author: Wood, J.

text:
    *John Mount v. The State of Ohio.
    After the jury is impaneled and sworn, if a nolle prosequi be entered by the prosecuting attorney, with leave of the court, and without the consent of the prisoner, it is a good bar to another indictment for the same crime.
    If, after conviction, the indictment be stolen from the files, its place may be supplied by copy, like lost instruments or pleadings.
    The presence of the original indictment is not indispensable to the sentence of the prisoner.
    A judgment on the verdict of conviction or acquittal is not necessary in order that either may constitute a bar to another indictment for the same offense.
    ' This is a writ of error to the court of common pleas of the county of Hamilton, returnable in bank.
    On inspecting the record, returned in obedience to the command of the writ, it appears the plaintiff was, at the July term, a. d. .1844, indicted in the court of common pleas of Hamilton county for grand larceny.
    The indictment contains three counts. The two first aver that the plaintiff stole “ one mare, of the value of fifty dollars, of the personal goods and chattels,” etc., of “Jacob Rose, then and there being found, did steal, take,” etc. In the third count it is averred that “ one mare of the value of fifty dollars, of the goods and chattels of Jacob Rose, then lately before stolen,” the plaintiff in error did receive, buy, and conceal, with intent, then and there, to defraud the said Jacob Rose, then and there the owner of the same) “ he, the said ” plaintiff in error, “ then and there well knowing the said last-mentioned goods and chattels to have been stolen, contrary,” etc.
    To this indictment the plaintiff in error filed a special plea in bar thereof. The plea avers, in substance, that at the same July term of the court of common pleas of Hamilton county, the grand jury presented, in due form of law, their indictment against the plaintiff in error, consisting of three counts, for the same offenses as described and set forth in the present indictment. The plea then avers that, on such former indictment, the plaintiff in error was arraigned; that ho pleaded thereto not guilty; that a jury was thereupon duly impaneled and sworn, evidence heard, and the said jury, being charged by the *court, returned a verdiet of guilty on the first two and not guilty on the third count of said indictment, which said judgment remains in full force and effect — not reversed nor made void.
    The plea also avers the plaintiff in error to be the same person, the offense the same and identical with those stated in the present indictment, and concludes with a prayer for judgment, and that he may be hence dismissed and discharged.
    To this special plea the counsel for the prosecution demurred. The court, however, overruled the' demurrer, and gave leave to file a replication, which was accordingly done.
    The replication substantially admits the facts set up in the plea, but denies there is any such record, inasmuch as the former indictment in said plea mentioned was at the then present criminal term of said court, and after said verdict was given, stolen from the files; and thereupon, on motion' by the counsel for the state, the verdict was set aside and a nolle prosequi entered by leave of the court, as to the said former indictment, by the prosecuting attorney, which replication concludes to the court.
    The plaintiff in error then interposed a demurrer to said replication to the special plea, and the counsel for the state joined. The demurrer was overruled by the court, and the plaintiff ordered to answer over the last indictment. He thereupon plead not guilty; A jury was impaneled and sworn to try this issue; and, after they were so sworn, the prosecuting attorney abandoned the third count in the indictment. The jury found the plaintiff guilty on the two first, and not guilty on the third count, and the plaintiff received sentence of fifteen years' imprisonment in the penitentiary, and to reverse these proceedings this writ is prosecuted.
    The plaintiff assigns for error: 1. That the indictment is insufficient. 2. That the judgment should have been in the plaintiff’s favor. 3. That the court erred in permitting the state to reply to the plaintiff’s special plea in bar, after overruling the demurrer thereto. 4. In not discharging the plaintiff after the replication to his plea was filed, thb replication itself admitting the plaintiff *to have been tried and convicted for the same offense. 5. In overruling the demurrer to the replication. 6. In permitting the state to abandon the third count after the jury was sworn. 7. In proceeding to try the plaintiff a second time, having been once tried and convicted of the same offense. 8. In permitting the state to enter a nolle prosequi on the verdict and finding of the jury, on the first trial, in order to try him again for the same offense. 9. In making no disposition of the plaintiff’s special plea in bar, and the replication thereto, but merely overruling his demurrer to it, and compelling him to answer over.
    Donn Piatt and A. J. Pruden, for the plaintiff in error:
    Waiving further argument upon other assignments, the plaintiff in error would call the attention of the court to the one relied on, and that is, that the court erred in permitting the prosecutor to enter a nolle prosequi upon the first indictment after verdict, and forcing the plaintiff in error to a second trial upon the same charge.
    The constitution declares that no person shall be put in jeopardy twice for the same offense. The whole question then is: What is putting in jeopardy, within the meaning of the constitution? I hold that swearing the jury to determine the guilt or innocence of the accused,’upon a sufficient indictment, puts, the person so charged in jeopardy. It is the jury trial. After the jury are sworn, the accused is entitled to a verdict. No second jury can be called, except when the first are unable to agree, or where, by death or bodily infirmity, they cease to be a jury. No second indictment and trial can be had where there has been a verdict upon a sufficient indictment for the same offense. Where no judgment can be rendered in consequence of defect in .the indictment, and when it is impossible for the jury to return a verdict, it has been decided, and upon sufficient reason, that a second jury may be called — the doctrine *being founded upon necessity. Where judgment is arrested from a defect in the indictment, there may be a second indictment and trial, because the first was not an indictment for that offense, being in fact a nullity.
    The prosecutor does not pretend that the present case falls within any of these exceptions, but says the prisoner has never been put in jeopardy, because no judgment was rendered, for the reason that the indictment was lost after verdict — that no person is put in jeopardy until after judgment.
    It matters not what becomes of the indictment, if trial and verdict, as I have argued, puts the accused in jeopardy, he can not a second time be indicted and tried for the same offense. If it should be held that a person could be indicted and tried for the same offense,' after trial and verdict, because t.he court had not rendered judgment upon the first verdict, a neglect upon the part of the court to do its duty would authorize a second trial. In this view of the matter, the right of the accused would rest upon the conduct of the court, and not upon the constitution. The misconduct of the court would deprive the accused of a constitutional right. This is a strange doctrine, truly.
    But the question not only x-esis upon reason, but on authority. Chief Justice Tilghman says (6 Sei’g. & Rawle, 577): “Where a party is tried and acquitted on a bad indictment, he may bo tried again, because his life has not been in jeopardy. The court could not have given judgment against him if he had been convicted. But where the indictment is good, and the jury is charged with the prisoner, his life is undoubtedly in jeopardy during their deliberations.”

    Justice Duncan, in the same case: “ There is a wide diffei’enee between a verdict given and jeopardy of a verdict. Hazard, pex-il, danger of a verdict, can not mean a verdict given. Whenever the juxy are charged with a prisoner*, when the offense is punishable with death, and the indictment is not defective, he is in jeopardy of life.”

    Judge Stox*y says (2 Sumn. 40) : “And here, in order to avoid any ambiguity, it may be proper to state that conviction does-*not mean the judgment passed upon a vei’diet; but” (and here the judge quotes Irom 4 Black. 362; also refers to 3 Just. 131), “ if the jury find him (the pax’ty) guilty, he is then said to be convicted of the crime; for there is, in point of law, a difference between the pleas of autrefois convict and autrefois attaints of the same offense. The former may be where there has been no judgment, the latter is founded upon a judgment.” •
    In 4 Black. 336, it is laid down that, “ that the plea of autrefois convict, or a former conviction of the same identical ci’ime, though

      no judgment was ever given, or perhaps will (being suspended by benefit of clergy, or other causes'), is a good plea in bar.” 3 Hawk. P. C. 36, 3, 1; 10 Stanf. P. C., lib. 11, chap. 37, p. 10; 2 Caine, 304; 1 Bail. 651; 1 Hay. 241.
    Then, the trial by jury and verdict, puts the accused in jeopardy. The accused can be put in jeopardy but once. Having been once put in jeopardy, how does the loss of the indictment affect his right ? The prosecutor seems to think, and so decided the court below, that the loss of the indictment authorizes the accused to be put in jeopardy twice. The constitution makes no such exception ; but says no person shall be twice put in jeopardy for the same offense. And this, I humbly trust, will prevail.
    C. H. Brough, for the state :
    I insist, in the first place, that the special plea in bar is insufficient in law, and that the demurrer to it was therefore well taken. The plea of autrefois acquit, or autrefois convict, must be set forth; not merely a verdict, but a judgment thereon, or it is bad. Hurley v. The State, 6 Ohio, 404; 2 Hale’s P. C. 243, 248, 251.
    The constitutional provision that no one shall twice be put in jeopardy for the same offense (Constitution of Ohio, art. 8, see. 1), is merely an affirmance of the previously well-established ^principle of the common law. In Hurley v. The State, above cited, this court say: “ Our constitution is nothing more than the recognition of the common-law principle on this subject.” Vide also People v. Goodwin, 18 Johns. 202; and United States v. Gibert et al., 2 Sumn. 19.
    It is well established, at the common law, that a previous insufficient indictment, and trial thereon, is no bar to a subsequent trial, upon a good indictment. And the reason is, that the court can not render judgment upon such an indictment; for it charges no felony, and so no putting in jeopardy. But, if judgment had passed, even though the indictment were manifestly bad, and the plea set forth the judgment, as well as previous proceedings, this would be good, being properly pleaded, until the judgment should be reversed. Vaux’s case, 4 Coke, 44, cited in 2 Hale’s P. C. 248; and see the People v. Barrett and Ward, 1 Johns. 65, and cases there cited. Upon this rule, how shall it be known whether the indictment be good or bad, in this case, since it is not set forth in the plea, and the court have not impliedly said it is good, by rendering judgment upon it? It is even said that a judgment of ac« quittal, quoad est sine die, upon such defective indictment, shall be supposed to have been given, because of the defect of the indictment; and the judges are to look into the indictment and determine as to its validity. 2 Hale, 248 citing Co. P. C. 214. But, in this case, I apprehend there would have been no controversy about the matter, had any previous indictment remained to bo looked into. And, if it be no bar to plead an insufficient indictment, how shall it be maintained as such, to plead an indictment upon which judgment has not passed, and which is in no way, nor can be, placed within the cognizance or'inspection of the court?
    The demurrer, admitting the truth of the matters stated in the special plea, raised the question, whether a mere trial and verdict, without judgment, was such a putting in jeopardy as is contemplated by the constitution. I am aware that there are conflicting decisions in the circuit courts of the United ^States, and the courts of other states, upon this question, in some of which, as will hereafter be seen, the same court, by the same judge, at one time, stands opposed to itself at another. But, in this state, it is no longer an open question ; and, as our courts are to construe for themselves the constitution and laws of Ohio, looking abroad for analogy, to be sure, but not for binding authority, I submit that the rule of their decisions heretofore, must govern now, unless there be conclusive reason for setting it aside.
    The case of the State v. James Turner, 5 Ohio, 542 (see the same case in Wright, 21), and Hazer’s case, 5 Ohio, 544, show the correctness of the proceedings of the court of common pleas in this case; and to these may be added that of the State v. Harley, 6 Ohio, 404, a capital case; and the constant practice of this court, where, upon writs of error, new trials are awarded. It may be urged that, in this latter class of cases, the court act by authority of statute, p. 731, sec. 2; but, of what authority is that statute, in so far as it comes in conflict with the constitutional provision in question ? The proposition of prisoner’s counsel is, that the mere fact of charging the jury with the trial and deliverance of a prisoner, is putting him in jeopardy. That this is not the correct understanding of the provision, I vouch the statute itself, being the authentic exposition of the legislature, as also the precedents and practice of this court.
    It would seem unnecessary to examine the cases relied upon by prisoner’s counsel, in the reports of other states. The Commonwealth v. Cook et al., 6 Serg. & Rawle, 577, is much more th'-m neutralized by the People v. Goodwin, 18 Johns. 187, and tb*i People v. Denton, and People v. Olcott, 2 Johns. Cas. 275, 301 — tf which is to be added the Commonwealth v. Bowden, 9 Mass. 494 The case of the United States v. Gibert et al., 2 Sumn. 19, stand? opposed to the decision of the same court, by the same judge, ir United States v. Coolidge, 2 Gall. 364. It is, moreover, inconsist ent with itself, and with the merciful spirit of the criminal law; for it decides that ^prisoners under conviction of piracy, a capital offense, having moved for a new trial, can not have such new trial awarded, because of the constitutional provision, that no one shall twice be put in jeopardy for the same offenso! And, having gravely reasoned out this conclusion, against the authorities of his own commentaries, the judge as gravely proceeds to reason down the .affidavits of newly-discovered testimony, implying that, mauger the construction he bad given to the constitution, he found it necessary, upon this ground, to look beyond it, and controvert the reasons urged for the motion. It would sound strangely, indeed, were the prosecuting attorney, in a capital case, where the prisoner, after conviction, had moved for a new trial, to bring in this case, and contend that a new trial could not be granted, because the constitutional rule forbade it; and yet, if the decision be authority for any purpose, it would be for that very purpose. A much better reasoning, in my judgment, is to be found in the opinion of Mr. Justice Davis, in the same case, completely demolishing the refinements of Mr. Justice Story; and the whole decision is stripped of the least vestige of authority, in this cause, by the distinction which it draws between felonies and misdemeanors — applying this rule to the former and leaving the latter untouched.
   Wood, J.

It can scarcely be necessary to consider the numerous assignments of error made upon the record, separately, since they may all be included under the two following propositions;

1. Whether the state, in a criminal prosecution, can, without the prisoner’s consent, enter a nolle proseguí on an indictment, after the jury are charged with his ease; that is, after the jury are impaneled and sworn? 2. Whether the special plea of autrefois convict is a bar to the second indictment, the first not being deIective, although the conviction is not followed by sentence or judgment thereon?

As to the first, we entertain the opinion that a nolle prosequi can not, in such a case, and under such circumstances, be entered *by the state, without operating as an acquittal to the accused. If the rule be otherwise, every criminal trial becomes at once subject to numerous exigencies, which may arise during its progress, either from defect of preparation, insufficiency of testimony, the-unexpected absence, or the impeachment of a witness, on the part of the state, and which a second, third, or more trials might possibly remedy. Can it be doubted that, to allow such a course to be taken with a prisoner, would place him twice in jeopardy for the same offense? It may be done under leave of the court; his destiny is controlled by no fixed rule, but his fate is committed to an uncertain judicial discretion, too unlimited and too various to furnish a just and safe guide, and 'which every cautious and prudent judge desires to avoid.

I take the true rule to be, that a nolle prosequi can not be legally entered after the jury are sworn ; and if a prisoner be discharged, under pi’etense of such entry, from the prosecution, and without his consent, it is equivalent to an acquittal, and a bar to a second indictment (or the same crime. The rule should be so in principle, and we think is so upon authority. In South Carolina, it has been holden that such entry can not be made after the jury is impaneled; and, on a trial for murder, a question being put to a juror, and his answer given, the solicitor-general, with permission of the court, entered a nolle proseequi, and the jury were discharged; and this was held a bar to a subsequent imdictment. State v. McKee, 1 Bailey, 651, 653. In New York, after the jury is sworn and evidence offered, if the prosecutor, without the prisoner’s consent, withdraw a juror merely because he is not prepared, the prisoner can not be again tried for the same offense. 2 Caine, 304. In Tennessee, if the jury be allowed to separate without the rendition of a verdict alter the prisoner be once put on his trial, it is held a bar to a second trial on the same indictment. 1 Head, 241.

There is a class of cases, however, in which it has been holden that after the trial has closed, and the jury have retired to deliberate, in the exercise of a sound discretion, the court *may discharge the jury, continue the prosecution, and remand the prisoner for another trial on the same indictment. This was done in the People v. Goodwin, because the jury were unablo to agree. 18 Johns. 187. In the case in South Carolina, before cited, it was said that authority was confined to those cases only in which there was the consent of the prisoner, the illness of one of the jury, the prisoner or the court, the absence of jurymen, or the imjjossibility of their agreement. It was also said, the discretion to discharge a jury and remand a prisoner for another trial, is a legal discretion, and to be exercised according to known rules. State v. McKee, 651, 653. In Pennsylvania, this power can only bo exercised in cases of absolute necessity. The illness of the jury, if arising from privation, and removable by food, and the prisoner consent that it may be supplied, is not an adequate cause of their discharge; and if discharged, under such circumstances, another trial will be barred. 3 Rawle, 498, 500; 6 Serg. & Rawle, 577. The Sul preme Court of Pennsylvania admit its decisions and those of some of the other states are in conflict; but declare the constitutional right of the subject, not to be put in jeopardy a second time, ought not to depend on the arbitrary opinion of judges. In Henley v. The State, 6 Ohio, the rule, held in the People v. Goodwin was recognized as the law in this state. But we are unable to discover in any of these cases any established rule, direct or analogous, which will authorize the court, after full trial, and conviction or acquittal, under the mere pretext of a fact happening after conviction, with which the plaintiff had no connection, and did not, per fraudem, produce, to put a prisoner on another trial. To us, the felonious abstraction of the indictment, after conviction and before sentence, is no excuse nor justification for the leave given to enter the nolle prosequi; and the discharge of the plaintiff, under such entry,-from that indictment, wo think should be held to bar the subsequent prosecution for the same offense.

By the adoption of this rule, we do not intend to make any ^infringement, nor is any perceived, on that class of cases in which a new indictment or a recital of a former one is allowable. This may be done when the indictment is insufficient, the judgment arrested, and in like cases.

I am aware that, in some of the states, a practice has grown up, of entering, by leave of the court, a nolle prosequi, after the jury are sworn in cases of misdemeanors; but it has not been followed in others; and we do not feel disposed to extend it to cases where the punishment on conviction is imprisonment in the penitentiary.

There can, we think, be no question of the right of the state, after the jury are sworn, to abandon any count, or all the counts of an indictment, even against the defendant’s consent; but abandonment can not be held to bo anything more than the expression of the opinion from the legal authority of the state, on the insufficiency of the evidence to produce conviction, in the case made; and it is equivalent to an acquittal. It justifies and requires from the jury, with the sanction of the court, a verdict of not guilty, and the prisoner may of right demand it. An abandonment, therefore, of a criminal prosecution, after the jury is sworn, is tantamount to an acquittal, and the effect is the same; and no error is perceived by us, in the exercise of this right by the state, in reference to the third, count.

The opinion expressed on this point, disposes of the whole case, and renders it unnecessary in fact to consider the second proposition stated, to wit, whether the special plea of autrefois convict is, of itself, a bar to the second indictment. It seems, however, to be a good bar; and to hold otherwise, would be, in the language of the bill of rights, to put a prisoner twice in jeopardy for the same offense. Here are an indictment, trial by jury, and conviction for a crime, and a second indictment, trial, conviction, and judgment, for the same crime. • It is indeed said, the former conviction, not being pursued to judgment, is inoperative, and constitutes no bar to the present indictment. Is this true? Must there be a judgment on the conviction, in order to render the prisoner’s plea in bar an answer *in bar to the second indictment? We hold not. The verdict itself, whether of conviction or acquittal, formal or virtual, constitutes a bar. 7 Cow. 414, 418, etc.; 2 Yerger, 24. In this last case, the verdict was held a bar, where the judgment was improperly arrested, on a good indictment. The only reason assigned, in this cáse, for not passing sentence on the prisoner, on his first conviction, is the felonious abstraction of the indictment, and that fact is singularly incorporated into the replication of nul tiel record, as if a fact dehors the record was triable by the record itself. It may, perhaps, bo treated as surplusage; and, therefore, the demurrer to the replication of nul tiel record was properly overruled, so far as regarded the replication. It would then reach the plea; and, were it necessary, we should hold with the court, of common pleas, in overruling the demurrer to it, that this special'plea is, as pleaded, a bar to the present indictment. 7 Cow. 414; 2 Sumn. 40. The difficulties to be overcome in reaching the plaintiff in error, so as to pass sentence upon him, would by no means be insurmountable, were it not for the nolle prosequi, on the former indictment. It was not indispensable to the sentence, that the original indictment should bo before the court. If lost or destroyed by accident, or by the fraud or design of the plaintiff in error, or stolen by him or another, and the prosecution were not in fault, its place might have been supplied by a copy, like any other record or pleading. A copy of the indictment is not transmitted with the convict, but a copy of the sentence only.

But if the plaintiff in error had been beyond the reach of punishment, by the loss of the files, it were far better to let him remain so, than to introduce now rules which might be easily converted into wrong, through the means of judicial discretion, and thus to hazard the rights, or take away the protection belonging to persons accused of crime. Now agencies demand new rules or may change old ones; but nothing can justify us in giving to the nolle prosequi the effect demanded by the state, until, at least, other expedients, less objectionable, are resorted to.

The judgment is reversed.


source: Caselaw Access Project

author: Wood, C. J.

license: Public Domain

text:
    *Lessee of James Shirley v. Jeremiah Ayres.
    It is not essential to the validity of a deed, that it be actually delivered to, or ever pass into the hands of, the grantee.
    If delivered to a third person as an escrow, it will take effect immediately on the performance of the condition; and if necessary for the purpose of protecting the grantee against intervening rights, will be held to take effect from the time of its first delivery as an escrow.
    This is an. action of ejectment, reserved in the county of Allen.
    It was submitted to the court on the lust circuit in Allen county, and reserved for decision here, on an agreed statement of the facts.
    The premises in controversy are in-lot No. 9, in Wapakoneta, in the county of Allen. It is agreed that both parties claim title under the original proprietors of said town. These proprietors were Peter Aughinbaugh, Jonathan R. Wilds, Joseph Barnett, and James B. Gardner. Three of the proprietors executed a power of attorney to the fourth, Joseph Barnett, to sell and convey their interest in said town, which was recorded on June 14, 1833.
    On the 31st of-July succeeding, Gardner conveyed his individual fourth in the premises to said Wilds, Aughinbaugh, and Barnett, which deed was duly recorded.
    On March 14, 1833, in-lot. No. 9, was sold by Barnett, as the agent of the proprietors, to Elijah C. Case ; a part of the purchase money was paid in hand, a note taken for the balance, and a bond given to Case for a deed, on payment of the note and return of the bond.
    In 1835, Barnett executed a deed to Case, and left it in the hands of Yan Horn, to be delivered on payment of the notes and the return of the bond, the note being also with Yan Horn.
    *In June, 1835, Yan Horn delivered the deed and note to Elliott, with the same instructions he received from Barnett; and Elliott, a few days afterward, informed Case he was ready to deliver the deed, on the judgment of the note and return of the bond. Case paid him some money, and agreed to pay the balance and take the deed. Yan Horn afterward called and took the note, collected it, and in 1836 or 1837, told Elliott the note was paid, and to deliver the note to Gase, saying nothing about the bond.
    In 1841, some time in October, Case was at Wapakoneta, and Elliott told him he had the deed ready for him, but to which Case-made no reply. The same day, Case, and Shirley, the lessor of the plaintiff, left Wapakoneta, together, for Dayton; and, on their return, told Elliott that Barnett said he would burn the deed in their presence ; but Elliott refused, and the same day delivered the deed to the sheriff, to be recorded. It is admitted Shirley knew the deed was in Elliott’s hands, and that the same, by the sheriff’s direction, was placed on record.
    On December 15, 1838, Case assigned his interest in the premises to the lessor of the plaintiffs; and October 20, 1841, Barnett conveyed, by virtue of the assignment. On October 23, 1841, the deed was recorded at nine o’clock A. M., and at half past one o’clock p. m., of the same day, the deed to Case, made in 1835, was recorded. This is the plaintiff's title.

    On April 13, 1840, in-lot No. 9 was levied on by the sheriff, by , virtue of an execution issued on a decree for alimony obtained by Mrs. Case, against her hushar.d, and afterward sold to the defendant Ayres, on February 16, 1841, who holds by virtue of, and under the sheriff’s deed, and this is his title.

    E. Phelps, for the plaintiff.
    No argument for the plaintiff came into the possession of the reporter.
    *B. Stanton, for defendant:
    It is insisted, on the part of the defendant, that the deed was delivered to Yan Horn, and by him to Elliott, as an escrow, to take effect on the payment of the purchase money; and that, by the payment of the purchase money, before the sale by Case to Shirley, with notice, the title became absolute in Case, and was subject to levy by execution. 4 Kent’s Com. 454; 2 Stark. Ev. 477, note 1.
    For the purposes of justice and equity, the title shall relate back, and take effect from the time of the first delivery. Wheelwright v. Wheelwright, 2 Mass. 447; Hatch v. Hatch, 9 Mass. 293; Verplank v. Sterry and wife, 12 Johns. 545 ; Belden et al. v. Carter, 4 Conn. 66.
   Wood, C. J.

The law side of this courtis not the forum to settle the equities between these parties. If Shirley, by the assignment of the title bond, in December, 1838, obtained an equity which overreaches the lien of the levy which was made on April 13, 1840, and to which the sheriff’s deed relates, ho must assert it in a court of chancery. This assignment, however, bears date less than one month after Mrs. Case filed her petition for divorce and alimony, in the county of Ashtabula, and it might possibly be a tight fit, to answer favorably to such an equity, whether it was not acquired to defeat a decree for alimony, which might thoi’eafter be made?

The only question in this suit, as it is presented is, whether the deed to Case was delivered? If it was not, there was no legal title in Case, bn which the levy could attach, and Ayres took nothing by his purchase and sheriff’s'deed, that will enable him to defend in ejectment.

If there was such delivery, the levy was eighteen months ante- . rior to the conveyance to Shirley, and can not be affected by Shirley’s speed in placing his deed first on record, because he had full notice of the prior deed to Case. '

'--It seems to be supposed that there must have been an actual delivery of the deed into the hands of Case, to clothe him with the legal title; but it is not required. As a general rule, when an instrument is placed in the hands of a third person, as an escrow, it takes effect from the second delivery; but suph rule docs not apply when either justice or necessity requires a resort to fiction, in order to avoid injury; as in case of intervening rights, between the first and second delivery, it shall have relation back, and take effect from its first delivery, as an escrow. 4 Kent’s Com. 454.

It is also a rule of law, that a delivery to a third person, for the use of the grantee, without his knowledge, is valid, if he afterward assent to such delivery. 2 Stark. Ev. 477, n. 1.

To constitute a good delivery, the grantor must, it is said, do some act, putting it beyond his power to revoke. The delivery need not be to the party ; it may be to another jferson, with authority from the party, or to a stranger, for and in behalf, and to the use of the party, without authority; and, in either case, if unconditional, the deed will take effect instanter. 7 Conn. 503. If delivered as an escrow, when the condition is performed, it will, in many cases, take effect from the first delivery. 13 Johns. 285 ; 18 Johns. 554; 1 Johns. Ch. 28, and cases cited.

In Juno, 1835, the deed was in Elliott’s hands, to be given to Case when he paid the note and returned the bond. Case paid part, promised to pay the rest, and take the deed. The balance of the note was collected of Case, and Elliott was instructed to give up the deed, without anything said in reference to the bond. Elliott informed Case of this, but Case did not take the deed.

Can there be any doubt that the deed, thus in the hands of Elliott, is, for every legal purpose, in the hands of Case, and a valid delivery to Case? We think not.

Judgment for defendant.


author: Hitchcock, J.

text:
    John F. Brazee and others v. The President, Directors and Company of the Lancaster (Ohio) Bank and others.
    As between an elder judgment not sustained by levy witbin tbe year, an intervening mortgage and a junior judgment sustained by levy, the elder judgment must be first satisfied.
    This case comes before this court by writ of certiorari to the court of common pleas of Fairfield county.
    Its object is to reverse an order of that court, made by the distribution of certain moneys, made by sale on execution of certain lands, the property of Francis Cunningham; the parties *in interest being certain judgment creditors and mortgagees. The facts of the case are stated in the opinion of the court.
    John T. Brazee, for plaintiffs.
    H. H. Hunter and R. H. Coppee, for defendant.
   Hitchcock, J.

This is a controversy between the creditors of Francis Cunningham, having liens upon his estate, either by judgment or mortgage. The record shows that John T. Brazee received judgment against Cunningham, on August 27, 1838, which was a lien upon his real estate in Fairfield county. But no execution was taken out within one year and levied.

After the rendition of the judgment, and on October 25, 1838, Cunningham executed to McCracken and Ayres a mortgage on the same property; on January 22, 1-839, he executed another mortgage to McCracken, Myers, and Wing'; and, on February 22, 1839, he executed another to the Lancaster (Ohio) Bank — these two last mortgages covering the same real estate upon which Brazee’s judgment was a lien.

On February 24, 1839, the Lancaster (Ohio) Bank recovered a judgment against Cunningham, and several other judgments were obtained against him at the same term of the court, by the other creditors. Executions were taken out upon these several judgments, and levied upon Cunningham’s real estate, on January 29, 1849, within one year from the date of these judgments.

The real estate has been sold, and the avails are not sufficient to satisfy all the liens, and the question is, which are to be preferred — which postponed? The court of common pleas ordered that the judgment of Brazee, although the oldest in point of time, should be postponed to the junior judgments, because the latter had obtained a preference by execution levied ^within one year from their date, whereas no execution had been taken out upon the judgment of Brazee until after the expiration of the year. Brazeo’s judgment being postponed, then the mortgages would have the preferable lien, to take priority according to the times at .which they were respectively entered for record. And the court ordered that the mortgages should be first satisfied, and the balance of funds remaining, if any, should be distributed among the judgments recovered in February, 1839, pro rata.

There is unquestionably some difficulty in settling a question like this, and the difficulty grows out of our law regulating judgments and executions, taken in connection with the decisions of this court, that judgments against a mortgagor are liens upon the lands mortgaged, as well as upon those which are free from incumbrance. And it would perhaps have been more consistent with well-established principle, to have held that the interest of the mortgagor was a mero equity, which could only be reached through proceedings in equity. Still I am not aware that any considerable evil has resulted in consequence of the rule as established, although it may and does create some embarrassment in the question now before the court.

Section 2 of the act regulating judgments and executions provides, “that the lands and tenements of the debtor shall be bound for the satisfaction of any judgment against such debtor, from the first day of the term at which judgment shall be rendered,” etc. Section 23 of the same act, provides that such judgment shall not have priority over subsequent judgments, unless executions shall have been taken out and levied within one year. By delay, the lien is not lost; its priority alone is lost. As to any other incumbrance upon the land, the judgment lien continues in force for the full term of five years. It will be seen that this legislation is intended to apply to cases between judgment creditors. Can the rule prescribed prevail, where there are intermediate mortgages ? In such case, no positive rule is prescribed.

Now it will be observed, as to these judgment liens, they are *equal in extent. They attach to the entire land, or to the entire interest of the judgment debtor in the land. They are all of equal validity, and the only question in regard to them is as to priority. In every othor respect they are equal, and there is no injustice, no impropriety in giving the preference to that creditor who is the most diligent in the pursuit of his remedy. But it is not so Where there is an intervening mortgage. The liens of'prior and subsequent judgments are not equal. The elder judgment is a lien upon the entire land, and the entire value of the land may, if necessary, be appropriated for its satisfaction. But the subsequent judgment creditor has not a lien to the same extent. His lien extends only to that interest in the land which remains after the satisfaction of tho mortgage, and there can certainly be no propriety in saying that a lien which attaches to the entire land, shall be postponed to one which attaches only to a part of the land; or, more properly speaking, to the interest which remains in the judgment debtor, after having executed a mortgage upon the land.

It has ever been held, in this state, at least by this court, that the principle of tacking, as applied to mortgages, or to mortgages and judgments, could not be allowed. But still, in 1 he case before us, this principle must have been applied in tho court of common pleas, to produce the decision which was then made, and applied, too, in a general manner. According to my recollection of that practico, and I am free to admit that it is not very clear, a junior' incumbrancer connected himself with a prior incumbrance, in order that he might overreach an intermediate incumbrance. And, having once obtained the elder incumbrance, he could hold on until both that and his junior incumbrance were satisfied. But, in this case, it is the intermediate incumbrancer, taking the prior and subsequent incumbrances together, in order that he may postpone both. If there had been no junior judgment, the eider judgment must have been satisfied before the mortgage. But, inasmuch as there were junior judgments, the senior judgment was postponed to them, and the mortgages were directed to be first satisfied. The ^consequence was as might have been expected ; the entire fund was little, if any more than sufficient to satisfy the mortgages, and nothing of any account left to be paid upon either of the judgments.

This decision seems to, have been made upon the hypothesis that the liens of the junior judgments were superior or preferable to the lien of the elder judgment. Admitting it to be so, still the order of the court of common pleas is erroneous. It can not be denied that the elder judgment was a lien to be preferred to the mortgages, and, as between it and the mortgages, must be first satisfied. This being so, if the liens of the junior judgment are preferable to that of the elder, then it follows that the mortgages, which are admitted to be junior incumbrances to the elder judgment, should have been postponed to all the judgments; instead of this, the judgments were postponed.

Upon full consideration of all the circumstances of the case, we are of opinion that the judgment of Brazee should have been first satisfied, next the mortgages, according to their respective priorities, and then the junior judgments. We believe this to be in accordance with justice, and not in violation of any rule of law or common sense.

The order of the court of common pleas is reversed, and the cause remanded to that court for further proceedings.

Judge Wood, being sick, took no part in this decision.


author: *Hitchcock, J.

text:
    William Brewster v. Jonas B. Benedict and others. Charles E. Brewster v. William Brewster and others.
    Under the statute of Ohio, to regulate descents, etc., the property of an intestate, coming to him by devise, or deed of gift, when he would, by law, have inherited the same property, must descend to those heirs who aro of the blood of the person, who made the devise, or deed of gift, whether such pérson he the lineal ancestor of the intestate or not.
    This is a bill in chancery, and a cross-bill, reserved in the county of Huron.
    The facts of the case are as follows:
    On September 14, 1838, David M. Benedict, then, and until his death, a resident of Danbury, in the State of Connecticut, executed his last will, of that date.
    At that time, September 14, 1838, his property consisted of personal and real estate, situate in Ohio and Connecticut, of very considerable value, and the state of his father’s family was as follows: Platt and Sally Benedict, his lather and mother, resided at Norwalk, Ohio. His oldest sister, Clarissa, married to Hallet Gallup, also of Norwalk, Ohio, by whom she *had a family of children, then and still living, but Mrs. Gallup was not living with her husband. Eliza Ann, his second sister, was married, and living with the complainant, also of Norwalk, Ohio, by whom she had ono child, Platt B. Brewster, born December 18, 1836, then living. Ho had also one brother, Jonas B. Brewster, of said Nor-walk, who had children. 4

    The will is as follows:
    “I, David M. Benedict, of Danbury, in tno county of Fairfield, and State of Connecticut, being of a sound and disposing mind and memory, do make, and ordain this, my last will and testament, in manner and form following, to wit:
    “ 1. I will, order, and direct, that all my just debts and funeral charges be fully paid and satisfied, by my executors, hereinafter named.
    “ 2. I give, and devise, one equal fourth part of all my remaining estate, both real and personal, to my brother, Jonas B. Benedict, and to his heirs and assigns forever.
    “3. I give, devise, and bequeath ono equal fourth part of all my remaining estate, both real and personal, to my said brother, Jonas B. Benedict, and to his heirs and assigns forever, upon the trust and confidence following, to wit: That he shall place all the moneys, and the avails of the other personal estate, so bequeathed in this clause of my will, at interest, on good security, or invest the same in stocks, at his discretion, and shall lease or occupy the real estate, devised in this clause of my will, and shall annually, or oftener, if, in his judgment, it shall be expedient, pay the interest, dividend, rents, profits, and annual income thereof, to my sister, Clarissa Gallup, the wife of Hallet Gallup, separate from, and independent of, all control of her said husband, during her coverture; and if the said Clarissa shall survive the said Hallet Gallup, or shall at any time bo divorced from him, then, upon such divorce, or at the death of said Hallet, the said trustee shall pay, transfer, and convey all said moneys and estate to the said Clarissa, and *to' her heirs and assigns, forever. But if the said Hallet Gallup shall survive the said Clarissa, and she shall not be divorced from him, then, at her death, the said trustee shall pay, transfer, and convey all said moneys and estate to the children of said Clarissa, and their legal representatives, if any of her children are then dead, leaving children, or a child', said child, or children, are to have what would have been their parent’s share if living. My will is, that said Hallet shall havo no beneficial interost in my estate, other than what must necessarily result from the fact, that his wife and her children, and their representatives, are the objects of my bounty, and shall receive no part of the said interest, dividends,- rents, profits, and annual income, or any of the avails of my estate; but the same, when paid, shall be paid to, and for the sole use and disposal of, said Clarissa, during her coverture. '
    “4. I give, devise, and bequeath one other equal fourth part of all my remaining estate, both real and personal, to my said brother, Jonas B. Benedict, and to his heirs and assigns forever, upon the trust and confidence following, to wit: That he shall place all the moneys, and the avails of the other personal estate, bequeathed to him, in this clause of my will, at interest, on good security, or invest the same in stocks,- at his discretion, and lease or occupy the real estate, devised to him in this clause of my will, and shall annually, or oftener, if in his judgment it shall be expedient, pay the interest, dividends, rents, profits, and income thereof, to my sister, Eliza Ann Brewster, separate from, and independent of, all control of her husband, William Brewster, during her coverture; and if the said Eliza Ann shall survive the said William Brewster, then, at his death, the said trustee shall pay, transfer, and convey all the said moneys and estate to the said Eliza Ann, and to her heirs and assigns, forever, to bo hers absolutely. But if the said Eliza Ann shall die, during the lifetime of said William Brewster, then, at her death, the said trustee shall pay, transfer, and convey the same to the child, or children, of the said Eliza Ann and their legal representatives, and to *thoir heirs and assigns, forever. And if there shall be no such child, or children, or their representatives, then I give tho one-half thereof to the said Jonas B. Benedict, or his heirs, to bo his or theirs, absolutely, and forever free and discharged from all trusts. And if the said Clarissa be then living, and still be the wife of the said Haliet Gallup, I give the other half to said Jonas B., upon the trust declared and expressed in the third clause, or paragraph, of this, my will, for the benefit of said Clarissa and her children, and their representatives ; but if the said Haliet be then deceased, or the said Clarissa divorced from him, then to the said Clarissa, and to her heirs and assigns, forever, if she bo living; if she bo then dead, then to her children and their legal representatives.
    “5'. I give, devise, and bequeath one other equal fourth part of all my remaining estate, both real and personal, to my said brother, Jonas B. Benedict, and to his heirs and assigns forever, upon the trust and confidence following: That he shall place all the moneys, and "tbo avails of all the other personal property given in this clause of my will, at interest^ on good security, or invest the same in stocks, at his discretion, and shall lease or occupy the real estate, devised in this clause of my will, and pay tha interest dividends, rents, profits, and income thereof, and apply the same to and for the comfortable support of my father, Platt Benedict, and my mother, Sally Benedict, during their joint lives and to and for the comfortable support of either survivor of them during the term of life of such survivor, and the same shall be applied and paid, as they, my said father and mother, may need, or as the survivor of them may need, from time to time, for their support, in ease and comfort, allowing them, and the survivor of them, to live where they, or the survivor, shall think fit; and if said interest, dividends, rents, profits, and income shall be insufficient for the comfortable support of my said father and mother, and of the survivor, as aforesaid, then the trustee shall pay, and apply, to and for their said support, so much of the principal of the moneys in his hands, from time to time, as shall be necessary *for their said support. But it is my desire that all such interests, dividends, rents, profits, and income of said trust estate, shall be paid for their support, as aforesaid, from year to year, and the principal, or so much thereof as shall bo necessary, from time to time, as before expressed; and said estate shall remain in trust, as aforesaid, until the death of said Platt and Sally; and upon the death of the survivor of them, the said Platt and Sally, I give, devise, and bequeath the said last-mentioned fourth part of my estate, or so much thereof as shall then remain unexpended, as follows, to wit: One-third part thereof to the said Jonas B. Benedict, and to his heirs aDd assigns iorover, to and for his or their own nso; one other third part thereof to the said Jonas B., upon the same trusts as are declared and expressed in the third clause, or paragraph, of this ray will, for the benefit of the said Clarissa Gallup and her children, and their representatives, if the said Clarissa bo then living, and still the wife of said Hallot Gallup. But if the said Hallet be then deceased, or the said Clarissa divorced from him, then to the said Clarissa, and her heirs and assigns forever, if she be living; but if she be then dead, to her children, and their legal representatives, and their heirs and assigns forever; and the remaining third thereof X give and devise as follows, to wit: If the said Eliza Ann then be living, and shall then have ceased to be the wife of said William Brewster, Igive the same to the said Eliza. Ann, and to her heirs and assigns forever; if she shall then have died, leaving a child, or children, who shall then be living, I give and devise the same to such child, or children, and their legal representatives, and to their heirs and assigns forever. But if she shall be then dead, and there shall be no child or children of the said Eliza Ann, nor legal representative living of such child or children, then I give and devise one-half of the same to the said Jonas B., and to his heirs and assigns forever; if he shall then be dead, then to his children, and their legal representatives, and to their heirs and assigns forever; and the other half thereof to said Jonas B., in trust, for said Clarissa and her children, if she be *then living, and still the wife of said Hallot, upon the same trusts as are declared and expressed in said third clause of this my will; if she shall have been divorced from said Hallot, or he be dead, then I give the same to said Clarissa, and to her heirs and assigns forever, if she be then living ; if the said Clarissa be then dead, I give and devise the same to her children and their legal representatives; and in and by all devises and bequests, to the children of my sisters, said Jonas B., and their legal representatives, it is my meaning and intent, that the issue of such children, who shall bo dead, when said devises are to take effect, shall take the same portion or share as their parent or parents would havo taken if living; and I do hereby authorize and empower said Jonas B. Benedict to sell and convey any or all the real estate herein given and devised to him in trust, at such times, in such portions or quantities, and for such prices as he shall think fit. And the money arising or accruing upoD such sales, shall be in his hands upon the several trusts herein declared and expressed.
    “As to that part of my estate, mentioned in the fifth clause of my will which, upon the death of my father and mother, is given to my sister, Eliza Ann, if she shall then bo living, and shall have ceased to be the wife of said William Brewster, I further devise, as follows, to wit, that if the said Eliza Ann shall be living, on. the death of the survivor of said Piatt and Sally, and still the wife of said William Brewster, then I give and devise the same to said Jonas B. Benedict, upon the trusts declared and expressed in the fourth clause, or paragraph, of this, my will, for the benefit of said Eliza Ann and her children, and their legal representatives.
    “And to remove all doubts which may arise as to the construction to be given to the words, ‘ my remaining estate both real and personal,’ in the third, fourth, and fifth clauses, or paragraphs, of the foregoing will, I do hereby declare that I mean, and intend thereby, the estate which shall remain, after the payment of debts and charges, as directed in the first clause, or paragraph, of my said will, and that one-fourth part *of my estate remaining, after the payment of said debts and charges, is devised in and by each of said third, fourth, and fifth clauses, or paragraphs.
    “Lastly. I do hereby constitute, and appoint, Eli T. Hoyt, of Danbury, Fairfield county, and State of Connecticut, and my brother, Jonas B. Benedict, of Norwalk, Huron county, State of Ohio, to be executors of this, my last will and testament; hereby declaring this, and this only, to be my last will and testament; and I do hereby revoke and annul any and all former wills, and wills by me at any time heretofore made.
    “In witness whereof, I have hereunto set my hand and seal, Septémber 14, a. d. 1838.
    “D. M. Benedict, [l. s.]"
    After the making of the will, to wit, June 17, 1839, Wm. Brewster and Eliza Ann had a second son, named William D.
    Before the death of the testator, Eliza Ann Brewster died, leaving her two sons living, both of whom survived the testator.
    After her death, her husband, the complainant, married a second wife. This marriage took effect in October, 1842, and of this marriage the complainant, William E. Brewster, is the issue.
    David M. Brewster, the testator, died in January, 1843, at Dan-' bury, in Connecticut. The two children of Eliza. Ann were then living, but they both died before the fall of 1844, leaving their father, the complainant in the original bill, and their stop-mother, tho complainant in the cross-bill, both of whom are still living.
    The executors, named in tho will, refusing to accept tho trust, tho defendants, Twecsey and Wildman, were appointed administrators, with the will annexed, by the court of probate, in Connecticut, where the will was proved, on February 18,1843, and has been admitted to record in Ohio.
    *Boalt and Worcester, for complainants :
    We propose the following questions:
    1. What is tho nature of this property, as being either real or personal, under the devises of this will?
    2. If the land is to be regarded as real estate, will it pass in course of descents, as an estate derived to the children, by devise, descent, or deed of gift, from an ancestor?

    3. By what law, that of Ohio or Connecticut, is this will to be construed; and what is the statute law by which it is to be affected?
    I. Is the property to be affected by the will, personalty, or real estate ?
    No rule is better established than this, that real estate may be impressed with the character of personalty by will; and that it will, in that case, be subject to the laws of distribution, which govern that kind of property. Ward on Leg. 332; 18 Law Lib. 171; Leigh & Delzel on Eq. Conversion, republished in Law Lib. 128-147 ; Maberly v. Strode, 3 Ves. 450.
    If, then, it was the intention of the devisor that the land should be converted into personalty, it is to be regarded as personalty.
    II. If the land in Ohio is to be regarded as real estate, will it pass, in course of descent, as an estate derived to the children, by “ devise, descent, or deed of gift from an ancestor?”
    By the statute of Ohio (Swan’s Slat. 286, 287), lands derived from an ancestor by devise, will go to the brothers and sisters of such ancestor, in default of: 1. Children of the intestate and their representatives. 2. Brothers and sisters of the intestate, of tho blood of tho ancestor, and their representatives. 3. Children of the ancestor from whom the estate came, and their representatives.
    If an estate be limited to the heirs of A., he takes nothing, *and they take by purchase, as they never can take by descent from A., where nothing vests in him. He takes by purchase, or not at all. 2 Black. Com. 242; Allen v. Palmer, 1 D. & E. 634 ; 4 Dane’s Ab., ch. 125, art. 5, sec. 16.
    And though a person would have inherited as heir, yet, if the property is devised to him, it has been held that he takes by purchase, and not by descent. Swaine v. Burton, 15 Ves. 365; Ray v. Garret, 2 Wash. 9; Cruise’s Dig., title Devise, ch. 14, sec. 65.
    III. Is this will to be construed by the laws of Ohio or, Connecticut?
    In respect to personal property, the succession is governed by the law of the domicile of the intestate at the time of his death, though the property be actually situated out of the state. Story’s Conflict of Laws, 403, sec. 481.
    In respect to real estate, the descent and heirship is governed by the law of the country in which it is actually situate. Ib. 404, sec. 483.
    In respect to testamentary disposition of property, the law of the actual domicile of the party at the time of making the will, governs. 1. As to capacityorincapacity. 2. In respect to the forms and solemnities of execution. And 3. In respect to the rules by which they are to be interpreted. Story’s Conflict of Laws, secs. 52-62, 64, 78, 101-106, 368, 430, 434, 465-469, 479-480, 484; 4 Birge Com. on Col. and For. Law, 590, 591, pt. 2, c. 12.
    This bring us to a consideration of the laws of descent in Connecticut.
    Perpetuities are alike prohibited by the laws of Connecticut and Ohio. Stat. Conn. 384; Swan’s Stat. 319.
    The entailment of estates is also prohibited, beyond the issue of the first decree in tail, in whom the statute enlarges the estate into a fee simple. Ib.
    The rule in Shelley’s case is abolished both in Ohio and Connecticut. Stat. Conn. 348; Swan’s Stat. 999.
    Neither in lands nor goods can an estate be limited on an indefinite failure of heirs. Ward on Leg. 236, 238.
    *Trust estates are subject to the same rules. 1 Hilliard's Abr. 222, 223.
    The testator is rather to be presumed to calculate on the dispositions of his will taking effect than the contrary ; and a provision for the death of devisees will not be considered as intended to provide for lessee, if any other construction can be put upon it. 2 Atk. 374; 4 Ves. 418, 554; 7 Ves. 586; 1 Ves. & Bea. 422; 1 Pri. 264.
    It is an established rule, that where the bequest is to A., “ and in case of his death," or, 11 if he die," to B., A., surviving the testator, takes absolutely. Jarm. Pow. Dev. 758 ; Trotter v. Williams, Prec. Ch. 78. See also Doe, on demise of Smith v. Webber, 1 Barn. & Ald. 713; 3 Barn. & Aid. 546; Cruise’s Dig., title. Dev. ch. 20, see. 17, 24; Pow. on Dev. 565.
    One fee can not be limited upon another, nor can there be a limitation of a remainder after a fee. 1 Hill. Abr. 163, 371; 12 Pick. 64; Conn. Stat. 204, 205; Cruise’s Dig. title Dev. ch. 12, sec. 20; 2 Bro. Parl. Cas. 154; 12 Ohio, 390; 1 P. Wms. 747, 663; Cowp. 410; 9 Ves. 197.
    An estate for life may be enlarged into an estate tail, when it may bo implied from a limitation over by tho will, if there are no words in the will under which the issue can take, as purchaser. 1 Hen. & Munf. 303 ; 1 Ld. Raym. 202 ; Fearne’s Con. Rem. 556; 5 Day, 517; 2 Bl. 777 ; Doug. 265 ; 3 Serg. & Rawle, 435.
    If an executory devise bo limited, upon the death of'a party without heirs, or issue, or on failure of issue, or without having issue, it can not take effect till after an indefinite failure of issue, and is therefore void as being too remote. Ward on Leg. 236; Fearne’s Con. Rem. 460; Pow. on Dev. 531; 3 Term, 484.
    What is meant by “legal representative?” They may have reference to the artificial representation, granted by the' ecclesiastical court, or it may be intended to point out those who would take under the statute of distributions. The court will judgo from the- context, and carry the intention into execution. *3 Ves. 148; 2 Williams’ Ex’rs, 820-823; 3 Ves. 490; 3 Brown, 226; 1 Anst. 132; 1 Jac. & Walk. 387 ; 5 Ves. 402.
    In this case, the testator has himself given a construction to the phrase, “the child or children of said Eliza Ann, and their legal representatives, and their heirs and assigns forever,” by language that makes it certain that the terms, “ their legal representatives,” mean tho representatives, per stirpes, of the children who should be deceased at the taking effect of the devises of the will, and hence, the property is left, under the ordinary rule of descent, and goes to Charles Edwin Brewster.
    Root & Lane, for defendants:
    The fourth clause of M. D. Benedict’s will is as follows: “I give and bequeath one other equal fourth part of my remaining estate, both real''and personal, to my brother, Jonas B. Benedict, and his heirs and assigns forever, upon the trust and confidence, that he place all the moneys and avails of the personal estate bequeathed to him in this clause of my last will, upon good security, or invest the same in stocks, at his discretion, and shall annually pay to my sister, Eliza Ann Brewster, separate and apart from, and independent of, all control from her husband, William Brew- . ster, during coverture. And if said Eliza Ann shall die within the lifetime of the said William, then, at her death, the said trustee shall pay, transfer, and convoy the same to the child or children of the said Eliza Ann, and their legal representatives, and their heirs and assigns forever. But if thero be no child, or children, or their representatives, then” over to his brother and sister.
    Mrs. Brewster died before her brother, leaving two small children, upon whom the testator’s bequest took effect, at his death. Within less than a year, both children died. Meanwhile William Brewster had married again, and at the death *of the last of Mrs. E. A. Brewster’s children, had another child by the second marriage. The question arising is, who is heir to Mrs. E. A. Brewster’s child ? Does the property bequeathed by D. M. Benedict to his sister’s children, pass, by our statutes of descent, to his own brothers and sisters, or to the half-blood brothers of the children? In a more general term, is property, acquired by devise from an uncle, ancestral or non-ancestral?
    No sentiment is more deeply imbedded in the heart of man than that which ascribes an inheritable character to property. The human race has rejected that abstraction of the schools, which Blackstonc and the social compact theorists and certain philosophers profess to believe, that the right of succession to property has no other basis than positive law. For, notwithstanding occasional exceptions, where feudalism or despotism has grasped the children’s bread, no nation has been found so barbarous as not to admit and assert that the property of a decedent belongs, of right, to the kin-folk of his blood, and not to the stranger of his house.
    This principle of succession has over obtained with the Teutonic race; and all its branches, Norman and Saxon, have united in leaving new acquisitions to distribution among general heirs, but in limiting what was acquired by inheritance to the line from which it came. Our statutes of descent conform to, and carry out, this abiding and almost instinctive sentiment, and provide that property, which came not by descent, devise, or gift, shall pass to the heirs general; and that property, acquired by descent, devise, or gift, from an ancestor, shall be transmitted to the heirs of his blood. The distinct object of these provisions is to render property, acquired by descent, or gift, or devise, in consideration of blood, and for no, pecuniary equivalent, ancestral.
    This obvious result admits no escape, except by maintaining: 1. That the uncle and devisor of the decedent, is not his ancestor, within the meaning of the law. 2. Inferring the descent of ■the decedent’s estate is consequently controlled by the alternative statute.
    *Now, any construction which bestows D. M. Benedict’s property, so carefully limited by his will to his brother and sisters, upon utter strangers to his blood and name, we know to be contrary to his intention, conflicting with our sense of right, and opposed to the spirit of our system of descents ; and we call, with no light faith, upon the court to struggle against such a result.
    The legislature doubtless intended that all eases of descent should fall within the two statutes, so that this inheritance is governed by one or by the other. If the plaintiff insist on limiting the word ancestor, in the first, to its narrowest meaning of lineal ancestor, and thus exclude this property from its operation, because it came to the decedent from no lineal ancestor, we reply, with stronger cogency, that the second does not govern it, because it did come by devise.
    But the business of the court is to make both statutes harmonious. We assume that property, descending from, or devised by, an uncle, is ancestral estate. ■ The same rules attach to devises as to descents; and the court will observe that, in this case, the nephews of D. M. Benedict are his heirs as well as devisees.
    We lay down the proposition, that all property which a decedent has acquired by descent is ancestral. This doctrine depends upon the legal fiction of representation, by which all descendants of a lineal ancestor are referred to him, and all inheritances traced through him, are, by this figment, supposed to come from him.
    2 Black. 226, explains this: “Now, here it must be observed, that the lineal ancestors, though according to the first rule, inca-pable themselves of succeeding to the estate, because it is supposed to have passed through them, are yet the common stock from whom the next successor must 'spring. And, therefore, in the Jewish law, which, in this respect, entirely corresponds with ours, the father or lineal ancestor is said to be the heir, though long since dead, as being represented by the persons of his issue, who are held to succeed, not in *their own right, as brethren, uncles, etc., but in right of-representation, as the offspring of the father, grandfather,” etc. I do not pursue tlje quotation, but further and fuller explanations may be found on that page and, throughout the chapter. But for this cause, lands are said to descend from collateral kindred, as from one brother to another, or even from a son to an uncle, because the land comes to them through and per consequence, by and from the common ancestor, and thus is holden to descend from such ancestor, and therefore is ancestral land. “ Collateral descent is that which takes place to persons who spring out of the side of the whole blood, as another branch thereof, such as grandfather’s brother, father’s brother, and so downward.” Ins. 10, 11. “Therefore, if a man purchases land in fee simple, and dies without issue, for default of the right line, he who is next of kin of the collateral line, comes in by.descent, as heir from him. Lit. sec. 2; 1 Tern, 415; 3 Rep. 40.” Note to Chitty’s Blackstone, N. T. Rd., 1827.
    Our statute attaches the same ancestral quality to lands devised. Lands devised by a parent to his child are by this rule ancestral. So the uncle, limiting property in the line of succession, first, to his-sister, who is his heir apparent; next, to her children, who stand in the next rank; and’ lastly, over to other children, still following the ordinary course of descent, does not divest his land of its ancestral character, but transmits it to the taker, with its inheritable qualities attached to it. If the land had been given by the uncle to the nephew, and the nephew had died before the uncle, without children, the statute would have restored it. to the uncle, as ancestral, by inheritance, and it would not have gone out of his family to a half-blood brother or entire stranger.
    These cases show that the legislature did not mean to employ this word ancestor in its narrowest literal meaning, but used it as synonymous with kindred. They likewise show the spirit of the system can be preserved in no other mode than by regarding all property ancestral which is acquired through consideration of blood or relationship, whether in the shape of gift, devise, or descent.
   *Hitchcock, J.

The object of the parties in this case seems to be to obtain a judicial construction of the fourth clause of the will of David E. Benedict, which has become necessary in consequence of the death of Eliza Ann Brewster, and her two children, Platt B. and William D. The complainant, in the original bill, claims that he is entitled to the estate devised to the two latter, as their father; and the complainant, in the cross:biIl, claims that he is entitled to the same estate, as their half brother. The defendant, Jonas B. Benedict, claims the same estate, both under the will and by virtue of the statute of Ohio regulating descents and the distribution of personal estate.

A preliminary question is made, whether under this will the estate devised is to be considered as real or personal. We admit the doctrine that where, by the direction of a will, real estate is to be disposed of and converted into money, a court of equity will consider it as money. But there is nothing in this will to show that such was the intention of the testator. On the contrary, the testator devises his estate, “both real and personal,” to, or in trust for, his devisees. He does not, in positive terms, direct it to be sold, but if it should be sold, he directs in what manner the avails shall be invested.

Another question is raised as to whether the law of Connecticut or of Ohio is to govern in the decision of the particular question submitted to the court. To a very considerable extent, the construction of the will must depend upon the law of Connecticut. But when it is considered that the devisees and legatees are all in Ohio ; that the trustee is in Ohio ; that the property itself, so. far as it can be done, is to be, and actually has been, transmitted to Ohio; when a question arises as to the distribution of that property thus transmitted, and where it is not controlled by the will that question must be'settled according to the laws of Ohio.

The intention of the testator is apparent upon this will. That intention was, to distribute his estate, in equal parts to *his sisters and brother, reserving the use of one-fourth part to his father and mother during their joint lives, and the life of the survivor. And it is equally apparent that it was his intention, in the event of the death of either of his sisters, and their children, without issue, that the portion of the estate allotted to such deceased sister should be equally divided between the remaining brother and sister; or in case of their death, then between their children, taking per stirpes. It did not enter into his mind that, by his will, any part of his estate was to go to strangers. Now is this intention to be defeated by any rule cf construction heretofore adopted ? And here I must be permitted to say that these rules, in most cases, are applied, not for the purpose of ascertaining, but of defeating the intention of a devisor or testator. In this state, however, we are required by statute to carry out this intention ; and I presume no such statute would have been passed had it not been supposed that these antiquated rules of construction were too much regarded by our courts.

The clause in controversy in the will of David M. Benedict is the fourth. By this clause, one-fourth of the estate is devised to Joseph B. Benedict, in trust for Eliza Ann- Brewster, and it provides that, if the said Eliza Ann shall survive her husband, then, at his death, the trustee is to convey the pi’operty to her, and to her heirs and assigns, to bo hers absolutely. But if she shall die before her husband, then the said trustee is required to transfer and convey the same property “ to the child or children of the said Eliza Ann, and their legal representatives, and their heirs and assigns forever ;” and if there were no such children, qr representatives, then the said fourth part of the estate was to be equally divided between Jonas B. Benedict and Clarissa Gallup, if then living.

Eliza Ann died before the testator, leaving her two children, Platt B. and William D., who were both living at the death of the testator, but who died within eighteen months thereafter. Now, had these children, as well as their mother, died before the testator, I suppose there is no controversy but that Jonas *B. Benedict and Clarissa Gallup would have taken the estate. But it is contended that, inasmuch as the children were living at the time, they took the estate in fee simple, and that, having died without issue, it must go either to the father, according to the law of Connecticut, or to the half-brother, according to the law of descents and distribution of Ohio. This, surely, is not according to the intention of the testator. He did not intend that his estate should, under his will, bo transmitted to those who were not of his own blood.

But suppose the children of Eliza Ann Brewster did take an estate in fee simple, and the will of the testator can have no further effect to control property, but that the same must be distributed according to the statute regulating descents, how stands the case ?

This statute (Swan’s Stat. 286) provides, “that when any person shall shall die intestate, having title or right to any real estate of inheritance in this state, which title shall have come to such intestate by descent, devise, or deed of gift from any ancestor, such estate shall descend and pass in parcenary to his or her kindr'ed, as follows : First, to the children of such intestate, or their legal representatives; if there- be no children, or their representatives, then to tho brothers and sisters of the intestate, who may be of the blood of the ancestor from whom tho estate came, or their legal representatives, whether such brother and sisters be of the whole or of the half-blood of the intestate.” If the estate came not by descent, devise, or deed of gift, the provision is, that it shall descend, first, to the children, and their legal representatives ; in failure of these, then to the brothers .and sisters of the full blood, and their representatives ; in failure of these, then to the brothers and sisters of the half-blood.

Now, is it the intention of this statute that, if the estate came to the intestate by descent from a brother or uncle, it shall descend, in the event of the failure of children, and of brothers or sisters of the full blood, to those brothers and sisters of the half-blood, but who are not of the blood of the *person from whom the intestate inherited ? Does it intend that an estate thus acquired, by descent, shall be governed by the same rules as if an original estate, acquired by the intestate by deed or devise from a ,person not in the line of inheritance? Must the estate have descended lineally, or have been devised by one in the direct -descending line, in order that it may not descend to those who are not of the blood of him from whom it came ? We do not so understand the law, or such to have been the intention of the legislature. True, the word ancestor is made use of; and by ancestor we understand, in common parlance, one from whom a person lineally descended. But this word must be taken in connection with tho whole subject matter of the act or instrument in which it is used.

In this act, relative to descents and the distribution of personal estates, the legislature seem to have divided the property of which a man might die seized into two classes or two divisions, to wit, such as camo to him in the regular course of descent, including such as may have been devised to him, or which may have been conveyed to him by deed of gift, but which he would have inherited had there been no such devise or deed of gift, and such as he may have acquired by his own industry, or by the devise or deed of gift from a person to whom he could' not have inherited in the regular line, either lineal or collateral. In the first class of cases, the blood of the person from whom the estate came is to be regarded in the distribution ; in the last, the blood of the intestate. That such was the intention, it seems to us there can be no doubt.

, Then apply the statute, thus understood, to the case before the court. The children of Eliza Ann Brewster would have inherited this property had it not been devised to them by their uncle, David M. Benedict; and in that case, upon their death without issue, the brother and sisters of the testator would have been their heirs, to whom the property must have descended, excluding a brother or sister of the half-blood of said children, but not of the blood of the testator; so that whether this estate is to be governed by the manifest intention-*of the testator, as expressed in his will, or by the statute of descent, the result is the same. In either event, neither the complainant in the original bill nor the complainant in the cross-bill have any right to this property, and both bills must be dismissed.

Wood, C. J., being unwell, did not sit in this ease.


author: Birchard, J.

text:
    Orange N. Stephens and Samuel Everett v. The State of Ohio.
    On an indictment charging two persons with the commission of a joint offense, both can not he convicted upon proof that each one committed an act constituting an offense similar to the act charged in the indictment.
    The Supreme Court will not reverse the judgment of the court of common pleas, for error in the charge of the court, unless the hill of exceptions shows that the error complained of, was in a matter material to the issue.
    This is a writ of error to the court' of common pleas of Columbiana county.

      The plaintiffs were indicted for selling, without license, one-half gill of whisky to Thomas Donaghy, contrary to the statute, etc. Plea, -not guilty. g
    At the August term, 1843, they were tried by a jury, found guilty, and sentenced to pay a fine of twenty dollars and the costs of prosecution. During the trial, a bill of exceptions was taken, showing that the counsel prayed the court to charge the jury as follows:
    1. That the defendants can not be legally convicted of *the offense charged in the indictment, unless the evidence in the cause establishes the fact that the offense was committed in the county of Columbiana.
    2. That the boundary of said county, so far as the same is bounded on or by the Ohio river, extends only to low-water mark on the western or northwestern side of said river.
    3. That if the offense charged in the indictment was committed on the Ohio river nearer the Yirginia shore than low-water mark on the Ohio side of said river, the defendants can not be legally convicted on this indictment.
    4. That if the whisky charged to have been sold by the defendants in this case was sold by the defendants in a wharf-boat in the Ohio river, nearer the Yirginia shure than low-water mark on the Ohio side of the river, but attached to the Ohio shore by ropes or cables, this court has not jurisdiction over or to punish the act of selling.
    Which charge the court refused to give, and thereupon charged the jury as follows:
    “ That true it was that the defendants could not be convicted unless the testimony established the fact that the offense with which they were charged was committed in the county of Columbiana; but if on board a wharf-boat, at the wharf at Wellsville, in Columbiana county, whether the boat were nearer the Ohio shore of the Ohio river than low-water mark or not, the boat being attached to' the Ohio shore by a rope or chain, and by means of a gangway of planks, the defendants had committed' the offense, they were liable, and might be convicted under- the laws of Ohio.”
    The court also charged the jury that if the proof clearly satisfied them that the defendants had committed the offense alleged • against them in the indictment, on a boat floating on the Ohio river, though unattached to the Ohio shore between the upper and lower boundaries of Columbiana county, on said river, they were amenable to the latvs of Ohio, and the offen^ would be within the jurisdiction of the court; and that of crimes and offenses committed on said river between said boundaries/ *the States of Ohio and Virginia had concurrent jurisdiction, each state being governed by its own laws, in its mode of proceeding and in its infliction of punishment.
    And the court also charged the jury “that, ás they should consider the evidence required, they might convict one of the defendants and acquit one, or acquit both or convict both; and that, if the evidence showed only that the defendants had separately been guilty of the offense charged against them, though it did not show that they were both together engaged in the same act, they might be convicted.”
    Whereupon the defendants’ counsel excepted to the refusal of said court to charge the jury as prayed by said defendants, as aforesaid, to the jury, and prayed the court to seal a bill of exceptions to said refusal to charge as prayed, and also to said charge, which is now here done. -
    Upon this bill of exceptions the following assignment of errors is predicated: ,
    1. The court refused to charge the jury, as asked by the defendants’ counsel, that if the offense charged in the indictment was committed on the Ohio river, nearer the Virginia shore thau low-water mark on the Ohio side of said river, the defendants could not be legally convicted on this indictment.
    2. The court refused to charge the jury, as asked by the defendants’ counsel, that if the whisky charged to have been sold by the defendants in this case was sold to them on a wharf-boat on the Ohio river-, nearer the Virginia shore than the low-water mark on the Ohio side of the river, but attached to the Ohio side by ropes or cables, this court had not jurisdiction over or to punish the act of selling.
    3. That the court refused to charge the jury that the boundaries of said Columbiana county, so far as the same is bounded on or by the Ohio river, extends only to low-water mark on the western or northwestern side of said river.
    4. That the court erred in charging the jury that whether the boat were nearer the Ohio shore of the Ohio river at low-water mark or not, the boat being attached to the Ohio Lahore by a rope or chain, and by means of a gangway of plank, if the defendants had committed the offense they were liable, and might be convicted under the laws of Ohio.
    5. That the court erred in charging the jury that, if the proof clearly satisfied them that the defendants had committed the offense alleged against them in the indictment, on a boat floating on the Ohio river, though unattached to the Ohio shore between the upper and lower boundaries of Columbiana county, on said river, they were amenable to the laws of Ohio, and the offense would be within the jurisdiction of the court.
    6. That the court erred in charging the jury that, if crimes and offenses committed on said boundaries of the States of Ohio and Yirginia, had concurrent jurisdiction, each state being governed by its own laws, in its mode of proceeding and its infliction of punishment.
    7. That the charge of the court is erroneous, in various other respects, upon record.
    And the questions arising upon this record are reserved for decision here.
    Loomis •& Mason, and Wright, Coeein & Miner, for the plaintiffs.
    Th. Umbstaetter, for the state.
   Birchard, J.

The error last assigned will be first disposed of. The indictment charges both plaintiffs, in precise terms, with the commission of a joint offense. The act charged, was a joint act. In preparing indictments, great accuracy is required, in order that the accused may be informed of the nature of the accusation and prepared to meet it by proof. This indictment was faultless in this respect. On its face it contained all the requisites of good pleading. But of what avail was it to the plaintiffs? They met it in the usual form; and, having ^closed their defense, the jury wore instructed that the plaintiffs in error might be found guilty of the joint offense of which they were accused, “if the evidence only showed that'they had separately been guilty of it, although it did not show that they were both together engaged in the same act.”

In giving this instruction there was error. It was equivalent to saying to the jury: “You may convict them of the joint offense alleged against them, although the proof satisfies you that they are not guilty of it, provided it convinces you that each one separately has committed an offense of a like nature.” If this were the law, it would be of little use to require an indictment. In fact it could not be said, with much propriety, upon the supposition that there was proof to make the charge of the court applicable, that the plaintiffs in error were convicted upon an indictment. If the proof only showed that they had separately engaged in distinct acts, it by no means supported the indictment; and the verdict was wholly without proof to sustain it.

As the bill of exceptions sets forth no evidence tending to show that the several instructions prayed for, as well as those given, touching the jurisdiction of the Ohio river, were material to the issue, my brethren are of the opinion.that they should be regarded as abstract propositions; and that, whether in accordance with the law or not, the plaintiff can take nothing from them on error. The questions presented by that part of the bill of exceptions, for that cause, have not been considered. I confess my inability to discover a reason, satisfactory to my own mind, for the distinction taken between the different parts of the bill. Judgment reversed, and cause remanded for further proceedings.