author: Judge Lane:

text:
    State of Ohio v. James W. Gazlay.
    A tax assessed upon, the members of a profession upon account of tbeir practice is constitutional, being not a poll but a faculty tax, and may be legally-assessed by the judicial tribunals.
    This was an action of debt on the act of assembly assessing a tax upon lawyers.
    The cause was tried by jury at the May term of Hamilton county, on a written agreement as to evidence and the questions to be made under it. It was admitted that the court assessed a tax of five dollars on each member of the profession and on the defendant, as stated in the declaration, defendant to make any and every constitutional objection to the action. It was admitted that defendant was duly licensed to practice law in this state in the year 1813.
    The jury, under the direction of the court, found a verdict for the state, the consideration of the legal and constitutional questions being reserved for the court in bank, which questions were :-
    1. That the general assembly can not authorize the court of common pleas to lay or assess the tax. .
    2. The law impairs the validity of a contract within the terms of article 8, section 16, constitution.
    3. The tax is not a property, but a personal or poll tax, and as such violates section 23, same -article.
    4. The law is in opposition to the spirit and nature of our government and institutions.
    Mr. Gazlay argued in support of these propositions:
    *A preliminary proposition may be raised involving the power and duty of the court on questions of constitutional law. To debate this proposition is, it would- s.eem, to dispute a leading article of our political faith, viz: That a frequent recurrence to its fundamental principles is necessary to the existence of free government. How are we to recur effectually to these principles without the aid of the judiciary? Take from courts this power, relieve them from the obligation of it, and the constitution becomes a dead language without an interpreter. The life of the instrument depends on the judicial exposition of it. Principle» are so intimately allied to language, so connected with it, that doubt as to the import of the latter will sometimes endanger the-former; our own history is full of illustration as to this fact: we can defend and preserve our political rights only in proportion as we understand them. The judicial proceedings of the day on this subject are pretty conclusive evidence of the public opinion as to* the best manner of obtaining information in relation to it.
    1. It is the constitution, and not the general assembly, which creates and defines the power of the judicial functionary — these powers and the duties they include are purely and exclusively of a judicial character. It is not seen that the general assembly has more authority to change them than is possessed by the judicial to change those of the general assembly. Both are equally created by the constitution, and both equally dependent on it. If safety alone were to be our counselor, there are few of us who would not-prefer the latter to the former change. What is the proposition ? The constitution says that the court shall have and exercise certain judicial powers, and in thus declaring excludes all others. The general assembly, which is also the creation of the same constitution, says that they shall have and exercise other powers; that they shall lay and assess a tax upon lawyers. Who for one moment can maintain such a proposition ?
    Admitting that the general assembly can not enlarge the powers-given by the constitution, it was contended below that the court could volunteer the service performed in this instance, and that in such a case the constitutional question need not be raised.
    I apprehend that such a statement of the case serves rather to-increase than diminish its difficulties; the question is not one of motive, but of power. The act when performed is authorized, or' it is not; whether done under restraint or voluntarily can not, therefore, affect the right to perform it. Again, if the court can volunteer this service, they could do so as well without as with the law of the general assembly; if they can perform this service* without law, they can equally perform any other service without law. Are the general assembly prepared to sanction such a power ?' The proposition that a court may, as volunteers, exorcise high powers not given them by the constitution, may claim the merit of novelty, but nothing more. Again, to assess and lay taxes is a - highly responsible and important duty; a duty which belongs to - an appropriate office, the incumbent of which must be elected and, ■ sworn into office; will it be pretended that a court can, under any view of the subject, take upon itself such an office?
    2. As to impairing the validity of a contract.
    The effect to be given to section 16 of article 8 of the constitution does not depend upon the argument of the present ease, but ■on decisions of high and respectable tribunals of justice. The ■cases of Dartmouth Colleger. Woodward, 4 Wheat.; Green v. Biddle, 8 Wheat. 84; and New Jersey v. Wilson, 7 Craneh, are relied on as .authority. In these cases, the court are understood as saying, that the prohibition of the constitution, in relation to the impairing of contracts, extends to those made between a state and an ■individual, equally as much as those made between individuals, .and that legislative gifts, grants, and privileges are to be considered as contracts within the constitutional designation;' and that a law, which alters, lessens, or in any degree restrains or changes the rights secured by such gift or grant, or by any contract, infracts or violates, the constitution. If this be constitutional law, ■it remains only to be considered whether the act of the general assembly produces any interference or impediment to the practice of the defendant secured by the license of 1813.
    *The license confers'the right to practice, or is rather the ■ evidence that the holder has complied with the conditions of the law under which the license is granted, which law secures him the .right on the conditions evidenced by the license, and without which he could not practice his profession. The law of 1825, •under which this action is brought, professes to regulate this same practice, and in express terms includes all who are 'in practice at the time it takes effect, as it does those who should thereafter be .admitted to practice, and requires the court to assess a sum of money on both classes, provided the person to be assessed or taxed-has been at the time two years in practice, and provides also for ¡legal compulsion, if the sum assessed on each be not paid. The assessment was made upon the defendant while he was in practice under his license, and the present suit is brought to enforce pay.rnent of the sum so assessed. The defendant has, therefore, no right to practice which was not secured to him by his license and ¡the law under which it was granted. The law under which the present suit is brought, if it affects anything, affects the rights of ¡the defendant existing at the time of its passage and going into 'Operation. This law requires something of the defendant; for this something the present suit is brought. Is this something in-addition to what was required of the defendant by the former law ? Does it, or can it bear upon, or interfere with his right of practice under that former law ? This, it would seem, is the question, and the only one now to be settled.
    The tax is assessed ; it is demanded, and suit is brought to enforce its payment. For what, but for and on the right of practice, which the defendant legally enjoyed at the time the assessment was made? This right of practice is a personal one as much as-any right to which a citizen has claim. Can it be for one moment contended that suit, prosecution, execution, and imprisonment do-not interfere with the right of practice; nay, that they are not the most unequivocal interference, amounting to total prohibition of the right and power to practice, if the taxed be unable or unwilling to pay; if so, no other question need be made on this branch of the ease.
    It is laid down as a mathematical truth (and why not *also a legal one?) that things which are equal to one and the same thing are equal to each other. A law, therefore, passed by the-general assembly, expressly imposing fine and imprisonment on all persons found in the practice of a particular licensed profession, would be precisely equal in effect to a tax law, which resulted in the same fine and imprisonment to such profession. If the general assembly could enforce the former, they could the latter.
    The laws regulating taverns, ferries, and auctions were referred to in the argument below, as giving the general assembly a sort of common law or proscriptive right over all professions, and as-being in point as to the power to tax licenses. If such a reference deserves a grave reply, it must be sought for.
    Certain offices are set to sale by public authority, and that with a view to revenue; they are open to every purchaser who will pay the price demanded. The quid precedes the pro quo — payment secures the right or license either for a single year, more or less. Can public authority demand additional payments before such license or right expires ? Certainly not, and why ? Because-it would impair the effect and validity of a contract. The state are entirely welcome to the full weight of this reference.
    3. That the tax is personal and a poll tax.
    The power to tax is an incident of sovereignty, without which ■the operations of government can not be sustained; but it is a -sustaining power only when exercised within given limits;' beyond these it becomes a destroyer. It was the opinion of our an■cestors that this power could be safely lodged with those only who were compelled to use. it, if at all, against themselves. This -opinion combines taxation and representation as inseparable, and forms unquestionably the strong bulwark of free government.
    But even this principle, as unexceptionable as it appears of •itself, does not afford sufficient security to all classes; a' principle ■ inherent to political justice, denominated equality, demands that ■those institutions, which are designed alike for the protection and -security of all, should be maintained by the equal contributions • of all; this equal contribution is sustained on the basis of property alone; it looks, therefore, *to property as its sole ■element. The idea of personal service as a return or compensation for being well governed, is perfectly feudal, and has long ■since been exploded; a tax, therefore, which does not proceed •upon the basis of property, but that of person, is, to its extent, a restoration of feudal principles. The framers of our constitution, feeling the force of these principles, provided against the imposition of any other than a property tax by denouncing a poll tax as grievous and not to be imposed. We are too familiar with the usages of our government not to know that they frequently explain the'terms by which they are created. “The polls” designate a place which, either for political importance or effect, gives room to no other; these words convoy a numerical and personal idea, excluding entirely that of property. To poll signifies barely ■ to number or count the heads of such or such a mass of citizens; there can, therefore, be no misapprehension as to the terms poll tax, which is riot to be imposed for. state or county purposes, leaving it clearly with the pure democracy, assembled in town meeting, to adopt the feudal policy in aid of their smaller matters, if ■ they choose so to do.
    A land tax is not a poll tax; and why ? .but for the reason that it is imposed in relation to land of property, and takes no account of the person, unless it be to afford to such person an opportunity .to raise the lien created against his land; if he do not do this, his poll or person is not considered of the least account.
    The same may be said of personal property — the government ■ takes no account of the head or poll of him who happens to be ttssociated, under the term “ owner,” with any given quantity of dead •matter; they-seize the substance, but let the head escape.
    The rapacity of the church has at different periods, racked human invention to find subjects and occasion for exactions and extortion ; but scarcely an instance can be found where it has placed any high estimate upon the poll, and none where it has been taken in satisfaction of a single tythe; and although our sturdy ancestors were sore pressed under the Henrys and Edwards, both in land .and silver, for various oppressive contributions, the poll on person was never demanded or taken in satisfaction.
    *There can not be found a respectable treatise on political economy, in which any and every tax, not holding property as its basis, is not condemned as unjust and oppressive. Can our own •constitution tolerate what is odious and oppressive, even under the administration of monarchical government?
    Will it be contended that this is an income or faculty tax? The first is a property tax in every sense of the word, the latter is a poll tax. If this were a tax on income, it must have been proportioned to such income, which it is not. Did the general assembly so intend it to be? If they did, the tax is imposed even without the forms of legal provision, inasmuch as it exacts an equal sum from each of those on whom it is assessed. Again, it can not be an income tax, because no provisions are made, no power given for an assessment on the amount of income, or even for ascertaining the amount. The maximum of fifty dollars is a bare limit to the discretion of the court, in the same words, and precisely for the same effect that they are inserted in criminal statutes.
    4. This tax is imposed either in commendation or derogation of the profession; if for either, it equally violates the spirit of our institutions. The law imposing it would be rendered no more personal and invidious, had it contained the names of the persons in the professions against whom it is directed. Who are they who fill the ranks of the legal profession ? Monopolists, speculators upon the rights of others ? Far from it; they are the opposing shield between oppression and its victims; they come forth to defend and protect those social rights, and to enforce those social duties which have so clearly distinguished and elevated the present above the barbarous ages; coming chiefly from the middle ranks of life, they venture upon an employment at once the most arduous and honorable, one in which distinction is the meed barely of severe toil and research; an employment which demands sacrifices of both mind and body; one which is not learned in the bowers of pleasure or the courts of ease; but which takes its assiduous lessons, not-from record and volume alone, but from the intricate and endless passages of the human heart. Distinction, even then, is more than precarious, unless to all be superadded a gift which no lesson can impart — a noble, generous, and fearless nature. ' Be the *final destiny of this employment whatever it may, its followers can not. be reproached; if they have appeared to defend crime, it was because they wished to defend the laws and the weakness of human nature; if they have appeared to advocate injustice, it is because-humanity has no perfect code; in the field of honor, at their country’s call; at the bar, even beneath a tyrant’s frown, the-cause of innocence and patriotism will award to them the meed of equal and untiring firmness. If there be blots upon their history as a class, it may be answered that the sun himself has his obscuring Spots, and that nature exhibits the beauty and grandeur of the unrivaled bow on the bosom alone of a dark cloud.
    I have sought, and sought in vain, for some redeeming cause or authority for the imposition of this tax; none can be found; the-authorities are against it; good sense is against it; justice and equality, our political boast, are against it — the spirit, therefore, of our institutions is against it; why, but from a conviction of all -this, has it been repealed ? In resisting it, I have discharged no more than a common duty'; to pay it, I should become a party to its injustice ; this I can not do, and remain a worthy descendant of those who resisted the tea and stamp tax.
   Opinion of the court, by

Judge Lane:

It is evident that the expenses of government should be borne by individuals in proportion to their respective abilities, or in other words, in proportion to the revenue which they enjoy under the protection of the state. In some countries, however, either from ignorance, from a want of financial skill, or from a disregard to any considerations, except the faculty of levying revenue, taxes have been imposed numerically upon citizens, without any reference to their capacity of sustaining the burden. These are poll or capitation taxes; and the convention deemed their operation so inequitable that they have forbidden the legislature to adopt, them for state or county purposes.

1. Does the tax imposed upon those who exercise the professions of law and medicine possess the character of a ^capitation tax? This question has been heretofore presented to this court. 2 Ohio, 63. But as no argument was presented, this court are invited to review the opinion they then expressed, that it does not possess that character. This, court, after reconsideration, see no reason to change their conclusion. The tax is not levied upon the person without relation to his abilities to pay, but it is designed to operate upon the profits of lucrative professions,- and the amount of the tax is fixed with reference to the amount of the-profits.

2. It is said a license to practice is a contract, and that a tax upon such as are licensed, is a violation of the contract. We can not consider the license in this light. Although the effect of the license gives to the members of these professions something of an-exclusive character, and incidentally confers valuable privileges, yet the design of the license is to protect the community from the-consequences of a want of professional qualifications, and to benefit' the public by enabling the profession to acquire professional merits; consequently the license can not be holden to confer any vested privileges, but is liable to be modified in any manner which the public welfare may demand.

.3. The manner of assessing the tax does not, in our opinion, render it illegal. If the common pleas had declined the assessment as a service beyond their judicial duties, as the judges of the judicial courts declined acting under the act conferring pensions, it would be a grave question whether the duty could have been executed. But the judges have assessed the tax, and a privilege-which they do not claim, can not avail the defendant.

It is said that the law is inconsistent with the nature of our government and constitution. The court can not very well understand the precise nature of the objection, but believe it is more properly addressed to the other departments of government. If the expediency of the law were properly before us, we should know no reason why the profits which arise in the exercise of lucrative professions, are not only legitimate objects of taxation, but objects peculiarly proper to sustain a due share of the ex-' penses of government.


source: Caselaw Access Project

author: Judge Hitchcock:

license: Public Domain

text:
    *Trustees of Cin. Tp., Hamilton Co. v. Aaron Ogden.
    ■Overseers of the poor of the proper township are hound to support a casual pauper, if found within the limits of township, and requiring support.
    "Where, after notice, the overseers of the poor refuse to provide for a pauper, an individual furnishing a necessary supply, may recover the amount in an action against the township.
    This cause came before the court on a writ of error to the court ■of common pleas of Hamilton county. The case was this, as presented in a bill of exceptions :
    The declaration was in assumpsit, and counted for “ meat, drink, washing, and lodging; and other necessaries, found and provided by the plaintiff, at the special instance and request of the defendants, for one Martha Good, then and there being an inhabitant of ■Cincinnati township, and then and there being in a necessitous ,and suffering condition.” Plea, non assumpsit.

    The proof, on the trial, disclosed that about December 8, 1829, Ogden hired Martha Good to perform domestic labor in his family ; that about the 15th of December, she was taken sick with the small-pox, of which she was confined to her bed, in Ogden’s house, about two weeks, when she died. During this period she was provided for and nursed by Ogden’s family, who, after death, provided her burial clothes; that she was apparently destitute of property, except some clothing; that she came from some other county of the state than Hamilton, an(j had no legal settlement in Cincinnati township; that when taken sick, Ogden applied to the trustees to take charge of her, who visited her and refused, but contributed one dollar as a gratuity, and proposed some other gratuitous aid, which Ogden refused to accept, unless upon an agreement to provide for her altogether; that there was no county poor-house in Hamilton county, and that Ogden was a man in narrow circumstances. Upon this proof the court of common pleas charged the jury that the plaintiff was entitled to recover, and a verdict was given for thirty dollars. The suit having been appealed from the judgment of the mayor, for fifteen dollars, by the trustees, judgment was rendered by the common pleas for the amount of the verdict and costs, to reverse which, this writ of ■error was brought.

      *N. ¥e ight, for the plaintiff in error, contended:
    . 1. That no action could be sustained against a township for necessaries voluntarily furnished. by an individual, to a person not having a legal settlement in the township. 2. That no action could be maintained for necessaries thus voluntarily furnished, provided "the pauper had a legal settlement in the township.
    He insisted that a discretion was vested in the trustees to examine and decide upon the case of any individual who might be supposed to want assistance, and to grant or refuse an order to the overseers of the poor, as each particular case might seem to require. That having exercised this discretion no action would lie against the township.
    That the obligation of a township to support its paupers is, in the nature of a moral, not an absolute legal obligation. He cited a great number of cases from the Mass, and N. T. reports, not as authority, but as showing the course of proceedings in those states, and the •construction put by their courts upon their own peculiar statutes.
    Stores, & Fox, for the defendant in error, contended:
    That an obligation vested in each township to support all paupers within its limits. That this support is not confined to those who have obtained legal settlements, but must be extended to ■casual paupers; that this is an absolute obligation, and if support is refused, any individual who shall, after having given notice to the overseers, furnish a suffering pauper with necessaries, may maintain an action against the township.
   Opinion of the court, by

The court are called upon in this case to give a construction to the “Act for the relief of the poor,” passed February 10, 1816 (14 O. L. 197), and the act amendatory thereto, parsed February 12, 1829 (27 O. L. 50).

We can not expect to derive much assistance in the performance of this duty from the examination of English or ^American cases. The whole subject of supporting the poor, where it is done in pursuance of municipal law, depends upon statute regulation, and these statutes have been variant in' different countries. It is owing to this variance that different decisions, upon the same ■question, are made in different states.

In this state, it has ever been the policy that each incorporated township should support all paupers within their respective limits. This does not seem to be controverted by the counsel for the plaintiff in error so far as it respects those who have obtained legal settlement; but it is denied that any duty is imposed to maintain those who are merely casual residents. The statutes in force at the time the liability of the plaintiff in error occurred, if there is-any liability, are those of February 10, 1816, and February 29, 1829, and it is by these statutes the case must be governed. Section 1 of the act of 1816, enacts “that the overseers of the poor shall have the care and management of all paupers within the-limits of their respective townships.” Here is no restriction, no limitation. “All paupers,” within the limits of the township, are-to be under the care and management of the overseers of the poor. It may be proper here to remark, that the trustees of Cincinnati township are; by statute, authorized and required to discharge the duties of overseers of the poor.

Section 2 of the same statute enacts “ that upon complaint, being made to the overseers of the poor, that any inhabitant or inhabitants are in a suffering condition,” etc. Every person residing in a township is an inhabitant, although such person may not have gained a legal settlement.

It would seem to the court, that a fair construction of these two sections of the statute would lead to the conclusion that the obligation was imposed upon the township to maintain or support, not only such paupers as have gained a legal settlement therein, but also such as were casual residents and who might need assistance. But, if there could be any doubt upon these two sections, that doubt must be removed upon the examination of. the fifth.

This section provides, “that where any person or persons *shall become chargeable in any township in which he, she, or they have not gained a legal settlement, it shall be the duty of the overseers of tire poor of such township, to cause such person or persons, so soon as the state of his, her, or their health will permit, to be removed to the township where he, she, or they were legally settled,” provided such person or persons have any legal settlement in this state; and if they have no legal settlement in this state, then the overseers of the poor are authorized, under the direction of the trustees of the township, to remove them to the state where they have a legal settlement, unless security is given to indemnify the township. By the same section, an action of debt is given against the township to which such pauper is removed, in favor of the one from which the removal takes place, to recover not only the expenses of removal, but such other expenses as may have been necessarily incurred. A person can not properly be said to “ become chargeable,” unless there is an obligation resting to incur charges.

It is urged, however, that the statute of 1829 is to be taken in connection with that of 1816; and that, under this statute,'the legislative intention is manifest, that support shall be extended to casual paupers only in those counties where there is a county poor house. We come to a different conclusion upon an examination -of this statute. The legislature, it is true, in section 3, provide that where there is such poor-house, paupers of this description shall be taken to it and there taken care of. It would be a strange inference to draw, that because this provision was made, such pauper .should be left, in those counties where there was no poor-house, to subsist upon the cold hand of charity or to suffer and perish.

The next question to be examined is, whether an individual who has furnished necessaries to a pauper can maintain an action against the township. The solution of this question must depend upon the nature of the obligation which rests upon a township to support its poor. If it be merely in the nature of a moral obligation, then no action can be maintained unless there has been a previous request or an express promise on the part of the township. But if, on the other hand, it be an absolute legal obligation, then the law ^implies a promise and an action can be sustained. We are of the opinion that it is of this latter description. The supreme power of the state, by legislative enactment, has imposed the obligation. It is of as much binding force as the obligation of a parent to support his child or a husband his wife. We do not say that in every case, where an individual furnishes necessaries to a pauper, he can maintain an action against the township. Complaint must, in the first instance, be made to the overseers of the poor. If these neglect their duty, or if the trustees of. the .township refuse to make the necessary order, it is right and proper for an individual to furnish a distressed pauper with the necessary relief, and justice, sound policy, and law require that the individual performing this benevolent act should be remunerated.

On the part of the plaintiffs in error, it is urged that it is discretionary with the trustees to make or refuse an order for the .support of a pauper; and that if these officers, in the exercise of that discretion, refuse, the township can not be subjected to an action, although by possibility the officers, in their individual capacity, might be liable for nonfeasance or misfeasance. It is true that a discretion is vested in the trustees, but it must be exercised in such a manner as to carry into effect the object of the law. They are-the agents of the township. The township, not the individual trustees, is the responsible body, and the township can not excuse' itself by saying that its agents have been guilty of official misconduct.

It is further intimated that these officers should be proceeded! against by mandamus; and such, in "certain cases, seems to be th© mode of proceeding in New York. But if the object was to compel the trustees to make the necessary order, this would be but a poor remedy, especially where the pauper was suffering under' the ravages of a dangerous and loathsome disease. Before it could be applied the township would, in all probability, be relieved from expense by the death of the miserable being.

In the case before the court, it appears that Martha Good, the-individual relieved, was residing in Cincinnati. She was taken sick in- the house of Ogdon with the small-pox. She was clearly a pauper, and needed assistance. Ogden complained *to the trustees, and demanded of them to take the charge of her. This they refused. He was compelled either to let her suffer or perish in his own house, or to furnish the necessary aid. He pursued the latter course, and we can not doubt his right to receive a compensation. The charge of the court of common pleas was to this-effect, and is in accordance with our opinion of the law. The' judgment of that court must be affirmed.


text:
    Lessee of W. McMillan et al. v. S. Z. Robbins.
    Tenant for life, without impeachment for waste, suffers the land to be sold for taxes, he forfeits the estate for life, and the reversioner may recover i» ejectment.
    The reversioner has the right to redeem, where the land is sold, and the tenant, by depositing the amount of tax and interest, can not save the forfeiture.
    The law forfeiting tenant’s estate for non-payment of taxes is constitutional».

      This was an action of ejectment, submitted to tbe court upon an agreed statement of -facts, in the county oí Hamilton.
    The following is the state of facts:
    Wm. McMillan devised the lands in-controversy to his wife, for life, without impeachment for waste — reversion to the lessors of the plaintiff. The wife, tenant for life, is still alive.
    On February 29, 1825, the tenant for life made a lease to S. Z. Robbins for the same premises, during her life, upon certain trusts for minor children and for herself, and gave him possession-under the lease. '
    Neither the tenant for life nor her lessee ever caused the lands to be listed for taxation in the name of one or the other, but they stood listed to the heirs oí McMillan.
    The taxes for 1827 and 1828 were not paid, and the land in-question was regularly sold for these taxes on the last Monday of December, 1828, to William Corry, one of the lessors of the plaintiff. /
    On April 28, 1829, J. O. and S. Z. Robbins deposited with the' county auditor money to redeem the land from the sale for taxes.
    ♦Hammond, for the plaintiff:
    This suit is brought by the reversioners, who claim to recover on the ground that under the statute, by failing to list the land for taxation, and by failing to pay the tax, and suffering the land .to be sold therefor, the life estate is forfeited. 22 Ohio, 252, sec. 14.
    Storer & Fox, for defendant:
    This land was properly listed in the name of McMillan’s heirs. It was not the intention of the legislature that the several descriptions of persons named in section 14 of-the act of February 25, 1824 (22 O. L. 251), should list the lands in their own names,, but in the names of those in whom the fee is vested.
    It was the duty of the lister or assessor to call upon the tenant in possession, if resident in the county, and demand a list. Until this is done-there can be no forfeiture. That it was done in this-case there is no proof. 23 O. L. 64, 65.
    The land is not forfeited for the non-payment of the tax, because no time is fixed by the statute within which the tax shall be paid or the forfeiture accrue. If, therefore, the tenant for life suffer the land to be sold for the taxes, and afterward redeem it, there is no forfeiture.
    Gazlay, on the same side:
    Robbins is a more trustee for the original tenant for life, as well as for certain minor heirs. He has not such an estate as is named in section 14 of the act of 1824, as being subject to forfeiture for failing to list or to pay the tax. The only penalty which could attach to him would be the payment of damages for neglect of duty.
    This section 14 is highly penal, and should be construed strictly.
    Forfeitures are odious, and it is at least doubtful whether the legislature have the right, under the constitution, to create a forfeiture in a case like the present.
   *Opinion of the court, by

Judge Hitchcock:

In the act of February 25, 1824, declaring what lands in the State of Ohio are subject to the payment of tax,” it was the intention of the legislature so to frame the law that all lands which could, consistent with public policy, be charged with a tax, should be brought into the list; and they intended to make it the interest of each individual, not only honestly and correctly to list his land, but also promptly and punctually to pay the tax. If, in any instance, heavy penalties were imposed, if forfeitures were threatened, it was with a view to effect these objects. Such penalties and such forfeitures could do no injury to the honest citizen, who is always willing to contribute his proportion toward defraying ihe necessary expenses of that government which protects him in. his life, reputation, liberty, and property, although they might bear heavy upon those (and there are some such in every community), who feel it a grievous burden to contribute a mite to promote the public welfare. Such being the object of the law, we •can not see why the court should be called upon to construe away, •or, if called upon, why it should construe away any of its provisions, to relieve those, if any thero be, who, by refusing to comply with its requisitions, have incurred its penalties.

I am aware that it is common to complain of tax laws, and there is, perhaps, no part of legislation which it is more difficult to perform satisfactorily, or in such a manner as to do exact justice to all, than to frame a revenue system. We are aware, too, that courts have been astute to find defects in tax sales, so much so that in this state, at least, it has become the general, if not universal opinion, that a title derived under such a sale can not be supported. Whether courts have done wrong in this is not for us to say. The consequences, however, as members of the community, we can not but regret. That it has a direct tendency to encourage those who dislike to pay a tax in the neglect of the performance of this duty there can be no doubt.

In section 14 of the act oí 1824, it is enacted “that every person shall be liable to pay tax for the lands of which he or she shall stand seized, or may have in charge, either *as guardian, or executor, or by courtesy, or in dower for life, or in right of his wife, or as agent or attorney, having funds of his principal in his hands,” etc. The section thus makes it the duty of these several, persons to list the lands for taxation, “and pay the tax which shall yearly, and every year be assessed thereon.”

It then goes on to provide that every person so seized, as guardian, and “ neglecting or refusing to list, or pay the tax on the land of' which he or she is so seized,” shall be liable to an action, on the case, to his or her ward, for any damages which the ward may have sustained in consequence of such neglect; in like manner, any person seized as executor shall be liable to the devisee or devisees, who may have been injured by such neglect or refusal; “ and every person so being seized, or having care of lands as aforesaid, either by courtesy, or in dower, or for life, or in right of his wife, and neglecting or refusing either to list or pay the tax on the lands of which he or she is so seized, or has the care of as aforesaid, shall forfeit to the person or persons next entitled to the said lands, either in remainder or reversion, all the estate which he or she, so neglecting or refusing may have in the said lands, and shall moreover be liable to an action,” etc. The same section also gives an action in favor of the principal against his agent or attorney, where the attorney as agent, shall neglect or refuse to list or pay the tax on land, “such attorney or agent having funds of his principal in his hands.”

The provisions of this section appear to be very clear and explicit. It is made the duty of persons having the care and management of land, to list the same, and pay the tax, whether they have any interest in the land or not; and if they fail to do so, it. makes them liable to an action in favor of any person who-may suffer in consequence of their neglect. It is also made the duty of those who may be seized for life of any lands to list the same and pay the tax, and upon their failure so to do, it declares that their estate shall be forfeited; in other words, that it shall terminate; and the person having the remainder or reversion, may enter. Where is the great hardship, the injustice of this provision ? ' The tenant for life is seized of the lands, he is entitled to the profits, *and certainly justice would dictate that he should pay the tax. If he does not, and the land is sold, what is the consequence? Not only his estate is gone, but also the estate in remainder or reversion. For if must be remembered that, by our -laws, the state has a lien upon all lands- for the taxes, and when those lands are sold by the proper officer, it is not the interest of the individual in whose name they are listed which is alone transferred, but it is the land itself, an absolute estate in fee-simple. . •

This section 14 of the act of 1824, if we are to give it that construction which comports manifestly with the intention of the legislature, would seem to be decisive of the case before us. The. widow of McMillan had an estate for life in the premises — this estate she assigned to Robbins ; Robbins neglected or refused not only to list, but also to pay the tax. The law is explicit, that under such circumstances the tenant for life shall forfeit his estate to the person or persons next entitled to the lands, either in remainder or reversion. It is admitted that the reversionary interest in these lands was in the lessors of the plaintiff.

It is argued, however, on the part of the defendant, that Robbins being seized in trust for minox*s, has not suoh a seizin that the law attaches a foxxfeiture to any act done by him. This ai’gument. is founded upon the assumption that a tenant for life, liable to pay the tax, and to forfeit the title for failure, can create an estate liable neither to pay the tax nor to forfeit. This assumption is one-which can'not be sustained by the court.

Robbins had an,estate neither greater nor less than his assignor or lessox*, and was ontitled to the same privileges, and subject to-the same burdens and disabilities.

It is further ax’gued, that this land was propexdy listed in the-name of McMillan’s heirs, and that the estate is not foi-feited for the failure of the tenant to list, inasmuch as there is no proof to-show that the assessor or lister called upon the defendant and demanded a list. Whether this objection is well taken, we deem it unnecessary to determine, inasmuch as a forfeiture is incurred, as-well in consequence of the non-payment of the tax, as for a failure to list, and the case *shows that the tax was not paid by the tenant for life, but that the land itself was sold for the tax.

The counsel for the defendant insist, however, that there cambe no forfeiture, on account of the non-payment of the tax, because they say the legislature have not said expressly within what time it shall be paid, or the penalty incurred. By the general law on the subject, taxes are made payable to the county treasurer on or before the first day of December of each year; and if not them paid,-a penalty of ten per cent, is incurred. The tax, together-with this penalty, may be paid at any time during the month of December, and if not then paid, the land on which the tax is charged, is returned delinquent; and if a second time delinquent,' is sold for the tax. It would be absurd to say, under such circumstances, that no time is fixed within which the tax is to be paid. To us, it would seem difficult to make use of language to fix it-more definitely than has been done.

It is claimed that the defendant has a right to redeem, and that having deposited the money for this purpose with the proper officer, no forfeiture is incurred.

N.o person has a right to redeem lands sold for taxes unless he-has some interest. The interest of the tenant for life' is forfeited, not by the. sales of the lands, but by his neglect or refusal to pay the tax. The fact that the land has been sold, is evidence of the-failure to pay. And when this failure is established, the interest of the,tenant is ended. This case is not between the purchaser of the tax-title and the previous owner of the land, but between the reversioner and the tenant for life. The heirs of McMillan having the reversionary interest, would have the right of redemption;, but Robbins has not, because his interest in the land is entirely gone.

Another ground ot defense is, that the law under which thm plaintiff seeks to recover is unconstitutional. If .this be true — if it is clearly against any provision of the constitution — this court will not enforce it. We have not been referred to that part of the-constitution which is violated. Perhaps it is section 16 of article 8. This section provides that “ no ex post facto law, nor any law impairing the vailidity of contracts, shall ever be made; and no conviction *shall work corruption of blood, or forfeiture of estate.” The section of the law now under consideration is not ex post facto. It has no retrospective operation ; it is entirely prospective in its requisitions .and effects. Neither does it interfere with the validity of a contract.

'But it is said to work a forfeiture of estate. There is no difB- • culty in ascertaining the intention of the convention, in introducing this clause into the constitution, and it is impossible to believe that a case in any shape similar to the one now before the court, was in view. We know that in England, the conviction of many •offenses, works “corruption of blood and forfeiture of estate.” ámd this operates in many, if not in all cases, from the time of the aommission of the offense. The forfeiture is to the king. The ■blood is also corrupted. The attainted person can not inherit lands from his ancestor, neither can he transmit an inheritance to his heirs. In truth, the punishment of the offense is not confined to the individual offender, but is extended to his wife, his children, and his heirs, by depriving them of his estate, and thereby, in some instances, of the means of subsistence. It was against a state of things like this, that the convention intended to provide, and they have, therefore, put it beyond the power of the legislature to enact “that any conviction shall work a corruption of blood or forfeiture of estate.”

What is the case before the court? The law of the state has provided, that, with some few exceptions, all lands shall be subjected to taxation; if the taxes are not paid, the lands shall be «old, and the rightful owner divested of the title, and the same be transferred to the purchaser. So far there is no complaint. This is all right and just. It is well, because so far the law has ■said nothing about forfeiture. But what is the effect? The owner of the land loses his title as completely as if the same had been in express terms declared to be forfeited.

The same law has made it the duty of a tenant for life to pay •the tax upon the land of which he is thus seized. This is admitted on all hands to be just and proper. Receiving the rents and profits of the land, it is right he should pay all taxes with which fit may be burdened. But if it does not pay the tax, the law dedares that his estate shall be forfeited *in favor of the remainder-man or reversioner. It is not the thing done, but the word used, which makes the difficulty. If the legislature, instead of saying the tenant for life “shall forfeit ” his estate, had said, “such estate shall cease and determine,” I apprehend no one would have suspected an interference with the constitution. This is the effect and the only effect produced, and I deem it an immaterial matter what words are used. To my. mind it is clear that there is nothing in this section 14 of the act of 1824 interfering with the provisions of the constitution.

Upon the whole, a majority of the court are of opinion that, the law arising upon the agreed state of facts is with the plaintiff, and-judgment must be entered accordingly.

Judge Collet dissented.


text:
    Remembrance Williams v. Silas Roberts and others.
    The vendor of land, -who makes a conveyance and takes notes with personal-security for the purchase money, does not retain a lien on the land for that purchase money.
    This was a suit in chancery, reserved from the county of Greene.
    The bill sets forth, in substance, that Williams, in September,. 1817, sold and conveyed, by deed of bargain and sale', to one David Connelly, two hundred and sixty-nine acres of land, in the county of Greene, for three thousand five hundred and ninety-six dollars, sixty-six and two-third cents. The purchase money was all paid with the exception of one thousand and eight hundred dollars,, which was to be paid in six annual installments of three hundred, dollars each. To secure the'payment of these installments, six several single bills were executed by Connelly, with one William A. Beatty, as his security. These bills were made payable on the first day of October ol each succeeding year; and those which fell due in October, 1818, 1819, and 1823 were paid; but those which fell due in 1820, 1821, and 1822 were unpaid, and still due and owing. It was further set forth that both Connelly *and Beatty had died insolvent, the latter a number of years after the.last single, bill became due; and that there were no means by which the complainant could expect to collect his debt, except by sale of a part, •or the whole of the premises.
    The bill further sets forth, that on October 23, 1823, and soon after the last installment became due, Roberts took from Connelly a mortgage on the same land, to secure the payment of one thousand dollars. That on December 30, 1821, he took another mortgage to secure the payment of nineteen hundred dollars ; and that in September, 1826, he took from the said Connelly and wife a release of'their equity of redemption, whereby both the legal and equitable title was vested in him. It was expressly charged that .at the time Roberts took these several mortgages and the deed of release, he had full knowledge that Connelly had not paid for the land, but took the conveyance with a design to prevent the complainant from collecting his demand, and to defraud him.
    The personal and legal representatives of both Connelly and Beatty, as well as Roberts, were made defendants ; and the prayer of the bill was, that Roberts might be decreed to pay the balance of purchase money due complainant, or that so much of the land might be subjected to sale as would raise an equal amount. There was also a prayer for general relief.
    The ánswer of Roberts admitted the sale by complainant to Connelly, but denied that he, Roberts, had any knowledge of the terms. Whether Connelly or Beatty were insolvent, or to what extent they were insolvent, defendant did not know, but alleged that long after October 1, 1823, the former was abundantly able to have paid the complainant’s demand. The execution of the two mortgages and release was admitted; but it was denied that at the time the deeds were executed, the defendant had any knowledge that Connelly was indebted for the land. Although he had heard that Connelly was owing Williams, he did not know for what consideration, or in what amount. He denied all fraud, etc. The circumstances connected with the execution of the first mortgage were alleged to be these. Previous to ^October, 1823, Connelly was largely indebted to the defendant. About that time Williams applied to him, and requested him to purchase the single bill which fell due on the 1st day of that month. He professed himselt willing to purchase, if Connelly would secure the payment. Williams replied that Connelly was abundantly able to secure him as he had a clear deed of his land. After being repeatedly urged by Williams, and after having conversed with Connelly, he.agreed to make, and did make the purchase, and took the mortgage to secure the payment of the note, together with the amount previously due him. During the whole of this negotiation, Williams did not suggest, or intimate that he had any claim upon the land.
    The administrator of Connelly answered, admitting the insolvency of his estate.
    The other defendants did not answer.
    Many witnesses were examined, and it might be difficult to come to a satisfactory conclusion as to the real state of facts; but in the view which the court have taken of the case, it is not very material, nor is it necessary to recapitulate the evidence.
    Alexander, for complainant:
    A vendor has a lien on his land for the purchase money, whilst in the hands of his vendee, or assignee, with notice. Garson v. Green, 1 Johns. Ch. 308; Champin v. Brown, 6 Johns. Ch. 398; Tiernan v. Beam and others, 2 Ohio, 384; Brown and others v. Gillman, 4 Wheat. 255; 3 Bibb, 183.
    Equity does not afford its aid against a purchaser for a valuable consideration, without notice; but a notice of incumbrance stops all proceedings toward the completion of the purchase, or the payment of the money, Frost v. Buckman, 1 Johns. Ch. 300; and a party claiming relief as a bona fide purchaser must positively and precisely deny any notice, although it is not charged in the bill. 1 Johns. Ch. 266, 301, 302; 2 Johns. Ch. 355; 3. Johns. Ch. 345; 7 Johns. Ch. 65-67.
    A defendant is bound to admit or deny all material facts, without being interrogated. 1 Johns. Ch. 76.
    *The defendant can not, in the hearing, take advantage of want of jurisdiction in the court he should have demurred. Johns. Ch. 290, 291; 2 Johns. Ch. 369; 1 Ohio, 126, 127.
    A careful and critical examination of the evidence shows that Eoberts had knowledge of the claim-of Williams, and he can not protect himself under the pretense that he is an innocent purchaser, without notice. The allegation in the answer, that Williams assented to the first mortgage, is not responsive to the bill, and requires proof. Of this fact, satisfactory proof has not been given.
    Mason and Ellsbury, for the defendant Eoberts:
    The principle that the vendor has a lien for the purchase money upon the lands in possession of the vendee, or his assigns, with notice, is not controverted; but we insist that this principle applies only where the vendor takes no collateral security for the purchase money.
    Wherever independent collateral security is taken, it is evident that the vendor did not intend to rely upon the land itself, and although such security should fail, or prove insufficient, the vendor can not afterward resort to his equitable lien. Sugden, 2 Am. ed. 397, and the cases there cited; Grant v. Skill, 2 Ves. & Bea. 246.
    We do not insist that the mere taking a note or bond of the vendee will be sufficient to discharge the equitable lien, although such was formerly the law, but we have found no case in which it has been decided, that the vendor retains a lien where he had conveyed the estate, and taken tile note or bond of the purchaser, with personal security, for the payment of the purchase money. . Such is the case before the court. The case of Tiernan v. Beam, 2 Ohio, 383, is not like this. In that case, the vendor had not parted with the legal title, and had an undoubted right to retain it until the purchase money should be paid. As authority to show that the taking of such security discharges the lien, we refer to the case of Brown and others v. Gillman, 4 Wheat. 255.
    If the court should be against us upon this point, we insist that there is no evidence to show* that Boberts had any ^notice of the claim of Williams, and that he was, in fact, an innocent purchaser, without notice.
    Alexander, in reply:
    It was no part of the contract between Williams and Connelly, that Connelly should give Beatty as security. It was a mere voluntary thing on his part; and the complainant shall not be prejudiced by it, unless there is proof to show that Williams agreed to rely upon this kind of security, thereby releasing his equitable lien. No such proof has been exhibited.
   Opinion of the court, by

Judge Hitchcock:

The principle that the vendor has a lien upon the land sold for the purchase money, while the same remains in the possession of the vendee, or his assignee with notice, is too well established to be controverted, and it is useless to cite authorities in its support. It is founded on abstract justice.

Where the vendor relies upon the land sold, as the fund from: which he shall recover his compensation, he ought not to be deprived of it. Natural equity would seem to require that before the vendee shall claim the land as his own, absolutely discharged of' all claim on the part of the vendor, hé should pay to that vendor according to the terms of his contract. The same principle of justice would extend this lien to the vendor in the case of the sale of goods and chattels. It has not, however, been'thus-extended on account of the perishable nature of the property, and on account of the difficulty of enforcing it, in consequence of the ease with which such property is transferred, and the frequent changes which take place in the right oí ownership. Sound policy, too, in a commercial country, dictates that so far as it can be done consistently with justice, possession should be taken as conclusive evidence of personal property. Under the existing circumstances ol our own state policy, it would seem to require that this principle should not be extended. Lands are measurably an article of merchandise, passing frequently from one to another, and the less they are incumbered with *such liens, the better for the community. Nor is there the same necessity for enforcing this lien as in England, and, perhaps, in some of the states of this Union. So long as the land remains in the possession of the verdee, it can be reached by execution, and the vendor has complete and adequate remedy at la’.;. If it has been assigned with a view to defraud the vendor, such assignment would be void under the statute for the prevention of frauds and perjuries.

Although this lien exists in favor of the vendor, yet if it can be shown that he depends upon, takes, or looks to any other individual collateral security, it ceases, or, more properly speaking, it never attaches. It has been held that by taking a note or bond, the lien is discharged, inasmuch as it shows that the vendor does not rely upon the land itself, but upon the personal security of the vendee. Amb. 724. The doctrine is now well settled, however, that the taking of a covenant, note, or bond does not interfere with the lien where such covenant, note, or bond is executed by the vendee. 1 Bro. C. L. 420; 2 Ves. 389; Sug. Vend. 354, 355.

But “if the vendee takes a distinct and independent security for the purchase money, his lien on the estate is gone, as .it clearly appears he did not trust to the estate as a security for his money.” Sug. Vend. 253; 6 Ves. 483.

So if a vendor take a mortgage of the estate sold for a part of the purchase money, he loses his equitable lien for the balance, inasmuch as he thereby evinces his election, that the estate should be charged with part only. Sug. 323; 1 Ver. 281. In truth, any act done, any independent collateral security taken, discharges the lien. And for this obvious reason, it clearly evinces that the vendor relied on something, other than the estate from which to recover the purchase money. It is immaterial whether this be personal or other security. That collateral personal security operates to discharge the lien, is expressly decided in the case of Brown and others v. Gillman, 1 Mason, 214. The judge says, u on a careful examination of all the authorities, I do not find a •single case in which it has been held, if the vendor take a personal collateral security, binding others, as well as the vendee, as for instance a bond or note, with a security or indorser, or a collateral security, by way of pledge or mortgage, that under such circumstances a lien ^exists upon the land itself.” This case was decided in the Circuit Court of the United States in Massachusetts. It was afterward taken to the United States Supreme Court, and the same principle there settled. 4 Wheat. 255.

The case of Elliot v. Edwards, 2 Bos. & Pul. 181, may at first view seem to controvert this position; but in looking into that case, it will be found that there was an express stipulation in the contract, that the premises should not be assigned or underlet, until the whole of the purchase money was paid, without an express license, in writing, under the hands of the vendor and the security.

Now, what are the circumstances of the case before the court? Williams sold the premises to Connelly, and received a part of the purchase money! He took no mortgage to feecure the paymont of .the balance; but he took notes, or single bills, signed by Connelly and Beatty. Why did Beatty sign these notes ? Counsel for the complainant says it was merely a voluntary act, in no way provided for by the contract. But in the absence of proof, we can not take that view of the subject. Beatty was received by Williams as security for the payment of the money, which shows that the latter did not rely upon the land itself, as clearly as.the taking of a pledge •or mortgage of any other property would have done. If the case •of Brown v. Gillman was correctly decided by the Circuit and Supreme Courts of the United States, then, by taking this security, .and by parting with the title, Williams lost his equitable lien. The ■circumstance that Beatty afterward became insolvent, can make no ■difference; the lien once gone, is gone forever. We are satisfied with the law as laid down in that case, and believe it to be decisive ■of the question now before the court.

But there is a class of cases where a different principle prevails, and where the vendor retains a lien, notwithstanding he may have taken either personal or other collateral security. Where the title remains in the vendor, and the purchaser is in default for the non payment of the whole, or any part of the purchase money, the vendor will not be compelled to part with his title until the purchase money is paid. And the circumstance of taking the collateral security will not vary the case. It was upon this principle that the case *of Tiernan v. Beam and others, 2 Ohio, 383, was decided. In that case, Tiernan, as a creditor of Beam, was seeking to subject two quarter sections of land to sale, for the satisfaction of a judgment in his favor against Beam. Beam had only an equitable interest in the lands, having purchased them, together with others, from Newman. The purchase money had not all been paid, although- the whole was due; but enough had been paid to meet the price of these two quarter sections. No legal title had been transferred to Beam. The principle matter in dispute was, whether the court would compel the defendants, or those holding the legal title, to part with the same, until the purchase money for all the land was paid. It was holden by the court, that Tiernan stood in no more favorable situation than Beam. And further, that upon the application of Beam, Newman, or those holding the legal title, •could not be compelled to part with the same until the balance of the purchase money was paid, that balance being then due. This decision, we apprehend, is consistent with the plainest principles of justice.

Where the vendor has retained the title in his own hands, where, by the terms of the contract, he is to retain it until the purehaso money is paid, to compel him to part with it before the payment, Because he has taken independent collateral security, would be manifestly unjust. It would, in truth, be changing the nature of the contract. It is the duty of this court to enforce, not to make, or change the contracts of parties.

The judge who delivered the opinion of the court, had this state of the case in view. Such was the nature of the case then under consideration. In delivering that opinion, he says, “that the vendor has a lien on the premises sold, for the .purchase money, and that his lien is not affected by conveying the premises, and taking a note or bond, with personal security, for the money.” This is correct, as it respected the case then before the court. There had been no conveyance by deed, transferring title, although there was a title bond or contract. And we know, according to the custom, of the country, this is so far a conveyance, that under it the purchaser takes possession. But if it was intended *to use the-word conveyance, in its strict technical sense, as transferring title, we must think the position is not warranted either by authority or the well-known principles of equity. It is not without great, deliberation, and much hesitation, that we have come to this conclusion. The well-known character of the judge who delivered' that opinion, for legal and general knowledge, for integrity and purity of purpose, entitles his dictum, much more his deliberate opinions, to the highest consideration. The authorities cited in support of this opinion are 9 Ves. 209; 1 Johns. Ch. 308; 3 Eq. Cas. 682; 1 Ver. 267; 3 Atk. 272; 6 Ves. 752; 3 Bibb, 183; 2 Wash. 142; B. C. R. 301; 2 Ves. 622.

Upon a careful examination of these authorities, it is believed that no one of them supports the broad position, as laid down by the judge.

In the case cited from 6 Ves. security in stock had been taken. The court expressly declines deciding the question, whether every security taken would discharge the lien of the vendor, holding,, however, in that.case, that it had been discharged.

The case in 9 Ves. is a case upon marshaling assets. In tho course of the discussion a question is made as to the lien of the-vendor, but nothing is decided which is applicable to the question now under consideration. In that ease, too, it is clear that the-title of the premises had not been transferred to the vendee.

In the case in 2 Ves. 622, the question is not raised.

The case in 3 Atk. 272, is somewhat similar to the one in 9 Ves., and so far as respects the question now under consideration, settles nothing farther than this, that as between vendor and vendee, the former has a lien upon the premises for the purchase money.

The chancellor in 1 Johns. Ch. 308, decides that taking a note for the purchase money does not discharge the lien; but nothing is said as to tho effect which would be produced'by taking such note with, independent personal security.

Neither the case reported in 3 Bibb, nor the case of Cole v. Scott, 2 Wash. 141, support the position of the judge in the case of Tiernan v. Beam, etc. In the case of Cole v. Scott, the title was in the vendor, and the idea seems to be ^intimated, that if security had been taken, even under such circumstances, the lien would be gone. The president of the court says, “The doctrine that a vendor of land not taking security, nor making a conveyance, retains a lien upon the property, is so well settled as to be received as a maxim. Even if he hath made a conveyance, yet he may pursue the land in the possession of the vendee, or a purchaser, with notice. But if he hath taken a security, or the vendee hath sold to .a third person, without notice, the lien is lost.”

Taking these cases singly or collectively, they go ho further to establish the principle that a vendor, taking an independent collateral security, although he parts with-the title, has an equitable lien upon the land in the possession of the vendor, or his assignee, with notice, for the purchase money. A principle so well established, according to the opinion of the court in Virginia, as to be received as a maxim. There is nothing in these cases to contravene the opinion of the Supreme Court of the United States in the case of Brown and others v. Gillman, before referred to.

The principal reliance of the counsel for the complainant is upon the case of Tierman v. Beam, etc.

As before remarked, we believe that case to have been correctly decided, and we should feel ourselves bound by its authority. But we are unwilling bo extend it beyond a case similarly situated. For the reason already urged, and from the authorities cited, we are led to the conclusion that the broad position assumed by the judge in that case was incidentally taken. It is not, in our view, ■consistent with either principle or authority.

Such being the opinion of the court, it is unnecessary to go into :a critical examination of the testimony, or of the other points, made by counsel. The complainant, by his own showing, has no lien upon the land; he is entitled to no decree; his bill must te dismissed with costs.


text:
    John Farrier v. Esther Cairns, Executrix.
    Where defendant dies after suit brought, and the action survives, the plaint*iff can not recover costs against an executor or administrator.
    This cause came before this court by adjournment from the county of Muskingum.
    It was an action on the case for a nuisance, brought against the-testator in his lifetime, and to which his executrix, after his death, was made a party by scire facias, under the statute of Ohio.
    The suit was commenced January 26, 1829. After issue joined' the defendant died. At December term of the common pleas, 1830,-, the death was suggested, and a scire facias awarded and issued,, returnable forthwith, making the executrix a party defendant. July term, 1831, there was a verdict for the plaintiff in the common pleas, from which the defendant appealed. In the Supreme Court there was also a verdict for the plaintiff, damages assessed at five hundred dollars. A question was made whether the plaintiff could recover cost, and the decision of that question was adjourned.
    S. W. Culbertson, for plaintiff.
    C. B. Goddard, for defendant.
   Opinion of the court, by

Judge Hitchcock:

Previous to the year 1829 no costs could be recovered against-an executor or administrator, in a suit commenced against them, within the time limited by the law for the settlement of the estate of their testator or intestate. By the act of the 10th of February of that year, amendatory to the “ act defining the duties of executors and administrators,” 27 Stat. 68, provision is blade, that inaDy action upon contract, commenced against an executor or administrator, where the claim or demand shall have been presented and' rejected, the plaintiff shall be entitled to recover costs, provided the-action shall have been commenced after one year from the probate of the will, or the appointment of the administrator; and provided the claim shall *have been presented at least sixty days before suit be commenced. It is believed, however, that where the-action was commenced during the lifetime of the testator, or intestate, and revived after his death, under the statute, against hi» personal representative, the common practice has been to render judgment for costs. As to the correctness of such practice, we are not aware that airy decision has been made by this court. It'is, to- say the least, doubtful, whether a correct construction of the statute would justify such a course. Without the statute the action would abate by the death of the party, and it is hardly to be supposed that the legislature, by permitting the action itself to survive, intended to place the plaintiff in any preferable situation as to costs, to that in which he would have been placed, by the commencement of a new suit. Further, in an action like the one now before the court, but for the statute, not only the action, but the cause of action would have died with the party.

Whatever doubt there might be, in this rpspect, under the act of 1824, there can be none under the statute now in force. In section 69 of the practice act, passed March 8, 1831, 29 Ohio L. 70, it is enacted, “that no suit or action,except those mentioned in section 62 of the same act, shall abate by the death of either of the parties. The actions thus mentioned are “actions for libel, slander, malicious prosecution, assault, or assault and battery, actions on the case for nuisance, or against justices of the peace for misconduct in office.” Section 68 of the same act provides, that after the executor or administrator is made party, “the cause shall be thereafter proceeded *n, and tried in the same manner, and such judgment be rendered therein, as if such suit or action had been, originally brought against such executor or administrator.” If this suit had been originally brought against the executrix, the judgment to be rendered would be a judgment for the damages, alone, without any costs.

It has been urged, however, that inasmuch as this suit was commenced previous to the passage of the act of March, 1831, the provisions of that act can not be taken into consideration in the decision of this question, but that the same must be decided With reference to the pre-existing laws. A*majority of the court are of a different opinion. Section 120 of this act repeals the practice, act of February 18, 1824, and all laws amendatory thereto, saving, however, to all persons, “ all rights acquired, and duties and obligations incurred under, or by virtue of” the repealed acts. The same section concludes as follows: “ And all actions, suits, causes, or matters, pending at the time this act shall take effect,, may be prosecuted and defended, and carried into final judgment and execution, under the provisions of this act.” So far, then, as relates to the mode of practice, the judgment and execution, the intention of the legislature is manifest, that in all suits pending, as well as in those which might afterward be commenced, the principles of this act should govern. “ All rights acquired, duties ■or obligations incurred,” are saved, but nothing further.

What “rights ” had this plaintiff acquired at the time this law took effect? Certainly not the right to recover any specific sum in damages. The amount of damages, if any, were still to be ascertained by a jury. It is equally certain that he had acquired no right to any judgment for costs. This must depend upon the statute law in force at the time judgment should be rendered. Costs are unknown to the common law. They are given only by statute, and may be changed, or entirely taken away, at the will of the legislature. It is true, had there been an interlocutory order upon the defendant for the payment of any part of the costs, occurred at any stage of the proceedings, an “obligation” would have been “incurred” by the defendant to make such payment, .anda “right” would have been “acquired” by the plaintiff to •enforce it. But there is no such order. The only right, then, acquired by the plaintiff, is to have his case already instituted, tried, determined, and carried into judgment. Had the suit been commenced subsequent to June 1,1831, the time when the act of March ■of that year took effect, it would have died with the defendant. Under that statute, actions on the case for nuisance abate by the ■death of either party. They do. not survive. As, however, this .action was commenced previous to June, 1831, and during the existence of statutes, in virtue of which, such cause of action did survive, the plaintiff had acquired a right, which was ^secured to him by the saving clause of section 120 of the practice act before referred to, of having his action thus commenced, tried and •condemned. But it must be tried, determined, and carried into judgment, according to the law in force at the time of the trial. All other laws regulating the practice of the courts are then repealed, and that law precludes the plaintiff from the recovery of •costs. Judgment must, therefore, be entered for the amount of damages assessed, but without costs.

Judge Collet dissented.


text:
    John Riddle v. W. P. Bryan and others.
    Under the judgment and execution law of 1816, a judgment voluntarily confessed on process issued during the term and execution issued within ten days, must he postponed to a judgment entered at a subsequent day of the same in a suit pending upon regular process, though no execution was sued on the latter judgment until after ten days.
    ■Judgment and execution law of 1822 did not divest liens of former judgments where execution was levied within one year, and levy continued. Purchaser of land at sheriff’s sale takes the title, as held by the debtor, subject to prior existing liens.
    This was a suit in chancery in the county of Hamilton, where it stood upon bill and demurrer, and was adjourned here for decision.
    The object of the bill was to quiet the complainant in the title and possession of a certain tract of land therein described, situate in the county of Hamilton, and which he claims to hold, by virtue of a deed from one Nicholas Longworth, bearing date April 4, 1829.
    The case made was’ as follows : On January 19, 1820, the Farmers and Mechanics’ Bank of Cincinnati commenced suit against one Andrew C. Dunseth, in the court of common pleas of Hamilton county, that court being then in session, the term having commenced on the 6th day of the previous December. On the same ■day, Dunseth appeared in open court, and confessed judgment in favor of the bank for six thousand dollars damages, and nine dollars and eighty-one cents costs. Upon this judgment, execution was taken out on February 10, 1S20, and within ten days after the -close of the December term of the court, and on the same day was •delivered to the sheriff. On the next *day thereafter, the sheriff levied upon the premises now in possession of the complainant, as the property of Dunseth. This execution being returned, and the property unsold, a vendi. was issued on December 1.0, 1820, the property appraised on January 12, 1821, and on the 16th day of the same month sold to Longworth for six thousand ■dollars, this being more than two-thirds the appraised value. At the April term of the same court of common pleas, 1821, this sale "was confirmed by the court, a deed ordered, and executed.
    W. P. and F. M. Bryan, on October 22,18Í9, brought suit against A. C. Dunseth and Buckner, before the same court of common pleas, then setting in Hamilton county. The suit was commenced by summons, which was made returnable forthwith, and was served on Dunseth, Buckner not being found. Declaration was filed on the 30th of October, and judgment recovered at the next December term. This judgment was actually rendered on' January 14, 1820, for one thousand and forty-nine dollars and twenty-one cents damages, and twenty dollars costs. Execution issued upon this judgment, on the 7th of Juljq and was levied on the same premises on August 14, 1820. Under this levy, the Bryans are still attempting to effect a sale. The prayer of the bill was that the complainant^ might be quieted in his title and possession, and that the Bryans might be restrained from further attempts to sell the-premises.
    Longworth and Worthington, for complainant.
    N. Wright, Storer and Fox, for defendants.
   .Opinion of the court, by

Judge Hitchcock:

This is an application in chancery, under-section 9 of the “act directing the mode of proceeding in chancery,” passed January 22, 1822, 22 Ohio L. 75, and the first question is, whether it be a case within the jurisdiction of this court. If the question were new, there might be some doubt. No sale made under the judgment of the Bryans *can affect the rights of Riddle, if he has the legal title. The subject of liens seems to be properly of legal-jurisdiction. We can not, however, consider the question as open. It seems to have been decided in the case of the Bank of the United States v. Shultz, 2 Ohio, 495; Burnet v. City of Cincinnati, 3 Ohio, 86, and in the case of Norton v. Beaver, Curtis and others, decided at the present term. In all these cases this court took jurisdiction, and they are in many of their features similar to the one now before us.

In order for a correct decision of this case, it is necessary to-inquire:

1. Which of the two judgments had originally the preferable-lien.

2. If the elder judgment had originally the preferable lien,, have the Farmers and Mechanics' Bank gained any advantage by superior diligence? Have the Bryans lost any right by laches, or-delay ?

3. Has the subsequent legislation of the state changed, or in any manner faried the rights .of the parties ?

4. Did the sale, by sheriff, to Longwortb, vest in him a legal' title to the premises, divested of the lien of the elder judgment ?

The solution of all these questions must depend upon a proper construction of the statutes, regulating judgments and executions-

The law in' force, when the judgments referred to in the bill were rendered, was the act of January 31, 1816, 14 Ohio L. 174,. Section 2 of this act provides, that the lands, tenements, and real estate of the defendant shall be bound and liable to the satisfaction of the judgment, from the first day of the term in which-such judgment is obtained.” Section 7 contains this proviso :• “That judgments-voluntarily confessed in open court shall only have a lien upon lands, tenements,' or hereditaments, from the-day on which they are actually signed or entered.” The judgment of Bryans was entered on January 14, 1820 ; but under section 2 of the act it operated as a lion from December 6, 1819, that being the first day of the term in which the judgment was rendered. This judgment was -recovered in the ordinary course-of judicial proceeding. *The judgment of the Farmers and 'Mechanics Bank operated as a lien only from January 19,1820, because it was on that day “ voluntarily confessed in open court,” and under the proviso of section 7 such judgments have a lien only from the day on which “ they are actually signed or entered.” Bryan’s judgment, then, was the elder judgment, and originally had the elder and preferable lien. This is not controverted by the counsel for complainant.

We will next inquire whether the bank gained any preference-by superior diligence after judgment, or whether the Bryans lost, any right by laches or delay.

The execution of the bank was taken out and delivered to the-sheriff on the 10th, and levied on February 11, 1820. This levy was held up until January 16, 1821, when the premises levied-upon were sold by the sheriff to Longworth, under whom thecempláinant claims title. Bryans’ execution was issued on the 7th of July, and levied upon the same promises on August 14,1820,. and under that levy they are still striving to effect a sale. There does-not seem to have been any culpable neglect on the part of either •of the judgment creditors. The bank execution was first delivered • to the sheriff, and it is intimated, although not very confidently iurged by the counsel for complainant, that by being thus first delivered, this execution gained a preference under section 3 of the act of January 31, 1816. 14 Ohio L. 174. If we were to look to the section alone, without reference to other parts of the statute, we should come, undoubtedly, to this conclusion. But it is the duty of the court to examine the whole statute, and, if possible, give such a construction that the whole shall take effect, and the ■ different parts harmonize together. Sections 3, 4, and 5 of the act of 1816 are intimately connected, and the substance of the three are embodied in section itof the “ act regulating judgments :and executions,” passed February 4, 1824. 22 Ohio h. 108. This section is as follows: “Where two or more writs of execution, .against the same debtor, shall be sued out within the term in which judgment was rendered, or within ten days thereafter, and when two or more executions against the *same debtor shall be delivered to the officer on the same day, no preference shall be given to either of such writs; but if a sufficient sum of money is not made to satisfy all executions, the amount made shall be distributed to the several creditors in proportion to the amount of their respective demands ; in all other cases the writ of execution first delivered to the officer shall be first satisfied,” etc. This section, as well as other parts of the judgment and execution laws has frequently been in review before the court, and in the case of Patterson v. Sheriff of Pickaway County, 2 Ohio, 395, it received a construction. It was held to have been intended “to provide for cases where there were two or more j udgment creditors, having equal rights, and where there is no priority of lien, as when the judgments are recovered in the sdme term; for cases where the judgment does not operate as a lien, but the property is bound only from the time when seized in execution, as goods and chattels,” ■ etc. With this decision we are perfectly satisfied. To give the section a different construction would defeat some of the most essential .provisions of the statute, and destroy the consistency of the law-'Take it literally and the lien takes effect,.not as expressed in the ■statute, “from the first day of the term in which the judgment is rendered,” but from the day of delivering the execution to the . sheriff; that is, so far as respects priority. Such could not have .been the intention of the legislature.

In the ease before the court the two judgments were rendered5 during the same term of the court, but the judgment creditors had', not “ equal rights; there was a priority of lien.and this superiority of right, this “priority of lien,” is not lost to the elder judgment creditor merely from the circumstance that execution upon the junior judgment was first taken out, and first delivered to the-sheriff.

Has the subsequent legislation of the state changed, or in any manner varied the rights of the parties.

It is not pretended that the act regulating judgments and executions, passed February 24, 1820, 18 Ohio L. 180, varied, or in-any manner changed these rights. By the provisions of section 13 of the act, that act of January 31, 1816, is continued in force as to a 11 judgments rendered *priorto June 1,1820. But it is strenuously contended that in consequence of the act of February 1,1822, 20 Ohio L. 69, Bryans lost their priority of lien. It is said that under this law every judgment has a lien upon the real estate of the judgment debtor, from the first day of the terra in which the judgment is entered, whether it be a judgment by' confession, or obtained in the ordinary course of judicial proceeding, and that by this act the acts of 1816 and 1820 are repealed without any saving clause. From which counsel infer that the-priority of the lien is destroyed, and both judgments placed upon an equality. But is this a just inference to be drawn from the premises ? Assuming it as incontrovertible, under the law of 1816 and 1820, the Bryans had a priority oi lien, a preferable right,, this court will not, by the construction of a subsequent statute, divest-them of that right and that lien, unless driven to the necessity of so doing by the express letter and spirit of the statute to be construed. It is not, however, the lien of the judgment alone upon which the defendants rely. Upon this judgment execution had, within the time limited by law, been taken out and levied upon the premises, and this, too, at a time when the judgment creditors had a perfect right that the levy should be made. It certainly would be a forced construction to say that because the legislature have provided that after 1820 all judgments rendered in the same term, whether by confession or otherwise, should have an equal lien. It was intended that this legislation should have a retrospective operation, and destroy all priority of liens upon, judgments previously rendered. It would be but to say in gen-eral terms that the repeal^ of the pre-existing judgment and ex■ecution laws, by the statute of 1822, destroyed all pre-existing judgment liens. Admitting that the legislature have the power ■to do this, we will wait until it is done in express terms before we •■shall say they have exercised that power.

But are the counsel for the complainants correct in saying that in the act of February, 1822, there is no saving clause as to preexisting judgments. Section 16 of that act, 20 Ohio L. 75, provides, “that in all cases where real estate has heretofore been levied upon, and appraised according +to the provisions of the act regulating judgments and executions in force at the time •such judgment was rendered, and shall have been twice advertised and offered for sale, and shall remain unsold for want of bidders, it shall be the duty of the court, from which such execution issued, on motion of the plaintiff, at any time within six months next after the taking effect of this act, to set aside such levy and appraisement, and award a new execution, which shall be levied :according to the provisions of this act, and after such levy the judgment on which the execution issued shall not operate as a lien on the residue of the debtors estate, to the prejudice of any other bona fide creditor; but if the plaintiff, in any such judgment, •shall not, within the time aforesaid, cause the levy and appraisement to be set aside as herein provided, then and in that ease such judgment shall operate as a lien only on such part of the debtor’s estate as shall have been levied on,” etc. This whole section, or •the greater part of it, has reference to previous judgments. The •object seems to have been to excite judgment creditors to diligence in enforcing their claims, and to prevent one creditor from 'hindering others in collecting their debts. So far from destroying pre-existing liens, it recognizes them. If a judgment creditor was dissatisfied with his previous levy and appraisement, he might have it set aside, and have a new execution. If not dissatisfied, he might continue his levy, and “ then, and in that case,” such judgment should “operate as a lien upon such part of the debtor’s -estate as shall have been levied on.” So far, say the legislature, “ it shall operate as a lien,” and no farther. A new lien is not created; one already existing is continued, and continued, too, from the time when it commenced running. It would seem there ■ could be no difference of opinion as to the intention of the legis.lature. They did not intend to destroy rights already acquired, they did not intend to interfere with the priority of liens, but they did intend to prevent one judgment creditor, who might have a prior lien, and who might be actuated by principles of favoritism, toward a judgment debtor, from keeping the whole estate of that judgment debtor locked up from other judgment creditors. The Bryans were satisfied with the levy which had beet) made; they did not move to have the execution, *fche levy, or the appraisement set aside, and the only injury which could result to them, under the law of 1829, would be that their judgment could not operate as a lien upon any other part of the debtor’s estate to the injury of any other judgment creditor.

The act of February 4, 1824, 22 Ohio L. 108, contains no provision which would lead the court, in reference to the ease now before us, to a different conclusion from the act of 1822. Section 17 contains this provision: “ That no judgment heretofore rendered, or which may be hereafter rendered, on which execution shall not have been taken out and levied before the expiration of one year next after the rendition of such judgment, shall operate as a lien on the estate of any debtor, to the prejudice of any other iona fide judgment creditor.” Bryans’ execution was “ taken out and levied” within one year after the rendition of the judgment, and by force of this section the lien is continued.

The last point to be considered is, whether the sale by the sheriff to Longworth vested in him the legal title to the premises, divested of the lien of the elder judgment.

In favor of the principle that a sheriff’s sale, upon a junior judgment, destroys the lien of an elder judgment, the court are referred to 12 Johns. 162. It would seem to me that we might as well be governed by the obvious meaning of our own statute, as by a reported case in the State of New York, unless it shall first be shown that the statute in that state is similar to our own. Section 16 of the act of January 31, 1816, 14 Ohio L. 177; section 20 of the act of February 24, 1820, 10 Ohio L. 187; section 11 of the act of February 1, 1822, 20 Ohio L. 78, prescri be general rules respecting deeds made by sheriffs for lands sold on execution. These several sections of the different laws, if not the same literally, are the same in substance. They not only point out the mode or manner in which the deed shall be made, but declare the effect. That effect is to vest in the purchaser as good and as perfect estate in the premises therein mentioned, as was vested in the said defendant at or after the time when the said lands became liable to th®' satisfaction of the said judgment.” These lands became liable to-the satisfaction of the judgment of the bank on ^January 19, 1820, the day on which Dunseth confessed judgment. On that day the lien attached. What “estate ” had Dunseth on that day in the premises? He had, so far as appears to the court, an absolute estate in fee simple, subject, however, to the lien of Bryans’ older judgment. This “estate” was transferred by the sheriff's-sale to Longworth. But it was transferred incumbered with the same lien. This was all the estate which Dunseth himself could have conveyed, and unless we make some interpolation in the statute, the sheriff can not transfer a better estate, or make a more-perfect title than the judgment debtor himself could have made to his creditor on the day the judgment was entered against him.

Upon the whole case, the court are clear in the opinion that Bryans’ judgment had, originally, the preferable lien; that this-preference has not been lost in consequence of any superior diligence on the part of the bank, or in consequence of any laches or neglect on the part of Bryans; that it has not been taken away by any subsequent legislation of the state; that the sale by the sheriff to Longworth did not divest the premises of this lien; but that it is good and subsisting, and may still be enforced. It follows that the demurrer to the bill is well taken, and must be-sustained.

The bill is dismissed at complainant’s costs.