assured or his agents are bound by this clause to use efforts to recover and save the boat, and get her repaired ; and if they neglect, the insurer may do it and charge the assured with the expense. To determine whether the opinion expressed by the court to the jury is correct, it is necessary to ascertain what are the duties of the assured, his agents, etc., in case of a disaster like the one which happened in the cases under consideration.

This clause is said to be different from those inserted in the ^Atlantic policies. In these latter, the corresponding clause is, “ In case of any loss or misfortune, it shall be lawful for the assured, their factors, agents, servants, etc., to sue, labor, and travel for, in or about the defense, safeguard and recovery of the said goods or ships, without prejudice to this insurance.”

Now, this last-recited clause added nothing to the duties of the assured or his agent, in ease of loss. It was inserted, as it seems, so as to save to the insured a right to abandon, where he or his agents shall, after a disaster, have made efforts to recover and save the vessel and cargo. It was inserted for the benefit of the insured, not of the insurers. It does not vary or change the duties of the party. “ Without this clause,” says Marshall, “ the insured is bound, in justice, honor, and conscience, to use his utmost endeavors to make the most of what may be rescued from destruction, in order as much as possible to lighten the burden of the insurers.” 2 Marsh. Ins. 614.

It is claimed, however, that the insertion of the clause which has been referred to in the policies now before the court, imposes an express obligation on the insured, which before was only implied, and that it is to be treated as a warranty, which if not fulfilled will avoid the policy. Such was not the opinion of the Supreme Court of New York as expressed in the case of Gardere v. Columbian Insurance Company, 7 Johns. 514. In that case, the policy contained the usual clause, with this change: after the word “lawful,” the words “and necessary” were inserted, so that the reading was it shall be lawful and necessary for the assured,” etc. The judge, in delivering the opinion of the court, says, “ Previous to this alteration, the construction of the above clause was well understood; and I can discover no substantial reason why the insertion of the word “ necessary ” should so essentially alter the construction as to create a different operation. It imposes no additional duties on the master. He was before bound to labor diligently for the recovery of the property, and to alleviate the burdens of the insurer. This is a well settled rule,” etc. *In the case before us, more words are used than in the clause in the New York case; still, in that caso, the insertion of the word "necessary” included, iu its legal effect, all that is included, or insisted upon as being included, in the present policies. If so, then it follows, if the court of New York was right, and we think it was, that no additional duties were imposed upon the insured 'by the insertion of this clause, and the superior court very properly so instructed the jury.

This clause in the policy, although it imposes no additional duty upon the insured, secures to the insurers the privilege after a disaster, if the insured shall not labor faithfully to recover and repair the boat or vessel, of doing it themselves and of charging the expenditures to the assured. And they may do this without being charged with having accepted an abandonment.

In the opinion of this court, the superior court did not err in. the charge to the jury.

The last error assigned is, that the superior court refused to grant a new trial. If that court did not err in its rulings upon the testimony, nor in its charge to the. jury, no new trial should have been granted on either of these accounts. And the only remaining question is, whether the verdict was against the evidence. We have examined the testimony as it appears in the bills of exceptions, and it seems to us that instead of its being against tho verdict it fully sustains it, and the superior court very correctly overruled the motion for a new trial.

The judgment of the superior court, in both cases, is affirmed with costs.

       By a policy of insurance, the assured makes no warranty to the underwriters that the master and crew shall do their duty during the voyage; and their negligence or misconduct is no defense to an action on the policy, where the loss has been immediately occasioned by the perils insured against; nor can any distinction be made in tbis respect between tbe omission by the master and crew to do an act which ought to be done, and the doing an act which ought not to be done, in the course of tbe navigation. Broom’s Legal Maxims, 388, citing Dixon v. Sadler, 5 M. & W. 414; 11 Ohio, 147; 11 Peters, 213.


source: Caselaw Access Project

author: Ranney, J.

license: Public Domain

text:
    *Lessee of James Blake v. Lewis Davis et al.
    Under the articles of association entered into between the proprietors of the Ohio Company and the partition thereunder made, deeds of conveyance from the directors to the agents, and from the agents .to the several proprietors, as therein provided for, may bo presumed to protect the equitable rights and possession of those claiming under said proprietors.

      Buck presumption can not be made in aid of a party who is not the rightful, equitable owner of the land, and in the actual possession or what is-equivalent thereto.
    Where the proprietor of a share in said company died in 1793, and his share was sold to pay debts in 1795 by his administrator, in pursuance of an order of the Supreme Judicial Court of Massachusetts, where the parties all resided, said partition not having been made until 1796, and the heir not having made any claim to the property, paid taxes, or exercised any acts of ownership over it until 1846, when she and her husband conveyed it to the lessor of the plaintiff—conveyances having been made, and a possession of nearly twenty years had under the purchaser at the administrator’s sale: Held, that although said judicial proceedings could not affect interests in lands in this state, yet such long acquiescence under them, without claim to the land, and the want of possession by the plaintiff, or those under whom he claims, would prevent any such presumption, from arising in his favor as against the actual occupants of the land.

    To authorize a judgment upon a special verdict, all the facts essential to the right of the party in whose favor judgment is to be rendered, must be found by the jury—finding evidence sufficient prima facie to establish such facts, is not sufficient.

    Whatever a conveyance is to be presumed from circumstances alleged to be sufficient to justify it, is a question of fact for the jury, under the advice of the court.
    Error to the common pleas of Athens county.
    The action of the common pleas was ejectment, commenced *in April, 1847, against Davis and others, and was tried to a jury at the November term, 1849.
    The jury returned a special verdict, upon which the common pleas, “ being of opinion that the law arising upon the fact so found by the jury is with the defendants,” rendered judgment in favor of said defendants.
    This writ of error is prosecuted to reverse the judgment so rendered.
    The errors assigned are:
    1. The court of common pleas erred in declaring the law, upon the facts, as found by the jury, to be with the defendants.
    2. The judgment should have been rendered for the plaintiff, and not for the defendants.
    The facts found by the jury are stated in the opinion of the court.
    No motion was made for a new trial, nor was any exception taken to the action of the court below.
    S. E. Yinton and C. C. Convers, for plaintiff:
    Upon the state of facts disclosed in the bill of exceptions, the question arises: may it not be presumed that the directors of the Ohio company, and the agent of Williams’ share, made such deeds as the articles of association bound them to make after the land was apportioned by lot (the directors to the agent and the agent to their heir), and thus carried into effect the original agreement to convey, in execution of their respective trusts?
    This presumption should be made, and is fully sustained by authority. If the heir at law of Williams had been in the actual possession of the land in controversy, there could be no hesitation in presuming a conveyance to her, in execution of this trust, in the manner provided for in the articles of association. A presumption has been defined, “ an inference as to the existence of a fact not known, arising from its connection with facts which are known.” 7 Wend. 66.
    *This presumption of an unknown fact, such as a conveyance where there has been a long possession, is not made so much from the conviction that the unknown fact actually existed, as from a desire to giVe effect to a principle of public policy, which requires the repose of titles. Jackson v. McCall, 10 Johns. 381.
    Possession is not itself a conveyance, but a fact from which, when long continued, it may be inferred that a party is holding under a grant; but this inference is not confined to those cases where the party in whose faver it is made has been in possession; it may be made from any other fact, or set of facts, equivalent to possession, or equally satisfactory to the mind as the foundation of an inference. After twenty years without demand of payment or recognition of liability by the obligor, payment of a bond will be presumed. So, where it is proved a mortgage debt has been paid, a reconveyance will be presumed. 2 Cow. & Hill’s Notes to Phil Ev. 356.
    The heir at law of Williams, never having been in possession of the land in controversy, the question is presented whether the special verdict does not show a state of facts equivalent to possession, from which a grant to her may be presumed.
    What are these facts, thus equivalent to possession? They are:
    1. The directors and agents were to take the title in trust, under an agreement to convey to the proprietors.
    2. The articles of association contemplated the purchase of a large district of country, which it was not in the contemplation of the parties should bo occupied, until a partition and a title, vested in the shareholders, individually in severalty; hence the partition was to be made in three months after the purchase, according to the articles. It was not expected that the shareholders would generally emigrate to these lands.
    3. The partition has been universally acquiesced in for half a century. Cow. & Hill’s Notes to Phil. Ev. 364; Gittings’ Lessee v. Hall, 1 Har. & Johns. 14; 1 Greenl. 20. This ease in Green-leaf is in point.
    *In the case at bar the land lay in a state of nature for nearly a third of a century after the partition, which was during that time acquiesced in. The defendant’s claim is not founded on a different and adverse right to that of plaintiff, but goes back to the same source. It does not, therefore, impose any obstacle to the presumption of a grant. It may raise the inquiry whether the grant shall be presumed to the heir, or purchaser, at the administrator’s sale. The land lying wild for thirty years (the case in 1 Greonleaf), shows that a grant in the meantime should be presumed in favor of one of these parties. The administrator’s sale being a nullity, can not lay the foundation for a presumption of a conveyance to the purchaser, prior to the time when the claimant went into possession, nor of a conveyance by the heir, to the purchaser at the sale.
    The defendant’s possession commenced in 1828 or 1829, nineteen years before suit brought. During all this time the heir was a married woman—a non-resident—nearly 1,000 miles from the land. Her silence for these nineteen years can not prejudice her. Doe v. Campbell, 10 Johns. 476 ; Jackson v. Moore, 13 Ib. 516; Doe v. Phillips, 9 Ib. 170; 10 Ib. 381; 2 Cow. & Hill’s Notes to Phil. Ev. 368 ; Lyham v. Slade, 4 Term, 682; Bull. N. P. 110; Bowerman v. Lyburn, 7 Term 3; Jackson v. Woolsey, 11 Johns. 456; 8 Term, 122; 6 Cow. 706; 8 Wend. 426; 7 Term, 43.
    This doctrine has been applied by the Supreme Court of Ohio to the Ohio Company’s purchase. Perry v. Noland, decided in the Supreme Court of Gallia county, 1817.
    John Welch, for defendants:
    1. No presumption of a grant to Williams or his heir can be raised without a possession in the party, or acts of ownership. 1 Greenl. Ev. 52; 7 Johns. 5; 10 Ib. 377; 13 Ib. 513; 4 Cow. 587; 6 Ib. 751; 7 Ib. 708; 7 Mass. 488; 3 Ib. 399; 6 Greenl. 145; Bierce et al. v. Pierce et al., 1 Ohio, 529; Hamman v. Kelley et al., 14 Ohio, 503; Kinsman v. *Loomis, 11 Ib. 475; Lessee of Starkie v. Smith, 5 Ib. 455.
    2. The facts appear and rebut the presumption. Presumptions can not contradict admitted facts. Wallace’s Lessee v. Miner, 6 Ohio, 366; Lessee of Goforth v. Long, 4 Ohio, 129; Roads v. Simms, 1 Ohio, 218; Boal v. King, 6 Ohio, 11. The special ver-. diet finds that a deed was never made to the heir, or at least does not find that one was made.
    3. This was a question for the jury, and they have not found the existence of the deed. The court can not add to their verdict.
    When a special verdict is found, the court can not find any fact outside of it. The jury has found that no deed was made. The most the court could do would be to “ advise ” the jury or to grant a new trial. They wore asked to do neither. Of course there is no error, even if the jury found wrong, and the plaintiff has no remedy but in a new action. 1 Greenl. Ev. 18, 49, 51; Lessee of McArthur’s Heirs v. Gallagher, 8 Ohio, 516.
    4. There is better ground to presume a deed by the heir, or by the trustees to the grantee under the administrator, than to presume a deed to the heir. The purchaser from the administrator has the equity, possession, and long-continued acts of ownership.

    A, G. Brown, on same side:
    The title of Williams at bis death was only an equity. The legal title did not descend to his heir. The plaintiff must thou fail. How can it bo claimed the heir derived a legal title? Whether by descent, or purchase, or directly by deed, real or pi’esumod ?
    It will, pei-haps, be claimed that the deed of partition of February 1, 1796, by the “proprietors, original agents,” etc., having been acquiesced in, amounts to a conveyance, although there is no evidence that this deed was authorized, nor was it properly executed. But the heir can not claim by descent, because her ^father died before the making of a deed—not by purchase, for the money had been fully paid by her father, for whom the legal title was held in trust—not directly from the deeds, for her father, and not herself, is alone named as the grantee; so is the allotment or deed. Lessee of Thompson’s Heirs v. Gotham, 9 Ohio, 170; Kinsman’s Lessee v. Loomis & Wood, 11 Ohio, 475.
    The presumption should be, that the proper conveyance was made to defendants. Counsel are wrong in stating that there •were eight hundred and twenty-two.share-owners; there was that number of shares, but not half so many share-owners.

       As to when grants, assignments, etc., will be presumed in aid of the title of an occupant, see Wilcox’s Dig. Ev. VII, 252; Harmar v. Kelly, 14 Ohio 602; Duke v. Thompson, 16 Ohio, 34; 2 How. U. S. 76; 2 Johns. 226.

        As to effect of recitals in conveyances, upon rights of purchasers, 2 Ohio, 76; 4 Ohio, 446; 10 Ohio, 466, 513; 11 Ohio, 192; 1 McLean, 486, 533; 6 East, 80 ; 4 Mass. 182 ; 7 Penn. 209 ; 6 Am. Com. L. 503, 512; and see Page on Va. Mil. Titles 2 Johns. Ch. 210.

       A court in a sister state can not authorize a sale of land in Ohio. Newell v. Ooit, 1 Ohio, 519 ; Wills v. Cooper, 2 Ohio, 124; Henry v. Doctor, 9 Ohio, 49; 2 Ohio, 234; 3 Ohio, 488; 9 Ohio, 180; 13 Ohio, 375.
      If an owner of land knowingly permits improvements to be made by an occupant, under an erroneous opinion of his title, without setting up a claim, he can not afterward set up his claim. Carter v. Longworth, 4 Ohio, 384; 10 Ohio, 288.

       See Hambleton v. Dempsey & Co., reported on pp. 168-173 of this volume.

   Ranney, J.

The questions presented in this case arise upon a special verdict, rendered in the court below, upon which a judgment was rendered for the defendants. From the facts found by the jury, taken in connection with several acts bf Congress, the following case substantially is made:

In the month of March, 1786, ton delegates, from several of the counties in the commonwealth of Massachusetts, assembled in the city of Boston, to consider of the expediency of forming a company or association to purchase lands and make a settlement in the western country. Their deliberations resulted in a determination to form such association, and on the third of that month, they entered into written articles for that purpose, by which it was stipulated that a fund not to exceed $1,000,000, exclusive of one year’s interest thereon, should be raised in continental specie certificates; that each share in the company should consist of $1,000, and upon each share $10, in gold and silver coin, should be paid to such agents as the subscribers might elect.

The whole fund of certificates was to be applied to the purchase of lands in some one of the proposed states, northwest of the river Ohio, or any other place adopted by Congress, not less advantageous to the company; the one year’s interest to the purpose of making a settlement in the country, and assisting those who would be otherwise unable to remove there, and *the gold and silver, to the payment of the expenses of purchasing the lands, and other contingent charges.

To avoid expense and to render both agents and subscribers secure, the proprietors of twenty shares constituted a grand division of the company, and appointed their own agent, who became accountable to each subscriber for the certificates and money received, and that the subscriber should get a just dividend of the land purchased, both in quantity and quality, to be drawn by lot, and the agent was then bound to execute to the subscriber a deed of conveyance, similar to those he should receive from the directors. The agents being thus accountable to the subscribers, were to appoint the officers of the company, consisting of five directors, a treasurer and secretary, and they were to pay over into the hands of the treasurer all funds received by them.

The directors had the sole disposal of the company’s fund, and were required to purchase lands for the benefit of the company as before stated, either at public or private sale, as they deemed expedient. To secure the agents, both the treasurer and directors were required to give bond to them jointly and severally, for the faithful execution of their trusts; and the directors were still further bound, within three months from the completion of the purchase, to divide by lot, in such manner as the agents or a majority of them should agree, among the proprietors, the land so purchased, and thereupon to execute such deeds to the agents respectively, for the proportion that fell to the division of each, as the directors might receive from the commissioners of Congress.

No person was perm itted to hold more than five shares, and no subscription for less than a lull share could bo received. It was further provided, that if the whole fund should not be raised by October 17, 1786, the agent of any division might jjroeeed in the same manner as though the whole fund proposed had been raised.

Subscribers to this association were procured in all the New England States, New York, New Jersey, and extending south *as far as Virginia, to the number of eight hundred and twenty-two shares, for which payments were made in full.

In the fall of 1786, the agents of the company purchased of the United States, the district of country in the now State of Ohio, known as the Ohio Company’s Purchase,” of which the premises in question are a part. On May 10, 1792, in obedience to an act of Congress, passed the 21st of April of the same year, the President of the United States, by two several patents of that date, granted the same lands, by particular descriptions, to Rufus Putnam, Manassah Cutler, Robert Oliver, and Griffin Green, the directors of said company, their heirs and assigns—964,285 acres— in trust for the persons composing the said Ohio Company’s associates, according to their several rights and interests, and for their heirs and assigns, as tenants in common.”

Jeremiah Williams was the owner of one share in the company. In the year 1793, and before any division of the lands was made, he died, intestate, leaving Eliza Williams, his only child and solo heir at law. After the death of Williams, on February 1, 1796, Rufus Putnam, Benj. Tallmadge, John Maury, and Benj. Ives Gilman, as agents of the proprietors, executed a deed of partition of the lands of the company, setting apart and allotting to each shareholder his land in severalty, by a precise and specific description, in which deed the land in question was set off and allotted to Jeremiah Williams as a part of his share.

In making this allotment, in no caso did the agents name the heirs of any deceased shareholder, but uniformly set it off, in the name of the original owner. This partition has been universally acquiesced in by the proprietors, and they and those claiming under them have possessed and enjoyed the property in severalty, without objection, and that whole district of country has been settled and grown up under it.

Eliza Williams, after the death of her father, married Samuel Bradlee, of Boston, Massachusetts. Neither she nor her father *ever took possession of this land, nor has she or her husband ever been in the State of Ohio. On June 26, 1846, they conveyed these lands to the lessor of the plaintiff.

Such is the plaintiff’s title. These further facts found by the jury are necessary, to understand the claim of title made by the defendants. On the death of Jeremiah Williams, Joseph Williams was appointed his administrator. On February 17, 1795, ho made application to the Supreme Judicial Court of the county of Suffolk, Massachusetts, for leave to sell, among other lands, one-half of this share, to pay the debts of the estate. Leave was given, and on August 13, 1795, he did sell and convey the whole share to Thomas Lloyd, “attaching to said deed the original certificate showing the payment by said Jeremiah Williams of the moneys constituting him proprietor of said share.” In May, 1796, Lloyd assigned all his interest to Ebenczer Belknap, under whom the defendants claim one undivided half of the section described in the declaration. Possession was taken about nineteen years before the commencement of the suit, and has been continued to the present time.

The question arising upon this state of facts is, has the lessor of the plaintiff shown such a title as will enable him to recover in. an action of ejectment? Neither he nor those under whom he claims ever having had possession of this land, it was incumbent upon him to show a connected paper title from the government to sustain the action of ejectment. He did show a regular p>atent from the government to Rufus Putnam and others, in trust for the proprietors of the Ohio Company, of whom Jeremiah Williams was one. And ho claims from the other facts and circumstances established in the case, the court are authorized and bound to presume that a deed was made from tho trustees' to .the agents, and from the agents to the several proprietors, in accordance with their articles of association. And while it is claimed by his counsel that such a presumption would be in strict accordance with well-settled principles, its vast importance in this case is enforced from the consideration *that the land titles of a large district of country depend upon it, and it is supposed that not less than 300,000 acres of the lands of the company were allotted and set off in the name of former shareholders, who were dead at the time the partition was made.

The importance of the question is fully appreciated by us, and although we arc not aware that any diversity of practice has for a long time obtained in this court upon the subject, as no imported case is found, we have thought proper to consider, in the first place, and settle the main question raised, as applicable to these titles generally, without regard to such circumstances as are peculiar to this title.' The inquiry will then arise whether this case falls within the principle.

The first consideration that occurs to the mind, is that this whole business, from the beginning to the end, was to be performed by directors and agents, who, from the magnitude of the’ transaction, might almost be considered as holding a semi-official relation to the proprietors. After the proprietor had paid his money and certificates, the whole obligation was thrown upon these directors and agents, to secure him a title to his proportion of the land purchased. The steps in order were for the directors first to purchase of, and take a title from the government. This they did. Their next duty was, within three months after the purchase, to divide the lands by lot among the proprietors, “ in such manner as the agents, or a majority of them,” might agree upon. This they did,, but not within the time stipulated. What is called the deed of partition can be regarded as nothing but such allotment. It is good, so far as we can see, for that and nothing else. It evidences the assent of the agents, in the manner provided for in the articles; and although it is suggested that the agents joining in the deed, did not represent a majority of the shares, the verdict does not show that to bo the fact, but the contrary. The obligation was to divide the land into as many parts as there were shares, and it was no part of their duty to subdivide it among heirs, to whom it might have descended. The fact, *thorefore, that a proprietor was dead, neither took from nor added to their duties, nor could it in any way affect the validity of their proceedings.

The next duty of the directors, after the partition, was to convey to the agents, and the duty of the agents immediately arose to convey to the proprietors. These deeds, if ever made, are not to be found. Can they, to protect the equitable rights, and perfect the titles of the proprietors, be presumed to have been executed? It will be seen that the question arises between trustee and cestui que trust, where the trustee had no right to retain the title, but was under a positive obligation to convey. In such cases we think the doctrine very clear, both upon reason and authority, that a conveyance may be presumed.

In Bowerman v. Lyburn, 7 Term, 3, Lord Kenyon said, “ that as to the presumption he had directed the jury to make, he had grounded himself upon the doctrine laid down by Lord Mansfield in Lade v. Holford, which was not, as had been supposed, that an ejectment might be maintained upon a mere equitable title, which would remove ancient landmarks in the law, and create great confusion; but that in all cases where trustees ought to convey to the beneficial owner, he would leave it to a jury to presume, where such a presumption might reasonably be made, that they had conveyed accordingly, in order to prevent a title from being defeated by a matter of form. And he thought this rule, as far as it went, highly convenient and proper.”

No less explicit is the case of Hilary v. Waller, 12 Ves. 239. This was a bill brought for a specific performance. The defendant objected to the title, upon the ground that the legal estate was outstanding in the hands of a trustee. The master of the rolls presumed a release. He says : “ On what ground was such a presumption to be made? On this: That what ought to have been done should be presumed to have been done.” When the purpose is answered for which the legal estate was convoyed, it ought to be roconveyod. Presumptions do not always proceed on a belief that the thing ^presumed has actually taken place. “ Grants are frequently presumed,” as Lord Mansfield says, “merely for the purpose, and from a principle of quieting the possession. There is much occasion for presuming conveyances of legal estates, as otherwise titles must forever remain imperfect, and in many respects, unavailable, when, from length of time, it has become impossible to discover in whom the legal estate (if outstanding) is actually vested.” On appeal to the Lord Chancellor (Erskine), the decree was affirmed. He says : The presumption in courts of law from length of time, stands upon a clear principle, built upon reason, the nature and character of man, and the result of human experience. It resolves itself into this : that a man will naturally enjoy what belongs to him. That is the whole principle.” Mr. Justice Story, in delivering the opinion of the Supreme Court of the United States in the case of Prevost v. Gratz, 6 Wheat. 604, says: “The doctrine in Hilary v. Waller, on this subject, meets our approbation;” and it is also approved by Chancellor Kent, in Ham v. Schuyler, 4 Johns. Ch. 7; Dutch Church v. Mott, 8 Paige, 81.

Again, in Ricard v. Williams, 7 Wheat. 109, Mr. Justice Story says : “There is no difference in the doctrine, whether the grant relate to corporeal or incorporeal hereditaments. A grant of land may as well be presumed as a grant of a fishery, or of a common, or of a way. Presumptions of this nature are adopted from the general infirmity of human nature, the difficulty of preserving muniments of title, and the public policy of supporting long and uninterrupted possessions;” “ and where the other circumstances are cogent and full, there is no absolute bar against the presumption of a grant within a period short of the statute of limitations.’’ If further illustration from the books were needed upon this subject, I know not where the general doctrine will be found more perspicuously stated than in 2 Cow. & Hill’s Notes to Phil. Ev. 368.

In speaking of presuming conveyances from trustees to cestuis que trust, these authors say, “And here courts do not *wait twenty years, or any given period, after the duty arises, but tho cestui que trust being in actual possession, and the duty of tho trustees thus partially executed, by allowing such possession, tho presumption is that they fulfilled the additional duty of making an actual conveyance, according to the trust. The cases on this head range from a very few years to fifty; but it is evident, from the principle on which tho decisions go, that a very short timo, in case of a clear trust, would readily be adopted. Tho rule prevails both at law and in equity. Law grounds its presumption on tho fact that a court of equity would compel the execution of such trusts, and seems, in this instance, very nearly to follow the rulo in chancery—that what ought to be'done shall be considered as done.”

From these authorities, as well as from the reason and justice of tho doctrine itself, we feel no hesitation in saying that wherever it may become necessary to protect the possession and equitable rights of those holding under the shareholders in this company, in accordance with the deed of partition or allotment, shown in this case, all such deeds of conveyance from the directors and agents as are necessary to clothe such equitable rights with perfect legal protection, may, and ought to be, presumed.

The next inquiry arising is, does the lessor of the plaintiff present us a case falling within this rule ? As we have already seen, the whole doctrine rests upon the idea that titles and possessions are to be quieted, not disturbed by it; that right and justice are protected in its application, not injured; in short, it is only “ what ought to be done,” that under this rule can be considered “as done.” It is only when clear and unquestionable equitable rights exist, that presumption can be called forth to clothe them with legal protection.

It is also conceded by the counsel for the plaintiff in error that actual possession in the party calling for this aid, or what is equivalent to it, must be found; but they insist that a state of facts, equivalent to actual possession, in the heir of "Williams, is shown in this case. Let ns inquire what was her ^equity, and what are these facts thus relied upon., Jeremiah Williams was the clear and unquestionable owner, in equity, of one eight hundred and twenty-second part of the whole purchase. As evidence of this, ho hold from his agent a certificate showing tho fact. Ho was never, during his life, entitled to a conveyance of any specific land, for tho reason that such conveyance could not bo made until alter partition, which did not take place until three years after his death. It would be absurd, therefore, to presume that any deed was ever made to him. Upon, his death his equity descended to his heir; subject, however, to the payment of his debts. His personal representative applied for leave to sell it for that pui'pose; obtained it; sold it to Lloyd ; received the pay for it; made a deedr and with it transferred the original certificate given to Williams by the agent. And all this took place one year before the partition was made, and consequently before any specific land could be convoyed to the heir. Whether the heir was at this time an infant, or under coverture, does not appear. Nearly three generations of men passed away before we have any evidence that sho bestowed one thought upon this land, or did one act in respect to it; and, at the end of that time, all she did was to make a deed to tho lessor of the plaintiff. During all this time conveyances were-being made in tho chain of title under Loyd, and an actual possession for nearly twenty years had taken place. Wo are now asked, as against the actual occupants, to presume that a deed for this land was made from the directors or agents of the company to this woman, after the partition was made, upon the ground that the judicial proceedings under which this equity was sold wero invalid. It is undoubtedly true that those proceedings were inoperative to affect lands hold by either legal or equitable title-in Ohio. They could, so far as real estate is concerned, have no extra territorial íorce; and if the heir, from this circumstance, retained a legal advantage, wo would not take it from her. But sho has no legal advantage, but now seeks, by presumptions, to get it. To get it, sho must present *an honest, not a technical case. She can not, in honesty, take this land from the occupants, while her father’s estate was relieved with the very money that paid for it, and when she has acquiesced in tho action of the administrator for more than half a century. I know it is said that she is a married woman; hut I have yet to learn that even married womon have a right to do wrong. We take from her none of her rights; we only prevent her from taking the rights of others.

I will now briefly advert to the authorities relied upon by the plaintiff’s counsel. The first is the case of Jackson v. McCall, 10 Johns. 380.

In this case the parties claiming the benefit of bne presumption, had been in actual possession for forty-one years, and this-circumstance is as strongly relied upon as in any case to be found in the books. The court say: “ This John McDonald died in possession, and the lessor of the plaintiff succeeded as his son and heir to the possession of the Provoost lot, and in which ho has since continued. We are then to conclude that the father purchased the Provoost title at an early day; and from the fact of the order of the council, and the original survey by government in 17C4, and the recognition of it in the patent to McKenzie in 17C5, and the continual and undisturbed possession by the family of the lessor, a patent to Provoost, and a deed from him to the elder McDonald, might even have been presumed, for the sako of quieting the possession. In the case of the Mayor of Hull v. Horner, Cowp. 102, Lord Mansfield held, that a grant or charter from the crown, which ought to be by matter of record, might, under the circumstances, be presumed, though within time of legal memory. The fact in such a case is presumed, for the purpose and from a principle of quieting the possession, and not because the court really think a grant has been made.” '

The cases of Clinton’s Lessee v. Campbell, 10 Johns. 475, and Jackson v. Moore, 13 Johns. 513, next cited, affirm the principle that where lands are conveyed by a number of persons to a trustee, to convoy according to a partition agreed upon *among the owners, deeds from the trustee in execution of the trust, would be presumed, after a lapse of many years, in favor of the persons equitably entitled thereto—the very doctrine held by us in the first part of this opinion.

The next caso cited is Jackson v. Woolsey, 11 Johns. 446. The defendant claimed under a deed from commissioners appointed to make partition, was in actual possession, and the equitable owner. Yates, J., in delivering the opinion of the court, says: “The circumstances of this case would warrant a jury to presume, that the deed alleged to have been given by the commissioners had been duly executed by them, in pursuance of the order of the court of common pleas; and if so, this court are bound to presume it. The objection stated in the argument, that the period of possession is insufficient to authorize such a presumption, can not prevent it. It is correct here to presume that they did their duty.”

The case of Farrer et al. v. Merrill, 1 Greenl. 17, is claimed as a very strong one for the plaintiff. In that case it was decided that “ after a lapse of more than seventy years, without any adverse claim, the jury may presume a grant from the original proprietor of a share in a township of land, to a person afterward constantly acting as grantee of such share, sustaining various offices as such in the corporation of proprietors, and paying taxes thereon; although such share consist of wild land and be not holden by any open, visible possession.” C. J. Mellen, while he admitted the general rule, requiring actual possession on which to found the presumption, and that it could never arise where there was adverse possession, said he regarded these “circumstances as equal, perhaps, to open possession, in favor of the presumption.”

The points of resemblance between that case and tho one under consideration, are very few indeed. In that case seventy years had elapsed without any adverse claim—in this one fifty, with a constant adverse claim; in that, the person claiming the presumption had constantly acted as the grantee—in this, no *sueh acts are pretended; in that case the claimant had constantly paid the taxes—in this, none are paid ; in that case the lands were wild and unoccupied—in this, held adversely for many years.

Upon a careful examination of all the cases cited, we do not think they help the plaintiff’s case; and we are confident no case can be found where a deed has been presumed in favor of a party so thoroughly disconnected with the land as this plaintiff and those under whom he claims. Certain it is, that this court have most positively and explicitly held the contrary.

In Kinsman’s Lessee v. Loomis, 11 Ohio, 475, Judge Lane, in delivering the opinion of the court, says: “ But this presumption will not aid the plaintiff here. It springs from possession ; it is ■raised to support a possession; it has no existence in his favor who attacks the rights of one who holds the possession adversely against him.”

And again: In Harmon v. Kelly, 14 Ohio, 509, Judge Birchard, delivering the opinion of the pourt, after quoting and approving this decision, says : “ When a cestui que trust has for a long time been in possession of lands which the trustee ought to have conveyed to him, the conveyance may be presumed, but the presumption is not raised in his favor who attacks or holds in opposition to the equitable right.”

This holding is in strict accordance with the well-settled rule of evidence upon the subject,- as found in the elementary books. It is thus stated in 2 Cowen & Hill’s Notes to 2 Phillips’ Ev. 356: “Sometimes a deed, in the execution of a trust, is to be presumed; sometimes a surrender of terms, or a conveyance in pursuance of some agreement, or in the execution of some legal duty ; or from some other circumstances. In all these cases adverse possession, or what is equivalent, makes the main ingredient ; but the time may overgo, or fall short of that required by the statute; and various auxiliary circumstances are admissible to support or detract from the presumption.”

The same rule is laid down by G-reenleaf, vol. 1, page 53. He says: “It is sufficient that the party who asks the aid of this ^presumption, has proved a title to the beneficial ownership, and a long possession, not inconsistent therewith ; and has made it not unreasonable to believe that the deed of conveyance, or other act essential to the title, was duly executed. Where these merits are wanting, the jury are not advised to make the presumption.” We are of opinion that all these merits are wanting in this case. In the first place, the lessor of the plaintiff has proved no “title to the beneficial ownership.” If he had a legal advantage by which he could recover the land, it would still be dishonest to do so, while the consideration paid for it was retained. He, or those under whom he claims, have had no long possession ” of this land, or indeed any possession, or anything equivalent to it. It would be difficult to imagine a ease of more entire absence of all acts or claims of ownership, than is found in this, for more than half a century. It is “ unreasonable to believe” that any deed was ever made by the agent to either Williams or his daughter. He was dead long before it could have been made, and his equity in the land was sold under the sanction of the highest judicial tribunal in the State of Massachusetts, where the parties all resided, and the original certificate transferred to the purchaser, also before any deed could have been made to his heir. And while -these proceedings fail in legal efficiency to transfer the title, when taken in connection with the long acquiescence in them, they make it “ unreasonable” to suppose that the heir ever claimed, or the agent made her a deed, especially as his own liability was noL removed until his certificate was taken up or satisfied.

We are therefore unanimously of opinion, that no such conveyances as are claimed, could rightfully be presumed in favor of the lessor of the plaintiff, or in aid of the title under which he claims. This disposes of the case upon the broadest ground upon which the parties have placed it.

But a majority of this court are of opinion that a judgment could not, in any event, be rendered for the plaintiff, upon the special verdict found in the case. There are not facts enough *found by the jury to enable them to do so. Without the deeds sought to be presumed, it is conceded the plaintiff could not recover. The jury alone are authorized to presume them. This is not done; but a state of facts is found, from which it is claimed such presumirtions may bo raised. This is but the finding of evidence by the verdict, which is clearly insufficient. The rule is thus stated by Gould: “If, in a special verdict, the jury find only the evidence of a material fact, instead of the fact itself, or otherwise omit to find upon such a fact either way, no judgment can be rendered upon the finding for either party; since'a matter of fact, essential to a determination of the cause, is left unascertained by the verdict,” as if in trover the jury find the loss of the goods, the finding by defendant, and refusal to deliver them up on demand ; and he gives this reason : “ For the conversion, which is the gist of the action, is neither found nor denied by it; the demand and refusal being onlypnwia facie evidence of a conversion.” Gould’s Pleading, 525.

That these are more presumptions of fact, and to be drawn, by the jury, is well settled. In Ricard v. Williams, 7 Wheat. 109, it is said : “They may be encountered and rebutted by contrary presumptions, and can never fairly arise where all the circumstances are perfectly consistent with the non-existonco of a grant.”

In Jackson v. Porter, 1 Paine, 8, it was held by Thompson, J., that “ whether a deed is to be presumed from a long possession, is a mixed question of law and fact, and in most, if not in all cases, to be submitted to the jury under the advice of the court. The existence of the deed is a fact for the jury, but its legal effect and operation is a question of law for the court.”

We see nothing erroneous in the judgment of the court of common pleas, and it must therefore be affirmed.