text:
    McFeely v. Vantyle.
    Title defectively set out in a declaration, and the plea states the fact omitted, judgment after verdict ought not to be arrested.
    This case was adjourned from the Supreme Court of Hamilton county, upon a motion in arrest of judgment. The case was as follows:
    The first count in the declaration sets out a contract, in which the defendant covenanted to convey to the plaintiffs the half of a mill seat, with a part of the defendant’s plantation necessary for said seat, etc. The part to be conveyed is described by metes and bounds, and was to contain five acres at least, or as much as the parties should deem necessary for a mill. One of the lines called for is to run up the creek, through the bottom, as the parties might agree, to the line of Lawrence’s land. It is averred, that the defendant agreed to make the plaintiffs a good and sufficient deed for the premises, on the payment of three hundred dollars, and that that sum was fully paid. The breach is, that the defendant did not make a good and sufficient deed, etc.
    The second count sets out the contract substantially as the first does, but avers payment of a part of the consideration money and a tender and refusal of the residue.
    *The first plea takes issue on the payment and tender. The second plea alleges that the plaintiffs ought not to sustain their action because the defendant was ready to make and execute to the plaintiffs a good and sufficient deed, whenever they would agree with him as to the line, and pay agreeably to the form and effect of the indenture, and tenders an issue.
    A verdict was found for the plaintiffs on both, issues, and a motion for a new trial overruled.
    The defendant then filed the following reasons in arrest of judgment :
    1. “ That there is no averment that the parties agreed on the land to be conveyed, or any proof of what land was agreed on, although the covenant states the same and makes such an agreement necessary.”
    2. “No offer to submit to arbitration; no proof that plaintiffs made any offer, although it is proved to be a part of their bargain, and not contradicted.”
    3. “ That there is no such covenant as that set out in the declaration, viz: that a deed should be made unconditionally.”
    4. “No averment of a demand of a deed.”
    5. “ It is sot forth that the land should be so much as the parties might agree on — no agreement averred.”
    Gazlay, in support of the motion:
    By the covenant, defendant agrees to convey to plaintiffs, as tenants in common, a moiety of a mill seat, and such quantity of land being part of his (defendant’s) plantation, as they, the defendant and plaintiff, should deem necessary for a mill seat, mill yard, and building for a miller and his family. The words of covenant are, “containing five acres at least, or so much as parties (defendant and plaintiff), might deem necessary,” etc. The covenant contains a description of the property, by courses and distances, in which one line is left open, subject to future agreement as to quantity, as above specified. The consideration for five acres, if that quantity should be agreed on, is three hundred dollars; if more than five acres, the surplus to be paid for at forty dollars per acre. The covenants are mutual and dependent, and declared on as such.
    *The declaration sets out the terms of the covenant truly, excepting that part of same which provides for the payment of the overplus, if more than five acres should be required. As to this it is silent. The breaches assigned are general, as if the covenant barely obliged the defendant to convey on the payment of a sum of money specified. In other words, they relate to the whole covenant on the part of the defendant; that he did not convey as he had agreed to do. It is a rule of pleading, that the whole of the consideration on both sides must be set out; every matter of substance must be specified. 1 Chitty Pl. 116, cases cited, Bristow v. Wright. And in mutual and dependent covenants, plaintiff must aver, not only a performance of his, but the consideration of defendant’s covenants. Doug. 690; 1 Saund. 320, note a.
    It is not averred that the quantity of'land was agreed on, although this is a substantive part of the agreement. It is the covenant of plaintiffs as well as of the defendant, and made for their mutual interest and benefit, as tenants in common. If it be not so considered, the defendant or plaintiffs may be deprived of rights, the securing of which was the principal inducement to making the covenant.
    It is the contract of the parties, that the quantity of land shall be determined by them for their mutual convenience; and this determination as to quantity was an act to precede any and every other in completing the terms of the covenant. It is not from one, but every part of the covenant, that this position is deducible; first in the introduction, then in the courses and distance, and again in providing for the payment of the overplus. The omission to aver that parties came to such agreement as to the quantity of land to be conveyed, must be fatal. Nor is the quantity to be conveyed to be considered at all in the nature of a condition which the plaintiff is at liberty to omit, and which may be pleaded to enlarge or defeat the effect of the covenant; as where the defendant was bound to deliver fifteen hundred measures of saltpeter, provided any accident by fire or water did not prevent. 1 Term, 540; 1 Saund. 234, note; Esp. N. P. 330, on cov. title.
    That which may happen to defeat the action does *not necessarily belong to the plaintiff to state, and lying properly within the knowledge of defendant, and being for his benefit, must come from him. Hence the fixing on the quantity was to be the act of both parties, for the benefit of both, and was necessarily to precede a conveyance; it was the first • step to be taken on the contract.
    Penny v. Porter, 2 East, 2, court say, agreement laid as certain, where it is conditional, variance fatal.
    Clark v. Gray, 6 East, 570, court say, the certain act to be done must be averred.
    Here the covenant itself is set forth in the declaration, but there is no averment that the joint act of the parties which was to give it effect was ever performed. 1 Chitty Pl. 313, and cases cited. .
    The error is still more apparent in the breach, which is that defendant has not conveyed as he agreed to do. How did he agree to convey, and what did he agree to convey? Such quantity as should be agreed on. If the declaration were for five acres only, then the breach ought to have been so stated — if for a greater quantity, or a less, that should have been stated. As the declaration now stands, it would appear plaintiffs claimed five acres only; yet the breach is to| the whole covenant, and that may be more than five acres. Tredwell v. Steel, 3 Caine’s N. Y. 169; Maston v. Hobbs, 2 Mass. 437.
    Covenant for one of two quantities, breach should have been in alternative. 1 Esp. N. P. 301.
    No counsel argued on the other side.
   Opinion of the court, by

Judge Burnet :

The second, third, and fourth reasons do not require to be particularly notice. They either relate to matters not presented by the pleadings, or to such as should have been noticed at an earlier stage of the proceeding, and in a different form. The first and fifth reasons assign the omission of an avertment, that the line, and the quantity of land to be conveyed, had been agreed on by the parties. These objections resolve themselves into one; for as the course and distance of all the lines are given, except one, which is *to terminate at Lawrence’s line, it follows, that fixing the course of that line must settle the quantity of land to be conveyed ; but a reference to the record will show that the defendant has supplied the omission by his second plea, which puts that matter distinctly, though informally, in issue, and as that issue was found for the plaintiffs, the fact must have been proved to the satisfaction of the jury.

The contract is drawn with a want of technical precision, though the meaning of the parties can be sufficiently ascertained. .The pleadings are informal throughout, as well on the part of the defendant, as of the plaintiff. The title set out in the declaration appears to be a good one, but it is defectively stated. The substance of the contract is given correctly. The difficulty arises from the want of proper averments in the declaration. The defendant might have demurred, but he did not see proper to take that course. He chose rather to supply the defect, and rest on the evidence. After having traversed the payment and tender, he has informally put the agreement, as to the line, in issue; the whole of that subject was therefore before the jury. It is true that the defendant could not convey till it was ascertained what he was bound to convey; but it is equally true, that the second issue could not have been found for plaintiff, unless that matter had been ascertained. by the evidence at the trial. The defect, therefore, was supplied by the plea, or cured by the verdict. Whatever might have been the result of a demurrer, we do not feel at liberty, un der existing circumstances, to arrest the judgment.

       NotE by the Bditor. — See also ii. 204; xiv. 127; xv. 138.


source: Caselaw Access Project

author: By the Court:

license: Public Domain

text:
    *William Vancleve v. Ralph Wilson.
    In cases certified to court of common pleas, upon attachment from justices of the peace, the jurisdiction of common pleas is original, not appellate.
    This case was commenced by attachment before a justice of the peace, for the sum of sixty-four dollars and ninety-ono cents. A garnishee was summoned, in whose hands eleven dollars and thirty-one and a half cents were secured. Afterward, an affidavit was made, and the justice issued an attachment against lands and tenements. The officer returned a levy upon lands, and the justice certified his proceedings, with the return of the officer, to the court of common pleas. The defendant appeared in the court of common pleas, and entered bail, pleaded to the action, and went to trial. The jury gave a verdict of fifty-six dollars for the plaintiff, and the defendant appealed to the Supreme Court of Montgomery county, where the proceedings were all had. The plaintiff moved to quash the appeal, and the decision of the motion was adjourned to this court.
    Munger and Fales, in support of the motion:
    22 Ohio Laws, sec. 99, p. 72. In civil cases, an appeal shall be allowed of course, to the Supreme Court, from any judgment or decree rendered in the court of common pleas, in which such court had original jurisdiction. Id., p. 50, sec. 2. Supreme Court shall have appellate jurisdiction from the court of common pleas in all cases in which the court of common pleas has original jurisdiction.
    Id., p. 50, sec. 4. Courts of common pleas shall have original jurisdiction in all civil cases, both in law and equity, where the sum or matter in dispute exceeds the jurisdiction of justices of the peace, and appellate jurisdiction from the decision of the justices of the peace in their respective counties, in all cases.
    The amount claimed and proved did not exceed the jurisdiction of justices of the peace.
    The Supreme Court, therefore, could not have appellate jurisdiction by virtue of the foregoing section defining its appellate powers.
    N either does the law regulating attachments give the Supreme Court appellate jurisdiction in this case.
    *It is a well-settled principle, that when jurisdiction is given to a court, the presumption is that it was intended by the legislature to be final, unless that presumption is repelled by some provision of law. There is no such provision of law.
    In 22 Ohio laws, 157, section 22, it is provided, when the justice certifies his proceedings to the court of common pleas, that there shall be had thereon the same proceedings as in other cases of attachment, sued out originally from the court of common pleas.
    The legislature could not have intended, by this, to give an appeal to the Supreme Court, but to give the court of common pleas full power, in the suits thus brought before them, to enable them to order sale of property, etc., in the same manner as if the suit had been originated in the court of common pleas.
    Stoddard, for defendant, submitted no argument.
   By the Court:

Section 17 of the act regulating attachments before justices of the peace, passed in 1816, under which these proceedings were had, gives jurisdiction of the cause to the court of common pleas. This jurisdiction can not be appellate, for nothing is appealed from; no judgment is rendered to be revised, and the cause does not come into the court of common pleas by any act of either party, but in consequence of a legal duty imposed upon the justice. The proceedings in the court of common pleas, in taking bail, filing declaration, and other proceedings, and in the trial of the cause, are all essentially of the original character. The jurisdiction, therefore, must be original, and the motion to quash the appeal is overruled.

       Note by the Editor. — See note to the case on page 28, ii.


author: Judge Hitchcock:

text:
    *Eber Maxfield v. Charles and Adamson Johnston.
    Count in assumpsit upon a receipt for money is good after verdict, although it omits to allege that the money was received for plaintiff’s use.
    This case was adjourned from the county of Portage, upon a motion made by the defendants in arrest of judgment.
    It was an action of assumpsit. The declaration contained two counts — the first was as follows:
    “For that whereas, the said Charles and Adamson heretofore, to wit, of August 21, 1818, at Nelson, in said county of Portage, made their certain memorandum in writing, commonly called a receipt, bearing date on the day and year aforesaid, their own proper hands and names being thereto subscribed, and then and there delivered said memorandum, or receipt, to the plaintiff, and thereby then and there acknowledged to have received on that day, of the said plaintiff, two hundred dollars. By means whereof the said Charles and Adamson then and there became liable to pay to said plaintiff the said sum of money, in said receipt specified, according to the tenor and effect thereof; and being so liable,” etc., charging the assumption and consideration in the usual form.
    Second count, for four hundred dollars, for work and labor; four hundred for wares and merchandise, money lent, received, and advanced in the common form.
    The jury found a general verdict for the plaintiff. The defendants moved in arrest of judgment, and assigned the following reasons:
    The verdict is general upon all the counts in the declaration, and the first count therein is insufficient in law to authorize the court to render judgment in this: that it is not alleged in said count that the said sum of money, therein mentioned, was had and received, or otherwise possessed by defendant, to the use or on account of the plaintiff, or other than for the defendant’s own use.
    Wright, in support of the motion:
    Where there are several counts in- a civil suit, and one bad, and a general verdict, judgment must be arrested. 1 Ch. Pl. 288, and notes.

      *The receipt of money by one person of another raises no implied assumpsit to pay, nor does a voluntary payment of money. A liability is raised upon a receipt to the use of plaintiff. In all cases of receipts the title arises from the use, and the moral obligation flowing from it to pay. 1 Ch. Pl. 89, and note; 4 Johns. 240; 1 Esp. Dig. 119.
    By the custom or law of merchants, the statute of Anne, and the statutes of Ohio, actions of assumpsit may be maintained upon promissory notes, upon the principle that the promise and the acknowledgment of value received is a sufficient consideration for the assumpsit. It is supposed a promise on paper, without the value re - ceived, would be a nud. pact. This has not been extended to receipts where they are declared on, unless they contain a promise to pay on account, or some acknowledgment showing in the plaintiff a subsisting interest. See form in Chit, on Bills, 530.
    It is not denied that the receipt would be evidence under the common count for money received to the use of plaintiff, from which they might deduce the use from the fact of the receipt, and if they found it the verdict would be good; but that is not the case of defective title.
    It is a well-settled rule that the allegations are always to .be construed strictly against the party pleading.
    Sloane and Newton, in reply:
    The foundation of this motion is the insufficiency of the first count in the plaintiff’s declaration, for the reason that the plaintiff has not set forth a good title or cause of action. This count describes a receipt, or memorandum in writing, concluding in the usual form, with an averment of a legal liability and an undertaking and promise to pay on the part of the defendant, and only wants an averment that the money therein mentioned was received by the defendant to the plaintiff’s use, in order to make the plaintiff’s title perfect. Whatever might have been the effect of the omission of this averment on demurrer, still it is aided by a verdict at common law; for, after verdict, every promise in a declaration is taken to be an express promise. Lawes on Plead, in Assumpsit, 76, n. 1, and 345, n. 1; Marine Insurance Co. v. *Young, 1 Cranch, 332; Beecker v. Beecker, 7 Johns. 103.
    Then, as the case now stands before the court on this-motion, there is an acknowledgment of the receipt of the money, and an
      express promise to pay it on the part of the defendant, which certainly constitutes a good cause of action.
    Again, it is a general rule of law that a verdict will aid a titile defectively set out, but not a defective title; and from an examination of the authorities and decisions had under this rule, it is evident that the present case falls under the former description of title. The distinction between a defective title and a title defectively set out, as supported by the current of authorities, is thus defined in the books: “ If the promise do not appear to be warranted by the consideration stated, or it can not be collected from the record what contract was meant to be stated, or the contract stated appear to be such upon which an action of assumpsit will not lie, the defendant may take advantage of the objection by demurrer, or motion in arrest of judgment, or writ of error, even after verdict ; but where it may be collected from the record what special contract was meant to be stated, any defect or uncertainty in the statement on the record may, after verdict, be supplied by intending it to have been proved before the jury.” Dawes on Pleading in Assumpsit, 118, 119, and cases there cited. Also, where there is any defect, imperfection, or omission in any pleading, whether in substance or form, which would have been a fatal objection upon demurrer, yet if the issue joined be such as necessarily required on the trial proof of the facts so defectively or imperfectly stated or omitted, and without which it is not to be presumed that either the judge would direct the jury to give, or the jury would have given the verdict, such defect, imperfection, or omission is cured by the verdict by common law. 1 Saund. 228, n. 1, and 28, n. 4; 1 Chitty Pl. 402, and notes, and 332, and notes; Tidd’s Prac. 826, and cases cited; 2 Bos. & Pul. 259, 267, 268.
    . When it is to be collected from the record what special contract was meant to be stated, any defect or omission, whether of form or substance, in the statement or the record, *may be supplied by intending proof before the jury. Indeed the court will infer almost anything after verdict. Ward v. Harris, 2 Bos. & Pul. 267, 268, and Da Costa v. Clark, 2 Bos. & Pul. 259; 1 Chitty Pl. 402, and notes; 1 Saund. 228, n. 1, and cases there collected; 5 East, 270; 11 Johns. 141; 12 Johns. 353; 15 Johns. 250.
    At common law, when anything is omitted in the declaration, though it be matter of substance, if it be such as that, without proving it at the trial, the plaintiff could not have had a verdict, and there be a verdict for the plaintiff, such omission shall not arrest the judgment. Tidd’s Prac. 826, and cases there cited.
    Now, in the present case, there has been a trial on the merits, and a verdict for the plaintiff, and the only defect or omission in the plaintiff’s declaration, necessary to make a good and perfect title, is the want of averment (assigned by the defendant’s counsel as the grounds of this motion), that the money was received by the defendant to the plaintiff's use; but, from the state of the pleadings, this fact must, of necessity, have been proved upon the trial, otherwise the court could not have directed the jury to give, and the jury could not have given, a verdict for the plaintiff.

    Furthermore, enough is stated in the declaration to say what contract was meant to be stated. Indeed the term's of the declaration are so plain and obvious that the court can not mistake it.
    If, then, it be a fair presumption, that the fact omitted in the declaration was proved upon the trial, and it may be collected from the record what special contract was meant to be stated, the judgment ought not to be arrested.
    The rule mentioned by the defendant’s counsel in argument, “ That allegations are always to be construed the strongest against the party pleading,” is true before verdict, but after verdict they shall be so construed as to support the verdict. 2 Bos. & Pul. 259.
   Opinion of the court, by

Judge Hitchcock:

The declaration in the present case contains several counts, and for a supposed defect in the first, it is moved to arrest the judgment. Where there is a general verdict for *the plaintiff upon a declaration containing several counts, and one of the counts is defective, the judgment will be arrested. It is mot, however, for every defect that such consequences shall follow. Mere formal defects are cured by verdict. Such ■ defects, too, as arise from the manner in which the title of the plaintiff is set forth, are cured by the verdict, provided sufficient appears to satisfy the court that tbe plaintiff had good cause of action. If however, it appears that.the plaintiff has no cause of action, or, in other words, that the title itself upon which he claims to recover is defective, such defect is not. cured by verdict. After a jury have passed upon a case, everything is to be presumed which consistently can be presumed to sustain their verdict.

The first count of the plaintiff’s declaration sets out that defend¡mis received of the plaintiff a specific sum of money which they promised to pay, etc. It is defective in this particular, that it does not state that the money was received to the plaintiff’s use. Had the declaration contained but a single count for money had and received by the defendants, to the use of the plaintiff, the receipt which is referred to in the present case would have been good evidence under such declaration to authorize the plaintiff to recover. It is manifest, then, that the count objected to sets out a good title, although it is done defectively. Aftdr verdict the court must presume that it was proven on the trial that the monej was received to the use of the plaintiff, otherwise the jury would not have found as they have done. The omission to state that the money was received to the use of the plaintiff is cured by the verdict. Whatever might have been the opinion of the court upon a demurrer to the declaration, it is now too late to take exception to it.

If the receipt of the money had been accompanied with an express promise to pay, it would have been equivalent to a promissory note. The consideration would have been sufficient to support the promise. After verdict every promise laid in the declaration is to be considered as an express promise. It is too late to say that it is no other promise than such as is implied in law. This case, then, is ^presented to the court as it would have been had there been an express promise to pay. Such promise would have been sufficient consideration to support it, and would be obligatory on the party. For this reason, therefore, the judgment can not be arrested.

Let judgment be entered for the plaintiff.


author: By the Court :

text:
    Elisha Litler v. Stephen Horsey.
    One of several sureties, against whom judgment has been obtained, can not sustain a separate action against principal, under section 5 of the act for the relief of sureties. But in such case, where there is a joint judgment against several sureties, all must join in the action.
    This was a writ of error to a judgment of the court of common pleas of Pickaway county, reserved in the Supreme Court of that county for decision here. The original action was a special assumpsit, and the facts, upon which the opinion of the court was founded, were as follows:
    On April 21, 1818, Litler, the defendant, and one Heath made a note for twenty-two hundred dollars, negotiable at the office of the Bank of the United States at Chillicothe. It was indorsed by the plaintiff, Horsey, John White, and James Moore, and discounted, and the proceeds received by the drawers. This discount was an accommodation for the drawers, and the note drawn and indorsed by the same parties, was renewed until October 27, 1818J when Asael Heath’s note, indorsed by the plaintiff, John White, James Moore, the previous indorsers, and Job Radcliffe, an additional indorser, was discounted, and the proceeds applied to take up the note of Litler and Heath. Litler’s name was thus withdrawn from the paper, and the note was renewed and reduced by the same parties until June 1, 1819, when Asael Heath’s note was discounted, indorsed by the plaintiff, and by James Moore, Job Radcliffe, and Jonathan Heath, instead of John White. The note thus indorsed was renewed once, and not being paid, suit was brought against the plaintiff and the other indorsers, and judgment rendered against them. Horsey had not paid the money; and it was agreed that there was no proof that Horsey indorsed the first note at the request of Litler, other than the presumption arising from the fact, that Litler *was one of the drawers of the notes; and there was no proof that Litler had any information or knowledge that Horsey had indorsed the note in question.
    These facts appeared upon the pleadings, and upon a.bill of exceptions, made part of the record. The jury found a verdict for the plaintiff, and judgment was given upon the verdict, to reverse which the writ of error was brought.
    Irwin, for plaintiff in error:
    Horsey, not having paid the money as surety, predicates his action upon the statute for the relief of sureties, which gives the surety an action against the principal, where judgment has been rendered against such surety for the debt.
    The action was not maintainable, because Litler was not a party to the note on which judgment was rendered; because, there being more than one surety, they ought all to have joined as plaintiffs'in the action; and because the note upon which judgment was rendered, was a transaction between parties with whom Litler never was associated in the negotiation.
    The first section of the act confines the relief to eases of sureties “by bond, bill, or note.” The fifth section, which gives the action to a surety before payment of the money, must be understood to relate to the class of cases included in the first, and to none other. Litler being no party to the note, no judgment upon it could be rendered against him ; he could not, therefore, be subjected to an action under the fifth section.
    If he were subject to such action, under this section, it is to a single action only , and not to as many actions as there may be sureties. This would be to multiply litigation, when the legislature have evinced their disapprobation, by requiring suits against drawers and indorsers to be joined.
    The note drawn by Heath and Litler was paid and satisfied. New transactions took place, to which Litler was no party, and it can not be possible that Jonathan Heath and Job Radcliffe, whose names were never on the note with Litler, can be his security in a “ bond, bill, or note.” Tet *they, with the plaintiff, are joint securities upon that note, and their responsibilities must be the isame.
    Ewing, for defendant in error:
    This court have decided, that indorsees of accommodation paper .•are joint sureties for the drawers. Douglas v. Waddle, 1 Ohio, 413.
    Sureties can not join in an action against their principal. They •must sever.
    The statute gives a new and summary remedy, but it does not ■change the law as to parties to the action, or make their remedy joint where before it was several.
    If sureties, whether indorsees or joint obligees, pay the debt of their principal, they can not sue him jointly, to recover back their money. The suits must be several. It may be considered a hardship to subject the principal to a suit by each of his sureties. This might be urged as a reason why the legislature should change the 'law, and provide for a joint action. But without such interference a joint suit can not be sustained.
    The original debt was contracted for the joint benefit of Litler and Heath; they were the original debtors, and the same debt subsisted through all the mutations of renewing notes and changing securities. Litler is, therefore, “ a principal debtor ” within the meaning of the act, and is liable.
   By the Court :

At the common law a surety has no action against his principal until such surety has paid the money; and the remedy extends no further than to recover back the amount paid, as in any other case of money paid for the defendant, at his request. This being the rule, the action of every surety must be for his own advances, and must be in its nature separate. For although two or more joined as sureties in the writing, that act gave them no right, even if it could be considered a joint act. Each surety could recover the amount he had paid, and no more, and the principal, though subjected to the expense of separate suits', could not be subjected to-a judgment for any greater sum than his own original debt.

*0ur statute gives to the surety a totally different remedy. It authorizes the surety to sue a severe process, and obtain a summary judgment against his principal, so soon as the creditor shall have obtained judgment against the surety. The judgment is to be rendered for the “proper amount,” which, of course, must be the amount of the judgment against the security. The foundation of this proceeding in favor of the surety is totally different in principle from the proceeding at common law. It is not the amount paid by the surety, but the whole amount of the judgment, for which the surety may proceed against the principal. Where there are, as in this case, four sureties, upon the doctrine contended for by the defendant in error, each is entitled to a separate judgment against the principal for the whole amount. And each, upon the hypothesis that he might be compelled to pay, would claim to proceed and collect the whole amount of his judgment. Thus a necessity might be created for more litigation to settle and adjust all the rights of the parties. The court conceive that this would not be a reasonable construction of the statute. The judgment which gives the right of the surety to sue, is an entire and single judgment against all; the right it confers upon them must also be entire. Such being the opinion of the court, it is unnecessary to inquire whether the plaintiff could, upon the facts stated, be considered a surety for the defendant. Were that fact fully admitted he could not, in this case, sustain his separate action. The judgment must be reversed.


text:
    Lessee of Atkinson v. Dailey.
    Lease for school lands is not valid unless acknowledged by the grantors before a judge or justice.
    At the trial of this cause, which was an ejectment, in the Supreme Court of Monroe county, the plaintiff offered in evidence a lease executed by William Kent and Robert Carpenter, trustees of the original surveyed township, No. 7, in range 7, Monroe county, for section sixteen, in said township, the premises in dispute to .his lessor. The execution of this lease was attested by three witnesses, one of whom was the township clerk. It was not acknowledged ^before any judge or justice, but was recorded. The defendant objected to the lease being given in evidence; the objection was sustained, and the plaintiff became nonsuit.
    A motion was made to set aside the nonsuit, and award a new trial, on the ground that the court mistook the law in rejecting the lease. The decision of this motion was adjourned to this court.
    Beebe, for plaintiff.
    Stokley, for defendant.
   By the Court :

The lease offered- in evidence in this case and-rejected, is dated December 28, 1822, and appears to have been recorded January 8, 1825. It was made under the provision of the act to provide for leasing certain school lands therein mentioned, passed January 27, 1817. Vol. 15, p. 202. This act is silent as to the mode of executing leases; but the third section requires that leases executed under the law shall, “ in all cases, be recorded by the clerk of the township, and also by the recorder of the county, at the proper costs and charges of the lessee or lessees.”

As the act providing for making these leases prescribes no particular mode of executing them, the court are of opinion that they can only be valid when executed conformably to the general law. By the act of February 24, 1820, vol. 22, p. 219, it is distinctly required, that in addition to being signed and sealed in the presence of witnesses, deeds, for the conveyance of lands, shall be acknowledged before a judge of the court of common pleas, or a justice of the peace. This provision extends not only to deeds, but to “ other instruments of writing, by which any land, tenements, or hereditaments shall be conveyed in whole or in part, or otherwise affected, or incumbered in law.” The lease in question has not been thus acknowledged ; it has not, therefore, been executed agreeably to law, and can not invest the lessor of the plaintiff with title, It was properly rejected, and the motion for a new trial must be overruled.

       NoTE by the Editor. — See Swan’s Stat. 265, sec. 1; ib. 267, sec. 8. Pot late decisions touching the acknowledgment of leases, see siii. 43.


text:
    *Joseph Vance v. The Bank of Columbus.
    Poundage is only due to the sheriff where he has actually made and received the money on execution.
    This cause came before the court upon a writ of certiorari, from the Supreme Court of Champaign county, to the court of common pleas of the same county.
    The facts of the case were these: At the April term of the common pleas, 1822, the bank obtained a judgment against Vance for six hundred dollars, upon which an execution was issued and levied upon real estate. A sale not being effected, in consequence of no person bidding the proportion of the valuation required by law, the execution was returned with the levy and valuation, and indorsed not sold for want of bidders. Several successive writs of venditioni exponas were issued, upon which the same return was made. After the last vendí, was thus returned, Vance paid the money to the bank, and paid up all the costs, but the poundage claimed by the sheriff. This he refused to pay, and made a motion in the common pleas to have an entry of satisfaction made on the judgment. This motion was resisted, and overruled by the court. To reverse this order the certiorari was brought.

      Mason and Cooley, for plaintiff in certiorari:

    In England, in New York, and perhaps elsewhere, the sheriff is entitled to his commissions, or poundage, whenever the execution is served or levied, whether the money be paid to him or not. This results from the terms used in the statutes giving the fees. The statute* Elizabeth, chapter 2, provides that the sheriff shall be entitled to the. fees allowed by the act for serving the execution ; the New York statute is in the same terms. Under these statutes it is held that the sheriff’s right to poundage depends upon his serving the execution, not upon his receiving the money. 5 Johns. 252. The terms of our statute are different. The sheriff’s fees for every particular service are enumerated. “ Poundage on all moneys made on execution, two per cent.,” are the terms employed, and they import only moneys made by, that is paid to, the sheriff. It is given as compensation for the trouble and risk of receiving and paying over the money; *and if the service be not performed no compensation can be due.
    No counsel argued on the other side.
   By the Court :

The distinction taken by the counsel, between the language of our statute and that of oth er countries referred to is a very clear one. The phrase, “ money made on execution,” can only relate to such sums as are actually paid into the sheriff’s hands, upon the execution. The money is not made by the officer, when paid directly' by the debtor to the plaintiff. A different construction would imply that the poundage was given merely to swell the bill of costs, and increase the sheriff’s perquisites, and to this we can not assent. We agree with the counsel, that.it is given as a compensation for services really performed. When this is not done compensation can not be claimed.

The order must be reversed, and the common pleas instructed to enter satisfaction on the judgment.


text:
    Fulton and Kirker v. Stuart.
    Where a lessee assigns a part of the premises leased to a third person, for the whole period of time of the lease, it is hut an underleasing, and the lessor can sustain no action on the lease for rent against such assignee.
    This was an action of covenant brought from Muskingum county. The declaration sets forth a lease for years, from the plaintiff to Jeremiah P. Munson, and alleges, that all the estate, right, title, and interest of the said Munson, the lessee, to the demised premises, except thirty feet square of vacant ground, by assignment came to the defendant, who had occupied the same, and assigns the non-payment of the rent reserved as a breach. The defendant demurred generally, and the decision was reversed.
    Silliman and Spangler, in support of the demurrer, cited:
    Hartford v. Hatch, Doug. 183, as settling the doctrine, that an assignment of lease for any period of time short of the whole term, was but an underletting, upon which the lessor could sustain no action against the assignee *for the rent; and they argued that an assignment of a part of the premises was- as clearly an underletting, as an assignment of the whole for a part of the term only.
    Culbertson, for the plaintiff, cited:
    2 Chit. Pl. 455, 456; 1 Saund. 241, c; 2 East, 575; 1 Dal. 210; 1 Saund. 112; 4 Dun. & East, 75; and argued, that the assignee was liable for rent upon the privity of estate, and not upon the privity of contract, and that the same rule ought not to be applied to an assignment of part of the term, and an assignment of part of the premises.
   By the Court :

It seems to be settled, that where a lessee assigns his lease for any shorter period of time than that for which the lease was granted, the lessor can not sustain an action of covenant against the assignee upon the lease; because this is considered, not an assignment of the whole term, but an underletting. The principie applies with at least equal force to the case of an assignment, or underletting of a part of the premises only.

If the lessee constitutes two under-tenants, by assigning one-third of the leased premises to one, and one-third to another, retaining one-third himself, the lessor may have three distinct actions ; and in apportioning the rent, the aggregate given against each might amount to more or less than the amount reserved, and the parties in -either case would be without remedy. If the lessee underlet or assign the whole premises in equal quantities, to different persons, the lessor will be driven to as many actions against different persons, to recover his rent, instead of having one action against the lessee. For the separate assignee of a part can neither be charged with the whole rent individually, nor jointly, with one or more of his co-tenants.

In this case the declaration states, that the defendant was not assignee of the -whole premises; he did not take, and does not hold, the whole term of the original lessee.

The demurrer must, therefore, be sustained.

       Note by THE Editor. — See also iii. 449; vii. Ill, part 2.


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    Lessee of Bentley’s Heirs v. Deforest.
    Title to land can not be conveyed by assignment indorsed on the back of a deed.
    Tried before Judges Pease and Burnet, in Trumbull county, 1826.
    This was an action of ejectment. The plaintiff having offered in evidence, a deed conveying the premises in question, from Ad-gate to Yanderbarrack, with an indorsement thereon, subscribed by Yanderbarrack, by which he assigned all his right and title in the deed to Bentley, under whom the lessors of the plaintiff claimed as heirs at law, rested his cause.
    Webb, for the defendant,
    moved to overrule the testimony, and for a nonsuit, on the ground that the deed of assignment did not show a title to the premises in Bentley, the ancestor of the lessor.

      *Wheeler., for the plaintiff,
    contended that the laws of Ohio did not prescribe any particular form of transferring the title to real estate. That the assignment was, in fact, a deed, and that the intention of the parties was sufficiently manifest to require the court to give it effect.
   By the Court :

There never has been a time, since the establishment of the territorial government, when the title to real estate could be conveyed by an assignment, indorsed on a deed. The ordinance for the government of the territory, provided that real estates might be conveyed by lease and release, or bargain and sale, signed, sealed, and delivered by the person, being of full age, in whom the estate might be; attested by two witnesses, provided such conveyances be acknowledged, or the execution thereof duly proved and recorded, etc. This form of conveying real estate has been recognized ever since.

The indorsement relied on as a deed conveys nothing but the instrument itself. It may vest in the assignee a right to the paper and the wax, but it can not affect the title to the land. It does not describe the land, or purport to convey it, much less does it contain the operative words of a grant. It is an assignment of all the right and title of the assignor in the deed on which it is written. In equity it might be considered as an executory contract, and on proof of the facts connected with it, might entitle the assignee to a decree for a specific performance, but it can not operate as a conveyance of the legal title.

Judgment for defendants.

       Note by the Editor. — Same principle, ii. 234.


text:
    *Lessee of Ely v. McGuire.
    Where the money secured by mortgage is due and unpaid, mortgagee may recover in ejectment against mortgagor.
    Mortgaged premises may be sold, on judgment and execution against mort- • gagor.
    Tried before Judges Hitchcock and Burnet, in Clermont county, 1826.

      This was an ejectment, brought by a mortgagee against the mortgagor, after the whole of the mortgage money had become due and payable.
    The case was submitted without argument, on the single question, whether the mortgage deed be sufficient evidence of titlo to sustain the action.
   By the Court :

We have always censidered the title of mortgaged premises to remain in the mortgagor, as against all the world, except the mortgagee, and also as against him, until the deed becomes absolute at law, by the non-performance of the condition, and the mortgagee takes legal steps to reduce the premises to possession.

On this principle, we have decided that mortgaged premises may be sold on judgment and execution against the mortgagor, and that a mortgage, executed by the defendant, before the judgment, could not be set up as evidence of an outstanding title in an action of ejectment, brought by a purchaser under the sheriff, against the person in possession under the mortgagor, on the ground, that as the mortgage did not divest him of the legal title, the judgment was a lien on the premises, subject to the mortgage. In this case it appears that the money secured by the mortgage was due and unpaid. The condition was therefore broken. The deed has become absolute at law, and the plaintiff has a right to recover.

Judgment for the plaintiff.

       Note by the Editor. — See also vii. 70, part 2; ii. 224. Sale of mortgaged premises on execution, see also viii. 21; ix. 28; x. 71. But the mortgaged premises must ho appraised at full value, as if they were not ineumhered, xi. 342; viii. 22; x. 71; xi. 450; xii. 81; xv. 106. So that the mortgagor’s equity of redemption, if sold on execution, must cost the purchaser the full value of the land, xv. 106.


text:
    *Lessee of Phelps v. Butler.
    Where lands have heen sold at sheriff’s sale, and ejectment is brought against the judgment debtor by the purchaser, the defendant can not set up an outstanding mortgage given by himself.
    Tried before Judges Pease, Hitchcock, and Burnet, in Geauga county, 1826.
    The cause was submitted to the court on the following agreed case; On March 6, 1819, A. Tannehill recovered a judgment in the court of common pleas of Geauga county, against S. Butler, the defendant, on which an alias ft. fa. issued on August 24, 1824, under which the land in question was levied on, sold, and purchased by the lessor of the plaintiff, and a deed thereof duly executed to him by the sheriff. The defendant obtained a legal title, to a part of the land in question on May 27, 1820, and to the residue on February 9, 1822. On March 19, 1822, the defendant executed a mortgage deed on the same, to S. Hinchley, to secure the payment of six hundred and twenty-eight dollars and forty cents. The plaintiff rests upon his title under the purchase at sheriff’s sale, and the defendant sets up the outstanding mortgage in Hinchley. The defendant is in possession.
    Wheeler, for plaintiff,
    contended, that the mortgagor, notwithstanding the mortgage, was deemed seized, and was. the legal owner of the land. That an equity of redemption may be sold on execution against the mortgagor in possession. That a mortgage, before foreclosure, or entry, is not a legal title, which a stranger can set up. That defendant, in ejectment, can not set up a title in a third person, against the purchaser under an execution. That a sale of mortgaged premises, is merely a sale of the equity of redemption. That lands mortgaged, can not be sold on execution against mortgagee before a foreclosure, though the debt be due and the estate absolute at law. He cited Johns. Dig. 341; 6 Johns. 290, 343; 1 Caine’s Cases in Error, 47, 183; 7 Johns. 278; 10 Johns. 185, 581; 3 Caine, 188, 222; 20 Johns. 223, 481; 4 Johns. 41.

      *Sloan, for defendant,
    insisted that a judgment was not a lien on the debtor’s land, when the title is obtained after the rendition of the judgment, until levy made; and that if such land be aliened before levy, the title is good. That the legal title to the lands in question, at the time of the levy, was in Hinchley, and that Phelps acquired no title by the sheriff’s deed. That the plaintiff must recover on the strength of his own title. That defendant may protect himself by an outstanding title in a third person. That the mortgagor is tenant at will to the mortgagee. That the legal estate is vested in the mortgagee, and that persons claiming under him, must recover in ejectment. He cited 1 Ohio, 313; 6 Binney, 145; Peak’s Evidence, 314; Addison, 254, 393; 1 Dall. 18.
   By the Court:

The main question set up in the defense is whether a person in possession of land, which has-been sold on 'judgment and execution against him, can defend himself against the purchaser under the sheriff by setting up a mortgage executed by himself, on the premises, before the judgment became a lien on those premises. The question maybe so stated, because it has been decided by this court in Rhodes v. Symmes, 1 Ohio, 313, that a judgment is not a lien on after-acquired lands till a levy is actually made; consequently the case stands as it would have done if the mortgage had been executed before the rendition of the judgment.

It has been decided by this court, as often as the subject has been presented, that the execution and delivery of a mortgage does not divest the mortgagor of his legal title. In Hitchcock v. Harrington, 6 Johns. 290, it is stated by Kent, Chief Justice, to be the settled law in that court, and in the court for the correction of errors, that the mortgagor is to be deemed seized (notwithstanding the mortgage) as to all persons, except the mortgagee and his representatives. When the interest of the mortgagee, is not in question, the mortgagor, before foreclosure or entry under the mortgage, is now considered at law as the owner of the *land, and it was decided in that case that neither the heir of the mortgagor nor his assignee could deny the seizin. The mortgage is for the exclusive benefit of the mortgagee and those claiming under him, and until steps are taken to enforce it, it is only a lien on the land in which third persons have no concern. A mortgagor can not be permitted to disown his legaL rights to the prejudice of his creditors, or to protect himself in the possession and enjoyment of his estate, by admitting the existence of rights in third persons, who do not appear to set them up, which rights can not be affected directly or indirectly by the success or failure of his defense. The property in the possession of the plaintiff will be as liable and as sufficient to satisfy the debt as it will be if it remains with the defendant. If the moz’tgaged premises be of greater value than the debt for which they are pledged, the plaintiff, by his purchase from the sheriff, is entitled to the difference. The equity of redemption, as well as the legal estate, was vested in Butler at the time of the levy and sale, and it was decided in Waters v. Stewart, 1 Caine’s Cases Error, 47, that an equity of redemption may be sold on execution.

The rights of Hinchley are not involved in this question. Were he in possession, and an ejectment brought against him, he might protect himself by his mortgage, but neither the mortgagor nor any other person not claiming under the mortgagee, can set up the right of the mortgagee to defeat the sheriff’s sale.

In Klein’s Lessee v. Graham, 3 Caine, 188, it was decided that in an action of ejectment, by the purchaser at sheriff’s sale against the debtor, the defendant can not show title in another, because the plaintiff goes into his shoes, and acquires the same right, whether possessory or otherwise, which he held, and nothing moz'e. Much less shall he be permitted, as in the present case, to set up a mortgage, executed by himself, which not only admits his possessory right, but also his legal title.

The plaintiff purchased all the right of Butler, be it more or less, and if that right consisted merely of a naked possession, Butler can not be permitted to dispute it.

*In Jackson v. Willard, 4 Johns. 41, it was said to be an affront to common sense to say that a mortgagor in possession was not the real owner. In that case it was decided that the mortgagee held only a chattel interest, which could not be sold on execution after the debt become due, but before foreclosui'e, and while the mortgagor remained in possession. This being the law in relation to the rights of the mortgagee, if mortgaged premises can not be sold as the property of the mortgagor, subject to the mortgage, they are placed beyond the reach of creditors, and are completely protected against the debts both- of mortgagor and mortgagee. But we do not consider it necessary to pursue this subject further. We are satisfied with the decisions heretofore made, that the legal title to mortgaged premises remains in the mortgagor, while he continues his possession, whether the debt for the security of which the mortgage was given, has become due or not. On this ground the sheriff’s sale was regular; the purchaser acquired the legal title, subject to the mortgage, and he stands in the shoes of the mortgagor, who can not be allowed to set up the mortgage as evidence against his own title.

Judgment for plaintiff.


author: *By the Court :

text:
    Byington v. Geddings.
    The holder of a note payable to B. K. or bearer, in cattle, may recover upon it in his own name. But he must aver and prove that the note was delivered to him for a good consideration.
    This was a writ of error before Judges Pease and Burnet, at the August Term, 1826, in the county of Ashtabula.
    The case was this: Byington gave a note in April, 1822, for sixteen dollars, payable in cattle, to E. Knapp or bearer.
    Geddings brought an action in his own name,-in which he declared on the note, without showing how he became possessed of it, whether by assignment, delivery, or otherwise. The defendant demurred. The court sustained the declaration, and gave judgment for the plaintiff, to reverse which the writ of error was taken.
   *By the Court :

This note was not negotiable. The statute of 1820 does not, like that of 1810, embrace notes payable in property. The right of the plaintiff, therefore, to recover in his own name, depends on the form of the note and the operation of the promise. We consider the promise in the note as made, not only to Knapp, but to the person to whom he should deliver it.

The objection taken in the argument that the note was not indorsed, is not entitled to any weight. An indorsement is not necessary to pass the interest of the first holder — a delivery is sufficient for that purpose. It is well settled that the holder of a note, payable to bearer, may recover the contents in his own name, provided he has obtained it for a valuable consideration, in the fair course of trade. To entitle a holder to recover on such a note, in his own name, it must be stated as a part of his title, and proved at the trial, that the note was delivered to him for a valuable consideration, or that he acquired it in the usual course of trade or business. It was decided in Grant v. Vaughan, 3 Burr. 1516, that a negotiable note, payable to bearer, may be recovered in an action for money had and received. But in this case the action is founded on the note, which is declared on as though it were made payable to the plaintiff, he being the bearer. Under these circumstances he is bound to make the averments before stated, and also to prove them. Without these averments and this proof, he can nob maintain his right to a recovery. He can not rely on the presumption that he obtained the note fairly. That fact is a substantial part of his title, which must be averred and proved. Without the averment, he sets out a defective title; and without the proof, he does not sustain the title. For anything that appears in the record, the note might have come into the hands of the plaintiff by fraud or accident, without delivery or consideration. In the first instance, the right was vested in Knapp, and the record does not show that that right has been transferred. We consider it to be as necessary to aver a delivery in this case as it is to set out an assignment on a note payable to order. The declaration is therefore defective, and the court erred in overruling the demurrer.

Judgment reversed

       Note by the Editor. — As to the negotiability of notes not payable in money, see i. 115, 189; iii. 51; vi. 279; xiv. 455; xv. 118; xvi. 5. To be negotiable, a note must be an unconditional promise to pay, xiv. 455.


text:
    *Colwell, Administrator, v. Bank of Steubenville.
    In foreign attacnment under tbe act of 1810, judgment is erroneous unless three months’ notice be given.
    This case came up on writ of error, before Judges Burnet and Sherman, at the July Term, 1826, in Union county.
    It was a writ of foreign attachment on which final judgment had been rendered in the court of common pleas.
    From the record it appeared that notice of the issuing of the writ had been published only six weeks, which was the principal error relied on.
    The cause was submitted without argument.
   By the Court :

It appears that the writ of attachment issued under the statute passed in 1810, and that the plaintiff has pursued the fourth section of that act which relates to domestic attachments, instead of the fifteenth section which directs the mode of proceeding on foreign attachments. This section requires a notice of three months before the rendition of judgment, and expressly provides that no judgment shall be entered in cases to which it relates, until the notice required shall have been given.

As this is a statutory proceeding unknown to the common law, it is necessary to pursue it strictly.

Judgment reversed.

      Note bt the Editor. — See ix. 108, and cited cases.


text:
    *Lamb v. Stewart.
    Peclarations made by a witness previous to his examination, contrary to his statements when examined, is admissible to discredit his testimony.
    This case came before Judges Pease and Burnet, on a writ of error, at the August Term, 1826, in the county of Ashtabula.

      It appeared from the record, that the plaintiff in the trial before the common pleas, called a witness, who testified to certain items in his account against the defendant. The defendant then offered to prove that the same witness, on a former occasion, when conversing on the same 'subject, not being under oath, had made different statements. The testimony offered, was objected to and overruled, and a bill of exceptions taken.
    The case was submitted without argument.
   By the Court :

The testimony offered by the defendant was strictly legal. He had a right to discredit the witness, who had been examined against him, and one method of effecting that object was, by proving that he had told different stories, at different times, when conversing on the same subject. Such evidence is always admitted when offered, and the effect of it is left to the jury.

Judgment reversed, and cause remanded.

       NoTE by the Editor. — Contradictory statements on oath neutralize each other, and are disregarded entirely, vii. 88, part 2; xvi. 338.


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    *Lessee of Hughey v. Horrel & Co.
    Lands in the Virginia Military District divided by county lines, where the owner resides on part, can only be listed for taxation in the county where the owner resides.
    If otherwise listed and sold for taxes, the sale is void. Advertisement of sales of lands for taxes must he made in two newspapers; one at the seat of government, one in the county, or, if none there, then one in most general circulation there. Sale without such advertisement is void.
    This was an action of ejectment, tried before Judges Burnet and Sherman, at the July Term, 1826, in the county of Madison.
    As the case turned on the sufficiency of the defendant’s testimony, who claimed under a tax title, it is not necessary to state more of the case than will be sufficient to present the points on which it was decided.

      It appeared from the testimony, that the county line divided the land, part of it being in Madison and part in Pickaway. The land was entered for taxation in the county of Madison, in the name of E. Prichard, who lived on that part of the tract which was within the county of Pickaway. The land was charged with the taxes of 1820 and 1821. The notice was published in a newspaper printed at Columbus, and in no other. The newspapers of Chillicothe and of Springfield have a partial circulation in Madison, but the Columbus papers have the most general circulation. There was no newspaper printed in the county of Madison.
    The principal objections to the validity of the tax title were, that the land had not been listed according to law, and that the notice had been published in one paper only, when the law required it to be published in two. Other objections were taken which it was not thought necessary to decide.
   By the Court :

Section 9 of the act of 1820, under which the land in question was listed and sold, makes it the duty of the county auditor to call on each resident proprietor of lands within his county, and take a list of all his lands subject to taxation within the county, with a proviso, “that all lands lying within the Yirginia military district, which shall be divided by county lines, so as to leave parts of said tracts in two or more counties, shall be listed by the proprietor, in the county in which he lives.” By section 13, it is made the duty of the auditor, on failure of the proprietor *to furnish a list, to enter the land from the best information in his power. As the land in question was within the Yirginia military district, and divided by a county line, and as Prichard, the proprietor in whose name it was listed, resided in the county of Pickaway, the auditor of Madison was not authorized to enter it on his list. It was made the duty of the proprietor to enter it in the county in which he lived, and on his failure to do so it ought to have been entered by the auditor of Pickaway.

It is evident, therefore, that this land Jms not been entered in conformity with the statute, and that it has been sold by an officer who was not authorized by law to make the sale.

Section 38 provides, that the county auditor, on receiving the delinquent list, shall forthwith cause the same to be advertised six weeks successively, in some newspaper printed at the seat of government in this state, and also in a newspaper printed in his proper county, if any such there be, and if not, in some newspaper in most general circulation in said county.

It is contended by the defendant, that as there was no paper printed in the county of Madison, and as the Columbus paper was in general circulation in that county, it was not necessary to publish the notice in any other. The law does not admit of such construction. The publication must be made in two papers, one printed at Columbus, and the other in the county where the auditor resides, if there be such a paper, and if not, then in some paper (other than the one printed at the seat of government) in most general circulation in his county.

The object of the legislature in both of these provisions is obvious.

The first was intended for the convenience of the resident proprietor, and for the safety of all others concerned.

Instead of dividing the tract, and requiring double entries and payments, they have required it to be entered and paid in one county, and to prevent confusion they have designated which that should be.

For anything that appears, the land may have been entered and the taxes paid in Pickaway. The other provision was designed to extend the notice, as generally as possible, *for the information of owners, and for the purpose of increasing competition at the sale.

The requisitions of the law are substantial and useful, and can not be dispensed with. Tax sales are attended with greater sacrifices to the owners of land than any others. Purchasers at those sales seem to have but little conscience. They calculate on obtaining acres for cents, and it stands them in hand to see that the proceedings have.been strictly regular.

The jury rendered a verdict in conformity with this, opinion, on which judgment was entered. •


text:
    Ann Mattox v. William Mattox.

      Bill for Divorce.

    Divorce not granted where the applicant is living in adultery.
    This case came before Judges Hitchcock and Burnet, at the May Term, 1826, in the county of Adams.
    The principal charge relied on in the bill was the adultery of the husband, which was very satisfactorily proved; but on cross-examining the witnesses it appeared that the complainant was living and cohabiting with another man, who had deserted his wife, and that she had had a child by him.
   By the Court :

The bill must be dismissed. It would, be a libel on the legislature to suppose that the statute was designed for the convenience of that class of characters to which these parties seem to belong. It was intended for the relief of injured innocence; not to encourage persons of loose morals, or rather of no morals at all, to live in the open, scandalous violation of the common rules of decency.

This application is to the equitable jurisdiction of the court, and must be decided by the principles which prevail in courts of equity. The complainant must come *with clean hands and a chaste character, not stained with the same infamy and crime of which she complains. These parties are in pari delicto, and to grant relief to either of them would be offering a bounty to guilt. It would place the permanency of the marriage contract, in every case, at the disposal of the contracting parties, and remove one of the strongest motives to that correctness and chastity of conduct which is necessary to render the marriage state either pleasant or convenient.

The ground on which this bill is dismissed is not new in the practice of this court. Many have been dismissed for a similar reason, and we had reason to believe that the practice was sufficiently known to prevent applications liable to this objection.

Bill dismissed.


text:
    Lessee of McCullough’s Heirs v. Rodrick, etc.
    Insolvent in Pennsylvania, assigning all his estate, both real and personal, does not pass real estate in Ohio.
    This cause was tried before Judges Hitchcock and Burnet, at the April Term, 1826, in the county of Pike.
    The plaintiff, having exhibited a patent to the ancestor of his «lessors, covering the land in controversy, and proved the possession of the defendant, rested his cause.
    The defendant then offered a transcript from the State of Pennsylvania, for the purpose of showing that S. McCullough, under whom the plaintiffs claim, had taken the benefit of the insovlent act, and assigned his property for the use of his creditors. The assignment was in these words: “ I do hereby assign all my estate, real, personal, and mixed, to J. B. and J. H, in trust for the uso of my creditors. In testimony whereof, I hereunto set my hand and seal, December 11, 1824; and I do hereby authorize arid em« power any attorney to appear for me, in an amicable ejectment in the name of the assignees, and confess judgment for the two hundred and seventy-three acres with the appurtenances.
    *This testimony was objected to, and overruled by the court, on the ground that whatever may have been the effect of the assignment in Pennsylvania, which was a question not necessary now to be decided, it could not pass the title to real property in Ohio, which must be transferred in pursuance of our own laws. The legal title, therefore, remained in the assignor, and descended, at his death, to the lessors of the plaintiff, who are his heirs at law.
    If we were disposed to give to this document the greatest effect that can be claimed for it by the defendants, it would show nothing more than an outstanding equity in third persons, which can not be set up to protect the defendants’ possession against those who hold the legal estate; and as this is the only use that could be made of it, it can not be received as evidence.
    Y erdiet for the plaintiff.


text:
    Lessee of Shaler v. Magin.
    Occupying claimant is entitled to pay for improvements made before bis title commenced.
    This case came before Judges Hitchcock and Burnet, at the May Term, 1826, in the county of Adams.
    The commissioners appointed at the last term to estimate the valuable and lasting improvements made on the premises, prior to the commencement of the ejectment, having reported, Mr. Brush moved, on behalf of the successful claimant, to reject the report and discharge the commissioners, on the ground that the improvements Were made before the title commenced under which the defendant claimed.
    The facts, as they appeared from the reports and the testimony, were these: An entry had been made on the land in dispute' prior to the year 1818, under which the defendant took possession, and made the improvements in question. In October, 1818, after the improvements had been made, the entry was withdrawn, and about the same time ^another entry was made on the same land by Ellis, under whom the defendant claimed.
   By the Court :

This motion can not be sustained. The defendant had an equitable title of record at the time he commenced his improvements, which continued till the improvements were completed. His possession was not interrupted by the withdrawal and re-entry of the warrant, nor were the rights of the plaintiff in any manner affected by that circumstance.

But independent of this consideration, we discover nothing in the statute that limits the claim of the occupying claimant to a compensation for such improvements as were made after the commencement of his title. The statute is in the present tense: “When any occupying claimant, being in quiet possession of land, from which he can show a plain and connected title in law or equity,” etc; If any person shall set up and prove an adverse, and better title to said land, such occupying claimant shall not be evicted, until he shall be fully paid the value of' all lasting and valuable improvements made by such occupying claimant, or the person under whom he may hold the same, previous to receiving actual notice by the commencement of suit, etc.

The exhibition of his title is to be made to the court at the rendition of the judgment, and if he can show such a title as is required by the statute, he is protected in his possession till he shall be compensated for the improvements made by himself, or by the person under whom he claims. There is nothing in the law that excludes a right to receive pay for improvements made by the tenant, or the person under whom he claims, at any time before the commencement of the suit.

It sometimes happens that persons seat themselves on vacant lands, make valuable improvements thereon, and afterward locate it. In such a case, if, in consequence of a defect in their entry, a junior entry should prevail, we can not see anything in the law, or in the policy on which it is founded, that entitles the successful claimant to take the improvements, without making compensation to the tenant.

*It may also be remarked that in this case it does not appear at whát time the better title of the successful claimant commenced ; whether before or after the making of the improvements in question.

It is not necessary now to decide that an unsuccessful claimant must in all cases be entitled to pay for improvements made before the commencement-of his title, although the statute does not contain anything expressly prohibiting it, yet a case might arise accompanied by such circumstances, as would take it' without.both the letter and equity of the statute. All we mean to say is, that this is not a case of that character.

Motion overruled.

       NoTE by the Editor. — See also, the same principle, etc., vi. 16; xiii. 308, «rhere this decision is recognized.
      Eor other and later decisions relating to occupying claimants, see xiii. 368; xi. 35; xv. 13, 152, 285. See also xlvii. Ohio L. 56.


text:
    Martin v. Boon and McDowell.
    Notoriety of entry.
    This case was heard before Judges Hitchcock and Burnet, at the May Term, 1826, in the county of Brown.
    The following testimony was given; Ellis Palmer swore, that he was on Todd’s expedition in July, 1787.
    They crossed the Ohio at Limestone, fell onto Big Throe-mile creek, continued up it, crossing it frequently till they came to where Shepherd now lives, from thence they bore up, on the west side, to where the beginning of Minnis’ survey was made, at a walnut and two sugar trees, on the east side of the creek, and east side of the trace. Letters were made on the walnut, but does not recollect what they were; has seen the tree every year since, except in 1818 and 1819.
    Has always heard that called the beginning corner of Minnis’ survey. The corner trees stand near to where the trace crosses the creek the last time. He showed the corner to the county surveyor of Brown.
    There were about three hundred men on the expedition. The trace was plain but narrow. ' Kenton called it the old war road jrorn Limestone to old Ghillicothe. Three-mile creek empties about three miles below Limestone. It is the first creek *below Limestone, except Fishing-gut, so called, which is the first below Limestone, on the Ohio side. Has not heard it called a creek, or by any other name than Fishing-gut.
    Limestone and Kenton’s station were the nearest settlements to the survey. The trace was generally known by the name of Todd’s trace, and was plain enough to be followed.
    The mouth of Limestone creek was notorious in 1784, and has always been known by that name.
    Benjamin Beasley testified, that he settled in Manchester in 1790. Shortly after he heard of Todd’s trace running up Three-mile creek, and about the same time he heard of the tree spoken of by Palmer. He was acquainted with the beginning corner of T. Peyton’s entry, and showed it to the county surveyor of Brown.
    Manchester was settled in the year 1790, He became acquainted with the branch, on which T. Reese lives, in 1797; it was called Covert’s run.
    On the part of the defendants, it was testified by N. Beasley, that the first creek on the north side of the Ohio, below Limestone creek, is called Fishing-gut. It went by that name since 1791. According to his apprehension, Fishing-gut is of such size and description as to entitle it to the appellation of creek. It is such as surveyors have been in the habit of calling creeks.
    Fishing-gut empties into the Ohio better than two miles above Three-mile creek.
    In 1803 he became acquainted with the beginning corner of Minnis’ survey; has seen it several times, and has surveyed from it; he never saw any letters on it.
    The corner is about five mile from the nearest point on Fishing-gut creek. He does not know that he has heard the people call Fishing-gut a creek; he has generally heard it called Fishing-gut only.
    Three-mile creek was generally known by the name of Big Three-mile.

    James Pilson, being asked the name of the first creek below Limestone, answers Fishing-gut is the first that would be called a creek. It is not a large stream. Hoes not know its length ; there is a mill on it; always heard it called *Fishing-gut; believes he should call it a large branch; it empties about two miles above Big Three-mile.
    He has seen the walnut on Big Three-mile, claimed as the corner of Minnis’ entry, and has made a survey from it. He thinks he saw marks on the walnut, but can not tell what they were. Big Three-mile is the first creek on the north below Limestone, if Fishing-gut is not considered a creek.
    Peter Lee testified that he was with Col. Todd on his expedition in 1787. They crossed the river at Limestone, then a landing place of great notoriety; they crossed Three-mile creek several times. It was then, and has ever since been known by the name of Three-mile. After they crossed the creek the last time they fol. lowed a trace previously existing. The trace crossed the creek the last time near where two branches unite.
    At the time the expedition went out, there were several stations settled in Mason county, Kentucky, from which there were men on the expedition. After the expedition, the trace was called Todd’s trace, and could have been found and followed.
    Limestone, Todd’s trace, and Three-mile creek, in 1787, were places of great and general notoriety.
    The cause was argued by
    Brush, for the complainant.
    Marshall, for the defendant.
   By the Court :

The complainant claims under an entry made in May, 1797, in the name of Timothy Peyton, in the following words: “Timothy Peyton (heir) enters one thousand acres of land, on part of a military warrant, No. 1,296, on the waters of Three-mile creek, beginning at the most westwardly corner of' William Love’s entry, No. 2,712, running with his line north forty six degrees east passing his corner to the line of Thomas Perkins’ entry, 2,798, thence with his line north sixty degrees west to his corner, thence north thirty degrees east to another corner in the line of Isaac Hite’s survey, 1,759, thence north sixty degrees west so far that a line north sixty degrees west from the beginning, at right angles with the line north thirty degrees east, .will include the quantity.

*The defendants claim under an entry made in 1796, in the name of John Bartlett, and are in possession under the oldest patent. This being the case, they can not be disturbed till the complainant makes out an equitable title, clearly and satisfactorily. The merits of that title must therefore be first investigated.

It is very evident that the call for the waters of Three-mile creek, though a good descriptive call, is too vague and uncertain to ascertain the locality of the land intended to be covered by the entry; recourse must therefore be had to the other objects referred to. Love’s entry, a corner of which is called for as a beginning, calls for the lower corner of Jacob Edwards, in the line of P. Slaughters survey. Edwards calls for Slaughter’s survey, which lies opposite the mouth of Limestone, and is admitted to be special and abundantly notorious. The complainant has, therefore, succeeded in establishing his beginning corner. But this is not enough. As he calls to run from his beginning, with the line of Love’s entry, to the line of Perkins’ entry, without giving the distance, the terruination of his first line can not be known, without establishing and locating the lines of the entry by which it is to be bounded, as it is taken for granted that the lines of every entry are open and can not be ascertained without a survey.

On looking into the entry of Perkins, we find it depends altogether on the survey of H. Brooks. H. Brooks’ survey depends on other surveys called for, which surveys depend on the survey of Samuel Hopkins. Hopkins’ survey calls for the southeast corner of Oallohill Minnis’ survey, No. 460, and depends on it, consequently it is indispensably necessary, for the complainant to establish this survey of Minni's, in order to sustain his own entry.

It appears that the intermediate entries called for have been correctly surveyed, so that no difficulty arises from that source. The right of the complainant to question the defendants’ title, must therefore depend on the validity of Minnis’ survey, No. 460, as that claim must be correctly located and established before he can ascertain the termination of his first line.

*Minnis’ survey calls to lie “on the northwest of the Ohio, on the waters of Three-mile creek, beginning at a walnut marked H. and two sugar trees, on the bank of the creek, .running north thirty east four hundred poles,” etc.

It must be evident, that this survey does not contain the precision and certainty in its calls that is necessary to enable a subsequent locator to ascertain its situation. The waters of a creek and a marked tree on the bank of the creek, is too general a description. It imposes on the inquirer the necessity of examining the timber on both sides of the creek, from its mouth to its source. The length of this creek does not appear, but from circumstances it must be of considerable extent. It is called by way of distinction Big Three-mile, and the witnesses speak of several branches which empty into it. ’The valley of such a creek must be too extensive to be searched by subsequent locators, for the purpose of finding a marked tree; and without that tree, the beginning corner of the survey can not be determined.

But the complainant rather relies on the entry, which he contends has been surveyed in strict conformity with its calls, and which is in these words, “Oallohill Minnis enters one thousand acres,” etc., on the waters of the first creek emptying into the Ohio below Limestone, beginning at a walnut marked IH, by a branch, where the left wing of Colonel Robert Todd’s scout crossed in June, 1787 running north thirty east four hundred poles, etc. Although the survey appears to have been made in strict conformity with the courses and distances of the entry, yet we discover a striking difference in the calls. The entry calls for the first creek below Limestone, and for a walnut marked IHbya branch. The survey calls for Three-mile creek and for a walnut marked H, on the bank of the creek. This discrepancy was calculated to produce doubt and uncertainty. It imposed on the inquirer the task of deciding what streams were denominated creeks, in order to ascertain whether Three-mile was, or was not, the first creek. But suppose this difficulty overcome. Is he to look for a walnut market H, on the bank of the creek, or for a walnut marked I H, by a branch of the creek, and if he should find either, how is he to know whether it be the right one or not?

*But we will pass over these difficulties for the present, and examine ithe entry on which the complainant relies, without reference to the terms used in the survey.

1. It calls for the waters of the first creek emptying into the Ohio below Limestone.

2. For a walnut marked I H.

3. For the branch where the left wing of Colonel Todd’s scout crossed in 1787.

1. Ellis Palmer states that Minnis’ survey was on Big Three-mile creek, which was always said to be three miles below Limestone. On being asked if it was not the first creek, that empties into the Ohio below Limestone, he answers, “it is, except Fishing-gut, so called, which is the first below Limestone on the Ohio side.” He further states that he never knew it call by any other name than Fishing-gut.

James Pilson being asked the name of the first creek below Limestone answers, “ Fishing-gut is the first that would be called a creek.” He further states that it is not a large stream; that he does not know its length ; that there is a mill on it; that he always heard it called Fishing-gut; believes he should call it a large branch ; that it empties about two miles above Big Three-mile.

N. Beasley states that the first creek on the north side of the Ohio below Limestone creek is called Fishing-gut; that it went by that name in 1791; that according to his apprehension Fishing-gut is of such size and description as to entitle it to the appellation of a creek; that it is such as surveyors have been in the habit of calling creeks, and that it empties better than two miles above Three-mile creek.

On this evidence the complainant relies to establish the notoriety of Three-mile as the first creek below Limestone; but instead of proving that fact, it rather shows it to be thosecond creek. On such information, a subsequent locator would naturally go on to Fishing-gut in search of Minnis’ survey, the beginning corner of which is said to be at least five miles from the nearest point of that stream: The witnesses all speak of it as a creek, though they do not remember of hearing it expressly called so. General Beasley, who has been a surveyor many years, calls it a creek, and states • *that in size and description it is such a stream as surveyors have been in the habit of calling a creek. If it be urged that its appropriate name was Fishing-gut, it may be replied that the appropriate name of the other was Big Three-mile, and a person hearing their names would naturally consider them both to be the names of creeks. There is no evidence to show that Three-mile was understood to be the first creek below Limestone, or that it was known by that name among locators, or others, either when the entry in question was made, or at any time since.

Palmer states that in 1787, it was known by the name of Big Three-mile, probably to distinguish it from a smaller stream in the neighborhood, known by the same name. In the survey, it is simply called Three-mile creek, which varies both from the description in the entry, and from the real name, as proved by all the witnesses.

Here naturally arises the question, why was the watercourse designated in the entry by a description, when it had an appropriate name, notorious in the contiguous settlements? If Minnis’ entry was really on the creek claimed, it ought to have been called Big Three-mile, which was at that time its appropriate name, and by which subsequent locators might have readily found it, as that name not only identified the watercourse, but was expressive of its true situation in reference to the mouth of Limestone. By omitting the name and describing it as the first creek, subsequent locators were not merely left in doubt and uncertainty, but were liable to be misled and thrown onto Fishing-gut, which, from the weight of evidence, might fairly be considered as a creek, and the first creek below Limestone.

The next call is for a walnut marked I H.

Palmer states that at the beginning corner of Minnis’ survey there was a walnut marked, which he saw within a few minutes after the corner was made; that there were letters on it, but he does not remember what they were, though he says he saw the tree every year afterward for more than twenty years.

Benjamin Beasley settled in Manchester in 1790. Shortly after, he heard of the tree spoken of by Palmer. It does not appear that he ever saw it; he gives no description of it, *nor does he know anything of the letters by which it was distinguished in the entry of Minnis.

General Beasley states that he became acquainted with the beginning corner of Minnis’ survey in 1803; that he has seen it several times and has surveyed from it, but that he never saw any letters on it, and that it is five miles from the nearest point on Eishing-gut creek.

James Pilson has seen the walnut on Big Three-mile, claimed as the corner of Minnis’ entry, and has made a survey from it. He thinks he saw the marks on it, but can not tell what they were.

This is all the evidence relating to that point, and it certainly falls very far short of establishing the notoriety of the tree in question.

The entry calls for a walnut marked I H; the survey calls for a walnut marked H. The witnesses, except Palmer, do not know that the tree claimed by the complainant to be Minnis’ corner was ever marked with any letters, and Palmer does not know that it was marked with either of the letters named in the entry. As walnut is a common timber in the part of the country where the land lies, and particularly on watercourses, the call for a tree of that description is of but little use, unless it be distinguished by some peculiarity generally known, of which information can be obtained in the contiguous settlements, and by which it can be distinguished from other trees of the same kind. It is therefore necessary to prove that the tree in question contained the distinguishing marks described in Minnis’ entry, and that it had acquired general notoriety at the date of the complainant’s entry.

The third call is “the branch where the left wing of Col. Todd’s scout crossed in 1787.”

Palmer states that the trace was generally known by the nama of Todd’s trace, and was plain enough to be followed.

Benjamin Beasley says that shortly after he came to Manchester, in 1790, he heard of Todd’s trace running up Three-mile creek. The scout crossed at the mouth of Limestone, which was a place of general notoriety, and the trace commenced on the bank of the river opposite the mouth of that *creek. Before, and down to the time of that expedition, the trace appears to have been known by the name of the old war road.

We will concede for the present that these witnesses prove the notoriety of the trace, and proceed to inquire whether this call is in other respects sufficiently sustained.

1. The entry refers to a trace running up the first creek below Limestone. In addition to what has already been said on this part of the case, we will only remark that if Fishing-gut is to be considered the first creek, the call for a trace on a different creek can not help the entry.

2. The entry calls for an object by a branch of the creek; the survey calls for the same object on the bank of the creek.

The entry calls for the corner by a branch, where the left wing of the scout crossed, not for the trace which must have been followed by the main body of the detachment, and which crossed the creek.

From the very terms used it is apparent that the corner was not on the trace spoken of by the witnesses as being plain and notorious, but at some point on a branch where one of the wings crossed. How far the left wing marched from the trace, or at what point they left it, is uncertain, nor does it appear that there was anything to designate the route of that wing, by which a surveyor could be enabled to follow it so as to ascertain where it crossed the branch, nor does it appear at what distance, or in what direction the branch was from any given object. This circumstance seems to account for the discrepancy between the corner called for in the entry and the one from, which the survey was made. The latter is on the bank of the creek, where the trace most probably passed; the former is by a branch, where the left wing crossed; but what branch, or how far from its mouth, or from the trace, is altogether uncertain.

The survey of Minnis appears at this day to have acquired very general notoriety, but that was not the fact when Peyton’s entry was made.

On the whole, we are of the opinion that the complainant has not sustained the equitable claim set out in his bill.

-¡Tt is, therefore, unnecessary to examine the case on the part of the defendants.

Bill dismissed.