author: Hitchcock, C. J.,

text:
    DISSENTING OPINION OF CHIEF JUSTICE HITCHCOCK, IN IRWIN v. LONGWORTH AND OTHERS. William and James F. Irwin v. Nicholas Longworth et al. William F. Irwin and Harriet Irwin, his wife, v. Nicholas Longworth et al.
    In Chancery. Original bill.
    In Chancery. Cross-bill. Eeserved in Hamilton county.
    Tbe material facts, tbe arguments of counsel, and the decisions of the court, are all found in the foregoing volume, and are therefore not restated here.
   Hitchcock, C. J.,

dissenting. These cases are of some considerable importance, not so much on account of the principles involved as on account of the value of the property in controversy. They were fully argued in the last term of the Supreme Court, in Hamilton county, and have again been argued at the present term of the court in bank. Although present during both arguments, yet I was necessarily absent when the cases were disposed of. Not concurring fully in the decision- made, I deem it proper to express my opinion upon the controversy.

William Irwin, the former owner of the premises in controversy, died in 1824, leaving a widow and four children, to wit: Archibald Irwin, who is a defendant in these cases ; William Irwin and James F. Irwin, the complainants in the original bill, and Louisa, intermarried with Lewis Whiteman. He also *leffc a grandson, who died in infancy. He also left a will; and Lewis Whiteman and Thomas D. Carneal were appointed his administrators, with the will annexed.

Mrs. Whiteman died in 1832, leaving three children—Harriet, William, and Louisa. Harriet intermarried with William F. Irwin, and, with her husband, is complainant in the cross-bill.

The leading facts and circumstances of the cases, as they appear in the pleadings, exhibits, and testimony, are as follows: In 1821, William Irwin, the deceased, was the owner of three lots in the city of Cincinnati, and about one hundred acres of land on the hills adjoining the city; and, being in somewhat doubtful circumstances, was anxious to place this land and the lots in a situation that they could not be reached by execution. At this time he was in the mercantile business, in company with his son Archibald. He applied for counsel to Mr. Longworth, who was his intimate friend and legal adviser. Mr. Longworth advised that the property should be convoyed in trust, to indemnify Archibald for his liability upon claims against the firm of William Irwin & Son. He was informed that Archibald would not consent to this, as it might lead to a suspicion with respect to his integrity. Longworth himself urged Archibald to consent to such an arrangement, but he utterly refused.

At this time, William Irwin was indebted to Longworth, among other things, in the sum of between two and three thousand dollars, for money paid by Longworth to John Johnson, for Irwin, and for the payment of which to Longworth, Thomas D. Carneal was security; and Longworth was also indorser to the Bank of the United States for Ii’win upon several notes. These notes to the bank were secured by mortgage on real estate, which was supposed to be more than sufficient for their satisfaction.

Archibald Irwin not agreeing that the land and lots, before referred to, should be conveyed in trust for his indemnity, and hi3 father, William Irwin, being urgent that they should be placed beyond the reach of execution, it was at length agreed between *him and Mr. Longworth that the same should be conveyed to Thomas D. Carneal, in trust, to indemnify Longworth against his bank indorsements. Longworth drew the deed, which is absolute in its terms, the consideration expressed being five thousand dollars, although no consideration was actually paid. It was executed in August, 1821, and left with Longworth, to be delivered to Carneal. Longworth procured it to be recorded, but did not deliver it to Carneal until March 21, 1822.

At the time of delivery, Longworth had prepared a declaration of trust, according to the understanding between himself and Irwin, but this declaration Carneal refused to sign, or to receive the deed upon such terms, insisting that the debt due from Irwin to Longworth, upon which Carneal was security, should be provided for as well as the bank indorsements. Finally, the following declaration of trust was drawn up and signed by Carneal, who received the deed:

“ This may certify that, whereas, "William Irwin has deeded to me the equal, undivided moiety of a tract of land, lying east of Cincinnati, estimated to contain two hundred acres, situated in fractional section No. 5, township 3, and fractional range 2, and also the north half of lots Nos. 1, 2, and 3, in square No. 1, in that part of Cincinnati laid off by the United States. Said conveyance has been made me in trust, for the following purpose, and no other ;• Whereas, William Irwin stands indebted to Nicholas Longworth in the sum of $2,912, for so much money paid by him for said Irwin, to John Johnson; and whereas, the said Nicholas Long-worth stands as indorser for said Irwin in the Branch Bank of the United States, in Cincinnati, to a large amount; this may therefore certify that I hold the same in trust—in the first place, to secure said Nicholas Longworth in the repayment of the aforesaid sum and interest from the date; and, secondly, to indemnify and save harmless the said Nicholas Longworth as the indorser of said Irwin; and, thirdly, the overplus to the creditors, if any, of the same William Irwin; and lastly, to account to said William Irwin, his heirs, executors, and administrators, *for the remaining balance in my hands. If said Irwin should not pay the said Nicholas Longworth the aforesaid sum of money and interest yearly, within five years from this date, and pay the several notes in the Branch Bank, on which said Nicholas Longworth is indorser, or otherwise obtain his discharge from liability in the same, I am to sell the aforesaid premises at private sale or public auction, for cash or on credit, at the discretion of the said Nicholas Longworth, and apply the proceeds in the manner heretofore pointed out. First, the private debt of the said Nicholas Longworth; secondly, the notes in the Branch Bank, on which said Nicholas Longworth is indorser of said Irwin; thirdly, to pay from the surplus, if any, other debts due by said Irwin; and, lastly, to account to said William Irwin, his heirs, executors, administrators, or assigns, for the remaining balance, if any.” Dated March 16, 1822, and signed “ Thomas D. Carneal.”

William Irwin was not present at the delivery of the deed and execution of the declaration of trust. It is pretty manifest, however, that he had authorized Longworth to transact the business, -and the great effort was so to arrange it as to put the property beyond the reach of creditors. Not that William Irwin designed any actual fraud. He probably fully believed himself able to pay all his debts, provided he could have his property in a situation to dispose of it without a forced sale. And there can be no doubt that Dongworth expected to have the property reconveyed at the request of Irwin, believing that so far as the bank debts were concerned, the property mortgaged to the bank by Irwin was fully adequate to satisfy those debts.

Soon after the delivery of this deed to Carneal, Dongworth left the state upon a visit to New Jersey, and was absent for some time. During his absence, Archibald Irwin called upon Carneal, and requested of him a conveyance of the land and lots. Carneal was about to comply, when he recollected the declaration of trust executed by him to Dongworth, and went in company with Archibald to Dongworth’s house, found the writing, %nd read the same. Archibald was surprised, and so was William Irwin; but, after a little reflection, the latter remarked in substance. “It will be all right when Dongworth returns, he said it must be so fixed •as to stand in law.”

After the return of Dongworth there were several interviews between him and William Irwin, some of them of an angry character—li’win insisting that the land was only to be holden for the bank debts, which both supposed to be otherwise secure; and Dong-worth contending it was as well to secure the Johnson debt as the other. Dongworth proposed, however, that if Irwin would get him discharged from liability on the indorsements, or would secure "to him the Johnson debt, he would give up the land. This Irwin was not able to effect. At length the matter was so arranged that Dongworth agreed to give up his other claims against Irwin, and let the land remain as an indemnity on account of his indorsements. An instrument of writing was drawn by Carneal, and signed by Dongworth and Irwin, as follows:

“The real estate transferred to Thomas D. Carneal, to continue as collateral security for Nicholas Dongworth’s indemnity, as indorser of William Irwin, in the Bank of the United States, or until said Irwin releases said Dongworth from said indorsements.
“ The claim against Philips, to be assigned when judgment is obtained, to be applied to the discharge of Jabez Dongworth’s debt, due from Farmers and Mechanics’ Bank. Dongworth to give a receipt from any balance due him on the amount paid for William Irwin on account of the Farmers and Mechanics’ Bank, and release said Irwin from the debt due for moneys paid Johnson, and look to the Farmers and Mechanics’ Bank for the same.”

This paper is signed by William Irwin and Nicholas Longworth, and was placed in the hands of Carneal. It is without date. It was deposited with Carneal, and remained in his possession until the year 1839, if not afterward.

Notwithstanding the execution of the deed to Carneal, *William Irwin continued in possession of the real estate during his life, and his heirs for some years after his death. William Irwin died in 1824. Some years after his death, the taxes on the hill-land being unpaid, Longworth bid it in for the unpaid taxes; but whether he received a deed from the auditor does not appear. In 1827-28, or ’29, he entered into possession of this hill-land, and has continued in possession ever since. The town-lots still continued in possession of the Irwin heirs.

After the death of William Irwin, Archibald Irwin interposed a claim that the deed executed by his father to Carneal was, in reality, in trust for his benefit, to indemnify him for the payment of debts due from the firm of William Irwin & Son; and insisted that, notwithstanding the original declaration of trust, and the subsequent memorandum signed by William Irwin and Longworth, and deposited with Carneal, he was entitled to the land. Long-worth, on the contrary, insisted that he was entitled to be indemnified for his indorsements to the Branch Bank, according to the stipulation of the before-named memorandum. This controversy between Archibald Irwin and Longworth continued from the death of William Irwin to the year 1839. There was nothing secret about it; but it was well understood by their mutual friends.. Different propositions for compromise were made through friends, but none of them complied with. These propositions were made through friends, becausp the parties were so far estranged from each other that they held no personal intercourse.

In the meantime, the property mortgaged by William Irwin to secure the notes due from him to the Branch Bank, and which had been indorsed by Longworth, was exhausted, and Longworth was compelled to pay to the bank an amount which, with interest to the year 1839, amounted to nearly twenty thousand dollars. Archibald Irwin had also paid of the debts of William Irwin & Son an •amount’ nearly equal to twenty thousand dollars, and which, with interest, exceeded that sum.

Archibald Irwin, through his friend, N. Gr. Pendleton, in *order to compromise this difficulty, proposed that Longworth should take the hill-land, and suffer him, Archibald, to have the town-lots. For a long time Longworth refused to accept of this proposition, on the ground that the hill-land was not of sufficient value to indemnify him; but at length, in January, 1839, through the advice and persuasion of friends, who were anxious that this long existing feud should cease, concluded to comply with the proposition.

Carneal, the trustee, however, refused to convey according to this arrangement, unless with the consent and approbation of the heirs of "William Irwin. This was made known to Archibald Irwin, and ho drew up an instrument, which was signed by himself, his brothers William and James F. Irwin, and Lewis Whiteman, husband of Louisa J. Whiteman, and natural guardian of his and her children. This instrument is as follows:

“Whereas, on August 13, 1821, William Irwin, deceased, deeded to Thomas D. Carneal a certain lot of ground on the corner of Fourth and Ludlow streets, in the city of Cincinnati, and the undivided half of two hundred acres of land on the hills east of said •city, in trust for the use of Archibald Irwin, to discharge the debts of William Irwin & Son; and whereas, subsequently, the said William Irwin, deceased, did, by written memorandum, agree that the property aforesaid should be held for the security of Nicholas Long-worth, as his indorser to the Bank of the United States; now, know all men by these presents, that we, the undersigned, heira of William Irwin, deceased, do hereby authorize said Thomas D. Carneal to execute a deed to the said Archibald Irwin, for the lots aforesaid, and to the said Nicholas Longworth a deed for the land aforesaid, and do hereby express our free consent and approbation to the same, as heirs of said deceased. Witness our hands and seals at Cincinnati, January 11, 1839.
(Signed,) “ L. Whiteman, [l. s.]
“ J. F. Irwin, [l. s.]
“W. Irwin, [l. s.]
“ Witness: N. Morill. “A. Irwin, jh. s.] ”

*At the date of this instrument, William Irwin, the complainant, according to the testimony of Archibald Irwin, was thirty-throe years old, and James E. Irwin nearly thirty-one. They were men in business, and well educated.

The testimony as to the value of the hill-land at the time is somewhat conflicting; but from all the evidence, I am satisfied that its actual value could not probably have exceeded ton thousand dol-^ lars—certainly it could not have exceeded fifteen thousand. I do not believe it could have been sold in the market for the first-named sum. The city lots were probably worth from eight to twelve thousand.

Longworth had no part in procuring the before-recited order on Carneal, and there is no proof that he ever saw it until after the execution of the deeds in pursuance of it.

This instrument or order, having been delivered to Carneal, he executed the conveyances as therein directed, on January 21,1839. The conveyance to Longworth is in the ordinary form of a quitclaim deed. In executing the conveyances, he took from the grantee’s writings, of which the following are copies:

“Deceived, January 17, 1839, from Thomas D. Carneal, Esq., a deed for the lot mentioned in the within memorandum, which I acknowledge to be in full of all claims against the estate of William Irwin, deceased, for liabilities for debts of William Irwin & Son.
Archibald Irwin.”
“I have received from Thomas D. Carneal a quitclaim deed for one hundred acres of land, more or less, east of Cincinnati, which conveyances were made me by order of the heirs of William Irwin, deceased, and which I accept in full of all claims and demands against the estate. Nicholas Longworth.
“ Cincinnati, January 21,1839.”

Indorsed on the back:

The conveyance is for the undivided half of two hundred acres, more or less.
Nicholas Longworth.”

*The complainants in the original bill seek relief, against the effect of the before-recited order upon Carneal, by them signed, and to be let in to redeem the hill-land, upon the payment to Longworth of the amount which he has been compelled to pay to the Branch Bank, upon his indorsement; and they base this application upon an alleged mistake as to their rights, at the time they signed the instrument. This alleged mistake is set forth in their amended bill, filed in November, 1845, as follows:

“Your petitioners further represent, that the recital in said instrument that the said lands and tenements had been com eyed to-tho said Thomas D. Carneal, in trust for the use of Archibald Irwin, to discharge the debts of William Irwin <& Son, was utterly false in substance and in fact; that your petitioners did not know the falsehood of said recital, but the fact was well known to the said Nicholas Longworth to be, that said deed was not made for that purpose. Your petitioners pray that no effect may be given to said instrument, the same having been obtained from your petitioners upon a mistaken view of the facts, and by misrepresentation and concealment, on the part of the said Nicholas Longworth, of facts affecting your petitioners’ rights, as aforesaid; and your petitioners pray that said instrument may be declared void.”

In this charge in the bill there is no allegation, nor in any other part of the bill is there any allegation that there was any mistake or any misapprehension of the trust, so far as Longworth is concerned. It was precisely as set forth in the order upon Carneal. It is charged, it is true, that complainants had a mistaken view of the facts, in consequence of the misre|>resentation and concealment of Longworth. But where is the evidence of this misrepresentation and concealment? It is not in the case. On the contrary, the complainants have been at great pains to show that Longworth has uniformly insisted that the trust was for his benefit, and not for the benefit of Archibald Irwin. And they are conqpelled to do this in that aspect of the case in which they insist there was a mistake or misapprehension on their part.

^feut what is the position in which they place themselves-by this allegation, in connection with the prayer of their bill? They charge that they executed this instrument of writing upon the supposition that the land was conveyed to Carneal in trust for their brother Archibald, for the payment of the debts of William Irwin & Son; and that subsequently there was an agreement in-writing that Carneal should hold the land in trust, to indemnify Longworth for his indorsement to the Branch Bank. Having this impression, they were willing and consented that the hill-land should be conveyed to Longworth, and the city lots to Archibald, and directed accordingly. Now they have ascertained that there was no trust in favor of Archibald, but that it was entirely in favor of Longworth. Under these circumstances they pray, not that Archibald, who had no interest, should release to them the property which he has thus acquired through their mistake, but that Longworth, who had a greater interest than they supposed, and who relinquished a part of that interest, may be decreed to hold the land which he has acquired, subject to their right of redemption. This does not seem to me like seeking equal and exact justice, but would rather appear to be a consequence flowing from that family feud, of which we hear so much' in these cases.

I have said that the application for relief is based upon the allegation that there was a mistake or a misrepresentation in this order or memorandum, in this particular; that it is therein alleged that the lands and lots were conveyed “ in trust for the use of Archibald Irwin, to discharge the debts of William^ Irwin & Son;’’ and that the complainants had no knowledge of this mistake, but supposed the fact to have been as therein represented. True, in the original bill, direct and positive fraud is charged upon Longworth; but of this there- is no proof, and in the amended bill this charge is abandoned. In argument it is said they did not know that they had any interest in the land, or any right to redeem. Put if the land had been conveyed in trust for the purpose of paying these debts, or for the purpose of indemnifying Longworth for his indorsements, the payment *of the debts, or the payment of the notes which Longworth indorsed, by the grantor or his heirs, would have relieved the land from the incumbrance, and the trustee must have rcconveyed. Had the deed of conveyance been technically a mortgage, such payment, according to the decisions of this court, would not only have released the land from the incumbrance, but would have reinvested the grantor, or his heirs, with the legal title. Such are the principles of law, as we recognize them. Although a man may be relieved in equity, where he has acted in ignorance of facts which were important for him to know, it must be an extreme case which will justify a court in relieving him on account of his ignorance of the law. Cases may arise where courts will interfere to relieve, on account of ignorance of the law; as where young and inexperienced heirs have been defrauded of their inheritance, or have been induced to convey away their inheritance without adequate compensation. But it will not be claimed that the original complainants in these cases were either very young or very ignorant, at the time they signed the order or memorandum of January, 1839. On the contrary, one of the two was thirty-three years of age, and the other more than thirty. They were both engaged in business, and had been well educated.

Now, as to the falsity of tbo allegation that this deed to Carneal was made “ in trust for Archibald Irwin, to discharge the debts of William Irwin & Bon." This instrument was drawn up by Archibald Irwin himself, and as a witness he still swears that such was the fact. That there was any such trust that could be enforced in law or equity can not be protended, and the reason is, that there is no written memorandum to that effect. If there was any such trust, it was merely a parol trust; and it is not described in the order as anything more than a parol trust, while it is stated that, “ subsequently, the said William Irwin, deceased, did, by written memorandum, agree that the property aforesaid should be held for the security of Nicholas Longworth, as his indorser,” etc. It may bo well to inquire as to the real design of William Irwin in making this *doed to Carneal. It certainly was not for the purpose of securing Longworth on account of his indorsements. Long-worth did not require any such security, for he supposed that the property already mortgaged by Irwin to the bank was abundantly sufficient to pay the domairds and save him harmless. The deed was not made at his solicitation and request. On the contrary, the part by him taken in the transaction was in compliance with the expressed wishes of William Irwin. In my mind, there can be no doubt that the leading object was to put the property beyond the roach of creditors, and place it in a situation that he could control it, and with its avails, pay the debts of William Irwin & Son. The design was to benefit Archibald Irwin. It appears from the statements of Longworth, which are made evidence in the case by the complainants, that, upon the first application of William Irwin to him relative to the business, he advised that the property should be conveyed to Archibald, or that it should be conveyed to some other person, in trust for Archibald. This was declined, however, on the alleged ground that Archibald would not consent from motives of delicacy.

During the absence of Longworth in Now Jersey, Archibald applied to Carneal for a conveyance of the property; and this, too, with the assent of his father. Would he have done this unless he had supposed that he had an interest, or unless he had supposed the conveyance for his benefit ? Carneal seems, in the first instance, to have been willing to comply with this request, and'would have conveyed accordingly but for his recollection of the writing he had given to Longworth, and which seems to have made so little impression upon his mind that he did not recollect its contents until he examined the writing itself. Carneal undoubtedly understood that the conveyance to him was for an object different than that expressed in the declaration of trust. This declaration of trust in favor of Longworth was intended so to fix the matter that it “would stand in law.” Longworth himself states that, notwithstanding the deed and declaration of trust, it was his expectation that Irwin *would retain the property and dispose of it as he thought proper. And if there is anything in the whole case, from which it can bo inferred that Longworth acted in bad faith toward William Irwin or his family, it consists in this, that he held on to this trust property contrary to the expectation of Irwin ; and his apology for this must be that, at the time of the transaction, he declared, as he says to Irwin, that it was to be at his election whether or not to give it up. To bring all these circumstances into considei'ation, I am of opinion that, when William Irwin made the conveyance to Carneal, he did it with the intent and expectation that Archibald Irwin would receive the benefit of the land; and that the latter, when he testifies under oath that the land was conveyed in trust for his use, to pay the debts of William Irwin & Son, is substantially correct. This opinion is strengthened by the testimony of both Archibald Irwin and Thomas D. Carneal, as to the conduct and declarations of William Irwin. The real,object was the indemnity of Archibald; but that the conveyance’ might “ stand good in law,” the ostensible one was the indemnity of Longworth for his indorsements. The former rested in parol, the latter was reduced to writing.

Longworth refusing to yield his security, there was altercation between him and William Irwin in the lifetime of the latter; and after his death, the same contention was continued between Archibald and Longworth—the former contending that the trust was for him, and the latter relying upon the original declaration of trust of 1821, and the subsequent modification in writing, which bears no dato. The former could not be enforced as resting merely in parol; but the latter, being in writing, was valid.

Had the statement, in the order of January, 1839, been that this trust in favor of Archibald Irwin was in writing, then, indeed, it' would not have been in accordance with the fact. But such is not the statement. Counsel for complainant characterize this statement as being false, as being a lie. If it were so, by whom was this falsehood uttered? Not by Nicholas Longworth, but by Archibald Irwin; and because Archibald *Irwin has uttered this falsehood, they seek relief, not against him, but against Long-worth. He is excused on the ground that he really believed he was telling the truth. He did so believe, and still so believes; and I. am satisfied that he is correct in this belief, and that the only difficulty which lay in his way was, that the trust for his benefit was not reduced to writing; and the reason why it was not reduced to writing was, the apprehension that in such case the deed itself would bo held to be fraudulent as to creditors.

The complainants, insisting upon the falsity of this statement, in the order of January, 1839, say they were ignorant of this fact—■ were ignorant that they had any interest in this property; and, having ascertained their mistake, now seek relief. Having signed the order, and having done it voluntarily—certainly having done it without any influence exerted over them by Longworth, or any one acting for him—it is for them to make proof of this allegation in the pleadings. The proof made is of their respective ages at' the time of the execution of the deed to Carneal, at which time William was fifteen years of age, and James F. nearly thirteen. At the date of the order the former was thirty-three and the latter more than thirty. There is also the testimony of Archibald Lwin and Lewis Whiteman. The former states that he does not know as to their knowledge; that he never communicated with them; that he never told them that they had any interest in the land, for he did not suppose they had any, believing it in equity to belong to himself. Whiteman, who was one of the administrators of William Irwin, says that he did not suppose that they had any interest. He knew that the land had been conveyed to Carneal, and supposed the trusts to have been as sot forth in the order; that the administrators, in their accounts, took no notice of the land or the demands of Longworth and Archibald; and that he was satisfied that the property conveyed to Carneal was not sufficient in valuó to indemnify Archibald for the payment of the debts of William Irwin & Son, and to indemnify Longworth on account of his in-

dorsement to the Branch Bank. The reason why he *did not suppose these complainants had any interest was, that the properly itself was not of sufficient value to satisfy the claims, for the satisfaction of which it was pledged; and such, undoubtedly, was the opinion of the other witness.

It may be well to inquire wbat knowledge, with respect to this whole transaction, these complainants did possess, and whether that knowledge was of a character to lead them to such inquiries as would have made them acquainted with, the true state of facts. If it was, it is sufficient. An individual will be charged with notice, where the circumstances of the case are such as to put a prudent and reasonable man upon inquiry.'

These complainants knew, that this land had been deeded by their father to Carneal, and that this conveyance was accompanied with a trust. Whether they knew of the controversy between their father and Dongworth with respect to this trust, after the execution of this deed, does not positively appear in the case. But it does appear in their answer to the cross-bill that they were well acquainted with the protracted controversy between their brother Archibald and Dongworth, as to which of the two were entitled to the benefit of this trust. They must have known, or at least it is reasonable to suppose they must have known, something with -respect to the particulars of this controversy. If they did not know it before, the presentation 'of the order itself gave them the information. This, at any rate, was sufficient to put them on inquiry. In this it is recited that the deed was made to Carneal in trust “for the use of Archibald Irwin, to discharge the debts of William Irwin & Son,” and that subsequently, by a written mem-orandum, William Irwin agreed that the property .should be held to indemnify Dongworth. Of the truth of the facts herein stated, they could easily have been advised by application to Carneal, the trustee, or to Dongworth. This inquiry they did not make. The writing which was presented to them was made by their brother, ■and, so far as appears, they freely affixed their signatures and seals to it. And, in consequence of the order so drawn and executed, the hill-land was conveyed to Dongworth, and the *city lots to Archibald, and this by separate and distinct deeds of conveyance.

It is said that these complainants received no consideration for the execution of this order upon Carneal, and that therefore, under the circumstances of the case, they should not be bound by it. Whether they received any consideration or not, a sufficient consideration passed from Dongworth. Ho had been damnified by his indorsements for the elder Irwin to the amount of nearly twenty thousand dollars, and for his indemnity he had a lien not only upon the hill-land but upon the city lots. This lien upon the city lots he relinquished, and also released his entire claim u|3on the estate of William Irwin. Ordinarily, I suppose that it may be considered that it is of some benefit to a child that a large claim against its father’s estate is released. Perhaps it is not so in this case, for it is said by complainants’ counsel, that the estate of the father was insolvent, and these complainants could expect nothing from the assets.

But there is another view which may be taken of this matter. There had been a controversy between Archibald Irwin and Long-worth, with respect to this property, from the death of William Irwin, in 1824, until 1839, each claiming that the deed to Carneal was in trust for his own benefit—a controversy which was well understood by these complainants. Terms of compromise had been proposed by Archibald, which were at first rejected by Longworth, but at length assented to by him, in consequence of the earnest solicitation of friends. Still the trustee refused to convey in pursuance of this compromise, unless with the assent of the heirs of William Irwin. That assent was given by these complainants, and this was supposed to be a close of this unpleasant business. Can it be doubted that when this order was signed by these complainants, they understood the purport and object of it? That the intention was to perfect a settlement between their brother and Long-worth ? Shall they now be permitted to avoid this act—to defeat this settlement, on the pretense that they received no consideration ?

*But I am wrong, perhaps, in intimating that they wish to defeat this' settlement. They are well satisfied that it should remain, so far as Archibald is concerned—that he should retain the property conveyed to him; although the gravamen of their complaint against Longworth is, that in drawing up the order, Archibald stated a falsehood, in saying the deed to Carneal was in trust for his use, to discharge the debts of William Irwin & Son. Admitting this to be a falsehood, which I do not believe, why should the sin of Archibald bo visited upon Longworth? It might be good ground of complaint against the fox'mer, and good ground to induce a court of chancery to decree that he should relinquish his hold upon the lots conveyed to him by Carneal. But so long as there was no mistake in this order, as to the trust in favor of Long-worth—so long as on his part there has been no misrepresentation, no concealment, but a constant and uniform affirmation as to Ms rights—it does seem to me that it is not in accordance with the principles of equity and good conscience, to divest him of this property, or to subject him to any further altercation with respect to it.

Admitting that in the order referred to, there was such mistake as is alleged by these complainants, and they were ignorant of it, does it follow, as a matter of course, that they are entitled to the relief which they seek ? Courts of equity will, in a proper case, relieve against mistakes. But in order to entitle himself to relief, a complainant must not only establish the mistake, but he must show that this mistake has been prejudicial to him. Now how have these complainants been prejudiced by this alleged mistake ? There is no controversy but that Longworth had a lien upon the entire property deeded to Carncal, to indemnify him for his indorsements to the bank. About this there is no pretense of any mistake. The evidence in the case shows that the amount which he had been compelled to pay in consequence of these indorsements, together with the interest, amounted, in January, 1839, to very near twenty thousand dollars. This was a debt against the estate of William *Irwin, to 'say nothing about the debt to Archibald Irwin and debts to others. And this debt being a lien on the real estate, the heirs of William Irwin could not have the enjoyment of the estate but upon the payment of this debt. Such being the situation, Longworth, at the earnest solicitation of his friends, agreed to take for his debt, the hill-land, and relinquish his claim to the city lots. To this the complainants, as two of the heirs of William Irwin, agreed, and directed the hill-land to be conveyed to Longworth—which was done; and he discharged or released the estate of William Irwin, from all claims or demands which he had against it. The hill-land was by him received in full satisfaction of what he had been compelled to j>ay on tho bank indorsements. It was received as full indemnity, and being so received, his lien upon the city lots was entirely removed. This is the plain, common-sense nature of the transaction. The fact that these complainants assented that the city lots should bo conveyed to their brother, or the fact that they now consent that that brother shall retain them as his property, although they insist that he has no right to them whatever, can not affect Longworth or his interests.

Now, was this arrangement advantageous or prejudicial to the complainants and other heirs of William Irwin ? This must depend upon the value of the property received by Longworth, in satisfaction of his debt. As heretofore stated, the testimony as to its value in January, 1839, is somewhat conflicting; but taking the testimony altogether, I am satisfied that its value did not exceed fifteen thousand dollars, and do not believe that it could have been sold in the market for ton thousand. In fact, I very much doubt whether the entire property covered by the deed of trust, could have been sold for a sum sufficient to satisfy Longworth’s debt. If I am right in this, it follows that this arrangement—even admitting it to have been assented to by complainants, under a mistaken view of their rights—was not prejudicial to them. On the contrary, it was advantageous to them. That is, it was advantageous to them, if to pay a debt *of twenty thousand dollars with property of less value than fifteen thousand, can be said to be advantageous to the debtor.

It is said by counsel for eqmplainants that, by a decree against Longworth, no wrong is done to him, as he will, in that event, receive what is justly his due, in consequence of payments made by him on his indorsements. This is, in a certain sense, true; and it would, in the same sense, be true, that no wrong would be done to a vendee of land, by a decree against him to reconvoy, uj)on the repayment of the purchase money and interest by the vendor. As the case now stands, Longworth must he treated as a purchaser, not as a mortgagee, and like any other purchaser, is entitled to the benefit of the increased value of the property, if there has been any such increased value. That there has been, is abundantly manifest from the whole case, and hence this litigation. Had the value of the property remained as in January, Í839, this court would never have been troubled by these complainants with a bill to redeem. It is the enhanced value of the property which alone. gives importance to the cases. But in deciding the cases, this court is bound to look upon the property according to its value in 1839, not in 1844 or 1852.

It is further urged by counsel for complainants, that, under the circumstances attending the conveyances from Carneal to Long-worth and Archibald Irwin, the only legitimate effect of those conveyances was to transfer the legal estate to the grantees, subject to the same trusts which were-attached to it in the hands of Carneal himself; in other words, that there was a mere devolution of trust. At least, such is the claim so far as relates to the property conveyed to Longworth. As to that conveyed to Irwin, the complainants take no interest in it.

If this court abide by the principle, that the intention of parties in the transaction of business, so far as the same can be collected from their written or parol declarations, or by their actions, shall govern, here was certainly no devolution of trust. No such thing .entered the minds of the parties. The complainants knew that the legal title to the hill-land and city lots was in Carneal. They know that it was claimed by their brother *that Carneal held the title in trust to his use, for a particular purpose. They knew that Longworth claimed that it was holden in trust for his indemnity. They knew that, upon this subject, there had been a controversy between the two of many years’ standing. These things they certainly know, whether they were actually acquainted with the merits of this controversy or not. And when the order or memorandum of January, 1839, was presented to them for their signature, they must have known or believed that this long existing controversy had been compromised between the parties, by an agreement to divide the land. Possessing this knowledge, they signed the order, thereby directing Carneal to convey the hill-land to Longworth, and the city lots to their brother. Was it their intention that Longworth and their brother should hold these lands merely as trustees, or that they should hold them as their own absolute property ? Theje can be no doubt that the latter was the intention.

When we look to the conduct of the two grantees, we find that each one of them, upon the reception of his deed, discharged the estate of William Irwin from all claims which they had against the estate, and the claims thus discharged constituted the consideration by them paid for the land.

Under such circumstances, it seems to me, it will not do to say, here was a mere devolution of trust.

Upon the whole case, so far as the complainants in the original bill are concerned, I am not satisfied that they are entitled to any relief, but, on the contrary, am of opinion the bill should have been dismissed. And I am led to this conclusion by a variety of considerations. I am satisfied that in the conveyance of the property to Carneal, William Irwin designed to put it beyond the reach of creditors, and to place it in a situation that Archibald could have the use of it, or appropriate it to pay off the debts of William Irwin & Son; that this was well understood by the trustee and by Dongworth; but lest on this account the deed should be deemed fraudulent, the trust for the indemnity of Dongworth was inserted, but inserted with *the understanding that Dongworth might or might not, at his election, insist upon its enforcement. There was, in substance, a trust for the benefit of Archibald Irwin, but it rested in parol, and therefore could not be enforced. The recital in the written order of January, 1839, that the property was conveyed to Carneal, in trust, “ for the use of Archibald Irwin, to pay the debts,” etc., instead of being false, as alleged jn the bill and in the arguments of counsel, is substantially true. But if it was not true, and the complainants acted under a mistaken apprehension in supposing it to be true, the facts with which they were acquainted, and even the order itself, were sufficient to put them upon inquiry, and if they proceeded to act without making inquiry, they can not avoid this action upon the pretense that they acted in ignorance. If there was a mistake in the order as to the trust in favor of Archibald, there was no mistake so far as the trust in favor of Dong-worth ' is concerned. He had practiced no deception, no fraud upon these complainants; and if they have been deceived by their brother, Dongworth ought not to suffer in consequence. Admitting a mistake, and admitting that in consequence of this mistake the complainants acted under a misapprehension, still they are not entitled to relief, because this action was not prejudicial to them; as the only effect of it was to pay a debt due from their father’s estate, of nearly twenty thousand dollars, with property of less value than fifteen thousand.

It may be proper to say that a case is referred to by counsel, and is cited by the court in this case, to sustain its decision in 10 Howard’s Reports. An examination of that case will show that the party against whom relief was sought, had been guilty of the most palpable fraud, and it was on this ground relief was granted. In this case there is no pretense of any fraud on the part of Dong-worth.

As it respects the complainants in the cross-bill, they stand in a different situation from the complainants in the original bill. They were infants at the time of the execution of the order before referred to, and of the deeds to Dongworth and * Archibald Irwin. They never assented to that order, although it was signed by their father. I incline to the opinion that they are entitled to relief, unless precluded from present relief by the fact that their father had an interest in the land as tenant by the courtesy. If, as insisted by complainants’ counsel, this deed to Carneal is to be considered as an ordinary mortgage; and an equity of redemption, technically speaking, remained in William Irwin, and descended-to his heirs, then Lewis Whiteman had an interest. But I am not entirely satisfied of the soundness of the argument upon this subject. However, it will be of no use to enter into a particular examination of the matter; and I shall not do it.


source: Caselaw Access Project

author: By the Court :

license: Public Domain

text:
    Shotwell and Wife v. Sedam’s Heirs.
    Where the husband makes a devise to the widow, without stating that it is, or is not, in bar of dower, and the widow makes an agreement with the heir, reciting that it is in lieu of dower, and that she accepts certain things in satisfaction of the devise: Held, that she is barred of dower.
    This was a petition in chancery for dower, in certain premises described in the bill, situate in Hamilton county, and adjourned here for decision, by the Supreme Court sitting in that county. The facts material to the point decided, are as follows:
    The complainant, Nancy Shotwell, was the wife of Cornelius R. Sedam, deceased, and had subsequently intermarried with the complainant. The defendants were the heirs at law of Cornelius R. Sedam.
    Cornelius R. Sedam made a last will, which was duly proven and established after his death. By this will he divided the prem■ises in question, in a particular manner, among his four sons, assigning the mansion house to his son Cornelius. The will also contained this direction or bequest: “ My wife, Nancy, so long as she remains my widow, to live in the house aforesaid, and to have her support from that part of the farm hereby bequeathed to my son Cornelius, during said widowhood.” The residue of the testator’s estate was bequeathed to the widow and children, in equal proportions. The will was duly proven, but the widow did not within *six months thereafter declare her determination to take under the will, and have the declaration entered of record in court. She remained in the mansion house, and difficulties arising between her and Cornelius, they applied to the court of common pleas, to appoint persons to assess and determine the amount and manner of support to be received under the will. Persons wore appointed who made a report, upon which the following agreement was entered into between the widow and Cornelius :
    Whereas, a certain last will and testament of Cornelius R. Sedam, ■deceased, bequeathes, among other things therein named, as appears of record in the court of common pleas, of Hamilton county, State of Ohio, to Cornelius Sedam, a certain portion of land, comprising and encompassing the buildings and immediate late residence of the testator aforesaid; and whereas, it is provided in said will that Nancy Sedam, the widow of the said testator, shall derive her support during her widowhood, from the said certain portion of land and residence aforesaid; and whereas, the said Nancy, widow, having elected at the opening and proving of said will, to abide .and take by and under said will, in lieu of dower, be the said election matter of record or not; and whereas, the said court of common pleas, on the application and desire of the said Nancy Sedam and Cornelius Sedam, the parties contracting this agreement, seeing proper to appoint three disinterested persons to assess and set ■off the amount and manner of said support, agreeably to the will .aforesaid; and whereas, the said three persons having mot and reported an award as, in their judgment, conformed to the nature of their said appointment; and whereas, the said Nancy and Cornelius, parties to this agreement, understanding the said will, and ■consenting thereto, as aforesaid, and being willing and desirous to preserve mutual friendship and good will, do, therefore, agree with each other to construe the sum and substance of said award, as it particularly relates to the support of said Nancy, in the following manner, to wit: That so long as the said Nancy shall remain in widowhood, the widow of the said testator, and no longer, she may occupy the east half of the mansion house of the said testator, together with the kitchen and yard attached ^thereto; also, may occupy one stable, and the entry shed adjoining the said stable, as now standing northeast from the mansion house; also, may she occupy as a garden, a certain lot of ground adjoining said stable; also, may she have the privilege of using water from the cistern and well now belonging to said mansion house; also, may she have the privilege of raising and keeping stock as follows, of her own, and for herself, and for no person or persons else, to wit: her own pork and poultry, provided, that not more than four hogs (which may include one sow and pigs as one), nor more than twenty-four fowls (which may include and be composed of female fowls, not enumerating their unweaned young), shall at any time run at large; also, one horse kind, two cows and six sheep, for which said horse, cows, and sheep, she shall have the use of such range and pasture as the said Cornelius Sedam may be able conveniently to furnish, or as may be in common use by him for his own like stock; also, shall she have the privilege of taking fruit from the orchard, for her own use ; also, for drying, to the amount of three bushels when dried. The said Cornelius Sedam shall furnish the said Nancy, annually, at her said residence, two barrels of cider, three barrels of apples, fifteen bushels of potatoes; also, three tons of hay, one hundred and fifty bushels of corn, two barrels of flour, twenty dollars in money, and twenty dollars in groceries. She shall also have the privilege of procuring from the woodlands of said Cornelius Sedam, firewood for her house use, provided she does not extend the same to such timbers as may be fit for making rails, without the consent of the said Cornelius, provided also the said Cornelius should prefer to deliver to the said Nancy, at her said residence, her necessary firewood, in which case he may elect so to do. It is hereby further agreed, that the said Nancy shall at no time assign, make over, or any how grant to any person, or persons, any part or portion of the aforesaid privileges.
    In testimony whereof, the parties hereto have set their hands and seals, this fourteenth day of March, in the year 1825, in the presence of witnesses. Cornelius Sedam, [Seal.]
    Nancy Sedam. [Seal.]
    Witness: Stephen Fexten.

      *Not long after the execution of this agreement, the widow intermarried with Shotwell, in consequence of which the provision under it terminated. The bill was then brought for dower. The defendants resisted the claim, on the ground that the provisions' of the will being incompatible with' dower, the testator intended it as an equivalent, and the widow having accepted it, could not afterward claim dower. They also insisted that the agreement with Cornelius Sedam was an acceptance, on her part, of the stipulations of that agreement in lieu of dower, which was made upon good consideration,.and having been executed by both parties, up to the time of the marriage, could not, in equity, be avoided by either party. The opinion of the court being confined to the latter ground of defense, it is held unnecessary to report the arguments on the other.
    The case was argued by W. H. Harrison, Jr., for complainants; and Fox, Hammond, and Storer, for defendants;
    the argument of Mr. Fox, embracing a concise view of the whole. ground, it alone* is reported.
    Harrison, for complainants: ‘
    If the original claim of the widow under the will is not inconsistent with her right to dower, the complainants’ counsel contend’ that the agreement entered into, between the widow and the defendant Cornelius, does not alter tbe situation of the parties, or deprive the widow of her right to dower, if previous to that agreement she could claim dower in the premises, and the benevolence-under the will. The article of agreement sufficiently explains the object of the parties, which was nothing more than for the purpose of reducing to a certainty what specific articles the widow would receive, in lieu of' her general claim on the estate, for support and maintenance during widowhood. It was an arrangement entered into for their mutual accommodation. . It was to reduce to certainty what was general and indefinite before; and to determine the amount and manner in which the widow was to receive her support. The agreement between the parties stands in place of the will, and by it their mutual rights were to be ascertained. The counsel for the complainants further contend, that the evidence offered by *the defendants’ counsel to prove declarations made by the widow, that she received the bounty under the will, in lieu of dower, is altogether inadmissible, the evidence offered coming within the statute of frauds and perjuries. 3 Atk. 8.
    It is not pretended that any fraud has been practiced on the defendants ; they were the children of the testator, and Nancy the . widow, entitled to dower in the premises. It does not come within\ the principles settled by the courts in those cases where the widow was not present at the sale of the property, and gave no notice of claim, or on being interrogated, denied any interest in the property. The estate of dower, being a freehold estate, can not be divested by any less formality than any other freehold estate, and is as such guarded by the statutes of frauds and perjuriesi
    Fox, for defendants:
    The agreement entered into between the complainant Nancy and Cornelius Sedam is a complete bar. There is no pretense of any advantage having been taken of her in entering into the agreement, nor of any fraud or misrepresentation. And if such pretense had been urged, the'whole of the testimony shows to the contrary. The agreement, in substance is, the same which the appraisers, appointed at her request, by the court of common pleas, had previously made for her, and what alterations have been made from their report were made at her request, and for her benefit. The language of the agreement shows the object they had in entering into it, viz: “ Being willing and desirous to preserve mutual friendship and good will, do therefore agree with each other," etc.

    And there can be no doubt that had not the marriage taken place ■between Shotwell and the widow, that mutual friendship and good will would have existed between the parties.
    It is, then, a contract entered into in good faith, and had the complainant Nancy remained a widow, it would have been an advantageous agreement to her'. “ A court of equity never interferes to relieve against a contract made in good faith, where both parties are mistaken as to the value.” 1 Ohio, 450.
    Where parties enter into an agreement, in order to enable a court oí equity to interfere with it, a gross fraud must be proved. 2 Ohio, 195.
    “ The courts do not undertake to relieve parties from their acts and deeds fairly done on a full knowledge of facts, though under a mistake of the law. Every man is to be charged at his peril with a knowledge of the law. There is. no other principle which is safe and practicable in the common intercourse of mankind.” 2 Johns. Ch. 60.
    In Pullen v. Ready, 2 Atk. 588, although it was manifest that the agreement to compromise was made under an incorrect opinion as to the law on the construction of the will, yet the chancellor says, page 591: “ If parties are entering into an agreement, and the very will out of which the forfeiture arose, is lying before them and their counsel, while the drafts are preparing, the parties shall be supposed to be acquainted with the consequence of the law as to this point, and shall not be relieved under a pretense of being surprised, with such strong circumstances attending itj, again, page 592: There is nothing more mischievous than for this court to decree a forfeiture after an agreement in which, if there is any mistake, it was the mistake of all the parties to the articles, and no one of them is more under an imposition than the other. This court is so far from assisting to set up the forfeiture again, that they would rather rejoice at the agreement, because it has absolutely tied up the hands of the court from meddling in the question." In 1 Atkins, 10, the case of Carr v. Carr is cited, where it-was laid down by Lord Macclesfield, that an agreement entered, into upon a supposition of a right, or of a doubtful right, though it after comes out that the right was on the other side, shall be binding, and the right shall not prevail against the agreement of the parties, for the right must always be on one side or the other, and therefore the compromise of a doubtful right, is a sufficient foundation of an agreement.”
    Again, in Stockley v. Stockley, 1 Ves. & Beam, 23, specific performance of an agreement, the effeOt of a family compromise of doubtful rights, was decreed. The court say : “ In family arrangements this court has administered an equity which is not applied to agreements generally.”
    This same doctrine is laid down in 1 Fonb. Eq., n. v., 116, 117. “Equity will not interpose if the fact was, from its nature, doubtful, or, at the time of the agreement, equally unknown to both-parties.”
    *Now in the present case there was no idea among the parties that the widow could claim dower, and claim under the will at the same time. It was at least very doubtful, whether she could do so, and a compromise of a doubtful right, for the purpose of quieting all uneasiness in the family, ought not to be disturbed.

      In Meredith v. Nichols, 1 Marsh. (Ky.) 602, the court refused to set aside a compromise made by parties to settle a doubtful claim where all the facts were known to the parties, and where the mistake, if any existed, was in the law arising from the facts.
    The same principle is also decided in 1 Bibb, 170, 171.
    In Storrs v. Barker, 6 Johns. Ch. 170, the court decided that a party who had recommended another person to purchase an estate should not afterward be permitted to claim that estate, although it afterward appeared that the person recommending was really entitled to the property on account of a will being void in law.
    Again, the defendant contends further, that whether the widow was bound to elect or not, and whether, if bound, she has elected, or whether there has been a compromise or not, is immaterial. The agreement entered into is without doubt a collateral satisfaction, and as such an equitable bar to any claim of dower. If she was entitled to dower she has accepted of the provisions in the agreement as a satisfaction in lieu of dower.
    In Jones v. Powell, 6 Johns. Ch. 194, the widow had agreed to receive a house and lot in lieu of her dower, and had lived in and occupied it for a length of time, and Chancellor Kent decided that it was an equitable bar to the claim of dower.
    He says, “ the acceptance of a term of years, or of a sum of money, or of any other kind of collateral satisfaction, will constitute a good bar. There is no reason, why a widow, who is a free and competent moral agent, should not have the capacity to agree to any fair arrangement which convenience or prudence dictated, by which' her dower should be extinguished by an equivalent substitute in money or in land.”
    In Cox, widow, v. Jagger et al., 2 Cowen, 638, the court held that an agreement to submit the question as to the value of dower, and an award on the subject directing *the tenant to pay the widow thirty-five dollars per annum, extinguished the widow’s claim (which rested in action merely), and that whether the compensation allowed by the arbitrators was sufficient or not, could not be inquired into.
   By the Court :

It is certaintly a nice question, whether the devise in the will to the widow would not, upon being accepted by her, operato to bar her dower, in the premises devised to others, and charged with her support. But this question it is not necessary to decide, because the court are very clearly of opinion that the subsequent contract entered into between the widow and Cornelius Sedam constitutes an equitable bar to the dower claimed.

Whatever indulgence is shown to the acts of feme coverts, concerning their dower, there is no reason for treating the contracts of feme soles, where dower, in an estate of a deceased husband, is the subject of contract, in any other manner than the contracts of other competent persons. In this case, the widow, with a perfect knowledge of the whole subject, and for the purpose of adjusting all difficulties, agreed to submit her rights, under the will, to the determination of mutual friends. They made an award, and after that award was made, she entered into a written contract with the other party to carry the principle of the award into effect, upon data settled between themselves.

In this agreement, it is expressly recited that she had elected to take under the will, whether said election was matter of record or not, and that such election to take under'the will was “in lieu of dower." A respectable provision is secured to her by this agreement, besides what she takes under the general devise, being a full child’s part, and she enters into the enjoyment of it.' There is no pretense that she was ignorant of her rights, that any imposition was practiced upon her, or that the contract itself was in any respect unequal. By her marriage she lost the benefit of it, but that being her voluntary act, can not affect the obligation or extent of the original contract.

*It is urged that this agreement extends no further than to settle what she was to receive under the will, and does not touch the question, whetherthe bequest in the will was in addition to or in lieu of dower. The agreement itself refutes this argument. It asserts, expressly, that the arrangement is to be in lieu of dower. It was upon this basis that both parties to the contract proceeded. And it can not be permitted to one of them to take all that the contract gave, upon a state of facts admitted between them at the time, and then deny her own recitation of the facts and set up a claim founded upon a directly opposite position. This would be to practice a fraud upon the heir, who agreed to do certain things, in the expectation that,'by doing them, his estate was discharged of dower.

Another argument urged against this agreement being made to operate as a bar to dower, is, that dower being real estate, can ■only be transferred by the legal mode of conveyance. This is not .a tenable position. A man may divest himself of an estate which lies in action only, by doing such acts and making such agreements as operate to bar his action, though no conveyance be executed. Thus, a controversy about title to real estate may be settled by arbitrament and award; so it may by accord and satisfaction, and by other acts in pais. In the case of Smiley and wife v. Wright, 2 Ohio, 506, this court adjudged that a widow barred her recovery of dower by a parol assent that the administrator might sell the estate of her husband, discharged of her dower, upon the faith of which the purchase was made. So, in this case, the agreement, though not a conveyance of the estate, may be set up in equity to bar her recovery. Equity would enforce a specific performance were the defendants driven to seek it; and as the claimant of dower comes into equity for relief, her equitable rights are all open to be considered. We are of opinion that she is barred by the agreement, and her bill must be dismissed.


text:
    *State of Ohio v. Harvey Wellman.
    In a recognizance to appear and answer, the words, “ in case said party was legally imprisoned on said charge,” are surplusage.
    This was sci.fa. upon a recognizance adjourned here by the Supreme Court of Cuyahoga county. The defeasement was in these words:
    “ If the said John Kuln shall personally appear at the next court of common pleas, to be holden in and for said county, then and there to answer a charge of kidnapping, and to show cause why sentence should not be pronounced against him by said court, and not depart without leave, in case the said Joseph was then legally imprisoned on said charge, then the recognizance to be void,”, etc.
    The sci. fa. being served on Wellman only, he appeared, and showed for cause, “that the said Joseph Kuln, at the time of the supposed entering into said recognizance, by the said Wellman, was not legally imprisoned on said charge, in said recognizance mentioned,” and concluded with a verification. The prosecuting attorney demurred, and the court of common pleas gave judgment for the plaintiff, from which the defendant appealed.
    L. Case, for the plaintiff:
    The imprisonment was legal. The party, if at large after verdict against him, might be legally arrested. 1 Chit. Crim. 664.
    The cause shown is not sufficent. It is in the nature of a plea, and the facts which render the imprisonment illegal ought to have been set out. 1 Chit. Pl. 216, 217 ; 5 Com. Dig. 418; E. 34.
    The qualification, “in case said Joseph is legally imprisoned,” is one which the judge could not insert, and is therefore void as-against law.
   By the Court :

It is very clear that the plea is bad. The matters of fact which it was supposed rendered the imprisonment illegal, ought to have been set out, so that the court might judge of their sufficiency if demurred to, or that the proof might be applied to them if they were traversed. As it stands, *the plea alleges no fact to sustain the conclusion it asserts, that the party was not legally imprisoned ; and were we to give judgment for the defendant no person, from perusing the record, could tell upon what our judgment was grounded.

The qualification in the recognizance, that it was only to be valid in case the prisoner was legally imprisoned, can have no operative effect, and must be regarded as mere surplusage. If the party were illegally imprisoned, the law provided a means for his legal discharge, and when discharged, the recognizance could not bind him or his bail, if these terms were not contained in it. If taken under any circumstances that could legally affect its obligatory force, the defendants could avail themselves, by way of defense, of such circumstances, though no reference were made to them in the recognizance. The terms inserted can not, therefore, either vitiate the recognizance, or enlarge or restrict its obligation.

Judgment affirmed.


author: By the Court:

text:
    Hunt and others v. Yeatman.
    Judgment irregularly entered may be set aside at a subsequent term.
    This was a writ of error, to the city court of the city of Cincinnati, adjourned for decision here by the Supreme Court of Hamilton county. The case was this: The plaintiffs in error,, prosecuted a scire facias, upon a mortgage against the defendant, in the city court, to March term, 1822, and at the same term, a judgment was entered up against the defendant. At a subsequent term, upon the motion oí the defendant, the judgment entered against him was set aside, and the cause continued. In 1824, the case was put to a jury, and the plaintiffs’ evidence being overruled by the court, they suffered a nonsuit. This writ of error was brought to reverse the judgment, or order, setting aside the judgment originally given for the plaintiff.
    N. Wright, for plaintiffs in error, insisted:
    There was error in setting aside the first judgment entered for plaintiffs in the city court.
    *The judgment set aside was rendered in term time, was the act of the court, and the matter was res adjudicata, and could not be disturbed at a subsequent term. He cited 7 Cranch, 1; 3 Wheat. 591; 1 Hen. & Mun. 25; 2 Hen. & Mun. 467; 1 Ohio, 375.
    Storer, for defendant in error,
    argued that judgments, irregularly and improperly entered, might' be set aside at a subsequent term, whether entered in term time or not, and that reasons for-setting them aside, being addressed to the discretion of the court, could only be revised by the facts appearing in a bill of exceptions. He cited 2 Caine’s Cases, 45; 1 Johns. 531, note; 2 Johns. Cases, 226; 3 Johns. 256; 6 Johns. 129; 9 Johns. 256.
   By the Court:

The power to set aside a judgment, .for manifest irregularity in entering it, is exercised by all courts of justice. And this power is exercised, not merely at the term in which this judgment is. rendered, but at a subsequent term. To alter or amend a judgment, otherwise regularly entered, is a very different thing from. setting it totally aside for irregularity. The majority of the court entertain no doubt, that the city court might, in a proper case, set aside a judgment entered at a previous term. Whether they erred in the particular case before them can not be ascertained. As they acted upon matter in pais and not upon matter of record, and no bill of exceptions was taken, we can not go further than to decide upon the general power. We see no cause for reversing the judgment, and it must be affirmed.

Judge Burnet dissented.


author: *By the Court :

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    Fobes and Adams v. Judson Cantfield.
    Agreement to pay interest upon interest, after the interest has accrued, is not usurious.
    This case was adjourned from the county of Trumbull. It was a bill in chancery, to foreclose the equity of redemption in mortgaged premises, or to have a sale to raise mortgage money* The facts of the case were as follows: In the year 1801, the defendant was indebted to the complainants as security for some friends who had become bankrupt, and executed his individual notes for the amount, payable at short dates, and bearing interest at the rate of six per cent. In the year 1807, the principal and interest being unpaid, an agreement was made that the interest should be cast to that date, and that from that time the defendant should pay interest upon the aggregate amount annually. In 1812, the whole still remaining unpaid, the defendant agreed to give the mortgage in question, to secure the payment, and agreed that simple interest •.should be calculated to 1807, and compound interest annually, from that time. The amount due upon this calculation was ascertained, and several notes with the mortgage, given to secure the payment. And the question was, whether this was usurious under the laws of Connecticut, where the contract was made.
    T. D. Webb and J. C. Wright, for the complainants :
    Stated that the Connecticut statute was the same as the English -statute of Ann, and contended that the contract was not usurious. They cited Day’s Ord. on Usury, 29, 36; 1 Johns. Ch. 14; Ch. Rep. 15; 1 P. Wms. 652; 2 Salk. 449; 1 Atk. 304; 6 Johns. Ch. 313; 2. Dessaus. 275; 3 Day’s Cases, 268; 4 Id. 96; 2 Id. 483; 3 Cow. 284; 2 Johns. Ch. 182; 1 Id. 550; 2 Mass. 568; 6 Mun. 433.
    Tappan, for defendant:
    Cited the statute of^Connecticut, and exposition of it by Swift, in his Digest, vol. i, 313, maintaining that “ where a debt is due, and the creditor pressing for the money, and it is agreed, in consideration of forbearance to pay more than six per cent, interest, and a new security is taken, it is, in construction of law, a reloaning of the money, and brings the case within the statute.” He also cited 1 Swift, 716; 1 Ver. 99; 1 P. Wms. 652; 2 Salk 499; 1 Atk. 304; 6 Johns. Ch. 314; 3 Johns. Ch. 395; 5 Johns. Ch. 122.
   *By the Court :

A sum of money due for interest is as justly and fairly due as for any other consideration, and an agreement to pay interest upon it, after it is due, can not be deemed usurious. Courts have been indisposed to compute interest upon interest, where the contract between the parties was silent. But if when the interest is due and payable ,and constitutes a then subsisting debt, the debtor ask to retain it, and pay interest upon the amount at the legal rate of interest, the agreement is not usurious. It is nothing more than, an agreement to pay legal interest for'the forbearance of enforcing" the collection of a debt then actually due and demandable. Such was the case before us. In 1807, the debtor agreed that upon the-principal and interest then due, he would pay the interest annually. This agreement he failed to perform. In 1812, he acknowledged the existence and obligation of the agreement, and settled” the account according to it, and gave his notes for the amount, and the mortgage to secure the payment. If, instead of giving the-notes and mortgage, in 1812, he had when the amount was ascertained, paid it in money, he certainly could not have sustained an< action to recover back what he now calls the usury. Neither can he - now set it up to avoid the mortgage, or to escape from the pay- • ment. It was but the compliance with his agreement to pay the interest annually, and did not put the party in the same condition he would have been in, had the interest been annually paid, for* the receipt of the money might be worth more than the engagement to pay it. The contract was fair, free from injustice or oppression, and not touched by the statute. We are, therefore, of opinion, that the complainants are entitled to a decree for the whole debt claimed


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    *F. Stiver v. J. Stiver.
    Judicial error can not be corrected by bill in equity.
    This was a bill in chancery, adjourned here for decision by the Supreme Court of Montgomery county. The material facts of the cause were these: The defendant ha.d prosecuted a suit at law against the complainant, who was an executor. The suit was ■commenced within the time, when the statute provides, that, if a plaintiff sue an executor or administrator, he shall not recover costs. The case was canned by appeal to the Supreme Court, and there finally tried. The plaintiff in that case recovered, and in making up the record, a judgment was entered for damages and full costs against the defendant; the damages to be made of the goods of the testator, the costs of the proper goods of the defendant. This was certified to the court of common pleas, and execution issued for the amount. At the next term, the Supreme Court was applied to, to correct the judgment as to the costs, which was not done. A suit was then commenced on the appeal bond, by the original plaintiff at law, to subject the security to the payment of the costs in question. This bill was prosecuted to enjoin the recovery, and brought by appeal into the Supreme Court.
    Bacon, for complainant.
    Stoddard, for respondent.
   By the Court :

The single question to be decided in this case is, whether an error in rendering judgment in the Supreme Court can be corrected by the court of common pleas, or by this court on bill in equity? And we are of opinion that it can not be so corrected. If the error be a judicial one, and has been committed by a court of the last resort, no means is provided for its correction, unless it can be corrected by motion, or upon writ of error, coram nobis. It is dangerous to attribute errors, which the record imports to be judicial, to the clerk. But if the court at law, where they are made, can not rectify them without departing from established principles, that circumstance can not give jurisdiction to a court ■of chancery.

The bill must be dismissed.


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    *Daniel Gano v. Ira White and others.
    Injunction against judgment at law does not operate as a release of errors, where the order of allowance does not require it.
    This was a wrij; of error brought to reverse a judgment rendered by the conrt of common pleas of Hamilton county, in favor of the defendants, as assignees of Riddle. The defendants in error pleaded in bar to the writ of error certain proceedings in chancery, which they set out in their plea, and alleged that they operated as a release of errors, and to this plea the plaintiff in error demurred. The case was adjourned for decision here by the Supreme Court of Hamilton county. The facts of the case are as follow :
    The plaintiff in error was indebted to Riddle in a considerable sum of money, for which he had given separate notes payable at different periods. One of them had been assigned to the defendants, upon which they had obtained the judgment in question, in Juno, 1823. Upon others of the notes, Riddle had sued, and also obtained judgments in May, 1823. The plaintiff in error, then defendant at law, filed a bill in equity against Riddle and against the present defendants in error, for the purpose of obtaining an allowance, by way of set-off, of sundry claims against Riddle. An injunction was allowed until final hearing; and, upon a final hearing, the injunction was made perpetual as to the judgment obtained by Riddle, but dissolved as to the judgment obtained by the defendants in error. The order of injunction contained no condition, that the complainant should release errors at law, and no such release was made.
    Storer, for plaintiff in error,
    and in support of the demurrer, argued, that no release of errors can be applied where none is directed by the order of injunction. He cited Co. Dig., Pleader, 3, B. 19; 2 W. Blackstone, 780.
    Este, for defendants in error,
    insisted that the application in equity, the injunction, and decree, operated as a release of errors, the whole proceeding upon the complainant’s own admission, that there was a valid subsisting judgment against him.
   By the Court:

The plea must be overruled. It has never been held that a bill in equity to enjoin a judgment at law is of itself a*releaseof errors.. The execution of such a release is often, in some courts perhaps-always, made a condition of allowing an injunction. When that is done, the party proceeding upon his bill would be held to have executed the release, and precluded from reversing the judgment for error, although no release were, in fact, executed. But here-there was no such order, and neither our statute, nor any rule of court makes it necessary, that a release of errors should precede-the operation of an injunction. There is consequently no legal foundation to sustain the plea.


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    Lockwood and others v. Mills, Hoadly, and others.
    Parties receiving separate allotments in the same tract of'land are not tenants-in common, so as to claim partition of a surplus.
    This was a bill in chancery, adjourned for decision here, upon "bill and answers from the county of Huron. The object of the bill was to obtain the aid of the court to correct a partition made by the directors of the Fire-Land Company, of certain lands amongst the complainants and defendants. The case claimed by the complainants follows:

      E. Lockwood, and S. and H. St. John, with others, upon account of their claims, and John Cannon, upon account of part of his claim, had section 1, in township 1, range 24, set apart to them, and to-equalize the value there was annexed to it part of a fractional township, in'these words: “ To which section is annexed one thousand seven hundred and eighty-three acres off the east end of the-fraction of two thousand seven hundred and eighty-three, lying between the north line of township 6, in the 23d range, and San-dusky Bay, according to the mode of partition adopted by the directors.”
    John Cannon had set to him upon account of other part of his-claim, section 4, in township 1, range 24, with an annexation in these- words: “ To which section is annexed five hundred acres of land, it being part of the fraction of two thousand seven hundred and eighty-three acres, lying between the north line of township number 6, in the 23d range, and is to be taken next west of the annexation to section No. 1, in this town, leaving the remainder of said fraction, which has been already annexed to section 4, township 1, range 23.” This last-named section was set to other parties, and the annexation to it, in the book of classifications kept by the directors, ^preceded those before stated, and is in these words: “ To which section is annexed five hundred acres of land lying on the west end of the fraction of two thousand seven hundred and eighty-three acres, lying between the_ north line of township 6, in the 23d range, and Sandusky Bay, according to the mode of partition adopted by the directors.” The complainants claimed as heirs of Lockwood and the St. Johns, and by intermarriage as part of the heirs of Cannon. The defendants claimed as purchasers of the rights of the other heirs of Cannon.
    The fraction described as containing two thousand seven hundred and eighty-three acres, out of which the three annexations were made, contained, in fact, about three thousand eight hundred acres. The object of the bill was to obtain such partition as should assign to the annexation of one thousand seven hundred and eighty-three acres what was claimed to be its proportion of this surplus land.
    The cause was argued by Webb, for complainants;
    And by T. D. Parrish and J. Mills, for defendants.

      For the complainants, it was contended that the first annexation, being located on the west end of the fraction, the second on the east end, and the third and last between the other two, the complainants should have their portion of the surplus assigned immediately west of the one thousand seven hundred and eighty-three acres already set off to them. It was also contended that the apportionment being evidently made under a mistake as to the quantity in the fraction, that mistake ought to be corrected, and that a court of equity was competent to make such correction.
    For the defendants, it was contended that each of the sections in question, with its annexation, was assigned in severalty to the different owners. That Cannon, though tenant in common with Lockwood and St. Johns, in section 1, and its annexation, was not tenant in common with them of section 4, or of its annexation, and that the separate annexations were precisely located as to place and the quantity definitely specified; consequently that section 1 could not be entitled to more than the specified number of acres in the fraction described. That section 4, in the township 4, could only be entitled to five hundred and eighty acres, and that the owners of these having obtained their quantity, had no further claims.
    It was contended, also, that the persons interested in the annexation to section 4, in township 1, range 24, who were some of *them purchasers in fee in possession, and the persons interested in the annexation to section 4, in township 1, range 23, ought to be made parties before any decree could "be pronounced, because a decree for the complainant would materially affect their rights.
   By the Court :

We are clearly of opinion that there is no character of tenancy in common between the owners of section 1, township 1, range 24, .and section 4, in the same town and range, and.their respective annexations out of the fraction supposed to contain two thousand •seven hundred and eighty-three acres. These allotments were made by the directors of the company for the express purpose of vesting in the respective claimants distinct and separate rights. There is no reason that can be urged to make them tenants in •common of the annexations which would not equally apply to the principal sections allotted to each; and this has never been pretended.

The original division of the fraction, from which the annexations were made, had no reference to any joint or connected interest between those amongst whom it was divided, and the mere circumstance that their separate interests were thus brought into the same vicinity, can give no joint or common character to thdse interests. The annexation, by acres, shows that so many acres were deemed sufficient to equalize the allotments made to each, and we conceive that the actual contents of the fraction can neither enlarge nor diminish the quantity annexed in this case, because the claim of each to his separate annexation was distinct from and independent of the other. If there had been a deficiency, each party entitled to the annexation must have been satisfied in the order of his claim, and the one who in point of law was last, must have been thrown upon the company for compensation or bear the 'loss.

Independent of this, we are of opinion that those who claim the annexation to section 4, of township 1, range 23, are directly interested in the decision to be made, and ought to be parties to the cause. If the other ground were not sufficient, we should be compelled to dismiss the bill for want of proper parties.

Dili dismissed on the merits.


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    *Gwynne and Wife v. City of Cincinnati.
    Widow not entitled to dower in grounds given for market-house or other public uses.
    This was a petition in chancery, for dower in a market-house in the city of Cincinnati, and was adjourned for decision here by the Supreme Court of Hamilton county. The facts were these: John H. Piatt in his lifetime, in conjunction with other owners of the property in the same square, agreed to open a way or street through the square, upon which a market-house was to be erected. This agreement was carried into effect under an ordinance of the city council, and the market-house erected. It stood upon that part of the square given by Piatt, a space for a •street remaining open on both sides of it. Piatt, in his lifetime, conveyed the property he owned in the square, and his wife joined him in the conveyance. It did not appear that any conveyance was made of the ground covered by the market-house by either Piatt or wife. Gwynne intermarried with the widow of Piatt, and brought the bill for dower.
    Este and Stores,, for the complainants, contended:
    That the widow of Piatt was entitled to dower in the ground upon which the market-house stood. That the sale by a husband of land for a market space could not divest his wife of her dower.. That it was not a ease analogous to a road in this country, or of a. castle in England—the one being essential for public transportation,, the other for public defense. It was not a case of land condemned for public use, but a conveyance by private contract, and the estate of dower could not be extinguished. They cited 1 Co. Lit., Thomas’ ed. 370; 3 Co. Dig., Day’s ed. 495; 7 Mass. 14, 291; 15 Johns. 483; 2 Mass. 127; 1 Yeates, 167; 4 Mass. 427; 2 Johns. 357; Perkins on Con. 341; F. N. B. 142; 1 Roper, 340.
    Fox, for the defendants, contended :
    That the widow was excluded from dower in the ground iu question by the grant of the adjoining ground, to which it was an appurtenance, and by the public policy in relation to grants for public purposes. He cited Co. Dig., title Grant, E; 10 Coke, 63; Co. Lit., Thomas’ ed. 239, note 13; 8 Johns. 59; 7 Mass. 6; *6 Mass. 332, 454; 15 Johns. 447; 1 Cruise’s Dower, chap. 3, sec. 24; 6 Bin. 509; 1 Co. Lit., Thomas’ ed. 682.
   By the Court :

The street, including the ground in question, was opened and. the market-house established by an agreement with the owners of the ground, and under an ordinance of the city council of Cincinnati. The whole space became subject to the same public regulations as the grounds originally laid out in streets and for other public uses and purposes. The claim of dower must stand upon the same principles that it would stand in any case to the ground thus appropriated. The counsel for the complainants insist that it is a case to be distinguished from that of public grounds condemned for public uses, but the court are unable to' comprehend the distinction. When a town is laid out, the law requires the plat to be recorded, and by such record the streets become public highways, and the title to the grounds set apart for public uses is vested in the county for the purposes contemplated. The uses thus created are inconsistent with the exertion of any private right while the use remains; consequently all private rights must be either suspended or abrogated. Such has been the general understanding, not only in this state, but, so far as we are informed, in other states also. A claim for dower in the streets of a town, or in the public jail, court-house, or public offices, would be a novel one, and if sustained, could not be enjoyed without defeating the original purpose and present use of the grant. It can not be admitted, for the same reason that it is not admitted to a castle in England. It could yield nothing to the support of the widow, by a direct participation in the possession, without such an interference with the public right to control the whole subject as to render its enjoyment inconvenient and unsafe, if not impossible.

The bill must be dismissed.