text:
    *Samuel Baird et al. v. Billions Kirtland and Jonthan Fowler et al.
    Where there is an absolute conveyance of land, intended as a mortgage, and a separate covenant by the grantee, to reconvey to the grantor on the payment of a sum of money, the equity remaining in the grantor can not be sold upon an execution at law.
    In selling a mortgagor’s interest in the mortgaged premises upon execution, the valuation must he of the entire estate. It is not competent for the valuers to make an estimate of the value and deduct the incumbrance.
    This case was submitted to the court in Trumbull county on bill and demurrer.
    The facts charged in the bill are substantially as follows: At the March term of the court of common pleas of Trumbull county, 1833, Samuel Baird and others, the complainants, recovered a judgment against Jonathan Fowler, one of the defendants. On this judgment a writ of ft. fa. was issued, bearing date July 1, 1833, which was levied on one and one-half acres of land in the township of Poland, in said county of Trumbull, which land is •particularly described. The land was subsequently sold at sheriff’s sale, and purchased in by the complainants, and the sale was .approved by the court.
    This land had been the property of Fowler, but on October 11, 1832, he conveyed-the same to Billions Kirtland, another of the ■defendants, by deed absolute upon its face, Kirtland at the same time executing to Fowler a bond in the penalty of one thousand ■dollars, conditioned that he would reconvey upon the payment by Fowler of three hundred and sixty-five dollars, with interest, ir which sum he was indebted to Kirtland.
    The land was not appraised at its full value, but was appraiseu under the incumbrance, and was sold by the sheriff accordingly. After this sale, the complainant tendered to Kirtland tho three hundred and sixty-five dollars due to him, with interest, and demanded of him a release of the premises, which was refused.
    On May 13, 1833, Campbell, Jones, and Opio, three other defendants, recovered a judgment against Fowler in the Ashtabula county court of common pleas. Upon this judgment, execution was issued on the same day, and was levied on the same one and one-half acres of land; and on the 23d day of the same month they filed their bill in chancery, in the court of common pleas of Trumbull county, to subject the equitable interest of Fowler in said land to the payment of their judgment. In this case such proceedings were held, that on April 27, 1836, this equitable interest was sold to Logan, another of the defendants. This sale was approved by the court, a deed made to Logan, and he took possession of the land.
    The prayers of the bill are, that Kirtland maybe decreed to release to tho complainants his interest in the premises; that *Logan may be decreed to surrender the possession to them, and that they may be quieted in their title.
    To this bill there is a demurrer.
    Todd and Hoffman, for the complainants, insisted:
    1. That Fowler held an interest as mortgagee in the land in dispute.
    2. That this interest was at law subject to'execution.
    3. That the levy of the execution originally made upon the land was kept good.
    4. That the appraisal was properly made, and the incumbrance properly taken into consideration.

      They cited Wright, 249; 4 Johns. 43; 6 Johns. 296; 2 Ohio, 223; 2 Bin. 978; 1 H. Blk. 117 ; 1 East, 299.
    Spalding, for the defendants, argued :
    That inasmuch as the deed from Fowler to Kirtland was an absolute deed, Fowler held no other than an equitable interest in the land, and that upon such interest the judgment of the complainants could not operate as a lien ; and that this equitable interest could not be sold in execution. In support of these positions, he •cited 6 Ohio, 162; 1 Ohio, 314-320.
    He further insisted, that as the land was levied upon as a legal estate, it should have been appraised at its real value in money, •and not subject to an incumbrance.
   Judge Hitchcock

delivered the opinion of the court:

Upon looking into the facts of this case, the first question which ¡suggests itself is, why the complainants have come into a court of equity. There is no community of interest among the defendants. If Kirtland stands in the situation of mortgagee, and in equity there is no doubt that he does, and these complainants have a right to redeem, then it is true their remedy is in this court. But as to Logan, the only object is to recover from him the possession, which could be much more appropi’iately done by action of ejectment. It is true there is a prayer that the complainants’ title may be quieted; in order, however, to entitle themselves' to this relief, they ought first to obtain the possession. As the defendants have not, however, on these grounds, objected *fc0 the jurisdiction of the court, I will consider the points made in the •case.

It seems to be necessary to examine, in the first place, whether Fowler had any interest in the land in controversy, upon which the judgments of the complainants operated as a lien. If he had, then the complainants have a preferable right, for the land is situate in the county where their judgment was recovered; it was the first judgment in point of time, and within one year from its rendition execution was taken out and levied. The provision of the act regulating judgments and executions, that the lands and tenements of the judgment debtor shall be bound for the satisfaction of the judgment from the first day of .the term in which judgment is entered, is applicable only to legal interests in lands and tenements; to such interests as can be sold upon execution. Nor does a lien always attach where there is such an interest as maybe sold on execution. When a judgment is recovered against, a person in possession of lands, those lands may be sold upon execution, and as between the purchaser and execution debtor, the sale may be good ; still no other person having a better right than the debtor would be affected by such sale. But if the debtor has no other than a mere possessing right, the land is only bound from the time of the levy of the execution.

In order that a judgment may operate as a lien the defendant or judgment debtor must have a legal title. It maybe supposed that this opinion is contrary to those decisions of this court which have gone to sustain sales of mortgaged premises made in execution against mortgagors. It is not our intention to deny the authority of those decisions; we suppose that a mortgagor, where a mortgage is legal, has a perfect title to the mortgaged premises as to all the world, except the mortgagee or those claiming under him, and also as to him until the deed becomes absolute at law by failure to comply with the condition of defeasance. Of course upon such mortgaged premises the lien of a judgment might possibly attach, and the same might be sold in execution. In speaking of a legal mortgage I would be understood as speaking of a mortgage where the condition of defeasance constitutes a part of the deed. In such case the payment of the debt secured by the mortgage would discharge the mortgage; and in case the mortgagee should commence an action of ejectment, if the mortgagor could show that the debt was discharged he would defeat the action. 14 Johns. 43.

It is insisted, in the present case, by the counsel for complainants, *that Kirtland held the premises in controversy merely as mortgagee; that the land was conveyed to him merely as security for the payment of debt. No doubt, in a court of equity, this deed was a deed of mortgage, but at law, the whole title to the land passed out of Fowler; true, he took back a bond conditioned, not that upon the payment of the sum of money therein specified this deed should be void, but that Kirtland should re-convey. Kirtland might at once have had an action of ejectment, and the payment of the money would not have secured Fowler in the possession. The only legal right remaining in Fowler was a right of action upon the bond, provided he first paid the three hundred and sixty-five dollars and interest. In equity he might, upon such payment, compel a reconveyance, but ,at law he had no interest in the land; therefore the judgment of the complainants could not operate as a lien upon this land.

If Fowler had nothing more than an equitable interest in the lands in controversy, it follows, of course, that the complainants acquired nothing by the sheriff’s sale under which they claim title; for no principle is perhaps better settled in our jurisprudence than that a mere equity can not be sold on execution.

Had this, however, been a case of legal mortgage, it is perhaps doubtful whether these complainants would have acquired any title in consequence of the sheriff’s sale. Probably, however, as this sale was approved by the court issuing the execution, so long as that order of approval remained in full force and unreversed, the title would be held good. But we have no doubt that the sale was irregular and never Should have been approved; strip this transaction of the forms by which it is incumbered, and what was in fact sold under the execution of the complainants? What was appraised? Was it the land? Certainly not; but it was the interest which the judgment debtor had in the land; hence this interest was a right existing to redeem the land upon the payment ■of a certain sum of money; in other words, it was a mere equityv of redemption. This was all that was appraised, and was all that was sold under a pretended sale of the land itself. This is an interest which in chancery may be subjected to the payment of a judgment, and if a judgment creditor wishes to subject it, he .should seek his remedy in that court. 29 Ohio L. 84.

But if the judgment creditor prefers to take his execution and proceed against the lands of his debtor, he must be governed by the statute regulating the pale of this species of property. Section *10 of the act regulating judgments and executions provides, “that if execution be levied upon lands and tenements, the officer levying such execution shall call an inquest of three disinterested freeholders, who shall be resident within the county where the lands taken in execution are situate, and administer to them an oath or affirmation to appraise the lands so levied on; and the said freeholders shall return to the said officer, under their hands and seals, an estimate of the real value in money of said estate, upon actual view of the premises, forthwith after such view.” 29 Ohio L. 103. The word “ estate,” in the last clause of the section, is used in the same sense with the word “ land ” in the former. It is not the interest of the debtor in the land, but the land itself which is to be appraised ; and this land can not bo sold by the sheriff for a sum short of two-thirds of the appraised value. The sheriffs deed when executed, it is true, conveys nothing more than the interest of the judgment debtor, nor could the debtor himself convey anything beyond this. But it is the intention of the law that-two-thirds of the actual value of the land shall be received, otherwise it shall not be sold.

Appraisers have but one thing to examine and ascertain, and that is the “value ” of the land “in money.” With the title they have-no concern, with incumbrances they have no concern; and they can not with any more propriety take into consideration a.mortgage incumbrance, than they can the lien of a former judgment or the possibility of a claim for dower. Taking into consideration the one or the other of these, or anything else than the value of the property, they violate the spirit' of their oaths, and their appraisal is not in conformity with the law, and ought not to be sustained.

In the case under consideration, the appraisers did not return to the sheriff, under their hands and seals, the “real value in money” of the estate. They deducted from this “real value” a large sum of money supjiosed to be due from Eowler to Kirtland, and returned the balance as the value, and for two-thirds of this balance the land was sold. There is no doubt but they acted honestly, but it was under a misapprehension of the law.

Upon a view of the whole case, the court are of opinion that-the demurrer is well taken, and the bill will be dismissed with costs.


source: Caselaw Access Project

author: Judge Wood

license: Public Domain

text:
    *Aaron Valentine v. William S. Smith et al.
    When the plaintiff takes a rule upon the sheriff to bring in the body of the-defendant, he can not afterward take an assignment of the bail bond.
    Reserved in the county of Hamilton.
    This is a writ of certiorari, to reverse an order of the court of common pleas of Hamilton county, staying the proceedings in an action, of debt brought by the plaintiff against the defendants, as the appearance bail of ¥m. S. Smith, on a bail bond executed to the sheriff and assigned to the plaintiff.
    The facts are stated in the bill of exceptions. They are these: The original suit was commenced by capias on April 20, 1832, returnable to the August term following. The defendant was arrested, and on the 28th of May, with Lovell and Williams, as sureties, gave the bond in question. On the 25th of September, it being of the August term, the plaintiff obtained a rule on the sheriff to bring in the body of Smith, in three days, and filed a declaration de bene esse in the original action.
    The rule on the sheriff was not served, and after it was entered there was an understanding between the attorney for the plaintiff and the sheriff that it was waived, but no entry of such waiver was made on the journal.
    On June 29, 1833, the plaintiff took an assignment of the bail bond, and commenced a suit against the bail; and, at the appearance term, the court ordered the proceedings to be stayed, on filing special bail in the original action, and paying the costs in the suit against the bail. In this last suit, the plaintiff, on January 8, 1835, filed a declaration. In April following, special bail having been given in the original action, and the costs paid in the suit against the bail, in pursuance of the former order of the court, and Smith having surrendered himself in discharge of his special bail, and filed his plea in the original action, the order to stay proceedings was made final.
    The counsel for the plaintiff contend that this order is erroneous: 1. Because the court of common pleas had no authority to stay the proceedings; and 2. If the court had the authority, it should not have been made without requiring of the bail that judgment should be entered against them to stand as security for the plaintiff in the original action.
    Wright and Hodges, for the plaintiffs:
    On this state of facts we insist:
    1. That the proceedings in the suit, on the appearance bail *bdnd, could not, without the consent of the plaintiff, be stayed, after a term had been lost by plaintiff, at which he might have obtained judgment, in the original action ; and the loss of the time having accrued by the neglect of the defendant to enter special bail.
    2. That, at least, the proceedings could not be stayed without judgment being entered against the defendants in the appearance bail bond suit, as security for the plaintiff in the original action.
    The law regulating these proceedings in regard to bail, is found in 29 Ohio Laws, practice act, sections 22-26, inclusive.
    Section 24 provides that when plaintiff has lost a trial for want of special bail being put in, in due time, before proceedings on the appearance bail bond shall be stayed, court shall require that defendants consent that judgment be entered up against thorn for plaintiff’s security in the original action.
    This is our case, and as this was not required by the court, the order staying proceedings, without such judgment, was irregular.
    Section 23 specifies the terms on which proceedings on appearance bail bond may be stayed, when the plaintiff has not lost a trial for the want of special bail being filed in due time. Those terms are as follows:
    1. That defendant file and perfect special bail.
    2. That he pay the costs incurred by the assignment and proceedings in suit on appearance bail bond.
    3. Receiving a declaration pleading issuably in the original action, and taking short notice of trial. All these prerequisites must be complied with before the proceedings can be stayed when a term has not been lost by neglect to put in special bail.
    It will be observed, 29 Ohio L. 60, that special bail must be filed on the return day of the capias, or on the succeeding day. If not, proceedings may be had on the appearance bail bond.
    Declaration de bene esse was filed in the original action before November term, 1832, so that judgment might have been obtained or trial had at that term, if defendants had entered special bail. It is at August term, 1833, that defendant asks' proceedings stayed; the third term after the appearance term of the suit in the original action.
    3. In the third place, we insist that the terms on which the *court ordered the proceedings stayed, are not in compliance with the requisitions of the statute; but even the terms that were imposed, were not fully complied with till nearly two years after the order of court to stay proceedings. The order does not require the defendant to plead issuably to the original action, nor does it require that the defendants in the suit on the bail bond consent that judgment be entered against them on the bail bond for the plaintiff’s security, both of which requisitions are by the statute -as peremptory as the others imposed.
    For these reasons, we insist that the order to stay proceedings in tbebail bond suit is irregular, erroneous, andean not be sustained.
    The proceedings in regard to bail are regulated by statute, and the law is explicit and peremptory. By the neglect or refusal of •the defendant to enter special bail in the original action, the plaintiff lost several terms at which he might otherwise have had atrial and judgment. And we assume the position that no practice different from this, if any such prevail, can control our statute. We are not aware, however, of any practice differing from that for ¡which we here contend.
    That part of our practice act which relates to bail will found to have been taken nearly verbatim from different parts of Tidd’s Practice. We refer to volume 1 of that work, chapter 12, page 245, and passim. It will there appear that the practice contended for by us is fully sustained.
    But whatever may have been the English practice, it should be borne in mind that their practice is regulated by rules of court; ours is regulated by special law. ' .

    We vyill here dispose of one or two objections that have been, urged in the former discussions of this subject.
    It is said we insist on strict technicalities, in order to fix the bail in this case. If this is an objection that requires an answer, we will state that the principal defendant in the bail bond suit is indorser on the note on which the original suit is brought, who is probably released from his liability as indorser by strict technical-rules, and no injustice is worked by his being made liable in the bail bond suit by technicalities.
    It is said the rule taken on the sheriff to bring in the body of defendant Smith, was a waiver of our right to take an assignment •of appearance bail bond. The rule was never served on the sheriff, -or i-n any way acted on ; but if it had even been acted on, does the consequence follow? The English practice at present *is essentially like ours; but formerly under their practice an assignment of bail bond could not be taken till after a rule on the sheriff to bring in the body. See 1 Tidd, 245; also, 1 Seld. Prac. 190. Because this preliminary is no longer essential, can it follow that mere entry on the journal of a rule on the sheriff, and never served on him or any way acted on, discharges the appearance bail ? The proceeding is between the sheriff and the plaintiff; the bail have' nothing to do with it. The law gives the plaintiff the benefit of the bail bond if he will take it; of course he may waive his rule- and take it.
    Another objection that has been urged is, that it is the policy of the law to save bail, and prevent imprisonment for debt; and. that imprisonment for debt is nearly a dead letter in public opinion, which ought to be regarded. If this is a substantial objection, I must be pardoned for saying I do not feel the full force of it. . So long as the law remains upon the statute book as it is, we should be governed by it; but if it is condemned in the opinion of the public, it will soon give place to a different one. It is in this-way only, I take it, that the judicial tribunals become acquainted with public opinion.

    'Woodruri’, for the defendants:
    The errors assigned by plaintiff are:
    1. That the court of common pleas ordered the proceedings in said suit on the bail bond to be stayed, on giving bail and paying costs, without requiring judgment to be entered upon said suit as security.
    2. In this,, that said court ordered the proceedings in said suit to be stayed.
    In arriving at a conclusion in this case, three material questions present themselves:
    1. Is an order for an exonerator the subject of writ of error?
    2. Had not the court of common pleas power, under all the circumstances, to order the proceedings on the bail bond to be stayed as above set forth ?
    3. Did-not the plaintiff, by his own act, waive his right to proceed against the appearance bail ?
    As to the first question, it appears to me, both upon principle- and authority, that a writ of error does not, nor ought it to lie upon an order for an exonerator. In 9 Serg. & Rawle, 24, a-question is raised upon this very point.
    *The order of the common pleas, staying proceedings on the bail bond, is matter discretionary with the court, and often arises on a state of facts which do not and can not appear on the-record, as was no doubt the case in the present instance; and if the court do exercise the power, it ought to be presumed that it wa& properly exercised.

      It may have appeared to the common pleas that the plaintiff had not lost a trial.
    “Matters which would induce a court to stay proceedings on a bail bond constitute a subject of legal discretion, and not of error.” 2 Rawle, 198.
    An additional reason why the court ought not to entertain a writ of error on the order of the court entering an exonerator, arises from the impossibility of placing the parties in statu quo, in case the order should be reversed..
    It is a maxim of law that bail should bo viewed favorably', and that no act of the principal should operate prejudicially to the bail. Had no rule on the sheriff been resorted to at the August term, 1832, but an assignment of the bail bond been taken, the appearance bail would have been apprised that special bail was-called for; but by taking a rule on the sheriff, and then by a private understanding with him that it should be waived, was calculated to mislead the bail. To reverse the order made by the common pleas would be placing the bail, by an act over which they had no control, in a much worse condition than they were in before said order was made, and give the plaintiff an advantage which in justice he ought not to have.
    2. Had not the common pleas power to make the order they did ?‘
    It will be observed in the jmesent case that the bail bond was-not assigned until June 29, 1833. After the August term, 1832, to which the original writ was returnable, and suit was brought, upon it, to August term, 1833, at which term special bail was entered, and afterward in the same term, defendant in the original action surrenders himself in discharge of his bail, who are exonerated by order of court, and defendant committed to charge of sheriff.
    It is to be presumed that the plaintiff being in court, in the eye» of the law, ought to have objected to the surrender; as he did not, his silence ought to preclude'him from afterward pursuing-the bail, particularly when a declaration absolute and plea had been filed in the original action, as was the case in the present instance.
    -¡'It will also be observed that a rule was taken at the August term, 1832, on the sheriff to bring in the body of the defendant. .This rule operated as a waiver of special bail. It was a-subsisting rule on the minutes of the court, and never appears to» have been revoked or annulled. It was certainly, to say the least, calculated to throw the bail off their guard, and they had a right to suppose that the plaintiff intended to proceed against the sheriff under the rule; and whatever understanding may have existed between the sheriff and the plaintiff’s attorney, in relation to the rule being waived, as is suggested in the bill of exceptions, such agreement or understanding ought not to affect the rights of the bail, as the rule was subsisting by virtue of the plaintiff’s own act, and no stop had been taken by him to. bring the cause to trial; he, the plaintiff, can not be said to have lost a trial up to ’ August, 1833, and such, most probably, was the view taken by the ■common pleas.
    But, suppose the plaintiff had lost a trial, it was through his own neglect. See Coleman and Caine’s Cases, 62, where the court say that “ it is not a loss of trial alone which will prevent our interfering to relieve in these cases, but that loss must be without neglect on the part of the plaintiff, and must he occasioned by the -delay of the defendant, after bail is called for." If a different practice was allowed, a plaintiff would be tempted to wait a term and thus ensnare the bail.
    The court will always stay proceedings, if application be made ■for that purpose, on the return of the bail bond writ.

    In the case under consideration, application was made on the return of the bail bond writ. The order was made, special bail entered, and afterwards exonerated by a surrender of the principal at the same term. The principal, then, was not injured by this ■act, the bail had a right to surrender the body either before or after special bail given, and the body being surrendered, he had -the highest security that he could ask, and it was for the court of common pleas to judge whether the principal had lost a trial, for it is not every delay that can be said to occasion the loss of a trial, even though the term may have passed, in which, by the most •speedy course of law, a trial might have been had.
    3. Did not the plaintiff by his own act waive his right to proceed against the appearance bail?
    By section 10 of the practice act of this state, 29 Stat. 60, it is provided that if special bail be not put in and perfected in due time, the plaintiff may proceed on the bail bond, or *rule the sheriff to bring in the body of the defendant. By this provision <of the law, the plaintiff has his election, to proceed on the bail bond, if special bail is not put in, or to rule the sheriff, etc. If he makes his election he is bound by it, for by the very act he-tacitly consents to waive his remedy against the bail, and manifests his choice to proceed against the principal; he can not proceed against both. Upon this point I would refer to Beecher v. Summons and Andrews, 7 Johns. 119; 1 Archbold’s Prac. 80-92 ; 1 Com. Dig. 673; Swift’s Dig. 596; 2 S. & R. 421.
    No case, I believe, can be found where both remedies have been allowed.
    Inasmuch as the plaintiff, in the present instance, caused a rule-to be ordered against the sheriff, from that moment his election was determined ; nor could he afterward revoke it, especially upon an agreement between himself and the sheriff. The granting of' the rule was the act of the court, and it could not be nullified by the act of the plaintiff; so that the suggestion contained in the bill of exceptions in relation to this matter can have no weight as-against the discharge of the appearance bail.
    Another point which suggests itself, and may be worthy of consideration, is the fact, that a declaration was filed on October 18$ 1832, as it is said (de bene esse); whether there can be such a filing under our practice is very doubtful. If a declaration is filed debene esse, in what does it differ from one filed absolute? Eor what, purpose is it filed de bene esse? Is it to await the production of. the defendant’s body under a rule against the sheriff, or to await the filing of special bail, or for some other purpose? There is no reason or necessity, in my humble opinion, for such a filing under our practice, for the statute expressly provides that upon return-of service, the defendant may be declared against. The party, being therefore in court, upon the return of the capias served,, the filing of ihe declaration operated as a waiver of special bail.
    However-this may be, it appears to me that the plaintiff having • filed his declaration absolute, on March 30, 1835, receiving a plea, thereto, and taking judgment in the original action, after a delay on his part to proceed regularly against the bail bond, precludes» him from his remedy against them.
    STORBitand Spencer submitted an argument for defendants.
    *Wright and Hodges, in reply:
    Counsel commence with a mistake, which probably has misled them, as to the question of delay, through their whole argument.
    On the first page, it is stated that defendant, Smith, pleaded to-the original action “August 20, 1833, and on the same day judgment was rendered on submission to the court for the plaintiff.” 'The records show that he pleaded at February term, 1835, and that judgment was then rendered. By his refusal to pay costs, -according to the order of the court, at August term, 1833, and plead, he prevented our obtaining judgment till that term, but .still he complains of our delay.
    A word on the subject of diligence. The law makes it the duty of the defendant to enter special bail on the first or second day of the return term of the writ. It is not made the duty of the plaintiff to compel him to do so. The appearance bail also undertake that he shall do so. Should they not see that he does it, or do it for him? See Huguet v. Hallet, 1 Caine, 56.
    The appearance term was permitted to pass without special bail being entered, and in due time thereafter plaintiff files his declaration de bene esse. Could he do more ? If he had, he would have lost his recourse against appearance bail. See Candee v. Kelley, 7 Ohio, 2d part, 210, where this is fully sustained. Counsel seem to admit it in their argument. Sufficient forbearance was exercised toward defendant to enable him to enter special bail, without subjecting-him to cost or trouble on appearance bail bond.' He neglected it till plaintiff had lost a term, at which judgment •could have been had. Assignment was then taken. The delay, if any, was favorable to the defendants. There is no time .within which assignment shall be made and suit brought. See Graham’s Prac. 140 (N. Y.), which says this maybe done “at any time.” See People v. Wyatt, 6 East, 215. The cases cited by counsel refer to proceedings against sheriff, where different rules apply.
    After the order of August term, 1833, to which exceptions were filed, what course did defendants pursue? They neglected to comply fully with that order, and still complain of delay. Had the plaintiff any other alternative but to await their performance of those conditions, or proceed in the bond bail suit? If plaintiff had proceeded and taken judgment in the original suit without. insisting on a full compliance with the terms of the order, should we not now have been met with the argument that we *had, by so proceeding, waived our rights and lost the benefit of our exceptions to the order? Assuredly, and with justice, too. We are again compelled to proceed in the bail bond suit before we can get the term's of the order complied with. The entry of February term, 1835, is not an order; it is merely a certificate that “the terms are complied with.
    From the history of the case, as disclosed by the records, it is apparent that defendant, Smith, was resorting to every expedient for delay, both in putting in special bail and in complying with the order of August term, 1833, in order to arrange his affairs so that he might surrender himself in discharge of his bail, take the benefit of the insolvent law, and so pay off the debt.
    Another position assumed by the counsel is this: “ If the sheriff is ruled to bring in the body, an election is made by plaintiff, which confines him to that remedy exclusively.” In support of this position, reference is made to 1 Seldon’s Pr. 176; also, Brooke v. Stone, 1 Wils. 223. The point decided there is, that if plaintiff has taken an assignment of the bail bond, he shall not afterward have a rule on the sheriff to return the writ. Also, 7 Ohio, 210. The point there decided is, that after plaintiff had accepted a plea and taken a judgment against defendant, ho can not afterward sustain an action on the bail bond. The authorities cited by defendants’ counsel do not conflict with the positions maintained for the plaintiff.
   Judge Wood

delivered the opinion of the court:

In an action against appearance bail, the statute vests in the courts of this state a discretionary power,^intended to be sufficiently ample to effect all the purposes of substantial justice. The object of bail is to secure the defendant’s person to respond to the judgment. When this is accomplished the design of the law is, in ordinary cases, fulfilled. When no real injury has accrued, but a technical right of action only exists against the bail, it would be a reproach to the administration of justice if there was not power, somewhere, to stay or arrest the proceedings. For such a case the legislature have endeavored to provide, by giving to the court, when the proceeding is pending, full authority over it, so far as justice may require. This authority is derived from sections 22, 23, 24, and 25 of the “act to regulate the practice of the judicial courts.” 3 Chase’s Stat. 1676. Section 22 enacts “ that the proceedings on the bail bond may be set aside, if irregular, or stayed if regular, upon terms, in order *that a trial may be held in the original action.” Sec. 23. « That when the plaintiff, in the original action, has not lost a trial for want of special bail being filed in due time, the court, or judge, may stay the proceedings on the bail bond, upon putting-in and perfecting special bail, paying the costs incurred by the •assignment and prosecution of the bail bond, receiving a declaration in the original action, pleading issuably and taking short notice of trial.” Sec. 24. “That when the plaintiff has lost a trial, in the original action, for want of special bail being filed in due. time, it shall be the duty of the court, before the proceedings be stayed on the bail bond, further to require that the bail consent that judgment be entered against them, on the bail bond, for the-plaintiffs security; and, in such case, if the defendant fail in the original action, the bail shall be liable to immediate execution,” etc. The statute confers upon the courts of this state, powers similar to those which are exercised by the courts at Westminster.. 3 Chit. Pr. 389; 3 Har. Jur. 1984-1986; 1 Arch. Pr. 98. If a trial had been lost in the original action, because bail above had not been put in, the king’s bench would not stay the proceedings, in a similar case, without requiring the attachment against the sheriff to stand as a security. Arch. Pr. 99. If a trial had been lost, in this case, the court of common pleas should have required the bail to consent to the entry of judgment against them, on the bail bond, to stand as the plaintiff’s- security, before the proceedings were stayed. But had a trial been lost? If not, it is not contended there is anything erroneous in the order to stay. Besides, it is settled that the loss of trial must be without the lachesof the plaintiff, Barnes, 103; 3 B. & P. 221; or the court will not' impose on the bail the judgment against them as the condition to-stay. Whether a trial has been lost or not must be ascertained by the court; it is not to be inferred from the lapse of a term, or-several terms, when the plaintiff might have had judgment, had he been diligent, if special bail had been perfected. The plaintiff must show all the facts and circumstances, necessary to prove a. loss of trial, by affidavit. Rex v. Sheriff of Surrey, 5 Taunt. 606. The evidence on which the court of common pleas acted, is not. contained in the record. That court, undoubtedly, found from the testimony; that there had been no loss of trial, etc. It is our duty to presume such was their finding until the contrary appears.. The inference the law raises is, that every court does its duty *and does right; and he who would reverse a judicial proceeding must point out the error. The court of common pleas-acted on such evidence as was produced. That court was the judge of its weight, its credibility; and although its conclusion may have been different from what ours would have been, had we been called to decide on the same evidence, its decision was a subject of sound discretion in that court, and not liable to revision in ours. Indeed, it may well bo doubted, whether error will lie to the common pleas on an order to stay proceedings against bail. In King et al. v. Bank of Gettysburg, it was solemnly determined by the Supreme Court of Pennsylvania, that matters which would induce a court to stay proceedings on a bail bond, constituted a subject of legal discretion, and not of error. 2 Rawle, 198. I am not authorized by the court, however, to say that this point is determined. It was not deemed necessary to be settled in this case, as its decision could not vary the result.

But there is another and more satisfactory ground, perhaps, to sustain the order of the common pleas. The record shows that at the return term of the capias against the defendant, in the original action, the plaintiff obtained a rule against the sheriff, to bring in the body of Smith in three days. This rule was entered of record. The inquiry then arises, whether, after the entry of such rule, the plaintiff could take an assignment of the bail bond? If he could not, the court of common pleas was most clearly right, by virtue of its inherent power over its process and proceedings in similar cases, in staying the proceedings against the bail, on that ground alone.

We have not been able to find any adjudicated case directly in point. There are those, however, which bear a striking analogy. In Baker v. Simmons, impleaded with Andrews, the Supreme Court of New York determined that a plaintiff having elected to proceed on a bail bond to a judgment, and having charged the bail to the arrest and his principal in execution, could not be afterward permitted to waive those proceedings by filing common bail in the original suit, and proceeding to judgment therein.. That the remedies were inconsistent with each other, and both could not be pursued; that such a course would be oppressive. 7 Johns. 119. At Westminster, after taking an assignment of the bail bond, the plaintiff can not proceed against the sheriff;, but, the rule does not seem to hold e converso, for he may rule-the sheriff and then take an assignment of the bail bond. 1 Sold. *Pr. 176, 190; 1 Wil. 223. But the decision of this question must depend mainly on the construction of section 10 of the practice act. 3 Chase’s Stat. 1675. That section enacts, “ That if special bail be not put in and perfected in due time, the plaintiff may proceed on the bail bond, or, rule the sheriff to bring in the body of the defendant.” The language of this section is in th& alternative. The plaintiff may proceed on the bail bond, or, rule the sheriff. Can he do both? Such an inference seems to us to be excluded by •the language used. He may elect which of the alternatives he -will pursue, but when such election is made he is bound by it. 'The rule on the sheriff being entered of record is evidence of the ¡plaintiff’s election, and while it remains he can not take an assignment of the bail bond. It is said the rule was not served ; but ■that can make no difference, for the entry of the rule determines ¡the plaintiff’s election.

It is contended this was waived by a verbal understanding ; but ’-to this the bail were not parties, nor had they any knowledge of vthe fact. The entry of the rule was notice to all interested of the plaintiff’s election. The bail, seeing it, would rest satisfied they •could not be made liable on any future assignment of the bond to ¡the plaintiff, and would take no steps to indemnify themselves of ¡their principal. At all events, such rule could not be discharged ¡by a private, verbal agreement, unknown to any but the sheriff ,and the plaintiff.

In any point of light in which we have been able to view this • case, we think the judgment of the common pleas ought to be af¡firmed. We come, perhaps, more satisfactorily to that conclusion, ¡from the fact that it appears from the record, that the body of ¡Smith is still in the custody of the sheriff, to respond to the plaintiff’s judgment, and the object he had in view in commencing the (Original action by capias is fully attained.


author: *Judge Lane

text:
    *Isaac Walker v. The Mad River and Lake Erie Railroad Company.
    .AH incorporated companies for constructing roads or canals are subject to ' legal control in a proper case; yet chancery will not interpose such control in a controverted case of expediency of location within the proper points; nor will chancery, in such case, interpose upon the application of a person not otherwise affected or injured than by the actual location passing through his land.
    This cause was adjourned from the ’county of Seneca. It was a bill in chancery, and the bill stated that the defendants were a company incorporated to construct a railroad from Dayton to Springfield, thence to Urbana, thence to Bellefontaine, thence to or near Upper Sandusky, thence to or near Tiffin, thence to or near Lower Sandusky, thence to Sandusky, in Huron county. That the company had proceeded to lay out the road from Dayton to a point near Tifian ; but that from thence they had projected the line of the road directly across to its ultimate termination, without any regard to that provision of the act of incorporation, which requires it to be run near Lower Sandusky, which place is left at the distance of fifteen miles from the line. It is averred that no obstacle exists to a continuance of the road by Lower Sandusky, and that the line selected is to subserve the interests of a few individuals and to deprive the inhabitants of Lower Sandusky of all benefit of the road. That the complainant is the owner of lands situate on the present selected route, which is not more than one mile from the line that would pass by Lower San-dusky.
    The bill further charges improper practices by the defendants, in procuring an assessment, by a jury, of the damages which complainant’s land had sustained in consequence of the road, and prays an injunction against its construction. An injunction was granted in conformity with this prayer, and the case came up for hearing, on the defendant’s demurrer to the bill, before the court of common pleas of Seneca county. The bill was dismissed and an appeal taken to this court.
    Silliman and Oofeinbery, for complainant.
    Rawson, Boalt, Beecher, Smith and Chaplin, for defendants.
    The argument of counsel turned chiefly on the facts of the case comprehending the localities and character of the ground. Mr. Silliman cited Jerome v. Ross, 7 Johns. Ch. 315 ; Agar v. Regents Canal Company, Cooper’s Equity, 77; Shad v. Henderson, 2 Dow. 519; Bank of Chillicothe v. Town of Chillicothe, 7 Ohio, 2 pt. 35.
   *Judge Lane

delivered the opinion of the court:

The statute having provided a mode for estimating damages, in cases of this description, and thus given a legal remedy both for original action and for revision of it, before the courts of law, chancery has no jurisdiction upon that question.

The present claim for relief is not to' be sustained upon the mere ground that the corporation have transcended or abused their corporate powers. Such abuses are ordinarily to be corrected by proceedings in quo warranto, prosecuted by the government, in which the interposition of individuals is not countenanced.. 2 Johns. Ch. 371.

The great recent increase of private corporations has led courts of chancery into an enlarging jurisdiction over them, and it is now well settled that injunctions will be granted to prevent the abuse of their powers to the injury of others. These corporate powers are multifarious and of great extent. It has been justly said : “Nothing would be more pernicious than to hold that such large and extensive powers are not subject to any control. The corporation are not to be prevented from doing anything necessary to the prosecution of their undertaking; but are not to prosecute it so as to do unnecessary injury to others.” Coats v. Clarence Railroad Company, 1 Russell & Mylne, 181; S. C., 4 Eng. Cond. Ch. 379; 2 Story Eq. 206.

The cases which justify the interference of a court of chancery should be those of clear, incontestable, well-defined right. When acts requiring judgment, science, and professional skill are confided to the discretion of the officers of a corporation, the exercise of that discretion will not bo lightly disturbed.

In this case the complainant has sustained no injury except from the transit of the road through his land, an easement to •which all land in the state is subject; but which he claims to impose upon his neighbors’ land, because it lies- in the direct line from Tiffin to Lower Sandusky. The selection of a route for the the road necessarily involves, to some extent, a discretionary power. Where this power has been exercised, as in this case, within the appointed termini of the road, and within the general scope of the authority conferred on the corporation, this court will not assume to settle what degree of propinquity the line of location should bear to Lower Sandusky, especially at the instance of a stranger to that question.

Bill dismissed.


author: Judge Hitchcock

text:
    *Peter Rowland v. Joseph Rowland.
    Where the rightful owner is dispossessed of lands and kept out of possession, he can not maintain trespass for wrongs while thus out of possession, and his action for the original trespass may be barred by the statute of limitations.
    This case was reserved in the county of Richland, upon a motion for a new trial.
    The plaintiff, on October 30, 1832, commenced an action of trespass guare clausum fregit, in the court of common pleas, which’ came into this court by appeal.
    The declaration contains several counts, in all of which the trespass complained of is laid as having been committed in the month of April, 1826. In one count it is laid with a continuance.
    To this declaration the defendant pleaded the general issue, and gave notice that on the trial of the cause he would give evidence in bar of the action; that none of the several supposed trespasses complained of were committed within four years next preceding the commencement of the suit.
    Upon the trial of the cause to the jury, it was proven that in April or May, 1826, the defendant entered upon the premises and ousted the plaintiff of possession, and that the defendant continued1 in the exclusive possession until alter the commencement of this suit, when the plaintiff regained possession by an action of ejectment.
    The court instructed the jury that if they believed such to be the state of facts, the plaintiff’s right of action was barred by the statute of limitations, whereupon the jury returned a verdict for the defendant.'
    The plaintiff then moved for a new trial, assigning for cause:
    1. That the court mistook the law in the instructions to the jury.
    2. That the verdict was against the evidence.
    Mat, for plaintiff:
    An actual entry upon land is not necessary to perfect a title. 3 Ohio, 236, 237.
    A person having the legal title may maintain trespass against a wrong-doer, as the title draws after it the possession ; and the person having the legal title will be held to have the constructive possession, unless some other person is in the actual possession under color of title. 2 Johns. 22; 8 Ib. 220 ; 9 Ib. 147-149 ; 18 Ib. 40, 355.
    Although the trespass committed in 1826, may be barred by *the statute of limitations, yet the defendant, being in possession without color of title, every act by him committed down to the commencement of this suit, was a distinct trespass, for which he is liable, and, of course, upon these latter trespasses the statute does not operate. 4 Cowen, 329; 10 Wend. 639 ; 2 Hayw. 402 ; 2 N. C. 87.
    Burr, for defendant:
    A party must have the actual possession to enable him to maintain trespass. “Where an entry is followed by an ouster, the party can recover damages only for the mere trespass or entry; but if he make a re-entry, and lay his action with a continuando he may recover damages for the mesne profits as well as for the trespass.” 2 Johns. Cas. 27; Johns. 183.
   Judge Hitchcock

delivered the opinion of the court:

If the instructions given by the court to the jury were correct, there can be no pretense that the verdict in this case was against the evidence; on the contrary, it was in perfect conformity with that evidence. It is only necessary, therefore, to consider whether the court was mistaken as to the law of the case.

In order to maintain an action of trespass, quare clausum fregit, it is well settled that the plaintiff must bo in the actual or constructive possession of the premises upon which the trespass is committed at the time of the trespass. “Only the person who has the possession in fact of the real property to which an injury has been done, can maintain an action, quare clausum fregit; a general property not being, in the case of real property as it is in personal, sufficient to found this action upon.” The disseizee of land can not maintain an action of this nature for an injury done thereunto betwixt the time of the disseizin and his re-entry, for he does not, until his re-entry be made, regain the entry in fact of the land.” 6 Bac. Abr. 566; see also Bro. Trust. PI. 38, 305, 346; 2 Roll. Abr. 553; 2 Johns. Oas. 27; 12 Johns. 183. But it is not necessary that he should be in possession at the time of the commencement of the action. The trespass complained of may have been one by which he was actually disseized, and for that he may sue, although for any act done afterward he can not, until ho regains the possession. It would seem, however, that if the trespass be continued, and the disseizee first re-enter, he may lay his action with a continuando, and ^recover damage for the mesne profits, as well as for the first trespass. 2 Johns. Cas. 27. Or after a recovery in ejectment he may have his action for the mesne profits.

Proof of title, without proof of actual possession, is in general sufficient to put a defendant upon his defense, because the lega title draws after it the possession, as where lands are vacant the owner has in contemplation of law such possession that he may maintain trespass for an injury done to them. But if there be evidence of adverse possession, or of the possession of a tenant at will or for years, at the time of the trespass committed, the plaintiff must fail in his action. In the latter case, if the injury be such as to be prejudicial to the reversion, the lessor may have his remedy by an action on the case; but for the trespass merely the tenant alone can have an action. 6 Bac. Abr. 566, 567.

The cases quoted by the plaintiff’s counsel are mostly actions of ejectment, and are not analogous to the present case. We are aware that in the State of New York, and in some of the other states of the Union, it is a settled law that a defendant in ejectment can not protect himself under their statutes of limitation, unless he is in possession under color of title. In truth, such is, in substance, the provision of some of those statutes; but under our statute we hold the rule to be different.

In the case under consideration, the plaintiff was in possession of the premises until April or May, 1826, at which time the defendant committed a trespass, and disseized him of the lands* From that period until after the commencement of this suit the defendant remained in possession. For this injury the plaintiff had a right of action. It accrued in April or May, 1826. But for any subsequent act of the defendant he could not have an action in this form, because not in possession. By the act of February 25, 1824, for the limitation of actions, 22 Ohio L. 325, the law in force at the time this cause of action accrued, it is provided that actions of trespass upon property, real or personal, shall be brought within four years after the cause of action accrued, “ and not after.” This action was not commenced until October, 1832, more than six years after the cause of action ac* crued, and was, therefore, in the opinion of the court, barred by the statute of limitation.

The motion for a new trial is overruled, and the defendant may take judgment upon the verdict


author: Judge Lane

text:
    *Robert Pollard v. James Collier, Comm’r of Insolvents.
    Where the facts of a case, disclosed on the hearing, show no injury, but such as has resulted from the complainant’s own mismanagement in suit at law, chancery can afford no relief.
    This case was adjourned from the county of Greene. It was a bill in chancery to be relieved against a judgment at law, upon an insolvent petitioner’s bond. The facts, as they appeared upon the whole case, are these :
    In April, 1833, the complainant applied to the respondent, who was commissioner of insolvents for the county of Greene, and took the preliminary steps to obtain the benefit of the insolvent law. One of these preliminary steps was giving the bond upon which the judgment at law was obtained. At the April term of the court of common pleas, 1833, his petition came on for hearing, and was dismissed, because the petitioner had not complied with the law. In 'November, 1833, a suit was commenced against the complainant and his sureties on the insolvent bond. This suit came-, in due course of law, before the Supreme Court, in Greene county, where, in June term, 1836, a judgment was rendered for the plaintiff in that suit. In August, 1834, a second application was made, by complainant, for the benefit of the insolvent act, and, upon this application, in November, 1835, the insolvent certificate was issued by the court. .
    The bill in this case was filed in the Supreme Court in June, 1836, while the suit on the bond and the second application for relief were both pending and undetermined. The sureties in the bond were not parties complainant, nor was the original creditor, or any other creditor parties defendant. The bill prayed .an injunction and general relief. The defendant answered and detailed the facts of the case, as above set forth. Upon this bill and answer the cause was heard.

      Ellsbery and Smith, for complainant.
    Harlen, for defendant.
   Judge Lane

delivered the opinion of the court:

It is a satisfactory objection to granting relief on this bill, that it has no proper parties. One of- several obligors to a bond seeks relief against it! Such a bill must be brought by all the obligors as complainants, unless in a special case of collusion.

Passing this objection by, the complainant presents no case for relief. The cause for dismissing the petition does not appear *from the proceedings upon it. There is a suggestion that it was because no satisfactory account of losses was given. It certainly consisted in some non-compliance with the law. No error is imputed to the court, and, if such error occurred, it can not be corrected, in this manner, before this court. It would seem that the petitioner failed in obtaining relief, either because he mistook the amount or miscalculated the effects of his proofs. He presents, therefore, nothing but the common case of a failure for some fault of his own, which makes no case for equitable relief. 2 Ohio, 312. Bill dismissed.


author: Hitchcock, J.,

text:
    Samuel Biggerstaff and Mary his Wife, Calvin Luzen, Luther Luzen, and Susannah Luzen, by Jeremiah Everitt, their Guardian, v. Mary Loveland, Henry Loveland, and Clarinda Luzen.
    Under the soire facias mortgage law, in proceedings by the mortgagee to enforce bis debt against a decedent mortgagor’s lands, it is sufficient if the mortgagor’s personal representative alone was made defendant.
    The complainants in this case are the heirs at law of Calvin Luzen, late of Sandusky county, deceased, and the bill is filed to redeem certain land under a mortgage incumbrance, and which has also been sold for taxes.
    As the facts of the case are stated m the opinion of the court, ib is unnecessary to introduce them here.
    Hopkins, for complainants,
    cited American Chan. Dig. 233; Jeremy’s Equity, 183.
    Yates, for defendants,
    cited 1 Ohio, 157; 4 Ohio, 495 ; 2 Cowen, 195; Wright, 248; 2 Tidd’s Pr. 1007; 1 Term, 267; 3 Term, 46; Cro. Eliz. 896.
   Hitchcock, J.,

delivered the opinion of the court:

The facts of this case, so far as it is necessary to state the same for the purpose of understanding the points decided, are as follows : On December 4, 1824, Calvin Luzen, father of the complainants, being indebted to one Sheldon Chapin, of Buffalo, in the State of New York, in the sum of eighty dollars, to secure payment, executed to Chapin a mortgage upon lot No. 88, in the town of Lower Sandusky. Before payment was made, Calvin Luzen died, leaving the complainants his heirs at law, and the defendant, Clarinda Luzen, his widow, and *Samuel Treat was appointed his administrator. On November 4, 1829, Chapin commenced a proceeding by scire facias in the court of common pleas of Sandusky county, to subject the mortgaged premises to sale, in order to satisfy his debt. In this case, Treat, administrator of Luzen, was sole defendant. In due course of time, judgment was rendered in this case, and the mortgaged premises sold at sheriff’s sale to Joseph Loveland; the proceedings in the sale were approved by the court, and a deed executed on May 19, 1832.

In December, 1831, the taxes upon said lot being in arrear, the same was sold at tax sale to Henry Loveland, one of the defendants, and pursuant to this sale a deed was executed to him by the auditor of the county, on the 15th day of the same month of December.

Joseph Loveland died in 1834, leaving the defendants, Mary Loveland, and Henry Loveland, together with one Aaron Love-land, his children and heirs at law. On the 10th of February, after the death of their father, Henry and Aaron Loveland conveyed all their interest in the lot number 88 to the defendant Mary, since which time she has been in possession, receiving the rents and profits.

The prayer of the bill is, that the complainants may be let in to redeem the land from the effect of the mortgage, and also of the tax sale, and for general relief.

So far as respects the sale for taxes, although we are not prepared to say there is no case in which a court of chancery can interfere, yet, in a case like the present, the law has made ample provision for the redemption of land so sold. And where there is specific relief jxrovided by statute, it would be extraordinary for a court of chancery to interfere and grant similar relief. Its jurisdiction extends only to cases where there is not complete and adequate remedy at law; not to cases where the legal remedy is plain, adequate, specific, and complete. On this ground, then, if there were no other difficulties in the way of the complainants, this bill must be dismissed. For, from aught that appears in the case, the defendant, Mary Loveland, has a perfect legal title to the premises in controversy, in virtue of the tax sale in 1831.

But how is it with respect to the mortgage? The complainants wish to redeem, but they have not made the original mortgagee a party to the suit, nor have they brought any money into court. These defendants are not the assignees of Chapin, the *mortgageo. They do not claim in his rights, but they claim as purchasers at sheriff’s sale.. In such case under our law, the purchaser acquires not the right or interest of the judgment creditor, but of the judgment debtor. If', as is contended by the plaintiffs, they were no parties to the judgment in scire facias, if their rights were not concluded thereby, then their title to the lands in controversy remains good as-to all the world, except as to the mortgagee, and they would, under the circumstances of this case, have plain and adequate remedy at law by action of ejectment.

But to decide the case upon this ground would not settle the controversy between these parties.

This controversy grows out of the question whether the complainants, the heirs of Luzon, are, by the proceedings in scire facias, divested of the equity of redemption, or of their interest in this lot of land, they not having been parties to the record. This is the question which has been argued by counsel, and although it would more properly have arisen in an action of ejectment for the recovery of the possession of the land, still we think it advisable to dispose of it in the present case.

As a general rule, none but parties and privies are bound by a judgment. And upon ordinary judgments against personal representatives, the lands of decedents can not be seized in execution, Still there can be no doubt that it would be competent for the legislature to change this rule of law, and probably there would be no great inconvenience resulting from such change, except that it might in some cases interfere with our most equitable rule respecting the distribution of a deceased person’s estate among his creditors. It is supposed by the counsel for the defendants, that by the act of January 2, 1810, “providing for the recovery of money secured by mortgage,” this rule was so far changed, that when under the provisions of that statute a judgment was recovered against the personal representative of a mortgagor, the mortgaged premises might be seized and sold on execution. 1 Chase’s Stat. 645. This statute is now repealed, and it is to be hoped that the proceedings which have been had under it will not be lightly interfered with. If it were a new act, one under which there had been but little practice, and were it now for the first time submitted to the court for construction, probably we should not entirely concur with the counsel for the defendant in his argument. The first section provides that if the conditions of the mortgage are not complied with, the mortgagee, *his heirs, executors, administrators, or assigns may “sue out a writ of scire facias against the mortgagor, or mortgagors, or his, her, or their heirs, executors, or administrators,” etc. Generally where a suit is authorized by statute to be commenced against the “ heirs, executors, or administrators,” of a deceased person, we should conclude that the suit must be brought against oné or the other, according to the nature of the particular cause of action. If it was one in which the heirs were bound, or had a peculiar interest, the suit should be brought against them, otherwise against the executor or administrator. If, however, we were to adopt this principle in the construction of this statute, no difficulty would be removed. The debt secured by a mortgage may be a mere simple contract debt, in which the heirs have no peculiar interest, although they have an interest in the security given for that debt.

By the second section of the act, it is provided that after judgment, the plaintiff might have an execution of levari facias, in virtue of which the mortgaged premises might be levied upon and sold, “under the same regulation that lands and tenements are or may be by law disposed of, for the satisfaction of judgments.” But upon this judgment, although the mortgaged promises were entirely insufficient to satisfy the debt, no other property could be seized in execution, and so far the proceedings are in the nature of proceedings in rem. But in the third section of the act it is provided, “thatif the'mortgaged premises so taken in execution be not sufficient to satisfy said judgment, then the residue of said judgment so remaining unsatisfied, shall be deemed and taken to be a debt of record, for which the plaintiff or plaintiffs may issue a writ or writs of scire facias, and proceed therein to judgment and. execution, as in other cases.” The object of the statute was to give a summary remedy to the mortgagee, by enabling him in one action to recover or liquidate his debt, and to subject the landed security to the satisfaction of it. If the suit was against the representatives of the mortgagee, so far as the liquidation of the debt is concerned, it would seem to bo proper that the personal representatives should be parties; so far as the lands were to. be affected, it would be equally proper that the real representatives, the heirs, should be parties. Still the statute is in the alternative. The mortgagee is authorized to “ sue out a writ of scire facias against the said mortgagor or mortgagors, or his, her, or their heirs, executors, or administrators.”

There can be no doubt that under this act the mortgagee might ^prosecute his scire facias against the personal representative of his mortgagor. He is expressly authorized to do it. He has done it in this case. What would be the consequence, to hold with the counsel for the plaintiffs, that upon the judgment rendered, no execution issued could be levied on the land mortgaged? It would bo to decide that the mortgaged premises were in effect released from liability for the debt. For it has been holden that a judgment upon the scire facias extinguishes the bond, bill, note, or other evidence of the original debt. 1 Ohio, 158.

Will it be said that, notwithstanding this judgment, the mortgagor may resort to a court of chancery and foreclose the mortgage? It was for a long time matter of doubt during the existence of the scire facias law, whether a bill for foreclosure could be sustained. The court were very much divided upon the subject, and this division of opinion continued until the decision of the anonymous case, reported in 1 Ohio, 253. It must be recollected, however, that this scire facias law under which this suit was prosecuted, although enacted in 1810, contained no new principle, then for the first time introduced into our system. It was merely a compilation or continuation of former enactments. The principle was first introduced in 1795, in a law adopted by the governor and judges of the territory from the statutes of Pennsylvania. At that time there could be no bill of foreclosure, for there was no court of chancery, or court having chancery jurisdiction in the territory. 1 Chase’s Stab 138. By the ordinance for the government of the territory, of July 13, 1787, the jurisdiction of the court, therein provided for, was limited to a common law jurisdiction. 1 Chase’s Stat. 67. And it is believed that there was no court within the territory possessing chancery jurisdiction until after the adoption of the state constitution. In seeking for the meaning and intention of the legislature, we must bear it in mind that there was no way by which a mortgagee could, at the time the principle was introduced, directly subject mortgaged premises to sale in satisfaction of his debt. He might have his action of ejectment, and recover the property, but the equity of redemption would still remain. He might have his action for the recovery of the debt itself, and subject the land to sale as in other cases; but by this course of proceeding he might be in danger of losing his lion, for he would be in no better situation than other judgment creditors. But by scire facias he might directly subject the land to sale, and when sold, the purchaser would take it, discharged of the equity of redemption. Had *there been a court exercising chancery jurisdiction, it is believed that this law would never have been adopted; but, being adopted, it was continued in force long after our courts had chancery jurisdiction, long after the reason which led to its adoption had ceased.

Taking all these circumstances into consideration, in connection with the terms of the law itself, it seems to me to be at least extremely doubtful, whether, were we now, for the first time, called upon to give a construction to it so far as the particular question raised in this ease is concerned, we could say that these defendants had no title, or that the equity of redemption was not foreclosed. But it must be remembered that this law, introduced at an early period, is no longer a part of our system; it has been repealed; and it is our duty to seek rather for the construction given it by the courts of former days than to give it a construction of our own. It is the contemporaneous construction that must govern. And we believe this to have been that construction, that where a scire facias was sued out after the death of the mortgagee, it might be sued out, according to the words of the act, against either the executor or administrator, or against the heir, according to circumstances. If there was a personal representative, the suit must be commenced against him ; if not, then against the real representative. Such was the practice under the act, and it would be followed by fearful consequences to hold it to be wrong.

Such being oui' opinion, we hold that by the sheriff’s sale these complainants were divested of all interest in the premises. The equity of redemption must be foreclosed.

The bill must therefore be dismissed, with costs.


text:
    Nathaniel Dustin v. David Newcomer.
    When a vendor has a title, and refuses to convey, or when he disables himself from conveying by parting with the title, the rule of damages to he enforced in equity, is the value when conveyance ought to have been made-
    If the contract he to pay upon conveyance, and the vendee make no actual tender of the money, he can not have costs.
    This case was adjourned from the county of Wood. It was a bill in chancery for the specific performance of the following contract. :
    “ This agreement witnesseth, that David Newcomer has this day sold to John C. Spink in-lot number 332, in the town of Perrysburgh, Wood county, Ohio, for fifteen dollars. And the said Newcomer binds himself, his heirs and assig ns, to make, execute, and deliver a good warranty deed in fee simple, for the *lot aforesaid, on or before the first day of August next. And the said Spink, for his part, agrees to pay the said David Newcomer fifteen dollars, on the delivery of the deed aforesaid.
    (Signed,) J. c. spink,

      June 15, 1833. david newcomer.
    On July 1, 1833, Spink assigned this contract to Scott for sixty dollars. It was assigned by Scott to the complainant, February 8, 1834, for one hundred dollars. The suit was commenced in March, 1835, and came on for hearing in July, 1836, when, it being shown, that the defendant had parted with the title so as to be unable to convey, the court referred it to a master commissioner to report the value of the property. The master’s inquiry was made in July, 1837. From his report and the testimony, it appears that the value of the lot, August, 1833, was forty dollars; July, 1836, five or six hundred dollars. In July, 1837, the value was between two hundred and four hundred and fifty dollars.

      Coeeinbery, for complainant.
    McLaughlin, for defendant.
   Judge Lane

delivered the opinion of the court:

Between these parties time was not of the essence of the contract, but it should have been performed on the first of August. The first act should have been taken by the defendant, by tendering the deed, by which he would have been entitled to the purchase money. Accordingly, the decree of July, 1836, finds the equity with the complainant, and directs the inquiry of the value. The case was reserved to adopt the proper rule of compensation in equity, where the defendant to a bill for specific performance is unable to make a title.

The rule seems settled, in the cases cited in the note below, that where a vendor, having title, refuses, or puts it beyond his power to convey, the proper rule of compensation is the value of the land at the time the contract should have been performed. This is shown to have been forty dollars, from which the purchase money, fifteen dollars, is to be deducted, leaving twenty-five dollars the amount for which the decree may be taken.

In eases like the present, where a deed is contracted to be delivered and the purchase money paid at the same time, it is a rule of the court to regard such covenants as dependent, and by *the English practice neither party can enforce without making his part of the agreement a condition precedent. Sug. Tend. 245, and cases cited. This rule is strictly adhered to by our courts in cases at law. 6 Ohio, 312. But a practice has incautiously, and perhaps improperly, crept into our chancery proceedings, under which suits for a specific performance are entertained upon an offer to perform without any actual tender of the purchase money, but in suck cases the complainant takes his decree without costs.

Decree accordingly.

Note. — The court are indebted to a learned friend for the following collection of authorities, upon the important questions decided in the foregoing case. ■ t

"What damages shall the purchaser of real estate recover, in an action against the seller for non-performance of the contract?

1. Where the vendor has made a sale under the belief that he had a title, and it is found that he can not make title, the consideration money paid and interest, with expense of examination of title, can alone be recovered. 1 Sug. Tend., paging at bottom, 235, 237. (In State Lib.)

2. But if the vendor, under the expectation that he can get in the title, agrees to sell and convey, and is disappointed so that he cstn not convey, ha is liable in damages (though he acted in good faith) beyond the consideration money, etc. The vendee shall recover for the loss he may have sustained by not having the contract carried into effect. 13 Eng. L. 100 ; 6 B. & Cress. 31 j 21 Eng. O. L. 102; 10 B. & Cress. 416.

3. Where the vendor neglects or refuses to convey, having title, the proper measure of damages is not the consideration money paid, etc.; hut the value of the land at the time of the breach, the rule being the same in relation to real and personal property. Hopkins v. Lee, 6 Wheat. 109; Wells v. Arbethny, 5 Conn. 222; and see 2 Murphey, (N. C.) 347; Cannell v. McClean, 6 Harris & Johns., (Md.) 297, (in this case the court go into the reasons); Hopkins v. Yowell, 5 Yerger (Tenn.) 305.

In Kentucky the law is different. The consideration money and interest seems to he the criterion of damages, and will not he departed from unless-the vendor has been guilty of fraud. If the vendor has been guilty of fraud, he is responsible for the value of the land at the time the covenant should have been performed. Rutledge v. Lawrence, 1 Marsh. 396; Goff v. Hawks, 5 J. J. Marsh, 341; Davis v. Lewis, 4 Bibb, 456; Seamore v. Harlan’s Heirs, 3 Dana, 410; Combs v. Tarlton’s Adm'r, 2 Dana, 464. Eraud in such cases consists in general in the sale of land to which the vendor knew that he had no title. 4 Bibb, 457; Gerault v. Anderson, 2 Bibb, 543; McConnell’s Heirs v. Dunlap’s Devisees, Hardin, 41.

In an action of this kind, questions in relation to rents and profits, improvements made by vendor, waste, etc., are said to be too complicated for a. jury, and must be settled in chancery. Combs v. Tarlton’s Adm’r, 2 Dana, 464, cited above. — J. R.


text:
    *John Welsh et al. v. Simon Perkins et al.
    Taxes accumulating upon a decedent’s real estate, which the personal representative has no funds to pay, are properly debts for the payment of which the lands of the decedent may he ordered to sale.
    Reserved in the county of Geauga.
    The bill states that the complainants are the only surviving heirs at law of Jacob Welsh, late of the county of Geauga. That in October, 1830, Thomas D. Webb, one of the defendants, was appointed administrator on the estate of said Jacob, who accepted the trust, and in the month of November following, applied to Perkins to loan about two hundred dollars, for the purpose of enabling him to pay the taxes then due on the real estate of the intestate. Perkins agreed to advance the money and receive the /note of Webb, on interest, as security, which was accordingly done, .and it was also agreed that the administrator should present his petition to the next court of common pleas, for leave to sell a certain tract of land in the county of Portage, near the village of Akron, and should sell the same for cash in hand. The bill states the order for the sale was obtained, and the sale made in pursuance of such agreement. That at the sale, Webb stated to those present, that no credit could be given for any portion of the purchase money, and by reason of such statement, the land was struck off to one Eliakim Crosby, who is also a defendant, for less than ■two-thirds the appraisal, and but a small proportion of the real •value thereof. That this land, by reason of its proximity to the canal and the flourishing village of Akron, its hydraulic power and favorable position, was of great value and rapidly increasing, and was nearly sacrificed by such sale, while large tracts of land in the county of Geauga, belonging to the estate, might have been •sold, and which would not have risen in value in the same relative proportion as that disposed of, and which should have been left by the administrator for the benefit of the estate and the complainants.
    The bill states, that it has been usual for administrators to sell land on a credit, and that if these lands had been offered on a reasonable credit, a much larger sum would have been obtained. The complainants further state, that by reason of the agreement with Perkins, and the sale of the Akron lands, being so made for cash, the sale is a nullity, and, with the subsequent confirmation 'by the court, and deed of the administrator, does not divest the complainants of their title and convey it to the purchaser.
    The bill also states, that Crosby either purchased as the agent of Perkins, and for him, or for the joint benefit of both himself *and Perkins, and with full knowledge of the agreement between Perkins and Webb. The bill prays that Crosby may be decreed to bring into court, and give up to be canceled, his deed from the administrator; and, if he has conveyed any part of it to Perkins, that such conveyance may also be annulled, and for other relief.
    The defendants have all answered the bill. Webb admits the loan of Perkins of one hundred and eighty dollars, to pay the taxes, which he says had been due for two years, on the land of the. estate, and that he repaid the loan with interest, in September, 1831. He states that the lands were advertised for sale; that he had no funds of the estate; that there was not time to obtain an order of court, as no time would intervene, before the land would have been sold for the taxes. That he had not money of his own; -that he could not obtain it at the banks, and that Perkins, of whom alone it was to be procured, advanced it, on condition, that he would include the Akron lands in* the petition, and sell for ■cash. Webb admits filing the petition for the sale, and that he advertised the land, in which advertisement he stated the terms would be cash, and that he sold the land, as set forth in the bill to Crosby; that it was unimproved, and he sold it for more than one-half, and he thinks for more than two-thirds its appraised value; that he gave Crosby no notice of the agreement with Perkins; that he offered- other lands, at the same time, on a credit, but could get no bid for them. He states that Butler, one of the complainants, informed him the heirs wished the lands out of the county of Geauga first sold, and that he agreed to attend the sale, but, for some reason, did not do so.
    Perkins admits the agreement, as stated by Webb; that in making it, he was influenced by a belief that this land would sell, and his money be refunded; and that, if no other person should bid, he would. He denies that, there was any understanding, directly or indirectly, that the land should be sold to him, or any other person, for his use; nor did he expect to buy it, unless by paying more than any other person would. He does not know that any person was present for the purpose of bidding, .and was deterred by the terms of sale; and he thinks it made 'but a little difference in the amount obtained whether it was sold for cash or on a credit. He denies any intention_to defraud the complainants, or any other person. He admits the land was worth more than it sold for; but can not say what it was'worth then, or at this time. In his amended answer, Perkins denies .any interest in this purchase by Crosby, or in any other lands in ^the vicinity, with Crosby, until December, 1831, when he purchased of Crosby an undivided third part of the Welsh tract.
    Crosby, in his answer, denies any knowledge of the agreement between Webb and Perkins, or that he ever heard of it, until after his purchase. He admits the sale, and thinks the administrator endeavored to sell the land to the best advantage, and ho believes the sale was legal, and thinks he paid more than half the appraised value, and that the appraisal was a fair one. He denies-that he purchased for any one but himself; that he paid with his own money; but admits he has conveyed an interest to Perkins, in pursuance of an agreement, made since his purchase, and not before. To these answers, there was a replication and a great numberi of depositions Submitted by the complainants; but, principally, in relation to the value of the land, at the time, and after the sale, and did not materially vary the aspect of the case, as presented by the answers of the defendants.
    Perkins and Osborn, for complainants.
    R. Hitchcook, for respondents.
   Judge Wood

delivered the opinion of the court, as follows:

From the present value of the property in dispute, this case is of exciting .interest to the parties, and we have endeavored to give it a thorough and deliberate examination. The complainants-are the heirs at law of the decedent, and seek to set aside the sale, on the ground that it is opposed to public policy, and that Crosby purchased, as the agent of Perkins, or with full knowledge of the agreement between him and Webb. Though not disclosed in the bill, another reason is also presented in the argument of counsel, and urged with distinguished zeal, and attempted to be sustained with an array of authority, that the administrator is not chargeable with the taxes upon real estate, and has no power to-sell the land for their payment. We shall examine each of these positions in its order, as briefly as its nature and our duty will permit. Should we trespass beyond ordinary limits, an apology must be found,in the endeavor to satisfy the complainants, with the reasons on which our conclusions are built.

It is insinuated in the argument, that some of these respondents intended fraud in fact. That position, we apprehend, may at once be abandoned, for there is not one item of evidence, in the case, that leans, in even a remote degree, to its support. The lands sold were, at the time, well sold. They sold for as much as *land, in August, 1831, would ordinarily sell for, for cash in hand, more than one-half their appraised value; and what more could any reasonable man expect? The inquiry, then, as to fraud, . in fact being dismissed, it remains to be settled, in the next place, whether the agreement between Webb and Perkins is against sound policy and void ? We have seen, by the answers of these defendants, what this contract was, and it is necessary to keep in view all the peculiar circumstances under which it was made, and more especially the fact that it not only appears, from the nature of the transaction itself, and the character in which Webb was acting, but is most indubitably proved, that he had not one particle of interest in the sale, which, it is claimed, resulted from his agreement with Perkins. There is also another feature in the case, which a chancellor, sitting in a matter of conscience, to do right and repress wrong, should, by no means, overlook: that Butler, one of the heirs, and the active one who managed for the whole, requested that this very land should be sold by the administrator. This is inferable, most clearly, from the evidence that he desired land sold out of the county- of Geauga, and agreed to attend the sale of this very property. The administrator, when he came into the office, found the land advertised for the taxes, and to save them, as he supposed, from sacrifice, the arrangement with Perkins was made. Perkins was the only source from whence the money could be obtained. He could advance it, but required, in return, that the administrator should proceed, with diligence, to raise it for him again from the estate. He knew this land would sell; he required that it should be offered, and that the terms should be cash. Was there either moral or legal iniquity in this ? It is said, if .administrators may make any arrangement by which a sale may be influenced, heirs may be defrauded, and it is, therefore, prohibited. We apprehend the rule is not thus extensive; that it is limited to those cases in which the administrator has an interest, or may have an interest, and then the law refuses to trust him to make any contract for his own benefit in relation to the property of the cestuy que trust. Such are the numerous cases .cited, and for this reason, that his interest interferes with his duty. Bmptor emit quam minima potest, venditor vendit quam máximo potest. The counsel for the complainants rely much on the case of Davoue v. Fanning, 2 Johns. Ch. 252. No one entertains .a higher opinion of the learned chancellor who delivered the opinion in that case. He has probably done more *to build up a system of American chancery law than any other man living. His sound discrimination and persevering industry are worthy of all praise. The opinion, in that case, is believed to be law by us j, and it is sustained by a very learned and elaborate analysis of all the ancient and modern decisions to the time it was made. The-analogy, however, between the two cases is not so easily perceived. Fanning was the executor of Davoue, and by an agreement, suffered the property to be purchased in for his wife, and executed a. deed in pursuance of the sale, in trust, for her. The chancellor-remarks : “ Whether a trustee buys in for himself or his wife, the temptation to abuse is nearly the same. His interest interferes with his duty.” And farther, he says : “ The ease, therefore, falls clearly within the spirit of the principle, that if a trustee, acting for-others, sells an estate, and himself becomes the purchaser, or interested in the purchase, the cestuy que trust is entitled to come here, as of course, and set aside the purchase, and have the property re-exposed to sale.” Had the agreement with Perkins been for the benefit of Webb or his wife, the sale must have been set aside; but instead of that, this sale was solely intended by the administrator for the benefit of the complainants. The case of Thompson v. Davies, 13 Johns. 112, is also cited. That was a case-between creditors, who had entered into an arrangement to bid off a debtor’s property, one to purchase the personalty and the other the realty, and pay to his confederate a certain sum of money. It was held by the court that such an agreement was void. That although a creditor was not bound to bid, yet he was at liberty to-do so, and if he suffered himself to be bought off, or silenced, in a way which might prevent a fair competition, or if he abstained from bidding, upon concert, under the promise of a benefit, it was-the very evil the law intended to repress. This principle is, we-think, at the present day universally admitted. It is salutary and necessary to repress fraud and circumvention. 6 Term, 642. In the case at bar there was no agreement to sell to any one, but everything was left open to fair and honest competition. If Perkins bought, he expected to pay more than others. Such is the evidence furnished by his answer. The case of Rogers v. Rogers, Hopkins, 515, was. decided strictly on the same principle with Davoue v. Fanning. An executor took the assignment of a judgment agains this testator, and caused all his landato be sold on execution, and himself became the purchaser. This sale was set aside. The chancellor observed : “ If the executor *had not accepted the trust, he would have been at liberty to pursue all his remedies for the satisfaction of the judgment ; but where he accepted a trust, which imposed on him the duty of taking every legal and prudent measure to pay the debts of Thos. Eogers, from the personal and real estate, he was no longer at liberty to exert his rights as a creditor in opposition to his duties as executor.” So far as the rights of the executor, as a creditor, were in conflict with his duties as executor, his rights were yielded to his duties. Again, he says, “ a trustee can gain no advantage to himself to the detriment of those for whom he bolds the trust. The most frequent application of this doctrine is in cases in which the trustee purchases the subject of his trust. In such cases equity will vacate the sale. The objects of the rule are to secure fidelity on the part of the trustee and preserve the interests of those whose rights are confided to his care. Mills v. Goodsell, 5 Conn. 475, merely recognizes the same principle, and declares a purchase by a deputy sheriff, on a sale made by him, void not only in equity but at law. Such is undoubtedly the rule in Ohio. Neither a sheriff can purchase of himself, nor an appraiser buy the property on which he has been called to affix a value, and for the same salutary reason, his interest would conflict with his duty. 3 Chase’s Stat. 1713, see. 18. In Hervish v. Grow and Brown, 5 Wend. 579, the administrators had executed a bond by which they covenanted to sell certain real estate of their intestate, as soon as they could obtain the surrogate’s order, for five hundred and fifty-five dollars, and, in default, to pay one hundred dollars, as liquidated damages, and the action was brought to recover the penalty; and the same principle, which runs through all the cases, was repeated by the chief justice. He says, “administrators must sell at auction; they can sell in no other manner. The highest bidder must have the property, and to him the administrators must convey. Suppose a bidder at the auction were to offer six hundred dollars for this property, which the administrators have agreed to sell for five hundred and fifty-five dollars, they must forfeit and pay out of their own pockets one hundred dollars, according to this contract. They have every inducement, therefore, to discourage bidding, whereas their duty requires them to sell at the highest price. Such a contract is highly improper and a violation of the duty of the administrators. It is, of course, contrary to the policy of the statute and void.” We have examined a great many other cases not cited by counsel. Davidson v. Gardner, decided nearly a century ago, in which Lord Hardwick

said, “ the court looks with jealous eye *at the trustee purchasing of the cestuy que trust.” Sug. Law of Tendors, 436; Whelpdale v. Cockson, before the same chancellor, in 1747. It was a bill by a creditor, against the executor, to set aside a sale. Lord Hardwick said, “he would not suffer the sale to stand. He know the dangerous consequence; and it was not enough for the trustee to say you can not prove any fraud, for it is in his own power to conceal it.” We do not know that it is necessary to pursue the cases in the books farther. The rule, in all the cases cited, receives our warmest approbation as a well-settled salutary principle in equity, that where interest and duty conflict, the former must yield, and give place to the latter. But no case can, we think, be found like this, in which the sale has been set aside as against the policy of the laws. What has the administrator done? He preserved the residue of the estate by paying the taxes which, were neglected by the complainants. It is true, one witness testifies he should have discharged them if Webb had not; but this was unknown to Webb. What, then, is this agreement, “ by which heirs may be defrauded?” An agreement by a trustee, in which he had not a shadow of interest, to do what the statute in positive terms authorizes. 3 Chase’s Stat. 1782. Unimproved lands may be sold for one-half their appraised value. The administrator may sell to the best advantage, in his own discretion, for cash or credit, and though the administrator is seldom interfered with, as to the land he shall sell, the selection is, in fact, the act of the court, for the court orders and directs the sale of the specific tracts. This land was sold, in all things, according to the statutory requisitions. It was sold at auction, to the highest bidder, for more than one-half its appraised .value; and in the discretion of the administrator, to the best advantage, for cash; the heirs knew of the sale, desired this land to be sold, and the active complainants agreed to attend the sale. The avails of the sale were immediately paid in discharge of the debt created, by which the taxes were released; and, after all this, it would appear to us that an attempt to avoid this sale, by the complainants, is deserving of severe reprehension.

But if we are wrong in the view we have taken above, this sale can not be disturbed. Crosby purchased without any knowledge of the arrangement between Perkins and Webb. He bought the whole property. In the absence of such knowledge he is protected by the order of the court directing the sale. He was not bound to go behind it. The order was sufficient for him. . He '^has conveyed á. part of the land to Harduty and another part to Perkins, both <}f whom are protected by Crosby’s whnt of knowledge. 3 Ohio, 561, 562; 7 Ohio, 200 ; 1 Johns. Ch. 219.

The remaining point is, as to the power of the administrator to pay the taxes on the real estate of the intestate. This is denied by the complainants, but neither the case cited from 4 Mass. 358» nor 6 Ohio, 238, sustain them. In 4 Mass., it is determined that the administrator is not, as such, entitled to the possession of the decedent’s lands. This is doubtless true. By the common law, ■on the death of the ancestor, the lands descend to the heir, and the power of the administrator over them is entirely derived from the statute.

It can not be doubted, we think, but what the taxes may be -considered as debts against the estate. Such debts the statute -authorizes the administrator to pay. In case of a deficiency of personal assets, he may sell the lands for that purpose. May he not, then, in an emergency such as this case presents, when he ■came into the trust, create a debt against the estate, by loaning money to prevent its sacrifice, and sell the real estate, under an ■order of court, for its discharge? We think he may. The case in 6 Ohio does not aid the complainants. It holds this salutary principle : That the heir is bound to pay the taxes, as between him and the administrator, and if he suffer them to accumulate, and bid in the lands for their discharge, it is only his own method of payment, and that such sale does not protect the lands, in the hands of heirs, against the just demands of creditors.

On the whole case, we unhesitatingly come to the conclusion that the complainants are not entitled to the relief they seek, and that the bill should'be dismissed, with costs.'

Judge Hitchcock, having been of counsel for the respondents* •did not sit in this cause.