author: Judge Wright

text:
    Thomas Reynolds and others v. Executors of C. Rogers, deceased.
    It is no ground of exception for a defendant, that the plaintiff offered evidence of matter he was not hound to prove.
    Where matter of fact is submitted to the decision of the court, neither party can sustain a writ of error on their decision.
    Notice under the statute respecting pleadings, must he of matter which, if pleaded, would bar the plaintiff’s action.
    .Subsisting levy of an execution upon land is not a satisfaction of the judgment.
    Suits against securities in writ of error bonds may he maintained without first proceeding against the principal.
    Bond on a writ of error to a judgment on scire facias, reviving a dormant judgment, extends to the judgment revived.
    Bond to prosecute a writ of error to effect, and abide the judgment, hinds the obligors to pay the amount of the judgment.
    In a €eclaration upon a writ of error bond, it is not necessary to aver that a writ of supersedeas was taken out by the plaintiff in error.
    This was a writ of error adjourned here for decision from the -county of Ross. The executors of Rogers brought suit in the common pleas against the plaintiffs in error, and declared upon a penal bond for four thousand two hundred and fifty-seven dollars, dated August 12, 1828; conditioned, that Thomas Scott and others had, ■on April 20, 1828, obtained writs of error and supersedeas to'the common pleas of Ross county, to a judgment recovered by said executors against said Scott and others at June term, 1827, and if they should prosecute said writ to effect, and abide the judgment of the -court thereupon had, then the obligation should be void. The plaintiffs aver, that at June term, 1823, in the lifetime of Rogers, he recovered judgment in said court against Scott, Rutledge, and Burden, for two thousand one hundred and twenty-eight dollars and twenty-five cents damages, and twelve dollars and ffty-two cents costs; and that in June, 1827, Rogers having died, the judgment *unpaid, his executors sued out a scire facias to revive said judgment, and obtained an order of revivor and for an execution in their names; and aver further, that at November term, 1828, of the Supreme Court, the said judgment of revivor was affirmed on said writ of error,with costs amounting to eleven dollars and sixty cents, yet the said Scott and others had not paid said judgment revised as aforesaid, nor said costs on the affirmance; and so said Scott and others did not prosecute said writ of error to effect, and abide the judgment of the court thereon, whereby ah action hath accrued, etc. To this declaration, defendants below pleaded non est factum, and annexed thereto, under our statute, a notice of several matters in bar. 1. That by the terms of the bond and conditions, they only became bound for the judgment named in the condition,, and not for the judgment mentioned in the declaration as recovered by the testator in June, 1823, and only liable for the costs on the scire facias, and on the writ of error. 2. That after the judgment of affirmance on the writ of error, and before the commencement of this suit, they paid the costs on the judgment of revivor, on the sci.fa., and of the writ of error. 3. That the bond is void because not made in conformity to the statute. 4. That no execution had been issued against Scott et al., and “ returned no goods or lands,” in the matter aforesaid, but, on the contrary, property of theirs had been levied on sufficient for the payment and.satisfaction thereof.
    On the trial, the plaintiffs below offered in evidence the record of the proceedings on the writ of error described in the condition of the bond, showing the judgment in favor of their testator, the judgment of revivor, etc., as described in the declaration. Upon which writ of error, the plaintiffs in error assigned errors as well upon the original judgment in favor of the testator, as on the judgment of revivor. To the assignment of errors upon the original judgment in favor of Charles Rogers, the defendants in error pleaded in bar the statute of limitations, which being demurred to, was, adjudged for them. Upon in nullo est erratum, to the errors assigned on the judgment of revivor, the judgment was affirmed with costs. It was admitted by the plaintiff’s counsel, that before this suit was brought, execution had issued on the judgment in favor of the executors as aforesaid, which had been levied, and remained levied on lands of the defendant, Purdon; and also, that no execution had been taken out and returned “ no goods,” etc., against the-1 principal obligors. The defendants below objected to this evidence, as insufficient on which to render judgment against them, under their plea and notice, and that upon the whole case judgment ought to be for defendants. The court overruled the objections, admitted the evidence, and gave judgment for plaintiffs; to which defendants excepted, and tendered a bill of exceptions. Upon this-bill of exceptions general errors are assigned
    R. Douglass, for plaintiffs in error,
    cited 6 Cow. 585; 5 Cow. 27; 7 Cow. 468; 9 S. & R. 491; 3 S. & R. 93; 1 S. & R. 491; 4 Cow. 61,80,540; 4 Ohio, 175, 191, and cases cited from the circuit.
    G. Swan, for defendants in error,
    cited 13 Johns. 475; 10 Johns. 142; 20 Johns. 144, 746; 2 Bac. Abr., Wt. Error sci.fa. 474, F; 5 Com. Dig., Pleader, 725, B. 2; 20 Cro. Ja. 254; 2 Ld. Raym. 1072; 2 Saund. 344; 1 Salk. 322; 1 Johns. 45; 2 Johns. 248; Cro. Eliz. 391; 7 Johns. 423; 12 Johns. 207; 4 Mass. 402; 1 Ohio, 170; 2 Ohio, 409; 3 Ohio, 103; 1 Term, 279; 1 East, 662; 1 Salk. 276; Gilb. Ev. 101; 4 Peters, 84.
   Judge Wright

delivered the opinion of the court.

The first question presented by this record is this: Was the-evidence offered on the part of the plaintiffs below competent, and did it tend to establish the issue on their part? The evidence-offered were several records, duly authenticated, which unquestionably conduced to prove the allegations in the declaration. It may be said that under the issue of non est factum, the plaintiffs-below were not bound to give evidence of the proceedings upon the writ of error. If is true the plea only denies the execution of the bond; but the undertaking by the plaintiffs below to prove more-than was necessary for them did not inj ure the defendants below. If the proof was only supererogatory, they can not object. *Their right to complain attaches in no case, except the evidence admitted against them operated to their injury, and was objected to at the time of the trial. The bill of exceptions seems to be taken to the whole evidence, written and parol; and the counsel for the - plaintiffs in error has made no specification of the part he deems inadmissible. His objections are to the effect of the whole evidence given under the issue. It is admitted to be the duty of the-court to judge what written evidence proves. But the jury judge-of the effect of parol testimony. A party who substitutes the judges of the eo?irt for a jury, to ascertain facts under our lawcan not object, before this court, the mistakes of those judges, in drawing conclusions, any more than he could the like error of a jury, in a case submitted to their decision. Carver v. Astor, 4 Pet. 180.

The next question to be considered is: Whether any evidence was admissible under the defendants’ notice? The law of Ohio, vol. xxii. 220, ch. 61, and p. 290, ch. 67, provides, “ that it shall be lawful for the defendant in any action to plead - the general issue, -and give any 'special matter in evidence, which, if pleaded, would be a bar to such action, giving notice with the same plea of the matter or matters so intended to be given in evidence.”. The -notice required by this act must be of matter which, if pleaded, would bar the action. The pleader, in framing a notice, should .ask himself: Does this matter constitute a legal bar? If so, how shall it be set forth to apprise my adversary of the real defense, and secure my client exemption from objections good on special -demurrer ? This form of pleading has not, in my opinion, improved the practice. It confers upon defendants nothing but security against the operation of a special demurrer, whose main office is to point out legal defects, and afford opportunity for their remedy by amendment. Whereas it exonerates a plaintiff from selecting one of the many matters he may wish to rely upon in his replication, and from exposing on the record the legal objections he intends to make, and leaves him at liberty, on the trial, to introduce proof of as many matters in opposition to the notice ■as he pleases, and to rely upon one or all of them; or the option ■ of suddenly springing upon his opponent objections to the notice, to the exclusion of all the ^testimony offered, and of the ■entire defense. The notice in the case below would, in our opinion, be bad on general demurrer. It does not attain that certainty required to inform the plaintiff below of the intended defense, and ■so no evidence whatever was receivable under it. This opinion is ■sustained by the uniform decisions of the Supreme Court on the circuit, and by decisions in other states under similar statutes. Lawrence v. Kneis, 10 Johns. 142; Shepard v. Merrel, 13 Johns. 476; Chamberlaine v. Goshen, 20 Johns. 145, 746; Tate v. Welling, 2 Term, 537.

But suppose the notice, as to the fact of the levy of an execution, upon the original judgment, on lands of one of the judgment debtors, which remained unsold, was sufficiently certain to constitute a bar, then the admission of the fact on the trial fully proves it, and the question remains: Would that fact bar the-plaintiff’s recovery? The case of Cass v. Adams, 3 Ohio, 223, is. relied upon as fully establishing the sufficiency of such a bar. The question made in that case was, whether the taking of goods and chattels in execution, while the levy continued in force, should be deemed a legal satisfaction of the judgment, and constitute a bar to a subsequent suit. The court decided it was a bar. In the report of the opinion, this language is used, which is relied upon by counsel: The arrest of the defendant on a ca. sa. is a satisfaction, though no money be paid; so is the levy of an execution upon goods or land, whilst the levy is in force and undisposed of.” So fab as the opinion speaks of a levy on goods, it is, upon the • case before the court, and upon the point, decided; and, in the opinion of this court, is sustained by authority and reason. The taking the body of a defendant in execution is, in law, esteemed the highest species of satisfaction; and therein we concur with the opinion. The term land, introduced into the report, must have been inadvertently used. Neither the case then in hearing, nor the discussion, embraced a levy on land, and it could not have been within the intention of the court to decide that question. The distinction between a levy upon chattels and a levy upon lands is manifest, and may be sustained by authority. The reason why the first should be held a satisfaction of the judgment, while the •second is not to be so held, will' be obvious, *on slight reflection or examination. The possession of goods is changed by a levy on execution. They are taken from the defendant, and placed in the custody of the officer; and, in that way, are appropriated to the payment of the judgment. Such is not the case where land is levied upon. It remains in the possession of the defendant, and he continues in the perception of the rents and profits. 2 Ld. Raym. 1072; 2 Saund. 344; 1 Salk. 322; Cro. Eliz. 391; 1 Johns. 45; 2 Johns. 248; 7 Johns. 423; 12 Johns. 207; Ladd v. Blunt, 4 Mass. 402. In the latter case the precise point now made was decided. That able jurist, Chief Justice Parsons, in giving the opinion of the court in that ease, says: “ Where the debtor pleads satisfaction of the judgment (by extent of land) he must prove that the extent was legally made, seizin delivered, and a return of the extent.” By the law of Massachusetts, land. is set off on execution to the acceptance of the creditor. The •sheriff delivers seizin, and, until that is done, the title of the judgment debtor is not affected. In Ohio, neither the levy on land, nor the sale and conveyance under it, effects a transfer of the possession from the judgment debtor.' The officer has no power to put the purchaser into possession. The law here leaves him to his ejectment, or other legal means of obtaining possession ; and the judgment creditor has nothing to do with accepting the levy. His claim extends only to the proceeds. From this difference, it seems to us that the Massachusetts law affords a much stronger reason for maintaining that a levy should be held a satisfaction than the Ohio law. Another case has been decided in Pennsylvania, Patterson v. Swan, 9 S. & R. 16. That was a suit against bail, who pleaded a levy upon the lands of the principal as a satisfaction, but the court decided that such, a levy was no satisfaction ; and so that the plea set up no matter to discharge the bail. The authorities fully maintain the distinction between a levy on goods, and upon land, and establish the position that nothing short of a sale of land under a levy, can be held a satisfaction. We are unanimously of opinion that such is the law.

Five objections are urged to the declaration below: 1. The want • of an averment that an execution had been issued upon the original judgment, and returned no goods, ^before suit brought. 2. That the bond refers only to the judgment of revivor in 1827, and has no relation to the original judgment in favor of Rogers. 3. That the condition of the bond is not framed .according .to the law of the state. 4. That the bond, as set out,is without consideration and void. 5. The want of an averment that the plaintiffs in error obtained a writ of supersedeas to the judgment of 1823.

First. The general assembly has provided (29 Ohio L. 108; 22 Ohio L. 115) that before suit is brought against the security, upon appeal or injunction bond, execution shall be issued against the principal debtor and returned no goods or lands sufficient to satisfy the judgment. And where joint judgments are rendered upon written instruments, and it be proven to the court at the time of the judgment that one or more of the defendants are bail for a co-defendant, the elexxk shall certify which of the defendants are principals and which security, and shall issue execution, com.manding the officer to make the money, first of the principal, and only of the surety when there is not sufficient property of the principal to make the debt. 22 Ohio L. 114; 29 Ohio L. 108. It will be perceived at once that neither of these acts embrace the case at bar; and no provision has been made, within our knowledge, requiring execution on writ of error bonds before the surety can be sued, and none is cited to us. If the case at bar be one omitted by the legislature, as counsel urge, application should be made to that body, not to this court, to supply the omission.

Second. Does the condition of the bond refer to. the original judgment? That was the only effective judgment in the cause. It was against that the defendants must have sought relief by the writ of error. The judgment of revivor had no other effect than to make the executors of Rogers parties to the judgment recovered by him in his lifetime, and to confer upon them power to enforce the execution of it. The judgment of revivor only gave life and force to the original judgment, which had become dormant by the death of the plaintiff. If the bond be held to extend to. that, judgment, the construction will carry it no farther than to embrace the only judgment there was in effect; that recovered by the testator and revived to his executors. How could *the judgment of revivor injure the defendants unless by imparting life to the dormant judgment? The plaintiffs in error and the court so understood it. The plaintiffs assigned errors on both the judgments, and prayed for the- reversal of both. Issue was taken on both, and judgment-rendered on both issues. Does it lie with the plaintiffs in error now, after having sued their writ under the bond upon both the judgments, and compelled their adversaries to meet and defend both until the judgment is had upon the proceeding, to say he did not give the bond, the incipient step in the whole proceeding in but one of the judgments, and to limit its application to the only one which could never have injured him in any possible way except by acting upon the other? We think not. But if the Supreme Court, in the judgment it gave, did fall into error, we have no authority to correct their errors, nor has the court power to allow writs of error to itself.

Third. The objection of the want of conformity in the bond with the statute is not a, new one. The statute, 22 Ohio L. 71; 29 Ohio D. 77, prescribes that the condition of the bond given on writ of error, shall be the payment of the condemnation money and costs, if the judgment be affirmed in whole or in part. The condition of the bond in this case is that the plaintiffs in error shall prosecute their writ of error to effect, and abide by the judgment of the court thereon. The same objection was made in this court in Gardiner v. Woodyear, 1 Ohio, 170, and fully examined. It was decided in that case “ that the bond in question (exactly like the bond in this case) contains precisely the very terms required by the earlier statutes in such eases, and which were interpreted by the court to subject the obligors to the same' liability imposed by the existing bond and to no other. This interpretation was adopted from a clear conviction that such was the-effect which the legislature intended the terms used should have.Because the legislature have not adopted more explicit terms, the-court can not be warranted in deciding that the same terms, used for the same purpose, meant one thing in 1810 and another thing in 1820. It is, therefore, the opinion of the court that the condition is, in substance, the same as if it contained the express terms now ^required by the statute.” With this decision we are satisfied, and the argument of counsel, in that case, so zealously urged upon us as authority, however eloquent and able, can not be received by us as of more weight than the decision of the court. See also Barret v. Reed, 2 Ohio, 409; 3 Ohio, 103.

Fourth. Can the plaintiff in error avail himself of the objection that the bond is without consideration ? It can not be necessary to waste time in reasoning to establish the position that at law a-party is not permitted to set up. the want of consideration in defense of a bond or sealed instrument. The objection has no foundation in law.

Fifth. This only remaining objection raises the question, whether it is material in a declaration on a writ of error bond to aver that the plaintiff in error had sued out a supersedeas to the judgment-below? The statutes, 22 Ohio L. 70, and 29 Ohio L. 77, contain-no provision requiring a writ of supersedeas to issue; though doubtless a writ might issue upon the application of the plaintiff in error. They do, however, contain a provision which authorizes-the universal practice of proceeding on the writ of error without a resort to a writ of supersedeas; “that the writ of error shall not operate as a supersedeas,” unless bond be filed. 29 Ohio L. 77. A party may prosecute his writ of error effectually without superseding the judgment he would reverse pending the proceeding, and rely upon the judgment of restitution on the writ of error, and the process upon it to restore him to what he may have lost or may lose; or he may cause the writ of error to operate as a supersedeas by giving the required bond. The writ is solely for the benefit of the plaintiff; he may retain it or do without it at his own option. The pursuit of either course can not affect the obligation of the bond. Its validity depends upon the condition annexed by the obligors themselves on hhe prosecution of the writ of error to effect. This, we have already seen, involves the liability to satisfy the judgment and costs in case of affirmance. But were it not for the statute, the plaintiff in error on common principles could not reverse a judgment upon errors not shown to be to his prejudice, or for those committed by himself. In this case he makes not *even an attempt to show that he has been prejudiced, and the omission complained of was one of his own. There is still another conclusive answer to this objection; it is the acknowledgment of the plaintiffs themselves, in the bond, that they had obtained “writs of error and sup>ersedeas.’f This admission deliberately made, they are estopped from denying at this time. Carver v. Astor, 4 Peters, 83, 88, and the authorities there cited.

The judgment is affirmed with costs.


source: Caselaw Access Project

author: Judge Lane:

license: Public Domain

text:
    Daniel L. Norton v. John Beaver, H. Curtis, and others.
    Court of equity has jurisdiction to enjoin sale on execution of real estate, where sale confers no title, but may cast a cloud on that of complainant.
    Where judgment creditor’s levy is not set aside, and a new levy made under section 16 of the execution law of February, 1822, his lien is not taken away as against a purchaser from a judgment debtor.
    When a dormant judgment is revived, its lien against real estate is not so revived as to prejudice a purchaser from the judgment debtor, made before the judgment became dormant, but subsisting while it was so dormant.
    This case was adjourned here for decision from the county oí Knox. It was a bill in chancery by Norton, who had purchased certain lots of land under execution to enjoin a sale under an elder judgment. The material facts of the case are as follows:

      In November, 1819, Beaver recovered a judgment against S. 0. Smith for three hundred and sixty-two dollars, and execution was .sued out in December, 1818, and levied upon throe hundred and twenty acres of land, appraised to one thousand dollars, and duly returned not sold for want of bidders. A vendí, exp. was issued to August, 1819, and was returned not sold; another to February, 1820, was returned the same. No further execution issued until after the lapse of five years. In June, 1826, the judgment was revived by sci. fa. The appraisement of the land previously levied upon was set aside and another vendí, exp. issued; a new appraisement was made, and a sale made to the defendant, Curtis, for two hundred and fifteen dollars.
    In November, 1820, Norton, the complainant, purchased of S. C. Smith lot No. 115, in the town of Mount Yernon, for which he paid a valuable consideration and obtained a conveyance.
    *In May, 1828, an alias fi. fa. was sued outupon Beaver’s judgment, and levied upon the lot purchased by Norton. The bill was brought to restrain the parties from effecting a sale.
    This case was argued in open court, by Goddard for the complainant, and H. Stanbery for the respondent. The points made .are noticed in the opinion of the court.
   Opinion of the court, by

Judge Lane:

In the case of the Bank of the United States v. Schultz, 2 Ohio, 495, this court decided unanimously, that the owner of land might call into action the power of a court of chancery to prevent its sale by execution, even where no title could be conferred. We concur in that decision.

The complainant asserts that the sale he seeks to prevent would confer no title, because he insists that by the statute of 1822, vol. xx. 75, the lien of Beaver’s judgment is taken away, as well as to purchasers as to judgment creditors. This precise question came before the court in the case just referred to, and was not adjudicated upon account of an equal division of opinion among the then members of the court. The present members of the court unite in the conclusion that section 16 of that statute imposes no limitation upon a judgment lien, except in its operation upon other judgment creditors.

The evils which at that time required legislative interference, arose from the financial embarrassments that followed the termi« nation of the war. > Debtors resisted payment under the hope that time would add to the value of property; creditors hesitated to accept satisfaction in a currency of diminishing value. Purchasers are rarely found in a falling market. From these causes, judgment liens had accumulated upon the lands of debtors, that created most perplexing difficulties to creditors. Sales by execution were retarded by reason of the uncertainty of interfering claims. To remedy these difficulties, and to prevent senior judgment creditors from placing real estate beyond the reach of junior judgments without appropriating it in satisfaction of their own, the legislature, by this section of the law, assumed *to settle the privity and extent of judgment liens. The protection of purchasers, by contract with the debtor, was no part of their object.

To carry into effect their intention, distinct provisions were made for different classes of judgment creditors. To such as had levied and made repeated efforts to sell, they offered the privilege of abandoning the old, and making a new levy, after which their liens should present no obstacles to junior judgment creditors, who were seeking to subject a portion of the debtor’s real estate to the satisfaction of their judgments. On such as were content with a subsisting levy, the same restriction was imposed upon the extension of their liens to other parts of the debtor’s lands, as if a new levy were made. In this alternative, although the persons from whom the operation of the lien is removed, are not expressly declared, we consider it a part of the same sentence as the former provision, and subject to the qualification before expressed in it. No reason is presented to us, why a creditor content with his levy should be more limited in his rights than he who makes a new one. We can not be persuaded that any such limitation was intended, when there was offered to the same creditor the privilege of the same alternative of making a new levy, and extending it over the same land, maintaining the lien to its full extent against all except senior judgments. We, therefore, can not adopt the position of the complainant’s counsel, that, in this case, the lot purchased from the debtor, after the levy made, is exempt from the judgment lien.

The next position taken by the complainant, in support of his bill, is, that when, from the lapse of time, a judgment becomes dormant, the lien is extinguished.

By section 2 of the statute of 1815, in force when the judgment under consideration was rendered, the lien created is general in its terms, and without limit as to its duration. Nevertheless, when the judgment becomes dormant, the means of enforcing the lien are-suspended, because they necessarily slumber with the judgment. But when the judgment is revived, it is revived with all its incidents. There is no new judgment recovered on the scire facias, but the old one is called into action. The form of execution ^adopted in practice, requires the sheriff to make the money, for want of goods and chattels, from lands owned by the debtor at the date of the-judgment. The statute declares that the sale shall vest as good a title in the purchaser as the debtor had, whilst the land was liable-to the satisfaction of the judgment. So far as the debtor is concerned, the lien of the revived judgment exists in all its original force.

But it does not follow that the right of others acquired, or subsisting under the dormancy of the judgment, are subordinate to-the revived lien. In a country where land is one of the most familiar and ordinary subjects of trade, the policy of the law does-not favor liens which impose embarrassments on their transfer. The purchaser who acquires title to land at the time when no lien exists, or at a time when, by the creditor’s delay, a once existing-lien becomes dormant, appears to us to have an equity preferable to him who has indulged in delay. In treating with the debtor he has a right to rely upon the presumption that a dormant judgment is satisfied.

The lien of the creditor, at this time, is indefinite and contingent. It is not a subsisting interest in the lands, but a power to set up-an interest that may never be exercised. He may prefer to enforce payment of his debt against other property, or against the-person of the debtor. The purchaser has no means in his hands to guard against future dormant claims. It is, therefore, better that such sleeping creditors should sometimes lose their money, than that titles acquired in good faith, while they slumbered, should be rendered precarious. Besides, the judgment is at best-but a security, always postponed to a specific lien, unless such lien be junior. 2 Pow. Con. 61; Amb. 252; 2 Ohio, 527. In this case Beaver’s judgment is not the eldest lion, unless connected by relation with the lien of the dormant judgment. This relative connection, we think, ought not to be made at the expense of intervening rights.

No authority is produced which countenances the position, that the judgment creditor’s lien is to be preferred to that of a bona fide purchaser. The case of Ogden v. Arlington, 1 Mod. 217, only decides, that a tenant by elegit, after actual extent, has such an interest as may be cut off by fine, *and that before extent he has no such interest. The case of Erby v. Erby seems equally remote in its application. But the precise point has been adjudged in the Yirginia Court of Appeals (2 Call, 103), and furnishes authority for our conclusion. We fully accord with the •opinion there expressed, “ that a different doctrine would raise the most vexatious embarrassments on the transfer of real estate, and would be contrary to the plainest principles of equity.”

This view of the case is decisive of the controversy between the parties. It leads us to hold that Norton’s title to the lot ought to be protected against the assumed lien of Beaver’s judgment. The injunction must be made perpetual.


author: By the Court :

text:
    Jesse Spencer v. Edward King.
    ■Oase on facts. Equity does not correct errors in the proceedings of the court of law.
    This was a suit in chancery adjourned here for decision from the county of Ross. The cause was heard upon bill, answer, and proofs, and arose upon the following contract:
    “ Chilicothe, February, 16, 1826.
    “Memorandum of an agreement made between Jesse Spencer and Edward King, of the same place, witnesseth that whereas Jesse Spencer has this day, employed Edward King in a suit of ejectment of Steele’s Lessee t?. Thomas Spencer’-s Heirs, which is tó be carried by a writ of error to the Supreme Court of the United .States, and if there determined against the said Steele, a new •ejectment is to be brought. Now if the said King shall succeed ,in obtaining a judgment in favor of the lessors of the plaintiff in the Supreme Court of the United States, or in a subsequent suit in the Circuit Court of- the United States, then the said Jesse .agrees to pay said King five hundred dollars, and if he does- not .succeed, said King is to receive no fee for those services.
    “Jesse Spencer,
    Edward King.”
    '“Attest: Wm. Allen.”

      *The case of Steele’s Lessee v. Thomas Spencer’s Heirs, referred to in this agreement, was taken to the Supreme Court of the United States, and there the judgment of the circuit court was reversed. The reversal was upon a point collateral to the merits, and the opinion delivered decided the cause adversely to the complainant in this case, and he refused to pay King anything on the contract. Suit was brought and a recovery had at law. The bill sought to enjoin this judgment, alleging fraud or mistake-in drafting the agreement, and charging that the true intent and meaning was that King was to receive nothing unless complainant succeeded in the object of the litigation with Thomas Spencer’s heirs. This allegation the answer denied. And the court took, upon themselves to decide on the proofs ; the testimony is, therefore, not reported.
    Creighton and Bond, and Murphy, for complainant.
    G-. Swan, for defendant.
   By the Court :

The proofs, in this case, do not support the allegations of the-bill, which are denied by the answer. No case of fraud or mistake is made out. The only witness present when the contract-was made supports the- answer fully. Upon reading his deposition, it seems to us impossible to come to any other conclusion than that the whole transaction was conducted with the utmost fairness. This conclusion is not affected by other proofs, as we understand them.

. The counsel f or the complainant have cited many authorities, as to the interpretation of contracts and the testimony admissible to explain them when written. But these can have no bearing in this court. The court of law was open to hear them, and a court of equity does not take upon itself to correct the errors of a court of law, if any are committed. In the present case, we do not perceive wherein the court of law erred. By the contract King was entitled to the stipulated compensation, upon either of two-contingencies. If the judgment was reversed he was entitled; if *the judgment was affirmed and he succeeded, for Spencer, in a subsequent suit, he would have been entitled. The first contingency occurred, and his claim to the stipulated sum became perfect, unless the contract itself could have been impeached for fraud or mistake. That is not done here, and if it were so impeached in the trial at law, it does not appear to us; if it did we could not rehear the cause. The bill must be dismissed.


author: Judge "Wright,

text:
    Trustees of Concord Township v. Jacob Miller and others.
    "Where trustees of township lease school lands, they execute a special power, and a declaration on such lease, must set out a case, wherein that power can be legally exercised, or it is bad on demurrer.
    In suits by trustees of townships, it is safest to sue only in the corporate name.
    This case came before the court by adjournment from the county of Champaign. It was an action of debt, and stood on the pleadings as follows;
    James Russel, John Doggen, and John Daniel, who describe themselves trustees of Concord township, in Champaign county, declare upon a penal bond of two hundred dollars, dated the 3d of March, made to them and their successors in office, and aver that Philip Kenton, John Hall, and George Robinson, then were trustees, and that the plaintiffs have succeeded them in office. The condition of the bond is set out, and is that the obligors shall perform the covenants in a lease given by the trustees of Concord township aforesaid to John Burdett, deceased, on the northwest quarter of section 16, in said township, dated June 8, 1811-Plaintiffs aver that by the lease mentioned, John Daniel, Joel Eeeson, and Abner Harbaugh, then trustees of Concord township, demised to said Burdett, the northwest quarter of section 16, range 4,. township 12, for fifteen years, for certain specified improvements,, as required by an act of the legislature, entitled an act directing the mode of leasing No. 16, and assigns breaches of the stipulations of the lease, whereby the said bond has become foi’feit and an action has accrued. To this declaration the defendant has pleaded: 1. Nil debet. 2. That at the time of making said supposed lease, the trustees of *Concord township had no power to lease any part of section 16 in Concord, because there was then more than twenty electors in the original surveyed township within which said section 16 is situated. 3. That when said lease -was made, the said Daniel, Feeson, and Harbaugh were not trustees of said township of Concord, nor empowered as such to make any lease of section 16. To these pleas the' plaintiffs have demurred generally.
    Hamilton and Mason, for plaintiffs.
    Crane and James, for defendants.
   Judge "Wright,

delivered the opinion of the court:

The counsel for the defendants admit that the first plea is bad. The admission might have been extended to embrace the second and third pleas also. They appear to me too loose and uncertain to be substantially good. The first admission sustains the demurrer as to the pleas, and does away the necessity of looking further into them. The defendants claim, however, that a bad plea is good enough for a bad declaration, and we are asked to examine the declaration, against which a number of objections are urged, such as the want of averment of entry; that the lease is without witnesses, and has not been recorded; that there is no privity between the plaintiffs and the lessee, and obligors; that it does not appear that the plaintiffs had any power to make a lease for school section 16.

We have in this state two kinds of township corporations. The inhabitants of the election district, properly organized (the political district), have trustees who are a body corporate, empowered to manage the local affairs of the people in such township. Within the land surveyed and sold by the United States, the inhabitants of each original surveyed township, in which is situate a school section, when they number twenty and upward, are authorized by law to elect officers, and thenceforth the trustees-become a body corporate to manage the school section. The political township might include within its boundaries several entire, original surveyed townships, or parts of several. The two corporations-are distinct. The law in force, when the lease in question was executed, empowered the trustees of the political ^township, within which was situate any original surveyed township, containing a school section, where there were not twenty electors, to . lease the school section, and secure the rents arising therefrom to "the inhabitants of said original surveyed township, when they should become incorporated. It is claimed by the plaintiffs that the case made in the declaration is one under this provision of this law, and that under it, the bond and lease in question can be .sustained. The trustees of townships^are a corporation for special limited purposes, with special and defined powers only, and can not, in general, do any act foreign to the purpose of their creation. 3 Ohio, 157; 8 Johns. 425; 9 Johns. 73; 12 Johns. 199; Kyd on Corp. 72. The power to lease the school sections is not within the general powers of the trustees of townships. That is a special authority which they are empowered to exercise in only one ■event. It would seem to follow, on common principles, that any ■one who would make title through these trustees, in the discharge of this special power, should be held to show, in his pleading, the existence of the state of things under which, alone, they could act. In this view, the declaration sets out no title, and the defect is one which can be noticed on the demurrer. We need not ex.amine further, or remark upon the effect of naming the several sets of trustees, in the way they are named in this declaration, but will intimate that the safer way of pleading, in such cases, would be to omit the names of the persons exercising the duties of trustees, and use the corporate name only. We do not intend, in this decision, to intimate what our opinion would be in a case where it appeared that a lessee had entered and enjoyed the premises ■demised.

Leave to amend.


text:
    Trustees of Green Township v. John Robinson.
   This cause was adjourned from Highland county. It presented the same points as the foregoing case of Concord v. Miller et al. Leave was given to amend.


text:
    *David Putnam, Supervisor, etc. v. Jonathan Valentine and others.
    Chancery may restrain by injunction the doing of any act from which irreparable damage may be done to individuals, or great public injury ensue.
    Surveyors of a public road can not have an injunction, to prevent obstructing a public road.
    This was a billl in chancery brought here for decision from the county of Washington. The complainant, who describes himself a supervisor of highways, sets forth in his bill that a certain county road runs along the bank of the river Muskingum, between certain lots in the town of Marietta and the river, which lies-within his district. That a bond in the river presents a point-against which the water sets in a strong current that has washed away the soil between the top of the bank and low-water mark,, leaving a quantity of stone as the only barrier against the waste of the bank and side of the road. That the defendants, acting under orders from the council of the town of Marietta, removed a boat load of stones from said point, and will, as he believes, commit further depredations of the like kind, to the great and irrepai’able waste and destruction of said bank, which will ultimately cause the bank and road to slide off, to the inconvenience of the-public. He prays an injunction to stop this waste. To this bill there is a general demurrer, upon which the cause comes to a hearing.
    Goddard, for the complainant,
    cited 5 Ves. Jr. 129; 1 Swans.
    Nye, for respondent, submitted four propositions :
    1. That the conrplainant is a more volunteer, having no interest in or title to the premises, and can not, therefore, sustain such a bill; for,
    2. £! In all these cases (of injunction for waste, etc.), the title, of the- plaintiff must be clearly shown by the bill, or the defendant may demur.” Mit. Treat. 124; Davis v. Leo, 6 Ves. 787,788; 1 Fonbl. Eq. 33, n. 1; 1 Johns. Oh. 318; 1 Bac. Abr. 286. An injunction is not granted where the plaintiff’s right, or title, is doubtful. Field v. Jackson, Dickens, 599; and see Storm v. Mann, 4 Johns. Ch.; 6 Ves. Jr. 51. Nor for a mere trespass. Dickens, 670; 2 Chit. Eq. Dig. 1346; 1 Johns. Ch. 318; Jerome v. Ross, 7 Johns. Ch. 333. Nor,
    *3. Can the plaintiffs official character aid him, see 3 Rand. 63. “ It is not the province of a court of equity to correct abuses merely public.”
    4. The injury complained of could not entitle the complainant to an injunction did he show title.
   Judge Wright

delivered the opinion of the court:

The first question which arises in this case is: Has this court jurisdiction of the subject of the bill? Courts of equity exercise-jurisdiction in cases of.perpresture and nuisance; of encroachments upon the public rights, as upon highways, rivers, and streets of towns. This, though not of very frequent occurrence, is undoubtedly within the equity power of the court, and founded on the right to restrain the doing of any act, from which irreparable-damage to individuals or great public injury would ensue. Eden on Inj. 157; 3 Atk. 751; Redes. Tr. 117.

Within the legitimate exercise of this jurisdiction, the following classes of cases will fall:

1. Those acts which injure the rights of the whole public, sovereign or state.

2. Those tending to injure the common rights of smaller communities, as the citizens of counties, cities, or towns.

3. Those affecting the rights of corporations, or evidencing the neglect by corporations to perform duties which are connected with the public convenience.

To the second of these classes the case in hearing is referable. To the first class we should refer threats of irreparable injury or destruction to public property or institutions. The case in 3 Rand. 63, relied upon by defendants’ counsel, does not go to the length supposed. It sheds but little light upon the question. The complainant in that case sought to restrain the leveling of a street in Middleburg, Loudon county, because it would endanger the foundation of his house, etc. The judge says it is not the province-of a court of equity to remedy abuses merely public, and dismissed the bill, because the complaint there was not of an injury of a private nature. Without deeming it necessary in this case - to go further, we *are of opinion that, in a proper case, this • court can restrain from the commission of irreparable injury to •public property.

The next question which presents itself to our consideration is, ■whether the supervisor of highways is authorized to commence • and prosecute writs of this character ? If we look to the legislative enactments on this subject, we find the supervisor intrusted ■with the duties of keeping open and in repair roads and highways within the district assigned to him, and empowered to appropriate materials from the adjoining lands, to direct the labor on the roads, and appropriate the taxes. To protect him in the perform.ance of his duties,' penalties are enacted against those who obstruct the roads, interrupt his acts, or refuse to obey him; and it is made his duty to sue in his own name to recover these penalties. The law defines with considerable particularity his duties, ■but it nowhere authorizes him to exercise a general control or supervision over the interest of his district or county, or control the general and public interest. It can not be successfully maintained that he derives power to conduct suits of this nature by express legislative provision, and we incline to the opinion that the ■effort to sustain the right from analogy will be equally fruitless. Suits to prevent the infraction of rights purely public are generally commenced and conducted in the name of the state or the officer intrusted with the conduct of public suits. Eden on Inj. 162; Ambl. 158; 3 Atk. 757; The King v. Governor, 2 Stark. N. P. C. .511; Attorney-General v. Philphot, Ahst. 609 ; Same v. Richards, .2 Anst. 603; Same v. Richards, 2 Wils. Ch. 87; Same v. Utica Insurance Co., 2 Johns. Ch. 371; When the rights of smaller communities are infracted or threatened, eases have been prosecuted in the corporate name of the smaller community, as in The Mayor, etc., of London v. Balt, 5 Yes. 29; and Mayor, etc. v. Pamberton, .5 Swans. 244. It is not necessary to pursue this subject, or to determine now how such suits should be brought; it is sufficient to ;say that we are of opinion the supervisor of highways has no authority, as such, to commence and conduct prosecutions of this kind in his own name. The individual complainant has no such inter-est in or connection with the ^subject of this bill as to entitle him, as such, to the relief prayed for. It follows that the injunction asked can not be granted on this application. In com-i-ing to this conclusion, we do not deem it necessary to determina whether, in any other form, the injury complained of or apprehended in this bill would support an injunction. And this opinion supersedes the necessity of discussing further the points-raised in this case.

The demurrer is well taken. The injunction must be dissolved,, and the bill dismissed at the costs of the complainant.


author: Iudge Lane:

text:
    Lessee of Patterson v. Pease, Wallace, and Sharpe.
    A deed not attested by two witnesses, does not operate to pass the legal estate in land, and unless it does so operate, it can not contain a covenant of warranty, that works an estoppel against the maker, in asserting the • legal title remaining in himself. «
    Conveyance made to the Shaker community, where wife is united to such community, in which provision is made for minor children, qucere, is void', under the statute ?
    Son, thirty years of age, living separate from the father, not protected by the'. statute.
    This cause was adjourned here for decision from the county of Montgomery. It was an action of ejectment. The facts of the1 case, and the points made, are stated in the opinion of the court.
    Stoddard, Pales, and Munger, for plaintiff.
    B. Collet and F. Corwin, and Lowe, for defendants.
   Opinion of the court, by

Iudge Lane:

The case presented for the decision of the court, as agreed by the parties, is this: In August, 1811, John Patterson, the plaintiff’s father, being the owner of the premises in question, conveyed them to Valentine and Thruston by a deed in all respects well executed and authenticated, except that it was attested by but one' witness. Before the execution of this^deed the grantor’s wife had united herself with the society of Shakers. At the time of the execution he had three minor children, to whom the consideration money, nine hundred and fifty dollars, was paid by the grantees,,, as they successively became of age, in conformity with the terms • of the sale.

*The apparent object of the deed was to make what the grantor esteemed a provision for his younger children, preparatory to uniting himself with the Shaker society. George Patterson, the lessor of the plaintiff, is the son of the grantor; he was, at the time of making the deed, about thirty years of age, and lived separate from his father, being himself the father of a family .John Patterson is since deceased, and this suit is brought by his son, George Patterson, claiming his undivided portion of the land by descent, as one of his father’s heirs at law.

Two objections are taken to the deed from John Patterson :

1. That it is rendered void by the statute providing for the support of women abandoned by their husbands.

2. That its execution is attested by but one witness.

"We will examine the latter point first. Can a deed executed in 1811, attested by but one witness, pass the legal title to lands ? It is conceded that such a deed is evidence of a contract, that, under proper circumstances, may be enforced in equity; but the legal estate must pass by it, to defeat, in this case, the plaintiff’s recovery. The statute requires that the transfer of title to lands must be attended with certain forms, among which is the attestation of witnesses. No deed is complete without such attestation, nor can such deed, executed since 1808, pass the legal title by its ■direct operation.

But it is urged, that although the execution of the deed is imperfect, the covenant of warranty contained in it passes the legal title, upon the doctrine of rebutter.

A warranty is a covenant running with the land, which, by the ancient law, bound the grantor, and those to whom his estate descended, to give to the grantee land of equal value, in case of eviction from the land conveyed. If the grantor, or those to whom his warranty descended, should possess and exert the right to recover possession of the land from the granteee, the act of recovery created the right to recover, from the warrantor, land of equal value. To prevent this circuity of action, the law precluded the warrantor from recovering the land warranted from the warrantee. These doctrines continue to be law, although the warranty is enforced by action of covenant, sounding in damages only; *and it is now held to be a settled principle, that a man .shall not recover in ejectment against a defendant, whose possession he is bound to maintain, by a valid covenant of warranty. 3 Ohio, 107; 4 Ohio, 411.

The difficulty that arises here is, to ascertain in what manner the covenant of warranty may bo created. A warranty of this character does not arise from a mere personal engagement. It must be a covenant real annexed to the land, and running with it. It may be raised upon any description of conveyance, by which the title passes, or even upon a naked release, or deed of confirmation, that technically passes no title. Co. Lit. 311; 7 Bac. Ab. 227; Com. Dig., Gar. C. In the language of 10 Rep. 56, “every warranty ought to be knit and annexed to an estate, for every warranty hath its essence by dependency on an estate; and when the estate expires by its own limitation, the warranty depending on it is determined.” We do not understand by this, that a warranty does not bind as a covenant, unless the estate actually passes by the deed. Our understanding is, that no warranty, to operate as a rebutter, can be created, except by a deed executed in the form in which the law permits an estate to pass. We have looked in vain for such a warranty, in any other form than in a deed executed with the legal formalities. The practice of enforcing the ancient warranties seems to show that the vassal could not recover of his lord, unless he could establish a tenure either by copy-hold, or by deed duly authenticated. See 3 H. & B. Notes to Co. Lit., octavo ed., n. 315. Mr. Butler, note 328, deduces from, Seymour’s case, 10 Rep. 96, that no warranty is a bar, unless the estate be divested or displaced during the continuance of the warranty. This point seems to have passed under the adjudication of the court, in Dean v. Norwich, Brownlee, part 2, p. 165, where Coke, Justice, in deciding that a personal covenant, in a void lease, may be enforced by action, takes occasion to distinguish it from the warranty of a freehold, and asserts that “if a man make a feoffment with warranty of a freehold, non feofavitis a good plea; for if the feoffment be avoided, the warranty is likewise avoided, as that depends on the feoffment.” These authorities satisfy us that this covenant does not possess the character of a warranty, *because the instrument of writing that contains it is not one by which the title to the land is passed.

Neither does this instrument work such an estoppel as prevents the maker from asserting, in a court of law, his legal title. Generally, no man is permitted to deny an admission made under his own seal. Where this duty can be enforced under the formsol pleading, it is called an estoppel. But the instrument itself, or the fact that the owner has attempted to convey land by an imperfect instrument, has never been held to bar him from setting up his title, unless it contains an effective clause of warranty. Co. Lit. 365, a; 14 Johns. 193. A simple personal covenant does-not preclude him. To give it such effect, would subvert the well-established principle, that an equitable title can neither support nor defeat a recovery in ejectment. It would, moreover, enable-every one to dispense with the salutary forms which the law requires to attend the solemnity of passing title to real estate, and thus defeat the object of the statute, which, from the commencement of titles in the territory, have from time to time been in-force on this subject. It is an argument of irresistible force, that in the whole range of authorities within our reach not one has been found to maintain that the legal title is transmitted by such a deed. The case of Sullivant’s Heirs v. Commissioners of Franklin County, 3 Ohio, 98, differs widely from this, inasmuch as that deed contained a direct permission to enter.

It is not necessary to go further to decide this case; but if we were required to determine whether the deed was void, upon the other ground taken, we should find it difficult to persuade ourselves, that the act of a man, whose wife was already a member of the Shaker community, and who sells land for the apparent and actual purpose of providing advancements to his minor children, was within the spirit, intention, or mischief of the statute. It would be equally difficult to persuade us, that a son, whose age exceeded thirty at the time of the sale, who was pursuing his own means of livelihood separate from his father, has any rights which fairly fall within the protection of a statute made to enforce the duties of a husband and parent toward those who depend *uj>on him for support. Whatever might be our opinion upon this branch of the case, we are satisfied that the defendants can not protect themselves at law against the plaintiff’s-recovery in this action.

Judgment for plaintiff.


author: Judge Lane

text:
    Richard Douglass v. Thomas Scott.
    Complainant in possession of, and laving the latter legal title, may ask tha aid of equity, under the Ohio statute, to quiet that title against those pretending to claim.
    Where A., having no grant, conveys to B. by a defective deed and puts him in possesion, and B. conveys to C., by a deed duly executed, with covenant of warranty, and puts him in possession, and A. subsequently obtains a grant, the title inures to C. by way of estoppel.
    This cause came here for decision from the county of Ross. It was a bill in chancery asserting that the complainant held the legal title to certain lands, and was in possession, and that the respondents pretended a claim to the same lands. The prayer was that the complainant might be quieted against the claim of the defendant. The facts material to the decision of the cause are-set out in the opinion of the court.
    Douglas and G-. Swan, for complainant.
    Scott and Leonard, for respondents.
   Judge Lane

delivered the opinion of the court:

Nathaniel Massie was the proprietor of survey No. 2,462, entered January 9, 1795.

In the same year, he contracted to sell one hundred and eighty-eight acres of this land to H. Montgomery, who entered, claiming this title and died in possession, 1802; these are the tenements in dispute.

November 18,1805, Massie, by a deed containing a covenant of general warranty, but executed in the presence of one witness only, conveyed these lands to the heirs of Montgomery. This deed, after giving boundaries, describes the land'as “part of a survey patented to N. Massie.”

November 16, 1811, the heirs of Montgomery, and grantees of the above deed, conveyed the same lands to Joseph Kerr. *This deed is well executed, in the presence of two witnesses, with warranty; and contains the recital, “ that it was part of survey No.-, patented to Nathaniel Massie, and by him. conveyed to them,” the heirs of Montgomery.

Under this deed, Kerr took possession. August 30,1813, Hughey recovered judgment against him for six hundred and one dollars. December 21, 1815, Byxbe recovered judgment for two hundred •and twenty dollars.

In December 30, 1814, in the interval between the rendition of the two judgments, the land was patented to the heirs of Massie, he being dead.

Sundry executions were taken out upon the judgments, which were at no time dormant. In 1821, the land was sold, purchased by Douglass, sale confirmed, and deed made. If Kerr had a legal title to the land at the time of the judgment, that title passed.

On January 29, 1816, Kerr remaining in possession, mortgaged to the Bank of Chillicothe one hundred and fifty acres, by a deed, containing the same recitals, viz : that the land was patented to Massie, conveyed to him by the heirs of Montgomery, and by them conveyed to Kerr.

In June, 1822, sci. fa. was issued on the mortgage, judgment was had in 1823, by which, on the 18th of April, the land was sold and purchased by Scott; the sale was confirmed and deed made; Kerr released to Scott.

In August, 1823, Cadwalader Wallace, trustee of the heirs of Massie, created by the act of the legislature, conveyed the title remaining in Massie’s heirs to Scott.

In 1827, Montgomery’s heirs brought their bill in chancery, in common pleas of Ross county, and by a decree of that court, the deficiency in the deed from Massie to them was supplied.

Actions of ejectment have been prosecuted by Douglass, possession of the land been recovered, and still remains in him. He now brings this bill against all persons claiming under Kerr, to quiet his title, and to enjoin them from ever disturbing it.

It is first to be inquired whether he has the remedy in chancery. We do not feel it necessary to inquire under what circumstances a bill of peace, properly so called, is sustainable, or whether the English chancellor, in a case like *the present, would find the plaintiff’s right satisfactorily established, and restrain further litigation as vexatious; we believe our own statute extends the English remedy, by bill quia timet, and in providing that he who is in possession of land, and having the legal title, may call any pretending a claim to come forward and assert it, has rendered plain the right of the plaintiff to pursue the present remedy.

The right to file this bill depends upon the existence of a legal title, at the time the bill is brought; the whole case which the plaintiff can make, is embraced in the proposition that he had a legal title, superior to any in the claim of the defendants.

The transaction has become of a pretty complicated character, and a great variety of points have been submitted to our consideration. Among others, there have been argued the following ■ questions:

1. Whether Massie’s heirs take by descent or purchase, under the patent to them, issuing on a survey by their ancestor.

2. Whether the want of a witness in the deed from Massie to Montgomery’s heirs is cured by the statute of 1826, it having been executed prior to 1808.

3. Whether the statute of uses was in force in Ohio, and if it would raise a use and pass a legal estate in a deed attested by a •single witness.

4. Whether a warranty in a deed from Montgomery’s heirs to Kerr estops all persons claiming through that deed.

5. Whether the statute of limitation acts on lands held by survey before patent, so that the adverse possessor acquires title against all except the government.

6. Whether a descent cast, takes away the action of ejectment in Ohio.

These questions have been argued with much learning and an unsparing industry; but we have been relieved from the necessity of adjudicating them, from finding the legal title established in Douglass, without tracing it through them; my object in this enumeration is to show that we have not disregarded the bearing they have upon the case.

To sustain an action of ejectment, it is generally necessary for the plaintiff to show a perfect legal title in himself; *a proof of title in another will usually furnish a sufficient defense. Yet there are exceptions to this rule, and the well-known cases of those holding interests in lands inferior to the other, as vendees, tenants, mortgagees, are examples of persons who stand in that relation to the persons having the superior interest, that they are not permitted to contest their title, when seeking to enforce their lawful rights. The reason is, that the title of the tenant is derivative only, and if he from whom it comes has no right, the title of the tenant suits with it. The same principle has been estended to cases where the title of both parties springs from the same source'; it seems well established in New York and Pennsylvania, t-hat where the title of both parties is disclosed, and found to have a common origin, iti-snot permitted to either party to go behind the person from whom-they hold, or show that his claim is not good. 10 Johns. 292; 17 Id. 165; Serg. & Rawl. 339.

A majority of the judges who sit in this case would be willing to hold, if necessary, that as Kerr is shown to be the common source of title to both parties, it is not competent to either to deny the right of him from whom alone his own claim arises.

But we unite in the opinion that the facts offer more satisfactory proof of a legal title by giving effect to another principle.

The admission of a fact, however made, is always evidence of the fact against the party making the admission, but the effect of the admission depends upon the manner and purpose for which it is made. It may be presumptive evidence only of the truth, and liable to be denied or disproved. *But if made for the purpose of influencing the conduct, or of deriving a benefit to another, so that it can not be denied without a breach of good faith, the law enforces the rule of good words as a rule of policy, and precludes the party from repudiating his representations and denying the truth of his admissions; and an admission of record, or made for the purpose of superseding proof, or deliberately made under the seal of the party, is of such binding efficacy that under no circumstances is the party permitted to disprove it. Such an admission, under the seal of the party, not oniy prevents *him from disputing, not the truth of the deed itself, but the-truth of any fact which it states ; for a' deed is a solemn act, to any part of which the law gives effect, as the deliberate admission of the maker; it stands to him for truth, and in every situation that he may be placed in, to him it is true.

The obligation created by estoppel not only binds the party making it, but all persons privy to him; the legal representatives of the party, those who stand in his situation by act of law, and all who take .his estate by contract, stand in his stead, and are subjected to all the consequences which accrue to him. It adheres to the land, is transmitted with the estate; it becomes- amuniment of title, and all who afterward acquire the title take it subject to the burden which the existence of the fact imposes on it.

These principles had their origin at a very early period in the common law, and have been adopted in the most respectable courts in our own country.

If the condition of a bond recites there are divers suits, the obligor is estopped to say there are no suits. Cro. Eliz. 756.

If a condition be to pei’form the covenants of an indenture, he is estopped to say there is no indenture. 1 Roll. 872.

If a condition be that he and his wife shall do an act, he is .estopped to say he has no wife. 1 Roll. 873.

The above are only examples to which a long list maybe added. The case which is most usually presented is the recital of alease or deed ; that such recital is evidence of the existence of the lease has been repeatedly adjudged. 1 Salk. 295; 1 P. Wms. 432; Willes, 9.

The law seems to be summed up in Com. Dig., Estoppel, 77, A. 2: “In all cases where the condition of a deed has reference to any particular thing, the obligor shall be estopped to say there is no such thing.”

That the estoppel extends to all persons subsequently acquiring title has at .all times been the doctrine of the books. In Trevinan v. Lawrence, the court say: “ Where the estoppel works on the interest in the land, it runs with the land into whose hands it may come;” and Justice Story, in the *case in 4 Peters, 85, reviewing the authorities, says: “Such estoppel binds all persons claiming the land, not only in the same deed, but under any subsequent conveyance from the same party, that such an admission in a recital, by the same person transmitting the title, is a muniment of title, and travels with the land into whomsoever’s hands it may come.”

The application of these principles seems to us to invest the -plaintiff with a legal title. His title depends upon the fact whether Kerr had a legal title to which the judgment lien could attach.

He was in possession, claiming title derived through Montgomery from Massie. Although the deed from Massie to Montgomery •contains the recital that the 'land was patented to Massie, it is doubtful whether the incidents and consequences of a perfect deed .attach to it, in consequence of the imperfections in its attestation. We have decided, the present term, that the estoppel is not raised on a covenant of warranty contained in such a deed. Patterson v„. Sbarpe and others, ante.

The deed from Montgomery’s heirs to Kerr is the one on which-the plaintiff may insist, as investing Kerr with the title necessary to support a levy at lav?. It contains the recital that the land was patented to Massie, and conveyed by him to the heirs of Montgomery. It was an admission, in a deed altogether well executed, by persons having the lawful possession and at least the equitable title. Kerr, taking the right of the Montgomerys, has a right to hold them bound by this admission. And Kerr himself is bound, and will not rely upon- the deed from Kerr to the bank, containing the same admission; but estoppels are mutual,-binding on both parties, and the acceptance of the title by this deed makes him a party to the admission; and the assignee, he to whom the estate comes, either by the act of law or the act of the party, are aliko concluded. That the land was patented to Massie, and by him. conveyed to the heirs of Montgomery, are facts proved by the admissions of the heirs of Montgomery, while the owners of the property, upon which all persons deriving the title under them have a right to rely, and which conclude all persons to whom their estate is transmitted. If these facts exist, Kerr’s legal title in fee-*was perfect; that they are true, neither of the parties, as-' deriving title through this deed, is at liberty to question.

Of Wallace’s deed to Scott, it is only necessary to say he was-made by an act of the legislature a special trustee, with power to convey the legal title to those who have the right to it. If he convey to another than the lawful bolder his acts are void. The-opinion we have before expressed leads us to the conclusion that at that time Douglass had, as between these parties, the title perfect at law, and such an act of Wallace can confer no interest.


author: *By the Court:

text:
    Treasurer of Franklin County v. John McElvain and others.
    Where a removed administrator has settled with the court, and the balance in his hands is ascertained, suit may be sustained against his sureties, without obtaining a separate judgment against him. In such suit, there is no-necessity to aver, that the removed administrator had notice of his successor’s appointment.

      This was an action of debt upon an administrator’s bond, and was adjourned here for decision from the county of Franklin, on a demurrer to the declaration.
    The declaration set forth a bond, wherein it was recited that Robert W. Riley had been appointed administrator of James Downs, deceased, and that on December 8,1824, the other defendants, with Robert W. Riley, made the bond in due form of law. It then averred that Riley, as administrator, settled his accounts with the court in September, 1828, when a balance was found in his hands of one hundred and eighty dollars; that debts were due from the es.tate of Downs which Riley had neglected to pay, whereupon the court removed him from the office of administrator, and appointed George Raridon, for whose use this suit was prosecuted. It further avers that Riley refused to pay the balance to Raridon, etc.
    The defendants demurred generally.
    G. R. Swan, for plaintiff.
    Parish and Boal, for defendants.
   *By the Court:

In support of their demurrer to the declaration, the defendants take two exceptions:

First. That there is no averment that Raridon, the administrator, de bonis non, had obtained a judgment against Riley, the removed admistrator, for the money alleged to remain in his hands.

Second. That there is no averment of the notice to Riley of theappoinment of Raridon to supersede him.

The averment of a settlement, by the court, with Riley, before his removal, and that the sum claimed was, by that settlement, ascertained to be in his hands, is sufficient to sustain the action.. The court so decided, when the action was for the use of the heir. Treasurer of Pickaway Co. v. Hall, 2 Ohio, 225. If there had been no settlement by Riley, with the court, an action by Raridon, against Riley would have been necessary. To compel the removed administrator to give special bail to his successor, and so far secure a recovery for the injury done to the assets in his hands, by carelessness or otherwise, was, most probably, the reason for enacting section 14 of the act. defining the duties of executors and administrators. 22 Ohio L. 128. Without this provision, the administrator de bonis non could have sustained an action against the removed administrator. ¡

There is no force in the second objection. The removal of one administrator, and the appointment of another to succeed him, is a judicial proceeding of such notoriety that all parties connected with the transaction are bound to take notice of it. The averment supposed necessary is not found in any precedents of declaration, by the administrator de bonis non, against the removed administrator. Upon principle, we see no necessity for it.

The defendants having asked leave to withdraw the demurrer, and plead, in case the opinion of the court was against them, that leave was accordingly given.


author: Judge Hitchcock

text:
    *James Roland v. Christian Gundy.
    The owner of a chattel, sold by the bailee, can recover the specific chattel or its value of whomsoever he may find in possession of.it.
    This cause came before the court, upon a writ of error to the common pleas of the county of Morgan,'and was adjourned here for decision by the Supreme Court in that county.
    The original suit was an action of replevin, brought by Gundy against Roland for a horse. Yerdict and judgment for the plaintiff. Upon the trial, it appeared that Gundy had lent.the horse in question to one McConnel, who sold the horse to Isaac Roland, who sold him to the defendant, neither of whom had any notice of Gundy’s claim. The counsel for the defendant, on this testimony moved the court to instruct the jury that the plaintiff could not recovor. The instruction was refused, and this refusal was assigned for error.
    Hanna, for the plaintiff in error,
    contended that the case of a bailee was distinguishable from that of a felony; that where the owner of a chattel confided it to the possession of another, he confided with it a power to dispose of it to any person who might purchase, without notice that the seller was but a bailee. He cited 1 Cranch, 309; Bro. Tit. Tres. 216. 295; 2 Saund, 47, in note; 5 Term, 175.

      Goddard, contra,
    cited Croke Jas. 244; 2 Ves. Jr. 376; 2 Caine, 202; 1 Johns. 478; 5 Johns. 258; 8 Johns. 96; 12 Johns. 146; 8 Mass. 518, 14 Mass. 499.
   Judge Hitchcock

delivered the opinion of the court:

The decision of this case depends upon the solution of the question, whether the bailee of personal' property can, by sale to an innocent purchaser, transfer an absolute right, so that the vendee can hold the same as against the bailor. When the cause was first submitted to the court, we were under the impression that there could be no doubt upon the subject. It is not, however, without its difficulties. The Nearly cases seem to have gone upon the principle that such sale changes the property. In a note to 2 Saunders, 47, it is said, in speaking of the action of trespass, that if the bailee, or other person, who has only special property, sells .and delivers the goods to another, as his own bona fide, and without notice, the general owner can not maintain this, or any other action against the vendee, because by such sale by a person who has the special property in, and possession in fact of the goods, the property of the general owner is changed, For this dictum, the annotator cites Brooke’s Tres. 216, 295. Such seems in ancient times to have been the law, and it was founded upon this principle : That if one of two innocent persons must suffer, the one who has been the occasion of the .loss should sustain it, however innocent. If the bailor puts confidence in the bailee, and intrusts him with property, and the bailee abuses that confidence, and sells the property, the purchaser having no notice of the facts, it would seem to be but reasonable that he who has been the first cause of the fraud should suffer the consequences. Althongh such was the law in cases of sale by a bailee, it was otherwise where the vendor obtained possession feloniously. In such case, the purchaser .acquired no title, unless the sale was in market overt. In more modern times, however, this distinction seems to have been done away, and it is now holden that the bailee, no more than the felon, can confer a title unless the sale be in market overt. The principle, that if one of two innocent persons must suffer, the one who occasions the loss shall sustain it, is superseded, and the rule introduced that he who has not been the occasion of the loss shall alone sustain it, notwithstanding his innocence. And this is said to have been done from motives of public policy. • I do not readily comprehend how it ever can be consistent with public policy, to adopt any principle which operates unjustly. Such, I take it, however, is now the law in England, and in that country there may be some color ol reason for it, inasmuch as there they have markets overt. In this country, however, markets overt, as they exist in England, are unknown. Kent Com. 262. But the same principle prevails as to the rights acquired by the vendee. And the maxim of the law in this as well as in that country is, that no *one can transfer a greater right or better title than he himself possesses. Kent Com. 262; 5 Serg. & Rawle, 130. It is not for us to inquire as to the equity of the maxim, as applicable to particular cases. There may be exceptions to the general rule, but the case before the court is not of that character. The judgment of the common pleaá^ must be affirmed.


author: * Judge Lane

text:
    The Widow and Heirs at Law of Wm. Reynolds, deceased, v. The Commissioners of Stark County.
    Where real estate is vested absolutely in the county commissioners, for public purposes, they may dispose of it in the same manner as individuals could.
    This was a suit in chancery, certified from Stark county. The bill sought to enforce the specific performance of a contract, made between the commissioners of Stark county and Wm. Reynolds, .in his lifetime, reduced to writing, and dated May 28, 1823, for a lease of a certain part of the grounds originally appropriated, by the proprietors of the town of Canton, for a site for public buildings. Previous to the making of the contract, these proprietors had released all their interest to these grounds to the comrnissioners. The bill set forth the written contract, and charged a^part performance, by payment of one year’s rent, and entering into' possession, and erecting buildings with the knowledge of the then commissioners, and without objection from them.
    The present commissioners refused to jierfect the contract, by making the lease, and deny their own power to do so, or that of their predecessors to make it.
    The court of common pleas dismissed the bill, and the complainants appealed.

      Harris, for complainants.
    Loomis, for defendants.
   * Judge Lane

delivered the opinion of the court:

This is a bill in chancery, brought to enforce the specific performance of a contract to make a lease.

In 1819, B. Wells, for certain considerations, received from the treasurer of Stark county, conveyed by a deed, with general warranty, lot No. 30, in Canton, to the then commissioners, to hold for the use of the county, thereon to erect a court-house, offices, etc., and for no other purpose. That deed contained a proviso that it should be void if the lot should be appropriated to any other' purpose. On May 23,1823, Wells released to the commissioners' all his right in reversion in that lot.

On June 28, 1823, the then commissioners agreed to lease to Reynolds, the ancestor of the plaintiffs, thirty feet front, from the west part, for ninety-nine years, renewable forever, at the rent of eighteen dollars per annum, but not to be subjected to any occupation likely to interfere with the due enjoyment of the residue. The agreement also contains a stipulation, that if Reynolds should pay three hundred dollars the lease should be given at a rent merely nominal. Rent has been paid for one year, but the present commissioners refuse to give the lease. During the pendency of the suit Reynolds has died, and the suit is revived in the name of the widow and heirs.

The present commissioners deny the power of the board of 1823, either to make a contract binding upon their successors or to make a valid lease of the corporation land; state the agreement to be, in substance, a contract to convey in fee; that if they had no power tosell .infee they do not possess the power to lease for ninety-nine years, renewablelorever^

A corporation is an artificial person, and by the terms of its creation it possesses the same capacity, to purchase or to sell, that an individual has who possesses the capacity to contract. This doctrine has been long settled, and repeatedly recognized, from a very early period to the present time. Co. Lit. 44, 300, 306; Sid. 162; Com. Dig., title Franchise; 1 Ves. & Beame, 226. Indeed, bo necessarily incidental *is this power, that it has been holden (10 Rep. 1), that a corporation can not be created possessing. the power of holding without the power of disposing; and that a clause in the charter, restricting the alienation of their property without consent of the chancellor, is void. The statutes restraining ecclesiastical and eleemosynary corporations are all the limitations imposed by the laws of England upon the power to sell.

Admitting that civil corporations incidentally possess the power to transfer a good title by deed, it may still be insisted that a person taking the estate holds it subject to the same trusts as while in the hands of the corporation. Perhaps such a trust may sometimes be raised by the terms of the donation. If the land be made subject to uses expressed on the face of the deed, which can not be enjoyed consistentlyvwith the exclusive dominion and enjoyment -of the alienee, pek^aps the trust might be enforced: as where lands wore given to a municipal corporation, to be holden for a common, walk, or public fountain, perhaps the purchaser may take it, subject to the rights of the inhabitants. But the case before cited, from Yesey & Beame, shows that when property held for general corporate purposes is aliened, even for purposes not corporate, such alienation is absolute.

In the present case, the lot was first conveyed by Wells to the commissioners, with a condition to be void in case the lot was appropriated to any other purpose than to erect the court-house and public offices. In 1823, Wells released his reversionary interest to the commissioners, by which, in our opinion, it became their absolute property for general purposes, and subject to alienation by them.

It may be said, that by this construction of their powers the officers of corporations are invested with too large an authority ■ over corporation property, and may waste it or place it beyond the reach of the members, without' remedy. We can not avoid this result. We can relieve in case of fraud, and where a specific trust is raised we can enforce it; but the security against improvidence or bad management must be looked for in the inter.ests, wisdom, and justice of the official agents, and in the relations they sustained to those who conferred the authority.

^Believing that the commissioners possess the powers of .individuals, we enforce contracts against them in the same manner. The execution of this agreement is not an official duty created by law, and therefore properly the subject of a mandamus; but the right springs from contract, to enforce which an appeal1 may be properly made to our general chancery powers.

But the bill seeks to enforce the specific performance to make a1 lease. A lease is personal property, although the present contains a stipulation that it shall be renewable forever, yet any estate; short of freehold, gives the heir no interest. The heirs and widow1 are only parties. The right to be enforced is technically in the ■ administrators; they must be parties complainants before we can finally settle the cause.