author: Grimke, J.

text:
    * James Wilson, by his next friend, v. George F. Bull and others.
    A conveyance, by a wife to a husband, through a trustee, obtained by undue influence on the part of the husband, is void.
    The regularity of proceedings in partition can not be inquired into collaterally.
    This is a bill in chancery from the county of Fairfield.
    Dr. James Wilson devised his real estate to his children, Maria and James, and died.

      Maria afterward married George F. Bull.
    Afterward, during the-minority of James, in certain proceedings . for partition, George and his wife elected, under the statute, to take James’ half of the land; and'the sheriff, by order of tho court, made a deed of tho entire estate “ to George F. Bull and Maria Bull his wife, their heirs and assigns.”
    Not long after, in May, 1837, George and his wife made a deed to G. B. in trust, that on the request of George, tho trustee should convey the lands “to George and his wife during their joint lives, remainder to the survivor in fee.”
    Mrs. Bull survived the execution of this deed but a few days, and in dune, 1837, after her death, the trustee conveyed the lands to the husband.
    This bill is filed by James to set aside these two deeds, on the ground, as he alleges, that George, by undue influence, and by harsh and ill usage, procured his wife, then in her last sickness, and beyond all hope of recovery, to join with him in the deed to the trustee, and that the deed was never delivered, nor its contents made known to Mrs. Bull.
    The bill also prays that the proceedings in partition, on account of certain irregularities therein, may be declared void.
    Ewing and Hunter, for the plaintiff:
    It is the well-established doctrine, that where the wife, by ^marriage articles, or in any other manner, has a power of [251 appointment which she can execute without the concurrence of her husband, she may execute it to him as well as to another, with only this caution, that the transaction is to be narrowly watched, on account of the danger of improper influence. Chancellor Mont, with his usual ability, has investigated this subject in Bradish v. Gibbs, 3 Johns. Oh. 549. He there says, Lord Eldon, in Parkes v. White, 11 Ves. 222, when speaking of the power of disposition of a feme covert over estates settled to her separate use, observed that the court had no difficulty in supposing that a woman having such interest might give it to her husband as well as any one else. The cases never intended to forbid that, and if he conducts himself well I do not know that she can make a more worthy disposition, though certainly the particular act ought to be looked at with jealousy. Indeed, it is a clear point through the books, that a married woman having a power which is a right to limit a use, may appoint to her husband in like manner as her husband may appoint to her. In the ease of the Methodist Episcopal Church v. Jacques, decided in October, 1817, in which the power of the wife over her property was largely discussed, it appeared that gifts to the husband had been constantly sustained, and the only check to them suggested in the cases is, that they are to be narrowly inspected on account of the danger of improper influence. If duly made in pursuance of the power, and at the same time fairly made, there is no pretense in any of the cases that a gift to the husband is not to be supported. There is no ground for the suggestion, that the husband who takes under a will, founded on marriage articles like these in the present case, is a mere volnnteer without consideration. The principle is well established, that when a person takes by execution of a power, he takes under the authority of that power. The meaning is, as Lord Hardwick expresses it, that the person takes in the same manner, as if the power and the instrument executing the power had been incorporated in one and the same instrument, and as if all that was in the instrument executing had been in that giving 252] the power. Now *the marriage articles are founded on the consideration of marriage, which is a good and valuable con. sideration, and the provision in the will is founded on the same consideration,'as if it had been a part of the samo antenuptial contract.”
    Now, it is to be remarked, as to these conveyances by the wife to the husband, which have been sustained in courts of equity, that they arise out of marriage contracts, entered into by the parties, with the aid of friends and by the intervention of counsel. In these cases the wife has her own attorney who counsels and assists her> in the first place, in framing the'articles, and afterward in settling and maintaining her own rights under them. The husband and wife stand more apart and independent of each other as to property where it is settled under marriage articles, and there is less of delicacy on her part in calling in the advice of friends, or of legal counsel, in a matter touching it, than in the ordinary cases which arise under our law.
    In those cases, too, the wife can act independently of the husband, and without his knowledge or intervention, and if she be not willing to make him the receptacle of her bounty, she can avoid that, and at the same time put an end to his importunities, by executing the power in his absence in favor of ancther.

      But not so in the class of cases to which this belongs. Here was no marriage settlement, and the facts in the case, in our opinion, show the employment of such undue influence and coercion, on the part of the husband, as must vitiate the whole transaction.
    We do not ask the court to reverse the proceeding in partition. That can not be done in a collateral suit. But if the deed from the defendant to his wife be declared void because of fraud or undue influence, then a court of equity, in furtherance of justice and to avoid multiplicity of suits, will examine the proceedings in partition, and adjust the rights of the parties, without requiring the plaintiff to proceed at law by writ of error. Indeed, if the proceedings in partition were reversed, still the aid of the chancellor will be required to set *aside the sheriff’s deed, which [253 can not be reached by any judgment of reversal in a court of law.
    H. Stanbery, for the defendant, Bull.
    The case of Bradish v. Gibbs, 3 Johns. Ch. 549, clearly shows that a provision by the wife for the husband is considered meritorious, and that a power will bo executed in his favor, which would not be even to a brother. Again, if any better consideration is required, we have it fully in this case. It is to be recollected that the husband is not merely a nominal gi'antor of this estate and power. At the time of the conveyance, Bull had, by the partition proceedings and sheriff’s deed, an equal interest with his wife. The consideration was, therefore, equal; and, in legal estimation, the chance of survivorship was equal. I should like to know, if the doctrine of complainant’s counsel prevails, what becomes of the husband’s moiety of this estate? Does that go along with his wife’s moiety to her heir at law, by reason of this non-execution ? Lastly, as to this point, there is a manifest error in treating this duty to convey as a mere power. It is in no sense a power; for powers are never imperative. They leave the act to be done at the will of the party to whom they are given ; but a trust is imperative. This is the language of O. J. Wilmot, 2 Sugden on Powers, 173, where it is further said, that we must be careful to distinguish between mere powers and powers in the nature of a trust.
    The remaining ground is as to the marital coercion. The argument for the complainant seems to proceed upon the idea, that a settlement made by a wife upon her husband is discouraged by the policy Of the law; and some attempt is made to liken it to the prohibited conveyances, from ward to guardian, etc. Such is not the doctrine of this court. On the contrary, in the language of Lord Eldon, “ the court has no difficulty in supposing that a woman having a separate estate might give it to her husband as well as any one else. The cases wore never intended to forbid that; and if he conducts himself well, I do not know that she can make a 254] more worthy ^disposition, though certainly the particular act must be looked at with jealousy.” Parkes v. White, 11 Yes. 222.
    It is clear from the evidence in this case, that Mrs. Bull exercised her own free choice, and that she made the deed to carry into execution her previous intentions, frequently expressed, of leaving her property to her husband.
    It stands admitted by the argument for the complainant, that there is no ground to impeach the proceedings in partition for fraud; matter of error is alone relied upon.
    The partition in this case was under the statute, not in chancery; if it had been, it would, of course, be subject to review, upon a proper bill. Neither is this a bill of review, but in so far as it relates to the partition, it is in the nature of a writ of error. I take it, nothing can be clearer than that a court of equity does not sit to supervise or correct the errors of a court of law.
    But it is said the matter alleged against the partition proceedings is not in the nature of legal error — that the judgment of the court awarding the premises to Bull and wife is merely void— that, consequently, the sheriff’s deed is also void, and being void, the complainant has a right to have them declared void in this court.
    I hardly know what is to be understood by the term legal error, as making a distinction in matters of error, or why a party should be entitled to call upon a court to declare a thing to be void which is void upon its face. It would be a nice matter to determine that it was more essentially void after the decree'than before.
    It is a now doctrine to hold, in respect of a judgment of a court having jurisdiction of the subject, that it is void, and that it may bo so treated in any collateral proceeding. It may be erroneous; that is all that can be said of it, and until it be reversed, in the proper way, it must stand and be respected.
    It is further argued, that a reversal of this partition in the usual way would not, because of the sheriff’s deed, entirely relieve the complainant. The title conveyed by that deed may or may not depend upon the affirmance or reversal of *those proceed- [255 ings, but it will be time enough for the complainant to come into this court for the cancellation of the deed, after he has removed its foundation.
   Grimke, J.

The land conveyed by the sheriffs deed did not, as respects her share, become the separate property of Mrs. Bull, as in Parkes v. White, 11 Ves. 222. If it were so, the conveyance from her could not- properly be executed by husband and wife, such property being placed entirely beyond any disposition or any participation of the husband. As to such property, a feme covert is to all intents and purposes a feme sole, and the conveyance of it would be by trustees appointed for that purpose. But in the present instance, the deed is by husband and wife, of the joint property of both, to a trustee, who is directed to convey back. Certainly no interest in the trustee is thereby created ; his widow would not be entitled to be endowed of one-third of the lands. He is, therefore, a mere channel of conveyance, and the transference of property, however circuitous it may be, results in the conveyance by the wife of her moiety to the husband. The creation of trust estates before marriage, and in contemplation of it, is very common, because the future wife is then surrounded by disinterested friends, and she is thus enabled to deal on an equal footing with her intended husband. The respective rights of the parties are then arranged before the marriage contract is entered into. But it must be a very strong case, if indeed any such case can exist, where a conveyance of this nature could be upheld after the marriage. There is an intrinsic inconsistency in a direct conveyance by the wife to the husband, whereas, in Ohio, the husband must be both grantor and grantee; and the inconsistency is not less real where the moans adopted are more circuitous, but terminate in the same end.

At the time when the deed to the trustee was executed, Mrs. Bull was laboring under a disease from which there was no hope of recovery. Not only was the husband aware that the machinery which he had contrived for the disposition of the property would almost necessarily result in a conveyance *to himself alone, [258 but her situation was such as to subject her peculiarly to an undue influence on the part of the husband; and we must say, that the evidence of such an influence being exercised is too strong and convincing to be resisted. The relation of husband and wife is such as very naturally to endow the husband with very great power and influence, and it is for this reason that the law watches with scrupulous caution any transaction between them which has for its object the disposition .of her property. It is unnecessary to repeat the testimony, or even to refer to it; -suffice it to say, that it has made but one impression upon us : that after every allowance is made for the bias which a grandmother might be supposed to have in favor of her grandson, the testimony of Mrs. Sturgeon ■is too clear and circumstantial not to be entitled to very great weight. The testimony of Mrs. Stinchcombe, if taken alone, would not perhaps have very great weight, but when taken in connection with that of Mrs. Sturgeon, it points to a transaction which can not be mistaken, and gives to those warm and excited conversations, which this witness so often overheard, a distinct and unequivocal meaning. We are satisfied that the circumstances under which the deed was executed, show that an improper advantage was taken of the feeble situation of the wife, and that it must be declared void, and so also must the deed from the trustee.

As to the proceedings in partition, this court has no jurisdiction to treat them as illegal, until they are declared so on certiorari. This is not a bill to set aside those proceedings as having been obtained by fraud ; it is an attempt to overturn them in consequence of error and illegality. When a court of errors has determined that matter, it will be time enough for this court to exercise its equitable jurisdiction.

Decree for the complainant.


source: Caselaw Access Project

author: *Lane, C. J.

license: Public Domain

text:
    *The City of Cincinnati v. Levi Buckingham.
    An ordinance of the city council, collecting twenty-five cents from the persons occupying stands in the market place, is lawful, and may be enforced by fine and judgment before the mayor.
    This is a certiorari to the common pleas of the county of Hamilton.
    By the charter of Cincinnati, the city council are invested with power, among other things, “to erect, establish, and regulate the markets and market places of said city for the sale of provisions, vegetables, and other articles necessary for the sustenance, comfort, and convenience of the inhabitants.” 32 Ohio L. 248.
    In November, 1839, the council passed an ordinance : “ That no person should be licensed or permitted to occupy any place in any of the market places in said city, or in the streets contiguous thereto, with a wagon or other vehicle, during market hours, but upon making payment, when demanded by any person authorized to receive the same, of the sum of twenty-five cents for every market day’s occupation.” . . . “If any person, occupying any of the spaces or streets ■ aforesaid, shall refuse to pay the sum chargeable to him or her as aforesaid, for such occupation, when demanded by the city collectors, ... he shall forfeit and pay the sum of five dollars, with costs of suit, to be recovered before’the mayor.” Further provision is made, that process is returnable, and judgment rendered forthwith.
    The defendant being convicted and fined by the mayor, for the infraction of this ordinance, carried the judgment to the common pleas, where it was reversed.
    This certiorari is now brought to review the opinion of the common pleas.
    Wright and Walker, for the plaintiff in certiorari:-

    The court of common pleas erred:
    1. In deciding that the mayor had pot jurisdiction.
    *2. In deciding that the ordinance was invalid.
    3. In rendering judgment in favor of the defendant.
    But we propose to argue only a single point, namely, the validity of the ordinance; for if the ordinance be valid, the proceedings under it must bo sustained. To determine upon the validity of the ordinance, we must refer to the city charter; and the single question is, whether the city charter confers power on the city council to pass that ordinance. Both the original ordinance and the amendment are made part of the record ; but the proceedings in question took place under the amendment. This provides, in substance, that no person shall be “ licensed or permitted” to occupy any of the market spaces with a wagon but upon paying twenty-five cents for each day’s occupation, when properly demanded, Upon refusal to pay, such person shall “forfeit” the sum of five dollars, to be recovered before the mayor, who may issue either a summons or capias, returnable forthwith, and proceed at once to trial and judgment. After judgment he may issue a fieri facias, which the marshal may levy, and either sell forthwith upon proclamation at the market, or pursue the course provided for constables’ sales. Such, briefly, are the provisions which have produced so much excitement. And the question is, are they’ within the power of the city council ?
    Section 9 of the city charter confers on the council “ power to erect, establish, and regulate the markets and market spaces.” Do those words include the power in question? It so happens that the two words, establish and regulate, were both used in the federal constitution, between which and the city charter, with respect to the rule of interpretation, the analogy is complete. Both confer limited legislative powers, and are to be construed in the same way. To begin, then, with the word establish. Congress has power “ to establish post-offices and post-roadsand from this single provision has emanated every law relating to the subject matter. Not only has a distinct department of the government been created, but an immense variety of regulations, penal and 359] otherwise, have been enacted. It will at *once occur to the court, that a much less enlarged signification of the same word, in the city charter, will cover every provision in the ordinance.
    And the same is true of the word regulate. Congress has power “ to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” And the Supreme Court of the United States, in cases too celebrated to need to be cited here, has repeatedly held that this clause confers on Congress complete and exclusive power to make all the rules required for the government of these three descriptions of commerce, as well penal as otherwise. But the illustration most in point is derived from the legislation of Congress over the Indian tribes. All this emanates solely from this single clause, there being no other reference to the Indians in the constitution. Again, therefore, we say, that a much less enlarged signification of the same word in the city charter will cover overy provision in the ordinance.
    But the clause of the charter above quoted is not the only one bearing upon the question. Section 16 of the charter confers full power respecting licenses and taxes; and section 8 provides for all the means necessary to enforce obedience to all the ordinances which the council may lawfully pass. On the question, therel'oro, of power to pass the ordinance in question, and to carry it into effect, there can not be a reasonable doubt.' And as the proceedings before the mayor are in strict conformity with the provisions of the ordinance, we might here rest the case.
    But on the trial below, much was said about the tyrannical haste of these proceedings. That demand, refusal, mesne process, judgment, execution, levy, and sale should all take place in one day, was deemed an outrage upon all the principles and usages of law. The reply is, that without this very dispatch, the proceedings would be unavailing in nine times out of ten, because all the defendants reside out of the mayor’s jurisdiction. Besides, in all criminal proceedings there is more of haste and dispatch than in civil proceedings. Often when courts adjudge a fine, as in con-tempts for example, they order *commitment until the fine [260 is paid, and they give no longer delay before judgment than is necessary to prepare specifications.
    "We might draw an argument from the municipal regulations of the eastern cities, which are quite as arbitrary and quite as summary as those here complained of. But we deem further argu'ment unnecessary.
    E. Woodrurr, on the same side,
    cited these authorities: Josiah Nightingale, petitioner, etc., 11 Pick. 168 ; Ang. & Ames on Corp. 199, 203; Mosely v. Pierson, 4 D. & E. 104; 1 Esp. 372; 1 Bl. Com. 274; 2 Bl. Com. 449; 4 Bl. Com. 275; Vanderbilt v. Adams, 7 Cow. 349 ; Henry Vandine, petitioner, etc., 6 Pick. 187 ; Village of Buffalo v. Webster, 10 Wend. 99; Gibbons v. Ogden, 9 Wheat. 178; 2 Com. Dig. 284, 290; Stuyvesant v. Mayor of New York, 7 Cow. 588; 8 Johns. 418.
    There was no argument on the other side; but a pamphlet was submitted to the court, published by order of a committee appointed to bring' before the court of common pleas the legality of this ordinance, and containing the opinion of the president judge of that court, delivered at great length. From this opinion it appears that T. Morris, J. W. Piatt, and L. M. Gwynne argued the case in the court below, for the present defendant in certiorari, and cited these authorities: Commissioners of Clermont County v. Robb, Wright, 48; State v. Corporation of New Brunswick, Cox, 393; Overseers of Amenia v. Overseers of Stanford, 6 Johns. 93; Rex v. Burdett, 1 Ld. Raym. 149; Ang. & Ames on Corp. 184, 186; Head v. Prov. Ins. Co., 1 Pet. Cond. 376; Dartmouth College
      v. Woodward, 4 Wheat. 518; Fowle v. Common Council of Alexandria, 3 Pet. 398; Beatty v. Knowler, 4 Pet. 152 ; Stetson v. Kempton, 13 Mass. 272; Hart v. City of Albany, 9 Wend. 571; Dunham v. Village of Rochester, 5 Cow. 462; Mayor of New York v. Scott, 1 Caine, 544; Hallet v. Novion, 14 Johns. 272; Bl. Com. App. 154.
   *Lane, C. J.

The powers of the city council were to establish and regulate markets.

A municipal market consists:

I. ' In a place ior the sale of provisions, and articles of daily consumption.

II. Convenient fixtures.-

III. A system of police regulations, fixing market hours, making provisions for lighting, watching, cleaning, detecting false weights and unwholesome food, and other arrangements calculated to facilitate the intercourse, and insure the honesty, of buyer and seller.

IT. Proper officers to preserve order and enforce obedience to rulers.

The nature of the business transacted in market requires the prompt and efficient action of the police authorities, in cases proper for their interposition. The “due regulation” of a market demands the expenditure of money; and the levying of tolls upon the sellers in market, for the purpose of meeting these expenses incurred mostly for their benefit, is practiced by all municipal corporations. In Cincinnati, the tolls of the stalls, in the market houses, seem to-be submitted to without objection ; but the open spaces, for the accommodation of the more transient frequenters of the market, equally demand the interposition of the city authorities to prepare, pave, and keep them clean, to arrange the stands, preserve order, and enforce rules; and the sellers may be called to contribute to these expenses, in proportion to the accommodation rendered to them, as justly as the occupants of the stalls. The sum exacted for this purpose by the ordinance is called by the defendant’s counsel a tax upon the sale of the commodities brought to market; it is rather the price demanded for accommodations provided to the frequenters of the market, by the city authorities. Although paid into the treasury, it is paid in support of the genera] expenses of the city, of which this is one of the most prominent.

If, then, there be nothing in the nature or object of the demand, *which lies beyond the ordinary powers of municipal cor- [262 porations, we next inquire whether the mode of enforcing it is objectionable. The remedy is complained of as oppressive and tyrannical, imposing fines, and urging executions with more severity and speed than is consonant with our habits, or even with the due ascertainment of facts. But the dealings of the market-house subsist but for the hour, and then property and person are withdrawn from the jurisdiction of the authorities. Hence the prompt and strong enforcement of market regulations becomes necessary, or the object is not obtained; and in all time, from the days of the court of pie poudre to the present, the disputes of the market have been settled on the spot.

Section 4 of the charter confers jurisdiction upon the mayor, for violating city ordinances. That it is sub nomine pcence, in the name of a fine, seems to us not objectionable. The amount, either of the price exacted, or of the penalty (or non-payment, is a matter within the discretion of the authorities; the one will become adjusted by the sense of justice and mutual interest; the other, if honestly designed to enforce obedience, by the adoption of ordinary means to produce this end, ought i.ot to be complained of by one who denies the authority to exact the burden; and both the tax and the means for enforcing its collection, will be kept within bounds by the superintending power of public opinion and the exercise of the right of suffrage.

We find, then, the exertion of no authority except such as is necessary to ihe due administration of city government, and the right of imposing it expressly conferred by the charter.

Judgment reversed.


author: Hitchcock, J.

text:
    Erastus Olin v. Lysander Hungerford, Clarissa Hungerford, and Warren Young.
    A decree for alimony, to be paid in installments, does not operate as a lien upon tbe real estate of the defendant unless made a charge thereon by the decree itself.
    This is a bill in chancery from the county of Trumbull.
    The case made in the bill is this : At the September term of the Supreme Court, in the county of Trumbull, 1831, the defendant, Clarissa Hungerford, then Clarissa Blakesley, on her application, was, by a decree of said court, divorced from her husband, Amos Blakesley, and it was further ordered and adjudged by the court, that .the said Amos should yearly, and every year, pay to the clerk of said court, during the joint lives of the said Amos and Clarissa, on the 1 st day of September, the sum of twenty dollars as alimony, and in case ^payment should, at any time, be delayed beyond [269 ten days, then, it was further ordered, that payment should be enforced by execution. Subsequent to this decree the said Clarissa intermarried with the defendant, Lysander Hungerford. At the time this decree was pronounced, the said Amos was the owner in fee simple of 100 acres of land, in the county of Trumbull, and on June 6, 1833, conveyed the same, for a full and fair consideration, to one John Hartshorne. The deed of conveyance contained a covenant of warranty against all claims and demands, except such as might grow out of said decree for alimony. On February 25, 1835, the said Hartshorne, by deed of release or quitclaim, conveyed to the complainant Olin one-half of said 100 acres of land, by metes and bounds. Both Olin and Hartshorne had notice of the existence of the decree for alimony. On September 20, 1839, the installment which fell due on the 1st day of the said month being unpaid, an execution was issued to enforce its collection. This execution was placed in the hands of the defendant, Young, he being sheriff of Trumbull county, and Young, by the direction of Hungerford, on February 12, 1840, levied the same on a part of the fifty acres of land, conveyed, as aforesaid, by Hartshorne to the complainant Olin.
    The prayer of the bill is, that the defendants be enjoined from selling the said land on said decree and execution. To this bill there is a demurrer.
    Tod and Hoffman, for the complainant.
    Taylor and Harris, for the defendants.
   Hitchcock, J.

From the statement of the case, it appears that at the time of the rendition of the decree for alimony, the husband was possessed, as an estate of inheritance, of the land upon which execution has been levied, which he afterward conveyed. There can be no pretense of any fraud in this conveyance ; *on the contrary, it is apparent that both parties contem- [270 plated that the decree might be a lion upon the land, and therefore Blakesley refused to warrant against it. The only question, then, which can arise in the case is, whether a decree for alimony, payable in installments, operates per se as a lien upon the real estate of the husband during the joint lives of husband and wife. That it is within the legitimate power of the court to make such docreo. a charge upon real estate, we have no doubt, and it has been the practice so to do in cases where it was deemed proper. But this is the first time the question has been presented, whether the decree of itself operates as a lien. If it does so operate, it must be in consequence of some statutory provision. As has been heretofore decided, we consider liens of this description to be creatures of the statute.

The argument in favor of the position, that such decrees operate as liens, is based upon the hypothesis that they are decrees in chancery, and it is said that decrees in chancery have the same force and effect as judgments at law. This is true to a certain extent. By section 37 of the act “ directing the mode of proceeding in chancery,” 3 Chase’s L. 1692, it is provided, “that decrees in chancery shall, from the time of their being pronounced, have the force, operation, and effect as a judgment at law.” This must be intended, however, of decrees for the payment of money, and under this provision such a decree would operate as a lien upon the real estate of the person against whom it was pronounced, and like a judgment at law, might be enforced by execution.

But is a decree in a divorce case, which allows alimony to the wife, in the nature of a decree in'chancery ? It is a statutory proceeding throughout. Jurisdiction is given to the Supreme Court, and the court are authorized to allow alimony. The effect of the decree, so far as alimony is concerned, is not declared, nor is the mode of enforcing its payment specified. The court, however, have adopted the practice of enforcing collection by execution. There is nothing improper in. this. Whether the alimony 271] be allowed in gross, or is made ^payable by installments, the same mode of enforcing payment is adopted. Prior to ■ the amendatory act of March 1, 1834, there could be no more propriety in calling the proceedings in a divorce case proceedings in chancery, than there would be in calling proceedings for the partition of real estate, under the statute regulating that subject, proceedings in chancery. These proceedings have never been so considered. On the contrary, when had in the court of common pleas, they are frequently reviewed in this court by writ of certiorari. In some of the other states of the Union, which have courts of chancery separate and distinct from their courts of law, jurisdiction of divorce cases is given to their courts of chancery. In England the subject is considered as belonging more properly to the ecclesiastical courts.

By the amendatory act of 1834 (32 Ohio L. 37), before referred to, it is enacted, “that all proceeding in cases of divorce shall be as in chancery,” provided that there may be a hearing at the first' term, and that the witnesses, if within the county-in which the case is depending, shall be examined in open court. This statute, however, can have no effect upon the case now before the court, for this decree was pronounced long before its enactment. It will be seen, however, upon examination, that this statute has no reference to the force and effect of a decree. It merely provides that the proceedings in order to arrive at a decree shall be as in chancery. But even under this statute, should we hold that a decree for a gross sum to be paid the wife would operate as a lien, it does not follow that the same principle would hold where, as in the present case, it was for the payment of specified sums annually during the joint lives of the parties. On the contrary, a majority of the court believe that such would be an improper construction of the law. Wo hold it to be in the nature of a personal charge upon -the husband rather than upon his estate. This principle seems to be recognized by this court in the case of Hamlin v. Hollister, 7 Ohio, 161. Although the question arising in that ease was different from the one now presented, this question *seems to have been [272 incidentally considered, and the court say, no reason is perceived why such charge should operate as a lien until the decree is pronounced, fastening it upon some particular property.”

As, then, the decree rendered in 1831 did not operate as a lien upon the real estate of Blakesley, and as that real estate has been conveyed, the execution was improperly levied, and the complainant is entitled to relief as against Hungerford and wife, and as to them the demurrer is overruled.

With respect to Young, the other defendant, it is not perceived why he was made a party defendant in this ease. It is a rule in chancery, that all interested should be made parties. But what interest has Young in this case? He is a sheriff of the county, and as such is bound to execute all process properly directed to him. But he has no more interest in each particular cage than has the clerk of the court. And there can be no more propriety in making a sheriff party to an injunction bill than there would be in making the clerk issuing the writ a party. And with as much propriety might the court irom which the writ issued be made a party, as being the source of all the evil. Indeed, I recollect an injunction case not long since submitted to the court upon the circuit, in which the plaintiff at law, the constable serving the process, and the justice of the peace who rendered the judgment, were all made defendants. This practice of making sheriffs and constables defendants, in cases of this kind, is one which has prevailed to a- considerable extent in some parts of the state, but it is highly improper, and has never been sanctioned by this court. An injunction allowed, operates upon the parties to the judgment enjoined, and through them upon all officers of the law acting in consequence of that judgment.

If there be a fraudulent combination between the sheriff and judgment creditor, it may be proper to make the sheriff a party, as it would be to make any other person engaged in such combination a party. But the fact that he is sheriff, and has the pro-278] cess in his hands to execute, furnish no reason for *involving him in the litigation. It is not pretended in the present case that there was any such fraudulent combination. As to the defendant Young, therefore, the bill must be dismissed, with Ml costs.


author: Lane, C. J.

text:
    The Lessee of Miles Tipton and wife v. John Ross.
    The declarations of a grantor in a deed, made after the date and supposed delivery, are good evidence to prove the delivery when offered against the grantor or his heir.
    This is a motion for a new trial in an action of ejectment from the county of Harrison.
    Both parties derive title from their father, John Ross, deceased.
    The plaintiff claims as heir at law.
    The defendant sets up a deed, executed by his father to himself and his brother James Ross. The execution of this deed is admitted, but its delivery is denied.
    To prove the delivery, the defendant offered the declaration of his father, made after the execution of the deed. Those declarations were rejected at the trial, and the jury found a verdict for the plaintiff.

      The motion for a new trial is made because of the exclusion of this evidence.
    B. S. Cowen, for the motion:
    The admissions of an ancestor are evidence against the heir. Jackson v. McCall, 10 Johns. 377; Allen v. Parish, 3 Ohio, 107.
    Admissions of the delivery of a deed by the party making the deed is evidence of the fact of delivery. Sicard v. Davis, 6 Peters, 136.
    *Dewey and Stanton, contra: [274
    No admissions of the grantor ought to be admitted except such as form a part of the transaction at the time of the alleged delivery. Otherwise, land may be conveyed by parol — for the delivery is as much a part of the deed as the sealing of it. The defendant is not without remedy; if his title is defective at law* and he has equity, he knows where to go for relief.
   Lane, C. J.

The title of the owner of property is bound by his admissions. While one holds the title, the admissions he makes may be given in evidence against him and against his privy. The heir, pursuing the estate of his ancestor, takes his right and interest, incumbered by all that rests against it, before, descent. If this deed had been set up against John Ross, the father, while holding the land, his own admissions would have been competent evidence; they are equally competent when offered against his heir. New trial granted; costs to abide the event.

      Declarations made by the person under whom the party claims, after the declarant has parted with his right, are inadmissible to affect any one claiming under him. Watson v. Cris, 11 Johns. 437; Weidman v. Rohr, 4 Serg. & Rawle, 174; Bartlett v. Delprat, 4 Mass. 702. And if it be doubtful whether the declaration was before or after the deed, it can not be received. Stockett v. Watkins, 2 Gill & Johns. 326. Declarations of the owner of property are admissible against one claiming his estate by purchase or by descent, by act of law or by act of the parties; and, in such case, it makes no difference whether the declarant be alive or dead. 2 Phil. Ev., Cowan & Hill’s Notes, 644. And where such declarant is himself a competent witness, and present in court, his admissions are receivable. Woolway v. Rowe, 28 Eng. Com. Law, 52.
      The defendant in an ejectment claimed by a deed from Hughey. A question arose whether this deed had been delivered to the defendant. The plaintiff offered to prove that Hughey acknowledged before he conveyed to the defendant, that he had not paid the purchase money, and had no title. The evidence was rejected on the ground that it would affect a third person. But the reporter thought this a hasty decision. Clark v. Arnold, 2 Hayw. 287.


author: Wood, J. Lane, C. J.

text:
    *The Lessee of Martin Sheldon v. Freeman Coates.
    A certificate of the sale of land for taxes, under the act of 1804, signed by the sheriff as collector and not as sheriff, is valid.
    The omitting to give a bond as collector, by the sheriff, in 1805, will not operate to defeat a sale made by him for delinquent taxes.
    .'Sworn copies, from the records of a county auditor, are competent evidence.

      This is an action of ejectment from the county'of Cuyahoga.
    A verdict was taken for the defendant, and the plaintiff moved for a new trial.
   Wood, J.

The land in controversy is a part of lot No. 138, township No. 6, in the 11th range, in the Connecticut Western Reserve. On the trial there was no contest as to the right of the plaintiff to recover, unless the proceedings under a certain sale for taxes, in 1806, were valid; but if such tax sale was sustainable, the title of the defendant was unquestioned. To support this sale several documents were offered in evidence by the defendant’s counsel, which wore objected to by the counsel for the plaintiff, but admitted by the court to go to the jury, and the reasons stated in the motion for a new trial, is the supposed error of the court in the admission of these papers. We shall notice only those reasons on which counsel appearto us mainly to rely, the others being too apparently untenable to require of us any especial consideration.

The defendant derived title, first, under a deed from Reuben S. Clark, collector of taxes for the sixth non-resident collection dis- , trict, dated November 27, 1809, and then through several intermediate conveyances, down to himself. Objection was *taken [279 to the introduction of this deed, because, in its recital, it set forth a certificate of sale for taxes, dated on May 22, 1806, signed by James Hillman, as collector of taxes for the sixth collection district of the State of Ohio for the'year 1805.

By the law of 1805, in force when the tax accrued for which this sale was made, Hillman was sheriff of Trumbull county, and, as such, collector of taxes ex officio. By the act of January 27, 1806, which took effect from its passage, the state was divided into six collection districts'for the collection of taxes from nonresident proprietors of lands, and Hillman was appointed collector of the sixth district, in which the land in controversy was eituated. Section 24 of this statute (1 Chase’s L. 539) provides, “that the collectors of the several counties or townships, and collection districts, shall, respectively, make deeds to the purchaser or purchasers, his or their assigns, for all lands that have heretofore been sold for taxes,” etc. Section 35 repeals the former acts, and provides that “ all taxes,” etc., “ due and owing under the provisions of either of the above-recited acts, shall be collected and paid over to the proper officer therein authorized to. receive the same.” As the sheriff of Trumbull county was de facto collector of the tax due in 1805, it is urged by counsel that under this last provision! when he sold the land in 1806, he was acting as the sheriff of Trumbull county, and should have signed the certificate of sale as sheriff, and not as collector of the sixth collection district, and that consequently the deed founded on such evidence of sale and executed by Clark in 1809, Clark being a subsequent district collector, is void. We have not, however, come to the same conclusion. It is a general rule in sales by public officers, that where there is a sufficient power to warrant a sale, a slight variance or omission will not be held to be material. 5 Cowon, 350. But this, it is said, is a sale for taxes, where principles stricti juris are to be applied. To this argument it may also be answered, that no substantial variance from the provisions of the statute, so far as the 280] signature of Hillman to the certificate of sale is ^concerned, is by us perceivod. In May, 1806, when the sale was made, Trumbull county formed the sixth collection district, and, Hillman, being sheriff of the county, was, as such, collector of that district for the tax of 1805, at the time when he signed the, certificate. Hillman, being by the act made collector by virtue of his office of sheriff, it seems to us there can be no objection to the certificate, whether signed by him in the one or the other capacity. Pro haa vice, sheriff and collector are synonymous terms.

Another ground urged for a now trial is, that the court overruled the plaintiff’s objections to the defendant’s title, because Hillman had not duly qualified as collector, by giving bond as the law required. The act of February 18, 1804, provides that the sheriff of each county, before he received his duplicate, should give bonds, etc., conditioned for the due and faithful paying and accounting for all taxes, etc., and if he neglected to give such bond before the first Monday of August, a collector of taxes should be appointed by the county commissioners; and the statute also required the clerk of the court of common pleas to withhold the duplicate until the bond was given, etc. 1 Chase’s L. 415. The evidence was, that the bond was not executed until the 10th of September, and that Hillman did not receive the duplicate until September 20, 1805. But it was holden by this" court, in 5 Ohio, 136, that a constable’s bond, executed after the time limited by the statute, was nevertheless valid and that its execution was not a condition precedent to the right to enter upon the duties of his office. In the case of the State of Ohio v. Findley and others, at the present term of this court, it has been holden that the right of the county treasurer to enter on the duties of his office, was derived from his election, and that the oath required by law to be taken by him was not such a precedent condition as to impair the validity of his acts performed before such oath was taken. In this case, as the bond was executed before any appointment had been made of a collector by the county commissioners, though not ■within *tho time prescribed, it would be against the whole [281 current of the decisions of this court, in similar cases, to hold that the acts of the collector, Hillman, were void or voidable upon that ground.

An objection was also taken to the reading of the advertisement of the sale in evidence to the jury, but which, was, in like manner, overruled, and the evidence admitted. The law in force at the time (1 Chase’s Laws, 416, sec. 10) provided, that the collector, before any sale, should advertise the time and place, etc., thirty days, at the door of the court-house, and also at five other public places in the county; but the act prescribes no form of notice. The advertisement was in these words : “ Youngstown, April 15, 1806. Notice is hereby given, that the following tracts of land,” etc., “ will be exposed to sale, on Thursday, the 22d day of May next, at the court-house in Warren, to defray the tax of 1805. James Hillman, collector.” It is urged, against the validity of this advertisement, that the collector did not add “Trumbull county,” to his signature, as collector, and to Warren also, as the place of sale. As the State of Ohio was, in 1806, it appears to us, there was certainly sufficient to put the owner of any land advertised for sale upon his guard, without the addition of Trumbull county, as contended for. At the date of this advertisement, there was no township of the name of either Youngstown or Warren, except those in Trumbull county, in the State of Ohio. An advertisement, in an Ohio newspaper, dated Youngstown, in 1806, would sufficiently indicate Youngstown, in Trumbull county, and if written and posted up at the door of the court-house, or anywhere within the bounds of Trumbull county, as the law required, it would certainly, to a common intent, at least, indicate the same thing. But when, in addition, the names of the owners, the lot, township, range, etc., arc all specified, the owner, in casting his eye upon such an advertisement, could not well mistake the identity of his property, if advertised, nor a person desirous of purchasing, its location, unless both were determined not to know its contents and to sleep upon their rights. In this advertisement, these designa282] tions are all set forth, though at most it *is doubtful whether the law, at that time, required anything more,to be stated in the advertisement, than that such lands as were delinquent for taxes, in the collection district, would be sold at such a time and place. But if the advertisement was not then sufficiently certain, they should be gross defects only, which should be noticed, if at all, after the lapse of thirty-four years, and a majority of the court are of opinion that the advertisement was sufficient.

Webb & Williamson, for the plaintiff.

S. J. Andrews and Bingham, for the defendant.

Again, it is argued that the court erred in admitting in evidence certain extracts made from the tax duplicate by J. H. Baldwin, and sworn to by him, and certain transfers and records of sales in 1806, made by Hillman. Baldwin was the auditor of Trumbull county, when those documents were obtained, and, as such, had their custody, and wo do not see any objection to examined and sworn copies. All public documents which can not bo removed from one place to another, may be authenticated by means of a copy, proved on oath to have been examined with the original. 1 Stark Ev. 156, pt. 2.

On the whole, we are of the opinion that the motion for a new trial should be overruled and judgment entered on the verdict.

Lane, C. J.

I agree with the opinion of my brethren, except in a single point. By the act of 1805, the penalty of twenty per cent, for non-payment was not carried into the tax duplicate of the succeeding year, but was charged to .the collector, in his account, and he was to make the amount, by levy or sale. The omission in the duplicate, therefore, is not objectionable. But in the collector’s advertisement, he gives notice that he shall sell the land, but he specifies the tax only. The sale, however, was for the tax and penalty. I think this advertisement not sufficient, because it does not communicate to the owner due and reasonable notice of the sum necessary to be paid to prevent a sale.

Motion overruled.

      Aute, 51.


text:
    Nicholas Longworth v. Jacob J. Flagg.
    A decree of dismissal of a bill of foreclosure is no harto a suit on the note.
    Matters of defense, arising after plea filed, can only be taken advantage of by plea puis darrein continuance.
    This was an action of debt from the county of Hamilton.
    The first count of the declaration was upon a sealed note. The second and third were general counts.
    The defendant pleaded non est factum and payment, with notice of set-off. He further gave notice, at a subsequent term, that he should offer, in defense, proof that the note was secured by mort301] gage upon land; that a bill of foreclosure *and sale had been brought to enforce satisfaction of the note which had been dismissed on hearing.
    The case was submitted to the court upon proof.
    V. Worthington, for the plaintiff:
    The relation between a mortgage and the note it secures, is simply that of a security to a principal. The mortgage is a mere incident to the note. The latter has an existence independent of the former, arid retains its validity, notwithstanding a release or discharge of the mortgage. Where a debt is secured by a mortgage without any note or bond, there a discharge of the mortgage would discharge the debt; and in such case the remedy is not in personam, but by bill to foreclose, or ejectment, or both, at the option of the creditor. Cumberland w. Codrington, 3 Johns. Ch. 229; Dunkley v. Van Buren, 3 Johns. Ch. 330; Schoole v. Sall, 1 Sch. & Lef. 176; Perry v. Barker, 13 Ves. 197, 205; Reedy v. Burgert, 1 Ohio, 157 ; Barclay v. Blodget, 5 Cowen, 202; 3 Powell on Mort. 1002; Hatch v. White, 2 Gall. 152; Amory v. Fairbank; 3 Mass. 562; Omaley v. Swan, 3 Mason, 474; Mi. Ex. Co. v. Bank United States, Wright, 249.
    But the discharge of a mortgage has no effect whatever on the note, whether such discharge be direct by the act of the party, or indirect, by the dismissal of a bill to foreclose. The operation of such bill is to subject the mortgaged property to the payment of the debt, and when that property is exhausted, all further action under the bill determines; but the right to recover any balance that may remain, in a personal action on the note, is as perfect as if the bill had never been prosecuted. The dismission of a former bill in chancery is not conclusive even against a second bill, unless the parties bo the same, and there be an absolute decision, upon the same matter, apparent on the record. Whenever a legal claim is sought to be established in a cour^of chancery, the refusal to determine the right casts no reflection whatever upon it, but simply determines that it is not a case for equitable cognizance. Neafie v. Neafie, 7 Johns. Ch. 1; Wright v. Deklyne, Pet. C. C. 199; *Hopkins v. Lee, 6 Wheat. 109; S. C., 5 Pet. [302 Cond. 23; Lawrence v. Hunt, 10 Wend. 80. To constitute a former recovery an estoppel, it must appear by the record itself of that recovery, that the precise point which is to work the estoppel was put in issue and decided. Genet v. Wood, 3 Wend. 27; Wright v. Butler, 6 Wend. 284; Wood v. Jackson, 8 Wend. 9; Lawrence v. Hunt, 10 Wend. 80; Etheridge v. Osborne, 12 Wend. 399; Wood v. Genet, 18 Wend. 107; Howland v. Ralph, 3 Johns. 20; Rice v. King, 7 Johns. 20; Jackson v. Hoffman, 9 Cowen, 271; Gardner v. Buckbee, 3 Cowen, 120; Manny v. Harris, 2 Johns. 24; Brockway v. Kinney, 2 Johns. 210; Snider v. Croy, 2 Johns. 227; Neafie v. Neafie, 7 Johns. Ch. 1; Dawson v. Cowles, 16 Johns, 51; Phillips v. Berrick, 16 Johns. 136; Trevivan v. Lawrence, 1 Salk. 276; S. C., 2 Ld. Raym. 1036; Sedden v. Tutop, 6 D. & E. 607 ; Outram v. Morewood, 8 East, 346; Sintzenick v. Luchas, 1 Esp. 43; Smith v. Sherwood, 4 Conn. 276; Church v. Leavenworth, 4 Day, 274; Ryer v. Atwater, 4 Day, 431; Betts v, Starr, 5 Conn. 550; Jackson v. Colden, 4 Cowen, 266; Newcomb v. Smith, 5 Ohio, 447.

      Estoppels are odious, and are. not to be favored. A technical accuracy is required,, and they must be certain to every intent, and not be taken by argument or inference. Smith v. Sherwood, 4 Conn. 276 ; Hubbard v. Norton, 10 Conn. 422 ; 3 Thos. Coke, 431. It is equally well settled that an estoppel must be set up and presented by a plea in bar, and not as evidence under the general issue. Manny v. Harris, 2 Johns. 24; Rice v. King, 7 Johns. 20. Etheridge v. Osborne, 12 Wend. 399; Smith v. Sherwood, 4 Conn. 276; Wright v. Butler, 6 Wend. 284; Trevivan v. Lawrence, 1 Salk. 276; Kilheffer v. Herr, 17 Serg. & Rawle, 319; Gardner v. Buckbee, 3 Cowen, 120; Wend v. Jackson, 8 Wend. 10; S. C., 18 Wend. 107; Vooght v. Winch, 2 Barn. & Ald. 662. To this rule, ejectment and indebitatus assumpsit are exceptions. In these actions, a former recovery is admitted under the general issue. Vooght v. Winch, 2 Barn. & Ald. 668; Bartholomew v. Candce, 14 303] Pick. 167 ; Trevivan v. Lawrence, 1 Salk. 276; *Young v. Black, 7 Crunch, 565; S. C., 2 Pet. Cond. 607; Wood v. Jackson, 8 Wend. 35; S. C., 18 Wend. 107; Jackson v. Colden, 4 Cowen, 280; Gardner v. Buckbee, 3 Cowen, 120; Outram v. Morewood, 3 East, 364; Piatt v. St. Clair’s Heirs, 6 Ohio, 234. But the onus probandi iswith him who assumes the affirmative. Church v. Leavenworth, 4 Day, 274; Piatt v. St. Clair’s Heirs, Wright, 266 ; Howell v. Cin. Ins. Co., 7 Ohio, 283, pt. 1; Hewson v. Saffin, 7 Ohio, 234, pt. 2; Smith v. Sherwood, 4 Conn. 276; Genet v. Wood, 3 Wend. 27; S. C., 8 Wend. 45; Lawrence v. Hunt, 10 Wend. 80.
    B. Storer, for the defendant:
    The plaintiff’s counsel has saved us the labor of quoting authorities to show the effect of final judgments and decrees. His brief embodies a very great number, and to it we ask a reference.
    All we contend for is, that where the parties are the same, the subject matter the same, the same point directly involved, there the judgment is final.
    There have been cases where parol evidence has been admitted to prove that a cause of action was not litigated in a prior suit; and this is by averment, depending always upon the nature or the claim, and the fact that it was never passed upon by the court or jury, for if the matter in dispute was submitted for consideration to either tribunal, the finding is conclusive. With the matters litigated between these parties in equity, there is left no room for intendment as to the particular point intended to be decided by the court. The equity of the entire case is found to be with the defendant; and there can be no collateral issue made as to what it was meant to embrace, much less an attempt to prove what the opinion of the court should have been. 1 Stark. Ev. 198-200, and cases there cited.
    It will be admitted that it is immaterial what the form of action is, if the cause is the same. The resolutions in Ferrer’s case, 6 Co. 7, which are the foundation of all the subsequent decision are “that when one is barred in an action, real or ^personal, [304 by judgment or demurrer, confession, verdict, etc., he is barred as to that, or the. like action of the like nature, for the same thing, forever.”
   Lane, C. J.

The record of the suit in chancery shows a dismissal upon the finding, that the equity of the case is with the defendant. The proposition of the defendant, arising from these facts, is, that the dismissal of a bill of foreclosure on the merits, extinguishes the debt secured by the mortgage, and concludes all rights between the parties.

While the remedy upon mortgages in this state'was. bj scire facias, before 1831, it was held that the rights betweeu the parties were merged in such a proceeding, because they terminated in a judgment, which is a form of debt of a higher nature than any depending on the acts of the parties only. 1 Ohio, 157. But the right to pursue all or either of the three remedies on a mortgage at the same time, is asserted in every elementary treatise on this subject, for the objects of the three are not the same; and although if the debt is paid the lien is extinct, the converse of this proposition is not true, and the debt may be justly due, although the land is never bound by the lien.

If it were otherwise it would be no defense in the form offered here. The suits were pending at the same time, and the decree of dismissal was not. made, until after the plea filed, although before the notice, which was appended at a subsequent term. The defense, then, if .available, arose after the plea filed, and can not bo raised, except by a plea after the last continuance.

Remanded for trial on the plea of payment.

      When matter of defense has arisen after the commencement of the suit, it can not be pleaded in bar of the action generally, but must, 'when it has arisen before plea or continuance, be pleaded as to the further maintenance of the suit; and when it has arisen after issue joined puis darrein continuance. Bret v. Papillon, 4 East, 502; 1 Chit. Pl. 650; Covell v. Weston, 20 Johns. 414. A receipt in full, from one of several plaintiffs, dated since the last continuance, is sufficient evidence to sustain a plea of payment puis darrein continuance. Neil et al. v. Hepburn, 6 Ohio, 534.


text:
    James Winn v. The State of Ohio.
    Neither the Supreme Court nor the court of common pleas has any power to issue a certiorari in criminal cases.
    This is a writ of certiorari to the court of common pleas of the county of Muskingum.
   Grimke, J.

James Winn was prosecuted before a justice of the peace in Muskingum county for an assault and battery. He did not plead guilty, but was, notwithstanding, fined by the magistrate. To reverse this judgment, he sued out a writ of certiorari in the court of common pleas. The court dismissed the writ for want of jurisdiction, and to reverse this order the present writ of certiorari was sued out of this court.

Before the act allowing writs of error in criminal cases, it was considered the settled law of the state that no power existed in the Supreme Court to award them; the reason of which *was, [346 that the courts have no common law jurisdiction in criminal cases. Certain implied powers must necessarily be vested in the courts of justice, from the nature of their institution, but jurisdiction of crimes against the state is not one of them. All the legislative provisions respecting proceedings in certiorari, are contained in the act defining the powers of justices of the peace, and there is not one of them which has any application to proceedings in criminal cases. Section 62 is indeed inconsistent with any such intention on the part of the legislature, for it declares that the cause shall bo retained by the court for trial and judgment, as in cases of appeal. If any inconvenience results fi’om this state of the law, it maybe remedied by the legislature, who have already authorized the writ of error in certain specified cases.

I would remark, however, that if the court of common pleas could exercise common law jurisdiction, that it would be doubtful whether the mischief complained of could be prevented. A writ of error in criminal eases (and a writ of certiorari is substantially a writ of error) never operates in Great Britain as a supersedeas. “ It has been thought better,” says Lord Eldon, in Huguenin v. Bosely, 15 Vesey, 180, “ that particular mischief should bo suffered than that there should be delay in inflicting the punishment.” Mr. Erskine, in the celebrated case of The King v. Stockdale, in answer to the remark's of the solicitor general, that if his client felt himself aggrieved by the judgment of the court, he might prosecute a writ of error, reminds him that it could have no effect, that this client would be sure to suffer the penalty of the law, even while the writ of error was pending.

I have said that the writ of certiorari is essentially a writ of error. It is true, it lies only in those cases where the proceedings are not according to the course of the common law; but the writ itself' constitutes a part of the body of the common law. And if it were the creature of legislative enactment in England, the difficulty would be still farthor increased, as we have no enactment authorizing it in criminal cases, and declaring the course of practice under it.

Goddard and Convers, for the plaintiff in error.

Stillwell, for the state.

347] *In England, the court of king’s bench, by virtue of its superintending control over all subordinate tribunals, has jurisdiction of writs of certiorari. The exercise of the power has grown up under the sanction of that common law principle. But with us it has always been a maxim (I may say a part of the common law of Ohio), that the whole course of procedure relative to crimes against the state should be the subject of legislative enactment. There are the wisest reasons for the adoption of this principle, and once adopted in the gross, it becomes impossible not to follow it in its details.

Judgment affirmed.


text:
    *Hugh Carr v. Joseph S. Williams and Mary, his wife, and others.
    A defect in a deed of husband and wife can not be rectified as against the wife.
    If omitting to name the grantor in the premises of a deed be a mere clerical error, not affecting the title, the aid of the chancellor is not needed to correct it.
    This is a bill in chancery from the county of Hamilton.
    On January 3', 1827, Thomas Kitchen made his will, devising the property in controversy to his wife, for life, remainder in fee to his daughter Mary.
    Mary married Joseph S. Williams, and in April, 1835, after the death of the testator, and before the termination of the life estate, Williams and his wife joined in a conveyance of their estate to the complainant. The instrument of conveyance was a common printed blank filled up in the usual manner except in the premises, which read, “ Know all men by these presents that-in consideration of $750 to them in hand paid,” etc., without the name of any grantor. The deed contained the usual covenants, and was duly executed and acknowledged by the husband and wife.
    The bill was filed to correct this alleged mistake of the scrivener in not filling up the blank ; and at the same time prayed that the possession might be decreed to the complainant, and that an account might he taken of the rents and profits since the death of the tenant for life.
    The case was heard upon bill, answer, and proof.
    Wright & Walker, for the complainant:
    1. The deed is good as to Williams and his wife, without correcting the mistake. The omission is one which common sense supplies. The names of the grantors are omitted in the granting clause; this is all. They signed and acknowledged the deed, and thereby render it as certain who are the grantors *as if their [306 names had been inserted in the granting clause. No one can read the deed and remain in doubt. The scrivener was careless, but the signatures of the parties remove all uncertainty. The mistake, therefore, is an immaterial one. Take the deed as it is, and it convoys a good title. The fair and reasonable rule of interpretation is, to ascertain the intention of the parties from the whole instrument, and then give effect to that intention. Any other rule of construction is absurd, as well as unjust. The age of technicality has gone by. After a struggle for centuries, common sense has gained the ascendency, and this court will not despise its dictates. Should the court sustain this position, it would not affect'the jurisdiction of this case, because one object of the bill is to remove a cloud upon the title.
    2. But if the court should consider the mistake a material one, still it is one which equity will correct. The grantors were paid for a good title, and meant to convey one; and what was honestly intended to be done, this court will consider as done. The power of a court of equity to supply omissions and correct mistakes, especially clerical ones, is too well settled to require the citation of authorities. As respects Joseph S. Williams’ life estate, therefore, there can be no doubt; and this alone entitles the complainant to a decree for possession and the rents and profits since Mrs. Kitchen’s death.
    3. The only doubt, therefore, is, whether a mistake can be.corrected as against a married woman. Let it be remembered that Mrs. Williams has herself received the full benefit of this sale to Carr, unless her friend Jessup has defrauded her. There is no deception or unfairness in the transaction as respects Carr. The single question is therefore presented : Whether, as against a married-woman, the court has power to correct a mistake, which they would not hesitate to correct as against any other person?
    There is no authority against making such correction. In McFarland v. Febiger, 1 Ohio, 194, there was no mistake. The wife knew, when she signed the deed, that it was invalid, having taken legal advice on the subject; otherwise she would *not [307 have signed it. In Martin v. Dwolly, 6 Wend. 1, the wife never intended to acknowledge the deed, but signed it, knowing that it would not be valid without acknowledgment, which she was resolved not to make. In neither of these cases was there any pretense of a mistake ; in both, the omission was intentional. They do not, therefore, touch the present question. In Butler v. Buckingham, 5 Conn. 492, there was simply an agreement to sell and convey, that is to say, an executory contract, which the court would not enforce. But there was no question of a mistake.
    There is no equitable reason why this mistake should not be corrected. The land brought its fair value, and Mrs. Williams has enjoyed the proceeds. The mistake is merely one of the scrivener in leaving out the names in the granting clause. The deed is duly signed, witnessed, and acknowledged. The separate examination of the wife, which is the great object of statute, is proved, not only by the certificate, but by the deposition of tho magistx-ate and others. The wife, too, has often said, since executing the deed, that she intended to make a good one, and if this was not good, she would make another. In this respect the case differs essentially from those above cited. The whole equity is with tho pui'chascr. Nor does the policy of tho law come in his way. The reason why tho court will not decree the specific performance of an executory contract to convey against a. married woman is, that such a contract requires no separate examination; and if pei'formanee were decreed, she might be deprived of her land without statutory evidence of her free assent. But we do not ask specific performance of a contract to convey; we only ask that a clerical omission maybe supplied in a case in which all the forms of law, for the pi’Otection of the wife, have been complied With. There is a broad distinction between an executory and an executed contract in this respect. The wife can make no valid executory contract, and hence specific performance is never decreed against her. But she can make a valid deed, and in the present case designed to do so; and all we ask is, that the court 308] may make her act valid by supplying a clerical ^omission. This was done in McCall v. McCall, 3 Day, 402, and tho widow was held to be barred of her dower by taking this very distinction.
    We have only to add, that in looking over the text-books, as well on the subject of married women as tho power of courts of equity to correct mistakes, we can nowhere find an exception to this power in the case of a married woman; and hence we conclude that no such exception exists.

      C. Fox, for the defendants:
    It is believed that no case can be found where a court of chancery has undertaken to enforce specifically the executory contract of a married woman. A deed duly executed is the only instrument known to the law by which she can convoy or incumber her estate. McFarland v. Febiger, 7 Ohio, 194; Catlin v. Ware, 9 Mass. 218; Lutkin v. Curtis, 13 Mass. 223; Powell v. Monson Man. Co., 3 Mason, 347; Watson v. Bailey, 1 Binn. 470.
    The case in 3 Mason, 347, is much stronger than the present. There the wife of Riddle had signed and sealed the deed, but she was not named as a grantor, and was not bound. Mrs. Powell also had signed the deed with her husband, but no grant or relinquishment was contained in tho deed, and afterward they both, for $200, released all their right to tho land; but because their husbands did not join them the deeds were declared void.
    In Martin v. Dwelly, 6 Wend. 9, the very case is decided, and all the authorities are collected on the subject. It is there held that a court of chancery can not compel a married woman, or her heirs, to execute or acknowledge a deed.
    But it is said that the object of this bill is not to compel the specific imrformance of a contract, but only to correct a mistake in an executed contract. This is a strange position. If the contract is executed, the complainant has a complete remedy at law by an action of ejectment. If a valid conveyance has not been made, tho contract is not executed. It is only an engagement to make a deed, and if the contract is valid and ^obligatory, [309 and appears to have been fairly made, a court of equity is bound to decree a conveyance.
    But the first thing to be proved, is the existence of a.contract, for a court never interferes to divest a party of a legal title unless a valid contract exists which it is right, just, and conscientious to perfect by deed.' If Can’ had no equitable right to compel Williams and wife originally to convey, he has clearly no right now to compel a conveyance. If Mrs. Williams had made a valid deed voluntarily, tho chancellor might not have been able to set it aside, but if the party has not obtained a legal conveyance, tho court will not compel it to be made unless the complainant shows that a fair contract has been made for valuable consideration, by persons able to contract. There can be no such thing as a valid executory contract on the part of a married woman. All her agreements are absolutely void, except so far as the statute has given validity to them. The statute has authorized her to join her husband in making a deed. But the statute nowhere authorizes her to join her husband in making any other contract. Equity, in cases'where the wife has a separate estate, and has power to control such property, has considered her a feme sole as to that property, but this is the greatest extent of any departure from the common law rule.
   Grimke, J.

A deed which is intended to convey the legal estate, but which is so imperfectly executed as to fail of effecting that object, is deprived of the character of a conveyance, but may be treated as an agreement to convey, and a resort may be had to chancery for the purpose of enforcing it, and compelling a specific performance; or a bill may be filed for the purpose of rectifying the mistake, when the original deed, as reformed, will take the place of the conveyance which would otherwise be decreed by the court. In Cither case, however, the complainant has only an equity, and is obliged on this account to go from a court of law to a court of chancery. This is the general principle; but the question now intended to be presented is one of more particularity. It is whether 310] the deed of a feme covert, not executed according to *the statute, may be regarded as an agreement to convey, the specific performance of which will be decreed against her, or whether a deed so imperfect may be rectified so as to bind her right. It is familiar to us all that by the common law, a feme covert could not, by uniting with her husband in a conveyance, bar herself of any estate of which she was seized in her own right. It is immaterial whether the disability is regarded as having its reason on the principle that the separate legal existence of the wife is suspended during the marriage, or in the fact that the influence of the husband may be improperly exerted for the purpose of inducing the wife to part with her interest in his favor. The rule itself is one of undisputed authority.

Our statute prescribes the mode in which a married woman may execute a conveyance of her land. It directs that she and her husband shall join in the conveyance, and if this provision is not complied with, then the deed stands as it would at common law, absolutely void and inoperative as to her; and if a deed, the body of which was defective, was still to be treated as an agreement to convey, or as an imperfect conveyance, other provisions of the statute equally essential would be disregarded. The acknowledgment and separate examination would not be to such an instrument as the law contemplates. I believe no case can be found where a mistake in the deed of a married woman has been rectified as against her. McCall v. McCall, 3 Day, 402 is the only one which has been referred to. But it is very different from the present. The deed there was made by the husband alone, of his own land, and it is admitted by the counsel for the widow that, by the law of Connecticut, a husband might by his deed deprive his wife of her dower. The decision which was made, however, is hardly reconcilable with the general principles of the law. It appears that two deeds wore made by the grantor to two of his sons, Roger and Walter. After he had- executed them, he altered his mind as to the dispositions which he had made ofhis property, and intending to give the land which he had conveyed to Walter to his son Roger, and the tract which he *had given to Roger to his [811 son Walter, he altered the deeds so as to correspond with this intention, but there was no new execution and acknowledgment of these deeds. Notwithstanding the whole subject matter of the conveyance was thus effectually altered, the court regarded the instrument not merely as an executory contract, but as a quasi conveyance ; and yet, holding that it only transferred the equitable interest of the husband, decreed that it should be reformed and the widow barred of her dower.

In the case of Martin v. Dwelly, 6 Wend. 9, the deed was made by husband and wife, but was not acknowledged .by her pursuant to the statute. The deed was considered as having no more effect than an agreement, and it was held that a court of chancery would not afford relief against the married woman or her heirs. It was conceded that the deed was inoperative at law, but it was contended that it might be treated as a valid contract to convey, performance of which would be decreed against the wife. But this doctrine was declared to be unsound in principle and unsupported by authority. Baker v. Child, 2 Vern. 61, has been said to be the only ease which contains an intimation that a married woman will be decreed specifically to execute an agreement made during coverture; but in fact no decree was ever made in that case. What appears to be such was the result of an arbitration, to which the parties themselves consented. The ease of Butler & Atwater v. Buckingham, 5 Conn. 492, is an affirmance substantially of the general doctrine which is to be collected from all the books. It was there held, that an agreement of a married woman, with tho consent of her husband, for the sale of her real estate, was absolutely void in law, and could not be enforced in equity.

But there is another view of the case which has been taken by the complainant’s counsel. Considering the omission of the names of tho grantors in the granting clause of the deed as a mere clerical error, it is contended that tho conveyance is in truth not defective, and that yet tho complainant is entitled to tho interference 312] of a court of equity-. But if this is the ^effect of the omission, where the deed is signed and sealed by the husband and wife, and in all other respect executed according to law, then the c’omplainant has a valid legal title, and his remedy at law is perfect. And if the deed were produced, so that that fact could be certainly and distinctly ascertained, we should probably have no hesitation in so deciding. Either tho conveyance is defective or it is not. In the first case, the mistake can not bo corrected as against a married woman ; in the second, there in no defect to be rectified; and, in either event, tho bill must be dismissed.

Bill dismissed.


text:
    The Lessee of Benjamin Eggleston, Enos Warner, and another v. Moses Bradford.
    Demises, except by persons holding a present interest, will be stricken out o'n. motion.
    Where land can be identified by the description it will pass by the deed, although some of the terms are false.
    A deed, convoying 960 acres in Athens county,” with no other description, will not pass land lying in another county.
    This is an action of ejectment, from the county of Hocking.
    The plaintiff’s title depends upon four deeds:
    1. Abel Hine to Enos Warner.
    2. Enos Warner to Nohemiah Sleeper.
    3. Nebemiah Sleeper to Joseph Wood and George Peterson.
    4. Josoph Wood and George Peterson to Benjamin Eggleston. To all these objections are offered:

      1. Hine assumed to convey to Warner “ one full share of land in the Ohio Company’s purchase, including all the lots in my name, in two several tracts, etc., standing in the name of Putnam and others, in trust for the Ohio Company.”
    It is objected that section 32, the land in question, is nowhere ^described in this deed, nor does any legal title exist in Hine. [313
    2. Warner conveyed to Sleeper “ those certain lots of land, situated in the counties of Washington and Athens, or one of them, containing 960 acres, part of the land conveyed by Hine, to be taken from the largest lots, to wit: No. 16, township 12, range 16, containing 640 acres,” etc.
    It is objected to this deed, that it was attested by one witness only, and acknowledged before a master commissioner in chancery.
    It is objected that the lot described in the deed is No. 16, and that lot No. 32 is not mentioned, and therefore does not pass. It is admitted that the number of the lot is mistaken. ^
    3. The deed from Sleeper to Wood and Peterson conveys the lands, etc., specified in a schedule. The schedule describes the land as “ three tracts of land, in Athens country, Ohio, 960 acres.”
    This deed is objected to as too general in its description.
    The objections to the fourth deed were not considered by the court.
    A preliminary motion was make to strike out the demise from Enos Warner. This motion was supported by the affidavit of the defendant, that Warner alienated his rights twenty-five or thirty years ago, that he has since claimed no interest, and knows nothing of this suit.
    The case was submitted to the court upon proof.
    H. Stanbery, for the plaintiff,
    insisted that the demise was properly laid in the name of Enos Warner, and that to sustain this motion is to establish the rule, that there can be but one demise, and that must be laid in the name of the person for whose use the suit is prosecuted. He denied the application of the New York authorities cited against him.
    To show that the deed from Warner to Sleeper was well executed, he cited 1 N. Y. Laws, 1813; 2 Shep. Touch. 189, 190.
    He also argued that the description of the premises is sufficient, and on that point cited Worthington v. Hylyer, 4 *Mass. [314 205 ; McChesney v. Wainwright, 5 Ohio; 453; Matthews v. Thompson, 3 Ohio, 272; Bank of Alexandria v. Bank of Columbia, 5 Wheat. 326.
    J. T. Brazee, for the defendant,
    on the motion to strike out the demise, cited Adams on Eject. 188; Jackson v. Bancroft, 3 Johns. 257; Jackson v. Ogden, 4 Johns. 140; Jackson v. Richmond, 4 Johns. 483; Jackson v. Paul, 2 Cow. 502; Jackson v. Travis, 3 Cow. 356; Doe. v Fillis, 18 Eng. Com Law, 288. On the other question ho cited McChesney v. Wainwright, 5 Ohio, 452.
    Mr. Ewing, in reply:
    It is admitted, on the part-of the defendant, that there are cases in which it is proper to lay a demise in the name of one who has no beneficial interest, but it is insisted that this privilege is limited to suits by a cestui que trust, who has a right to use the name of his trustee in order to avail himself of the outstanding legal title.

    This is probably the correct view of the subject, and the reason doubtless is, that the real owner of the estate is, in this way, enabled to control the legal title without any necessity of resorting to a court of chancery.
    But it is obviously immaterial whether the trust be express, by deed, or arises by implication of law.

    Here there is a series of conveyances beginning with Hiñe and ending with Eggleston, the present owner; and the legal title has either passed down through this series, or it has not. If it has not, and if, by reason of some defect in his deed, the legal title remains in Warner, he then is the trustee of Eggleston, and the very case is made in which it is admitted that a demise may be laid in the name of a trustee. All who have been owners from the patentee to Eggleston are privies in estate, and it is not pretended that the title has ever been transferred to any other than Eggleston. Admit that Warner’s deed passed nothing but an equity. He then stands as a trustees, holding the legal title for the benefit 815] of any one to whom the ^equity may be transferred. The execution of a defective deed by Warner is an implied authority to all who claim under it to use his name, in order to control the legal title.
   Lane, C. J.

A preliminary question is made on a motion to strike out a demise. The title of the plaintiff is traced by a series of deeds through Enos Warner, and on leave of amendment, to avoid objections raised to the conveyance of Warner to him, he counts on a demise of Warner, which the defendant moves to strike out. „

This practice of permitting the plaintiff to count on the demise of any former owner in his chain of title has to some extent prevailed in this state; but has never been sanctioned by our courts; and the authorities cited by the defendant’s counsel show that no title should avail in this suit to work a change in the possession of land, except of one claiming a present subsisting right, saving only the case of a cestui que trust, who is permitted to use for this purpose the name of bis trustee. It is understood the practice of the Circuit Court of the United States in this district is in conformity with this principle.

Several objections are taken to the title of the plaintiff:

1. It is objected that, in the deed from Hine to Warner, section 32, the land in question, is nowhere described, and that no legal title exists in Hine.

The evidence shows the land was granted by patent to certain trustees, and a partition has been had in fact, by which section ' 32 was drawn to Hine. This partition, made many years ago, affecting all the lands in the Ohio Company’s purchase, has been generally regarded as the starting point to which titles to all the land in that purchase must be traced, and on which they all depend.

2. It is objected that the deed from Warner to Sleeper is attested by one witness only, and acknowledged before a master commissioner in chancery.

The law of New York, where this deed was made, lies before us, and shows that form of attestation is valid to convey.

It is further objected to this deed that the lot described in *it, [316 is No. 16, and that lot No. 32 is not mentioned, and therefore does not pass.

It is admitted thát the number of the lot is mistaken. Where the description of an estate contains a number of particulars, each of which is necessary to ascertain the estate to bo conveyed, the estate must correspond in character with each. But if sufficient be shown to ascertain the estate intended to be conveyed, the land may pass by the deed, although some of the particulars are false. 4 Mass. 205. And where the description alludes to facts beyond the deed, parol evidence may be offered, not to contradict the descriptjon, but to locate the deed upon the land. 4 Ohio, 453. In this deed we find it assumes to convey 960 acres, part of the share of Hine, lying in one of the two specified counties, to be taken from the largest lot. An original share in the Ohio Company’s purchase consists of a section of 640 acres, a frational section of 240 acres, a quarter section of 160, a ten acre lot, a two acre lot, and a city lot. In this case the section was No. 32; the fractional section was No. 16. It was an evident error of the number of the section, for there is not land enough in the share to satisfy the grant, unless the section 32 be included. It is a plain mistake, and we find no difficulty in discovering a description certain enough, neglecting the mistaken number.

3. In the deed from Sleeper to Wood and Peterson, the description is said to be too general.

If it were shown that Sleeper, at the date of this deed, had three tracts of land in Athens county, corresponding in quantity, and no other land to which the description could apply, we believe it would pass by these general terms. But as the land is described by no marks, except by its locality, it plainly would operate on no land, beyond the limits of Athens county. At the date of this deed, the county of Hocking had been erected, and the land lay within it. There is room to suspect a mistake, but a mistake which must be corrected in equity; for there are no terms in the description, which enables a court of law to identify the land.

Judgment for the defendant.'