text:
    *Jacob Bohart and Peter Bohart v. Isaac Atkinson.
    In proceedings in partition, an appraiser, in the absence of fraud, prior to the aot of March 29, 1841, might become a purchaser at the sheriff's sale.
    In the absence of fraud, such proceedings can not be questioned collaterally.
    In such proceedings, the acts of the guardian of a minor, done in good faith, are binding upon his ward.
    Where, a minor, in such case, on arriving at full age, ratifies the acts of his guardian, by receiving and appropriating the proceeds of the sale, with > full knowledge of the facts, he is estopped in equity from taking ad* vantage of a mere irregularity in the proceedings.
    Allegations of fraud in the bill, if denied in the answer, and unsupported by > proof, aro of no avail, even though there may he extrinsic circumstances calculated to excite suspicion.
    The rule of policy applied in the case of Armstrong v. Huston’s Heirs, is a rigorous one, and will not he extended to a case not strictly in point.
    This is a case in chancery, reserved in the county of Carroll.
    The bill states, in substance:
    That Peter Bohart died intestate, seized of the northwest .quarter of section 31, township 14, rang® 5, in Carroll county, except about thirty acres, on which the town of Centerville was located. That, in April, 1836, a petition for partition was filed in Columbiana common pleas; these complainants being then minors.
    That the defendant combined with Morris, the sheriff of Columbiana, to be appointed appraiser.
    That the land in question was appraised at $1,250; far below its value.
    That Atkinson fraudulently procured the sheriff, at the sale, to strike it off to him, and before the hour of sale expired; thereby preventing bidders from bidding.
    That part of the land had been laid off into town lots by the defendant, and lots sold to the amount of more than $20,000, the receipts from the sales being more than the purchase money and interest, and defendant had a large quantity unsold; that he refused to account or to convey to the complainants.
    The complainants claim, as heirs of said Peter Bohart, two-sevenths of the property in controversy.
    *The prayer of the bill is, that the defendant may account for the amount he has received for lands sold bona fide and conveyed to innocent purchasers. And after refunding purchase money and interest, that two-sevenths be paid to the complainants for the conveyance of two-sevenths of the land not sold, to the complainants, and for general relief.
    . The answer (among other things) states that at the sale three of the heirs of Bohart were of age, and, with the guardians of the remaining four, were present, and agreed upon the terms of sale, which were reduced to writing, and read to the bidders by the sheriff; that Sinclair (who had purchased the interest of one of the heirs) bid $1,250 and stopped. About twenty tracts were sold by the sheriff on the same day the property was sold. This tract was sold about 12 o’clock m., and no one was prevented from bidding. At the April term, 1831, the sale was confirmed by the court. The three adult heirs and the guardians of the four minors being present, made no objections, and received the proceeds. This adjudication remains unreversed. The complainants, since they were of' age. and before filing this bill, have received their shares of the purchase money, knowing all the facts. After the purchase by the defendant, it was found that four acres of the same land had been sold1 by Bohart, in his lifetime, to George W. Butler, which defendant bought at $250. The respondent has received more from the sale than the purchase money and interest, yet many thousand dollars less than the expenditures in improvements.
    To this answer the complainants filed a replication. Much testimony was taken in the case, but all the material allegations in the answer were sustained or left uncontradicted by the proof.
    John Harris, for complainants:
    Had Atkins a right to purchase at the sale, having previously acted as an appraiser, and in affixing a value on the *land? The case of Armstrong v. Houston’s Heirs, 8 Ohio, 552, would seem to be decisive of this case. The only shade of difference between them is, that that was the case of an appraiser, at administrator’s sale, and this an appraiser at sheriff’s sale, under an order of partition. The language of the court, in that case, is so full qnd comprehensive that it undoubtedly covers the case at bar. The court say that “the appraiser of land is interposed between the buyer and seller in judicial sales, to prevent sacrifices at reduced 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.” But it can not be said that this court, in that case, laid down any now doctrine, or extended the doctrine beyond the uniform decision in similar cases. There is no difficulty in tracing the same doctrine back through a long list of judicial cases, applicable to almost every supposable case of trust or confidence, “ that when a confidence is reposed, and one party has it in his power, in a secret manner, for his own advantage, to sacrifice those interests which be is bound to protect, he will not be permitted to hold any such advantage.” Griffin v. Robbins, 3 Madd. 191.
    The language of this court, in Armstrong v. Houston’s Heirs, “ that fullness of price, absence of fraud, and fairness of purchase, are not sufficient to countervail the rule of policy,” is not new. The same language is adopted by the English and New York courts in a variety of cases. Campbell v. Walker, 5 Ves. 678; Ex parto Hughes, 6 Ves. 617; 8 Ves. 337 ; Daroc v. Fanning, 2 Johns. Ch. 552. That the rule is applicable to all persons concerned in a judicial sale, is clearly held in the case of the New York Building Co. v. McKenzie, cited by Chancellor Kent in the above case of Daroc v. Fanning. That was a judicial sale of an insolvent company’s property to satisfy creditors. The course of such sales was to set up the property at a value fixed on by the court, called the upset price. The purchaser was the common agent of the court, who procured the information by which *the court fixed that upset price, and was, in fact, as the respondent in this case, the appraiser, who determined the lowest price at which the property could be sold. In that case there was no question of the fairness and integrity of the purchase; and, although he had been in possession eleven years, and expended large sums in buildings and improvements, yet the court — the house of lords — directed the sale to be set aside. % Johns. Oh. 2§8.
    This court has said, in the case of Dunlap v. Mitchell, 10 Ohio, 120, that “ no principle is better established, than that the person inti’usted with the authority to sell the land of another, can not himself become the purchaser.” And, although the court add that the principle has been pushed to a rigorous extent “in the case of Armstrong v. Huston’s Heirs,” 8 Ohio, 554; yet the court, in that case (Dunlap v. Mitchell), certainly intimates no desire to relax of that rigor the tithe of a hair; for the court add, “ If the case presented nothing more than a purchase, by Dunlap, of land, which he, as an executor, undertook to sell, the right of Mitchell to set aside these proceedings, would be recognized without difficulty.”
    But it is objected by the respondent, that one of the complainants, Jacob Bohart, has unreasonably delayed pursuing his rights, if he has any ; that he has slept on his rights, to the injury of the respondent; and that it would now be a fraud on the respondent to compel him to account and surrender his ill-gotten gains. The facts are, that, at the time of the sale, the complainant, Jacob, was an infant under twenty-one years of age ; that, before he arrived to the age of majority, he removed to a distant county in the state (Hardin); that he occasionally visited his friends at Carrollton, and, when there, was anxious to prosecute his claim against the respondent; was discouraged by Beaty, his brother-in-law, and ultimately'determined on waiting until his brother Peter came of age, which event occurred a few weeks before the filing of the bill. That he had continually asserted his claims, and in such manner, that the respondent must have known that he intended to prosecute for their recovery.
    *There is certainly no limitation in a suit of this kind, short of that period which bars an action of ejectment. In the case of the Now York Building Co. v. McKenzie quoted above, it is expressly stated that the purchaser had been eleven years in possession, and made large improvements, and yet he was bound to surrender his purchase. No disadvantage can result to the respondent by the delay. The amount received on sales he has used. Nothing beyond legal interest is asked by the complainants. If the respondent has improved any of the lots, under the mistaken idea of his right, the court have it in their power to compel the complainants to do equity before it will grant them equity, and compel them to give releases for such lots as the respondent has improved.
    D. Jarvis, ior defendant:
    The act of February 26, 1820, 2 Chase’s Stat. 1162, was the statute under which the proceedings in partition were had; and, without referring to the several provisions of that act in detail, I will remark that, after most careful examination of the law, I am unable to discover any provision contained in it which has not been complied with, even to the letter, from the time of filing the petition for partition, to the judgment of the court, ordering the “ money and securities to be distributed to and among the several parties entitled to receive the same, in lieu of their respective parts and proportions of said lands and tenements, according to their just parts and proportions.”
    Section 9 of that act expressly provides that guardians-may act for their wards in cases under that act, and their acts “shall be deemed as valid and effectual in law, to every intent and purpose, as if the same had been done by such minor, after his arrival at full age.”
    Now, suppose it be admitted that there was an irregularity, unconnected with fraud, in the proceedings in partition, all the parties being of full ago and assenting to the proceedings, would *any one for a moment hesitate to say that such assent waived all right in anyone of the parties to avail himself of such irregularity, to set aside the proceedings and destroy the title of the purchaser? It seems to me that section 9 of the act must be declared wholly nugatory, or else the acts of the guardians must bo held to bind their wards as effectually as the wards could have bound themselves if of full age. The guardians were parties to the proceedings, and, in addition to that, a guardian ad litem was appointed, who accepted the trust.
    Tf it were necessary, this court would presume that the common pleas had proof of every fact important to sustain its judgment. Glover’s Heirs v. Buffin, 6 Ohio, 269. “ It is well settled that errors or irregularities in the proceedings do not vitiate the final decision.” Ib. 270.
    “ Every reasonable intendment is to be made in favor of the proceedings.” 2 Pet. 164, 85. This case in Peters is cited by the court in 6 Ohio, 270, and the reasoning of the court adopted by our own court. ' •
    There is no pretense that there is any error in the proceedings in partition, unless it arises from the fact that Atkinson, one of the appraisers, became the purchaser at the sheriff’s sale. And if this is an irregularity, I insist that it was wholly waived by the parties to the partition, at the time of the sale, as well as at the time of the confirmation by the court. But, if what then»took place shall not be deemed a waiver, I submit whether the remedy is not by proceeding by writ of error to reverse those proceedings and that judgment of the court? I need not cite authorities to this court, to sustain the doctrine that if a party has a remedy at "law, chancery will not take jurisdiction. This judgment of the court of common pleas of Columbiana county, is wholly unreversed, and now stands as the solemn adjudication of that court; the present complainants and all others interested in the subject matter of that suit being then parties, and having a full opportunity to make any defense they chose to any part of the proceedings.
    Again, both thoso complainants have acquiesced in these proceodings *after they were of full age, and that, too, with a perfect knowledge of all the facts. Jacob has lfdd by nine or ten years after his majority, and received and pocketed the money paid by Atkinson. Peter received over $500, as his share of the proceeds of the lands, and nearly all of it after he was of age. It seems to mo it is unconscionable that either of these parties should now be permitted to go behind their own acts, and that, too, without even offering to repay the money advanced by Atkinson.
    I apprehend no one could have thought of bringing this suit, but for the decision of the court in Armstrong v. Huston's Heirs, 8 Ohio, 552. The decision in that case, so far as I know the views of the profession, ought to be reviewed, and I sincerely hope an occasion will ere long arise, when the court will be requested to take the question there decided again under its deliberation, and either affirm that opinion unanimously, or overrule it. With great deference to the opinion of a majority of the court as there expressed, I can not forbear expressing my entiro concurrence with the views of Judge Hitchcock, as given in his dissenting opinion. There is no occasion now to ask the court to review the opinion given in that case, inasmuch as the one at bar is unlike it, arising under a different statute. That case arose under an administrator’s sale; and the statute providing for such sales does not, as in the case of proceedings in partition, authorize the guardians of minors to bind their wards by their acts. And it does not appear, in that case, that the guardians or their heirs, either before or after their majority, assented to any part of the proceedings, or in any way acquiesced in them. In a proceeding by administrators to sell land to pay debts, as well as in partition, the appraisers are appointed by the court, the sheriff or administrator having no control over them. In one case the object is to sell the land and deprive the heirs of the proceeds. Id the case of a partition, the object is not to divest the lands from the heirs, but, in the first instance, to give them their distributive share, in case the land can be divided. If it can not divided, then to be appraised, with the right of any one of the parties to the petition, to take *the • land at the appraisement; so that the prospect of the sale at the time of the appraisement, is too remote to authorize the indulgence for a moment of the idea that the appraisers could be influenced by the remote prospect that they or either of them might become purchasers. The legislature doubtless had these matters in contemplation when they passed the act regulating proceedings in partition, and declined to insert a provision prohibiting the appraisers from purchasing. ■ This view is sustained by a reference to the act of March 29, 1841 (Swan’s Stat. 1015), passed since the decision in Armstrong v. Huston. By that act, it is declared that, in sales thereafter made, no appraiser shall be a purchaser where the price for which it the (real estate) must sell, shall bo governed by the valuation made by the appraisers. By section 2 of that act, it is enacted that all sales theretofore made of the lands of a minor, by an executor, administrator, or guardian, where an appraiser has purchased, “shall be good and valid in law and equity,” provided such sale is not otherwise fraudulent.
    This section of the statute substantially overrules the decision of the court in Armstrong v. Huston. It may well be inferred that the legislature did not, in this act, include sales before the'm made in partition cases, by reason of the decision of the court in Goudy’s Lessee v. Shunk, 8 Ohio, 416, where the court say, “ that the acts of courts, in proceedings of this kind [that case arose under a proceeding in partition, and under the same act of 1820, as the one at bar], being analogous to proceedings in rem, will always receive a favorable construction.” Again, “ where the sheriff possessed authority to sell, his sale to a purchaser in good faith, is effective.” In the same case, the court say that, “sections 2 and 9 of the statute of 1820 authorize guardians of minors to bring petition, and do any act necessary to make partition of the land of their wards.” No one could suppose, after this decision, that it could be necessary to pass a declaratory act, which would affirm sales made in partition cases, under circumstances like the one now under consideration; being, as it is, entirely free from the slightest suspicion of *fraud or collusion, as well as having the actual assent and acquiescence of the adult parties to the petition, and the guardians of their minors. Not only this, but these complainants, since they arrived at full age, have received the purchase money, and one of them (Jacob) has made no complaint for a period of nine or ten years after his disability was removed.
    Arguments for the defendant were also submitted by Wright, Coffin & Miner, and by G. W. Belden and E, M. Stanton.
   Birchard, J.

Several questions of interest arise in this ease, which will be separately considered. The position mainly relied on by complainant’s counsel is, that the respondent could not legally purchase the premises in controversy after having acted as an appraiser,^under the sheriff, in executing the writ of partition ; and that, having so purchased, he should be charged and held to an account as trustee. To sustain this point, the case of Armstrong v. Huston’s Heirs, 8 Ohio, 552, together with other’ authorities, are cited. That case presented the single question, whether an appraiser of land, at an administrator’s sale, stood in such a relation that his purchase, without fraud, could be set aside at the instance of the heirs. The case was determined by a divided court, a majority only holding that it came within the general principles of equity, which prevented those from acquiring a title to whose discretion or agency the management of a sale is confided.

Without intending to overrule or impair the force of that decision, wo are not prepared to extend it to any case where it is not strictly in point. In cases of sales by sheriffs, a statute law had prohibited a purchase by the appraiser. Since, the sale now in question was made, a law has been enacted (Swan’s Stat. 1015) prohibiting the appraiser of any tract or lot of land, from becoming the purchaser, at any sale wherein the price for which it must sell shall bo governed by his valuation as an ^appraiser.

Section 2 of this act declares that, “ every purchase of land by an appraiser thereof,” theretofore “ made at a sale by an executor, administrator, or guardian, shall be good and valid in law and equity, provided that such a sale may be set aside for actual fraud, and that the costs in suits then pending, involving the class of cases made by the section, should be decided in such manner as to the court might seem just and equitable under the circumstances. Yiewing this statute in connection with the decision in Armstrong v. Huston’s Heirs, one can scarcely doubt that the framers of the statute considered the decision of that casein assumption of their prerogative, and as evincing a departure from the true office of a judicial tribunal, which is to declare the law, not to create it. Nor can one doubt that they approved the principle upon which it is based. Hence the enactment of section 1 declares that thereafter the rule shall exist and be extended to all judicial sales subsequently to be made. By implication, this section would also seem to indicate that no such rule was, prior to that date, the law of Ohio ; for the enacting of a law like this, would be a work of supererogation, if in fact the same law was already in force.

Strongly in support of this view of what was then the mind of the enacting power, is seotion 2 of the act. It strikes at the decision itself, by making valid the identical class of sales which it would render invalid, and can not be considered less than a legislative opinion that the decision was ei'roneous. With this view of the law, it is our duty to consider whether there is an identity in principle, between the case of Armstrong v. Huston’s Heirs and the case at bar. That was an administrator’s sale; this is a sale on proceedings in partition. In that, the appraisal was made in view of a sale — the proceeding could terminate in nothing else. Not so in this. The sale could not follow the appraisal as a matter of course. The object of the proceeding was to enable several co-tenants to enjoy each his own in severalty. A sale could not take place until each and all of the tenants in common had declined in court to take the property at its appraised lvalue. Atkinson must have possessed more than ordinary foresight, to have foreseen that neither of the parties would elect to take this land at the appraisal. Admitting that no one of them possessed means to pay down the amount of the appraisal, it did not follow, necessarily, that a sale would be had. The property was theirs, and, rather than suffer it to be sacrificed at a price less than its value, one, two, or more of its owners might and doubtless would have taken it, and secured to the remaining co-tenants their respective shares of the money, by mortgaging the land itself. In a case like this (in the absence of actual fraud), we should go, I apprehend, far beyond the principles established by any w^ll-considered case, were we to hold the purchase'fraudulent on the ground of public policy. We are not inclined to push a very rigorous principle to such an extent. Rules thus extended, are not to be favored; they are retrospective in their operation, when their vitality is imparted to them by the power of a court; and, like all retrospective legislation, should only be resorted to in cases of pressing necessity, and where no positive right in law or equity would be violated.

Wo approach next the question whether this purchase is tainted with actual fraud.

Complainants, in their original and amended bills, charge “that the respondent, being desirous to own this land, confederated with the sheriff, to procure him to select him as an appraiser, in order to procure an appraisal at $1,250, a sum far below its intrinsic value, and that he fraudulently appeared to bid $1,250, and fraudulently procured the sheriff to strike it off to him before the hour of sale had expired, by means of which many persons who would otherwise have been bidders, were prevented from bidding.”

These allegations would be abundant to set aside the sale, if maintained by proof. Unfortunately for the complainants, the owners fairly meet them by a denial, and the evidence in the case sustains the answers. Ye think counsel feel the force of this, else why the remark that “ the defendant has taken much *pains to obtain testimony to prove that no fraud in fact attaches to this transaction, of which the plaintiffs complain, and that the land sold for its full value. After having fully answered, denying all actual fraud, he might have well spared himself the trouble of taking testimony until the opposite party had undertaken to taint it with actual fraud.” We were not a little surprised at encountering, in quick succession, after reading the above, an argument somewhat labored, with a view to convince us that there were “features in the case sufficient to throw strong suspicions on the fairness of the appraisers.” The record in partition and the fact (said tq have been notorious) that a new county had been for several years in agitation, with no other spot than this spoken of as the county seat, are the features relied upon to sustain these suspicions. Were we to run into the same train of reasoning in which counsel have ventured, we should be hardly bold enough to declare that fraud in fact actually did exist, upon nothing more than bare suspicion of its existence. Fraud is a thing to be proved. When the proof fails, it is but little use to indulge in suspicions, more especially if, as we think in this case, they are not well founded.

Again, the proceeding in partition was under the statute. If error intervened, certiorari was the proper remedy. It was a judicial proceeding, and can not be collaterally impeached unless tainted with fraud. But suppose fraud in law existed, and that we are in error in the position first taken, how then stands this case? There were seven heirs — threo adults and four minors. The adults were present at the sale, together with the guardian of the minors, and all agreed to the terms. By their agreement, one-fourth only was required to be paid in hand, and a credit of one, two, and three years was given for the balance of the purchase money. Atkinson bid at the instance of complainant’s guardian, who requested him to do so; paid them the purchase money required to he paid in hand; with them arranged the securities for the deferred installments; has since paid them in full. And after complainants came of *age, they ratified the acts of their guardians, by receiving and appropriating the purchase money. One of them, after receiving the money, with full knowledge of the fact, remained quiet until the period had elapsed limiting actions to recover money before he joined in filing this bill. This conduct should defeat him, were there no other obstacle in his way. The acts of the guardians should also estop them. The statute gave them the authority to act for their wards. They did so act, and their acts should, in the absence of fraud, bind the minors as effectually as if they had been adults, and had been present, acting for themselves. To permit one, who requested another to purchase — who stood by, saw the purchase made, and received his share of the proceeds — after appropriating the funds, to turn round and avoid the salo to such buyer, would be against conscience. It would be giving sanction to fraud.

Bill dismissed.


source: Caselaw Access Project

author: Hithcock, J.

license: Public Domain

text:
    *John Bettle v. Andrew W. Wilson.
    Articles of separation by husband and wife, through the medium of a trustee, for the separate support and maintenance of the wife, and where the separation takes place, are not void, as against public policy.
    Oyer can not regularly be craved of a deed, where profert is not made of the same in the previous pleading.
    A plea which does not answer the entire declaration, is bad on demurrer.
    This case comes into this court by writ of error to the court of common pleas of Clermont county.
    The original case was an action of debt, by Wilson against Bettle, upon a sealed bill, of which the following is a copy :
    “ I hereby promise to pay to Andrew D. Wilson, his executors and administrators, for value received, the sum of $350, for the use and support of my wife, Mary Bettle, and the same is to be paid to no other persons, and for no other use whatever. Witness my hand and seal, this November 19, a. d. 1839.
    “John Bettle, [l. s.]
    Elizabeth Bettle, [l. s.] ”
    The declaration contains a special count upon this bill, and the common counts.
    To this declaration the defendant filed four special pleas.
    The first states, in substance, that the plaintiff in error, then defendant, on March 17, 1818, was lawfully married to one Mary Commings, with whom ho lived until November 12,1839, when she left him without cause, declaring her intention never to return to him again ; that on the 19th day of the same November, John Bettle, his wife Mary Bettle, and Andrew Wilson, as trustee, entered into articles of separation, under their hands and seals, by which John and Mary were to live separate during their lives; and for the. maintenance *of said Mary, thus separate and apart from her husband, John Bettle was to allow her one-half of his personal property and $1,000 in money ; John was not to assert the rights of a husband, with respect to said Mary, nor was she to claim of him any further maintenance than as before stated ; that Wilson, as trustee, bound himself for the performance of the agreement of Mary; that on the day the article of agreement was executed, said John did actually transfer and deliver to Wilson, as the trustee of Mary, one-half his personal property, also sundry evidences of debt, amounting to about $300, and for the balance of the $1,000 gave two notes for $350 each, one payable November 20, 1840, and the other, the bill now in suit; that Mary Bettle, on July 19, 1840, before the said $350 fell due, departed this life.'
    The second plea states the marriage, separation, the articles of agreement, execution of the notes, etc., like the first; it also states that Wilson has realized from the notes assigned to him, $1,200 ; that the said Mary died on July 19,1840; and that the money and property received by Wilson, for the use and support of Mary, as aforesaid, was more than sufficient for her use and support during the time that she lived after November 12, 1839; and that the consideration of the note declared on, has wholly failed.
    The.third plea sets forth that on November 19, 1839, the said John and Mary agreed to live separate and apart; that articles of separation were entered into ; that John delivered property to Wilson which he received for the said Mary, for her sole use and benefit, and for no other use or purpose whatsoever; that Marjr, at the time the articles were entered into, by her power of attorney, did make Joseph Bettle her attorney in fact, by which she pretended to stipulate that, in the event of John Bettle’s selling his real estate, her attorney should convey her interest in the same, with such covenants and clauses as the attorney might think fit and convenient; and that she further entered into an agreement by which *she undertook to stipulate that, in the event of surviving her husband, she would not claim any dower in her husband’s land. It is then averred that the said undertaking of the said Mary was tho consideration for tho note declared on by tho plaintiff, and that, without such agreement on her part, he would never have executed said note; that she afterward became dissatisfied, and said she would not abide by her agreement; that gho became dissatisfied with her power of attorney, and declared her intention not to abide by the same, and that her attorney should not,, on her behalf, sign any deed or deeds for the conveyance of any oi tho real estate of tho said John, all of which she lawfully might do; and tho said John, therefore, avers that the consideration of the. note has failed.
    Tho fourth plea alleges that on September 9, 1839, tho said John was lawfully married to the said Mary; that before that timo she left his bed and board, and that for the purpose of providing for her during her natural life, and while she should live separate and apart from her husband, ho executed and delivered the note, in said declaration mentioned, payable to. said Wilson; that she died on July 19,1840, before said note became due, and that while she was living, after said separation, tho said John furnished tho said Wilson, for the use of tho said Mary, enough for her support and maintenance, so that it was wholly unnecessary to apply any part of the money, in the declaration mentioned, for that purpose, etc.
    Next, although there is no plea of the general issue, tho defendant below gave notice of set-off of sundry matters in the notice mentioned and specified.
    The plaintiff, by his attorney, craved oyer of the sealed instruments referred to and relied upon in the pleas, and they werh read to him, whereupon ho demurred severally to the pleas.
    The articles of separation, made pai’t of the record by oyer, bear date November 19, 1839. It purports to be an indenture between John Bettle and Mary his wife, of the one part, and Andrew W. Wilson, trustee, on the other part. It recites *that the said John and Mary, in consequence of unhappy difficulties which had occurred between them, had agreed to live separate and apart from each other during the remainder of their lives, and that whereas the said John had agreed to allow the said Mary $1,000, and one-half of all tho personal property owned by him at th'e time for her separate maintenance and support; tho said John, therefore, in pursuance of said agreement,'covenants with the said Wilson, trustee as aforesaid, “ his executors and administrators, in the manner following, that is to say, that it shall be lawful for the said Mary, and that the said John shall and will, from henceforth, permit and suffer her at all times hereafter, during the joint lives of them, the said John and Mary, to live separate and apart from him, the said John, and to go and reside, and to be at such place or places, and with such family and families, relations, friends, and others, as she, the said Mary, notwithstanding her coverture, shall, from time to time, think fit, wholly freed and discharged from all power or restraint of him, the said husband, in like manner and in all respects, as if she were sole and unmarried; and further, that ho, the said John, will not sue, molest, or disturb, by any suit, process, threat, or otherwise, the said Mary, his wife, for living apart from him, as aforesaid, nor any person or persons whatsoever, for receiving, harboring, or entertaining her during such separation; and the said John doth further for himself, his heirs, executors, and ad'"ministratofs, covenant that he, the said John, will well and faithfully pay unto the said Mary or to the said Andrew W. Wilson, trustee as aforesaid, his executors and administrators, for the use of the said Mary, the said sum of §1,000, in the manner following,” etc. After specifying the mode of payment, in part, by the assignment of certain notes, provision is made that the balance of the §1,000 shall be paid in two equal payments, the first on November 20, 1840, and the second on November 20, 1841. Provision is next made that if the said John shall be sued on account of the said Mary, and made liable, the amount of such *liability shall be deducted from these payments. It is further stipulated that said personal property, and the said payment of §1,000, shall be delivered and paid to said Wilson, not only for the sole use and benefit of the said Mary, for her separate support and maintenance during her natural life, but also in lieu of and in full discharge of any dower-right of the said Mary, in the estate of the said John, in case she should survive him.
    In consideration of the promises, the said Wilson “doth, for himself, his heirs, executors, and administrators, covenant, promise, and agree to and with the said John, his heirs, executors, and administrators, that he, the said Wilson, his executors and administrators, shall and will, from time to time, and at all times hereafter, save, defend, keep harmless, and indemnify the said John, his executors and administrators, and his and their estates, from all debts, charges, and sums of money, for the maintenance or on any other account of the said Mary, which she now owes, or which she may hereafter owe, while living separato and apart from him, the said John; and also from all damages, charges, costs, or expenses which may result to the said John, or to his executors or administrators, in case the said Mary shall, at any time during the aforesaid separation, refuse or fail to sign any deed of conveyance for the sale of her interest in the estate of her said husband, whenever she shall be thereunto requested by her said husband; provided the said John shall have first presented to the said Mary a deed, made in good faith, to some actual and fair purchaser of the estate of her husband. Witness,” etc.
    The power of attorney referred to purports to have been executed by Mary Bettle, with the assent of her husband, and is signed by both John and Mary Bettle.
    At the November term of the court of common pleas, 1842, -of Clermont county, the case came on for hearing, the demurrer was' sustained, and judgment entered for the then plaintiff.
    To reverse this judgment this writ of error is prosecuted.
    *The errors assigned are:
    1. The demurrer was sustained, when it ought to have been overruled.
    2. The judgment was rendered against the defendant, when it ought to have been rendered in his favor.
    3. Other errors, etc.
    John Jollieee, for the plaintiff:
    Whore there are several pleas and general demurrer, if one be good, judgment must be given for defendant. 1 Chit. Pl. 576, n. 3; 2 Mass. 541; 1 Johns. 385.
    The first plea presents the question of the validity of articles of separation in Ohio, at law. Such articles are against public policy, and should not receive the countenance of this court.
    Beach v. Beach, 2 Hill, 260; Marshall v. Rutton, 8 Term, 545; Bagget v. Fren, 11 East, 302 ; Lewis v. Lee, 3 Barn. & Cress. 291; Hyde v. Price, 3 Ves. 443; Marsh v. Hutchinson, 2 Bos. & Pul. 226; Kay v. Duchesse de Pienne, 3 Camp. 123; 2 Roper’s Husband and Wife, 122, 123, 270, n.; St. John v. St. John, 11 Ves. 539; Innell v. Newman, 4 Barn. & Ald. 419; 2 Kent’s Com. 160, 3 ed.
    See also, on this point, Westmeath v. Westmeath, 1 Dow, 543 (new series); Corbet v. Pœlnitz et ux., 1 Term, 5; Clayton v. Adams, 6 Term, 604; Mortimer v. Mortimer, 2 Hagg. 317 (13 vol Law Library) ; Dibble v. Hutton, 1 Day, 221; Fletcher v. Fletcher, 2 Cox’s C. C. 99; 2 Story’s Eq. 810, 811; Head v. Head, 3 Atk. 547; Whorewood v. Whorewood, 1 Chan. 223; Durand v. Durand, 2 Cox, 207.
    If any part of the consideration of this note was that the parties should live separate it is void; for if the instrument be void in part as against public policy, the whole is void. 13 Wend. 53; 8 Johns. 253; 5 Cow. 547 ; 4 Johns. 84; Cro. Eliz. 193; Bridge v. Cage, Cro. Jas. *103 ; Scott v. Gilmore, 3 Taunt. 226 ; Card v. Hope, 2 B. & C. 661; 9 Eng. Com. L. 209.
    See also, as bearing on the general doctrine, Westmeath v. Salisbury, 5 Bli. 339, 398 ; Ross v. Willoughby, 10 Price, 2 B. & C. 539 (Eng. C. L. 174) ; Clancy on Rights of Married Women. 397; Worrall v. Jacob, 3 Meriv. 267; Poynter on Mar. and Div. 172; Evans v. Evans, 1 Hag. Con. 36; The People v. Mercien, 3 Hill, 407-411; John A. Barry v. Mercien, 8 Paige’s Ch. 58.
    There are stronger reasons in Ohio, why articles of the description mentioned in the record should not be sustained in Ohio, than in England. There, divorces from bed and board are allowed. Here, such divorces are not allowed. But the legislature has been liberal in allowing unqualified divorces, and thus manifested a hostility to quasi divorces. This hostility is founded in reason. Living in such a state is contrary, to nature, and results 'in injury to the state and to society. And, if so, a fortiori, should the law discountenance these voluntary separations. And in England, articles of separation are not sustained, except in cases where a divorce from bed and board would l¿o granted. Onr legislature has prohibited such divorces, and hence, here, these articles ought not to be sustained.
    2 Eng. Com. Law and Chan. R. (Jurist ed.) 90; 2 Kent’s Com. 176, n. c; Jones v. Wait, 5 Bing. New Cas. 341 (35 Eng. Com. L. 138); Chusman v. Nainby, 2 Stra. 739, 744; 2 Bulst. 136; Snow v. Peers, 4 Burr. 2225.
    The second and fourth pleas raise the same question as the first, and the additional one of failure of consideration by the death of the wife.
    The object of these articles of separation, is to secure a maintenance for the \vifo; and if she die, and her wants, till the period of her death, have been supplied, the husband is discharged from the payment of anything further, and such are the authorities. 264] *Clancy on Rights, 386, 387; Powell v. Stanforth, 2 Sir W. Blk. 843, 1016; Palmer v. Frazier, 2 Eng. Com. Law and Chan. R. (Jurist ed.) 226; 2 Wend. 422.
    This claim of the wife upon the husband is analogous to pin money, which can not be assigned, and the right to which ceases with the death of the wife. 2 Story’s Eq. 741, 742; Howard in Digby, 8 Bligh, 224, et seq., 252, et seq., 5 Sim. 330; Stoney v. Cook, 7 Sim. 22; 2 Story’s Eq. 806, n. 1; Cole et al. v. Gower and Piggate, 6 East, 109.
    The law is the same, and the reason the same, where alimony has been decreed to a wife, and where the putative father of a bastard child has been charged with its maintenance. Wilde v. Griffin, 5 Esp. N. P. Cases, 142; Townson v. Wilson and others, 1 Camp. N. P. 396; Hodgson v. Williams, 6 Esp. N. P. 29; Reeve’s Dom. Rel. 279; State v. Mitchell, Wright, 464.
    Mary Bettle was the principal, and therefore the note should have been sued in the name of herself or her legal representative; but, as this can not be done at law, then the action can not be sustained at law. 1 Chit. Pl. 4 ; 2 Caine’s Cases 341; 5 Ohio, 64.
    ' This note can not be collected of the husband after the death of the wife, because on her death he, as next of kin, has a right to the possession of assets, and, by administering on her estate, reducing them to possession. Washburn v. Hale, 10 Pick. 429, 433; Russell v. Brooks, 7 Pick. 66 ; Commonwealth v. Manley and Leash, 12 Pick. 173; Perin v. Thompson, 17 Pick. 391; Whitacre v. Whitacre, 6 Johns. 111; Jones v. Chew et al., 5 Met. 320; Clark v. Clark, 6 Watts & Serg. 85; Lowry v. Huston, 3 Howard’s Miss. 299; Maloney v. Kennedy, 2 Eng. Com. Law & Ch. 194; Shuttlesworth v. Noyes, 8 Mass. 299; Barlow v. Bishop, 1 East, 432; Clayton v. Adams, 6 Term, 604; Co. Lit. 352; 2 Blk. Com. 433.
    Wilson was only an agent or trustee of Mary Bettle, and *on her death this agency ipso facto ceased. % Ohio, 173, pt. 1; 9 Ohio, 151; 4 Pet. 332 ; 12 Wheat. 408; 3 Kent’s Com. 643.
    His situation was not unlike that of a guardian, whose authority ceases on the death or majority of his ward. Wright, 390; 4 Mass. 508; 1 Conn. 65; 1 Fonb. Eq. 55, 56; 4 Co. 127; a 11 Ohio, 442 ; Wright, 119; Thos. Coke, 131.

      The third plea presents the question arising out of the power of attorney and agreement to release Mary Bettle’s dower in her husband’s land, and her subsequent declaration of intention to claim dower."
    A feme covert can not bind herself by any covenant, hence her power of attorney was void, and furnished no consideration for the note. 1 Greenl. Ev. 30; 17 Johns. 167 ; 5 Greenl. 63; 1 lb. 394; 3 lb. 50; 7 Mass. 19 ; 10 Ohio, 120, 309; 4 Com. Dig., title Estoppel, 203 ; 2 Wilson, 3; 2 Ohio, 194, pt. 1; 9 Mass. 218 ; 13 Mass. 223.
    The power of attorney was void till recorded. Swan’s Stat. 266 ; 6 Ohio, 514 ; 17 Mass. 370.
    Fox & Lincoln, for defendant, cited no additional authorities, but relied upon the following, quoted by the counsel for the plaintiff, as fully sustaining articles of separation : 3 B. & A. 740; 2 Wend. 422; 3 Paige, 500; 2 Story’s Eq. 653; 2 Kent’s Com. 176, 177; 3 Meriv. 267.
   Hithcock, J.

The great object of the pleadings in a case, is to arrive at a specific issue upon a given and material fact; but it is not necessary nor proper to set forth in the pleadings the evidence by which the existence of such a fact is to be substantiated before a jury. So long as pleadings are so framed as to effect this object, they conduce to a correct administration *of justice. But when the science of pleading is perverted by the statement of facts known not to exist, or by efforts to entrap an adversary, a principle which was intended for the promotion of justice is, not unfrequently, so applied as to pervert it. In the case now before the court, the record is so incumbered by the verbosity of the pleas, as to render it extremely difficult to determine what particular fact or facts the pleader intended to put in issue. From careful examination, however, we are led to suppose the defenses intended to be relied on in the several pleas are as follows:

1. That the single bill which is declared on, was not binding in law, because certain articles of separation between John and Mary Bettle, and Wilson as trustee, and which by the pleader is supposed to have been the consideration of this single bill, were against the policy of the law, and therefore that the bill itself is-void.

This article of separation is made part of the record.

2. That the individual for whose use, support, and maintenance the bill was given, died before the same fell due; that the same was not necessary for her support and maintenance, and therefore that the consideration had failed.

3. That the said Mary, for whose use the bill was given, asserted and declared that she would not be bound by any act of her attorney, when, as is averred, the power under which the attorney was authorized to act, was the consideration of the single bill, and therefore the consideration of said single bill has failed.

4. The fourth plea is not materially variant from the second, except that it is more concise, and does not, in terms, refer to the article of separation, so that the same can be by oyer made part of the plea.

Before proceeding to the consideration of these several pleas, it may not be improper to say that the questions involved in this case, and growing out of the controversy between John Bettle and his wife, have heretofore received no little share of the attention of the members of this court. Soon after the death *of his wife, John Bettle filed his bill, in the court of common pleas, to be relieved from the liabilities assumed by him under the articles of separation, and to have the said articles rescinded. This bill was filed in Clermont county, and was appealed to the Supreme Court. The case was taken under advisement, and finally decided in Hamilton county, at the spring term of the court, 1831. According*to my recollection, the same questions were then raised as are now presented, and the case of the complainant sustained by substantially the same arguments. The court, however, dismissed the bill.

It was again presented to the court on a writ of error to the court of common pleas of Clermont county, to reverse a judgment rendered by that court, upon the first bill or note for $350 named in the articles of agreement. That case was taken under advisement, and decided in 'Hamilton county, in 1842, affirming the judgment of the court of common pleas. Not being at that time a member of the court, I can not state the grounds upon which the decision waB made, but am informed that it was made upon consultation of all the judges of the court. The suit is upon the last of the two notes, and although we can not flatter ourselves that we shall be able to make a decision which will be satisfactory to all concerned, we do hope to make one which will put an end to the litigation.

Under the first plea, it seems to be necessary to ascertain what was in fact the consideration of the note or bill in suit. Now, no doubt can exist upon this point, if we for a moment turn our attention to the articles of separation. Bettle and wife had agreed to separate, and the terms were fixed, when he was to give her one-half of his personal property and $1,000 in addition. But in order to carry out this agreement and secure the object of it, it was necessary to have a trustee. Wilson was such trustee, and he bound himself by covenant to indemnify Bettle against any claim, cost, or charge, on account of his wife during his life, or against any claim for dower, which she might have after his death. It was not, then, the separation alone, which was the consideration of *this note, nor a desire on the part of Bettle to provide for his wife, but it was the covenants of Wilson as contained in the articles of separation. But for these, the notes would not have been executed.

But it is said that these articles of separation, and the covenants' therein contained, are all void,-as being against public policy; and a multitude of authorities are cited to show, not that courts have held such arrangement null and void, but that many men acting as judges and chancellors have repeatedly expressed the opinion that they should originally have been held void. And it is further insisted, that it is alone in courts of equity that it can be sustained; and, as this is a suit at law, no judgment can be rendered in favor of the payee of the bill. We do not readily see that this consequence follows. For, admitting that no suit at law can be sustained upon articles of separation like those in the record, yet, if such articles are good in courts of equity, it would seem that covenants contained in them would be a good and sufficient consideration for a note or bill which was no part of such article, so that the same could bo collected at law.

But are such articles of separation void, either in law or equity? I hav,e not time to remark upon all the authorities cited by council. Clancy, in his treatise of the rights, duties, and liabilities of husband and wife, after a review of the authorities upon the validity of agreements of this character between husband and wife, at page 240, says, “ From these authorities, it may be inferred that it is competent at this day to a husband and wife to enter into an agreement, through the medium of trustees, that they shall thenceforth cease to cohabit; and that, during that separation, he shall pay to her an allowance for her support, the due discharge of which, both courts of law and equity will enforce; and also, that the wife may covenant to pay a portion of her separate property to her husband, on the terms of his suffering her to live absent from him; but that neither she nor her husband will be assisted by the court, in getting possession of that property, with a view to carry this ^agreement into effect, if that agz’eement bears the appearance of irregularity or unfairness. The same principle is recognized in 2 Stoz-y’s Eq. G52-654. We suppose such to be the rule of law where the separation actually takes place. But, whether either a court of law or of equity will enforce such contract, when the agreement is for a future separation, is a different question, and is not necessary,,to be settled in the present case, as in this case the separation did actually take place.

It is admitted by counsel that such is the rule of decision in England, although insisted that it should not be adopted in Ohio. And it is urged, as one reason, that, in' England, such rule is not adopted except in cases where the separation is for reasons which would jzzstify a divorce from bed and board; and it is said that, in this state, there can not be, for any cause, a divorce from bed and board ; therefore, no case can arise here whei’e such articles of separation should be held as valid.

True, by our law, there can not be a divorce from bed aúd board merely; but we divorce from the bands of matrimony for the same causes for which in England there might be a divorce from bed and board. And it would be strange, indeed, where the conduct of either party has been such as to authorize the other to obtain a divoz*ce, they could not agree to live separate, upon a separate maintenance, furnished by the husband. The causes of separation in the case now under considez'ation are not specifically alleged. But it is stated that there were difficulties which rendered it necessary to separate. In the opiuion of the court, there is nothing disclosed upon the recoz’d which would justify us in saying that this was a void contract.

By the second ploa, the defense is based upon the ground of the death of the wife; and it is claimed that her death released the obligor from the payment of this note, inasmuch as the avails of it wez'e not wanted for her support.

This contract is not a contract to pay, from time to time, as the payments may be wanted for the sustenance of the wife. *It is a contract by which the husband agrees to pay $1,000, in consideration of the covenants on the part of Wilson, as set forth in the articles of separation. Had his wife lived fifty years, he was under no obligation to pay more; and if she lived but one year, shall he pay less? Wo think not. The contract was obligatory, and he must abide by it. The cases arising under the English poor-laws, and which have been cited by counsel, are not applicable to a case like this. This is not a contract between public officers who are bound to perform the duties of overseers of the poor and individuals; but it is a contract between individuals, who acquire rights as against each other, which the law will enforce, by compelling each to do what they have agreed to do.

The third plea sets up that the consideration of the note or bill, was in a certain power of attorney, executed by Mary Bettle to one Joseph Bettle, and that she declared she would not be bound by it. In this plea, the articles of separation are referred to, and, by oyer, made part of the plea.

Taking the whole together, then, the plea is contradictory. The articles of ^separation show that the covenants of Wilson were the consideration of the note in suit, and it is stated that the power of attorney was the consideration. Both might have operated upon the mind of the obligor. But, in the plea, it is alleged that the power of attorney was the only consideration. We think otherwise. But, suppose it were so, has the consideration failed? From aught that' appears in the plea, the power of attorney was in full force, and just as available up to the time of the death of Mary Bettle, as it -was at the time of its execution. It was never revoked. The statements of the plea are to the effect that she threatened to revoke it; not that she did do it. Whether that power of attorney was ever of any validity, is a different question, and one which we are not now called upon to decide.

The fourth plea is Substantially the same as the second; and, in deciding upon the validity of one, the other is disposed of.

But it is claimed upon the part of the plaintiff in error, that *the articles of separation are improperly introduced in the record. Inasmuch as no profert was made of them in the pleas, it is said the plaintiff, in the original suit, had no right to crave oyer. The case, so far, has been considered by the court, as if oyer had been regularly craved, and the deed was properly a part of the record. It has been so considered, because it would be utterly impossible to decide upon the merits of the defense, without a careful examination of this instrument. The defendant seems to rely upon it in making his defense. If the instrument was valid, his defense failed; if not, he was not liable. He should have made profert of it. We had hoped, too, that the object of the special pleas in this case was a legitimate one. That it was to elicit the opinion of the court upon the legal effect of the facts existing in the case, not to entrap an adversary. It is true, the plaintiff, by his replication, might have placed this deed upon the record. But this would only have served further to incumber that record. The real points in controversy are ah well before the court in the mode which has been adopted, by craving oyer and demurring, as they would have been by any further extension of the pleadings. But, as the objection is made, that the plaintiff had no right to oyer, because profert was not made of the instrument, we are bound to say that we understand the general rule of law to be as claimed by the counsel for the defendant.

But, excluding the deed from the record, what is the state of the pleadings? The declaration contains two counts; the one special, the other general. The pleas are in effect to the first count. The second is unanswered. To these pleas there is a demurrer. Now we suppose the law to be, that a plea must, in some shape, cover the whole declaration; and, if it does not, that it is bad on demurrer. As the pleas in this case are not manifestly answers to the entire declaration, but only to the first count, leaving the other unanswered, the court of common pleas decided correctly in sustaining the demurrer; and the judgment of that court must bo affirmed.


author: Hitchcock, J.

text:
    *Cadwallader Wallace v. John M. Patten. John M. Patten v. Cadwallader Wallace.

      [Bill in Chaneery and Gross bill.]

    A bill of peaoa will not be sustained at the suit of one who has the legal title by patent, against one who has an equitable interest in the same land, by senior entry.

      These eases were reserved in the county of Union.
    The original bill is filed by the complainant, Wallace, with a view to quiet his title to certain lands in Union county. The complainant, in his bill, states that he is seized in fee simple of surveys No. 13,449, 13,440, and 13,526, in Union county,'containing 614 acres, giving the boundaries. That a patent issued to him for said land, from the President of the United States, on November 10, 1836. That he claims the legal title to, and is in possession of, said land. Ho further states that the defendant, John M. Patten, a resident of Yirginia, pretends to have some claim to said' land, either legal or equitable, under some entry, or some other claim, of the nature of which the defendant is ignorant; that the said Patten has in fact no just claim, either in law or equity, which he very well knows. The prayer of the bill is, that Patten may bo compelled to release any right, title, or claim, he may have to said land, to the complainant; that the complainant may be quieted in his title, and for general relief.
    The bill was filed on March 19, 1837.
    To this an answer was filed on June 19, 1838. In the answer, Patten states, that one Robert Patten, late of Yirginia, deceased, purchased for a valuable consideration, and held by assignment from Reuben Briscoe, a captain in the Yirginia line on continental establishment, a military warrant, for services in the war of the revolution, which warrant, No. *4,952, called for 1,000 acres of land, which is referred to, and a copy made part of the answer.
    The warrant was put into 4he hands, of Lucas Sullivant, for entry in the Yirginia military district. Sullivant caused an entry to be made, No. 4,572, for 1,000 acres, in the books of the principal surveyor, a copy.of which entry is referred to, and made part of the answer. This entry was made in 1804, in the county of Champaign, and interferes with a prior survey of No. 3,695, of 666§ acres of land, in favor of Thomas Frazier, and which was patented to Robert Campbell, by patent bearing date April 15, 1800.
    Respondent believes that Lucas Sullivant, having ascertained this fact of interference, withdrew this entry, and caused an entry to be made in Union county, upon vacant land there. A copy of the letter of Sullivant and of the entry 4,572 are referred to and made part of the answer. Respondent states that this entry appropriated a part or all the land in Union county, which the complainant, with full knowledge of ail the facts, afterward entered and surveyed, and for which he has procured a patent.from the United States. Respondent further states that, after the withdrawal of the entry in Champaign county, as he is informed and believes, some person, without the knowledge or authority of Robert Patten, made a survey of that entry, and procured the said survey to be subscribed by Duncan McArthur, a deputy surveyor for the military district. This is claimed to have been an unauthorized act. A copy of said survey, No. 4,572, is referred to and made part of the answer.
    Defendant further states that the said Robert Patten afterward conveyed all his real and personal estate to defendant and Robert Patten, Jr., by deed in trust, for the purposes in said will stated, and which deed bears date at Fredericksburg, Virginia, April 18, 1821. In this deed, the land in Ohio is conveyed, describing the entry as being in Champaign county. At the date of the deed, both Robert Patten and defendant were ignorant of the fact that the entry had been withdrawn *and the land re-entered in Union county. Robert Patten died in 1828, and Robert Patten, Jr., in 1829 or 1830, before defendant accepted the trust, and claims as surviving trustee, and that his equitable title to the land in controversy is superior to the title set up by complainant.
    On November 10, 1838, John M. Patten filed his cross-bill, in which-Wallace is made defendant. In this bill, he states the material facts of the case, as before stated in his answer, except as to the actual survey of entry No. 4,572, in Champaign county. With respect to this survey, he says that he has been informed and believes that the survey was actually made in August, 1819, by one Ebenezer P. Kendrick, of Chillicothe, and the name of Duncan McArthur was, without authority, subscribed to the plat of said survey, and returned to the office of the principal surveyor. Kendrick was .not at the time a deputy surveyor, nor had he authority to execute the survey. Complainant does not know by whom the survey was returned to the office; but without bearing any date, ho is informed it was recorded on or about July 12, 1820. Reference is made to a copy of the plat of survey. Complainant further states that Wallace had filed his bill to quiet his title, etc., which cause is still pending. He further states that Wallace has obtained a patent, granting to him the identical land, or some part thereof, which is included in the calls of Robert Patten’s entry, No. 4,572, which patent is based on an entry made in the year 1833, and surveyed in the year 1834, with full knowledge at the time of the equitable rights of the complainant to the same land. And that the entry in the name of Robert Patten, made in Champaign county, in 1804, had been surveyed in August, 1819, and that the warrant had been withdrawn therefrom, and had been re-entered in the land in controversy, in January, 1820. Prayer of the bill that, as Wallace has wrongfully acquired the legal title, he may be compelled to convey to complainant so much of entry No. 4,572, as he has wrongfully acquired legal title to.
    To this cross-bill, Wallace answered, on April 25,1839. *In this answer, he admits that warrant No. 4,952 has been entered ; that the number of entry is 4,572, and affirms that the said entry has been surveyed in the name of Robert Patten, and that the survey lies in Champaign county ; says he knows nothing of the withdrawal of the entry, except as it appears from the books of the principal surveyor of the district; knows nothing of the authority of Sullivant; but states, as his belief, that Sullivant had no authority to withdraw the entry, and denies that he had any such authority from 1818 to 1823; states that, during that time, Allen Latham was the agent of Patten. Admits that Kendrick made the survey; that he was not an authorized deputy; but insisted that it was customary for surveyors, who were not authorized, to make surveys ; that Kendrick was employed by Latham, as the agent of Patten, to make this survey; that Latham purchased the plat from Kendrick’s field notes, and procured the signature of McArthur; and, after the withdrawal of the entry, forwarded the plat to the principal surveyor’s office in Kentucky, and caused the same to be recorded; insists that the entry was merged in the survey, and the warrant thereby satisfied; that the land thus appropriated was in Champaign county, some miles from the land in controversy ; admits that the patent covers some part or the whole of the land in controversy, but observes that the entry of Patten, in Union county, was surveyed in Champaign county, and insists that there is no interference between the land covered by his patent and the land surveyed by Patten, and by survey appropriated. Denies that, at the date of making his entries,'he had any knowledge of any claim or right, pretended or real, of the said John M. Patten, or of any other person, to the land entered and surveyed by defendant; that his knowledge was limited to the books of the office of the principal surveyor of the Virginia military district. These books show no survey or unsurveyed entry in conflict with respondent’s said entries. These books are the guides by which alone the public and the respondent can govern themselves, in making entries and surveys.
    *The case was argued at length upon the law and the facts; but as it was decided mainly upon the facts, the arguments are not reported in extenso.

    Thurman & Shorer, G. Swan, and Henry Stanbery, for Wallace,
    cited 7 Ohio, 209 ; 3 Ohio, 178; 6 Pet. 678; 5 Cranch, 191; 3 Ohio, 490; 2 Ohio, 415.
    Mason & Torbert, for Patton,
    cited 3 Cond. U. S. 331; 5 Ib. 212, 212; 2 Ib. 235; 3 Ohio, 207; 3 Ib. 490; 4 Ib. 232; 5 Cranch, 191, 221; 4 Pet. 332; 2 Ohio, 8; 1 U. S. Cond. 243; and Hardin, 348.
   Hitchcock, J.

The lands in controversy are situate in the county of Union, within the district of country usually denominated the Virginia military district; and, as is' not infrequently the case within that district, the same lands are claimed by two individuals. Patten claims an equitable interest in virtue of an entry made January 20,1820; while Wallace claims the legal title by patent issued in 1836, based on an entry made in. 1833. The patent of Wallace, which calls for 614 acres, actually includes within its bounds the entire entry of Patten for 1,000 acres, and something like 100 acres in addition. Whether Patten has in truth any equity in the land, seems to depend upon the fact whether the second entry, which was made by Sullivant for him, has been actually surveyed. That an entry was made in the books of the principal surveyor, in his name, January 20,1820, and which covers a 1 great proportion of the Hand included within Wallace’s patent, is not controverted. But it is insisted that the same books show that this entry was surveyed on the 12th of July thereafter. Not that the land actually covered by the entry was surveyed, but that an entry of the same number, to wit, No. 4,572, was surveyed. It is not pretended that the lands were the same, nor could they be, because the lands entered were upon the waters of the Scioto, and the lands surveyed upon the waters of Mad river. Nor were they in the same county. But it is insisted that the entry is merged in a subsequent survey, and that, after survey is actually made, no attention is to be paid to the calls of the entry. Thus, if an entry is made upon the waters of the Little Miami, in Hamilton county, it may be surveyed upon the waters of the Scioto, in Union county. It may be so. But it would seem to me a little extraordinary that the entry may appropriate one tract of land, and a survey based upon it, another and different tract. There-must be first an entry, then a survey. Both are necessary, by the law regulating the subject. But, upon the principle advocated by counsel, the entry is useless, and the warrant holder maysurvey his land wherever he pleases, the entry to the contrary notwithstanding. I know that surveys have been and will be sustained, when they do not entirely agree with the calls of the entry. But I am not prepared to say that a locator may entirely disregard the calls of his entry, and execute his survey in a different and distinct part of the country. Still, all entries should be made and surveys executed so that an opportunity may be given to subsequent locators to appropriate the remaining vacant lands.

It is well established that a locator, having made his entry upon land, may afterward withdraw his warrant from it. So long as the entry remains a subsisting entry, it is an appropriation of the land. But when it is withdrawn, the land becomes vacant. So, if a survey is executed upon the entry, and the entry is subsequently withdrawn, the land becomes vacant. Until carried into grant, it is within the power of the locator to vacate the land.

*Upon the books of the principal surveyor of the district the following memorandums appear :

“ Entry book B, page 18:

“ October 5, 1804. No. 4,572. Robert Patten, assignee, enters 1.000 acres of land on a military warrant, No. 4,952, beginning at the southwest corner of the representatives of James Colderwood’s entry, No. 3,684, running N. 69 E. 400 poles; thence at right angles, S. 21, E. for quantity.

“ Withdrawn, entry 492.”

“ Entry book B, page 492 :

“January 20,1820. No. 4,572. Robert Patten, assignee, enters 1.000 acres of land on a military warrant, No. 4,952, on the waters of the Scioto, beginning at a maple, ash, and hickory, in the Indian boundary line, northwesterly corner to Mrs. Pelham’s survey, in a line of another of said Pelham’s surveys, No. 6,307; thence,with a line of said last-mentioned survey, N. 72,*E.400 poles; thence N. 18, W. 376 poles; thence S. 80, W. 407 to the beginning.”

Taking these two memorandums together, it can not be doubted that the first entry was withdrawn and a new one made January 20, 1820; and this latter entry is sufficiently explicit to appropriate the land. In fact it is much more specific than usual; for it gives all the lines by which the land intended to be appropriated is included. If the evidence had stopped here, I suppose there would have been no difficulty in the case. This withdrawal and new entry was made by Lucas Sullivant, and it is denied by the answer that he had any authority to do it. We think, however, that there can be no difficulty on this account. He, as the evidence shows, made the original entry; and when he discovered that that entry could not be available, we see no objection to his withdrawing it, and making one which would be available.

But the real difficulty grows out of the fact that a survey purporting to be a survey of No. 4,572, appears upon the books of the principal surveyor, as follows:

*“ Survey book C, page 426. No. 4,572. Surveyed for Robert Patten, assignee, 1,000 acres of land in a military warrant No. 4,952, on the waters of Mad river, beginning at two hickories, southwest corner of the representatives of James Colderwood’s survey, No. 3,634; thence N. 69, E. 400 poles, crossing several small branches, to a small dogwood, a large white oak, and two small ashes; thence S. 21, E. 400 poles, to two small dogwoods and a large red oak; thence S. 69, W. 400 poles, to the beginning. Signedp Duncan McArthur, D. S.; Matthew Bonner, James Leiper,'C. C.; E. P. Kendrick, marker. Examined and recorded, July 12, 1820.” - '

Now it is manifest that this survey is based upon the entry made in 1804, which was withdrawn in 1820. There is no doubt upon this point. Still, by the reference upon the surveyor’s book, this survey is pointed to as being a survey of the entry made in 1820. It was recorded after the date of that entry. But it will be remarked that the survey itself bears no date. From it, we can not learn when it was actually executed upon the ground. Wallace says that he, from examination of the books, supposed that, although the first entry was withdrawn, yet that Patten, or those acting for him, concluded to abandon the second entry, and abide by the first. If this were so; if the conduct of Patten or those acting for him, has been such as to deceive him, equity .ought not to show them any favor.

It has been already remarked that, if a survey be executed pursuant to an entry, and the warrant is subsequently withdrawn from the land, it takes with it the survey, and the land is left vacant. In this case, the survey was recorded a few months after the change of the entry. Now, what would have been the course of a common prudent man, upon the examination of these boobs, and finding the memorandums as before stated? It seems to us that he must have been satisfied that there was some mistake; that there was something wrong. And, if he had been anxious to do that which was exactly right, he would have made some further inquiry; would have gone to *the person interested, to ascertain the true state of the fact. Good neighborhood would at least require this; and it would be a good rule to observe even among locators. These books of the principal surveyor, although from necessity evidence, and very important evidence, still are not of that absolute verity which is attached to records. If mistakes are discovered in them, those mistakes may be corrected so far as to attain justice. It seems to us that, from those memorandums alone, a subsequent locator should have been put upon inquiry.

But it is allowed in the cross-bill, that this survey was actually executed before the entry was withdrawn, and that this fact was known to Wallace. This, however, is denied in the answer. What, then, is the proof? Matthew Bonner testifies that he assisted Kendrick to execute this survey, and that it was done in August or September, in the year 1819. The witness states further that he informed Wallace of this .fact. Now it is true there is the direct testimony of but one witness to contradict the answer; but, when the circumstances are all taken in connection with the testimony of this one witness, we are satisfied that Wallace must have known this fact, that this aurvey was made, and intended to be made, pursuant to the first enti’y.

It is insisted, however, that it is immaterial whether Wallace had notice; that that is a question which can not affect titles in the military district. I am aware that the equity proceedings, with respect to these titles, are somewhat anomalous, and that there are cases where notice of a prior attempted appropriation will not affect a subsequent locator — as, for instance, where an entry is made which is void for want of the notoriety of its calls, or for any other reason. But the reason of this rule is apparent. The entry being void, no land is appropriated. Of course notice of an attempt to appropriate, can affect no one. The land is still vacant, and subject to location. But, in a case like the present, where, by the entry, the-land was actually appropriated, and a mistake has happened, with respect to the survey, notice to a subsequent locator must have the same effect as would notice in any other case.

*But it is urged that Latham procured this survey to be recorded; that he is the agent of Patten, and therefore that Patten should be concluded by the record. Latham, in his testimony, admits that, after the entry was withdrawn, he forwarded the plat of survey to the office, but says it was through mistake, he not knowing at the time the original entry had been withdrawn. We see nothing in this which can alter the case. Believing that Wallace must have known and did know that the survey was executed before the first entry was'withdrawn, that it was not the intention of that survey to merge the record entry, we are of opinion that the original bill can not be sustained, but must be dismissed.

It is objected by counsel for the defendant, in the cross-bill, that there can not be a decree in favor of Patten until he shall have procured his patent. We are not prepared to admit this doctrine to the extent claimed, though I am free to say that I do not recollect a case of this description in practice, where there was not a junior patent as well as a senior entry. But still, if the evidence were sufficient to show that a complainant had an indisputable right to the legal title, I see no insuperable reason why there should not be a decree in his favor, inasmuch as the legal title has passed out of the United States and is vested in the defendant. But before we can do this, we must have the same evidence before us as would be required in the general land office before a patent is allowed to be issued. We must have the warrant and evidence of its transfer, and such other evidence as is required in that office. Not having this evidence, we are willing to continue the cross-bill and remand it to the county, or to dismiss it without prejudice, at the election of counsel.


author: Birchard, J.

text:
    Heman Oviatt v. John Brown, Daniel C. Gaylord, Amos Chamberlain, Tertius Wadsworth, Joseph Wells and others.
    The purchaser at sheriffs sale, without notice of a dormant equity prior to tho return of the execution satisfied, takes title as a bona fide purchaser without notice, although the sheriff’s deed bears date subsequent to actual notice; given after the sale.
    When the confirmation of the sale by the court, after notice of the dormant equity, leaves the party having such equity in the same condition that he would have been in had the sale been set aside, chancery will not sot aside the sheriff’s deed, to let in the equity. . ,
    This is a bill in chancery, reserved in the county of Summit.
    The bill charges that John Brown, one of the defendants, on July 11, 1836, applied to Frederick Brown, Joshua Stow, Henry Wetmore, Ogdon Wetmoro, William *Wetmore, and the complainant, Heman Oviatt, to become security for him to tho Western Reserve Bank, on a note for about $6,000; that they complied with his request, and became security accordingly, on a note bearing date that day.
    The note being unpaid was sued, and judgment recovered at the May term of the court of common pleas of Portage county, 1837, for $6,178.25 damages, and $12.55 costs. To discharge this judgment, Brown and his securities, on August 2,1837, gave to the bank their joint and several judgment bond for the sum of $6,000, to be paid' in sixty days.
    Oliver O. Brown being the equitable owner of 140 acres of land in the north parts of lots 99 and 100, in the township of Hudson, by contract with William Westland, guardian of Diantha and Parmolia Westland, children and heirs of Grovo Westland, and with Diantha Westland, widow of said Grovo, on January 10, 1836, gave a penal bond to John Brown, conditioned to convoy to. him said land on or before January 1, 1839, which bond John Brown indorsed to complainant and others, his indorsers, on July 5, 1837, and delivered the same to the complainant as collateral security, to indemnify them against liability for having indorsed said note.
    On October 23, 1838, William and Diantha Western, at the request of Oliver Brown, by deed of that date, conveyed said premises to John Brown, who caused the deed to be recorded; and it is charged that all this was done without the knowledge or consent of the complainant.
    On January 2, 1836, John Brown held two notes against Seth Thompson, one payable January 7, 1839, and the other January, 1840, which he sold to Frederick Brown without indorsing them; and Frederick, in May or June following, sold and delivered the same to Daniel G. Gaylord, one of the defendants, who afterward applied to John Brown to get them indorsed, to make them negotiable. John, without any consideration, indorsed them to make them negotiable, and for no Mother purpose whatever. The notes being unpaid, however, Gaylord took the necessary steps'to charge John as indoi’ser, commenced suit upon one note, and recovered final judgment in the Supreme Court of Portage county, at the August term, 1839, for $1,304.10.
    On June 17, 1839, John Brown mortgaged the Westland farm to the defendants, Wadsworth and Wells, of Connecticut, without the knowledge of the complainant, to secure to them the payment of money previously borrowed of them; but the bill charges explicitly that they have ample security for said debt without resorting to the Westland farm.
    At the September term of the court of common pleas, 1839, the Western Beserve Bank caused judgment to be entered against John Brown and his security, in Portage county, upon their judgment bond, for the sum of $5,675.66, and on the 11th of October, of the same year, caused execution to be issued thereon, to the sheriff of Medina county, where the complainant then lived, and which complainant was compelled to pay.
    On October 12, 1840, Gaylord caused the Westland form to be sold on execution, upon his judgment against John Brown; and Chamberlain, one of the defendants, became the purchaser by the procurement of Gaylord, having bid for the farm $1,681. In payment, Chamberlain delivered to the sheriff Gaylord’s receipt for the sum of $1,369.59 in full of his damages, and paid the balance of the purchase money in cash, which balance, after payment of costs, was, on motion of Wadsworth and Wells, applied on their mortgage, and that all this was done without the knowledge of the complainant.
    It is charged that, before and at the time of sale, Gaylord and Chamberlain well knew that complainant and his securities had a lien upon the premises to secure them against their liability, and for that reason Chamberlain refused to purchase until Gaylord gave to him a bond or contract to secure, or indemnify him against said lien.
    The prayer of the bill is, that the sale to Chamberlain may be decreed to be fraudulent and void, etc.
    *To this bill Gaylord and Chamberlain have alone answered.
    Gaylord, in his answer, donies having any knowledge of the transaction between the Western Reserve Bank and John Brown and his securities, but presumes they are correctly set forth. Admits that Oliver O. Brotvn had some equitable interest in the Westland farm, and that on January 10, 1836, or about that time, gave the penal bond to John Brown as charged; but docs not believe, and therefore denies that on June 5, 1837, the said John Brown transferred said bond to "the complainant and his eosecurities for the purposes in the bill specified, or for any other purpose; admits that he has been informed that there is now an indorsement upon said bond purporting to transfer the same to the complainant, but denies that he received any such information until long after the recovery and satisfaction of his judgment; believes, and therefore charges, that said indorsement was actually made long after it bears date, and long after he received his judgment, and that it was done with a view to defraud him, and prevent him from collecting said judgment, and that the said bond was not delivered to complainant; denies that he had any knowledge even of the existence of said bond until long after the recovery and satisfaction of his judgment; admits that the premises were conveyed to John Brown by William and Diantha Westland, as stated in the bill, but whether it was done by the consent of the complainant, or at the request of Oliver Brown; does not know.
    Donies that Frederick Brown sold him two notes against Seth Thompson, as stated in the bill, but admits that he sold two such notes to the defendant and Jonas Leach under the following circumstances : Leach and defendant owned, jointly, certain real estate in the township of Franklin, which the said Frederick was desirous of purchasing, and offered, in part payment, the two notes. Defendant and Loach refused to take them, because they were not indorsed. At a subsequent period Frederick again produced the two notes, one of them indorsed by himself, and the other by John Brown, whereupon ^defendant and Leach agreed to receive them, and did receive them, in part payment for the aforesaid real estate. By a division between Leach and himself, the defendant received the note indorsed by John Brown, and when the same arrived at maturity, took the proper steps to charge him as indorser, and commenced suit and recovered judgment in the court of common pleas of Portage county, from which Brown appealed, and judgment was rendered in the Supreme Court, as stated in the bill.
    Admits the execution of the mortgage to Wadsworth and Wells ; but whether it was made with the consent, or without the knowledge of the complainant, defendant does not know, nor does he know whether the said Wadsworth and Wells have ample security for their debt, exclusive of the Westland farm; but of these things he requires proof.
    Admits that he caused an execution to be issued on his judgment, and had the same levied upon the premises, which were sold at sheriff’s sale, and purchased by the defendant Chamberlain, but denies that he solicited or procured Chamberlain to make the purchase. Upon the application of Chamberlain, he did agree to take his notes upon time for a part of the purchase money; but he denies that he gave Chamberlain a bond, contract, or promise to indemnify him against any claim of the complainant, or of any other person. This, defendant then believed, and still believes that his judgment constitutes the oldest and most preferable lien upon said bond.
    Says it was not long after the sale of said land upon execution, that he heard that the complainant had, or pretended to have, any claim upon said land. That it was for a long time generally known that Brown was in failing circumstances; that there were judgments and mortgages against him, and that he had assigned his property. These lacts must have been known to Oviatt, from his local situation, from his intimacy with Brown, and from his known caution about his own pecuniary concerns; but he set up no claim, repeatedly declared that he had no indemnity for going security, and in fact if he had any security, he fraudulently concealed the same *until he knew the land was sold, and satisfaction entered upon defondant’s judgment.
    Says, that on June 5, 1837, John Brown was possessed, in Portage county, of sufficient unincumbered real estate to have indemnified complainant. Denies all fraud, etc.
    Chamberlain, in his answer, corroborates Gaylord, and says, that seeing the land advertised for sale, and being desirous to purchase, he examined as to the title, and took the advice of counsel. That he ascertained, as he supposed, that Gaylord’s judgment was the oldest lien upon the land. That not having sufficient money to make payment in full, he applied to Gaylord and made an arrangement with him, by which Gaylord agreed, in the event of his purchase, to give him a receipt to apply on the judgment, and give him time to make payment in part. That he attended on the day of sale, and bid for the land $1,681, and it was struck off to him. He paid to the sheriff Gaylord’s receipt for the amount of damages, and the balance in money. This was done at the return term of the execution ; but the sheriff neglected to get an order for a deed until the next term of the court, which was in April, 1841; that at the time of the sale, and at the time of the payment to the sheriff, he had no knowledge of the existence of said bond to John Brown, or of the indorsement thereon, nor had he ever had any notice of the same, nor did he know, nor had he ever heard that the complainant had, or intended to have, any claim to said land, of any kind, nature, or description whatever; but a long time thereafter, and but a few days before he received his deed, he did hear that the complainant had, or pretended to have, some claim to the land; whereupon, on or about April 15,1841, he went to the complainant to make inquiry; and, for the first time, was informed of, and ascertained the existence of the bond and indorsement; but this was long after he had purchased and paid for the land. He denies that Gaylord requested him to make the purchase ; that he has any interest therein, or that he has undertaken in any manner to indemnify this defendant. He says that soon after the purchase, *he took possession of the land, and has been in peaceable possession ever since, except for a short period, when disturbed in that possession by John Brown. He claims to be a bona fide purchaser, for a valuable consideration, without notico, etc. Denies all fraud, etc.
    The testimony taken was very voluminous, and the questions of fact involved in the case were argued at great length by the respective counsel, but would not interest the general reader, nor are they important to a correct understanding of the points de-

      ..eided. The conclusions to which the court arrived upon the points material, are stated in the opinion delivered by Birchard, J.
    Vi. S. C. Otis, and P. B. Wilcox, for complainant,
    cited in support of the legal positions upon which they rested the case, the following authorities: Lewin on Trusts and Trustees, 610, 205, 358 ; The Attorney-General v. Lady Downing, Wilson, 21, 22; Anderson v. Van Allen, 12 Johns. 343; Rutledge v. Smith, 1 McC. Ch. 132; Tallmadge v Tallmadge et al., decided in bank, December Term, 1841, but not reported; 2 Sugd. on Vend. 313; 4 Kent’s Com. 180; Story’s Eq. Pl. 816; Gallison v. McCoslin, 1 Black. 91; Doswell v. Buchanan, 3 Leigh, 365 ; Nanzt v. McPherson, 7 Munf. 599; Hunter v. Simrell, 5 Litt. 62; Pillow’s Heirs v. Shannon’s Heirs, 3 Yerg. 508; Simmons v. Richardson, 2 Litt. 276; Murray et al. v. Ballow et al., 1 Johns. Ch. 566 ; 10 Pet. 211; 2 Sugd. on Vend. 352 ; Story’s Eq. Pl. 618 ; 2 Coke (Thomas and Frazier’s edition), 78, 79, 419; 15 Johns. 309; 3 Cow. 75; 15 Wend. 588; Wright, 520; 3 Ohio, 527; 5 Ohio, 55; 8 Ohio, 107; 9 Ohio, 184; 10 Ohio, 404; 11 Ohio, 235; 1 Ohio, 275; 2 Ohio, 503; O’Neal v. Cothran, 4 Des. 553.
    H. Whedon and Hitchcock & Wilder, for tho defendants,
    *Gaylord and Chamberlain, relied upon tho following authorities: Manley v. Hunt, 11 Ohio, 257; Mager v. Beatty, 8 Ohio, 396 ; Bank of Muskingum v. Carpenter, 7 Ohio, 21; Chase’s Stat. 454; Remington v. Doud, 10 Ohio, 415; Boyd’s Lessee v. Longworth, 11 Ohio, 235; Scribner v. Lockwood, 9 Ohio, 184; Parker v. Miller, 9 Ohio, 108; Jackson v. Dickerson, 15 Johns.
   Birchard, J.

The object of this bill is to reach an equity in certain land sold on an execution in favor of Gaylord, and purchased by Chamberlain, who has the legal title. Much testimony has been taken, numerous points of law raised, and great pains taken in preparing the very elaborate arguments upon several questions of fact, and of conflicting evidence as well as of law.

So far as we deem it important to a correct understanding of our views of the merits, these matters of fact and mooted points will be noticed in this opinion. And, for the sake of brevity, those only will be noticed which we consider important, as being those upon which the merits of the controversy depend.

The land in dispute was conveyed by deed to John Brown, on October 23, 1838.

Gaylord’s judgment was a lien upon all of Brown’s land, from May 27, 1839, the first day of the term of the court of commoD pleas, at which it was rendered.

On June 17, 1839, Brown mortgaged all his lands, including this now in controversy, to the respondents, Wells and Wads-worth, to secure a large sum of money.

August 29, 1839, two days before the rendition of judgment in favor of Gaylord against Brown, in the Supreme Court, Brown assigned all his property, real and personal, to De Peysten, in order to prevent a levy by Gaylord.

On September 17, 1837, the Western Reserve Bank obtained the judgment set forth in the bill against Brown and his sureties, which was paid on execution, by complainant.

^October 12, 1840, the land in dispute was sold on the execution in favor of Gaylord, and bid in by Chamberlain at $1,681, and the execution was returned satisfied at the November term, 1840, of the Portage common pleas.

After the return of the writ, and between that time and the execution of the sheriff’s deed, Chamberlain had notice that the complainant claimed to hold an interest in the land by virtue of the title bond set forth in the bill. Whether he had such notice before the confirmation of the sale, or at what precise time, is a question of some doubt/

It is equally doubtful whether this title bond had not been surrendered by the complainant at the time Brown received his deed for the land. Indeed, it is difficult to reconcile the statements and conduct of Oviatt, as disclosed by the evidence, with the supposi- ■ tion that he held this bond from the date of the receipt attached to De Peysten’s deposition. But, admitting that he so held it, and „ admitting that Chamberlain had notice between the return of the writ and the subsequent term of the court at which the sale was confirmed, and a de.ed ordered by the court, in our view the complainant is not entitled to the decree which he seeks.

The rights and the acts of Gaylord and Chamberlain, and the situation of Oviatt’s equi ty, must all be taken into consideration, when coming to a conclusion as to the merits of their claim in chancery.

Oviatt’s rights to this equity could not have availed him anything in opposition to the mortgage to Wadsworth and Wells, who were bona fide purchasers without notice. That mortgage covered two other tracts of land ample to satisfy the judgment of Gaylord, which was a lien prior to the mortgage; and, had the sale been set aside at the time it was confirmed, the consequence must have been a levy of an alias writ by Gaylord upon the other land covered by the mortgage, and the operation would have produced a sale of this land upon the.decree, instead of the execution. Had that course been adopted, complainant would have been left precisely where he is now, ^without any benefit from his secret bond. The proceeds of all the lands, without any such bills of costs as this useless operation would have, caused, are found insufficient to satisfy the mortgage and the judgment.

What was done, has produced the precise result that ought to have been produced. It is what a court of equity would have done, if all the parties were before it asking a distribution of the proceeds of the lands bound by the judgment of Gaylord, and embraced in the mortgage. The claim would have been marshaled so as to satisfy Gaylord’s judgment first, and then the mortgage to the extent of the value of the remaining lands.

Another view of the case is equally decisive. The title of Chamb.erlain was acquired at a sheriff’s sale, which, by statute, vests in him the title from the day of the sale. The deed executed at a subsequent date, has relation back to that date, and is as effectual as if then made.

It is not pretended that the purchaser, at that time (or if pretended, it is a mere pretense), had any notice of complainant’s equity. He made, then, his purchase in good faith, without notice, satisfied the judgment without notice, and has title by operation of law anterior to the notice. So that if the equity of Oviatt were ever so fully established, it would fail, because that of Chamberlain is equal to his, and is coupled with the legal title, untainted by fraud. There is an essential diffei’ence between a sheriff’s sale and a private sale, in this:

The purchaser at the former purchases at his peril; and the purchase money goes to the creditor — not to the owner of the land; and, if the title fail, he loses the consideration. He has no recourse. The purchaser at private sale may arrest the proceeding at any stage if cause exists, and look to his vendor for redress If liis title fails, he may sue and recover back the consideratioi paid.

Bill dismissed,

Judge Hitchcock was formerly counsel, and therefore took no part in deciding the cause.