text:
    Wiles and others v. Baylor.

      Lands Valued on Sale in Chancery.

    Laud sold under a decree in chancery for the balance of the purchase money due to the vendor must he valued, and sell for the proportion of valuation, as required in case of land sold upon execution.
    This was a writ of error to the common pleas of Brown county. The case was as follows: Baylor, the defendant in error, sold a tract of land to the plaintiff in error, and retained the title in his own hands, until the purchase money should be paid. The purchasers failing to pay, he prosecuted a suit in equity to have the land sold for the purchase money due. The court decreed a sale, and that Baylor, the vendor, should convey the legal title to the purchaser under such sale. The decree did not require the land to be valued and sold for a proportion of its valuation; but directed a sale without- regard to valuation. Upon- this ground the writ of error was brought to reverse the decree.

      Brush and Fitzgerald, for plaintiffs in error:
    Insisted that in this state an appraisement or valuation is necessary in all cases of sale, to satisfy any judgment or decree.
    The act regulating judgments and executions of" the year 1820, section 15, requires an appraisement and valuation of the property, being real estate.
    The fortieth section of the chancery law, in force at the time, declares that a decree shall have the force, operation, and effect of a judgment at law.
    Where process of execution is issued upon a decree, the forty-second section directs the same proceedings as at law. See vol. 18, p. 240, secs. 40, 42.
    The second section of the act, providing for the recovery of money secured by mortgage, directs that the mortgaged^premises shall be taken in execution and disposed of in the same manner and under the same regulations as for the satisfaction of judgments. %
    It is, and uniformly has been, the policy of this state to require appraisements and valuation of real estate, when the same is to be sold for the payment of debts, and that the same should not be sold for less than a certain proportion of the appraised value.
    If execution be issued on any decree, to collect the money directed and ordered to be paid, the act expressly requires the same proceedings as at law, of course an appraisement and valuation. But it is contended that when the court decree a sale, they have a discretion to direct an appraisement, or to direct a sale, without appraisement, to the highest bidder. There can be no doubt but the court in such case may direct an appraisement in all cases, when they decree a sale of real estate. Will this court sanction the principle, that it may or may not be done at the discretion of the court? That decrees upon this subject may be different, under the same laws, and be agreeable to the same policy? One man may have his estate sacrificed, while another’s must bring two-thirds of the appraised value? If this case is not expressly provided for in any act, then it is left to the judicial discretion of the chancellor; that discretion, when once exercised, becomes a rule; to be a good rule, it should be uniform, agreeable to the spirit and intention of the general laws upon the subject, and be guided by that general policy. All the laws upon the same subject will be taken together, the intention of the legislature ascertained by comparing one with another, the general policy adopted and sanctioned, that it may be uniform; and if such case as this is not within the express words of any of the acts, yet if it is within the scope of a general policy, agreeable to it, and so within the equity of those remedial laws, it is believed the court will prefer that construction which harmonizes in one uniform rule; a rule which will thus be agreeable to the spirit, meaning, intention, and policy of the laws in all other like cases. When the legislature have declared the effect of decrees to be the same as a judgment at law, and that in the enforcement of them, by execution, the proeeeding shall be the same, there is no reason to doubt the *intention to produce a uniformity. If it is in the intention of the legislature and within the equity of the statute, it is as much within the law, as if in the express words. 6 Bac. Abr., title Statute, 382-385.
    If such be the law, then the decree of the court of common pleas, directing a sale of real estate to the highest bidder, without directing an appraisement according to the law, is erroneous and must be reversed.
    Collins, for defendant in error:
    The principal error assigned is, “ That the land was decreed to be sold without appraisement, for the best price that could be obtained, at public vendue.”
    The defendant in error contends that there is no error in the proceedings and decree upon the following grounds:
    It is a principle too well settled to now admit of doubt, that in equity a vendor has a lien upon land sold, whether conveyed or not until the price of the land or consideration of the sale is paid; and the giving of a note for the purchase money does not affect the vendor’s lien; and if part of the purchase money be paid, the lien is good as to the residue, and the death of the vendee does not alter the claim. This equitable lien gives a vendor a right to resort to the estate sold to raise the money due as the price of it, on failure of the personal property of the vendee to make the money. The remedy to enforce this lien, and obtain this right, is only by an application to a court 'of chancery to- decree a sale of the vendee’s equitable interest in the land, to pay the consideration money (when the estate is not conveyed), and this sale, according to the usages and practice of courts of chancery, is-without appraisement. In support of the doctrine or principles here laid down, I will call the attention of the court to the case of Garson v. Green and others, 1 Johns. Ch. 308, 309, and the cases there cited; Sugden on Vendors, 352, 354.
    Inasmuch as courts of' chancery have exclusive jurisdiction of cases like the one under consideration, equitable estates not being liable to be levied on and sold under execution at common law, the party who is compelled to resort to this court for his right, must unquestionably be permitted to have his remedy according to the well-settled *usages and practice of this court, unless this remedy is subject to some restrictions or limitations by virtue of some statute which regulates the practice of the court or abridges the right of the party.
    The provisions of the act regulating judgments and executions, and of the “act regulating the mode of proceeding in chancery,” which relate to sales of land under execution by the sheriff of the county, under execution upon judgments at law, or decrees in chancery, can not, by any fair construction, be applied to decrees in chancery of this kind, to be carried into effect by a commissioner of the court’s appointment, according to their own rules and practice; being a case not provided for by statute, but within the ordinary, peculiar, and exclusive jurisdiction of the court; and all those provisions for the sale of land relate to sales of legal titles. This case can not be assimilated to an ordinary decree of a court of chancery for the payment of money in a case of original jurisdiction, when, by express provision of the statute, the decree ibas the same “force, operation, and effect of a judgment at law from the time of the actual entry of the decree;” which decree, by express provision of the act, is enforced by “fieri facias et levari facias, against the goods, etc., of the defendant (generally), upon which writ the same proceedings shall be had as at law;” 18 Ohio Laws, p. 240, sec. 40, 42; because in the latter case there is an express direction by the statute as to the mode of enforcing the decree, and reference is had to the act regulating judgments and executions at law, and the lien of the complainant only commences at the time of entering judgments or decrees, and is only so far a lien on defendant’s property as the judgment or decree has priority in date to other judgment creditors. But in the case before the court the lien is not created by the judgment or decree; it exists from the time of the contract, and it rests upon •the particular property which was the subject of the contract. •The decree gives the complainant no right; it only gives the party the aid of the process, and officers of the court to carry into execution a previous right to sell a particular piece of property to pay for itself; and if the case is not embraced within the statute by implication, the sale must be without appraisement, as that principle is entirely a ^creature of the statute not known at common law — not known or practiced by courts of chancery. .
    If, then, the decree in this case is, as I conceive it is, in strict conformity to the principles of equity, and the usages and practice of courts of equity, anterior to the passage of the statutes before cited, and the rights of the parties are not altered or their reme' dies changed by those acts, the decree is correct.
   By the Court :

The decree, in this case, directs the interest of both vendor and vendee to be sold,-and the complete legal title to be perfected in the purchaser at such sale. The policy of requiring lands sold under execution for debt to be valued, pervades the legislation of the state, and has prevailed for many years. In directing a sale of real estate, especially where the legal title is to pass, a court of chancery is not at liberty to adopt a different policy. This court have determined that mortgaged premises sold under a decree in chancery to raise the money due on the mortgage, must be valued, and sell for a proportion of the valuation. T’he same reason applies to this case. The decree is erroneous, in not directing a valuation, and for that cause must be reversed.


source: Caselaw Access Project

author: By the Court :

license: Public Domain

text:
    John Emerick v. Armstrong, Grandin, and others.

      Administrator — Appeal.
    In a joint action against several defendants, one may appeal the whole cause as to those against whom judgment is rendered with himself, by giving the bond required by law.
    An executor or administrator, defendant in a joint suit, can appeal the cause as to co-defendants, without any security being given.

      A cause settled by agreement will not be examined into where there is no suggestion of fraud.
    This was a bill in chancery, prosecuted by the complainant against Armstrong and Grandin, survivors of John H. Piatt, deceased, his heirs and administrators, and the administrators of A. H. Ernst, deceased. While the suit was pending in the common pleas, the subject of it was adjusted between the parties; but they could not agree who should pay the costs. They thereupon entered into a written agreement, to submit the question of costs to be decided by the court of common pleas, as though no adjustment -had been made, and upon hearing, the court of common pleas decreed costs against the defendants. From this decree the defendants *appealed, but gave no bond, the administrators of Piatt and Ernst contending that they had a right to appeal, under the law, without giving security. A motion was made in the Supreme Court to quash the appeal, and the decision of this motion as well as on the final hearing of the case was adjourned to this court.
    N. Wright, for the complainant:
    In this case Armstrong and Grandin, and the heirs of Piatt are the parties really interested. It is even doubtful whether it were necessary to make the administrators parties, but it is clear that the decree could not affect them, except for costs. However, therefore, it might be in case where administrators, or the estate they represent, would be liable to satisfy the decree, yet, in the present case, where those who are defendants in their own rights, are alone to be affected by it, they are not exempt from giving bond. 2 Mun. 341. The intention of the statute is to give a plaintiff security for his claim, wherever the defendant, by his own act, makes void a judgment or decree once rendered, and obtains delay. In case of administrators, when the claim is. against the estate they represent, the administration bond stands in the place of such security; but where a co-defendant will alone be liable to satisfy the judgment, that bond is no security whatever, and the plaintiff loses entirely the right secured to him by statute. It would be unjust that an administrator, in every case where he may bo made party merely for purposes of discovery, account, etc., having no interest of the estate to defend, should be able to drag with him into the Supreme Court any suit, however important, and defeat any decree, whatever the amount, for which his co-defendants only were liable. In such a case, should the question arise whether the administrator was a proper party, the court would be placed in an awkward situation. If the bill be dismissed as to the administrator, he being not a proper party, the case is not appealed, and this court have no jurisdiction over it, not even to make that order.
    Our appeal is purely a creature of the statute; the arbitrary act of the party perfects the appeal and gives jurisdiction to the Supreme Court. If the steps have been taken which the law requires, the judgment or decree in the *court below is annulled, and the suit is in progress as though it had never been rendered; if not, the Supreme Court has no jurisdiction of the case. The general requisition of the statute is, that bond shall be given; the exception is, that administrators, etc., may prosecute “ appeals by them made," without bond. They may prosecute their own appeals, but not those of others. The persons who are defendants in their own right must give bond, or no appeal is made; the exception can not extend beyond the terms of it, and the legislature might easily have embraced the present case, had such been their intention. The spirit of the statute is to protect administrators, etc., from personal liability, and they can in no case be required to execute a bond on appeal; but it does not follow that the appeal is perfected without bond in a case like the present. This construction may sometimes subject administrators to inconvenience, but the same inconvenience often results from disobliging associates as party in a suit.
    This appeal ought to be dismissed upon its own peculiar circumstances. It is a decree upon a question referred to the court by consent, upon an agreement by the parties to conform to the decree that might be rendered. The litigation was settled upon the faith of that agreement, and the decree is only for costs. 2 Mad. Ch. 438 ; 2 Johns. 138 ; 11 Mass. 394.
    If the appeal be sustained, the court ought not to investigate the merits, but affirm the decree below. It is in the nature of an award, and concludes the parties in the same manner with an award.

      B. Piatt, in support of the appeal:
    It is admitted that the law does not contemplate imposing any .-act upon an executor or administrator which shall subject him to incur a personal responsibility in the fair and honest execution of his trust. This admission is considered a surrender of the question. The administrator is made defendant without any volition of his own, and he has no control over his co-defendant. Should he deem the decree or judgment against him erroneous, he can not .-appeal unless his co-defendant will unite with him and give a bond. The consequence may be, that he must submit to a decision deemed unjust, or take a personal ^responsibility upon himself. The absolute right of appeal given to executors and administrators, without giving security, is thus embai'rassed and restricted. It were safer to extend their privilege to their co-defendant, than thus to embarrass them.
    . The peculiar circumstances of this decree can not affect the right of appeal. This is given from all decrees, and here is a decree. That the opinion of the court was, by consent of parties, confined to a single point, instead of extending to the whole case, can make no difference.
   By the Court :

The first question to be decided in this case is, whether an administrator can, by appealing, take up the case as to his co-defendants, without any bond being given upon the appeal. Manjr reasons may be urged, with about equal force, upon both sides of this question.

There are some cases in which one of several co-defendants may appeal the cause separately without affecting the others. This may be done where the action is in its nature joint and several. In an action of trespass, tried in the supreme court of Warren county, against two defendants, one was acquitted and the other found guilty by the jury. The. court decided that the defendant convicted had a right to appeal without his co-defendant; and that the plaintiff, if he wished to keep both parties in court, could do it by appealing himself.

But where the action is joint, the defendants must stand or fall ."together, and the question presents more difficulty.

It may be said, shall one defendant, who is satisfied with the judgment, be compelled to follow his co-defendant to the Supreme Court, where additional costs may be awarded, and higher damages? And this in a case where the defendant who appeals is irresponsible, and that very irresponsibility a strong inducement to indulge a litigious disposition, in the security of having nothing to lose? In this there would be great injustice.

On the other side, it may be asked, shall the only responsible defendant, and upon whom the whole burden rests, be deprived of his appeal, where he thinks justice has not been done him, because his co-defendant, secure in his ^poverty, will not unite in consummating the appeal ? This result would at least be equally unjust. The question, therefore, must be decided without reference to the inconvenience of either view of it, and upon the naked: matter of right and power under the statute.

The provision of the law is, that in civil cases an appeal shall be allowed of course from any judgment or decree. The mode is prescribed in which the party wishing to appeal shall consummate it. One defendant can give notice, and if he can give the bond the law requires, he can perfect the appeal. No act is required calling for the joint agency of all the defendants; but the whole power of appealing the cause is given to any party who desires to exercise it. To require the concurrence of all the defendants in consummating an appeal, would be to give the statute an interpretation not warranted by its terms, nor by its general object and spirit. The court are consequently of opinion, that in a joint action one defendant or one plaintiff can appeal the whole cause by giving the notice and' the bond required by law.

The law regulating this right of appeal directs, that in general cases the appellant shall give a bond, but with respect to executors- and administrators the right of appeal is given upon different terms; no bond is required, and it is sufficient for an executor or administrator to give notice and docket the appeal in the Supreme Court. As one defendant can consummate an appeal of the whole case by doing what the law requires in giving the bond, so, by the same rule, an executor or administrator, by doing what the law requires of him, can perfect an appeal of the cause, not only for himself, but for his co-defendants, in all cases where the interest is joint, and where an appeal as to one must be an appeal as to all. This must be the rule, otherwise the administrator can not use the privilege of appeal without subjecting himself to a responsibility not imposed, by law.

Against this rule it is objected, that it permits the privilege given to executors and administrators alone, to be enjoyed by others for whom it was not intended, and thus prejudices the plaintiff’s right to have security upon the appeal. This is true; but the absolute right of the administrator *to appeal, without giving security, is as clear and as strong as the absolute right of the plaintiff to have security from the co-defendant, and it is certainly the policy of our laws, that, in this collision, the right of the administrator should prevail.

The exemption is secured to him that he may proceed with confidence in protecting the interests committed to him ; for were his duty to be connected with his personal responsibility, the feelings of self-interest might prevail so far that the administrator would regard rather his own safety than the interest under his direction. Require an executor or administrator to give security upon an appeal, and you require him to hazard his own estate; for, as the law now stands, he would be personally liable upon his bond, and personally liable to indemnify the security in case of loss. Impose this responsibility upon an executor or administrator, and its natural consequence would be to induce, at least in cases of difficulty, an abandonment of the interests he represents and should protect. It is obviously of much more public importance that the estates of deceased persons should be faithfully administered, than that an individual, setting up a claim against such estate, should fail to obtain an additional security for his claim in the progress of litigation. For it must be remembered, that in allowing the appeal to be perfected, without the bond and security, the complainant loses nothing that he ever possessed ; and in respect to the right so confidently asserted to be an absolute one, it is, in fact, a decision that upon a just construction of the whole statute, no such right is, in the particular case, secured to him. The appeal must be sustained.

The merits of the case are easily disposed of. The parties have settled the subject of controversy, and by written agreement referred the question of costs to the court of common pleas, to be decided upon the point whether the complainant’s bill could be sustained; and if sustained, to tax the costs against the defendants, otherwise against the complainant. This point the court of common pleas decided in favor of the complainant; and thus the whole cause is disposed of under the agreement of the parties by the umpire to whom they referred it. Nothing is left for this *court to do, but decree the costs to the complainant, conformable to this agreement. This court never investigates the rights of parties settled by themselves, except upon suggestion of fraud or imposition.


text:
    Nowler, Douglas, and others v. Daniel L. Coit.

      Lands sold by Administrators — Taxes.
    Purchase money paid to an administrator upon a sale of intestate’s land can not be recovered of the heir where the sale is inoperative and the heirs recover the land.
    Taxes paid by a purchaser shall be refunded, with interest and expenses of making the payment, where the heir comes into equity to disincumber the title.
    In the year 1792, the State of Connecticut, then claiming certain lands situate within that tract of country in the now State of Ohio called the Connecticut Western Reserve, granted 500,000 acres, by particular description, to certain individuals to remunerate them for suffering during the revolutionary war. This tract of country received the name of the fire lands. At the time of this grant the Indian title was not extinguished.
    After the grant, and while the land was subject to the jurisdiction of Connecticut, as claimed by her, the legislature of that state incorporated the proprietors of the land, who were residents off Connecticut, and empowered them to do various acts for the preservation of the property, and the extinguishment of the Indian title, and among other matters, empowered them to assess a tax upon the land to raise funds for its preservation.
    On the 30th of May, 1800, the governor of Connecticut, in virtue of an act of Congress, and of an act of the legislature of Connecticut, ceded to the United States the jurisdictional claims of that state to the tract of country called the Western Reserve, including the fire lands, and the same were constituted part of the county of Trumbull, and made fully subject to the jurisdiction of the territorial government of the then Northwestern Territory.
    The ancestor of the complainants was one of the grantees. Ha died in Connecticut, before the year 1801, and letters of administration on his estate was granted to Daniel Douglas, by the court ■of probate of the district of New London, in Connecticut, in February, 1801, and that court upon a representation of the administrator, directed the interest *of the intestate in these lands to be sold for the payment of debts. The sale was made on the 24th of March, 1801, and the defendant, D. L. Coit, became the purchaser, at a fair price, and received a deed from the administrator.
    In April, 1803, the legislature of Ohio incorporated the owners of these lands, for the same purpose and upon the same principles ■originally embraced in the Connecticut act of incorporation. It authorized the directors to extinguish the Indian title, and to make partition among the proprietors, to levy and collect taxes.
    Upon the tracts partitioned to the right of Douglas, the defendant, Coit, paid the taxes, as well those assessed by the company as those assessed by the state. But no improvement was made upon the lands, nor were any offers made by the heirs of Douglas to pay the taxes.
    The bill was brought by the heirs of Douglas claiming the lands as in their possession accompanied with the legal title, and calling upon the defendant to disclose under what title he set up a claim. The defendant, in his answer, set up the purchase under the administrator, and he claimed, if the title was adjudged defective, to have the purchase money and taxes refunded, with interest-The Supreme Court, sitting in Huron county, adjourned the cause here for decision. The judges who heard the cause in Huron county, having strongly intimated an opinion that the sale could not bo sustained, that question was not argued nor insisted upon by the defendant’s counsel.
    Whittleset & Newton, for defendant:
    The complainants come into equity to have their title freed from the embarrassment of the defendant’s claim. They can only ask this upon equitable terms. They must refund:
    1. The money paid to the administrator of their ancestor’s -estate, with interest.
    2. The amount of taxes paid to the company, with interest.
    3. The taxes and interest paid to the state.
    4. The expenses incurred in paying the taxes, with interest.

      *Money paid under a void authority may be recovered back in the equitable action of assumpsit. 2 Com. 49; Ld. Raym. 742.
    To charge the complainants with the money paid to the administrator is not making them debtors against their will. They have taken credit for it in settling their ancestor’s estate; and they claim the identical lands partitioned to the defendant under the purchase. Both these acts involve an implied assent to become debtors for the money. It would be unconscionable to retain it, and take from the defendant the consideration for which it was paid.
    The taxes, both to the company and to the state, were paid by the defendant. By these payments the estate was saved from incumbrances. The complainants, in seeking to hold the land, claim the benefit of these advances, and therefore ought to be held accountable. By asserting the possession in themselves, they virtually admit the defendant to be their trustee; the land was partitioned to him; he took charge of it, and paid the taxes. No other act of ownership, or of possession, was exercised by any one. The complainants can have no possession but that of the defendant. They make him their trustee for the possession, and they must account to him for his advances as a trustee. 1 Ves. Jr. 337; 1 Johns. Ch. 39.
    The right to be reimbursed the taxes, includes the right to be reimbursed the money expended in making the payments, as the incident follows the principle.
    Latimer, for the complainants ;
    The matters of account for which the defendants not only claim to be paid, but to have a lion decreed upon the land, appear altogether unprecedented.
    That for the purchase money stands upon no known principle. Who ever heard of a grantee in a void quitclaim deed recovering the purchase money paid? How can a claim for money paid to an administrator be set up against the heir? It might as well be maintained against any other stranger. The' administrator had nothing to do with the land. It was not assets in his hands. 4 Bibb, 402. If he received the money, his securities as administrator are not bound for its application.
    *As to the repayment of the taxes, it is to be remarked, that in the vast multitude of cases both, in England and in our sister states, where parties have been evicted from lands by superior titles, not one case is found where any such reimbursement has been made. Even our occupying claimant law does not cover taxes. The defendant purchased at a speculation, and he made payment of the taxes at this risk. The chance of his gain was, that his possession and payment of taxes might secure him the title by aid of the statute of limitations. It was upon this chance he made the payment, and not upon an expectation to be reimbursed by the plaintiffs.
    There is still less color for charging the plaintiffs with the taxes assessed by the company or corporation. They were infants, and never assented to the charter so as to become members. 2 Mass. 269. It is argued that by claiming the specific lands partitioned to the defendant, the plaintiffs recognize the partition made by the company, and affirm- it, and with it all the doings of the corporation. We deny this consequence. Partition may be made by parol. Here all the grantees unite in setting out the right of our ancestor, and our acquiescence binds us in nothing else.
   By the Court :

The defendant’s counsel have very correctly abondoned the-validity of the sale, and conveyance made under the order of the court of probate of Connecticut. At the time the order was made the State of Connecticut had no jurisdiction over the lands in question. They were subject only to be sold and conveyed under the laws of the then territorial government. The sale to the defendant is neither authorized nor sanctioned by these laws; it is, of consequence, inoperative. The title remains untouched in the heirs to-whom it descended.

The purchase money paid by the defendant upon the sale constitutes no charge upon the land in the hands of the complainant. The lands of the deceased were never legally charged with the-payment. The administrator, from whom the defendant purchased, had no power over them. He paid his money upon a mistake as to the consideration. The present complainants are not the parties-*to whom he paid it, or with whom he made the contract; and his right to recover back his money can not be litigated with them, neither at law nor in equity. We can therefore make no decree-■ with respect to the purchase money.

The amount paid for taxes stands upon a very different ground. These were chargeable by law upon the land, and the payment was. a direct benefit to the complainants. It was their duty to pay. In the case they failed to do this, the land was liable to be sold for the taxes. They have derived a benefit from the payment, and in equity ought to refund the money. In one sense the defendant is a mere volunteer in making the payment; but when the owner of land in such case omits to pay the taxes as they fall due, he adopts the payment made by such volunteer, and as to that, constitutes him his agent, by recognizing his acts. Perhaps a court of equity might not, in every case of such volunteer, and upon his application, decree a lien for the taxes; but where these taxes have been paid under an opinion that the person who paid them owned the land, and when the true owners come into equity to ex.amine that claim of ownership, and to have it quieted, the rule that he who asks equity must do it, strictly applies. The court will not lend their aid to quiet the title, without securing to the defendant the moneys paid in preserving that title; moneys which the owners ought to have paid, and without the payment of which the land would have been lost.

The taxes assessed by the company are not to be distinguished from those assessed by' the state. The whole, with interest, are justly due, and the payment must be charged upon the land.

The commissions, or other expenditures necessarily incurred in the payment of' the taxes, also constitute for the defendant an equitable claim against the complainants. It is a charge inseparable from the payment of the taxes, which, had the complainants paid the taxes themselves, they must have incurred; and therefore, upon obtaining a decree of this court to rescue their title from suspicion, they must repay this expenditure to the defendant.

The .cause must be sent back to the county of Huron, with directions that the master commissioner take an account of the payments made for taxes, and expenses in making *such payments, with interest upon each sum paid from the time of payment; upon which a final decree must be entered, upon the principles here decided.


author: Judge Hitchcock:

text:
    Isaac Edwards v. James C. Morris.

      Performance of Contract — Rescission of Contract.

    A complainant in chancery asking to set up a contract different from the-written one, upon which judgment was had at law, must show an offer to perform the contract he claims to establish at the time it ought to have been performed, and also a readiness still to perform it.
    An obligation to pay in the notes of a specific bank, must be paid in the notes of that bank, or their numerical value in money. Their price in money can not be substituted.
    A contract is not rescinded upon stale objections to the vendor’s title, the vendee remaining in undisturbed possession.
    The bill had a double aspect, each containing separate and distinct matter nowise connected with the other. It states:
    1. That on the 25th day of December, 1819, the complainant purchased of the defendant a certain farm, and distillery, in Hamilton county, for the sum of eight thousand dollars, to be paid in different installments, the first two of which, amounting to four thousand dollars had been paid; that the third installment for • two thousand dollars was to be paid on the 1st of February, 1822, and the fourth, for the same sum, was to be paid on the 1st of February, 1823, and that for these several sums of money the complainant executed to the defendant his several promissory notes of hand, promising to pay the sum of money mentioned in each, in-current bank notes of the city of Cincinnati; that the defendant, pre- ■ vious to said purchase, stated to the complainant he would receive in payment the notes of the Miami Exporting Company for the purchase money, and at the timeof executing these notes, the complainant supposed that they contained a stipulation to pay only in the notes of the Miami Exporting Company, and that he would not have executed them had he understood otherwise; that the two first installments, for which notes were also given, the said defendant, had been pai.d according to the terms of the contract as understood by the complainant; that when the third note became due, the defendant informed the complainant he.would receive no funds as payment other than notes current as cash in Cincinnati, and. that at the time the notes of the Miami Exporting Company had depreciated to twenty-five or thirty cents on the dollar; that the defendant had brought suit on the said third note, due February 1, 1822, *in this court, and had recovered judgment thereon for the amount thereof and interest.
    2. That the land purchased by the complainant of the defendant was the northeast quarter of section 21, in the 4th township, .and 2d fractional range of townships, on which the complainant had paid four thousand dollars, estimated by Mm at two thousand dollars, and which, as he alleges, at a present cash valuation is .about as much as it is worth, and that since the said purchase he has discovered that the title to the same is not complete and perfect; that on the 20th of June, 1795, it was originally conveyed by John C. Symmes, but the conveyance never proved or acknowledged; that in the year 1787, John C. Symmes sold, by contract on record, a large quantity of -lands to one Benjamin Stites; that about the 1st of February, 1798, he acknowledged, in writing, to have received a large sum of money on said contract; and that 10,000 acres of the land for which the money was paid laid around Columbia; that on the 17th day of December, 1787, the said Symmes gave to said Stites a certificate that he had entered or located 10,000 acres on the Ohio and Little Miami; that these several papers contain evidence that said Symmes could have no authority to convey said lands, except from said Stites, and that the said quarter section is contained within the said tract of 10,000 acres. And prays an injunction on said judgment at law, until the title is perfected; that the contract may be rescinded; that the money, already advanced to the defendant be refunded to •the complainant; and that, when the title shall be perfected, an account taken of the value of the notes of the Miami Exporting Company at the time the contract was made, or at the time said notes became due; and a prayer for general relief. The defendant demurred.
    Wade & Hayward, in support of demurrer :
    The defendant insists that as to the first part of the bill no case is -stated, and no case is made out, which is not as much within the cognizance of a court of law as of a court of equity; and the subject matter in controversy between the parties having been tried and adjudicated by a court of competent jurisdiction, by this court before ■all the judges in bank (1 Ohio, 189), the complainant is not entitled to ^relief in chancery. 3 Atk. 740 ; 6 Vesey, 682 ; Cooper’s Eq. Plead. 124; 1 Johns. Ch. 91; 1 Schoale & Lefroy, 201.
    The attempt of the complainant to go behind the terms of his written contract, for the purpose of changing its legal effect and lessoning the amount for which he is liable to the defendant, on suggestions and insinuations not founded on any positive facts ■stated in the bill, or by the introduction of parol evidence, can not be sustained in equity any more than at law.
    A contract is never allowed to rest partly in writing and partly in parol. Whenever it is reduced to writing, that is considered as the evidence of the agreement, and everything resting in parol becomes thereby extinguished. This is the settled doctrine of •the courts of law (1 Johns. 414), and has been fully recognized as the rule in equity. As where an agreement is reduced to writing, all previous negotiations, resting in parol, are extinguished by the written contract, and can not bo resorted to, to help out or explain its meaning. 1 Johns. Ch. 282, 429. On this point Chancellor Kent speaks in the most positive terms, and with great energy. “There is nothing (says he) more dangerous than to impair the force and effect of solemn contracts in writing, by careless, idle, and perhaps unmeaning conversation ; and so far as such testimony is in contradiction to the note itself, it is utterly inadmissible." 2 Johns. Ch. 557.
    There are no facts set out in this bill, which go to show that there was any mistake in the terms and conditions of this note. Loose conversations had between the parties, previous to the execution of the instrument, can not be received as evidence to do away its legal effect or change the liability of the complainant; and a mistake as to the law is not relieved against by a court of chancery. Every man- is to be charged at his peril with a knowledge of the law. 2 Johns. Ch. 60. And besides, there is no positive allegation in the bill, that the defendant, at the time this note was executed agreed to take the notes of the Miami Exporting Company. The fair and reasonable presumption is, that he did not, or it would have been so expressed in the contract. And there is no act of fraud alleged which will warrant the court now to interfere with the case, after a verdict and judgment *at law. In fact, the general principles which have governed the jurisdiction of courts of equity, and which have long been recognized and established, in both the English and American chancery, are opposed to the assumption of jurisdiction in a case like the present, for any purpose of relief. No case has been made out in the first part of the complainant’s bill, which shows that his remedy and defense to this note was not as plain, adequate, and complete at law as in equity.
    It is the seltled doctrine of the English chancery, not to relieve against a judgment at law, on the ground of its being contrary to equity, unless the defendant below was ignorant of the fact in question pending the suit, or it would not have been received as a defense. 3 Atk. 223. The same doctrine has been sanctioned, with strong expressions of approbation, by an eminent and distinguished chancellor of the Irish court. 1 Schoale & Lefroy, 201. And also by Chancellor Kent, and other enlightened lawyers of New York. 1 Johns. Cas. 491, 501; 1 Johns. Ch. 49, 91.
    It is also a settled rule in chancery, and one which has long been adhered to with scrupulous regard and fidelity, that a party will not be aided in a court of equity, after a trial at law, unless he can impeach the verdict or report by facts, or on grounds of which he could not have availed himself, or was prevented doing it by fraud or accident, or the act of the opposite party unmixed with any negligence or fault on his part. 7 Cranch, 336; 3 Johns. Ch. 356.
    The defendant, therefore, can see no reason why a party in a court of equity, in a case where the same rules of evidence apply as at law, should be permitted by any parol explanations to change the legal effect of a written instrument, when that legal effect has been found and adjudged, and the rights and liabilities of the parties ascertained and determined by a court of competent jurisdiction, and that, too, after solemn argument before all the judges in bank.
    The second part of the bill, relating to. the title to the quarter section of land purchased by the complainant of the defendant, is too defective, in substance, to entitle him to a discovery, answer, or relief, in a court of equity.
    *It does not appear to whom John C. Symmes conveyed the said quarter section, in 1795; nor that the defendant’s title is. traced through said conveyance.
    The nature, terms, and conditions of the contract, by which John: C. Symmes sold a large quantity of land, in 1787, to Benjamin Slites, is not stated; nor is it anywhere alleged that said contract is still in force; nor is the contract, and the certificate of the entry or location of the 10,000 acres of land, set out or made part of the bill, or anything averred, by which the court can discover that there is any evidence, John C. Symmes could have no authority to convey said land, except from said Stites.
    It does not appear, by anything stated or alleged in the bill, that the defendant’s title is traced through said Stites; nor is there any facts made out by the complainant which would lead even to a suspicion, that there is any defect of title to the said quarter section; but, on the contrary, loose insinuations and improper inferences have been resorted to, from which the court are called upon to open up a judgment at law, rescind a solemn contract in writing, made in good faith by the parties, or otherwise compel the de-fendant to perfect a title, which, for aught that appears in the bill, is in no way defective 1
    It does not appear that the complainant has not the defendant’s deed for this quarter section, with the usual covenants of warranty; but from the general tenor of the bill, it is believed the court would be justified in inferring that he had; and in such case, his remedy would be plain, adequate, and complete, at law; the complainant being in possession of the locus in quo, and the defendant not being in insolvent circumstances, and abundantly able to respond the amount of damages which might be recovered against him, in an action at law, on his covenants of warranty in the deed. 18 R. Stat. 70. And where a cause depends on the solution of a legal question, the proper forum for the determination of that question is a court of law, and equity will not interfere. 2 Johns. Ch. 376, 391.
    There is also another serious objection to relief in the case, which is manifest on the bill itself. It is an attempt to break down the lines of distinction which have long marked the separate boundaries of chancery andlaw jurisdiction; *and if sustained, would tend to encourage negligence, protract litigation, and draw within the cognizance of a court of equity the general review of trials at law. 3 Johns. Ch. 357.
    But the determination of this case, even if a defective title had been fully made out in the bill, and we had no statute remedy on the covenants of general warranty in a deed before eviction, must rest on the general principles of equity jurisdiction, and the demurrer will be sustained.

      A purchaser of land who is in possession, can not have relief in •equity, on the mere ground of defect of title, without a previous eviction. If there be fraud in the case, the purchaser must resort to his covenants, in an actionai law. 1 Johns. Ch. 213; 2 Johns. Ch. 519; 3 Vesey, 235.
    Este and Hammond, for complainant:
    The defendant predicates his demurrer, as to the first point in •the bill, principally upon the decision of the Supreme Court in the action at law in this case. That decision rejected the words “ in current bank notes of the city of Cincinnati,” as having no effect in the contract. The note would have been a good note, and the decision would have been just what it was, had these words been omitted.
    As we understand that decision, the court consider these terms as only specifying what kind of money was to be received in payment, and that'the obligor must pay in that kind of money at or before the day, or it stands as if it formed no part of the contract. The object of the bill is to set up an interpretation of the parties ■ different from this, founded on the original understanding, and on a subsequent practical interpretation.
    It is objected that this is to vary a written agreement by parol evidence; but we reply that this is not correct. The terms used are ambiguous. They were inserted in the contract for some practical purpose, and the evidence is offered to show what that purpose was. It runs with, and does not contradict the note or written agreement.
    It was decided that at law the obligor must have tendered current bank notes within theherms of the contract, to avail himself of the advantage contemplated by inserting *them in the contract. The bill shows that this was not done, because the holder of the note gave notice he would not receive such notes.
    Another ground of relief set up in the bill is, that the maker of the note was mistaken as to its legal effect. The defendant replies, that a mistake in law is not to be relieved against in equity. A doctrine like this has prevailed; but is founded in no just principle, and has been recently overruled by the Supreme Court of the United States. We refer to the case of Hunt v. Eousmanier’s executors, 8 Wheat. 174, which is full authority for all the grounds taken upon the first point of this bill. The argument of Mr. Wheaton is one of the most able and lucid ever addressed to a court •of justice, and is substantially adopted by the court in the opinion delivered.
    The grounds upon which it is attempted to sustain the objections to the second point in the bill are little else than captious cavils. All titles must be derived from J. C. Symmes within the Miami Purchase. The bill charges that the original deed from him to the land in question is defective. If this be the fact, there is no legal title.
    The bill refers to other papers of record as evidencing incumbrances; it does not profess to state the extent of them; their existence is sufficient to put him upon inquiry. But the defendant objects that complainant may have remedy at law. This is not •correct; he is entitled to have his contract perfected or rescinded, and is not to be turned round to squabble before a jury for damages, ■which, whether obtained or not, leaves the matter of title where it was found. Besides, if he were to recover at law for the defect of title, the defendant might go into equity to have the proceedings stayed, that he might remove the incumbrances or defects of title, and execute the contract. Surely the court will not send the complainant from equity to law, that when he has succeeded there, he may be brought to equity upon the same grounds, except that the .relative character of defendant and complainant would be changed. 1 Atk. 384; 2 Id. 630; 3 Id. 304; 3 P. Wms. 306.
   •Opinion of the court, by

Judge Hitchcock:

The prayer of the bill in this case is to enjoin a judgment at law, rendered at the last term of this court, and also to ^procure a rescission of a contract. Two reasons are assigned why the court should interfere: 1. A mistake in the terms of the note upon which the judgment was rendered. 2. A doubt as to the title to the land conveyed by the defendant to the complainant, which land was the consideration of the note.

The facts set forth in the bill are admitted by the demurrer, and the question to be determined is, whether there is sufficient matter to justify the interference of a court of chancery.

It is the peculiar province of chancery to relieve against fraud, mistake, or accident. But how far parol testimony can be admitted to prove mistakes in a written instrument, ha been matter of much altercation and doubt. Mistakes in matter of fact, it seems may be rectified, and the opinion of the court in the case of Hunt v. Rousmanier’s administrators, 8 Wheat. 174, goes far to establish the doctrine that where the parties, through a mis* take and ignorance of the law, execute a writing which does not carry into effect their contract and intention, that the true contract and intention may be enforced in chancery.

In the case before the court the alleged mistake consists in this: the purchase money, which was the consideration for which the note was given, was to have been paid in notes of the Miami Exporting Company. The note was to have been made thus payable j whereas, in fact it was made payable in “ current bank notes of the city of Cincinnati.” The complainant understood that he was to pay in the numerical value of the notes. If; in consequence of this mistake, the complainant has sustained an injury, he ought to be relieved.

It is an invariable rule in chancery that he who seeks equity must do equity. Suppose the notes referred to had been drawn payable in the notes of the Miami Exporting Company, and there had been no mistake, what must the complainant have done to have defended himself at law, and to have secured to himself the privilege of paying in the notes of that bank? He must have tendered the notes on the day, and ought also to have brought them into court. The mistake, however, having happened, which rendered it proper that he should come into a court of chancery, what *ought he to do here ? The contract was that he was to pay, on a particular day, the sum named in the obligation, in a particular description of bank notes. He ought, then, to show that he tendered these notes at the time specified, and he ought to bring them into court that the opposite party may receive them. The notes, however, are not brought into court, nor is there any pretense that they have been' tendered. The complainant, then, does not appear to be ready to do that equity which he requires of the defendant, and on this ground is not entitled to the relief prayed for. The circumstance that the defendant, some time before the promissory note fell due, stated that he would not receive those bank notes in payment, can not excuse the complainant in not making the tender.

It is claimed that an account should be taken of these notes, and that the complainant should only be made liable for their specie value. This can not be done; bank notes are considered as money. TThe holder has a right to look to the banks which issue them for their numerical value in specie, and can not be compelled to take for them a value fixed by shavers and brokers. The ability or inability of the bank to pay ought not to be taken into consideration.

The doubt as to the title to the land grows principally out of an old contract entered into between Symmes and Stites in the year 1787. This contract was made before Symmes had any interest-in the land. His contract for the purchase from the United States was made in the year 1788, and he obtained his patent in 1794. The deed from Symmes for the quarter section in controversy was executed in 1795. It is objected to this deed that it was neither acknowledged nor proven. However, when it has been accompanied by a possession of twenty-nine years, it is pretty good evidence of title. Neither this defect in the deed, after-so long a continuance of possession under it, nor the bare possibility that there may be an attempt to enforce the contract at some future period, which contract was made almost forty years since, is sufficient to justify the court either in enjoining the judgment at law or rescinding the contract.

The demurrer is therefore sustained, the injunction dissolved, .and the bill dismissed, with costs.


text:
    *William Stump v. J. Rogers, M. Rogers, W. Rogers, and the Bank of Chillicothe.

      Remedy of Security in Equity.

    'Security may proceed against principal in equity to have his estate subjected to the payment of the debt, without making payment himself before commencing his suit.
    This was a bill in chancery, adjourned here from Pickaway county. The facts, material to be reported, were as follows: In the year 1816 the complainant and others indorsed a note for the defendant, W. Rogers, which was discounted by the Bank of Chillicothe. It was not paid, and separate suits were brought, and separate judgments rendered. Part of the amount was made upon-execution against W. Rogers, and part against the other indorsers. Nothing was paid by tli'e complainant upon the judgment’against him. The bill was brought to subject certain real estate, charged to have been fraudulently transferred to the defendant, Jonathan Rogers, through the interposition of a court of chancery, but which was justly liable to the payment of the debt as the property of "William Rogers. The answers denied the fraud, and the question of fact in relation to it was earnestly litigated.
    Irwin, for the complainant.
    Scott, for the defendants.
   The court decided the question of fraud in favor of the complainant. Whether the complainant could come into a court of equity to charge the principal debtor’s estate with the debt, not having acquired at law a right to sue the principal by payment of the money, was a question which arose in the consideration of the cause, and the court held that a security might ask a court of chancery to aid in subjecting the estate of the principal to the payment of the debt, without first advancing or paying the money, as he must do before he could sue an action at law.


text:
    *Roswell Mills v. Jacob Noles.

      Facts tried by Court — Appeal.
    The court of common pleas can not try the facts of a cause without the consent of both parties.
    Appeal lies from a judgment in the common pleas, though the trial was irregular.
    The question in this case arose upon a motion to quash an appeal from the court of common pleas of Perry county to the Supreme Court. It came up on a bill of exceptions, and was referred, for decision here.

      Before the meeting of the court of common pleas the plaintiff notified the defendant that he did not propose to try the cause, but meant to suffer a nonsuit and appeal. Accordingly, upon calling the cause in the common pleas, the -plaintiff was nonsuit. Afterward a suggestion being started whether an appeal would lie from a voluntary nonsuit, the plaintiff, during the same term, moved to set the nonsuit aside, which was done. He then proposed to submit the cause to the court, to which the defendant objected, but the court overruled his objection, and proceeded to hear the cause, the plaintiff offering no proof. Judgment was given for the defendant, from which the plaintiff appealed.
    Irwin, in support of the motion to quash.
   By the Court :

The court of common pleas ought not to have taken upon themselves the trial of the facts of the cause upon submission without the assent of the defendant. It is only where both parties consent that the court can try the cause. But this mistake can not be corrected upon a motion to quash. Here is a formal decision of the cause, and a judgment rendered, from which an appeal is regularly taken. It can not be quashed.


author: Judge Sherman :

text:
    *Jane Greene v. Surviving Partners of William Greene & Co.

      Dower.

    The widow of a deceased partner is not entitled to dower of the partnership lands, purchased and paid for with partnership funds, under articles stipulating that the partnership property should be sold for the payment of debts.
    . This was a bill in chancery brought by the complainant, the widow of William Greene, deceased, to recover dower in certain lots in the city of Cincinnati. The facts in the case were agreed by the parties to be as follows

      On the 25th of May, 1818, William Greene, deceased, the husband of the complainant, entered into partnership with the defendants to erect and carry on a brass and iron foundry in Cincinnati.
    The articles of copartnership stipulated, among other things, that on the dissolution of the partnership the property of the concern should ail be sold, and the proceeds applied first to the payment of the debts due from the partnership.
    After the formation of the company, the premises of which dower is prayed were purchased by them as a site for their establishment, and buildings were erected necessary for carrying on the business; which were used and occupied exclusively for the purposes of the partnership, and were necessary for. that use. The. title was taken in the joint names of all the partners, and with the buildings constituted a large portion of the capital invested. No part of the purchase money was paid by Greene, who died insolvent, and heavily indebted to the partnership. Before the death of Greene the partnership became insolvent, and judgments were, in his lifetime, recovered against the company for debts incurred in purchasing and improving the premises, upon which executions had issued, and were levied on the premises, which had been appraised, under the execution laws of the state, at about one-fourth of the amount of the judgments.
    There was no other property of the concern, real or personal, out of which the judgments could be satisfied. William Greene, the deceased, was entitled to one-fifth of the profits, and liable for one-fifth of the debts of the concern.
    The complainant’s marriage with William Greene was admitted, and his seizin during the coverture as one of the partners of the company.
    *The cause was adjourned to this court by the supreme court of Hamilton county.
    Kimball, for complainant:
    By the laws of this state the widow of any person dying shall be endowed of one full and equal third part of all the lands, tenements, and real estate of which her husband was seized, as an estate of inheritance at any time during coverture.
    The only question is whether William Greene was seized during coverture of such an estate of inheritance as is contemplated by the laws above referred to.

      Property purchased and used for the purpose of carrying on a partnership concern is not changed in its nature, unless the articles of agreement expressly stipulate that it shall be converted; but the real shall descend as real, and the personal as personal. Thornton v. Dixon, 3 Ves. Jr. 199; Bell v. Phyn, 7 Ves. Jr. 57. In. the first of these cases the property was not only used for the express purposes of the partnership, but the deed contained a covenant from the general partners to stand seized of the land in trust for the copartnership, and this article was not sufficient to alter the nature of the property, and the seizin was sufficient to entitle the widow to dower. The case of Bailman v. Shore, 9 Ves. Jr. 508, supports the same doctrine, as also Watson on Partnership, 60.
    The analogy of the cases cited to the one for decision leads us to the conclusion that the husband of the petitioner was seized of ■such an estate as entitles her to dower by the laws of this state.
    By the marriage contract the wife’s right to dower is absolutely ■vested in her eo instanti with the.celebration of the contract, in all the lands, tenements, and, real estate her husband may at that time, or at any time during coverture, be possessed of as an estate of inheritance.
    It is not in the power of the husband by any act of his own to •divest the wife of her right to dower. But if property used for the purpose of a partnership is by such use converted into personalty, it would be in the power of the husband by this means to deprive the.wife of dower.
    *The law regards these three things, “ Life, Liberty, and Dower.”
    It is consonant with the laws of God and man that the husband ■should provide for the wife, not only during his life but after his death. And this is reasonable, as during coverture she can acquire no property of her own, and by the marriage he has the control of at least her personal property.
    All men are supposed to regard their own interest with an equal ■solicitude as that of others. The conclusion follows that the skill .and labor of William Greene was allowed to be an adequate consideration for his proportional share of the copartnership. Suppose the .said Greene had advanced all the money, and the remaining partners had contributed their quota in skill, labor, and materials, would this circumstance have strengthened his widow’s right to dower ? The idea is preposterous.
    The counsel for the defendant has cited cases in New York and Massachusetts reports, to establish the point that a widow is not dowable of an estate of which the husband was seized but for an instant. Those are the only cases that I can find in the books-where a widow is not dowable of an estate of which the husband was seized for his own benefit, though it were but an instant.. Upon an examination of those cases I find that all the decisions referred to in theirs, come decided upon an instantaneous seizin, either by his own wrongful act, as where a joint tenant attempts-to convey a fee simple, or as a cestui que trust, or .as a mere conduit pipe for the conveyance of the land to a third person, and not one ease is referred to where the wife was not dowable oi'an estate of an instantaneous seizin for his own beneficial interest. In Croke Eliz. 503, if the husband is seized but for a single instant, in his own right, Ihe wife shall have dower.
    N. Wright, for the defendant:
    The case presents the inquiry whether real estate, purchased and occupied by partners solely for the purposes of the partnership, under articles stipulating for the sale of all the partnership property for the payment of debts, is subject to dower of the wife of a partner who contributed nothing *to the purchase, died indebted to the firm, and the firm insolvent.
    1. It is contended for the defendants that the lien of partners on-the partnership effects for the payment of the joint debts, and the balance of account between them, extends to real estate purchased and used solely for the purposes of the partnership; or, in other words, that such real estate, however the legal title may stand, is. a trust in equity for the several parties according to their actual interest in the concern.
    2. That the agreement to sell creates a trust, and operates in* equity to convert the land into money for the purposes of the agreement.
    3. That on either ground the lien or trust attaching with the-acquisition of the estate by the husband, is paramount to dower, and there being no residuary interest, will entirely exclude it.
    I. It is a familiar principle of law, that partners have a lien on the joint effects for the payment of the joint debts, and the balance of account between them. The effect of this lien is such that, neither the operation of law nor the individual act of any partner,, except when he exercises an implied authority from his copartners, can transfer any greater interest in the joint effects than the balance due him from the concern. It is often called in question in cases of bankruptcy, death, execution, and individual assign ment, and necessarily excludes every other claim depending on. the separate rights or liabilities of a partner. Wats. Part. 72, 103, 229; 1 Ves. 497; 4 Johns. Ch. 522; 2 Johns. Ch. 548; 15 Johns. 159; 4 Ves. Jr. 396; 2 Ves. Jr. 258; 5 Cranch, 301.
    It is created by the very contract of partnership, and extends to-everything coming in lien during its continuance. West v. Skip, 1 Ves. 242.
    Though technically termed a lien, it is nothing more than the right of the partner to his own property; and the whole system of legal rules on this subject will be found, on careful examination, to-result from the simple principle that every partner has a certain interest in the joint stock, of which he can not be divested without his assent, either express or implied; that his interest is the exact amount he *has invested, after deducting the losses or adding the profits. To ascertain that interest the debts must first, be paid, then the accounts balanced between the partners according to their several advances. Such balance is'all that the partner-can treat as his own, or that can be subjected to individual debts. Any other rule would have the effect to appropriate the property of one -man to pay the debts of another, and besides its injustice-would occasion such hazard in that kind of associations as would discourage and destroy them. The principle' embraces all the-joint effects as an indivisible community of property; there cam be no individual interest in any item, because they are all necessarily blended in interest by the mode in which they are acquired, and in account, by the manner of conducting the business. No partner can say this or that article is his own, for his copartners have contributed to purchase it, and his assent to the union of interest is declared by the act of blending it with the joint, accounts.
    This, explanation of the partnership lien shows its application to real estate held as partnership property. The real interest of a partner in such estate can be estimated in no other way but by ascertaining the balance of account in his favor. The land isi purchased with partnership funds, improvements are made, fixtures are attached and severed as convenience may require, and it ■becomes utterly impossible to separate it from the community of interest. It can not be ascertained what each partner has paid on the land till the whole accounts are settled. It would surely be unjust that a partner, holding legal title as tenant in common of .such property, who had advanced nothing to the concern, should be able to sell an equal interest in the freehold, without power in his copartners to prevent it; or that his heirs should inherit, without being accountable, especially to the other members of the firm ; and yet such would be the effect of a contrary doctrine.
    There are principles closely analagous to that for which we contend, long recognized in equity.
    Where one takes the title to land, and another advances the purchase money, there is a resulting trust for the latter. Where a part only is advanced by another, the trust is in proportion to the money advanced, and this trust may exist *among tenants in common in favor of each other, and following the same rules of proportion. Sug. Vend. 406, 409, 414; Bottsford v. Burr, 2 Johns. Ch. 410; Way v. Steele, 2 Ves. & Beam, 388; 1 Dal. 192. If these principles of resulting trust are recognized, in relation to partnership real estate, the existence of the lien must follow asan inevitable consequence. There will be a trust in proportion to the interest of each in the concern. 1 Vern. 33; Lake v. Craddock, 3 P. Wms. 158.
    In the English books there are many cases, in which the doctrine contended for seems to be clearly recognized; and, although they are generally cases arising between the real and personal representatives, not involving the rights of partners between each other, or of creditors, and so not direct adjudications on the question, yet if carefully examined, will be found to furnish great weight of authority. Thornton v. Dixon, 3 Bro. Ch. C. 199 ; Smith v. Smith, 5 Ves. Jr. 189; Lyster v. Dollard, 1 Ves. Jr. 431,; Buckridge v. Ingham, 2 Ves. Jr. 661; Bell v. Phyn, 7 Ves. Jr. 454; Balmain v. Shore, 9 Ves. Jr. 500; Ripley v. Waterworth, 7 Ves. Jr. 425 ; Foster v. Hale, 3 Ves. Jr. 696 ; 5 Ves. Jr. 308 ; Ford v. Heron, 4 Munf. 316.
    In the case of Smith v. Smith, which was a claim for dower, •the remarks of the chancellor are directly in point; and many of the others allude to the doctrine as not to be questioned. It is even said to be now the prevailing opinion in England, that real' estate thus held, will pass to the administrator as personalty. Noy’s Maxims, in notes. In this country, where land is subject to-traffic and merchandise, and treated as personalty in ordinary transactions, there are much stronger reasons for adopting the-rule.
    II. The agreement in the articles of copartnership, that the-property should be sold for the payment of debts, is a point still clearer for the defense. The property was purchased on the faith of this agreement, and in equity is bound to answer the purposes of it. It is the ordinary case of land agreed to bo turned into money, and in this court will be treated as such. It is unnecessary to refer to the reasoning, or the numerous cases on this-subject. The principle is fully recognized in Craig v. Leslie, 3 Wheat. 563. A court of equity would execute this agreement on the application *of any one of the partners, and the husband’s esLate was hound by it from the purchase. The object of such a stipulation was so to pledge the estate, that it could never be converted to a different purpose; those who advanced their-money for the purchase, relied on that security ; and a court of equity must give them the benefit of it, to the exclusion of every mesne incumbrance. The effect of such an agreement between partners has often been recognized, and it would seem even to operate to ma’ke the real estate distributable after death as personalty. Wats. Part. 60 ; Thornton v. Dixon; Balmain v. Shore; Ripley v. Waterworth, ante.
    III. The rights of the other partners, whether founded on the-general lien, or the special agreement, are equally paramount to dower. The widow can have dower of no greater or better estate than the husband held at some period during the coverture, and her right attaches subject to all incumbrances existing at the time-of the marriage, or attaching with the purchase by the husband. The wife takes her estate of the husband, her right springs from him, it is but a portion of his estate; and the stream can not rise-higher than the fountain, the part can not be greater than the-whole. The wife can be endowed only of the real beneficial interest of the husband, and she is liable to -be defeated by every subsistí ng claim, which might have defeated the husband at the period of his best estate. As in cases of a trust estate, joint tenancy (at common law), eviction by title paramount, entry for condition-broken, forfeiture by tenant in tail for alienation in fee. Co. Lit. 21, 217, 241.
    So of an estate limited to such uses as the husband shall appoint, .and in the meantime to himself, by which he is invested with the fee; yet an appointment made, the dower falls. Co. Lit. 217; Maundrill v. Maundrill, 10 Ves. Jr. 250.
    So of exchange, seizin for an instant only, etc., so of agreement *to convey, executed before dower attaches. 2 Ves. 631; 2 Powell Con. 57; Hardin, 288 ; 2 Bac. 387.
    So of lands purchased during coverture, and at the same time mortgaged for the purchase money. 15 Johns. 461; 4 Mass. 566.
    So of the vendor’s lien for the purchase money. Sug. Vend, 364; 6 Ves. Jr. 95 ; 1 Johns. Ch. 310.
    *So undoubtedly where lands descend to the husband and afterward are sold by administrators to pay the debts of the ancestor.
    All these examples show that any incumbrance, or condition, attaching with the acquisition of the estate, is paramount to ■dower.
    In the present case, the incumbrance formed a part of the transaction by which the estate was acquired, was a part of the consideration of the purchase; it attached with the acquisition, is of course paramount to dower, and exhausts the whole estate. The dower must, therefore, fall entirely.
   Opinion of the court, by

Judge Sherman :

This case depends upon the question whether the widow of a ■deceased partner is entitled to dower in lands purchased and paid for out of the partnership fund, under articles stipulating for the sale of the whole partnership property for the payment of debts, and used exclusively in carrying on their trade, the partnership ■being insolvent, and the deceased partner greatly in debt to the firm.

The widow, by our statute, is entitled to dower of all lands of which the husband was seized, as an estate of inheritance at any ■time during coverture.

Her estate is but a part of his, is derived from him, and must be subject to all incumbrances existing against it at the time of the marriage, or the acquisition by the husband; the husband can, by no act of his, destroy or affect her right of dower where it has •once attached, but it only attaches where he has a real beneficial interest in the lands of which dower is claimed. Upon this principle it has been held, that the wife of a mere trustee was not entitled to dower in the trust estate, although the husband was at law seized of an estate of inheritance.

A mere technical seizin of the husband, without any beneficial interest in the estate, will not entitle the wife to dower, as where lands descend to the husband, and are afterward, by virtue of the provisions of the statute, sold by the administrator of the ancestor, to pay debts due by such estate; here the husband is seized of a legal estate in inheritance, cast on him by operation ■of laws, but subject to the payment of the debts of his ancestor, and its being sold *for that purpose, shows that the husband never had a beneficial interest therein.

So where the husband is only seized for an instant. Co. Lit. 31. "Where lands are mortgaged to the husband, and the mortgage money is afterward paid, the husband was seized during coverture of a legal estate of inheritance, and yet the wife can not have dower in the lands so mortgaged.

Also, where lands are purchased by the husband, and mortgaged at the same time to the vendor for the purchase money, it has been held that the mortgage is paramount to the claim of dower. 15 Johns. 461; Mass. 566.

In this case the property was purchased, and the deed taken in the names of the partners, but it was bought with partnership funds, and for partnership uses, and was therefore subject to the condition expressed in the articles of partnership, that at its termination all the property should be sold for the payment of the debts.

The interest which each partner had in the property so purchased, was, at the moment of the acquisition, subject to this condition of the agreement.

This agreement in equity converts the land into personal property, as between the partners and their creditors, and subjects it to all the liabilities of their joint stock in trade. It shows the original understanding of the parties, that it is to be treated as partnership effects, and not as an estate in lands held in common.

In Thornton v. Dixon, 3 Bro. Ch. Cas. 199, Lord Thurlow said, “ that had the agreement been that the lands should be sold, it would have converted them into personalty.” In this case the interest of the creditors was no way involved; it was a question between the real and personal representative of a deceased partner,, and it was held, that as the articles of partnership did not provide that the land held by the partnership should be sold, or otherwise manifest an intention of considering it as part of the effects used in trade that the real representative was entitled thereto. The right of the real representative is made to depend, not on the-character of the estate, but the want of any agreement between the partners that it should be sold or otherwise appropriated to the payment of debts.

*In the case of Smith v. Smith, 5 Ves. 189, dower was decreed to the widow of a deceased partner of lands purchased in the name of her husband, and paid for out of the partnership funds, on the ground that by the agreement between the partners these lands were to be the husband’s, and be made debtor to the ¡partnership for the purchase money, the court observing, that had there been no agreement between the partners, the estate purchased with the partnership funds, though conveyed to one partner, would have been part of the partnership property, and this-principle was carried still further in the late case of Featherstonhaugh v. Fenwick, 17 Ves. 298, by Lord Eldon, who held that a lease of premises where a partnership trade was carried on, renewed by one partner in his own name, was a trust for the partnership, to be accounted for as joint property, although the lessor refused to execute a lease in which the other partners should be inserted.

The principle has often been recognized that lands bought with partnership funds and applied to partnership uses, are, when there is an agreement that they shall be sold for the payment of debts- or other purposes connected with the trade, considered in equity as personal property so far as necessary for any of the purposes of the partnership. It is considered as a trust attaching to the estate, at the time of its acquisition, and which a court of equity is bound to execute as against the partners, or those claiming under them with notice; Bell v. Phyn, 7 Ves. 454; Balmain v. Shore, 9 Ves. 500; 7 Ves. 425; 1 Ves. Jr. 431; and this is in accordance with the general principle that lands, agreed to be turned into money, or money into lands, shall be considered in equity as that species of property into which they are directed to> be converted, a rule, as observed by the Supreme Court of the United States, that is universal. Craig v. Leslie, 3 Wheat. 543.

In the case at bar, the partners, before the' purchase of this land, agree that it shall, at a particular period, be converted into money; this agreement a court of equity would specifically execute, by directing it to be sold, upon the application of either of the partners, on the ground that it was hold by the partners in trust, for the purposes mentioned in the articles of partnership, and that each partner was interested *in having it converted into money for the payment of the debts of the firm. At the moment of the acquisition oí this estate each partner acquired, as against the others, an equitable right to have this trust specifically executed according to the terms of their agreement, and each was, under a corresponding obligation to the others to dispose of the. land and appropriate the proceeds as originally agreed upon. It was an equitable lien which attached to the estate at the moment of its acquisition, and each partner and all claiming their estate as the heir or widow must take subject thereto, and can have only the interest that the deceased partner had.

It has been too repeatedly determined to be now questioned, that the separate estate of a partner consists of that part of the partnership effects which shall remain after the debts of the partnership and the demands of the partner qua partner are satisfied; Ex parte King, 17 Ves. 115 ; Taylor v. Fields, 4 Ves. 396; Nicoll v. Munford, 4 Johns. Ch. 522; and that interest or surplus only is liable to the separate creditors of each partner claiming either by assignment or under execution. Church v. Knox, 2 Day, 514; 6 Mass. 242, 271; 11 Mass. 249, 472; 2 Johns. 280.

The interest which William Greene, the husband of the complainant, had at the moment of his death in the partnership effects, was the surplus after payment of' the partnership debts, and the balance due his partners. The case shows that he had never advanced anything; the whole funds, both for the purchase of the lot of which dower is claimed, and for carrying on the business, was advanced by his partners, and at the time of his decease the partnership was insolvent. If this estate is to be considered in equity as personal property, and the court have no hesitation in saying it must be so considered as between the partners and their creditors, he had no substantial interest at the time of his death which would go to his representatives, or could be taken by his ■separate creditors. If it be considered as real estate, it was acquired subject to a condition or agreement that qualified the estate of the husband, and the wife, when there is an agreement, unless it were executed +after her right attached, would be bound thereby so as to exclude her right of dower.

The court are satisfied that the husband was at no time during ■coverture seized of such an estate of inheritance in these lands as is contemplated by the statute giving the widow dower, and that she is, by force of the statute, entitled only to a share of the beneficial interest he had in the lands; and where real estate necessary or convenient for the conducting a trade is purchased by a partnership, and paid for by their joint funds, under an agreement that they shall, at the termination of the partnership, be sold for the payment of debts, and the residue of the partnership effects are insufficient to discharge the debts, that the land so purchased, whether conveyed to one or all of the partners, is not subject to dower of the widow of a deceased partner.

The bill must therefore, be dismissed with costs.

NOTE A.

It was intended to insert here an examination of the cases that relate to the doctrine of sustaining a general count, where there was a special contract proven, but it is omitted in consequence of the reports make a larger volume than was expected.


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    McMurtry v. Campbell.
    In Error. — Suit by Assignee — Non est Factum.

    Plea of non est factum puts assignee to prove the assignment.
    This case was decided in May, 1824, in the county of Gallia, by Judges Hitchcock and Burnet.
    The facts were these: In December, 1821, McMurty executed a sealed bill to William Campbell, for sixty pounds, of the value of two hundred dollars. William Campbell assigned the bill to Matthew Campbell, the defendant in error, who commenced an action of debt in his own name, *as-assignee, under the statute. A judgment by default was entered, and afterward opened, on motion, and leave was given to plead issnably. The defendant filed the plea of non est factum with a notice of infancy, and the statute of limitations, but unaccompanied with an affidavit. On motion of the plaintiff, the court^ ordered the notice to be stricken out, as incompatible with the terms on which the default was opened. At the trial, the plaintiff offered the sealed bill in evidence, which was objected to, unless the plaintiff would prove the handwriting of the indorser.
    The objection was overruled, and the bill read in evidence, without the proof required, to which the defendant took his bill of exceptions.
    Three errors were assigned :
    1. That the defendant had a right to avail himself of his notice of infancy, and of the statute of limitations.
    2. That no consideration for the assignment was averred or proved.
    3. That the court permitted the bill to be given in evidence, without proving the assignment, or handwriting of the assignor.
   By the Court :

The statute dispensing with proof in certain cases provides, that upon plea of non est factum offered by the person charged as the obligor, or grantor of a deed, or pica of non assumpsit, or nil debet offered by the person charged as the maker of any promissory note, it shall not be necessary for the plaintiff to prove the execution of the deed or note, upon which such suit is brought, unless the party offering such plea shall make affidavit of the truth thereof.

As this action was brought against the obligor, or maker of the sealed bill, and the plea of non est factum was not accompanied with an affidavit, it was not necessary for the plaintiff to prove the execution of the deed, nor does it appear from the record that such proof was required. The exception taken at the trial was, that proof was- not required of the assignment or handwriting of the assignor. The statute dispenses with proof of the execution of the bill; but it dpes not extend to the assignment. When the bill was first offered, the parties stood on the same ground that they would have occupied if this statute had not been in existence, *and the plaintiff had proved the execution of the bill, but that testimony alone would not entitle him to recover, because it is not only necessary to show the liability of the defendant, but also the title of the plaintiff. The admission, or the proof of the execution of the bill, would establish the first point, but it could not affect the second. The plaintiff was bound to show that the right of action had passed from the obligee to himself, in order to sustain the suit in his own name, which could not be done without proving the assignment, by which the statute passes the interest, together with the right of suing in the name of the assignee.

As the case appeared before the jury, the right of the plaintiff, and the liability of the defendant, stood as they would have done, if no assignment had been made, or, in other words, a debt was proved to be due from the defendant to William Campbell, on which proof Matthew Campbell was permitted to recover.

As the statute did not dispense with proof of the assignment in this case, and as it was incumbent on the plaintiff, not. only to prove the defendant’s liability, but also to show his own title, the judgment must be reversed.

The opinion of the court being for the plaintiff on this part of the assignment, it is unnecessary to consider or decide the other-questions that have been discussed.

Judgment reversed and cause remanded.


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    *Lessee of Jerusha Hatch v. John T. Barr.

      Conveyance by Corporation.

    This was an action of ejectment, tried in the supreme court of Hamilton county. The case was as follows:
    At June term of the supreme court in Hamilton county, in the year 1821, a judgment was recovered by the treasurer of state .against the president and directors of the Miami Exporting Company for $9,618.27. Upon this judgment execution issued, and was levied upon the property in dispute, the bank house in Cincinnati ; and the law not requiring property seized upon execution for a debt to the state to be valued, the plaintiff bid off the house for the sum of $250, at sheriff’s sale. A deed of conveyance by the sheriff to the plaintiff was duly executed, and upon these proceedings and this deed the plaintiff rested the cause.
    The defendant produced a paper purporting to be a conveyance of the property in question to him, by the president and directors of the Miami Exporting Company, dated the 8th day of June, 1821. In this deed the president and directors of the Miami Exporting Company were named as grantors. The attesting clause was as follows: “ In witness whereof, I, Oliver M. Spencer, President of ■the said Miami Exporting Company, have hereto set my hand and ■seal," etc. “ Oliver M. Spencer, President of the Miami Exporting Company,” written opposite a seal of wafer and paper, with no •distinct impression.
    In connection with this deed the defendant produced a resolution of the board of directors of the Miami Exporting Company, made on the same 8th day of June, 1821, in the following words:

      “¡Resolved, That the president of this institution be authorized and directed to sell and convey to John T. Barr, of Baltimore, by deed in fee simple, with covenant of general warranty, the brick house and lot which was conveyed to the president and directors •of the Miami Exporting Company by Martin Baum, by deed bearing date the 26th day of March, 1816. Also, one hundred and thirty-eight acres and one-tenth of an acre, in the fourth section of the third ^township, of the second fractional range in the county of Hamilton and State of Ohio, being the same land that was conveyed to said company by the president and directors of the Bank of Cincinnati, by deed bearing date the 8th day of February, 1821. Also, the house and lot, late the property of David Brown, lying on Fifth street, in the town of Cincinnati, and being a part of lot No. 293, and which was conveyed to said Miami Exporting Company, by R. Ayres, sheriff of said county, by deed bearing date 23d day of June, 1820, for the consideration of the sum of ten thousand seven hundred and sixty dollars, in part discharge of the debt due from this institution to the said John T. Barr.

      “ Resolved, That the said president be authorized to execute to the said John T. Barr a bond, with a condition that if the said John T. Barr shall at any time within the term of one year reconvey to this institution the same property in the same manner, the conveyance shall be received, and the sum of ten thousand seven hundred and sixty dollars placed to the credit of the said John T. Barr on the books of this institution.”
    The defendant further offered to prove, in connection with the deed and resolution above stated, that the sum of ten thousand seven hundred and sixty dollars was paid to the bank at the time of making the deed, by a check in favor of the bank, drawn by the agent of John T. Barr, and charged to his account on the books, which fact of payment so made was admitted by the counsel for the plaintiff.
    The defendant further offered proof that the Miami Exporting Company had never, by any formal resolution, adopted a seal; but that the seal impressed upon the paper in question was procured by the president, and had been used as the seal of the institution, which fact was also admitted by the plaintiff’s counsel.
    The plaintiff objected to the paper purporting to be a deed being given in evidence to the jury, because not executed by the president and directors of the company and under the seal of the corporation, and therefore not operative as a conveyance. The court decided that the deed could not be given in evidence to the jury, and the plaintiff had a verdict.
    *The defendant moved for a new trial on the ground that the court erred in not -permitting the deed to go the jury. And at his request the decision of this motion was adjourned to. -Columbus.

      Wade and Hayward, in support of the motion:
    It is believed that two questions only are involved in the case:
    1. Whether Oliver M. Spencer, as president of the Miami Exporting Company, was fully authorized by the resolution passed the 8th of Juno, 1821, to make a good and sufficient conveyance of the property in dispute to the defendant? And:
    2. Whether he has made the conveyance in conformity with the. power with which he was invested?

      First. That the resolution of the board of directors contains all the essential requisites of a special power of attorney to convey real estate will not be denied ; and that Mir. Spencer, as president of the institution, was fully authorized to make the conveyance purporting to have been made in the deed, can not bo doubted. As bet-ween the bank and the defendant there does not appear to have-been any dispute, everything was done in good faith, and the resolution was adopted unanimously.

      Second. It is admitted, as a general rule of law, that the attorney must execute his power in the-name of his principal, and not-in his own name ; but it is respectfully contended that the present case does not come within that rule and must not be governed by it. Here the Miami Exporting Company had made an agreement, with the defendant for the sale of the property in question,'and it became necessary for the corporation to make good and sufficient, deed of conveyance for the same. This could only be done by some one of its officers, or some other person specially appointed, and authorized for that purpose. The president of the institution was authorized to execute the deed, and not Oliver M. Spencer in bis private capacity. It has been done so. In this he did not act as the attorney for the bank, but as the president of the corporation. And in that capacity it was contemplated he would act by the-general tenor of the resolution. The bank was to convey, and the president of the bank was to execute the deed of conveyance. And how, it is confidently tasked, does the instrument vary from, the spirit and meaning of the resolution ? It is in every particular, in both form and substance, a deed from the Miami Exporting Company to the defendant, with the exception of the c,lause of execution, and that, it is contended, is defective only in form, which is not such a defect as to render the instrument void. There is no-particular form of words required in the execution of a deed under a power of attorney, and it matters not what form of words is-used, if the authority is sufficient to warrant the act done. 2 East, 142; 4 Hen. & Mun. 184. The objection to the execution of this instrument is strictly technical, and is believed to be more specious than solid. Had the form been: “ The president and directors of the Miami Exporting Company, by Oliver M. Spencer, their president, etc.,” no objections would have been raised, for the seal used is the only seal over used by the company. These additional words are words of form only, and it will not be denied that Mr. Spencer had full and lawful power to have used them in the present case, why, then, should an instrument entered into, in good faith, for a lawful and sufficient consideration, and containing every, essential matter of substance, be deemed invalid and of no effect? Could the bank come into court, under any circumstances, and take advantage of the form of the execution and have this instrument adjudged void ? It is believed it could not; their own resolution would meet them at the threshold, and bar their objection. And besides, technical objections are never suffered to influence a legal decision, where their tendency is manifest injustice; and where they can not be sustained without a flagrant violation of the equity of the case.
    Hammond, for the plaintiff:
    The resolution of tho board of directors is not a good power authorizing the president of the institution to convey. A power of attorney to convey real estate must be executed with all the formalities of an actual conveyance. The resolution may be good authority for the president to sell and convey the lot for the company and in their right, but it can not operate so as to sustain a conveyance made by him as president.
    *The paper offered in evidence purported to be a,deed in which the company were grantors, but it was not executed by them. To effect this, the attestation clause of the deed should be in their name, and under their common seal. It is in the name of the president under his own seal. The grantors have not executed the writing. They can execute it in but one manner: as a corporation under their corporate seal. If the president executed it as their attorney, the same form of attestation must be used. As president, and in that character, he can not convey the real estate of the company. They can not convey without using a common seal. They might as well adopt the seal used as any other, but it must be adopted by resolution. 1 Swift, 71; 2 Conn. 579. And it must be named in the attestation clause of the deed.
   By the Court :

The paper offered in evidence purports to be a conveyance from the president and directors of the Miami Exporting Company as grantors. It is executed by O. M. Spencer as president, in his own name and under his own seal as president. The grantors named in the deed do not execute it. The person who executed it had no interest in the subject conveyed, and is not named as grantor in the deed. It is, therefore, no conveyance. The motion for a new trial is overruled, and judgment entered on the verdict.

Judge Burnet, being a stockholder in the Miami Exporting Company, did not sit in this case.