author: Judge Lane

text:
    *Lessee of Glover’s Heirs v. William Ruffin.
    Held, that the recital in a deed made under an order for partition, of the term when the order was made, is not conclusive, hut may he explained hy proofs.
    Held, also, that in the case of an order for sale of real estate, on petition for partition, under the act of 1810, the proceeding being in rem before a court of competent jurisdiction, it must he presumed that the court made the order on a state of facts-being proved that gave jurisdiction and authorized the exercise of it.
    This cause was adjourned from the county of Hamilton. The lessors of the plaintiff claimed the premises in dispute as heirs at law of Elias Glover, deceased. The defendant claimed under a sale made by order of the court of common pleas of Hamilton county, upon a petition for partition among the heirs at law of the said Elias Glover, deceased. The validity of that sale was the matter presented for decision. At the trial, before the Supreme Court in Hamilton county, the plaintiff proved title in and possession by Elias Glover in his lifetime, and that the lessors of the plaintiff were his heirs at law. The defendant then offered in evidence proof of certain proceedings, in partition between the heirs at law of Elias Glover, before the court of common pleas of Hamilton county, resulting in a sale of the premises in question, under which the defendant deduced title to himself. The counsel for the plaintiffs objected to these proofs being received in evidence, but the court overruled the objection, and the proofs being admitted, a verdict was rendered for the defendant. The plaintiffs moved for a- new trial, on the ground of error in admitting the evidence, and this motion was reserved for decision in this court.
    After the reservation of the cause upon this point, the plaintiffs alleged the discovery of new testimony, as an additional ground for- a new trial.

      The pr*oofs offered by the defendant, which were objected to, but received, consisted of a transcript of certain proceedings of the court of common pleas of Hamilton county, of which the subjoined is a copy:

      “The State of Ohio, Hamilton county, set.

      “ To the honorable the judges of the court of common pleas, within and for the county of Hamilton;
    “ The petition of the subscriber, who is a brother and one of the heirs at' law of Elias Glover, Esq., deceased, respectfully showeth 256] that the said Elias, who died intestate and ^without issue, was at the time of his death seized in his demesne as of fee of and in the following lots and tracts of lands situated in the town of Cincinnati and county of Hamilton, that is to say, lot No. 292 and lot No. 168, as the same are numbered and known on the plan of the said town, each containing seventy-two square perches, and also a part of lot No. 284, being thirty feet in front and seventy-two and one-third feet in depth; and your petitioner further states, that the said Elias left seven brothers and sisters, some of whom are under age, all of whom are living and are the heirs at law of the said Elias, to wit: Jerusha, married to Daniel Ferris; Esther Ann, maried to Amos Griffin ; Polly, married to Samuel Shepherd; Cyrus, Arnold, Naomi, and Daniel; and your petitioner prays that the partition may be made of the premises above described, and that his proper proportion thereof may be set off and assigned to him in severalty, and your petitio ner as in duty, etc.
    “ Cyrus B. Glover.
    “ Which said recited petition being read, and no objection being made, and the court being of opinion that the said petition is reasonable, court appoint Joseph Carpenter, Thomas Dugan, and Joseph Conn as commissioners to make partition.
    “ And an order for partition accordingly issued, clothed in the following words and figures, to wit:
    “ The State of Ohio, Hamilton county, set.

      “ To Joseph Carpenter, Thomas Dugan, and Joseph Conn greeting :
    “ Whereas, a petition was presented to the court of common pleas for the county aforesaid, at April term, 1812, in the words following, to wit: (Hero follow the petition, etc., as before recited.)
    “ It is ordered that you be appointed as commissioners to divide and set off the petitioner his share as aforesaid, and that you in all things be directed and carefully observe the requisitions of the act, entitled, ‘an act for the proving and recording wills and codicils, defining the duties of executors and administrators, the appointment of guardians, and *the distribution of insolvent [257 estates,’ passed by the legislature of the State of Ohio.
    “In testimony whereof, I have hereunto set my hand and affixed the seal of said court, at Cincinnati, this 7th day of April, 1812.
    [L. B.]
    “John S. Gano, Clerk.

    ‘[Which said order was afterward duly returned with a report thereon, clothed in the following words and figures, to wit:
    “ The undersigned auditors having viewed the within mentioned lots, are of the opinion they can not be divided into seven shares.
    “ J. Carpenter,
    Thomas Dugan,
    Jos. Conn,

      "April 8,1812. Auditors.

    “Whereupon court order administrators to sell, and an order for sale issued, which is clothed in the words and figures following, to wit:

      “The State of Ohio, Hamilton county, set.

    “ To Daniel Symmes, Esq., administrator of the estate of Elias Glover, deceased:
    “Whereas, on the petition of Cyrus B. Glover, a brother and an heir of the estate of said deceased, praying that a partition might be made of the following described lots and tracts of lands, situate in the town of Cincinnati and county of Hamilton, that is to say, lot No. 292, and lot No. 168, as the same are numbered and known on the plan of the said town, each containing seventy-two square perches; and also a part of lot No. 284, being thirty feet in front,'and seventy-two and one-third feet in depth; the said petition being read, and the same being thought reasonable, it was ordered, that Joseph Carpenter, Thomas Dugan, and Joseph Conn, who were appointed commissioners, should view and make partition of the said premises as above described, upon which order so to them issued, they returned that they have viewed the above-mentioned lots, were of opinion that they could not be divided into seven shares without a material injury, and reducing the value thereof. Therefore, you are hereby directed and 258] ^ordered to proceed and sell the said or above-described property or estate at public vendue to the highest bidder; and that you in all things be directed by and carefully observe the requisitions of the act, entitled, ‘an act for the proving and recording wills and codicils; defining the duties of executors and administrators, the appointment of guardians, and the distribution of insolvent estates,’ etc., passed by the legislature of this state on Eebuary 10, 1810.
    “By order of the court.
    “ In testimony whereof, I have hereunto set my hand and affixed the seal of our said court in Cincinnati, this 10th day of April, a. d. 1812.
    [l. s.] “John S. Gano, Oik. O. O. P. S. 0.”

    And also a deed from Daniel Symmes, administrator of Elias Glover, deceased, conveying the premises in question to John Andrews, commencing with the following recital:
    “This indenture, made this 7th day of April, in the year 1814, between Daniel Symmes, administrator of the estate of Elias Glover, deceased, in pursuance of an order of the court of common pleas of the county of Hamilton and State of Ohio, at the April term, 1813, directing the said administrator to make sale of the real estate of the deceased, as by reference to the records of said court will fully appear,” etc. And a duly executed conveyance of the premises in dispute from John Andrews to the defendant.
    Morris and Drake, for a new trial:
    1. The verdict is against law.
    2. The verdict is against evidence.
    3. The court admitted illegal and improper evidence, which ought to have been rejected, to go to the jury.
    4. The plaintiffs allege, that the said certified copy of the proceedings of the court of common pleas of the term of April, 1812, sets forth and contains proceedings that do not appear to have been had, and which were not had at the said April term, 1812, which fact has been discovered by the plaintiffs since the trial; as will appear by a certified transcript of the proceedings of the said court at said term, had on said petition for partition, made by William H. Harrison, the clerk oí said court, and herewith filed.

      *On the minutes of the court of the term of April, 1812, [259 there is among the proceedings of the 7th day of April, the following entry, to wit:
    “ Petition of the heirs of Elias G-lovor, deceased, praying for partition of the real estate. Court appoint Joseph Carpenter, Thomas Dugan, and Joseph Conn, to make division and report,” etc. Immediately under the above entry, by way of interpolation, and on the same page, there is written the following words: “ Order issued April 7, 1812, returned that property could not be divided, and court ordered the administrator to sell — order for sale issued to administrator.”
    These are the only entries made on the subject at April term, 1812, and the whole of them are made on the same page and among the proceedings of April 7, 1812, of said court.
    By the certified transcript last referred to, it appears that the-petition was filed on April 7, 1812; and that the order or writ issued to the commissioners, by the clerk of said court, bears date April 7, 1812; the return made and assigned by the commissioners appointed to make partition bears date April 8, 1812. The order issued by the clerk of the court to the administrator bears date April 10,1812; so that the interpolation made as aforesaid must have been made by the clerk or some other person, without any authority from the court, after April 10., 1812. It could not have been made-on the 7th of April, the day on which it purports to have been made. The men appointed to make partition did not make their return until April 8, 1812; and until the return was so made, the-court had no power to make an order for sale. And it is equally clear from the face of the proceedings that the entry or interpolation was made after April 10, 1812, the date of the order that was issued to the administrator by the clerk to sell, inasmuch as-the entry refers to it. If we are correct in this, there is no order of April term, 1812, directing the administrator to sell by the authority of the court.
    Why it was that the dates were omitted in the certified transcript of the proceedings produced in evidence by the defendant, we can not undertake to say, but that there is a material difference between the transcript and the entries on the minutes is-certain.
    *But suppose, for the sake of argument, that the whole [260' entry was made on April 7,1812, still it does not help the matter,. as until the return of the commissioners appointed to make partition, which was not made until the 8th, the court had no power to make an order of sale, and an order so made would have been & nullity. If the entry was made after the 7th by the clerk or some other person, without the authority of the court, it would also be a nullity; give the defendant, then, either horn of the dilemma, and he can not escape from the fatal difficulty.
    There is another objection to these entries. They are vague, uncertain, and unintelligible. They contain none of the names •of the parties to it, nor any description of any real estate whatever ; no order is made for partition, nor is there any reference made to any paper or document, by which anything like certainty is given to them.
    The clerk of the court, it is true, has attempted to give something like a meaning to them, by appending thereunto a petition ■of Cyrus B. Glover against the other heirs of Elias Glover, deceased, and the two orders issued by the clerk under that petition, in the certified transcript produced, on the trial, by the defendant. But entries by themselves do not confer authority upon the administrator to sell. Can the act of the clerk give to them any additional force ? Every entry on the minutes of the court should be complete in itself; they only are evidence of the acts of the ■court, and if void of themselves, the clerk by alteration or attempt to explain them, in making his record, can not make them valid. Destroy the petition, and the two writs issued by the clerk, contained in the transcript, and who would understand the meaning •of the entries on the minutes to be an order to sell lot No. 168 ?
    In April, 1812, at the time these proceedings were had, there were two separate statutes in force in this state, on the subject of partition of real estate. The one, an act entitled an act to provide for the partition of real estates, passed February 1, 1804, which may be found in 1 Chase’s Stat. 402.
    The other, sections 37 and 38 of the statute for proving and recording wills, codicils, defining the duties of administrators and 261] executors, and appointments of guardians; and the *distribution of insolvent estates, which may be found in 1 Chase’s Stat. 63, 64, and passed February 10, 1810.
    These statutes differ materially in their provisions and requisitions. In the orders issued by the clerk, the statute of 1808 is referred to as the one under which the proceedings were had, This, however, was the mere act of the clerk, who was not •authorized to determine the question. With this exception, there is nothing that would authorize the reference of the proceedings to the act of 1810.
    By the petition, it does not appear that Cyrus B. Glover, the petitioner, was of full age, or that any one of the heirs of the ■deceased were minors; nor does it appear by the entries, that any proof, to that effect, was made to the court, or that any one of the requisites of sections 37.and 38 were complied with, so as to give the court jurisdiction under this statute.
    If the necessary facts are not disclosed by the petition and •entries, to give the court jurisdiction under the statute of 1808, the proceedings must have been under the statute of February 1, 1804, not one single provision of which, except the filing of the petition, was complied with. No notice was given to the defendants in said petition ; no appraisement was made of the premises; under this act, the order of petition should have been issued to the sheriff of the county, and not the administrator. In any ■aspect in which it is viewed, we think the proceedings of April term, 1812, can not be maintained as giving to the administrator any power to sell the lot in question.
    Again, we contend the defendant was bound to produce the order .of the court, recited and referred to in the deed of the administrator, Symmes, to Andrews, under which, by the terms of the deed, the administrator assumed to act, without which the deed was a nullity and wholly inoperative. By the recital, the administrator assumes only to act under an order of the court of common pleas of Hamilton county, made at the term of April, 1813, “ directing him to sell the real estate of the deceased.” On the face of the deed there is no pretense of any other authority.
    Can the recital in the deed of the order to sell be contradicted or explained, and a different authority be substituted for it, so as to give the deed validity? It seems to us that this would be opening the door to a most dangerous ^principle. If you [262 can contradict the power under which an officer assumes to act. and substitute another authority in its place, you may, on the same principle, explain away the plain, literal import of every deed, and give a totally different meaning and effect, from the expressed intention on its face. The administrator has no beneficial interest in the land of his intestate. He may be authorized to sell under the law, by pursuing its provisions. There is no equity attaching as against the estate, unless the provisions of the law are pursued, even though a sale is made and a full consideration paid. In this respect, his deeds stand on the same footing with sheriffs’ deeds.
    A sheriff’s deed can not be given in evidence without the production of the judgment, levy, and 'execution, under which he-assumes in and by the deed to act. They are, in the eye of the law, the basis of the title, and withoiit them the deed is a nullity. In order to apply the doctrine of misrecitals to the case under consideration, we will put a case. Land is levied on and sold under a judgment of April term, 1812, of the court of common-pleas of Hamilton county, and at the same time, the sheriff has another execution against the same defendant in favor of a different party, which he fails or is directed not to levy; he sells under the junior judgment, and makes a deed to the purchaser, which recites the junior judgment, levy, and sale. The purchaser pays his money and accepts his deed. Now, suppose that prior to such junior judgment, the execution defendant sells and conveys-to a bona fide purchaser; now, in an action of ejectment between the two purchasers, could the purchaser under the junior judgment say and prove that there was a misrecital in his deed, and show the judgment of a prior date to the sale and deed from the execution defendant; and that the execution upon the same was in the hands of the sheriff as above stated, upon which he might have-levied, but did not? We think it can not be doubted for a moment that this could not be done. • The judgment and execution are the foundation of the sheriff’s title-in the one case, and the order recited in the administrator’s deed the foundation of the other case; and the deed is the best evidence of what judgment or order the administrator and sheriff acted under in making the sale. If the judgment or execution, under which the sheriff assumes to act, is a nullity, or if there is no such judgment as the 263] one *he assumes to act under, he passes no title by his sale and deed; and we can not perceive any good reason why the same should not hold as to the administrator’s deeds. Can the fact, that there was an order in existence authorizing the administrator to sell, warrant the presumption by the court, against the express declaration in the deed, that the administrator acted under that order ?

      N. Wright, Storer, and Fox, for defendant:
    The*case presents, when all the objections raised by the plaintiff to the defendant’s title are examined, two points:
    1. Was the order properly obtained, and did the statute authorize the act of the court?
    2. Was the order properly executed?
    The order was made pursuant to the administration law of February 10, 1810,1 Chase’sStat. 683, as appears by the order itself, and while the act was in force. By the provisions of that statute, the heirs of an intestate may apply for partition, and if the application, to use the language of the section, “ is reasonable, and the •court are satisfied of the facts con tained therein,” the prayer may be granted. Sec. 37.
    It is in evidence that one of the heirs filed his petition — the names of the others were inserted, some of whom are alleged to be minors, as is also proved in this case — and the fact of the death, ■seizin, etc., of the intestate averred. It is also in proof that the court acted on the petition, appointed commissioners to make partition, who reported that the property could not be divided, and therefore assessed its value. On this return the court again acted, and ordered that the administrator proceed to sell the same -in the mode pointed out in the statute.
    On this view of the case, we take it for granted, that everything •that the law required should be proved before the court acted, must be held to have been proved, and the order or judgment of the court must stand, and can not be collaterally impeached. 3 Ohio, 357, 560, 561; 4 Ohio, 130; Thompson v. Fowler, 2 Peters, 163; Rickard v. Williams, 7 Wheat. 59; Moore v. White, 6 Johns. Ch. 387; 11 Serg. 429 ; 6 Id. 184; 14 Id. 184.
    The fact whether notice was given, or proof made, or the matter presented furnished sufficient evidence for the judgment of *the court is not now to be discussed. If, however, an in- [264 -quiry were permitted, we would insist that there is:
    1. A statement in the petition that some of the heirs are minors ; ■and if it was a material averment, it was unquestionably proved. But suppose it was not proved, the judgment is good until reversed —the court had jurisdiction, and that is sufficient for the pur■chaser.
    2. If notice to the heirs was necessary, still the same presumption of its having been given exists; but under the law of 1810, no such notice was necessary. Previous to the year 1822, the-heirs of an intestate were never made parties to a petition for the sale of land; the stature did not require it should be done in terms,, and the theory on which the lands of deceased persons were subjected to sale did not make it necessary. The seizure and condemnation of real estate, by the probate court, were assimilated to-the proceedings in courts of admiralty, or of the exchequer, and were regarded as being in rem altogether — the heir having the-right to make himself a voluntary party to the application. Scott’s Pet. v. Hancock, 13 Mass. 166; Ruliff’s case, 1 Id. 240; Repub. v. Rham, 2 S. & R. 269; McPherson v. Cunliff, 11 Id. 428,, Milnor v. Peters, 1 Peters, 269.
    But if a notice was requisite, it is obvious that no process or 'particular form of notice is required by the statute; and that, if given, it would not necessarily form any part of the record to be preserved. It would stand like any other item of proof in the cause,, to be made to the court, in such way as they might require. It is-always presumed that a court of justice has before it all the necessary proof to warrant their judgment. The verity of every decision rests upon this principle; without it, not one adjudication in a hundred could be sustained. It was long a common practice, in proceedings under the partition law, to make the proof of notice-in open court, at the time of presenting the petition. Such proof might or might not be entered of record, and might or might not be a cause of error, if omitted; but the want of it could not make the adjudication void. The court was competent to keep its own records, in.its own way, and to judge of the proof on which it. 265] made its orders; and, having judged, this *eourt, twenty-two years after, not sitting in error, can not reverse them. Jennings v. Carson, 4 Cranch, 25.
    An ordinary record of a judgment by default, aside from our-statute, shows no notice to the defendant, and the validity of such a judgment rests upon the above principle.
    In Brown v. Wood, 17 Mass. 72, a case of probate of a will, the statute expressly required notice to the heirs, and no such notice appeared among the proceedings; but the court held that the notice must be presumed, on the principle above stated.
    Even if these proceedings were not valid to bind all the heirs,, they are certainly valid to bind Cyrus B. Glover, who filed the; petition; and he or his heirs being joined in this demise, there can be no recovery.
    3. As to the points whether an appraisement was made previous to the order of the sale, and if made, whether it was conducted as the statute requires, sufficient answer is found in the principle already alluded to, “ omnia prcesumitur bene, et rite acta sunt.” If error should appear, it can not avail the plaintiff in this contingency. All that can be asked is, had the court jurisdiction of the subject matter? Should this be admitted, the mode by which the court came to their conclusion can not be questioned. If they erred in making an order of sale, without sufficient proof on which to found that order, it might, perhaps, have been a cause of reversal on error; but this court are not now sitting in error on those proceedings. Even the erroneous proceedings of a sheriff, a mere ministerial officer, will not defeat his deed, but everything will be presumed to have been regular (Allen’s Lessee v. Parish, 3 Ohio, 190); much less can the judicial errors of a competent court defeat a title made pursuant to its adjudications.
    But, in addition to this, we say that no appraisement was required in the case by law. Neither the administration law of 1810, nor the general partition law in force at the time, required any valuation with reference to the sale. The valuation provided for in • the latter of those statutes was merely to fix the price at which one of the parties might take the property, not to regulate the sale; neither of those statutes limited the sale to any particular proportion of the valuation. In the administration law no provision was made for either party to take-the property; of course no valuation was necessary, and none was provided for.
    *But was the order properly executed? It is said it [266 should have been directed to the sheriff; but the statute is express ' that it shall be the duty of the administrator to sell, and if it were otherwise it was only an error of the court, and did not affect the purchaser’s title. If so, did he perform the service ? No proof of the sale need now be required, other than what is afforded by the deed. All the stops between the granting of the order and the execution of the deed, whether they are the notices, or the mode of sale, or the compliance of the purchaser with its conditions, are to be presumed to have been pursued. In the case of Allen’s Lessee v. Parish, 3 Ohio, 191, the point, as it regards a sheriff’s sale, was fully settled. “The purchaser,” says the court, “depends upon the judgment, the levy, and the deed; whether the officer sell before or after the return, whether he makes a correct return, or no return at all to the writ, it is immaterial, provided the writ was duly issued, and the levy was made before the return.” This is but the language of the Supreme Court of the United States, in Wheaton v. Sexton, 4 Wheat. 503.
    So in New York: Jackson v. Bartlett, 8 Johns. 284; Jackson v. Robins, 15 Johns. 537; Heister v. Fortune, 2 Bin. 46.
    See also Lessee of Goforth v. Longworth, 4 Ohio, 129, where it is said public policy requires that presumptions should be made in support of sales, especially respecting matters in pais; and it is now well settled that a liberal construction is given to statutes authorizing sales of real estate by executors and administrators.
    If the order is regarded as valid, and the deed and the possession under it held to furnish evidence of the sale,.a question is still to be discussed whether the deed is sustained by the order, as the recital does not correspond with the actual date of the order relied on. We hold it to be settled law that no recital of the power of the trustee need appear in the instrument executing the trust. 3 Ohio, 326. The matter is in pais, and can be proved aliunde. Hence, if the recital is unnecessary, a reference made to a paper or a fact, which proves to be mistaken or erroneous, may be rejected as surplusage. Cleve’s case, 6 Co. 17; 4 Cruise, 44; Powell on Powers, 111, 126; Sugden on Powers, 292. This rule is adopted by the courts of equity in England, and is sustained by the decision of our own court. 2 Sch. & Lef. 404; 3 Johns. 267] *Ch. 551; 10 Ves. 257; and the rule itself is nothing more than giving effect to the intention of the parties, “ut res magis valeat quampereat.”
    The general principle being established, let us apply it to the present case. The deed refers to an order of April term, 1813, when the true date should have been April term, 1812, and it is thereupon contended that the conveyance is void.
    The statute-of 1810 mentions no form of the deed, the administrator or executor is authorized generally to convey. If the instrument contained no recital, we should then have been required to exhibit an order, and there could be no just objection; but as it is, we do not doubt the difficulty may be easily obviated.
    Thus, in Lessee of Mathers v. Thompson, 3 Ohio, 274, a variance between the levy on an execution, and the description of the land in the deed, may be explained by parol.
    In Jackson v. Streeter, 5 Cow. 629, it was held that the misrecital of the date of the judgment in the sheriff’s deed was not material, provided it appeared that there was a subsisting judgment and execution. So in Jackson v. Walker, 4 Wend. 264; Jackson v. Pratt, 10 Johns. 381; Jackson v. Davis, 18 Johns. 9; 9 Cow. 182. And this court have always acted on the same principle with regard to sheriffs’ and marshals’ sales. Hence, if the deed recites a judgment for more or less than the true amount, the court permits the party to show by parol that the levy and sale was in fact made on a judgment of a different amount. None of the sales made by the marshal of Ohio could be sustained, were this practice not allowed; for all their executions embrace the increased costs, and hence every execution recites a judgment for a different amount, although all issued in one suit. In the present case, we proved by the man who drew the deed that the administrator directed him to draw the deed, because he had sold the lot to Andrews. There is no pretense that the lot was not sold on the order of the court, nor that there was any order of the court in 1813. The order is so referred to as to make it a part of the deed; the year was immaterial, as the reference would have been perfect without it. The use of the recital of such a power is merely to show, unequivocally, that the grantor intends to act by virtue of a power, and not by virtue of an interest; of course a misrecital can not be material; the law will refer the act to *the power [268 wherever it can be made applicable. On this point, we ask leave to refer the court to the cases cited in argument for defendants in Ludlow’s Lessee v. Parks, 4 Ohio, 7, and also 4 Wend. 462, 585, relating to executions.
    We differ with counsel as to there not appearing of record sufficient facts to give the court jurisdiction. It does appear Elias Glover died seized of lot No. 168. It does appear that Cyrus B. Glover was one of his heirs. It does appear there were six other brothers, some of whom were minors. It does appear said E. Glover died intestate. Nothing else, certainly, is required to give the court jurisdiction under the act of February 10, 1810. 1 Chase Stat. 683.
    But it is said no proof of these facts. appears in the record. There is the same proof that appears in any case; the judgment of the court is evidence of it. Whether there was any minor among the heirs was a question which naturally arose in the cause, and the decision of it concluded all concerned until reversed. The adjudication upon every other fact in the cause was of the same character. Dabney v. Manning, 3 Ohio, 325; Goforth v. Longworth, 4 Id. 130.
    This case also disposes of another question raised, viz: that the order of sale should have been directed to the sheriff and not to-the administrator — it is only error. But the statute of 1810 expressly requires the order to issue to the administrator.
    It is said the proceedings are void, because the other heirs were not served with process-such we conceive is not the law in cases of partition. A suit for partition is not considered an adversary suit. It is a mere substituting of a definite portion of an estate for an indefinite interest in the whole.
    Where the statute authorizing the proceedings does not require service of process, the judgment of partition can not be declared void. 5 Bin. 1.
   Judge Lane

delivered the opinion of the court:

The leading question in this case is, do the recorded proceedings, of the court of common pleas of Hamilton county show the facts necessary to invest that court with jurisdiction to order the sale of the premises under which the defendant claims?' 269] *The plaintiffs show a complete title, unless it has been legally transferred from them in the manner alleged by the defendant.

The act of February 10, 1810, section 37, provides for partition in. cases where an intestate leaves lands and heirs part over age and part under, and authorizes the heir.of full age to petition for partition. After specifying the facts necessary to be set forth in the petition, the act proceeds: “Such court, if they are well satisfied in the proof aforesaid, and are of opinion that the petitioñ is reasonable,shall appoint,” etc. It then provides (sec. 38) that if the person appointed, report that the lands can not be divided with advantage, “ the court shall order and direct the administrator, etc., to sell such estate to the highest bidder,” etc.

In this case we have the petition for partition. It distinctly alleges that E. Glover died intestate, seized of the premises in question, and that he “ left seven brothers and sisters, some of whom are under age,” etc. The transcript of the record contains the adjudication of the court, “ which said petition being read, and no objection being made, and the court being of opinion said petition is reasonable, court appoint J. 0., etc., commissioners-to make partition.” A transcript of the order to the commissioners is given, and their return that, “ having viewed the within-mentioned lots, they are of opinion they can not be divided into seven shares.” The transcript proceeds: “ Whereupon court order administrator to sell, and an order of sale issued,” etc.

It is objected to these proceedings that it does not appear, by the petition or otherwise, that the petitioner for partition was of full age; and this, it is agreed, is indispensable to sustain the jurisdiction of the court. We do not think so. The fact that part of the heirs were of full age and that part were minors is indispensable to authorize the proceedings and sale. The petition is to be preferred by an heir of full age. This petition recites that a part of the heirs were minors. The court proceeded upon proofs, and we hold ourselves bound to presume that the proofs produced satisfied the court that the petitioner was of full age. The petition assumes this fact, and as to the authority of the court to take any order upon it, under the statute, depended upon its existence, a presumption can not be raised that the court proceeded without the requisite proof.

*In the ease of Thompson v. Tomlie, 2 Peters, 164, 165, [270 this point was adjudged in the Supreme Court of the United States. The question there arose under a law of Maryland, in this particular very analogous to the law of Ohio. It was a sale upon petition for partition, which could only be made where part of the heirs were minors and part were of full age. An exception was taken that this fact did not appear on the proceedings, and proof was adduced to show that at the time of the sale the heirs were all minors. This proof was held inadmissible, and with respect to the allegations of the petition, the court say: “ From what is stated it may reasonably be inferred that it appeared before the court that one of the heirs was of full age. The petition presented to the court for the appointment of commissioners, and which was the commencement of the proceedings, in setting out the parties interested, states that Robert Tomlie died intestate, leaving the following children and heirs at law, viz: Margaret, since intermarried with Francis Beveridge, and Alice Tomlie and James Tomlie, which said Alice and James are infants under the age of twenty-one years. Why specially allege that these two were minors, if Margaret was also a minor? Every reasonable intendment is to be made in favor of the proceedings, and their allegation in the partition will fairly admit of the conclusion that the petitioners intended to assert that Alice and James only were under age. The age of the heirs was, at all events, a matter of fact upon which the court was to judge, and the law nowhere requires the court to enter on the record the evidence upon which they decided that fact. And how can we now say but that the court had satisfactory evidence before them that one of the heirs was of full age ?"

It appears to us that this reasoning applies strongly to the case before us. We therefore adopt it; and our conclusion consequently is, that a case of jurisdiction, in the court of common pleas, to order the sale of the real estate in question, is sufficiently shown. That point being established, it is well settled that errors ■or irregularities in the proceedings do not vitiate the final decision, and that if such exist, they can not be noticed collaterally.

It is objected that no notice is shown to have been given to the coparceners. The law does not require such notice to be given. It seems to have been the policy of the law to regard a decedent’s 271] estate as subj ect to the court of ^probate, as well as for distribution among heirs, for the payment of debts. Judicial proceedings, in such cases, were in rem,*and intended to bind all parties in interest. 13 Mass. 166; 17 Id. 32; 11 Serg. & R. 428.

It is alleged, as an objection to the validity of the sale, that no appraisement, such as the law required, was made. The act of February 10, 1810, under which the sale was made, does not require an. appraisement. But if such were the requisitions, the appraisement would be a matter in pais, the proof of which we would certainly presume. Indeed, upon the authority of the case ■of Thompson v. Tomlie, before cited, we should eyen refuse to receive evidence to establish the contrary.

The administrator’s deed recites a sale made under an order of court of April, 1813; and the plaintiffs insist that this recital precludes the defendant from resorting to the order of 1812, to support his deed. We do not think so. The order clothed the administrator with power to sell. The deed is evidence of the sale under the power; but it was not necessary that it should be recited in it. A misrecital, when it is not an essential part of the conveyance, may be corrected. And, in this case, a majority of the court are satisfied that the proofs show that the sale was, in fact, made under the order of April, 1812.

A suggestion of newly discovered evidence is made, and a new trial asked upon that ground. In actions of ejectment, where the verdict is for the defendant, it is rarely set aside for newly discovered testimony. 5 Ohio, 248. No rights are affected, and the plaintiff can bring a new suit and prosecute it with as little prejudice, as it could be retried if a new trial were granted.

Judgment on the verdict.


source: Caselaw Access Project

author: Wood, J.,

license: Public Domain

text:
    William Johns v. Lemuel Johns.
    Held, that the assignment of insolvent’s choses in action vests the legal interest in the commissioner, and that he alone can maintain an action.
    This cause was reserved for decision here, in Hamilton county. It was an action of debt upon simple contract; the plea, nil debet. The point presented for decision arose on the ^proofs. Pre- [272. vious to the taking effect of the insolvent act of 1831, and subsequent to the period assigned for the making of the alleged contract, upon which the declaration was founded, the plaintiff had surrendered his property to the commissioner of insolvents, in conformity with the then existing law, and had been discharged from custody. At the trial, upon proof of these facts, the court ruled that the plaintiff could not sustain the action, whereupon he became nonsuit. A motion was then made to set aside the nonsuit, on the ground of error in the court directing it. The decision of this motion was reserved.
    Fox, for the plaintiff.
    Strait, for the defendant.
    Morris, on the same side.
   Wood, J.,

delivered the opinion of the court:

A single question is presented for our consideration. It is this r Do the choses in action of an insolvent debtor, who made his assignment under the act for the relief of insolvent debtors of February, 1824, pass, and the legal interest in them vest in the commissioner of insolvents? If they do so pass the decision on the circuit was correct; if not, a new trial must be granted.

Section 2 of the act of 1824 provides, that “ no suit pending at the time of the assignment of such insolvent’s estate to said commissioner shall abate or be discontiued by reason of such assignment, but the same shall proceed,” etc. This express provision, that a suit pending shall not abate, evinces the distinct understanding of the legislature that the whole legal interest of the insolvent was transferred by the assignment to the commissioner, and, consequently, a suit pending would abate unless provision was made to the contrary. We do not doubt that this is the correct construction of that statute.

In the same section of the act this further provision is made: But any new suit, which may be commenced, shall be brought in the name of said commissioner or in the name of the insolvent, as the case may require.” It is difficult to ascertain what case is 273] contemplated or embraced by this alternative ^provision. It can not apply to choses in action not negotiable, because negotiability is matter of positive legislative provision, and it is competent for the legislature to make any contract assignable and vest the legal interest, with a right to sue in his own name, in the assignee.

The insolvent’s assignment is made under the law, and the same law prescribes what interest and what rights it shall confer.

Section 3 of the act provides, that any person desirous of taking the benefit of this act shall make and deliver to said commissioner an accurate schedule of all debts by him owing, to whom due, etc., and also the debts and demands to him due or in any manner accruing, and of all property, etc., by him owned ; and shall convey, transfer, and assign to said commissioner in trust, for the benefit of his creditors by deed or instrument of writing, all debts and demands to him due or to become due in any manner accruing, and that no form of words shall be necessary for said couveyance.

By the transfer, conveyance, and assignment hero spoken of, we understand a parting with the legal interest of the insolvent, and vesting it in the commissioner. It was perfectly competent for the legislature to provide in what manner it should be done. They have said it should be by deed, and that deed easts on the commissioner all the legal, as well as equitable rights of the insolvent. It is an ordinary principle that the action must be brought in the name of the party in whom the legal interest is vested, or whose legal right has been affected. That person is the commissioner, and the absolute control that was intended to be given him over the insolvent’s estate is widened by another provision authorizing him, by arbitration or otherwise, to adjust all controversies that may arise in the settlement of the insolvent’s estate, and to prosecute any suit in law or equity, which, to him, may appear necessary. There was no error in the opinion of the court; the nonsuit was properly taken, and the motion to set aside is overruled.


text:
    *Nathaniel Torbet v. Goldsmith Coffin.
    A mistake of the clerk in entering the judgment of this court, at the December term, 1833, putting the name of the defendant in error for that of the plaintiff, ordered to be amended.
   This was a motion to amend a clerical error, in entering the judgment of the court in bank, at the December term, 1833. Nathaniel Torbet was plaintiff in error, and Goldsmith Coffin defendant in error. The judgment was reversed, but in the entry on the minutes, the names of the parties were reversed; that of Coffin, the defendant in error, being written as the party to be restored, instead of Torbet, the plaintiff in error, in whose favor judgment was given. In behalf of Torbet, it was moved that the clerk of this court so amend the entry as to make it conform to the judgment. It was so ordered, and the following entry directed to be made:

It being made to appear, to the satisfaction of the court, that in the entry of the decision of this case, at the last term, a clerical error has intervened in this, that in the judgment of restitution the name of Coffin is written in the place of Torbet, therefore it is ordered that the said error be corrected, and the proper entry be now made as of the last term. Ordered that the entry, amended as aforesaid, be certified to the Supreme Court of Fayette county.”


author: Held by the Court :

text:
    John Pickens, alias John K. Pickens, v. The State of Ohio.
    Where an indictment alleges that an affidavit was made, purporting to have been made by John K. Pickens, and the affidavit produced is actually made by John Pickens, no reference being had to John K. Pickens, the variance is fatal. Judgment reversed, and order to discharge prisoner.
    This was a writ of error certified here for decision from the ■county of Meigs. The plaintiff in error was indicted for perjury. The offense was alleged to have been committed in making affidavit to a plea of non est factum, in a trial before a justice of the peace, in which the plaintiff in error was defendant. In the suit before the justice, a note was produced in the following terms :
    “Eor value received, I promise to pay unto Henry Wheelbager, 275] *or crder, the amount of four dollars and fifty cents without defalcation for value received of him, as witness my hand and seal, this March 17, a. d. 1834.
    His
    John -f K. Piokens.
    The affidavit was in these words:
    Personally came before me, William Crooks, a justice of the peace in and for Sutton township, John Pickens, and made oath that he never did make, sign, or place his signature or mark to a certain note which he is. called this day to answer to; said note appears to have been been made payable to Henry Wheelbager or order, bearing date March 17, 1834, amount four dollars and fifty cents.
    His
    John -j- Piokens.
    The indictment charged the accused by the name of John K. Pickens, alias John Pickens. In describing the note in question, the following terms were used: “anote or writing obligatory purporting to have been executed by the said John K. Pickens, alias John Pickens, for the payment,” etc.
    In describing the affidavit in support of the plea of non est factum, the indictment set forth that “ the said John K. Pickens alias John Pickens, made a certain paper writing purporting to be an affidavit in writing of him, the said John K. Pickens, alias John Pickens,” etc.

      At the trial in the court of common pleas, the counsel for the accused, objected to the admission in evidence of the note on account of a variance from the note described in the indictment; the note presented being subscribed John K. Pickens only, no alias, ovother name, as John Pickens, appearing to it. The objection was overruled, and the note admitted in evidence. The counsel for the accused objected also to the admission in evidence of the affidavit, it being subscribed and purporting to be made by John Pick-ens only, no alias John K. Pickens appearing tobe connected with it. This objection was also overruled, and the affidavit admitted in evidence. The counsel for the accused excepted to these opinions of the court of eommou pleas, and the accused being convicted, this writ of error was brought, and the final execution of the sentence suspended.
    *Brazee, for plaintiff in error:
    Tbe first question for the consideration of the court, upon this record, is, were those papers properly admitted as evidence to the jury ? That part of the indictment which sets out the note and affidavit,sets them out as “purporting” to be made by “John K. Pickens, alias John Pickens.” The note appears to have been signed “ John K. Pickens ” only, and the affidavit appears to be signed “John Pickens” and in its body it declares that it was made by John Pickens. The word “purport” has a technical meaning, as fixed and settled as any term known to the law. In 2 East’s Crown Law, 980, it is said that, “ in all eases the word-, purport imports what appears on the face of the instrument; for want of attending to which many indictments have been set aside.” In 2 Russell, 1485, it is also defined, “ to import what appears on the face of the instrument.’ ’ In the same book, page 364, it is. declared to be the apparent and not the legal import. In Jones’ case, the instrument was laid in some of the counts to be & paper-writing purporting to be a bank note, it was holden, as it did not. purport on the face of it to be a bank note, the counts could not. be supported. 2 Russell, 363 ; 2 East, 883.
    In Reading’s case, the indictment charged that the bill of exchange, the, subject of the forgery, purported to be directed to one-John King, by the name and description of John Ring; the bill-, was in faet directed to John Ring; the prisoner being convicted; the twelve judges held that judgment ought to be arrested, on th«i ground that the bill did not in, fact, purport to be directed to one John King, as stated in the indictment. Buller, Justice, in delivering the opinion of the judges in that case, said, “it is clear that where an instrument is to be set forth the description, that it purports a particular fact, necessarily means that what is stated as the purport of the instrument appears on the face of the instrument itself.” 2 Russell, 363; 2 East, 981. In the Commonwealth v. Kearses, 1 Virginia Cases, 109, the indictment alleged that a forged certificate purported to be signed by Bowling Starke, and the signature was B. Starke; the variance was held to be fatal. Does the note purport, or appear upon its face to be signed by “John K. Pickens, alias John Pickens?” Certaintly not, and if the “ alias John Pickens” be regarded by the court as descriptive 277] of the note, the ^variance must be fatal. But should the court incline to the opinion, that John K. Pickens ” only is descriptive of the note, and that the “ alias John Pickens ” is descriptive of the person of the defendant, the note may have been properly admitted as evidence. But the affidavit can not be disposed of in the same way; if the “alias John Pickens,” in that part of the indictment descriptive of the note, be regarded by the court as descriptive of the person of the defendant, and not of the ¡note, for the same reason, the court, to be consistent, must hold :tbat the “ alias John Pickens,” in that part of the indictment •which describes the affidavit, is also descriptive of the person of sthe -defendant, and not of the affidavit. And then it will appear •/that the court below, under the allegation in the indictment that ithe affidavit purported to have been made and executed by “ John K. Pickens,” adinitted in evidence an affidavit, which in the body, ¡as well as by the signature, purported and appeared upon its face ito have been executed by “ John Pickens.” It appears to me ■most clearly that the affidavit admitted in evidence is not the af:fidavit set out in the indictment, and that a paper signed “ John Pickens” does not purport or appear upon its face to have been signed by “John K. Pickens.” The proposition needs only to be slated in its simplest form to elucidate the error.
    H. H. Hunter, contra:
    The first point made is that the note and affidavit set out in the bill of exceptions were improperly admitted in evidence to the jury. AndjjM'Sij.as to ¡the note; that it set out in the indictment as “purporting” to have been executed by the said “John IL Pickens, alias John Pickens;” whereas the note offered in evidence purports to be signed or executed John his M mark IL Pickens, which is variant from the indictment. This part of the indictment is inartificially drawn, but is substantially good. The difficulty complained of by the plaintiff in error does not in fact exist, though apparently it does. It is to be observed that the defendant is named and described in the indictment, by the name of John K. Pickens, alias John Pickens. And the averment in the indictment is substantially that the note purported to be executed by the defendant; not that the name signed to the note was John IL Pickens, 'alias John Pickens. The cases cited by counsel for ^plaintiff in error to show the legal effect of the word “ pur- [278 port” are doubtless good law, but as we think- inapplicable to the case. As to the affidavit, we think clearly the same answer may be made. This averment of the indictment is, that the said John IL Pickens, alias John Pickens, made a certain paper writing purporting to be an affidavit of him the said John IL Pickens, alias John Pickens. Clearly this averment does not undertake to set out the name attached to the affidavit, but merely to aver (as in the case of the note) that the affidavit purported to be executed by the defendant., who, in the indictment, is presented by the name of John K. Pickens alias, John Pickens. The question recurs, do the papers set out in the bill of exceptions purport to be executed by the defendant ? For that is what we claim the averments of the indictment to be in substance.
    As before stated, the -name signed to the note is John his M mark IL Pickens, and the affidavit is signed John Pickens. The defendant is described in the indictment by both these names, or rather as being known by either of them. In fact, then, these papers do purport to be signed by the defendant; one under each of the names by which he is known and described in the indictment.
   Held by the Court :

That, in this case, the indictment, by reciting that the note was executed by John IL Pickens, alias John Pickens, describes not the note itself) but the person executing it. Consequently there was no variance between the note described and the note presented in evidence. There was, therefore, no error in admitting it.

Held, further, that the indictment, in describing the affidavit, reciting that “ the said John IL Pickens, alias John Pickens, made a certain paper writing purporting tobe an affidavit in writing of him, the said John IL Pickens, alias John Pickens,” in fact describes a paper subscribed “ John K. Pickens, alias John Pickens.” The paper produced in evidence, being subscribed John Pickens only, was variant from that described in the indictment, and, therefore, inadmissible as evidence.

Judgment reversed, and the accused ordered to be discharged.


author: Judge Lane Judge Wright

text:
    *G. Ring and James Rice v. Samuel Foster.

      A writing in these words, “Three months after date we promise to pay Samuel Foster, or order, one hundred and forty-three dollars and twenty-two cents, provided the said Samuel Foster delivers the crop of tobacco raised by him and Trockmiller, then said Foster is to have one-fourth of the sum in hand, and, in addition, three' dollars and fifty cents per hundred for that part yet to be delivered, payable one-fourth in hand, and the balance in one hundred 'and twenty days, April 28, 1827,” is a promissory note within'the statute, dispensing with proof in certain cases. In an action upon such a writing, executed by four, and process served on two only, it is not necessary to prove the execution by the other two.
    This was a writ of error adjourned here for decision from the county of Fairfield. The original action was founded upon a writing in the following words:
    “Three months after date we promise to pay Samuel Foster one hundred and forty-three dollars and twenty-two cents, provided said Foster delivers the crop of tobacco raised by him and Trockmiller; then said Foster is to have one-fourth of the above in hand, and in addition thereunto three dollars and fifty cents for the part undelivered, payable one-fourth in hand, the balance in one hundred and twenty days.
    “ Thos. Cushing,
    Ring & Rice,
    J. H. Harris, by Th. H. Gushing."

    The original writ was issued against T. Cushing, Ring & Rice, and J. H. Harris, but was served on Ring & Rice only.

      The declaration contains three counts. The first was as upon a note in writing for the payment of one hundred and forty-three dollars and twenty-two cents, in the usual form, but reciting the writing in all its terms. The second count recited the same written contract as the first, and proceeded to aver the delivery of the crop of tobacco raised by the plaintiff and Trockmiller, amounting to five thousand pounds, and demanded, besides the one hundred and forty-three dollars and twenty-two cents, three dollars and fifty cents per hundred for the five thousand pounds of tobacco. The third was a general count for tobacco and other articles sold and delivered.
    The general issue was pleaded, but no affidavit annexed denying the execution of the writing. At the trial the defendants objected to the admission of the writing declared on in evidence without proof of its execution, but the court overruled the objection. A bill of exceptions was taken, and the *verdict [280 and judgment being for the plaintiff, this writ of error was brought.
    H. H. Hunter, for the plaintiff in error,
    contended that the writing was not legally admissible in evidence without proof. He argued that it was not a note within the statute, and that if it were the statute did not apply to the makers not served with process nor otherwise before the court; that the plaintiff, to recover, must prove the execution of the writing by all the subscribers to it, as he had named them all in his process; that if the plea of .Ring & Rice without affidavit was an admission as to them, it was no admission as to Cushing and Harris, and proof of their execution must also be made. He cited Palmer v. Hogson, 1 Esp. N. P. 135; Chitty on Bills, 381.
    Irvin and Stanbery,
    on the other side, cited Chitty on Bills, 323; Duncan v. Campbell, 1 Ohio, 115.
   Judge Lane

delivered the opinion of the court:

Two points are taken by the plaintiff in error. This writing is not a promissory note; if it is, its production is no proof of its execution against Cushing and Hunter, and without such proof the defendants can not be charged. The phraseology of the statute seems to preclude the latter of these objections. It provides that a “plea of non assumpsit offered by a person to be charged as maker of a note, it shall not be necessary for the plaintiff to prove the making of the note on which, such suit is brought, unless the party offering the plea shall make affidavit of its truth.” This statute is essentially remedial, designed where a deed or note is set forth in the declaration to impose upon the plaintiff the necessity of proving it in those cases only in which the execution of the instrument counted upon shall be denied upon oath, and no sound rule of interpretation justifies a restrictive construction. It is “ the note on which the suit is brought,” which shall be deemed duly executed, in the absence of the affidavit. If, then, the writing declared upon be a promissory note, it was properly offered to the jury.

And we do not assent to the limited meaning which the plaintiff’s counsel would attach to the phrase, “ promissory note.” It 281] need not be negotiable. Any absolute promise to *pay a certain sum of money at a specified time, if it constitute the entire contract, may be taken to be a promissory note. Was this engagement of that description ?

It was an absolute promise to pay one hundred and forty-three dollars and twenty-two cents in three months; but if a contingency happened, which depended on the promise, one-fourth the amount became payable sooner. In addition to this the maker promised to pay three dollars and fifty cents for tobacco, if delivered. The first part is a promissory note merely; does the additional terms change this character?

A majority of the court believe not. It will be observed that it is not per se a contract, binding Foster to the delivery of the tobacco; it was a promise to pay, if delivered. The other contract was complete without it; the additional terms acquired effect at the option of Foster; he held their absolute promise to pay a specified sum in three months, which constituted the entire contract, if he took no steps to extend the liability of his debtors beyond. His first count is framed upon this promise; either writing is in every sense a promissory note, and as such rendered evidence to support it, by the statute, without proof of its execution.

It is further urged that the first and second counts are bad, from omitting to set forth a consideration. If the writing be a promissory note, none is necessary to be averred under our decisions. 1 Ohio, 118. If the consideration to pay for the tobacco be the delivery, the delivery is shown in the second count. The alleged misjoinder of parties does not exist in the pleading.

Judgment is affirmed.

Judge Wright

dissented:

I understand a promissory note to be a written promise by one to another, to pay a certain sum at all events, in a specified time.

The writing under consideration is in these words:

“ Three months after date we promise to pay Samuel Foster, or order, one hundred and forty-three dolllars and twenty-two cents; provided Samuel Foster delivers the crop of tobacco raised by him and Trockmiller, then said Foster is to have one-fourth of the above in hand, and, in addition, three dollars and fifty cents per hundred for that part yet to be ^delivered, payable one- [282 fourth in hand, and- the balance in one hundred and twenty days. April 28, 1827.
“Thomas H. Cushing,
Ring & Rice,
J. H. Harris, per.
T. H. Cushing

By this agreement, other things are embraced than the mere payment of a certain sum at a stipulated'time — the purchase of an entire crop of tobacco, at a certain rate per hundred, is embraced within the legal import of the instrument; it looks to the purchase and delivery of this crop by a third party, Trockmiller, and the price to be jiaid. Upon the completion of this stipulation, depends what sums shall be paid down, or in ninety or one hundred and twenty days. If the crop is delivered, then one hundred and twenty-one dollars and sixty-one cents, and one-fourth of the crop at three dollars and fifty cents per hundred, is to be paid in hand, and one hundred and twenty-one dollars and sixty-one cents in ninety days, and three-quarters of the crop of tobacco in one hundred and twenty days. I am unable to see, how the first member of this article can be disconnected from the residue, so as to make it a promissory note. Indeed, the plaintiff declares upon the article as one for the tobacco in one count. Can the instrument change its character, at the will of the party holding it, and be on the first count a note, and on the second an article, as he may offer it? It must, in law, be either a note or an article — it can not be both.

I think it not a promissory note; and, therefore, not within the statute dispensing with proof of execution.


author: Judge Wright

text:
    E. Webb v. E. Stevenson.
    Contract to convey as soon as purchase money is paid is mutual, and calls for simultaneous performance. Party that would sue upon such a contract-must perform or tender performance of his own part, before a causo of action accrues.
    This cause was adjourned from the county of Pickaway. The plaintiff declares in assumpsit upon an agreement entered into between the parties, by which the plaintiff agreed to sell to the defendant lot 17 in Circleville, and to convey the same to him in 283] fee, as soon as the purchase money should be paid, and ^also to procure a release of a mortgage upon the lot held by a third person, or if he did not, that the defendant should be at liberty to pay off the mortgage, and deduct the amount from the purchase money of the lot. By which agreement the defendant undertook to pay the plaintiff the sum of thirty-two dollars and seventy-five cents for the lot, on April 1, 1834. The plaintiff avers that he conveyed the lot to the defendant by a good deed, executed by himself and wife, and was, on said 1st of April, and still is, ready and willing to deliver the same to the defendant, on his paying the purchase money. He assigns for breach the non-payment of the purchase money.
    To this the defendant demurs :
    1. Because it is not averred that notice was given to the defendant of the execution of the deed, or any offer or tender to deliver it to the defendant.
    2. Because there is no averment that the plaintiff had procured a release of the mortgage or had a clear title to convey.
    J. L. Green, for defendant:
    A tender of the deed, or an offer to deliver it, and an averment of such ten der or offer, is indispensable to enable the plaintiff to recover. The form in which the averment is made does not enable the plaintiff to get round the difficulty. The averment is that “ the plaintiff did convey, etc., and was ready and willing to deliver,” etc. The operative words, the soul of the averment, is wanting. What boots it if the deed was executed, and peradventure locked up in the chest of the plaintiff? He should have tendered it, or told us he was ready, and offered to deliver the deed upon the payment of the purchase money.
    It is only necessary for the defendant here to establish that the agreements in this case are dependent on mutual covenants. In Jones v. Barkley, Douglas, 689, Lord Mansfield has laid down the distinction between covenants that are mutual and independent; such as are conditions and are dependent, and such as are mutual covenants, to be performed at the same time. So in the case of Kingston v. Preston, Doug. 690, 691, which last case is cited' by the Supreme Court of Ohio, in Courcier and Ravises v. Graham, 1 Ohio, 340. *These distinctions have not been exactly pre- [284: served in all the reported cases, but dependent and mutual covenants are considered as meaning the same thing. Goodison v. Nunn, 4 Term, 761.
    The settled rule, however, seems to be that whether the covenants be dependent or not must be determined by the good sense of the case and the evident meaning of the parties. And one of the rules for-determining the covenants to be dependent, growing out of this good sense, is where it evidently appears that neither party intended to rely upon the personal security of the othei\ The following cases fully illustrate the rules on this point, viz: Campbell v. Jones, 6 Term, 570-576; 7 Term, 130; Kingston v. Preston, Doug. 688; Green v. Reynolds, 2 Johns. 206; Porter v. Shepherd, 6 Term, 668; Glazebrook v. Woodrow, 8 Term, 370, 371; Havilock v. Geddes, 10 East, 504. In the last case it said “ that where mutual covenants go to the whole consideration on both sides, they are mutual conditions.” Powell on Contracts, 370, and 1 Salkeld, 171, are to the same point.
    In the case of Callonell v. Briggs, 1 Salk. 113, which is a leading case upon this subject, Lord Holt observes that though there be mutual promises, yet if one thing be the consideration of the other, a performance is necessary to be averred. That was a contract to deliver stock, and the principle there laid down was recognized in the case of Morton v. Lamb, 7 Term, 130, by Lord Kenyon.
    Now, how is this ease ? Webb agrees to make a deed so soon as the purchase money is paid, and Stevenson agrees to pay the purchase money on a particular day. Who was bound to perform the first act? They were to be concurrent; to be done at the same time. Webb was not bound to deliver the deed, but was bound to have one ready, and to offer to deliver it upon payment. Neither party intended to rely upon the personal security of the other. Suppose we transpose these conditions, and read them that so soon as Webb delivers the deed the purchase money should be paid. Would Webb have been bound to have delivered the deed until the purchase money was paid or offered? Could he be required to throw himself upon the personal security of the other party, who might, by conveying to a third person, have cut off Webb’s lien on the land, or at least put him to the trouble and 285] risk of ^seeking his money out of the property through a court of chancery ? The conditions were clearly mutual, and to be performed at the same time, and the want of the averment of performance, or readiness and tender, is fatal.
    It is said in Sug. on Vend. 171, margin 228, that in agreements for purchase, the covenants are always considered dependent where a contrary intention does not expressly appear. And in page 172, “If .a vendor or vendee wish to compel the other to observe a contract, he immediately makes his part of the agreement precedent, for he can not proceed against the other without an actual performance on his part, or a tender and refusal.”
    I refer the court, in addition, to the following cases : Ramsey v. Brailsford, 2 Les. 582; Green v. Reynolds, 2 Johns. 207 ; Porter v. Rose, 12 Johns. 209; 5 Johns. 181; 10 Johns. 266, etc.; Parker v. Parmelce, 20 Johns. 130. The last case is conceived precisely analogous to this. There the plaintiff agreed to sell defendant a piece of land, and defendant covenanted to pay for the same on January 1, 1818. And the plaintiff covenanted that upon the faithful performance by the defendant (i. e., so soon as the purchase money was paid) of' his covenants, he would execute a deed.
    Tho plaintiff was required to aver performance on the second point. It was certainly of consequence to the defendant that the release should be obtained, by the plaintiff, as upon its execution and delivery all questions of difficulty, Lorn that quarter, were at an end. It was part of the assurance upon which the title of the defendant materially depended. It was evidently intended that all questions growing out of the mortgage should be first settled, or so adjusted that the defendant might, with perfect safety, pay the purchase money. The defendant made it a condition of the purchase, reserving to himself, however, the right to pay out of the purchase money whatever might appear due upon the mortgage. Before he could safely pay anything, it was proper that he should be fully advised of the amount due the mortgage. Important' questions might arise. Ought there not, then, to be some averment to show the court that all had been done to place the defendant in that position of security, which would make it inexcusable on his part to fail in performing his part of the agreement? It does not lay with Webb to say that it was *un- [á88 necessary for him to discharge the mortgage, as the defendant had reserved to himself the right to do it. Much depended upon Webb’s agency in adjusting the amount duo, and even though he may conceive it unnecessary, he had bound himself to do it. If a party bind himself to do an act, even though the performance be unnecessary, he must do it. Doughty v. Neale, 1 Saund. 214.
    If it was important to the defendant that the plaintiff should get in the lien for the reason abo've given, it was manifestly the duty of the plaintiff to have given timely notice to defendant of his failure to do so. Can the court suppose that the defendant, on the 1st of April, coming with the impression that the plaintiff had complied with the contract, and prepared to surrender the release with the deed of conveyance, and finding the whole question open as to the settlement of principal and interest due on the mortgage, was under any obligation to proceed to a consummation of the contract ? I am aware of the general rule in relation to notice, but does not this case come within the spirit, if not the letter of that rule?
    J. Olds, for the plaintiff,
    contended that as the writing declared on, is not recited nor set forth at length in the declaration, nor on oyer, will it, for the purposes of this argument, necessarily be taken to contain what appears in the declaration, and nothing more. In relation, then, to the second cause of demurrer, it seems to be necessary only to remark that the objection can not go to the action, but only to the amount of the recovery. If Webb procured a release of the mortgage, he would be entitled to recover the whole amount of the purchase money, otherwise only the excess over the amount due on the mortgage, because Stevenson being authorized to pay off the mortgage out of the purchase money, would be authorized to retain a sum sufficient to make that payment, if made by Webb. The amount of the recovery is to be determined by evidence, and the defendant, by a proper plea, . may open the door for the admission of such evidence as will ascertain the amount to be recovered. In this case, under the general issue, evidence may be received, showing what should be recovered. A declaration showing good cause of action for any amount is deemed sufficient to call for a defense. To this point, 287] so obviously ^correct upon the general principles of pleading, no authority need be adduced.
    The first question raised on the demurrer seems to require more consideration. The defendant insists that a tender of a conveyance on the part of plaintiff should have been made, in order to give him a cause of action upon the contract. It should here be kept in mind that this is an action of assumpsit, not covenant. In assumpsit upon an express promise, if there be a sufficient consideration for the promise, and a sufficient averment of the consideration and undertaking, and of the non-performance, what more is necessary to give prima facie cause of action ? Should not excuses for non-performance be presented by plea? But if this is to be assimilated to an action of covenant, and the law of covenants to be applied, we insist that the defendant has not correctly interpreted the contract between these parties. Covenants have long been divided into the three classes, as quoted by defendant’s counsel from Doug. 690; yet courts have hitherto found great difficulty in determining to which class certain covenants belong. Some covenants are found to have the properties common to those of each and all of those classes; hence the judge finds the same difficulty in determining their classification as the physician does in ascertaining the disease of his patient, when the symptoms equally indicate the existence of different diseases. It appears to me, however, that much of this difficulty has been occasioned by an attempt to reduce all covenants to two classes only, or in making a third class not essentially different from one of the others. Thus, it is frequently said, that covenants are either dependent or independent, and those considered dependent are treated as mutually dependent; and those classed as independent, considered as mutually independent. The middle class of Lord Mansfield, whose classification is so frequently quoted, namely, “ conditions dependent upon each other,” can scarcely be distinguished by that definition from his third class of “ mutual covenants to be performed at the same time,” because these last are also conditions dependent on each other. If it be not presumption in me to venture upon a classification, I would thus define the three classes, to wit: covenants mutual and independent, covenants mutual and dependent, and covenants dependent and independent, that is, agreements in which the covenant of one party is dependent, and the covenant *of the other party is independent. Mansfield’s lan- [288 guage, in relation to his middle class of “conditions dependent on each other,” seems to imply a mutual dependence, yet the courts, in order to bring all covenants into the three classes, have been obliged to assign those wherein the performance of the one party was made to depend on the prior performance by the other party of a condition precedent to this middle class. If this, then, be a correct classification, or a correct definition of the classes heretofore made, it would follow that with the class of covenants, mutual and independent, either party might sue without an offer to perform on his part, each relying -on the covenant of the other, and not upon its performance. And with the second class, covenants mutual and dependent, neither could sue without a performance or offer to perform, because each relied upon the performance by the other, and not upon the covenant only. And with the third class, which is supposed to be the correct interpretation of Mansfield’s middle class, covenants dependent and independent, the one party could not sue without a performance or an offer to perform, yet the other party might do it.
    I shall endeavor to show that the agreement declared on in this case belongs to this class of covenants, dependent and independent; and that Stevenson could not sue without paying the purchase money or tendering payment, but that Webb may sue without making the conveyance or offering to make it. Stevenson promised, in consideration of the premises, to pay a certain amount of money on the 1st day of April. And what were the premises which constituted this consideration ? They were that the plaintiff had granted, bargained, and sold, and had bound himself to convey in fee a lot of ground, so soon as the purchase money should be paid.’ He did not promise upon condition that Webb would convey money on the first day of April, but he promised in consideration that Webb had bargained and sold, and had bound himself to convey. Here, then, did not defendant rely upon what had been done, and- upon the covenant of Webb to do more, and not upon the performance of that covenant for his security ? “ If,” say all the books, “ it shall appear to have been the intention of the parties to trust each to the personal security of the other, the covenants must be considered as independent.” And why, let me ask, when it seems to have been the intention of one party to rely upon the personal security of the 289] Mother, may not his covenant be considered independent, even though the other party choose to make his covenant dependent ? When the court can not say which party was to perform the first act, then they will consider the covenants as mutually dependent. But, in this case, can there be any doubt as to which party was to perform the first act? The defendant covenants to pay the money on a given day; the plaintiff does not covenant to convey on that day; he covenants to convey so soon as the purchase money is paid, that is, immediately after the payment of the purchase money, not immediately before the payment. Had Stevenson tendered the money on the 2d day of April instead of the 1st, would not Webb have been bound to convey as soon thereafter as a deed could be prepared ? I think he would, because he had contracted to convey so soon as the purchase money was paid, and if the payment were not deferred to such an unreasonable time as to amount to an abandonment of the contract, whenever payment was made Webb was bound to convey. This, then, shows that Webb had not covenanted to convey on any particular day nor at any time, unless the purchase money should first be paid — clearly making the performance by Stevenson a condition precedent. In the case of Fuller v. Adm’rs of Smith, 6 Cow. 13, it was held that where a conveyance was to be made on the payment of the purchase money, the vendee must not only pay or tender the money, but after waiting a reasonable time for the conveyance to be made out, must present himself to receive it. May it not be implied from this, that the court making that decision were of the opinion that the vendor need not move toward the execution, or even the preparation of a deed, until the purchase money is paid or tendered.

      The strongest case presented by the defendant’s counsel is that of Parker v. Parmelee, 20 Johns. 130. But if the New York decisions are relied on, I would present the case of Northrup v. Northrup, 6 Cowen, 296, which appears to me to overrule the former decisions. It is true the court there make a distinction between that and the former cases, referring the one to the second class of Lord Mansfield, and the others to the third. But is not this a distinction without a difference? If, in the one case, a bond and mortgage are to be given up and discharged upon the payment of a sum of money, and in the other case a conveyance is to be made *upon the payment of a certain sum of money— [290 where is the difference? The counsel for defendant in the case in Cowen considered his case as belonging to the same class with that in 20 Johnson, for he cited that same case in support of his position. But the court say “the plea is bad.” The payment of the money is a condition precedent. A general averment of his readiness to perform is all that can be necessary. Suppose, in this case, the covenant of Stevenson, as it now is, to make payment on the 1st day of April, and that Webb had covenanted to convey on the2d day of April, then the defendant would certainly be driven from his position, that these covenants were to be performed at the same time, and instead of referring them to Mansfield’s third class, he would have to refer them either to the first or second class. Where shall we stop then? Is not the principle the same, whether Webb’s covenant was to be performed on the day after the performance by Stevenson, or on the after part of the same day? If we apply the principle of the case of Fuller v. Adm’rs of Smith, that time is to be given to the vendor after the payment to prepare a conveyance, then Webb would have kept his covenant by conveying the day after the payment. But whether the time be a day, an hour, or a minute, it is sufficient that it is after the performance by Stevenson, and that a performance by him is a condition precedent.

    But let these covenants be classed as they may, it is sufficient to aver that a deed was made and ready to be delivered. Such is the language of the court, in the case in 5 Johns. 179, and is so quoted by our court in 1 Ohio, 341, 342, with the addition that in such a case, '“it is not necessary to aver performance, or an actual tender of performance.” The argument for the defendant admits that Webb was not bound to actually deliver the deed, and part with his title until he received his money. What good sense, then, is there in requiring him tó show it to Stevenson, and say, “ Sir, here is your deed, which you shall have when you pay me the money, and not till then? ” It would appear to me to be really a sham tender to say, here is your deed, but you are not entitled to it, and shall not have it at present. It is contrary to the common notion of a tender. When we tender money we admit it to be due, and the other party entitled to receive it. To say as above, 291] you shall have your deed when you pay me *the money, is saying nothing more than was said when the contract was first made ; it is only repeating the terms oí the contract, for by that Webb had said to Stevenson, you shall have your deed when you pay the money. And if we give the contract the 'most rigid construction contended for, that Webb should deliver the deed the very next minute after the payment of the purchase money, then he had performed on his part, for he had the deed prepared, signed, sealed, and acknowledged, and ready to be delivered the very minute the money should be paid. The defense then resolves itself into this, that the plaintiff did not first do that which by the contract was to be last done.
    Green, in reply:
    The counsel for the plaintiff does not meet the argument for the defendant on the second point. We say the obtaining of the release was a duty he imposed upon himself, and which he was bound to perform for the reasons assigned in the opening. The alternative was for the benefit and protection of the defendant, of which he might avail himself by averment and proof of the plaintiff’s inability to do what he had contracted to do.
    Counsel attempts a distinction between covenant and assumpsit, which, as applicable to this case, is not clear. It is certainly true, in general, that if there be a sufficient consideration to 'support the promise laid, and a sufficient averment of non-performance, a prima facie case is made; but here, the doing that which the plaintiff has not averred to have been done, should appear to have been done, is essential to the presentation of such a prima facie case as to put us upon a plea.
    I shall not attempt to follow Mr. Olds in his classification of covenants. The distinction seems to my mind plain enough, if we look to the explanation of Lord Mansfield, when classifying them. 1 Ohio, 340. Mr. Olds places this case as coming under that class of covenants which he denominates dependent and independent; that is, when the covenant of one party is dependent and the covenant of the other party independent. If, by the contract, the money was to have been paid on the 1st day of April, and the deed was to have been executed on the 1st day of May following, the case would come under Mr. Olds’ class of dependent and independent covenants. There the one party would trust to *the personal security of the other, as the acts are [292 not to be performed at the same time. But here I maintain that the day of payment being fixed; and the deed to be made and delivered at the same time, it is clear that there was no intention on the part of either party to trust to the other. Stevenson certainly did promise to pay uj)on condition that the deed should be made and delivered on the 1st day of April. Suppose the 1st day of April had been fixed for the execution and delivery of the deed, as well as payment of the purchase money; would it not then have been, past all doubt, the duty of Webb to tender the deed ? Do the words “.so soon ” mean a day after, or a week, or a year? If not a day, can they mean an hour, or a minute? In short, was it not the'duty of Webb to have said, “here is your deed, sir; pay me the money, and I will deliver it to you.” Here I am mot by a ease from 6 Cowen, 13, where the, court say, a “reasonable time should be allowed the vendor to prepare the conveyance.” What time did Webb need to “prepare a conveyance,” which he avers-had been executed and acknowledged by himself and wife, and Was then ready for delivery? In that case, in Cowen, Smith, the party to convey, was dead, and Fuller having paid the purchase money, had made no demand of the heirs of Smith; but commenced suit against the administrator to recover back the purchase money. A very different case from this. The court there, however, go no further than to say, “ that the purchaser should present himself to receive the conveyance, which he has thus required to be furnished.” Are this court advised that Stevenson did not present himself to receive the conveyance on the 1st day of April? Are they not, on the contrary, bound to presume that he did so present himself, as his absence is not averred ?
    Counsel refers the court to the ease of Northrup v. Northrup, 6-Cow. 296, which would seetm to be a parallel case with that at bar; but clearly the judge does not so consider it, for he places it as-coming under the second class of Lord Mansfield’s classification, .and the case of Parker v. Parmelee, 20 Johns. 130, as belonging to the third of Lord Mansfield’s classes. I respectfully request the court to compare the cases in 6 Cowen and 20 Johnson. If any difference exist, I confess it is beyond my comprehension.
    The case in 5 Johns. 177, was a very different case from this. 293] There the plaintiff could not have executed the ^mortgage until the defendant had made the deed conveying the title; and the court say, “there was nothing to be-done by the plaintiff, which he had power to do;” but, says the judge, “there are cases where both parties have the power to perform without any act being previously necessary to be done by the other. In all such •cases, it is necessary that the party bringing an action should .aver (if the act has not been actually performed) a tender and refusal, which is equivalent to a performance.
    The case of Courcier and Ravises v. Graham, 1 Ohio, 340, is also relied upon by plaintiff’s counsel. That case decides, that where "the acts are to be done at the same time, either party, to charge "the other, must aver performance or an offer to perform.
   Judge Wright

delivered the opinion of the court:

The question presented to this demurrer requires us to determine, whether the undertaking of the parties in the agreement •declared upon is dependent or independent. In contracts of sale and purchase of lands, where the acts to complete an agreement are to be done at the same time, we understand the rule to be, that if either would sue the other for a breach of the contract, he must perform on his part, or tender a performance. Sug. Vend. 171. A late case in the Supreme Court in New York, Parker v. Parmelee, 20 Johns. 130, seems analogous to the one at bar. The plaintiff, in that case, had agreed to sell the defendant a piece of land and to convey it to him, if he faithfully performed his part of the agreement; and the defendants agreed to pay the purchase money ■on a given day. The court held it essential to the plaintiff’s right to recover that he should aver a performance, or a tender on his part. We doubted, at first, whether in the case before us, inasmuch as the defendant agreed to pay the money to the plaintiff, he was not bound to seek him, and on that account, we doubted if the plaintiff’s readiness to perform, in case the defendant came to pay, was not sufficiently averred to entitled him to recover. But, upon the whole, we think the most intelligible and reasonable rule requires of either party to contracts for the performance of simultaneous acts, before he sues, to put his adversary in the wrong by performing, or offering to perform, on his part. The same principle has been decided at this term, in McCoy’s Adm’rs v. Bixbee’s Adm’rs, post.

*As to the outstanding mortgage in this case, the plaintiff [294 undertook to obtain its release; the defendant did not undertake to do so, though the privilege was given him, if he choose to avail himself of it, to obtain its discharge by applying to that object the required proportion of the purchase money. The declaration, in reciting the agreement of the parties, shows a mortgage to have ■existed. It nowhere shows its release. Prima facie, therefore, it remains a lien upon the lot. The purchaser of the lot is not bound to get it in, though under the contract, he may do so if he please. The seller, then, must aver that he has performed his part of the contract, and his ability to convey, before he shows a right to sue. He undertakes to make a deed in fee; and from his •own showing, it appears he has not the fee to grant.

The declaration, therefore, shows no right in the plaintiff to sue, because he has not done what he undertook to do himself to fulfill his part of the contract, and to put his adversary in the wrong.