author: Hitchcock, J,

text:
    Lessee of William Irvin vs. Isaac Smith.
    By the execution of a deed according to the forms of law, the title of the grantor to the lands conveyed, becomes vested in the grantee, whether the deed is recorded or not, and is good .against all the world except subsequent purchasers, without notice.
    When such deed is recorded, the record operates as constructive notice.
    The doctrine of lis pendens does not apply to a party in interest, who is not made a party to the proceedings.
    A decree of a Court in Chancery does not, as a general rule, operate upon those who are neither parties to the suit, nor privies.
    This is a Writ or Error, directed to the Court of Common Pleas of Fayette County, in which Court there was a verdict and judgment for the Defendant.
    On the trial of the case, two bills of exceptions were taken, the first to the charge of the Court, and the second to the refusal of the Court to grant a new trial.

      From the first bill of exceptions, it appears that the plaintiff, in support of his action, gave in evidence :
    1st. A certified copy of the patent for the land in versy, from the United States to Peter Manifold, dated February 28 th, 1809.
    2d. Certified copies of the files, papers, entries, decree, &c., in the case of Andrew Reed against Peter Manifold and others, in Chancery, in Delaware county. The bill was filed January 31st, 1817, by Andrew Reed against Peter Manifold, Richard C. Anderson, Lucas Sullivant and Duncan McArthur.
    This bill states that in July, 1792, or about that time, a military land warrant, No, 4583, for 5333f acres of land, was granted by the State of Virginia to Peter Manifold, assignee of David Hopkins, for services rendered by Hopkins in the Virginia Military line on continental establishment — that soon after the warrant was granted, Manifold, for a valuable consideration, sold, indorsed and delivered it to Richard Smyth — that in October, 1792, Smyth, for a valuable consideration, sold, indorsed and delivered it to Andrew Reed, the complainant, and Samuel McCulloch — that on the 31st day of March, 1796, Reed and McCulloch, by their agent, David Reed, contracted with Lucas Sullivant to locate this warrant in the Virginia Military district in Ohio.
    Reed paid Sullivant, for contingent expenses, $55 33. Before the warrant was delivered over to Sullivant, McCulloch, to save the fees charged in the surveyor’s office for each assignment, struck out the assignments on the warrant, supposing that his and Reed’s title would not be thereby affected — that Sullivant proceeded to make numerous locations of the warrant, and also numerous withdrawals and relocations — the latter without the authority of Reed and McCulloch — that' the first locations were greatly the best, and that this was well known to Sullivant — that in 1806, Peter Manifold, then living in New York, came to Ohio, unknown to complainant, and finding the entries in his (Manifold’s) name, claimed them, though he well knew he had assigned the warrant as aforesaid — that in order to cheat Reed and McCulloch, he agreed with Sullivant that Sullivant should give up to him the plats, certificates, &.C., to . enable him to get patents for the lands, and that he should convey a part of the land to Sullivant — that Sullivant, with full knowledge of all the facts, gave up the papers to him — that Manifold, on the 20th of January, 1807, obtained patents for two of the tracts of land which are described in the bill, and assigned to Sullivant a part of the warrant — that he also assigned a part of the warrant to Richard C. Anderson, which assignment Anderson took with full knowledge of the rights of Reed and McCulloch— that Manifold, finding that, one of his patents (described in the bill) embraced lands covered by older claims, employed Duncan McArthur to withdraw the entry — that McArthur did so, and made a new location on the 24th of November, 1808, of 1500 acres in Manifold’s name, being the land in controversy, on the waters of Paint creek, described as entry 6126 — that on the 28th of February, 1809, that tract was patented to Manifold — that a part of the warrant was assigned by Manifold to McArthur, and that he made entries ajnd surveys and procured patents in his own name — that McArthur had full knowledge of all the facts when he took the assignment'— that all these transactions on the part of the assignees were gross frauds —'that Samuel McCulloch and wife, by deed, bearing date April 10, 1812, conveyed and transferred all their rights to the complainant, Andrew Reed — that entries No. 2833, 4610, 4998, 5053 and 5140 lie in Delaware county — that entry 612Q, (the tract in controversy,) lies in Fayette county ; entry 5241 in Franklin county; entry 2S32 partly in Champaign and partly in Delaware counties — that entries 6512 and 5111 are in-county. The bill claims all these lands as belonging to complainant upon the grounds before stated. The ■ history and particulars in regard to each tract are fully set forth, but it is deemed unnecessary to repeat them here.
    The bill prays that the defendants may be compelled to make discovery under oath — 'that they may'respectively answer the suit, Manifold died, and on the 21st of April, 1819, a bill of revivor was filed, on leave, against that those patented may be decreed to be conveyed to the corn- plainant by the defendants holding them. IN
    BANK. Dec. Term, the “unknown heirs at law of said Peter Manifold, deceased,” who were made parties by publication, being non-residents of the State. On the 1st of August, 1819, Andrew Reed died, and on the 6th of June, 1821, a bill of revivor was filed in fa- vor of his heirs. At the October term in that year, a final decree was rendered in favor of the heirs of said Andrew Reed,
    ordering the unknown heirs of said Manifold to convey to the heirs of said Reed, among others, the premises in controversy, and in default thereof that the decree should operate as a conveyance. 3d. An agreement between the parties that the title of the heirs of Andrew Reed was in the plaintiff’s lessor before
    the commencement of this suit. Notice and declaration served upon Joseph Parrot, Hamilton Rogers, James Smith, Isaac Drais, Samuel Eyman and Will-1848. 4th. The following
    agreement between the parties: JOHN DoE, Ex.
    dem. of ejector. ) In Fayette Oomrnon 6126. In Fayette Oomrnon
    Pleas, in ejectment for survey No. 6126. iam M. Scott,
    tenants, &c. As the question involved in this case is one of title and pos- session only, and that going to the
    whole of the said survey, it is, therefore, agreed, by the attornies for the parties, that the case may be tried by making Isaac Smith defendant, in place of the casual ejector, which has been done, and the consent rule entered into to that effect; and it is agreed by the attor- nies for the above named Parrot, Rogers, James Smith, Drais, Eyman and Scott, and Isaac Smith, that the title of each of them to the lands they claim in said survey, is,derived from the same source, and that at the trial no title, shall be set up in interrogatories propounded - that the lands claimed and not yet entered may be decreed to be assigned to complainants, and Isaac Smith, which is not derived from the same source from sa'd Parrot, Rogers, James Smith, Drais, Eyman and derive their title to the parts of the survey to which they each set up claim; and if the plaintiff succeed in this suit, that the writ of possession may go against all the said persons named, upon whom service has been had as above’stated, and who have by their attornies here agreed to abide the event of the cause against said Isaac Smith; and it is agreed by the attorney for the plaintiff that no steps shall be taken in this cause against said tenants, served as aforesaid, until this case, in which Isaac Smith has entered into the consent rule as aforesaid, shall have been determined; and if said plaintiff shall fail to establish his title and right of possession to the whole of said survey, and every part thereof, as against said Isaac Smith, then and in that case, judgment shall go against said plaintiff for the whole of said survey, No. 6126, provided, said Isaac Smith sets up no other title or right of possession than said tenants, served as aforesaid, would have set up.
    It is expressly understood, that nothing herein is to operate as a bar against any other suits that either party may wish to, or may bring in relation to said survey.
    The defendant, thereupon, offered the following evidence:
    1st. The original patent from the United States to Peter Manifold, dated February 28th, 1809.
    2d. A deed from Peter Manifold to Adrian Vansinderin, dated June 14th, 1809, and recorded in Fayette county, June 6th, 1820.
    3d, A duly certified copy of a deed from Vansinderin to Matthew Bonner and Cadwallader Wallace, dated January 7th, 1831.
    4th, A deed from said Bonner to said Wallace.
    5th. A deed from Wallace to the defendant, dated December 25th, 1833.
    All of these deeds embraced the land in controversy. There was also parol testimony given, which it is not necessary to state.

      After the testimony was closed, the plaintiff’s counsel requested the Court to charge the jury —
    1. That said chancery proceedings and decree were to vest in the heirs of Andrew Reed, named in said proceedings, all the title of said Peter Manifold, deceased, and of his heirs, in the lands described in the plaintiff’s declaration.
    2. That the deed from Peter Manifold to Adrian Vansinderin, and its recordation on the 6th day of June, 1820, did not affect the rights of -the said heirs of Andrew Reed, arising from said decree, unless at the time of the rendition of said decree, they had actual knowledge of the existence of said deed.
    3. That the said deed not having been recorded within one year from the day on which the same was executed, its subsequent recordation did not render it, from that time, constructive notice to said heirs; and that actual notice to them, before the rendition of said decree, was necessary to give it any efficacy as to them, and those claiming under them.
    4. That the title of said heirs, derived from said decree, relates back, as shown by the proceedings in said chancery case, to a period earlier than the time of the recording of said deed; and that the recording of the deed after the time to which the said title so relates, could not in any wise affect the title derived to said heirs from said decree.
    5. That the notice given to the unknown heirs of Peter Manifold in said chancery, case, as this fact appears by the decree, files, and proofs in said case, was sufficient to give the Court rendering said decree jurisdiction as to said heirs, and that the decree so rendered was valid and effectual, as respects the said Peter Manifold and his heirs, and that the said decree so rendered cannot be collaterally impeached or questioned in this suit.
    6. That the deed from said Peter Manifold, executed on the 14th day of June, 1809, not having been recorded until the 6th day of June, 1820', cannot, without proof of actual notice to said heirs, or their ancestor, prevail against the equity of the said Andrew Reed, which commenced prior to the execution of said deed, and was consummated into a,legal title by said de1 cree.
    All of which sqid instructions the Court refused to give, and on each of the points specified in said instructions, gave to the jury instructions opposite to those severally prayed for.
    The second bill of exceptions shows that the jury, under the said instructions of the Court, having found a verdict for the defendant, the plaintiff moved the Court to set aside the verdict, and grant a new trial, upon the following grounds:
    1. That the Court erred in refusing to give the instructions prayed for, as appears by the said bill of exceptions, taken during the progress of the trial as aforesaid,
    2. That the Court erred in’ giving the instructions so given by them, as appears by the said bill of exceptions.
    3. That the said verdict of the jury was contrary to the law and evidence in the case.
    Which said motion was overruled by' the.Court.

      ■Ewing, Swayne, and Matthews, for Plaintiff in Error.

      Robinson, Thompson, Thurman, and Sherer, for the Defendants. '
    The case was argued at length, but as the points discussed related mainly to the proceedings in the chancery case, under which the plaintiff claimed title, and the decision is put upon other grounds, the arguments are omitted.
   Hitchcock, J,

The record in this case is voluminous, and many points have been raised by counsel, in argument. These will be considered, so far as is necessary for the disposition of the case.

The errors assigned are based upon the supposed mistake of the Court of Common Pleas, in the instructions given to the jury, in the refusal to instruct as requested by the plaintiff, and in refusing to grant a new trial. The facts of the case are set forth in the bill of exceptions. From this bill it appears, that on the trial of the case the plaintiff proved that a patent for the land in controversy, was issued to Peter Manifold, bearing date February 28, 1809. He further gave in evidence copies of the files, papers, and the decree, &c. in the case of Andrew Reed v. Peter Manifold and others, in the county of Delaware. This suit was instituted on the 3lst day of January, 1817, the object being to compel Manifold, and others claiming under him, to convey the legal title in the land to Reed; Reed claiming that Manifold held the same in trust for him, in consequence of certain facts which were stated and set forth in the bill. This bill, although answered by some of the defendants, was never answered by Manifold, nor was he brought before the Court, except by publication of notice. During the progress of the case, the complainant, Andrew Reed, died, and the suit was revived in favor of his heirs. The defendant, Manifold, also died, and the suit was revived against his heirs, not by name, but as unknown heirs of the said Manifold. On the 3d of October, 1821, a final decree was made in the case, and by this decree the “ unknown 'heirs ” of Peter Manifold were ordered to convey the premises in controversy to David Reed and others named in the decree, and heirs of Andrew Reed, with a further order, that in case said unknown heirs should fail to convey the lands, then the decree to have the same operation and effect as a conveyance. This decree was recorded^ in Fayette county, on the 6th of December, 1821. There does not seem to be any controversy but that this decree, although pronounced in Delaware county, might operate upon lands in Fayette county, as the proof is abundant that in the same Chancery proceedings, it was sought to compel the conveyance of land, as well in Delaware as in Fayette county. It is admitted that whatever of interest there was in the heirs of Andrew Reed, the same is vested in the lessor of the plaintiff.

The defendant then gave in evidence:

1. The original patent from the United States to Peter Manifold, dated February 28, 1809.

2. A deed from Peter Manifold to Adrian Vansinderin, dated June 14, 1809, and recorded in Fayette county, June 6, 1820.

3. A certified copy of a deed from Vansinderin to Matthew Bonner and Cadwallader Wallace, dated January 7, 1831.

4. A deed from Bonner to Wallace.

5. A deed from Wallace to defendant, Smith,, dated December 25, 1833.

These deeds embrace the land in controversy.

The defendant proved that he took possession of the land in 1828 or 1830, under a contract,- and has continued in possession ever since; and further that he and Wallace, under whom he claims, have paid the taxes since the date of the deed from Vansinderin to Wallace.

Such are the general features of the case, and it may not be improper, before examining into the particulars, in which it is claimed that the Court of Common Pleas erred, to inquire, admitting the proceedings, in Chancery to have been regular, in whom was the legal title to this land vested at the time of the commencement of this suit.

Peter Manifold ceased to have any interest in the land, either legal or equitable on the 14th June, 1809, the date of his conveyance to Vansiderin. This deed was not recorded until June, 1820. But the recording of the deed was not necessary to give it effect. The title was as fully vested in the grantee before, as after the deed was recorded. And had Manifold undertaken to convey the land to any other person he would have been guilty of a fraud. Still in a certain contingency, such conveyance would have been held to have vested the title in the second grantee. Not because Manifold had anything to convey, but because Vansinderin, by neglecting to have his deed recorded, had left it in the power of Manifold again to sell and receive pay for the same land. Under such circumstances the law, in accordance with the principles of equity, has provided that he, in consequence of whose negligence the fraud has been committed, shall sustain -the loss occasioned thereby.

The law of 1805, which was in force at the time this deed was executed, requires, if such deeds were executed within the State, that the same should be recorded within six months executed, and if executed out of the State, then the same should be recorded within one year, and “ if not recorded within the respective terms allowed by this act, the same shall be deemed fraudulent against any subsequent bona fide purchaser, or purchasers, without knowledge of the existence of such former deed or conveyance. (Chase’s stat. p. 485.) Now it is well to inquire what was the intention of the General Assembly in the use of this language. Was it any thing more than this, that if a grantee should neglect to have his deed recorded, and in consequence another person should subsequently be induced to purchase the same land, and pay therefor,, such subsequent purchaser should be protected ? As to him, the first deed must be held fraudulent. Such is the language, such the evident intent and meaning of the act. Is the plaintiff in this situation ? Is he a subsequent bona fide purchaser,” within the meaning of the law ? It seems to me doubtful. Those under whom he claims, if they have any legal interest in the premises, were purchasers in the technical sense of the term. They, it is true, did not take by descent, and therefore they took by purchase. And if subsequent purchasers, they became such only by the operation of the decree which was pronounced in 1821. So far as any purchase, according to the common acceptation of the term is concerned, that was made long before Manifold had any title to the land. And so far as Vansinderin and those claiming under him are concerned, they were not parties to the Chancery proceedings, and had no opportunity to defend their rights.

But if within the meaning of the act of 1805, those under whom the lessor of the plaintiff claims, were subsequent purchasers, were they purchasers without notice ? There is no proof in the case to show that they had actual notice of the existence of the deed from Manifold to Vansinderin, at the time of the rendition of the decree. That decree was rendered, however, in October, 1821; and the deed had been recorded in June, 1820. It is said, however, that this deed, having been executed under the law of 1805, and not having been'recorded within the time limited by that law, the subsequent recording of it cannot be held to be constructive notice ; and this position seems to be admitted by the counsel for defendant, unless by the construction of a law of 1810, and 1818, such recording can be held to be such notice. It is further claimed, that such has been the decision of this Court, and the cases of Parker v. Miller, (9 Ohio Rep. 108,) and Scribner v. Lockwood, (9 Ohio Rep. 184) are cited.

Now, according to our understanding of these cases, no such principle was decided, nor do we believe that any such principle was intended to be decided. In the case of Parker v. Miller, the defendants claimed title under a sale made by creditors, under the attachment law of 1810. The facts so far as respected the premises then in controversy were these. On the 23d of February, 1811., those premises were the .property of Johnson L. Fuller, and on that day he conveyed them to Apollos Griswold. The deed of conveyance was not recorded until June, 1813, nearly three years after the same was executed. On the 19th June, 1812, Zadoc West prayed out a writ of attachment against Fuller, in virtue of which the lands then in controversy were attached the next succeeding day. Under this attachment such proceedings were had that the land was sold, and a conveyance made to the purchaser on the 3d of September, 1813, and the deed recorded on the same day. This was more than two months after the recording of the deed to Griswold. The Court felt the case to be one of great difficulty, but eventually held that the title acquired under the attachment law must prevail.. Not because the recording of a deed out of time would not be constructive notice from the time the record was made. Nothing of this kind is stated in the case. But the Court was led to the conclusion finally announced, by the peculiar phraseology of the attachment laws, under which the proceedings were had, taken in connection with the deed law of 1805.

As has been already slated, under this latter law, a deed not recorded within the time limited by law, must be postponed, to the deed of a subsequent bona fi'de purchaser out notice. Not because, by the first deed, no title had vested in the first purchaser, but because the General Assembly had provided that his neglect to procure his deed to be recorded, should be construed as a fraud upon tiie subsequent bona fide purchaser. At the time when the proceedings in attachment in the case of West v. Fuller were instituted, Fuller could have made a deed which would have secured to the grantee a title, unless that grantee had actual notice of the prior deed of Griswold, because at that time, although more than a year had transpired after the execution of the latter deed, the same was not recorded.

Under the attachment law of 1810, the property attached was to be sold and conveyed by auditors appointed by the Court, and the 13th section of that law prescribes that “ every bargain, sale, assignment and conveyance, made by the said auditors, or any of them, by virtue of the authority herein granted, shall be as’binding, as if the same had been made by said defendant, prior to the service of said attachment,” (1 Ch. St. 612.) Prior to the service of the writ of attachment, Fuller might have made a conveyance, notwithstanding the pri- or deed to Griswold, because said deed had not been recorded, not because said deed had been recorded out of time, but because it had not been recorded at all. And a deed so executed by him, if the grantee had no notice of the prior deed, would have divested Griswold of his estate in the! land, and would have vested an indefeasible interest in the grantee. As such would have been the effect of a deed executed by Fuller himself, the Court conceived that under the attachment law, the same effect must be given to the auditor’s deed then before them, and so decided. Had the deed of Griswold been recorded before the attachment was issued, we have no doubt the decision would have been different. But as it was, the Court supposed the attaching creditor, by the service of his writ, had acquired a right of which he could not be defeated, by the recording of the deed to Griswold.

case of Scribner v. Lockwood, was controlled by the peculiar phraseology of the judgment and execution law, as was the case of Parker v. Miller by the phraseology of the attachment law. In neither of these cases, did the Court undertake to determine the effect of recording á deed after the expiration of the year, or six.months, upon a subsequent purchaser without actual notice. In fact the act of 1820, the act in force at the time of the execution of the deed before the Court in the case of Scribner v. Lockwood, expressly provided that although a deed might not be recorded within the time limited by the act, still it might be recorded afterwards, and from the date of the record should “ be notice to any subsequent purchaser or-purchasers.” (Ch. St. 1139.)

The law of 1805 contains no express provision like the foregoing, nor does it contain any provision that a deed shall be recorded at all, unless it was done within the time limited. But we suppose that the county recorder, under the “ act providing for recording of deeds,” &c., of April 13, 1803, (Chase’s Statutes, 376) was bound to record all deeds properly executed, which might be handed to him for that purpose, regardless of the time when the same were executed. This act was not repealed until 1810. Now we incline to the opinion, that under the law of 1805, when a deed was recorded although not within time, still from the time of its being recorded, it must be held to be notice to subsequent purchasers. The great object of the registry laws is to give notice to subsequent purchasers, and by holding that the recording of a deed out of time would not operate as notice, we should, in a great measure, defeat the end and purposes of those laws. But before the deed to Vansinderin had been recorded, the laws of 1818 and 1820 had been passed ; and under these laws we can have no doubt, that the recording of a deed out of time, was notice. The deed to Vansinderin was recorded on the 6th June, 1820, and by this recording, notice was given to subsequent purchasers.

Rut it is claimed by the plaintiff’s' counsel that the defendant could not obtain any advantage by procuring his deed thus to be recorded, because, at the time it was done, the suit Reed’s Heirs v. The Unknown Heirs of Peter Manifold was depending, and that the rights of all must be determined, as they existed at the time of the commencement of the suit. This doctrine of Us pendens, is ■ well understood.. It is one which sometimes conduces to justice, at others it operates very inequitably. There are cases, however, in which it is not applicable. In the case of Gibler et al. v. Trimble, 14 Ohio. Rep. 323 ; this Court held that those who were interested in the subject matter of cohtroversy, at the time of the commencement of suit in chancery, but were not made parties to the proceeding, were not affected by this doctrine of Us pendens. So in the case of Hopkins v. McLaren, the Supreme Court of error in New York, held “that this doctrine applies only where a third person attempts to intrude into a controversy, by acquiring an interest in the matter in litigation pending the suit; ” 4 Cowen R. 667. At page 679, it is said “any interest acquired, in a subject matter of a suit, pending a suit, is so far considered a nullity, that it cannot avail against a plaintiff’s title. The reason of the rule is, that if a transfer of interest, pending a suit, were to be allowed to affect the proceedings, there would be no end to litigation; for as soon as a new party was brought in, he might transfer to another, and render it necessary to bring that other before the Court; so that a suit might be interminable. But this reason has no application to a third person whose interest subsisted- before the suit was commenced, and who might have been made an original party.”

It seems to me that' these decisions are based upon sound reason. It is a well known principle in equity proceedings, that all persons interested shall be made parties, and further, that a decree rendered in a case shall have no effect except upon parties and privies. If a complainant shall fail to make one who is interested a party, and such individual shall proceed to strengthen his interest, it certainly cannot consist with propriety that the complainant shall complain of this act. He is first in fault. Had he complied with the well known rules of proceeding, the one of whose acts he now complains would have been before the Court, and the rights of all' would have been determined as they existed at the time of the commencement of the suit.

The present case is one well calculated to illustrate the correctness of the principle as settled in this State and in New York, in the cases before cited. In 1809, Vansinderin purchased of Peter Manifold the lands in controversy, and received a deed for the same. He became the rightful owner of the land in fee simple. Nothing in the nature of a title, either legal or equitable, remained in Manifold. But in 1817, Andrew Reed filed a bill in Chancery for the purpose of acquiring the legal title to this land, against Manifold and others, but did not make the individual, in whom that legal title was vested, a party to the suit. During the pendency of that suit, Vansinderin, by causing his deed to be recorded, gives notice to the complainant and to the world, that he has a deep interest in the property in controversy. Still the complainant .did not make him a party, but proceeded and took a decree against those who had no interest in the property, and now claims that the only one interested, shall loose that property because he did not give that notice before the suit was commenced. It seems to the Court that this is hardly consistent with the principles of abstract equity and justice. In truth, Vansinderin not having been made a party to those proceedings, was in no way affected by the decree.

Upon full and careful consideration, we are of opinion that upon the facts disclosed in the bill of exceptions, the title to the land in controversy is vested in the defendant. Did the Court below commit any error in the charge to the jury?

The first instruction requested was, that said Chancery proceedings and decree were sufficient to vest in the heirs of Andrew Reed, named in said proceedings, all the title of said Peter Manifold, deceased, and of his heirs, in the lands described in the declaration.”

This the Court refused to give, but charged the contrary. In the view which we take of the case, having all the facts disclosed in the bill of exceptions, it seems to us that the instructions here requested would have no influence upon the case whether given or withheld. Even if the heirs of Reed had all the title which Manifold possessed at the commencement of the suit in Chancery, they had nothing, for at that time Manifold had nothing. He had'previously parted with all his interest.

The second instruction was, “that the deed from Peter Manifold to Adrian Vansinderin, and its recordation on the 6th day of June, 1820, did not affect the rights of the said heirs of Andrew Reed, arising from said decree, unless at the time of the rendition of said decree, they had actual knowledge of the existence of said deed.” ^

We think the Court did not err in refusing this instruction. As before remarked, by the deed from Manifold to Vansinderin of 1809, the legal title to the premises was vested in the latter, and he had the right to procure that deed to be recorded, and when recorded, the record would operate as constructive notice, not only to the heirs of Reed, but to all the world.

The third instruction required and refused was:

“ That the said deed not having been recorded within one year from the day on which the same was executed, its subsequent recordation did not render it from that time constructive notice to said heirs, and that actual notice to them before the rendition of said decree was necessary to give it any efficacy as to them and those claiming under them.”

This is disposed of by the remarks upon the last previous instruction. The Court did not err in refusing it.

The next instruction requested is:

“ That the title of said heirs derived from said decree, relates back, as shown by the proceedings in said chancery case, to a period earlier than the time of the recording of said deed, and that the recording of the deed after the time to which the said title so relates, could not in any wise affect the title derived to said heirs from said decree.”

Admitting that the title of the heirs of Reed, derived from said decree, if they have acquired any, would have related back to a time earlier than the recording of the deed, of which there may be great doubt, the great difficulty is, they acquired no title. The only person in whom the title was vested was not a party to their suit — hence by proceedings against others his rights are not affected.

The next instruction requested was:

That the notice given to the unknown heirs of Peter Manifold in said Chancery case, as this fact appears by the decree, files and proofs in said case, was sufficient to give the Court rendering said decree jurisdiction as to said heirs, and that the decree so rendered was valid and effectual, as respects the said Peter Manifold and his heirs, and that the said decree so rendered cannot be collaterally impeached or questioned in this suit.”

This is rather in the nature of an abstract proposition, and one upon which it was not necessary for the Court of Common Pleas to pass, nor is it one which we are disposed to determine until it becomes necessary. At the time these proceedings were had, there was no statute in the State authorizing such proceedings against unknown heirs. If such a practice was universally adopted, it would be a strong reason why it should be sustained, although it might not be a conclusive one. Whether such practice did or did not prevail, we are not informed, except from the arguments in this case. It is certainly a practice which has done no particular injury in this case, whatever it may have done in others. The principle that a decree rendered in a case where the Court has jurisdiction, cannot be collaterally impeached, is recognized.. But we also recognize another principle, that none but parties or privies are affected by a decree.

So far as the publication of notice is concerned, the fact being found in the decree that such publication was made, it cannot now be controverted. '

The counsel for plaintiff further requested the Court to instruct the jury:

“ That the deed from said Peter Manifold, executed on the 14th day of June, 1809, not having been recorded until the 6th day of June, 1820, cannot, without proof of actual notice to the said heirs or their ancestor, prevail against the equity of the said Andrew Reed, which commenced prior to the execution of said deed, and was consummated into a legal title by said decree.”

This was refused, and we think rightfully. The deed from Manifold to Vansinderin, must prevail against any prior equity of the plaintiff or those under whom he claims, unless proof is adduced to show, that this prior equity was known to Vansinderin, when that deed was executed. The equities, if those under whom the plaintiffs claim had any equity, are equal, and we suppose in such case, he who has the legal title coupled with his equity, must prevail. For reasons already stated, the assumption that Reed’s equity by the decree was consummated into a legal title, is not well founded. At the time that decree was rendered, the legal title was in another person, not a party to the suit. And this legal title was not acquired by that person during the pendency of the suit, but previous to its commencement. All that was done with respect to it during the pendency of the suit, was to give notice to the world of its existence.

In the opinion of this Court, the Court of Common Pleas did not err in any or all the rulings complained of, and the judgment of that Court is affirmed.


source: Caselaw Access Project

author: Hitchcock, J.

license: Public Domain

text:
    Henry S. Mayo vs. Micajah T. Williams’ Adm’r.
    An action upon an appeal bond may be maintained by the appellee, when it is ascertained by the return of an execution, that the judgment debtor has not property sufficient to pay and satisfy the original judgment.
    If the declaration upon an appeal bond show that the original judgment is not paid, or Satisfied, the declaration will be held sufficient on general demurrer, though it be not averred in explicit terms that the defendant did not pay the same.
    This is a Writ op Error, directed to the Court of Common Pleas of Miami County.
    The judgment sought to be reversed, was rendered in that Court upon an action of debt, prosecuted by the defendant in error against the plaintiff in error, upon an appeal bond. The bond was signed by Mayo, and Charles T. Bossen. Process was issued against the two, but was returned not found as to Bossen. This bond was in the penal sum of $6,660, conditioned, “ that whereas the said Charles T. Bossen, and William Bossen, have taken an appeal from a certain judgment, rendered against them, in favor of Micajah T. Williams, in the Court of Common Pleas within and for'the county of Miami, in the State of Ohio, at the April Term thereof, 1841, for the sum of three thousand three hundred and fifteen dollars and fifty cents, damages and costs, to the Supreme Court within and for said county,— now if the said Charles T. Bossen, and William Bossen, shall pay the full amount of the condemnation in the said Supreme Court, and costs, in case judgment shall be entered against them, in favor of the appellee, then the obligation to be void, otherwise in full force and virtue in law.”
    In the declaration, the recovery of the judgment in the Court of Common Pleas, and thé taking of the appeal to the Supreme Court, are set forth, and the giving of the appeal bond, with its recital and conditions. Also, the recovery in the Supreme Court, at the June Term, 1841, of a judgment against Charles T. and William Bossen, for three thousand three hundred and thirty-seven dollars and fifty cents damages, and forty-four dollars and fifty cents costs of suit. It is further averred, this judgment was remanded to the Court of Common Pleas, for execution; that an execution was issued, dated October 20, 1842, and returned on the first day of the November Term, of the same-year, indorsed “no goods or chattels; ” levied on 33 acres of land, and certain town lots in Troy, “ not advertised for want of time; ” that a vendi was issued, with a command under the statute, that if the levy was insufficient, to levy again, and returned, “ no goods,” &c.; and levied, in addition, upon another town lot in Troy, “ being all of the defendant’s property, found in Miami county,” “property offered, not sold,” &c. This execution was dated 26th April, 1843. December 26th, 1843, another vendi was issued; returned March 1st, 1844, “ sold all the lands, made $645 12,” “ no further goods or lands.” This sale was confirmed as to all the town lots, and set aside as to the thirty-three acres of land. On the 7th of May, 1844, another vendi was issued, to sell said thirty-three acres of land, and containing a command, if insufficient to pay, &c., to take goods and chattels, and more land, and to re-appraise. This execution was returned that the land had been appraised at twenty-five dollars per acre, amount $750, “no more goods or chattels, lands or tenements, whereon to levy, property unsold.” The declaration- then proceeds, “ whereby it appears that the said Charles T. and W. Bossen, had not goods and chattels, lands and tenements, sufficient to satisfy said execution; and the plaintiff further avers, that a large amount of increase costs, to wit, four hundred dollars, have accrued upon said judgment of the Supreme Court, and neither the said defendant, nor the said Charles T. Bossen, has paid either to the plaintiff’s intestate, in his life time, or to the plaintiff, his administrator, since his death, the said condemnation money of said Supreme Court, and costs, or any part, or either of them, but the same remain due, and unpaid; whereby an action hath accrued to the plaintiff, to demand and have of the defendant, the said $6,660, above mentioned, yet the defenc[ant not, nor hath the said Charles T. Bossen, paid the ’ _ . . . r . or any part thereof, either to the plaintiff’s intestate, in his life time, nor to the plaintiff, his administrator, since his death, but the same remains due, and unpaid,- to the damage,” ,&c.
    To this declaration, there was a general demurrer. The demurrer was overruled, after which the plea of the general issue was interposed, and the case submitted to the Court. This issue was found in favor of the defendant in error, and a judgment rendered for the penalty of the bond, to be discharged upon the payment of $4,018 51, the amount due upon the original judgment, and costs.
    The errors assigned are —
    1. That the declaration is not sufficient in law to maintain said action.
    2. That the Court' below erred in overruling the demurrer to the declaration.
    3. That judgment was given for the plaintiff below, when it should have been given for the defendant.

      Crane Davies, for Plaintiff in Error.

      P. Odlin, for Defendant.
   Hitchcock, J.

Two exceptions are taken to the declaration in this case. The first is, that there is no sufficient breach of the condition of the bond assigned; and the second is, that it appears from the declaration itself, that at the time of the institution of the suit, there was a levy upon the lands of the original judgment debtors, undisposed of. The condition of the land is, that “ the said Charles T. and William Bossen shall pay the full amount of condemnation money, in said Supreme Court, and costs, in case judgment shall be entered therein in favor of the appellee,” &c. The averment in the declaration is, “ that neither the defendants,” that is, the . said Henry S. Mayo and the said Charles T. Bossen, “ hath paid,” &c., “ the said condemnation of the said Supreme Court, and costs, . any part, or either of them, but the same remain due and paid”

It is insisted that this averment is not sufficient, but it should have been averred, that neither the said Charles T. and William Bossen, nor either of them had paid, &c. And that it does not follow, because neither the defendant, nor Charles T. Bossen had paid said judgment, but that William Bossen may have paid. This exception would have been well taken but for the concluding part of the averment, where it is said in reference to this judgment “ the same remains due and unpaid.” It would probably have been more technically correct, to have assigned the breach as suggested by the counsel for the plaintiff in error, but we think, that as it is, it is sufficiently assigned. It is admitted that it would have been sufficient after verdict. It seems to the Court that it is sufficient upon general demurrer.

The declaration shows, that at the time of the institution of the suit, there was a levy upon the land, made under execution upon the original judgment, and it is claimed that the defendant in error could have no right of action until this land was disposed of. This presents the question whether an action can be sustained upon an appeal bond before the property of the judgment debtor is exhausted. In the case of Cass v. Adams et al., 3 Ohio Rep. 223, which was an action upon an appeal bond, to which the defendant had pleaded that an execution had been issued upon the original judgment, and levied upon a large amount of personal property, which remained undisposed of, this Court held the plea to be sufficient. The Court say, “ the arrest of a judgment upon a ca. sa. is a satisfaction, though no money be paid. So is the levy of an execution upon goods or land, whilst the levy is in force, and undisposed of.” But in the case of Reynolds v. Rogers, 6 Ohio Rep. 169, the Court decided that although the decision in the case of Cass v. Adams et al. was in accordance with the law, as applicable to the pleadings in that case, still that the declaration of the Court, as to e^ect a levy upon land, undisposed of, was not supporby authority. As was said by the Court ih the case of Reynolds v. Rogers, there is a great difference between a levy upon goods and a levy upon land. The goods are taken from the possession of the owner by the levy, but the owner of the land remains in possession after the levy, and cannot be dispossessed until after the land is sold. By the 27th section of the act regulating judgments and executions, (Swan’s stat. 482) it'is provided “ that in all cases where judgments shall be rendered in-the Supreme Court against an appellant, or an injunction dissolved in the Court of Common Pleas or Supreme Court, the successful party shall, before he brings suit upon the injunction or appeal bond, issue an execution against the principal debtor; and if by the return of the execution, it shall appear that the principal debtor has not goods and chattels, lands and tenements sufficient to satisfy the same, the successful party may then commence suit upon the appeal or injunction bond, and take judgment for the penalty thereof; which judgment shall be discharged by the payment of the original judgment or decree, with interest and costs, together with thfe costs of. suit on the appeal or injunction bond.”

But for the above recited-section of the statute, the appellee might have had his action against the appeal bail, upon the rendition of the judgment in the Supreme Court, unless the same was forthwith paid: By legislative provision, however, he is delayed until an execution shall have been issued against the judgment debtoi or debtors. An effort must first be made to collect the debt of the principal. But the statute does not require that the appellee shall be delayed in his proceeding upon the bond until the property of the principal shall be exhausted. He is authorized to proceed if by the return of the execution it shall appear that the principal debtor has not goods and chattels, lands and tenements, sufficient to satiéfy the same.” And there is nothing improper or unjust in this. The creditor has been delayed in the collection of his judgment in the Court of Common Pleas by the appeal. As a condition for this delay, the obligors in the appeal bond have undertaken that the judgment of the appellate Court shall be paid. soon as the fact is ascertained that the judgment debtor cannot make payment, it would seem to follow that the creditor shall have the right of proceeding upon his security.

In the case now before us, the declaration shows that there was a balance of more than four thousand dollars due upon the judgment of Williams against Charles T. and William Bossen , and that the value of the entire property of the Bossens was less than one thousand dollars, as shown by the return of the execution issued against them. If by the return of an execution in any case, it would be made to appear that the principal debtor, has not property “ sufficient” to satisfy the judgment, it is so made to appear in the present case. It is supposed that in a case like the present, there may be difficulty in ascertaining the amount for which judgment is to be rendered, but it is not so. The statute provides that judgment may be taken, as it was in this case, for the penalty of the bond, to be discharged “ by the payment of the original judgment” &c. The satisfaction of one judgment, is satisfaction of the other, and the same rule would apply to a partial satisfaction. It is in effect like the case where a creditor has separate judgments against separate individuals for the same cause of action. The satisfaction of one is the satisfaction of all so far as damages are concerned, as in the case of the holder of a promissory note or bill of exchange, having separate judgments against the maker or drawer and indorsers.

We are of opinion that in the record, proceedings and judgment of the Court of Common Pleas there is nothing erroneous. The judgment of that Court is therefore affirmed.


author: Avery, J.

text:
    William B. Foster vs. Henry Wick’s Lessee.
    By the following clause in a will, “The farm and town property rented to T. L. W.» deceased, 1 will to the three children of T. L. W.} providing they live to legal age,” the devisees acquire a vested right immediately on the death of the testator, subject only to be divested in the event of death before they arrive at legal age, where such a construction harmonizes with the other provisions of the will.
    This is a Writ of Error, directed to the Court of Common Pleas of Mahoning County.
    The action below was Ejectment. The plaintiff counted upon two demises; one from the executors and trustees of Henry Wick, deceased, and the other from six of the sons of the deceased, three of whom are the afor'esaid executors. On the trial of the cause, at the April term, 1847, of the Common Pleas of Mahoning County, a bill of exceptions was tendered and allowed, as follows
    This cause coming up for trial to the jury, the defendant by his counsel, by motion in writing, asked the Court to put the plaintiff to his election of the two separate demises laid in the declaration, for the reasons set forth in said writing, but the Court refused so to do, until the testimony should be given.
    The plaintiff then offered in- evidence the will of Henry Wick, deceased, (it being admitted by both parties that the title was in Henry at his decease, and both parties claimed title under him) which said will is as follows :

      “I, Henry Wick, of Youngstown, Trumbull county, and State of Ohio, do hereby constitute and appoint, my sons Henry Wick jr., Hugh B. Wick and John I). Wick, my executors to settle my estate, and I do will and bequeath to my wife Hannah, at my death, one hundred dollars, and in lieu of her dower, five hundred dollars, as soon as she approves of this my will; and five hundred each and every year during her natural life; also the use of my present dwelling house in Youngstown, and the three lots adjoining and near the same, not otherwise disposed of, also the land near the village of Youngstown that now occupy for meadow, pasture not otherwise disposed of; all my household and kitchen furniture she may want for keeping house so long as she continues my widow, but at her death or marriage my executors will take possession of said property and dispose of it as hereafter directed; but if she chooses to get her dower as the law directs, so far as it respects her to be void, and the balance of my will to be complied with, as near as may be; and I will and bequeath to each of my children now living what land and town property I have rented to them, as their property forever, and the property rented to Thomas L. Bane, I will to his wife Matilda Bane; and the farm and town property rented to Thomas L. Wick, deceased^ I will to the three children of Thomas L. Wick, providing they live to legal age. Also each of my children is ,to pay thirty dollars each and every year for the support, and education of said children, all to be under the control and direction of my executors, and is to be in full for their support and education, without any further charge against said children, and when said children arrives of age, or when my executors may think most to the advantage of said children, they may give each of them one thousand dollars which I will to them providing they live to legal age, but when paid, the thirty dollars to be paid by my children to stop, and if said children all dies before they arrive at legal age, this will as respects them to be void, as I wish none but my blood-kind to enjoy my property; and I direct my executors to retain in my possession all my bank and canal stock, and the land and town property, the use of which my wife has the use of, or as much as will be all-sufficient to pay all my debts, legacies and donations, and the balance to be divided equally among my children then living, and my farming utensils, live stock, and what my wife don’t keep, to be sold at vendue; and if there should not be property of canal and bank stock to pay all claims, I wish my executors to retain in their hands as much of other debts due me as will pay all. Also, I allow my executors to sell a house and lot at the mouth of mill creek and a lot in Vernon, as they may think best; and I wish all disputes that may arise with my children to be decided by a majority of them, and that decision to be binding on all, providing it don’t make void any of my before mentioned will. I would recommend to my children honesty, industry and piety, and avoid all species of gambling; and now farewell my kind and loving wife, my children and the blest, that I may meet you in the Heavens, where I do hope to rest.”
    Which will was dated June 16,1843.
    The plaintiff then offered in evidence a paper, of which the following is a copy:
    “ Articles of agreement made and entered into by and between Henry Wick of one part, and T. L. Wick of the other part witnesseth, that the said Henry hath agreed to rent or let unto the said T. L. W. the King farm, and the said T. L. W. agrees to take said land and pay the said Henry twelve dollars and fifty cents per year on the first day of October, in each and every year so long as he occupies said land, and the said Henry reserves all coal, timber and fruit he may want for his own use and what hay and grain is now on the farm, and the privilege of taking said rented land in his own possession whenever he may choose, at which time all rents are to stop. Witness our hands this first day of December, 1837.
    Henry Wick,
    T. L. Wick,”
    It was admitted on the trial that the children of Thomas L. Wick deceased, are yet minors.
    The plaintiff offered to give in evidence writings showing that each of the children of Henry Wick had, before the making of the will, bound themselves to pay $30 a year each, to the children of Thomas L. Wick, deceased, and that this was the same $30 per year mentioned in the will, and claimed that the will referred to these writings. The defendant objected, and the Court sustained the objection to the introduction said papers, because the will did not refer to them, and they were not proper to explain the will. The plaintiff resting, the defendant insisted upon having his motion sustained, requiring the plaintiff to make his election of demises; but the Court refused to sustain said motion and put the plaintiff to his election of the separate demises laid in the declaration, and were of opinion that the said demises were not so inconsistent as to put the plaintiff upon his election, but were properly laid, and overruled said motion.
    The defendant then claimed and proved that he was in possession under the guardian of the children of Thomas L. Wick, deceased, for their benefit, and it was admitted by the plaintiff that he was in possession under the guardian and rightfully in possession, unless the will gave the right of possession to the lessors of the plaintiff. It was admitted that the lessors named in the second demise in the plaintiff’s declaration, were children of Henry Wick, deceased, and all the children now alive.
    The defendant then offered to give in evidence the following letter of Henry Wick, deceased, to wit:
    “ Youngstown, March 29th, 1843.
    Henrietta: I have just received yours and am happy to hear of the welfare of yourself, children and friends. As respects your living where you are, or coming to Youngstown you can suit your own convenience, but I think it would be well to rent the house and farm that I calculate for Thomas’ children, and I have made arrangements for each of my children to pay $30 a year with the rents of the other property for the support and education of Thomas’ children. The thirty dollars a year from each of them will amount to $210, besides the rent, which is to be in full without any charge on the children, as I expect to give the children more when I think it is the proper time. If you think to stay where you are, you had better come or get your father to come and rent the property as you may think best, as I am not able to attend to it, as my very poor. A swelling on one of my feet preme from walking. In haste yours respectfully,
    Henry Wick.”
    (Indorsed) “Mrs. Henrietta Wicic, Alleghenytown, Allegheny county, care of Wm. B. Foster.”
    And offered to prove in connection with this letter that during the life time of Henry, deceased, Wm. B. Foster, the defendant, and father of Mrs. Henrietta Wick, the widow of Thomas L. Wick and mother of said children of Thomas, rented and controlled said King farm and the rents and profits thereof for the benefit of said children, and that he the guardian of said children has ever since controlled and rented said King farm, for the use and benefit of said children. The object of offering said letter and testimony in connection therewith, was to show the conduct of Henry Wick, deceased, shortly previous to the making of his will and unto and at the time of making his will, in order to explain the facts existing out side of the will, and to which the will referred, and to explain the will and show the intention of the testator, when applying the terms of the will to the facts existing out side of it. But the Court were of opinion that there was no latent ambiguity in the will, or any such ambiguity as could be explained by the letter and testimony, and rejected said letter and testimony.
    The defendant then rested.
    The plaintiff claimed by virtue of said will,
    1. That the children of Henry Wick, deceased, named in the second demise in the declaration, were entitled to the possession of the King farm, as the residuary legatees and devisees under said will, and that said children by Thomas L. Wick, were not by said will entitled to said farm until they should arrive at age.

      2. ■ That if the said children were entitled to said farm before they should arrive at age, that then the executors named in said will, and in the first demise, were entitled to the possession of said King farm as executors and trustees tinder said Will. ■
    The defendant claimed the contrary of these two
    But the Court charged the jury that the children of Thomas L. Wick were not entitled to the possession of said farm till they should arrive at age. That no estate vested in them, or could vest in them, till they should arrive at age, but that on the death of the testator the right of possession vested in the heirs of Henry Wick, subject to be divested by said children arriving at age, and directed the- jury to return a verdict for plaintiff. To which several opinions and decisions of the'Court, rejecting of testimony and charge to the jury, the counsel for the defendant excepted during the trial, and now in open Court tenders this his bill of exceptions, and prays that the same may be signed and sealed and made part of the record in said cause, and the same is here done accordingly in open Court.
    The jury found a verdict for the plaintiff, upon which judgment was rendered, to reverse which this writ is prosecuted.
    The following is the assignment of errors:
    1. The Court of Common Pleas erred in rejecting the letter of Henry Wick.
    2. The Court erred in charging the jury that by the will of Henry Wick, the children of Henry L. Wick were not entitled to the land claimed, till they should arrive at age.
    3. The Court erred in charging that said estate was one upon condition that the.y arrive at age, and that no present right of use and occupancy vested in them.
    4. The Court erred in charging that the children of Henry Wick now living, are entitled to said land, and to the possession, and that the legal estate is vested in them until the children come of age.
    5. The Court erred in not putting the plaintiff below to make his election of demises, and in not deciding that the demises were inconsistent with each other.
    6. The Court erred in charging the jury that on the death of the testator the right of possession vested in the heirs of Henry Wick, subject to be divested by said children arriving at ’age.
    7. The Court erred in directing the jury to return a verdict for the plaintiff.
    8. The Court erred in giving judgment against the plaintiff.
    9. The Court erred in rejecting the testimony offered in connection with said letter of said Henry Wick, to show the circumstances which existed at the time of the execution of the will, and thus get at the intention of the party, and explain a latent ambiguity in the will; and in deciding that there was no latent ambiguity in the will.

      Tod, Hoffman if Hutchins, for Plaintiff in Error.
    JR. jP. Ranney and JR. W. Tayler, for Defendant.
   Avery, J.

The defendant in the original action is in possession of the premises in dispute, under the grand children of Henry Wick, deceased. Their claim to these premises is denied by the lessors of the plaintiff, who assert that the legal title and the right of possession belong either to the executors of said Henry, or to his children, devisees in his will. Which of the parties has the right, and should therefore, ultimately succeed in the action, depends upon the construction to be given to this will.

The second, third, fourth and sixth of the errors assigned, all relate to this right and construction; presenting the important question, and indeed, from the result to which the Court has been conducted, the only question of any consequence in the case; for the decision by the Court below, upon any one or all of the other points arising under the assignment, whether correct or erroneous, would not affect the judgment now to be rendered.

The will begins with the appointment of three of the testator’s sons, to be his executors. Next it makes provision for giving her certain sums of money, the use of some real estate and furniture, and $500 to be paid her yearly. After closing the arrangement respecting his widow, the testator proceeds as follows: “I will and bequeath to each of my children, now living, what land and town property I have rented to them, as their property forever; and the property rented to Thomas L. Bane, I will to his wife Matilda Bane.”.

By this provision, the testator gives to each of his children, then living, as their property forever, all the land and town property which he had before rented to them; thus converting at once, in -each case, the leasehold into a fee simple estate. He then proceeds with respect to lands similarly situated, and in the same sentence, gives the farm and town property rented to Thomas L. Wick, deceased, to the three children of Thomas L. Wick.

So far, he shows an intention to treat the children of Thomas, in regard to the land rented to their father, just as he had treated his own children; devising to them the same land which had been rented to their father, and intending it to be theirs, as an estate in fee simple, should they live to enjoy it.

Upon the trial in the Common Pleas, there was offered in evidence by the plaintiffs, a lease from Henry Wick to T. L. Wick. It does not appear by the bill of exceptions that this lease was rejected by the Court, and there seems no valid reason for excluding it. It is therefore regarded, by us, as competent evidence in the issue between these parties. The premises for which the present action is brought, are described in the declaration as a part of lot number 29, containing 76 acres, more or less, and known as the “ King farm.” It was the “ King farm ” which Henry Wick, in the.lease above mentioned, rented to T. L. Wick. The land then in controversy, the “King farm ” of the lease, is “ the farm rented,” in the language of the will, to Thomas L. Wick, deceased.

There are peculiar features in this lease, such as would not be likely to appear in a contract between strangers, but well suited to the relations of mutual confidence between father and son.

The farm is leased to the son at a trifling rent, $12 50, payable yearly, so long as occupied. That this is but an inconsiderable rent, seems apparent enough from the language of the lease itself, in reference to the farm and its products. Then, on the other hand, the son is content to hold possession at the mere will of the father. The father reserves in the lease, all the coal and' timber which he may want for his own use, the hay and grain on the farm at the time it was rented, (December 1st, 1837,) and the privilege of taking the rented land in his own possession, whenever he may choose. Of this land, the children of Thomas L. Wick are still in possession, or rather the defendant, who is holding under them.

Wben it is discovered that all the lands rented by Henry Wick to his other children, and by his will devised to them respectively, in fee, and this land rented to T. L. Wick, and found in the possession of his children, is devised by the will to the same children, and so devised as at all events to be owned by them in fee simple, if they should live to.enjoy it, we find no difficulty in considering these children as special objects of the testator’s bounty, like his other children, and entitled to be so regarded in the construction of his will. And the inference is deemed not unreasonable, that with respect to the land which had been rented, he intended to deal alike with his children that were living, and the children of one who was deceased. ■ These children were of his blood,-and it was therefore with no design to withhold from them, that he said he. wished none but the kindred of his blood to enjoy his property.

Here it may be remarked that a phrase occurs in the will, and directly following that which speaks of the support and education of the children, which is in these words, “ without any further charge against said children.” Now from anything appearing throughout the will, it is difficult to perceive the application or object of that phrase. But supposing the testator, when drawing this part of the will, to have had in his contemplation the lease before referred to, wherein a small annual rent is charged on the land, then the application is not so difficult. He would naturally enpugh use the expression “ without further charge against said children,” in order to relieve them from the annual payment, if it was his understanding, that the income of the land would continue to go for their benefit. ■

Further, the testator charges in his will a small sum upon his children, to be given to these children of T. L. Wick, for their support and education. In his lifetime, he allowed the proceeds of the farm to be applied towards the support of T. L. Wick’s family. He provided that after his death the farm should go to the children, and it would seem to be reasonable, that he should design the annual proceeds to be applied towards the support of the children, rather than be converted into' money, and put into a general fund, to be afterwards distributed amongst the heirs ; and this presumption derives strength from the fact, that when the disposition of this land is distinctly in the mind of the testator, and he is intending to make a conveyance of it in fee, he does not make any other, or any arrangement in express words, for its present occupancy and use.

It is true, that by the terms of the will in reference to these children, “providing they live to legal age,” it might under other circumstances be plausibly argued, that no present interest was intended to pass. But the force of this argument is greatly awakened if not destroyed by the considerations above noticed; and further, by the testator’s use, a few lines further on, of the same expression, “ providing they live to legal age,” when it could hardly have been understood by him, as excluding the children until of age, from the benefit of the provision in their behalf. The provision is, “ and when said children arrives of age, or when my executors may think most for the advantage of said children, they (the executors) may give each of them one thousand dollars, which I will to them, providing they live to legal,age.” He thus authorizes a gift of $ 1,000 to each of them, when they arrive of age, or when the executors may think most to the advantage of the children; that is at the discretion of the executors, without reference to the age of the children, and consulting, in the exercise of this authority, the benefit of the children alone. Then follows the expression, “ which 1 will to them providing they live to legal age.” By this, he could not have designed to restrain the executors discretion till a period after the children were of age. Upon the payment of the $1,000 to each, the annual payment of the $30, directed in the will to be made for the support and education of the children, was to stop. This could have been intended barely as a provision for support and education during the minority of the children, and not as an annuity for an indefinite period after arriving at full age, or for life.

The will under consideration is very inartificially drawn, and certainly the question presented to us is not without its difficulties. But viewing the will in its various provisions, and in connection with the facts legitimately in evidence, and guided by the governing principle in the construction of a will, the intention of the testator, we have all come to the conclusion, that the legal title to this land is at present vested in the children of Thomas L. Wick, subject only to be divested, upon their death, before coming to what is termed in the will their legal age.

This question settled, and as before remarked, there is nothing left of all the errors assigned, that can have any importance in the case. We reverse the judgment of the Common Pleas, as to the single principle involved in the assignments first noticed, but not as to any of the rest.


text:
    James Frazer vs. John Fulcher.
    A man sentenced to imprisonment for life in the Penitentiary, in punishment for crime, is not civilly dead, and letters of administration cannot be granted on his estate.
    This is a Writ of Certiorari, directed to the Court of Common Pleas of Washington County.
    The writ is prosecuted to reverse an order of the Court of Common Pleas of Washington county, made at the September Term of said Court, 1847, and which order is as follows: “ On motion of John Fulcher he is appointed administrator on the estate of James Frazer, late of Warren township, now in penitentiary of this State, under a sentence for life. Ordered, that a letter of administration issue to said John Fulcher on his giving bond in the penalty of twelve hundred dollars, with Harlow Chapin and Levi Barber as sureties, conditioned as the law directs; and that Col. David Barber, Samuel Buzzard, and John C. McCoy, do appraise the personal property of said James Frazer.”
    It is assigned for error upon this order, “ that the Court had no authority by the law of the land to grant letters of administration on the estate of James Frazer, to the said John Fulcher, he the said James Frazer being an inhabitant of the State of Ohio, not deceased.”

      Goddard &f Whittlesey, for Plaintiff in Certiorari.

      Darwin E. Gardner, for Defendant.
   Hitchcock, J.

It will be seen by the record in this case, that the order of the Court of Common Pleas is in the common form of the appointment of an administrator upon the estate of a deceased person, and if it be a case within the proper jurisdiction of that Court, as a Court of probate, we cannot review it upon writ of certiorari. The Constitution, in the 5th section of the third article, is as follows: “ The Court of Common Pleas, in each county, shall have jurisdiction of all probate and testamentary matters, granting administration, the appointment of guardians, and such other cases as shall be prescribed by law.” By the construction which has been given to this clause of the constitution, it has been uniformly held, that no appeal could be taken from the Court of Common Pleas, in any matter merely of a probate nature, nor could any such matter be reviewed in this Court by writ of error or certiorari; 6 Ohio Hep. 148. But in a proceeding by administrators to subject the lands of an intestate to sale for the payment of debts, the case is so far of an adversary character that it may be reviewed on certiorari.

Although matters of a probate and' testamentary character are by the constitution confined to the Courts of Common Pleas, still it was necessary for the General Assembly to prescribe the manner in which this trust should be performed, and this has been done. The first section of the “ act to provide for the settlement of the estates of deceased persons,” provides “ that upon the decease of any inhabitant of this State, letters testamentary, or letters of administration on his estate, shall be granted by the Court of Common Pleas of the county in which the deceased was an inhabitant or resident at the time of his death” &c. If at the time this letter of administration was granted, James Frazer was dead, and if he “deceased,” in Washington county, then the order of the Court of Common Pleas was correct, and had it been incorrect, this Court could not interfere with it by certiorari, because the matter would have been within the exclusive jurisdiction of the Court of Common Pleas.

But the order itself shows that James Frazer is not dead. It is not on this account that the administrator was appointed. Or if dead, it is not because he has ceased to live, but because he is confined in the penitentiary, and has been sentenced to remain there during life. If there is any thing in the legislation of the State which would authorize the appointment of an administrator upon the estate of a person in this situation, we have not been able to find it, nor has it been pointed out to us. But it is said that by the rules of the common law, there is such a thing as a civil death, as well as a natural death. We know that in England, there are cases in which a man, although in full life, is said to be civilly dead, but I have not learned, until this case was brought before us, that there was but one kind of death known to our laws; In New York, they have a statute which provides that where a man is, for the punishment of crime, sentenced to imprisonment in the penitentiary for life, he shall be considered as civilly dead, to all intents and purposesin law. In the case of Troup v. Wood, 4 Johns. C. R. 247, Chancellor Kent says that he apprehends that this law which was passed March 1799, was only declaratory of the law. This opinion is based upon the pre-existing statutes of the State, and upon the common law of England, which by statute was a part of the law of New York. In the subsequent case of Platner v. Sherwood and others, 6 J. C. R. 118, the Chancellor says he was mistaken, in the opinion expressed in the case first cited, that the act of 1799 was only declaratory of the existing law. And in the latter case he decides that although a man might be sentenced to imprisonment for life in punishment for a crime, still he would not be held to be civilly dead, unless the crime was committed after the law of 1799 took effect. If then we rely upon the authority of Chancellor Kent, there is no principle of the common law by which a man in the situation of Frazer would be held to be civilly dead. it were otherwise, it would make no difference in this State, for it is perfectly manifest, that the General Assembly, in the section of the administration law heretofore quoted, had reference to no other than natural death.

It may be that there is a defect in our laws upon this subject, and that sound policy would dictate that some provision should be made for the management or distribution of the property of a person in the situation of Frazer. It has been suggested, however, that for the Legislature to enact that the estate of a person in such situation should be disposed of, as if he were dead, would be a violation of that clause of the constitution which declares that “ no conviction shall work corruption of blood or forfeiture of estate.” Whether it would be so or not, depends upon the meaning which we attach to the word “forfeiture,” as used in this connection. To me it seems clear that the intention of the Convention in the introduction of this clause, was to guard against evils existing in the country from which many of our laws are derived. In England the conviction of many offences, works corruption of blood and forfeiture of estate.” The forfeiture is to the King. The blood is corrupted. The attainted person can neither inherit from his ancestors, nor can transm*t inheritance. His property is not given to his heirs, but by the forfeiture is taken from them. The effects of the crime of the father are thus visited upon his children. It was against such a state of things, that the Convention intended to provide.

Whether any additional enactments are necessary and proper it is not for us to decide, and what is above said is perhaps entirely out of the case. The question for us to determine is, whether the order of the Court of Common Pleas shows a state of case where it was proper to appoint an administrator, and we are unanimous in the opinion that it was not. On the contrary, it shows a state of case where such an appointment was entirely unauthorized. The same is therefore reversed.


text:
    Isaac Miller, Administrator de bonis non of Thomas B. C. Collard vs. Thomas Donaldson and others.
    A mortgagee, by making his debtor his Executor, does not thereby extinguish the mortgage.
    An administrator de bonis non, with the will annexed, may institute proceedings in Chancery to foreclose the mortgage, making other mortgagees as well as the mortgagor, defendants in the suit.
    This is a Bill of Review, reserved in the County of Clermont.
    From the Bill of Review the following facts appear:
    On the 21st of May, 1839, Abel Towner and wife executed a mortgage upon certain real estate in Clermont county, to Thomas B. C. Collard, to secure a debt of $1,100.
    In 1840, January the 14th, Collard made his will, appointing Towner his Executor.

      At the May Term, 1840, of the Common Pleas of that county, the will was admitted probate, and Towner gave bail executor.
    On the 20th of May, 1842, Towner and wife executed another mortgage on the premises to Thomas Donaldson, Emanuel Grubb and Geoge McMurchy to secure the payment of $550.
    In 1845, and at the October Term of the Common Pleas of that county, the Court removed Towner and appointed the complainant Mitchell, administrator de bonis non of Collard’s estate.
    The aforesaid Donaldson, Grubb and McMurchy instituted proceedings to foreclose their mortgage, seeking to sell the land without allowing the mortgage to CoIIard as a subsisting incumbrance. To these proceedings Mitchell, the administrator, became a party defendant, and on the final hearing, a decree was pronounced by the Court against the claim set up by Collard’s Administrator.
    This bill of review is brought to reverse that, decree.

      John Jalliffe, for Complainant in Review.

      J. A. Penn, for Defendants.
   Avery, J.

The question presented for our consideration is, whether the mortgage to CoIIard is by the operation of law extinguished, by reason of Towner becoming Collard’s executor.

If the question is to be answered in the affirmative, then a principle is established, by which the sureties of an executor may be forced themselves to pay the debt which the executor owed to the testator; and though the testator had provided ample security for the payment of the debt by a mortgage of land, yet the sureties are not allowed to save themselves from loss, or to derive any benefit from the property expressly pledged for the payment of the debt.

But not only the bail of the executors are thus exposed to suffer loss, but from the heirs also, and creditors of the estate is taken an important'security, which the prudence of the testator had provided. This is taken from them against their consent, when perhaps it is the only valuable security they have, a security which is durable in its character, and not uncertain as that often turns out to be, which is given by an executor to the Court. But a result of this doctrine may be, that the mortgage will at times be extinguished for the sole benefit of a stranger, who has paid no consideration for it whatever. Other evils also and injurious effects may be supposed, as likely enough to be produced, by cancelling the mortgage in such a manner; while if it can be continued and preserved in force until the debt is actually paid by the mortgagor, it will be in strict accordance with the original • design of the parties, and will operate to produce no injustice towards them, or any other person having either legal or equitable claim upon the land.

But it is said that the debt is extinguished, and that the mortgage, therefore, which was given only to secure payment of the debt, must of necessity be also extinguished.

By the case of Bigelow v. Bigelow, 4 Ohio Rep. 138, it is decided that an action at law cannot be sustained upon the obligation, and by the appointment of the debtor to be the administrator of his creditor, the debt becomes assets in the hands of the administrator.

But this is not a payment, in fact, of the debt. The administrator cannot sue himself, yet the debt is justly due from him to the estate. He is bound to collect, or endeavor to collect, all the debts; and as he cannot bring a suit for this, he is treated as having the money already in his hands. In this respect, a fiction is employed to accomplish a useful result, under that decision of the' Court. But a fiction will never be allowed to work injustice, when it may be avoided. Nor does it follow, because an action at law will not lie for the debt, that proceedings in chancery cannot be maintained to subject the land according to the terms of the mortgage. A remedy upon the mortgage exists, independent of the right to sue at law.

This same distinction is observed by the Courts of Massachusetts. There it is held that the debt of an executor is assets in his hands, because the executor cannot sue himself; 12 Mass. Rep. 199. And they hold that the mortgage given to the debt, is not extinguished upon the mortgagor’s becoming executor of the mortgagee.

We consider that there is no principle which requires us to treat the mortgage, in the present case, as destroyed, when Towner became the executor of Collard; and, therefore, we declare it to be still a subsisting incumbrance upon the land, and Mitchell, the administrator de .bonis non, to be entitled to proceed upon the mortgage against Towner, the removed executor, and against the other and subsequent mortgagees.

As the decree of the Common Pleas did not recognize such a principle, that decree is reversed.