author: Birchard, J.

text:
    Israel Dille and others v. Susannah Woods and others.
    Where a witness is objected to on the ground of interest, and by the statement in the bill of the party offering his evidence, it appears that he will be subject to a less liability, in the event of his recovery, than the sum to be recovered of the witness, in that event, by the opposite party, he is incompetent, notwithstanding his disclaimer of all interest in the suit.
    Where a bill alleges title in several, and the decree pursues the allegations of the bill, if the proof only shows a title to recover in a part of the complainants, the variance is fatal.
    This is a bill of review, filed to reverse a decree of this court, rendered at December term, 1842, reserved from.the county of Licking.
    The bill, in the original case, charged substantially as follows:
    That George Woods, on March 19, 1811, agreed in writing, with Erkurious Beaty and Samuel H. Smith, for the *purchase of 100 acres of land, therein described, for $400, payable in installments; that, on payment in full, said Beaty and Smith were to execute a deed; that Woods, in his lifetime, paid Beaty, to whom the agreement had been assigned, the purchase money, cxcept,$192, which was paid to Beaty by Abraham Pence, one of the defendants in the original suit, after the decease of Woods; that Woods, after having made payment, alleged, with interest, to amount to upward of $500, assigned the agreement to said Ponce, on December 1, 1824'; that the assignment of Woods was made on his death-bed, and for the purpose of enabling Pence (who was married to a daughter of Woods) to pay the balance due on the land, and to secure the title thereto, for the benefit of the widow and heirs of Woods; that, though absolute on its face, it was made for the purpose aforesaid, and received by Pence upon the express condition that, so soon as the title could be secured, he would make provision for the support of the widow, and convey to the children their respective portions of the land; that, at the time of the assignment, the land was worth $1,000; that Pence paid Beaty the $192, and procured a title from the heirs of Beaty, and has occupied the land till the rents and profits exceed the $192; and that, though he had supported the widow of Woods, he had never conveyed to the children.

      The bill further charged that, after Pence procured the title, viz., on July 9*1831, he mortgaged the land to J. and B. W. Brice, to secure the payment of $545.52; that, at the October term, 1833, of the court of common pleas of Licking county, a decree of foreclosure was rendered upon said mortgage, the debt and costs, then amounting to $641.21; that,'under the decroo, on December 2, 1833, the land was sold to said Dille, the attorney of the Brices in said suit and in drawing said mortgage; that Dille, at the time of the purchase, had knowledge that Pence was only a trustee; that Dille had conveyed the land to Francis Riley,who also had notice, and that Riley- was dead, leaving heirs who were made parties.
    *This bill was filed by the heirs of said Woods, and prayed among other things, that said Dillo and the heirs of said Riley might be decreed to convey to them their interest in the land.
    Dille, in his answer denied all knowledge of. the circumstances under which Pence held the land, and insisted that himself and the Brices, for Whom he acted, were innocent purchasers, without notice.
    Pence, by his answer, disclaimed all interest in the land, or in the suit, and was examined as a witness, by the complainants, for the purpose of proving the terms of the assignment of the contract to him, and of charging Dille with notice. His testimony was objected to by the defendants, because of his interest; but the objection was overruled.
    It appeared, from the testimony in the case, that the conditions on which Pence received the assignment of said article of agreement were, that he should pay the purchase money and procure the title; and when John and William, two sons of said Woods, came of age, on their paying him a debt he hold against said Woods, convey the land to them.
    A decree was rendered for the complainants, to recover which this suit is brought. Yarious causes for reversal were assigned, the sixth and thirteenth of which are decided by the court.
    The sixth is that Pence was an incompetent witness for the complainants,
    The thirteenth, that the proof did not sustain the allegations in the bill.
    H. H. Hunter and George B. Smythe, for complainants.
    James R. Stanbery, for defendants.
   Birchard, J.

This is a bill seeking to reverse a decree of this court, rendered in 1842. The case is reported in 11 Ohio, 125] *455. It contains fifteen assignments of error, of which we shall notice but those which appear to us well assigned. Among these is the sixth, which in substance is, that A. Pence, whose testimony was received on the former hearing, was incompetent by reason of interest.

This witness was a party to the suit, but had filed an answer, disclaiming all interest therein, prior to his examination. Upon the circuit, I was for ordering out his deposition, but in bank, finally assented to the united opinion of my brethren, that his interest, as between the parties, was equally balanced, upon the hypothesis that the money secured by mortgage, and for which he would be liable, in the event of the then complainant’s success, was equal to any sum which said complainants might recover; and that, if this were not so, it was incumbent upon the party taking the objection to show the inequality of interest, and that the balance was against them. On the former bearing, there seems to have been an oversight. An allegation of the bill, stating the value of the premises in dispute, could not have been noticed.

Wood’s heirs, who were complainants, in the event of their failure, upon their own showing, would be entitled to recover damages of their witness, equal to the entire value of the land in controversy. They even thought the rents and profits, received by him, during his possession of the premises, were more than sufficient to satisfy all claims that he ever had upon it. They also state, that the land was worth more than $1,000.

On the other hand, if Dille et al. failed in their defense, their claim against Pence would be limited to the moneys secured by the mortgage to Brice, amounting to $641.

The condition of the witness would be bettered, by their success, in a sum equal to the difference between $1,000 and $641. For this reason, the decree should be set aside.

The thirteenth assignment is, in substance, that there is a variance between the allegations in the bill and the proof. The bill alleges that Woods assigned the contract to Pence, by an indorsement, *absolute in its terms, “ but merely in trust for the benefit of said widow and children ; and that it was received by Pence upon the express understanding that, so soon as the title could be secured, he would make provision for the support of the widow, and convey to said children their respective proportions of the land.”

The proof was, that at the date of the assignment, Woods lived on the land with Pence, to whom he was indebted, and requested Pence to make arrangements to pay the balance due upon it; that ■he proposed to assign the title bond to him, and when the sons, John and William, came of age, they were to repay him, and to have the land, and to pay each of the girls something; and “the widow was to have her support off the lands.” “ The assignment (says Pence) was made upon these conditions.”

The bill alleges an agreement to convey to each of the children. The proof sustains an agreement to convey to two only. By the allegata of the bill, all the complainants had a joint right to pursue an interest in the land, and to have a joint decree for the title. By the proof, the girls were to have a claim for something against John and William, who alone were to have the title. The point was not particularly brought to our attention on the original hearing, and the question escaped a critical examination. It is, nevertheless, fatal to the decree. The proofs and allegations, in chancery as well as at law, must correspond.

The evidence of Armstrong does not, in this respect, aid that of Pence. Nor did the facts, which showed a right in John and William only, justify a decree of title in favor of the other heirs of Woods.

Another exception is, that the decree makes no provision to secure Dille, in whatever equity Pence may have had in the land, at the date of his mortgage. As the case stood, we were not aware that he had any equitable claim, nor are we now sure that he had. After the assignment by Woods to him, he occupied and enjoyed the premises, and received the rents and ^profits, until the date of his mortgage; and since then, he and those claiming under him, have done the same. If an account had been demanded, the probability is, that a large balance would have been due to the heirs of Woods, at the date of the mortgage. The principle contended for by counsel, that the mortgage would secure to the mortgagee whatever equity the mortgagor had in the premises, although failing to vest the legal title, is undoubted. Should a further hearing disclose anything to make this principle available to the present complainants, our former decision will not be found to contain anything in their way. Decree reversed, and cause remanded.


source: Caselaw Access Project

author: Hitchcock, J.

license: Public Domain

text:
    Richard Porter and others v. Frederick A. Kepler and Englebert Caprans.
    In an action against persons, charging them as stockholders of an unauthorized banking association, if the jury find a verdict against a part of the defendants, and in favor of others, judgment may be rendered against those who are found to be liable by the jury. The common law rule upon this subject is changed, so far as respects this class of cases, by the act of January 27, 1816, entitled “an act to prohibit the issuing and circulating of unauthorized bank paper.”
    If the plaintiff shows a good cause of action, in his declaration, although informally and defectively stated, the judgment will not be arrested after verdict; nor for this cause will a judgment of the court of common pleas, in pursuance of such verdict, be reversed on error.
    This case comes into this court by a writ of error to the court of' common pleas of Stark county.
    The original case was an action of debt in favor of the defendants in error against the plaintiffs.
    *The declaration contains two counts. In the first, after commencing in the usual form in debt, it is set forth that heretofore, to wit, on April 6, 1839, the defendants were stockholders, shareholders, and partners in a certain institution, bank and moneyed association, not incorporated as a bank by any law of the State of Ohio, nor authorized by any law of the state to lend money .or otherwise act as a bank, which association was by them styled the Orphans’ Institute Bank, otherwise called the Stark County Orphans’ Institute Bank; and afterward, to wit, on April 6,1839, at said county, the said unincorporated bank did, by their agents and officers (naming them), issue certain notes, bills, contracts, and checks, calculated and intended to pass and circulate by delivery to a large amount, to wit, to the amount of $30,000; and, being thus associated, and having thus issued their notes, bills, contracts, and checks, the defendants issued their certain other bill, called a certificate of deposit, which is as follows: “ Dolls. 212, Orphans’ Institute Bank, Canal, Fulton, April 6,1839. This certifies that Messrs. Kepler & Caprans have, for themselves, deposited in this office $212, to bo paid to their order on return of this certificate. R. Hubbell, Jr., treasurer.” By reason of which, the defendants becam'e, and were liable to pay to the plaintiffs said sum of §212, above demanded, when thereunto requested, and in consideration of the premises, the defendants promised to pay, etc.
    The second count is as follows: “And, for that, whereas, heretofore, to wit, on April 6, 1839, at said county of Stark, the said defendants were indebted to the plaintiffs in the sum of $212; for so much money before that time had been received by the defendants, to and for the use of the plaintiffs; and being so indebted, in consideration thereof, afterward promised,” etc.
    “Yet the defendants, although often requested so to do, have not paid said sums above demanded, nor any part of them, but have therein wholly failed, to the damage,” etc.
    *To this declaration a plea of nil debet was filed, at the September term of the court of common pleas, 1843;'the case was submitted to the court, the intervention of a jury being waived ; and the court found the issue joined in favor of the plaintiff, as against all the defendants except three, as to whom the court found against the plaintiffs.
    Subsequently, and at the same term, a bill of exceptions was signed by the judges, and allowed to be made a part of the record. From this bill of exceptions, it appears that a paper-writing, a copy of which was set forth in the declaration, was given in evidence by the plaintiffs, and it was proved that the same was issued in the manner stated in the declaration; and it was further proved that said certificate was givenforthebills issued by the officers of the institution, calculated and intended to pass and circulate by delivery as money. In argument, the defendant’s counsel insisted that said certificate was given without consideration, and was illegal and void; and did not, by law, entitle the plaintiffs to recover for the same. But the court found, as before stated, and rendered judgment, upon such finding.
    The errors as signed are as follows:
    1. That the action being in form, ex contractu, in usual and eommon law form, and part of the defendants being found not to be liable, judgment was rendered against the other defendants, when, by law, it should have been rendered in their favor.
    2. That the contract offered in evidence in support of said action, and on which said judgment was predicated, was without consideration and void, and did not entitle plaintiffs to judgment.

      3. That the first count in said declaration, on which said judgment was rendered, is not sufficient in law to sustain said action ; being insufficient, among other causes, in this, to wit, that it contains no statement of the consideration on which the contract therein set forth was founded.
    4. That there is, in said declaration, a misjoinder of actions; the first count being in debt, and the second in assumpsit.
    130] *5. That there is a variance between the declaration and the judgment; the former being in assumpsit, and the latter being a judgment in debt.
    Griswold & Grant, for the plaintiffs:
    In the argument of this case, we propose to do little more than call the attention of the court to the matters of error which appear to us to arise on the record. The points of law involved are, for the most part, such as every student is familiar with.
    1. The first error assigned, is the rendition of judgment against part only of the defendants in the suit. The declaration proceeds for the breach of a contract which the defendants are alleged to have made; that is, it counts on a liability of the defendants, arising on a contract. This is the case with both counts.
    But no principio is better settled than this: “In an action ex contractu against several, it must appear on the face of the pleading that their contract was joint, and that fact must also be proved on the trial." 1 Chit. PL, 8 Am. ed. 44 a. “Although in actions for torts, one defendant may be found guilty, and the other acquitted; yet, in actions for the breach of a contract, whether framed in assumpsit, covenant, debt, or case, a verdict or judgment can not in general bo given, in a joint action against one defendant, without the other.” Ib. See also Walcott v. Canfield, 3 Conn. 198, a strong case to the same effect.
    The exception in this rule is, “when one of the defendants is discharged from liability, by matter subsequent to the making of the contract, and which operates to protect him individually, leaving the contract in other respects in full force; as by bankruptcy, etc.” 1 Chit. PL, 8 Am. ed. 45. In New York and Massachusetts, this exception has been extended so as to embrace cases of 131] infancy. Hartness et al., v. Thompson *et al. 5 Johns, 160; Woodward v. Newhall, 1 Pick. 500. But, in all cases within the exception, the plaintiff must enter a nolle prosequi before judgment, or the matter of discharge must otherwise appear by the record, and, we suppose, must be presented to the court by a distinct plea. 20 Johns. 160.
    The rule requiring the contract proved, to correspond with the contract stated in the declaration, is also pertinent here; for it appears by the record that the contract alleged to have been made by all the defendants, was proved to have been made only by a part of them.
    Perhaps the defendants in error will seek to obviate this first error assigned, by appealing to the statute of 1816 (Swan’s Stat. 136), making stockholders, etc., of unauthorized banking associations, liable individually for “the bonds, notes, bills, and contracts of such bank.” Sec. 11. And, in actions, against several persons, on such contracts, authorizing a recovery against such only as are proved to be stockholders, etc. See. 14. There are two answers to this argument, either of which we think perfectly conclusive.
    I. The declaration does not count on the statute, nor make any allusion to it. It proceeds upon a contract, the second count being in fact a common count in assumpsit for money had and received. The first count indeed alleges that the defendants were stockholders, shareholders, and partners in an unauthorized banking association which issued notes contrary to law; but it does not appear by the count, that this averment has any pertinency, or is anything more than a superfluous and verbose description of the defendant’s. There is no reference, in either count, to any statutory liability. But “ when the act of omission, which is the foundation of the action, was not an offense at common law, it is necessary, in all eases, to conclude against the form of the statute, or to show at least that the declaration is founded on the statute; and this is necessary also in an action to recover back money lost at play. 1 Ch. Pl., 8 Am. ed. 373.
    *2. The contract declared upon is not averred to be a contract of the unauthorized bank mentioned in the first count, and it is only on contracts of the bank, that the individual stockholders are made liable by the statute of 1816. Secs. 11-13, Swan’s Stat. 137, 138. On the contrary, the first count distinctly alleges thatr the defendants “ issued” the “ bill” therein set forth, thereby negativing any presumption that the contract was a contract of the “ bank.”
    II. The second error assigned is, that the contract offered m evidence was proved to be without cousideration. The facts upon which this error was predicated, are shown by a bill of exceptions, by which it appears that the certificate of deposit declared upon, was issued for the circulating notes of an unauthorized bank, which were worthless and void under the statute of 1824. Swan’s Stat. 154. We can only refer the court, on this point, to the bill of exceptions, the statute, and the case of Wright et al. v. Porter et al., decided in bank December term, 1841, but not reported. Though the statute makes the stockholders of such associations liable for the contracts of its officers, it means of course such contracts as would be binding, if made by individuals.
    III. The third error assigned is, that the first count, being a count on a simple contract, contains no sufficient statemeut of a consideration. We do not suppose the instrument set forth to be a bill of exchange or a promissory note importing a consideration; and, though a consideration may be inferred from the language of the insti’ument, we do not think this circumstance excuses the omission of a formal statement of the consideration on which the contract was in fact made. We simply cite the following well-known rule, as applicable to this point: “ In declaring upon a contract, not under seal, it is in all cases necessary to state that it was a contract which imports or implies a consideration, as a bill of exchange or a promissory note, or expressly to state the particular consideration upon which it was founded. 1 Chit. PL, 8 Amer. ed. 293.
    IY. The fourth error assigned is a misjoinder of causes of action; the first count being in debt, and the second in assumpsit.

    *Tbat the second count is a common count in assumpsit, for money had and received, the simple reading of it will suffice to prove; but it may not be so easy to show that the first count is a count in debt, though it purports to be so, and can not otherwise be in conformity with the writ. The only reason to doubt whether it is a count in debt, arises from the following averment, which it contains : “ And the defendants, in consideration of the premises, afterward, to wit, on the day and year last aforesaid, at the county aforesaid, undertook and promised to pay the amount,” etc. On examination of authorities, however, we are convinced that this statement of a promise may be rejected as surplusage, and that the count is, notwithstanding;, a count in debt. Thus, “it has been recently held that the words ‘ undertook and agreed to pay,’ do not necessarily import the form of action to be in assumpsit, but are good in debt.” 1 Chit. Pl., 8 Am. ed. o62.
    To show that a misjoinder of causes of action is fatal on error, we cite as follows: “ Counts, in one species of action, can not be joined with counts in another. Thus assumpsit, covenants, debt, or account can not be joined with each other.” 1 Chit. PL, 8 Am. ed. 201. “The consequences'of a misjoinder are more important than the circumstance of a particular count, being defective; for, in the case of misjoinder, however perfect the counts may respectively be in themselves, the declai’ation will be bad on general demurrer, or in arrest of judgment, or upon error.” Ib. 205.
    Y. But if both counts are in assumpsit, then is the judgment (which is clearly a judgment in debt) not adapted to the form of action, and is therefore, we suppose, manifestly erroneous.
    In conclusion, we would urge that the action of assumpsit can not be sustained on a liability created by the statute of 1816, already referred to. From the nature of its provisions the declaration must be special, and must proceed upon some “bond, bill, note, or contract” of the “unauthorized bank,” of which the defendants are stockholders, etc.; and so the statute, in express *terms, requires. Secs. 11, 12, 13, Swan’s Stat. 137, 138. We have heard that this question has been decided somewhere in this state, but can not refer to the case. ’But as we suppose the declaration in the case at bar is not so framed as to bring the statute in question, we deem this point of little importance.
    And if the action of assumpsit can not be sustained on a liability arising on this statute, it follows that debt, in its ordinary form, that is, predicated upon a simple contract of the defendants, is equally unsustainable.
    Harris & Brown, for the defendants:
    The record shows that the suit was brought against the defendants below, as members of an association that had illegally issued notes as bank notes, intended to circulate as money. The first error assigned is, that judgment is rendered against part only of those that are sued. The counsel might have saved himself the trouble of citing authorities to prove that, in a common ’action on contract, judgment must be rendered against all sued or none., But this suit is brought on the statute of 1816, to prevent unauthorized banking, and unless it can be sustained under the provisions of that statute, it can not be sustained at all.
    The court can not overlook the fact that the first count is framed on that statute. The count commences by setting out that the defendants were “ stockholders, shareholders, and partners ” (using the words of section 11 of said act) of an unauthorized banking association. That, by their officers, they (the association) issued “bonds, notes, and bills to pass and circulate by delivery ” (using the term of section 2), which rendered the defendants individually liable; and, having done that, we then set out the “contract,” on which we seek to recover.
    The finding of the court and the rendition of the judgment is in strict accordance with the provisions of section 14 *of the act, that provides that if all sued are not found liable, judgment shall be rendered against such as are. But counsel seem to think that, because we do not conclude “contra forma’’ that it is not a declaration on the statute.. Yet the very authority cited by the counsel says it is enough if it appears that the declaration is founded on the statute. The act of 1816 is a public act. This court will take judicial notice of its existence ; and it abundantly appears, from the declaration, that it is founded on the statute, and slight informalities will not avail in error. The second count is a common count in debt, on simple contract, in strict accordance with precedents, and may be well joined with the special count, however that is founded.
    The objection raised on the bill of exceptions, that the writing given in evidence was without consideration, is wholly without foundation.
    The counsel seems to think that, because the circulating paper ' of this association was declared void by this court, in the case of Wright v. Porter et al., a case decided but not reported, and because the paper on which this suit is brought, was given in redemption for such circulating paper, that it must be void also; though the counsel well knows that the facts were precisely the same in Wright v. Porter et al. as in this case. This court decided, in that case, that no recovery could be had on the circulating paper, because, by section 23 of the act of 1824, Swan’s Stat. 15, it is provided that “no suit shall be brought upon any note or notes, etc., intended for circulation; ” but that, if the contract existed in any other form, suit might be sustained and recovery had. The decision, therefore, of this court, in the case of Wright v. Porter et al., fully sustains this cáse, so far as this objection goes. The decision is undoubtedly in strict accordance with the plainest principles of law. The banking association was bound in common honesty to redeem its paper; and, although the statute had barred a recovery, yet, the paper having been exchanged for a promise in another form, on which a recovery is not prohibited, the moral obligation that existed to redeem, is undoubtedly a good consideration -Tor a promise in a form that the statute will enforce. It is not unlike a promise fo.pay a debt contracted by an infant who is shielded from any liability on such promise or debt made and contracted when an infant; but the moral obligation to pay the debt or fulfill the promise,- is. an abundant consideration to sustain a promise to pay, made after the infant arrives at full age, although no recovery could be had on the original promise or contract.
    The third error assigned is, that no consideration is averred. The reading of the declaration shows that this error does not exist as a matter of fact. The first count clearly sots out the issuing of illegal bank paper for circulation, by which the defendants, as stockholders, shareholders, and partners, became legally liable to pay the debt counted on; and then avers that, being so liable, in consideration of such liability, the defendants promised to pay, etc.
    The fourth error is, that there is a misjoinder. The action is clearly an action of debt on simple contract, as appears from all the papers. The precipe, summons, and declaration are in debt. The plea is in debt. The finding of the court and the judgment is in debt.
    The second count is a common count in debt, on simple contract, for money had and received, for the sum of $212 debt, the same amount counted for in the special count, and does not vary materially from a common count in assumpsit, as the precedents fully show they were not.
   Hitchcock, J.

This being an action at common law in form ex contractu, if it were to be governed by the ordinary common-law rules, there is no doubt that the first error assigned would be fatal to the judgment; for perhaps no rule is better established, than that, in such case, all the defendants, or none of them, must be made liable. A verdict in favor of one, operates to acquit all But the declaration shows that the defendants wore unauthorized bankers, issuing and putting in circulation *paper in the similitude of bank notes or bills intended to pass as money; and this rule has been modified by statute, in cases like the one now before the court. On January 27, 1826, the act “to prohibit the issuing and circulating of unauthorized bank paper,” Swan’s Stat. 136, was passed, and makes provision for cases like this. Section 11 of that act provides, “that every stockholder, shareholder, or partner, hereafter interested in any such bank,” that is, any unauthorized bank, “shall be jointly and severally answerable, in their individual capacity, for the whole amount of the bonds, bills, notes, and contracts of such bank herealtor executed; anjr agreement, shift, or device, in such bond, bill, note, or contract, or otherwise, to the contrary notwithstanding.” ■ The next section provides that the holder of any such note, bond, bill, or contract! may institute suit and recover judgment against all or any part of the persons interested in such association. Section 14 provides that “if, during the progress or in the trial of such suit, it shall appear that any one or more of tho defendants are not liable to such action under this act, it shall not pi’event tho suit from proceeding as to any other defendant, but judgment shall be given for the full amount of such bond, bill, note, or contract, against anjr ono or more of the defendants, who may appear to be liable.” The judgment in this case was entered in pursuance of this provision. And wo must either sustain it or overrule the statuto itself. This we have no legitimate power, nor have we any desire to do, for we believe it to be based upon the principles of j ustice.

But it is claimed that this action is not under the statute, but is a mere ordinary action of debt. The statute does not give any new form of action ; it merely changes the rale of law as to tho mode of proceeding and in the rendition of judgment. It declares in section 13, “ that in such suit,” if it is a suit upon a bond, note, bill, or contract of .such unauthorized banking company, it shall “, be sufficient for the plaintiff to set forth, in substance, that he is the holder of such bond, note, bill, or contract; that the defendants were interested in said bank, at the -tdate of such bond, note, bill, or contract, or subsequently thereto ; and that the same is unpaid,” etc. All this has, “in substance” been done in tho present case; and therefore, so far as the first error assigned is concerned, the judgment is well enough.

2. The second error assigned is, that the contract set forth in the declaration, and offered in evidence, is without consideration and void. It was a contract of an unauthorized banking institution, and the defendants were stockholders and shareholders of that association. The law before referred to makes the stockholders individually liable for all the contracts of the association. It is true that section 23 of the act of January 28, 1824, to regulate judicial proceedings where banks and bankers are parties, Swan’s. Stat. 147, provides that no action shall be brought upon any notes or bills thereafter issued by an unauthorized bank, and intended for circulation ; and that the same shall be held and taken in all courts as absolutely void. But this contract is not a note or bill intended for circulation. It is merely a certificate of deposit, and is such a contract as this court held in case of Wright against Porter and others was valid as against the stockholders of this same Orphans’ Institute and Bank. There was in fact, however, a consideration for the contract, and that consideration consisted in notes which had previously been issued by the same association, intended for circulation. And the argument is that, inasmuch as these notes were void, therefore' there was no consideration. The legislature, from motives of public policy, declared such notes to be void. But we can not, the.relore, go further and say that'Other contracts, which the same body has declared to be obligatory, are void.

The next error assigned is, that the declaration is defective in not setting forth the consideration upon which the contract was given. This, under the statute, is not necessary. ..But, in fact, the consideration does sufficiently appear in the contract itself; and this contract is made a part of the declaration. It was given for money deposited in the office of the association, *and which they promised to pay on the order of the defendants in error.

The fourth error assigned is, that there is a misjoinder of counts in the declaration, the first being in debt, and the last in assumpsit. i •

The record shows that the precipe in the case was in debt, the writ was in debt, the declaration commences in debt, it concludes as in debt, the plea is as in debt, and also the judgment. It is true that the pleader has raised a promise upon the liability set forth, as in assumpsit. But this promise may well be rejected as surplusage. It was unnecessary to state it. And after verdict, when the case shows that the plaintiff had a good cause of action, although it may have been informally set forth, we would not, for that cause, arrest the judgment, nor will we, for such cause, reverse the judgment of an inferior tribunal. If the counsel for the plaintiff in error supposed there was a misjoinder in counts, it would have' been well to have demurred. But even had the question been ¡presented on demurrer, we incline to the opinion that the declaration must have been sustained.

This disposes of the fifth error assigned, which is, that the judgment is erroneous, because the declaration is in assumpsit, and the judgment in debt. We think the declaration is in debt, and therefore the judgment is properly entered.

In the opinion of the court there is no error in the record, and the judgment of the court of common pleas must bo affirmed.


author: Read, J.

text:
    *Robert Ferguson and Wife v. The Executors of William Stuart, deceased.
    Land directed by a will to be sold and converted into money, is treated as personal estate.
    Where land is thus directed to be converted into money, and the interest of one-third secured to the wife, and the residue to go to tho heirs of the testator, under the statute of descent and distribution, if there is no heir capable of inheriting, the entire interest is vested in the wife, and she may sustain a bill in chancery against the executors to compel an account and enforce the payment of the money to her.
    This is a suit in chancery, reserved in the county of Butler, and comes before the court on demurrer to the bill.
    The bill alleges that William Stuart died testate on March 9, 1833, and that his will was duly admitted* to record in Butler common pleas; that said Stuart died seized and possessed of divers parcels of real estate and chattel property; that testator, in said will, directed his executors to sell his real estate, and deposit the proceeds in some good bank, to accumulate interest on deposit; that a legacy of seven dollars per annum, forever, should be paid to Bethel Church; that his widow, Keziah, one of the complainants, and wife of said Bobert, should draw one-third of all the interest annually accruing on said fund, and that the money aforesaid should go to his heirs.
    That the defendants, the executors appointed by said will, sold all the real and personal estate, collected debts, payed off just demands, and made a settlement of their accounts at the October term of said court, 1836, by which it appeared that there remained in their hands $3,688.61, to be distributed agreeably to said will.
    That said Keziah was the lawful widow of Stuart, and was married to Ferguson in November, 1833; that they have received but $430 on account of annual interest, directed to be paid to Keziah, and that the balance is in the hands of said
    ^executors; that Stuart died leaving no children — no brother or sister, of whole or half blood — no father or mother, and no legal representatives of any or either of them, and no one of kin to, and of the blood of, said Stuart residing in the United States; and that petitioners are not aware of any heirs of said Stuart being aliens, and that if there be such alien heirs, they are barred from prosecuting their claim to said estate by statute regulating descent and distribution of personal estate, passed February 24, 1831, ten years having elapsed from the death of said testator; that said estate was acquired by said Stuart by his own labor, industry, and skill, and that no part thereof came to him by descent, or devise, or deed of gift from any ancestor. The complainants therefore claim that said estate shall be given to said Keziah, as the lawful wife relict of said Stuart. They further state that said executors had loaned out said sum of $3,688.61 at the rate of ten and twelve per cent, per annum.
    The bill calls upon respondents to answer as to the amount loaned by them, the rate of interest, etc., and prays that the whole amount, together with all interest and profit arising therefrom, shall be decreed to be paid to said complainants; also a prayer for general relief.
    To this bill there is a general demurrer, and joinder in demurrer.
    TnoMAS Millikin and George J. Smith, for complainants:
    We insist that the bequest in the will of William Stuart,- deceased, is one of money, and not of land. The intent of the testator was evidently to stamp upon the proceeds of the land directed to be sold the quality of personalty.
    It is a well-settled principle in equity that land directed in wills or other instruments to be sold and converted into money, and money directed to be employed in the purchase of land, are considered as that species of property into which they are directed to be converted. Croome v. Henning, 4 Hawks, 393 ; *Craige v. Leslie et al., 3 Wheat. 563; Doughty v. Bull, 2 P. Wms. 323; Fletcher v. Ashburner, 1 Bro. Ch. Cas. 501; Yates v. Compton, 2 P. Wms. 303; Edwards and wife v. Countess of Warwick, 2 P. Wms. 171; Gott v. Cook, 7 Paige, 521.
    In 3 Wheat. 563, Mr. Justice Washington reviews the loading decisions on the subject, denies the authority of those chat conflict, and establishes the principle as true in respect to all persons and for all purposes. It is founded upon the principle that equity considers that as already done which the testator in his will directed, and which, in conscience, ought to be done.
    The bequest being of personalty, the question arises, is Keziah Ferguson the “ heir ” or person entitled to receive under the will. The will was executed on March 6, 1833, and the law in force at that time provides, “That when the deceased shall not have left any legitimate child heir of his body, the widow shall be entitled to the whole residue of the personal property, after the debts, funeral charges, and other incidental expenses shall have been paid. 29 Ohio L. 236, see. 28.
    The bill avers that the testator “ died leaving no children — no brother or sister, of whole or half blood — no father or mother, and no legal representatives of any or either of them, and no one of kin to, and of the blood of, said Stuart, living or residing in the United States of America,” and that “petitioners are not aware of any heir or heirs of said.Stuart being aliens.” The averment is positive as to the non-existence of any children. In the case of a person dying intestate, without leaving a legitimate child heir of his body, the widow is entitled to the whole residue of the personal property after the payment of debts, etc. Tide 29 Ohio L., supra. Now if, as we insist, the decedent, William Stuart, as to the proceeds of the sale of his real estate converted into money, as provided in, and directed by, his will, died intestate, the same consequence would follow, and his widow would take those proceeds, under the statute of distribution, as heir quoad, that money, and not *under the will. The bill, however, in this case. goes further, and avers that Stuart died leaving no brother, sister, father, or mother, etc. It is evidently drawn under the erroneous supposition that other persons than legitimate children, heirs of the body of the decedent, might take personal property as heirs. It is urged by defendant’s counsel, in support of the demurrer, that the bill admits the existence of “ unknown heirs of William Stuart, who should be made parties defendant to the bill.” To this we answer : »
    1. The averment in the bill is positive as to the non-existence of children of the testator, who alone could be heirs before the widow. If, therefore, the bill did admit the existence of relations other than children, which it does not, it would be immaterial, kid might be rejected as surplusage.
    2. It is not stated in the bill that Stuart died leaving “unknown heirs. ” The law provides for making the heirs of any decedent defendants, whose names and places of residence are unknown. Swan’s Stat. 702, sec. 10. To make such persons defendants, their existence must be admitted. The bill denies having any knowledge, not of the names and places of residence of heirs, but of their very existence. If the defendants know of the existence of heirs, they may allege it in their answer, and make them parties. Swan’s Stat. 707, sec. 25. It is urged again by defendant’s counsel, that the statute of Ohio, 29 Ohio Laws, 236, making the widow the heir in the absence of children, applies exclusively to intestate estates. We admit the position to be correct; but we insist that, as to the proceeds of the real estate of decedent, he did die intestate, the provision in the will to the contrary notwithstanding. That clause of the will is in these words: “It is my will that the money aforesaid go to my heirs.” Now we claim that there is a void bequest, for the following reasons:
    1. Because of the uncertainty of the intended legatee; the word “heirs,” in the legacy, has a very indefinite meaning, and uncertain reference, and particularly so, when considered in connection with the facts stated in the bill, as to the want of brothers or *sisters or other relatives of the deceased. It is a settled rule, in the construction of wills, that where the will is uncertain as to the persons to whom bequests are made, the testator

      will be regarded quoad hoc as intestate, and the property be distributed according to law. Rathmaler’s Admr’s v. Myers, 4 Dos. 215; Trippe v. Frazier, 4 Har. & Johns. 446.
    If a legacy of personal property fails, it is distributable as undisposed property. If the words of the will do not carry. the estate to some other person, it descends to the heir at law, however different the intention of the testator may have been. Schauber v. Jackson, ex dem. Bryant et al., 2 Wend. 12; Jackson v. Martin, 18 Johns. 31.
    2. The legacy is void, because the testator has made the same disposition of his property as the law makes. It is a settled rule of law, that, where the same estate is devised to the heir, in quantity and quality, as he would have taken by descent, if there had been no devise, the devise is void,, and the heir will take by descent. Hunt v. Earl of Winehelsea, 1 ^m. Black. 187; 4 Kent’s Com. 494, title Parties to Devise; Eulaws v. Eulaws, 3 Marsh. (Ky.) 230; McAfee v. Grilmore, 4 N. H. 391.
    The word “heirs,” as used in the will, means “heirs” quoad the property bequeathed — those that are designated by the law to inherit personal property. In Croona v. Henning, 4 Hawk. 393, B. W. having several children, to the elder of whom he had made considerable advancements, made his will, and, after devising real and personal estate to his wife and to his younger children, and confirming the advancements made to the elder, directed the residue of his estate, real and personal, to be sold, and the proceeds to be divided among his “ heirs, ” according to the statute distributing intestates’ estates. Held, that the word heirs, as here used, means heirs quoad the property, and not “children” “next of kin, ” or “heirs at law.” By it, is to be understood those whom the law appoints to succeed beneficially to the property in question. This decision is directly in point, and strongly authoritative. It settles the Adoctrine, that the nature of the property devised (whether real or personal), must determine the meaning of the word “ heirs. ” The fact that a legacy of one-third of the annual interest accruing on said fund has been given to the widow, does not alter her right. She must take it by gift of law, if not in consequence of the testator’s intentions. Starkey V- Brooks, 1 P. Wms. 390. It is further urged by defendant’s counsel, that the executors are made, by will, trustees of the widow of Stuart, during her lifetime, and that she and her husband have Co right to take the estate out of their hands. Here the widow is the cestui qui trust, and the one beneficially entitled to receive the whole amount of the trust fund. The smaller legacy of one-third of the interest is merged into the larger one of the gross sum of the trust money. It is as if the legacy of interest had not been given, and the widow claimed the whole amount of money under the law. The purpose of equity will be best subserved, by decreeing its direct and immediate payment to her. “It is settled in this court, that the person for whose benefit a trust is created, who is to be the ultimate receiver of the money, may sustain a suit in equity to have it paid directly to himself. ” Russell v. Clark’s Exr’s, 7 Cranch 69.
    For what purposo will the executors, as trustees, hold this money during the lifetime of the widow? We think that the reason of the rule fails, and that the object of the trust is fully satisfied when the money is paid over to the heir,' or residuary legatee and cestui que trust, who are blended in one person. Equity.kas always assumed and exercised this power over trust estates in analogous cases. In Craige v. Leslie, 3 Wheat. 578, whore the testator, in his will, devised and bequeathed his real and personal estate to John Leslie and four others, in trust to sell the samo, and then bequeathed the proceeds of his said estate so directed to bo sold, to his brother, Thomas Craige, to be remitted to him as the payments were made, it was held by the court, Washington, J., “That where the whole beneficial interest in the money in the one case, or in the land in the other, belongs to the person for whose use it is given, a *court of equity will not compel the trustee to execute the trust against the wishes of the cestui que trust, but will permit him to take the land or money, if he elect to do so, before the conversion has been actually made.”
    No argument was submitted for the defendants.
   Read, J.

In this case, had there been no will, the wife, as next of kin, would inherit the whole personal estate by the express letter i.f the act of 1831, regulating the descent and distribution of personal estate. This provision of the statute respecting personal estates that came not by descent, decreeing a deed of gilt, reads as jollows: “ That when any person shall die intestate, or who has heretofore died intestate, leaving no one of kin of the blood of the intestate; or if the kin or heirs of the blood of such intestate bo aliens residing out of this state, the estate of such intestate shall pass to, or be vested in, the husband or wife, relict of such intestate, unless such alien or aliens shall appear and prosecute his or her claim within ten years after the death of such intestate ; provided that the alien heir of any intestate who has heretofore died, shall bo allowed fifteen years from the death of such intestate, to assert his or her claim to the estate of the intestate.”

The bill sets up every fact necessary to give the estate to the complainant, as wife, if in fact it be personal estate; and the fact that the husband made a will, does not take the case out of the statute. The land named in the will was directed by the testator to bo converted into money, which has been done. This changes the realty into personal estate.

By the will, just debts are directed to be paid, and seven dollars per annum are given to the Bethel Church, for the support of the gospel. The money arising from the sale of the land is to be put at interest, one-third of which is to bo paid an'nually to the wile of the testator, during her natural life. The testator then declares, “ it is my will that the money aforesaid go to my *lieirs.”

The law determines who are a man’s heirs, and this leaves that portion of the estate not specifically disposed of by the will, to the statute of descents and distribution, to designate the heirship precisely as though no will had been made. That act, under the circumstances alleged in the bill, declares the wife an heir. The complainant, the widow of the testator, as legatee and heir, then takes the entire estate, by the express direction of the will, as well as by the operation of the act. The will, after having carried out certain interests, declares that the estate shall go to his heirs; the statute declares the same thing. The fact that a provision has been made for the wife by the will, does not prevent her from being an heir. Under certain circumstances she would not have been the heir; but there being none under the statute capable of inheriting, it declares her to be the heir. If we should hold, or, could hold, that to make the wife the heir violated the intention of the testator, it would be declaring that it was his intention expressed in the will, that if he had no heirs capable of inheriting but the wife, his estate should escheat to tho State of Ohio. Such construction would neither be in accordance with the intention of the testator, nor the spirit of our laws.

The complainant, then, having the whole interest, is entitled to tho relief sought against the executors — the Bethel Church being secured in its legacy. Demurrer remanded, leave to answer, and cause remanded for further proceedings.