text:
    Francis R. Armstrong v. Ebenezer Zane’s heirs, William Pitts and Wife, and others.
    A will, bequeathing _ an estate to A, and his heirs forevor, in trust for B, a feme covert, for life, and to such uses as, notwithstanding any coverture, she shall appoint, and after her death to the use of her heirs, is an equitable fee simple in the first cestui que trust.
    This is a Bill- in Chancery from Muskingum county, claiming a conveyance and partition of land to which the complainant makes title, upon the following facts :
    In 1831, Noah Zane made his will, which contains the following, among other provisions : After a bequest to his daughter, Elizabeth, another to his daughter, Cornelia, the téstator proceeds : “ To these daughters, I also give and devise all my real estate in the county of Muskingum, in the State of Ohio, to them and their heirs and assigns forever. And as to all the real estate hereby devised to my said daughters, Elizabeth and Cornelia, I devise the same to my son Eben'ezer, and to his heirs and assigns forever, in trust, to hold the same, to the separate use of my said daughters, during the natural life of my said daughters, and such use as she, notwithstanding any coverture, may direct; and after her death, then to the use of her heirs at law.”

      In 1833, the testator died. Elizabeth Zane, one of the devisees, married Pitts; and afterwards, in 1842, after attaining full age, by instrument, under seal, directed and required Ebenezer Zane, her trustee, to convey the land, absolutely, in fee simple, to Armstrong, the plaintiff, who brings this bill against Zane and Pitts and wife, to compel a conveyance from the ^trustee, under this appointment. [288 The questions are raised on demurrer to the bill.
    Alexander Harper for defendants in support of the demurrer.
    The first question presented by the demurrer filed by the minor heirs of Ebenezer Zane, deceased, to the complainant’s bill, is, that this is not a proper case for the exercise of the extraordinary powers of a court of chancery.
    The counsel for the heirs of Ebenezer Zane, claim that it is not; and that all, or any right the complainant may have, can be enforced in a court of law — that all the questions involved in the oase made by the bill, are purely legal, and that he seeks no relief that he may not obtain in a full, ample and adequate manner, in a court of law.
    Supposing the will of Noah Zane, giving to his daughter, Elizabeth, a fee simple, in the use of the lands described in the will, yet the aid of a court of equity is by no means necessary to enable her, and her husband, Mr. Pitts, to have the full benefit of the devise. For, “ a limitation of real estate to the wife in fee, for her separate use, without expressing more, will not enable her to dispose of it, during marriage, otherwise than by fine and recovery, because, no power having been given her by the instrument, to make any disposition of the pr-operty. she can only do so by the mode prescribed by the general law.” Roper on husband and wife, vol. 2, page 182. Thus we see that in England, Pitts and wife could, at law, convey all, or any estate, devised by Noah Zane to Mrs. Pitts, his daughter, by fine and recovery, and, consequently, the aid of a court of equity would there be invoked in vain. So in Ohio, under the provisions of the general law, for the execution and acknowledgment of deeds, any estate, acquired by Mrs. Pitts under the will of Noah Zane, may be conveyed to the complainant, without the interposition of this court.
    The power expressly given to Mrs. Pitts, by the devise in her father’s will, is, to direct the use during her life; not to ^appoint the [289 úse in fee, or after her death. If, therefore', she is entitled to the fee, in the premises described by complainant in his bill, upon a fair and proper construction of the devise in her father’s will, she may, by uniting with her husband, transfer it by deed, under the general law before referred to.

      But the complainant is entitled to no more than an estate,, for the life of Mrs. Pitts, in the real estate described in his bill. His claim may be coextensive with the devise to Mrs. Pitts; but no appointment, or instrument, directing Ebenezer Zane to convey to the complainant, in fee simple, the premises, can endanger it. By the devise, Mrs. Pitts takes no estate in the lands, either of inheritance or not of inheritance ; she takes a fee in the use, and no other or greater estate. The bill prays for a title in fee simple, and the case made by the bill will not warrant a decree for the complainant for any thing short of it; it, likewise, asks for partition. If the complainant can obtain a title, as we maintain he can, without the aid of this court, his seeking for partition of the premises confers on the court no equity jurisdiction. The law has made ample provision for the partition of real estate, and unless partition is a mere incident to the relief granted to a complainant, it is never ordered; the party is left to his remedy at law. Nor does the fact, that, by the devise in the will, the property in question is devised to Ebenezer Zane, and to his heirs and assigns, forever, in trust, for the separate use of Mrs. Pitts, furnish any ground for the interposition of a court of equity. It presents, purely, a legal question, and a court of law can settle the entire question, as to the estate the complainant is entitled to. For these reasons, the defendants claim that the demurrer ought to be sustained. If, however, the court should be of opinion that complainant presents, in his bill, a proper case for relief, a most important question presents itself for consideration : that is — What was the intention of the testator, as expressed in the devise to his daughter, Mrs. Pitts ? On this question, the defendants think there can be but one opinion. It is obvious that he did not intend to give her an estate in fe« simple in the premises, 29©] or why the ^necessity of devising it, in trust, to his son Ebenezer, and, afterwards, devising “ the same to the separate use of Mrs. Pitts, daring her natural life, and such use as she, notwithstanding any coverture, may direct; and, after her death, then to the use of her heirs at law.” It is possible, the testator intended, at first, to give to Mrs. Pitts a fee simple in the premises, but cogent reasons might be offered for his change of purpose; and he did change it, as is clearly evinced by the devise, and the whole will, taken in connection with it. If there is any repugnance in any part of the will, with the devise, the intention of the testator, last expressed, must prevail, and- the former intention be rejected. 5 Vesey, 207 ; 6 Vesey, 102. In this, the rule is different from that applicable to , deeds, owing to the “ different nature of the two instruments ; for the last will and first deed is always most available at law.”
    There is no principle more fimly established than that the intention of the testator shall prevail, unless it conflicts with some well established rule of law. Now, let mo ask, what rule of law will be violated bydeciding that the complainant is entitled to the use of the land in his bill described, for the life of Mrs. Pitts only. It does not create a perpetuity, place the freehold in abeyance, nor limit a fee upon a fee. I am not aware of any rule of law with which it conflicts, except it is the rule that “ where the ancestor takes a freehold, and by the same conceyance, whether by deed or devise, is limited to his heirs, the word heirs is a word of limitation, and not of purchase; and, thcretherefore, the fee vests in the ancestor commonly called the rule in Shelley’s case.
    I am aware that this rule was adopted in an action of ejectment, McFeely’s Lessee v. Moore’s Heirs, 5 Ohio, 464, by this court on the law side. In that case, the court say, it “ feels bound to apply the rule, until the law is changed by legislative enactment.” That legislative enactment has since been made, and now, the rule that the intention of the testator sliall be carredinto effect, any thing in Shelley’s case to the contrary, notwithstanding, is the law of the land. Swan’s Stat. 999, sec. 47. A like provision is to be found in the statutes *of New York ; and, moreover, by reference to the English [291 books, published since the abolition of tenures, it is manifest, that the courts in England are as anxious to evade, if not overrule, that rule, as they formerly had been to sustain it, when the various tenures were in force by which real property was held in that country, and which was the sole reason for the adoption of the rule.
    This rule has not been adopted, as far as I know, by the courts in the western states, or any one of them, with the exception of the case in the Supreme Court of Ohio, before referred to. That it should be found established as the law of this country, by the states, at the time of the adoption of the constitution, is not surprising; but the reason for its adoption in Ohio, or any of the new states, is not so easily perceived. And by reference to the decisions of the courts of Pennsylvania, whenever they have found it necessary to allude to that rule, it will be seen that it has but a very precarious hold in that state.
    But if by that, or any other rule, the complainant is entitled to the relief he asks, and Mr. Pitts, one of the defendants, shall, by the decree of this court, obtain a titlej in fee simple, to the premises described in the bill — (for it is not disguised, I believe, that that will be the result of a decree in favor of the complainant) — if the rule which the defendants contend for, in regard to the construction of wills, and which is coeval, at least, with that in Shelley’s ease, and which I must say, under favor, is, in my opinion, much more consistent with justice and common sense, is not to prevail, I ask, on the part of the defendants, whom I represent, that they be not taxed with any part of the expense of this litigation, whether it be the taxable costs, or the fee of counsel. ■ Ebenezer Zane was but a trustee, and could not safely act, in a case so important in principle, and where so large an amount of property was involved, unless by direction of a court, who could finally settle all questions connected with the trust. His minor children, who are now defendants, and for whom I appear, are, surely, in a situation no less favorable.
    *Goddard and Converse, for complainant.
    The complainant claims that he is entitled to a conveyance, in fee simple, from the trustee named in the will, of the undivided half of the premises mentioned in the bill; and, also, to partition. As to the partition, there is no doubt, or dispute. We shall, therefore, confine ourselves to the question, as to the right to the conveyance prayed for.
    Upon this point, we maintain, that, under the will, the entire fee simple of the undivided half of the premises belongs, in equity, to Elizabeth Pitts, and that the trustee is bound to convey as she may direct.
    First: Because the power of appointment, given by the will, is a power over the whole estate which the testator had in the land. That the testator designed to give the control and disposition of the fee to his daughter, is put beyond a doubt, by reference to the first clause of the devise now in question. -It is as follows ;
    “ To my daughter Elizabeth, to her heirs and assigns, forever, I give and devise the lots numbered three and eleven, in the sixth square of the town of Wheeling, in what is called the lower town ; and to my daughter Cornelia, and to her heirs and assigns, forever, I give and devise the lots number four and twelve, in the said part of the town of Wheeling. To these daughters I also give and devise all my real estate in the county of Muskingum, in the state of Ohio, to them, their heirs and assigns, forever.”
    He gives the land to his daughter, her heirs and assigns — the strongest language known to the law, to pass an estate in fee. If this clause stood alone, there would be no doubt about the case. Is this intention, so clearly ánd strongly expressed, controlled by the superadded clause, declaring Ebenezer Zane .trustee, to hold the premises to the separate use of the daughter, and such use as she may appoint? That clause is as follows :
    “ And as to all the real estate hereby devised to my said daughters, Elizabeth and Cornelia, I devise the same to my said son Ebenezer, and to his heirs and assigns, forever, in *trust, to hold the same [293 to the separate use of my said daughter, during the natural life of my said daughter, and such use as she, notwithstanding any coverture, may direct; and after her death, then to the use of her heirs at law.”
    By this provision, the testator clearly intended nothing more than to place the premises in such a situation, that, in the event of his daughter’s marriage, she should not be deprived of any benefit in, or control over them, without her consent. It was not intended to abridge her rights, but to enlarge them. It would be a most unnatural construction to hold that a provision, manifestly intended as a protection against the incidents which the law, to the prejudice of the wife, annexes to marriage, should now be turned into an instrument to take from her the right to the fee, clearly vested in her by the first clause of the devise. The trust is created, that she may, in the event of her marriage, be able to have the estate to her own “ separate use, and such use as she, notwithstanding coverture, may direct.” It was intended to be more beneficial to her than the devise would be, resting upon the first clause alone. It was to make her more fully and absolutely owner, than, by the rules of law, in the event of her marriage, she would be, without such provision. The object was to guard against the operation of law; not against her own voluntary act. And now, to hold that she has lost the power to appoint, or dispose of the fee, will be to convert that which was designed as a shield to protect, into a sword to injure, The limitation is, “ to hold the same to the use of my said daughters, during the natural life of my said daughters, and such use as she, notwithstanding coverture, may direct; and after her death, to the use of her heirs and assigns at law” — the testator evidently contemplating the marriage of his daughter. It will be observed, that, although the appointment by the daughter is to be made during her life, yet there is no limitation as to the quantity of the estate which she may pass under this power of appointment. The power, therefore, has no other limit, as to the estate to be appointed, than is furnished by the extent of interest given by the former ^clause. To confine the estate, to be conveyed under her ap - [294 pointment, to an estate for her life, or any estate less than a fee, will make the will contain inconsistent provisions. The clause devising the estate to the “ daughter, her heirs and assigns,” has its proper effect under the construction contended for by us. The other construction, in effect, strikes that clause from the will. The view taken by the complainant harmonizes the otherwise conflicting provisions. It protects the daughter from the disabilities arising fro m marriage, and enabble3-her to exercise the same control over the property after marriage as before. She can make the estate available to the extent to which it is given her by the former clause, whenever she sees proper to do so, by the exercise of the power of appointment,, directing the fee ; and, in case she omit to exercise this power during her life, the estate, the fee, vests just where it would vest if no trust interposed— in her heirs at law. In short, the first clause defines the quantity of interest — the estate — which the daughter should take. The second clause has reference only to the mode of enjoyment, and manner of disposing of that estate. This view is confirmed, by the consideration, that the father feels more affection for the daughter, whom he has seen, than for the distant and unknown heirs, whom he has not seen. The opposite construction inverts the rule of nature. Upon that construction, the distant heirs are preferred, for they have the fee, while the daughter is confined to a life estate.
    The general intent of the testator, as shown by the former part of the will, is to give his daughter the fee ; and that general intent must prevail, to the exclusion of the particular intent, (having reference only to the mode of enjoyment,) in cases where the two intents are inconsistent. Goodrich v. Lambert, 10 Conn. 452. We read this devise as if the words “ and in case she fail to appoint ” were inserted before the limitation to the heirs at law of the daughter, so that the clause would run thus : “ and such use as she, notwithstanding any coverture, may direct; and, after her death, in case she fail to appoint, then to the use of her heirs at law.”
    ^Second : But this case presents another aspect. Put out of view, altogether, the first provision, giving the foe directly to the daughter; suppose that the last clause of the devise, interposing the trustee, stood alone, without the benefit of the first clause, to shed light upon the meaning of the testator; and we now stand upon ancient ground, super antiquas vías, opened up long since, by the rule in Shelley’s case, conducting us, without difficulty or doubt, to the construction which the law biads upon this form of devise^

      This rule is well defined by Preston, who says, “ Where a person: takes an estate of freehold, legally or equitably, under a deed, will, or other writing, and, afterwards in the same deed, will, or writing, there-is a limitation, by way of remainder, with or without the interposition of any other estate, of an interest of the same quality, as legal or equitable, to his heirs generally, or the heirs of his body; by that-name in deeds, or writings of conveyance, and by that or some such name in wills, and as a class or denomination of persons, to take in succession from generation to generation ; the limitation to the heirs-will entitle the person, or ancestor himself, to the estate or interest imparted by that limitation.” Preston on Estates, 263. The rule: applies in all cases where the estate for life and that in remainder are of the same quality — as where both are legal, er both equitable ; although it does not apply where one is legal and the other equitable. (Preston on Estates, ut supra ; also, 266, 382 ; 6 Cruise’s Digest, 310, title xxxviii, Devises, chap. 14, sec. 22, et seq. ; 4 Kent’s Com. 219.)-In this case both estates are equitable. That the rule is in force in Ohio, was declared, as to legal estates, in the case of McPeely’s Lessee v. Moore, 5 Ohio, 465. The foregoing authorities show that the-rule is of the same application to equitable estates as to legal. The ease of McWhartonu. Agnew, 6 Paige’s Chancery, 111, is directly in> point, to show that equitable estates fall within the rule ; .and, also, to show its application to a trust estate, created by the same words contained in the present devise.
    *The exception to the rule, in cases of equitable estates, is in [296-favor of marriage articles, (in which the issue of the marriage are especially regarded, and are looked, upon by a court of equity as purchasers,) and executory trusts. This expression — “ executory trusts”' —may, at first view, mislead. It is not well selected, to distinguish the class of cases to which it refers, and to express what is intended. In one sense, and that the most usual and general, all trusts are, in the books, called executory, which remain unaffected, in England, by the statute of uses; and those are trusts executed, upon which that-statute operates. But that is not the distinction contemplated in this class of cases, having reference to the rule in Shelley’s ease.
    The executory trusts, here referred to, are those trusts, for deelaring- or settling which, there is an agreement only, which looks forward to-a proper form of settlement, or conveyance, to be thereafter made, or a direction, in a will, that property shall, in futuro, be settled upon-, certain trusts, and the parties are obliged to resort to a court of equity-to obtain the proper legal conveyance or instrument, establishing and declaring the trusts. A trust executed, in contradistinction to this ■species of executory trusts, is a trust which is fully established and declared by the party creating it, and which has no reference to any future conveyance, or instrument to be executed, either by himself or others, for the purpose of perfecting the trust. It is where the party ■executing the trust has, in the language of one of the English judges, “ chosen t’o be his own conveyancer.”
    “ Trusts executory,” says Preston, “ are peculiar to marriage articles, and to those instruments, whether deeds or wills, in which, by the express provisions of the instrument, the trustees are to convey, settle, or assign the lands, on which the instrument is to operate, or to purchase land with money intrusted to be laid out in real estate, thereby showing that the parties have a further conveyance in their prospect and contemplation.
    “ The mere circumstance that the party covenants to do an act, or directs a conveyance to be made, will not, of itself, make the trust ex-ecutory.
    “ The conclusion that a trust is executed or executory, must depend on the quo animo — on the inquiry, whether another instrument •be in the contemplation of the party, as the act which is to give full and complete effect to the principal object he has in view. Children, as purchasers, are always understood to be the main objects of marriage articles, and, also, of deeds, and even, except as is afterwards noticed, wills, directing that lands to be purchased, or lands of which the testator is the owner, shall be settled or conveyed; unless the settlement or conveyance is to be made, with reference to particular uses, or upon trusts, and the legal operation and effect of the uses and trusts are already fixed. When the uses and trusts are already ascertained, the trust is not considered as executory. That point was decided in Roe v. Astrop, and in Austen v. Taylor ; and particulary in the latter of these eases, and the recent case of Brouncker v. Bagot.” Preston on Estates, 387. Vide Roe v. Astrop, 2 Black. 1228 ; Austen v. Taylor, Amblin, 376; Brouncker v. Bagot, 1 Merrivale, 271. Again: Preston, 405, says that the trusts are executory where the will shows that the intention of the party was that his directions should not be considered complete and conclusive, but, rather, as minutes, from which more full and correct limitations are to proceed.
    In the case of Wood v. Burnham et al., 6 Paige’s Chancery, 513, which was a case where future conveyances were to be executed by the trustees, the distinction between executory and executed trusts, in regard to the rule in Shelley’s case, is well explained. See, also, the same ease before the Court of Errors, under the name of Tallman v. Wood, 26 Wend. 1, and the authorities referred to in the arguments, pp. 13, 14 and 17 ; 4 Kent’s Com. 218. The devise before the court is, clearly, not an executory trust, but an executed trust, within the meaning of the authorities cited.
    But, as in cases of executory trusts, the rule is departed from, only when the party has clearly expressed a different intention from that which flows from the rule itself; and, as the intention of the testator in this case, as already shown, is consistent *with the rule — the [298 intention and the rule alike giving the fee — it is unnecessary to enter into a discussion of the question as to when executory trusts arise, and how far the rule may be modified by them.
    By the “ act relating to wills,” now in force, the rule in Shelley’s case is abolished. Swan’s Stat. 999. This act was passed March 23, 1840, and operates upon all wills made subsequent to that time. The will of Noah Zane, now before the court, was made, and had taken effect, by the death of the testator, before the passage of this statute. It is not, therefore, affected by this subsequent act of the legislature. It has been so decided by the Chancellor, and, also, by the Supreme Court of the State of New York, upon a similar section of the statute of wills, in New York, abrogating the rule in that state. De Peyster v. Clendening, 8 Paige’s Chancery, 295, 304 ; Shoonmaker v. Sheely, 3 Hill, 165.
    As to the right of married women to dispose of property limited to separate use, see Clancy on Husband and Wife, Chap. 5, 293 ; Chap. 7, 308 ; Ibid. 321; Standford v. Marshall, 2 Atkyns, 69 ; Jacques v. Methodist Episcopal Church, 17 Johns. 548. In the last ease, the court decided that a feme covert, with respect to her separate estate, is to be regarded, in a court of equity, as a feme sole, and may dispose of her property, without the consent of her trustee, unless she is specially restrained by the instrument under which she acquires her separate estate. It was further decided, that, although a particular mode of disposition was specifically pointed out in the instrument or deed of settlement, it will not preclude her adopting any other mode of disposition, unless there are negative words, restraining her power of disposition, except in the very mode so pointed out.
    That the power of appointment will not prevent the application of the rule, see Preston on Estates, 383; 6 Cruise’s Digest, 310 ; Hayes on Estates, Proposition xv, p. 17, in 5 Law Library, 9 : Bale v. Coleman, 1 P. Wms. 142.
    In whatever aspect we look at this devise, whether as a question of 299] intention, or in reference to this time-honored rule *in Shelley’s case, the result is the same — the right of Mrs. Pitts, the daughter of the testator, to direct the conveyance of the fee. This case furnishes one instance, at least, where this stern rule does not conflict with the intention of the party limiting the estate, but seems to carry that intention into effect. Mrs. Pitts having this right to dispose of the fee,, it became the duty of the trustee to convey to the complainant, as she-directed. All the books lay it down as one of the first duties which a trustee owes to his cestui que trust, to convey the legal title as the cestui que trust may direct.
    We ask, therefore, that the court decree the conveyance, as prayed for, and that partition be had.
   Lane, C. J.

The right to sustain this suit depends upon the nature and extent of the interest which Elizabeth Zane held under this bequest. Taking both clauses of the will together, it gives Ebenezer Zane an estate in fee, to hold in trust for the separate use of his daughter Elizabeth, during life ; and, after her death, to the use of her heirs at law, with the power of appointment, separate from any ineapacity from coverture. Not only from the direct terms of limitation, but from the absolute powers of appointment (5 Mass. 500; Preston on Estates, 420 ; Institutes, 223 ;) it vests a fee simple in equity ; an equitable fee.

It affords a very obvious example of the application of the rule in Shelley’s case; the limitation of an estate to one, and the remainder of the same estate, both being of the same nature, or both equitable, to her heirs, by the same instrument. The power of appointment is, therefore, rightly exercised, and the plaintiff is entitled to & decree. King’s Administrators v. King’s Heirs, decided at this term.

But as this suit is against a trustee, in relation- to trust estate,, demanding what he might rightly hesitate to grant, except under the protection of the court, the plaintiff will be charged with the costs.

Decree for complainant.


source: Caselaw Access Project

author: Read, Judge.

license: Public Domain

text:
    *John Moore v. Aaron G. Gano and William Thoms.
    An express written promise, to one partner, may be sued on by him alone. Where one who is a member of two firms makes a promissory note in the name of one firm, payable to a person who is a member of the other firm, the payee may sue and recover upon it at law.
    Th.e admissions of the common member of both firms can not be given in evidence to defeat a recovery on the instrument.
    An accountable receipt is equivalent, in legal effect, to a note, and its contents may be recovered under the general counts.
    Where time is not stated, as descriptive of the date of an instrument, its being made at a time different from that laid in the declaration, is not a fatal variance.
    This is a motion for a New Trial, from the county of Jefferson. Suit was brought on the 5th of June, 1838, in the court of Common Pleas of Jefferson county, against Aaron G. Gano, Wm. Thoms and William Talbott, upon the following accountable receipts, amounting to $23,007 :
    Bridgeport, 12th Month, 30th, 1836.
    Received of John Moore five thousand one hundred and ten dollars, which we promise to replace to the said Moore, on demand, with interest from date. Gano, Thoms and Talbott. '
    Bridgeport, 1st Month, 9th, 1837.
    Received of John Moore eight thousand three hundred and ninety-seven dollars, which we promise to replace to the said Moore, on demand, with interest from this date.
    Gano, Thoms and Talbott.
    Bridgeport, 1st Month, 10th, 1837. Received of John Moore five thousand dollars, which we promise to replace to the said John Moore, on demand, with interest from date.
    Gano, Thoms and. Talbott.
    ^Bridgeport, 1st Month, 13th, 1837.
    Received of John Moore two thousand dollars, which we promise to replace to the said Moore, on demand, with interest from this date.
    Gano, Thoms and Talbott.
    Bridgeport, 1st Month, 25th, 1837
    Received of John Moore twenty-five hundred dollars, which wa promise to replace to the said Moore, on demand, with interest from date. Gano, Thoms and Talbott.

      Process was served on Talbott, and returned, “ not found,” as to Gano and Thoms.
    The plaintiff declared upon special, and the common counts. An issue was regularly made up by William Talbott, on the plea of nonassumpsit and notice of setoff; and, at the November term, 1838, judgment was rendered in favor of the plaintiff for $16,038.36, the claim being reduced to that amount by setoff.
    On the 5th of June, 1839, a writ of scire facias, to make them parties to this judgment, was served on Aaron G. Gano and William Thoms; and, at the. March term, 1841, a trial being had, the verdict and judgment was in favor of the plaintiff, from which Gano and Thoms appealed.
    At the March term, 1842, of the Supreme Court of Jefferson county, the cause came on for trial, and, under the direction of the court, a verdict was rendered for the defendants.
    The plaintiff moved for a new trial, on the ground of a misdirection, by the court, in the following particulars :
    First; Because the court erred in its charge to the jury, by instructing them that the contract of partnership, between the said William Talbott, Aaron G. Gano and William Thoms, did not empower Talbott to borrow money for the use of the firm in the firm’s name. And that the plaintiff, being a partner with Talbott in another firm, to which the money belonged, he had constructive and sufficient notice of the terms and limitations of the partnership between Gano, Thoms and Talbott.
    ^Second ; That the court erred by instructing the jury that one of the receipts offered in evidence, which bore date 12th Month, 30th, 1836, but was described in the declaration as being made on the 30th of January, 1836, could not be admitted in evidence, by reason of the variance, and could not be given in evidence under the common oounts:
    Third : That the court erred by permitting the defendants to give in evidence the admissions of their copartner, William Talbott.
    The article of copartnership between Gano, Thoms and Talbott, was as follows :
    “ Article of agreement made and entered into this twenty-ninth day of December, 1835, by and between William Talbott, of Jefferson county, Ohio, and William Thoms and Aaron G. Gano, of Cincinnati, “The above parties hereby agree to enter into a joint speculation in lard, bulked meat, and barrel pork, and stock hogs.

      “ The purchases to be made by said Talbott, in Indiana and Illinois, or wherever he can make the best purchases, and at the best rates,, valuing on the said Gano and Thoms, from time to time, for the amount of said purchases ; each party to bear an equal portion of the profit or loss on said speculation, to be stopped at the option of either party. Said Talbott to charge nothing for personal services; all actual expenses to be charged to joint account. Said Gano and Thoms to remain in Cincinnati, to accept and protect said Talbott’s drafts, on joint account, and he to advise them, from time to time, as purchases are made, in order to effect insurance, when thought advisable.
    “Wm. Talbott,
    “Wm. Thoms,
    “ 1st day of January, A. D., 1836. “ A. G. Gano.
    “ Witness, Charles Duffield.”
    The receipt offered in evidence, and rejected, reads thus :
    “ Bridgeport, 12th Month, 30th, 1836.
    . “Received of John Moore five thousand one hundred and ten dollars, which we promise to replace to the said Moore, on demand, with interest from date. Gano, Thoms and Talbott.”
    *The count is as follows: [303
    Eor that, whereas, heretofore, to wit, on the thirtieth day of January, in the year of our Lord, one thousand eight hundred and thirty-six, at Bridgeport, to wit, at Jefferson county, in consideration that the said Aaron Gano, William Thoms, and William Talbott, doing business under the style and name of Gano, Thoms and Talbott, had, then and there, received of the said John Mo.ore five thousand one hundred and ten dollars; they, the said GaDO, Thoms and Talbott, made their certain receipt, in writing, and delivered the same to the Said Moore, and, thereby, undertook, and, then and there, faithfully promised to replace the said sum to the said Moore, on demand, with interest from date. Yet they, although often requested,” etc.
    The ease was argued by Edwin M. Stanton and H. Stanbery, for plaintiff.
    J. & D. L. Collier, Wright, Coffin and Miner, for defendants.
   Read, Judge.

One of the points made upon this motion is, that the court erred in their construction of the articles of agreement between Gano, Thoms and Talbott. As the construction of articles of copartnership is often times modified, or changed, by the construction which the parties themselves have given them, by their own acts, we shall not now express any opinion upon this point, but confine ourselves to the other errors assigned.

.It is said that the court erred—

First: In ruling out one of the receipts offered in evidence, on the ground of variance.

Second : In holding that Moore could not recover if Talbott were a common member of both firms.

Third : In admitting the declarations of Talbott in evidence, to defeat a recovery upon the receipts.

The averment of time in the declaration does not appear to be de304] scriptive of the receipt declared upon, and it would not *seem, therefore, to be a variance. But it is unnecessary to decide this point, .as the instrument was clearly admissible under the common count, for it was, in legal effect, a promissory note.

The charge that Moore could not recover if Talbott were a common member of both firms, was erroneous ; because the written instrument; upon which recovery was sought, fixed the legal rights and liabilities -of the parties. In actions at law, upon written contracts, the party to sue is the one in whom the contract vests the legal interest; and the parties to be sued are those upon whom it imposes the legal liability The contract itself determines the legal rights and liabilities of the parties, and confers the legal right of recovery. The written in■strument upon which recovery was sought, in this case, conferred upon Moore the right to recover at law of Gano, Thoms and Talbott.

This view, also, excludes Talbott’s admissions, as evidence to defeat the legal liability of himself and his partners, Gano and Thoms. Because, if the written instrument sued upon is obligatory, and authorizes a recovery at law against all the members of the firm, to allow the admissions of one partner, jointly bound, to release a part of the members of the firm, would be to permit, in effect, one person, so bouud, wholly to change the contract, without the consent of him who has the legal interest in the contract. To suffer one party to a contract, by his admissions, to alter its legal effect, would violate that principle of law which requires the consent of all the parties to a contract, in order to alter, limit, or abolish it. A party can not be permitted, by his own parol admission, to contradict or defeat his written instrument. The admissions of Talbott were improperly received.

Verdict set aside, and new trial granted.


author: Birchard, Judge.

text:
    *Arctus Trumbull and others v. The Portage County Mutual Insurance Company.
    Where the assured has contracted to convey the assured premises at a future day, on payment of the purchase money, and, between the date of the contract and the day of payment, the premises are destroyed by fire, this is not such an alienation as would defeat the policy.
    That the plaintiffs had an insurable interest, and the legal title, and an equity equal to the purchase money, or the whole value of the premises; and, being in possession, they might recover upon the policy.
    This is an Action of Covenant, from Portage county, upon a policy of insurance, and was submitted to the court upon the following agreed statement of facts:

      “ In this case it is admitted that the policy of insurance issued to Luther Trumbull, and that the loss occurred as stated in the declaration. That said loss occurred on the 22d day of February, 1843, and the requisite steps were immediately taken by the plaintiffs to notify and charge the insurers ; that all requisite proofs can be made by the plaintiffs, and that they are entitled to recover the amount named in the policy, as insured upon the buildings and machinery, with interest from the 1st day of June, 1843, unless the contract entered into by the plaintiffs, with Robert Wilson, deprive them of the right to recover to this extent. It is further agreed, that the stock and machinery were about of equal value, fifteen hundred dollars each. It is admitted that Lucy Trumbull is the widow of said Luther Trumbull, and that the plaintiffs are his heirs at law. That, on the 23d day of .January, 1843, a contract was entered into with said Robert Wilson, by the plaintiffs, for the sale, to him, of a certain tract of land, upon which the insured premises were situated, but that said premises remained in the possession of the plaintiffs up to the time of the fire. It is further agreed, that said Wilson is still living, put has paid nothing upon said contract, and has done nothing towards its fulfillment. That if the plaintiffs shall not recover more than two ^hundred dol- [306 lars, with interest from the first day of June, aforesaid, they shall ■not recover costs.”
    Peter Hitchcock, R. Hitchcock, and Wilder, for plaintiffs.
    We are not aware that there will, or can be, any great controversy as to the general principles of law applicable to the case. We are free to admit that a person talcing an assurance against fire must have-an interest in the property insured, and that this interest must continue until the loss happens. In other words, if the insured sells or-disposes of his interest in the thing insured, and, subsequently, that thing is destroyed by fire, he can recover nothing upon his policy. The reason is obvious. If he has no interest in the property destroyed, he sustains no loss by its destruction ; and it is only against loss that he is insured. It is not necessary, however, that the insured' should be the absolute owner of the property ; it will be sufficient if he have a qualified interest in it. In case of the. sale of property insured, the policy itself may be assigned to the purchaser ; and if this be done with the assent of the insurers, they will be holden for any loss which may subsequently happen.
    But, although an absolute sale of the property, by the insured, would discharge the insurers from any subsequent liability upon the policy, still, we do not apprehend that every change in its situation would have this effect. As if, for instance, the insured should mortgage the property to secure the payment of a debt, or should lease it, or should agree to sell it. In either of these eases, we suppose, the insurers would still be liable, for the insured would still have an insurable interest in the property. And we suppose that so long as such insurable interest remains, the liability of the insurers continues.
    The defendants, aware of the principle that when the insured parts with his interest the binding force of the policy ceases, and feeling the impropriety of compelling any person, to whom they would be no 307] longer liable for losses, to contribute *to their funds, have made provision whereby any person insured, and having disposed of the property insured, may eekse to be a member of the company. In the-fourth article of their bylaws, attached to the policy, we find the following : “ Whenever any member of this company shall alienate, or sell, any house or building insured, he shall surrender his policy to the secretary, with a request, signed by him, to have the same canceled, with a certificate of the recorder of deeds, or the agent of said-company, in his vicinity, or of some other person, under oath, of the fact, and the secretary shall deliver the same to the directors, to be canceled, and shall enter the same of record as canceled, to take effect from the day the same shall be received by the secretary. And in ease one building only is alienated or sold, where others are contained in the same policy, said policy may be surrendered as to that building only, and to take effect on the day it shall be received by the-secretary ; and the amount of the premium on the building so sold, shall be indorsed, after thirtj days from the day of surrender, on said member’s premium note, or such portion thereof as shall not have been paid or expended; provided further, that whenever the grantee, or alienee, shall procure an assignment and transfer of a policy, when he shall have purchased the whole property insured, and shall, within thirty days of the day he purchased the same, forward the said assignment and poli'cy to the secretary, he may have the same ratified and confirmed to him ; and when said assignment shall be approved by a director, the secretary shad record the same, and the confirmation thereof, by order of said director, when said grantee, or alienee, shall have given satisfactory security for the payment of the residue of the premium note given for said policy.”
    The alienation or sale here spoken of is unquestionably the counter part of that alienation or sale which would exonerate the company from any further liability on the policy. And what description of' sale is it ? Unquestionably such sale as changes the ownership of the property, and vests the entire interest in the purchaser — a sale which may be proven by *the certificate of the recorder of the county. [308 Of course it must be a sale by deed, and by deed absolute. A mere mortgage of the property for the security of a debt ; a mere contract to sell and convey at a future period would not entitle the insured to have his premium note surrendered or canceled. This privilege is, manifestly, intended to be extended to those, and those only, who cease to have an insurable interest in the property insured. In such-case the company would be no further liable, and, of course, it would be right and proper that the insured himself should be no further liable.
    As before remarked, it seems to us that the decision of this case must depend upon the construction which the court shall give to the written agreement which is made a part of the agreed case. If the court shall hold this to be evidence of the absolute sale of the buildings — as evidence that the plaintiffs were divested of all insurable interest in the same, then, so far as the buildings are concerned, the plaintiffs can not recover. But if, on the other hand, this is a mere contract to sell, and not a sale — if by it the plaintiffs were not divested of their interest in the property, but still retained an interest which might be insured — if, in fact, they actually sustained, or could sustain,, a loss by the destruction of the buildings, then, it seems to us, our right of action is complete, and we are entitled to a judgment for the whole amount insured.

      It seems to us, that, if ever there was an instrument of writing -which would be construed as a mere agreement to sell property, this is one. It is drawn with peculiar care to secure to the vendors an interest in the property, until full payment should be made by the vendee. And if payments were not punctually made, then the contract was to have no further binding force ; it was to be considered as null and void. Time is, in fact, made of the essence of the contract. Such being the ease, we can not see with what propriety the defendants can resist this claim, or how they can sustain the position, that the plaintiffs had no interest in the proporty insured, at the time of its destruction by fire. They were in possession ; they were the owners in fee 809] simple; the property was unincumbered, ^except that the plaintiffs had given to Wilson a contract, by which they agreed to convey to him, at a future period, provided he made payments as therein stipulated. If he did not make such payments, the whole contract was to be void, and of no effect.
    E. Wade, for defendants.
    The defendants deny the plaintiffs’ right to recover the insurance money, upon the buildings and machinery, for the following reasons, viz.
    First : Because the sale by the contract, independently of the provision in the twelfth section of the charter, divested the lien of the company, upon the insured premises, for the premium note, and being a voluntary act of the plaintiffs, to the injury of the defendants, takes from the plaintiffs the right to recover upon the policy.
    Second ; Because the contract of sale, made by the plaintiffs, to Wilson, is such an alienation of the insured property as was contemplated by the twelfth section of the charter, and, consequently, makes the policy, on which the suit is brought, void.
    Upon the first point I would remark that the contract of insurance is a personal contract of indemnity, and it does not differ “ from a bond of indemnity, or a guaranty of a debt, since the obligor, or guarantor, takes upon himself certain risks, to which the obligee or creditor would otherwise be. exposed.” 1 Philip’s Institutes, 2. This being the nature of the contract of insurance, it follows, that whenever the •creditor, guaranty, or insured, does any act by which the liability of the surety, guarantor, or insurer is ineresed, or his means of indemnification for losses are diminished or destroyed, the contract of suretyship, •guaranty, or insurance, is at an end. To the first part of this proposition, the authorities are too numerous to be cited. See Theobald, Prin. and Surety, 70, and the authorities cited. To the second part of the proposition, see Chitty on Contracts, 5 Am. Ed. 534. “ The negligent loss of, or injury to, collateral securities, held by the creditor, or a *fund in his hand, to the prejudice of the surety, will, under [310 circumstances, afford the surety ground for relief in equity.” And so it is at law. Baker v. Briggs, 8 Pick. 122, 128 ; Commonwealth v. Vanderslier, 8 Serg. and Rawle, 457 ; Lichtenthaler v. Thompson, 13 Ibid. 157 ; Hayes v. Ward, 4 Johns. Chancery, 129.
    In the case before the court the insured premises in the hands of the plaintiffs were held as security for the defendants, to satisfy them for their undertaking to guaranty or insure the safety of the plaintiffs’ property; the plaintiffs standing in the light of principal, and the defendants as the sureties or guarantors, so far as this lien upon the insured property is concerned.
    That this analogy between the insurers and sureties is not fancied, but real, will appear when we consider the right of the insurers to be subrogated, on payment of a loss, to all the rights of the insured, in the thing insured, or in its proceeds. Thus, when an insurance is effected b*y a mortgigee for his own benefit, in ease of loss and payment by the underwriters, they thereby become entitled to a proportional interest in the debt secured by the mortgage, in the nature of salvage. Robert v. Traders’ Insurance Company, 17 Wend. 631. So, where a vendor, by contract, effects an insurance on the premises sold, intending to secure himself against the insolvency of the vendee, in case of loss and payment, the insured are entitled to so much of the purchase money as is paid for insurance. Tyler v. Ætna Insurance Company, 16 Wend. 385 ; Atlantic Insurance Company v. Storrow, 5 Paige, 285.
    This contract to Wilson was, in equity, a conveyance of the estate to him, and he was, and is, in equity, the owner of this property, subject to the lien of the plaintiffs for the unpaid purchase money. All risks of loss by fire or flood, or any other casualty, devolved on Wilson, from the time the contract was executed. No proposition in the law is clearer than this. Sugden Vendors, 278, at bottom, and 338, 339, at top ; Paine v. Miller, 6 Vesey, 349 ; 2 Story’s Equity, 96,. sec. 789 ; Columbian Insurance Company v. Lawrence, 1 Peters, 151.
    *The interest of the plaintiffs in equity, after the contract, was [311 • but a mere lien for the purchase money. “ But there is a class of cases where the vendor retains a lien, notwithstanding he may have taken either personal or other collateral security. Where the title' /remains in the vendor, and the purchaser is in default for nonpayment of the whole or part of the purchase money, the vendor will not be compelled to part with his title until the purchase money is paid.” Williams v. Roberts, 5 Ohio, 35. Thus the plaintiff’s right in these premises, at the time of the loss, was but a mere lien for the purchase money, which Wilson could at any time discharge by complying with .his contract; and this right in Wilson wholly suspended the lien of the defendants for the premium note.
    Before entering upon the discussion of the second point it may not be improper to state that the law is very clear, that, in ordinary policies of insurance, where the insured, as such, are not members of the company, and have no interest in, or knowledge of, its charter, or organization, the absolute transfer of the thing insured defeats the policy, as it is but a personal contract, and does not attach to the thing insured. Carroll v. Boston Marine Insurance Company, 8 Mass. 515.
    But in reference to policies of this kind it has been decided, and would in all probability be held as good law, that where the vendor retains an interest in the thing sold, or holds a lien on it for the purchase money, the policy will cover such interest as the vendor retains in himself, and no more. Of this class is the case of Lazarus v. Commonwealth Insurance Company, 5 Pick. 76 ; Same case, 17 Ibid. 81 ; Etna Insurance Company v. Tyler, 16 Wend. 385, 397.
    But because policies of that character are not void where the insurer sells, but retains an interest in the property, or a lien for the purchase money, it by no means follows that, in a mutual fire policy, like the present, under a charter and bylaws like those above specified, ■such a sale as the plaintiffs made to Wilson will not avoid the policy. The policy in this case being modified by all the provisions in the charter of the company renders it necessary to ascertain the true 312] meaning and *intent of the charter, in order to know the extent of the obligations imposed on the company by the policy of insurance.
    But it is said that the plaintiffs retain a lien upon the land for the purchase money due by the contract to Wilson. So they do. And so they would have done had they made an absolute deed of conveyance to Wilson, of the same lands, and upon the same terms of payment as the contract, the terms being stated in the deed. 5 Ohio, 35. There is this difference only — that now the plaintiff’s can defeat Wilson’s right to the land by a deed to a bona fide purchaser, and in the other case, Wilson could have defeated the plaintiff’s right to the lands by •the like deed; and yet, in the case of the deed to Wilson, it would have been the identical case put by the plaintiffs for avoiding the policy. The rule of interpretation applicable to the present ease is this : “ A thing which is within the intention of the makers of the statute is as much within the statute as if it were within the letter ; and a thing which is within the letter of the statute is not within the statute unless it be within the intention of the makers, and such construction ought to be put upon it as does not suffer it to be eluded.” People v. The Utica Insurance Company, 15 Johns. 358, 381; Bacon’s Abridgt. Stat., I, 5, 10. On this principle, supposing the phrase to “ alienate by sale or otherwise” to be taken to refer literally to alienations by deed of bargain and sale, still, if alienations by contract were within the intention of the legislature, the charter should be so construed as to make the policy void.
    I have found but two cases in the books upon mutual fire insurance policies, where the effect of a sale upon the policy came in question. The first is the case of Stetson v. Massachusetts Mutual Eire Insurance Company, 4 Mass. 330. In that case the plaintiffs, after the insurance, and before the loss, sold one half the house insured, reserving to himself an interest in the part sold, for seven years, and at the time of sale taking a mortgage to secure the purchase money for the half sold. At the time of the loss the house was occupied by a tenant of the insured, who paid him rent for the house.
    *The 18th article of that company (but whether of its charter [313 or bylaws does not appear from the report,) provided, that “ when any building insured should be alienated by death, sale, or any other means, the insured, his, her or their representatives, may surrender his, her, or their policy, and receive a sum not exceeding their deposit money.” The twenty-third article provided, “ that a transfer of the policy should not operate as a discharge of the insured from his obligation to fulfill the conditions of the policy until the transfer should be entered in the books of the company.”
    It will be observed that in that charter the insured, instead of giving a premium note, and making it a lien upon the insured premises, made a deposit of money with the company, to the amount of the premium required, and the articles did not make the policy void, as in the ca3e before the court, but only required it to be surrendered, on alienation, and made it optional with the company to receive the policy or refuse it. The court in that case held the policy, under the circumstances, binding, and Sewall, Judge, says : “ That the 18th article, especially if we connect it with the twenty-third section, imports a continuance of the contract, notwithstanding an alienation of the-premises insured It seems to have been the intent of the parties, that in this mutual insurance, although the insured is at liberty, upon an alienation, to surrender his policy or transfer, yet that his deposit and personal responsibility are retained by the company until a surrender or an acceptance of the assignee, by an entry in the transfer book of the company.” In the case before the court the whole interest was sold ; whereas, in that ease, hut half was sold. And so-far as that case is similar to the present, it is in favor of the defendants.
    The other is that of Lane v. The Maine Mutual Fire Insurance Company, 3 Fairfield, 44. I have not access to the report of this case, and can only give the abstract of it from the .Treatise on Fire Insurance, 125. The insurance in that case was upon a store and stock of goods. A sale was made of the stock of goods, and a verbal lease of the store; but before the time of insurance had expired (and 314] it is presumed before *the loss,) the insured took back both the store and stock of goods. The charter of the company provided, that “whenever the property insured should be alienated by sale or otherwise, the policy should be void, etc.” The court held that the store was not alienated by the verbal lease; that it was only a tenancy at will; that the policy was intended to cover, and did cover, whatever goods the insured might have in his store at any one time, and that it made no difference whether he sold the goods all at once, or retailed them out in the course of trade, and renewed them as necessity required ; and they gave judgment for the plaintiffs. It does not appear, from the above very meagre abstract of the case, whether the charter of that company required the execution and deposit of premium notes by the assured, nor whether, if it did, they would operate as liens on the insured property. Upon the store no question of this nature would arise, as it was determined that a lease at will was not an alienation. The insurance of a stock of goods in a store, for a period of one or more years, must of necessity give the right to sell' and renew the stock. The question whether, under a charter which makes alienation a forfeiture of the policy, such a company could insure property, giving the right of alienation, was not discussed or decided. The ease is not an authority against the defendants.
    I conclude, therefore, that from the reason of the thing — from a just construction of the charter of the company — and from authority,, so far as the same can be'found, the case is with the defendants.
   Birchard, Judge.

This ease turns mainly on the question, whether the plaintiffs had an insurable interest in the premises insured at the time the loss occurred.

From the facts stated in the agreed case, it appears that they had. The legal title was in them, coupled with an equity equal to the full value of the premises, that is, a lien for all the purchase money, and they were in possession. They had entered into a contract to convey at a future day. At law, this contract did not transfer any right in the land; and in *equity, ths purchaser can only enforce a [315-transfer after he shall have laid a proper basis by paying the purchase money.

This being the case there was no alienation of the property which renders the defence, of a want of interest in the thing insured, valid. The plaintiffs have sustained a loss, covered by the policy, and it is-equal to the amount insured.

It is said, however, that inasmuch as the premises insured were pledged for the payment of the premium note, the contract to sell avoided the policy by impairing the lien of the company. We can not admit this. If the lien of the defendants is a legal one, the contract with Wilson certainly does not defeat or impair it; if only unequitable lien, it is equally certain that it is elder, and, therefore, better than the equity of Wilson growing out of the contract.

It is supposed that questions might be raised as between the parties- and Wilson; especially should Wilson pay up the purchase money, and demand a specific performance ; but it will be sufficient to determine them when they come before uS.

Judgment for plaintiffs.