author: Judge Wood,

text:
    Lessee of Reynolds and Wife v. Abigail Shirley.
    A testator holding a paper in his hands says, this is my will, executed in 1824, I have called you to witness that it is my last will and testament; he then proposes that a certificate of this fact of reacknowledgment he written on the will, which is so written and acknowledged, and not signed by the' testator, but by the attesting witnesses. Held, a good republication, giving effect to the will from that time.
    This was an action of ejectment, in which a verdict was taken for the plaintiffs, subject to the opinion of the court, upon a motion for a new trial, on an agreed state of facts. It was adjourned for decision from the county of Huron.
    It was elaborately prepared and argued upon several points, but was finally decided upon the single point of fact as to the re-execution of a will by Abiathar Shirley, under which the *defendant claimed as devisee, whilst the plaintiffs claimed as heirs at law of the same Abiathar Shirley.
    The material facts of the case were these :
    Shirley had made and duly executed his last will and testament in 1834. By it he devised to the defendant certain specific real estate, and added this general clause, a All my other freehold estate whatsoever.” Shirley died in 1834, and the estate in controversy was obtained after the execution of the will. The proof of re-execution was to this effect.
    Shirley was attacked with cholera, on August 23, 1834. A witness testified that he was sent for by Shirley, on the same 23d of August; that he found Shirley sitting on his bed with the will in his hand; Shirley said to the witness, “This is my will; it was^ signed and witnessed in 1824, and 1 have called you to witness it is my last will and testament.” Arth. Goodin was also present. Shirley said, “ he supposed the will would be good enough without any further witness, but it would be well enough for witness and Mr. Goodin to write upon it and put their names to it to show it was his will.” Mr. Goodin wrote a certificate in these words: “This is to certify that the within is, as therein declared, my last will and testament, acknowledged before those whose names are hereto subscribed, this 23d day of August, 1834. “Subscribed as witnesses by W. Goodin and G. S. Haskins. The witness, Has-kins, states, that this certificate was read to Shirley, who said his name was already to the will, and requested Goodin and witness to sign the certificate, and they did so. The witness testified that Shirley was of sound mind at the time of this transaction. Probate of this will was granted in November, 1834.

      F. D. Parish, for plaintiffs,
    argued that the republication of a "will must be done in writing, executed with all the solemnities required in the execution of the original will. Otherwise, after-acquired lands are not affected. Powell on Devises, 264, alias 443 ; Roberts on Wills, 476, and onward; 7 Johns. 394; lb. 312; 3 Chase’s Stat. 1786, secs. 2, 5; Stat. of Frauds, 1 Chase’s Stat. 693; .29 Ohio L. 218, see. 4; Dow. 31-40. This is believed to be law in Europe and America, strictly adhered to since the existence of -the statute of frauds and prejuries in England.
    In the case before us, it is not, or at least it can not with any .propriety be claimed, that any new instrument has been thus executed. It is, therefore, difficult to imagine the ground *upon which the acknowledged ability and ingenuity of opposing counsel will succeed in making out a plausible defense. Certainly nothing transpired around the death-bed of the testator, which could, in any point of view, operate to alter, revoke, add to, or diminish from, the old will of 1824. Vide act relating to wills, sec. 5. If the old will had, from any cause, become dormant or, void, the most that can, with the least plausibility, be claimed is, that new life and effect was given to the will as it originally operated. No new or different effect can, upon any known principle, be claimed to have been given to-it. If such a will may be revived by parol, or even by a reaolmowledgment of it, by the testator in the presence of witnesses, who attest his declarations and re-acknowledgment of it, it could do no more than to restore the originial effect and operation of the will The very idea of the republication of a will, implies nothing further. Consequently, ■as before remarked, it does not in the least alter or change, diminish from or add to, the effect of the old will.
    But let it be supposed that the certificate drawn on the back of the will on August 23, 1834, had been then signed by the testator. There would have been still remaining several unanswerable objections to its passing the property in dispute.
    1. The certificate, in such a case, would have only given effect to the will as it originally stood. The language of the certificate is: “ This is to certify that the within is, as is therein described, my last will and testament,” etc. That is,, it would have been then, his will, that the Bloomingville property, “ together with ” all “the freehold estate” which the testator owned on December 18, 1834, should go to the defendant. No other intention could havo been legitimately deduced from the words of the certificate; and, no declarations of the testator, as to his intentions, could be introduced to control the import of the will or certificate, or to give-a meaning to the words used in either, which can not be reasonably collected from the words themselves. 8 Mass. 506; 1 Salk. 234. Nor can another paper be considered in giving construction to a will. 1 Salk. 231-234; 14 Johns. 1.
    Had the certificate been signed by the testator,, this case would have been in some degree similar to the one found in 2 Bos. & Pul. 500. In that ease it was decided that a codicil (not a mere certificate), in which the devise of all the testator’s freehold in the-original will was referred to by the *words, “ my said lands,” etc., could not operate to pass the estate acquired between the respective dates of the will and codicil. An intention to devise the-after-acquired lands can not be so fairly gathered from the words of the certificate in this case, as it could from those used in the codicil in the case referred to. For, in the one case, the bare use of the word “said” before “lands,” was held to confine the operation of the language of the original will to the lands owned by the testator at the date of the will; and in the other there would have been a mere reference to the words of the will; in effect saying, “ my will is still as is expressed in my will of 1824.”
    To make another digression from the case. If the declarations of the testator could be referred to as evidence of his intention, it would not improve the defendant’s case; for his words were of the same import. He said, “ it was my will in 1824, and it is myj will now,” etc.
    Had the certificate been signed, another objection would have been, that it does not appear that the witnesses subscribed their names in the presence of the testator. 29 Ohio L. 243, sec. 2; 1 P. Wms. 345.
    Boaltt, and Worcester, and Williams, for defendant,
    argued that the will was duly republished.
    The execution of a will, under our statute, as under the statute of frauds and perjuries, embraces the following formalities or solemnities: signing by the testator, attestation of witnesses, and publication. The re-execution of the will under our statute (if essential) as under the statute of frauds and perjuries, would require a-repetition of the .same formalities.

      Under the English statute (and so we apprehend under ours, if essential), the republication or re-execution of a will of lands, brings the will down to the date of the republication or re-execution, and applies the language of it to the real estate of the testator, in the same way that it would have been had it been originally executed on the day of the republication or re-execution. Jacob’s Law Diet. 438; 6 Com. Dig. 144, Eng. ed.; Roberts on Wills, 477; Powell on Dev. 686; Ram. on Wills, 165. As a concise view of this doctrine, in respect to the effect of a re-execution, and also in respect to what amounts to a re-execution, we will quote from Jacob’s Law Dictionary, 438, above cited :
    “A will, as to the disposition of land, and in some other cir-cumstances, *takes effect, or is hindered from so doing, according to its date. It is, therefore, necessary on certain occasions to renew'it, as it were, or in fact to make a new will; and if the testator is exactly of the same mind as to the method of the disposal of his property, and the circumstances only require that the will should bear date at any particular time, it will be sufficient for him to call in three proper witnesses, and before them declare the signature to be his handwriting, and use/Ae same forms as in the original execution, and the three witnesses must sign their names to such new will or republication, mentioning the date-thereof.” We find the same views expressed in almost, if not precisely the same language in Tomlin’s. Law Diet. 814, 815. And substantially the same in Powell, 686. See also Roberts on Wills, 481, in note.
    To apply the foregoing premises to the present case. On the night of August 23, 1834, when the witness, Haskins, entered the room of the testator, he found the testator sitting upon the side of his bed, with a paper in his hand, and the testator immediately addresses him by saying: “ I have not called you altogether for medical assistance, but to witness this paper. It is my will.” The witness did attest the instrument in pursuance of the request of the testator, and signed his name to it, together with Goodin, the other witness, as a witness, “ that it was the last will and testament” of the testator. It would be difficult to, conceive of a more unequivocal act of publication than the deposition of Haskins discloses. Attestation : Haskins testifies that both he and Goodin attested the will, and at the request of the testator. Goodin was not called at the trial. That the calling of Goodin, or more than •one witness in an action of the heir at law against the devisee is •unnecessary, see Espinasse, 291, 391. But an exception is taken to the attestation by counsel for plaintiff on the ground that Haskins does not testify that he subscribed the will in the “presence of the testator.” It is conceded that the deposition of Haskins does not disclose- the fact of his attesting the will in presence of the testator (in hcec verba). But we would ask, what is the presumption of law in this and similar cases? Presumptions, as we understand, are drawn from those facts that usually and ordinarily accompany, or are incident to a transaction as shown to us by experience. And does experience show us that when the maker of an instrument calls upon a by-stander to attest it as a witness, that the witness retires *to one side, and out of the view of the testator, for the purpose of complying with the request so made? To put the question, we think, is enough. Besides this, the witness testifies explicity,-that he was called upon by the testator to witness the will; that he did sign his name to the paper or will; that that was his, the testator’s, “ last will and testament.” We would ask again, whether Haskins could have so testified unless the law had been complied with in respect to the testator’s being present at the time of the subscription, and in respect to the attestation, omnia vite acta? No one, we think, can read the deposition of Has-kins without being led to the conclusion that the will was attested in the presence of the testator. Besides this, if our recollection serves us correctly, and we think it does, and that confidently, the same witness, Haskins, in his examination at the trial in the Supreme Court, testified expressly that it was so attested, and, we believe, it will so appear from the notes taken by the court at that time, to which we would invite their attention. If, however, after all, the court should be- of opinion that the attestation was not sufficiently proved, we would hope that they would not make a final decision of a case of so much importance, for the want of calling out a fact that clearly and assuredly escaped by inadvertence the attention of the counsel for defendant. And we do, therefore, if our case is deficient in this point, ask the benefit of a new trial; and as authority for which, we refer to Roberts on Wills, 142, in notes. Bond v. Seawill, 3 Burrows, 1773. How extremely liberal the English courts have’ been in respect to requiring the attestation to be made in the presence of the testator, see Roberts on Wills, 163-165; Jacob’s Law Dict. 427 ; Powell on Dev. 90, 91. Signing

      ■of the testator: The term used in the statute of wills of Ohio, as in the statute of frauds and perjuries, is signed, as distinguished from subscribed. Our statute, as it is more liberal in other respects than the statute of frauds, so it is more liberal in respect to the signing of the testator. The statute of frauds requires the will to be signed in the presence of the witnesses: — ours makes an nchnowledgm ent of the signature to the witnesses sufficient. Ohio ■Statutes (of 1829), 243, sec. 2. If the will, or even the name of the testator, be written with his own hand, it is immaterial, under the English decisions, in what part of the will the signature ap•pears. It may be at the bottom, top, middle, or margin. 3 Starkie, 1684; 2 Black. *282; Com. Dig. 390; Powell, 61; Lemayne v. Stanley, Roberts on Wills, 138; Peate v. Oagly, on same page. The reason for this liberality of construction in respect to signing, we find concisely but clearly laid down in Powell on Dev. 66, in remarking upon the case of Lemayne v. Stanley.

      “ If,” says he, “ the intention to devise be certain, and the requisitions of the statute be verbally complied with, the law will imply an intention of the testator to conform to the statute, and by coupling the fact and intention, will give effect to the instrument.”
    The above decisions in respect to the signature of the testator ■coincide with, and confirm the universally admitted principle in respect to wills, that the intention of the testator is to be the guide •of the court, and that this rule applies as well to the execution of the will as to its construction. When the court have testimony that the testator himself considers his will as complete, they will so consider it, if the language of the statute be verbally complied with. 1 Saund, 279, in note; 3 Starkie, 1683. And parol evidence is admissible to show that the testator did consider his will as complete, .and contemplated no further act. 7 Bac. Abr. 328, 329. But when the testator did not consider his will as complete, and contemplated some further act, but was prevented by extreme weakness from performance, it has been held an insufficient execution, and parol .testimony may be introduced to show its insufficiency. As when the testator had signed three sheets of his will and attempted to .sign again but was unable, it was held insufficient. Right v. Price, Powell, 66. In respect to proof of signing by the tqstator, it has been repeatedly held, that acknowledgment of his signature by the testator to the witnesses is sufficient. 4 Dane, 502, 568 ; 2 Black. 282; 3 Com. Dig. 390; Powell on Dev. 61. So acknowledgment of the will before the witnesses is sufficient proof of the testators signature. 1 Chit. Index, 571; 1 Ves. 11, cited, White v. Trustees of British Museum, 2 Supplement to Petersdorf, 1069; Ellis v. Smith, 3 Cruise, 49. In the case now before us, the testator produced to the witnesses a will signed and executed in 1824, with his signature at the bottom of the will, as it stood there. When he first produced; it, he told them it was his will, thus recognizing his signature by acknowledging the will. *He said futher, that it was signed by him in 1824, that it was his will at that time, and he wished to have them attest it, to show that it was his will “ now." Immediately afterward a certificate of acknowledgment is written at the bottom,.at the request of the testator, for the purpose of showing, as he said, that it was his will at that time. He designed, as appears from the beginning, to add no new signature. He before considered his will complete, and he supposed it would operate according to the terms of it, without any new attestation,- but to “ make assurance doubly sure,” he requests the witnesses to re-attest it. After the certificate is written by the witness, it is read to the .testator.’ He, the testator, expresses his approbation-of the terms of it, and says to the witness, “ that will do.” He is then asked if he will sign it. He replies, “no, it is not necessary, my name is already to the will.” The witnesses then attest it, at the renewed request of the testator, “ that it was his last will and testament.” And Haskins says that they attested not the certificate and will severally, but both, and that he considered himself as called upon by the testator to witness both, and so considered when they signed. After the will is attested, it is handed to the testator, who hands it to his wife, and tells her to take care of it. Here is the strongest possible evidence that the testator considered his will “ complete,” and that he contemplated no further act. There is the proof of his signature by his acknowledgment of it, specifically to the witnesses, and also by his acknowledgment of the instrument as his will.
    But it is contended by the counsel for the plaintiff, that the'certificate, written by Goodin before attestation by himself and Has-kins, ought to have been signed by the testator, in order to make-file will operate upon the controverted lands.
    That certificate either is, or is not, a part of the will. If it is no-part of the will, it certainly required no signing by the testator. We think it was not a codicil. All the authorities assert that a.
      codicil is a writing annexed to a will to add to, alter, expldin, or take something from it. 4 Dane’s Dig. 550; Bailey’s Law Diet. 425; 2 Black. 500; Powell on Dev. 23. The writing in question, leaves the will precisely as it was before. It is true that (if a re-execution or republication were necessary) the will now operates upon more property than it would have done before, because there happens to be other property for it to operate upon. But its *sense, taken as a whole, as an operative instrument, remains exactly as it was-before. We again quote in illustration of our views:

      “ In a republished will, it must be considered, what the words-of the will at the time of republication import; their sense can not be enlarged, but their operation may; if time or accident have increased the amount or number of particulars comprised within the compass of its expressions.” Roberts on Wills, 477. See also-notes on same page and page 478. Suppose the certificate had not been added, the case would then have come within the very letter of the doctrine laid down by Bayley, Tomlin, and other authorities above cited, in respect to the re-execution of wills.
    Again, suppose the certificate were an integral part of the will itself. It will be observed that both the will and certificate were written in the jfirst person. The will, as it stood before the certificate, is in the handwriting of the testator; the certificate was written by Goodin, at the request of the testator. The signature- “ Abiathar Shirley,” applies to the part that follows his name, with, the same grammatical propriety that it applies to the part which precedes. In this point of view, it conclusively and most unequivocally comes within all that numerous list of cases in which it has been decided that it was immaterial upon what part of the instrument the name of the testator is found. In this case, when the certificate was read to Shirley, he said in approbation of the terms of it, “ that will do,” and when asked to sign it, he replied,. “ no, it is unnecessary, my name is already to the will.”
    But again, suppose what -was written at the -bottom of the will should be considered strictly a codicil. A will, it is said, may be made at many different times. There may be twenty codicils written in as many different years, and if the last is executed with the proper formalities, it makes but one will. A will, like &■ deed, is an entirety. Roberts on Wills, 140-142, etc.; Dane’s Dig. 556; Powell on Dev. 6824.
    Suppose, Shirley had written his will in 1824, without having .any other signature to it than that which appears now on the first line of it, or without having sealed, attested, or published it till August 23, 1834, and that he then brought it before the witnesses, Goodin and Haskins, in that incomplete state, and the facts had then transpired that are attested by Haskins, the writing of the certificate at the request of the ^testator, his acknowledgment of his signature, and the attestation of the witnesses, we ■might then put the question with the utmost confidence of an affirmative answer. Whether these facts would not make out a ■good original execution of the instrument; and surely the position can not be less strong by reason of having Shirley’s name both at the top and foot of the will, and' having it twice attested.
    In fine, after an examination somewhat extended, in books of good, of doubtful, and of no authority, and after a careful perusal ..■and reperusal of the very learned, elaborate, logical, and even, eloquent argument of the counsel for the plaintiff, we are unable to find any reason for not considering this will, in every point of view that can be taken of it, validly and legally re-executed. We would, also, upon this point, refer the court to the argument •and opinion of Prof. Greenleaf, of the law school at Cambridgef Mass., filed herewith.
   Judge Wood,

after stating the whole case, delivered the opinion ■•of the court:

Upon the evidence, the court are satisfied that there was a complete re-execution of the will, under which the defendant claims, on August 23, 1834. It is not necessary the witnesses should see the testator sign the will; it is sufficient if he acknowledge his signature to the witnesses. The proof of this acknowledgment in the case before us, we hold to be clear and explicit. The will thus repirblished, speaks as to, and disposes of the real estate owned by the testator in 1834. The title is therefore in the defendant, and «there must be a judgment of nonsuit. ■


source: Caselaw Access Project

author: Lane, J.,

license: Public Domain

text:
    James Hey v. Schooley, Longworth et al.
    A final decree to sell mortgaged premises, is not opened by an appeal from the decree confirming the sale.
    Misapprehension of the right of parties at the time of selling mortgaged premises under a decree, where one of the parties is purchaser, may be cause for setting aside the sale.
    This was a bill brought to foreclose a mortgage, and was adjourned here for decision, from the county of Hamilton.
    The case was this: In July, 1835, -the rights of the parties were ascertained by a decree in the Hamilton court of common pleas, and-the mortgaged premises were ordered to be sold. In September, 1835, they were sold under the decree, and Longworth became the purchaser. At the November term, a return of the sale was made to the common pleas, and ^exceptions taken to its confirmation, which were overruled, and the sale confirmed. From this decree, the respondent appealed, and on the appeal, insisted that the-whole case was open for revision.
    Storer and Spencer, for Schooley;
    Haines, for Hey.
   Lane, J.,

delivered the opinion of the court:

' Objections are taken to the regularity of the first original decree in this ease, and we are asked to examine its merits. But we find the practice well settled, both in our own courts and in those of the United States, that the final decree, which, upon appeal, presents the whole matter to the action of the appellate court, is the decree by which the rights of the parties are defined and settled. Wright, 729; 3 Cranch, 179. When further decrees become necessary to carry into effect the rights of the parties, and errors occur in their rendition, such errors may be corrected by appeal; but, in such appeals, nothing is before the court except the proceedings subsequent to the decree which settled the merits.. The original proceedings will be no further inspected than to enable the court to decide upon the correctness of the last decision. 5 Cranch, 313; 10 Wheat. 442; 1 Ohio, 271. This interpretation-’ of the right of appeal is intended to apply to suits in chancery, ■only where such decrees are parts of the original suit. In suits at law, proceedings had after judgment are to be corrected upon certiorari, not upon appeal.

It appears that at the time of the'sale some misapprehension occurred among the parties to the suit as to the terms upon which the sale was made, and this misapprehension prevented competition in the biddings, in consequence of which one of the parties has lost all means of securing his debt, while another has obtained a bargain in the purchase of the mortgaged premises. No injustice will be done to the purchaser who is a mortgage creditor .and a defendant, by a new sale, as in any event his debt is secure. We therefore set aside the^sale, and direct that another be made.


author: Grimke, J.:

text:
    *Lessee of Thomas Lloyd v. Aranda P. Giddings.
    What delivery of a deed is to he taken, as effectual, and what a mere escrow depends on the circumstances attending the delivery. A deed delivered as an escrow, can not he set up in ejectment, to show an outstanding title against the lessor of the plaintiff.
    In this cause the plaintiff proved title in his lessor, and thereupon the defendant, in order to show an outstanding title, called upon J. D. Webb, Esq., attorney and agent for said Lloyd, for the production of a deed of quitclaim of said land, in his possession, from said Lloyd to Simon Perkins, dated May 21, 1821; which .deed was produced by said Webb, and thereupon the defendant offered it in evidence, to which the plaintiff, by his counsel, objected ; and thereupon it was shown to the court that heretofore, to wit: On February 27, A. d. 1818, a suit of ejectment was commenced against the said defendant, for the recovery of the same land, by the lessee of Roger W. Ames, in which suit such proceedings were had, that at the September term of this court, a. d. 1820, a judgment was rendered in favor of the then plaintiff, and the said Giddings claiming the benefit of the occupying claimant law, a decision of commissioners appointed by the court was had, assessing the value of the improvements and of the land in a state of nature, and it was ordered that the said Ames elect whether ho would receive the value of said lands or pay for the improvements; and thereupon the said Lloyd, a resident of the State of Connecticut, who in fact was the owner in fee simple of said land, although at the time of said trial the counsel for both parties supposed the interest to be in said Ames, on the said May 21, 1821, inclosed said deed in a letter to said Perkins, that he, the said Perkins, might arrange the business in the best manner he could: adding, “you may let Giddings take it, if he will do no better, at the appraisement.” “ I must, therefore, request you to do the best for me that you can with Mr. Giddings. I suppose if he can not pay the money he must give up his claim.” It was further proved that said letter and deed was received by said Perkins some timo in June, A. n. 1821, who, on July 7; a. d. 1821, signed and sealed a deed of quitclaim of the same land to Aranda P. Giddings, and placed both deeds in the hands of said Webb, agent and attorney of said Lloyd, as aforesaid, to be made use of at his discretion. The deposition of Simon Perkins was read, which is as follows: “I find, among my papers, letters from Thomas Lloyd, in one of which he says that he inclosed to me a deed for lot No. 45, in township 8, range 2; his letter bears date May 18, *1821, and I find a deed in the hands of J. D. Webb, Esq., executed by said Lloyd, which conveys to me the land above described; and I have no doubt that the deed above described is the one which I received from said Lloyd in the letter above mentioned, and on which deed I have now written, Warren, July 8, 1835. I have no recollection of making a deed of the above-described land to any one; but in the hands of said J. D. Webb, I find a deed executed by me to Aranda P. Gidding, of that same land. My opinion in regard to these deeds is, that I received of Lloyd the deed, as stated within, to enable me to convey the land to said Giddings if he should be found to be entitled to it-; and supposing that he was, I made the deed for him, and delivered both to said Webb, to be made use of at his discretion. My opinion in regard to the transaction is, that it was all done for the accommodation of said Lloyd, that I did not buy the land, or at any time consider it as my own. A letter now inclosed, and on which I have indorsed July 8, 1835, I suppose to be the letter in which I received said deed.”
    It was further proved that both of said deeds were offered by said Webb, as agent of said Lloyd, immediately after their receipt, to said J. R. Giddings, agent and counsel of said Giddings, who refused to receive them and pay the value of the land; that said deeds have since remained in the sole possession of said Webb, agent as aforesaid, until this day called for on the trial of th:s cause, and neither of said deeds have ever been recorded.
    Under this state of the case the court overruled the plaintiff’», objection to said deed, and permitted the same to be read in evidence to the jury, and thereupon a verdict was returned in favor of the defendant. And on this state of facts the counsel for the-plaintiffs moves for a new trial, because the court erred in permitting the deed from Lloyd to Perkins to go in evidence, inasmuch, as the title was not thereby vested in the latter.
    Webb and Hitchcock, for the plaintiffs :
    There was no delivery of the deed to Perkins. It was transmitted to him merely as the agent of Lloyd. There was no bargain, no considerations, no intention to convey the interest in the land to Perkins. It was sent to him as a ^convenient mode of enabling him to perfect the arrangement with Giddings. But it may be argued that the delivery was intended as an escrow, and' that, as it could nqt be so delivered to the grantee, it inured to him. absolutely. But the case is not stronger than that of Fairbanks v. Metcalf, 8 Mass. 230, where there was an actual, formal delivery to the grantee in the first instance, and yet the court, in order that the intentions of the parties should not be disappointed, decided-that it was an escrow. Again, Perkins never accepted the deed-as vesting title in him, and the case of Jackson on Dev. Ten. Eye-.. v. Richards, 6 Cowen, 617, is directly in point.
    Giddings and Wade, for the defendant.
   Grimke, J.:

It is evident that there never has been a delivery of the deed; from Perkins to Giddings. Whether the deed from Lloyd to. Perkins was ever delivered is the material question. It is very clear what was the real nature of the transaction and the intention of the parties. Lloyd, instead of executing a power of attorney to Perkins, to enable him to convey to Giddings, makes a. conveyance direct to the former. This is a mode which is often adopted, neither party regarding themselves in any other light-than the one as principal and the other as agent in the whole-transaction. Are there any principles of law which will compel' us to disappoint their intentions? If a power of attorney had been given to Perkins he would have possessed a mere naked authority; but a conveyance is executed, naming him grantee,, and the case, therefore, rather resembles a power coupled with an interest, where any one deriving title under the power is considered as holding immediately of the person who created the power. But there is this difficulty in considering these instruments in this light, that the power is not contained in the deed to Perkins, but is attempted to be created by parol, of which, at any rate, a court of law can not take notice. Nothing is bettor settled than that a deed can not be delivered to the grantee as an escrow. The reason assigned is, that there is a manifest inconsistency between the declaration of a condition and the delivery. But this has not prevented the courts from limiting the extreme rigor of this principle in such a way as to prevent injustice from being done. Thus, in the Earl of Stair v. Murray, 2 B. & Cr. 82, when a bond was delivered by the *obligor as his deed, but both before and after the delivery it was agreed that it should continue in the witness’ hands until the death of certain individuals; it was held to be a question for the jury whether it was delivered to take effect from the time of delivery, or upon a condition that it was not to operate until the death of those persons. So in Fair-bank v. Metcalf, 8 Mass. 230, there was also an actual delivery to the grantee, who then placed the deed in the hands of a third person, to be delivered on a certain contingency; in pursuance of an agreement of the parties, it was held that the deed, although formally delivered to the grantee, yet under the circumstances, could only be considered in transitu, and did not operate to convey the land but upon the happening of the event contemplated by the parties. These are both very strong cases, much stronger than the one now before the court; and it will be observed that in both of these the grantee was ultimately intended to take the whole beneficial interest, and was not intended, as in the present instance, to be a mere agent to convey. Rules are necessarily made very broad and general in the early history of jurisprudence; but afterward limitations to them are found to be as indispensable as the rules themselves; and hence the good sense of the maxim, that there is no general rule without its exceptions.

There are matoy cases in which a grantee is considered as taking no interest under a deed. Thus, where a conveyance is made to A., and a mortgage is immediately executed to the grantor, or to ■a third person, the widow of A. is not after his death entitled to dower, because A. is regarded as a mere “ conduit-pipe or instrument” through whom another conveyance was to be made. Now, the evidence shows that the deed was delivered to Perkins for no other purpose than to enable him to make a conveyance to ■Giddings. To assert that the title was effectually transferred to him, would be to assert that his widow, after his death, would be •entitled to dower; and yet this is a proposition which could hardly be maintained with success.

There is still another view of the matter which is equally decisive. The acceptance of a deed is absolutely necessary to vest the grantee with title under it. No man can be compelled to take á conveyance against his consent. Now, Perkins says that he did not buy the land, nor never considered it as his property.

He received the deed, then, at the utmost, *as an authority to convey, and his authority is exhausted in an ineffectual effort •to accomplish this object.

The law, with regard to the delivery and acceptance of deeds, was once very plain, because it was very strict. But I take it to be now settled that what shall amount to either, depends very much on the circumstances and the intentions of the parties. Thus,In Clavering v. Clavering, 2 New R. 473, a voluntary deed of ■settlement in trust, made in 1684, always kept by the grantor in his custody, and found after his death among his papers, was held to control a subsequent settlement in 1690, and the same decision was made in Boughton v. Boughton, 1 Atk. 625. On the other hand, it has been equally settled that mere formal words of delivery will not, in all eases, be sufficient to render the deed absolute. This was so-decided in the'eases of Jack v. Dun, 1 Johns. Cas. 114, .and the Darby Canal Co. v. Wilmot, 9 East, 360.

It is evident that if it is possible to lay hold of any principle •of law, or of any adjudged case of authority to prevent this deed from operating to defeat the title of the plaintiff, that we ought to do so. And I believe enough has been said to authorize us to ■come to the conclusion that the deed' to Simon Perkins was not, .under the circumstances, effectual to convey the title to him, that it could not be used for the purpose of showing an outstanding title in a third person, and that accordingly there must be a new trial.


author: Judge Hitchcock

text:
    Andrew Huston v. Duncan McArthur.
    Where a chain of entries of land'in the Virginia military district are made dependent upon each other, each calling for a line of a specified distance, and the next commencing at the termination of that distance, the actual location of each must be ascertained by measuring the number of poles called for in the entry. An extension of these distances is not allowable upon an alleged custom of extending at a distance of five per cent.
    The bill states that on March 26,1792, Smith Sneed made an •entry in the Virginia military district, No. 2,067, of one thousand acres, on part of warrant No. 1,159, on the waters of the Scioto, beginning at the lower back corner of David Watkins’ entry, No. 1,298, running up with his back line the whole length, thence at right angles westerly for quantity. That said entry was certain in its calls, and appropriated three hundred and forty acres of land, the residue interfering with prior entries being withdrawn. That the said three hundred and forty acres were, on June 19, 1819, duly surveyed, and the plat of survey was duly recorded on July 22, 1819.
    That shortly after the record of said survey, said Smith ^Sneed died testator, having devised said entry and survey to Charles Sneed. That shortly after, said Charles Sneed also died testator, having devised said entry and survey to Sarah J. Sneed; and on September 28, 1830, a patent issued to the said Sarah J. Sneed, for said entry and survey, devisee as aforesaid. That said Sarah J. Sneed has also died, leaving her last will duly proved, and devised said entry and survey to her sisters, Maria H. Buchnar and Elizabeth T. Neall. Said last will has also been admitted to record by the court of common pleas of Pickaway county.
    That said Maria H. Buchnar and her husband Elias E. Buchnar, and the said Elizabeth T. Neall, by her attorney, in fact, Elias E. Buchnar, on June 1, 1833, by deed, duly executed and recorded, conveyed all their title in said three hundred and forty acres, in consideration of one thousand one hundred and thirty-three dollars, to the complainant. That neither the said Smith Sneed nor those claiming under him were ever within the State of Ohio during the periods of their respective titles.
    That the defendant having obtained a patent prior in date to the complainant’s patent and survey, made June 9, 1808, and recorded October 13, 1808,-purporting to be on an entry No. 5,765, in the name of John McDonald, covering the land previously appropriated under the entry No. 2,067, in the name of Smith Sneed, refuses either to surrender the possession or release the legal title to the complainant for said three hundred and forty acres, or to withdraw so much of the land embraced within his said patent as interferes with the said entry and survey.
    Prayer that the defendant quit claim to complainant the said throe hundred and forty acres, or withdraw so much of his entry, and to yield up possession and account for the rents and profits, and for general relief.
    The bill was filed July 7, 1834.
    The original answer (filed August 15, 1835) admits the entry in the name of Smith Sneed, but requires proof by a correct copy. Does not admit that the entry was certain in its calls, or that it appropriated the three hundred and forty acres in defendant’s possession, or that the residue of said entry was withdrawn prior to the record of said survey of three hundred and forty acres, but requires proof of these matters. Denies that the survey of the three hundred and forty acres was in conformity with the entry, or that said survey or the surveys of the entries in which it depends, are any evidence that the land included in said surveys, or either of them, is the land appropriated *by the said entries. Insists that an accurate resurvey of each of the entries on which said Sneed’s entry depends (if the validity of these entries can bo established), and of said Sneed’s entry, must be made to ascertain the land appropriated by Sneed’s entry. It will be found that no part of the three hundred and forty acres in controversy was-appropriated by Sneed’s entry.
    Defendant admits that he was and is in possession of one thousand acres of land, which was entered and surveyed in the name of John McDonald, and patented to defendant, as assignee of McDonald, prior to the date .of said survey and patent on Sneed’s entry, but denies that his claim interferes with Sneed’s entry. Denies all right of complainant to the possession of said three hundred and forty acres, or to have the legal title, etc.
    Amended answer (filed November 4, 1835). Defendant Can not admit that the survey made on Sneed’s entry was made or recorded during the life of the said Smith Sneed. States that a patent issued to him for the one thousand acre survey on McDonald’s said entry, which patent bears date July 25, 1812. That the defendant was in possession of said survey at the time the patent was issued, and that either himself or those under whom he claims, were in possession long anterior thereto, and as early as the making of said survey in the name of McDonald, and that such possession has been quiet, peaceable, and continued up to this time. Insists that complainant is barred by lapse of time and statutes of limitation.
    Publication filed October 31, 1835.
    Testimony was taken, but is not here recapitulated, as the same is referred to so far as necessary for the proper understanding of •the case, in the opinion of the court. •
    T. Scott & Son, and Henry Stanbery,
    for complainant, made the following points:
    1. The evidence shows that complainant is entitled to the land covered by Smith Sneed’s entry.
    2. Sneed’s entry is valid, and appropriates the land within its calls.
    3. The survey substantially conforms to the calls of the entry. The entry is the twelfth link in the chain of entries made on the Scioto river in 1787. This chain of entries, with the exception of Sneed’s, was surveyed in 1793, by Arthur Eox. If Eox surveyed this chain of entries correctly, then *the entry of Sneed was properly surveyed, and appropriated the land now in controversy. It was customary for the early surveyors, in running lines, to make an additional allowance of five per cent, to the length of lines called for. This was well understood by all the surveyors in the military district, and followed by Eox in. making these surveys. This custom ought to be sanctioned by the court, otherwise the claims of many to lands in the district will be destroyed, and titles to the land be unsettled. If it is an error, yet, where “ it is established and has taken root, upon which any rule of property, depends, it ought to be adhered to by the judges until the legislature think proper to alter it, lest the bare determination should have retrospect, and shake many questions alre.ady settled.” 1 Bl. 264; 2 Bl. 696; 11 Wms. 223, 399.
    Swan and Leonard, for defendant, insisted:
    1. That the true method of locating entries is by accurate measurement, and that no law or custom adverse to this has ever prevailed in the district, and under this head numerous subordinate-questions were fully treated in the argument.
    2. The plaintiff’s claim is barred by the statute of limitations. 10 Wheat. 152; 3 Ohio, 490.
    3. Plaintiff’s claim is barred by lapse of time. The claim is-stale, and plaintiff guilty of great laches. 7 Wheat. 60; 9 Pet. 416.
    4. The death of Smith Sneed, before the survey made in his-name, avoids the survey. 4 Pet. 345.
    Scott and Stanbery, in reply:
    The patent, under which complainant claims, did not issue until September 28, 1830 ; and it has been held that the statute does not begin to run against the owner of an entry and survey until the patent emanates. 6 Ohio, 252. As to the lapse of time, none short of that which would operate as a bar in analogy to the statute of limitations, can affect the right of the complainant. The doctrine of stale equities and laches does not apply in a case like the present. The complainant is not seeking to enforce au. ancient contract, etc.
    No case is cited to show that a survey may not be executed in-the name of a dead man, where the entry was made in his lifetime. Such has been the uniform practice, and its propriety *at this late period ought not to be questioned. But even admitting the survey to be void, the entry remains good, and upon that alone the complainant would be entitled to recovery.
   Judge Hitchcock

delivered the opinion of the court:

This ease is one of considerable importance, and has been very fully and ably argued by the distinguished counsel of the respective parties. Its decision, however, depends, as I apprehend, upon, one single point rather than upon multifarious and intricate questions of law ; and that is, as.to the manner in which Sneed’s entry should be surveyed. If it has been properly surveyed, it unquestionably appropriated the land in controversy. The evidence is sufficient to show that the complainant has now all the legal interest that was ever vested in Sneed and his devisees. Of course, as the entry of Sneed was prior in point of time to that of McDonald, under whom the defendant claims, it would seem that the-land, of right, belonged to complainant.

The entry of Sneed calls to begin at the lower back corner of David Walker’s entry, No. 1,298. Walker’s entry is one of a. series of entries, as appears by the proof in the case made on August 2, 1787. The first of this series is that of Benjamin Lawson, No. 489.

Lawson calls to begin on the bank of the Scioto river, eight miles above the mouth of Paint creed, on a straight line, thence running up the river for his base line five hundred poles, when reduced to a straight line, thence at right angles with the general course of the river for quantity.

After this, follows the entries of Archibald Blair, No. 440; of Robert Rose, No. 441; of Patrick Cams, No. 442; of William-White, No. 455; of Whitehead Coleman, No. 446; of John Jordan, No. 449; of James Galt, No. 451; of Clement Biddle, No. 452; of John Turch, No. -. Each one of these entries calls to-begin at the upper corner of the river of the one next preceding,, and to run up the river a certain specified distance, when reduced to a straight line for its base.

Next after the entry of Turch is that of Walker. I was mistaken in saying this entry was made on the 2d; it was not made until August 16, 1787. It calls to begin at the corner of Turch’s, on the river bank, running up the river four hundred poles when reduced to a straight line, thence at right angles, *and with the general course of the river and with Turch’s line for quantity. This series of entries was surveyed by Arthur Pox, a deputy surveyor, in 1793, and if they were surveyed according to their respective calls, then the land in controversy belongs to the complainant, as the survey upon which his patent is based, actually begins at the lower back corner of Walker’s survey, as surveyed by Pox, and covers a part of the land included in the patent of the defendant.

It must be remembered that Sneed calls to begin at the lower back corner of Walker’s entry, and not of his survey. And the fact that there has been a survey of Walker’s entry can, in no shape, affect Sneed and those claiming under him, unless that survey was properly made. It can not affect Sneed, because his entry was made, and the land covered by it, appropriated before Walker’s survey was executed ; and the execution of that survey can not change the location of land previously appropriated. On the part of the defendant, it is objected to all these surveys made by Fox in 1793, that they were not made according to the entries. They claim that Fox, in surveying the entry of Lawson, commenced at a point more than eight miles above the mouth of Paint'creek, and that in surveying the subsequent and dependent entries, he extended the linos beyond the respective distance called for ; whereas they insist that an entry should be surveyed by strict measurement. It seems to be admitted, and if not admitted, the fact is established by the proof, that if these several entries had been surveyed by strict measurement, the land covered by the complainant’s patent, would be entirely off the ground-appropriated by Sneed’s entry. The only point, then, raised in this case which it is necessary to decide is, whether, in surveying an entry, the surveyor is bound to do it strictly according to the calls of that entry.

Although it seems to be admitted that the most obvious conclusion would be that entries should be thus surveyed, jret it is strenuously argued by plaintiff’s counsel, that a different practice has prevailed in the military district, from the commencement of making locations in that district, and that to interfere at this late period with this practice would be fraught with much evil. It is insisted that it has ever been the custom in making surveys, to extend the lines five per cent, beyond the length called for, and that this custom has been so long, and so uniformly persevered in, as to become, in fact, a part of *the law by which titles and claims to land within the district must be regulated. And it is said that by accepting this mode of surveying, the lands covered by the complainant’s patent, will be found to be the same appropriated by Sneed’s entry.

That the locators in the district have been in the constant habit of appropriating by entry and survey more lands than their warrants called for, thereby defrauding other locators of their rights, and the government of its domain, there can be no doubt; and it is equally true that the courts have, from necessity, been compoiled, in some instances, to wink at those irregularities. But I am not •aware that they have gone so far as to sustain a survey made entirely off the ground appropriated by the entry; especially where such survey encroached upon land already patented to another individual.-

It may not however, be improper to inquire as to this custom. A custom, to obtain the force of law, must be reasonable, must be certain, must be continued, and must have commenced time immemorial, or time whereof the memory of men runneth not to the contrary. 2 Bar. Ch. 232.

1. Is this pretended custom reasonable? If it be reasonable, that a man to whom the government makes a devotion of one thousand acres of land, and suffers him to locate it himself, should, instead of the one thousand acres, appropriate to himself twelve or fifteen hundred acres, then this pretended custom is reasonable. But if by such conduct he commits a fraud upon the government, and upon other individuals in the same situation with himself, it is unreasonable and ought not to be sustained. 2. Is it certain? It is certain that almost every locator has appropriated to himself more land than his warrants would entitle him to; but the question is, whether there has been any certain and uniform rule by which this class of persons have been governed in this respect,.and whether that rule is the one insisted upon by the plaintiff’s counsel. To prove this custom, witnesses are examined, and a letter of the defendant, written at an early period, introduced in evidence. In this letter, the defendant, in speaking of this chain of surveys, commencing eight miles from the mouth of Paint creek, says: “It was customary for the earlier surveyors to make an allowance of five per cent, in the length of line.”

John A. Fulton says: “It was customary for surveyors in the district, in surveying rough, broken, and bushy land, to add four inches to the length of the chain, and some did, and some did *not add to the length of the line measured with a chain thus elongated. That in resurveying some of the old surveys, he has found the lines generally to be longer than called for, some exceeding this length five per cent., some more and some less. He states further, that some few of the old surveys would fall short of the distance callod for. That there is a great variety of measurement in the old surveys, but generally they measure the distance called for. That he ‘ does not know of any general standard or proportion of excess’ ” Cadwallader Wallace, another witness called by the complainant, confirms .the statement of Pulton. Those are the only witnesses examined upon this point. And this testimony, so far from proving any known and certain custom, proves the reverse.

Inasmuch, then, as this pretended custom is neither reasonable nor certain it can not be enforced, and it is unnecessary to inquire as to its commencement or continuance.

Had a custom like the one now contended for ever been recognized in any court, the counsel for the complainant would have produced the case in which it had been so recognized. No such ease, however, is produced. On the contrary, I have ever understood the law to be well settled that an entry must be surveyed according to its calls.' And in resurveying old surveys, where the lines can not be traced, if but one corner can be found, the resurvey must be made from that corner, according to the courses and distances called for in the original survey, extending the lines no further than strict measure. True, if there are natural or artificial objects called for, these shall control course and distance, but in the absence of such objects, course and distance must. govern. This court can not so far pervert the language of Benjamin Uawson as to say, when he called to begin on the Scioto, at a. poin.t eight miles in a direct line above the mouth of Paint creek, he intended to begin eight miles and one hundred and twenty-eight rods above the mouth of Paint creek. And that when he called to run up the river five hundred poles, he intended five hundred and twenty-five poles.'

• It has been urged upon the court that inasmuch as Pox, a regular deputy, surveyed the chain of entries upon the Scioto, upon which Sneed’s entry depends, as early as 1793, it is to be presumed that he surveyed them correctly and according to the practice then prevalent. It is clear, from an examination of the plat before the court, that Pox could not have strictly *regarded the entries. Some of the base lines are longer and some shorter than called for. To have recourse to his surveys, therefore, in ascertaining the beginning corner of Sneed, would be improper.

In order to ascertain this beginning corner the same course must be now pursued as must have been had the entries, upon which his is dependent, never been surveyed. That course is plain; commencing at the mouth of Paint creek, and running up the Scioto, river, eight miles strict measure, we have the beginning corner of Lawson. Eunning up the river from this point five hundred poles, we have his upper corner on the river, and this is the beginning corner of Blair. Pursuing the same course, we shall find the beginning and upper corner on the river of each of the intermediate entries, until we come to. Walker’s. And by running' his lines, according to the calls of his entry, .we find a beginning corner for Sneed; his beginning corner being the lower back corner of Walker. It is admitted that if this course is pursued, Sneed’s entry is entirely without the bounds of the defendant’s-patent, and, of course, the complainant fails in his suit.

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


author: *Judge Wood

text:
    Wm. B. Johnson v. D. W. & W. S. Wallace.
    Courts of law can not appoint a person to adjust long and disputed items of' account, in an action of assumpsit, without the consent of both parties.
    This cause was reserved, in the county of Miami, for the purpose of settling a question of practice.
    The action was assumpsit, upon a long-running account between the parties. The plaintiff’s bill of particulars contained' one hundred and seventy-five distinct items; the defendants’ bill contained upward of two hundred items. The defendants moved the court to make an order referring the accounts to an accountant to examine, to hear evidence, to state the accounts, strike a-balance, and report the result to the next term of the court, reserving all questions of law. The plaintiff’s counsel opposed the-motion, and whether the Supreme Court could legally make the-reference was the point reserved for decision.
    No argument of counsel was submitted by either party.
   *Judge Wood

delivered the opinion of the court:

It is admitted by all that a discretionary power vested in the court to settle controversies of this nature in the manner proposed by this motion, would very greatly add to.the probability of doing; •substantial justice between the parties. In the hurried terms of the Supreme Court on the circuit, it is extremely difficult, consistent with other business, to devote the time necessary to a single case of this character, which certain and impartial justice would seem to require; and besides, the jury is frequently composed of men not.familiar with the investigation of accounts, and they are not, therefore, although desirous of doing so, calculated ■to arrive at correct results; they must, at all events, be slow in their deliberations, and not unfrequently to the great inconvenience of the court. This power of reference has been sometimes ■exercised, but it has been by consent of .parties. In the absence of this consent, we are satisfied we have not the authority, for the constitution of Ohio, and the laws in pursuance thereof, give to either party the right to submit his cause to a jury for trial, and to grant this motion would be to deprive the plaintiff of that right.

The difficulties arising in cases of this kind, however, may be avoided by a resort to a court of equity, which has concurrent jurisdiction with the courts of law in cases of this description. Those long and perplexing accounts might then be referred to a •competent master, and be far more satisfactorily adjusted.

Motion refused at defendants’ costs, and case remanded.


author: Judge Lane

text:
    P. Young v. M. Hargrave’s Administrator.
    'In a lease for life, containing no express covenant for quiet possession, no word but dedi, I give, can be held to imply such, warranty.
    This cause was adjourned from the county of Hamilton.
    Itwas a suit on a covenant for quiet enjoyment in a lease, made ■by Hargrave and his wife, of the wife’s dower estate, in which Hargrave covenanted for quiet enjoyment. The declaration set forth the lease and averred an eviction in the usual form. The ■•defendant demurred generally.

      Strait submitted au argument in support of the demurrer, but: as his positions are principally embodied in the opinion of the court, it is omitted.
    *N. Wright and Fox, for plaintiff:
    On the part of the plaintiff it is contended that, under the act. of 1805, this lease is a valid and binding lease as between the parties, although not acknowledged, and without two witnesses. It has uniformly been decided under that act that a lease did not require subscribing witnesses. 3 Ohio, 465.
    It has also been held, that the acknowledgment did not form a-necessary part even of a deed; that without such acknowledgment the deed itself was perfect.
    There can be no doubt, we suppose, of the instrument- in question being technically a lease; it is a grant of the possession for a term, reserving an annual rent. Whether the term is for a fixed time, or depends upon the life of a person, we apprehend can make no difference.
    The next question, and the only important question, as we suppose, is whether there are any words used in this lease creating a covenant of quiet enjoyment. We suppose it clear that the words “have rented,” amount to a covenant that the lessee shall peaceably and quietly hold the premises during the term specified in the-lease. The first case we shall cite to the court is the case of Dugan v. Petherbridge, decided by the Supreme Court in this county,, in the year 1828. 9 Record Book, 558.
    The case was brought up by writ of error from, the common pleas, and the error insisted upon was, that there were no words contained in the lease importing a covenant in law. The words relied upon, as amounting to a covenant, were these, “ doth rent and lease.”
    The court held that those words did, in law, create a covenant for quiet enjoyment, and accordingly confirmed the judgment of the court below.
    It will not be questioned, w-e suppose, that the word demise, iu alease, contains an implied covenant that the lessee shall enjoy the land. “ When a demise is made by these words, dedi, concessi, demisi, or assignavi, the law supposes that the lessor has title to-the land he demises, and consequently power to lease, and, therefore, it immediately implies an undertaking on his part that the-lessee shall quietly enjoy the land, if the lease be for life, against .all men.” Com. Land, and Ten. 172, new ed. 97.
    Although the words dedi, grant, etc., contain an implied covenant, *other words of the same import will also carry with them a covenant. No particular form of words is necessary to • create a covenant. 1 Bing. 433; 8 Com. Law, 371; 4 Taunt. 329.
    The word demise means to let, to farm. It is said by Ainsworth to be from loco, which is defined to mean, to place, to let, to lay, to let or set, or hire for rent, to let a lease or farm out, to bargain to have a thing done, to put or let out a thing by the great. If these are correct definitions of the word demise, then the words in this lease, “ have rented,” contain an implied cove < nant.
    , But the case does not depend on general reasoning. The question has been decided as above stated, and in 2 Marsh. 302, the -court decided that the words “ have rented,” do constitute a covenant for quiet enjoyment.
    The books say there is a covenant of quiet enjoyment implied by the law, “ upon the words dedi, concessi, demist, or assignavi; for when a demise is made by these words, the law supposes that the lessor has title to the land he demises, and consequently power to lease, and therefore it immediately implies an undertaking on his part that the lessee shall quietly enjoy the land; if the lease be for life, against all men; if only for years, against all persons having title either paramount to or through the lessor.” Com. Land, and Ten. 172; 7 Law Lib. 97.
    Either of these words is sufficient to constitute a covenant, and so far from their having less effect in a lease for life, they have a greater effect in a lease for life than in one for years.
    It is further said, that in a case of a lease for life rendering rent, that an express warranty will not “ take away or qualify the implied warranty, but that the lessee may resort to either at his pleasure.” Com. 172; 7 Law Lib. 98.
    Whereas, in a lease for years, an express warranty is a release -of all implied warranties.
    It is contended that the covenant in this case is not binding upon the estate of the covenantor; that a covenant on the part of a man who grants a lease for life, dies with the covenantor. ..Such is not understood to be the law by the plaintiff’s counsel. We are willing to admit that on a feoffment in fee, since the passing of the statute of quia emptores, the word dedi only implies a. warranty on the feoffor, and does not descend on the heir. Yet it must be kept in mind that this is *the effect of a statute regulation, not a common law principle, for it is expressly laid down by 2 Blackstone, 300, that by the ancient law a warranty was annexed to the word dedi, which descended and was binding on the heir.
    It appears that distinctions have been made between tenants holding of the donor, and his heirs, by certain services, and those holding of the chief lords of the fee. In the former, the donor ■and his heirs were always bound to warrant; in the latter ease he was only bound for life. The statute de bigamies, 4 ed. 1, confined the warranty created by the word dedi to the life of the feoffor, ■unless the lands were given to be held by him and his heirs, after this the statute quia emptores is passed and forbids such reservation of tenure, by ordaining that the feoffee shall hold of the chief lord. Thence it became established that where the fee is conveyed, the heirs of the feoffor could not, in any case, be bound to warrant by force of the word give.
    Note to 2 Coke Lit.,by Thos. 252, original paging 297 of ed. 1827; Co. Lit. 384, in Thomas ed. 296; 2 Black. 300. And it is expressly laid down by 2 Black. 300, that even at this day upon a gift in tail, or lease for life, rendering rent, the donor, or lessor, and his heirs (to whom the rent is payable), are bound to warrant the title.

    Shepherd’s Touchstone, page 160, admits that some authorities contend that the executors are liable on an implied warranty after the death of the lessor.
    It will be found that all the elementary writers refer to the case in Dyer, 257 a, for the authority to sustain the position, that an implied covenant in a lease for life, determines with- the life of the covenantor. If the court examine the case in Dyer, they will not be able to ascertain whether the lease, in that case, did not show that the lessor had. only a life estate. If such was the fact, the covenant might well determine with the lease, on the principle that when the term ceases the covenant ceases, and this is the only reason given in the books for the position we are now discussing. The books say the executor is not liable after the determination of the estate. And this is a reasonable doctrine, where the title deeds of the lessee show the fact of the lessors only having a life estate. But where the lessor says nothing about his* own title, but undertakes to grant for a particular term, there we insist the spirit and reason of the law, in implying covenants at all, can not be fully and *fairly carried out, without implying the covenant to the whole extent of the term granted.
    When it appears on the face of the lease that the lessor has only a life estate, and he leases for a number of years, the lessee must see at once that the lease must determine with the life of the les30X-, and as all covenants cease with the estate, no fraud is sanctioned by limiting the covenant to the duration of the estate. But where the lease gives no notice of any limit to his own estate, what can be reasonably and plainly understood by the lessee, but that the man who makes a lease, for a particular time, has a title to the estate for that period ? Indeed, this is the morality of the law in making any implied covenant at all. It is to prevent fraudulently disposed men from reaping any advantage from, their intended frauds, by holding them to make good their representations.
    . It will be found, on examining the authorities, that in all cases the covenant continues as long as the term created by the lease continues. The only case which can possibly form an excejition to this rule is where the lease itself shows that the lessor has an estate which may determine before the lease expires.
    There can be no doubt that in cases of leases by tenants for life, where there is an express covenant for quiet enjoyment, that that covenant extends beyond the life of the lessor.
    It was so decided in Evans v. Geogurst et al., 10 Eng. Com. Haw, 327; 4 Barn. & Cress. 261, where lessee for life leased for eighteen years, and died before the expiration of the lease, it was held his representatives were liable, on a covenant of quiet enjoyment, “ for and during the said term,” so long as the term mentioned in said lease continued, and that the word term meant the period mentioned in the lease.
    We have stated that we consider the lease in question a formal lease to pass the estate, under the law then in force; but we are not to be understood as regarding the affirmative of that position necessary to sustain our action. The covenant is equally binding, whether the lease be formally executed or not. To make the covenant available as an estoppel in ejectment, it must be maintained in a deed which passes the estate; but not so where the-mere personal liability on the covenant comes in question. This distinction is stated by this court in 5 Ohio, 192, in referring to the case of the Dean of Norwich, 2 Brownlow, 165. That was a case of a lease for *lives, 6 Cowon, 128, and shows that the covenants are equally available in such case as a personal covenant, though no estate pass. The confusion in these cases has arisen from overlooking the distinction between the technical operation of certain real covenants at common law and the common effect now given to them as personal covenants. A technical common law warranty operated on the title and run with it; an executor originally could not even be sued on it. 6 Cowen, 123; 8 Cowen, 36; 4 Kent’s Com. In other respects its effect was peculiar. To have the technical effects of such a warrant, the covenant must be found in a deed passing the interest, and so say the books, but they do not refer to the effect of the warranty as a personal covenant.
    It would seem that the idea that the implied covenant in a lease must cease with the estate, may have arisen from the same confusion of ideas. The old books refer to it as a doubtful or disputed position. The case in Dyer, 257, is ancient; we can find reasons for that decision in many of the old and obsolete doctrines of real warranties, but we can find none at all for it under the modern doctrines applicable to personal covenants. The decision might have arisen out of the ancient doctrine of real warranties, considered as running only with the estate, and of course dying with it, but could not be sustained on any principle applicable to the modern use of these warranties as personal covenants.
   Judge Lane

delivered the opinion of the court:

On April 26, 1826, Maxwell Hargrave, and Ann, his wife, made the indenture with Young, by which it is “ witnessed that they, for the consideration of the yearly rent of one hundred and fifty dollars and sixty cents, to bo paid quarterly, have rented unto said Young the premises, etc., for and during the life of said Ann.” After the death of Maxwell Hargrave, Ann Hargrave made a sale of the same property, and the purchaser from her brought an ejectment against Young, upon which he was evicted. 6 Ohio, 313. This suit is brought upon the claim that the terms of the lease constitute a covenant by Maxwell Hargrave for quiet enjoyment during the life of Ann Hargrave.

The doctrine of implied warranty of real estate belongs to the ancient law. Although its application to leases for years has descended to our day, its relation to higher estates have *been nearly suspended by the adoption of express covenants in deeds. It is now little understood and nearly obsolete.

The ancient creation of estates consisted in the donation of land to the tenant, to be held of the donor, and reciprocal relations arose between them. From the tenant was due homage and the feudal services ; in return, the donor was bound to assure the enjoyment of the estate, which he undertook to confer. These duties were held to arise, not from express obligation, but from the nature of the tenure. They were imposed upon the tenant by his acceptance of the estate, and they might be exacted of the lord, who employed the term “dedi" or other term of donation by which estates were created. Hence Lord Coke says, “Where dedi is accompanied with a perdurable tenure of the feoffor and his heirs, there dedi importeth a perdurable warranty, for the feoffor and his heirs to the feoffee and his heirs. 2 In. 275. When ithe statute quia emptores in destroying the practice of subinfeudation, cut off the tenure between the feoffor and the feoffee and his ►heirs, the co-relative obligation of warranty could not be raised ¡against the heir of the feoffor. Still the feoffor was supposed to be ■bound by his own gift, and the warranty personally binding upon 'him for life. From hence follows the principle, which is sound, law, at this day, that whenever an estate, in freehold or in fee, is ■created by the word give, it implies a-warrant for the life of the .grantor.

In leases for years, the case is different. They were not originally regarded as estates in the land, but as contracts for the ■perception of the profits. The possession of the lessee was not ►regarded as in his own right, but as the possession of the grantor, .and the destruction of the freehold was attended with the destruction of the lease. The lessee had no means of redress or indemnity except upon the contract. The words of the lease “ yielding .and paying," etc., were construed a covenant by the lessee to pay rent; and the words “ grant, devise, etc.,” were held to imply a covenant on the part of the lessor to pay damages to the tenant if the possession was lost. A warranty, therefore, is implied, in ■ a lease, in a different sense from the implied warranty of a freehold. The latter depends on tenure, the former on contract. The remedies, too, were originally different. In the latter, the disseizee recovered the value in land ; in the former, damages only for the breach of the contract. Hence a warranty is ^implied from any contract, for the possession of lands amounting to a lease for years, no matter in what words it is framed ; but the warranty of a freehold is not implied, except from the feudal term of donation. No other word will answer — the' words “ grant, bargain and sell,” raise no warranty. Co. Lit. 384, a, Butler’s Note; 2 Black. Com. 300.

If this had been a lease for years, the warranty would have been implied, and the phraseology of the contract, or the employment of the word rent, although awkward and untechnical, would not affect the question. 2 Marsh. 302; Petherbridge v. Dugan, Hamilton Co. (O.) Supreme Court, 1828. But no authority is found to justify the annexation of a warranty of a freehold to any other term than the word give.

Judgment for the defendant.


author: Judge Grimke

text:
    Doe on Dem. H. Raguet v. Peter Roll.
    In ejectment upon a mortgage, the consideration upon which the mortgage' deed was executed is not examinable.
    This was an action of ejectment for a lot of land in the city of Cincinnati. On the trial, the plaintiff gave in evidence two mortgages executed by the defendant to him, for the same lot, one dated October 16, 1826, the other the 20th October of the same year; each to secure the payment of five hundred dollars. The defendant, on his part, adduced evidence to show that these deeds of mortgage were given to secure the payment of one thousand dollars, in consideration of the plaintiff’s agreeing not to prosecute the son of the defendant for a theft, with which he had charged him.
    Storer and Fox, for the plaintiff,
    submitted the case without argument.

      Starr, for the defendant,
    relied on the decision between the same parties, in the scire facias suit, reported page 76 of this volume. He also contended that the law allows the party to an illegal contract to set up its illegality. 2 Kent’s Com. 467; Cowp. 343. If Raguet were in possession under the mortgage, Roll could not dispossess him by showing its illegal consideration. This is the principle of the case. 11 Mass. 362. Neither party has any rights under the mortgage which the law will enforce. Both are equally in fault, and the maxim *applied “potior est conditio defendentus.” It is a good defense that the mortgage has been paid. 1 Cowen, 122; Adams, 284, n. So also usury in the consideration is a good defense. 4 Conn. 436. He also referred to 11 Wheat. 258; 2 Pet. 538; 4 Ohio, 400.
   Judge Grimke

delivered the opinion of the court:

This was an ejectment on a mortgage executed by the defendant to the lessor of the plaintiff, conditioned for the payment of five hundred dollars. The defense was, that although this was the consideration expressed in the deed, yet, that the roal consideration was an agreement on the-part of the plaintiff not to prosecute the son of the defendant for a theft, and that the mortgage was given to secure the payment of one thousand dollars, as a reward for that purpose. In Raguet v. Roll, 7 Ohio, 76, which was a scire facias on the same mortgage, it was held that this defense might be set up for the purpose of avoiding the payment of the money; and it is now supposed that it will be equally effectual in bar of the action of ejectment. In the act under which the scire facias was instituted, it is provided that the defendant may plead any plea which would be good in avoidance of the land or money '; so that the principles decided in the former case do not necessarily furnish a governing rule for the determination of this. The distinction between an executed and executory contract, where the consideration is unlawful, is a very plain one. In the former case, the court will not annul; in the latter, they will not enforce, and this course, so totally opposite’in the two cases, is intended to be subservient to the same end, the prevention of an immoral act. As long as the agreement continues executory, there is an incentive to the . commission of the deed; but when it is executed, no further motive of this kind exists, since the estate has already vested, or the money actually been paid. It may be supposed, however, that although a deed operates an actual transfer of the title to land, yet, if it is necessary to institute an action in order to recover possession, the court will not enforce the right of recovery ; in other words, that the principle in pari delicto, etc., comes in conflict with the other principle to which I have referred, and that it necessarily affords the governing rule of determination. Where two apparently opposite principles have been established, the presumption is that they are both intended to have effect, and *that the one shall not annul or neutralize the operation of the other. The rule in pari delicto, etc., then will be found to be universally applicable to executory agreements only. Thus, in Hawes v. Leader, Cro. Jac. 270, the intestate of the defendant granted by deed to the plaintiff all his goods; the real purpose was to defraud creditors ; the grantee brought an action to recover them, and obtained judgment. So in Starke’s Ex’r v. Littlepage, 4 Randolph, 368, which was an action of detinue to recover personal property transferred by a fraudulent bill of sale by the defendant to the plaintiff’s intestate, the contract was enforced, and the plaintiff recovered. The rule, then, does not apply when the policy of the law requives that a fraudulent or vicious conveyance should be enforced, and such is declared to be the law by Coke in his Commentary on Littleton, and by Powell in his Treatise on Contracts. But there are exceptions to the rule in pari delicio, etc., even in its application to executory agreements. Watts v. Brooks, 3 Ves. 612, is an instance of this, where the plaintiff and defendant having entered into a contract to be jointly concerned in ship insurances in violation of the statute, 6 Geo. I, although the court would not execute the contract, it would not exclude the result of it in decreeing a general acecount. And in Osborne v. Williams, 18 Ves. 379, the exception was pushed still farther; it was held that the rule “ in pari delicto melior est conditio possidentis,” “ preventing suit,” is not universal, and a direct decree was made‘in favor of the plaintiff, although the agreement was a fraud on the post office.

If the deed in this instance were an absolute conveyance, there could be no doubt then of the right of the plaintiff to recover. The real difficulty arises out of the double character of the instrument, which is evidence of a debt hereafter to be paid, and at the same time operates an actual transfer of the land to the mortgagee. Although a strong disposition existed once to treat a mortgage as a mere chose in action, and although individual judges were heard to declare that the money was the principal, and the land only the incident, and that whatever would carry the money would convey the land, yet such is not now supposed to be the law. A mortgage is in reality a conditional fee, which is as large an estate.as a fee simple, though it may not be so durable. And the case comes then within the principle, that when a conveyance has actually been executed on an unlawful consideration, the court *will not merely not annul it, they will even permit it to be enforced. The cases put by elementary writers are all of them conveyances on condition. Thus, if a feoffment be made to one man, on condition that he shall kill another, it is said to be good and unavoidable. But in the case of a mortgage, it may be said that there are two conditions — one to be performed by the grantor, the other by the grantee ; the former is to pay the one thousand dollars, the latter is to suppress a criminal prosecution. This is the apparent, but it is not the real nature of the transaction ; and it is in consequence of this false appearance, that the question seems to be surrounded with an unusual decree of difficulty. A mortgage is in reality an actual payment of the debt, as well as an actual transfer of the land, although, in consequence of the land being sometimes greater in value than the debt, an equity was supposed to arise in favor of the mortgagor, which was called his right of redemption, and which is now extended to every case of a conveyance by way of mortgage. It is a mere equity, then; an equity which is not recognized by a court of law, but only by a court of chancery; ar. equity which, proceeding on the ground that the debt has already been paid in one way, enables the grantor, on certain terms, to pay it in another. There is, then, no real difficulty in the case, however intricate the questions presented may at first sight appear to be. The testimony offered to impeach the deed was improperly admitted, and there must therefore bo a new trial.