source: Caselaw Access Project

author: Judge GIrimke

license: Public Domain

text:
    James Smith et al. v. D. Berry et al.
    "Where the words “ I devise my lands ” are employed in will, they are sufficient to pass an estate of inheritance.
    Petition for partition from Champaign county.
    The facts are these: In 1833, Ackery Berry, by will, devised to his three sons as follows:
    “ First of all, I do give unto my son, David Berry, the one third part of all my land that I now have in possession. And the above, named David Berry is to have his third part off the east side of ■my land, to be divided from the rest by running of a straight line from north to south. I also give unto my son, Elijah Berry, the other third part of my land, that is, the middle third, from north to south, adjoining my son David, on the west side. *1 also give my son, Joseph Berry, the last third which lies to the west, adjoining Henry Sibert’s line from north to south, on the east side of said Sibert’s land.”
    He then bequeathed all Ms movable estate to his son,Joseph and his two daughters, who had intermarried with Marrs and Smith. He died in January, 1834. After the death of the devisor, Elijah Berry died, leaving a widow and several children. Joseph Berry has also died intestate, but without issue. The petitioners, Smith and Marrs and their wives, pray partition of the land devised to Elijah Berry, as heirs at law of the Ackery Berry, upon the ground that their brother Elijah only took a life estate under the will.
    Hamilton and Young, for the defendants:
    Contended that a devise without words of perpetuity passes but a life estate, unless other words in the will show the testator’s intention to convey a larger estate. The omission to devise the remainder, can. not evince an intention to pass one. It would indeed be -strange that & failure to devise afee, should be construed into an intention to devise a fee. Until the statute of 1834, it was not the rule to hold a fee to pass under a devise of land, unless there were words showing a contrary intention; if it were, why was that •statute passed ? 13 Wend. 578; 11 Mass. 528. The word land denotes the object of the testator and not the interest devised. 6 Bin. ‘97; 17 Johns. 221.
    D. S. Bell and G-. Swan, for defendants :
    Insisted that the devise to Elijah Berry passed to him a fee in the land. That the statute of Ohio (29 Ohio L. 242), makes no difference between the bequest of personal and a devise of real estate. •“ Property of every description may be devised, and no particular words are necessary to create a fee. The-intention of the tes“tator, to be gathered from the whole instrument, is the polar star in construing wills, aided by the application of common sense, to the disregard of mere technicalities. By-the application of this rule, and upon authority, this devise will be held to pass a fee. 2 Mass. 58 ; 11 Mass. 528 ; Walker’s Am. Law, 343; Wil. Conn. 745 ; Story’s Ch. 404; 8 Ves. 608; 1 Wash. 96, 100; 1 Doug. 341; 2 L. Raym. 1324; 1 *Bro. C. 437 ; 1 Wils. 333, 334; 3 Term, 359 ; 1 Term, 411; 5 Burr. 2638 ; 8 Term, 9 ; 6 Mod. 107 ; 7 East, 259 ; 2 Wils. 142, 143; 3 Burr. 1541; 1 Cowp. 355; 6 Johns. 190; 4 Kent’s Com. 520 ; 4 Mon. 100; 17 Johns. 281; 4 Day, 371; 3 Des. 80, 168, 249; 2 Ohio, 306, 110. The act of March, 1834, (32 Ohio L. 41), has adopted the true rule, that the estate shall be ab-. •solute in the devisee, without words of limitation to make a less •estate. That act was passed to prevent the litigation that would .arise without it.
   Judge GIrimke

delivered the opinion of the court:

There is a clear distinction between a will and a deed in regard to the words which are necessary to carry a fee. The rigid rules of interpretation which are applied to the last have never been ■considered applicable to the former. The circumstances under which a will is generally made, and the necessity of consulting the intention of the devisor only, have long since relieved devises irom the strict rules of construction which are applicable to deeds. Nevertheless, some rules have been established, even in regard to wills; and these rules profess to consult, in the best possible manner, the intentions of the testator, as gathered from the whole will. Thus the word heirs is not necessary to carry a fee, but any words-which signify an intention to convey the whole interest of the testator are sufficient. Thus a devise of all my estate, all my interest, all I am worth, all my right, all my title, are sufficient to create an estate of inheritance. The general doctrine is, that if the-expressions made use of, denote only a description of the estate, and no words of limitation are used, then only an estate for life' passes; but if they denote the quantity of interest which the testator possesses, then a fee passes. In the case of Hogan v. Jackson, Cowp. 299, the testator devised to his mother all the remainder and residue of all the effects, both real and personal, which •he should die possessed of, and the question was, whether she took a fee in the fee simple estate of the devisor? Lord Mansfield said, “the natural and true meaning of real effects, in common language and speech, is real property and he decided that the testator intended that his mother should take the whole of his property.' In Huxtess v. Brooman, 1 Br. Ch. 437, the devise was to three persons, “ all I am worth,” except §20. The chancellor held that these words, without any others of larger signification; superadded to them, were sufficient to pass real as well as personal estate. In Whaley and others v. Jenkins, 3 Des. 80, there-were no words of inheritance, and no word which had before been construed to carry a fee simple. The testator merely gave his-two tracts of land, to be equally divided between his two sons^. and these words were hold sufficient to pass the fee. This was followed up by the cases of Clarke v. Mikell, and Waring v. Middleton, 3 Des. 168, 249, in which the principle of the former decision was reiterated and enforced. It was said with great force, that the act abolishing the right of primogeniture, and placing, real and personal property on the same footing with personal, ought to change the rigor of the rules which require words of inheritance or perpetuity to pass a fee.

In Jackson v. Pearson, 17 Johns. 381, where the words of the-will were “ my property, after my debts are paid, I leave and bequeath,” without any words to control and explain them, were held to pass the real estate of the testator in fee. A decision equally broad was made in Hungerford v. Anderson, 4 Day, 371, and in Morrison v. Semple, 6 Bin. 94, where the testator gave to his son-in-law “ all his real and personal property,” it wes held that these words denoted the interest of the testator, and not merely a description of the subject devised.

These are some of the leading eases on this subject. A review of all the authorities, English and American, would show that the latter have gone much farther than the former in giving effect to the intention of the testator, and for a very good reason. In America, the law of primogeniture is universally abolished, real and personal property are placed more nearly on a footing with each other, and the heir is no longer a favorite with the courts. The necessity of naming the heirs of the donee, in order to pass the inheritance, was uuknown to the Roman law. It was unknown even in England, before the Norman conquest, when the introduction of feifs first gave rise to the practice. The necessity for naming the heirs originated at a subsequent period, where the rulers of Gothic dynasties granted lands under condition of military service. These grants were sometimes made to the feuda■tory for life, and sometimes to his heirs. Whenever they were n ot specially named, the grant was only construed to be for life. Although this state of things in Groat Britain has long since passed away, yet it has influenced, more or less, the interpreta*■tion even of devises. In America, we have always been relieved from this artificial system, and from all the consequences which have followed in its train, and I think that a court in. Ohio ^should, very naturally, be guided by the American, rather than by the British authorities.

In the will before us, the testator devises to his son David one third part of all his land, and then he devises to his two other sons, Elijah and Joseph, each one third of his land,' dropping the word “all.” I should say that if the word “all” had been entirely omitted, that still the devise would have passed a fee in each instance. But can it be doubted that it was the intention of the testator not to die intestate of any part of his property. The word all used in the first instance, most clearly denotes this intention, and was only omitted in the devise to his two other sons, because it was very naturally deemed to be superfluous. I think, therefore, that Elijah took a fee under the will, and that the petitioners have no title as reversioners after the death of Elijah to demand partition of his proportion of the land, and of this opinion are a majority of the court.

Partition refused.


author: Judge Hitchcock :

text:
    David Patty v. J. W. Mansfield.
    "When a third person claims goods levied hy a sheriff on execution, and prosecutes his claim under sections 6 and 7 of the'law regulating judgments and executions, such claimant can not afterward have an action of trespass against the sheriff for the same goods.
    Reserved in the county of Miami.
    This is an action of replevin, and the declaration is in the common form, predicated upon the unlawful detention of the property therein described.
    The defendant pleads:
    1. The general issue.
    2. “That defendant, as deputy sheriff of the county of Miami, by virtue of an execution issued from the court of Miami county,, on June 27, 1837, in favor of Charles S. Wood and George L. Oliver, partners, etc., against Mercer B. Patty and William H. Iddings, he levied on the property in controversy as the property pf Mercer B. Patty, one of the defendants named' in said execution; that after the levy was so duly made, as aforesaid, David Patty, the present plaintiff, claimed said property as his, and at the instance and request of the said David Patty, a trial of the right of said property was had before David W. Thayer, Esq., a justice of the peace for Miami county, on July 8, 1837, according to the-statute in such case made and provided, and such proceeding *were then and there had in the premises; that by the verdict of the jury, duly sworn, they found that the right to said property was not vested in the said David Patty, and upon which, finding, the said justice entered up his judgment according to the said statute, in favor of the said Oliver and Wood, for the cost of trial for the right of said property,” concluding with a verification, etc.
    To this latter plea there is a general demurrer.
    Thomas, for plaintiff, and Lowe, for defendant, submitted the case without argument.
   Opinion of the court, by

Judge Hitchcock :

The defense relied upon by the special plea in the bar in this case, is grounded upon sections 6 and 7 of the act of March 1, 1831, regulating judgments and execution. 29 Ohio, L. 101. And whether the defense is available depends upon the construction of those sections of the statute. Section 6 provides in substance, that if the officer having a writ of ft. fa. shall levy the same on goods or.chattels claimed by any other person than the judgment debtor, it shall be the duty of the officer forthwith to give notice in writing to some justice of the peace of the county, setting forth the names of the plaintiff and defendant, and of the claimant; and, also, he is to furnish the said justice with a schedule of the property claimed. It is then made the duty of the justice to issue a writ of venire facias, directed to the sheriff or any constable of the county, commanding him to summon five disinterested electors of the county, to appear before' said justice, at the time and place therein mentioned, to determine the right of the claimant to the property in controversy. The claimant is required to give two days’ notice to the plaintiff in execution, or other party for whose benefit such execution was issued, of the time and place of trial, and to prove to the satisfaction of the justice that such notice was given.

In section 7, the oath to be taken by the jury so summoned is prescribed, and the judgment to be rendered on their finding. If the right of property is'found to be in the claimant, judgment *shall be rendered in his favor against the plaintiff iñ execution for costs, and also that he have restitution of the goods and chattels claimed; but if, on the other hand, the right of property is found to be in the claimant, then judgment shall be rendered against him for costs. The section then is concluded by the following proviso: “ That such judgment for the claimant as aforesaid shall be a justification to the officer in returning nulla bona to the writ of execution, by virtue of which the levy had been made as to such part of the goods and chattels as were found to belong to such claimant.”

There is no difficulty in cases where the jury find the right of property in the claimant. It then becomes the duty of the office^ to deliver to him the goods and chattels found to be his, and he will be protected against any claim on the part of a judgment creditor by a return of nulla bona. Thus far the statute is explicit. But if the right of property is not found to be in a claimant, the officer must of course retain it in his possession until sold in due course of law. As the statute does not specifically declare that in such case the officer shall be protected, it seems to be supposed by the plaintiff, in the present case, that he may be subsequently subjected to an action at common law for the property, or to respond in damages for its value. We think, however, that such is not a proper construction of this statute. We suppose that in the enactment of this law the legislature had two objects in view. One was to enable an individual, whose property had been through mistake levied upon, to recover the possession in a summary manner. The other, and the principal, was to furnish protection to an officer of the law, who should make a mistake in the discharge of his duty. This latter object would not be effected, if, after a trial of the right of property and a decision against the claimant, the officer could still be subjected to an action at his suit. Besides, no person is bound to claim his property under this statute. He may at once commence his action at common law against the sheriff or other officer, and if he prefer the statutory remedy, he ought to be concluded by it, so far at least as the officer is concerned.

The proceedings under the statute, however, will not conclude the claimant so far as persons, other than the officer, are concerned. If the right of property is really in him, that right will not be destroyed by a levy and sale. He may pursue it in the hands of a purchaser at sheriff’s sale, or he may, in a proper state of case, and in an appropriate action, proceed against the plaintiff in execution, or his agents, or any other person who may have improperly interfered.

The plea in the case under consideration, although somewhat ^defective in form, shows that the property in controversy was levied upon by execution; that it was claimed by the plaintiff; that at his request there was a trial of the right to the property, which was found not to be in the claimant, and judgment accordingly. We think the facts as substantially set forth constitute a delcnse to the action.

The demurrer is therefore overruled, and the cause continued and remanded to the Supreme Court of Miami county .for further proceedings.


author: Judge Wood

text:
    Banjamin Moore v. A. P. Adams and Jacob Newkirk.
    A conveyance of land made in consideration of compromising alleged causes of action for slander and malicious prosecution, and also in consideration, of forbearing to urge a prosecution for perjury, is a contract executed, and not to be set aside in equity upon allegations that there was no legal foundation for such suits or prosecution.
    In chancery, from Seneca county.
    The bill alleges, that in May, 1831, a prosecution for forgery was instituted by the complainant against the defendant Adams, before xi justice of the peace, and that, on examination, Adams was discharged, owing in a great degree to the skill and ability of an attorney employed by him. That immediately after the discharge, the said attorney informed the complainant, that Adams was about to commence criminal proceedings against him for perjury in the testimony he gave on said examination, and that he had also been employed to commence suits for Adams, against the complainant,, ■for slander, and for malicious prosecution ; that the expense of defending said suits would amount to $500 ; and it would be much better for him to settle with Adams, and prevent such proceedings. That said attorney, the better to impose on his credulity, secure his confidence, and deprive him of his legal rights, assured the •complainant in the most solemn and impressive manner, that although he could not assist him in defending the prosecution for perjury, nor defend the other suits for him, he was under the •strongest moral obligation to tell him the truth, and he assured him of his sincerity; the justice refused to advise the complainant what he should do; he was without counsel; that an affidavit was ■prepared, and the attorney said if the prosecution was once commenced, it must take its course, and then was the time to settle all ■the difficulties, to prevent further proceedings. A warrant was then prepared, and the declaration .made, that no further delay would take place.
    The complainant asserts that although perfectly innocent of *crime, he thought the pubic mind might be prejudiced against him, if the threatened prosecution and suits were commenced ; that he was embarrassed and dejected by the circum•stances thrown around him, and thus, bewildered as he was, ho agreed to compromise with Adams, and pay him $100 in satisfaction of all their difficulties, upon his (Adams’) assurance that he would do all in his power to prevent any future investigation, and the declaration of said attorney, that such compromise would Save complainant from inevitable ruin, degradation and probable-imprisonment in the penitentiary. That to secure the payment of said $100 dollars to Adams, he executed a deed to him for a lot of forty acres of land in fee simple, and took from him a writing, obliging to reconvey the land upon the payment of the money, within a year, and took a discharge from said pretended grievances.
    The bill further states that a prosecution was afterward instituted against the complainant for perjury, upon said examination, from which he was duly discharged; and, that soon after, learning that said Adams was aboút to convey said land to his co-defendant Newkirk, he informed Newkirk of all the foregoing circumstances, warned him not to purchase, as he intended to take measures to recover the land back. Yet the said Newkirk took a. conveyance for said land, and now claims to hold the legal title. The bill prays to have said conveyances set aside, and to have the-land reconveyed to the complainant.
    Adams, in his answer, admits the prosecution against him for forgery, instituted by complainant, and prosecuted with great, rigor; that he employed counsel to defend him; that he designed to commence suits for malicious prosecution, and for slander; and. so told complainant. Admits the compromise of those suits, and the conveyance to him of the forty acres of land, and his sale and conveyance to Newkirk; he admits something was said about a. prosecution for perjury, but not until after the deed was executed to him; denies all knowlege of any influence used by his attorney to induce the complainant to settle, and alleges the proposition for a settlement came from the complainant, was accepted with reluctance, and that no agreement to compromise any criminal prosecution formed any part of the consideration of said deedNewkirk admits his purchase of Adams with full knowledge of the condition for redemption, but he avers his purchase was bonafide, without notice of the circumstances attending the conveyance to Adams, detailed in the bill. There is a general replication. *and proof of the execution of the deed to Adams under the circumstances set out in the bill; also, that Newkirk had full knowledge of all the material facts when he took the conveyance, and of the agreement to stifle a criminal prosecution for perjury..
    Rawson, Smith, and Chapin, for .complainants, contended:
    1. That the.deed to Adams was a mortgage only. ■
    2. That it was obtained under undue influence, and by threats, sufficient to induce equity to set it aside, as illegal and against public policy. They cited 1 Mad. Ch. 308; 1 Bridg. M. 445; Powell on Cond. 20; 2 Johns. Ch. 35; Amer. Ch. Dig. 204; 3 Cowen, 571, 572; 2 Kent’s Com. 466, 467; 4 Ib. 464; 8 Johns. 198; 1 Ch. Cont. 236.
    3. That Newkirk purchased while Moore was in possession-, and before the deed to Adams was absolute. 1 Johns. Dig. 315; 2 Bridg. Ind. 365.
    4. That Newkirk paid nothing, but by his own showing took the conveyance to satisfy a debt due him by Adams, and if the deed be set aside, his debt will remain as before. 3 Cowen, 577-579.
    5. That the deed to Adams was obtained by fraud, and from a party under duress, and the parties are not in pari delictu.

    No argument was submitted for the defendants.
   Judge Wood

delivered the opinion of the court:

The complainant seeks relief, because he was compelled by duress to make the dee.d to Adams. Is he right in this assumption? We incline to a different opinion. Lord Coke says, “that, for menaces, in four instances, a man may avoid his own act: 1. Eor fear of loss of life; 2. Of member; 3. Of mayhem; and 4. Of imprisonment. 2 Bac. Ab. 156, 157. The complainant was in no-fear of life, or member, or mayhem — the mere threat of consequential imprisonment does not constitute duress. There must-be actual and unlawful imprisonment to constitute duress, and the-deed given as a consideration for the discharge. “ It is not accounted duress of imprisonment, but when either the imprisonment or the duress that is offered, in prison, or at large, is tortious and unlawful; for executio juris, non habet injuriam. Ib.

2. The complainant seeks relief because the consideration of his deed was, in part, the agreement not to prosecute him for perjury. We think this ground, also, unavailable for him. The-agreement is unlawful, in which both parties are concerned, and *they stand in pari delictu. It is contra bonos mores, and ,good policy requires the court to leave the parties as it finds them, .and not corrupt itself by interfering between a corrupt vendee and an equally tainted vendee. 4 Ohio, 418; 7 Ohio, 77; 2 Kent’s Com. 366; 2 Stark. Ev. 87. These cases are all of executory contracts, it is true, but this court has determined that when a deed was delivered, upon an agreement analogous to the one set up in the bill, the contract was executed, and that the court would leave .the parties to the full enjoyment of the fruit of their iniquity without interference. It is said, however, that that was an action at law, and this a case in equity. We know of no distinction in the application of these rules in the one or the other court.

The bill is dismissed with costs.


author: Judge Lane

text:
    Jonathan Edwards v. Wm. L. Knight.
    'The election of a prosecuting attorney may be contested before the court of common pleas; but the contestor must show in bis notices of contest that be was a candidate or elector at the election.
    Certiorari to the common pleas of Trumbull.
    The record shows that at the November term of the court of •common pleas, in the year 1837, Edwkrds produced in court a copy of a. notice-duly served upon Knight, that the election of Knight as prosecuting attorney would be contested by Edwards, and that depositions would be taken to that end, at certain times •and places therein mentioned. Upon this the contest was docketed, when Knight, by. his attorneys, moved to quash the proceedings for the following causes:
    1. That the law makes no provision for contesting the election, •of a prosecuting attorney.
    2. That no notice of the intention to contest was filed with the •clerk within twenty days after the election.
    3. That it does not appear from the notice that Edwards was an «lector or candidate.
    4. That the court had no jurisdiction.
    Edwards then produced a certificate that it appeared from the poll-book of the township of Youngstown, that he voted at the* election.
    The court of common pleas quashed the proceedings, and taxed-the costs against Edwards. To reverse these orders, this certiorari is prosecuted.
    *Crowell, for Edwards:
    Cited the laws of the state, and contended that the election of prosecuting attorneys might be contested under the general law for contesting elections.
    G-. Tod and Hoefman, for Knight.
   Judge Lane

delivered the opinion of the court

The act to regulate elections (29 Ohio L. 44) prescribes the general mode of conducting them. Section 43 gives to any candidate- or elector the power to contest the rights of senators and representatives to their respective seats, prescribes the manner of taking testimony, and ior submitting the issue to the proper branch of the general assembly. Section 64 prescribes the same method in contesting the rights of those elected to county offices, except that the matter is to be determined by the court of common pleas, to whom it is to be sent within thirty days. The act. to provide for the election of prosecuting attorneys (31 Ohio L. 13)^ directs their “election to be held in the same manner that other state and county officers are to be elected, under the provisions of the act to regulate elections.” The question first presented is, whether the right of contesting attaches to the prosecuting attorneys as well as to other county officers? The affirmative is our opinion. The mode of contest is a part of the machinery by which the elections are regulated, and the right to office investigated and declared, as necessary as any step in the proceedings p and the adoption of the manner of holding elections of county officers in the last statute, is an adoption of all the incidents by which their rights to office become mature.

The second objection, that notice was not duly filed with the-clerk, is not true in fact; the election being held in October, and the proceedings filed on the 21st of the same month.

The third objection, that Edwards shows no right as candidate- or elector to contest the seat, seems to us well taken. The candidate is not presumed to know all the electors in his district, and. he is bound to respond to none, except those who show in the notice the right to question,-which forms the basis of the proceeding. The contestor offers proof that he was an elector, but we think the right should appear on the record. This opinion is in analogy with the settled course of decisions in this court under the bastardy act, requiring the facts, the mother is an unmarried *woman, and resident in Ohio, to be set forth in the complaint.

The order of the common pleas, quashing the proceedings, was right; but no authority is perceived for taxing the costs of the proceeding against the contestor.

The judgment of the court of common pleas is in all things affirmed, except as to the taxation of costs, in which respect it is affirmed.


author: . Judge Grimke

text:
    Nathaniel Massie’s Heirs v. Israel Donaldson
    A bill brought against heirs on their ancestor’s contract to convey lands, must make the personal representative party defendant.
    Process in chancery should be served on minor defendants, and the case must be established by proof, even on default for answer.
    Bill of review to reverse a decree of the court of common pleas of Highland county, for errors on the- face of the proceedings. The following abstract shows the state of the case:
    Israel Donaldson (defendant in review) filed his bill at the June term of the court of common pleas, 1816, against the heirs of Nathaniel Massie, deceased, at that time infants, to obtain the oonveyanee of a tract of land, situate in Highland county, which, as was alleged in said bill, Nathaniel Massie, in his lifetime, had given his penal bond to convey to said Donaldson.
    The bill charges that said Massie in his lifetime, and his heirs since his death, had not conveyed said tract of land, and prays the heirs, by their guardian, may answer the bill, and that a decree may be rendered, conveying the said tract of land to said Donaldson, so as to vest in him the legal title, if the heirs of said Massie have the title thereto; but in case the defendants, the heirs, have not the title to said tract of land, and are incapable to ■assure the title, or invest him with such title, then to decree him such compensation or sum in damages, or otherwise, as may be assessed by a jury, or as may to the court seem just and proper.
    At the same term, on the motion of the complainant, Donaldson, by Ms counsel, it was ordered by the court that William Creighton, jr., of Ross county, be appointed guardian, for the defendants, etc., to answer, etc., subpena to issue accordingly, etc.
    On July 4, 1816, subpena issued to the sheriff of Ross county, to summons the said William Creighton, jr., to answer for the infant heirs, etc,; subpena returned “ summoned.”
    *At the March term, 1817, it was ordered that the defendants answer the bill within sixty days.
    At the February term, 1818, rule was entered, on motion of the •complainants, that the defendants answer the bill within sixty •days from the rising of the court, etc.
    At the May term, 1818, the defendants having failed to appear and answer the bill, although ruled so to do, it was decreed that the complainant recover the sum of $1,575 and costs, to be levied from the assets which have or may descend to the heirs, as it .appeared to the court that they could not convey the tract of land, etc.
    Leonard and Massie, for plaintiff in error,
    made the following points, and cited the authorities annexed:
    1. That a decree was rendered for the recovery of the sum of $1,575 and costs, whereas no decree should have been rendered for the recovery of money against the defendants, because the representatives of the personalty of Massie’s estate were not made a party, and the situation and disposition of the personal assets .ascertained before a decree for the payment of money was rendered against the real assets in the hands of the heirs. 2 Story’s Com. 536; 1 Ves. 211; 4 Johns. Ch. 638; 5 Ohio, 555.
    2. That the said defendants, although minors, did not appear by guardian or next friend.
    3. That no person accepted the guardianship ad litem of said •defendants, although minors, nor acted as guardian ad litem for them in the said suit in chancery. (
    4. That no answer was filed or made by the said defendants, or by any guardian in the said suit.
    5. That the decree was taken pro confesso against the said defendants without any plea, answer, or demurrer.

      6. That in the rendition of the decree, no day was given tkedefendants after they attained their full age, to appear and show cause against the decree. 1 Har. Ch. Pr. 425.
    7. That said decree was taken without evidence to support the-same.
    8. That the defendants were not summoned to answer the said: bill, but only William Creighton, jr., their guardian, and that, neither the defendants, nor the said William Creighton, appeared or answered, pleaded, or demurred to the said bill.
    The 2d, 3d, 4th, 5th, and 8th errors relate to the erroneous proceedings *had in the case at the time the bill was filed, and before and at the rendition of the-decree, the heirs of said Massie? being minors. 1 Har. Ch. Pr. 474; 2 Mad. 202; 8 Pet. 144.
    No argument was submitted for the defendants.
   . Judge Grimke

delivered the opinion of the court:

This is a bill of review to- reverse the decree of the'court of' common pleas, for errors apparent on the face of the proceedings- -and decree.

N. Massie, in his lifetime, had contracted to convey a tract of land to the defendant; but failing so to do, the defendant filed a bill against his heirs, praying in the alternative for a conveyance, or a compensation in damages. None of the defendants, then infants, were served with process; but a guardian ad litem- was, on the motion of the complainant, appointed for them. This guardian never answered, and'a decree pro confesso for $1,575 was rendered against the heirs. The administrator of N. Massie was never made a party; but on the decree thus rendered, an execution issued and was levied on land descended to the heirs.

The first great error which seems to have been committed, was-in not making the personal representative of N. Massie a party.. As the personal property is the fund which is primarily liable for the payment of debts, as well after death, as during the life of the debtor, the administrator in whom it is vested, and who is a trustee lor those who are ultimately to receive the benefit of it, is an indispensable party before the court. Thus, in Ashhurt v. Eyre,. 3 Aik. 341, to a bill for a discovery of assets, a plea that the administrator was not a party, was adjudged good. And in Gregory v. Forrester, 1 McChord’s Ch. 318, it was held that a suit could not be maintained against heirs for the purpose of subjecting-assets in their hands to the payment of debts, unless an administrator was appointed and made a party, although the plaintiff himself would have the right to administer. There are, to be sure, exceptions to the rale. Thus in Pluxtell v. Penton, 2 Atk. 51, it was decided that a suit might be instituted against heirs for the discovery of real assets, upon suggesting that the personal representative was contesting in the ecclesiastical court. In Massachusetts, a suit may sometimes be maintained against heirs . alone. 12 Mass. 399. But it is by ^express statute that this is permitted, and is an evident departure from the regular mode of proceeding.

In England, heirs are liable to be sued on the bond debts of their ancestor. This is because such debts bind the land, and constitute a lien upon it. The heirs are, therefore, liable in the first instance. But even in that country an heir is sometimes entitled, in chancery, to stand in the place of a bond creditor against the personal estate of the intestate.

The case of a vendee filing a bill for the purpose of subjecting the land sold to the payment of the debt, might seem to form an exception to the general rule, which requires the administrator to be made a party. The vendee as well as the vendor has a lien on the land; the latter for the unpaid purchase money, and the former for the purchase money prematurely paid. But even admitting that this was a bill of that character; yet our administration laws, after the death of the vendor had accrued, would not recognize this lien, without an account of the personal estate being previously taken.

To sustain these proceedings would be indeed to subvert the whole design of our administration laws, which is to subject the personal property, in the first instance, to the payment of the . debts of the intestate. It would be equally contrary to the principle, that all persons interested, and against whom a decree might be rightfully rendered, should be made parties to a bill in chancery. This rule is so strict in its application, that although it has been held that a purchaser under a decree shall not be affected by error in the decree, yet it has also been held that even he ought to see that all proper parties to be bound are before the court, and that he does not take a title which can be impeached aliunde. Bennet v. Hamill, 2 Seg. L. 556.

The personal representative of N. Massie should have been a party to these proceedings, and an account should have been taken of the personal property, in which event the sale of the land on. execution may have been rendered unnecessary. Another error assigned is, that there was no service upon the defendants. There is no doubt what the English practice is. Infants, as well as other defendants, are served with the subpena, and the former are afterward brought into court, in order to receive their answer. The rule has, in very particular cases, been departed from. Thus in Smith v. Marshall, 2 Atk. 70, where a mother secreted the infants, so that they could not be served, a service upon her was declared to be good service. And in ^Thompson v. Jones, 8 Yes. 141, the rule,appears to have been still further relaxed, for ¡on a motion that service on the father-in-law should be deemed ¡sufficient, the chancellor said that the register had furnished him with several orders that service upon the mother sliould be good. 'These exceptions, however, proceed upon the very principle on which the rule requiring service on the infants is founded. Service on. them would be very absurd, if it were not intended by ’■that means to apprise their relations of the institution of a suit, ¡arid thus to put it in the power of those most deeply interested in itheir welfare, to protect their interests.

In Ohio, it has not been the general practice to make service on ithe infants. A very loose mode of doing business has universally ■ (prevailed. This is greatly to be regretted, since as much mis-chief might be created by returning to the old and regular practice, as has been occasioned by the original departure from it. 'The practice of every court may be said, sometimes, to constitute ¡the law of the court; and, perhaps, even this practice may be entitled to respect, if it is the creature of inveterate usage. But it is unnecessary now to decide this point, as there are so many other .errors in these proceedings.

Although a guardian ad litem was appointed, no answer was ever filed by him, and the decree was taken pro confesso. It has been doubted whether a decree can regularly be taken against an infant, even upon the answer merely. An answer of infants by their guardian is a pleading only, and not an examination for the purpose of discovery. But however this may be, it is clear,that -where no answer has been put in, a decree can not be rendered ¡against infants by default. Mills v. Dennis, 5 Johns. Ch. 97, but the plaintiff must prove his case. This is a settled principle both in England and America.

The proceedings in the original suit, then, are thoroughly defective. The defects disclosed are, some of them, so gross, so manifestly prejudicial to the interests of those concerned, that we would not be authorized to say that they were excusable, even upon the old maxim, that common error makes the law. There is no alternative but to reverse the decree.


author: Judge Hitchcock

text:
    *Robert Clark v. Wm. B. Hubbard. Original Bill-Wm. B. Hubbard v. Robert Clark. Cross-Bill.
    Jin a bill, under the statute, for quieting possession, the complainant must set forth and prove actual possession.
    Conveyance decreed fraudulent, upon the proofs in the ease on a cross-hill to quiet possession.
    These cases came before the court, at its last term, in Guernsey county, on bills, answers, exhibits, and testimony, and were reserved for decision in this court.
    The complainant, Robert Clark, filed his original bill in the court of common pleas in Guernsey county, on November 20,1834, in which he states that on December 24,1824, John Clark, by deed duly executed, conveyed to him 200 acres of land, in the first quarter of the second township, first range of military land in Guernsey county, for the consideration of $400, which deed has been duly recorded, but through mistake, was not recorded until September 24, 1831. That the price agreed upon for said land was $400, for $195 of which, the said John Clark was at the time indebted to him on note and book account, and that.the balance of the purchase money has been since paid. That he immediately took possession of the land, and has remained in possession ever .since, and still is in possession.
    He further states that the defendant, William B. Hubbard, about March 24,1826, as attorney for the judgment creditor, procured an execution to be issued on a judgment, before that time rendered in Belmont county, against the said John Clark, caused the same' to be levied on tbe said land, and about February 28, 1837, became the purchaser at sheriff’s sale; and that the said Hubbard threatens to dispossess him of said land, etc. It is further charged that at the time the éxecution was issued, and the levy and sale made, Hubbard had knowledge of complainant’s interest in the land. The prayer of the bill is, that the complainant may be quieted in his title, that Hubbard may be decreed to release, etc., and also for general- relic
    On April 2, 1835, Hubbard answered this bill. In his answer, he admits the purchase at sheriff’s sale, and avers that the land was soon after transferred to him on the books of the auditor of the county for taxation. He denies that the complainant has any title to the land, and charges that if the complainant has any deed, the same is fraudulent and against law. He denies that he had any notice of complainant’s claim, until after his purchase at sheriff’s sale. He denies that the complainant has, or *ever had the possession of the land in controversy, but avers that immediately after the confirmation by the court of the sheriff’s sale, which was at the April term, 1827, he took possession of the land himself, •and has been -in the uninterrupted possession ever since. No deed was executed to him by the sheriff until March 31, 1835.
    The transcript of the record of judgment, executions, returns, orders of court, as'well as the sheriff’s deed, are referred to, and made part of the answer.
    To this answer a replication was filed, and testimony subsequently taken.
    On October 8, 1835, Hubbard filed his cross-bill. In this he states that he is the legal owner, and is in possession of the land in controversy. He charges that the deed under which Robert Clark claims title, and purporting to have been made by his brother, John Clark, was voluntary, fraudulent, and void at law, as against creditors and subsequent purchasers; that the said deed was not recorded until long after his purchase at sheriff’s sale, and long after that sale had been confirmed by the court. He refers to his answer to the original bill, and the exhibits therein made, and makes them exhibits in this bill. He further alleges that the said Clark is about to dismiss his original bill, gives out in speeches that he has the better title, or some kind of title, by which he is disquieted, etc.; and prays that his bill may be considered, as well a cross-bill as a bill for relief, that he may be quieted in his title, and that the said pretended deed of the said Clark may be delivered up to be canceled, etc.
    Robert Clark, in his answer to this cross-bill, refers to his original bill, and makes it a part of his answer, and avers that the facts therein stated are true, except as to the $195 therein stated to be a part of the price of the land. He refers to an account filed with the answer as showing the true state of the dealings between him and his brother John, taken from his own books; alleges that a note referred to in said account was given up Jo John Clark, and that the last payment on the account exhibited was made at the time of settlement, and was an even payment for the land of $30; denies all fraud, and insists that the purchase was bona fide, etc. This answer is not sworn to.
    There was some parol evidence in the case in addition to the papers exhibited; but as this evidence is commented upon in the court, it is not here stated.
    *Cowan, for Hubbard, made these points:
    1. He insisted that under the chancery act of this state, this court had jurisdiction to grant to Hubbard the relief sought.
    2. That the facts of the case proved that the deed from John to Robert Clark was fraudulent as against creditors, and therefore void as to Hubbard, who purchased at sheriff’s sale on an execution in favor of one of those creditors.
    3. That deed never took effect, not being delivered.
    4. Admitting the deed not to be fraudulent as to creditors gen. erally, yet it would be fraudulent in law as to Hubbard, he being a purchaser without notice, and the deed not having been recorded at the time of his purchase, nor within six months after its execution.
    He cited 22 Ohio L. 220; 29 Ohio L. 348; 4 Kent Com. 173, 2 ed.; 2 Johns. Ch. 369.
    Harper and Peck, for Clark, insisted:
    That the deed from John to Robert Clark was made in good faith, and for a bona fide consideration.
    That although-Hubbard might not have had notice at the time he made the purchase, yet that he had notice before he received his deed, or paid the purchase money, and that such notice would, in equity, have the same effect as if he had received it prior to his purchase.
    That if the deed of Clark was not good as a conveyance, not being recorded, it would operate as a contract to convey, vesting in Robert Clark a perfect equity, of which he could not be divested by the sheriff’s sale, that sale being only of the interest of John Clark still remaining in the land.
    They cited 3 Ohio, 527; 1 Ohio, 258; 1 Johns. Ch. 288; 2 Ib. 158; 3 Ib. 345; 2 Atk. 397.
   Judge Hitchcock

delivered the opinion of the-court:

The original bill in this case was filed in accordance with section 14 of the act regulating proceeding in chancery. 29 Ohio L. 81. That section provides that “any person having the legal title and possession of lands may file a petition against any other person-setting up a claim thereto; and if the complainant establish his title to said lands, the defendant shall be decreed to release his claim, and pay the complainant his costs, unless the defendant in his answer shall disclaim all title or claim to such lands, and offer to give such release to the complainant, *in which case the complainant shall pay to the defendant his costs, except for special reasons the court shall otherwise decree.” By this section of law a complainant, in order to sustain his bill, must show that he is vested not only with a legal title, but with the actual possession of the land in controversy. This the complainant, Clark, has alleged in his bill, and has attempted to prove by the testimony. But in this there is an entire failure. Even admitting that he has a legal title under the deed referred to in the bill, the evidence shows conclusively that he was never in possession of the land, but that, on the contrary, Hubbard, by himself or tenants, has been in possession since the confirmation of the sale by the court of common pleas in March, 1827. Since that time Hubbard has paid the taxes, as well as the arrearages of taxes- previously due. Clark, then, does not make a case for the interference of this court.

This lead us to examine the case made by the cross-bill. And here we have no hesitation in saying, that Hubbard makes a case for relief, unless his title is postponed to that of Robert Clark. He is in the actual possession of the land, and no valid objection can be made to his title, unless it is on account of Clark’s deed. The purchase at sheriff’s sale appears to have been in accordance with law ; the sale itself was confirmed by a court having jurisdiction ; and the deed was executed in pursuance of an order of that court.

The first and important question-to be considered, is whether the deed of December 20, 1824, from John to Robert Clark, was bona fide, or whother it was fraudulent as against creditors, and consequently void as to such creditors and those connecting themselves with them. The testimony upon this point is not multifarious. It is principally introduced by Clark himself, but still it is quite satisfactory and conclusive. It consists of the answer of Robert Clark, the deposition of John Clark, certain letters passing between John and Robert Clark, a letter of Stephen Colwell ádmitted as evidence, the deed itself, and a transcript of the judgment and execution, under which Hubbard made his purchase.

This transcript of record.shows that a judgment was recovered by the administrators of one Lynn against John Clark at the June term of the court of common pleas of Belmont county, 1819, on which sundry executions were issued to different counties and small sums made. On April 15, 1826, an execution *was issued on this same judgment, directed to the sheriff of Guernsey county, which was levied on the land in controversy, and the land subsequently sold. From this, it is apparent that to the amount of the balance due on this judgment at least, John Clark was indebted on December 20, 1824, the day of the date of the deed. Whether he was indebted beyond this does not appear in the testimony.

Robert Clark, in his answer to the cross-bill, or rather in his original bill, which he makes a part of this answer, says, that the consideration for this deed was agreed at §400. That a part of this §400 was made up of a note and account in which John Clark was at the time indebted to-him, and on which was due §195, and that the balance has been paid to John Clark since the said deed was executed. In the answer, he says he was mistaken as to this $195, but does not point out the manner in which the mistake occurred. He refers to an account filed with this answer as showing a true statement of the dealing between himself and brother John, and says, that upon settlement it was found that the land had been more than paid for by §30. This account appears to have been rendered and the settlement made in 1832, and there is one charge for goods in October, 1831, amounting to $90.

The deed bears date December 20, 1824; is acknowledged January 2, 1825, and recorded in 1831.

John Clark testified, that “ he is a brother of Robert Clark; he is acquainted with the land which is the subject of this suit; he owned it once.” He then refers to three letters, one from Eobert to himself, dated Juue 10, 1822; and two from himself to Eobert, dated, one March 17th and the other March 28, 1823. He says that there wore other letters, two of which he recollects ; but does not state when written, or what they contained. That he heard that his brother was sick, not likely to live, and that he took the deed with him and went to Brownsville, where his brother resided. That the deed was executed in Belmont county before he went to Brownsville. That he offered the deed to Eobert, who requested him to bring it to Ohio, and have it recorded. That when he returned to Ohio, he handed it to Stephen Colwell, Esq., to have it recorded, who through some neglect or mistake did not get it recorded. That afterward it came into his possession with a bupdle of papers which Colwell had left in the hands of Mr. Peet. Between 1814 and 1822, he *had dealings with Eobert. When Eobert rendered his account, which was between 1820 and 1822, he, John, fell in debt between $300 and $400, without interest; with interest, more than $400. Included in said account was a promissory note, which he had forgotten, but which he recognized when he saw his handwriting thereto when it was presented. The note was dated in 1814. The consideration for the land was this account and interest, but considerable interest was thrown away. Shortly after deponent received the deed from Peet, a son of Eobert called and took it to get it recorded. Afterward, deponent received a power of attorney and $30 to attend to the land. He thinks that in 1824 or 1825, Hubbard inquired of him if he did not own land in Guernsey county, and he replied that he did not that was clear of dispute. That after Hubbard purchased, he told him, Clark, of the purchase, and that he replied that he had no right to buy, because he knew that he, Clark, did not own the land. On cross-examination, he says that he received the note referred to in 1832, which was the first time he had seen it after its execution. Does not know that Robert furnished him with but one statement of the account, which was in 1832, showing that an amount of interest was due which he threw away. The interest would make the account near $500. Does not recollect whether the deed was written after the message came from Brownsville. Eobert Clark was not able to attend to business after deponent got to Brownsville, but was able to converse with him and tell him what to do. Deed was not delivered. Robert told deponent to take it and have it recorded. No accounts were looked over at the time; Robert was too unwell. Had no further communication with Robert about the land until the time the power of attorney came on, which was between 1830 and 1832. William B. Hubbard was attorney for deponent in the case in favor of Lynn’s administrators. Deponent knew that he was indebted to his brother Robert, but had forgotten the note.

I have been thus particular in stating the testimony of this witness, because, extraordinary as it certainly is, it is the principal testimony relied upon by Robert Clark to,sustain his answer and his case.

Colwell’s letter is of no further importance than it goes measurably to contradict the testimony of John Clark. Clark states that he handed the deed from himself to Robert, to Colwell to fcget it recorded. Colwell states that he has no recollection of ever having seen the deed, or of ever having had it in possession.

The copy of record, in the case of Lynn’s Admr’s v. Clark, shows that Hubbard was the attorney of the plaintiff, and of course Clark is at least mistaken in saying that Hubbard was his attorney in that case.

The deed bears date on December 20,1824, and is acknowledged on January 5,1825. Still, John Clark does not remember whether it was written before he received inlormation of the sickness of his brother or not. If written afterward, and if upon its date it shows the time when written, he would have been in no great haste to visit a sick and dying brother, as he must have delayed fifteen days between the signature and acknowledgment of the deed, both of which purport to have taken place in the. county of Belmont. These circumstances serve to raise a suspicion that the memory of this witness is, to say the least of it, somewhat treacherous.

But it may be well to examine this evidence a little more particularly. Robert Clark, in his original bill which constitutes a part of his answer to his cross-bill, says that the whole consideration for. this land was.$400 ; $195 of which was'due from his brother to him on note and account at the time the deed was executed. The witness, this same brother, says that the indebtedness was between $300 and $400, including the interest more than $400, and that apart of the interest was thrown away. A part of this indebtedness was by note, executed by him in. 1814, and which he had forgotten until it was shown to him, when he recognized his signature. This indebtedness was, as the witness says, the consideration of the deed. And this amount of indebtedness was ascertained when the account was rendered and a settlement made. Now here is a material discrepancy between the answer and testimony. In the answer, Robert Clark does not claim that his brother owed him but .$195 when the deed was executed, but the brother insists that it was more than $400. Robert claims that this indebtedness constituted but a part of the consideration. John insists that it constituted the whole.

Robert Clark is careful to state that this note, so often referred to, had been given up; that an account had been rendered, and settlement made. It becomes important to inquire when this took *place. In his examination in chief, John Clark says that this account was rendered .between 1820 and 1822, and that the note constituted a part of the account, and a part of the consideration of the land. On his cross-examination he says he does not know that.his brother ever'furnishod him with but one statement of the account, which was in 1832, and at the same time the note was given up to him, which he had not until then seen after it was executed, and had entirely forgotten its existence. If wo are to credit this witness, a note which he did not know was in existence until 1832 constituted a part consideration of a deed which he executed in 1824!

This witness further states that from the time the deed was executed until between 1830 and 1832, there was no further communication between himself and brother about this land. This is a little extraordinary if there had in fact and truth been a bona fide sale, when it is considered that the only pretended consideration was an open and unsettled account, and which was not closed until 1832.

Another circumstance is worthy of remark: If Robert Clark became the purchaser of this land, it would have been reasonable for him to have paid the taxes. But it was not done. They were in arrears, and paid by Hubbard after his purchase at sheriff’s sale.

But it has been urged in argument that the letters exhibited in evidence, furnish presumptive proof of the fairness of the transaction. In these letters, it is true, something is said about land, but this is not the principal subject of correspondence. Nor is there anything in them approximating to a contract. The last of them was written in the latter part of March, 1823, almost two years before the deed was made. And there is no evidence to show that there was anything further passed between the parties respecting land until the deed was executed.

There is one more circumstance worthy of consideration: In 1824 or 1825, Hubbard inquired of Clark, according to Clark’s testimony, whether he had not land in Guernsey county. Clark replied, not that he had no land, but that he had none which was not in dispute. At this time Clark must have known that he had not paid up the judgment to'Lynn’s administrators, and he must have known, too, that Hubbard was the attorney for the plaintiffs, although he might have forgotten it when he gave his deposition. About this same time, John Clark makes this deed to his brother Eobert, lying, as he would have us believe, at the point of death, *and then rests quietly for eight years before he ascertains whether he is indebted to that brother to the extent of the estimate value of the land or not.

Taking all these circumstances into consideration, the court can have no doubt that this conveyance was made for the purpose of defeating creditors of their dues. It is, therefore, fraudulent and void as to those creditors, and as to Hubbard, who purchased at sheriff’s sale, under a judgment in favor of one of those creditors.

Such being the opinion of the court, it is unnecessary to examine the other points made in the case.

Hubbard is entitled to á decree.


text:
    E. and W. Hull v. R. Jeffrey et al.
    Assignments of property giving preference to creditors may be made in good faith, under proper circumstances, notwithstanding the statute of 1835 upon that subject.
    In chancery from Marion.
    The plaintiffs are judgment creditors of E. and S. Jeffrey, and claim the benefit of an assignment of their property, made by them to Ustick and others, their trustees.
    On May 3, 1837, R. and S. Jeffrey assigned to Ustick, Doty and Shunk, all their property, real and personal, enumerated in a schedule, in trust to sell, collect the avails, and apply them as follows:
    1. To pay the expenses of the trust.
    2. To pay certain enumerated debts due to banks, upon which Others are liable with them as sureties.
    3. To pay all other debts owing by'them.
    4. To pay any surplus to the makers of the trust deed.
    5. Finch, for complainants. •
    S. Brush, for defendants.
   Judge Lane

delivered the opinion of the court:

This case was reserved to settle a single point, depending upon the construction of the first section of the act of 1835, amendatory to the act directing the mode of proceeding in chancery. 33 Ohio L. 13. It enacts “that all assignments of property hereafter made by debtors to trustees in consideration oí ^insolvency, and with design to secure one class of creditors and defraud others, shall insure to the benefit of all the creditors, in proportion to the amount of their demands.”

The plaintiffs, who are among the general creditors of the Jeffreys, demand an equal distribution under this section of the statute, and deny the lawfulness of the preference the Jeffreys sought to give to their creditors. There are certain errors, either of transcription or of the, press, which affect the interpretation, and which give the phraseology of this section a very awkward appearance. The phrase, “contemplation of insolvency,” should probably be substituted for “ consideration of insolvencythe word “ insure ” is a substitute for the word “ inure,” and the word lt defraud” was probably intended to be “ defer.”

The right to prefer one creditor to another, in good faith, has always existed. During the commercial embarrassment, a few years since, debtors, in view of insolvency, adopted the plan of assignments to trustees, either to create inconvenient embarrassment upon the pursuit of debts, or to preserve their property from a compulsory sale, or to impose terms upon creditors, or to secure some other profitable result to themselves. Examples of these practices may be found in 5 Ohio, 293; 7 Ohio, pt. 2, p. 246-248. Hence the statute of 1834, the terms of which, as they appear, relate to fraudulent conveyances made to trustees only. , It does not affect conveyances made to a creditor, nor a conveyance made without fraud. The statute of 1838 goes farther, and secures the equal distribution of all assignments made to trustees in view of insolvency, whether fraudulent or not. The changes in the law may, therefore, be shortly expressed.

Before 1835, fraudulent assignments being void, any individual creditor might separately pursue his rights. By the statute of 1835, assignments to trustees were made the subject of equal distribu- . tion, if fraudulent; but since the statute of 1838, all the assignments to trustees, whether fraudulent or not, if made in view of insolvency, are divided among all creditors. Conveyances, other than those made to trustees, are not affected by either statute.

There is nothing in the evidence, or in the terms of this assignment, which show it to be fraudulent. The rights of the plaintiff, therefore, are postponed to those of the enumerated creditors. '"With this expression of opinion, the case is remanded to the county for further proceedings, reserving all other questions.


text:
    *Northrup’s Lessee v. Brehmer.
    Two deeds, neither recorded within six months after execution, the second deed, if first recorded, shall prevail in the absence of all notice.
    Ejectment from Tuscarawas county.
    Both parties claim title from Jacob Leonard, who was the patentee of the land from the government.
    On October 13, 1820, Leonard conveyed to Brehmer. On February 13, 1834, he conveyed the same land to Smith, under whom Northrup claims. The defendant was in possession, but had not recorded his deed. His deed was put on record on September 16, 1834, and Northrup’s on June 6, 1837. The plaintiff, though the youngest grantee, claims as an innocent bona fide purchaser, without notice, more than six months having intervened- between the execution and record of the deed to Brehmer. There was no evidence of notice in fact.
    Atherton and Peck, for the plaintiff:
    Contended that the conveyance to Brehmer was fraudulent and void as to Northrup, because it was not recorded within the six months allowed by law, and before the conveyance to the plaint.iff’s grantor. They cited 29 Ohio L. 384, and 22 Ohio L. 220.
    The delay for more than six months to record the deed under which plaintiff claims, in no way strengthens the defendant’s title, or weakens that of the plaintiff.
    No argument was submitted for defendant.
   Judge Wood

delivered the opinion of the court:

This case involves merely the construction of the statutes for the recording of deeds. The statutes provide that unless an older deed shall be recorded within six months of its execution, it shall be deemed fraudulent against a subsequent bona fide purchaser without notice. Neither of these deeds were recorded within six months of their execution, but the last was executed before the first was recorded, and as to that, in the absence of all evidence of notice, the first must be held fraudulent. We do not see how the omission to record the last deed affects the question; there is no claim by a later purchaser without notice. The plaintiff will have judgment, but the defendant is entitled to the benefit of the occupying claimant law.


author: G-rimke, J.,

text:
    *Samuel Frost v. John Johnson.
    An accord on mutual promises to perform is not good, if there be no performance before action brought.
    Error to a judgment of the Supreme Court in Athens county.
    The action was debt upon an arbitration bond. The declaration sets out the award by which Frost, the then defendant, was directed to surrender to Johnson a farm belonging to him which was then in Frost’s ¡possession, with the grain in the ground, and to pay 1173.76 damages, and also nine dollars of the costs of the suit. The breach assigned, is the of the

      To this declaration there are three pleas, and the only question is as to the sufficiency of the second plea, to which a demurrer is filed. This plea avers that after the making of the award, in consideration that Erost agreed to deliver Johnson a horse and wagon, and to pay him on or before April 1,‘ 1835, $48.76, with interest on $173.76 from March 29, 1834, and also to cut and shock the grain in the declaration mentioned, and to repair all the fences on the farm, Johnson agreed to receive the horse and wagon, and to permit Frost to cut and shock the grain and to repair the fences, and to deliver him two-thirds of the grain in the shock, and to receive the said horse and wagon and. the said agreement, in full satisfaction of the sum of $173.76 and all interest then due, and also of the costs. Frost then avers that he delivered the horse and wagon to Johnson, who received it, and that on the 5th of July thereafter, he was ready and offered to cut and shock the grain and to repair the fences, and that Johnson prevented him from so doing, and tha't he is still ready to do the same; but it contains no averment that he ever paid the $48.73.
    J. Welch, for plaintiff in error, insisted :
    1. That an accord constituting part of an agreement upon other and new subject matter, or an agreement upon a new consideration, containing an accord, is a good plea. 1 Com. Dig. 207; 2 Johns. 158; 2 Lutw. 1538.
    2. That an accord with part performance (or tender of performance) attended with expense or loss to the defendant is a good plea. 2 Johns. Ch. 243; 1 Com. Dig. 205; Chit. on Con. 274.
    3. That an agreement with part performance is a good plea.
    *4. The plea avers a satisfaction and discharge by the plaintiff in receiving the horse and wagon and agreement.
    J. T. Brazee, for defendant in error,
    contended that the true doctrine on the subject of accord, etc., is this :
    1. Every accord ought to be full, perfect, and complete; for if divers things are to be performed by the accord, the performance of part is not sufficient, but all ought to be performed. 9 Coke, 79; 2 H. BI. 317; 2 Term, 24; 5 Term, 143; 9 Johns. 233; 4 Lit. 342.
    2. The accord is an agreement by simple contract to discharge a debt and by specialty, and being of less nature can not be a satisfaction.
   G-rimke, J.,

delivered the opinion of the court:

An accord without satisfaction is no bar. The accord or agreement to accept satisfaction must be actually and fully executed to form a defense. Bac. Ab. Sit. Accord, A; 1 Ld. Raym. 122; 2 New R. 148; 3 East, 252.

This is the general principle, and the case of Watkinson v. Higlesby, 5 Johns. 384, does not contradict it. There, A. pleaded that he, together with B., being indebted to C. and several others, agreed to assign all their stock in trade, and outstanding debts to C., and their other creditors, who agreed to accept the same in full satisfaction of their debts, and averred that he and B. did deliver all their stock in- trade and assigned all the debts due to them, which were received in full satisfaction by C. and their other creditors, and it was held to be a good satisfaction.

There was not a mere substitution of one right of action in the place of another against the same person. The debt of C. was canceled, although a right of action as against others hud sprung up in its place. It was not in- the power of C. to execute the agreement for those others, although it might be in his power to execute his own agreement. An accord not ex.ecu.ted is no bar to the pre-existing demand, but if executed by delivering a collateral thing which is agreed to be accepted as a satisfaction, it is a bar.

The old books sometimes speak of records executory on a future day certain, and accords executory without limitation of time; but in both cases it appears to be admitted that if a full performanee *does not precede the bringing of the action it is no defense. An accord, says Comyn (Dig. 135; Lit. B. 4), must be executed before the action commenced. In the late case of Cartwright v. Cook, 3 Barn. & Adol. 70, it was held that an accord, with mutual promises to perform, is good, though the thing be not performed at the time of action. And in the ease of Goodright v. Cheesman, 2 Barn. & Adol. 328, it was held that an agreement not performed, although it was not good as an accord and satisfaction, would be a good defense under the general issue. But as Mr. Chitty, in his work on contracts, remarks, this decision is not in conformity with preceding determinations. If there were any real conflict between the English and American authorities, when collected and well considered, I should be disposed to give the preference to the latter. And I observe that in the late case of Russell v. Lytle, 6 Wend. 390, it was held that to an action of debt on bond for the payment of money, a plea averring an agreement to-accept a surrender of lands, mortgaged as collateral security, and a tender of performance by the defendant was not a bar. This carries us back to the old doctrine that accord executed is a satisfaction. But that accord executory is only substituting one cause of action in the room of another. In Allen v. Harris, 1 Ld. Raym. 122, it was decided that an accord before execution is no bar; and, as remarked in 6 Wend., this has been so often ruled that a decision to the contrary would overthrow all the books.

The doctrine in 3 Barn. & Adol., that an accord with mutual promises to perform is good, though the thing be not performed at the time of action, rests upon the single dictum of Comyn, and is contradicted by the general current of the authorities. I do not see, then, how this plea can be sustained. The determination on the demurrer was right, and the judgment must be affirmed.


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    *Thomas Magee v. Thomas S. Beatty and James M. Bell, Administrators of Z. A. Beatty.
    Since the passage of the act of March 16, 1838, “ declaratory of the law on the subject of mortgages,” all doubts are removed with respect to their priority, and whether executed before or since the passage of that act, they take effect from the time of their delivery to the recorder.
    Reserved in Guernsey county.
    This is a case in chancery. The facts, so far as it is necessary to state them, are as follows:
    At the March term of the court of common pleas of Guernsey county, 1834, the complainant recovered a judgment at law against Tnomas S. Beatty, for one thousand dollars damages, besides costs of suit; upon which judgment execution was issued on the 2d day of April next following, which was levied on lot numbered 18, in the town of Cambridge, in said .Guernsey county, as the property of said Thomas S. Beatty.
    On February 27, 1834, Thomas S. Beatty mortgaged the lot in controversy to Zaeeheus A. Beatty, by deed of mortgage of that date, but which was not acknowledged until the 12th day of March, of the same year. This deed was left for record on the 14th day of March, but not actually recorded in the book of .records until the 2d day of April. The term of the court of ■common pleas commenced on the 24th day of March.
    It is alleged in the bill that this deed of mortgage was executed, ■without consideration, and for the purpose of defrauding creditors, ■especially the complainant. Zacclieus A. Beatty, in his answer, denies the fraud, sets out the consideration for which the deed was given, and avers that the same was good and bona fide.

    Thomas S. Beatty has not answered.
    Since the institution of the pi’ocoedings, Zacclieus A. Beatty, who was originally a defendant, has deceased, and James M. Bell, his administrator, has been made a party defendant.
    The prayer of the bill is, that the mortgage deed may be declared void, or postponed as a lien to the complainant’s judgment; and that the land may be sold to satisfy that judgment.
    Cowan and Parrish, for complainant, and Pjeok, for defendants, argued the case at length.
   Judge Hitchcock

delivered the opinion of the court:

This case was argued at great length and with much ability, and submitted to the court at the last term. The question of *fraud seemed to have been abandoned, as well it might be, there being no proof to sustain the allegation.

As presented to the court, it was a ease of two creditors contending for the priority of lien, and this priority must depend upon the construction of the statutes relative to the subject. The mortgage under which the defendant, Bell, as administrator of Zaccheus A. Beatty, claims, was executed, acknowledged, and left with the recorder of the county, previous to the first day of term of the court at which the complainant recovered his judgment, but was not actually copied into the record book until after the rendition of that judgment. If, then, by a. fair construction of the statute, a mortgage takes effect from the time it is left with the recorder, the defendant has the preferable lien, but if, on the other hand, it only takes effect from the time it is copied into the book of record, then the mortgage in this case must be postponed to the complainant’s judgment. By section 4 of the act prescribing the duties of county recorders, 29 Ohio L., they are required to record “all deeds, mortgages, and other instruments of writing, required by law to be recorded,” in regular succession,

according to the priority of their presentation ; “ and if a mortgage, the precise time of the day on which the same was presented, shall also be recorded.” By section 8, the recorder is subjected to an indictment for certain acts of commission and ■omission therein specified, one of which is the omission to record, u without good excuse,” any deed, or other instrument of writing, within twenty days after the same is received for record. In section 1 of the act to provide for the recording of deeds, etc., 29 Ohio L. 346, it is enacted, “ that all mortgages, executed agreeably to the provisions of this act, shall be recorded in the office of the ■recorder of the county in which such mortgaged premises are situated, and shall take effect from the time when recorded; and if two or more mortgages are presented for record on the same day, they shall take effect from the order of presentation for record; the first presented shall be first recorded, and the first recorded shall have preference.” It will be seen that there is no little obscurity in these several provisions taking them all in connection, At least it so seemed to the court at the last term, and we could not agree as to the proper construction. In consequence of this difference of opinion, the case was continued. The difficulty is, however, now removed. On March 16, 1838, the legislature passed an act upon this subject, in which, after reciting that doubts had ^arisen “whether deeds of mortgage take effect from the time the same are delivered to the recorder of the proper county for record, or from the time the same are actually copied into the record book, and that it is proper such doubts should be removed,” they declare and enact that mortgages do, and shall take effect and have preference from the time the same are delivered to the recorder of the proper county, to be by him entered on record.” 36 Ohio L. 62. This declaratory law, we suppose, is decisive of the rights of these parties, and the claim of the ■complainant can not be sustained. The bill might with propriety be dismissed, each party to pay his own cost. But as all the parties in interest are before the court, and as the complainant has a lien upon the land subject to the mortgage, we think it right that the property should be sold, and that from the avails the mortgage debt should be first paid, next the costs of this suit, next the judgment of the complainant, and if there be any surplus, that the same brought into court, and shall decree accordingly.


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    George Yager v. Abraham Wilber.
    The remedy of forcible entry and detainer extends to all eases of entry or maintenance of possession by actual force, and is not limited to the cases enumerated in section 19 of the statute regulating proceedings in forcible entry and detainer.
    Error to the common pleas of Jackson county.
    The record shows a writ of certiorari from the court of common pleas, hy which proceedings, in forcible entry and detainer, before-two justices, were brought up and reversed.
    The justices’ record shows a complaint to them by Yager, that Wilber, with a strong hand, forcibly and unlawfully “entered upon the premises, and with force and strong hand, as aforesaid, doth yet unlawfully hold possession thereof;” that the case came duly to trial, “the proofs and allegations of the parties were fully heard;” their title papers exhibited to the jury; a verdict of guilty, and a judgment of restitution rendered.
    The court of common pleas reversed this judgment, because the complaint did not set forth that Wilber was either a tenant holding over his term, or a judgment debtor in possession, or an occupier without color of title. To reverse this judgment of reversal in the common jileas, is the object of the present suit.
    *J. T. Brazee, for the plaintiff in error:
    Contended that section 1 of the act regulating'proceedings in-cases of forcible entry and detainer, being general, covered every case of unlawful and forcible entry and detainer, or of forcible detainer only, and was not controlled by section 19 of the act, and therefore that the justices in this case had jurisdiction of the complaint. The section referred to provides “ that two justices of the peace shall have authority to inquire, by jury, in the manner hereinafter directed, as well against those who make unlawful and forcible entry into lands and tenements, and detain the same, as against those who, having a lawful and peaceable entry into lands or tenements, unlawfully, and by force, hold the same.” 29 Ohio Ii. 211.
    But if the court should think this general clause controlled by section 19 of the act, then he insisted the record did not affirmatively show that this case is not embraced in that section.

      A. G-. Thurman, contra:
    Presented section 19 of the act regulating proceedings in forcible ■entry and detainer, in these words:

      “ That proceedings under this act may be. had, in all cases, against tenants holding over their term; in sales of real estate on execution, after such sales have been examined by the proper court, and the same by said court adjudged legal; where the judgment debtor was in possession at the time of the rendition of the judgment, by virtue of which sale was had; and where the-defendant is a settler or occupier of land, without any color of title, and to which the complainant has the right of possession.” 29 Ohio L. 214.
    He contended no action could be sustained under the act, but one of the enumerated cases in section 19, the legislative object in passing that section being most palpably only to restrain the action to those cases, as is seen by reading sections 1 and 19 of the act together as a whole. The construction contended for on the other side, would directly conflict with section 109 of the justices’ act, which provides that the jurisdiction of justices shall not extend to “actions on contracts for real’estate; or actions in which the title to lands and tenements *may be drawn in question, except actions for trespass on real estate,” provided for in the act. 29 Ohio L. 190.
   Judge Lane

delivered the opinion of the court:

The question for the decision of the court is, whether section 19 of the “act to regulate the action of forcible entry and detainer,” 29 Ohio L. 210, limits the proceeding under the act to the cases enumerated in that section. One of our most valuable elementary publications, Swan’s Justice of the Peace, 296, expresses an affirmative opinion upon this question. A contrary practice, however, has long obtained in this state, and our present examination leads us to hold this practice correct

Proceedings in forcible entry and detainer are not a remedy of the common law, but were given by statute. The first we find punishing such is in the 5 O. 2, c. 18; the first which seems to provide for the restitution of the lands to the ejected tenant, 8 Hen. 6, c. 9; but this object is more fully accomplished by later .statutes. The object in all these cases is, not to try the right, but -to repress force,' even where exerted under color of right, and to induce men to apply to the laws for relief, instead of seeking to do themselves justice, especially by means which the law abhors. The entry or detainer must, therefore, be by force and strong hand, actual violence, or the remedy is not given by statute.. These words are essential, and mean, says Justice Gross, 7 Term, 308, something more than a common trespass.

Such was the state of the English law at the settlement of our state. Our first statute was adopted by the governor and judges from Massachusetts, in 1795. It is directed against those who make unlawful and forcible entry, and restitution is made, if the jury find the premises are held unlawfully, with force and a strong-hand. 1 Chase’s Ohio Stat. 188. “ It is clearly established (says-Dane) that in Massachusetts, even a right of entry is to be effected in a peaceable manner.” 4 Dane Abr: 732. And the English authorities show that if one having a right to enter, enter manu forti, be may be indicted, notwithstanding his right, and possession restored. 3 Salk. 170; 2 Salk. 450, 479. Our subsequent statutes contained the same substantial provisions. Such are the two statutes of 1805 (1 Chase’s Stat. 482) and 1819. 2 Chase’s Stat.. 1082. They are applicable to no other cases than those accompanied with actual force. The amendatory act of 1823 (Chase’s-Stat. 1248) first extended the remedy to the new *class of cases of tenants holding over, judgment debtors, and settlers without color of title. This amendatory act leaves unimpaired the-operation of the original statute, upon entries made by actual violence, and enlarges thé remedy, by bringing within its scope, a new class of cases, which-are not necessarily attended with force-. In tlie revision of 1824, the statute assumed, substantially, itspresont form. Its ancient office, to restrain entries or detainers by actual force, was conferred by the first, and its enlarged operation over the three additional cases was continued by section 14 of the revised act. Chase’s Stat. 1359.

We find nothing, then, in the history of these changes which countenances the opinion that section 19 of the present statute was intended to restrain the powers conferred in the first. On the contrary, the omission to provide some festinum remedium, to-entries upon land accompanied with force, and necessarily leading to a breach of the.peace, would leave a chasm in our legislation.

The complaint under examination shows an entry by force. The common pleas erred in reversing the proceedings, and their judgment is reversed


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    John G. Worthington v. Philip Young.
    A stipulation m a lease that the tenant may remove any improvements h« may make on the rented premises, does not entitle suoh tenant to set off the value of such improvements, where they have been recovered, in ejectments, against an action for mesne profits.
    Trespass for mesne profits, from Hamilton.
    This-suit is brought to recover the mesne profits of a lot in Cincinnati, the plaintiff having obtained judgment in ejectment. 6 Ohio, 335. Upon trial to a jury, a verdict was obtained by the plaintiff for $1,030. The defendant’s counsel moved for a new trial, and the motion was reserved for this court. The motion is, “and the defendant moved the court to set aside the verdict and grant a new trial in this cause, because the court erred in rejecting evidence offered by the defendant.” The defendant had held possession of the lot under a lease made to him by Hargraves and wife, made in April, 1816. The fee in the lot was in the wife. Hargrave died in February, 1833. This lease was not executed as a deed, and this court has heretofore decided that the term expired with the life of Hargrave. 6 Ohio, 313.
    There was a clause in the lease providing that the tenant *“ should be at liberty to remove at pleasure all new buildings put by him on the premises.” The building on the lot was burned partly down, pending the ejectment, and repaired by the defendant. After verdict in ejectment, application was made to have the improvements valued under the occupying claimant law, and overruled by the court.
    Fox, in support of the motion for a new trial, insisted:
    That the defendant offered to prove to the jury, “that the improvements made by him and left on the premises were worth as much, or nearly so, as the rent of the premisos,” and that the court erred in rejecting this evidence. He contended that the action for mesne profits was an equitable one, admitting every kind of equitable defense in which expenditures, made in valuable and lasting improvements, may be offset against rents.. The damage to the owner, by being kept out of possession, is the rent he would have received, less the amount of the valuable improvements, although the allowance for improvements can not go beyond the rents claimed. He cited 2 Johns. Ch. 441, 442; 4 Cow. 168; Ad. 215; 8 Wheat. 81, 82; 2 Wash. C. C, 165.
    H. Stow, for plaintiff:
    Contended that the proof was abundant on the trial, that the improvements made by the defendant were inappropriate to the situation of the lot, of no intrinsic value, and were removed as worthless. They were made in his own wrong, and his only remedy under the lease was to remove them, which he refused to exercise. The case in 4 Cow. 166, decides that even a bona fide purchaser of the fee, on being ejected, could only claim allowance out of the rents for “ permanent, useful, and beneficial improvements.”
    Wright and Walker, on the same side, insisted :
    I. That since the passage of the occupying claimant law, no tenant has a right to set off to the suit for mesne profits, after eviction, his expenditures for improvements,'though made in good faith.
    2. That law provides a way by which all such claims could *be directly asserted and adjudicated. And certainly no tenant is permitted to apply for relief under that law, and failing, then, to set off his claim against the rents, as in this ease. They reviewed the evidence, and contended that the jury did allow the value of the materials, and so reduced their verdict to the sum found, and therefore the verdict should not be disturbed. The evidence was received, pro forma, and ruled out as inadmissible under the lease. It appeared that the building was burned down twice while defendant occupied, the last time pending the ejectment, and its repair then was in his own wrong; and that he refused to remove the materials under the clause in his lease.
   Judge Wood

delivered the opinion of the court:

The motjon for a new trial is extremely vague and indefinite ; and it may be difficult, after the lapse of so much time, to recall the precise state of facts, as they occurred at the trial. The counsel do not agree, and we repeat there is no. statement with the files to remove the difficulty, as the judges who sat at the trial have not their minute? present, and must depend on recollections alone. In the. ejectment, the lease from Hargrave and wife, defective in its execution, was held not to pass the legal possession of the wife, who owned the fee, for any period beyond the life of her husband. The plaintiff recovered under a subsequent conveyance of the fee by Hargrave and wife. This lease contained a stipulation that the ■defendant should be permitted to remove, at the expiration of the lease, any improvement he should erect on the premises. Evidence, on the trial for mesne profits, was introduced to show that he was notified to do so, but neglected.

The counsel for defendant claim to have offered in evidence on the trial to show, that while the defendant, he made valuable and permanent improvements on the premises, in order to have the amount set off against the rents and profits. The plaintiff’s counsel think the proof offered only tended to show that the defendant had incurred expense in making the improvements, that it was admitted, and was abundant to show, that the improvements made added nothing to the intrinsic value of the lot, were neither beneficial nor permanent, nor suited to the location. If I do not greatly err, the evidence offered was objected to, and admitted, reserving the question, and afterward ruled out. The defend.ant’s counsel suppose it was refused, because it did not recognize the principle that improvements might be set off against the rents '*and profits, and that in this respect the court erred. The court did not intend to express any doubt that such set-off might be made in a proper case, and we think we did not. Such is the law in New York. 2 Johns Ch. 441; 4 Cowen, 168. In Pennsylvania. Addis. 218. And it hag been so decided in the Supreme Court of the United States, in a Kentucky case. 8 Wheat. 81. The authorities concur in the position that the improvements to be allowed must be “ beneficial, useful, and permanent.” The evidence offered to the jury did not, in our view, show such improvements as could be legally set off against the plaintiff’s demand j and this has led the plaintiff’s counsel also into error, as to the reasons for taking this proof from the jury. Upon the last hypothesis, the decision could not be sustained, because the character, as well as the value of the improvements, were questions of fact for the jury, and upon slight evidence would have been left to their judgment. Our impression is — and in the decision of the question before us, that must be our main guide — that the evidence was rejected, because it was inconsistent with the clause in the lease, which has been referred to. The defendant, by this contract with Hargrave and wife, was at liberty to remove all new buildings, •which he should put upon the premises, at pleasure. In this he was not prevented, but desired and notified so to do. By this, stipulation, we then thought he had contracted as to the mode of compensation for any improvements he should make, in the privilege of removing them at pleasure. It was, therefore, doubtless the'understanding of the parties — and such we held the covenant, implied in the case — that no other erection could be placed upon the premises but such as were removable, and that the lessor in no other mode should be held to make compensation. The court, adheres to that opinion, and holds that the evidence was properly rejected, or taken from the jury, Motion overruled, and judgment, on the verdict.