text:
    *Kellogg, Kennel, and Crane v. Joseph Brennan and OTHERS.
    Under the act of February 26, 1840, “providing for the collection of claims against steamboats and other water-crafts, and authorizing .proceedings against the same by name,” a mortgagee of the craft has not a lien preferable to the claims of creditors, especially if the craft is running for the joint interest of owners and mortgagee.
    This is a bill in chancery, reserved in Hamilton county.
    The facts in this case, as they are disclosed in the bill, answers and exhibits are as follows: In the year 1841, John G. Smith, Joseph Brennan, and William Porterfield built the steamboat “Walnut Hills,” and, being largely indebted to divers persons for materials and labor furnished in building said boat, and being unable to pay the same, on the 29th of October of that year, by agreement of all.the creditors, with the exception of the defendant, David Griffey, made a transfer of said boat to one James M. Niles, as trustee, who was authorized to make sale of the boat, if necessary, and divide the net proceeds among all the creditors, and pay the balance, if any, to the former owners. This deed of trust was assented to by all concerned, with the exception of Griffey, but has been lost; and being lost, the contents arc proven by parol.
    After the boat had been running some time, but no money made, the creditors who had before consented to the transfer to Niles, agreed with the former owners, Smith and Brennan, Porterfield having left the country, insolvent, that they should release their remaining interest in the boat to Niles; in consideration whereof the creditors would relinquish their claims against said Smith, Brennan, and Porterfield. This arrangement was consummated and the release executed on May 3,1842. By force of this release, the entire interest in the boat was vested in Niles, as trustee, for the use of the creditors.
    *On the same 3d of May, Niles, with consent of the creditors, sold and transferred the boat to the defendants, Brennan, Montgomery and Stevens, for $12,500, to be paid in monthly installments of $500, to secure the payment of which a mortgage was executed by the purchasers to the complainants, who were creditors of the boat, and who were to receive the payments in trust for the creditors generally.
    In this mortgage these arrangements as to payments are recited, and it is stipulated that just and true accounts shall be kept of the expenses and earnings of the boat, and if the not earnings amount to more than $500 per month, the excess over and above the $500, as well as that sum, is to be paid to the creditors toward the liquidation of the debt. There is also this stipulation : “ And it is mutually understood and agreed by all parties that the said Grane, Kellogg, and Kennel, trustees as aforesaid, and the survivor or survivors of them, shall faithfully divide, every month, pro rata, among the parties for whom the trust in them was created, any and all moneys which may or shall be paid over to them under this mortgage.”
    Subsequently John Owens, one of the original creditors, commenced a suit against the boat, under the law of February 26, 1840, and recovered a judgment. David Griffey, another of the original creditors, in like manner commenced suit and recovered judgment. In like manner sundry others of the defendants, who became creditors of the boat subsequent to the dale of the sale to Brennan, Montgomery and Stevenson, and subsequent to the date of the mortgage, commenced suits and recovered judgments.
    This bill was filed in the superior court of Cincinnati, and all the judgment creditors, as well as others supposed to have claims against the boat, are made defendants. The object is to compel a sale of the boat, and to have distribution of the avails, according to the rights of all concerned. The amount due on the mortgage is between $9,000 and $10,000. During the pendency of the case in the superior court, the boat, *by order of the court, was sold by the sheriff, and the avails, $5,000, remain in his hands. A final decree was pronounced in that court, at the January term, 1844, from which an appeal was taken.
    Fox & Lincoln, for complainant:
    The court will perceive that this case calls for a more full interpretation of the law allowing suits to be brought against steamboats by name than has ever yet been given to it. It requires of the court to decide whether it is in fact a lien law; whether it can overreach statutory liens secured to builders by express statute; whether it overreaches and defeats mortgages previously given; whether a sale under a seizure made by one creditor under this law transfers to the purchaser a full, clear, and indisputable title; or whether another creditor, prior or subsequent to the one under which the boat was sold, can, by a new suit, have the boat resold so as to get payment of his debts.
    As two decisions have been already made by the court in bank on this statute, I will reler to those decisions first, to ascertain whether those cases have decided this question.
    The first case is in 10 Ohio, 384, and merely decides that a suit can not be sustained for debts incurred prior to the passage of the act.
    The case in 11 Ohio, 458, decides that suits may be brought under this act for provisions and other necessary supplies.

      These arc the points decided, but it is rather remarkable that Judge Hitchcock, in delivering the opinion of the court in 10 Ohio, Rays, page 386: “ This law gives a lien upon such crafts for certain claims against them.”
    And'in the case in 11 Ohio, 462, Judge Read delivering the opinion, speaking of tho boat, says: “Her responsibility is not in the nature of a lien.” But in neither of these cases was *the question of lion involved. This being the state of the law, as to tho decisions of this court, I suppose the question is fairly open as to lien or no lien.

    I suppose it will not be pretended that, by tho principles of the common law or maritime law, any creditor of a vessel has a lien for building a boat, nor docs such lien exist for repairs in tho home port, although in a foreign port a lien for such purposes does exist.
    This principle of law is well settled, and will probably be admitted by the opposite counsel.. 4 Wheat. 438; 4 Conn. 493.
    There being no common law lien, then, such lien can only be created by local or statute law, in the absence of any contract between the parties; and I maintain that, to create such a lien by statute, express words are necessary, or at least the language must be such as necessarily leads the mind to the conclusion that the statute was intended to confer a lien, and thereby give to all creditors a preference over another in the payment of tho debt.
    In absence of any particular contract or statute, a lien only exists while the possession of the thing is held by tho creditor. 2 Mor. 403 ; 18 Ves. Jr. 188; 4 Camp. 295.
    So a ship-builder has no lien for repairs where there is an agreement to give credit, or where a credit of eighteen months is customary, unless there is an express contract to that effect. Ho can not retain possession under such circumstances. 4 Camp. 149.
    Let us examine and see if there is any express or implied lien created, by this act.
    Section 1 declares the boat shall be liable for debts contracted on account thereof by the master, etc., for materials, supplies, or labor, etc., in the building, etc.; also for injuries done to persons or property, and for damages and injury done to passengers by any officer or hand on board.

    Section 2 authorizes any person having such demand to proceed against the owners or master, or against the craft itself.

      *It clearly appears, therefore, that there are no words expressly giving a lien; and, in this respect, it differs from all other laws I have ever seen giving a right to sue a ship or steamboat by name, as will be seen hereafter.
    The next question is, whether, from the language used, this court is required or authorized to draw the conclusion that the legislature intended the law to operate as a lien until seizure? I maintain the court ought not to draw any such conclusions, and for tho following reasons:
    1. A law should be so construed, if possible, as not to render inoperative other laws existing on the same subject matter. The construction should be such as to sustain rather than to repeal other statutes. If this is a correct proposition, it is proper to notice the statutes of this state, giving a special lien to mechanics and others, for work and materials furnished in building steamboats, etc.
    The act of January 1,1823, 3 Chase, 252, gives to laborers, mechanics, and furnishers of boats, vessels, etc., a lien for the value of labor, skill, and material. It requires the creditor, however, to furnish an account in writing, containing a suitable description of the property, labor, materials, etc., furnished; make oath thereto, within two months after the labor is done, etc., and have the same recorded ; and then the same is declared “to operate as a lien on the several descriptions of buildings, etc., for two years.” This act only applied to Cincinnati, but by the act of February 5, 1833, and by the act of March 12, 1840, the act is extended to Fulton township, and to Hamilton, Washington, Montgomery, Scioto, Muskingum, and Knox counties; and by the last act of 38 Ohio L. L. 115, the lien is extended to “all repairs, additions, or improvements, upon any house, boat, vessel, or other craft,” etc.
    By the act of March 11, 1843, the above acts were all repealed, and a new law passed giving the same lien to furnishers, etc., of vessels, houses, etc., extending the principle of the law to subcontractors and workmen, etc. This law requires *the account to be sworn to and recorded in the same manner as under the former law.
    My object in referring to these laws is, to show that they a’l give, by express words, a lien on the boat, etc., but on condition that an account is made out and recorded^ etc.
    The construction claimed by the opposite party, or those claiming the steamboat law to be a lien, will in effect repeal the above laws. For, if the steamboat law gives a lien to a mechanic and furnisher before seizure, it does it without any of the requisites of Bwearing to or recording the account, and thereby repeals tho very laws by which an express lien is provided on certain conditions. The two laws can not stand together, because the one only creates a lien-when certain acts are done, while the other gives the lien by construction, without the performance of those acts.
    And this view of the question is not affected by supposing tho steamboat law to be i.n effect a repeal of the lien laws passed prior to February 26, 1840, because the amended lien law was passed March 12, 1840, and the last lien law was only passed March 11, 1843-; so that, if the last statute is to be construed to repeal all former statutes inconsistent with it, the acts of March 12, 1840, and of March 11, 1843, must be held to repeal the steamboat law, passed on February 26, 1840.
    Now, by the construction T contend for, both laws are obligatory. I claim, the mechanic who has recorded his account under the statute giving a lien, as above referred to, has th& first lien on the boat, because the statute declares the account, so recorded, shall, “for two years after the commencement of such labor, furnishing materials, operate as a lien,” etc.
    I claim that no lien is given to any creditor of a boat or individual, by any law except as provided for in the lien laws above referred to, and that none can acquire such lien except by special contract, or by actually seizing the boat under tho steamboat law. The seizure, I suppose, creates the lien, and operates from the time of seizure, and does not overreach any prior lien existing on the thing.
    *This view of the case is strengthened by another view of the statute.
    Section 2 of the act declares the person “having such demand, may proceed against the owner or master, or against the craft.” The creditor is there authorized to make an election to sue the owner or the boat. Now, it is when this election is made (and not before, as I conceive), by seizing the boat, that the lien attaches, if at all, and to permit it to go beyond that time, so as to overreach or interfere with prior claims, is contrary to the spirit of the act.
    Again, if the time of seizure is not tho time when the lien attaches, when does it attach ? The statute, it is said, must be so
      construed as to give a lien. When is this constructive lien to take effect ? The statute fixes no time.
    Shall it commence in an ordinary account of a butcher who furnishes meat daily and takes-in his bill once a month, when the first item is furnished, or the last item, or the one in the middle of the account? When is it to commence? /
    Again, if each account is a lien on the boat before seizure, so is a claim for damages for an assault and battery committed on a passenger. So damages for collisions, and not carrying freight, aro claims for which suits may bo brought. When do these claims operate as a lien? Is it irom the time the'assault and battery is committed — the time when the collision takes place, etc.? If so, how do we ascertain what other prior liens exist on the boat?
    Again, suppose the boat is seized and sold on a claim for goods supplied a year or two after the boat is built, and a debt is still due to the mechanic for building the boat originally, can the latter, after a sale on the subsequently-created debt, although ho never recorded his account so as to get the statutory lien, bring a suit for building the boat, and have her sold over again ? If ho can, and sells her a second time, would the last purchaser have such a title as would prevent the sale of the boat a third time for a debt incurred for repairing the boat, between the first debt incurred for building, and the last debt created for supplies?
    *Again, what was the object of passing this law, authorizing a steamboat to be sued ? It was to subject a boat to be sued* whose owners did not reside in Ohio, or, if they did, whose names were unknown to the creditor. The difficulty creditors were laboring under, was, that they could not always discover the names of the owners; and, without having their names, they could not bring suit against the person, or, by attachment, against the property.
    Again, it is contended, because the boat is a person capable of contracting, so long as she lives and moves upon the water, she is liable to be seized and sold for any debt she may contract, because this is the law with respect to a person contracting a debt. When & person is sued and judgment obtained for one debt, ho is still liable to bo sued by any and all of his other creditors. Therefore the argument is, although one creditor sues, and on his claim the boat is honestly and fairly sold for a reasonable price, and a title given by the sheriff to the purchaser, still, as the statute treats the boat as a person, and as persons can be sued on every debt they owe, so a boat can be sued and sold over for every debt she has incurred. There appears some plausibility in the conclusion drawn from the premises ; but are the premises true ? Is the boat a person? Is she so treated by the statute ? Will not one sale of the boat carry a title; and, if it will not, how is the statute ever to be carried out in practice ?
    While, if you give it the construction which I contend for, nothing is more simple than the carrjdng this law into effect. If the first seizure creates the lion, a sale under that seizure carries the title to the purchaser ; a second seizure would be subject to the first, and so on, according to priority of suit brought, and thus you disembarrass the law from difficulties, and insure, by the certainty of titles, all purchasers from any undiscovered and undiscoverable lien.

    Surely the court will adopt that construction which will tend most to securing the titles under these proceedings, and thus induce purchasers, at fair prices, to bid for the boat, *and not deter them from bidding, by the insecurity given to the title purchased,
    The court will find, by reference to the decisions in New York, under their statute, that the courts have always confined the operation of their act to the particular cases mentioned. It being an exception to the ordinary mode of pursuing a claim, the court holds the creditor to direct proof of his being entitled to the particular remedy.'
    And he must show, on the trial of the cause, that his claim is one expressly provided for by the statute; so, after the boat is released by giving bail, as provided for in the act, the bail is not responsible unless the claim sued on was expressly embraced in the act; because the bond is only substituted for the boat or ship; and, if the latter was not bound, the bond is of no account.
    I claim, then, that this steamboat law gives no lien on the boat for either materials, labor, supplies, or for claims for collisions, assault and battery, or other claims. That, no lien being given, the statute only gives the right to sue the boat, which the creditor may adopt or not at his election ; and, until he makes that election by seizing the boat, no lien attaches.
    That, when the creditor makes that election, he can not overreach the rights of others, but can only claim to hold the samo interest which his debtor has at the time of seizure; therefore, if the debtor has mortgaged or transferred the boat, after the debt was incurred, and before the seizure, or if the boat has been previously levied upon, on execution against the owner, this conveyance, mortgage, or judgment, has a preference to the seizure under this law.
    I look upon this law as affording a remedy only, and I think the court took a wrong start when they supposed it conferred rights as distinct from the remedy. It is idle to talk of a boat or a piece of land being a debtor ; a debtor is a living being, not a stick of wood or a steam engine.
    It is next claimed, on the part of the defendants, that the complainants, as mortgagees, are liable for the debts of this boat.
    *It is in evidence, however, that the mortgagees never were in the possession of the boat; and we suppose it is well settled that a mortgagee not in possession is not chargeable with the boat’s debts, nor is he entitled to the earnings of the boat. McIntyre v. Scott, 8 Johns. 162; Phillips v. Ledley, 1 Wash. C. C. 228; Jackson v. Vernon, 1 H. Bl. 114; Fisher v. Willing et al., 8 Serg. & Rawle, 122 ; Thorn v. Hicks, 7 Cow. 697.
    Chancellor Kent, vol. 3, p. 235, ed. 1832, says, “The weight of authority is decidedly in favor of the mortgagee who has not taken possession; and if he has left the possession and control of the ship to the mortgagor, he will not be liable to the master for wages or disbursements, or to any other person for repairs and necessaries done or supplied by the master’s order, where the mortgagor has been treated as owner.”
    So again, where a vessel is chartered for a voyage or any specified time, and the person hiring takes possession and control of the vessel, he is deemed the owner for the voyage or time agreed upon, and the real owner is not liable for debts incurred for repairs or otherwise during the period. The question, in such cases, is a mere “dry matter of iact question, who, by the charter, has the possession, command, and navigation of the ship.” 3 Kent, 138.
    It is claimed, however, that this particular mortgage of May 3, 1842, makes the mortgagees liable, becausesof the peculiar phraseology of the mortgage. By the terms of this mortgage, the court will perceive the boat was sold for $12,500, and only $500 of the purchase money paid down, and $500 was to be paid each month until paid, and then is this additional clause, “and if at any time it shall appear that the profits of said business exceed the sum of $500 monthly, then and in that case, upon all such occasions, we, the undersigned, do further covenant to apply such excess toward the payment of the several installments as aforesaid, so as to hasten the final discharge thereof as much as possible.”
    Now, as before remarked, it is proved that the boat was in the *possession of, and run and controlled by the mortgagors, registered in their names, and run for their benefit; and this clause does not show to the contrary. It is only a personal covenant on the part of the mortgagors to pay off the debt at an earlier period than the time stipulated, if they can make more than $500 a month. This clause gives no additional rights to the mortgagors. It does not place them in the possession or control of the boat, so as to entitle them to the earnings of the boat, which is the true test of liability as owner.
    The owners were all the time running the boat, and the mortgagees had no interest in the matter, except to collect their debt in the manner set forth in the mortgage.
    If the court shall take the same views of this matter as I have, as to this question ; if they should decide that a creditor of a steamboat owner has no lien on the boat to secure payment of his debt, unless be has made out and sworn to his account, and recorded the same, as required by the statute, then the case stands thus:
    The deed of trust of October 30, 1841, transferred the title out of the original builders, and none of the creditors having recorded their accounts, there was none that was a lien on the boat.
    The title, therefore, was transferred free and clear of any lien or incumbrance, and vested in James M. Niles, on October 30, 1841, for the benefit of all the creditors.
    2. The title remained in Niles for the creditors generally, when Griffey had her seized on April 18, 1842; and, if Griffey had no lien, he could gain nothing by seizing her, except the right to receive whatever should’ be lelt out of the proceeds of the salo of the boat, after satisfying the trust deed.
    If Niles had the -title, and was lawfully in the possession, of course he was in for the benefit of all the creditor’s; and Griffey could not divest Niles or the other creditors of their legal right, by a seizure of the boat.
    3. John Owen, of course, could be in no better situation, *because he was one of the original creditors, and did not sue until after Griffey.
    But there is an independent equity against Owen which must stop him from claiming, as against the deed of trust. He was one of the creditors who met on October 30, 1841, and agreed to tho execution of the deed of trust, and to accept that security, with the rest of the creditors. He banded in his bill, .as is shown by the testimony of J. W. Owens; he ought not, therefore, to be permitted to sue at law in violation of his agreement, and thereby get an advantage over tho rest of the creditors. It will bo remarked that, with the exception of 'David Griffey, all the creditors were present at the meeting, and assented to the deed of trust; none of them, therefore, could be permitted to attempt any legal advantage over each other contrary to the spirit of that agreement.
    If I am right, then, as to Griffey and Owen, there was no incumbrance on this boat on May 3, 1842, when the release of the equity of redemption was executed by the owners to the trustee, for the benefit of the creditors, who released the owners from the balance due. On that day the boat is again sold to the mortgagors named in this suit, who give the mortgage to secure payment of the purchase money ; and tho only remaining question is, whether debts, which the new owners incurred after that mortgage was given for repairing or supplying that boat, can divest the mortgagees of their security. Isay this is the only question left, because all the other defendants’ creditors are creditors whose debts were incurred by the new owners after they had given the mortgage.

    Now it would appear, in the absence of all legislation on this subject, that, if any creditor ought to have a lien on the thing, or a right to be paid his debt out of the pi’oceeds of sale of the thing itself, it ought to be the person who sold the article. Such is the natural equity supposed to exist, and which is recognized in equity, as between vendor and vendee of real estate. But, independent of that, these mortgagees are first in time. Their mortgage is anterior to any other claim, and hence another ^equity arises first in time, first in right, except as to innocent purchasers. 20 Wend. 20.
    A few words further on tho subject of the mortgage. It is well settled that, in equity, any agreement to assign the earnings of a voyage (1 Bing. New Cases, 697), the contingent interest of a possibility of an inheritance, the present and future earnings of a ship, are all the subject of assignment or contract absolute, or by way of security in equity, and will be enforced against all persons except innocent purchasers, without notice. 8 Price, 289, n.; 1 Jac. & W. 506, 512; 4 Sim. 524; 1 Mylne & Keen, 488; 1 Hall, 549.
    The principle held in all these cases is, that every man is entitled in equity to the benefit of his contract. Hence, whenever the subject of the contract is not in existence when the mortgage is made, but is. expected to come into existence, although the title is not transferred at law, equity will compel a transfer, as between the parties and all others, except innocent purchasers. • 1843, Dec. No. Law Bep. 348.
    If such is the claim of an individual under a mere contract, surely a mortgage, which is an executed instrument, is entitled to as much consideration in a court of equity.
    Wright, Coffin & Miner, for defendants Brodwell & Co.:
    We appear for defendants Brodwell & Co. The steamboat Walnut Hills became indebted to Brodwell & Co., for material and supplies, in the repairing, furnishing and equipping her; this debt was contracted by the agents of the boat, on her account, between January 16, 1843, and August 2, 1843, on which day the defendants’ debt amounted to $461.70.
    We claim that Brodwell & Co., by reason of the indebtedness of the boat to them, and the seizure by the sheriff, on August 2,1843, have secured their debt; they placed *the boat in possession of the sheriff, under the provisions of the statute ; and the payment of their debt, thus incurred and secured, is not to be postponed to that of the complainants.
    By our law, the creditor of a boat has a two-fold lien — the boat and the owners — he has the personal liability of the owner, of the person who receives the profits of the boat, and of the boat itself. This latter security is given by the statute. It was given to enable the creditor to realize his debt without being embarrassed with the many difficulties which beset him in attempting to enforce the personal liability of the owner. Since the passage of that act, crédit is, in a great degree, if not entirely, given to the boat, regardless of who are owners. The boat needs repairing, and the carpenter, looking to the boat, performs the work. His labor is performed upon the faith of the liability of the boat to him. Ho has no knowledge of the owners, who they are or where they reside, or of their ability to pay, or who may secretly have mortgage liens upon- the boat; and he surely has as much equity, as against a mortgagee, to sustain his claim, as a purchaser without notice. In this point of view, it is not a question, whether the mortgage, not in possession, can be made personally responsible for the debt; but whether under our statute, the mortgagee can enforce his lien against an individual who has repaired and preserved and kept alive the boat, without notice of the existence of the mortgage. It is not pretended that Brodvvell & Co. had any notice of the existence of the mortgage; it was not entered upon the boat’s papers; and, if the doctrine mentioned by the complainants’ counsel is to prevail, we think the design of the legislature, in the enactment of the statute, will be totally defeated.
    We think that these debts, contracted by the agents of the boat on her account, coming within the provisions of the statute, attach to the boat; and • he creditor, as under the civil law, has not only the personal liability of the owner, but he has the boat — a lien or charge upon the boat — for his debt; which lien or charge follows the boat into the hands of different purchasers. *Tho boat continues responsible for the debt, unless her ownership is changed by a judicial sale. But it is unnecessary to discuss the continuance of this charge upon the boat. In this case the boat was seized for our debt, was sold while thus held, by the sheriff, and the money in his hands now represents the boat. From the time of asserting our debt against the boat, we have, up to this time, kept possession of her, endeavoring to enforce the collection of our debt; and if she is now wrested from our hands by a secret lien upon her, the prime object of the statute is defeated, and the statute, in truth and in fact, becomes useless. Such a construction of the statute would do great injustice to the many creditors of steamboats, while the construction which we contend for, would injure no one, but remedy many evils existing-before the enactment of the statute. This secret mortgage was taken since the passage of the statute. The complainants are presumed to have known that, when the boat went out of port upon the ordinary business of navigation, ail persons who repaired her, etc., had a lien or charge upon her in preference to their lien, and if they desired to protect their lien, it became their interest, as well as the interest of owners, to see that the boat was intrusted only to responsible and prudent officers and crew.
    Morris & Rairden, for a portion of the defendants,
    also submitted an argument:

      We claim for the parties whom we represent, that under the act of February 26, 1840 (Swan’s Stat. 209), the parties furnishing supplies to the boat are entitled to a lien and claim against the boat as against all owners and mortgagees. Under a fair construction of the statute, a mortgagee of a boat holds the same relation to the party who furnishes supplies, materials, repairs, or boat stores, that the owner himself maintains, and no advantage in his favor can be taken of the fact of his being a mortgagee, which would not avail the owner. The supplies, etc., furnished being for the support, maintenance, and existence *of the-boat, and without which the boat could not navigate the waters, were intended by the statute to take the precedence over any other incumbrance or lien that might exist on that boat of a character not provided for by the statute, and that the parties taking the mortgage waived by that act their right under the statute, and thereby made themselves owners of the boat as to all claims provided for under the statute.
    Wo claim, therefore, that the legislature not only intended to create a lien on the boat for supplies, etc., but that the claim also attached upon the boat as upon a person, and when enforced against the boat by warrant, that the claims should have priority in the order in which the warrants should be levied, as against all other liens and claims not levied by warrant, and that the boat after such seizure can not be relieved by any owner or other incumbrancer, without first discharging the debt levied by warrant vunder the statute.
    This court has determined in express terms that the law gives a lien upon the boat for all the claims enumerated in the statute. See Steamboat Monarch v. Findlay, 10 Ohio, 386. This case we think substantially decides every position we assume.
    In the case of the Canal-boat Huron v. Simmons, 11 Ohio, 458, this court determined that the liability of the boat was personal, and the claim against the boat was of a higher character than that of a simple lien, and sustains to the fullest extent the construction of the statute for which we contend, and most clearly distinguishes the construction to be given t.o our statute from that which has been given to the statutes of New York by the courts of that state.
    It is perfectly competent for the legislature, as wo apprehend, to give to the boat or water-craft any legal character or liability they may deem wise and expedient for the public good, without conflicting with any unyielding legal or constitutional rights or principles; and, for all legal purposes and consequences, they may be elevated to the dignity of natural persons, subjected to the same obligations, invested with the same rights, *and protected by the same laws, with the natural person ; and such is the power exercised every day by legislative bodies in creating and regulating corporations, with just such legal obligations as we claim have'been conferred on steamboats and other water-crafts by our statute. It does not follow, as supposed by the counsel for the complainant, that the artificial person created by law must be made from animate living beings.
   Hitchcock, J.

A number of questions are raised by counsel, in this case, which, so far as they properly arise, will be considered. Largo debts seem to have been contracted by the owners of the boat in controversy, while she was being built, and for the recovery of which, suits might have been brought against her, under the law of February 26, 1840, “providing ior the collection of. claims against steamboats and other water-crafts, and authorizing proceedings against the same by name.” But these creditors, as we are satisfied from the proof, with but one single exception, by an arrangement made with the owners, on May 3, 1842, agreed to take the boat itself, in satisfaction of their claims, and she was accordingly transferred to Niles, as their trustee. Having thus become, in equity, the owners of the boat, they can not afterward prosecute against her under the before-recited act.

It is true that the defendant Owens denies, in his' answer to the bill, that ho was a party to this transaction, so far as to preclude him from the right of commencing suit under that act ; but the proof satisfies us that he was a party to the transaction, and if so, he must be bound by it. *The circumstance that he has received a judgment at law, can not give him, in this court, any advantage over those who, like him, were original creditors, or over those who subsequently became creditors.

As to the claim of Griffey, it is urged that this claim, at the time of the commencement of the suit, could not be enforced against the boat, inasmuch as the property in the boat was not in the original owner, to whom as well as to the boat, the credit *was given ; and the doctrine is advocated, that by the sale of a boat or other water-craft, the right of pre-existing creditors to commence suit against the boat by name is defeated. As this point is made in a case now before this court, in which it will be fully considered, I shall s.ay nothing further with respect to it, than that it is based upon a principle which we can not, as yet, recognize as being correct.

It is contended, on the part of complainants, that, so far as concerns those who became creditors subsequent to the sale to Brennan and others, they are not entitled to any part of tbo fund in the hands of the sheriff, because, at the time their debts were contracted, the boat was running as the property of Brennan & Co.; while these complainants had a lien upon her by mortgage, which was prior, in point of time, to any claim of those creditors, and that this lien must be first satisfied; and, inasmuch as the fund is not sufficient to satisfy the debt secured by the mortgage, therefore they are entitled to the whole of it.

This part of the argument is urged with much zeal, and no little ingenuity. But it seems to mo, that if sound, it loads to this result, that,- if a steamboat or other water-craft is under mortgage, no suit can bo prosecuted against her, notwithstanding the provisions of the law of February 26, 1840. The execution of a mortgage would in effect repeal, in part at least, the law. Its provisions are general. Any person having a claim of the description specified in the act, may prosecute his claim against the boat by name. But give the statute the construction contended for, and we add to it the proviso, that such boat shall not be incumbered by mortgage. Such construction would furnish the owners of boats with a very convenient method of avoiding the force of this act. They would have nothing to do but to incumber the property with a mortgage.

But, even admitting the principle advocated by complainant’s counsel to be correct, still, as it seems to the court, it is not applicable in the present case. The terms of the mortgage *under which they claim, show that the boat, although running in the name of Brennan and others, was running as much for the interests of the complainants as for the interests of the ostensible owners. The complainants 'were to receive, from month to month, the entire net earnings of the boat. They were, by the terms of the.contract, secure in the reception of $500 per month if the boat earned more, they were to receive such excess. Now, although this might not have been sufficient to make them liable personally to those who might give credit to the boat, yet it is sufficient to prevent them from setting up their lien upon the boat, in preference to the claims of such creditors.

Much is said, in the arguments of counsel, as to the effect of the law of February 29, 1840. On the one side, it is insisted that this law creates a lien upon the craft in favor of a creditor. This is earnestly denied by the other side. It seems to me that, if we can ascertain the intention of the legislature, it is a matter of very little consequence what name we give to the interest or claim of the creditor; it isa matter of very little consequence whether, technically speaking, it be a lien or not. The act authorizes a suit to be commenced against the craft by name. But it is said that natural persons who are creditors may sue their debtors, and that this gives them no lien upon the property of those debtors, at least not before commencement of suit, nor even until after judgment and levy of execution. This is very true. But, in the case of the water-craft, the suit is not only commenced against her by name; but, by the statute, the identical craft is to be seized and sold for the satisfaction of the debt or claim. It may not be technically a lien, but it is something which appropriates the property as effectually, if not more so, than ordinary ■liens.

There may be, and undoubtedly will be, cases' found where it will be extremely difficult to apply this statute so as to do perfect justice. By it a new principle was-introduced into the existing system of jurisprudence; and it would be strange if, in the first effort to introduce this principle, a law should be ^framed free from defects. The statute undoubtedly requires amendments, but such amendments must be made by the proper tribunal ; not by this court.

In this case, the court are of opinion that the fund in the hands of the sheriff should be appropriated, first, to the payment of the costs of this suit; second, to the payment of the claims of those creditors of the boat, who are before the court, excluding the claims of the original creditors, with the exception of David Griffey; and the balance remaining, if any, will be paid over to the complainants. As it is understood that the fund is more than sufficient to satisfy all the creditors, it is unnecessary to determine the order in which those creditors shall bo paid.


source: Caselaw Access Project

author: Wood, C. J.

license: Public Domain

text:
    The State of Ohio, for the use of Monroe County, v. John H. Daily and Lemuel S. Rucker.
    In an action of debt on. recognizance, a special plea in bar that the defendants did not acknowledge the recognizance, is insufficient.
    A special plea that the recognizance was obtained by the fraud and covin of the justice, before whom the same purported to be taken, is bad on special demurrrer. ,
    No fact can be specially pleaded which amounts to the general issue only.
    This is an action of debt on recognizance, reserved in the county of Monroe.
    The facts in the case are these: The defendants appeared before a justice of the peace, in the county of Monroe, on. December 30, 184-1, as it is averred in the declaration; and, together with one Abel Dailey, not served with process, ^entered into recognizance in the penal sum of §1,000, conditioned for the appearance of the said Abel Dailey before the court of common pleas next thereafter to be holden in said Monroe county, etc., to answer to a charge of assaulting Catharine Stevens, of said county, with intent to commit a rape, etc., and to abide the judgment, etc.
    It is also averred that said recognizance was, by said justice, returned to the court of common pleas and recorded, as the statute requires, and defaulted for.tho non-appearance of the said Abel, in compliance with its condition.
    The defendants pleaded, firstly, nul tiel record, on which issue is joined ; secondly, that they never acknowledged themselves to owe the State of Ohio; thirdly, that the said recognizance was obtained by the said justice, by falsely and fraudulently taking, writing, and returning the same to the court of common pleas, etc., when the defendants, or either of them, then and there, never acknowledged to owe the. said State of Ohio in manner and form, etc.

    To the two last pleas, the plaintiff demurred specially, and, among others, set down as special cause of demurrer, that it was incompetent to the defendants to controvert the facts contained in the record by special plea; that the facts could only be denied by the general issue of nul tiel record, which put in issue the existence of the record itself.

      The questions arising on the demurrer were reserved for consideration in this court.
    B. S. Cowen, for plaintiff:
    The declaration is upon a record. Swan’s Stat. 652, sec. 24, 8. The second and third pleas admit the existence of that which the statute says “shall be considered as of record” in the court of common pleas.
    *It is an ancient and invariable rule that a record imports absolute verity, and can not be impeached. The only answer to a declaration upon a record, allowable by the rules of pleading-, is nul tiel record. All the reasoning, authorities, and arguments of Mr. Kennon, in support of his positions, relate, as I understand them, not to matter of pleading, but matter of evidence. What may be proved under the plea of nul tiel record¶

    Evidence will be received, in actions upon records, to show want of jurisdiction. This shown, and the supposed record, as to the defendant or party showing it, is no record. The authorities are not uniform in support of this position. Those sustaining it, or in favor of receiving evidence, dehors t’ho record upon jurisdictional questions, do so upon the ground that it is to the issue upon nul tiel record, and received to show, not that what is upon a record is false, but that what is declared upon it is not a record. Starbuck v. Murray, 5 Wend. 158; 3 C. & II. Phillips’ Ev. 800, and cases there cited. Judge Marey, in Starbuck v. Murray, has stated the grounds upon which the evidence, as to jurisdiction, is received, very fully and forcibly.
    Whether a record is forged or altered, may be inquired into, upon nul tiel record. 1 Pick. 362. So, whether a recognizance purporting to have been taken before one officer, was not taken before another. 13 Serg. & Rawle, 254. This is done by inspection ; but, if not satisfied by inspection, it may be shown by parol. 1 Pick. 368.
    The second plea concludes to the country, and, if unsustained, puts the plaintiff, upon the proof of the truth of the record, by a plea, not even supported by affidavit.
    The argument drawn from the danger of fraud in the justices of the peace, if sound, would apply with equal force to all the docket entries of that numerous class of officers. If the principle contended for prevails, for that reason, the hundreds of thousands of judgments recorded upon the dockets of our justices of the peace, will be subject to reversal, or to be avoided by parol proof, and that not to a question of jurisdiction, but to the ground and causo of the original suit.
    *The third plea avers that the recognizance was falsely and fraudulently made, and that defendants never acknowledged to owe the State of Ohio as alleged. If this can be shown by proof, it may be done under the plea of nul tiel record. The ground of the action is, that there is a recognizance recorded. In an action upon a judgment, the plaintiff avers that there is a judgment recorded. If the court had not jurisdiction of the defendant, there is no judgment. If there be no recognizance, there is no record of a recognizance, as alleged in the plaintiff’s declaration, and therefore no such record as declared upon.
    But how can defendants prove that there is no such recognizance? Not by the testimony of the justice, unless that it is a forgery of his name. Will they prove an alibi? That there was no case authorizing the justice to require or take the recognizance? These'are to the matter of jurisdiction, first of the person, and second of the subject matter. This may as well be proven under nul tiel record, as want of jurisdiction could be under the same pica, in an action on a judgment in Starbuck v. Murray, 5 Wend. 158.
    William Kennon, Jr., for defendant:
    Did tlie court below err in sustaining the demurrer ? If either or both picas be a good defense to the action, then the court erred in sustaining the demurrer.
    The statute of Ohio calls many papers executed according to its requirements, recognizances. If a capias issues in a civil suit, and the defendant not ready for trial, but continues for a time, he gives a recognizance. Swan’s Stat. 509, sec. 21.
    Bond given for stay of execution is called a recognizance. Swan’s Stat. 517, sec. 63.
    On an appeal from a justice’s judgment, the appellant gives a recognizance. Swan’s Stat. 512, sec. 41.
    The putative father of a bastard child gives • recognizance. Swan’s Stat. 156, sec. 3.
    *The sheriff has power to take recognizances. Swan’s Stat. 856, sec. 2; 722, sec. 8 ; 721, sec. 3.
    Justices require and can take recognizances in a variety of cases; both civil and criminal. Swan's Stat. 542, sec. 31; 544, sec. 33; 538, sec. 12. In these and many other eases, both civil and criminal, the statute requires recognizances to be given before officers having the power of holding a court, as well as those having no power to hold a court, or keep a record.
    All these recognizances stand, it is believed, upon the same ground, and against which the same defense can be made when, suit is instituted. Will it be contended that a recognizance for the stay of execution or for an appeal, can not, as to its execution,, be controverted. Non est factum will be a good plea to either of these recognizances — any plea in bar may plead — and yet both are executed upon the docket of tho justice of the peaeo, and can lay all claim to be a record, that can be claimed for a paper purporting to be a recognizance, and such as that upon which the plaintiff counts
    A recognizance given by a putative father of a bastard child may be controverted by plea of non est factum, as well as other special pleas in bar. The People v. Haddock, 12 Wend. 475. In this case the defendant plead non est factum, and three special picas in bar.
    Infants and married women can plead against a recognizance. And why not others ? 1 Chit. Crim. L. 91; Petersdorff on Bail., 10 Law Lib. 287; 2 Hawk. P. C. 115.
    A recognizance is in most respects like another bond, tho difference being chiefly that the bond is the creation of a fresh debt or obligation de novo, tho recognizance is án acknowledgment of a former debt upon record. 2 Black. Com. 341.
    Will the court hold the defendants liable, when they deny by their second plea, and the demurrer admits the fact, that they never acknowledged to owe the debt?
    The defendant may jilead either in bar or in abatement to the recognizance, or any other defense, which would be proper in an action of debt. Petersdorff on Bail., 10 Law. Lib. 214; Alice v. Gale, 10 Mod. 112.
    ^Payment or release to the principal or bail may be pleaded. Petersdorff on Bail., 10 Law Lib. 204.
    If infancy, coverture, payment, release-to the principal or bail, or that the jirineipal rendered himself or was rendered by his bail before the return of the ca. sa. sued out, or that the principal died before default was made, be a good defense to the recognizance, why is it that a defense can not be made of the fact that the defendants never acknowledged the recognizance?
    Can it be the law of this state that the justice can write and return a recognizance upon whomsoever he pleases without consulting them, and that his act is binding upon them?
    "Will it bo said that the defendants have a remedy against the justice for misconduct? The remedy may be of no value; the justice may not be worth one cent, and the recognizance, as in this case, for a large sum.
    This plea denies that the defendants were ever in court; in effect that they ever acknowledged the recognizance, and no subsequent act of the justice or .of the court of common pleas, in entering the recognizance of record, could render valid that which was beforo invalid.
    Great difference exists between the obligatory force of a recognizance in England and in this state; there it was a lien upon the land; here it is.not. Dewitt v. Osborn, 5 Ohio, 485.
    That such a defense as is set up in this plea can be made against a recognizance, is decided in the case of Ohio v. Wellman, 3 Ohio, 14. The court say: “If taken under any circumstances that .would legally affect its obligatory force, the defendants could avail themselves, by way of defense, of such circumstances, though no reference was made to jbem in the recognizance.”
    To what circumstances could the court refer in the case of Ohio v. Wellman, as constituting a good defense, unless that set up by these defendants would bar the recovery. If the fact that these ■defendants had no knowledge of the recognizance whatever,were never consulted, had no notice until long after they were defaulted in the common- pleas (the first notice *being a suit upon the recognizance), will not constitute a good defense to this action, it is difficult to see what would.
    The third is a plea of fraud, which will constitute a good defense to the action, whether founded upon a judgment, decree, or recognizance. It can not be said in answer to this plea, that it is pleaded against a record ; and if it were, this plea, as well as the second, goes to the recognizance at a time anterior to its becoming a record. .The return to the clerk of the court of common pleas, and entry there in pursuance of the statute, is that which gives it the claim to be a record. Both these pleas go to the act of the justice of the peace, in taking the recognizance.

      If the justice has taken and returned his recognizance in bad faith, having no jurisdiction of the persons of these securities, and in fraud of the law as well as of the defendants, then the recognizance is not binding.
    Fraud may be pleaded against a judgment or record, or where it is obtained in invasion of the laws of the country. Jackson v. Jackson, 1 Johns. 424; Borden v. Fitch, 15 Johns. 121; Burford v. Burford, 4 Munf. 241.
    A want of notice of the proceeding of whatever kind, even as against a judgment, is a traversable fact, and is a good plea. Mills v. Duryee, 7 Cranch, 481; Shumway v. Stillman, 4 Cow. 294; 6 Wend. 447; Andrews v. Montgomery, 19 Johns. 162; Starbuck v. Murray, 5 Wend. 154; Bissell v. Briggs, 9 Mass. 467; Aldrick v. Henry, 4 Day’s Conn. 380.
    “A recognizance is an obligation of record, entered into befope the magistrate duly authorized for that purpose, with conditions to appear at the session or assizes — it is a matter of record as soon as taken and acknowledged.” 1 Chit. Crim. Law, 90.
    In this state a recognizance is not a record when taken by the justice; it is not oven entered upon his docket; and if it were, his court is not a court of record for that purpose; and hence the law applicable to recognizance in England can not be applicable in this state.
    *Both these pleas go to the recognizance before it became a record; they go to the act of the justice of the peace; and if void in its commencement, no subsequent proceeding can make it obligatory. x
    E. Archbold also submitted an argument for the plaintiff.
   Wood, C. J.

It appears to us that the history of a proceeding before a justice of the peace, in a case clearly within his jurisdiction, and when acting in his judicial capacity, is a record. W. S. C. 38, 428. Not for the reasons that the justice has the power of fine and imprisonment, is allowed a clerk, or uses a seal to verify the transcripts of his decisions; but because copies of his docket, unpretending, simple, and informal as they are,-are evidence of so high a nature that they import absolute verity; and unless lost or destroyed, can not be proved per notiora, nor can they be contradicted at all. In this respect they are of equal validity with the court rolls of parliament, or the exemplifications of the highest judicial tribunals of our own country. The idea is not to be tolerated for a moment that domestic court records aro prima facie evidence only of the facts they contain. Judgments may bo impeached, it is true, but not for fraud or falsehood, in the judicial tribunal by whom they are rendered ; nor, as a general rule, in a collateral proceeding. It may be done in a suit by the party injured, or a prosecution against the tribunal, or in a suit directly instituted against the party through whose means, and by whose procurement a fraudulent judgment is obtained. Even a sheriff’s return is conclusion between the parties to a suit, and can only be impeached in a suit against him; so is a constable’s.

If it bo said the recognizance is the ministerial act of the justice only, and not a record, the answer is, the statute requires it to be returned to the court of common pleas; a memorandum of it made, to be considered as of record in that court, and sued by process out of that court, in the same manner as if *taken then, and it therefore becomes a record in that court. Swan, 652. That this recognizance is not a judgment, makes no difference, in our view, as to the manner in which it may or may not be impeached ; for every fact required to be found, and every act required to be done, when recited in a record, is beyond the reach of contradiction. From necessity, to this extent, does the law repose confidence in its judicial officers.

But the question is asked by the defendants: Will the court hold us responsible, when we deny, by our second plea, and the demurrer admits the fact, that ice never acknowledged to owe the debt? The answer is, that a demurrer admits nobbing, except it be well pleaded; and as, in our opinion, this fact can not be averred against the record, it is not admitted.

It is true a recognizance is not a judgment, but it is a contract of record; and, when sanctioned in its creation, by both magistrate and court, having competent jurisdiction, it can not be impeached nor affected-, is tried by inspection, and under the plea only of nul tiel record. Tf it exist, there is the end of the controversy.

Authorities are cited to show that a release of the principal or security may be pleaded, or infancy, coverture, or payment; or that the principal surrendered himself, or was surrendered by his bail, before the return of the ca. sa. sued out, or that the principal died before the default of the recognizance; and the inquiry is made, if such defense can be pleaded, why not that the defendants never acknowledged, the recognizance? The reason appears to us obvious — release, infancy, coverture, or payment, surrender or death of the principal, do not contradict the record, but only avoid its effect, while the pleas in question, put the facts found by the record directly in issue, but do not deny its existence.

The case of Ohio v. Wellman, 3 Ohio, 14, is cited in support of those special pleas. Keeler was discharged from imprisonment on his recognizance, and Wellman was his surety. Wellman plead to the scire facias, that Keeler was not legally imprisoned, to which plea the plaintiff demurred, and judgment *was given for the state. The only point decided by the court was, that the question made by the plea could not be raised in that way.

If the defendants did not in fact acknowledge this recognizance, there is no difficulty in framing a plea to meet the case, without violating any legal rule. They may plead that they are not the same identical defendants, but other persons of the same name, and may meet the plea by such proofs, positive or circumstantial, as will sustain it; and such defense would avoid, as to them, the effect of the record, but not contradict it.

If an instrument which is set up in the declaration as a record be a forgery; or if the court had no jurisdiction of the subject matter, or if there be anything to defeat it as a record; such facts may be shown under the general issue of nul tiel record; but they can not be specially pleaded, because it is a rule of law that nothing shall be plead specially, ivhich amounts to the general issue, and no more. The demurrer to the pleas is sustained, with costs. The cause will be remanded, with leave to defendants to amend their pleas, if desired; and, if not, for trial on the issue of nul tiel record.


author: Read, J.

text:
    Robert Curry v. Benjamin Fulkinson’s Executors.
    A husband can not collect a legacy in his own name and in his own right, accruing to the wife during coverture, after her death.
    This is a bill in chancery, reserved from the county of Coshocton.

      The bill alleges that Benjamin Fulkinson, by his last will and testament, dated June 17, 1841, bequeathed to his daughter Margaret $50, and appointed the defendants, Thomas Fulkinson and William Sturman, his executors ; that *said executors had the will duly proved September 24, 1841, and reduced to possession the effects of the testator, which are more than sufficient to pay all debts and legacies; that the complainant intermarried with said Margaret prior to the death of the testator; that said legacy accrued to said Margaret during coverture, and that she died without said legacy having been reduced to possession or discharged by payment to the complainant, or to said Margaret; that said executors refuse to pay said legacy to the complainant, although often requested; and prays decree of payment of said legacy against said executors to the complainant.
    To this bill the defendants demur, and the questions raised upon this issue are reserved for decision in this court.
    J. M. Love, for complainant:
    The question arising upon this demurrer is, whether a chose in action accruing to the wife, during coverture, survives to the husband ; and not, as has been supposed, whether a chose in action in this predi camón t vests, absolutely, in the husband. It is by no means essential to the'right of survivorship in the husband, that the chose in action should vest absolutely in him. It is maintained on the other side, and I think justly, that a chose in action, accruing to the wife during coverture, survives to her in the event of her outliving her husband; yet no one pretends that she has an absolute interest; but, on the contrary, it is quite clear that her interest is qualified by that of her husband.
    There are, indeed, respectable authorities which go to the full extent of deciding that dioses in action accruing to the wife, during coverture, vest absolutely in the husband, and go to his personal representative in case he outlive his wife; thus cutting off the right of survivorship in her altogether. Thus, in the case of Griswold v. Penniman, 2 Conn. 564, in which this very quostion was before the Supreme Court of1 Connecticut, *they say that, “ as to property of the wife, accruing during coverture, the same rule is applicable, excepting in regard to dioses in action ; these vest absolutely in the husband, on the principle that the husband and wife are but one person in law, and her existence, in legal consideration, is merged in his ; lie’ may, in such cases, bring a suit in his own name, without joining his wife. This clearly proves that the chose in action vests in him absolutely ; for if the right was in the wife, she must necessarily join in the suit. Where a bond or note is given to the wife, the husband can maintain an action in his own name; the consequence then is, that if the husband die before the wife, such choses in action shall go to his executor or administrator, and they do not survive to the wife; for where property has been absolutely vested, there can be no survivorship.”
    In the case of Capp v. Stoughton, 10 Pick. 463, the question, in the language of the court, was, “whether the profits of her (the wife’s) real estate, during the marriage, belonged absolutely to the husband, or' whether, as they were not actually reduced to possession by him, an action did not survive to the wife to recover them,” after remarking that it would be an unprofitable labor to reconcile the conflicting opinions; the court say, “the better opinion seems to be that these profits belonged absolutely to the husband ; that he bad a right to sue for them alone, and that no right of action survived to the wife,” and the decision of the case was in accordance with this opinion.
    In the case of the Commonwealth v. David Manly and Lot Leach, 12 Pick. 173, the Supreme Court of Massachusetts again affirmed the same doctrine in the most explicit manner. The court say, “ even the earnings of the wife so entirely belong to the husband, that he only can give a discharge of them, and must sue for them in his own name without joining the wife;” again, “the same principle applies to all property which accrues to the wife during coverture. A legacy given to the wife, vests absolutely in the husband, and he may release *it either before or after it becomes payable.” “So a wile’s distributive share in an intestate estate vests in her husband.”
    The same doctrine is laid down in the most unqualified terms in Reeve on Dom. Relations, 60. So in Shuttleworth v. Noyes, 6 Mass. 229.
    In Goddard v. Johnson, 14 Pick. 352, the court say, “ it is a well-settled principle, that a'chose.in action accruing to husband and wife during coverture, vests absolutely in the husband.” This was a suit brought by the surviving husband, to recover a legacy bequeathed to his wife during coverture.
    But, notwithstanding these high authorities, it must be admitted that the weight of authority is against this doctrine, so far as it goes to cut off the right of survivorship in the wife to a chose in action in this predicament. It has been decided in a great number of cases, of most commanding authority, that the wife, if she survive her husband, is entitled to all choses in action which accrued to her during coverture. It would be quite superfluous to do more than cite the authorities. Garforth v. Bradley, 2 Vesoy, Sen. 676; Elliott v. Collier, 1 Wilson, 618; Wildman v. Wildman, 9 Ves. 175 ; Baker v. Hall, 12 Ves. 496; Richards v. Richards, 2 Barn. & Adolph. 447; Nash v. Nash, 2 Madd. 133; so Dane’s Abridgment, 342, 344; Gallego v. Gallego, 2 Brock. (Marshall, C. J., presiding,) 285; Wallace v. Talliaferro, 2 Call, 447 ; Lodge v. Hamilton, 2 Serg. & Rawle, 491; Wintercast v. Smith, 4 Rawle, 177; so Harleston v. Lynch, 1 Desaussure, 244; Clifton v. Exr’s of Haig, 4 Desaussui’e, 330. But the case of most commanding authority is that of Schuyler v. Hoyle, 5 Johns. Ch. 196, where the authorities were elabox’ately reviewed by Chancellor Kent. See also 20 Pick. 517.
    •But these cases establish nothing mox'e than the right of survivorship in the wife, if she outlive the husband. They by no means show that if the husband survive the wife, he shall not be entitled to her chose in action accruing during coverture; they show,indeed, that bis interest is not absolute, but it by no means follows that the right of survivorship does not belong to him; for ^neither is the interest of the wife absolute. Indeed, I have not been able to find a single case which decides that the husband, if he survive his wife, is not entitled, in his own right, to her choses in action of the kind x’efex’red to. But, on the contrary, there are several cases of the highest authority, which, admitting the right of survivorship in the wife, also l’eeognize that right in the husband in the event of his surviving her.
    The first case to which I request the attention of the court on this point is the vexy elaborate one of Hayward v. Hayward, 29 Pick. 517, which recognizes the right of survivorship in the wife, and overrules the px’evious doctxúne of the Massachusetts court, already cited, that a chose in action, accruing during coverture to the wife, vests absolutely in her husband. In that caso, the court say:“Comyn also states another legal principle, upon which some reliance may be placed, by those who deny the right of the wife to take as survivor, and which may deserve consideration. He states the rale of law to be, that if a legacy is bequeathed to a feme covert, and she dies before the payment of the same, her husband, if he sui’vives, is entitled to it. This position is undoubtedly well sustained by decisions both in this country and in England, Schuyler v. Hoyle, 6 Johns. Ch. 206 ; but is not considered by those courts that have thus ruled as in any degree inconsistent with the doctrine of the l’ight of the wife, in case she is the survivor', and the right has not been reduced to possession by the husband. Blount v. Beshland, 5 Ves. 515.” The case of Goddard v. Johnson, 14 Pick. 352, is a direct authority in favor of the principle for which I contend. In that case, the plaintiff, after the death of his wife, sued the defendant, as executor of the will of her father, for a legacy which accrued to her during coverture, and the court sustained the action.
    The case of Hapgood v. Houghton, 22 Pick. 480, also involved this question, and the court, in concluding their judgment, said, “Something was said as to the right of the plaintiff to recover the residuaxy legacy without taking out letters of *administx-ation on the estate of the wife ; but I did not undei’stand that the defendant’s counsel insisted on this objection. We have, however, considered it, and think that he may maintain the action, in his own right; it was so decided in the case of Goddard v. Johnson, 14 Pick. 352. And we think there is no reason to overrule that decision.”
    The case of Jones’ Adm’r v. Warren’s Adm’r, 4 Dana, 333, is a strong authority in suppoi’t of our position. The facts of the case were as follows: “ Heniy Warren bori’owed from Polly Jones, whilst she was a feme covert and living with her husband, S100, for which he gave .a promissoxy note, payable to her. on or before June 1, 1832. Both she and Warren having afterward died intestate, before the note had been paid off or sued on, or in any way disposed of, her administrator bx’ought a petition and summons upon it, against the administrator of Wan-on, to which he pleaded that her husband, Thomas Jones, survived her and was living; and the court having overx-uled the demurrer to the plea, judgment was rendered in bar of the suit. The correctness of the judgment on the demurrer, is the question to be decided in this case.” The court, after reviewing the authorities and recognizing the right of survivorship in the wife, say, “ But the same authorities, and very many others, say that a surviving husband is entitled, as husband, to the undisposed-of choses in action which accrued in right of his wife during coverture. The prevailing and more consistent doctrine seems to be, that the survivor will in such cases be entitled as survivor.” "We conclude, therefore, that the opposing intimation in Claneey on Bights, 426, especially as they seem to have been deduced from obiter suggestions, are not warranted by the adjudged cases, and are inconsistent with principle, analogy, and authority. Wherefore, it is our opinion that the legal title to the obligation in this case survived to Thomas Jones, and that, therefore, he alone had a legal right to sue on it in his own tame and for his own benefit.” The court further say in this case, that, “ Such appears clearly to *have been understood to be the true doctrine by Baron Comyn, and by this court in the cases in 3 Bibb, 499; 3 Litt. 282, and 1 J. J. Marsh. 169.”
    It may, perhaps, be said that the doctrine hero maintained can not be reconciled with the rules which prevail as to choses in action which accrue to the wife during coverture. Thus it may be said that the husband is not entitled to sue in his own name as survivor upon choses in action which accrue to the wife before coverture. If ho would recover them, he must become her administrator, and sue upon them as such. And it may bo asked what distinction there is between choses in action which accrue before, and those which accrue during coverture ? I answer that there is a settled and very material distinction between them. It is settled by numberless authorities, both at law and in equity, “that the husband may sue alone in the lifetime of his wife, upon all choses in action which accrued to her during coverture; but that he must join his wife in the action upon all choses in action which accrue to her before coverture.” Now hore is a clear and settled distinction in pleading, and it may be asked why this distinction should prevail in pleading, unless there is a distinction in legal right?
    John Ferguson, for the defendants:
    'Quoted and relied upon the following authorities: Clancy’s Husband and Wife, 4; 5 Johns. 208 ; 3 Ves. 506; 2 Ves. 675 ; Fonbl. Eq. 248; 6 Johns. 112, 118; 1 P. Wms. 381, 383; Swan’s Stat. 288.
   Read, J.

The question is, is a husband in his own right, under the laws of Ohio, authorized to reduce to possession, after the death of hiswife, choses in action accruing to her, as the meritorious cause, during coverture ?

Choses in action belonging to the wife before marriage, or accruing to her during coverture, as the meritorious cause, not ^reduced to possession by the husband, survive to her after his death. If the wife die, such choses in action, not having been reduced to possession, subject to her debts, dum sola, are governed by the laws of administration and distribution, charged with such debts. In England and some states of this Union, by force of statutes, the husband, as next of kin, is entitled both to administration and the absolute right of such choses in action. Hence, when the husband is entitled in his own right to the unreduced choses of the wife after her death, subject to her debts, coupled with the right to administer as next of kin, not being bound to account, but only charged personally for the debts of his wife, dum sola, to the extent of such choses, he is permitted to merge the character of administrator, and pursue such chose in his own right. This is the reason of the authorities cited to sustain this bill. But in this state, the husband is not next of kin for inheritance. He may administer, but he must account, not only to creditors of the wife, but to her heirs, under our statute of descent and distribution. Hence, in our slate, having the right only to administer, and not the absolute right in the choses in action which survive to the wife, the husband is not permitted, in his own right, to pursue such choses, either in law or equity. Demurrer sustained and bill dismissed.


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    *Lessee of James M. Trimble v. Boothby and others.
    Persons having an equity in lands, or contract with a trustee of military land warrants, are necessary parties to a suit in chancery, by the cestui que use, to compel the legal title to such warrants, and entries and surveys under the same; and, if they are not made parties, the doctrine of lis pendens does not prevent such contract purchasers from perfecting their legal title, by procuring a deed from the trustee.

      ■Where deeds, with covenants of general warranty, have been made during the pendency of such suit in the United States circuit court, although a decree may have been rendered against the trustee to compel the assignment of such warrants; yet, if it remain unexecuted, and is suffered to lay dormant, the doctrine of lis pendens does not apply, and the legal title to the land becomes vested in the trustee, by patent, and inures to the benefit of the covenantees, and perfects their title.
    The act of Congress of 1836, respecting the issuing of patents in the name of deceased persons, who had conveyed the land with covenants of general warranty — such covenants being in life against the heirs — transfers the legal title derived from such patent to tho grantees.
    This is an action of ejectment, reserved in the county of Brown. The case was submitted to the court upon the following agreed statement of facts:
    The plaintiff deduces his titlo under a patent to himself, founded upon a decree of the circuit court of the United States, rendered on a bill filed by Moore’s Heirs v. Joseph Kerr, in 1812, and a supplemental bill filed by the same et al. v. Kerr’s Heirs, 1839. The record shows that an interlocutory decree was rendered upon the original bill in July, 1827, under which neither party acted nor took any steps, and tho case was no further noticed on the docket or otherwise, until tho filing the supplemental bill in December, 1839. At that time Kerr’s heirs, the only defendants, came into court by counsel, and admitted that the plaintiff in this action, Trimble, had paid them, after their father’s death, the money directed by tho decree of 1827, and consented to a decree in favor of Trimble (not a party to tho original bill), and, by their attorney, ^executed to him a deed, by virtue of which, Trimble obtained the patent to himself.
    Defendants introduce:
    1. A patent to Joseph Kerr, dated April 10, 1838.
    Deeds from Joseph Kerr to those under whom they claim, one of the deeds dated 1817, the others 1814, each with covenants of general warranty, and prove possession under them, as also prior possession under executory contracts anterior to 1812, made with Kerr.
    It is agreed that plaintiff’s patent covers the land in controversy.
    It is agreed that the patent to Kerr covers the land also, and was issued after Kerr’s death.

      It is agreed that the deeds of the defendants cover all the land in controversy, and were made during the pendency of the abovomentioned suit in the circuit court.
    The defendants are James Boothby, J. H. "Wills, James Thompson, and Oliver H. P. Rice, whose tracts are shown on the plat, and are within the boundaries of plaintiff’s patent.
    1. Boothby claims under a deed from Kerr, made August 25, 1814, and subsequent conveyances down to himself.
    2. Mills claims under a deed from Kerr made to John T. Mills, August 25, 1814, and subsequent deeds to himself.
    3. Thompson claims under a deed from Kerr, made to the heirs of Jacob Rich, deceased, May 21, 1817, and subsequent deeds to himself. Also, a title bond from Kerr to Jacob Rich, dated October 25, 1810.
    4. Oliver H. P. Rice claims under a deed from Kerr to Sarah Fields, dated July 5,1814, and subsequent deeds to himself.
    J. H. Thompson and T. L. Hamer, for the plaintiffs:
    The patent of Trimble, the lessor of the plaintiff, covers the land in controversy, and entitles him to a recovery, unless there ^is something in the defendants’ testimony which defeats that right. Defendants rely upon their deeds from Joseph Kerr, and upon a patent subsequently issued to Kerr, by the government, which deeds and patent cover the land.
    These deeds were made, as the agreed case shows, during the pendency of the suit in the circuit court of the United States, brought by Moore’s heirs and devisees against Kerr, and the defendants are therefore purchasers, pendente lite, according to all the definitions, principles, and decisions to be found in the books. Their deeds arc void — not voidable — and they can take nothing under them. The decree of the court in 1827 gave the lands to complainants, and no conveyance to defendants, by Kerr, after the commencement of that suit in 1812, could affect either Moore’s heirs, or Trimble, who claims under them. If there is any one proposition settled, in the laws of this country, more permanently than another, it is this one which leaves a pendente lite purchaser in the samo condition as his vendor.
    The defendants pretend to have had executor’s contracts for these bonds, prior to the commencement of the suit in 1812. There is but one exhibited; but if they were all here, they could'be of no avail to them in an action of ejectment. A court of chancery is the only forum where these evidences of title can be examined) and their merits properly adjudicated.
    It is further insisted by the defendants, that the legal title is in them, under the patent issued to Kerr, who was dead in 1838, and consequently can not be in the plaintiff, under his patent, issued in 1840. The law of Congress of 1836 transfers the title, in those eases whore patents are issued to dead men, “ to the heirs or assigns” of such deceased persons. They claim to be Kerr’s “assigns.” The provisions of this law are too plain to be misunderstood. Where the land has not been sold, the title goes to the heir. Where it has been sold and conveyed by deed, as a general rule, it goes to the vendee. But, in this case, the pretended “assigns” have a void deed-, and of course the title does not vest in them. They are as if *they had no deeds at all. Besides, Kerr receivod the title, if living, when issued by the government, as a trustee for Moore’s heirs, or Trimble, their assignee; and not for himself, his heirs or assigns — the present defendants. Was the law of Congress intended to enable the “ assigns” of a trustee to defraud the real owners out of their property ? Was it intended to enable the parties to a ft-audulont transaction to perfect it? Did Congress moan to place the fraudulent vendees of a trustee of real estate in a bettor condition, alter his death, than they were in during his lifetime? If Kerr liad been living in 1838, when this patent issued, would the title have passed to his grantees (the defendants) through their fraudulent deeds, made pending the suit in the circuit court? No man can for a moment contend for any such doctrine; and it would be strange if his death should jilace them in a superior condition, under this act of Congress.
    No; had Kerr been alive in 1838, the legal title would have vested in him, in trust, to be conveyed to Moore’s heirs, under the decree of the circuit court. Being dead, it vested in his heirs, in trust, for the benefit of these parties. Moore’s heirs transferred their claim to Trimble, who had the suit revived in the circuit court, and Kerr’s heirs came in, and under the direction of the court, conveyed to Trimble by deed, which is on file, all the title they had in the lands. Upon this conveyance, Trimble obtained his patent for the land, the government having thus issued two grants for the same soil, both of which are vested .in the lessor of the plaintiff in this action.
    In a word, we maintain that the plaintiff must recover in this action, because he has the legal title : 1. He presents the patent to himself covering the land; 2. His deed from the heirs of Joseph Kerr, to whom the patent of 1838 was issued. Kerr being dead, the law of 1836 casts the title upon his heirs, in trust for Moore’s heirs and devisees, who were the real ownérs of the land.
    The defendants can not succeed at law, because their deeds from Kerr were mad<s pendente lite, and are therefore void. The patent *to Kerr, after his death, can not aid these deeds, nor does the law of Congress cast the legal title upon persons claiming under such deeds, for any purpose, much less for the purpose of defrauding the true owners, of the soil, in gross violation of right and justice, as well as of the solemn decree of the circuit court of the United States.
    M. Marshall and H. L. Penn, for the defendants:
    The defendants introduce:
    1. A patent to Joseph Kerr, dated April 10,1838 • ^
    2. Deeds from Joseph Kerr to those under whom they claim, one of the deeds dated 1817, the others 1814, each with covenants of general warranty, and prove possession under them, as also prior possession under executory contracts anterior to 1812.
    3. Defendants contend that the legal title of the land in question absolutely vested in them, by virtue of the patent of Kerr, who was dead, by the provisions of an act of Congress passed in 1836, without which act, the government, by the patent, parted with no title. Lewis v. McGee, 1 Marsh. 200; Shum v. Fishback, Ib. 356.
    4. The decree of the circuit court of the United States did not operate as a conveyance of the title. Lessee of Shepherd v. Ross, Comm’r., 6 and 7 Ohio, 394.
    5. The defendants are not bound by the decree made in 1839, and conveyances bottomed thereon; nor were they divested of their vested title thereby.
    1. Because they were not parties to the suit, but should have been made parties to the original, supplemental, and bill of revivor, being then in the actual possession of the land in question, which operated as notice to the complainants.
    2. Because Trimble was no party to the original or supplemental bill; and, if he ever had any interest in the land, it was acquired shortly anterior to the decree of 1839, and that ^decree was rendered by the consent of the parties to that suit, and predicated on facts conceded by the defendants, who had no interest, legal or equitable, in the land or money which they acknowledged the receipt of from Trimble, who it appears obtained leave and filed the bill of revivor in the names of the original complainants in part, and others who alleged to be heirs of such of the original complainants as are not parties to the bill of revivor. He, Trimble, yielding the consent and admitting the facts, on the part of the complainants, upon which the decree of 1839 was obtained, and that without any proof in the cause of the death of the original complainants, who are alleged to be dead, or proof of those who are alleged in the bill of revivor to be heirs of the deceased, that they were such.
    Indeed, it appears strange that there should have been a bill of revivor, or any other proceedings had in court after the death of Joseph Kerr, since it appears that those persons who are alleged to be his heirs (without proof that they were such) were as competent, if willing, to have made the conveyance which they did under the decree of 1839, without that decree, and which would have been equally available without as with that decree.
    3. Because the lis pendens could avail none but the party suing.
    4. Because the lis pendens should be prosecuted closely and continuously. Sugden’s Yondors, 526, 527, top.
    In the present case, it is manifest that they did not prosecute their suit with the unremitted and ceaseless diligence required by law; but have permitted it to remain perfectly dormant, in quiet and undisturbed repose, from the time the decree was rendered, in 1827, until the filing of the bill of revivor, a period upward of twelve years, without urging or offering the slightest apology or excuse for the great lapse of time suffered to transpire.
    They do not pretend to account for this gross negligence and lapse of time in the prosecution of their suit, or offer any reason for not conforming to the requisitions of the decree of 1827.
    *5. Because there was no suit pending at the time the grant issued to Kerr, whereby the title vested in the defendants. The period between the time when the case was noticed on the record, and the filing of the supplemental and bill of revivor (more than twelve years), the benefit of the lis pendens was lost by lapse of time and gross neglect. 5 Ohio, 461; Murray v. Ballow, 1 Johns. Ch. 5, 6 ; Watson v. Wilson, 2 Dana, 406.
   Read, J.

The defendants hold under Kerr. Kerr had contracted to sell the land in question. Possession had been taken and consideration money paid prior to 1812, when Moore’s devisees filed their bill in the circuit court of the United States, to compel from Kerr an assignment of tho military land warrants, by virtue-of which the legal title was to be perfected to defendants and those under whom they hold, under said contract of purchase from Kerr. Kerr, in performance of this contract, in 1814 and 1817, executed deeds, with general covenants of warranty, pending said suit. The legal title was still in the United States. In 1827, a decree was rendered in said circuit court of the United States, in favor of'Moore’s devisees. Kerr never complied with said decree, nor was it in any manner enforced prior to 1839. On April 10, 1838, patents for the land in question issued in the name of Joseph Kerr, then deceased

The decree in favor of Moore’s devisees and the entire chancery proceeding lay dormant and abated, by the death of Kerr, until 1839, when Trimble, as assignee of Moore’s devisees, was permití ed to make himself a party, by supplemental bill and revivor, and obtained a decree, by consent, against Kerr’s heirs; and in compliance with such decree, a conveyance from them to him, and a patent from the United States.

Two legal questions arise as to the doctrine of lis pendente purchasers ; and the effect of the act of Congress of 1836, concerning patents issuing in the name of deceased persons.

* If the interest in these lands, acquired by purchase from Kerr, was to be affected by tho suit of Moore’s devisees — such interest existing prior to tho commencement of said suit — the persons so interested should have been made parties. Not having been made parties, it was their right to clothe their equity with the legal title, as though such suit had not existed, and as decided in respect to a like state of facts, at the'term of this court, Barr et al. v. this plaintiff. But it must be observed that the legal title to the warrants had not been divested from Kerr or his heirs, prior to the issuing of the patent for these lands in his name, as the decree of 1827 had not been complied with. At the timo the patent issued in Kerr’s name the suit was not ponding; it had been dormant for many years and had abated by the death of Kerr. And, to authorize the doctrine of Us pendens, as to Kerr’s heirs, the prosecution of the suit must have been close and continuous. Had Kerr, then, been in life in 1838, when the patent issued, he would have been clothed with the legal title, which would have inured to the benefit of his grantees, under the general covenants of warranty. To whom else could it inure? Moore’s devisees had nothing but an equity. A'nd, admitting even that the deeds of Kerr, of 1814 and 1817, could not have prevailed against deeds made by Kerr, in compliance with the decree of 1827, in consequence of the doctrine of lis pendens, yet the covenants in said deeds would be in full force and life against Kerr; and, if Kerr should, after such suit had been suffered to become dormant, acquire the legal title, it would inure to his covenantees; because the doctrine of inurement is nothing more than an estoppel, to prevent an eviction which would authorize a suit for breach of covenants — or, more comprehensively, and by embracing the covenant of seizin — a performance of covenants by operation of law, instead of resort to action. Kerr, then, could not have evicted these defendants under his patent, because estopped by his covenants. Had he deeded these lands to these defendants in 1838, such deed would have been good as against Moore’s devisees; because, at that time, no suit respecting them was in *elose and continuous prosecution, nor had been since 1837. Hence the covenants of 1814 and 1817, being in life against Kerr, attached at the time of his acquiring the legal title by patent, and have the same force and effect of a deed, with covenants of general warranty, if then, for the first time, made. Hence, the legal title in 1838 was in these defendants ; and if Moore’s devisees, or Trimble, their assignee, held the equity, they would be compelled to make them parties, to compel legal title, if Kerr had been in life. Does the death of Kerr, at the time the patent issued, make any difference? As between Kerr’s heirs and these defendants, there is no question but the act of Congress of 1836 vests the legal title, by the patent, in these defendants; how does Trimble, the assignee of Moore’s devisees, claim that it does not? Upon the principle that a continuous suit was in prosecution against Kerr, and that they had a right to a decree against his heirs, and that these defendants thrust themselves in, and, if permitted to hold, would defeat the object of the original suit. The answer to this is two-fold: that the suit was not a suit in close continuous prosecution, at the time the legal title was vested in these defendants, nor at the time of the commencement of the suit had Kerr the legal title; and that the bill sought no such relief.

The act of Congress, then, in no sense can vest Kerr’s heirs ■with the legal title, nor does it execute a simple trust; but divests the legal title conferred by the patent, in the channel of inheritance or purchase. If not, the effect of the law would have been to invest Moore’s devisees, or Trimble, their assignee, with the legal title; and there would have been no need to have revived the suit against Kerr’s heirs. But it is only claimed that the law conferred the legal title upon Kerr’s hi irs for the benefit ofMoore’s devisees or their assignee. But the inheritance of Kerr’s heirs was cut off by the deeds of their ancestor.

Thus the legal title was in the defendants, by virtue of the deeds of Kerr and patent, before Trimble obtained deeds from *Kerr’s heirs, and patent for himself; and if Trimble, the plaintiff, have any remedy, it is in equity.

Judgment for defendants.


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    William Clark v. Samuel Parr.
    On a covenant of warranty of title, where plaintiff has been evicted by title paramount, and the whole premisos lost, the rule of damages is the consideration paid, with interest. But, when the plaintiff has enjoyed the rents and profits, he can only recover interest for a period of four years ; and he is allowed to recovor during this period, beoause he is liable to account for them to the plaintiff in ejectment, in an action for mesne profits.
    This is an action of covenant, reserved in the county of Licking.
    On April 30, 1834, the plaintiff was in possession of fifty-three acres of land, in right of his wife, by a former husband, one Richard Parr, a brother of the defendant. The defendant was the administrator on his brother’s estate; and, under an order of the eourt of common pleas, conveyed the land to one Emery, who conveyed it back to the defendant. On the same April 30, 1834, the defendant executed a conveyance of eighty acres of land, including this dower estate to the plaintiff, and this conveyance contains a covenant of warranty. The heirs oí Richard Parr afterward filed their hill in chancery against the administrator, Emery, the plaintiff and wife ; and such proceedings were had in the chancery suit, that the title of Samuel Parr, the defendant, was decreed fraudulent, and the plaintiff and wife, to release their title to the land conveyed, except the dower estate of the wife. The balance of *the lot, not included in the fifty-three acres, is wild land, and unproductive. This action is covenant on the warranty of title. A default was taken in the Supreme Court for Licking county, and the case reserved here, to determine the rule of damages.
    Shyti-ie & Sprague, for the plaintiff:
    This action is on the covenants of the deed. The defendant is in default, and the question-submitted to the court is, as to the amount of damages for which the plaintiff shall take judgment. From what time is he entitled to interest on the purchase monev paid ?
    Among the- conflicting decisions of courts, in the actions on these covenants, from the old judgment in warrantia ehartce in England, to the establishment of certain rules in this country, I find no ease precisely like this; and, of course, no rule strictly applicable to the question.
    In general terms, on covenants of seizin, and for quiet enjoyment, the rule in Massachusetts, New York, and Ohio is settled — the measure of damages is the consideration money and interest. 2 Mass. 455; 4 Mass. 108; 8 Mass. 162, 243; 10 Mass. 459 ; 3 Caine, 3; 4 Johns. 1; 9 Johns. 324; 3 Ohio, 211.
    The same rule has been held in Ohio to apply to covenants of warranty. 5 Ohio, 154. In Massachusetts an.d Maine, the rule of damages on covenants of warranty, is the value of land at the time of eviction. 3 Mass. 523; 4 Mass. 108, 512.
    In 3 Caine, the rule was restricted to the recovery of interest for such time as the plaintiff was liable, or had accounted for mesne profits, being six years, tho limitation of the action of trespass therefor. This rule was followed in Caulkins and Harris, 9 Johns. The reason given for this restriction is, that the rents and profits received by the warrantee, for which he is not accountable, form a just compensation for the use of the consideration, money for such time — it is because “the premises had been enjoyed, and the profits taken by the covenantee.”
    *This court, in King v. Rees’ Adm’rs, 5 Ohio, 154, followed the spirit of this equitable rule. It is there said: ‘ Interes* is not recoverable when the premises have been occupied by the warrantee, and he has not accounted, nor is accountable for the rents and profits. He who buys a farm, or house and lot, agrees to part with the use of the consideration forever, for the use of the farm, or house and lot forever. As long as he has the use of the farm, or house and lot, so long should the seller have the interest of the consideration.”
    I take no exception to the restriction thus established. It is right and just; its reason, however, does not apply to this case. The plaintiff has not “ enjoyed ” the premises intended to pass by the deed. He had an estate, before the conveyance, in all the land capable of enjoyment, which has not yet expired, viz: the dower estate of his wife. He has received no additional benefit from the conveyance of the defendant. Had he not purchased, or parted with his money, he would, nevertheless, have enjoyed all the benefit from the premises that he has received. His purchase, as to the part of the land covered with the dower estate, was a purchase of a reversion merely, which has not vested as a present interest in the land, and could not so inure, until the decease of his wife. The advantage of the purchase, had a good title, been procured thereby, would have been to secure to the plaintiff the enhanced value of the land to himself, or his heirs. In the ouster of the reversionary title, this advantage is lost to him. He can only look for the money with which he has parted, without benefit or consideration, and such interest thereon, as by the rules of law, he may be entitled to. The defendant has had the use of his money from the time of the purchase, without prejudice to any interest of defendant, or benefit to-the plaintiff.
    Suppose the plaintiff to have had no connection with the dower estate, this would not vary the ease; yet, could there be a doubt of his right to the consideration and interest for the whole time, for so much of the land as is embraced by the dower ? He could not then have “ enjoyed ” the premises and received *the rents and profits, nor would he be accountable for them. The case of Chappel v. Bull, 17 Mass. 213, would apply. The defendant conveyed to the plaintiff 684 acres of land in Ohio, ponding proceedings in partition under which the lands were sold, the plaintiff having never entered into possession. The damages awarded by the court were the consideration money and interest to the time of the verdict. It ia a general rule of law, respecting the measure of damages, that the remedy should be commensurate with the injury sustained. 7 Mass. 254. Such is the effect of the rule in the cases cited; but its application to this case would work manifest injury to the plaintiff, and put him in a worse condition than if ho had become the purchaser of a present unincumbered foe simple estate. ■ The only way that the reason and equity of the rule can be applied, is by awarding the purchase money and interest thereon irom the time of payment. This is the plaintiff’s injury, and he is at least entitled to it so far as relates to that part of the lane’ embraced in the dower estate. This may be awarded him without the violation of any rule of law. As to the twenty-four and a half acres not embraced in the dower, he is entitled, under the rule in 3 Caine, to interest on the consideration for such time as he would be liable for mesne profits, had any been received.
    It is suggested that the doctrine of merger applies, and that the dower estate became merged in that derived from the defendant. This can not be. To constitute a merger of the leáser estate in the greater, they should both unite in the same person; whereas, the one is in the wife, and the other in the husband solely. Besides, no estate did, in fact, pass by the defendant’s deed; the mere execution of a fraudulent deed can not absorb an existing estate.
    No argument was submitted for the defendant.
   Wood, C. J.

In actions on covenants of seizin and quiet enjoyment, the rule of damages, though it has exceptions, has been ^adjudged to be the consideration money and interest, and this rule has been applied to suits on the warranty of title. 5 Ohio, 12, 154. But in the case at bar, the plaintiff occupied the premises from the date of the conveyance, and such’enjoyment is considered as equivalent to the interest on the consideration paid. 5 Ohio, 154. As the plaintiff may, however, be compelled to account for the rents and profits to the plaintiff in ejectment, in an action of trespass for mesne profits, and as such action is barred by the statute in four years, and the plaintiff in trespass for mesne profits can not recover beyond that period from the ejectment, the plaintiff, on the account of warranty, ought not to recover interest lor any longer period on the consideration.