source: Caselaw Access Project

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text:
    *Bank of the United States v. Schultz.
    "Court of equity may interfere and enjoin a sale on execution, where, in law, no title would pass.
    This cause was reserved for decision here, by the Supreme Court -of Hamilton county. It was a bill in chancery to enjoin the defendant from selling certain real estate, of which the complainants •were in possession, upon an execution at law. The facts of the case are as follows:
    On October 12,1820, 0. Schultz recovered a judgment against the Cincinnati Bank, for two thousand six hundred and ninety-eight dollars. Execution was sued out November 8, 1820, and levied on real estate, appraised at four thousand four hundred and fifty-eight dollars, and returned not sold.for want of bidders. The same return was made upon several writs of vendi., and on October 7,1822, the valuation was set aside, and a new valuation being made, the property was finally sold, August 16, 1824, for three hundred and ■fifty-two dollars and twenty-six cents. The plaintiff, in October, 1824, sued out a new fi. fa. and caused it to be levied on the property in question, which was owned by the Bank of Cincinnati, at the date of the judgment, and sold by them to the complainants, and conveyed on October 17, 1820. The bill assumed that, by the-proper construction of the statute of Ohio, the defendant, Schultz, had lost his lien upion the lands, and prayed an injunction to prevent the sale. The defendant demurred to the bill, and the cause-came on for hearing upon the demurrer.
    Stores., in support of the demurrer, contended:
    1. That the court of chancery had no jurisdiction of the case made-in the bill. That it was not a bill to remove a cloud cast upon the complainant’s title, because the defendant sets up no title, adverse or otherwise. ■ He merely asserts a lien, the creature of the law, and until some person purchases under it, no right exists that a court can take cognizance of.
    The right asserted by the complainants isa complete legal right,, and can be effectually asserted at law. For if there is a sale effected, the purchaser must, institute legal ^proceedings to obtain* possession, upon which the matter stated in the bill, if available at all as a defense, could be fully used.
    A decision upon this bill would not conclude the complainants.. If it were dismissed upon hearing, and a sale made, the complainants could still be heard in their defense at law, against the purchaser.
    In Weller v. Smeaton, 1 Cox. 103, it is laid down that bills of this-nature are only sustained in one of two cases: 1. To compel the party to try right. 2. To prevent multiplicity of suits. But where-one party claims, and another denies the right, chancery could not interfere. He cited, to the same point, 1 P. Wm. 672; 3 Johns. 566;. 2 Johns. Ch. 282.
    On principle, however, it is conceived there is no equity in the-complainant’s bill.
    They rely, first, on the statute relating to banks and bankers, as-prescribing a course for the creditors of those institutions to pursue, to the exclusion of any other.
    To this, it may be briefly and satisfactorily answered, that the-remedy referred to was merely cumulative. That the proceedings on which the judgment referred to was rendered were had in the usual course of law, without reference to any special statute. That the lien was given by the judgment, and did not depend on any process subsequent to its rendition.
    They rely, secondly, on the fact that in 1822, a statute was passed, in section 16 of which is contained the following provision : “ But if tho 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 case, such judgment shall operate only as a lion on such part of the debtor’s estate as shall have been levied on.” From this section, they draw the conclusion that the lien is not only lost against judgment creditors, but against subsequent purchasers also.
    To this we answer, that the complainants are admitted to be purchasers, after the lien was created, by the rendition of the judgment in favor of the defendant. That the statute of 1822 was intended only to refer, and by a fair ^construction of its terms, does only relate to bona fide judgment creditors; that the defendant’s lien was secured to him by the statute in force in 1820, which has no such exceptions as that contended for, as existing in the law of 1822, and being thus vested, can not be destroyed by any subsequent statute on the subject.
    On examination, it will be found that every statute which has been in force in Ohio, whether under the territorial or state government, with the exception of that part of section 18 of the law of 1822, which the complainants select as applicable to their case, expressly secure fhe lien given to judgment creditors, a preference, nevertheless, being secured to subsequent bona fide judgment creditors, where the prior creditor, by delay, has forfeited his right. In no case under these statutes, it is believed, was it ever contended that the lien was lost to tho judgment creditors in favor of a subsequent purchaser, unless the lapse of five years rendered tho lien of no avail; and, perhaps, even this last exception is not sustained by the prevailing opinion of the profession; though, it must be confessed, the reason of the law would seem to sanction the observation in its fullest extent. The nature of a lien on real estate presupposes that the entire control of the legal title is transferred to the judgment which binds it. Like a mortgage, it acts at once on the whole estate on which the judgment is a legal charge; the debtor is divested of his power to alien it, and the conscience of every man is affected by the judgment docketed, for ■which he is bound to search. It could not be said that the creditor should be confined to a partial lien, when the language oí the statute gave him a general one; nor, yet, be compelled to take such portions of the debtor’s estate as his security that caprice or interest might offer.
    The law of 1822 was enacted under peculiar circumstances. Ureat commercial embarrassment had prevailed, and the dockets of the courts were crowded with judgments. Levies wore made, and creditors were contending for priority. The sheriff had been so frequently required by the debtor to levy on unproductive property, or for small sums on such valuable tracts of land, that no one would purchase *and pay the balance of the appraised value. It was fashionable to estimate real estate at an exorbitant price, and no buyers, of course, were in the market. To prevent some of these inconveniences, and, if possible, to remove them all, we believe, was the object of the statute referred to. In section 2 the judgment creditor is required to take out execution within one year from the rendition of judgment, and cause the same to be levied, or it shall not operate as a lien to the prejudice of any other bona fide judgment creditor. This section, it will be seen, is altogether perspective. Section 16 commences with a provision which authorizes the judgment creditor to set aside his levy within six months after the taking effect of the act, and the court will award a new execution, which the creditor might levy agreeably to the provisions of that act; and, after such levy, the judgment should not operate as a lien on the residue of the debtor’s estate to the prejudice of any bona fide judgment creditor.

    It then became necessary that some disposition should be made of those judgments where the levy was not set aside, and the section relied on by the complainants then follows. If there is anything in the structure of the sentences in the phrases used, or the apparent object in view on the part of the legislature, it appears clear to us that this second provision merely followed as an appendage to the first, and as no particular mention is made of other judgment creditors, that the intention obviously was so to connect it with the previous sections as to embrace the same persons within the exception that had already been named. To remove all doubt on the subject, it would seem that the subsequent exceptions, in the same section, refer expressly'to judgment creditors.
    When the complainants purchased the estate levied on, the defendant’s judgment was an existing lien upon it. They were then charged with full notice of this incumbrance. This purchase was made in the year 1820. With what propriety can it be said that they are to be helped by the provisions of the law of 1822? By the statute in force at the time they became the owners of the premises, the judgment operated on those premises as a specific charge. *Now, if the law of 1822 should be construed to ■extend in its exceptions to purchasers, it must be those who became such after that law has acted. If, by the neglect of the defendant, his lien was lost on the premises in dispute, it could not -operate to assist a previous purchaser ; more especially, when at the time of the levy on the premises in dispute by the defendant, the law of 1822 was repealed, and a statute similar in its terms to •that under which the judgment was originally recovered was in 'full force. When the debtor aliened the premises to the complainants, his power so to do was controlled by the defendant’s judgment; no valid transfer could be made; and if he acquired a new right by the neglect of the defendant to set aside his levy in 1822, lie must have subsequently transferred it to the complainants to have completed their title.
    Fox, for the bank, contended:
    That the court of chancery has jurisdiction of the case, under section 9 of the chancery act of Ohio, 22 Ohio Laws, 77; that under this act, persons having a legal title to and being in possession ■of land, have a right to institute a suit against any other person ■setting up a claim thereto. The only question as to the jurisdiction of the court is, does the defendant set up a claim to the property. There can be no doubt that the defendant thinks he has a •claim, or he would not prosecute his suit.
    The objection, that the right of complainants is a legal one, and can therefore be decided at law, is not a valid objection. We admit that, by the rules of the English court of chancery, the bill •could not be sustained until the right had been tried at law. But this rule was found to be inconvenient in this country; and the legislature, by the act above' referred to, conferred a jurisdiction •on the court which it did not before possess. The decisions cited by Mr. Storer are therefore inapplicable.
    On the second point, he contended that the defendant had no •subsisting lien on the property by virtue of his judgment.
    If any such lien does subsist, it is by virtue of the law regndating judgment and executions, passed in 1822; the law of 1820, on the same subject, being absolutely repealed.
    *lt is admitted, that under the law of 1822, the defendant, had it in his power to have retained the lien he had acquired by his judgment in 1820, on the lot in dispute; at the same time, it. is insisted he has lost that lien by negligence, or by relying on the-sufficiency of the property he had already levied upon for the satisfaction of his judgment.
    In order to have retained his lien on the lot in dispute, the present defendant was bound by section 16 of the act of 1822, to have made a levy thereon within six months of the taking effect of the act, and it is expressly provided that if the judgment creditor shall not cause his original levy to be set aside as provided for, “then, and in that case, such judgment shall operate as a lien only on such part of the debtor's estate as shall be levied on."

    The statute operates as a statute of limitations in fact. The defendant was only required by this act to make his levy within six months, instead of waiting until the property already levied upon, should be sold.
    As the court remarked, in the case of McCormack v. Alexander, 2 Ohio, 74, in the clause of the statute above referred to, “ there is nothing doubtful, nothing ambiguous, no words made use of, which operate to defeat the manifest intention of the legislature.”
    As the court have already decided that the legislature have Empower to take away liens and grant them at their pleasure, the law as it is, not as it ought to be, must govern the court. The legislature have declared their will that judgment creditors, in order to retain a lien already given, shall do certain acts. If they see proper to accept of the lien tendered, they must comply with the requisitions of the law.
    The fact that the complainants purchased subsequent to theereation of the lien of the defendant’s judgment, can have no effect in the decision of the cause; for, if the legislature have the power to take away the lien and have done so, it is perfectly immaterial who has the fee of the property or when it was acquired.
    The complainants purchased the lot and paid their money at a time when the judgment debtors had a great sufficiency of real estate (as was supposed) to satisfy the defendant’s judgment.
    *The property first levied upon, was valued at four thousand $ight hundred and forty-four dollars, could it have been reasonably supposed that in two years afterward that same property would have been disposed of for the sum of three hundred and fifty-two dollars. If, therefore, the court are disposed to look at the equity of the cause, as between complainants and defendant, they will find that the parties stand at least on equal grounds.
    Again we contend that the law of 1822, is absolutely repealed by the act of 1824, and the repealing law has no saving clause by which the liens of prior judgments are preserved. This last act gives a lien to judgments rendered subsequent to the taking effect of the act, and to those only. The defendant, therefore, can claim no lien whatever at this time, as there is no law giving a lien to judgments rendered in 1820.
    Mr. Este, on the same side:
    The defendant contends:
    1. That the complainants have plain, adequate, and complete remedy at law, and, therefore, that the court has no jurisdiction.
    ■ 2. If the court retain jurisdiction, there is no equity in the bill.
    The court has jurisdiction by virtue of its general powers as a court of chancery; and specially, the ninth section of the chancery act.
    Its jurisdiction extends to all cases properly cognizable by a court of chancery, in which plain, adequate, and complete remedy can not be had at law. Ch. act, sec. 1.
    “ When there is a remedy at law, if it is doubtful or difficult, the courts of equity will hold jurisdiction.” Cooper’s Equity, 129; 1 Vesey, 417; 3 Johns. 590, the same case cited by the defendant’s counsel. See also 2 Johns. Ch. 176, same case, and the same authorities there cited. 3 Johns. 605, 607; Livingston v. Van Ingens, 9 Johns. 507; 10 Johns. 587. “ Where the remedy at law is doubtful, chancery will relieve.” Kent. “I do not say that there was no defense at law, but the remedy was doubtful.”
    It will be seen, by a reference to the above cases, that chancery will relieve, when plain, adequate, and complete ^remedy can not be had at law; and when it is doubtful or difficult. In the case in 3 Johns., Judges Yan Ness and Kent sustain the bill, because the complainant does not appear to have a clear and adequate remedy at law, although the only question was about legal title.

      If the complainants take no step until the sale of the property, ■will the remedy at law be plain, adequate, and complete, free from ■doubt and difficulty?
    They are admitted to be in possession, under a valid legal title. The defendant sets up no claim other than the alleged lien of the judgment against the Cincinnati Bank, and that this court is perfectly competent to decide on the nature, extent, and effect of the lien, there can be no doubt.-
    In the case in 9 Johns., Judge Kent not only states the power -of the court to determine a question of law, but in direct and strong terms x'epresonts the absurdity of sending a mere question ■ of law to the .common law side of the court, when the judges before whom it is to be tried are members of the same court, etc. After the sale, they can not prevent the court, if the proceedings be regular, from ordering a deed to the pux’chaser, and then, by the summary law of unlawful detainer, he may obtain the posses.•sion, and compel the complainants to bring their ejectment. And • even a trial in ejectment will not be final. If the principle contended for by the defendant, be correct, the possession may be .■shifted before the title can be tried. To turn a man out of possession, under color of law, and give all the advantage possession .gives, in trying title, compel .him to bring his ejectment, to subject himself to the expense, delay, and vexation of a long, difficult, and doubtful contest, and then tell him that his remedy is plain, .-adequate, and complete, is an abuse of terms.
    It is expressly provided, in the ninth section of the chancery -act, that a person having both the legal title, and 'the possession of land, may institute a suit against any other person setting up a • claim thereto, etc.
    The complainants have both the legal title and possession. The ■defendant claims to have a lien on the land, secured by actual levy. The defendant’s counsel, who questions the jurisdiction, has given this part of the case a very slight ^consideration. He contends that the dismissal of the bill would settle no legal right; and, therefore, that the complainants ask a vain thing. The force -of this argument is not perceived. This question is, whether the •lien asserted, reduced to levy, constitutes a claim on the land, within the spirit of the law. The object of the law was to enable .-,a person, having the possession and legal title, to quiet himself against all claims that might be set up against the land, whether-as direct claims of title, or of incumbrances.
    What good reason can be assigned why the possessor of a tract of land, holding the legal title, should not be permitted to quiet a. judgment claim as well as any other? Can he improve with more safety, sell with less difficulty, or have less anxiety than if it were,a mortgage ?
    The lien is a claim and charge on the land, and if pursued to-execution, levy, and sale, the purchaser will have a legal claim, of title. Then, beyond dispute, the complainants could file their bill. Why delay them for that event? The question then will be, lien> or no lien? This is the only question now. Dismiss the bill, and -■ what is the situation of the .complainants ? They must either satisfy the judgment, permit it to remain to the prejudice of their.' title, or suffer the property to be sold.
    But if the court has jurisdiction, it is contended that the complainants have no equity. In other words, that the judgment of Schultz was a lien on the lot at the time of the sale to the Bank of-the United States, and so continues.
    One of the defendant’s counsel has said that “the right of the.judgment creditor is the creature of the law, and that a court of-' equity can give no assistance to perfect his lien. It grows out of,' a statutory provision; it is altogether dependent on the statute-for its validity; it is limited by statute, and can only be specifically-enforced in the manner pointed out by the statute.'" By the statute,, then, let us abide. The complainants contend that the judgment, of Schultz never was a lien, and if it were, it no longer exists.

    On February 25, 1820, 18 Ohio L. 180, the judgment and execution law, under which Schultz’s judgment was rendered, was passed,, and took effect *June following. It contains the same general provision subjecting the lands, etc., of the debtor, to a lien. This statute, without other legislation, might be said to embrace ¡ the debts of banks as well as individuals; but at the same session, on the 18th of the same month, to take effect on the 1st of June following, an act was passed to regulate proceedings against banks > and bankers, which, by fair construction, makes an exception.. By this law, section 2, it is provided that a writ of ft. fa. (only).shall be the first process, and directing the officer to levy only on personal property, and no authority, in any case, is given to levy on lands. Had the legislature stopped here, it might be said that - I it did not appear sufficiently clear that they intended to form an exception. But at the next session a law was passed, to take effect March 1, 1821, declaring that, in all cases where judgments had been or should be rendered, the plaintiff might proceed under the law of 1820, or he might issue a fi. fa. et lev. fa., and on return of no goods, etc., proceed to levy on the real estate of the bank, but no interest whatever of the defendant would be conveyed that was not in him at the time of the levy. In January 28, 1825, 22 Ohio L. 358, an act was passed expressly limiting the lien to the date of the levy, and repealing all other laws on the same subject. If there be any weight in the argument that the remedy given by the law of 1820 was merely cumulative, it does not apply to the law of 1821, for judgments, in all cases when .judgments had been or should be rendered, .are embraced. And his election is given him whether to proceed and enforce the collection of his judgment, under the statute of 1820, or to issue his fi. fa. et lev. fa. If the latter, on failure of per.sonal estate, it shall be the further duty of the officer to levy on lands, etc., which such bank may hold by deed in fee simple, etc., .and to sell the same, under the restriction and limitation hereinafter mentioned; and on sale to make to the purchaser a deed therefor, therein and thereby conveying to him, etc., all the right which such bank, etc., had in or to the property sold at the time the same was levied upon. By section 2 the same reservation is made when any person holds lands in trust for the bank; and by sec-’ tion 3 they are required to proceed to appraise *and sell, “in the manner pointed out for the sale of real estate, under the provisions of the act regulating judgments and executions.”
    The last section authorizes to proceed under either or both the .acts of 1820 or 1821, until his judgment is satisfied. The same provisions are substantially contained in the law of 1824, taking effect from its passage. The levy not being made until about four years after the sale to the complainants, no lien ever attached.

    | But if the judgment against the Cincinnati Bank were a lien from the commencement of the term in which it was rendered, it did not continue until the levy in 1824, but ceased to exist by the-operation of the judgment and execution law of 1822, after December 1, .1822.
    In 1820 a levy was made on sundry lots valued at four thousand ■eight hundred and fifty-four dollars. They were appraised, and .several times advertised and offered at sheriff’s sale, to be sold, .and in October, 1822, the valuation was set. aside, and the levy remained. In June, 1824, a ven. ex. issued and sold in August. In •September, a fi. fa. et lev. fa. issued for the residue, and a levy was made on the lot in controversy. By the judgment and execution law of February, 1822, in force June 1 of the same year, 21 Ohio L., sec. 16, p. 69, when lands had been taken in execution, and twice offered, the levy and appraisement might, at any time before December 1, 1822, be set aside on motion, and a new levy made on •such property as the plaintiff might deem sufficient, and the lien of the judgment ceased on the residue of the estate as to any other judgment creditor. But if the levy, etc., were not set aside within six months, viz: by December 1,1822, the lien remained, only on the property levied on. The plaintiff was presumed to be entirely satisfied with the levy; the limitation fixed, within which to make up his opinion, expired. The lien was absolutely gone, and the judgment debtor at liberty to sell his real estate not levied on, free from the incumbrance of the judgment. If the statute receive a literal construction, then the conclusion is inevitable that the lien ■ceased to exist after December 1,1822, on all the real estate of the Cincinnati Bank, except the lots levied on.
    *But the defendant’s counsel insist that the limitations and restrictions imposed on him by the act of 1822 were intended to .apply exclusively to other judgment creditors, and that in no state of the case could a judgment debtor sell his land free of the incumbrance of an existing judgment. And if he could, as the judgment was rendered in 1820, the law of 1822 could not affect it.
    The general intention of the legislature in passing the law of 1822 was to limit the duration of existing and subsequent liens. Unnecessary oppression to the debtor, and injustice to junior judgment creditors, are the necessary results of general and long-continued liens; so much so that general liens are said to be “odious in the law.”
    In all the New England states, in Kentucky, and indeed in a majority of the states, a general lien of a judgment is unknown. There is no lien until levy, and then only on the property levied on. In these states, where the judgment operates as a general lien, it has from time to time been limited by statu te, restrained in its operation by judicial construction, and relief frequently afforded in equity. In the case of the Bank of N. America v.
      Fitzsimons, 3 Binney, 361, the judges argue strongly in favor of the policy of limiting the liens of judgments, and specify the many abuses growing out of their continuance. The knowledge of many actual abuses, and of probable future mischiefs, no doubt induced the legislature to pass the limitation act of 1822.
    By this law this intention of limitation is clearly expressed. In section 16 all cases of then existing liens were supposed to be-enumerated, and the time limited for their duration.
    1. When there had been a levy and appraisement, and two-attempts to sell, if the plaintiff thought he had not sufficient insecure him, even at two-thirds of a valuation, he had the privilege of setting aside his levy, etc., and of levying on as much of the defendant’s property as he pleased, any time within six months. If lie did this, the judgment operated as a lien on the residue of the-debtor’s estate, to the prejudice of any other bona fide judgment, creditor.
    *2. If the plaintiffs were satisfied with his levy and appraisement, and did not choose to set them aside in six months,, “then, and in that case, such judgment shall operate as a lien only on such part of the debtor’s estate as shall have been levied on.”
    3. When no levy had been made, it was authorized to be made in six months, and no lien to exist on the residue of the estate-after the levy.
    4. And lastly, no judgment, heretofore rendered, on which execution should not be taken out, and levied within a year, should-, operate as a lien on the estate of the debtor, to the prejudice of any other bona fide creditor.
    Having thus provided for all the liens of judgments existing, or-to come, and providing further, that the judgments shall all be collected agreeably to the provisions of that act, the legislature repealed, without qualification, all other laws on the subject.
    The defendant’s counsel misconceive, when they suppose that we-contend that the law of 1822 created the lien, except as to future judgments. We view it as intending to limit, and actually limiting all old liens, and providing, and intending to provide, for every possible case of existing liens; and we think those cases not expressly enumerated, are embraced by fair construction and necessary implication. Their argument, therefore, on this branch of the-case can not apply. It is urged, that inasmuch as no previous legislature had limited the incumbrance, so as to permit the debtor: to sell, and as in the act of 1822, the first, third, and fourth classes of cases in section 16, and all future judgments, are limited, only in favor of other judgment creditors, therefore the limit is tobe confined to them in the second class. The language is clear, explicit, and positive. The classes of cases are as distinctly marked, and the intention as manifest, as if they had been in different sections. Examine, and compare, and conceive if you can, how the intention to remove the lien altogether could have been more clearly expressed. “ Then and in that case,” contradistinguishing it from the preceding, and from all other cases “ such judgment shall operate as a lien only, on such part of the debtor’s estate as shall have been levied on.” In the first class, *“ shall not operate as a lien, etc., to the prejudice,” etc. So of the third and fourth. If it had been intended to limit the lien as in other cases, why not only omit the important words, “ to the prejudice,” etc., but so construct the sentence as not to admit of their insertion. The attempt to consider the section 16 as providing for two classes only, and so' connecting them as to subject them to the same qualification, will not answer. Four classes are named, and all possible cases, agreeably to the spirit, intent, and general policy of the law, embraced. A general lien existed. It was inconvenient and injurious. It was intended to get rid of it, and yet, in such a way, as to give to creditors an opportunity, by the exercise of proper diligence, to secure themselves. It was limited under certain conditions and restrictions, “ but,” if you do not comply, the limitation, in one state of the case, is absolute. If you are not satisfied with your levy and appraisement, set them aside any time within six months, and make a new levy; and from the time you levy, before any appraisement takes place, you shall cease to have a lien, to the prejudice of any other judgment creditor. “ But,” if you are entirely satisfied with your levy and appraisement, if you feel quite safe, and do not choose to set them aside, etc., then your lien shall cease altogether, except on the lands already levied on and appraised.

    This court never will construe the lien as extending to the residue of the debtor's estate, in the class of cases specified, in favor of judgment creditors, because the word purchasers is not named.
    In the case of the Bank of N. A. v. Fitzsimons, before referred to, the law of 1791, cited in a subsequent limitation act, makes no limitation of a judgment, but the mischiefs of continuing the liens of judgments are set forth in the preamble. “ It is said whereby defendants as well as subsequent purchasers of real property suffer much vexation,” etc. The court [vide pages 361-355] extend all the privileges to judgment creditors, although they are not named. And by the law of 1822, by fair argument, and in all the other classes (viz: first, third, fourth, etc.), after real estate had. been levied on, appraised, and twice offered, and the judgment creditor would not, in a reasonable time, move to set *aside his valuation, he should lose his lien altogether, as well against purchasers as against judgment debtors. It would be fairly carrying into effect the intention of the legislature, in remedying the mischiefs intended to be provided against; and this view of the subject is aided by the latter part of section 16. After enumerating the classes specified, “and in all cases,” as well those enumerated, except No. 2, as all other cases, those enumerated by defendant’s counsel, and all others, if any existed, “ where real estate has been or may hereafter be taken in execution and appraised, and twice advertised and offered for sale, and shall remain unsold for want of bidders, it shdll be the duty of the court, on motion of the plaintiff, to set aside the inquest and appraisement so made, and on a subsequent execution, the estate, etc., shall be appraised and sold according to the provisions of this act.” Now, I maintain that a fair consideration of this provision, connected with class No. 2, in section 16, will legitimately lead to the conclusion : that in all cases whatsoever, where real estate had been taken in execution, appraised, and twice offered for sale, and the party did not set aside his inquest and appraisement within six months, or at farthest one year afterward (but I would say, by fair limitation, six months), his lien was absolutely gone on the residue of the debtor’s estate. In all the cases, except class No. 2, in section 16, and in all judgments thereafter to be rendered, if the plaintiff complied with the law, he lost his lien on the residue of the debtor’s estate from the moment of his levy, and to all other j udgment creditors ; but retained it as against purchasers. How long ? For two, ten, or twenty years ? As long as he pleased ? By no means. Relief of the debtor from unnecessary oppression, protection of the fair purchaser for a valuable consideration, come not only within the spirit, but within the fair construction of the letter of the law.
    In all cases whatsoever it was provided that the plaintiff should levy to his satisfaction. In cases when he had levied and made two or more offers to sell, if dissatisfied with his levy, he could it aside and enlarge it. If he had levied, and had not offered it twice, etc., he could unquestionably, by making use of due diligence, have two offers, *and move to set aside his levy and enlarge it. If he had not levied, he could levy until satisfied. So as to future judgments. It is manifest, therefore, that to prevent all cause of complaint from judgment creditors, permission and time were afforded to carve for themselves. This done, other judgment creditors might levy, free ot lien, on the residue, etc., and so on: The levy made, what next? Is all this provision made that the plaintiff, after having taken his choice of quantity and quality, be permitted to lie still at pleasure ? Then he is to proceed in all respects to pursue his levy under that act. He must proceed immediately to appraise, advertise, etc. Having proceeded with all reasonable diligence to offer the land levied on twice, after appraisement, if he do not then, under the latter part of section 16, set aside his appraisement, and obtain a revaluation within six months, he places himself in the situation of judgment creditor in class No. 2. He loses his lien on the residue of the estate. The express and positive limitation, then, as to him, the provision in the latter part of section 16, in a given state of case as to all others, show as clearly that the legislature intended to provide that the lien should absolutely cease to ekist on the residue of the debtor’s estate, except the property levied on, as they intended to provide that the lien should cease to exist from the date of the levy, on the residue of his estate against other judgment creditors. There is good reason why full effect should be given to the plain import of the words of the legislature in the second class of section 16. Where a creditor has sufficient time and notice given him to set aside and enlarge his levy on a valuation, on which two attempts to sell have failed, two-thirds of which is more than sufficient to satisfy his whole claim, it is unreasonable and oppressive to tie up the hands of the debtor, and prevent him from selling his other lands for a fair consideration. He is indebted to those who have not sued him. He can not pay them, nor can he dispose of his lands to pay them. He must be sued, harassed, and subjected to accumulated interest .and costs, and then the judgment creditor may take the residue of his land unincumbered. Other mischiefs might be enumerated, and yet the court are asked to depart from the plain letter of the law *in violation of the policy of the act, and of public policy, to leave them in full operation on society. If the court de* part in the least from the letter, they will rather embrace in all the limitations purchasers for a valuable consideration than exclude-them. If the law were doubtful, the court would seize upon it in favor of the fair purchaser and general policy. How, then, when-the language is clear and explicit, can it be supposed that the purchaser will be set aside ? It is further urged, that as the judgment was a lien in 1820, although it ceased to exist by the law of 1822, yet, as the conveyance of the Cincinnati Bank was during-the existence of the lien, the deed must be considered void, and before the complainants could acquire any title, it should be shown-that there was a conveyance since the expiration of the time to set-aside the levy in 1822. The defendant’s counsel have certainly-made a judgment lien accommodate itself to their wishes."When the jurisdiction of the court is assailed, it sets so loosely as to constitute no claim on the land. Again, it is made to fasten so-closely as that nothing can separate it. It forms an exception to-all subjects of limitation. During life no right can be acquired that can survive it, and after death it may be revived at pleasure,, to reach back to its birth with all its power.
    The law of 1824, it is said, revives the lien. The words of the counsel are, “ This limitation of a lien of a previous judgment is abrogated by the act of 1824, and the lien restored in general terms, in all cases when execution was sued out in twelve months. The power thus to restore the lien, when it affected no rights acquired in the meantime, certainly existed in the legislature, and the complainants acquired no rights under the law of 1822.
    It is admitted in this argument, that under the law of 1822, the-lien was taken away. It is affirmed that the conveyance made to the complainants before that time, did not place them in a situation to acquire any right by the operation of that law, which the-legislature did not and could not destroy by the act of 1824.
    The whole of this argument is unsound.
    The law of 1824 did not restore the lien which had expired, and the complainant did acquire rights under the law *of 1822, which the legislature could not constitutionally deprive them of, if it did restore the lien.

    In 1824, when the statutes were revived, the time having elapsed, by the law of 1822, for all judgment creditors prior to that time to secure their liens, and the legal presumption being that they had complied with the law, and presuming, also, that subsequent judgment creditors had levied within a year, it was enacted, “ That ■no judgment heretofore rendered, or which hereafter may be rendered, on which execution shall not have been taken out, and levied within the expiration of one year, after the rendition of such judgment, shall operate as a lien on the residue of the debtor’s •estate, to the prejudice of any other bona fide judgment creditor.”
    But if the legislature did take away a lien, secured under the act of 1822, not levied within a year after the date of the judgment, did it revive the lien which had expired, because an execution had been issued within twelve months from date ? From this, it is inferred that every judgment levied within a year is a lien, as well before as after 1822. This inference could only be correct if the law of 1822 had never passed. Then the law of 1824 would have been the first limitation act. By the law of 1822, the lien was not merely suspended, it did not remain dormant, but it became extinct. In the language of Judge Breckenridge, it was “gone to all intents and purposes.” When, therefore, the legislature say, “ no judgment heretofore rendered, on which execution shall not,” ■etc., refers to the law of 1822, and from that prospectively; and ■so far from intending to revive liens limited under that act, it intends to prevent revival or extension ; to leave the old judgments as limited by 1822; to continue in force the lien of those since rendered, if levied within a year, as in that law provided, and to continue the limitation of future judgments to the same period. If, however, the act of 1824 should be so understood as to take away liens secured under the act of 1822, it follows conclusively, from the above remarks, that it did not intend to revive them. Revive! When is the lien treated as dormant? The counsel have been driven to the necessity of giving color to an untenable position, to use the terms “temporary suspension,” “temporary removal,” and to assimilate it to revived judgment Hien. You may revive a dormant lien by reviving a dormant judgment, provided' that the lien necessarily attaches to the judgment. But if the lien be once severed, once destroyed, it never can again attach, except by legislative enactment, and I would add, prospectively. “ A judgment revived by sci.fa. revives the lien of the original judgment, with all its incidents and powers.” Not so, since the limitation act of 1822, if it be intended to say that it revives a judgmont prior to that time, with the lien it had at the time it was rendered. It revives it only with the lien incidental to it, at the time it became
      dormant, if any lien can now be said to be an incident of a dormant judgment. If the lien had been lost before revival, it was-do longer an incident to the judgment, and the revival of the-judgment no more revives the lien, than if the lien had never-existed.
    'A lien is not necessarily an incident of a judgment.- When a law, then, takes away a lien, and another law authorizes the revival of an unsatisfied judgment, how does it follow that the removal liem attaches to it ? It could easily be shown, if necessary, that no lien-whatever is incidental to a judgment, since the limitations of 1822, which judgment requires revival by the five years’ law. We hasten, however, to a conclusion, and without stopping to inquire into the power.of the legislature, as contended for, which we by no means admit. For we insist, it would be equally a violation of right to take it away, whether it was acquired before or after the-destruction of the lien. Our case comes clearly within the counsel’s own exclusion of legislative power, viz: “Where a right acquired-in the meantime is affected.” For we did acquire rights* under the law of 1822, which a revival of the lien would impair. By a non-compliance of the defendant with the conditions of the law of 1822, our title, previously incumbered, was freed from, that incumbrance. To us, it was equivalent to satisfaction of the- ' judgment. We could enjoy, improve, or sell, clear of incumbrance. By the neglect of the defendant, and the operation of law, then the lien was removed, and we acquired a positive right, to hold and alien, discharged from it. As for the argument of infringing on vested rights, as contended for by one of the counsel,. it can have no place here. None are infringed or ^intended, to be. The most liberal offers were made to the defendant to help himself. He was either satisfied, or slept on his rights. As asserted by Judge Breckenridge, in the case before cited, it “involves an inconsistency to suppose that the act did not embrace judgments already rendered, and contends for the exoneration of the property from the lien to all intents and purposes. He admits that the statute has a retrospective effect, but says there can be no unconstitutional objection to the power of the legislature, to enjoin such conditions as may let in the rights of others. A principle of the artificial system of the law gave the lien, and the law-may think proper to dissolve it. 1 Omni solvitur eo ligamine quo> ligatur.’ ” See also the case of McCormick, 2 Ohio.

      Ewing and Hammond, in reply:
    Upon the facts in this case, the complainants insist that the defendant has lost his lien. And they ground themselves upon two positions:
    • 1. As the levy was not set aside conformable to section 16 of the act of February 1, 1822 the lien upon all the debtor’s lands,, except those levied upon, was lost.
    2. No lien is reserved for previous judgments by the act of February 4, 1824, which repealed all previous laws.
    Section 16 of the act of 1822, contains two provisions in relation to two distinct eases of judgments theretofore rendered : one where execution had been sued out and levied upon land, which had twice been offered for sale, and returned unsold; the other, where no execution had been sued out at all.
    In the first case, the court are directed to set aside the appraisement and levy, if appplieation be made to that effect by the plaintiff, within six months from the taking effect of the act. This being done, a new execution may issue, and a new levy be made. And if, upon the return, the property levied on be appraised at one-third more than the debt, the lien, as to the residue of the debtor’s estate, shall cease as to every other bona fide creditor by judgment. “But,” the act proceeds, if this be not done, “ such judgment shall operate only as a lien on such part of the debtor’s estate as shall be levied on.”
    *In the second case, that is, where no execution has been taken out, it is made lawful to sue out execution within six months from the taking effect of the act. After which, upon the same principles, as in the other case, the lien was at an end, as to the debtor’s other estate, to the prejudice of any other bona fide judgment debtor. And it is further provided, that no judgment heretofore rendered shall operate as a lien upon the debtor’s lands, against any other judgment creditor, unless execution be taken out within twelve months from the taking effect of the law.
    The object of this act is to settle the priority of lien between judgment creditors, and to determine the continuance and termination of the lien between judgments. The previous law, that of 1820, had given a general lien. This limited that lien, not as to the debtor or purchasers from him, but as to judgments only. The complainants attempt to separate a part of a sentence from its connection and context, and give it a meaning inconsistent with both connection and context. Where land has been levied upon, and twice offered for sale, a certain proceeding may be had from which this consequence is to result, that is, the lien, as against a judgment creditor, shall be limited to the land levied on. "But” which is the same thing as to say nevertheless, in the case stated, and as between the same parties, if this proceeding be not had, the lien shall be confined to the property levied upon. It would seem to be a violation of all sound construction, to interpret the word but, so famous for its character and qualification and negation, and used uniformly to introduce the minor proposition, in logic, as an enlargement of what preceded it in the same sentence. If the levy be set aside, and a new one made, the existing lien shall operate only upon the lands levied, as against other judgment creditors. “ But” if this be not done, the existing lien shall be limited to the lands first levied upon. Because the words, “other judgment creditors,” are not here repeated, it is maintained that this "but” extends the limitation to the case of purchasers. We insist that this can only be done by inserting additional terms, introducing a new class of creditors; especially a class nowhere provided for in the whole law.
    *The next case provided for, is that of judgments upon which no execution has issued. On these, executions, if taken out and levied within six months, shall also, in the case stated, limit the lien, as between judgment creditors. "And” not "but” in such case if no execution be taken out in twelve months, the lien shall not operate at all to the prejudice of a judgment creditor.
    This act, taken altogether, is a curious one, very defective, and somewhat unjust in its provisions. The creditor who has been so diligent as to sue out and levy his execution, and procure the land to be twice offered for sale, is limited, in his lien, to the land levied on, unless he set aside his own proceedings, at his own expense, and sue a new execution within six months. And, according to the interpretation claimed by the complainants, if he do not incur expense, as the penalty for his diligence, he loses his lien against everybody, except the subject levied on. The creditor, who has sued out no execution at all, holds his entire lien for twelve months, and then loses it. only as against a judgment creditor! This ought not to be. It never could have been the intention of the legislature. The absurdity is glaring enough as it- must stand. It ought not to be increased by construction, and made to mean what the letter does not call for, and embrace a class of creditors to which no part of the act applies. It comes fairly within the rule laid down by this court, in McCormick v. Alexander, 2 Ohio, 74. “Where there is anything doubtful in a statute, it is the duty of a court, in expounding it, to give it such, construction as will comport with what is supposed to have been the intention of the enacting power. And where the intention is manifest, but that intention is in part defeated, by the use of some particular word or phrase, the court will look to the intention rather than the words.”
    These remarks were applied to the statute of 1824. In the case •under consideration they are strictly applicable. They prescribe the rule by which this section should be interpreted. To be sure, there is no “ word or phrase," which imposes upon the court, the •construction set up by the complainants. They are called upon to construe general terms, used in reference to particular subjects, •in a ^universal sense, so as to introduce totally new cases and parties, for which, and for whom the act never was intended to make provision, and does, in no other part of it, make any provision whatever.
    The counsel on the other side treat this question as if the act of 1822 created the lien. As if we founded our claim upon that law. They forget that it is introduced by themselves, to limit our previous existing rights. They certainly err when they assert that the sentence of the law they rely upon, has no connection with other provisions of the law. This we have already shown. But they go further. They say we must maintain our lien on the act of 1822, because the act of 1820 is repealed, without a saving clause, by the act of 1822; and this act, they add, is repealed by that of 1824. And both these acts are held to be prospective. If this argument be correct, no judgment rendered previous to the taking off of the act of 1824, can operate as a lien, or indeed be enforced except by action of debt.
    Section 16 of the act of 1822 contains all in that act that relates to previous judgments. It authorizes executions in but two cases, in terms, upon previous judgments; one where the levy was set aside after two attempts to sell; the other where no execution had been taken out, but should be taken out within six months from the taking effect of the act. By implication it would seem to authorize proceeding to sell upon the old levy in the first case, and to take out execution within twelve months in the second. But-many cases may and do exist of previous judgments, which this section does not embrace — we enumerate some of them: where execution has been sued out, but not levied; has been levied, but-no attempt to sell; or where, upon a levy, there has been one attempt, to sell. Section 16 can not embrace any of those cases, and upon the opposite argument, there can be no proceeding by execution; the act of 1820 is repealed, that of 1822 prospective. The act of 1824 contains no provisions as to judgments theretofore rendered, except that of section 17, taking away the lien as against another judgment creditor, where execution has not been sued out in twelvemonths. If this *act be prospective, then no proceeding cam be had upon any previous judgment, if the ojjposite argument be sound. This consequence, and the universal «practice to the contrary, show that it is unsound. Section 2 of the act of 1824 continues the lien secured by previous judgments, and creates it as to those subsequent. And all the subsequent provisions apply to existing judgments and executions without regard to dates. The complainants, therefore, can not sustain either of the grounds on which they rely.
    Supposing, however, that they are correct in their interpretation of section 16 of the act of 1822, that it limited our lien to the lands-levied on, because we did not set aside our levy at our own expense,, what right did the plaintiffs acquire from that result? It is to be recollected that this limitation of the lien of a previous judgment is-abrogated by the act of 1824, and the lien restored, in general terms, in all cases where execution was sued out in twelve months. The-power thus to restore the lien, where it affected no rights acquired, in the meantime, certainly existed in the legislature. In the case of McCormick v. Alexander, before cited, the court decide that this lien is the mere creature of the law, and may be given or taken away at discretion. Now the complainants acquired no right under the act of 1822. When they made their purchase in 1820, they purchased subject to this lien. The subsequent law and proceedings of the defendant operated nothing upon the rights of the complainants. The temporary removal of the lien vested no new interest-in them, no new right accrued in virtue of any contract made in.íáith of an existing law, and the restoration of the lien violated no > -vested right. It left the complainants where they placed themselves - by their contract, and consequently could not impair that contract-This court have decided that land acquired after a judgment is not. subject to the lien. By the same rule, lands subject to the lien,, are not exonerated by a temporary suspension of that lien, unless in respect to rights originated during that suspension. A judgment revived by sci. fa. revives the lien of the original judgment. It is revived in all its incidents, and with all its powers. So the restoration of the lien in this case, suppose *it to have been lost, gives it operative effect from its original date. Ve conceive that upon a just view of the whole case the rights of the parties remain as they were when the complainants made their purchase, and that the lands in question are liable to our execution. Upon the other point of the cause, that of jurisdiction, we deem it unnecessary tO' add anything to the argument of Mr. Storer.
    The enactments in respect to judicial proceedings against banks and bankers are referred to by one of the complainants’ counsel. But they have certainly no bearing on the case. They were intended to be, and are cumulative remedies. Schultz was not bound to proceed under them, and did not so proceed. His case stands as it would have stood had those laws never been passed.
   The court were unanimously of opinion that a court of equity might properly interfere to prevent a sale of land upon execution, where such sale would not at law confer a title on the purchaser. And its only consequence would be to embarrass the title of the complainants. Upon the merits of the case arising on the construction of the provisions of the statutes, the court were equally divided in opinion. Consequently the bill was dismissed.

      Note by the Editor. — Reaffirmed, iii. 73; v. 48, 178; S. P. xvi. 574.


author: By the Court :

text:
    Administrators of Benjamin Hough v. John W. Hunt.
    "Where a person deeply in debt, to obtain a loan of money, agrees to purchase a tract of land, at more than double its value, in connection with-the loan, and gives a mortgage upon other property to secure the loan and part of the purchase money, the vendor being apprised of the purchaser’s necessities, equity will rescind the cqntract.
    This case was reserved for decision here, by the Supreme Court of Eoss county. It was a bill in chancery, asking relief against a • contract for the purchase of a tract of land, by Hough from Hunt, upon the ground pf advantage being taken of the necessities of the complainants’ intestate, and unfair practices in respect to the contract. The facts of the case were as follows:
    In September, 1818, Hough, the intestate, being pressed for •money to pay a debt due from him to the Branch Bank of the United States at Lexington, applied to the defendant for a loan of money to make that payment, about two thousand six hundred dollars. Hunt made an agreement with *Hough, to make 'him a loan of ten thousand dollars, upon condition that Hough would buy of him five hundred and ninety-three acres of land, near Chillicothe, where Hough resided, at twenty dollars per acre. ■Hough assented to these terms, and received, by way of loan, two thousand six hundred dollars.
    The price of the land, and the money advanced, amounted to ■fourteen thousand four hundred and seventj'-five dollars. Hough gave his three separate notes to Hunt, dated_ September 15, 1818, for four thousand eight hundred and twenty-five dollars each ; one payable September 15, 1819; one December 15, 1819; one March 15; 1820. In November, 1818, Hunt gave the intestate a bond to convey the five hundred and ninety-three acres of land, upon the payment of the two last notes. At the time of taking the notes, he took from Hough a mortgage on a separate valuable tract of 'land to secure the payment of the first note, due September, 1819, which was given in part for the money borrowed, and in part for the pui’chase money of the land. The balance of the loan of ten. thousand dollars, beyond the two thousand six hundred, was never advanced, Hough not being able to give such security as was required by Hunt. Hough died on September 4, 1819. Judgments were obtained on all the notes against Hough’s administrators, and also upon the mortgage. Hunt knew of Hough’s embarrass•ments at the time of the contract, and the land( purchased at twenty dollars per acre was proved by several witnesses to have not been worth half that sum. The bill prayed that the contract of purchase might be canceled, and the mortgage discharged by the payment- of the two thousand six hundred dollars loaned, with interest.

      Grxmke, for complainants:
    "Whatever may once have been the fluctuation and contradiction-in the opinions delivered by the English chancellors, the law of that court appears to be now settled that gross inadequacy of price may be a sufficient ground for rescinding a contract; and it is not true that the only use to be made of it is as a shield of defense. It is true, in the case of Day v. Newman, cited by Sir Samuel Romily, 10 *Ves. 300, the cross bills of both vendor and purchaser were dismissed; but the inadequacy does not seem to have been such (one-half the value) as is intrinsically indicative of fraud. In Knott v. Hill, 2 Vern. 26, it was ruled that the purchase-of an estate in remainder, from an heir, was void, in consequence of the inadequacy, though the purchaser knew the risk of getting■ nothing, if the heir died first.

    In Wiseman v. Beatle, 2 Vern. 121, the same principle was declared ; although the purchaser run the same hazard of getting-nothing. if the vendor should die before his uncle.
    In Ivisleton v. Griffith, 1 P. Wms., an unconscionable bargain was-rescinded, although there, also, the purchaser labored under the=disadvantage of getting nothing on a certain contingency.
    In Bough v. Price, 3 Wilson, 320, the .court afforded relief, although the deeds were actually executed, and the contract no longer-remained in fieri.

    In Gwynne v. Heaton, 1 Br. Ch. Cas. 1, although the sale was by' a young man, of a reversionary interest after the death of his-father, the court declared that they rescinded not in consequence-of this circumstance, but on the ground of inadequacy.
    In Gartside v. Itherwood, 1 Br. Ch. Cas. 558, the same relief was. afforded. There was no distress on the side of the seller, and yet-. the inadequacy of price, as affording in itself intrinsic evidence of' fraud, was deemed sufficient to overthrow the agreement, and the-bargain was accordingly canceled.
    In Underhill v. Horwood, 10 Ves. 211, Lord Eldon says that- “ if the terms are so extremely inadequate, as to satisfy the conscience of the court, that there must have been that pressure upon-the distress of the purchaser, which, in the view of this court,amounts to oppression, it would relieve.”
    In Morse v. Royal, 12 Ves. 355, Lord Eldon found great, difficulty in sustaining the sale, although the vendor was not in-embarrassed circumstances, and had confirmed the contract.

      In Richett v. Loggove, 14 Ves. 214, the chancellor afforded relief, although eonveyances had been actually executed, *on the ground of inadequacy. And, in the case of Purcell v. McNamara, 14 Ves. 91, he went equally far.
    There is, says Mr. Powell, Contract, part 2, 158, a great opinion, Lord Thurlow’s, that inadequacy of price, per se, shall be sufficient to rescind, as affording self-evident demonstration of unfair advantage and fraud. Only see the lengths to which the courts have gone, in setting aside even contracts executed, and regarding inadequacy to be as much an ingredient of fraud, where the sale is by auction, as where it is by private agreement. Sugden, 170.
    The true rule is laid down in 2 Johns. Ch. Cas. 1, by Kent, who ■says that inadequacy alone will not be sufficient to rescind, unless it amounts to gross inadequacy; and in that case, the conveyance had been actually executed. And as there must be some definite rule, by which to determine when the consideration is grossly inadequate, the English court of chancery have lately determined that one-half the value, where the bill is filed by the vendor, does not constitute that gross inadequacy. Masheen v. Cote, cited by Mr. Maddock, 1 vol. 214.
    In 2 Atkyns, 134, Lord Hardwieke relieved, although neither of the parties were apprised of the value.
    It may be asserted that inadequacy affords grounds for relief only because it is proof of fraud; and if fraud is positively disproved, if the mere presumption which arises from the inadequacy ■of the consideration, is contradicted by direct and positive proof, that then the whole ground of relief fails. But it would seem from the case cited by Mr. Powell, page 158, that it is the inadequacy itself, and not the inadequacy as mere evidence of fraud, which has been made the ground of relief.
    2. The purchaser was in distressed circumstances; and here the principle to be extracted from the cases does not appear to be that this distress of the one party affords proof of imposition by the other, but rather that the distress has rendered the first incompetent to •act freely, and that therefore there need be no fraud on the other side.
    In Berney v. Pitt, 2 Vern. 14, the plaintiff averred imposition, but none was proved; yet he succeeded, because distress was proved.
    *In the case of Astley v. Reynolds, cited 2 Br. Ch. Cas. 156, the party being in distress, was considered unable to act, “so that the judgment of the court (says Mr. Justice Burnet) is, that necessity alone could induce him to make the contract.”
    In Heathcote v. Paignon, 2 Br. Ch. Cas. 156, there was no proof of any advantage taken of the distress of the complainant.
    In Chesterfield v. Jansen, 1 Atk. 252, Lord Hardiwicke says that .chancery “will relieve against presumptive fraud,, so that equity goes farther than the rule of law, for there fraud must be proved and not presumed.” But he can not mean that a court of law will not relieve against fraud, proved by presumptive evidence, for such is not the fact. The distinction intended to be established is not between the evidence which will prove fraud in the two courts, but between actual fraud' and cases which, though they do not amount to fraud, are cases of great and intolerable hardship. That must be the-meaning of this great judge.
    3. Third persons, and particularly the representative of the general creditors of the intestate, have a much stronger interest and right to impeach the transaction than the intestate himself. This is the rule with regard to lunatics, who can not stultify themselves after their reason is restored, but their heirs may; although in Webster V. Woodford, 3 Day, 90, the Supreme Court of Connecticut have held that the lunatic himself may file a bill to rescind.
    In 8 Cranch, 37, it was held that the trustee of an insolvent debtor might take advantage of a defect in a moi’tgage which the insolvent himself could not, because he represented (as in this case the administrator does) the general creditors.
    Brush and Fitzgerald, for respondent:
    We concur in opinion with the learned counsel for complainants that the true rule is laid down upon this subject, how far and when a chancellor ought to relieve by rescinding contracts on the ground of inadequacy by Chancellor Kent, in the case of Osgood v. Franklin, 2 Johns. Ch. 23.
    *The impression which fastened itself upon our minds, when we saw that case referred to in his argument, was that he did so lest it should be supposed he was afraid of the effect it might have upon the case of his clients. But by appearing to rely on it, as an authority in their favor, it would be supposed he deemed it not unfavorable, much less decisive against them. The chancellor asserts, page 23: “ There is no case where mere inadequacy of price, independent of other circumstances, has been held sufficient to set aside a sale made between parties, standing on equal ground and dealing with each other, without imposition or oppression.” If unqualifiedly he means this (and he does, or he has not spoken with his usual circumspection), the only inquiry to be made in this case is, if there exists, in fact, any of those “other circumstances,” amounting to “imposition or oppression ” which will warrant a court of equity “in setting aside the sale” made in this case. Such circumstances are charged in the bill as that decedent was in embarrassed circumstances, and that this was known to the defendant, who took advantage of the situation of decedent, to impose on him a hard contract. We venture to hope that what, is charged against defendant and not proved, will be disregarded. If so, this case will be considered clear of any imputation or fraud,, imposition or oppression, or any other circumstance to discolor it injuriously to the defendant, or inconsistent with the most perfect fairness on his part. Then admitting the disproportion between price and value, as stated by plaintiff’s counsel, one-half, this court will be bound upon authority to dismiss the bill. Two cases cited by the chancellor in the above case of Osgood v. Franklin, 2 Johns. Ch. 23, 24; Martlock v. Butler, and Day v. Newman, 10 Ves. 292, 300, are decisive, as exactly analogous in principle and fact. It seems in those case the court would not entertain a bill to give relief on either side, either to rescind or enforce the contract. The-disproportion was at least one-half, but there was no fraud. Chancellor Kent cites these two cases with approbation; he can not,, therefore, be supposed to mean that where the inequality is no greater, that its grossness may, nevertheless, amount to fraud, without any other circumstances ^affecting the conscience-of the party charged with fraud. When he adds, after the quotation above made, “ and the inequality amounting to fraud must, be so strong and manifest as to shake the conscience and confound the judgment of any man of common sense,” we understand him to mean that the inequality must be so great that no sensible man can resist the conclusion, “ ex evidentia rerum,” that advantage was taken of weakness or distress, knowing that this weakness or distress existed.
   By the Court :

From the evidence in this case, it is manifest that at the timo of the contract for the sale of the land in question, the vendor knew that the purchaser was in some degree embarrassed. It is also fully proved that the land was not worth half the price that Hough agreed to pay for it. The circumstances of the case are altogether extraordinary. Hough is hard pressed for the sum of two thousand five hundred dollars. He applies to Hunt for a loan of that sum. He obtains it, and an engagement that the lender will loan him seven thousand five hundred dollars more upon good security. But at the same time the twenty-five hundred is borrowed, and a contract made for a further loan, a contract of sale is made for a tract of land at eleven thousand nine hundred and seventy-five dollars, being more than double its real value. Two thousand three hundred and twenty-five dollars of which, with the money actually loaned, is secured upon other property than that sold.

The mind revolts at the idea that a man so embarrassed would, to obtain the "loan of two thousand six hundred dollars, voluntarily embarrass himself further, by creating a new debt of eleven thousand nine hundred and seventy-five dollars for property not worth half that sum. It is impossible that the vendor, who also made the loan, was not sensible that he was 'taking advantage of the purchaser’s necessity. The imprudence .of the proceeding, on the part of Hough, was so gross that it could justly be attributed to no other cause.

It is not in proof that Hunt knew the extent of Hough’s embarrassments. But he knew that he was in necessity to *some extent; of that necessity he must have been sensible he took advantage, in exacting the contract for the sale of land. The wish to obtain further loans and the agreement to make them, with the subsequent escape from performing that agreement, are strong circumstances in confirmance of the fact that Hunt knew Hough’s situation and acted upon it.

One peculiar hardship of the case is that, upon account of this unconscionable contract, Hunt has fastened a part of the purchase money upon Hough’s other lands, sweeping from previous creditors that which their means had supplied, and retaining to himself the whole consideration which his contract was supposed to advance.

The rule in chancery is well established. When a person is incumbered with debts, and that fact is known to a person with whom he contracts, who avails himself of it to exact an unconscionable bargain, equity will relieve upon account of the advantage and hardship. Where the inadequacy of price is so great that the mind revolts at it, the court will lay hold on the slightest circumstances of oppression or advantage to rescind the contract. So, when a person borrowing money to relieve his necessities is induced to purchase property at an exorbitant price, and to an amount greatly beyond the loan obtained, and secure the payment by mortgage on his other lands, the necessity of the purchaser, connected with the exorbitancy of price, are sufficient evidence of unfair advantages to justify the interference of the court. We consider this a case of great exorbitancy of price, where the purchaser was deeply embarrassed, and where the' vendor availed himself of that embarrassment to exact the bargain. We are, therefore, of opinion that the contract of purchase be rescinded, and that the mortgage remain a lien only for the money loaned .and interest.


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    Ethan Stone, for the use of the Bank of Cincinnati, v. William Ruffin, Sheriff.
    Sheriff can not be required by the plaintiff to pay money made on execution, before return of writ. Demand made before return is no foundation for amercement.
    This was a writ of error to the judgment of the court of common pleas of Hamilton county, on a motion to amerce the sheriff, in which judgment was given for the defendant. It was reserved in Hamilton county, and the case was as follows:
    The notice to amerce recited a judgment and execution, Ethan Stone, for the use, etc. v. Joel Williams. It recited a levy and a sale upon execution, returnable to April term, 1824, a sale made on February 23, 1824. A notice to the sheriff that the Bank of the United States were the real owners of the judgment, and a notice from them that they would not receive paper of the Bank of Cincinnati in payment. A demand of payment, made on the .sheriff, March 1, 1824, and a refusal to pay, except in paper of the Bank of Cincinnati, for which the sale had been made.

      The defendant put in an answer to the motion, alleging that it was no ease for amercement; that there was no law authorizing the amercement, and relying upon the statute of limitations. The common pleas gave judgment for the defendant, to reverse which this writ of error was brought.
    The cause was elaborately argued by Este and Fox, for plaintiff in error, and by C. Hammond and N. Wright, for defendant. It was, however, decided upon a point not involving the general merits, and the arguments are therefore omitted.
   By the Court :

Upon examining this .record, we find that the writ of execution was returnable to April term, 1824; that the sale was made in February, 1824, and'the demand upon the sheriff to pay over the money was made March 1, 1824. The demand thus made is not one upon which the sheriff can be subjected, on motion, to amercement. He is not Abound to pay over the money to the plaintiff until return of the writ. On the contrary, he ought to hold it until the proceedings have been examined, and the sale confirmed by the court. The judgment must for this reason be afflrmod.

      Note by the Editor. — Sheriff can not be amerced for not executing ca. sa., unless it is indorsed “funds deposited,” etc., x. 45. Nor where return is regular, though false, xii. 220. Other cases relating to amercement, see xii. 210; Wright, 720; vi. 449; i. 275.


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    [The following two.cases, decided on the circuit in 1826, were emitted in their proper place, and are here inserted :]
    Dudley et al., Heirs of I. Ludlow, v. William Little.
    Upon a sale of land for taxes, an agreement among several that they will advance funds, and one shall buy, so as to prevent competition,.and afterward divide the land purchased among them, is fraudulent, and equity will relieve against the purchase.
    This case was heard in Delaware county, before Judges Burnet and Sherman, in 1826.

      The bill stated that the complainants, as heirs at law of Israel Ludlow, were the proprietors of a tract of land situated in the-county of Delaware, on which the taxes had not been paid; that at a sale of land for taxes, three hundred and seventy acres of the land in question, worth three dollars per acre, had been sold by the collector, and purchased by the defendant for thirty-three dollars and seventy-three cents. The bill charges that a fraudulent combination had been formed by the defendant and sundry other persons, to purchase large tracts of land at the said sale for-the purposes of speculation ; that it had been agreed between the defendant and those who weie to participate in the profits of the speculation, that the defendant alone should bid; that the other partners in the contract should advance their portions of the purchase money, and receive their share of the profits; and that, in-pursuance of that fraudulent agreement, the defendant had purchased the land in question, and obtained for it a collector’s deed. The prayer of the bill was to set aside the deed and restore the* complainants, etc.
    The defendant demurred to the bill.
    *J. K. Cory, for the complainants,
    cited 4 Johns. Ch. 254; 3 Johns. Cas. 29; 6 Johns. 194; 8 Johns. 444.
    Pettibone, for the defendant,
    cited Steele v. Worthington, 2 Ohio, 182.
   By the Court :

A partnership or contract formed for the purchase of land at sale for taxes, is against the policy of the law; and if such contract or partnership be entered into for the express purpose of making such purchases, it is a fraud on the owner of the property,, and the purchaser can not obtain an available title.

Such combinations have, necessarily, a direct tendency to prevent competition, which it is the duty-of the legislature and the-policy of the law to encourage. Over a sale of this description, the owner has no control — he can not refuse a bid, or adjourn the-sale, or fix a sum below which the property shall not be struck down. The sale is managed by the agent of the state. The. owner is not consulted. The highest bidder becomes the purchaser, although the sum bid be less than a hundredth part of the* value of the property. This being the case, any combination which has a tendency to reduce the price of the property, by preventing competition, must operate as a fraud on the owner. The • effects of such combinations can not be controlled by any vigilance on the part of the owner.

It frequently happens that large quantities of land are offered for sale on these occasions, in the absence and without the knowledge of the owners; and if such combinations are permitted, all the persons present at the sale might form themselves into companies, and, by an agreement not to bid against each other, might purchase in the whole of every tract offered for the amount of tax -due on it.

We do not mean to say that partners can not purchase property •at a tax sale, for the convenience of the business they are engaged in, when speculation is not their object, but that a partnership or combination can not legally be formed for the purpose of making ■such purchases. As this *was evidently the fact in the case before us, the complainants are entitled to a decree. They must take it, however, on the condition of refunding the purchase jnoney and interest, with the penalty of fifty per cent, allowed by law, and on the payment of cost.


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    James Smiley and Wife v. John C. Wright et al.
    Widow entitled to dower, present at the sale under order of court, and asserts that the sale may he made free from dower, in consequence of which tha price is increased, is thereby barred of dower, although the purchaser was not ignorant of her title.
    This was a bill in chancery, prosecuted to recover the dower of .the complainant, Elizabeth, before Judges Pease and Sherman.
    The bill states, in substance, that Joseph Lewis, the former husband of the complainant, Elizabeth, purchased part of lots Nos. 174, 175, and 176, in the town of Steubenville, went into possession, made large and valuable improvements on them; that he paid the full amount of the purchase money, but had not obtained ia legal title thereto, and died in the year 1807, leaving her his widow. The bill further states that administration of the estate-of said Lewis was granted to Jacob Pickas, since deceased, who, in 1810, obtained an order of court to sell the said lots, subject to-the complainant’s right of dower therein, for the payment of the-debts due by the estate of Lewis; that said lots were shortly thereafter sold at public sale, and conveyed by the administrator to the defendant, Hartford, who has since conveyed them to the-defendant, Wright. The bill charges that Hartford and Wright knew, at the time they respectively purchased, of the complainant’s right oí dower, and that, in 1819, she demanded of the defendant Wright, who was then in possession, claiming title to the lots, to set off and assign her dower. The bill states, as a reason • why no demand of dower was made before 1819, that she was ignorant of her right; that Pickas, the administrator, was her brother, in whom she had the most perfect confidence, and that he always informed her she had no right in her husband’s real or personal estate until the debts were paid, *when she would be entitled to one-third of the residue. The bill further charges-that Hartford has procured a.legal title to the lots by a conveyance to him from the vendor of Lewis, and prays that dower may be assigned, and a decree for a just portion of the rents and profits.
    The answers of the defendants admit the purchase of the lots-by Lewis, his possession, the payment by him of a considerable part of the purchase money, his death, the administration granted to Fiekas, the order of court to sell, subject to the widow’s dower,, the sale and conveyance of the whole interest of Lewis to Hartford, and his conveyance to the defendant Wright, and the demand of the complainant to have her dower assigned. The answers-aver that, about the time of sale by the administrator, the complainant, Elizabeth, received a lot in the town of Steubenville, in satisfaction of her claim of dower, and at the time of sale she agreed that the lots should be sold free from any claim by her for dower, she having relinquished her right.
    Much testimony having been taken in the cause, it was brought, to hearing on the pleadings and proofs.
    Hallock and Goodenow, for complainants.
    Wright and Coller, for defendants.
   By the Court :

It is a peculiar feature of the law of Ohio that the widow of a deceased person is not only entitled to dower in the legal estate of which the husband was seized, during coverture, but also in any equitable estate which he may hold in lands at the time of his death. It is in virtue of the statutory provision endowing the widow with one-third part of all the right or interest the husband had at the time of his decease in any lands or tenements, that the complainants claim dower in the premises described in the bill. Lewis, the former husband of the complainant, Mrs. Smiley, had purchased the property of which dower is claimed, gone into possession, made valuable improvements thereon, paid a considerable part of the purchase money, leaving the balance a debt due by his estate, which was subsequently paid *by the administrator, without obtaining a conveyance of the legal estate. He had, therefore, although not a legal estate of inheritance, an equitable interest in the lots, of which his widow, at his'death, was entitled to her dower by the provisions of our statute. And that dower must now be assigned to her, in conformity to the prayer of the bill, if she has done no act since his death to divest herself of that right, or to bar her from enforcing it in equity,

Upon this part óf the case two questions have been made. Did the complainant, Mrs. Smiley, receive from Fickas, the administrator of Lewis’ estate, any compensation or satisfaction for or in lieu of her dower?

Whether the circumstances attending the sale of the premises of which dower is claimed bar her in equity, on the ground of fraud, from claiming her dower from Hartford, and all others holding under him?

Upon the first question, whether the widow of Lewis received from Fickas, the administrator, any compensation in lieu of her dower, much contradictory testimony has been taken.

It is unnecessary to state the evidence relied upon by either party on this point. The defendants claim, in their answers, that it was agreed between Fickas and the complainant, Mrs. Smiley, that she should receive a lot on Fourth street, in Steubenville, and some materials for building, in lieu of her dower. That the lot was conveyed to her, and the building materials furnished. They have called on her, under a provision of the statute, by filing interrogatories, in the nature of a cross bill, to answer on oath, whether such an agreement was not made and executed. She denies, by her answer, any such agreement, and states that she did not receive the lot on Fourth street, and building materials, in satisfaction of her dower, but that Fickas retained the amount of the purchase money of the lot and materials, out of money belonging to the children of her husband, and due to her for their maintenance. This answer is supported by the testimony of the guardian of those children, who states he was present at the settlement, and that it was agreed that the amount charged by Fickas, for the lot and materials furnished by him, should be applied in paying her for supporting the children.

*That some conversation took place, between Mrs. Smiley and Fickas, respecting her dower in the premises, is perfectly certain ; but what that conversation was, or whether any, and if any, what agreement was made between them, is uncertain. The lapse of time, and the death of Fickas, who was. the active agent in all the transactions mentioned by the witnesses, and who compensated Mrs. Smiley for her dower, if in fact she ever received a compensation, has involved the question in doubt and uncertainty. Sufficient appears to excite a suspicion of her having received something in lieu of her dower. Tet the evidence is not sufficiently clear and explicit to induce a court of equity to decree against her claim, on the ground of her having received satisfaction.

• The next question made is, whether the circumstances attending the sale of the premises to Hartford, are such as bar Mrs. Smiley, in equity, from claiming her dower. The evidence upon this part of the case is clear, explicit, and uncontradictory. J. Edington testifies that he attended the sale as the agent of Hartford. The property was put up, subject to the widow’s dower, and that it was bid up to about two thousand four hundred dollars. Fickas, after the property had been cried for some time at that price, and it was evident no greater bid could be obtained, expressed his unwillingness to have it sold for that price, and, at his request, the biddings were suspended, to enable him to consult with the widow, and ascertain if she would agree to have the property sold free of dower. Fickas and the widow went into a back room, where they were engaged some time in conversation, no part of which he heard. The witness was near the door of the room, and when they came out Fickas observed she had agreed to have the property sold free of dower. This was proclaimed at the front door by the crier; the biddings resumed, and the property struck off to witness, as the .agent of Hartford, at about three thousand dollars. He would not have given over two thousand four hundred dollars, had he not have understood that the widow relinquished her dower. R. Moor’s testimony is to the same effect. S. Salmon states he was the auctioneer. The widow was present, and must *have heard him cry the sale as free from her claim of dower, and that the property was sold as unincumbered by any right of dower. J. Worstell states he was present at the sale. Mrs. Smiley was standing in the door, the auctioneer being on the step, when it was -struck off. That he heard the auctioneer frequently state, that the sale was free of dower, while she was in a situation she must have heard him; and on one occasion replied to him she had no claim, to dower.

It is apparent from this testimony, which is altogether uncon-tradicted, that after the suspension of the sale, it was understood by the persons attending, that the property was to be sold unincumbered by the widow’s dower. That she was present, aiding by her acts and declarations, in confirming this opinion, and that the purchaser was thereby induced to bid about six hundred dollars ¿more than he otherwise would have given.

It is a well-established principle in equity, that if a person, having a right to an estate, permit or encourage a purchaser to buy it ■ of another, the purchaser shall hold it against the person who has the right. 16 Ves. 253; 4 Munf. 449; 11 Johns. 564; 6 Johns. Ch. 166. And the rule prevails, even against feme coverts and persons under age. 9 Mod. 35; 5 Ves. 174; Cory v. Girtchin, 2 Mad. 40.

It is contended, on the part of the complainants, that the acts .and declarations of Mrs. Smiley, at the time of the sale of the lots in question, ought not to bar her of the aid of a court of equity, because she was at that time ignorant of her rights, nor can they be considered as a fraud upon the purchaser, as he had notice of her title.

It is unnecessary to consider whether a person, having legal title to lands, who encourages the sale by another, shall be permitted to show his ignorance of that title, to the prejudice of a tona fide purchaser for a valuable consideration, as we are clearly ■of opinion that the evidence does not prove Mrs. Smiley’s ignorance of her rights, at the time of the sale by the administrator. If she would avoid the effect of her acts and declarations, on the ground of being ignorant of ber rights, she should at least raise a strong presumption of that ignorance, by the proof of facts and ^circumstances, from which it could fairly be inferred. The-proof relied upon, is the answer of Mrs. Smiley to the interrogatories of the defendant, Wright, in which she states that “ Fickas always told her that nothing would be coming to her until all debts were paid, and this she believed to be true, until about the time suit was brought;” and the testimony of Fleming, who states that, as late as 1817 he heard Fickas tell her she was entitled to the interest of one-third of the proceeds of the "estate, both real and personal, after all debts were paid. The answer of Mrs. Smiley is-contradicted, in some material facts, by the testimony of a number of disinterested witnesses, and much weight can not, therefore, be given to her statements. The declaration made to her by Fickas, in 1817, furnishes no ground to presume that in 1810 she was ignorant of her right of dower. The legal presumption is, she was acquainted with her rights. The order of court was, to sell the lots subject to her dower. They were advertised to be so sold,, and the biddings proceeded for some time, with the knowledge of all present of the existence of this incumbrance.

The sale was suspended under the belief that if her claim of dower could be removed, a more advantageous sale would be effected. She was consulted, and it was proclaimed in her hearing,, that the lots were to be sold free of her dower. The biddings recommenced, and the lots sold at an enhanced price. Under these circumstances the proof should be clear and strong, to justify the-court in finding her ignorant of any right in the property.

It is also said that Hartford had notice, at the time of his purchase, of her title, and therefore her acts and declarations could, not tend to deceive him.

It is undoubtedly true that the agent of Hartford had notice, at. the commencement of the public sale, that the lots were subject to-the widow’s dower, and his biddings were regulated by his knowledge of this fact. But during the progress of the sale, he was informed she had relinquished her right of dower, and she confirmed this information by her acts and declarations. If she had not, in. fact, relinquished her right of dower, her standing by, permitting *the property to be sold free of dower, without asserting-her claim, was calculated to deceive, and defraud the purchaser,, and did induce him to pay a much larger sum for the property than. he would otherwise have given. He believed she had relinquished her dower, and acted upon this belief. To permit her to assert her title to dower, against a bona fide purchaser, for a valuable consideration, who was induced by her to purchase, because she has never executed any formal act of assignment, or release of her dower, would be to aid her in the commission of fraud. The bill must be dismissed.

      NoTE by the Reporter. — This cause was afterward submitted to the whole court, sitting at Columbus, upon a petition for a rehearing. After a full examination of the pleadings and proofs, a rehearing was refused.

      Note by the Editor. — That if a person having a right to an estate, or an interest therein, permit or encourage a purchaser to buy it of another, the purchaser shall hold it divested of the interest of the person so acquiescing, is in the following Ohio cases, besides the above, iii. 6; iv. 384; v. 333; x. 288, and cases cited in the last two cases.